        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1247
KA 07-01841
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HOWARD S. WRIGHT, DEFENDANT-APPELLANT.


DAVID M. KAPLAN, PENFIELD, FOR DEFENDANT-APPELLANT.

SANDRA J. DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered July 10, 2007. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that the conviction is not supported by legally
sufficient evidence. We reject that contention. “It is well settled
that, even in circumstantial evidence cases, the standard for
appellate review of legal sufficiency issues is whether any valid line
of reasoning and permissible inferences could lead a rational person
to the conclusion reached by the [factfinder] on the basis of the
evidence at trial, viewed in the light most favorable to the People”
(People v Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678 [internal
quotation marks omitted]). Here, several witnesses testified at trial
that defendant was with the victim in her vehicle before she was
killed. The People also presented evidence that the victim was raped
in her vehicle, and defendant’s DNA could not be excluded from various
pieces of evidence recovered therefrom. In addition, the People
presented testimony establishing that defendant was seen with the
victim’s vehicle on the night she was killed, and a witness testified
that, the next morning, defendant took him to the place where the
victim’s vehicle was parked after the victim’s death. We thus
conclude that there is a valid line of reasoning and permissible
inferences that could lead a rational person to the conclusion reached
by the jury (see People v Hernandez, 79 AD3d 1683, 1683, lv denied 16
NY3d 895).

     Viewing the evidence in light of the elements of murder in the
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                                                         KA 07-01841

second degree as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Although an acquittal would not have
been unreasonable, it cannot be said that the jury failed to give the
evidence the weight it should be accorded (see generally id.).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial based on prosecutorial misconduct on
summation (see CPL 470.05 [2]; People v Stanley, 108 AD3d 1129, 1131),
and we decline to exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Finally, contrary to defendant’s contention, we conclude that
the evidence, the law and the circumstances of this case, viewed in
totality and as of the time of the representation, establish that he
received meaningful representation (see People v Bergman, 70 AD3d
1494, 1495, lv denied 14 NY3d 885; see generally People v Baldi, 54
NY2d 137, 147).

     All concur except FAHEY and CARNI, JJ., who dissent and vote to
reverse in accordance with the following Memorandum: We respectfully
disagree with the conclusion of our colleagues that we should not
exercise our power, as a matter of discretion in the interest of
justice, to review defendant’s contention that he was deprived of a
fair trial based on prosecutorial misconduct. Upon our review of that
contention (see CPL 470.15 [6] [a]), we conclude that the prosecutor’s
mischaracterization on summation of DNA evidence linking defendant to
the victim’s murder is reversible error. We also conclude that
defendant was denied effective assistance of counsel as a matter of
law based on defense counsel’s failure to object to that prosecutorial
misconduct. We therefore dissent and would reverse the judgment of
conviction and grant a new trial on the first count of the indictment.

     Before we address the incidents of prosecutorial misconduct, it
is first necessary to address the evidence on which those incidents
are based. As the majority notes, the People “presented evidence that
. . . defendant’s DNA could not be excluded from various pieces of
evidence recovered [from the victim’s vehicle].” At trial, the
People’s forensic expert, who analyzed defendant’s DNA sample,
described the two types of DNA testing used in this case—mitochondrial
DNA analysis and YSTR DNA analysis. “[M]itochondrial DNA is not
unique to any one individual[,] [and] everyone in a maternal line will
share the same mitochondrial DNA” (Wes R. Porter, Expert Witnesses:
Criminal Cases, § 8:22). By contrast, YSTR DNA analysis involves only
the Y chromosome, and the genetic testing based on YSTR DNA analysis
produces results only with respect to male individuals. Those more
limited results are a natural consequence of the human genetic
constitution inasmuch as a female inherits an X chromosome from each
parent, whereas a male inherits an X chromosome from his mother and a
Y chromosome from his father (see Forensic DNA Evidence: Science and
the Law, ch 7:1). Absent “mutations, 95% of the genetic information
on the Y chromosome is left unchanged from one generation to the next”
(id.) and, “[b]ecause of [that] conservation, all male relatives from
the same paternal line will have the same genetic information in the
                                 -3-                          1247
                                                         KA 07-01841

non-recombinant region of their Y chromosomes” (id.). YSTR DNA
“testing [thus] produces results that are specific to male individuals
only” (id.).

     The People’s forensic expert acknowledged the two above-mentioned
types of DNA analysis at trial, but she did not speak at length about
a third type of DNA analysis—autosomal, which involves analysis of
non-sex chromosomes and which permits “a statistical expression of the
[DNA] profile’s rarity in certain human populations” (id. at ch 5).
Courts have observed that “ ‘[t]he major difference between autosomal
. . . DNA analysis and [YSTR] DNA analysis is in the interpretation
and application of the test results’ ” (People v Stevey, 209 Cal App
4th 1400, 1413, quoting People v Calleia, 414 NJ Super 125, 145, 997
A2d 1051, 1062-1063, revd on other grounds 206 NJ 274, 20 A3d 402),
and that “[YSTR DNA] testing . . . appears to have limited usefulness
in identifying someone by a DNA match, but it may be useful for
excluding a person” (Moore v Commonwealth, 357 SW3d 470, 491-492
[emphasis added]; see Calleia, 414 NJ Super at 145-147, 997 A2d at
1063-1064). Given its “high probability of identifying an individual
as the DNA source,” autosomal DNA testing “is the preferred method of
analysis” (Calleia, 414 NJ Super at 146, 997 A2d at 1063).

     By way of illustrating the above limitations of YSTR DNA analysis
in the context of this case, we note that the People’s forensic expert
testified on direct examination that YSTR DNA analysis could not
exclude defendant and the victim’s husband as contributors to a sample
collected from the ligature that bound the victim’s hands; that YSTR
DNA analysis of a sperm fraction from the vaginal swab collected from
the victim could not exclude defendant’s accomplice; and that YSTR DNA
analysis could not exclude the victim’s husband, defendant’s
accomplice and defendant as contributors to a sample collected from
the victim’s underwear. Further, on cross-examination, the People’s
forensic expert acknowledged that no typical statistical calculations
are done in YSTR DNA testing, and that the “whole profile” is
“compare[d] . . . to a database . . . to approximate how common or
rare that particular profile might be found in the male population.”
None of the DNA evidence that tied defendant to the victim’s murder
was backed by any statistical calculations.

     Notwithstanding the circumstantial and inconclusive nature of the
above DNA evidence, the People presented it as their strongest proof
linking defendant to the victim’s murder. The People’s remaining
evidence of defendant’s guilt was equally circumstantial, establishing
only that the victim’s body was found in a driveway; that the victim
had been strangled to death with a shoelace; that the victim’s hands
had been bound behind her back with a ligature; and that, the day
before her body was discovered, the victim, who tested positive for
cocaine after her death, had been seen with defendant and codefendant,
two cocaine dealers who were also observed in the victim’s car without
the victim a few hours before the victim’s body was discovered.

     Consequently, during her summation, the prosecutor relied heavily
on the DNA evidence. She began her discussion of that proof by
                                 -4-                          1247
                                                         KA 07-01841

arguing to the jury that defendant and his accomplice “thought that
they had gotten away with murder, but they left their DNA all over the
crime.” After conceding that there was no statistical calculation
available for the DNA results from the vaginal swab, the prosecutor
noted that there had been only two contributors to the sperm fraction
from the swab, which “matched the YSTR/DNA profile of the defendant
and of [defendant’s accomplice].” The prosecutor added that the semen
collected from the victim’s underwear contained a mixture of DNA,
which included contributions from both defendant and his accomplice.

     With respect to the hand ligature, the prosecutor noted that the
People’s analysts were unable to obtain a complete DNA profile from
that evidence, but “at four locations, there was able to be detected
the presence of a Y chromosome . . . [E]very single number that they
were able to determine, and they were able to determine partial
profile matches, is that of [defendant] and [the victim’s husband].”
After noting again that there was no statistical calculation
available, the prosecutor further argued to the jury that, according
to the People’s forensic expert, defendant “could not be excluded as a
contributor to the mixture on the ligature.”

     From there, the prosecutor went further, referring to a chart
listing the YSTR DNA profiles of several different potential matches
and alleging that “the only one who matches the DNA profile on the
ligature is [defendant].” Arguing that such fact was probative and
not coincidental, the prosecutor further claimed that there was “no
reasonable explanation for [defendant’s] DNA on that ligature that
bound [the victim’s] hands.” In closing her discussion of the DNA
evidence, the prosecutor also argued to the jury that defendant’s
“sperm” had been in the victim’s vagina and on the victim’s underwear,
and that his DNA profile was “included on the ligature that bound [the
victim’s] hands together.” Finally, the prosecutor added: “The
defendant’s DNA is inside [the victim], on her underwear, on the
ligature that binds her hands . . . When you put it all together,
members of the jury, it is common sense and there is only one
conclusion that you can reach, and that is guilty.”

     “Reversal based on prosecutorial misconduct is ‘mandated only
when the conduct [complained of] has caused such substantial prejudice
to the defendant that he has been denied due process of law’ ” (People
v Jacobson, 60 AD3d 1326, 1328, lv denied 12 NY3d 916). “In measuring
whether substantial prejudice has occurred, one must look at the
severity and frequency of the conduct, whether the court took
appropriate action to dilute the effect of that conduct, and whether
review of the evidence indicates that without the conduct the same
result would undoubtedly have been reached” (People v Mott, 94 AD2d
415, 419).

     In light of the circumstantial nature of all of the evidence
against defendant, we cannot conclude that the jury would have reached
the same result had not the prosecutor both mischaracterized and
emphasized the DNA evidence on summation, which evidence the People
made the linchpin of their case. Here, the testimony of the People’s
forensic expert put defendant in only a statistically-undefined group
                                 -5-                          1247
                                                         KA 07-01841

of people whose DNA could have been found on the victim’s underwear,
on the ligature, and in the sperm fraction from the vaginal swab. In
other words, that evidence placed defendant in a class of people that
could have contributed to the DNA, but the prosecutor argued to the
jury that the analysis of the DNA established defendant as the DNA’s
contributor. We conclude that the prosecutor’s willful and repeated
mischaracterization of evidence of class as evidence of exactitude was
misconduct that could have “ ‘tip[ped] the scales against defendant’ ”
(People v Elliott, 294 AD2d 870, 870, lv denied 98 NY2d 696). We
cannot conclude that the same result herein “would undoubtedly have
been reached” absent that misconduct (Mott, 94 AD2d at 419).

     We further conclude that, under the circumstances of this case,
defense counsel’s failure to object to the prosecutor’s remarks on
summation deprived defendant of meaningful representation. “A single
error may qualify as ineffective assistance, but only when the error
is sufficiently egregious and prejudicial as to compromise a
defendant’s right to a fair trial” (People v Caban, 5 NY3d 143, 152;
see People v Atkins, 107 AD3d 1465, 1465, lv denied 21 NY3d 1040).
“In order to sustain a claim of ineffective assistance of counsel, a
court must consider whether defense counsel’s actions at trial
constituted egregious and prejudicial error such that defendant did
not receive a fair trial” (People v Oathout, 21 NY3d 127, 131
[internal quotation marks omitted]). Here, we conclude that defense
counsel’s failure to object to the prosecutor’s baseless
transformation of evidence that defendant was in a group or class of
people that could have contributed to the subject DNA samples to
evidence that defendant was the sole possible contributor to those
samples was so egregious and prejudicial that defendant did not
receive a fair trial. In our view, there is no strategic or other
legitimate explanation for that shortcoming (see People v Benevento,
91 NY2d 708, 712), and we conclude that defendant was denied the right
to effective assistance of counsel (see generally People v Baldi, 54
NY2d 137, 147).

     Consequently, for the foregoing reasons, we would reverse the
judgment on the law based on ineffective assistance of counsel. We
would also reverse the judgment as a matter of discretion in the
interest of justice and on the law based on prosecutorial misconduct.
Further, we would grant defendant a new trial on the first count of
the indictment.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
