People v. Rios

• Decision Date: 15 January 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin RIOS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 473
961 N.Y.S.2d 14
2013 N.Y. Slip Op. 00142

The PEOPLE of the State of New York, Respondent,
v.
Kevin RIOS, Defendant–Appellant.

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

Jan. 15, 2013.

[961 N.Y.S.2d 15]

Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.

TOM, J.P., ANDRIAS, RENWICK, DeGRASSE, ABDUS–SALAAM, JJ.

[102 A.D.3d 474]Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered October 20, 2009, convicting defendant, after a jury trial, of two counts of predatory sexual assault, and sentencing him to concurrent terms of 15 years to life, unanimously affirmed.

Defendant's principal appellate claim is that his right of confrontation was violated by the admission of a DNA analyst's expert testimony that depended on reports of procedures conducted by nontestifying analysts, even though the reports themselves were never before the jury. Under the circumstances presented, defendant's general references to confrontation and related matters were insufficient to alert the trial court to this particular claim ( see People v. Paulin, 78 A.D.3d 557, 558, 913 N.Y.S.2d 21 [2010],lv. denied16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011];People v. Lewis, 44 A.D.3d 422, 423, 843 N.Y.S.2d 72 [2007],lv. denied9 N.Y.3d 1035, 852 N.Y.S.2d 21, 881 N.E.2d 1208 [2008];compare People v. Hardy, 4 N.Y.3d 192, 197, 791 N.Y.S.2d 513, 824 N.E.2d 953 n. 3 [2005] ). Initially, we note that defendant's postverdict motion

[961 N.Y.S.2d 16]

had no preservation effect ( see People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).

At trial, defendant originally objected to admission of reports by nontestifying analysts as “bolstering.” This did not preserve a Confrontation Clause claim ( see e.g. People v. Davis, 90 A.D.3d 432, 433, 933 N.Y.S.2d 663 [2011] ). Defendant also made vague references to confrontation and to information that “someone else has provided.” However, this was in the context of his statement that the reports “could” contain information to which he “would” object. This merely stated an intention to object in the future, contingent on whether the evidence proved objectionable, and was insufficient to preserve his claim ( see People v. Bierenbaum, 301 A.D.2d 119, 152, 748 N.Y.S.2d 563 [2001],lv. denied99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003],cert. denied540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [2003] ). Ultimately, counsel never stated an objection, and therefore failed to alert the court to his present position that the evidence had indeed proved objectionable. Significantly, defendant declined the court's offers to review the reports to determine what was objectionable.

Moreover, defendant never articulated a claim that the witness's testimony should be excluded pursuant to the Confrontation Clause unless the analysts who provided the underlying information also testified. Instead, defendant only appeared to be objecting to the nontestifying analysts' reports. However, those reports...