PEOPLE v. WHETSONE

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The PEOPLE of the State of New York, Respondent, v. Felix WHETSONE, Defendant–Appellant.

Decided: February 09, 2016

FRIEDMAN, J.P., ACOSTA, ANDRIAS, SAXE, FEINMAN, JJ. Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for appellant. Felix Whetstone, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.) rendered January 22, 2014, convicting defendant, after a jury trial, of sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ). There is no basis for disturbing the jury's evaluation of expert testimony, which established that the DNA evidence at issue was reliable, and that defendant's DNA was deposited on the victim's clothing during the sexual attack rather than on some hypothetical occasion. In addition, although the victim could not identify defendant, he generally matched the victim's description of her attacker.

Defendant failed to preserve his challenge to the court's charge, and we decline to review it in the interest of justice. As an alternative holding, we find that even assuming the challenged language about two inferences should have been avoided, the charge as a whole, which included thorough instructions on such subjects as the presumption of innocence, the People's burden of proof, reasonable doubt and circumstantial evidence, conveyed the proper standards (see People v. Samuels, 99 N.Y.2d 20, 25 [2002]; People v. Cooper, 233 A.D.2d 267 [1st Dept 1996], lv denied 89 N.Y.2d 984 [1997] ).