The People, Respondent,v.William Rodriguez, Appellant.BriefN.Y.June 5, 2018Powers & Santola, LLP COUNSELLORS AT LAW .DelavcdCancerDiagnosis.comWWW Syracuse Office 100 Madison St 17* Floor Rochester OfficeAlbany Office 39 North Pearl St 6* Floor Albany, NY12207-2785 Syracuse, NY13202 Phone (518) 465-5995 Phone: (315) 308-1020 Phone: (585) 563-3330 Fax: (518) 426-4012 Fax: (518) 426-4012 Fax: (518) 426-4012 John K. Powers Daniel R. Santola Laura M. Jordan Margie A. Soehlf Kelly C. Wolford f Also admitted in Ecuador Amber L. Wright Michael J. Hutter Special Counsel The Carriage House 693 East Ave Rochester, NY 14607 Please Reply to: Albany Office •aXKUueao&zr:ii'.-j,'- y. Tuesday, May 8, 2018 ? 'H1H 'mJohn P. Asiello, Esq. Court of Appeals Clerk of the Court 20 Eagle Street Albany, NY 12207-1095 IIm l:: K • .\c.„ Re: People v. Rodriguez (William) APL-2017-00229 §500.11 Submission Dear Mr. Asiello: INTRODUCTION By this letter I am replying to the May 1, 2018 letter submitted by the New York County District Attorney’s office in opposition to defendant William Rodriguez’s submission, dated March 8, 2018. It will reply to the basic points raised by the People’s opposition. I am filing this letter brief, with two copies thereof, and I am serving a copy upon the People by email and regular mail, as shown by the accompanying affidavit of service. The word count of this letter is 2,282. The digital submission will be uploaded upon the granting of permission by this Court to file this reply letter. i Practice Limited to The Representation of Seriously or Catastrophically Injured Individuals ARGUMENT DEFENDANT’S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED BY THE TESTIMONY OF HUYCK WHOSE OPINION WAS BASED UPON DNA TESTING AND PROFILES CREATED BY OTHER CRIMINALISTS WHO WERE NOT CALLED BY THE PEOPLE TO TESTIFY ABOUT THEIR TESTING (In Reply to People’s Point H-2 at pp. 9-11) A. Operative Facts Before addressing the merits of defendant’s confrontation clause claim it is important to emphasize the basic operative facts underlying this argument which are not disputed. These facts involve the two OCME DNA reports admitted into evidence based upon criminalist_Huyck’s foundation testimony, and upon which Huyck based her option. She testified, based on her review and comparison of the DNA profile results created by the testing of the wire cutters by other criminalists in the Office of the Chief Medical Examiner (“OCME”) (People’s Ex. 5a [People’s App., pp. 267-351]) and the DNA profile created by the OCME from a buccal swab sample from defendant (People’s Ex. 5a [People’s App., pp. 353-383]), that the two profiles were an “exact match.” (T123-124 [People’s Appendix [“PA”]96- 91)} As to People’s Ex. 5a, it included the OCME report dated January 2, 2013, which set forth a DNA profile derived by OCME from testing of the wire cutters and identified the DNA profile as one from a male. (People Ex. 5a [PA278, et seq.]). This exhibit also included a report, dated January 15, 2013, prepared by the New York State Police Crime Laboratory System via CODIS from this DNA profile which OCME submitted to it, that identified the defendant as the person whose DNA sample had been provided to it. (T114-115 [PA197-198; People’s Ex. 5a [PA269]). As to People’s Ex. 5c, it included a report, dated December 17, 2012, prepared by OCME. This report identified defendant, labeling him a “suspect,” as 1 These two reports were referenced in defendant’s initial letter as the “second” and “third” reports. As these references are misleading, here these reports will be referenced as People’s Ex. 5a and People’s 5c, respectively, which we ask the Court to carry over to the initial letter. 2 the source of the DNA found on the wire cutters. It was based upon a DNA profile of defendant created by OCME from a buccal swab of defendant,2 which was then compared by OCME with the DNA profile it created. Notably, Criminalist Huyck did not prepare, and was not otherwise involved, in the creation of these two samples, as conceded at trial by the prosecutor. (T108; 118 [PA,81, 91]). All she did was, concededly, “review” the file {Id. at 108), and based upon that review gave her opinion as to an “exact match.” (T130 [PA103]). In essence, Huyck performed a review of data created by others, assuming that such data supported the profiles created from such data and its creation was properly done. (T123 [“I didn’t perform the lab work, I just did the review of the results and the comparison to the evidence.”] [PA206]). Also notable is that none of the OCME criminalists who were actually involved in the testing and creation of the two DNA profiles relied upon by HUYCK in giving her opinion testified. Likewise, no one who was involved in the-----CODIS matching testified.While the People in its opposition letter echoes the take of Huyck’s testimony expressed by the majority below (Opinion, p. 18), i.e., “independent review of the raw data generated by the testing analysts,” this is a mischaracterization of what Huyck actually reviewed. In that regard, as noted by Presiding Justice Acosta’s dissent (Opinion, pp. 25-26 [Acosta, P.J., dissenting), all that Huyck did was rely upon the DNA profiles created by others from the raw data, without any basis to conclude that the other criminalists properly followed established protocols, and the multiple safeguards in place to ensure that (the OCME) tests are working properly.” (T93 [PA66]). In this connection, it is worthwhile to keep in mind this Court’s observation in People v. John (27 N.Y.3d 294, 311 [2016]) that the construction of a DNA profile requires “skilled interpretation of the data.” Huyck simply did not independently verify any of that “raw data.” (T108 [PA81]). In sum, as succinctly stated by Presiding Justice Acosta: “Huyck merely reviewed the reports of the other OCME analysts, who did not testify, including the 2 While presiding Justice Acosta said buccal swabs were taken from defendant “once he was identified as the suspect” (Opinion, p. 9 [Acosta, P.J., dissenting]), and defendant in his initial letter stated the buccal swab s were made after he was “identified as a suspect in the burglary” (Letter, dated March 8, 2018, p. 4), upon further examination of the record, the swabs were apparently taken by Detectives in 2010 under voucher number R660934, and sent by him to OCME at that time, which retained them. (People’s Ex. 5c [PA353-356]). 3 numerical DNA profiles generated after the editing process, saw that the necessary people had signed off and agreed with their conclusions.” (Opinion, p. 24 [Acosta, P.J., dissenting]). B. Legal Argument With this factual background, and in view of the People’s argument, the Confrontation Clause issue raised is whether testimony of the testifying criminalist, wherein she opined that the DNA profile generated form the wire cutters identified as from defendant and the DNA profile generated from the buccal swab taken from defendant, violated defendant’s right to confront the criminalist(s) who actually prepared the two DNA profiles but did not testify. While the People contend that defendant’s conclusion that a denial of his confrontation right is present is inconsistent with this Court’s opinion in People v. John (27 N.Y.3d 794, supra) and People v. Austin (30 N.Y.3d 98 [2017]), the argument is not convincing. Properly read, these two decisions fully support defendant’s argument. In John, the police arrested the defendant in response to a report that he had pointed a gun at someone just outside his apartment building; the police sent DNA recovered from a gun found in the building’s basement to OCME; and the police attached a report to the vouchered gun informing OCME that defendant had been arrested for possessing the gun. {John, 27 N.Y.3d at 298). The testifying criminalist, Ms. Huyck, testified at the defendant’s trial about the methods used by non-testifying analysts, which were reviewed by her. This Court found that the DNA reports were testimonial because OCME generated and analyzed the DNA profiles “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.” {Id. at 308). Thus, their admission violated defendant’s confrontation rights. This Court also observed, in language that is applicable here, that Huyck, who testified to a match based on the two DNA profiles, was “acting purely as a surrogate witness ... in vouching for the accuracy of these two DNA profiles” since “[h]er conclusory testimony in this regard was based solely on the reports of the non-testifying analysts that were admitted into evidence for their truth and not based on a separate independent and unbiased analysis of the raw data. {Id. at 310- 311). This testimony violated defendant’s right to confront the analysist who actually generated the DNA profiles. {Id. at 310). In this connection, “at least one analyst with the requisite personal knowledge” was required to testify. {Id. at 313). 4 In Austin, also a burglary prosecution, this Court held defendant’s confrontation rights were violated by the testimony of an OCME criminalist who testified about defendant’s DNA profile and comparison evidence produced by others after defendant was under arrest without calling any witness who personally performed, supervised or observed that testing. After noting that the DNA profile was testimonial (Austin, 30 N.Y.3d at 104), this Court observed, also in language clearly applicable here, that in order to satisfy the Confrontation Clause, defendant “was entitled to cross-examine the analyst who either ‘performed, witnessed or supervised’ the generation of the critical numerical DNA profile” or who used his or her independent analysis on the raw data “to arrive at his or her own conclusions.” {Id. at 105, citing John). The criminalist’s testimony was nothing more than an impermissible “conduit for the conclusion of others.” {Id.). The People contend that the initial DNA profile created from the testing of the wire cutters (People’s Ex. 5a), was clearly non-testimonial as it was created before defendant became a suspect in the case. (People’s Letter, p. 9). Although not argued as defendant below did not challenge its admissibility, it is apparent the People would make the same argument with respect to the DNA profile created form the buccal swab of defendant. However, that fact alone is not sufficient to justify the testimony of Huyck about those DNA profiles in light of the immediate use of those profiles. In that regard, the facts show OCME provided CODIS with the DNA profile from the wire cutters; CODIS identified the DNA profile as a match to defendant’s DNA profile in its database and informed OCME; and OCME performed its own comparison from a buccal swab of defendant; and confirmed the exact match. In these circumstances, the DNA profiles as created were done for the purpose of proving defendant’s guilt in a forthcoming trial. In this connection, a Presiding Justice Acosta observed, OCME carried out that purpose by sending a fax to the police identifying defendant as “a perpetrator or someone of interest in this case, and that police then arrested defendant, apparently based on that information. (Opinion, p. 35 [Acosta, P.J., dissenting]). Thus, they were testimonial in nature. More significant to this case is this Court’s clear instruction to the courts, as previously mentioned, that the use of a criminalist to provide “nothing more than surrogate testimony to prove” the accuracy of OCME’s created DNA profile also violates a defendant’s confrontation rights. {John, 27 N.Y.3d at 309; Austin, 30 N.Y.3d at 105). This result is one that does not depend upon whether the DNA profiles were created before or after a defendant became a suspect. 5 The People’s argument that in any event Huyck’s testimony satisfied John/Austin (People’s Letter, pp. 9-10) is meritless. The readily recognizable reason is that, as discussed before, Huyck was not involved in the preparation of the DNA profiles and had no personal knowledge thereof. In sum, as argued by defendants, his confrontation rights were violated by Huyck’s testimony about the two DNA profiles which were used by her to reach her opinions of an “exact match.” POINT II DEFENDANT’S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE HE FAILED TO OBJECT TO HUYCK’S TESTIMONY AS VIOLATIVE OF DEFENDANT’S RIGHT TO CONFRONTATION, THE FACTUAL AND LEGAL BASIS OF WHICH WERE READILY APPARENT AND WHICH LINKED HIM TO THE BURGLARY IN ISSUE (In Reply to People’s Point II-2 at pp. 10-12) The People argue that defendant’s trial counsel cannot be deemed to have rendered ineffective assistance as the confrontation claim defendant now advances should have been made by him would have had no merit if raised. Obviously, that is true, but not if the argument has merit as defendant submits it has. Alternatively, the People argue that defendant’s ineffective assistance contention can only succeed if his Confrontation Clause argument is “clear-cut” and “completely dispositive.” That test is met here as John and Austin make it clear that Huyck’s testimony should have been excluded as violative of defendant’s confrontation right, and certainly the exclusion of Huyck’s testimony would be disputative as the DNA evidence was the only evidence linking defendant to the burglary. To be sure, there was no precedent that expressly said so at the time of the trial. But it is equally true that there was no precedent that said no violation would occur with Huyck’s testimony. As defendant argued in his initial letter, any perceived futility in making the claim must give way to raising it at a time confrontation issues and rules were emerging in the United States Supreme Court and in this Court, which provided a basis to make the argument in a non-frivolous fashion. The absence of any response by the People to this specific point is telling. 6 In sum, defense counsel’s failure to object to Huyck’s testimony on Confrontation Clause grounds amounted to the rendering of ineffective assistance of counsel to defendant. POINT III DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT CAN BE HEARD BY THIS COURT ON HIS DIRECT APPEAL OF HIS CONVICTION (In Reply to People’s Point H-l, at pp. 7-8) Whether defendant can succeed on this argument depends upon whether or not there is some strategic or other legitimate explanation for defense counsel’s failure to object to Huyck’s testimony. Defendant argues there is no reason at all for not objecting as the DNA evidence was the only evidence linking defendant to the crime. The People argue that there is a legitimate reason, one linked to defendant’s trial theory. In that regard, defendant argued his DNA ended upon on the wire cutters by secondary transfer, when the real burglar “manage[d] to get hold of’ defendant’s gloves and used them to commit the burglary. (Defense Summation, 171-173, 176 [PA144-146, 149]). Suffice it to say as the People noted in its brief below, this explanation was “far-fetched” (Resp. Br., p. 13); and the People further noted “[t]here is no other plausible innocent explanation for defendant’s DNA on the wire cutters.” (Id. at 14). In sum, as the failure to object is inexplicable, which is readily apparent from the trial transcript, this Court can review the issue on his direct appeal. 7 CONCLUSION For the above stated reasons, the order of the Appellate Division should be reversed and the matter remanded for a new trial. Very truly yoursj MICHAEL J. HUTTER cc: Sheila L. Bautista, Assistant District Attorney 8