Opinion
2018–00697 Ind.No. 2819/16
09-16-2020
The PEOPLE, etc., respondent, v. Jermaine NELSON, appellant.
Paul Skip Laisure, New York, N.Y. (Patterson Belknap Webb & Tyler LLP [Harry Sandick and Diana Conner ], of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Ayelet Sela of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Patterson Belknap Webb & Tyler LLP [Harry Sandick and Diana Conner ], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Ayelet Sela of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant was convicted of burglary in the second degree and criminal mischief in the fourth degree, arising out of an incident on April 30, 2015, when the complainant awoke in the middle of the night to see an intruder coming headfirst through her bedroom window. The window screen was damaged and discarded outside, and the defendant's fingerprints were recovered from the outside of the window and from the frame of the discarded screen. The defendant appeals.
A person is guilty of burglary in the second degree when he or she knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.25[2] ). The element of entry is satisfied "when a person intrudes within a building, no matter how slightly, with any part of his or her body" ( People v. King, 61 N.Y.2d 550, 555, 475 N.Y.S.2d 260, 463 N.E.2d 601 ; see People v. Brown, 101 A.D.3d 895, 895, 956 N.Y.S.2d 109 ; People v. DelCerro, 299 A.D.2d 160, 161, 753 N.Y.S.2d 358 ; People v. Smith, 161 A.D.2d 817, 819, 556 N.Y.S.2d 378 ). The defendant contends that his conviction of burglary in the second degree was against the weight of the evidence because the People failed to prove that he actually entered the complainant's home. We disagree. 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 jury credited the complainant's testimony that portions of the defendant's upper body entered her bedroom through the window, and we discern no reason to disturb the jury's credibility determination (see People v. Hairston, 167 A.D.3d 935, 936, 90 N.Y.S.3d 117 ; People v. Braithwaite, 126 A.D.3d 993, 995, 6 N.Y.S.3d 128 ; People v. Smith, 161 A.D.2d at 819, 556 N.Y.S.2d 378 ). We agree with the Supreme Court's determination to admit into evidence the testimony of the expert who conducted the latent fingerprint comparison analysis which matched the defendant's fingerprints to those recovered from the scene. Contrary to the defendant's contention, a Frye hearing (see Frye v. United States, 293 F. 1013 [D.C. Cir.] ) was unnecessary (see People v. Wilson, 107 A.D.3d 919, 920, 967 N.Y.S.2d 756 ; People v. Burnell, 89 A.D.3d 1118, 1122, 931 N.Y.S.2d 776 ). Moreover, the court providently exercised its discretion in qualifying the People's expert (see Caprara v. Chrysler Corp., 52 N.Y.2d 114, 121, 436 N.Y.S.2d 251, 417 N.E.2d 545 ; People v. Okonkwo, 167 A.D.3d 657, 658, 86 N.Y.S.3d 894 ; People v. Jean–Laurent, 51 A.D.3d 818, 818, 859 N.Y.S.2d 658 ), and the expert's opinion was "supported by a sufficient factual basis establishing that an accepted methodology was appropriately employed" ( People v. Jackson, 125 A.D.3d 1002, 1004, 2 N.Y.S.3d 625 ; see Matter of Richard M., 89 A.D.3d 849, 850, 932 N.Y.S.2d 165 ). Any weakness in the fingerprint expert's testimony went to credibility and the weight of the evidence rather than to its admissibility (see People v. Jackson, 125 A.D.3d at 1004, 2 N.Y.S.3d 625 ). Further, since the expert conducted an "independent analysis on the raw data" to arrive at his own conclusions, and his testimony was not merely "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 ), the defendant's right to confront the witnesses against him was not violated (see People v. Breazil, 165 A.D.3d 1159, 1160, 86 N.Y.S.3d 192 ; see generally People v. Rawlins, 10 N.Y.3d 136, 157, 855 N.Y.S.2d 20, 884 N.E.2d 1019 ; cf. People v. Austin, 30 N.Y.3d 98, 104, 64 N.Y.S.3d 650, 86 N.E.3d 542 ).
The defendant's challenge to certain remarks made by the prosecutor during summation is mostly unpreserved for appellate review, since he either failed to object, failed to request further curative instructions after his objection was granted, or failed to timely move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2] ; People v. Balls , 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017 ). In any event, to the extent that the prosecutor's remarks improperly vouched for the complainant's credibility, the Supreme Court sustained defense counsel's objection, and the curative instructions provided by the court alleviated any prejudice that may have resulted from the remarks (see People v. Chunn , 181 A.D.3d 706, 117 N.Y.S.3d 601 ; People v. Bossett , 45 A.D.3d 693, 694, 850 N.Y.S.2d 109 ). The remainder of the challenged remarks were generally proper and were responsive to the defendant's summation (see People v. Bailey , 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 ; People v. Morrow , 143 A.D.3d 919, 921, 39 N.Y.S.3d 232 ; People v. Johnson , 76 A.D.3d 937, 937, 907 N.Y.S.2d 494 ). To the extent any remarks were improper, they "were not so flagrant or pervasive as to deny the defendant a fair trial" ( People v. Almonte , 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ; see People v. Smith , 181 A.D.3d 826, 828, 118 N.Y.S.3d 435 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LASALLE, CONNOLLY and WOOTEN, JJ., concur.