| People v Thomas |
| 2019 NY Slip Op 00147 [168 AD3d 766] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Thomas, Appellant. |
Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, Brooke E. Barnes, and Kathryn E. Mullen of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RobertCharles Kohm, J.), rendered December 5, 2016, convicting him of rape in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of his right to a fair trial due to improperremarks made by the prosecutor during his opening statement and summation is not preserved forappellate review (see CPL 470.05 [2]). In any event, the challenged remarks were eitherfair comment on the evidence and the reasonable inferences to be drawn therefrom (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]), were responsive to arguments and theoriespresented in defense counsel's summation (see People v Gross, 88 AD3d 905, 906 [2011]), or otherwise didnot deprive the defendant of a fair trial (see People v Ashwal, 39 NY2d at 109-110; People v King, 144 AD3d 1176,1176-1177 [2016]).
The defendant's contention that certain testimony of the complainant and her husband wasinflammatory and prejudicial is not preserved for appellate review (see CPL 470.05 [2]).In any event, the challenged testimony was more probative than prejudicial and, therefore, wasproperly admitted into evidence (see People v Scarola, 71 NY2d 769 [1988]; People vAlvino, 71 NY2d 233 [1987]).
The defendant failed to preserve for appellate review his contention that the admission ofcertain DNA profiles and reports, as well as the testimony of the expert analyst, violated hisSixth Amendment right to confrontation (see CPL 470.05 [2]). In any event, thecontention is without merit. The Sixth Amendment to the United States Constitution guarantees adefendant the right to be " 'confronted with the witnesses against him [or her]' "(People v Brown, 13 NY3d332, 338 [2009], quoting Crawford v Washington, 541 US 36, 53-54 [2004]). "Thisprovision bars 'admission of testimonial statements of a witness who did not appear at trial unlesshe [or she] was unavailable to testify, and the defendant . . . had a prior opportunityfor cross-examination' " (People v Brown, 13 NY3d at 338, quoting Crawfordv Washington, 541 US at 53-54).
Here, the DNA evidence was, at least in part, testimonial (see People v Austin, 30 NY3d 98,104 [2017]; People v John, 27NY3d 294, 308 [2016]). However, the expert analyst's testimony regarding his review andanalysis of all of the case files indicated that he independently analyzed the raw data, as opposedto functioning as " 'a conduit for the conclusions of others' " (People vAustin, 30 NY3d at 105, quoting People v John, 27 NY3d at 315; see People v Velez, 164 AD3d 622[2018]; People v Webb, 163 AD3d880, 881 [2018]). Accordingly, we agree with the Supreme Court's determination to admitthe DNA profiles and reports, and the expert analyst's testimony.
The defendant was not deprived of his right to the effective assistance of counsel. The recordas a whole demonstrates that counsel provided the defendant with meaningful representation (see People v Caban, 5 NY3d 143[2005]; People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137[1981]).
Finally, the defendant's contentions that the Supreme Court erroneously instructed the juryregarding testimony admitted under the excited utterance exception to the hearsay rule andregarding the prompt outcry exception to the hearsay rule are not preserved for appellate review(see CPL 470.05 [2]), and, in any event, these contentions do not require reversal. Balkin,J.P., Austin, Connolly and Christopher, JJ., concur.