People v. Washington

• Decision Date: 03 July 2013
• Parties: The PEOPLE, etc., respondent, v. Kenneth WASHINGTON, appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 576
968 N.Y.S.2d 184
2013 N.Y. Slip Op. 05096

The PEOPLE, etc., respondent,
v.
Kenneth WASHINGTON, appellant.

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

July 3, 2013.

[968 N.Y.S.2d 186]

Lynn W. L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Jennifer Hagan of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA HINDS–RADIX, JJ.

[108 A.D.3d 576]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered January 19, 2011, convicting him of burglary in the first degree (three counts), burglary in the second degree (three counts), assault in the first degree (two counts), assault in the second degree (two counts), criminal sexual act in the first degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's challenges for cause to two prospective jurors. “[W]here prospective jurors unambiguously state that, despite preexisting opinions that might indicate bias, they will [108 A.D.3d 577]decide the case impartially and based on the evidence, the trial court has discretion to deny the challenge for cause if it determines that the juror's promise to be impartial is credible” ( People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846). Here, although the prospective jurors initially gave responses to inquiries that raised doubts as to their ability to be impartial, they ultimately provided unequivocal assurances that they could render an impartial verdict based solely on the evidence adduced at trial ( see People v. Narvaez, 34 A.D.3d 847, 848, 823 N.Y.S.2d 914;People v. Nowlin, 297 A.D.2d 554, 555, 747 N.Y.S.2d 92;People v. Cherry, 286 A.D.2d 913, 913, 730 N.Y.S.2d 753).

There is no merit to the defendant's contention that the Supreme Court improvidently exercised its discretion in finding that the People's expert witness was qualified to render an expert opinion in the field of the statistical significance of DNA profiles, as the witness demonstrated that she possessed the requisite skill, training, education, knowledge, or experience to render a reliable opinion in that field ( see People v. Menendez, 50 A.D.3d 1061, 1062, 856 N.Y.S.2d 647). Moreover, the court providently exercised its discretion in precluding cross-examination of the witness about DNA profile comparisons from three other states, since such questioning had the potential to mislead the jury ( see People v. Haynes, 39 A.D.3d 562, 564, 833 N.Y.S.2d 193;People v. Paixao, 23 A.D.3d 677, 678, 806 N.Y.S.2d 672).

The defendant contends that the Supreme Court violated his right to confrontation by permitting the People to introduce evidence of DNA testing performed on evidence recovered from the crime scenes and his cheek swab through the People's expert witness, who lacked firsthand knowledge of the testing of each item of...