Opinion
May 12, 1994
Appeal from the Supreme Court, New York County (Richard C. Failla, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of the crimes charged was proven beyond a reasonable doubt (People v. Bleakley, 69 N.Y.2d 490). Any credibility issues created by the testimony of the defense witnesses were properly placed before the jury and its determinations, not unreasonable, will not be disturbed by this Court (People v. Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734).
Defendant's claim that he was improperly denied exculpatory evidence because the People failed to perform DNA testing is unpreserved by appropriate objection before the trial court (CPL 470.05). In any event, defendant's claim that DNA testing, if performed, would have proved to be exculpatory in nature is purely speculative and, inasmuch as no such testing was conducted, defendant cannot reasonably argue that he was denied exculpatory material (see, People v. Buxton, 189 A.D.2d 996, 997, lv denied 81 N.Y.2d 1011). In these circumstances, the trial court appropriately exercised its discretion in precluding cross-examination of the police chemist as to the absence of a particular chemical test (i.e., DNA testing), while permitting cross-examination regarding the inability of the tests actually performed to connect defendant with the crimes charged, as well as argument thereon in summation. By such ruling, the trial court properly discouraged undue speculation, while keeping the proceedings within the reasonable confines of the issues and encouraging clarity, rather than obscurity in the development of proof (People v. Moulton, 43 N.Y.2d 944, 945).
We have considered defendant's additional arguments and find them to be either unpreserved or without merit.
Concur — Rosenberger, J.P., Wallach, Kupferman, Asch and Kassal, JJ.