| People v Gonzalez |
| 2017 NY Slip Op 08191 [155 AD3d 507] |
| November 21, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Octavio Gonzalez, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia B. Heeger ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J. at initial motion toexclude DNA evidence; Edward J. McLaughlin, J. at subsequent motion, jury trial andsentencing), rendered January 14, 2014, convicting defendant of assault in the second degree, andsentencing him to a term of four years, unanimously affirmed.
The court properly declined to submit third-degree assault as a lesser included offense. Therewas no reasonable view of the evidence, viewed most favorably to defendant, under whichdefendant hit and kicked the victim, but neither cut the victim's throat personally, nor acted inconcert (see Penal Law § 20.00) with another person who did so (see People v Montanez, 147 AD3d444, 445 [1st Dept 2017]).
The court providently exercised its discretion in denying defendant's mistrial motion, theonly remedy requested, when it came to light that a juror had prematurely informed the otherjurors that he was already convinced of defendant's guilt. The court provided a sufficient remedyby simply discharging this juror, because the information before the court indicated that all theother jurors had rejected any notion of premature deliberations and cautioned the offending jurornot to make such a statement. Even if further inquiries of the remaining jurors would have beenappropriate, defense counsel expressly declined that remedy (see People v Ayers, 214AD2d 459 [1st Dept 1995], lv denied 86 NY2d 732 [1995]).
The motion court's pretrial ruling, issued on July 23, 2013, denying defendant's motion toexclude, or alternatively to conduct a Frye (Frye v United States, 293 F 1013 [DCCir 1923]) hearing on expert testimony relating to high sensitivity, or low copy number (LCN)DNA testing, was a provident exercise of discretion. At the time that the motion court's rulingwas made, a court of coordinate jurisdiction, following an eight-month Frye hearing, hadissued a decision holding that LCN DNA testing was "generally accepted as reliable in theforensic scientific community" and "not a novel scientific procedure" (People v Megnath, 27 Misc 3d405, 413 [Sup Ct, Queens County 2010]). "A court need not hold a Frye hearingwhere it can rely upon previous rulings in other court proceedings as an aid in determining theadmissibility of the proffered testimony" (People v LeGrand, 8 NY3d 449, 457-458 [2007]; see People v Garcia, 39 Misc 3d482, 486-487, 490 [2013] [following LeGrand and relying on Megnath inholding that both LCN and forensic statistical tool (FST) DNA testing evidence was admissiblewithout the need for a Frye hearing]). Here, as both Garcia and Megnathhad been decided prior to the motion court's ruling in this case, it was not an abuse of discretionfor the motion court, in keeping with LeGrand, to rely on them in denying defendant'smotion to exclude the LCN DNA testing evidence or to conduct a Frye hearing in thiscase.
Likewise, the trial court's denial of defendant's renewed motion for a Frye hearing inDecember 2013, which motion was recast to include evidence relating to both LCN DNA testingand a then-recently issued FST DNA testing report, was a provident exercise of discretion. Thetrial court's ruling was consistent with prior determinations of courts of coordinate jurisdiction[*2]that these procedures were not novel scientific techniques andwere generally accepted by the relevant scientific community (see Garcia, 39 Misc 3d at490 [denying Frye hearing as to both LCN and FST testing]; Megnath, 27 Misc3d at 413 [finding, after holding Frye hearing, that LCN testing is not novel and isgenerally accepted as reliable in the forensic scientific community]; People v WilliamRodriguez, Sup Ct, NY County, Oct. 24, 2013, Carruthers, J., slip op at 7-8, affd 153AD3d 235 [1st Dept 2017] [finding, after holding Frye hearing, that the FST is not noveland is generally accepted as reliable in the forensic scientific community]). Thus, the trial court'sruling was also in keeping with LeGrand, and did not constitute an abuse of discretion. Inany event, any error was harmless because the DNA evidence contributed little to the otherwiseoverwhelming evidence that it was defendant who wielded a knife during the assault.
Defendant's arguments relating to the trial court's instructions on accessorial liability areunpreserved because the court corrected, to defense counsel's satisfaction, each deficiency in thecharge to which counsel had objected and no further instructions were requested (see Peoplev Heide, 84 NY2d 943, 944 [1994]; People v Whalen, 59 NY2d 273, 280 [1983]).We decline to consider defendant's claims in the interest of justice. As an alternative holding, wefind that the court's instructions, viewed as a whole and as corrected, generally conveyed theproper standards, and that reversal is not required. Concur—Richter, J.P., Gische,Kapnick, Kahn and Kern, JJ.