| People v Wright |
| 2014 NY Slip Op 01941 [115 AD3d 1257] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vHoward S. Wright, Appellant. |
—[*1] Sandra J. Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered July 10, 2007. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contends that theconviction is not supported by legally sufficient evidence. We reject that contention. "Itis well settled that, even in circumstantial evidence cases, the standard for appellatereview of legal sufficiency issues is whether any valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the [factfinder] onthe basis of the evidence at trial, viewed in the light most favorable to the People"(People v Hines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d 678[2001] [internal quotation marks omitted]). Here, several witnesses testified at trial thatdefendant was with the victim in her vehicle before she was killed. The People alsopresented evidence that the victim was raped in her vehicle, and defendant's DNA couldnot be excluded from various pieces of evidence recovered therefrom. In addition, thePeople presented testimony establishing that defendant was seen with the victim's vehicleon the night she was killed, and a witness testified that, the next morning, defendant tookhim to the place where the victim's vehicle was parked after the victim's death. We thusconclude that there is a valid line of reasoning and permissible inferences that could leada rational person to the conclusion reached by the jury (see People v Hernandez, 79AD3d 1683, 1683 [2010], lv denied 16 NY3d 895 [2011]).
Viewing the evidence in light of the elements of murder in the second degree ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contentionthat the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although an acquittal would not have beenunreasonable, it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see generally id.).
Defendant failed to preserve for our review his contention that he was denied a fairtrial based on prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Stanley, 108 AD3d1129, 1131 [2013]), and we decline to exercise our power to review that contentionas a matter of [*2]discretion in the interest of justice(see CPL 470.15 [6] [a]). Finally, contrary to defendant's contention, weconclude that the evidence, the law and the circumstances of this case, viewed in totalityand as of the time of the representation, establish that he received meaningfulrepresentation (see People vBergman, 70 AD3d 1494, 1495 [2010], lv denied 14 NY3d 885 [2010];see generally People v Baldi, 54 NY2d 137, 147 [1981]).
All concur except Fahey and Carni, JJ., who dissent and vote to reverse inaccordance with the following memorandum.
Fahey and Carni, JJ. (dissenting). We respectfully disagree with the conclusion ofour colleagues that we should not exercise our power, as a matter of discretion in theinterest of justice, to review defendant's contention that he was deprived of a fair trialbased on prosecutorial misconduct. Upon our review of that contention (see CPL470.15 [6] [a]), we conclude that the prosecutor's mischaracterization on summation ofDNA evidence linking defendant to the victim's murder is reversible error. We alsoconclude that defendant was denied effective assistance of counsel as a matter of lawbased on defense counsel's failure to object to that prosecutorial misconduct. Wetherefore dissent and would reverse the judgment of conviction and grant a new trial onthe first count of the indictment.
Before we address the incidents of prosecutorial misconduct, it is first necessary toaddress the evidence on which those incidents are based. As the majority notes, thePeople "presented evidence that . . . defendant's DNA could not beexcluded from various pieces of evidence recovered [from the victim's vehicle]." At trial,the People's forensic expert, who analyzed defendant's DNA sample, described the twotypes of DNA testing used in this case—mitochondrial DNA analysis and YSTRDNA analysis. "[M]itochondrial DNA is not unique to any one individual[,] [and]. . . everyone in a maternal line will share the same mitochondrial DNA"(Wes R. Porter, Expert Witnesses: Criminal Cases, § 8:22). By contrast, YSTRDNA analysis involves only the Y chromosome, and the genetic testing based on YSTRDNA analysis produces results only with respect to male individuals. Those more limitedresults are a natural consequence of the human genetic constitution inasmuch as a femaleinherits an X chromosome from each parent, whereas a male inherits an X chromosomefrom his mother and a Y chromosome from his father (see Forensic DNAEvidence: Science and the Law, ch 7:1). Absent "mutations, 95% of the geneticinformation on the Y chromosome is left unchanged from one generation to the next"(id.) and, "[b]ecause of [that] conservation, all male relatives from the samepaternal line will have the same genetic information in the non-recombinant region oftheir Y chromosomes" (id.). YSTR DNA "testing [thus] produces results that arespecific to male individuals only" (id.).
The People's forensic expert acknowledged the two above-mentioned types of DNAanalysis at trial, but she did not speak at length about a third type of DNAanalysis—autosomal, which involves analysis of non-sex chromosomes and whichpermits "a statistical expression of the [DNA] profile's rarity in certain humanpopulations" (id. at ch 5). Courts have observed that " '[t]he major differencebetween autosomal . . . DNA analysis and [YSTR] DNA analysis is in theinterpretation and application of the test results' " (People v Stevey, 209 Cal App4th 1400, 1413 [2012], quoting People v Calleia, 414 NJ Super 125, 145, 997A2d 1051, 1062-1063 [2010], revd on other grounds 206 NJ 274, 20 A3d 402[2010]), and that "[YSTR DNA] testing . . . appears to have limitedusefulness in identifying someone by a DNA match, but it may be useful forexcluding a person" (Moore v Commonwealth, 357 SW3d 470, 491-492[2011] [emphasis added]; see Calleia, 414 NJ Super at 145-147, 997 A2d at1063-1064). Given its "high probability of identifying an individual as the DNA source,"autosomal DNA testing "is the preferred method of analysis" (Calleia, 414 NJSuper at 146, 997 A2d at 1063).
By way of illustrating the above limitations of YSTR DNA analysis in the context ofthis case, we note that the People's forensic expert testified on direct examination thatYSTR DNA [*3]analysis could not exclude defendantand the victim's husband as contributors to a sample collected from the ligature thatbound the victim's hands; that YSTR DNA analysis of a sperm fraction from the vaginalswab collected from the victim could not exclude defendant's accomplice; and that YSTRDNA analysis could not exclude the victim's husband, defendant's accomplice anddefendant as contributors to a sample collected from the victim's underwear. Further, oncross-examination, the People's forensic expert acknowledged that no typical statisticalcalculations are done in YSTR DNA testing, and that the "whole profile" is "compare[d]. . . to a database . . . to approximate how common or rare thatparticular profile might be found in the male population." None of the DNA evidencethat tied defendant to the victim's murder was backed by any statistical calculations.
Notwithstanding the circumstantial and inconclusive nature of the above DNAevidence, the People presented it as their strongest proof linking defendant to the victim'smurder. The People's remaining evidence of defendant's guilt was equally circumstantial,establishing only that the victim's body was found in a driveway; that the victim had beenstrangled to death with a shoelace; that the victim's hands had been bound behind herback with a ligature; and that, the day before her body was discovered, the victim, whotested positive for cocaine after her death, had been seen with defendant andcodefendant, two cocaine dealers who were also observed in the victim's car without thevictim a few hours before the victim's body was discovered.
Consequently, during her summation, the prosecutor relied heavily on the DNAevidence. She began her discussion of that proof by arguing to the jury that defendantand his accomplice "thought that they had gotten away with murder, but they left theirDNA all over the crime." After conceding that there was no statistical calculationavailable for the DNA results from the vaginal swab, the prosecutor noted that there hadbeen only two contributors to the sperm fraction from the swab, which "matched theYSTR/DNA profile of the defendant and of [defendant's accomplice]." The prosecutoradded that the semen collected from the victim's underwear contained a mixture of DNA,which included contributions from both defendant and his accomplice.
With respect to the hand ligature, the prosecutor noted that the People's analysts wereunable to obtain a complete DNA profile from that evidence, but "at four locations, therewas able to be detected the presence of a Y chromosome . . . [E]very singlenumber that they were able to determine, and they were able to determine partial profilematches, is that of [defendant] and [the victim's husband]." After noting again that therewas no statistical calculation available, the prosecutor further argued to the jury that,according to the People's forensic expert, defendant "could not be excluded as acontributor to the mixture on the ligature."
From there, the prosecutor went further, referring to a chart listing the YSTR DNAprofiles of several different potential matches and alleging that "the only one whomatches the DNA profile on the ligature is [defendant]." Arguing that such fact wasprobative and not coincidental, the prosecutor further claimed that there was "noreasonable explanation for [defendant's] DNA on that ligature that bound [the victim's]hands." In closing her discussion of the DNA evidence, the prosecutor also argued to thejury that defendant's "sperm" had been in the victim's vagina and on the victim'sunderwear, and that his DNA profile was "included on the ligature that bound [thevictim's] hands together." Finally, the prosecutor added: "The defendant's DNA is inside[the victim], on her underwear, on the ligature that binds her hands . . .When you put it all together, members of the jury, it is common sense and there is onlyone conclusion that you can reach, and that is guilty."
"Reversal based on prosecutorial misconduct is 'mandated only when the conduct[complained of] has caused such substantial prejudice to the defendant that he has beendenied [*4]due process of law' " (People v Jacobson, 60 AD3d1326, 1328 [2009], lv denied 12 NY3d 916 [2009]). "In measuring whethersubstantial prejudice has occurred, one must look at the severity and frequency of theconduct, whether the court took appropriate action to dilute the effect of that conduct,and whether review of the evidence indicates that without the conduct the same resultwould undoubtedly have been reached" (People v Mott, 94 AD2d 415, 419[1983]).
In light of the circumstantial nature of all of the evidence against defendant, wecannot conclude that the jury would have reached the same result had not the prosecutorboth mischaracterized and emphasized the DNA evidence on summation, which evidencethe People made the linchpin of their case. Here, the testimony of the People's forensicexpert put defendant in only a statistically-undefined group of people whoseDNA could have been found on the victim's underwear, on the ligature, and in the spermfraction from the vaginal swab. In other words, that evidence placed defendant in aclass of people that could have contributed to the DNA, but the prosecutorargued to the jury that the analysis of the DNA established defendant as theDNA's contributor. We conclude that the prosecutor's willful and repeatedmischaracterization of evidence of class as evidence of exactitude was misconduct thatcould have " 'tip[ped] the scales' against defendant " (People v Elliott, 294 AD2d870, 870 [2002], lv denied 98 NY2d 696 [2002]). We cannot conclude that thesame result herein "would undoubtedly have been reached" absent that misconduct(Mott, 94 AD2d at 419).
We further conclude that, under the circumstances of this case, defense counsel'sfailure to object to the prosecutor's remarks on summation deprived defendant ofmeaningful representation. "A single error may qualify as ineffective assistance, but onlywhen the error is sufficiently egregious and prejudicial as to compromise a defendant'sright to a fair trial" (People vCaban, 5 NY3d 143, 152 [2005]; see People v Atkins, 107 AD3d 1465, 1465 [2013], lvdenied 21 NY3d 1040 [2013]). "In order to sustain a claim of ineffective assistanceof counsel, a court must consider whether defense counsel's actions at trial constitutedegregious and prejudicial error such that defendant did not receive a fair trial" (People v Oathout, 21 NY3d127, 131 [2013] [internal quotation marks omitted]). Here, we conclude that defensecounsel's failure to object to the prosecutor's baseless transformation of evidence thatdefendant was in a group or class of people that could have contributed to the subjectDNA samples to evidence that defendant was the sole possible contributor to thosesamples was so egregious and prejudicial that defendant did not receive a fair trial. In ourview, there is no strategic or other legitimate explanation for that shortcoming (seePeople v Benevento, 91 NY2d 708, 712 [1998]), and we conclude that defendantwas denied the right to effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Consequently, for the foregoing reasons, we would reverse the judgment on the lawbased on ineffective assistance of counsel. We would also reverse the judgment as amatter of discretion in the interest of justice and on the law based on prosecutorialmisconduct. Further, we would grant defendant a new trial on the first count of theindictment. Present—Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.