THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DONALD GLASS, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
55 NYS3d 469
Devine, J.
We affirm. Defendant begins by arguing that the verdict was against the weight of the evidence. Inasmuch as acquittal was a reasonable possibility, we are obliged to conduct a weight of the evidence review in which we “weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” in order to “decide[ ] whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 348 [2007]; accord People v Kancharla, 23 NY3d 294, 303 [2014]). Defendant does not dispute that the attack itself occurred and that the assailant forced his penis into the victim’s mouth, then endeavored to vaginally and anally rape her. He instead argues that the findings that he was the assailant and accomplished the act of rape in the first degree were not supported by the credible proof.
With regard to the question of identity, the victim did not know her attacker. The victim identified defendant as the attacker at trial but, as defendant points out, there was some reason to question that identification. During the investigation, the victim was shown numerous photographs of men who matched her description of the attacker, including one of a man who was not defendant that she thought resembled her attacker. That being said, when investigators eventually spoke to defendant, he admitted that he was “always down” near where the attack occurred and did not remember much of what he did in the summer of 2010 due to his alcohol consumption. Defendant also gave a DNA sample and, while there was not a conclusive match between his DNA and genetic evidence recovered in the aftermath of the attack, testing pointed to him as a potential contributor to the recovered genetic material. For example, the male DNA found in samples taken from a hat left at the scene by the attacker and from the victim’s mouth
With regard to the issue of penetration, defendant was charged with committing first degree rape by “engag[ing] in sexual intercourse with another person . . . [b]y forcible compulsion” (
Defendant also asserts that defense counsel was ineffective at trial. Defendant frequented a rescue shelter near the scene of the crime and complains that the shelter records, which were stipulated into evidence subject to redaction, were not sufficiently redacted to remove references to his bad behavior at the shelter. Inasmuch as defense counsel “succeeded in achieving certain redactions” and a proper limiting instruction was given to the jury, we are unpersuaded that “defense counsel provided less than meaningful representation with respect to the” records (People v Santiago, 22 NY3d 740, 750 [2014]; see People v Thomas, 53 AD3d 1099, 1100 [2008], lv denied 11 NY3d 795 [2008]). Likewise, while defendant’s identity was at issue, County Court instructed the jury that
Defense counsel was also not ineffective in failing to object to the allegedly improper characterization of DNA evidence made in the People’s summation. As noted above, DNA evidence pointed to, but did not establish, defendant as the perpetrator. The People’s summation, while largely appropriate in dealing with the import of the DNA evidence, did overstate that defendant’s “DNA [was] on the evidence” and that the isolated male DNA belonged to defendant “or his identical twin.” The problematic comments, however, were made in response to criticisms offered by the defense in summation that the isolated male DNA recovered was never compared to the DNA of another potential suspect. The People argued that the comparison was not necessary because other markers on his DNA ruled the potential suspect out as a contributor, and the objectionable comments referred to the trial testimony of a forensic scientist on that issue. Accordingly, even if the People’s comments “exceeded what would be considered to be a fair response to defense counsel’s closing argument or fair comment on the evidence,” the context in which they were made establishes that they “did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process” (People v Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]; see People v Collier, 146 AD3d 1146, 1151 [2017]; cf. People v Wright, 25 NY3d 769, 780-785 [2015]; People v Rozier, 143 AD3d 1258, 1260 [2016]). Nothing in the foregoing shows ineffective assistance and, after reviewing counsel’s performance in its totality and at the time of the representation, we are satisfied that defendant received meaningful representation (see People v Clark, 28 NY3d 556, 562-563 [2016]; People v Ackerman, 141 AD3d 948, 950 [2016], lv denied 28 NY3d 1181 [2017]).
Defendant contends that he was deprived of a fair trial due to the purported mistakes that undergird his ineffective assistance claim, but that argument is both unpreserved and without merit (see People v Collier, 146 AD3d at 1151). Lastly, defendant has not accepted any responsibility for the abhorrent acts he was convicted of committing, acts that represent only the latest episode in a deplorable criminal career dating back 40 years, and we do not view the aggregate sentence imposed to be harsh or excessive (see People v Blackman, 90 AD3d 1304, 1310-1311 [2011], lv denied 19 NY3d 971 [2012];
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.