Fourth Department – Prejudicial testimony: People v. Moore

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Prejudicial testimony —Waiver of objection

People v. Moore

KA 23-00897

Appealed from Oneida County Court

Background: The defendant appealed from his conviction of burglary, robbery, assault, and criminal use of a firearm. The defendant’s conviction arose from a home invasion burglary and robbery in which he displayed a gun and struck the homeowner in the head with the gun following a struggle. He argues that the court erred in allowing prejudicial testimony by the people’s forensic scientist who compared the defendant’s DNA to a sample taken from the victim’s jacket.

Ruling: The Appellate Division affirmed. The court held that the defendant had failed to object to most of the testimony. The court also held that in the one instance of prejudicial testimony, the defendant consented to the court’s suggestion not to bring the issue to the jury’s attention by striking the objected-to-testimony. Thus, the defendant waived his challenge.

Jonathan Rosenberg, of Rosenberg Law Firm, for the defendant-appellant

Submitted