| People v Watkins |
| 2020 NY Slip Op 01403 [180 AD3d 1222] |
| February 27, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rasaun Watkins, Also Known as Five,Appellant. |
Bruce Evans Knoll, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Schenectady County(Sira, J.), rendered February 9, 2017, upon a verdict convicting defendant of the crimesof rape in the third degree, criminal sexual act in the third degree, endangering thewelfare of a child, unlawful fleeing a police officer in a motor vehicle in the third degreeand resisting arrest.
Defendant was charged in the first of two indictments with rape in the third degree,criminal sexual act in the third degree and endangering the welfare of a child. Thesecharges stemmed from an incident in November 2015 when defendant, then 32 years old,engaged in sexual acts with the victim, a 16-year-old female. In the second indictment,defendant was charged with unlawful fleeing a police officer in a motor vehicle in thethird degree and resisting arrest in connection with a traffic stop during which defendantfled at an excessive speed, later stopped his car, ran on foot and then hid from police andfailed to comply with orders to facilitate his arrest. At the People's request, County Court(Sypniewski, J.) ordered defendant to submit to a buccal swab and granted the People'sunopposed motion to consolidate the two indictments. Following a seven-day jury trial,defendant was found guilty of all counts. Defendant was thereafter sentenced, as asecond felony offender, to concurrent prison terms of four years, to be followed by 10years of postrelease supervision, on each conviction of rape in the third degree andcriminal sexual act in the third degree, and to lesser concurrent terms of incarceration onthe remaining counts. Defendant appeals. We affirm.
Defendant contends that his convictions were not supported by legally sufficientevidence and are against the weight of the evidence. In reviewing legal sufficiency, thisCourt must "view the evidence in the light most favorable to the People and evaluatewhether there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the jury on the basis of the evidence at trialand as a matter of law satisfy the proof and burden requirements for every element of thecrime charged" (People vHenry, 173 AD3d 1470, 1473 [2019] [internal quotation marks and citationsomitted], lv denied 34 NY3d 932 [2019]). In contrast, weight of the evidencereview "involves a two-step approach wherein [the] [C]ourt must (1) determine whether,based on all the credible evidence, an acquittal would not have been unreasonable; and(2) weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Sanchez, 32 NY3d1021, 1023 [2018] [internal quotation marks, brackets and citations omitted]).
Pertinent here, "[a] person is guilty of rape in the third degree when[,]. . . [b]eing [21] years old or more, he or she engages in sexual intercoursewith another person less than [17] years old" (Penal Law § 130.25 [2]), and"[a] person is guilty of criminal sexual act in the third degree when[,] . . .[b]eing [21] years old or more, he or she engages in oral sexual conduct . . .with a person less than [17] years old" (Penal Law § 130.40 [2]). "A personis guilty of endangering the welfare of a child when . . . [h]e or sheknowingly acts in a manner likely to be injurious to the physical, mental or moral welfareof a child less than [17] years old" (Penal Law § 260.10 [1]). "A person isguilty of unlawful fleeing a police officer in a motor vehicle in the third degree when,knowing that he or she has been directed to stop his or her motor vehicle by a uniformedpolice officer or a marked police vehicle by the activation of either the lights or the lightsand siren of such vehicle, he or she thereafter attempts to flee such officer or such vehicleby driving at speeds which equal or exceed [25] miles per hour above the speed limit"(Penal Law § 270.25). Finally, "[a] person is guilty of resisting arrest whenhe [or she] intentionally prevents or attempts to prevent a police officer or peace officerfrom effecting an authorized arrest of himself[, herself] or another person" (Penal Law§ 205.30).
At trial, the victim testified that on the date of the incident she was 16 years old.Defendant's birth certificate, which was admitted into evidence, reveals that he was 32years old at the time of the incident. The victim explained that, during the day, she waswith Roshan "Jungle" Lalchan and Africa Klu at an electronics store, which was run byElvin Singh, and that she, Klu and Lalchan were drinking alcohol. Around 8:30 p.m.,after consuming about four drinks, the victim left with Lalchan and went to Elvin Singh'shouse. She testified that, when she first arrived in the house, multiple people werepresent, including Lalchan, Klu and Andrick Singh (hereinafter Singh), Elvin Singh'sbrother, but that defendant was not present at that time. According to the victim, ElvinSingh was home only briefly. The victim testified that she consumed another four or fivealcoholic drinks with Klu, and the two began to kiss in the living room and then movedto an upstairs bedroom where Lalchan was also present. According to the victim, Kluthen had vaginal intercourse with her. Then, at Klu's insistence, Lalchan began vaginalintercourse with the victim, and Klu had the victim perform oral sex on him. Singh thenentered the bedroom and began having vaginal intercourse with the victim. Thereafter,defendant entered the bedroom and the victim performed oral sex on him. According tothe victim, after Singh "got off of [her]," defendant began vaginal intercourse with her,"after [she] tried to push him off of [her]." The victim testified that the bedroom wasdark, but that the door was cracked so that she could still see "a little bit" from a hallwaylight. The victim identified defendant in the courtroom by the name Five and testifiedthat he was not present in the living room earlier in the evening and that she did notpersonally know him, but that she recognized him because he came into the electronicsstore earlier that day. The victim testified that, after the incident, she got dressed andvomited in the living room and then Singh drove her home. Her mother and father werehome when she arrived and, after police and paramedics arrived, she was taken to ahospital and underwent a physical examination. She testified that she was wearing a pairof ripped blue jeans with white leggings, a pink shirt, a bra and underwear on the nightof the incident. During direct examination, the victim acknowledged that she initially toldpolice that she had been held down and forcibly raped, but she testified at trial that thatwas not the truth and that she lied because she did not want to be judged and did notwant her family to know the truth.
On cross-examination, the victim acknowledged that she first reported to police thatthe room was dark and that she could not see who was having intercourse with her andthat she did not initially mention defendant. She did not know, or could not recall,whether Lalchan or Klu remained in the bedroom while defendant and Singh hadintercourse with her, but acknowledged that she had previously testified before the grandjury that Klu and Lalchan were present and holding her arms down. Defense counselthen questioned the victim as to where her underwear was during the incident andwhether she had put it back on when she got dressed, to which the victim responded, "Idon't know" and "I don't want to be here. I want to go home." After this, the jury wasexcused to permit the witness time to "compose herself," and she "walk[ed] off the standbefore [County Court] had excused her." After the People's investigator and theprosecutor located the victim and returned her to the courtroom, the jury reconvened andshe resumed her testimony. The victim then testified, in contrast to her answer prior toleaving the stand, that she located her underwear next to her shoes in the bedroom andthat she was wearing underwear when she went downstairs.
Singh testified that he knew defendant by the name Five and identified him in thecourtroom. He testified that on the night of the incident, Elvin Singh, Klu, Lalchan andthe victim were at Elvin Singh's house, but that Elvin Singh left the house prior to anysexual contact occurring with the victim. Singh's description of the victim's clothing thatevening matched the victim's testimony. According to Singh, Klu and the victim weredrinking in the living room; later, Singh went upstairs with the victim to have sex in abedroom and no one else was present at that time. Klu later entered the bedroom, and heand Singh continued to engage in sexual acts with the victim. According to Singh, afterhe returned to the living room, he saw defendant enter the house. Thereafter, Singhreturned to the bedroom with defendant, at which time he saw Lalchan engaged inintercourse with the victim. Singh testified that he had vaginal intercourse with thevictim again while she performed oral sex on defendant and that he and defendant later"switched." According to Singh, although there were no lights on in the room, there wasenough light that "things [were] still distinguishable." Singh testified that sexual contactwith the victim stopped after "she call[ed] out for [Klu]," and then Singh and the othershelped her get dressed and took her downstairs. Singh testified that the victim "g[ot]sick" once she was in the living room and that he drove her home. He testified that thevictim left her cell phone at the house. Singh acknowledged that his testimony was givenas part of a cooperation agreement under which, if he testified truthfully, he wouldreceive a sentence of time served on one count of endangering the welfare of a child, towhich he pleaded guilty.
Elvin Singh also testified at trial and identified defendant in the courtroom as aperson he knew as Five. He stated that, although he went home around 8:00 p.m. thatevening, he did so only briefly before leaving to go to his girlfriend's house for the night.He testified that when he left the house, the victim, Klu, Singh and Lalchan were presentand that he saw the victim and Klu drinking. According to Elvin Singh, defendant wasnot present at that time. He testified that Singh and Klu later told him that they had sexwith the victim. The victim's mother testified that the victim was 16 years old at the timeof the incident. She stated that the victim arrived home a little after midnight and that shewas wearing white leggings, holding a pair of jeans and shoes in her hands, her hair wasa mess and she was acting "frantic." The mother testified that the victim was crying andtold her "they raped me." The mother called 911 and the victim was taken to the hospitalby ambulance and lost consciousness on the way. Nicholas Mannix, a police officer,testified that he responded to the victim's home at about 12:21 a.m. and that, when hewent to speak with the victim in her bedroom, she was "in the fetal position and prettymuch crying hysterically" and "breathing very heavily," and "it took a couple of minutesjust to get her to calm down to have any type of conversation whatsoever." According toMannix, once the victim was calm enough to speak, she reported that she was raped.Although she mentioned Klu, Lalchan and a man named Nick, she did not providedefendant's name or the name Five at that time.
A registered nurse and certified sexual assault forensic examiner testified that sheperformed a "safe" exam on the victim after her arrival at the hospital. Prior to thephysical exam, the nurse collected the victim's clothing, separating the underwear in anenvelope in the evidence collection kit. The nurse testified that the victim was unable totolerate a portion of the exam due to pain, but that she was still able to obtain variousswabs from the victim using sterile procedures. Two police detectives with training inevidence collection took photographs of the house where the incident occurred and of theelectronics store. One of the photographs taken at the house showed a plastic bag in theliving room of the house that was filled with napkins and vomit, and photographs takenat the electronics store showed bottles and cans of alcohol. Two other detectives, both ofwhom have training in evidence collection, testified that they each obtained DNAsamples from defendant, one by obtaining a buccal swab and the other by collecting astyrofoam cup used by defendant while he was interviewed at the police station.
Richard Brunt, a DNA analyst and serologist with the State Police ForensicInvestigation Center, testified that he generated a serology report, which was admittedinto evidence, and that, following an examination, he concluded that perianal, vulvar andvaginal swabs taken from the victim, her underwear and a condom were "spermpositive." Cheryl Strevell, a forensic scientist with the State Police Forensic InvestigationCenter, testified that, in addition to preparing the evidence examined by the DNA analystand serologist, she also prepared the evidence examined from the styrofoam cup used bydefendant and the buccal swabs submitted by defendant—which she also referredto as the "control swabs"—for DNA extraction. Strevell testified that she wrotetwo reports, which were admitted into evidence, based upon her own interpretations andconclusions of the DNA profile generated from the samples that she prepared. In thisregard, she concluded that sperm recovered from the victim's underwear was consistentwith defendant's DNA and that, although the underwear sample contained DNA from atleast two additional donors, she determined that defendant was "the major contributor,"meaning that he contributed "three times more DNA than the other contributors presentin that mixture profile." Strevell opined that "[t]he probability of selecting an unrelatedindividual with a profile matching [defendant] to [the underwear profile] is less than onein 300 billion." However, defendant was not determined to be a major contributor,primary source or single profile in any other location tested on the victim.
Another police detective testified that Klu and Singh were arrested in associationwith this case in the days following the incident, and that a "be on the look out" alert wasissued for defendant approximately two weeks later. This detective testified that heinterviewed defendant following his arrest in early December 2015, and a video of theinterview was entered into evidence and published to the jury. At the end of theinterview, the video shows that a detective collected a styrofoam cup used bydefendant.
As to the charges related to the traffic stop, Adam Willetts, a police officer, testifiedthat he successfully completed training in "learning how to estimate speed visually andusing radar." Willetts testified that, in early December 2015, he observed a driver in avehicle matching the alert issued for defendant, and he identified defendant in thecourtroom as that driver. Footage from Willetts' police car camera, which was admittedinto evidence, showed that, after Willetts initiated a traffic stop, defendant pulled off andsped away at a high rate of speed. Willetts testified that, based upon his training,defendant was traveling at approximately 70 miles per hour in a 30 mile-per-hour zone.Defendant ultimately abandoned his vehicle, after which Willetts, and other respondingpolice officers, including Christopher Wilgocki and Albert Rivera, pursued him on foot.Rivera testified that when he encountered defendant, he was "hidden underneath avehicle" parked in the backyard of a home. After defendant failed to comply withmultiple verbal commands to come out from under the vehicle, Rivera and anotherofficer pulled him out. Rivera testified that, once out from under the vehicle, defendantwould not comply with commands to put his hands behind his back, holding his handstight to his body. Wilgocki similarly testified that defendant was noncompliant.
Derek Milner, an inmate at the Schenectady County Jail, testified that he had beenhoused close to defendant, who he knew as Five, and that defendant disclosed to him thathe had sex with the victim and that he had been later involved in a "high speed chasewith officers." Milner testified that, as part of a cooperation agreement if he testifiedhonestly, he would receive sentencing benefits. The testimony of a correction officerwith the Schenectady County Sheriff's Department confirmed that defendant and Milnerwere housed in the same unit at the same time. Defendant's wife also testified andconfirmed defendant's date of birth and stated that she could not recall whetherdefendant, with whom she lived, was home at the time of the incident.
In his defense, defendant testified that, on that day of the incident, he left his home alittle after 10:00 p.m. to meet Klu at Elvin Singh's house and drive him home. Hetestified that he entered the house for no more than four or five minutes and that he sawKlu, Lalchan, Singh and another person, but that he did not see the victim. He then leftthe house and drove Klu home and denied having sex with the victim. When asked howhis sperm got on the victim's underwear, he responded that he had "no clue" and furtherdenied having masturbated or ejaculated while he was in the house. As to the traffic stop,defendant testified that he was driving while intoxicated and "smoking weed anddrinking." He testified that, after a police vehicle began to follow him, he "sped up a littlemore to do the speed[ ] limit." He stated that he ran and hid from police because he didnot have a license, had been drinking and had "paraphernalia" in his car. Although headmitted that he knew Milner from jail, he adamantly denied that they had discussed thiscase. He testified that he goes by the nickname A-five and he has never gone by the nameFive, but admitted that "[a]nybody with the name of anything Five can go by the nameFive." He testified that he had previously lied under oath.
We turn first to the convictions of those counts involving sexual conduct with thevictim, which defendant argues are not supported by legally sufficient evidence and areagainst the weight of the evidence because the victim's testimony was incredible as amatter of law. "[T]estimony is incredible as a matter of law if it is inherently unworthy ofbelief because it is 'manifestly untrue, physically impossible or contrary to humanexperience' " (People vJohnson, 176 AD3d 1392, 1393 [2019], lv denied 34 NY3d1129 [2020], quoting People v Toland, 2 AD3d 1053, 1055 [2003]). Contrary todefendant's contention, although the victim initially told police that she was forciblyraped, and later admitted that that was not true, this fact was brought out during directexamination, giving defendant ample opportunity to cross-examine her about it and, mostimportantly, the jury was made aware of this circumstance when assessing her credibility(see People v Johnson, 176 AD3d at 1393-1394; People v Werkheiser, 171AD3d 1297, 1301 [2019], lv denied 33 NY3d 1109 [2019]). Further,although the victim's testimony about the sexual contact differed from that of Singh, wedo not find that these minor inconsistencies render her testimony "inherentlyunbelievable or incredible as a matter of law" (People v Russell, 116 AD3d 1090, 1092 [2014]).Accordingly, we find that the evidence presented at trial as to these convictions, whenviewed in the light most favorable to the People, was legally sufficient to support theverdict. However, based upon the inconsistencies in the victim's accounts of the sexualcontact, as well as the inconsistencies between the victim and Singh's testimony, adifferent verdict would not have been unreasonable. Our review of the record revealsthat, despite these minor inconsistencies, the testimony of the victim, which the juryfound to be credible, was largely corroborated by Singh, as well as other witnesses andthe DNA evidence. Thus, viewing the evidence in a neutral light and according deferenceto the jury's credibility determinations, we find the verdict as to these convictions to be inaccord with the weight of the evidence (see People v Werkheiser, 171 AD3d at1301).
As to the convictions related to the traffic stop, contrary to defendant's assertion,Willetts' testimony regarding his training and experience in visually estimating speedestablished a proper basis for his opinion that defendant was traveling approximately 35miles per hour over the speed limit (see People v Olsen, 22 NY2d 230, 231-232[1968]). Accordingly, viewing the evidence in the light most favorable to the People, wefind that defendant's convictions for unlawful fleeing a police officer in a motor vehiclein the third degree and resisting arrest were supported by legally sufficient evidence.Additionally, although another verdict would not have been unreasonable had the jurycredited defendant's testimony, "viewing the evidence in a neutral light and givingdeference to the jury's credibility determinations, we are satisfied that the verdict is notagainst the weight of the evidence" (People v Montes, 178 AD3d 1283, 1285 [2019]).
We also find that County Court properly granted the People's application to obtain abuccal swab sample from defendant for scientific analysis, pursuant to CPL 240.40 (2)(b) (v). Under the guidelines established by the Court of Appeals, a court order to obtaina bodily sample from a suspect may be issued "provided the People establish (1) probablecause to believe the suspect has committed the crime, (2) a 'clear indication' that relevantmaterial evidence will be found, and (3) the method used to secure it is safe and reliable"(Matter of Abe A., 56 NY2d 288, 291 [1982]; accord People v Roshia, 133AD3d 1029, 1030 [2015], affd 28 NY3d 989 [2016]). Further, "the issuingcourt must weigh the seriousness of the crime, the importance of the evidence to theinvestigation and the unavailability of less intrusive means of obtaining it, on the onehand, against concern for the suspect's constitutional right to be free from bodilyintrusion on the other" (Matter of Abe A., 56 NY2d at 291; see People vRoshia, 133 AD3d at 1030). Defendant does not dispute that the People's movingpapers established probable cause and that a buccal swab is a safe and reliable method ofobtaining a bodily sample; rather, he essentially argues that the People failed todemonstrate a "clear indication" that relevant material evidence would be found. Giventhat the People established that a sexual evidence assault kit had been secured from thevictim, as well as condoms and a stained cutting from the mattress at the address wherethe crimes occurred, to which the People sought to match defendant's DNA, the Peoplesufficiently established a "clear indication" that the buccal swab sample would supplyrelevant material evidence (seePeople v Fields, 160 AD3d 1116, 1118 [2018], lv denied 31 NY3d 1116[2018]; People v Roshia, 133 AD3d at 1030). Based upon the foregoing, and inbalancing the severity of the crimes, which involved a minor, and the People's statedneed for "a suitable control sample" against the relatively minimal intrusion upondefendant's body when taking a buccal swab, County Court properly granted the People'smotion (see People v Pryor,14 AD3d 723, 725 [2005], lv denied 6 NY3d 779 [2006]; Matter ofChaplin v McGrath, 215 AD2d 842, 842-843 [1995]). We are unpersuaded bydefendant's further contention that a buccal swab was unnecessary because his DNA waspreviously added to the "DNA database" related to a prior conviction (see generally People v Afrika,13 AD3d 1218, 1219-1220 [2004], lv denied 4 NY3d 827 [2005]).
To the extent preserved, we find no merit to defendant's contention that CountyCourt violated his right to a public trial by excluding his wife from sitting in thecourtroom prior to testifying for the People, especially considering that she was laterpermitted in the courtroom following her testimony (see People v Baker, 14 NY3d 266, 274 [2010]; People v Rivera, 70 AD3d1177, 1180 [2010], lv denied 14 NY3d 891 [2010], lv denied 15NY3d 855 [2010]). We also find lacking in merit defendant's allegation that, after thevictim left the witness stand in the middle of cross-examination, the court erred inpermitting the prosecutor to locate her and encourage her to return to finish hertestimony. We find that People v Branch (83 NY2d 663 [1994]), upon whichdefendant relies, is inapposite to the circumstance presented here. Branch and itsprogeny involve the issue of "midtestimony conferences" in which a witness is permitteda pause in questioning to confer with his or her attorney or the prosecution (id. at666-667). Here, the victim—who had been called by the People totestify—left the witness stand during cross-examination without the court'spermission, and there is no indication in the record that the prosecutor discussed the casewith the victim while assisting in locating her and returning her to the courtroom. In fact,the prosecutor assured the court that he would not do so. Defendant's allegations are thusbased upon mere speculation.
We similarly find defendant's argument that the admission of the DNA reports andrelated testimony violated the Confrontation Clause of the State and FederalConstitutions because the individual who conducted the DNA extraction did not testifyto be unavailing. In addressing a defendant's rights under the Confrontation Clause," 'if an out-of-court statement is testimonial in nature, it may not be introducedagainst the accused at trial unless the witness who made the statement is unavailable andthe accused has had a prior opportunity to confront that witness' " (People v John, 27 NY3d294, 303 [2016], quoting Bullcoming v New Mexico, 564 US 647, 657[2011]; see US Const, 6th Amend; NY Const, art I, § 6). When aDNA report is testimonial, "an analyst who witnessed, performed or supervised thegeneration of [a] defendant's DNA profile, or who used his or her independentanalysis on the raw data, as opposed to a testifying analyst functioning as a conduitfor the conclusions of others, must be available to testify" (People v John, 27NY3d at 315 [emphasis added]). Here, Brunt testified that the report he generated in thiscase was based upon his "direct observations." Strevell testified that her role as a DNAanalyst is to "analyze and interpret [DNA] profiles and . . . write reports on[her] findings." Strevell testified that she prepared the evidence examined by Brunt, thestyrofoam cup used by defendant and the buccal swabs submitted bydefendant—which she also referred to as the "control swabs"—for DNAextraction. Although Strevell acknowledged that she did not perform the DNAextraction, she testified that the reports that she wrote were based upon her owninterpretations and conclusions of the DNA profile generated based upon the samplesthat she prepared. Accordingly, Strevell used her "independent analysis on the raw data"and, thus, the admission of the DNA reports into evidence was proper and did not violatethe Confrontation Clause (see People v John, 27 NY3d at 313, 315; People v Carter, 176 AD3d552, 552 [2019]; comparePeople v Austin, 30 NY3d 98, 104-105 [2017]).
Defendant also contends that he was deprived of a fair trial based upon variousactions by the prosecutor. Specifically, he contends that the prosecutor unnecessarilydenigrated him before the jury by eliciting certain testimony from the victim, introducinga certain photograph and by calling defendant's wife as a witness. Defendant furthercontends that the prosecutor articulated the improper burden of proof and, further, that heimproperly commented on the evidence during summation. Defendant, however, failed tomount objections to any of the aforementioned conduct, and, as such, has failed topreserve these arguments for review (see People v Houze, 177 AD3d 1184, 1188 [2019]; People v Sostre, 172 AD3d1623, 1626-1627 [2019], lv denied 34 NY3d 938 [2019]). Were thesearguments before us, we could find that the People's summation constituted fair commenton the evidence and the reasonable inferences to be drawn therefrom, as well as aresponse to defendant's comments on the evidence in his summation (see People v Andrade, 172AD3d 1547, 1553 [2019], lv denied 34 NY3d 928 [2019]).
Finally, defendant contends that his trial counsel provided ineffective assistancebased upon various alleged failings. Initially, defendant faults trial counsel for failing to"formally" preserve objections to County Court not allowing defendant's wife to sit in thecourtroom prior to her testimony and to the admission of the DNA reports admitted bythe People. However, we have found these arguments to be sufficiently preserved andhave addressed them on the merits. As to counsel's failure to object to the consolidationof the two indictments and certain comments made by the People during summation,"[c]ounsel will not be found to be ineffective on the basis that he or she failed to make anargument or motion that has little or no chance of success" (People v Urtz, 176 AD3d1485, 1491 [2019] [internal quotation marks, brackets and citations omitted], lvdenied 34 NY3d 1133 [2020]). Trial counsel's alleged failure to object tothe prosecutor's comments during summation would have had little or no chance ofsuccess and, thus, does not constitute ineffective assistance of counsel (see People vAndrade, 172 AD3d at 1553). Similarly, opposition to the People's motion toconsolidate would have been unsuccessful as the People asserted that defendant's attemptto flee police during the December 2015 traffic stop under the second indictment wasindicative of his guilt as to the charges in the first indictment and that the circumstancesof the first indictment, in turn, provided necessary background to defendant's motivesrelated to the charges in the second indictment (see CPL 200.20 [2] [b]; [4], [5];People v Pendell, 164AD3d 1063, 1070 [2018], affd 33 NY3d 972 [2019]). Defendant also arguesthat trial counsel erred in not allowing him to explain how his DNA got into the victim'sunderwear. However, defendant did answer this question the first time it was posed bythe People by stating that he had "no clue"; therefore, defendant has failed to demonstratean "absence of strategic or other legitimate explanations" for his counsel's later objectionto the People's essentially identical question as "asked and answered" (People v Pratt, 162 AD3d1202, 1203 [2018], lv denied 32 NY3d 940 [2018]). Defendant's remainingcontentions have been reviewed and found to be without merit.
Garry, P.J., Mulvey, Devine and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.