PEOPLE v. WEBB (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered May 11, 2015, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him, upon his adjudication as a second violent felony offender, to a determinate term of imprisonment of 24 years.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment from a determinate term of imprisonment of 24 years to a determinate term of imprisonment of 18 years;  as so modified, the judgment is affirmed.

Contrary to the People's contention, the defendant's argument that the Supreme Court violated his First Amendment right to the free exercise of his religion by denying his request to adjourn the proceedings from Thursday until Monday to accommodate his religious beliefs and practices is preserved for appellate review (see CPL 470.05[2];  cf. People v. Cooper, 234 A.D.2d 77, 651 N.Y.S.2d 429).  Under the circumstances of this case, however, the court did not violate the defendant's First Amendment right to the free exercise of religion (see People v. Cooke, 292 A.D.2d 167, 738 N.Y.S.2d 207;  People v. Burnside, 254 A.D.2d 98, 679 N.Y.S.2d 110;  People v. Johnson, 143 A.D.2d 847, 533 N.Y.S.2d 345).

The defendant contends that the Supreme Court violated his Sixth Amendment right to confrontation by admitting the testimony of a criminalist employed by the Office of the Chief Medical Examiner of the City of New York. This contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Fermin, 150 A.D.3d 876, 55 N.Y.S.3d 286;  People v. Castro, 149 A.D.3d 862, 865, 52 N.Y.S.3d 385).  The defense counsel objected to the People's request to admit case files prepared by the Office of the Chief Medical Examiner under the business records exception to the hearsay rule, but did not articulate any objection that the criminalist's testimony violated the Confrontation Clause (see People v. Rios, 102 A.D.3d 473, 961 N.Y.S.2d 14;  People v. Bones, 17 A.D.3d 689, 793 N.Y.S.2d 545).  In any event, the defendant's contention is without merit.  The testifying criminalist performed her own analysis of the DNA profiles, concluded that there was a DNA match, and issued the final report, which was challenged on cross-examination (see People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114;  People v. Castro, 149 A.D.3d 862, 52 N.Y.S.3d 385;  People v. Beckham, 142 A.D.3d 556, 36 N.Y.S.3d 483).

However, the sentence is excessive to the extent indicated herein.

SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.