PEOPLE v. BECKHAM

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

The PEOPLE, etc., respondent, v. Richard BECKHAM, appellant.

Decided: August 10, 2016

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ. Lynn W.L. Fahey, New York, NY (Melissa S. Horlick of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnette Traill, Roni C. Piplani of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered December 15, 2011, convicting him of attempted predatory sexual assault, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his discovery requests pursuant to CPL 240.40 for material that was not in the possession or control of the People (see People v. Colavito, 87 N.Y.2d 423, 428, 639 N.Y.S.2d 996, 663 N.E.2d 308;  People v. Washington, 86 N.Y.2d 189, 191–192, 630 N.Y.S.2d 693, 654 N.E.2d 967;  People v. Wright, 225 A.D.2d 430, 433, 639 N.Y.S.2d 361).  The Supreme Court also properly granted the People's motion to compel the defendant to submit a buccal swab for DNA testing (see CPL 240.40[2][b][v];  240.90;  People v. Ruffell, 55 A.D.3d 1271, 1272, 864 N.Y.S.2d 347;  People v. Lewis, 44 A.D.3d 422, 422–423, 843 N.Y.S.2d 72).

 The defendant's right to confrontation (see U.S. Const Sixth Amend) was not violated by the testimony of a criminalist employed by the Office of the Chief Medical Examiner of the City of New York.  The 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. Fernandez, 115 A.D.3d 977, 978–979, 982 N.Y.S.2d 174).

 The defendant's contentions that the prosecutor's opening and summation remarks constituted reversible error are, for the most part, unpreserved for appellate review (see CPL 470.05[2];  People v. Morales, 87 A.D.3d 1165, 1166, 930 N.Y.S.2d 454).  In any event, the prosecutor's remarks were either within the bounds of permissible rhetorical comment, responsive to the defendant's summation, or did not constitute reversible error (see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Maldonado, 55 A.D.3d 626, 628, 865 N.Y.S.2d 316;  People v. Williams, 144 A.D.2d 403, 533 N.Y.S.2d 789;  People v. Torres, 121 A.D.2d 663, 664, 503 N.Y.S.2d 659).

 Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's application to strike the complainant's testimony, made after the prosecutor spoke to the complainant during a break in her testimony, regarding the authentication of a recording of a 911 emergency call (see People v. Branch, 83 N.Y.2d 663, 667–668, 612 N.Y.S.2d 365, 634 N.E.2d 966;  People v. Pileggi, 116 A.D.3d 984, 985, 983 N.Y.S.2d 816).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.

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