The People, Respondent,v.William Rodriguez, Appellant.

Brief

N.Y.June 5, 2018

To be argued by ANITA ABOAGYE-AGYEMAN NEW YORK SUPREME COURT APPELLATE DIVISION — FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILLIAM RODRIGUEZ, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. Attorney for Defendant-Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5th Floor New York, N.Y. 10038 (212) 577-3517 ANITA ABOAGYE-AGYEMAN Of Counsel aaboagve-agveman@legal-aid.org TABLE OF CONTENTS TABLE OF AUTHORITIES .iv PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED .2 STATEMENT OF FACTS .3 is Burglarized 3 The Police Investigation ,5 The DNA Evidence. .8 Summations 13 Charge, Verdict and Sentence 15 ARGUMENT POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT AND THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE ONLY EVIDENCE OF GUILT WAS THE PRESENCE OF APPELLANT WILLIAM RODRIGUEZ’S DNA ON THE COMPLAINANT’S WIRE CUTTERS, WHICH WERE NORMALLY LOCATED IN AN AREA OF HER ROOFTOP THAT WAS ACCESSIBLE TO INDIVIDUALS OTHER THAN THE COMPLAINANT. U.S. CONST. AMENDS. V, XIV; N.Y. CONST. ART. I, § 6 16 POINT II WILLIAM RODRIGUEZ’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT ADMITTED THE EXPERT TESTIMONY ii OF A CRIMINOLOGIST WHO DID NOT PERFORM THE DNA TESTING THAT LINKED MR. RODRIGUEZ TO THE BURGLARY....21 POINT III GIVEN WILLIAM RODRIGUEZ’S AGE AND HEALTH PROBLEMS HIS SENTENCE OF 20 YEARS TO LIFE WAS EXCESSIVE AND SHOULD BE REDUCED IN THE INTEREST OF JUSTICE .26 .29CONCLUSION 1ASTATEMENT PURSUANT TO RULE 5531 ,2APRINTING SPECIFICATIONS STATEMENT iii TABLE OF AUTHORITIES Cases Crawford v. Washington. 541 U.S. 36 (2004) .22 Hall v. DiPaolo. 72 F.3d 243 (1st Cir. 1996) 19 Jackson v. Virginia. 443 U.S. 307 (1979) 16 Melendez-Diaz v. Massachusetts. 557 U.S. 305 (2009) .22 Mikes v. Borg. 947 F.2d 353 (9th Cir. 1991) ...20 Murray v. Carrier. 477 U.S. 478 (1986) .25 People v. Baldi. 54 N.Y.2d 137 (1981) .25 People v. Bleaklev. 69 N.Y.2d 490 (1987) 16 People v. Bradley. 8 N.Y.3d 124 (2006) .22 People v. Brown. 13 N.Y.3d 332 (2009) .22 People v. Chin, 3 A.D.3d 427 (1st Dep’t 2004) .27 People v. Crimmins. 36 N.Y.2d 230 (1975) .24 16People v. Danielson, 9 N.Y.3d 342 (2007) People v. Farrar. 52 N.Y.2d 302 (1981) .26 People v. Fernandez, 84 A.D.3d 661 (1st Dep’t 2011). .26 People v. Goldstein. 6 N.Y.3d 119 (2005). .23, 24 .27People v. Hamilton, 52 A.D.3d 227 (1st Dep’t 2008) .24People v. Hardy, 4 N.Y.3d 192 (2005) iv People v. Harris. 304 A.D.2d 355 (1st Dep’t 2003) .27 People v. Henderson, 53 A.D.2d 984 (3d Dep’t 1976). 19 People v. Jacobs. 55 A.D.2d 961 (2d Dep’t 1977) 18 People v. King. 146 A.D.2d 648 (2d Dep’t 1989) .26 People v. Kvser. 26 A.D.3d 839 (4th Dep’t 2006) .24 People v. Notev, 72 A.D.2d 279 (2d Dep’t 1980) .27 People v. Pealer. 20 N.Y.3d 447 (2013) .22 People v. Pedraza. 25 A.D.3d 394 (1st Dep’t 2006). .27 People v. Person. 74 A.D.3d 1239 (2d Dep’t 2010) 17, 18 People v. Rivera, 71 N.Y.2d 705 (1988) .25 People v. Rolling. 3 A.D.3d 436 (1st Dep’t 2004) .27 People v. Rosenthal. 305 A.D.2d 327 (1st Dep’t 2003) .26 People v. Sean John, 2016 NY Slip Op 03208 .22, 23 People v. Smith. 39 A.D.2d 855 (1st Dep’t 1972) 17, 20 People v. Suitte. 90 A.D.2d 80 (2d Dep’t 1982). .26 People v. Turner. 5 N.Y.3d 476 (2005) .25 People v. Wiggins. 24 A.D.3d 263 (1st Dep’t 2005). .27 People v. Williams. 84 N.Y.2d 925 (1994) .17 People v. Woltering. 275 N.Y. 51 (1937) .17 Strickland v. Washington. 466 U.S. 688 (1984) .25 v k .22Williams v. Illinois. 132 S Ct 2221 (2012) Statutes 16, 22, 25N.Y. Const. Art. I, § 6 17N.Y. Crim. Proc. Law § 70.20 N.Y. Crim. Proc. Law § 450.15 .26 .26N.Y. Crim. Proc. Law § 470.15 (2)(c) .21N.Y. Crim. Proc. Law § 470.15 (5) .26N.Y. Crim. Proc. Law § 470.15 (6)(b) 16U.S. Const. Amend. V. .21,25U.S. Const. Amend. VI 16U.S. Const. Amend. XIV vi -SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Ind. No. 9/2013 -against- WILLIAM RODRIGUEZ, Defendant-Appellant. x PRELIMINARY STATEMENT This appeal is a from a judgment of conviction, rendered on March 19, 2014 by the Supreme Court, New York County (Carruthers, J.). William Rodriguez was convicted, after a trial, of burglary in the second degree, P.L. § 140.25(2). He was sentenced to 20 years’ to life imprisonment. Timely notice of appeal was filed and this Court, by order dated June 19, 2014, granted Mr. Rodriguez leave to prosecute his appeal as a poor person and on the original record and reproduced briefs, assigning Scott A. Rosenberg, since succeeded by Seymour W. James, Jr., as counsel on appeal. No stay of execution has been sought and Mr. Rodriguez is currently serving his sentence pursuant to the judgment appealed herein. 1 QUESTIONS PRESENTED 1. Whether the evidence was legally sufficient and the verdict against the weight of the evidence where the only evidence of guilt was the presence of appellant William Rodriguez’s DNA on the complainant’s wire cutters, which were normally located in an area of her rooftop that was accessible to individuals other than the complainant. U.S. Const. Amends. V, XIV; N.Y. Const. Art. I, § 6. 2. Whether William Rodriguez’s Sixth Amendment right to confront the witnesses against him was violated when the trial court admitted the expert testimony of a criminologist who did not perform the DNA testing that linked Mr. Rodriguez to the scene of the burglary. 3. Whether given William Rodriguez’s age and health problems, his sentence of 20 years to life excessive and should be reduced in the interest of justice. 2 STATEMENT OF FACTS 601 Hudson Street is Burglarized KATHLEEN MCKEON., the complainant, lived in apartment 9, located on the 5th floor, at 601 Hudson Street in Manhattan. (T. 226)k She moved into the apartment in May 2013 and lived alone. (T. 226). Upon entering the apartment, you stepped into a hallway, where one end led to the front of the building and the living room, and the other to the apartment’s two bedrooms as well as the bathroom, the kitchen and dining area and the master bedroom, which was in the back of the building. (T. 227-8). According to -the complainant, she slept in the master bedroom and used the second bedroom as a closet and storage facility. (T. 227). While there were windows in the living room, the side of the building and in the master bedroom, the bathroom and the dining and kitchen areas had skylights. (T. 228). The complainant’s apartment also had rooftop area, which was accessible by a set of stairs near the door to the entrance of the apartment. (T. 229). Her neighbors in apartment 10 also had similar rooftop access and their rooftop was a mirror image of hers. (T. 230). Once on the roof, on the left hand side was her 1 A number preceded “T” refers to the trial testimony of Kathleen McKeon, the complainant, and the testimony of Police Officer Stephen Digena, the officer who responded to the complainant’s 911 call. The witnesses were questioned on February 28, 2014; “T2.” refers to the remainder of the trial testimony, summations, and the court’s charge, and verdict which occurred from March 3 to March 4, 2014. A number preceded by “S.” refers to the sentencing minutes dated March 19, 2014. 3 glass enclosed office and on the right was the walkway and an open deck area. (T. 230). Ms. McKeon owned a teaching company that offered GMAT and SAT prep courses and on Thursday, August 23, 2012, at approximately 7:00 a.m., she tutored a student until about 9:00 a.m. (T. 225, 234). Although she did not often travel for work, that day, she left her apartment between 11:30 a.m. and 11:40 a.m. to go to Philadelphia, where she would be teaching a class for a colleague. (T. 234). According to Ms. McKeon, she left her apartment in “normal condition” with her dog present. (T. 235). The apartment was neat, the laundry was in the hamper, all the windows were closed, and she locked the front door when she left. (T. 235). She arrived home at approximately 12:40 a.m. on August 24, 2012. (T. 235). When she got to the landing on her floor, she saw that the door was cracked open and when she peeked in, saw shattered glass on the floor of the first bathroom. (T. 236). She looked for her dog and found her in the second bedroom, hiding underneath a pile of clothing that had been thrown out of one of the drawers next to the laundry bin; the pile of clothes was not there when she left. (T. 236). She went around the apartment and looked in the bathroom where she saw that the skylight was broken and the floor was covered with shards of glass. (T. 237). She called the police and then looked in the master bedroom, which she described as “disheveled” with “a pile of stuff on the floor.” (T. 237). There wasn’t anyone in 4 r the apartment so she went to the living room where she found that some items had been moved around but nothing had been thrown about. (T. 237). Before the police arrived, she did a cursory search of the apartment because she was unsure of what to do. (T. 238). In her bedroom, a number of boxes had been taken from the space above the closet and had been searched. (T. 244). She also looked in a drawer in the second bedroom where she kept her jewelry and found that it was all missing. (T. 238-9). Among the missing items were gold bracelets, pearl necklaces and platinum signet rings. (T. 240). Aside from opening the drawers, she did not recall touching anything else. (T. 243v,248, 259). Finally, she stated that she did not know anyone by the name of William Rodriguez and that no one was authorized to be in her apartment that day. (T. 260). The Police Investigation Police Officer STEPHEN DIGENA and his partner, Officer HENNIGAN, were the response team assigned to the case. (T. 265). They arrived at the complainant’s apartment at approximately 12:30 a.m. on August 24, 2012. (T. 265). When they arrived, they walked around the apartment with her and made a list of things that had been taken but did not touch anything. (T. 243, 267, 269). They saw the broken skylight and the shards of glass on the bathroom floor but they did not enter in order to preserve the evidence. (T. 267-68, 272). Officer Digena testified that there was no blood on any of the glass. The officers and Ms. 5 1McKeon then went to roof to determine if someone could have entered the apartment some other way and noticed that there was a propane tank, which was not hers, by the skylight. (T. 245-6, 270). The police called an evidence team and were told it would be several hours before one arrived. (T. 243,271). The complainant chose to wait until the following morning to call the evidence team. (T. 244-5). The following day, at around 9:00 a.m., the complainant called the police again and Detective JOSE SEGURA and a member of the evidence collection team, Police Officer STEPHEN SCHULDNER, arrived at her apartment. (T. 245, T2. 56, 57, 75). Both of them testified about the broken skylight and shards of glass on the bathroom floor. (T2. 57, 77). According to Officer Schuldner, he did not find any blood in the apartment and when he, Det. Segura and the complainant went to the roof to check out the point of entry, he did not find any blood there either. (T2. 59, 87-8). Det. Segura asked her if anything was missing from the apartment and she responded that even though everything was “very neatly stacked” things had been taken out and put back in and in some cases were in different drawers. (T. 247, T2. 58). Officer Schuldner dusted around the bathroom and the bedroom where the jewelry had been taken. (T. 247, T2. 82). He was unable, however, to lift a clean fingerprint because the prints had been smudged. (T2. 83). On cross-examination, Schuldner admitted that oftentimes, 6 perpetrators wore gloves and so there would be no fingerprints at the scene of the crime. (T2. 89). While the team was doing their work, the complainant noticed a pair of wire cutters wedged in the cushions in the living room sofa. (T. 248, T2. 60). She told Officer Schuldner about the tools and he took some pictures and put them in a bag. (T. 253-54, T2. 78). He, however, did not dust them for fingerprints because, according to him, he did not want to disturb the DNA on the surface of the wire cutters. (T2. 83). According to Ms. McKeon, although the wire cutters belonged to her, they were out of place because they had been on.the roof and had no reason to be in her apartment. (T. 249). She ordered the tools in April or May 2012 from Home Depot’s online store and when they arrived, she used them to attach bamboo fencing along the outside of the deck area to create some privacy. (T. 249). She installed the fencing in late May or early June and she kept the tools in a cubby on a bookcase in the glass enclosed office, which she often left unlocked. (T. 214, 249-50). She testified that she did not use them again and she never brought them into her apartment. (T. 250, 261). And when she left her apartment on the day it was burglarized, they were in the cubby on the bookcase. (T. 250). Aside from checking out the apartment, Detective Segura also knocked on doors around the building for witnesses but no one had seen anything and there was no surveillance footage available. (T2. 60). 7 Before leaving her apartment, Officer Schuldner swabbed the complainant’s cheeks for DNA that would be used to rule her out as someone who touched the wire cutters. (T. 256-57, T2. 84-6). A few months later, Det. Segura received a fax from the Office of the Chief Medical Examiner (“OCME”) and he learned that DNA had been recovered from the pliers and it matched appellant William Rodriguez’s DNA. (T2. 62-3). The DNA Evidence MELISSA HUYCK. an employee in OCME’s Forensic Biology Department testified that she worked in a lab that identified individuals based on DNA samples they left at crime scenes. (T2. 99). Before her testimony, however, counsel objected to the admission of the some of the documents in the OCME file created in this case. (T2. 107). Counsel argued that these documents were not directly related to the case, but instead provided information about the cold hit. (T2. 108). On the other hand, counsel believed that the documents that referenced the testing procedure, which the witness initialed, could be admitted. (T2. 108). Significantly, the court sought to determine if the witness conducted all the testing herself and the prosecutor responded that while she reviewed the filed, another criminologist did the actual testing. (T2. 108). Consequently, the court concluded that the raw data generated by the OCME’s lab was admissible, (T2. 108), even though the witness did not personally conduct the tests. (T2. 113). At no point did 8 defense counsel object to Huyck’s testimony as violative of the confrontation clause. Huyck started her testimony by explaining to the jurors, in basic terms, what DNA was and added that there was a type of DNA known as “touch DNA,” which was DNA in skin cells that were transferred to an object that had been touched. (T2. 99). She further explained that an individual’s profile would not always be obtained from a touch DNA sample depending on the amount of DNA leftover and the amount of DNA they recovered from the object. (T2. 99). There were other factors that determined whether DNA would be deposited on an object via touch. First, the length of time and frequency with which an object was touched played a role in the amount of DNA deposited on that object. (T2. 100). Thus, there was a greater likelihood of finding someone’s DNA on his personal cellphone than on something he touched for a few minutes or seconds. (T2. 100). Second, some people shed more skin cells than others and so were more likely leave a greater amount of DNA. (T2. 100). In the same vein, individuals who sweat a lot were more likely to leave their DNA behind. (T2. 101). Third, the amount of force used when touching an object could determine how much DNA was left on that object. (T2. 127). And you were also more likely to leave more DNA on surfaces with more friction than on smooth surfaces. (T2. 101). She also testified that environmental factors also played a role in the DNA recovery process. 9 An object exposed to the elements was likely to have less DNA on it than an object not exposed to sun or precipitation. (T2. 102). Finally, she noted that if someone wore gloves while touching something, you would not expect to find that person’s DNA on the object. (T2. 100). Turning to this case, the analyst testified that her office received a pair of wire cutters whose handles were swabbed for DNA. (T2. 109, 111). Although she did not personally examine the items, the witness “assume[d] that the analyst [who] did” wore protective gear and cleaned the equipment used.” (T2. 111). When her. office ran the DNA tests, the results came up with a “single source . male DNA profile,” meaning that the DNA was from one person, who happened to be a man; the complainant provided the elimination swab and the testing results excluded her as a contributor to the sample on the wire cutters. (T2. 113, 124, 130). The results were then uploaded unto the CODIS database and the lab received notification that the DNA matched someone in the database named William Rodriguez. (T2. 114-5). Although she did not do the comparison testing herself, the witness examined the results and determined that the DNA from the database and the DNA from the wire cutters were “an exact match.” (T2. 122, 124, 130, 132). Ms. Huyck testified that she would not be surprised to learn that the DNA of the owner was not found on the tools if the owner hadn’t used the tools in about 10 three weeks to a month. (T. 125). This was because there often was not a lot of DNA deposited from skin cells and if the person had last used the tools about a month prior, her DNA may not be present. (T2. 125). It was also possible that the next person to use the cutters may have removed the DNA present and deposited his DNA instead. (T2. 125). Furthermore, even though the wire cutters were not tested for a few months after they were retrieved from the apartment, DNA would not rub off because the wire cutters were maintained in a sealed paper bag. (T2. 125). In this case, there was a “significant amount of DNA on the wire cutters” - which suggested that there was enough DNA present to enable the testing process and the DNA came from a single person. (T2. 126). The amount of DNA present suggested that someone actually used the wire cutters forcefully or for a decent amount of time. (T. 126-7). Merely brushing up against any object would not deposit as much DNA as they found on the wire cutters because even though it was possible to leave DNA cells behind through a mere touch, it was also possible that the lab would not be able to detect the amount of DNA left behind my a mere touch. (T2. 126-7). On cross-examination, Ms. Huyck testified that she had a master’s degree with a concentration in forensic science and admitted that although she took classes in toxicology, criminalistics, handwriting determination, crime scene processing and crime scene reconstruction, (T2. 135 136), she had not published 11 any papers on forensic DNA analysis nor had she taken classes in DNA analysis as part of her forensic degree. (T2. 137). She also testified about a phenomenon known as “primary transfer,” which happened when skin cells came from a part of someone’s body and were deposited on the surface of an object. (T2. 139). For example, an individual wearing gloves would transfer DNA to the inside and outside of those gloves by wearing them and taking them off. (T2. 142). Some people, known as “good shedders,” shed skin cells at a higher rate than other individuals and they often left more DNA behind than poor shedders. (T2. 140,.143). In addition to primary transfer, there was also “secondary transfer.” (T2. 144). This occurred when there was an intermediate step in the transfer process. (T2. 144). For example, if you shook someone’s hand, your cells could be transferred to whatever that person touched. (T2. 144). Using the gloves as another example, she testified that, if a person transferred DNA to a pair of gloves by putting them on or coughing or sneezing on them, the DNA on the gloves may be transferred to another surface. (T2. 144). However, this all depended on the type of gloves used and what DNA was present on the gloves. (T2. 147). And while she could not say for sure how often secondary transfer occurred, it was definitely possible. (T2. 147). 12 Of course, the amount of DNA present as a result of the secondary transfer depended on a number of factors including the amount of DNA present before the transfer, and the amount pressure and friction applied to the object. (T2. 144-5, 147-8). On redirect, she also testified that the length of time between the DNA deposits and transfers could also have an effect on how much DNA there was available to test. (T. 148-9). However, she admitted that, although OCME’s labs could determine whether DNA from a crime scene matched a particular individual, there was no way of knowing how the DNA got to the scene. (T2. 145). Therefore, even though she testified that only Mr. Rodriguez’s DNA was found on the tools, and there was five to six times the amount of DNA necessary for testing, she could not say whether appellant was the only person to actually use the tools, or if his DNA had been transferred there by someone else. Summations The defense summation was simple: based on the circumstantial evidence presented, the People had not proved, beyond a reasonable doubt, that appellant William Rodriguez burglarized the complainant’s apartment. (T2. 163). First, although the perpetrator entered the apartment through the skylight in the bathroom and left shards of glass everywhere, there was no blood anywhere in the apartment. (T2. 163-4). Second, there was an absence of fingerprints on the scene and one of the police officers admitted that often, in these types of burglaries, the perpetrator 13 wore gloves. (T2. 165). Finally, relying on the OCME criminalist’s testimony, counsel argued that the secondary transfer process explained how Mr. Rodriguez’s DNA ended up in the apartment. (T2. 167-9). Since the criminalist explained that an individual was likely to transfer large quantities of DNA to something that person used regularly, the actual perpetrator must have used gloves that belonged to Mr. Rodriguez. (T2. 168). And in the commission of the crime, that individual transferred Mr. Rodriguez’s DNA from the gloves to the tools, which is how appellant’s DNA ended up in the apartment. (T2. 168-9). In other words, the fact that appellant’s DNA was found on the wire cutters did not mean that he was ever in the apartment— it only showed that his DNA was transferred to the apartment via a third party. (T2. 170) In response, the prosecutor, unsurprisingly, disagreed with defense counsel’s characterization of the case. She argued that the evidence showed that burglars tools— in this case, the complainant’s own wire cutters— were found out of place in her apartment. (T2. 191). The DNA found on the tools matched appellant’s which was evidence of his presence in the apartment. (T2. 192). The prosecutor continued that there was nothing to suggest that secondary transfer of DNA occurred in this case. (T2. 195). According to the prosecutor, it was “unbelievable” that an individual stole appellant’s gloves and then used those gloves to commit a burglary. (T2. 198). Furthermore, if someone had done that 14 then, according to the prosecutor, that person would have left his DNA behind. (T2. 199). However, that did not occur and the only person whose DNA was on the wire cutters was appellant. (T2. 200, 206). Accordingly, the prosecutor argued, she had met her burden. Charge. Verdict and Sentence The court charged the jurors with one count of burglary in the second degree and the jurors convicted appellant of that charge. (T2. 224, 235). On March 19, 2014, Mr. Rodriguez appeared before the Court for sentencing and was adjudicated a persistent violent felony offender. (S. 1, 4). The prosecutor asked that the court sentence him to the maximum sentence in this case— 25 years to life in state prison. (S. 5). According to the prosecutor, the facts of the case, as well as Mr. Rodriguez’s criminal record, which included convictions for kidnapping, warranted such a lengthy sentence. (S. 5-6). In response, defense counsel argued that the minimum sentence, 16 years to life, was appropriate in this case. (S. 6). Counsel noted that at Mr. Rodriguez’s age, 57, he would not be eligible for parole until age 73. (S. 6). Furthermore, he suffered from a heart condition as well as other medical issues that could affect his life expectancy. (S. 6). Therefore, the minimum sentence was appropriate. Following these arguments, the court sentenced Mr. Rodriguez to 20 years to life. (S. 7). 15 ARGUMENT POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT AND THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE ONLY EVIDENCE OF GUILT WAS THE PRESENCE OF APPELLANT WILLIAM RODRIGUEZ’S DNA ON THE COMPLAINANT’S WIRE CUTTERS, WHICH WERE NORMALLY LOCATED IN AN AREA OF HER ROOFTOP THAT WAS ACCESSIBLE TO INDIVIDUALS OTHER THAN THE COMPLAINANT. U.S. CONST. AMENDS. V, XIV; N.Y. CONST. ART. I, § 6. Appellant William Rodriguez was accused of burglary in the second degree because his DNA happened to be found on an object in the complainant’s apartment, even though this was the only evidence tying him to the crime. This DNA evidence, without more, did not establish that Mr. Rodriguez was the one who burglarized the apartment. Accordingly, the conviction should be reversed as a matter of law. At the minimum, the verdict was against the weight of the evidence and the conviction should be reversed and the indictment dismissed. U.S. Const., Amends. V, XIV; N.Y. Const, Art. I, § 6; Jackson v. Virginia, 443 U.S. 307 (1979); People v. Danielson. 9 N.Y.3d 342, 348 (2007); People v. Bleakley, 69 N.Y.2d 490, 495 (1987). A verdict is legally sufficient if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson, 443 U.S. 307, 16 319 (1979); People v. Williams. 84 N.Y.2d 925, 926 (1994); N.Y. Crim. Proc. Law § 70.20. While the prosecution may rely exclusively on circumstantial evidence to prove burglary charges, this Court has set the bar high in these kinds of cases. See People v. Smith, 39 A.D.2d 855, 856 (1st Dep’t 1972) (“Where...an alleged conviction rests on circumstantial evidence, ‘the evidence must be such as to exclude, to a moral certainty, every hypothesis but that of (defendant’s) guilt of the offense imputed to him’”) (quoting People v. Woitering, 275 N.Y. 51,61 (1937)). For DNA evidence to prove a defendant’s guilt of robbery, the People must show that the object on which the evidence was found was generally inaccessible except during the crime’s commission. See People v. Person, 74 A.D.3d 1239, 1241 (2d Dep’t 2010). Here, the DNA evidence did not meet this standard. The evidence was found on wire cutters that were located in an office on the rooftop of the complainant’s building. The complainant admitted that she often left this office unlocked, implying that others could have access to the office and its contents. As the expert testified, “DNA remained stable over time,” (T2. 126) and she could not say when this DNA was deposited on the wire cutters. Viewing this evidence in the light most favorable to the People, this DNA proved that, at some point, Mr. Rodriguez’s DNA ended up on the wire cutters. But having his DNA on the tools 17 did not prove that he was the one who entered the complainant’s apartment and stole her property. This case is similar to Person, 74 A.D.3d 1239, and People v. Jacobs, 55 A.D.2d 961, 962 (2d Dep’t 1977), where the Second Department reversed convictions for burglary based on DNA and fingerprints found outside the burglary sites. In Person, a cigarette butt with the defendant’s DNA was in the yard “near the shattered glass doors” of a burgled house, and next to a hatchet. 74 A.D.3d 1239. Nonetheless, the Court held that that because the DNA was found outside the house, and the expert couLrinot say how long it had been there, there was insufficient proof it was left by the burglar. Id, Similarly, in Jacobs, 55 A.D.2d 961, the defendant’s fingerprints were on louvers removed from the window used to gain entry to the building. This was insufficient because there was no proof establishing when the prints were made or ruling out the possibility that other people may have touched the louvers, even though it was in an area entirely enclosed by a fence. The DNA here failed to prove Mr. Rodriguez’s guilt for the same reasons and the DNA and prints in Person and Jacobs failed: (1) the expert did not know when the DNA was deposited and (2) the wire cutters were in a location accessible to individuals other than the complainant and the burglar. The complainant testified that there was set of stairs near the door to her apartment that gave her 18 rooftop access. (T. 229). And although she said that there was a door with a lock to those stairs, there was no testimony that the door was locked on that particular day or that she was the only one with access to that door. Significantly though, she testified that her office, where she kept the tools, was not locked, (T. 214), thereby implying that anyone could have had access to the wire cutters. See People v. Henderson, 53 A.D.2d 984, 985-86 (3d Dep’t 1976) (fingerprint on cabinet in burglarized office insufficient when it could have been left previously, either innocently, since the office was not always locked); Hall v. DiPaolo, 72 F.3d 243, 245 (1st Cir. 1996) (in fingerprint-only cases, evidence “must foreclose all reasonably viable possibilities” that print could have been “left at some other time”). There is simply no other evidence that fills this gap in the People’s proof. As all of the People’s police witnesses admitted, even though they found shards of glass in the apartment, there was no blood. (T. 272-3, T2. 87-8). And the officer from the evidence collection unit admitted that very often, in these types of burglaries, the perpetrator wore gloves. (T2. 89, 165). It would be surprising that the perpetrator, who left behind no blood or fingerprint evidence, would be so careless as to let his skin touch anything in the apartment, let alone the tools that were presumably used to commit the burglary. It is even telling that neither Mr. Rodriguez’s DNA nor fingerprints identifiable as his were found elsewhere in the 19 apartment. According to the testimony adduced at trial, the burglar used a propane tank to break into the skylight yet there was no testimony that the propane tank was even tested for DNA or fingerprints. Similarly, there was no testimony that the drawers in the second bedroom were swabbed for DNA. There was no reason for the failure on People’s part to offer this evidence and the absence of such evidence adds to the likelihood that it was someone else who burglarized the premises. See Mikes v. Borg, 947 F.2d 353, 357 n.7 (9th Cir. 1991) (evidentiary showing that fingerprint could have been left only during the crime’s commission is critical when it is only the defendant's prints that appear on,a particular item). Moreover, there is no evidence as to how Mr. Rodriguez got on the roof. As the complainant testified, her apartment was on the 5th floor of the building, which was also the top most floor. (T. 227). There was no testimony that anyone saw Mr. Rodriguez enter the building, no surveillance footage or any explanation as to how he got on the roof. These gaps in the People’s case were simply too wide to be filled by the evidence presented. Simply put, “the evidence was not sufficient to duly establish the inference, to the exclusion of any other reasonable explanation under the evidence, that [appellant] had actually entered or had been in the burglarized apartment or had participated in the entry thereof.” Smith, 39 A.D.2d at 856. Therefore, the People failed to prove his guilt beyond a reasonable doubt. 20 Alternatively, this Court should reverse the conviction as against the weight of the evidence, and dismiss the indictment. See N.Y. Crim. Proc. Law § 470.15(5). POINT II WILLIAM RODRIGUEZ’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT ADMITTED THE EXPERT TESTIMONY OF A CRIMINOLOGIST WHO DID NOT PERFORM THE DNA TESTING THAT LINKED MR. RODRIGUEZ TO THE SCENE OF THE BURGLARY. Appellant William Rodriguez’s federal and state constitutional rights to confront and cross-examine the witnesses against him were violated when the jury heard and considered testimony concerning the results of a DNA test performed by a criminalist— who worked for the OCME and was not present at trial— concluding that Mr. Rodriguez’s DNA was found on tools that were purportedly used during the burglary. Melissa Huyck, a criminologist with OCME, who did not test the tools herself, testified that the results of the forensic test showed that the DNA on the tools matched William Rodriguez’s DNA. Her testimony was inadmissible since it failed to meet the People’s constitutional obligations. Accordingly, William Rodriguez’s conviction should be reversed. The Sixth Amendment to the United States Constitution provides every criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. Amend. VI (“Confrontation Clause”). Employing “virtually identical language,” the New York Constitution also guarantees the right of confrontation to 21 criminal defendants. N.Y. Const. Art. I, § 6; People v. Bradley, 8 N.Y.3d 124, 126 (2006). In Crawford v. Washington, the Supreme Court explained that the Confrontation Clause bars the admission of witness statements that are “testimonial” in nature unless the defendant has the opportunity to cross-examine the witness. 541 U.S. 36, 53 (2004). “Testimonial” evidence includes reports of lab evidence that are created to serve as evidence in a criminal proceeding. See Melendez-Diaz v. Massachusetts. 557 U.S. 305, 310 (2009) (lab report concluding substance is cocaine testimonial); People v. Pealer, 20 N.Y.3d 447, 454 (2013) (citing Melendez-Diaz and recognizing that an affidavit identifying a substance as cocaine is testimonial); People v. Brown.13 N.Y.3d 332, 339 (2009). Most recently, in People v. Sean John, the Court of Appeals considered the admissibility of the results of a DNA test conducted on a gun. 2016 NY Slip Op 03208. Adopting the “primary purpose” test a four-justice plurality of the Supreme Court used in Williams v. Illinois, 132 S Ct 2221 (2012), the Court held that “a statement will be treated as testimonial only if it was procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Sean John, 2016 NY Slip Op 03208 at *7. Applying this in Sean John, the Court determined that the gun at issue was tested and the laboratory reports generated for primary purpose of aiding the police in a criminal investigation, making the lab reports were testimonial in nature. NY Slip Op 03208 at *8. Accordingly, the 22 People had an obligation to present “at least one analyst with the requisite personal knowledge [to] testify.” NY Slip Op 03208 at *12. The use of a surrogate analyst as a witness in Sean John— who, incidentally, is the same analyst used in this -did not meet the constitutional requirement and, therefore, reversal wascas< warranted. In the same vein, reversal is appropriate in this case. The prosecutor made clear that while Melissa Huyck, the testifying OCME analyst, reviewed the file, another analyst conducted the actual testing. As the Court of Appeals recognized in Sean John, “there is no dispute that DNA evidence is powerful forensic evidence in determining either the guilt or the innocence of an accused.” 2016 NY Slip Op 03208 at *5. Accordingly, it is imperative that the analyst who conducted the testing be called to testify, unless of course the People can show that witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness, this exception does not apply in this case. See People v. Goldstein, 6 N.Y.3d 119, 127 (2005). That is clearly not what happened in this case. There is no evidence that the testing analyst was unavailable, or that Mr. Rodriguez had a prior opportunity to cross-examine him. Therefore, the analyst who performed the testing should have been called to testify. Because the error in allowing the surrogate analyst’s testimony into evidence was a violation of appellant’s constitutional right to confront the testing analyst, his 23 conviction must be reversed unless the “error was harmless beyond a reasonable doubt.” Goldstein, 6 N.Y.3d at 129. In determining whether that standard is met this Court should “consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence.” Id Additionally, “however overwhelming may be the quantum and nature of other proof, the error is not harmless... if there is a reasonable possibility that the... [error] might have contributed to the conviction.” People v. Hardy, 4 N.Y.3d 192, 198 (2005) (citing People v. Crimmins, 36 N.Y.2d 230, 240-41 (1975, (internal quotations and citations omitted)). Here, the only evidence connecting Mr. Rodriguez to the crime scene was the DNA evidence found on the complainant’s own tools; no other evidence was presented. No one saw Mr. Rodriguez enter or leave the apartment, nor was he arrested with any items belonging to the complainant. Absent the DNA evidence, this case would likely never had been solved. Accordingly, the error was not harmless beyond a reasonable doubt and Mr. Rodriguez is entitled to a reversal of his conviction and a new trial. Finally, this Court should consider the Crawford violation that occurred in the interest of justice, because, although the issue was not preserved for appeal, that failure was due to ineffective assistance of counsel. See People v. Kyser, 26 A.D.3d 839 (4th Dep’t 2006) (reaching an unpreserved Crawford issue in the 24 interest of justice). It is well-settled that a criminal defendant is entitled to effective assistance of counsel under both the Federal and State Constitutions. The test under the Federal Constitution asks whether “but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington. 466 U.S. 688, 669 (1984); U.S. Const. Amend. VI. And the New York State Constitution mandates that each defendant receive “meaningful representation,” which is a broad, fact-specific inquiry that asks “whether counsel’s performance ‘viewed in totality’ amounts to ‘meaningful representation. People v. Turner. 5 N.Y.3d 476, 480 (2005) (citing People v. Baldi, 54 N.Y.2d 137, 147 (1981)); N.Y. Const. Art. I, § 6. Both tests are satisfied here. Defense counsel failed to object to the admission of Ms. Huyck’s testimony and there was no strategic or other legitimate explanation for this failure. See People v. Rivera. 71 N.Y.2d705, 709 (1988). Indeed, counsel was aware that the witness did not conduct the tests herself since the prosecutor informed the Court and the defense about this before Ms. Huyck testified. Defense counsel’s failure to object deprived appellant of his right to confront the witnesses against him. See Strickland, 466 U.S. at 669. The right to effective assistance of counsel can be violated “by even an isolated error... if that error is sufficiently egregious and prejudicial.” See Murray v. Carrier, 477 U.S. 478,496 (1986). Here, if defense 25 counsel had objected to the admission of the criminalist’s testimony, the judge could have sustained the objection and the prosecutor would have been forced to call the analyst who tested the DNA to the stand. In light of this serious violation, Mr. Rodriguez’s conviction should be reversed. POINT III GIVEN WILLIAM RODRIGUEZ’S AGE AND HEALTH PROBLEMS HIS SENTENCE OF 20 YEARS TO LIFE WAS EXCESSIVE AND SHOULD BE REDUCED IN THE INTEREST OF JUSTICE. le 26 s V. 94 27 28 CONCLUSION For the foregoing reasons, appellant William Rodriguez’s conviction for burglary in the second degree should be reversed and the indictment dismissed. In the alternative, his sentence should be reduced in the interest of justice. Dated: New York, New York June 24, 2016 Respectfully submitted, SEYMOUR W. JAMES, JR., ESQ. Attorney for Defendant-Appellant ANITA ABOAGYE-AGYEMAN Of Counsel June 24, 2016 29 ADDENDA SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Ind. No. 9/2013 -against- WILLIAM RODRIGUEZ, Defendant-Appellant. x STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 9/2013 2. The full names of the original parties were “The People of the State of New York” and “William Rodriguez” 3. This action was commenced in Supreme Court, New York County. 4. The action was commenced by the filing of an indictment. 5. This is an appeal from a judgment convicting William Rodriguez of burglary in the second degree, P.L. § 140.25. 6. This is an appeal from a judgment of conviction rendered on March 19, 2014. Hon. Richard D. Carruthers presided over the trial and sentencing. 7. William Rodriguez has been granted leave to appeal as a poor person on the original record and a reproduced appellant’s brief. 1A SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Ind. No. 9/2013 -against- WILLIAM RODRIGUEZ Defendant-Appellant. x PRINTING SPECIFICATIONS STATEMENT The following statement is made in accordance with First Department Rule 600.10 (amended 2003). 1. William Rodriguez’s brief was prepared in the processing system Microsoft Word 2013 with Times New Roman typeface, 14 point font (12 point font footnotes.) 2. The text of the brief has a word count of 6,906 as calculated by the processing system, and numbers 29 pages. 3. 2A