| People v Breazil |
| 2018 NY Slip Op 07138 [165 AD3d 1159] |
| October 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shytuan Breazil, Appellant. |
Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, andJulian Joiris of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M.Del Giudice, J.), rendered May 19, 2015, convicting him of attempted murder in the seconddegree, robbery in the first degree, and burglary in the first degree, upon a jury verdict, andsentencing him to consecutive determinate terms of imprisonment of 25 years for eachconviction.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, (1)by reducing the term of imprisonment imposed on the conviction of attempted murder in thesecond degree from a determinate term of imprisonment of 25 years to a determinate term ofimprisonment of 20 years, (2) by reducing the terms of imprisonment imposed on the convictionsof robbery in the first degree and burglary in the first degree from determinate terms ofimprisonment of 25 years to determinate terms of imprisonment of 10 years, and (3) by providingthat the terms of imprisonment imposed on the convictions of robbery in the first degree andburglary in the first degree shall run concurrently with each other, and the term of imprisonmentimposed on the conviction of attempted murder in the second degree shall run consecutively tothe terms of imprisonment imposed on the convictions of robbery in the first degree and burglaryin the first degree; as so modified, the judgment is affirmed.
On the afternoon of September 18, 2013, the defendant forced his way into the apartment ofhis friend's 76-year-old grandmother, stabbed her with a kitchen knife nine times, and fled with ashopping bag containing the complainant's keys and wallet. At trial, the People presented DNAevidence linking the defendant to the attack. After the trial, the jury found the defendant guilty ofattempted murder in the second degree, robbery in the first degree, and burglary in the firstdegree. The Supreme Court imposed consecutive determinate terms of imprisonment of 25 yearsfor each conviction, and the sentence was thereafter automatically reduced to 50 years by thedepartment of Corrections and Community Supervision because it exceeded the maximumallowable 50-year term for three class B felony convictions (see Penal Law§ 70.30 [1] [e] [vi]). The defendant appeals from the judgment.
The defendant's contention that the testimony of an analyst from the Office of the ChiefMedical Examiner violated his right to confrontation is without merit. The analyst's testimonyestablished that she used "her independent analysis on the raw data" to conclude that thecomplainant's DNA was on a blood-smeared wallet recovered from the defendant, as well as onparts [*2]of a broken knife that was discovered on scaffoldingoutside the building where the defendant was arrested, and that it was 157 billion times morelikely than not that the defendant's DNA was included in a mixture of skin cells found on asweatshirt that was discovered next to the knife (People v John, 27 NY3d 294, 315 [2016]; see People v Evans, 157 AD3d716, 717 [2018]). Based on this testimony, the analyst did not act "as a conduit for theconclusions of others" (People v John, 27 NY3d at 315), and the defendant's right toconfront the witnesses against him was not violated.
The defendant's challenges to certain remarks made by the prosecutor during summation areunpreserved for appellate review (see CPL 470.05 [2]). In any event, the challengedportions of the prosecutor's summation were fair comment on the evidence and the reasonableinferences to be drawn therefrom (seePeople v Rudenko, 151 AD3d 1084, 1085 [2017]; People v Guzman, 138 AD3d 1140, 1140 [2016]; People v Ramrattan, 126 AD3d1013, 1014 [2015]), a fair response to the defense summation (see People v Halm,81 NY2d 819, 821 [1993]; People vJohnson, 127 AD3d 1234, 1234 [2015]), or do not otherwise require reversal (seePeople v Galloway, 54 NY2d 396, 399 [1981]).
The sentence imposed was excessive to the extent indicated herein (see People v Rivera, 130 AD3d655, 656 [2015]; People vHolland, 119 AD3d 708, 709 [2014]; People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Chambers, J.P., Austin, Cohen andDuffy, JJ., concur.