| People v Beckham |
| 2016 NY Slip Op 05759 [142 AD3d 556] |
| August 10, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Beckham, Appellant. |
Lynn W. L. Fahey, New York, NY (Melissa S. Horlick of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnette Traill, Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered December 15, 2011, convicting him of attempted predatory sexualassault, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his discovery requests pursuant to CPL 240.40 for material that wasnot in the possession or control of the People (see People v Colavito, 87 NY2d423, 428 [1996]; People v Washington, 86 NY2d 189, 191-192 [1995];People v Wright, 225 AD2d 430, 433 [1996]). The Supreme Court also properlygranted the People's motion to compel the defendant to submit a buccal swab for DNAtesting (see CPL 240.40 [2] [b] [v]; 240.90; People v Ruffell, 55 AD3d 1271, 1272 [2008]; People v Lewis, 44 AD3d422, 422-423 [2007]).
The defendant's right to confrontation (see US Const Sixth Amend) was notviolated by the testimony of a criminalist employed by the Office of the Chief MedicalExaminer of the City of New York. The criminalist performed her own analysis of theDNA profiles, concluded that there was a DNA match, and issued the final report, whichwas challenged on cross-examination (see People v John, 27 NY3d 294, 315 [2016]; People v Fernandez, 115 AD3d977, 978-979 [2014]).
The defendant's contentions that the prosecutor's opening and summation remarksconstituted reversible error are, for the most part, unpreserved for appellate review(see CPL 470.05 [2]; People v Morales, 87 AD3d 1165, 1166 [2011]). In anyevent, the prosecutor's remarks were either within the bounds of permissible rhetoricalcomment, responsive to the defendant's summation, or did not constitute reversible error(see People v Galloway, 54 NY2d 396, 401 [1981]; People v Ashwal, 39NY2d 105, 109 [1976]; Peoplev Maldonado, 55 AD3d 626, 628 [2008]; People v Williams, 144 AD2d403 [1988]; People v Torres, 121 AD2d 663, 664 [1986]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in denying the defendant's application to strike the complainant's testimony,made after [*2]the prosecutor spoke to the complainantduring a break in her testimony, regarding the authentication of a recording of a 911emergency call (see People v Branch, 83 NY2d 663, 667-668 [1994]; People v Pileggi, 116 AD3d984, 985 [2014]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Dillon, J.P., Miller, Hinds-Radix and BrathwaiteNelson, JJ., concur.