Opinion
561 KA 19-00777
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Dydisci MARTIN, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ). We reject defendant's contention that County Court erred in admitting in evidence a swab containing DNA. The testimony at trial established that the change in the swab's packaging was not " ‘a material and prejudicial change in the condition or nature of the [swab]’ " ( People v. Jordan , 154 A.D.3d 1176, 1178, 63 N.Y.S.3d 132 [3d Dept. 2017], quoting People v. Julian , 41 N.Y.2d 340, 344, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] ), and any deficiencies in the chain of custody went to the weight, not the admissibility, of the evidence (see People v. Cleveland , 273 A.D.2d 787, 788, 709 N.Y.S.2d 751 [4th Dept. 2000], lv denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366 [2000] ).
We likewise reject defendant's contention that the court erred in refusing to suppress evidence seized pursuant to a warrantless search of his vehicle. Contrary to defendant's contention, the record establishes that he voluntarily provided the police with written consent to search his vehicle (see People v. Fioretti , 155 A.D.3d 1662, 1663, 65 N.Y.S.3d 376 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence, notwithstanding the fact that the People's case was based largely on circumstantial proof (see People v. Hernandez , 79 A.D.3d 1683, 1683, 917 N.Y.S.2d 448 [4th Dept. 2010], lv denied 16 N.Y.3d 895, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's additional contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant failed to preserve for our review his contention that the court erred in failing to excuse for cause a prospective juror (see People v. Stepney , 93 A.D.3d 1297, 1297-1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Defendant's contention that the court improperly imposed an enhanced sentence lacks merit because the court did not impose an enhanced sentence (cf. People v. Burns , 279 A.D.2d 586, 587, 719 N.Y.S.2d 667 [2d Dept. 2001] ; People v. Campbell , 271 A.D.2d 63, 69-71, 711 N.Y.S.2d 656 [4th Dept. 2000], lv denied 95 N.Y.2d 967, 722 N.Y.S.2d 485, 745 N.E.2d 405 [2000] ). Finally, the sentence is not unduly harsh or severe.