People v. Oliver

• Decision Date: 21 February 2012
• Citation: 938 N.Y.S.2d 619,2012 N.Y. Slip Op. 01486,92 A.D.3d 900
• Parties: The PEOPLE, etc., respondent, v. Clarence OLIVER, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01486

92 A.D.3d 900

938 N.Y.S.2d 619

The PEOPLE, etc., respondent,

v.Clarence OLIVER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 21, 2012.

Alan Polsky, Medford, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered May 25, 2010, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, the County Court erred in granting the People's motion to compel the defendant to provide a buccal swab sample for DNA analysis. A court order to obtain such a sample from a suspect “ ‘may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable’ ” ( Matter of Marino v. Kahn, 49 A.D.3d 741, 741, 855 N.Y.S.2d 560, quoting Matter of Abe A., 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265). Here, on their motion the People failed to establish probable cause to believe the defendant committed the burglary at issue. The Assistant District Attorney's affidavit submitted in support of the motion asserted, in a conclusory fashion, that the defendant had injured himself during the commission of the burglary and that blood was recovered at the crime scene without providing further detail or the source of this information. Contrary to the People's contention, the record does not demonstrate that the County Court was presented with additional evidence in support of the motion sufficient to establish probable cause. Under the circumstances of this case, the error in granting the People's motion, and in admitting the evidence concerning the defendant's DNA profile obtained as a result, cannot be deemed harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Moreover, as the defendant contends, his right to confrontation ( see U.S. Const. 6th Amend.) was violated at trial. Robert Baumann, a forensic scientist employed by the Suffolk County Crime Laboratory, testified that DNA material recovered from the crime scene was uploaded by his office into a database, that he was informed several days later that the DNA profile from the crime scene matched a profile in that database, and that, approximately two weeks later, “Albany” informed him that the profile in the database that matched the DNA recovered from the crime scene was the defendant's profile. This evidence constituted testimonial hearsay ( see ...