A closely divided upstate appellate panel has affirmed a cold-case murder conviction despite the objections of two dissenters who argued that the district attorney oversold DNA evidence linking the defendant to the crime.

At issue in the circumstantial case against Howard Wright decided Friday was a prosecutor’s characterization—mischaracterization, according to the dissent—of the DNA proof.

People v. Wright, 07-01841, arose from Monroe County, where a 26-year-old East Rochester woman was raped and murdered in 1995.

More than a decade after the crime, investigators discovered DNA evidence resulting in the arrests of Wright and a co-defendant, Christopher Gifford. Both men were convicted at separate trials of murder, and Gifford was additionally convicted of first-degree rape.

Records show that DNA was collected from a vaginal swab, the victim’s underwear and from the ligature used to bind the victim’s hands.

In her summation, prosecutor Sandra Doorley, who is now the Monroe County district attorney, insisted that Wright and his co-defendant “left their DNA all over the crime” and stated that the defendant’s sperm was inside the victim and on her underwear, and his DNA was on the ligature.

However, the prosecution’s expert had testified that the DNA analysis could not exclude either Wright or the victim’s husband from the evidence collected from the ligature; did not exclude the accomplice from the sperm specimen detected through the vaginal swab; and that neither the defendant, the accomplice nor the husband could be excluded from the DNA on the victim’s underwear.

On appeal, Wright, represented by David Kaplan of Penfield, argued that Doorley had committed prosecutorial misconduct by overstating the DNA link and that his client’s trial lawyer, J. Raymond Brown of Rochester, had been ineffective in failing to challenge her.

A three-judge majority voted to uphold the conviction, declining to reach the unpreserved prosecutorial misconduct issue and concluding that the evidence was legally sufficient to support the jury’s verdict. Justices Nancy Smith (See Profile), Joseph Valentino (See Profile) and Gerald Whalen (See Profile) decided the case in an unsigned memorandum.

Justices Eugene Fahey (See Profile) and Edward Carni (See Profile) dissented.

“The testimony of the People’s forensic expert put defendant in only a statistically-undefined group of people whose DNA could have been found on the victim’s underwear, on the ligature, and in the sperm fraction from the vaginal swab,” the dissenters wrote in a memorandum. “In other words, the evidence placed defendant in a class of people that could have contributed to the DNA, but the prosecutor argued to the jury that the analysis of the DNA established defendant as the DNA’s contributor. We conclude that the prosecutor’s willful and repeated mischaracterization of evidence … was misconduct.”

Fahey and Carni also said that Brown’s failure to object amounted to ineffective assistance.

“We conclude that defense counsel’s failure to object to the prosecutor’s baseless transformation of evidence that defendant was in a group or class or people that could have contributed to the subject DNA samples to evidence that defendant was the sole possible contributor to those samples was so egregious and prejudicial that defendant did not receive a fair trial,” the dissenters said.

Kaplan said he plans to seek leave to the Court of Appeals. Assistant Monroe County District Attorney Geoffrey Kaeuper, who argued the appeal for the prosecution, said, “We agree with the majority.” Brown was not immediately available for comment.

Monroe County Judge Francis Affronti presided over the trial.

Rap Implicated Defendant

Also Friday, the Fourth Department unanimously affirmed the Orleans County murder conviction of a former anti-crime activist. Joyce Powell was convicted 19 years after the 1992 murder, partially on the strength of a rap song she recorded that paralleled the circumstances of the crime.

People v. Powell, 11-01585, turned on the admissibility of a tape which apparently sat on a police station shelf for nearly two decades before someone listened to it and realized that the lyrics described a murder strikingly similar to one that was long unresolved. Powell, who had been a vocal activist in Rochester, seemingly implicates herself in the song.

Powell argued in her appeal that the tape should not have been admitted by Orleans County Judge James Punch because the person rapping was not clearly identified. But the Fourth Department noted that four witnesses identified Powell’s voice and added that other evidence clearly implicated the defendant. The appeal was decided in a memorandum by justices Smith, Valentino, Whalen, Erin Peradotto (See Profile) and Stephen Lindley (See Profile).

Orleans County District Attorney Joseph Cardone argued the appeal. Powell appeared pro se, but assisted by Marcel Lajoy of Albany.

Drugs Caused Fatal Crash

In another homicide case, the court unanimously upheld the Allegany County conviction of a woman who claimed she was distracted by ducks, and not impaired by oxycodone and alprazolam, when she caused an accident that killed an 11-year-old girl.

People v. Drouin, 12-01343, stemmed from an accident on May 17, 2012. Records show that Robin Drouin was driving a pickup truck in Wellsville when she ran into the back of another vehicle.

Drouin admitted to the arresting officer that she had taken prescription drugs prior to the accident. Additionally, she failed a series of standard field sobriety tests, according to the decision.

The Fourth Department unanimously rejected Drouin’s argument that the prosecution had failed to establish that she ingested drugs prior to driving and upheld her convictions before Allegany County Judge Thomas Brown to second-degree vehicular manslaughter and criminally negligent homicide.

On the panel were justices Smith, Peradotto, Lindley, Valentino and Rose Sconiers (See Profile).

Assistant Allegany County District Attorney Michael Finn argued for the prosecution. Joseph Miller of Cuba, Allegany County, appeared for Drouin.