| People v Nelson |
| 2020 NY Slip Op 04970 [186 AD3d 1404] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Nelson, Appellant. |
Paul Skip Laisure, New York, NY (Patterson Belknap Webb & Tyler LLP [HarrySandick and Diana Conner], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,Ellen C. Abbot, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (JohnLatella, J.), rendered November 27, 2017, convicting him of burglary in the second degree andcriminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of burglary in the second degree and criminal mischief in thefourth degree, arising out of an incident on April 30, 2015, when the complainant awoke in themiddle of the night to see an intruder coming headfirst through her bedroom window. Thewindow screen was damaged and discarded outside, and the defendant's fingerprints wererecovered from the outside of the window and from the frame of the discarded screen. Thedefendant appeals.
A person is guilty of burglary in the second degree when he or she knowingly enters orremains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law§ 140.25 [2]). The element of entry is satisfied "when a person intrudes within abuilding, no matter how slightly, with any part of his or her body" (People v King, 61NY2d 550, 555 [1984]; see People vBrown, 101 AD3d 895, 895 [2012]; People v DelCerro, 299 AD2d 160, 161[2002]; People v Smith, 161 AD2d 817, 819 [1990]). The defendant contends that hisconviction of burglary in the second degree was against the weight of the evidence because thePeople failed to prove that he actually entered the complainant's home. We disagree. In fulfillingour responsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]). The jury credited the complainant's testimony thatportions of the defendant's upper body entered her bedroom through the window, and we discernno reason to disturb the jury's credibility determination (see People v Hairston, 167 AD3d 935, 936 [2018]; People v Braithwaite, 126 AD3d993, 995 [2015]; People v Smith, 161 AD2d at 819).
We agree with the Supreme Court's determination to admit into evidence the testimony of theexpert who conducted the latent fingerprint comparison analysis which matched the defendant'sfingerprints to those recovered from the scene. Contrary to the defendant's contention, aFrye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) wasunnecessary (see People v Wilson,107 AD3d 919, 920 [2013]; Peoplev Burnell, 89 AD3d 1118, 1122 [2011]). Moreover, the court providently exercised itsdiscretion in qualifying the People's expert (see Caprara v Chrysler Corp., 52 NY2d 114,121 [1981]; People v Okonkwo, 167AD3d 657, 658 [2018]; People vJean-Laurent, 51 AD3d 818, 818 [2008]), and the expert's opinion was "supported by asufficient factual basis establishing that an accepted methodology was appropriately employed"(People v Jackson, 125 AD3d1002, 1004 [2015]; see Matter ofRichard M., 89 AD3d 849, 850 [2011]). Any weakness in the fingerprint expert'stestimony went to credibility and the weight of the evidence rather than to its admissibility(see People v Jackson, 125 AD3d at 1004). Further, since the expert conducted an"independent analysis on the raw data" to arrive at his own conclusions, and his testimony wasnot merely "a conduit for the conclusions of others" (People v John, 27 NY3d 294, 315 [2016]), the defendant's right toconfront the witnesses against him was not violated (see People v Breazil, 165 AD3d 1159, 1160 [2018]; see generally People v Rawlins, 10NY3d 136, 157 [2008]; cf. People vAustin, 30 NY3d 98, 104 [2017]).
The defendant's challenge to certain remarks made by the prosecutor during summation ismostly unpreserved for appellate review, since he either failed to object, failed to request furthercurative instructions after his objection was granted, or failed to timely move for a mistrial on thespecific grounds he now asserts on appeal (see CPL 470.05 [2]; People v Balls,69 NY2d 641, 642 [1986]). In any event, to the extent that the prosecutor's remarks improperlyvouched for the complainant's credibility, the Supreme Court sustained defense counsel'sobjection, and the curative instructions provided by the court alleviated any prejudice that mayhave resulted from the remarks (seePeople v Chunn, 181 AD3d 706 [2020]; People v Bossett, 45 AD3d 693, 694 [2007]). The remainder of thechallenged remarks were generally proper and were responsive to the defendant's summation(see People v Bailey, 58 NY2d 272, 277 [1983]; People v Morrow, 143 AD3d 919, 921 [2016]; People v Johnson, 76 AD3d 937,937 [2010]). To the extent any remarks were improper, they "were not so flagrant or pervasive asto deny the defendant a fair trial" (People v Almonte, 23 AD3d 392, 394 [2005]; see People v Smith, 181 AD3d826, 828 [2020]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., LaSalle, Connolly and Wooten, JJ., concur.