Opinion
2016–02179 Ind. No. 9771/13
10-16-2019
The PEOPLE, etc., Respondent, v. Wayne HARTNAGEL, Appellant.
Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in consolidating for trial a 2013 indictment charging him with, inter alia, burglary in the second degree at an address on Wyckoff Avenue in Brooklyn with a 2014 indictment charging him with, among other things, attempted burglary in the second degree at an address on Starr Street in Brooklyn (see CPL 200.20[2][c] ; People v. Sutton , 151 A.D.3d 763, 57 N.Y.S.3d 180 ; People v. Burnett , 228 A.D.2d 788, 644 N.Y.S.2d 79 ). The "[p]roof of each charge was separately presented, uncomplicated and easily distinguishable" ( People v. Nickel , 14 A.D.3d 869, 870, 788 N.Y.S.2d 274 [internal quotation marks omitted] ).
The defendant's contention that the DNA evidence pertaining to the Wyckoff Avenue burglary charge violated his rights under the Sixth Amendment's Confrontation Clause because the testifying analyst merely "function[ed] 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 Crawford v. Washington , 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 ; People v. Austin , 30 N.Y.3d 98, 64 N.Y.S.3d 650, 86 N.E.3d 542 ) is unpreserved for appellate review, and we decline to review the issue in the exercise of our interest of justice jurisdiction (see People v. Mancha , 162 A.D.3d 903, 75 N.Y.S.3d 276 ; People v. Forde , 153 A.D.3d 852, 57 N.Y.S.3d 908 ).
The defendant's contention that the Supreme Court should have charged the jury that evidence of guilt as to one incident should not be considered as evidence of guilt as to the other incident is also unpreserved for appellate review, and we decline to review the issue in the exercise of our interest of justice jurisdiction (see People v. Mancha , 162 A.D.3d 903, 75 N.Y.S.3d 276 ; People v. Forde , 153 A.D.3d 852, 57 N.Y.S.3d 908 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. A review of the record reveals that defense counsel provided meaningful representation (see People v. Benevento , 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contention is without merit.
DILLON, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.