| People v Walters |
| 2019 NY Slip Op 03632 [172 AD3d 916] |
| May 8, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darryl Walters, Appellant. |
Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P.Griffin, J.), rendered March 12, 2015, convicting him of burglary in the second degree, grandlarceny in the third degree, and criminal mischief in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial.
The defendant contends that the Supreme Court violated his Sixth Amendment right toconfrontation by admitting into evidence records of a DNA analysis performed by the Office ofthe Chief Medical Examiner of the City of New York. This contention is unpreserved forappellate review (see CPL 470.05 [2]; People v Fermin, 150 AD3d 876 [2017]; People v Castro, 149 AD3d 862,865 [2017]; People v Abuziyad, 136AD3d 837 [2016]). Defense counsel did not object to the admission of either the records orthe accompanying testimony on the basis that their admission violated the Confrontation Clause(see People v Webb, 163 AD3d880 [2018]; People v Gibson,163 AD3d 586 [2018]; People vBones, 17 AD3d 689 [2005]). In any event, the defendant's contention is without merit.The testifying criminalist performed her own analysis of the DNA profiles and issued the finalreport, and her testimony was the subject of cross-examination (see People v John, 27 NY3d 294,315 [2016]; People v Castro, 149AD3d 862 [2017]; People vBeckham, 142 AD3d 556 [2016]; People v Abuziyad, 136 AD3d 837 [2016]).
Defense counsel's failure to object to the admission of the DNA evidence did not constituteineffective assistance of counsel since that evidence was properly admitted and any objectionthereto would have had little or no chance of success (see People v Rodriguez, 31 NY3d 1067, 1068 [2018]; People v Abuziyad, 136 AD3d 837[2016]; People v Hampton, 81AD3d 974, 975 [2011]).
Furthermore, defense counsel's failure to oppose the People's motion to compel the defendantto submit to a buccal swab did not constitute ineffective assistance of counsel. While it appearsfrom the record that the People's motion to compel the defendant to submit to a buccal swab forDNA testing was untimely pursuant to CPL 240.90, and the People failed to adequately explainthe delay (see People v Smith, 168AD3d 885 [2019]), the error did not implicate the defendant's constitutional rights (see People v Cox, 161 AD3d1100, 1101 [2018]; People vVieweg, 155 AD3d 1305, 1308 [2017]).
Prior to the trial, the Supreme Court conducted a Sandoval hearing (see People vSandoval, 34 NY2d 371 [1974]), after which the court ruled that, should the defendant testifyon his own behalf, the People would be permitted to ask whether he had two prior felonyconvictions. However, the People were not permitted to elicit the underlying facts of either ofthose crimes.
On direct examination, the defendant testified about a 2008 incident in which he ran awayfrom police officers and, subsequently, was badly beaten by those officers. The defendanttestified that he was bleeding, and when he was taken to the police station, he was given clothesto change into, his bloody clothing was taken away, and one of the officers who had beaten thedefendant threatened him by saying that the police had his DNA and they could use it againsthim. The defendant also testified that he had a pending civil lawsuit against the policedepartment based on this alleged beating. On cross-examination, the prosecutor asked thedefendant whether in 2008 the officers were "coming after" him to arrest him, and the defendanttestified that he had been pursued for being a "black man [running]," but once "they got [his]identification, they found out who [he] was" and that "community supervision wanted to hold ahearing with [him]." Without seeking an amendment of the Supreme Court's Sandovalruling, the prosecutor then asked whether he was being arrested that day in 2008 "because therewas a DNA match of [him] committing a burglary." Defense counsel objected, the objection wasoverruled, and the defendant denied that this was true. The prosecutor persisted in that line ofinquiry, and asked whether the defendant had been convicted of burglary in the third degree in2009. The defendant responded that "[y]es [he] was convicted of a case in 2008." Nonetheless,without asking for a modified Sandoval ruling, the prosecutor brought up, no less than sixtimes, that the 2008 conviction was for burglary and involved DNA, going so far to ask thedefendant to "explain" the facts of his 2008 conviction, with the court instructing the defendantto do so. In one instance, after asking the defendant to confirm that he was charged in the instantcase with burglary in the second degree, the prosecutor remarked, in effect, that the instant crimewas "the same type of DNA hit that happened back in 2008."
Defendants who take the witness stand, like other witnesses, place their credibility in issueand, thus, may be cross-examined about past criminal or immoral acts relevant to their credibility(see People v Fardan, 82 NY2d 638, 646 [1993]). The policy underlying Sandovalis that the accused has the right to make an informed choice concerning whether he or she shouldtake the witness stand (see People v Fardan, 82 NY2d at 646; People v Mohamed, 145 AD3d1038, 1040 [2016]). The defendant here was denied that right when, after making what hebelieved to be an informed judgment and taking the witness stand, the Supreme Court implicitlychanged the ruling upon which he relied by allowing the prosecutor to continue her course ofprejudicial questioning despite objections from defense counsel. The court's implicit change in itsruling after the defendant had already taken the witness stand deprived the defendant of a fairtrial and the defendant's subsequent motion for a mistrial should have been granted (seePeople v Mohamed, 145 AD3d at 1040).
Contrary to the People's contention, the defendant did not open the door to questioning aboutthe specific facts of his prior burglary conviction. "When a defendant testifies to facts that are inconflict with the precluded evidence, he or she opens the door to questioning regarding that issue,and he or she is properly subject to impeachment by the prosecution's use of the otherwiseprecluded evidence" (id. at 1040-1041). Here, the defendant never denied that he had twofelony convictions, nor did he deny that one of those convictions was for burglary in the thirddegree. Furthermore, if the prosecutor believed that the defendant's testimony on directexamination necessitated questioning in violation of the Supreme Court's Sandovalruling, the prosecutor could have requested that the court expand its ruling (see People vJulien, 182 AD2d 642, 642 [1992]). The prosecutor did not do so. Moreover, even if thePeople were entitled, without the court's permission, to elicit from the defendant an admissionthat his DNA had been collected in connection with his commission of a prior offense, in order torefute his testimony regarding the source of the DNA evidence, there was no valid reason for theprosecutor to refer to the prior offense as a "residential burglary" on at least three occasionsduring cross-examination.
The Supreme Court's error regarding the Sandoval ruling cannot be consideredharmless. Such "error is only harmless when there is overwhelming proof of the defendant's guiltand no significant probability that the jury would have acquitted the defendant were it not for theerror" (People v Santiago, 17 NY3d661, 673-674 [2011]; see People v Crimmins, 36 NY2d 230, 242 [1975])."[C]ross-examination with respect to crimes or conduct similar to that of which the defendant ispresently charged may be highly prejudicial, in view of the risk, despite the most clear andforceful limiting instructions to the contrary, that the evidence will be taken as some proof of thecommission of the crime charged rather than be reserved solely to the issue of credibility"(People v Sandoval, 34 NY2d at 377). Here, the prosecutor's improper questioning of thedefendant concerning his prior burglary conviction was not harmless, in view of the importanceof the defendant's credibility and that it would be difficult for the jury in this residential burglarycase involving DNA evidence to ignore the fact that the defendant had a prior arrest andconviction for a residential burglary involving DNA evidence. Despite the "clear and forcefullimiting instructions to the contrary," it was probable that the jury drew an improper conclusionof propensity (id.). While evidence had been presented as to the defendant's DNA profilematching a DNA profile developed from blood found at the scene of the instant burglary, had thejurors not heard the prejudicial details of the defendant's prior criminal record, they may havebeen more receptive to his testimony providing an alternative explanation for why his DNA wasfound at the scene (see People v Mohamed, 145 AD3d at 1041; People v Loiseau, 140 AD3d 1190,1191 [2016]).
Accordingly, the judgment should be reversed and a new trial ordered. Rivera, J.P., Austin,Cohen and Iannacci, JJ., concur.