People v. Mendez

• Decision Date: 30 January 2001
• Citation: 720 N.Y.S.2d 65
• Parties: (A.D. 1 Dept. 2001) The People of the State of New York, Respondent, v. Franklin Mendez, Defendant-Appellant. 3132 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 65

720 N.Y.S.2d 65 (A.D. 1 Dept. 2001)

The People of the State of New York, Respondent, v. Franklin Mendez, Defendant-Appellant.

3132

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

January 30, 2001.

Mark Dwyer, for Respondent.

Joseph M. Nursey, for Defendant-Appellant.

Williams, J.P., Mazzarelli, Lerner, Rubin, Buckley, JJ.

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered November 6, 1997, convicting defendant, after a jury trial, of rape in the first degree (four counts), sodomy in the first degree (three counts), robbery in the first degree (two counts), attempted rape in the first degree, and sexual abuse in the first degree (three counts), and sentencing him to an aggregate term of 62 to 186 years, unanimously affirmed.

Defendant's motion to suppress identification testimony was properly denied. As to the police canvass, the evidence establishes that defendant was simultaneously identified by two victims who did not influence each another. As to the lineup, the record establishes that the lineup fillers were sufficiently similar in appearance to the defendant and that there was not a substantial likelihood that the defendant would be singled out for identification (see, People v. Chipp, 75 N.Y.2d 327, 336, cert. denied 498 U.S. 833).

The court properly exercised its discretion in refusing to deliver an adverse inference charge regarding the prosecution's inadvertent failure to store condoms recovered from the crime scene in a manner that would have allegedly permitted more effective DNA testing. Since defendant never requested an analysis of the condoms and never expressed any interest in them until the alleged "degradation" of DNA evidence was revealed during trial, he forfeited any right that he may have had to demand an analysis or to claim that he was prejudiced by the storage methods (People v. Allgood, 70 N.Y.2d 812; People v. Aponte, 240 A.D.2d 317, lv. denied 91 N.Y.2d 868). In any event, there is no indication that better DNA testing would have produced any exculpatory evidence.

The court's Sandoval ruling was a proper exercise of discretion that appropriately balanced the probative value of defendant's prior bad acts against the potential for prejudice. The court properly permitted limited inquiry into the underlying facts of defendant's two dismissed cases and two prison incidents that occurred during the pendency of this case, since these prior bad acts were...