Opinion
2015–08985 No. 85N–12
07-05-2018
The PEOPLE, etc., respondent, v. Michael S. GIBSON, appellant.
Richard M. Langone, Garden City, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Monica M.C. Leiter of counsel), for respondent.
Richard M. Langone, Garden City, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Monica M.C. Leiter of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S. Carter, J.), rendered September 8, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to support his conviction of murder in the second degree since the People failed to prove that he acted with intent to kill the victim. 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 this crime beyond a reasonable doubt. Here, intent can be inferred from the defendant's conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305 ). 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 of this crime 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 ).
We agree with the Supreme Court's determination to deny the defendant's request for a hearing pursuant to Frye v. United States, 293 F. 1013 to determine the admissibility of testimony concerning Low Copy Number (hereinafter LCN) DNA testing. "A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony" ( People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; see People v. Foster–Bey, 158 A.D.3d 641, 67 N.Y.S.3d 846 ). Given the acceptance of such evidence by other New York courts (see e.g. People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517 [Sup. Ct., Bronx County] ; People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408 [Sup. Ct., Queens County] ), a Frye hearing was not necessary here (see People v. Foster–Bey, 158 A.D.3d at 641, 67 N.Y.S.3d 846 ; People v. Gonzalez, 155 A.D.3d 507, 65 N.Y.S.3d 142 ).
The defendant's contention that his right to confrontation was violated because the People did not produce the analyst who performed the LCN DNA testing is unpreserved for appellate review (see CPL 470.05[2] ; People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 ; People v. Castro, 149 A.D.3d 862, 865, 52 N.Y.S.3d 385 ; People v. Abuziyad, 136 A.D.3d 837, 24 N.Y.S.3d 516 ), and, in any event, without merit. 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. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ; see People v. Hao Lin, 28 N.Y.3d 701, 49 N.Y.S.3d 353, 71 N.E.3d 941 ; People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927 ; People v. Rodriguez, 153 A.D.3d 235, 247, 59 N.Y.S.3d 337, affd 31 N.Y.3d 1067, 77 N.Y.S.3d 336, 101 N.E.3d 977, 2018 N.Y. Slip Op. 04031 [2018] ; People v. Fermin, 150 A.D.3d 876, 880, 55 N.Y.S.3d 286 ). The defendant contends that he was denied his constitutional right to present a defense (see generally Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 ; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 ) when the Supreme Court precluded him from questioning a detective about whether the detective investigated a connection between the victim's death and the victim's father's prior murder conviction. This contention is unpreserved for appellate review (see People v. Every, 29 N.Y.3d 1103, 1104, 61 N.Y.S.3d 194, 83 N.E.3d 202 ; People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 ; People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ; People v. Deverow, 153 A.D.3d 550, 551, 60 N.Y.S.3d 230 ), and, in any event, without merit, as the proffered testimony was only marginally relevant, would have confused the issues, and misled the jury (see People v. Hayes, 17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118 ; People v. Herring, 101 A.D.3d 1151, 1152, 956 N.Y.S.2d 534 ; People v. Sawyer, 304 A.D.2d 775, 757 N.Y.S.2d 766 ).
The defendant's contention 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, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Since the defendant's claim of ineffective assistance of counsel 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. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
AUSTIN, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.