| People v Washington |
| 2013 NY Slip Op 05096 [108 AD3d 576] |
| July 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Washington, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered January 19, 2011, convicting him of burglary in the first degree(three counts), burglary in the second degree (three counts), assault in the first degree(two counts), assault in the second degree (two counts), criminal sexual act in the firstdegree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant'schallenges for cause to two prospective jurors. "[W]here prospective jurorsunambiguously state that, despite preexisting opinions that might indicate bias, they willdecide the case impartially and based on the evidence, the trial court has discretion todeny the challenge for cause if it determines that the juror's promise to be impartial iscredible" (People v Arnold, 96 NY2d 358, 363 [2001]). Here, although theprospective jurors initially gave responses to inquiries that raised doubts as to their abilityto be impartial, they ultimately provided unequivocal assurances that they could renderan impartial verdict based solely on the evidence adduced at trial (see People v Narvaez, 34AD3d 847, 848 [2006]; People v Nowlin, 297 AD2d 554, 555 [2002];People v Cherry, 286 AD2d 913, 913 [2001]).
There is no merit to the defendant's contention that the Supreme Court improvidentlyexercised its discretion in finding that the People's expert witness was qualified to renderan expert opinion in the field of the statistical significance of DNA profiles, as thewitness demonstrated that she possessed the requisite skill, training, education,knowledge, or experience to render a reliable opinion in that field (see People v Menendez, 50AD3d 1061, 1062 [2008]). Moreover, the court providently exercised its discretionin precluding cross-examination of the witness about DNA profile comparisons fromthree other states, since such questioning had the potential to mislead the jury (see People v Haynes, 39 AD3d562, 564 [2007]; People vPaixao, 23 AD3d 677, 678 [2005]).
The defendant contends that the Supreme Court violated his right to confrontation[*2]by permitting the People to introduce evidence ofDNA testing performed on evidence recovered from the crime scenes and his cheek swabthrough the People's expert witness, who lacked firsthand knowledge of the testing ofeach item of evidence. However, the defendant's contention is without merit. The courtproperly admitted files prepared by the New York City Medical Examiner's Officecontaining DNA profiles derived from the testing of evidence recovered from the crimescenes, since the documents containing the DNA profiles, which were prepared prior tothe defendant's arrest, "did not, standing alone, link [him] to the crime" (People v Dail, 69 AD3d873, 875 [2010]; cf. Peoplev Oliver, 92 AD3d 900 [2012]). The testimony of the People's expert witnessestablished that she conducted the critical analysis at issue by comparing the DNAprofiles derived from the crime scene evidence to the defendant's DNA profile andconcluding that all of the profiles matched (see People v Brown, 13 NY3d 332, 340 [2009]; People v Rawlins, 10 NY3d136, 159 [2008], cert denied sub nom. Meekins v New York, 557 US 934[2009]). Moreover, the DNA profile generated from the swab of the defendant's cheek,standing alone, shed no light on the issue of the defendant's guilt in the absence of theexpert's testimony that it matched the profiles derived from the crime scene evidence (see People v Pealer, 20 NY3d447, 452-456 [2013]; People v Rawlins, 10 NY3d at 159; see alsoWilliams v Illinois, 567 US —, —, 132 S Ct 2221, 2224 [2012,plurality op]).
The defendant's contention, raised in his pro se supplemental brief, that he wasdenied his right to a speedy trial, is not properly before this Court, since the defendantdid not request dismissal of the indictment on that ground before the Supreme Court (see People v Davison, 92AD3d 691, 692 [2012]).
The defendant's further contention, raised in his pro se supplemental brief, that hewas deprived of the effective assistance of counsel is based, in part, on matter appearingon the record and, in part, on matter outside the record, and thus constitutes a " 'mixedclaim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011], quotingPeople v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions raised in his pro se supplemental brief areunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit. Rivera, J.P., Roman, Miller and Hinds-Radix, JJ., concur.