PEOPLE v. DYE (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[4] ) and rape in the third degree (§ 130.25[3] ).   The victim was defendant's 12-year-old relative.   We reject the contention of defendant that he was deprived of effective assistance of counsel because defense counsel did not object to the introduction of the DNA evidence at trial.   There was no basis for such an objection because the evidence presented by the People provided “reasonable assurances” that the tested DNA evidence was the same evidence as that collected for the purposes of testing and that the condition of the evidence remained unchanged, nor was there any evidence of tampering (People v. Arthur, 99 A.D.2d 595, 595, 471 N.Y.S.2d 412;  see People v. Julian, 41 N.Y.2d 340, 342-343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  see also People v. Guzman, 272 A.D.2d 883, 709 N.Y.S.2d 715, lv. denied 95 N.Y.2d 866, 715 N.Y.S.2d 220, 738 N.E.2d 368).   We note in addition that defense counsel presented a coherent defense consistent with the claim of defendant that he did not have sexual intercourse with the victim, and we conclude that, viewed in its totality and as of the time of the representation, defense counsel's representation was meaningful (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant further contends that he was denied a fair trial by prosecutorial misconduct.   We conclude that the only instances of alleged prosecutorial misconduct that are preserved for our review “either were fair comment on the evidence or were made in response to ․ defense counsel's arguments” (People v. Thomas, 8 A.D.3d 506, 507, 778 N.Y.S.2d 523, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838), and we decline to exercise our power to review the remaining instances of alleged prosecutorial misconduct as a matter of discretion in the interest of justice (see People v. Bolling, 24 A.D.3d 1195, 807 N.Y.S.2d 765).   Also contrary to defendant's contention, County Court did not commit reversible error in allowing the victim to testify that defendant's nickname was “Bo Peep.”   Because the identification of defendant was a central issue, the victim's familiarity with defendant could properly be demonstrated by her knowledge of his nickname, which is unrelated to criminal activity (cf. People v. Lauderdale, 295 A.D.2d 539, 540, 746 N.Y.S.2d 163;  People v. Santiago, 255 A.D.2d 63, 66, 691 N.Y.S.2d 22, lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 599, 724 N.E.2d 391).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: