People v. Austin

• Citation: 64 N.Y.S.3d 650,86 N.E.3d 542,30 N.Y.3d 98
• Parties: The PEOPLE of the State of New York, Respondent, v. Peter AUSTIN, Appellant.
• Decision Date: 19 October 2017
• Court: New York Court of Appeals Court of Appeals

30 N.Y.3d 98
86 N.E.3d 542
64 N.Y.S.3d 650

The PEOPLE of the State of New York, Respondent,
v.
Peter AUSTIN, Appellant.

Court of Appeals of New York.

Oct. 19, 2017.

64 N.Y.S.3d 651

Robert S. Dean, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Matthew White, Marianne Stracquadanio, Nancy Killian and Rafael Curbelo of counsel), for respondent.

OPINION OF THE COURT

Chief Judge DiFIORE.

86 N.E.3d 543

30 N.Y.3d 100

The issue presented by this appeal is whether defendant's Sixth Amendment right to confrontation was violated by the introduction of DNA evidence through the testimony of a witness who had not performed, witnessed or supervised the generation of the DNA profiles. We conclude that the introduction of this hearsay evidence through surrogate testimony in order to prove an essential fact for a finding of guilt—that defendant was the perpetrator of the burglaries at issue—violated defendant's right to confront the witnesses against him.

Defendant was charged with three burglaries and several related offenses in connection with two separate incidents. In the June 2009 incident, defendant was alleged to have broken into a building that contained several stores connected through a common basement. He gained access through a rear door after the stores were closed, and unlawfully entered both a vacant office and a dry cleaning establishment inside the building. The dry cleaner had surveillance cameras that captured the incident and a copy of the surveillance video was played for the jury at trial. In addition, the police took swabs from streaks of blood that were observed on the building's outside rear door. Those swabs were vouchered and sent to the Office of the Chief Medical Examiner (OCME) for DNA blood analysis. After testing, which produced a DNA profile, the swabs were transferred to the New York Police Department's Kingsland Avenue facility for storage.

The second incident was a burglary that took place at a Classic Bed and Bath store in September 2009. The back door had been forced open after business hours and

86 N.E.3d 544

64 N.Y.S.3d 652

money and merchandise were taken. The police found a bloody receipt near the cash register. This receipt was likewise tested for DNA evidence by OCME. The testing produced a DNA profile, and the physical evidence was then transferred to Kingsland for storage. There was no video surveillance of this incident.

The numerical identifiers constituting the DNA profile generated from the biological evidence obtained at the scene of the

30 N.Y.3d 101

June 2009 burglaries were uploaded by computer to CODIS (the Combined DNA Index System) and, on August 27, 2009, OCME was notified that there was a match between the DNA from the crime scene evidence and defendant's numerical DNA profile, which was stored in the state database. In October 2009, the numerical identifiers constituting the DNA profile developed from the biological evidence from the September 2009 burglary were also linked to the DNA profile from the June 2009 burglaries. As a result, the police issued an investigative card alerting police that the detectives in this investigation wanted to speak with defendant in the event of an arrest. Defendant was later arrested in April 2010 and indicted.

As the People explained at trial, they opted not to introduce evidence of the "cold hit" from CODIS. Rather, "[t]o make things easier for the trial[, the People] had the defendant re-swabbed and retested by the DNA lab so that ... we'd only have to call the one person from the downstate DNA lab and not have to deal with somebody in Albany." Upon a pretrial court order, and defendant's consent, a buccal swab was collected from defendant in July 2012. The numerical identifiers from the DNA profile generated by OCME from that sample were compared to the numerical identifiers from the DNA profiles generated from the evidence from the three 2009 burglaries. The strings of numbers for the profiles were found to match on October 23, 2012—just prior to defendant's trial.

The People's only forensic witness at trial on the DNA evidence was an OCME Criminalist level III. As the trial progressed, it became clear through a series of discussions that the basis for the criminalist's testimony was going to be his comparison of the strings of numbers derived from the DNA test results generated by other analysts—the 2009 DNA test results and defendant's 2012 exemplar. Defense counsel raised various objections throughout the course of the parties' discussions about the DNA evidence, including that the criminalist's testimony would violate Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) because the People were trying to elicit testimony "from a witness that [wa]s not going to be called" and that the testimony was hearsay because it was "about what someone else did." On occasion, counsel's attempts to expound upon his objections, including his Confrontation Clause argument, were frustrated by the court.

Defense counsel's objections did have some measure of success, however. To be sure, none of the laboratory reports including

30 N.Y.3d 102

the actual numerical identifiers of the DNA profiles generated, or physical evidence of the DNA was ultimately admitted into evidence. Nonetheless, the criminalist was permitted to testify in a general and conclusory manner to the DNA evidence without personal knowledge of many matters he asserted to be true—including the DNA profile generated from defendant's post-accusatory 2012 buccal swab.

Indeed, the criminalist was permitted to testify, over defendant's repeated hearsay objections, and without having conducted, witnessed or supervised the generation of the DNA profiles, that the DNA profile generated from defendant's buccal swab

86 N.E.3d 545

64 N.Y.S.3d 653

was a match to the DNA profile generated from evidence found at the 2009 crime scenes. Specifically, the criminalist testified that he received the voucher containing defendant's 2012 buccal swab and that the accompanying examination notes both identified defendant by name and included the evidence unit number. When the prosecutor asked whether he had "analyze[d] the DNA profile in this particular case," the criminalist responded that he "reviewed the DNA profile." In response to the prosecutor's request for clarification as to what his review of the DNA profile entailed, the criminalist responded that he "looked at the DNA profile, the string of numbers, which is the DNA profile and compared it to [the profiles generated from the 2009 burglaries]. And I compared them to male donor A from each of those cases and I found that they were the same DNA profile."

Despite the fact that the laboratory reports containing the generation of the DNA profiles by nontestifying witnesses were not in evidence, the criminalist was permitted to read from those files on the stand. The quality of his direct testimony was such that the court asked the prosecutor: "How come everything that [the witness] said that actually happened in this case he had to read from something that is not in evidence?" The court further stated that it did not "understand what it is that he did, and how he did it, or for that matter whether he did anything."

In contrast to the prosecutor's initial assertion that the criminalist was "the supervisor on the original test," the witness admitted on cross-examination that he neither performed, nor was present for, any of the testing on the September 2009 samples. Moreover, although his name appears on some of the laboratory reports, which again were not in evidence, in connection with the June 2009 samples, he testified that he did

30 N.Y.3d 103

not perform the laboratory testing on those samples. Tellingly, during the criminalist's redirect testimony, when the prosecutor sought to question him about a document not in evidence, the court told the attorneys that "[y]ou guys have basically made this witness into a parrot. He doesn't know anything. He didn't do anything, but you use him to put in all of this other information, just as if I [sic] actually had knowledge of it."

During the trial, the parties discovered that the physical evidence that had been stored in the Kingsland facility had been rendered unavailable due to conditions caused by Hurricane Sandy. Specifically, the facility could not be accessed because it had been flooded with water that was contaminated by a nearby Superfund location. The court denied defendant's request for an adverse inference charge based on the People's failure to preserve this evidence....