         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1300.1
KA 11-00715
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CURTIS L. MASON, DEFENDANT-APPELLANT.


MARY J. FAHEY, SYRACUSE, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered March 28, 2011. The judgment convicted
defendant, upon a jury verdict, of official misconduct.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Seneca County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him,
following a second jury trial, of one count of official misconduct
(Penal Law § 195.00 [1]). Following the first trial, County Court set
aside the verdict finding him guilty of that offense based on the
People’s failure to disclose Brady and Rosario material. Defendant
was thereafter convicted of the same offense following the second jury
trial. Defendant contends that the court erred in admitting DNA
evidence at his first and second trials. We reject that contention.
The victim testified at both trials that defendant, a correction
officer working at the correctional facility where the victim was
housed, took the victim to a secluded area where he engaged in sexual
conduct with the victim and thereafter ejaculated. Forensic
investigators took swabs from the area, and two of the swabs tested
positive for the presence of sperm. DNA profiles generated from the
two swabs were compared to profiles generated from buccal swabs taken
from defendant and the victim. Both samples were “consistent with DNA
[of defendant] also mixed with DNA from at least one DNA donor, with
[defendant] being . . . the major contributor.” The victim was
excluded as a potential donor with respect to both samples. Contrary
to defendant’s contention, the DNA evidence does not constitute
Molineux evidence, i.e., evidence that defendant engaged in a sexual
act with another inmate at a different time. Rather, it constitutes
direct evidence of his guilt of the instant offense. As the court
properly noted, “[a]lthough the two samples were obtained from the
same location and thus they are mixed, it doesn’t follow necessarily
that the two samples arrived th[ere] through sexual acts committed at
                                 -2-                          1300.1
                                                         KA 11-00715

the same time.” In our view, “[i]t cannot be trivialized as mere
coincidence that [defendant’s semen] was . . . recovered at the scene”
of the alleged sexual encounter (People v Gonzalez, 193 AD2d 360,
361). We thus conclude that the DNA evidence is direct and relevant
evidence of the instant offense (see generally People v Scarola, 71
NY2d 769, 777; People v Mirenda, 23 NY2d 439, 453).

     Defendant further contends that the verdict following the first
trial was “against the weight of the evidence,” but his sole
contention with respect to “weight” is that the jury in the first
trial could not have justifiably found him guilty of official
misconduct yet have acquitted him of two counts of criminal sexual act
in the third degree (Penal Law § 130.40 [1]) arising out of the same
incident. The People, in response, contend that defendant’s challenge
to the weight of the evidence at the first trial is not properly
before this Court. As a preliminary matter, we reject the People’s
contention. A defendant who has been found guilty upon a retrial may
still challenge the weight of the evidence at the first trial on the
premise that, “if the verdict were against the weight of the evidence
at the first trial, a retrial would [have been] barred” (People v
Scerbo, 74 AD3d 1730, 1733, lv denied 15 NY3d 757; see People v
Romero, 7 NY3d 633, 644 n 2). In our view, however, defendant is not
actually challenging the weight of the evidence but, rather, is
contending that the verdict in the first trial was either repugnant or
inconsistent. That contention is not preserved for our review and
thus is not properly before us inasmuch as defendant failed to object
to the inconsistency of the verdict “after the verdict [was] rendered,
but before the jury [was] discharged” (People v Johnson, 93 AD3d 408,
409, lv denied 19 NY3d 974, petition for cert filed Aug. 16, 2012
[emphasis added]; see generally People v Alfaro, 66 NY2d 985, 987).
Although defendant raised the theoretical possibility of an
inconsistent verdict after the court took a partial verdict under the
authority of CPL 310.70 (1) (b), the court properly concluded that
defendant’s objection was premature. When the final verdict in the
first trial was ultimately rendered, defendant failed to renew his
objection (see e.g. People v Hines, 97 NY2d 56, 61, rearg denied 97
NY2d 678; People v Russell, 71 NY2d 1016, 1017-1018, rearg dismissed
79 NY2d 975; People v Hardy, 38 AD3d 1169, 1169-1170, lv denied 9 NY3d
865). In any event, we conclude that the verdict was neither
repugnant nor inconsistent because “there is a possible theory under
which a split verdict could be legally permissible” (People v
Muhammad, 17 NY3d 532, 540; see generally People v Trappier, 87 NY2d
55, 58; People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039).
“[T]he apparently illogical nature of the verdict——as opposed to its
impossibility——[must be] viewed as a mistake, compromise or the
exercise of mercy by the jury, none of which undermine[s] a verdict as
a matter of law” (Muhammad, 17 NY3d at 540; see People v Harris, 98
AD3d 420, 420; People v Abraham, 94 AD3d 1332, 1333).



Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
