BORDEN, BRIAN, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1359
KA 10-01601
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRIAN BORDEN, DEFENDANT-APPELLANT.
PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered July 14, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree (three counts), predatory sexual assault (two counts),
attempted rape in the first degree and robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, three counts of criminal sexual
act in the first degree (Penal Law § 130.50 [1]), arising from his
sexual assault of a woman whom he grabbed off the street and dragged
into an alley. We reject defendant’s contention that County Court
erred in denying his motion for a mistrial based on the testimony of a
police detective at trial that defendant asked for an attorney when
questioned by the police. Although that testimony was improper, it is
clear from the record that it was not intentionally elicited by the
prosecutor (cf. People v Morrice, 61 AD3d 1390, 1391). In addition,
the court promptly sustained defense counsel’s objections and gave
appropriate curative instructions. Under the circumstances of this
case, we conclude that the court’s curative instructions were
sufficient to alleviate any prejudice to defendant as a result of the
detective’s unsolicited testimony (see People v Pierre, 37 AD3d 1172,
lv denied 8 NY3d 989; see also People v Nicholas, 286 AD2d 861, 862,
affd 98 NY2d 749; People v Clark, 281 AD2d 947, lv denied 96 NY2d
860).
Defendant’s further contention that he was denied a fair trial
based on the prosecutor’s comment during summation regarding the
failure of defendant to testify is not preserved for our review,
inasmuch as defense counsel requested either a mistrial or a curative
instruction with respect to that comment and made no further objection
-2- 1359
KA 10-01601
when the requested instruction was given. “Under [those]
circumstances, the curative instruction[] must be deemed to have
corrected the error to the defendant’s satisfaction” (People v Heide,
84 NY2d 943, 944).
Finally, we reject defendant’s contention that the court erred in
failing to conduct a Frye hearing concerning the admissibility of the
DNA results obtained through the “AmpFISTR MiniFiler PCR Amplification
Kit for DNA Analysis” (hereafter, MiniFiler test). Prior to trial,
the court held a hearing at which a DNA expert called by the People
testified without contradiction that the MiniFiler test is simply a
more advanced form of traditional polymerase chain reaction/short
tandem repeat testing, which this Court and others have long
recognized as having gained general acceptance in the scientific
community (see People v Fontanez, 278 AD2d 933, 935, lv denied 96 NY2d
862; People v Hall, 266 AD2d 160, lv denied 94 NY2d 901, 948; People v
Hamilton, 255 AD2d 693, 694, lv denied 92 NY2d 1032). In addition,
the court properly determined that defendant’s challenges to the
results of the MiniFiler test went to the weight of that evidence, not
its admissibility (see generally People v Wesley, 83 NY2d 417, 429;
People v Hayes, 33 AD3d 403, 404, lv denied 7 NY3d 902).
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court