| People v Bullard-Daniel |
| 2022 NY Slip Op 01707 [203 AD3d 1630] |
| March 11, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Vincent Bullard-Daniel, Appellant. |
Anthony J. Lana, Buffalo, for defendant-appellant.
Brian D. Seaman, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedSeptember 23, 2016. The judgment convicted defendant upon a jury verdict of predatory sexualassault and burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of predatorysexual assault (Penal Law § 130.95 [1] [a]) and burglary in the first degree as asexually motivated felony (§§ 130.91, 140.30 [2]), defendant contends thatCounty Court erred in refusing to suppress evidence concerning the results of an analysis of theDNA contained in numerous samples of seminal fluids and other biological material located inthe apartment in which the incident occurred. Defendant's contention that the admission of theDNA evidence violated his right of confrontation is not preserved for our review becausedefendant failed to assert it at the time of the trial (see People v Liner, 9 NY3d 856, 856-857 [2007], rearg denied9 NY3d 941 [2007]; People vPeterkin, 89 AD3d 1455, 1456 [4th Dept 2011], lv denied 18 NY3d 885 [2012]),and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that the court erred in permitting the People to introduce theresults of an analysis of the DNA material using the STRmix DNA analysis program (STRmixprogram) because such testing is not generally accepted by the relevant scientific community. Wereject that contention. Briefly, the People introduced evidence that biological samples wererecovered from several locations at the scene of the incident and that those samples wereanalyzed using the STRmix program, which indicated that defendant's DNA was contained inthose samples. Before trial, the People provided defendant with notice of the results of the testsand the program used to conduct them and, at defendant's request, the court ordered aFrye hearing concerning that program (see Frye v United States, 293 F 1013,1014 [DC Cir 1923]; see generally People v Wesley, 83 NY2d 417, 422-424 [1994]). ThePeople introduced evidence at the hearing that the STRmix program had been the subject ofnumerous peer-reviewed journal articles and had been evaluated and approved by the NationalInstitute of Standards and Technology and by the Erie County Central Police Services ForensicLaboratory before it began using the STRmix program. In addition, the People established thatthe STRmix program was being used by numerous forensic testing agencies and laboratories inNew York, California, the United States Army, Australia, and New Zealand, and that it had beenapproved by the DNA Subcommittee of the New York State Forensic Science Committee. Wenote that the Court of Appeals has stated with respect to the admissibility of DNA analysisprograms that "[t]he [DNA] Subcommittee's approval is certainly relevant and may constitutesome evidence of general acceptance at a Frye hearing" (People v Williams, 35 NY3d 24,41 [2020]). Here, after reviewing the evidence introduced at the Frye hearing, weconclude that the People established that the methods employed in the STRmix program weregenerally accepted as reliable within the [*2]relevant scientificcommunity at the time the DNA evidence was analyzed (see generally Wesley, 83 NY2dat 422; People v Wilson, 192 AD3d1379, 1380-1381 [3d Dept 2021];People v Wakefield, 175 AD3d 158, 162-163 [3d Dept 2019], lv granted 35NY3d 1097 [2020]), and thus the court did not err in concluding that the results of the DNAanalysis were admissible. We have considered defendant's remaining contention concerning theSTRmix program, and we conclude that it lacks merit.
Defendant further contends that the court erred in permitting the People to introduce certainMolineux evidence concerning prior acts of misconduct that he perpetrated against thevictim. We likewise reject that contention. "Evidence of a defendant's prior bad acts may beadmissible when it is relevant to a material issue in the case other than defendant's criminalpropensity . . . Where there is a proper nonpropensity purpose, the decision whetherto admit [such] evidence . . . rests upon the trial court's discretionary balancing ofprobative value and unfair prejudice" (People v Dorm, 12 NY3d 16, 19 [2009]). Here, we conclude thatthe court properly balanced the probative value of the evidence and the prejudice arisingtherefrom, and thus the victim's testimony concerning the uncharged acts was properly admitted"to complete the narrative of the events charged in the indictment . . . and [to]provide[ ] necessary background information" (People v Workman, 56 AD3d 1155, 1156 [4th Dept 2008], lvdenied 12 NY3d 789 [2009] [internal quotation marks omitted]; see People v Morris, 21 NY3d588, 594 [2013]; People vFeliciano, 196 AD3d 1030, 1031 [4th Dept 2021], lv denied 37 NY3d 1059[2021]) as well as to place "the charged conduct in context" (Dorm, 12 NY3d at 19; see People v Leeson, 12 NY3d823, 827 [2009]). We note in particular that the court excluded many of the prior bad actsthat the People sought to introduce (seee.g. People v Medley, 165 AD3d 1585, 1585 [4th Dept 2018]; People v Burkett, 101 AD3d1468, 1471 [3d Dept 2012], lv denied 20 NY3d 1096 [2013]), that it admitted onlyprior bad acts that the victim had reported to the police before the charged incident, and that itslimiting instructions "served to alleviate any potential prejudice resulting from the admission ofthe evidence" (People v Alke, 90AD3d 943, 944 [2d Dept 2011], lv denied 19 NY3d 994 [2012]; see People v Freece, 46 AD3d1428, 1429 [4th Dept 2007], lv denied 10 NY3d 811 [2008]).
Next, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is contrary to the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Finally, we note that the uniform sentence and commitment form fails to indicate thatdefendant's conviction of burglary in the first degree was as a sexually motivated felony, and itmust be amended accordingly (seegenerally People v Brown, 166 AD3d 1579, 1579-1580 [4th Dept 2018], lvdenied 32 NY3d 1169 [2019]; People v Oberdorf, 136 AD3d 1291, 1292-1293 [4th Dept 2016],lv denied 27 NY3d 1073 [2016]). Present—Smith, J.P., Peradotto, Lindley andBannister, JJ.