People v. Borges

• Citation: 2015 N.Y. Slip Op. 06357,15 N.Y.S.3d 378,130 A.D.3d 1057
• Parties: The PEOPLE, etc., respondent, v. Manuel BORGES, appellant.
• Decision Date: 29 July 2015
• Court: New York Supreme Court Appellate Division

130 A.D.3d 1057
15 N.Y.S.3d 378
2015 N.Y. Slip Op. 06357

The PEOPLE, etc., respondent
v.
Manuel BORGES, appellant.

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

July 29, 2015.

15 N.Y.S.3d 379

Carol E. Castillo, East Setauket, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

Opinion

130 A.D.3d 1057

Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.), rendered June 21, 2012, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in denying his request for substitute counsel since the defendant raised no serious complaint about assigned counsel (see

130 A.D.3d 1058

People v. Porto, 16 N.Y.3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675 ). Nor did the County Court improvidently exercise its discretion when, on the first day of jury selection, it denied the defendant's request for an adjournment to obtain counsel of his own choosing. The defendant had ample opportunity to retain counsel of his own choosing between this Court's determination on a prior appeal (see People v. Borges, 90 A.D.3d 1067, 935 N.Y.S.2d 621 ) and his retrial. Moreover, the defendant failed to demonstrate that the requested adjournment was necessitated by forces beyond his control and was not a delaying tactic (see People v. Campbell, 54 A.D.3d 959, 863 N.Y.S.2d 827 ; People v. Grigg, 299 A.D.2d 367, 749 N.Y.S.2d 159 ).

The defendant failed to preserve for appellate review his contention that he was deprived of his constitutional right of confrontation when a forensic scientist from the Suffolk County Crime Laboratory testified that he received a “hit” that matched DNA material recovered from the crime scene to a DNA profile of the defendant in the Combined DNA Index System database, commonly known as the CODIS database (see CPL 470.05[2] ; People v. Zappulla, 103 A.D.3d 759, 959 N.Y.S.2d 538 ). In any event, while the testimony was improperly elicited (see People v. Oliver, 92 A.D.3d 900, 901, 938 N.Y.S.2d 619 ), it was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ), since that testimony was cumulative of the forensic scientist's testimony that he generated a DNA profile using a buccal swab from the inside of the defendant's mouth, which matched the DNA material recovered

15 N.Y.S.3d 380

from the crime scene (see People v. Gonzalez, 120 A.D.3d 832, 833, 991 N.Y.S.2d 340 ; cf. People v. Oliver, 92 A.D.3d at 902, 938 N.Y.S.2d 619 ).

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