People v. Ortiz
| Decision Date | 11 January 2011 |
| Parties | The PEOPLE, etc., respondent, v. Anibal ORTIZ, Jr., appellant. |
| Court | New York Supreme Court — Appellate Division |
80 A.D.3d 628
The PEOPLE, etc., respondent,
v.
Anibal ORTIZ, Jr., appellant.
Supreme Court, Appellate Division, Second Department, New York.
Jan. 11, 2011.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Shulamit Rosenblum Nemec of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered September 16, 2004, convicting him of sodomy in the second degree, sodomy in the third degree, sexual abuse in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The complainant, then 13 years old, was staying with her sister and her sister's fiancé, the defendant, on the morning of January 20, 2002. While the defendant was alone in the apartment with the complainant, he started showing a pornographic movie, removed the complainant's clothing, licked her vagina, kissed her breasts, and stuck his tongue in her mouth. The
On February 9, 2002, the police called the complainant's family to tell them to place the underpants the complainant had worn on the day of the incident in a brown paper bag. The complainant's mother told her to retrieve the underpants from the laundry basket. She retrieved it and placed it in a plastic bag. Her mother gave the underwear to her father in a brown paper bag, and the father brought the bag to an assistant district attorney. A detective collected the bag from the assistant district attorney and verified that it contained a pair of blue women's underpants. He brought it to the Office of the Chief Medical Examiner of the City of New York on February 28, 2002. Testing revealed that the defendant's DNA matched DNA found on the underpants. Testing also revealed the presence of a second male's DNA on the underpants, which could have come from the father's dirty clothing which was in the laundry basket with the underpants.
The jury convicted the...
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...be explored through cross-examination and the defendants' presentation of their own expert testimony. See, e.g., People v. Ortiz, 80 A.D.3d 628, 914 N.Y.S.2d 281, 282 (2011) ; Cunningham, 105 P.3d at 932 (question of contamination of hair shaft with DNA that was the same type as the defenda......
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...undermined any weight that should otherwise have been accorded to the only physical evidence against defendant (cf. People v. Ortiz, 80 A.D.3d 628, 629–630, 914 N.Y.S.2d 281, lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 ).Finally, “[e]ven assuming that the verdict of guilt wa......
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...alleged mishandling of the evidence went to the weight rather than to the admissibility of the evidence (see People v. Ortiz , 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ). Inasmuch as the defendant made an application to discharge a prospective juror, he cannot now be heard to complain, as he do......
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...reasonable assurances of the identity and unchanged condition of the clothing between its recovery and the trial (see People v. Ortiz , 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ; People v. Caswell , 56 A.D.3d 1300, 1303, 867 N.Y.S.2d 638 ; People v. Miller , 242 A.D.2d 896, 897, 662 N.Y.S.2d 88......