People v. Brown

• Decision Date: 14 July 2005
• Docket Number: 1279/03
• Citation: 801 N.Y.S.2d 709,9 Misc.3d 420,2005 NY Slip Op 25303
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MICHAEL BROWN, Defendant.
• Court: New York Supreme Court

9 Misc.3d 420

801 N.Y.S.2d 709

2005 NY Slip Op 25303

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MICHAEL BROWN, Defendant.

1279/03

Supreme Court, Queens County.

July 14, 2005.

Russell C. Morea for defendant.

Richard A. Brown, District Attorney (Eric Rosenbaum of counsel), for plaintiff.

OPINION OF THE COURT

SHERI S. ROMAN, J.

Defendant moves for a new trial, pursuant to CPL 330.30 (1) on the ground that defendant was denied his right of confrontation under the United States Constitution.

On May 9, 2005, after a jury trial conducted before this court, defendant was found guilty of two counts of sodomy in the first degree, a class B violent felony, one count of kidnapping in the second degree, a class B violent felony, two counts of assault in the second degree, a class D violent felony, and one count of endangering the welfare of a child, a class A misdemeanor.

The charges arose out of an incident which took place on August 16, 1993. On that date defendant assaulted and forcibly sodomized a nine-year-old girl on the roof of the Queensbridge Housing Project. Because the victim was rendered unconscious by the defendant during the assault, she was not able to identify the defendant as the perpetrator in court. However, the jury convicted the defendant based upon a DNA profile of defendant's saliva which matched a profile of DNA taken from semen contained on a rectal swab taken from the victim at Elmhurst Hospital on the day of the incident.

At trial, the People called an expert witness, Meredith Rosenberg, a level 4 criminologist employed in the forensic biology department of the Office of the Chief Medical Examiner. Ms. Rosenberg was qualified as an expert in the field of forensic biology and DNA typing. She testified that she supervised and reviewed the records of the DNA profile performed on the defendant's saliva at the Office of the Chief Medical Examiner and she also reviewed the DNA profile taken from the victim's anal swab done at Bode Technology Laboratory in Virginia. Ms. Rosenberg did not personally perform the DNA testing on either sample.

The sexual assault kit which contained swabs from the examination of the complainant (People's exhibit 8) was received by the New York City Police Department on August 16, 1993. The sexual assault kit was stored with the New York City Police Department without having been tested until it was sent to Bode Technology, along with 225 other kits on August 2, 2002. Ms. Rosenberg testified that the New York City Police Department had a backlog of 16,000 sexual assault kits until the year 2000 when the Office of the Chief Medical Examiner (OCME) received grant money which permitted OCME to examine the sexual assault kits. However, since OCME could not examine all 16,000 kits, they subcontracted the testing of some of the kits to three independent private laboratories. The kit in this case was sent to Bode Technology in August 2002 with 224 others as part of the backlog project.

After the rape kit was examined at Bode, a report was generated by Bode which was sent to OCME on October 30, 2002. The report contained the results of the DNA testing from the complainant's sexual assault kit. Ms. Rosenberg testified that although Bode generates a report containing raw data, any conclusions or opinions reached by her from the data, such as the DNA profile, were her own and were not contained in any of the reports. The Bode Laboratory report stated that male DNA from sperm cells was present on the anal swab and only female DNA was present on the vaginal and oral swabs.

An oral swab taken from the defendant was received by OCME on March 10, 2004 and subjected to DNA testing at OCME. The DNA testing as described by Ms. Rosenberg consists of four parts: extraction, quantification, amplification and DNA typing. During the typing phase, a computer prints out an electropheragram from which, Ms. Rosenberg testified, she developed a DNA profile. She compared that profile to the profile she developed from the testing of defendant's oral swabs at OCME. She testified that in her opinion, from comparing the two profiles, the defendant, Michael Brown, was the source of the male DNA from the sexual assault kit sent to Bode Technology.

Prior to sentencing, defense counsel filed the instant motion to set aside the verdict on the ground that the defendant's right of confrontation was violated. Defendant's motion is based upon the fact that the persons who actually performed the DNA testing at Bode and at OCME were not called as witnesses by the People. The laboratory case file for each DNA sample was introduced in evidence by the People under CPLR 4518, the business record exception to the hearsay rule as the basis upon which Ms. Rosenberg gave her expert opinion. Each case file (People's exhibits 9, 10) contains notes and computerized data documenting the analysis process as well as a laboratory report which summarized the DNA test results.

Defense counsel contends that the introduction of the DNA files from Bode and OCME (People's exhibits 9, 10) violates the ruling of the United States Supreme Court in Crawford v Washington (541 US 36 [2004]), which held that the introduction of testimonial hearsay without the declarant being available to testify was a violation of the defendant's right of confrontation. Defense counsel contends that the laboratory reports which were used by Ms. Rosenberg as the basis of her conclusion contain testimonial hearsay statements made by persons who did not testify at trial and as such should not have been admitted into evidence pursuant to Crawford (supra). Defendant contends that, since Ms. Rosenberg did not perform or witness the DNA tests nor participate in quality assurance checks at the laboratories, her testimony was based upon hearsay statements made by persons not subject to cross-examination.

In opposition to the motion, the People contend that the DNA evidence was not testimonial and that it was properly admitted under the business records exception to the hearsay rule. In addition, the People contend that the DNA records were not a violation of Crawford (supra) because the DNA analysis from each laboratory was not offered for its truth, but was offered only to show the basis of the expert's opinion.

This court does not credit the People's contention that the records were not offered for their truth because the facts contained in the records were taken to be true by the People's expert and were relied upon by her in formulating her opinions.

CPL 330.30 (1) states that the court may set aside a verdict if the defense raises a ground which appears in the record which would require a reversal of the judgment by an appellate court as a matter of law.

After reviewing the defendant's motion, the People's affirmation in opposition, and all other pleadings and proceedings had herein, this court finds that the defendant's motion to set aside the verdict must be denied.

In Crawford v Washington (541 US 36 [2004]), the United States Supreme Court held that:

"[I]f, in a criminal proceeding, a `testimonial' statement is admitted against the accused, the defendant has an absolute right, under the Confrontation Clause of the Sixth Amendment[,] to cross-examine the person who made that statement. The Supreme Court held all such statements inadmissible if the witness is unavailable and the defendant did not have a prior opportunity to cross-examine." (People v Diaz, 21 AD3d 58, 63-64 [1st Dept 2005].)

The Court stressed that "[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse." (Crawford at 56 n 7.) It also concluded that "at a minimum, [the term `testimonial' applied] to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (People v Diaz, 21 AD3d at 64.)

This...