PEOPLE v. MORRIS (2024)

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered May 17, 2016, convicting defendant, after a jury trial, of attempted rape in the first degree and attempted sexual abuse in the first degree, and sentencing him to an aggregate term of 10 years to be followed by 10 years of postrelease supervision, unanimously affirmed.  Order, same court (Daniel P. Conviser, J.), entered on or about June 9, 2022, which denied defendant's CPL 440.10 motion to vacate his conviction, unanimously affirmed.

Judgment, same court (Abraham Clott, J.), rendered March 1, 2017, as amended September 19, 2017 and September 22, 2017, convicting defendant, after a jury trial, of, burglary in the second degree as a sexually motivated felony, criminal sexual act in the third degree, and criminal impersonation in the first degree, and sentencing him to an aggregate term of 16 years to be followed by five years of postrelease supervision, to run consecutively to the sentence imposed on the attempted rape and attempted sexual abuse convictions, unanimously affirmed.

The verdict was based on legally sufficient evidence and 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]).  There is no basis to disturb the jury's credibility determinations.  The fact that the jury acquitted defendant of other charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 561–562, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000]).

The court properly denied defendant's CPL 440.10 motion.  Based on the submissions as well as the testimony at the evidentiary hearing conducted on the motion, we conclude that defendant received effective assistance of counsel under 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];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  At the time of defendant's trial, the use of low copy number (LCN) testing to obtain DNA profiles from small amounts of genetic material and forensic statistical tool (FST) software to calculate likelihood ratios for possible contributors to DNA mixtures was found by almost every court to satisfy the Frye standard (Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]) of having gained general acceptance in the relevant scientific community (see People v. Gonzalez, 155 A.D.3d 507, 65 N.Y.S.3d 142 [1st Dept. 2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018];  People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408 [Sup. Ct., Queens County 2010]).  Thus, defendant's attorney's failure to make a Frye motion was not ineffective, since at the time of the trial, such a challenge would almost certainly have been rejected based on the existing law (see e.g. People v. Nemelc, 161 A.D.3d 615, 617, 78 N.Y.S.3d 35 [1st Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018];  see alsoPeople v. Russell, 216 A.D.3d 1111, 1112–1113, 189 N.Y.S.3d 704 [2d Dept. 2023], lv denied 40 N.Y.3d 999, 197 N.Y.S.3d 103, 219 N.E.3d 864 [2023]).  While the Court of Appeals subsequently held that the trial court decisions finding LCN and FST DNA evidence admissible without a Frye hearing were flawed (People v. Williams, 35 N.Y.3d 24, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020];  People v. Foster–Bey, 35 N.Y.3d 959, 124 N.Y.S.3d 591, 147 N.E.3d 1129 [2020]), “an attorney is not ineffective for failing to anticipate a change in the law” (People v. Lewis, 102 A.D.3d 505, 506, 958 N.Y.S.2d 348 [1st Dept. 2013], affd 23 N.Y.3d 179, 989 N.Y.S.2d 661, 12 N.E.3d 1091 [2014];  People v. Sanchez, 76 A.D.3d 122, 130, 904 N.Y.S.2d 24 [1st Dept. 2010], lv denied 15 N.Y.3d 855, 909 N.Y.S.2d 33, 935 N.E.2d 825 [2010]).  We further find that defendant's other allegations of error by counsel did not constitute ineffective assistance.

The court providently exercised its discretion in denying defendant's request for new counsel (see generally People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]).  The judges who heard defendant's request gave defendant ample opportunity to air his grievances against counsel, which constituted a suitable inquiry given the lack of substance of his complaints, particularly since they were made on the eve of trial (see People v. Colon, 145 A.D.3d 562, 44 N.Y.S.3d 25 [1st Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017];  People v. Agola, 139 A.D.3d 584, 587, 32 N.Y.S.3d 133 [1st Dept. 2016]).

We perceive no basis for reducing the sentences.