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Marta E. Nelson, for appellant.
Robert L. Moore, for respondent.
MEMORANDUM:
The order of the Appellate Division should
be affirmed.
Following a jury trial, defendant was
convicted of rape in the first degree. The evidence was that on June
27, 1990, late at night, the complainant, who knew the 60-year old defendant,
went to his apartment to help him with some homework. After the
assistance, when she attempted to leave, defendant forced her to engage
in sexual intercourse. Defendant was arrested at the apartment after
a neighbor, observing a portion of the attack through a window, reported
a possible rape to the police and they arrived while the complainant
was still in the apartment. Subsequent testing revealed sperm in
the vagina of the complainant but an insufficient quantity to permit DNA
testing.
At trial, the complainant testified to forcible
penetration. She did not testify, however, that the defendant had ejaculated.
Defendant testified that there was consensual oral sex but no
intercourse.
Under the facts of this case, we reject the
defendant's contention of a violation of the due process clauses of the
Federal and State Constitutions (U.S. Const. Amend. XIV, N.Y.
Const. Art. I, Section 6) by the failure of the prosecution to gather
and adequately preserve a sample of semen sufficient for DNA testing.
We further reject defendant's contention that a
hearing was required regarding these issues or that the trial court
erred in precluding cross-examination with respect to the People's failure
to perform DNA testing.
In this case, identification was never an
issue and the People did not offer any DNA evidence on their case.
Defendant has not shown that the potential evidence was material, that
is, that the sample possesses an exculpatory value evident before its destruction,
loss, or failure to preserve, and that defendant was unable to obtain comparable
evidence by reasonable means (see, California v Trombetta, 467 US
479, 489; People v Alvarez, 70 NY2d 375). The defendant has thus
failed to demonstrate any error in the decisions reached by the trial court.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided July 9, 1996