Opinion
07-29-2015
The PEOPLE, etc., respondent, v. Manuel BORGES, appellant.
Carol E. Castillo, East Setauket, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Carol E. Castillo, East Setauket, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.), rendered June 21, 2012, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in denying his request for substitute counsel since the defendant raised no serious complaint about assigned counsel (see People v. Porto, 16 N.Y.3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675 ). Nor did the County Court improvidently exercise its discretion when, on the first day of jury selection, it denied the defendant's request for an adjournment to obtain counsel of his own choosing. The defendant had ample opportunity to retain counsel of his own choosing between this Court's determination on a prior appeal (see People v. Borges, 90 A.D.3d 1067, 935 N.Y.S.2d 621 ) and his retrial. Moreover, the defendant failed to demonstrate that the requested adjournment was necessitated by forces beyond his control and was not a delaying tactic (see People v. Campbell, 54 A.D.3d 959, 863 N.Y.S.2d 827 ; People v. Grigg, 299 A.D.2d 367, 749 N.Y.S.2d 159 ).
The defendant failed to preserve for appellate review his contention that he was deprived of his constitutional right of confrontation when a forensic scientist from the Suffolk County Crime Laboratory testified that he received a “hit” that matched DNA material recovered from the crime scene to a DNA profile of the defendant in the Combined DNA Index System database, commonly known as the CODIS database (see CPL 470.05[2] ; People v. Zappulla, 103 A.D.3d 759, 959 N.Y.S.2d 538 ). In any event, while the testimony was improperly elicited (see People v. Oliver, 92 A.D.3d 900, 901, 938 N.Y.S.2d 619 ), it was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ), since that testimony was cumulative of the forensic scientist's testimony that he generated a DNA profile using a buccal swab from the inside of the defendant's mouth, which matched the DNA material recovered from the crime scene (see People v. Gonzalez, 120 A.D.3d 832, 833, 991 N.Y.S.2d 340 ; cf. People v. Oliver, 92 A.D.3d at 902, 938 N.Y.S.2d 619 ).
The defendant's challenge to certain comments the prosecutor made in summation is without merit, as the remarks were either fair comment on the evidence or, to the extent that they were improper, did not deprive the defendant of a fair trial (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Bell, 126 A.D.3d 993, 3 N.Y.S.3d 622 ; People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Winters, 255 A.D.2d 408, 679 N.Y.S.2d 667 ).
The defendant's claim of ineffective 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, 933 N.Y.S.2d 386 ; see People v. Taylor, 98 A.D.3d 593, 594, 949 N.Y.S.2d 209 ). 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, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). 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. Taylor, 98 A.D.3d at 594, 949 N.Y.S.2d 209 ; People v. Delancey, 94 A.D.3d 1015, 942 N.Y.S.2d 170 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's conviction of grand larceny in the fourth degree following the imposition of his initial sentence in this matter constituted “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” (North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 ), appearing affirmatively on the record, that rebuts any presumption of vindictiveness that arose from the enhanced sentence that was imposed upon the defendant's conviction after retrial (see Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 ; see also People v. Miller, 65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892 ).
The defendant's remaining contentions are without merit.