| People v Velez |
| 2018 NY Slip Op 05707 [164 AD3d 622] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Velez, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A.Schwartz, J.), rendered September 16, 2014, convicting him of burglary in the second degree,petit larceny, and criminal mischief in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his discovery request pursuant to CPL 240.40 for material that was not inthe possession or control of the People (see People v Tsintzelis, 153 AD3d 558 [2017]; People v Beckham, 142 AD3d 556[2016]).
The defendant's contention that the testimony of an analyst from the Office of the ChiefMedical Examiner violated his Sixth Amendment right to confrontation is without merit. Theanalyst testified that she independently established that the odds of finding the DNA profilegenerated from blood found at the crime scene, which matched the DNA profile generated from aswab taken from the defendant, in the general population would be "one in greater than 6.8trillion" (see People v John, 27NY3d 294, 315 [2016]; People vEvans, 157 AD3d 716, 717 [2018]). Thus, the analyst did not act "as a conduit for theconclusions of others," and the defendant's right to confront the witnesses against him was notviolated (People v John, 27 NY3d at 315; see People v Evans, 157 AD3d at717).
The defendant's contention that he was deprived of a fair trial by improper remarks made bythe prosecutor during his summation is unpreserved for appellate review (see CPL 470.05[2]; People v Nuccie, 57 NY2d 818 [1982]; People v Nunez, 82 AD3d 1128, 1129 [2011]). In any event, to theextent that some of the prosecutor's remarks were improper, those remarks did not deprive thedefendant of a fair trial, and any other error in this regard was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that any errorcontributed to the defendant's conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Mairena, 160AD3d 986, 988 [2018]; People vRoscher, 114 AD3d 812, 813 [2014]).
[*2] The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Leventhal, J.P., Miller, Duffy and LaSalle, JJ., concur.