The People, etc., respondent, v. Armando Lebron, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Armando Lebron, appellant.

2009–00934 (Ind.No. 207/06)

Decided: September 27, 2011

REINALDO E. RIVERA, J.P. ANITA R. FLORIO JOHN M. LEVENTHAL SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure and Sarah J. Berger of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.

Argued—September 8, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered January 12, 2009, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in admitting into evidence testimony from the People's expert witness regarding the probability of a coincidental match of a partial DNA profile obtained from the victim's fingernails with a DNA profile in the local population is unpreserved for appellate review (see CPL 470.05[2];  People v. Peele, 73 AD3d 1219, 1221) and, in any event, is without merit.   Where, as here, population studies are presented to estimate the probability of a coincidental DNA match, a defendant's challenges to the population studies “go not to admissibility, but to the weight of the evidence, which should be left to the trier of fact” (People v. Wesley, 83 N.Y.2d 417, 427;  see People v. Parker, 304 A.D.2d 146, 159;  People v. Knight, 280 A.D.2d 937, 938;  People v. Hall, 266 A.D.2d 160, 161;  People v. Vega, 225 A.D.2d 890, 893).

The defendant's claim that he was deprived of the effective assistance of counsel under both the Federal and the State constitutions is without merit.   The defendant failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct” (People v. Caban, 5 NY3d 143, 152, quoting People v. Rivera, 71 N.Y.2d 705, 709).   Viewing the record as a whole, we conclude that counsel provided effective representation (see Strickland v. Washington, 466 U.S. 668, 694;  People v. Baldi, 54 N.Y.2d 137, 146–147;  People v. Monsuri, 83 AD3d 870, lv denied 17 NY3d 808).

The defendant's remaining contention does not require reversal.

RIVERA, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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