July 3, 2013
The People of the State of New York, respondent,
Kenneth Washington, appellant. Ind. No. 145/08
Lynn W. L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Jennifer Hagan of counsel), for respondent.
REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered January 19, 2011, convicting him of burglary in the first degree (three counts), burglary in the second degree (three counts), assault in the first degree (two counts), assault in the second degree (two counts), criminal sexual act in the first degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's challenges for cause to two prospective jurors. "[W]here prospective jurors unambiguously state that, despite preexisting opinions that might indicate bias, they will decide the case impartially and based on the evidence, the trial court has discretion to deny the challenge for cause if it determines that the juror's promise to be impartial is credible" (People v Arnold, 96 N.Y.2d 358, 363). Here, although the prospective jurors initially gave responses to inquiries that raised doubts as to their ability to be impartial, they ultimately provided unequivocal assurances that they could render an impartial verdict based solely on the evidence adduced at trial (see People v Narvaez, 34 A.D.3d 847, 848; People v Nowlin, 297 A.D.2d 554, 555; People v Cherry, 286 A.D.2d 913, 913).
There is no merit to the defendant's contention that the Supreme Court improvidently exercised its discretion in finding that the People's expert witness was qualified to render an expert opinion in the field of the statistical significance of DNA profiles, as the witness demonstrated that she possessed the requisite skill, training, education, knowledge, or experience to render a reliable opinion in that field (see People v Menendez, 50 A.D.3d 1061, 1062). Moreover, the court providently exercised its discretion in precluding cross-examination of the witness about DNA profile comparisons from three other states, since such questioning had the potential to mislead the jury (see People v Haynes, 39 A.D.3d 562, 564; People v Paixao, 23 A.D.3d 677, 678).
The defendant contends that the Supreme Court violated his right to confrontation by permitting the People to introduce evidence of DNA testing performed on evidence recovered from the crime scenes and his cheek swab through the People's expert witness, who lacked firsthand knowledge of the testing of each item of evidence. However, the defendant's contention is without merit. The court properly admitted files prepared by the New York City Medical Examiner's Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant's arrest, "did not, standing alone, link [him] to the crime" (People v Dail, 69 A.D.3d 873, 875; cf. People v Oliver, 92 A.D.3d 900). The testimony of the People's expert witness established that she conducted the critical analysis at issue by comparing the DNA profiles derived from the crime scene evidence to the defendant's DNA profile and concluding that all of the profiles matched (see People v Brown, 13 N.Y.3d 332, 340; People v Rawlins, 10 N.Y.3d 136, 159, cert denied sum nom. Meekins v New York, __ U.S. __, 129 S.Ct. 2856). Moreover, the DNA profile generated from the swab of the defendant's cheek, standing alone, shed no light on the issue of the defendant's guilt in the absence of the expert's testimony that it matched the profiles derived from the crime scene evidence (see People v Pealer, 20 N.Y.3d 447, 452-456; People v Rawlins, 10 N.Y.3d at 159; see also Williams v Illinois, __ U.S. __, 132 S.Ct. 2221, 2224 [plurality op]).
The defendant's contention, raised in his pro se supplemental brief, that he was denied his right to a speedy trial, is not properly before this Court, since the defendant did not request dismissal of the indictment on that ground before the Supreme Court (see People v Davison, 92 A.D.3d 691, 692).
The defendant's further contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a " mixed claim[ ]'" of ineffective assistance (People v Maxwell, 89 A.D.3d 1108, 1109, quoting People v Evans, 16 N.Y.3d 571, 575 n 2, cert denied __ U.S. __, 132 S.Ct. 325). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 N.Y.2d 824; People v Brown, 45 N.Y.2d 852). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109; People v Rohlehr, 87 A.D.3d 603, 604).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review (see CPL 470.05) and, in any event, without merit.
RIVERA, J.P., ROMAN, MILLER and HINDS-RADIX, JJ., concur.