Opinion
2016-03674 Ind. No. 2367/14
07-20-2022
The People of the State of New York, respondent, v. Jorge Espinosa, appellant.
Patricia Pazner, New York, NY (Meredith S. Holt and Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Benjamin N. Costanza of counsel), for respondent.
Patricia Pazner, New York, NY (Meredith S. Holt and Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Benjamin N. Costanza of counsel), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert A. Schwartz, J.), rendered March 17, 2016, convicting him of burglary in the second degree, possession of burglar's tools, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contention, although the complainants were unable to positively identify him, the circumstantial evidence, including the DNA evidence linking the defendant to the crime, established a prima facie case as to identity (see People v Drummond, 143 A.D.3d 836; People v Moss, 138 A.D.3d 761). 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), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410). 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).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (People v Sandoval, 34 N.Y.2d 371) was a provident exercise of discretion, as it constituted an appropriate compromise which properly balanced the probative value of the proffered evidence against any potential prejudice to the defendant (see People v Smith, 18 N.Y.3d 588, 593-594; People v Hayes, 97 N.Y.2d 203, 207-208).
The defendant's contention that certain DNA evidence should have been precluded based on an alleged violation of Executive Law § 995-c is unpreserved for appellate review, since defense counsel did not object to the admission of the DNA evidence on this basis (see CPL 470.05[2]). In any event, the defendant's contention is without merit (see People v Weathers, 201 A.D.3d 959, 960). "'[V]iolation of a statute does not, without more, justify suppressing the evidence' when the violation does not implicate a constitutionally protected right" (id., quoting People v Greene, 9 N.Y.3d 277, 280; see Matter of Quadon H., 55 A.D.3d 834, 835).
Similarly, the defendant's contention that his Sixth Amendment right to confrontation was violated because DNA test results admitted into evidence contained testing performed by an analyst who did not testify at trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, the defendant's contention is without merit (see People v John, 27 N.Y.3d 294; People v Frederick, 186 A.D.3d 1398; People v Aponte, 149 A.D.3d 1096; People v Pitre, 108 A.D.3d 643). "The testifying criminalist performed a technical review of the analyst's report, independently reviewed the analyst's data interpretation, and reached an independent conclusion, and thus, was not merely 'functioning as a conduit for the conclusions of others'" (People v Frederick, 186 A.D.3d at 1399, quoting People v John, 27 N.Y.3d at 315).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see Strickland v Washington, 466 U.S. 668; People v Benevento, 91 N.Y.2d 708).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
LASALLE, P.J., CONNOLLY, GENOVESI and FORD, JJ., concur.