People v. Kellar

• Citation: 218 A.D.2d 406,640 N.Y.S.2d 908
• Parties: The PEOPLE of the State of New York, Respondent, v. Rae T. KELLAR, Appellant.
• Decision Date: 11 April 1996
• Court: New York Supreme Court Appellate Division

Page 908

640 N.Y.S.2d 908

218 A.D.2d 406

The PEOPLE of the State of New York, Respondent, v. Rae T. KELLAR, Appellant.

Supreme Court, Appellate Division Third Department.

April 11, 1996.

John T. Casey Jr., Albany, for appellant.

Mary O. Donohue, District Attorney of Rensselaer County (Bruce E. Knoll, of counsel), Troy, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

MERCURE, Justice.

Appeal, by permission, of the Appellate Division of the Supreme Court in the Third Judicial Department, from an order of the County Court of Rensselaer County (McGrath, J.), entered July 5, 1995, which denied defendant's motion pursuant to CPL 440.30(1-a) for the performance of forensic DNA testing on specified evidence.

In June 1989 defendant was indicted for various counts of rape, sodomy and sexual abuse as the result of a May 29, 1989 incident in which, a jury ultimately determined, defendant subjected a 16-year-old female victim to forcible sexual intercourse. In his trial testimony, defendant acknowledged his participation in the encounter, but insisted that his sexual activity with the victim was wholly consensual and did not involve sexual intercourse.

Prosecution evidence showed that the victim was examined by a physician shortly after the incident and that a "rape kit" was prepared and the various specimens analyzed by the State Police crime laboratory. The most noteworthy findings revealed the existence of two dead sperm in a sample of the victim's vaginal secretions and dried secretions outside of the victim's vagina that were found to be consistent with semen. Neither the People nor defendant had the sperm subjected to DNA analysis. Although the presence of semen and sperm led the People's expert to opine that the victim had engaged in sexual intercourse within "the last several hours" prior to the examination, the witness acknowledged on cross-examination that the sperm could have been the product of an act of intercourse that took place as long as three days prior to the examination. In addition, it was established that the victim had told the examining physician that defendant did not ejaculate during the act of forcible intercourse. Finally, when asked whether defendant said anything when he had his penis inside her, the victim responded, "He said, 'I know you want it, you little slut.' and I was, like, 'No, I don't.' I told him I was a virgin and that I was waiting."

On direct appeal from defendant's conviction of rape in the first degree, sexual abuse in the first degree and rape in the third degree, defendant advanced the argument that, in view of the victim's testimony that she was a virgin, County Court committed reversible error in excluding evidence of her prior sexual history (see, CPL 60.42[3] ). Recognizing that the victim did not state that she was a virgin but merely "testified that she told defendant during the attack that she was a virgin", we rejected the argument (174 A.D.2d 848, 849, 571 N.Y.S.2d 144, lv. denied 78 N.Y.2d 1128, 578 N.Y.S.2d 885, 586 N.E.2d 68). On that appeal, defendant first raised but then withdrew the contention that County Court erred in admitting evidence of sperm found in the victim's body without a proper foundation (id.).

Subsequently, defendant made an unsuccessful motion in County Court to vacate his convictions pursuant to CPL 440.10 on the ground of, inter alia, newly discovered evidence and ineffective assistance of counsel. On appeal from County Court's order denying the motion, this court found that "[d]efendant's characterization of his request for DNA testing under the rubric of 'newly discovered evidence' [was] flawed" (199 A.D.2d 703, 605 N.Y.S.2d 486, lv denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987) because the presence of sperm and the possibility of DNA testing was fully known to defendant and its use explored by him and by his counsel prior to trial (id.). We also concluded that, by failing to raise the contention on direct appeal, defendant waived the claim that he had been denied effective assistance by virtue of trial counsel's failure to have DNA testing performed (id.).

The factual background thus stated, we now turn to defendant's current application for DNA testing of the sample containing the sperm cells, based on the Legislature's 1994 addition of a new CPL 440.30(1-a) (L 1994, ch 737). By its literal terms, that statutory provision would appear to require that the motion be granted upon a showing "that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant" (CPL 440.30[1-a]. In support of the motion and on this appeal from County Court's order denying it, defendant contends, first, that he and his wife repeatedly demanded that defendant's trial counsel arrange for DNA testing of the sample but that the counsel first recommended that they wait and see if the prosecution would itself have the testing performed and then incorrectly stated that, because the sample had not been refrigerated, it could not be DNA coded. On the critical issue of the probability of a more favorable verdict had the DNA testing been performed and the result admitted at trial, it is defendant's contention that, because of the victim's testimony that she was a virgin prior to the incident, which, although false, was left unrefuted, the jury was left with no alternative but to conclude that defendant was the source of the sperm found in the victim's vagina. Thus, the argument concludes, DNA evidence is pivotal to defendant's case--its absence compelled the...