People v. Cunningham

194 A.D.3d 954

147 N.Y.S.3d 140

The PEOPLE, etc., respondent,

v.Michael B. CUNNINGHAM, appellant.

2017–05447

Ind. No. 2801/12

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

Argued—December 7, 2020

May 19, 2021

Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered April 11, 2017, convicting him of murder in the second degree (two counts), kidnapping in the first degree, aggravated criminal contempt, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the defendant's omnibus motion which was to suppress physical evidence and the denial, after a hearing (Steven Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant was convicted, upon a jury verdict, of murder in the second degree and related crimes in connection with the death of Albert Robinson.

The defendant's contention that the Supreme Court erred in denying, without a hearing, that branch of his omnibus motion which was to suppress physical evidence seized from his car is without merit, as his supporting papers were conclusory and failed to set forth factual allegations sufficient to warrant a hearing (see CPL 710.60[3] ; People v. Robinson, 118 A.D.3d 1028, 987 N.Y.S.2d 457 ; see also People v. Watson, 163 A.D.3d 855, 857, 81 N.Y.S.3d 449 ).

The police did not violate the defendant's right to counsel when they questioned him about Robinson's murder. Assuming that the defendant's right to counsel had attached on two pending criminal matters, the murder was not "so closely related transactionally, or in space or time" to the represented matters "that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel" ( People v. Cohen, 90 N.Y.2d 632, 638, 665 N.Y.S.2d 30, 687 N.E.2d 1313 ; see People v. Henry, 31 N.Y.3d 364, 370, 78 N.Y.S.3d 275, 102 N.E.3d 1056 ). The alleged incidents underlying the represented matters occurred more than three months before the murder, at different locations. The fact that the represented matters involved Robinson and the defendant's wife, with whom Robinson was having an affair, did not make the crimes so related that representation on the prior matters precluded the defendant from effectively waiving his right to counsel regarding the murder (see People v. McCalla, 172 A.D.3d 750, 751, 97 N.Y.S.3d 524 ; People v. Davis, 149 A.D.3d 451, 452, 52 N.Y.S.3d 33 ; People v. Jackson, 41 A.D.3d 1268, 1269, 839 N.Y.S.2d 377 ; People v. Tucker, 30 A.D.3d 312, 313, 818 N.Y.S.2d 51 ; People v. Rivera, 277 A.D.2d 470, 471–472, 716 N.Y.S.2d 704 ). Moreover, the police did not ask the defendant about the represented matters, so the interview did not actually entail an infringement of the defendant's right to counsel (see People v. Henry, 31 N.Y.3d at 371, 78 N.Y.S.3d 275, 102 N.E.3d 1056 ; People v. Cohen, 90 N.Y.2d at 640, 665 N.Y.S.2d 30, 687 N.E.2d 1313 ; People v. Rivera, 277 A.D.2d at 471, 716 N.Y.S.2d 704 ).

Contrary to the People's contention, the defendant preserved for appellate review his contention that his confrontation clause rights were violated by the testimony of a criminalist employed by the Office of the Chief Medical Examiner of the City of New York. Moreover, under the circumstances presented, evidence of DNA testing performed on swabs taken from a rug inside the defendant's car and latex gloves recovered near Robinson's body was testimonial in nature (see People v. Austin, 30 N.Y.3d 98, 104, 64 N.Y.S.3d 650, 86 N.E.3d 542 ; People v. John, 27 N.Y.3d 294, 308, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ). Nevertheless, the defendant's right of confrontation was not violated. The criminalist, who had a Ph. D. in genetics and was the assigned analyst on the case, performed his own analysis of certain DNA profiles, concluded that there was a DNA match, and issued and signed the final report, which was challenged on cross-examination (see People v. Lebron, 171 A.D.3d 1092, 1093, 98 N.Y.S.3d 321 ; People v. Pascall, 164 A.D.3d 1265, 1266, 82 N.Y.S.3d 577 ). The testimony of the criminalist established that he witnessed, performed, or supervised the generation of certain DNA profiles or used independent analysis on the raw data and thus, was not merely "[functioning as] a conduit for the conclusions of others" ( People v. Austin, 30 N.Y.3d at 105, 64 N.Y.S.3d 650, 86 N.E.3d 542 ; see People v. Tsintzelis, 35 N.Y.3d 925, 927, 124 N.Y.S.3d 1, 146 N.E.3d 1160 ; People v. John, 27 N.Y.3d at 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ).

The defendant's contention that his Fourth...