People v. John

• Citation: 27 N.Y.3d 294,33 N.Y.S.3d 88,2016 N.Y. Slip Op. 03208,52 N.E.3d 1114
• Parties: The PEOPLE of the State of New York, Respondent, v. Sean JOHN, Appellant.
• Decision Date: 28 April 2016
• Court: New York Court of Appeals

27 N.Y.3d 294

52 N.E.3d 1114

33 N.Y.S.3d 88

2016 N.Y. Slip Op. 03208

The PEOPLE of the State of New York, Respondent,

v.Sean JOHN, Appellant.

Court of Appeals of New York.

April 28, 2016.

Lynn W.L. Fahey, Appellate Advocates, New York City (Dina Zloczower of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn (Sholom J. Twersky and Leonard Joblove of counsel), for respondent.

Wilmer Cutler Pickering Hale and Dorr LLP, New York City (Julia C. Pilcer of counsel), Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts (Felicia H. Ellsworth and Reuven Dashevsky of counsel), Seth Miller, Innocence Network, Tallahassee, Florida, and Innocence Project, New York City (Dana M. Delger, David Loftis, M. Chris Fabricant and Susan Friedman of counsel), amicus curiae.

OPINION OF THE COURT

Chief Judge DiFIORE

.

On this appeal, we address whether defendant's Sixth Amendment right to confront the witnesses against him was violated when the People introduced DNA reports into evidence, asserting that defendant's DNA profile was found on the gun that was the subject of the charged possessory weapon offense, without producing a single witness who conducted, witnessed or supervised the laboratory's generation of the DNA profile from the gun or defendant's exemplar. We conclude that, under the circumstances presented here, defendant's right to confrontation was violated.

I

Defendant was involved in an altercation just outside of his apartment building, during which he pointed a gun at complainant. Defendant's neighbor, the ground floor resident of the three-story, multifamily brownstone, witnessed the encounter and called the police. When the police arrived and investigated, defendant was arrested. Defendant's neighbor advised the responding officer that she had seen defendant go into the building's basement with something in his hand. She indicated the door to the basement was the one across from her apartment.

The officer entered the basement through a latched but unlocked door. The basement was unlit and unfurnished, with dirt on the floor, and, although apparently used for storage, it did not have any areas designated for particular tenants. The officer searched the basement using his flashlight and found a blue box marked “Smith & Wesson,” which he recognized as “the same box that [his] firearm came in.” He opened the box, which contained a loaded 9 millimeter handgun and an extra magazine. When later shown the gun, complainant identified it as the same one defendant had pointed at him.

The gun was secured and an officer from the evidence collection team took three swabs from the gun to test for the presence of DNA. The officer prepared a written request for a laboratory examination on the evidence, with defendant listed as the arrestee. This report, along with the swabs, was submitted to the Department of Forensic Biology of the New York City Office of Chief Medical Examiner (OCME), plainly stating that the specific reason for the requested analysis was “PERP HANDLED THE FIREARM.”

Using PCR (polymerase chain reaction

) DNA typing, the scientific reliability of which, if performed correctly, is not in issue, the lab found the presence of a single source male DNA profile on swabs from the gun. The combination of the DNA alleles found in the sample would be expected to be found in approximately “1 in greater than 1 trillion people.” The PCR DNA typing analyzes DNA in the form of alleles that are found at the same location (locus) of the DNA on homologous (matching) chromosomes. A person has two different alleles at a particular locus. OCME tests for 15 specific short tandem repeat (STR) locations (loci) and the amelogenin locus, which is used to determine the sex origin of the sample. The STR alleles are identified by the number of core repeats present at the locus. Experienced analysts convert these numeric identifiers into a DNA profile using machine-generated raw data analyzed by a software program and the analyst's independent manual examination which involves an editing process (see John M. Butler, Fundamentals of Forensic DNA Typing at 213 [2010] ).

In this case, on February 5, 2010, analyst “CJB” completed the electropherogram that graphically depicted the peaks of the DNA analysis and a handwritten editing sheet for the DNA typing

of the gun swabs and exported the 16 loci DNA profile from the gun swabs into a spreadsheet. On February 16, analyst Melissa Huyck¹ issued a report containing defendant's name and arrest number and stating that the 16 loci profile was developed through PCR analysis

and that a comparison of the DNA profile recovered from the gun could be done upon submission of an oral swab from a suspect. Upon defendant's indictment, the People, in April 2010, moved pursuant to CPL article 240 for a court order to take defendant's DNA by buccal swabs. The same officer who had swabbed the gun collected buccal swabs from defendant in September 2010. On September 20th, and again in a retest on the 24th, the lab generated a 16 loci DNA profile from defendant's exemplar. Analyst “CS” was involved in the two generations of the same DNA profile from the exemplar, initialing both of the edit tables, the electropherogram and the allele table—another spreadsheet containing the generated DNA profile. The DNA profiles are printed in a simple series of 15 pairs of numbers and the XY sex designation. In a table resembling a box score, dated October 1, 2010, and initialed by Huyck (MAH), the two DNA profiles generated from the gun swabs and the exemplar were listed in “ identifier loci order” and “CODIS loci order.” The series of numbers were identical.

Prior to trial, defendant moved to suppress the firearm. Defendant maintained that he had standing based upon a reasonable expectation of privacy both in the gun box and in the basement from which the gun was recovered, that there was no exigency permitting the warrantless search for a gun since he was already under arrest at the time of the search of the basement and that the officer did not obtain the neighbor's consent to search the shared basement. After a suppression hearing, the court denied the motion, concluding that the neighbor had consented to the search of the basement, that defendant had no objective privacy interest in the basement and that once the officer was lawfully in the basement and “he saw the firearm it was appropriate for him to seize it.”

Defendant also moved prior to trial to either preclude the People from introducing the OCME laboratory reports certifying the DNA test results into evidence, or require each analyst who had tested the DNA to testify at trial. Defendant cited Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011)

, Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) and People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927 (2009) in support of his argument that it would violate his Sixth Amendment right to confrontation to introduce the DNA evidence through a surrogate expert who had not performed, witnessed or supervised the DNA testing of the samples. The court denied the motion.

At trial, the People called the analyst Huyck as an expert in forensic biology and DNA analysis. She testified that she was an OCME Criminalist Level II within the Department of Forensic Biology and that the Department was predominantly responsible for examining and testing items from crime scenes for DNA analysis. When the People sought to introduce the OCME files containing the DNA laboratory reports and test results (exhibits 6A [DNA report on the gun swabs] and 6B [DNA report on the suspect's exemplar] ) as certified business records through Huyck, defense counsel conducted a voir dire examination of the witness. Huyck testified as to the stages necessary to generate a DNA profile and agreed with defense counsel's statement that an analyst does not just “put a piece of paper in the machine and it does all of the work for you.” Rather, as Huyck explained, the sample is unpacked and subject to four stages of DNA testing: extraction (to release the DNA from any cells), quantitation (to determine how much DNA was present), amplification (to make millions of copies of the specific locations, or loci of the DNA, to be tested) and then, “running a sample on a DNA instrument.” In this final stage, the analyst uses an electrophoresis instrument and a sophisticated software program (GeneMapper ID in this case) to produce an electropherogram, which graphically depicts the peaks of the DNA analysis, and conducts an interpretive analysis to compile the numerical DNA profile that is used for comparison.²

Huyck testified that, according to OCME policy, due to the volume of their workload, different analysts perform each stage and that various controls and duplicate tests were conducted to ensure that the results were accurate and reliable. With respect to the gun swabs, Huyck testified that she opened the package containing the swabs, cut portions of each swab and put them into a tube. She neither conducted nor witnessed nor supervised any part of the DNA testing on the gun swabs that followed. By Huyck's count, the four-stage process involved six other analysts. Based on the reports for the four-stage process on defendant's exemplar, Huyck, who was, again, not involved in the testing, estimated that aside from the two analysts who did the cutting of the sample, there were eight more analysts involved.³ Significantly, one analyst and one reviewer provided the reports for each of the two DNA profiles generated using the electrophoresis instrument and the software program on the gun swabs and the exemplar.

At the end of the voir dire, defendant renewed his objection to allowing the laboratory reports into evidence. He asserted that the reports were testimonial and that under Bullcoming the analysts who had performed the DNA tests had to be produced for cross-examination. The court...