Opinion
2017–11721 Ind. No. 9932/14
01-26-2022
The PEOPLE, etc., respondent, v. Willie WEATHERS, appellant.
Patricia Pazner, New York, NY (William Kastin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Julian Joiris of counsel), for respondent.
Patricia Pazner, New York, NY (William Kastin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Julian Joiris of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, LARA J. GENOVESI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruth Shillingford, J.), rendered October 23, 2017, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel as a result of defense counsel's failure to seek preclusion of certain DNA evidence based on an alleged violation of Executive Law § 995 is without merit. "[V]iolation of a statute does not, without more, justify suppressing the evidence" ( People v. Greene, 9 N.Y.3d 277, 280, 849 N.Y.S.2d 461, 879 N.E.2d 1280 ) when the violation does not implicate a constitutionally protected right (see People v. Johnson, 27 N.Y.3d 199, 207, 32 N.Y.S.3d 34, 51 N.E.3d 545 ; Matter of Quadon H., 55 A.D.3d 834, 835, 866 N.Y.S.2d 693 ). Accordingly, such a motion had little or no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Benjamin, 188 A.D.3d 715, 716, 131 N.Y.S.3d 895 ).
Since the criminologist who testified at trial testified that she reviewed "all data" in preparing her report, the defendant's contention that defense counsel's failure to object to the admission of that evidence on the ground that it violated his constitutional right to confrontation constituted ineffective assistance of counsel is unsupported by the record (see People v. John, 27 N.Y.3d 294, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ; People v. Lebron, 171 A.D.3d 1092, 1093, 98 N.Y.S.3d 321 ). The defendant's claim that defense counsel's cross-examination demonstrated ineffective assistance of counsel is without merit.
The Supreme Court providently exercised its discretion in denying the defendant's motion to preclude evidence regarding his conduct after the alleged sexual assault was completed. Although that conduct indicated that the defendant committed additional crimes, for which prosecution was barred by the statute of limitations, the conduct was relevant to prove forcible compulsion and the absence of consent, which are necessary elements of rape in the first degree (see People v. Nieves, 186 A.D.3d 1260, 1261, 127 N.Y.S.3d 882 ; People v. Daugherty, 181 A.D.3d 545, 119 N.Y.S.3d 743 ; People v. Torres, 78 A.D.3d 866, 867, 910 N.Y.S.2d 381 ). Furthermore, the probative value of the evidence outweighed the risk of prejudice to the defendant (see People v. Frumusa, 29 N.Y.3d 364, 373, 57 N.Y.S.3d 103, 79 N.E.3d 495 ; People v. Henry, 173 A.D.3d 900, 901, 102 N.Y.S.3d 662 ), and the court's limiting instruction to the jury served to alleviate any prejudice from the admission of that evidence (see People v. Nieves, 186 A.D.3d at 1261, 127 N.Y.S.3d 882 ; People v. Gross, 172 A.D.3d 741, 742, 99 N.Y.S.3d 367 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CONNOLLY, J.P., HINDS–RADIX, MILLER and GENOVESI, JJ., concur.