People v. Beckham

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Beckham, 2016 NY Slip Op 5759, 142 AD3d 556, 36 N.Y.S.3d 483 (N.Y. App. Div. 2016)
• Decision Date: 10 August 2016
• Parties: The PEOPLE, etc., respondent, v. Richard BECKHAM, appellant.

142 A.D.3d 556

36 N.Y.S.3d 483

2016 N.Y. Slip Op. 05759

The PEOPLE, etc., respondent,

v.Richard BECKHAM, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 10, 2016.

Lynn W.L. Fahey, New York, NY (Melissa S. Horlick of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnette Traill, Roni C. Piplani of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered December 15, 2011, convicting him of attempted predatory sexual assault, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his discovery requests pursuant to CPL 240.40 for material that was not in the possession or control of the People (see People v. Colavito, 87 N.Y.2d 423, 428, 639 N.Y.S.2d 996, 663 N.E.2d 308 ; People v. Washington, 86 N.Y.2d 189, 191–192, 630 N.Y.S.2d 693, 654 N.E.2d 967 ; People v. Wright, 225 A.D.2d 430, 433, 639 N.Y.S.2d 361 ). The Supreme Court also properly granted the People's motion to compel the defendant to submit a buccal swab for DNA testing (see CPL 240.40[2][b][v] ; 240.90; People v. Ruffell, 55 A.D.3d 1271, 1272, 864 N.Y.S.2d 347 ; People v. Lewis, 44 A.D.3d 422, 422–423, 843 N.Y.S.2d 72 ).

The defendant's right to confrontation (see U.S. Const Sixth Amend) was not violated by the testimony of a criminalist employed by the Office of the Chief Medical Examiner of the City of New York. The criminalist performed her own analysis of the DNA profiles, concluded that there was a DNA match, and issued the final report, which was challenged on cross-examination (see People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ; People v. Fernandez, 115 A.D.3d 977, 978–979, 982 N.Y.S.2d 174 ).

The defendant's contentions that the prosecutor's opening and summation remarks constituted reversible error are, for the most part, unpreserved for appellate review (see CPL 470.05[2] ; People v. Morales, 87 A.D.3d 1165, 1166, 930 N.Y.S.2d 454 ). In any event, the prosecutor's remarks were either within the bounds of permissible rhetorical comment, responsive to the defendant's summation, or did not constitute reversible error (see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Maldonado, 55 A.D.3d 626, 628, 865 N.Y.S.2d 316 ; People v. Williams, 144 A.D.2d 403, 533 N.Y.S.2d 789 ; People v. Torres, 121 A.D.2d 663, 664, 503 N.Y.S.2d 659 ).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's application to strike the complainant's testimony, made after the prosecutor spoke to the complainant during a break in her testimony, regarding the authentication of a recording of a 911 emergency call (see People v. Branch, 83 N.Y.2d 663, 667–668, 612 N.Y.S.2d 365, 634 N.E.2d 966 ; People v....