People v. Sharp

Judgment of Supreme Court, New York County (Rose Rubin, J., at jury trial and sentence), rendered June 3, 1987, which convicted defendant of rape in the first degree (Penal Law § 130.35), sodomy in the first degree (Penal Law § 130.50 [1]), robbery in the first degree (Penal Law § 160.15 [3]), robbery in the second degree (Penal Law § 160.10 [2] [a]), and assault in the second degree (Penal Law § 120.05 [2]) and sentenced him, as a second felony offender, to concurrent indeterminate terms of imprisonment of from 8 to 16 years on the rape, sodomy and first degree robbery counts, 5 to 10 years on the second degree robbery count and 3 to 6 years on the assault count, is affirmed.

Although it was error to permit the People’s witness, who had not been qualified as an expert, to give opinion testimony, the error was harmless. (People v Crimmins, 36 NY2d 230, 242.) A Police Department lab technician, not qualified as an *74expert, was permitted to testify that he detected the presence of an antigen for blood type A in vaginal slides of sperm taken from one of the victims, which defendant, as a nonsecretor, could not have produced. It was improper to then permit him to give his opinion that bacteria contamination over the course of four months could have given a false reading or that the reading was the result of actual type A blood, rather than the secretion of a person with that type. This testimony was not within the range of ordinary training or intelligence of the jurors and went beyond the types of conclusions jurors could have reached based upon their own day-to-day experiences, observations or knowledge. (People v Cronin, 60 NY2d 430, 432-433.) As such, it was testimony which should have been given only by an expert, for which this witness was not qualified. However, given the overwhelming direct and circumstantial evidence of defendant’s identification as the perpetrator, the only issue at trial, the error was harmless. (People v Brown, 115 AD2d 610, lv denied 67 NY2d 940; People v De Camp, 138 AD2d 858, 860.) Here, the victim of the rape, as well as her spouse, who was also a victim of defendant’s crimes, knew defendant and permitted him to live in their apartment for approximately one week prior to the crimes. The fact that defendant wore a ski mask, covering only his mouth, ears and upper forehead, does not weaken the victims’ identification. Moreover, one of the victims recognized defendant’s voice and was called by name during the attacks. Additionally, the victims maintained a deadbolt lock on their apartment door and the attacks were committed at a time after defendant had been let inside the apartment to sleep for the night. Investigations after the crimes revealed that there were no signs of forced entry at the door or windows and defendant was not to be found. This circumstantial evidence pointed to defendant as the perpetrator. Under these circumstances, there is little probability that the jury would have acquitted defendant but for admission into evidence of the laboratory technician’s testimony, which error was not of a constitutional dimension. (People v Brown, supra). Concur— Sullivan, Ross, Kassal and Smith, JJ.