| People v Daly |
| 2016 NY Slip Op 05048 [140 AD3d 593] |
| June 23, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Erwyn Daly, Appellant. |
Law Offices of Iannuzzi and Iannuzzi, New York (John N. Iannuzzi of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel),for respondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered June 14,2013, convicting defendant, after a jury trial, of three counts each of robbery in the firstand second degrees, and sentencing him to an aggregate term of 17 years, unanimouslyaffirmed.
Defendant's claim that his right of confrontation was violated by the testimony of aDNA expert who prepared reports documenting the match between defendant's DNA andDNA found at the crime scenes, and referred to data gathered by nontestifying analysts,is unpreserved and we decline to review it in the interest of justice. When, at the outset ofthe analyst's testimony, the court inquired whether there was a Confrontation Clauseissue, defense counsel remained silent, and he did not object to any DNA evidence onconstitutional or other grounds, or request that the People call any other analysts.Although counsel cross-examined the witness about the fact that he did not perform allthe steps in the DNA analysis, this was for the purpose of undermining the jury'sconfidence in the DNA evidence, and it did not raise any legal issue for determination bythe court (see e.g. People vJohnson, 117 AD3d 637, 639 [1st Dept 2014]; People v Rios, 102 AD3d473, 474 [2013], lv denied 20 NY3d 1103 [2013]). We decline to decidewhether, by way of "independent analysis" or otherwise, this witness possessed the"requisite personal knowledge" to satisfy the requirements of People v John (27 NY3d294, 313-315 [2016]).
The court properly exercised its discretion in denying defendant's request for anadverse inference instruction regarding DNA-related physical evidence that was renderedunavailable by flooding of the storage facility during Hurricane Sandy, since that is notthe type of loss that can be attributed to the People (see People v Austin, 134 AD3d 559 [1st Dept 2015]).Moreover, there had been no defense request for this evidence.
Defendant's claim that his counsel rendered ineffective assistance by failing to seekindependent testing of the DNA material is unreviewable on direct appeal because itinvolves matters not reflected in, or fully explained by, the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claim may not be addressed on appeal.
Defendant's challenge to the prosecutor's summation is unpreserved because, to the[*2]extent defendant objected to the remarks at issue, hereceived all of the relief he requested from the court, and we decline to review this claimin the interest of justice. As an alternative holding, we find that the court's curativeactions were sufficient and that the remarks did not deprive defendant of a fair trial.Concur—Tom, J.P., Friedman, Richter, Kapnick and Gesmer, JJ.