| People v Cunningham |
| 2021 NY Slip Op 03195 [194 AD3d 954] |
| May 19, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael B. Cunningham, Appellant. |
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant, and appellantpro se.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (GregoryLasak, J.), rendered April 11, 2017, convicting him of murder in the second degree (two counts),kidnapping in the first degree, aggravated criminal contempt, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial of that branch of the defendant's omnibus motion which was to suppressphysical evidence and the denial, after a hearing (Steven Paynter, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of murder in the second degree and relatedcrimes in connection with the death of Albert Robinson.
The defendant's contention that the Supreme Court erred in denying, without a hearing, thatbranch of his omnibus motion which was to suppress physical evidence seized from his car iswithout merit, as his supporting papers were conclusory and failed to set forth factual allegationssufficient to warrant a hearing (see CPL 710.60 [3]; People v Robinson, 118 AD3d 1028 [2014]; see also People v Watson, 163 AD3d855, 857 [2018]).
The police did not violate the defendant's right to counsel when they questioned him aboutRobinson's murder. Assuming that the defendant's right to counsel had attached on two pendingcriminal matters, the murder was not "so closely related transactionally, or in space or time" tothe represented matters "that questioning on the unrepresented matter would all but inevitablyelicit incriminating responses regarding the matter in which there had been an entry of counsel"(People v Cohen, 90 NY2d 632, 638 [1997]; see People v Henry, 31 NY3d 364, 370 [2018]). The allegedincidents underlying the represented matters occurred more than three months before the murder,at different locations. The fact that the represented matters involved Robinson and thedefendant's wife, with whom Robinson was having an affair, did not make the crimes so relatedthat representation on the prior matters precluded the defendant from effectively waiving hisright to counsel regarding the [*2]murder (see People v McCalla, 172 AD3d750, 751 [2019]; People vDavis, 149 AD3d 451, 452 [2017]; People v Jackson, 41 AD3d 1268, 1269 [2007]; People v Tucker, 30 AD3d 312,313 [2006]; People v Rivera, 277 AD2d 470, 471-472 [2000]). Moreover, the police didnot ask the defendant about the represented matters, so the interview did not actually entail aninfringement of the defendant's right to counsel (see People v Henry, 31 NY3d at 371;People v Cohen, 90 NY2d at 640; People v Rivera, 277 AD2d at 471).
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that his confrontation clause rights were violated by the testimony of a criminalistemployed by the Office of the Chief Medical Examiner of the City of New York. Moreover,under the circumstances presented, evidence of DNA testing performed on swabs taken from arug inside the defendant's car and latex gloves recovered near Robinson's body was testimonial innature (see People v Austin, 30NY3d 98, 104 [2017]; People vJohn, 27 NY3d 294, 308 [2016]). Nevertheless, the defendant's right of confrontationwas not violated. The criminalist, who had a Ph.D. in genetics and was the assigned analyst onthe case, performed his own analysis of certain DNA profiles, concluded that there was a DNAmatch, and issued and signed the final report, which was challenged on cross-examination (see People v Lebron, 171 AD3d1092, 1093 [2019]; People vPascall, 164 AD3d 1265, 1266 [2018]). The testimony of the criminalist established thathe witnessed, performed, or supervised the generation of certain DNA profiles or usedindependent analysis on the raw data and thus, was not merely "[functioning as] a conduit for theconclusions of others" (People v Austin, 30 NY3d at 105; see People v Tsintzelis, 35 NY3d925, 927 [2020]; People v John, 27 NY3d at 315).
The defendant's contention that his Fourth Amendment rights were violated when theprosecution obtained his historical cell site location information without first obtaining a warrantis unpreserved for appellate review (see CPL 470.05 [2]; People v Crum, 184 AD3d 454,455 [2020]), and we decline to exercise our discretion to reach it in the interest of justice (see People v Colon, 187 AD3d647 [2020]; People v Adams,186 AD3d 842, 843 [2020]). Moreover, the defendant's trial counsel was not ineffective forfailing to anticipate the ruling in Carpenter v United States (585 US &mdash, &mdash,138 S Ct 2206, 2222 [2018]), which was decided approximately three years after the defendant'strial (see People v Maxwell, 152AD3d 622, 624 [2017]; People vClark, 129 AD3d 1, 14 [2015], affd 28 NY3d 556 [2016]).
The defendant failed to preserve for appellate review his contention that the admission intoevidence at trial of a recording, made by an assistant district attorney, of a voice messagepurportedly left on Robinson's cell phone, violated his due process rights (see CPL470.05 [2]), and we decline to reach it in the exercise of our interest of justice jurisdiction.
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Chambers, J.P., LaSalle, Barros and Christopher, JJ., concur.