People v Fuller

Annotate this Case
[*1] People v Fuller 2012 NY Slip Op 51020(U) Decided on June 8, 2012 Essex County Ct Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2012
Essex County Ct

The People of the State of New York,

against

Eric A. Fuller, Defendant.



4399



Kristy L. Sprague, Esq., Essex County District Attorney, (Michael P. Langey, Esq., of counsel), Elizabethtown, New York.

Kindlon Shanks & Associates, (Terence L. Kindlon, Esq. and Gennaro D. Calabrese, Esq., of counsel), Albany, New York, for the defendant.

Richard B. Meyer, J.



Motion by the defendant pursuant to CPL §440.10(1)(g) and (h) to vacate the judgment, rendered May 8, 2003 upon a jury verdict, convicting him, among other crimes[FN1], of rape in the first [*2]degree (Penal Law §130.35[2]) and rape in the third degree (Penal Law §130.25[2]). The defendant maintains that new expert DNA evidence has been discovered which could not have been produced by the defendant at trial with due diligence, and that the judgment was obtained in violation of the defendant's constitutional right to effective assistance of counsel.

A.

To evaluate the defendant's claims, a brief review of DNA[FN2] evidence is necessary. "DNA is the chemical name for the molecule that carries genetic instructions in all living things[, and] . . . consists of two strands that wind around one another to form a shape known as a double helix"[FN3], often described as a "twisted ladder"[FN4]. "Each strand has a backbone made of alternating sugar (deoxyribose) and phosphate groups. Attached to each sugar is one of four bases — adenine (A), cytosine (C), guanine (G), and thymine (T). The two strands are held together by bonds between the bases; adenine bonds with thymine, and cytosine bonds with guanine"[FN5]. Because adenine and thymine only bond to each other, as does cytosine bond only with guanine, knowledge of the sequence of the bases on one strand will automatically reveal the sequence on the companion strand[FN6]. The sequences of the bases "tell the cell how to make a specific protein"[FN7], and it is these proteins that "play a variety of roles in the cell, including structural (cytoskeleton), mechanical (muscle), biochemical (enzymes), and cell signaling (hormones)"[FN8]. However, not all of the base sequences on a DNA molecule function to create proteins, and these sequences are known as "non-coding DNA"[FN9]. "Most non-coding DNA lies between genes on the chromosome and has no known function"[FN10] [*3]

"A chromosome contains a single, long DNA molecule, only a portion of which corresponds to a particular gene"[FN11]. A "gene is the basic physical unit of inheritance . . . passed from parents to offspring and contain[ing] the information needed to specify traits"[FN12]. Human beings have 23 pairs of chromosomes, with half of each pair coming from their mother and the other half from their father[FN13], containing approximately 23,000 genes[FN14]. Twenty-two of the pairs are numbered chromosomes[FN15], and one pair consists of sex chromosomes, X and Y, a female having two X chromosomes and a male having one X and one Y chromosome[FN16]. "These chromosomes, taken together, contain approximately 3.1 billion bases of DNA sequence"[FN17]. "Only one-tenth of a single percent of DNA (about 3 million bases) differs from one person to the next"[FN18], and it is from within these variable bases that thirteen genetic markers[FN19] — "a DNA sequence with a known physical location on a chromosome"[FN20] — have been identified as being the locations ("loci"[FN21]) of non-coding DNA sequences "nationally and internationally recognized as the standard for human identification"[FN22]. The different versions of the non-coding DNA sequences are called "alleles"[FN23].

These genetic markers consist of "short tandem repeat"[FN24] (STR) sections of DNA — "DNA [*4]regions with short repeat units (usually 2-6 bp in length)"[FN25] . "A tandem repeat is a sequence of two or more DNA base pairs that is repeated in such a way that the repeats lie adjacent to each other on the chromosome"[FN26]. "The number of repeats in STR markers can be highly variable among individuals, which make these STRs effective for human identification purposes"[FN27].

An individual's DNA profile is arrived at by counting the number of times a specific sequence of DNA bases is repeated in the alleles at each of the thirteen genetic marker loci from a known sample of that individual's DNA. This is done at the specific locus on each pair of chromosomes, so for each locus there are two numbers, one representing the number of times that the particular base sequence is repeated within the allele on the chromosome obtained from one parent, and a second number from the allele in the paired chromosome contributed by the individual's other parent. The results are then compared to the profile generated from the alleles at the same loci in the DNA specimen taken from the crime scene or the alleged victim. If the number of repeated base sequences at each of the corresponding loci is the same in both the individual's and the crime scene/victim's DNA specimens, the individual "may have contributed the [latter] sample"[FN28]. "[T]he likelihood that any two individuals (except identical twins) will have the same 13-loci DNA profile can be as high as 1 in 1 billion or greater"[FN29]. A DNA profile shows the "unique genetic characteristics belonging to an individual, [and] can provide strong evidence of a person's presence at and participation in a criminal act" (People v. Wesley, 83 NY2d 417, 421, 611 NYS2d 97, 99, 633 NE2d 451, 453[1994]).

B.

At the 2003 trial, the People produced Dr. Russell Gettig (Gettig), a forensic scientist at the New York State Police crime laboratory, as an expert witness. After the People offered Gettig's report into evidence, the defendant's counsel conducted a voir dire in which he questioned Gettig about the existence of "a draft report from which was prepared this final report"[FN30]. The final report, along with two enlargements of the STR DNA profile charts in the report, were thereafter admitted into evidence. The charts list the thirteen genetic marker locations and the results of the DNA testing and analysis of blood samples of the victim and the defendant as well as of the sperm and non-sperm fractions from two areas of the victim's pajama bottoms and from vaginal swabs taken from the [*5]victim. The results are stated as the number of repeated base sequences at each allele. Gettig testified that the results from the blood samples provided by the victim and the defendant establish their respective DNA profiles. He explained that when seminal fluids are involved a "differential extraction" is performed on each biological sample to separate the male sperm from the non-sperm cells, which means that there are two profiles generated from each sample. Gettig also testified[FN31] that "sometimes the separation isn't complete", in which event "we would get a mixture profile because we have both male and female components present".

Using the charts, Gettig told the jury that the STR profiles at every locus of the sperm fractions of both pajama bottoms' specimens were the same as the defendant's STR DNA profile from his blood sample. He also testified that the profile of the non-sperm fractions from the pajama bottoms "matched" that of the victim as "all the alleles are there"[FN32]. Gettig then explained to the jury the results of the DNA analysis of the sperm and non-sperm fractions from the vaginal swabs. The profile of the non-sperm fraction matched the victim's profile. As to the sperm fraction, Gettig testified[FN33]: "The sperm fraction was not a complete separation, so you see more than two alleles. And what it is is a combination of [the victim] and Eric Fuller. And just to indicate, like at this locus, [the victim] is a 14-16, Eric Fuller is a 16-19. In the sperm fraction, we see again a 14-16 from [the victim] a 17-19 from Eric Fuller, and there were no other alleles from anybody else that I could determine.So to summarize then, from the pajama bottoms, the sperm fraction, they match that of Eric Fuller. And in the vaginal swabs, the sperm fraction was a mixture of [the victim] and Eric Fuller."

Finally, Gettig testified on direct examination to having performed a statistical analysis of the probability that the defendant was the source of the DNA from which was generated the STR profiles in the sperm fractions of the two pajama bottoms specimens. The statistical analysis revealed that "the probability of selecting at random an individual with a STR profile identical to that of Eric Fuller was less than 1 in 280 billion"[FN34]. The same statistical probability existed for an individual having the same STR profile as the victim. He concluded his testimony by stating that "we're 99 percent confident that in a population the size of the United States, the probability of finding or the likelihood of finding this profile once, that's the likelihood of just finding it once. So this is with the [*6]knowledge that we have already found it once"[FN35]. No evidence was presented as to the statistical probability that the defendant was the contributor of the male DNA found in the vaginal swab specimens.

The final report received in evidence stated, in relevant part under the section labeled "Conclusions"[FN36]: "The STR DNA mixture profile from the vaginal swabs - sperm fraction . . . is consistent with DNA from [the victim] . . . admixed with DNA from Eric A. Fuller . . ., with [the victim] being the major contributor."

On cross-examination, the defendant's trial counsel was able to get Gettig to admit that he could not say there was a "match" between the defendant's DNA and the male DNA components in the mixture profile from the vaginal swabs. Counsel also established that Gettig's direct testimony of there being a 99 percent probability that only one person out of two hundred eighty billion people would have the same male DNA profile as found in the sperm fraction taken from the victim's pajama bottom did not apply to the male profile from the vaginal swabs. Moreover, Gettig admitted that no proportional ratio or probability analyses were done as to the male DNA in the vaginal swabs mixture profile being that of the defendant.

The defendant's trial attorney further questioned Gettig on his report in evidence, having him compare it with the draft report which was also received into evidence. In the draft report, Gettig's conclusion regarding his analysis of the sperm fraction from the vaginal swab specimens was different than that contained in the final report: "The STR DNA mixture profile from the vaginal swabs - sperm fraction . . . is consistent with DNA from [the victim] . . . admixed with DNA from at least one additional donor, with [the victim] being the major contributor. Eric A. Fuller cannot be excluded as a possible contributor of the DNA to this mixture profile."[FN37]

Gettig explained that the draft report was changed to read as provided in the final report following both a technical review by another analyst and a supervisory review by the assistant director of biological sciences at the laboratory[FN38]. He told the jury, "upon review, we determined that there were [*7]enough alleles there. We have certain criteria to whether we include somebody or say they couldn't be excluded. In this case, there were enough alleles to include that person, so the statement then was modified to state that it was a mixture of [the victim] and Eric Fuller, rather than [the victim] and an additional donor where Eric Fuller could not be excluded"[FN39]. The defendant's trial counsel questioned Gettig extensively regarding the laboratory protocols for determining whether to conclude that a particular DNA profile was a "match" or was "consistent". Gettig conceded that there was no minimum number of loci at which there are the same base sequence repeat results between an individual's STR DNA profile and the evidence STR DNA profile which would justify a conclusion that the profiles matched or were consistent. He testified that "[i]t's really up to the analyst, okay, to look at the data that's generated and from the experience that they have in looking at these profiles, to determine, you know, what is the most conservative way of approaching this, of reporting it"[FN40]. On redirect examination, he also admitted that "[t]he initial report was much more conservative than what we finally ended up with"[FN41].

C.

The defendant's motion is addressed only to Gettig's trial testimony and the conclusion in his final DNA report that "[t]he STR DNA mixture profile from the vaginal swabs - sperm fraction . . . is consistent with DNA from [the victim] . . . admixed with DNA from Eric A. Fuller . . .". The defendant does not challenge the DNA analysis of or conclusions from the two semen stains taken from the victim's pajama bottoms that "[t]he STR DNA profile from the pajama bottoms - sperm fractions . . . matches the STR DNA profile from Eric A. Fuller", apparently because the defendant admitted to ejaculating on the victim's pajama bottoms, though he denied having intercourse with her (People v. Fuller, 50 AD3d 1171, 1172-1173, 854 NYS2d 594, 597, lv. to appeal denied 11 NY3d 788, 866 NYS2d 614, 896 NE2d 100 [2008]). In upholding the defendant's convictions on the rape charges despite the victim's inability to testify to penetration, the court determined that there was legally sufficient evidence at trial of penetration consisting of the testimony of a sexual assault nurse regarding the presence of sperm or seminal fluid in the vaginal pool, the victim's testimony "that she had not had sexual intercourse within the 72 hours prior to the incident", and Gettig's testimony (id., at 1173-1174, 854 NYS2d at 598).

The defendant challenges Gettig's conclusions from his DNA analysis of the sperm fraction of the vaginal swabs. The defendant now contends that new evidence, in the nature of expert opinion, would have established that both Gettig's report of the DNA analysis performed on the vaginal swab specimens and his trial testimony thereon were "incomplete" and "misleading". [*8]Specifically, this new expert evidence[FN42] would establish that: (1) the DNA profile from the vaginal swabs sperm fraction was only from a "partial STR DNA mixture profile"; (2) because only some, not all, of thirteen STR loci contained alleles that could have originated from the defendant, there was insufficient DNA evidence to identify the defendant as "the source of the non-victim DNA in the mixture profile"; and (3) the victim's DNA would have masked the defendant's DNA at three STR loci. The defendant's ineffective assistance of counsel claim rests upon his trial counsel's failure to retain a DNA expert and present the foregoing evidence at trial since the only evidence substantiating the element of penetration for the rape conviction was the presence of the defendant's DNA from the vaginal swabs sperm fraction.

As no papers opposing the defendant motion[FN43] were filed, a hearing was held on September 28, 2011 at which Gettig, the defendant, and the defendant's expert, Stephen F. Swinton, Jr. (Swinton), testified. Swinton was the supervisor of DNA services employed by the New York State Police crime laboratory at the time the DNA analyses in this case were performed. Further submissions were thereafter filed, consisting of the crime laboratory's Serology and DNA Technical Manual, and a supplemental affirmation of defendant's counsel regarding the defendant's petition for a writ of habeas corpus pending in the United States District Court for the Northern District of New York[FN44].

According to Swinton's testimony at the September 28, 2011 hearing, Gettig's final report was incorrect and "incomplete because it doesn't designate whether it's a partial or full STR DNA profile"[FN45]. "If that sperm fraction profile [from the vaginal swabs] is a full DNA profile of all the [*9]contributors, Fuller is excluded . . . because there are alleles from Fuller that don't appear in that profile"[FN46]. However, Swinton would have agreed with the now contested conclusion in Gettig's final report if it had been worded to state that "it was a partial STR DNA mixture profile"[FN47] (italics added). This was reiterated by Swinton upon further questioning[FN48]: "THE COURT:So let me just see if I got this straight. If that part of the report had stated that the STR DNA partial mixture profile - - is that what you would have said?THE WITNESS:That is was a partial STR DNA mixture profile.THE COURT:You wouldn't have had any problem saying it was consistent with DNA from [the victim] and added DNA from Mr. Fuller, with [the victim] being the major contributor?THE WITNESS:I would have been okay with that statement."

Swinton also testified that he saw nothing in Gettig's actual analysis and the results which indicated that Gettig did not follow the laboratory protocols[FN49].

D.

"To justify vacatur under CPL 440.10(1)(g), the newly discovered evidence must fulfill all the following requirements: 1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence' (People v. Priori, 164 NY 459, 472, 58 NE 668 [1900]; see People v. Tucker, 40 AD3d at 1214-1215, 834 NYS2d 590; People v. Richards, 266 AD2d 714, 715, 698 NYS2d 785 [1999], lv. denied 94 NY2d 924, 708 NYS2d 364, 729 NE2d 1163 [2000])" (People v. Lackey, 48 AD3d 982, 983, 853 NYS2d 668, 669 [2008], lv. to appeal denied 10 NY3d 936, 862 NYS2d 342, 892 NE2d 408). The defendant, who has "the burden of proving by a preponderance of the evidence every fact essential to support the motion" (CPL §440.30[6]), has failed to establish that the first three requirements have been met. [*10]

From the exhibits in evidence, particularly Gettig's draft and final reports and the charts of the STR DNA profiles, it is clear that there was not a full STR DNA profile of the vaginal swabs sperm fraction. The cross-examination of Gettig by the defendant's trial counsel revealed that the STR DNA profile from that sperm fraction did not contain all of the alleles of the defendant at all of the loci. Rather, the alleles were consistent at only six of the thirteen loci, with three other loci having alleles that could have been from either the victim or the defendant. No evidence was adduced at trial to the effect that the STR DNA profile from the sperm fraction taken from the vaginal swabs was a "full" profile[FN50]. Swinton's testimony — "if that was not remedied before the jury I think that causes prejudice because it necessarily, I think, implies that it's a complete DNA profile, which it cannot be if Eric Fuller is a contributor"[FN51] — is speculative only. Even Swinton himself acknowledged that "[t]o me it looks like a partial"[FN52], "[i]t appears to be a partial mixture profile"[FN53], someone with DNA experience would recognize it as a partial profile[FN54], and there was nothing in the report which indicated that it was a "full" profile[FN55]. Notably, Swinton admitted that there were no alleles present at all thirteen genetic marker locations that could not be attributed to either the victim or the defendant, a fact "consistent with being a partial mixture profile of at least two people" who could be the victim and the defendant[FN56]. And if it was a partial profile from the vaginal swab sperm fraction, Swinton agreed that the defendant could not be "excluded as the donor of that DNA"[FN57]. Lastly, Swinton admitted that the alleles at nine out of the thirteen genetic markers from the vaginal swab sperm fraction were consistent with those of the defendant's DNA profile such that "he would be included as a potential contributor"[FN58]. Clearly then, this aspect of the defendant's challenge to Gettig's report and testimony is more semantic than substantive; a distinction without any probative difference or value.

Similarly conjectural was Swinton's assertion that a DNA expert retained by the defendant for trial could have calculated the statistical "likelihood that you would see this particular piece of evidence, this mixed DNA profile if the contributors were [the victim] and Fuller versus the [*11]likelihood that you would see it if it was [the victim] and someone else"[FN59]. This is so because Swinton did not provide a statistical analysis, stating that although he was capable of such he did not perform one because he was not asked to do so[FN60], and no statistical evidence was proffered by the defendant on the motion. Significantly, Swinton testified that if it was established that the defendant was the only male with access to the victim during the time period in question, the issues now raised about the DNA evidence at trial "to some extent . . . doesn't matter"[FN61].

As a result, the defendant has not met his burden of proving by a preponderance of the evidence that Swinton's evidence "will probably change the result if a new trial is granted". The defendant also did not meet his burden of proving that this evidence was discovered only after the trial occurred and that it could have not been earlier discovered with due diligence. No evidence was provided at the hearing tending to establish either of those requirements.

E.

"The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. * * * Indeed, the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution's case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 US 45, 68-69, 53 SCt 55, 77 LEd2d 158 (1932)" (Martinez v. Ryan, ___ US ___, 132 SCt 1309, 1317, ___ LEd2d ___ [March 20, 2012]).

A defendant's right to the effective assistance of counsel is guaranteed by both the United States and New York constitutions (US Const. Amend. VI; NY Const., art. I, §6). The standards by which counsel's performance is judged under federal and state law are only similar, not identical. For a defendant to prevail on a claim of ineffective assistance of counsel under Federal law, a defendant must show not only that counsel failed to provide "meaningful representation" (see Strickland v. Washington, 466 US 668, 104 SCt 2052, 80 LEd2d 674) but also that counsel's failure resulted in prejudice to the defendant's case (see People v. McDonald, 1 NY3d 109, 769 NYS2d 781, 802 NE2d 131). " The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id., at 694, 104 SCt 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Ibid. That requires a substantial,' not just conceivable,' likelihood of a different result. Richter, 562 US, at ___, 131 SCt, at 791." (Cullen v. Pinholster, 563 US ___, 131 SCt 1388, 1403, 179 LE2d 557 [2011]). [*12]

New York law is not so stringent. Rather, "[o]ur state standard of meaningful representation, by contrast, does not require a defendant to fully satisfy the prejudice test of Strickland,' although we continue to regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation' (Stultz, 2 NY3d at 284, 778 NYS2d 431, 810 NE2d 883), whose prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case' (Benevento, 91 NY2d at 714, 674 NYS2d 629, 697 NE2d 584). Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial" (People v. Caban, 5 NY3d 143, 155-156, 800 NYS2d 70, 79, 833 NE2d 213, 22 [2005]).

In determining whether counsel provided meaningful representation, "courts use a flexible approach in reviewing the totality of the circumstances, evidence and law as of the time of representation (see People v. Henry, 95 NY2d 563, 565-566, 721 NYS2d 577, 744 NE2d 112 [2000]) " (People v. Demetsenare, 14 AD3d 792, 794, 787 NYS2d 515, 517; see also People v. Hobot, 84 NY2d 1021, 1022, 622 NYS2d 675, 676 , 646 NE2d 1102, 1103). "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (People v. Baldi, 54 NY2d 137, 147, 444 NYS2d 893, 429 NE2d 400). In People v. Benevento, supra at 712-713, 674 NYS2d at 632, 697 NE2d at 58 [1998]), the New York Court of Appeals held: "[C]ounsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective (see, People v. Satterfield, 66 NY2d, at 799, 497 NYS2d 903, 488 NE2d 834). The Constitution guarantees the accused a fair trial, not necessarily a perfect one (see, People v. Flores, 84 NY2d 184, 187, 615 NYS2d 662, 639 NE2d 19; People v. Ford, 86 NY2d 397, 404, 633 NYS2d 270, 657 NE2d 265 [quotation omitted]; People v. Aiken, 45 NY2d 394, 398, 408 NYS2d 444, 380 NE2d 272 [quotation omitted]; People v. Modica, 64 NY2d 828, 486 NYS2d 931, 476 NE2d 330 [quotation omitted]). That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when disappointed prisoners try their former lawyers on charges of incompetent representation' (People v. Brown, 7 NY2d 359, 361, 197 NYS2d 705, 165 NE2d 557).Accordingly, a reviewing court must avoid confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis' (People v. Baldi, 54 NY2d, at 146, 444 NYS2d 893, 429 NE2d 400). Rather, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings (People v. Rivera, 71 NY2d, at 709, 530 NYS2d 52, 525 NE2d 698; compare, People v. Flores, 84 NY2d 184, 615 NYS2d 662, 639 NE2d 19, supra with People v. Bennett, 29 NY2d 462, 465, 329 NYS2d 801, 280 NE2d 637, supra; People v. Droz, 39 NY2d 457, 463, 384 NYS2d 404, 348 NE2d [*13]880; People v. Gonzalez, 47 NY2d 606, 611, 419 NYS2d 913, 393 NE2d 987). Counsel's performance should be objectively evaluated' (People v. Angelakos, 70 NY2d 670, 673, 518 NYS2d 784, 512 NE2d 305) to determine whether it was consistent with strategic decisions of a reasonably competent attorney' (People v. Satterfield, 66 NY2d 796, 799, 497 NYS2d 903, 488 NE2d 834, supra; People v. Angelakos, 70 NY2d 670, 673, 518 NYS2d 784, 512 NE2d 305, supra). As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance (see, e.g., People v. Lane, 60 NY2d 748, 750, 469 NYS2d 663, 457 NE2d 769). As we have stated,

[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice' (People v. Flores, 84 NY2d 184, 187, 615 NYS2d 662, 639 NE2d 19, supra)."

Ineffective assistance of counsel is not established by mere dissatisfaction with tactics and strategy, even losing ones (see People v. Baldi, supra, 54 NY2d at 146, 444 NYS2d at 898, 429 NE2d at 405; People v. Sutterfield, 66 NY2d 796, 497 NYS2d 903, 488 NE2d 834; People -v- Williams, 305 AD2d 804, 759 NYS2d 580), or by the failure to "make a motion or argument that has little or no chance of success" (People v. Stultz, 2 NY3d 277, 287, 778 NYS2d 431, 438, 810 NE2d 883, 890).

Here, the defendant has failed to establish that his trial counsel's performance did not constitute meaningful representation under either federal or state law standards. The evidence at trial was that the defendant was the only male who had access to the victim, it was uncontroverted that his semen was on the victim's pajama bottoms, and the DNA analysis of the vaginal swabs sperm fraction showed that all of the alleles present at the thirteen genetic marker locations could be attributed to either the victim or the defendant and the alleles at nine out of the thirteen genetic markers were consistent with those of the defendant's DNA profile. Moreover, as Swinton acknowledged, any questions about Gettig's testimony that the STR DNA mixture profile of the vaginal swabs sperm fraction was consistent with the DNA from the victim mixed with that of the defendant "to some extent" did not matter because of the trial evidence that the defendant was the only male with access to the victim. Under these circumstances, no "substantial" likelihood of a different result has been shown had Swinton's testimony been produced before the trial jury, nor did the defendant establish that he was deprived of a fair trial because such evidence was not produced at trial. "Although there are cases in which a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive a defendant of his constitutional right[,] . . . [s]uch cases are rare' (People v. Turner, 5 NY3d 476, 480, 806 NYS2d 154, 840 NE2d 123 [2005]). Indeed, these cases have involved issues that are clear-cut' and dispositive' (id. at 481, 806 NYS2d 154, 840 NE2d 123)" (People v. Keating, 18 NY3d 932, 934, ___ NYS2d ___, ___ NE2d ___ [2012 WL 952110] [2012]). This is not such a case.

Finally, the adequacy of trial counsel's performance relative to the DNA evidence and his [*14]failure to retain an expert to testify at trial was already addressed in the 2007 appeal from the jury verdict. In the brief submitted on appeal by the defendant's appellate counsel, the defendant asserted that trial counsel was ineffective for failing "to call an expert witness regarding DNA matters"[FN62] and "to subpoena records from the prosecution's expert DNA witness"[FN63], and that "[i]t cannot reasonably be said that the failure to introduce expert witnesses in this situation was part of a coherent, legitimate, and/or thoughtful trial strategy"[FN64]. Furthermore, appellant counsel charged that "[i]nstead of hiring an expert or even attempting to consult with an expert, Trial Counsel ineffectively cross-examined Dr. Gettig, and his failure to grasp and learn the science behind the DNA analysis was inexcusable". It was also argued that "with respect to the vaginal swab issue, Trial Counsel offered no theory or explanation or attempted to diffuse how Mr. Fuller's DNA may have been contained on a vaginal swab of [the victim]"[FN65]. The Appellate Division rejected all of the defendant's ineffective assistance of counsel claims, holding: "Nor do we agree with defendant's assertion that he was denied the effective assistance of counsel. The majority of defendant's claims of ineffectiveness represent hindsight disagreement with the trial strategies and tactics employed by counsel which, upon this record, do not equate to true ineffective assistance. Faced with substantial testimonial and physical evidence against defendant, counsel placed a cogent theory before the jury, thoroughly cross-examined the People's witnesses, attempted to challenge the forensic evidence and credibility of Gettig's expert DNA report, called numerous rebuttal witnesses, voiced proper objections and made appropriate pretrial and posttrial motions. While this seasoned attorney's performance may have been imperfect, we reiterate that meaningful representation does not mean representation free of error in every respect and, considering counsel's strategies and alleged errors either alone or in the aggregate, we find them to be insufficient to constitute a deprivation of meaningful representation." (People v. Fuller, 50 AD3d 1171, 1176-1177, 854 NYS2d 594, 600-601 [2008] [internal citations omitted]).

For all of the foregoing reasons, the defendant's motion must be, and hereby is, denied in all respects.

It is so ordered.

ENTER

____________________________________ [*15]

Richard B. Meyer, J.C.C. Footnotes

Footnote 1:The charges arose out of incidents occurring on May 18, 2002 when the defendant, after providing alcoholic beverages to his underage daughter and her friends, engaged in sexual conduct with two different victims, each then fifteen years old. In addition to the two rape charges, the defendant was also convicted of the crimes of two counts of sexual abuse in the first degree (Penal Law §130.65[2]), one count of forcible touching (Penal Law §130.52), three counts of unlawfully dealing with a child in the first degree(Penal Law §260.20[1]), and four counts of endangering the welfare of a child (Penal Law §260.10[1]). On appeal (People v. Fuller, 50 AD3d 1171, 854 NYS2d 594, leave to appeal denied 11 NY3d 788, 866 NYS2d 614, 896 NE2d 100), the conviction for one count of sexual abuse in the first degree was reduced to sexual abuse in the third degree (Penal Law §130.55).

Footnote 2:Deoxyribonucleic acid.

Footnote 3:http://www.genome.gov/Glossary/index.cfm?id=48

Footnote 4:http://www.genome.gov/Glossary/index.cfm?id=53

Footnote 5: http://www.genome.gov/Glossary/index.cfm?id=48. The "rungs" of the ladder consist of the bonded bases.

Footnote 6:As an example, if the sequences of the bases on one strand are A-T-T-C-G-A, the sequence on the other strand bonded to it must be T-A-A-G-C-T since neither adenine nor thymine ever bond with cytosine or guanine.

Footnote 7:http://www.genome.gov/Glossary/index.cfm?id=78. Proteins are made up of one or more chains of amino acids and the sequences of bases determine which amino acids are produced by the cell to form a particular protein. (http://www.genome.gov/Glossary/index.cfm?id=51)

Footnote 8:http://www.genome.gov/Glossary/index.cfm?id=169

Footnote 9:http://www.genome.gov/Glossary/index.cfm?id=137

Footnote 10:id.

Footnote 11:http://www.genome.gov/Glossary/index.cfm?id=70

Footnote 12:id.

Footnote 13:http://www.genome.gov/Glossary/index.cfm?id=33

Footnote 14:http://www.genome.gov/Glossary/index.cfm?id=70

Footnote 15:Numbered chromosomes are called "autosomes"(http://www.genome.gov/Glossary/index.cfm?id=13)

Footnote 16:http://www.genome.gov/Glossary/index.cfm?id=181

Footnote 17:http://www.genome.gov/Glossary/index.cfm?id=90

Footnote 18:http://www.dna.gov/basics/

Footnote 19:http://www.cstl.nist.gov/biotech/strbase/

Footnote 20:http://www.genome.gov/Glossary/index.cfm?id=86

Footnote 21:http://www.genome.gov/Glossary/index.cfm?id=116

Footnote 22:http://www.forensicdnacenter.com/dna-str.html

Footnote 23:http://www.genome.gov/Glossary/index.cfm?id=4. "An allele is one of two or more versions of a gene" or of a "variation among non-coding DNA sequences" (id.).

Footnote 24: http://www.forensicdnacenter.com/dna-str.html

Footnote 25:http://www.forensicdnacenter.com/dna-str.html

Footnote 26:http://www.genome.gov/Glossary/index.cfm?id=193

Footnote 27:http://www.forensicdnacenter.com/dna-str.html

Footnote 28:http://www.dna.gov/basics/

Footnote 29:http://www.dna.gov/basics/analysis/str

Footnote 30:Trial transcript: page 715, lines 11-24.

Footnote 31:Trial transcript: page 721, lines 1-4.

Footnote 32:Trial transcript: page 721, lines 5-20.

Footnote 33:Trial transcript: page 721, line 24 through page 722, line 10.

Footnote 34:Trial transcript: page 724, lines 2-23.

Footnote 35:Trial transcript: page 725, lines 6-11.

Footnote 36:Defendant's exhibit A at the September 29, 2011 hearing.

Footnote 37:Defendant's exhibit B at the September 29, 2011 hearing.

Footnote 38:The assistant director of biological sciences, Julie Pizziketti, was not only Gettig's supervisor but the supervisor of the defendant's expert, Stephen F. Swinton, Jr., when Swinton worked at the laboratory (Hearing transcript: page 71, line 23, through page 72, line 12).

Footnote 39:Trial transcript: page 732, line 19 through page 733, line 1.

Footnote 40:Trial transcript: page 735, lines 1-5.

Footnote 41:Trial transcript: page 735, lines 14-15.

Footnote 42:Swinton affidavit (Exhibit D to motion), at ¶7-¶10.

Footnote 43:The defendant's motion papers consist of a notice of motion and an affirmation of Terence L. Kindlon, Esq., both dated June 23, 2011, with the following exhibits: Exhibit A — copy of indictment filed July 2, 2002 with portions of trial transcript; Exhibit B — affidavit of Steven Rytina sworn to November 4, 2010; Exhibit C — affidavit of Eric A. Fuller sworn to October 29, 2010; and Exhibit D — affidavit of Stephen F. Swinton, Jr. sworn to November 2, 2010 with exhibits A (curriculum vitae), B (October 5, 2002 DNA report by Gettig), and C (selected electropherograms of DNA evidence).

Footnote 44:Affirmation of Gennaro D. Calabrese, Esq. dated September 30, 2011 with the following exhibits: Exhibit A — the defendant's Federal petition dated November 5, 2010; Exhibit B — motion to dismiss filed by the New York State Attorney General's Office; Exhibit C — Order dated January 25, 2011 by the Hon. Thomas J. McAvoy, Senior U.S.D.J., granting motion in part and denying in part; Exhibit D — motion by defendant filed in April 2011 to stay Federal petition pending resolution of a contemplated motion to this Court under CPL §440.10; and Exhibit E — Order dated June 8, 2011 by the Hon. Thomas J. McAvoy, Senior U.S.D.J., granting motion for stay.

Footnote 45:Hearing transcript: page 38, lines 8-15.

Footnote 46:Hearing transcript: page 38, lines 18-23.

Footnote 47:Hearing transcript: page 35, lines 8-9.

Footnote 48:Hearing transcript: page 35, line 18, through page 36, line 4. See also, page 51, lines 13-19.

Footnote 49:Hearing transcript: page 51, lines 15-20.

Footnote 50:Hearing transcript: page 70, line 23, through page 71, line 8.

Footnote 51:Hearing transcript: page 41, lines 10-14.

Footnote 52:Hearing transcript: page 54, line 24.

Footnote 53:Hearing transcript: page 55, line 6.

Footnote 54:Hearing transcript: page 56, lines 7-13.

Footnote 55:Hearing transcript: page 56, lines 4-6.

Footnote 56:Hearing transcript: page 64, line 22, through page 65, line 3.

Footnote 57:Hearing transcript: page75, line 24, through page 76, line 7.

Footnote 58:Hearing transcript: page 78, line 25, through page 79, line 20.

Footnote 59:Hearing transcript: page 43, line 23, through page 44, line 2.

Footnote 60:Hearing transcript: page 65, lines 10-24.

Footnote 61:Hearing transcript: page 81, lines 7-13. Swinton was unaware of the trial evidence establishing that the only male with access to the victim was the defendant (lines 15-20).

Footnote 62:Appellant's brief dated July 20, 2007, page 42.

Footnote 63:Appellant's brief dated July 20, 2007, page 43.

Footnote 64:Appellant's brief dated July 20, 2007, page 49.

Footnote 65:Appellant's brief dated July 20, 2007, page 51.



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