| People v Fuller |
| 2018 NY Slip Op 07143 [165 AD3d 1163] |
| October 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darrell Fuller, Appellant. |
Alan Katz, Garden City Park, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Laurie K. Gibbonsof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S.Carter, J.), rendered September 5, 2014, convicting him of murder in the first degree (twocounts), murder in the second degree, robbery in the first degree (two counts), and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The evidence at trial, consisting of, inter alia, the testimony of multiple eyewitnesses, cellphone tracking data, and extensive forensic evidence, including DNA testing results, establishedthat on October 23, 2012, the defendant was involved in a vehicular collision and left the sceneof the collision. When pursuing police officers pulled over the defendant's severely damagedvehicle, the defendant exited his vehicle and shot and killed an approaching officer. Thedefendant then returned to his vehicle and continued to drive until he pulled up behind a sedanstopped on the side of the road. The defendant approached the sedan, shot and killed its operator,pulled the operator's body from the vehicle, and sped away in the sedan.
On appeal, the defendant contends that the trial court erred in, sua sponte, dismissing some ofthe prospective jurors during a prescreening phase of jury selection without making an adequaterecord of the prescreening proceedings. However, the defendant neither requested that a morecomplete record of the prescreening proceedings be made, nor did he timely object to the mannerin which the prescreening was conducted or to the dismissal of any prospective juror as a resultof that process. Accordingly, his current challenges to the court's actions in this regard areunpreserved for appellate review (see CPL 270.10; People v King, 27 NY3d 147 [2016]; People v Xochimitl, 147 AD3d793 [2017], affd 32 NY3d 1026 [2018]; People v Umana, 76 AD3d 1111[2010]; People v Toussaint, 40AD3d 1017 [2007]). In any event, the defendant has failed to establish that the courterroneously excused any of the prospective jurors (see People v Umana, 76 AD3d at1111; People v Toussaint, 40 AD3d at 1017), or that its actions systematically excludedany distinctive group from the venire (see People v Guzman, 60 NY2d 403 [1983];People v Branch, 244 AD2d 562 [1997]).
The defendant further contends that reversal is warranted due to the allegedly late [*2]disclosure of reports of certain DNA testing results that were notgenerated until after jury selection had been completed. However, given the prosecution's promptdisclosure of those reports to the defense on the same date that they were generated, the similarityof those DNA results to other forensic and DNA evidence that had already been turned over, thetrial court's provision of time to the defense to evaluate the new evidence, and the absence of anyshowing of substantial prejudice resulting from the timing of the disclosure, the court did notimprovidently exercise its broad discretion in declining to reopen the voir dire or to preclude theuse of the evidence at trial (see People vThomas, 12 AD3d 383, 384 [2004]; People v Scott, 294 AD2d 661, 664-665[2002]; see generally Matter of JzamaineE.M., 150 AD3d 738, 740 [2017]; People v Johnson, 139 AD3d 967, 976 [2016]; People v Jingzhi Li, 104 AD3d704, 705 [2013]; People v Uka,92 AD3d 907, 907-908 [2012]).
Furthermore, the trial court providently exercised its discretion in admitting testimony thatthe defendant was on parole at the time the subject acts were committed in order to establish hismotive for shooting and killing the victims (see People v Allweiss, 48 NY2d 40 [1979];People v Johnson, 94 AD3d1144 [2012]; People vCrichlow, 79 AD3d 1144 [2010]; People v McMurray, 271 AD2d 460 [2000];People v Robinson, 200 AD2d 693 [1994]). Moreover, any potential prejudice to thedefendant was minimized by the trial court's limiting instructions to the jury at the time thetestimony was introduced (see People vJohnson, 94 AD3d 1144 [2012]; People v Crichlow, 79 AD3d at 1145; People v Jenkins, 49 AD3d 780[2008]; People v McMurray, 271 AD2d at 460; People v Robinson, 200 AD2d at694).
Additionally, to the limited extent that it has been preserved for our review, the defendant'scontention that his right to confrontation was violated by the admission into evidence of DNAresults set forth in reports of nontestifying analysts is without merit. The testimony of theprosecution's forensic witnesses demonstrated that they used their "independent analysis on theraw data, as opposed to . . . functioning as a conduit for the conclusions of others"(People v John, 27 NY3d 294,315 [2016]). Accordingly, the challenged testimony did not violate the defendant's SixthAmendment right of confrontation (seePeople v Henderson, 142 AD3d 1104 [2016]; People v Beckham, 142 AD3d 556 [2016]).
Finally, contrary to the defendant's contention, the prosecution established a sufficient chainof custody for the admission of the DNA blood evidence (see People v Julian, 41 NY2d340 [1977]; People v Gibson, 28AD3d 576 [2006]). Under the circumstances presented, any alleged deficiencies in the chainof custody went only to the weight of that evidence rather than its admissibility, and wereproperly for the jury's resolution (seePeople v Caballero, 34 AD3d 690 [2006]; People v Williams, 5 AD3d 705 [2004]; People vRodriguez, 238 AD2d 447, 448 [1997]). Mastro, J.P., Sgroi, Maltese and Brathwaite Nelson,JJ., concur.