PEOPLE v. OWOAJE (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered January 24, 2019, convicting him of sexual abuse in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED, that the judgment is affirmed.

Contrary to the defendant's contention, it was within the Supreme Court's discretion to replace an unsworn juror who had been discharged with an unsworn alternate (see CPL 270.35[1];  People v. Browne, 144 AD3d 834, 835;  People v. Sanchez, 123 AD3d 624, 624–625;  People v. Williams, 44 AD3d 326, 326).  The power to excuse an unsworn juror is much broader than the statutorily limited power to discharge a sworn juror (see People v. Sanchez, 123 AD3d at 624;  People v. Velez, 255 A.D.2d 146, 146), and, under the circumstances presented, the court was not required to follow the procedures outlined in CPL 270.15 (see People v. Sanchez, 123 AD3d at 624;  People v. Williams, 44 AD3d at 326).

The defendant's contentions that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated by the admission of two reports concerning DNA analysis performed by the Office of the Chief Medical Examiner of the City of New York, as well as the testimony of a criminalist employed by that office, are without merit.  The criminalist's testimony established that she performed her own independent analysis of the raw data, and did not merely function as a conduit for the conclusions of others (see People v. DeJesus, 248 AD3d 1275, 1275;  People v. Rodriguez, 242 AD3d 1124, 1124;  People v. Pascall, 164 AD3d 1265, 1266).

The Supreme Court did not err in declining to admit a recording of a witness's 911 call as an excited utterance.  The contents of the call were inadmissible hearsay, as there was no evidence that the declarant had personally observed the incident (see People v. Cummings, 31 NY3d 204, 210–212;  People v. Thelismond, 180 AD3d 1076, 1078).

The Supreme Court also did not err in declining to admit into evidence a video recording of the complainant's grand jury testimony for the defendant's claimed purpose of demonstrating that the complainant's demeanor had not changed since her grand jury testimony.  Although People v Robinson (89 N.Y.2d 648) permits the introduction of grand jury testimony in limited circumstances, this case bears little resemblance to the circumstances that led to the holding in Robinson (see People v Cordon, 261 A.D.2d 278, 278).  Moreover, “[t]he exception in Robinson does not apply to introduction of a videotape merely to demonstrate demeanor and, even if it did, such evidence in this case would have been cumulative” since the complainant testified at the trial (id. at 278;  see People v Jin Cheng Lin, 105 AD3d 761, 762).

Contrary to the defendant's contention, the testimony presented by the People established the chain of custody of certain DNA samples (see People v. Davidson, 111 AD3d 848, 848).  In any event, “[g]aps in the chain of custody may be excused when circumstances provide reasonable assurances of the identity and unchanged condition of the evidence,” and “[s]uch gaps go to the weight of the evidence, not its admissibility” (People v. Hawkins, 11 NY3d 484, 494 [citation omitted];  see People v. Davidson, 111 AD3d at 848).

The Supreme Court did not err in declining the defendant's request for missing witness charges, as any testimony provided would have been cumulative and defense counsel was permitted to comment during summation on the People's failure to call the witnesses in question (see People v. Ward, 242 AD3d 775, 777;  People v. James, 224 AD3d 849, 850).

Finally, most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence (see People v. Milburn, 226 AD3d 927, 929;  People v. Bunting, 146 AD3d 794, 795) or were responsive to arguments and theories presented in defense counsel's summation (see People v. Taylor, 159 AD3d 734, 735;  People v. Marcus, 112 AD3d 652, 653).  To the extent that some of the prosecutor's summation comments were improper, including that the defendant was “the unluckiest man in Brooklyn” (see People v. Robles, 174 AD3d 653, 655) and that certain questions asked by defense counsel during cross-examination of the complainant were “nothing more than shaming a 12–year–old,” they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v. Leon, 222 AD3d 778, 778;  People v. Oliver, 193 AD3d 1081, 1083–1084), and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that these errors contributed to the defendant's convictions (see People v. Milburn, 226 AD3d at 929).

Accordingly, we affirm the judgment.

CHAMBERS, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.