People v. Kellams

161 A.D.2d 1181, 555 N.Y.S.2d 972, 1990 N.Y. App. Div. LEXIS 9196

Opinions

Judgment affirmed. Memorandum: The court erred in admitting, without proper foundation, defendant’s bloodstained underwear and scientific testimony relating to the underwear (see, People v Julian, 41 NY2d 340, 342; People v Brown, 115 AD2d 610, lv denied 67 NY2d 940; People v Capella, 111 AD2d 179). Proof that defendant committed rape in the first degree and unlawful imprisonment in the first degree, however, was overwhelming. Because there is no significant probability that, absent the error, the jury would have acquitted defendant, the error was harmless (see, People v Crimmins, 36 NY2d 230, 242; People v Brown, supra).

All concur, except Doerr, J., who dissents and votes to reverse and grant a new trial in the following memorandum.