People v. Lebron — 87 A.D.3d 1162

Majority

p. 1162

The People of the State of New York, Respondent, v Armando Lebron, Appellant.

[929 NYS2d 877]

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 ,

p. 1163

1221 [2010]) 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 NY2d 417 , 427 [1994]; see People v Parker, 304 AD2d 146 , 159 [2003]; People v Knight, 280 AD2d 937 , 938 [2001]; People v Hall, 266 AD2d 160 , 161 [1999]; People v Vega, 225 AD2d 890 , 893 [1996]).

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 [2005], quoting People v Rivera, 71 NY2d 705 , 709 [1988]). Viewing the record as a whole, we conclude that counsel provided effective representation (see Strickland v Washington, 466 US 668 , 694 [1984]; People v Baldi, 54 NY2d 137 , 146-147 [1981]; People v Monsuri, 83 AD3d 870 [2011], lv denied 17 NY3d 808 [2011]).

The defendant’s remaining contention does not require reversal. Rivera, J.E, Florio, Leventhal and Roman, JJ., concur.

Cases cited

People v. Peele 73 AD3d 1219 N.Y. App. Div. 2010-05-06 p. 1162
People v. Wesley 83 NY2d 417 N.Y. 1994-03-29 at 427 p. 1163
People v. Parker 304 AD2d 146 N.Y. App. Div. 2003-02-07 at 159 p. 1163
People v. Vega 225 AD2d 890 N.Y. App. Div. 1996-03-14 at 893 p. 1163
People v. Caban 5 NY3d 143 N.Y. 2005-06-14 at 152 p. 1163
People v. Rivera 71 NY2d 705 N.Y. 1988-05-31 at 709 p. 1163
Strickland v. Washington 466 US 668 SCOTUS 1984-05-14 at 694 p. 1163
People v. Baldi 54 NY2d 137 N.Y. 1981-10-29 at 146-147 p. 1163
People v. Monsuri 83 AD3d 870 N.Y. App. Div. 2011-04-12 p. 1163