The People, Respondent,v.William Rodriguez, Appellant.BriefN.Y.Jun 5, 2018To be argued by SHEILA L. BAUTISTA J&eto ,©ork Supreme Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent; - against - WILLIAM RODRIGUEZ, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE,JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 firstname.lastname@example.org PATRICKJ. HYNES SHEILA L. BAUTISTA ASSISTANT DISTRICT ATTORNEYS Of Counsel ( TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii INTRODUCTION. 1 THE EVIDENCE AT TRIAL 3 The People’s Case 3 The Defense Case 10 POINT I DEFENDANT’S GUILT WAS PROVEN BEYOND A REASONABLE DOUBT 11 POINT II DEFENDANT’S UNPRESERVED CONFRONTA¬ TION CLAUSE CLAIM HAS NO MERIT 17 POINT III DEFENDANT’S SENTENCE IS FAIR AND APPROPRIATE 23 26CONCLUSION TABLE OF AUTHORITIES FEDERAL CASES Jackson v. Virginia. 443 U.S. 307 (1979) ... Williams v. Illinois. 132 S.Ct. 2221 (2012), 11 21 STATE CASES People v. Bartley. 219 A.D.2d 566 (1st Dept. 1995) People v. Bleaklev. 69 N.Y.2d 490 (1987) People v. Brown 13 N.Y.3d 332 (2009) People v. Caban. 5 N.Y.3d 143 (2005) People v. Corporan. 169 A.D.2d 643 (1st Dept. 1991) People v. Daly. 140 A.D.3d 593 (1st Dept. 2016) People v. Danielson. 9 N.Y.3d 342 (2007) People v. Delamota. 18 N.Y.3d 107 (2011) People v. Gordon. 23 N.Y.3d 643 (2014) People v. Griffin. 63 A.D.3d 635 (1st Dept. 2009) People v. Hampton. 21 N.Y.3d 277 (2013) People v. Harrison. 22 A.D.3d 236 (1st Dept. 2005) affd. 16 N.Y.3d 93 (2010) People v.Jacob. 55 A.D.2d 961 (2d Dept. 1977) People v. Javier. 128 A.D.3d 494 (1st Dept. 2015) People v. John. 27 N.Y.3d 294 (2016) People v. Kancharla. 23 N.Y.3d 294 (2014) People v. Kidd. 76 A.D.2d 665 (1st Dept. 1980) 12 12 .20-22 20 12 18 11-12 11-12 11-12 12 12 16 14 18 17, 20-22 12 19 -ii- People v. Person. 74 A.D.3d 1239 (2d Dept. 2010).... People v. Porto. 66 A.D.3d 430 (1st Dept. 2009) People v. Rawlins. 10 N.Y.3d 136 (2008) People v. Rios, 102 A.D.3d 473 (1st Dept. 2013) People v. Steele. 287 A.D.2d 321 (1st Dept. 2001) People v. Stultz. 2 N.Y.3d 277 (2004) People v. Williams. 40 N.Y.S.3d 94 (1st Dept. 2016) . STATE STATUTES 14-15 16 .20-21 18-19 16 20 18-19, 21 18CPL 470.15(6)(a) Penal Law § 140.25 1-2 OTHER AUTHORITIES Scientific American, How Is Tempered Glass Made? https:/ /www.scientificamerir.an.com/article/how-is-tempered-glass- mad/ 15 -in- SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILLIAM RODRIGUEZ, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant William Rodriguez appeals from a March 19, 2014 judgment of the Supreme Court, New York County (Richard A. Carruthers, J.), convicting him, after a jury trial, of Burglary in the Second Degree (Penal Law § 140.25), and sentencing him, as a persistent violent felony offender, to an indeterminate prison term of from 20 years to life. During the early morning hours of August 24, 2012, Kathleen McKeon entered her apartment at in Manhattan and discovered that someone had broken into her home. The burglar had entered her top-floor apartment by smashing through the skylight in one of the bathrooms. A pair of wire cutters, which McKeon normally stored in her office on her private rooftop deck, was found wedged in the seat cushions of her living room couch. After laboratory testing revealed that defendant’s DNA was on the wire cutters, police officers arrested him. DNA testing on a buccal swab collected from defendant confirmed that his profile matched that of the DNA found on the wire cutters. On January 10, 2013, by New York County Indictment Number 9/2013, a grand jury charged defendant with one count of Burglary in the Second Degree (Penal Law § 140.25). On February 27, 2014, defendant proceeded to trial before the Honorable Richard A. Carruthers and a jury. On March 4, 2014, defendant was convicted as charged, and on March 19, 2014, he was sentenced as a persistent violent felony offender to an indeterminate prison term of from 20 years to life. On appeal, defendant claims that the evidence at trial was legally insufficient to prove his guilt, and that the verdict was against the weight of the evidence. He also argues that his rights under the Confrontation Clause were violated because the People presented a witness who testified about the DNA match but did not perform any of the underlying tests on the crime scene evidence. Finally, defendant contends that his sentence is excessive. -2- r THE EVIDENCE AT TRIAL The People’s Case In the summer of 2012, KATHLEEN McKEON owned a teaching company that specialized in GMAT and SAT preparation courses for prospective business school and undergraduate students.1 In addition to owning the business, she taught GMAT preparation courses in the classroom (McKeon: T1 225). Since April 2011, McKeon had lived by herself in a two-bedroom, two-bathroom apartment on the top floor of in Manhattan (McKeon: T1 226-28). She had a private rooftop deck, meant only for her “exclusive” use, with an open area and a glass- enclosed office that contained a couch, a table, two chairs, and a bookcase. A fence separated McKeon’s portion of the roof from the private rooftop deck area of the apartment next door to hers. The stairs to McKeon’s portion of the roof were behind a separate door outside the apartment, next to her front door. Her neighbors also had their own staircase outside their apartment, next to their front door, that led up to their part of the roof. Both doors leading up to the roof locked from the inside of the building (McKeon: T1 229-31). On the morning of August 23, 2012, McKeon made a day trip to Philadelphia to teach a class. She left her apartment in “normal” condition, with her dog at home, 1 Parenthetical references beginning with “Tl” refer to the minutes of the portion of the trial that took place from February 25, 2014 through February 28, 2014. Parenthetical references beginning with “T2” refer to the minutes from March 3, 2014 through the conclusion of the trial on March 4, 2014. -3- 1 the front door locked and all the windows closed (McKeon: T1 234-35). When she returned home around 12:30 a.m. on August 24th, her front door was “cracked open.” As soon as she walked in, she saw that the front bedroom was “disheveled,” and her dog was hiding under a pile of clothing that had not been on the floor before she left the apartment (McKeon: T1 235-36). Also, the skylight to the bathroom by the front door had been shattered, leaving chunks of tempered glass scattered all over the floor. McKeon soon discovered that much of her jewelry— including gold bracelets, pearl necklaces, rare heirloom pieces, and a platinum signet ring— had been stolen from a drawer in the front bedroom closet. The living room and master bedroom had also been rifled through (McKeon: T1 236-241). Someone had taken the boxes stored in the closet of her master bedroom and strewn the contents all over the floor (McKeon: T1 244-45). Besides opening the drawers where she had kept her jewelry, McKeon was careful not to touch anything in her apartment (McKeon: T1 243). McKeon called the police to report the break-in (McKeon T1 237). Police Officer STEPHEN DIGENA and his partner Officer Hennigan received a radio communication about the burglary and arrived at her apartment shortly thereafter (Digena: T1 265). McKeon pointed out the broken skylight in the front bathroom to them (Digena: T1 267). Making sure not to touch anything, the officers canvassed the apartment and went up to the roof. There was a propane tank next to the skylight, which was in an “off-limits area” that was supposed to be inaccessible (McKeon: T1 -4- r 245-46; Digena: T1 267, 269-70, 272). The propane tank did not belong to McKeon (McKeon: T1 246). When the officers called for the Evidence Collection Unit, they learned that “there would be a major delay in their response time.” McKeon decided not to wait up for the Evidence Collection Unit and decided to call the police and ask for them first thing the next morning (McKeon: T1 243-44; Digena: T2 269-71). Digena and Hennessy collected a list of missing items from McKeon before leaving her apartment (McKeon: T1 243; Digena: T1 271). McKeon then spent the night in her apartment, falling asleep “on a very small section” of her bed (McKeon: T1 244). The next morning, around 9:00 a.m., McKeon called the police station (McKeon: T1 245), and around 10:45 a.m. Detective JOSE SEGURA and Police Officer STEPHEN SCHULDNER of the Evidence Collection Unit arrived at her apartment (Segura: T2 57; Schuldner: T2 76). McKeon had not cleaned up or touched anything since the night before (McKeon: T1 248, 259). First, Segura and Schuldner inspected the front bedroom and front bathroom and saw the broken glass from the skylight in the bathroom (McKeon: T1 247; Segura: T2 58; Schuldner: T2 77).2 McKeon took them up to the roof, and they saw the propane tank next to the skylight (Segura: T2 59). On either side of the rooftop deck were the rooftops of the adjacent buildings, which were similar in height (Segura: T2 59). 2 None of the officers who reported to the apartment saw any blood on the broken glass or anywhere else in the apartment (Digena: T2 273; Schuldner: T2 87). -5- 1While the officers were conducting their investigation, McKeon noticed that her wire cutters were wedged between the cushions of the sofa in her living room (McKeon: T1 248). This was remarkable because she had not brought them into the apartment since the last time she had used them two months prior. She had purchased them online and used them to install fencing on her rooftop deck; they had been stored in the bookcase in the office on her roof (McKeon: T1 249-50, 261). McKeon told the officers that she had found something “out of order,” showed them the wire cutters wedged between the sofa cushions, and told them that she normally kept them on the roof (McKeon: T1 253; Segura: T2 59-60; Schuldner: T2 77, 84). Schuldner took photographs of the wire cutters and while wearing latex gloves and a mask, he vouchered them as evidence in a sealed biological evidence bag so that they could be sent to the lab for DNA testing (McKeon: T1 253; Schuldner: T2 77-79).3 Schuldner took a DNA “elimination sample” from McKeon so her profile could be separated from the perpetrator’s DNA profile in case both of them had left DNA on the wire cutters (McKeon: T1 256-57: Schuldner: T2 85-86).4 3 Schuldner did not dust the wire cutters for fingerprints because he wanted to preserve any DNA that may have been left on them (Schuldner: T2 83). 4 Schuldner dusted for fingerprints on the interior and exterior of the apartment’s front door, the broken glass on the bathroom floor, the walls of the bathroom, and the drawers that had contained the stolen jewelry. The dusting did not reveal any fingerprints that were clear enough to be collected and sent for further testing. Sometimes fingerprints cannot be collected because they are smudged, or perpetrators wear gloves to avoid leaving fingerprints (Schuldner: T2 82-83, 88-89). -6- r Segura knocked on other doors of the building to look for witnesses to the crime, but this search yielded nothing. He also checked the video camera outside in front of the building, but this search did not yield any surveillance footage (Segura: T2 60). After the officers completed their investigation of McKeon’s apartment, Segura did not have a suspect in mind (Segura: T2 61). MELISSA HUYCK of the Office of Chief Medical Examiner (OCME), a division of the New York City Department of Health, was an expert in the field of DNA analysis and testing (Huyck: T2 97). Huyck began working at OCME as a criminalist in 2007, and in 2013, she was promoted to Criminalist Level III (Huyck: T2 90-91, 94). In addition to receiving six months of training in DNA analysis when she first started at OCME, she took and passed exams evaluating her proficiency in DNA testing twice a year (Huyck: T2 94-96). As a criminalist, she was responsible for performing DNA testing on biological evidence from criminal investigations, interpreting the results, and testifying at trial about her findings (Huyck: T2 92). During her time at OCME, Huyck had supervised the analysis of “hundreds, if not thousands” of DNA profiles (Huyck: T2 96). At OCME, there were multiple safeguards in place to ensure the accuracy of DNA testing. Based on its consistent performance of quality DNA testing, the OCME laboratory was accredited by the American Society of Crime Laboratory Directors Accreditation Board and the New York State Commission on Forensic Science. The equipment used for testing was checked on a regular basis, either weekly -7- 1 or monthly, to ensure that it was working properly. The equipment was also wiped down between every use, and all instruments were sanitized with bleach and ethanol to ensure that no extraneous DNA remained on those objects from one case to another. Criminalists wore protective gear during testing to prevent contamination of the sample (Huyck: T2 93-94). Every step of the process, from receipt of the evidence to the conclusion of testing, had to be documented (Huyck: T2 104). A witness observed a criminalist performing the DNA analysis during each step of the testing, “positive controls” on known samples were performed to make sure tests were done properly, and each DNA test was done twice. All results had to be recorded, as did all of the notations made at or about the time of the observations reported (Huyck: T2 104). All reports included the conclusions of the analysts who had performed the tests, and their notes and reports were made and kept in the regular and ordinary course of business of OCME (Huyck: T2 105). Once OCME developed a DNA profile, it was uploaded to a state level database and then to the national level database, the Combined DNA Indexing System (CODIS) (Huyck: T2 103-04). The police department’s Evidence Collection Unit gave OCME the wire cutters recovered from McKeon’s apartment so that they could be tested for DNA (Segura: T2 61; Huyck: T2 109, 112). There was nothing on the police paperwork to indicate that there was a suspect in the case (Huyck: T2 115). On October 14, 2012, OCME criminalist Michael Kuhn performed the DNA analysis. A “significant amount of -8- f DNA” was found on the handles of the wire cutters, five or six times more than the minimum amount that the laboratory required for testing, which suggested that the person actually used the tool either “[fjorcefully or for a decent amount of time” (Huyck: T2 126-27, 149). The DNA of only one person, a man, was found on the wire cutters (Huyck: T2 113, 126; Exhibit 5a [OCME Report on DNA from wire cutters]).5 His profile was uploaded to the CODIS DNA databank in December 2012, and by December 17, 2012, OCME was informed that the DNA from the wire cutters matched the profile of defendant’s DNA in CODIS (Huyck: T2 114-15; Exhibit 5b [OCME Laboratory Report]). The amount of DNA a person leaves on an object when touching it— known as a “primary transfer” — depends on a number of factors, such as the number of times the person handles the object, the length of time he or she spends touching it, the amount of skin cells the person naturally sheds, the cleanliness of his or her hands, and whether the person was sweating or perspiring when touching the object (Huyck: T2 100-02, 138-43). When a person leaves DNA on an object, it is possible for a “secondary transfer” to occur— for example, if a person left DNA on a pair of gloves 5 OCME also developed a DNA profile from the sample that McKeon provided to police officers during their investigation of their apartment (Huyck: T2 114). None of her DNA was on the wire cutters (Huyck: T2 132). Even though McKeon owned the wire cutters, it was possible that any DNA that she had left on them was supplanted by the DNA of the person who had subsequendy used them (Huyck: T2 125). It was also possible that environmental exposure to sun or rain could have decreased the amount of DNA that could be recovered from the wire cutters (Huyck: T2 102). -9- 1 by coughing or sneezing onto them, the DNA on the gloves could be transferred to another surface (Huyck: T2 144). Detective Michael McCready collected a buccal swab sample from defendant and sent it to OCME, where a report of defendant’s DNA profile was created (Huyck: T2 115-16; Stipulation: 152; People’s Exhibit 5c [OCME Report on Huyck reviewed the results from this this report, compared the profile from defendant’s DNA sample with the profile developed from the wire cutters, and concluded that they were an exact match (Huyck: T2 123-24, defendant’s DNA profile]). 130, 146; People’s Exhibit 5b [DNA report from defendant’s buccal swab]; People’s Exhibit 7 [match summary chart]). Huyck “expect[ed] to see this profile in approximately one in greater than 6.8 trillion people.” Where “the current population of earth has approximately 6.8 billion people,” if there were “1,000 earths all with 6.8 billion people, you would expect to see this profile just once” (Huyck: T2 124, 132). Detective Segura received a fax from OCME’s DNA liaison identifying defendant as the perpetrator in the case (Segura: T2 63). After receiving this information, Detectives Segura and Massie arrested defendant (Segura: T2 63). McKeon did not know defendant and she had never given him permission or authority to enter or take anything from her apartment (McKeon: T1 260). The Defense Case Defendant presented no evidence at trial. -10- POINT I DEFENDANT’S GUILT WAS PROVEN BEYOND A REASONABLE DOUBT (Answering Defendant’s Brief, Point I). On appeal, defendant contends that the evidence supporting his conviction was legally insufficient and the verdict was against the weight of the evidence. Although he acknowledges that his DNA was found on wire cutters in McKeon’s apartment, he claims that this was not enough to establish his identity as the burglar because there evidence regarding when his DNA got on the wire cutters, which had beenwas no stored prior to the burglary in a location allegedly accessible to people other than himself (Defendant’s Brief at 18). Defendant also points to other “gaps” in the People’s proof, such as the lack of defendant’s blood or fingerprints in the apartment, and the absence of testimony about how defendant got onto the roof of the building (Defendant’s Brief at 19-20). Defendant’s claims are meritless. A “verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt.” People v. Gordon. 23 N.Y.3d 643, 649 (2014), quoting People v. Delamota. 18 N.Y.3d 107, 113 (2011), and citing Jackson v. Virginia. 443 U.S. 307, 319 (1979), and People v. Danielson. 9 N.Y.3d 342, 349 (2007). In considering the evidence, this Court must view it “in the light most favorable to the prosecution,” and recognize that “the People are entitled to all reasonable evidentiary inferences.” Gordon. 23 N.Y.3d at -11- 649, citing Delamota. 18 N.Y.3d at 113; Danielson. 9 N.Y.3d at 349; People v. Bleaklev. 69 N.Y.2d 490, 495 (1987). Further, this Court “must assume that the jury credited the People’s witnesses and gave the prosecution’s evidence the full weight it Gordon. 23 N.Y.3d at 649, citing People v.might reasonably be accorded.” Hampton. 21 N.Y.3d 277, 288 (2013). When evaluating a claim that the verdict is against the weight of the evidence, the reviewing court must first determine whether an acquittal would have been reasonable. If so, “the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions.” People v. Kancharla, 23 N.Y.3d 294, 303 (2014), quoting Bleaklev. 69 N.Y.2d at 495. This Court must also accord “great deference” to the fact-finder’s opportunity to view witnesses, hear testimony, and observe demeanor. Kancharla. 23 N.Y.3d at 303, citing Bleaklev. 69 N.Y.2d at 495. After all, “[u]nder a weight-of- evidence analysis, a court does not take the place of the [fact-finder] in passing on questions of the reliability of witnesses and the credibility of testimony.” People v. Griffin. 63 A.D.3d 635, 638 (1st Dept. 2009). Hence, a verdict should be set aside only when the fact-finder’s determinations “were ‘manifestly erroneous and so plainly unjustified by the evidence that rejection is required in the interest of justice.’” People v. Bartley. 219 A.D.2d 566, 567 (1st Dept. 1995), quoting People v. Corporan. 169 A.D.2d 643 (1st Dept. 1991). -12- Applying these principles, there is absolutely no reason to set aside the jury’s verdict. To begin, it is undisputed that the burglar broke into McKeon’s apartment by gaining access to her private rooftop deck and smashing the skylight in her bathroom. The morning after the break-in, McKeon discovered the wire cutters, which had been stored in her rooftop office for months, wedged in the cushions of her sofa. Then, a significant amount of defendant’s DNA was found on the wire cutters. There was no evidence presented to undermine the credibility- of the witnesses who provided testimony on this score. The most logical inference for the jury to draw from the People’s proof was that the burglar had grabbed the wire cutters from McKeon’s unlocked office on the roof, gained entry to the apartment by smashing the skylight in her bathroom, and brought the wire cutters with him into her home, leaving his DNA the handles. Thus, viewing the evidence at trial in the light most favorable to theon People, the jury reasonably concluded that defendant had broken into McKeon’s apartment. At trial, the jury quite soundly rejected defendant’s far-fetched contention that his DNA could have ended up on the wire cutters by secondary transfer, when the real burglar “managefd] to get a hold of’ defendant’s gloves and used them to commit the burglary (Defense summation: 171-73, 176). Defendant’s appellate attacks on the People’s proof are no more persuasive. Though the DNA expert did not know exactly when defendant came in contact with the wire cutters (Defendant’s Brief at 18), it made sense for the jury to infer that he had taken them from the roof before he -13- i broke into the apartment. There is no other plausible, innocent explanation for defendant’s DNA on the wire cutters. McKeon did not know defendant, and he did not have permission or authority to be in her apartment or the private rooftop office where she stored the wire cutters. Moreover, she purchased the wire cutters online, so there was not even an off-chance that defendant may have handled them in a store before she bought them. And, though McKeon’s private rooftop deck was hardly meant to be accessible to the public,6 even if people other than defendant theoretically could have touched the wire cutters (Defendant’s Brief at 18), defendant cannot escape the fact that his DNA profile was the only one found on the tool. Defendant’s reliance on People v. Person. 74 A.D.3d 1239 (2d Dept. 2010) (Defendant’s Brief at 17-18), is misplaced. In Person, the court ruled that the evidence of the defendant’s DNA recovered from a cigarette butt found outside the house in the backyard was legally insufficient to establish his guilt of burglary. Similarly, defendant’s reliance on People v. Jacob. 55 A.D.2d 961, 962 (2d Dept. 1977), is misplaced (Defendant’s Brief at 18). There, the People tried to establish defendant’s guilt of burglary with evidence of his fingerprints on the window louvers that had been removed from a church. However, there was no evidence whether the 6 The rooftop was for her “exclusive” use (McKeon: T1 229). For additional privacy, McKeon installed fencing to separate her portion of the roof from her next-door neighbor’s area (McKeon: T1 249). Moreover, one could gain access to the roof only via a door with a sliding lock next to McKeon’s front door, on the top floor of the apartment building (McKeon: T1 229-30). There is absolutely nothing in the record to suggest that the apartment building was open to members of the public. -14- fingerprints were on the “inside” or “outside” surfaces of the louvers. Accordingly, in both Person and Jacobs, there was no evidence establishing exacdy how long their DNA and fingerprints had been present near the respective crime scenes. By contrast, here, defendant’s DNA was unequivocally found inside McKeon’s apartment on the day of the burglary, and on wire cutters that had been stored for months on the roof, the burglar’s point of entry. These facts fully established defendant’s presence in the apartment, in addition to supporting the finding he handled the wire cutters on the roof before entering McKeon’s apartment through the skylight. Nor did the lack of blood and fingerprints at the crime scene undermine the inference that defendant touched the wire cutters with his bare hands (Defendant’s Brief at 19). Defendant could have easily left DNA on the wire cutters without leaving blood and fingerprints in the apartment. The skylight was made of tempered glass (McKeon: 237), specifically designed to shatter into harmless pieces without sharp edges,7 which explains how defendant managed to avoid cutting himself on the broken glass. And, as Officer Schuldner testified, there were fingerprints in the areas that he dusted in McKeon’s apartment, but they were too smudged to collect a sample that was clear enough for testing (Schuldner: T2 83). As he explained, this could have 7 Scientific American, How is tempered glass https:/ /www.scientificamerican.com/article/how-is-tempered-glass-mad/ made? -15- happened if defendant touched an object that already had McKeon’s fingerprints on it. To be sure, the evidence at trial did not establish how defendant gained access to the roof (Defendant’s Brief at 20). But there was testimony that the rooftops of the adjacent buildings were about the same height as McKeon’s building, which supported the inference that defendant managed to gain access to her roof from a building next door (Segura: T2 59). It also explains why the surveillance camera in front of McKeon’s building would not have captured defendant entering her building. At the end of the day, there is still no question that the rooftop was the intruder’s point of entry into McKeon’s apartment. This inescapable fact, coupled with the presence of defendant’s DNA on the wire cutters that McKeon stored on the roof, later found in her apartment, was enough to establish that he was the culprit. See. e.g.. People v. Harrison. 22 A.D.3d 236 (1st Dept. 2005), affd, 16 N.Y.3d 93 (2010) (even though proof of the defendant’s guilt “consisted almost entirely of DNA evidence,” the evidence “was particularly powerful and established defendant’s identity beyond a reasonable doubt”); People v. Porto. 66 A.D.3d 430 (1st Dept. 2009) (the defendant’s fingerprint on a cookie tin in the victim’s apartment established his guilt of second-degree burglary); People v. Steele. 287 A.D.2d 321 (1st Dept. 2001) (the defendant’s guilt was established by his palm print at the crime scene). In sum, the evidence at trial definitively proved defendant’s guilt of burglary. There is no reason for this Court to disturb the jury’s verdict. -16- POINT II DEFENDANT’S UNPRESERVED CONFRONTA¬ TION CLAUSE CLAIM HAS NO MERIT (Answering Defendant’s Brief, Point II). On appeal, defendant complains that OCME criminalist Melissa Huyck’s testimony about the results of the DNA testing on wire cutters recovered from the crime scene violated the Confrontation Clause because Huyck did not perform the tests on the wire cutters herself (Defendant’s Brief at 21). Relying on People v. John. 27 N.Y.3d 294 (2016), defendant insists that the People were required to call as a witness “the analyst who conducted the testing” (Defendant’s Brief at 23). Though defendant acknowledges that he failed to preserve this Confrontation Clause claim at trial (Defendant’s Brief at 24), he nevertheless asks this Court to consider it in the interest of justice. He also contends that the error in admission was not harmless, and that his trial attorney was ineffective for failing to preserve this objection for appeal (Defendant’s Brief at 24-25). Defendant’s claims are meritless. As an initial matter, as defendant acknowledges (Defendant’s Brief at 24), his present Confrontation Clause complaints are unpreserved. Though defense counsel complained about Huyck “testifying about procedures that she neither performed or observed” and about what other analysts did (T1 16), she never contended that Nor didHuyck’s testimony should be altogether precluded on that account. defendant ever insist before the trial court, as he does now, that Huyck should not be able to testify about the results of the DNA testing on the wire cutters. He also never -17- demanded that the actual analysts who performed the testing on that evidence testify at trial. Accordingly, defendant has failed to preserve his current Confrontation Clause challenges to Huyck’s testimony. See People v. Rios. 102 A.D.3d 473, 474 (1st Dept. 2013) (the defendant’s “general references to confrontation and related matters were insufficient to alert the trial court” to his claim on appeal that “the witness’s testimony should be excluded pursuant to the Confrontation Clause unless the analysts who provided the underlying information also testified”); see also People v. Daly. 140 A.D.3d 593, 593-94 (1st Dept. 2016) (Confrontation Clause claim unpreserved where the defendant did not request the People to call any other analysts): Nor should this Court review defendant’s Confrontation Clause claims in the interest of justice. A defendant’s failure to preserve a claim, on its own, is an insufficient ground for this Court to review the issue in the interest of justice. See CPL 470.15(6)(a); People v. Williams. 40 N.Y.S.3d 94, 99 (1st Dept. 2016); see also People v. Javier. 128 A.D.3d 494, 495 (1st Dept. 2015) (where lab reports were received in evidence without objection, this Court declined to review the defendant’s Confrontation Clause claim in the interest of justice because “subsequent developments in the law do not excuse defendant’s lack of objection”). This Court 8 Notably, defense counsel agreed that the pages that Huyck reviewed from the OCME report regarding the DNA from the crime scene “should come in” (T2 108). When the People sought to admit: 1) the OCME report regarding the DNA analysis of defendant’s buccal swab; and 2) the DNA comparison chart that Huyck prepared, which illustrated the match between the crime scene DNA and defendant’s buccal swab, defense counsel did not object to the admission of either document (T2 116, T2 128). -18- exercises its interest of justice power only in “extremely limited circumstances,” such as the risk that an innocent defendant has been convicted. Williams. 40 N.Y.S.3d at Kidd. 76 A.D.2d 665 (1st Dept. 1980) (exercising interest of justice review where “troublesome inconsistencies” with respect to identification the defendant left this Court with a “very disturbing feeling” that there was a “grave risk that an innocent man ha[d] been convicted”). No such circumstances existed here, as defendant was not deprived of a fair trial. As defendant points out (Defendant’s Brief at 26), the People still could have presented the DNA evidence simply by calling additional witnesses from OCME. Had defendant requested testimony from these witnesses, and had the court granted that request, his demand would have been satisfied. See, e.g.. Rios. 102 A.D.3d at 474 (when “a [Confrontation Clause] defect may be readily corrected by calling additional witnesses or directing the People to do so, requiring a defendant to call the defect to the court’s attention ‘at a time when the error complained of could readily have been corrected’ serves an important interest”) (citations omitted). Contrary to defendant’s claims (Defendant’s Brief at 24-25), defense counsel’s decision not to object to Huyck’s testimony, on its own, hardly qualifies as the kind of “extraordinary” or “special” circumstance warranting this Court’s interest of justice review power, especially given the definitive proof of defendant’s DNA at the crime scene. See Williams. 40 N.Y.S.3d at 100. As described below, there is no merit to the newfound argument defendant advances on appeal, thus trial counsel’s performance -19- can hardly be considered deficient for failing to argue that Huyck could not testify unless the People produced the analysts who conducted the testing on the crime scene DNA. See People v. Caban. 5 N.Y.3d 143, 152 (2005) (no ineffective assistance established from counsel’s failure to “make a motion or argument that has little or no chance of success”), citing People v. Stultz. 2 N.Y.3d 277, 287 (2004). Moreover, defendant’s failure to object to Huyck’s testimony at trial deprived both the court and the People of the opportunity to address this specific complaint and avoid litigating the issue on appeal. In any case, there is no merit to defendant’s contention that the Confrontation Clause required the People to produce at least one of the analysts who did the actual testing on the crime scene evidence before Huyck could testify (Defendant’s Brief at 22-23). Of course, defendant’s right to confrontation under the Sixth Amendment and New York Constitution extends to statements that are testimonial. Crawford v. Washington: 541 U.S. 36 (2004); People v. Brown 13 N.Y.3d 332 (2009); People v. Rawlins. 10 N.Y.3d 136 (2008). In the specific context of testimony regarding DNA test results, the People are not required to produce one of the analysts who actually ohn, 27 N.Y.3d at 315;conducted the underlying testing on the DNA evidence. Brown. 13 N.Y.3d at 341; Meekins 10 N.Y.3d at 158-59. Where DNA testing from the crime scene was conducted before defendant became a suspect in the case, the test results are nontestimonial. See John. 27 N.Y.3d at 309-10. The People may instead produce a witness who is both familiar with the testing procedures that were -20- conducted and qualified to interpret the results. See Williams v. Illinois. 132 S.Ct. 2221, 2244 (2012); Brown 13 N.Y.3d at 340-41; Meekins 10 N.Y.3d at 159-60. And, even when a DNA report is testimonial— that is, when it is “generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of a defendant in his pending criminal action” — the People still do not have to produce the actual analysts who conducted the underlying testing. John. 27 N.Y.3d at 308, 315. Rather, it suffices if the witness is “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data.” John. 27 N.Y.3d at 315. Applying those principles here, defendant’s Confrontation Clause rights were not violated by Huyck’s testimony. Just as in Williams. Brown, and Meekins. and unlike the situation in John, the DNA from the crime scene was tested before defendant was identified as a suspect. Accordingly, the OCME report, consisting of “merely machine-generated graphs, charts and numerical data,” involving “no conclusions, interpretations, comparisons or subjective analysis,” was nontestimonial. See Brown 13 N.Y.3d at 340-41; see also Illinois. 132 S.Ct. at 2244; Meekins 10 N.Y.3d at 159-60. And, like the witnesses in Williams. Brown, and Meekins. Huyck was perfectly competent to testify about the contents of the report. Here, as someone who had supervised “hundreds, if not thousands” of DNA tests at OCME (Huyck: T2 96), Huyck testified knowledgeably about the procedures and protocols of DNA -21- testing. Based on her experience as an OCME Criminalist Level III, she was able to interpret the report in evidence and describe the procedures the analysts undertook to conduct the testing of the DNA from the crime scene (Huyck: T2 110-15). From there, she personally reviewed the raw data from the report of defendant’s known DNA sample, compared it to the crime scene DNA, and made the critical conclusion linking defendant’s DNA to the profile detected on the wire cutters. Defendant had every opportunity to challenge Huyck’s conclusions and findings on cross- examination, thus his Confrontation Clause rights were not violated. Contrary to his claims, testimony from the analysts who conducted the testing on the wire cutters was unnecessary because they “would not have been able to offer any testimony other than how they performed certain procedures.” Brown. 13 N.Y.3d at 340; see also ohn, 27 N.Y.3d at 313-14. In sum, defendant failed to preserve his Confrontation Clause challenge to Huyck’s testimony. Nor should this Court reach his claim in the interest of justice. In any case, there is no merit to defendant’s challenges to the admission of Huyck’s testimony. Accordingly, there is no reason for this Court to disturb defendant’s conviction on these grounds. -22- POINT III DEFENDANT’S SENTENCE IS FAIR AND APPROPRIATE (Answering Defendant’s Brief, Point III). Defendant was sentenced, as a persistent violent felony offender, to an indeterminate prison term of from 20 years to life. He now urges this Court to reduce his sentence to the minimum term of 16 years to life in prison. Defendant contends that he deserves the minimum sentence because the evidence of his guilt was “extremely thin,” and “no one was harmed” during the commission of his crime (Defendant’s Brief at 27). He also reasons that the minimum sentence simply makes him eligible for parole earlier, but would not actually result in his release from prison if the parole board deems him unfit (Defendant’s Brief at 28). Finally, defendant cites his age and health as reasons to reduce his sentence (Defendant’s Brief at 28). All of these claims are without merit. Far from excessive, defendant’s sentence properly took into account defendant’s “serious and violent felony record” and the “violent felony offense” he committed here (S: 7).9 With a violent criminal history dating back to 1975 (PSR at 2), defendant has proven himself to be a danger to the community. Defendant’s felony convictions include gun possession, armed robbery, and several burglaries. He committed each of these crimes shortly after being released from prison, and through 9 Parenthetical references beginning with “S” and “PSR” are to the sentencing minutes and the pre-sentence report prepared by the Department of Probation, respectively. -23- the use of aliases (S: 9; PSR at 3), he tried to avoid the imposition of longer sentences based on his criminal history. Notably, when defendant committed the instant crime, he was on lifetime parole (S: 6). And, when he committed this crime, he was at liberty despite pending cases in the Bronx and New York County for home invasions in which he tied up his victims, including one 78-year-old woman he robbed at knifepoint (S: 5-6; PSR at 3-4).10 Obviously, defendant’s prior stints of incarceration and the prospect of returning to prison did not stop him from literally breaking into McKeon’s apartment by smashing her skylight and stealing several pieces of valuable jewelry and priceless heirlooms. And, despite the compelling evidence of his guilt in this case, defendant has never accepted responsibility for his actions (PSR at 3). Thus, given his violent criminal history, the seriousness of the instant offense, and his failure to acknowledge the wrongfulness of his crimes, defendant was hardly deserving of the minimum prison term he seeks. The sentencing court was right to impose an indeterminate prison term of from 20 years to life. Defendant’s arguments in support of his bid for a sentence reduction are unavailing. To begin, the proof of his guilt was hardly “thin” (Defendant’s Brief at 27). As explained more fully in Point I, defendant’s DNA on the wire cutters in 10 Under New York County Indictment Number 5471/2009, defendant pleaded guilty to committing five separate home invasions prior to committing the burglary in the instant case and was sentenced to an aggregate indeterminate prison term of from 25 years to life, to run concurrently with his sentence in the instant case. His appeal of that conviction is calendared for the same term as the instant case. -24- McKeon’s apartment was definitive proof that he had broken into the apartment. And, even though she was not home when he broke in, there is no question how unsettling his intrusion into her home must have been, especially with the physical destruction he left behind and the obvious traumatization of McKeon’s dog. Next, by arguing that the minimum sentence would be appropriate because the parole board could reject his request for release if they deem him unfit (Defendant’s Brief at 28), even defendant acknowledges the possibility that he deserves more than the minimum prison term. Nor does he deserve a minimum sentence due to his age and “medical issues” (Defendant’s Brief at 28). Defendant does not elaborate on what exactly these medical issues are, nor does he explain how they would make his life more difficult while incarcerated. Moreover, there is no indication that if he is ever paroled, he will be in such poor health that he will no longer be a threat to the community. In sum, defendant’s sentence was fair and appropriate, and there is no reason for this Court to reduce it. -25- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County email@example.com PATRICKJ. HYNES SHEILA L. BAUTISTA Assistant District Attorneys Of Counsel December 2016 -26- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 6447, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.