PEOPLE v. JOLIVERT (2024)

Judgment, Supreme Court, Bronx County (Robert E. Torres, J., on motion to dismiss;  Michael A. Gross, J., at jury trial and sentencing), rendered June 28, 2018, convicting defendant of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

Defendant's legal insufficiency claim is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The DNA evidence provided overwhelming circumstantial evidence of guilt, and there is no basis for disturbing the jury's credibility determinations as to the parties’ experts (see People v. Whetstone, 136 A.D.3d 476, 26 N.Y.S.3d 5 [1st Dept. 2016], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016]).

Defendant's claims of prosecutorial misconduct, specifically that the prosecutor elicited misleading testimony from the People's DNA expert and overstated the DNA evidence on summation, are concededly unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find that any misconduct was not so egregious as to have deprived defendant of a fair trial.  While there appears to be a contradiction between the expert's testimony and her prior lab reports as to whether male DNA was extracted from the scarf that was used to strangle the victim, any discrepancy was minimally prejudicial, since the evidence would have pertained only to the potential sex, and not the identity, of the perpetrator.  Furthermore, the evidence established that defendant's DNA was recovered from under several of the victim's fingernails.  The prosecutor's comments on summation were fair inferences that may be drawn from the evidence (see People v. Haynes, 172 A.D.2d 242, 567 N.Y.S.2d 736 [1st Dept. 1991], lv denied 78 N.Y.2d 967, 574 N.Y.S.2d 946, 580 N.E.2d 418 [1991]).

Defendant's ineffective assistance claims, based on trial counsel's failure to adequately challenge the DNA evidence, are unreviewable because this Court had denied defendant leave to appeal from the order denying his CPL 440.10 motion raising the same arguments (see People v. Rincon, 62 A.D.3d 574, 575, 879 N.Y.S.2d 424 [1st Dept. 2009], lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009]).  Alternatively, to the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).

Defendant's motion to dismiss the indictment on grounds of preindictment delay was properly denied.  The 22–year delay in the prosecution of this case was not due to bad faith, but the result of the lack of technology required to conduct the necessary DNA analysis at the time of the 1993 murder (see People v. Rolle, 59 A.D.3d 169, 170, 872 N.Y.S.2d 116 [1st Dept. 2009], lv denied 12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082 [2009];  People v. Ortiz, 49 A.D.3d 279, 279, 854 N.Y.S.2d 2 [1st Dept. 2008], lv denied 10 N.Y.3d 868, 860 N.Y.S.2d 494, 890 N.E.2d 257 [2008];  cf.  People v. Regan, 39 N.Y.3d 459, 191 N.Y.S.3d 265, 212 N.E.3d 282 [2023]).  The other relevant factors under (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975]), including the seriousness of the murder charge, militated against dismissal (see People v. Wiggins, 31 N.Y.3d 1, 16, 72 N.Y.S.3d 1, 95 N.E.3d 303 [2018]).

We perceive no basis for reducing the sentence.