Opinion
2014-11711. Ind. No. 821/14.
08-02-2017
The PEOPLE, etc., respondent, v. George TSINTZELIS, appellant.
Seymour W. James, Jr., New York, NY (Shane Tela of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (Robert J. Masters, John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Shane Tela of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (Robert J. Masters, John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered November 20, 2014, convicting him of criminal mischief in the third degree and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his discovery request pursuant to CPL 240.40 for material that was not in the possession or control of the People (see People v. Beckham, 142 A.D.3d 556, 36 N.Y.S.3d 483 ; People v. Robinson, 53 A.D.3d 63, 860 N.Y.S.2d 159 ; People v. Stern, 270 A.D.2d 118, 704 N.Y.S.2d 569 ).
Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to support the defendant's conviction of criminal mischief in the third degree beyond a reasonable doubt (see People v. Tucker, 113 A.D.3d 642, 978 N.Y.S.2d 312 ).
The defendant's rights under the Confrontation Clause (see U.S. Const. Sixth Amend.) were violated when the Supreme Court admitted into evidence lab reports from a nontestifying DNA analyst which directly linked the defendant to the crime (see People v. Cartagena, 126 A.D.3d 913, 7 N.Y.S.3d 150 ; People v. Gonzalez, 120 A.D.3d 832, 991 N.Y.S.2d 340 ; People v. Oliver, 92 A.D.3d 900, 938 N.Y.S.2d 619 ).
"Confrontation Clause violations are subject to a constitutional harmless error analysis" ( People v. Hardy, 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953 ; see People v. Douglas, 4 N.Y.3d 777, 779, 793 N.Y.S.2d 825, 826 N.E.2d 796 ; People v. Eastman, 85 N.Y.2d 265, 276, 624 N.Y.S.2d 83, 648 N.E.2d 459 ; People v. Crimmins, 36 N.Y.2d 230, 240–241, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). "Constitutional error requires reversal unless the error's impact was ‘harmless beyond a reasonable doubt’ " ( People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953, quoting People v. Eastman, 85 N.Y.2d at 276, 624 N.Y.S.2d 83, 648 N.E.2d 459 ; see Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 ). This determination is based on a review of the " ‘entire record’ " ( People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953, quoting People v. Eastman, 85 N.Y.2d at 276, 624 N.Y.S.2d 83, 648 N.E.2d 459 ). In order for the error to be harmless beyond a reasonable doubt, the evidence of the defendant's guilt must be overwhelming, and there must be "no reasonable possibility that the error might have contributed to the defendant's conviction" ( People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Here, apart from the erroneously admitted evidence, the evidence of the defendant's guilt was overwhelming. The People presented evidence directly linking the defendant to the crime. A criminalist employed by the Office of the Chief Medical Examiner of the City of New York testified that she reviewed, and verified the accuracy of, every stage of testing and all of the results of the DNA tests. Thus, the erroneously admitted evidence was cumulative, as the criminalist, who did testify, reached the same conclusion as the nontestifying analyst after comparing the same raw data relied upon by that analyst (see People v. Cartagena, 126 A.D.3d 913, 7 N.Y.S.3d 150 ; People v. Gonzalez, 120 A.D.3d 832, 991 N.Y.S.2d 340 ). Because the erroneously admitted evidence was cumulative, there was no reasonable possibility that the erroneously admitted evidence contributed to the defendant's conviction, and the error was harmless beyond a reasonable doubt (cf. People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953 ).