| People v Boyer |
| 2020 NY Slip Op 01965 [181 AD3d 516] |
| March 19, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v John Boyer, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel),for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April20, 2017, convicting defendant, after a nonjury trial, of burglary in the second degree,and sentencing him, as a persistent violent felony offender, to a term of 16 years to life,unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved, and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe court's verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's evaluationof expert testimony introduced by both sides.
The central element of the People's proof was evidence that defendant was the majorand only identifiable contributor to a DNA mixture found inside a football receiver glovethat the perpetrator uncontestedly used and left behind in the burglarized apartment. Theevidence supported reasonable inferences regarding the burglar's activities during thecrime, including the inference that the burglar's efforts to climb to the apartment andenter it were strenuous. Expert testimony demonstrated that, given this level of exertion,which would cause the tight-fitting elastic glove to collect the wearer's sweat, it wasextremely likely that the major DNA contributor and the burglar were the same person.In addition, aspects of defendant's interview with the police evinced a consciousness ofguilt, and also showed that defendant was familiar with the particular building where theburglary occurred and had been in the area generally around the time of the crime.Furthermore, defendant's relatively small size was consistent with evidence supporting aninference that the burglar had to pass through a very narrow space to access the fireescape leading to the apartment.
The guilty verdict was further supported by evidence that defendant did not possessthe glove when he was released from prison approximately 10 days before the crime, thathe did not receive it in any package while incarcerated, and that it would have beenconfiscated as contraband had he possessed it. The court providently exercised itsdiscretion in admitting this evidence, which was plainly relevant in that it increased theprobability that defendant's DNA was deposited in the glove some time between hisrelease and the burglary 10 days later, and not at some earlier time. The relevance of thisevidence was heightened by testimony that the glove appeared to be new. "Moreover, thecourt expressly stated that, as factfinder in this nonjury trial, it would [disregarddefendant's prior incarceration], and the court is deemed capable of keeping thatpromise" (People v Brown,129 AD3d 545, 545 [1st Dept 2015], lv denied 26 NY3d 1038 [2015]).
The court had no obligation to inquire, sua sponte, into defendant's competency,because there was no reason to believe that he was unable to understand the proceedingsor to assist in his defense (see Pate v Robinson, 383 US 375 [1966]; People vTortorici, 92 NY2d 757 [1999], cert denied 528 US 834 [1999]; People vMorgan, 87 NY2d 878 [1995]).
We have considered and rejected defendant's claims that his jury waiver was invalidand that his counsel rendered ineffective assistance. Concur—Renwick, J.P.,Gische, Mazzarelli, Webber and Singh, JJ.