The People, Respondent,v.William Rodriguez, Appellant.BriefN.Y.June 5, 2018Powers & Santola, LLP COUNSELLORS AT LAW www.Powers-Santola.com ■DelayedCancerDiagnosis.comWWW. Albany Office 39 North Pearl St 6th Floor Albany, NY12207-2785 Syracuse, NY13202 Rochester, NY 14607 Phone (518) 465-5995 Phone: (315) 308-1020 Phone: (585) 563-3330 Fax: (518) 426-4012 Fax: (518) 426-4012 Fax: (518) 426-4012 Syracuse Office 100 Madison St 17th Floor Rochester Office The Carriage House 693 East Ave 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 Please Reply to: Albany Office March 8,2018 Hon. John P. Asiello Clerk of the Court Court of Appeals Clerk’s Office 20 eagle St. Albany, NY 12207-1095 RE: PEOPLE V. RODRIGUEZ (WILLIAM) APL-2017-00229 SECTION 500.11 SUBMISSION Dear Mr. Asiello: INTRODUCTION By permission granted by presiding Justice of the Appellate Division First Department pursuant to CPL Section 460.20(2)(a)(ii), defendant-appellant has William Rodriguez has appealed to this Court from the order of the Appellate Division, entered June 215, 2017 which affirmed a judgment of the Supreme Court, New York County, rendered March 19, 2014, convicting defendant, after a jury trial, of the burglary in the second degree (Penal Law Section 140.25[2]), and imposing sentence as a persistent violent felony offender an indeterminate term of 20 years to life. Pursuant to the Court’s letter dated December 12, 2017, stating the appeal has been selected by the Court for consideration pursuant to Section 500.11 , 1 am filing with the Court this letter brief, with two copies thereof, three copies of the Appellate Division’s decision, and three copies of the Appellate Division briefs of l Practice Limited to The Representation of Seriously or Catastrophically Injured Individuals all parties, in support of defendant-appellant’s position on the merits on his appeal. The appeal in the Appellate Division was perfected on the original record. The digital submissions of these papers will be uploaded within the next few days due to technical difficulties. QUESTIONS PRESENTED AND SUMMARY OF ARGUMENT Defendant argued below that his right to confrontation was violated by testimony of a criminalist who testified that there was an exact match of his DNA from a DNA profile developed by his oral swabbing and a DNA profile developed from a piece of evidence found at the crime scene. However, this testimony was not objected to at all by trial counsel. The Appellate Division held the argument was not preserved and refused to consider it in its interest of justice review power. This Court cannot review this argument on defendant’s appeal either in the absence of an objection in the context of whether error was present by the admission of the testimony. Nonetheless, defendant raises this argument here in a different context, namely that the failure to object denied amounted to the rendering of ineffective assistance of counsel, of his argument that defense counsel’s failure, a context which is proper. There are three questions, then, presented. First, whether there was a denial of defendant’s right to confrontation, the predicate for defendant’s ineffective assistance of counsel claim. Second, whether the failure to object on Confrontation Clause grounds amounted to ineffective assistance of counsel. Third, whether the ineffective assistance of counsel claim can be addressed here on defendant’s direct appeal of his conviction or should be address in a collateral attack on the conviction, STATEMENT OF THE CASE : Statement of Facts A complete statement of the facts as taken from the trial transcripts and trial exhibits is made in defendant’s Appellate Division Brief at pp. 3-15 to which the Court is directed. 2 : Facts Pertinent to the Questions Presented • Conviction On August 24, 2012, Kathleen McKeon’s Manhattan apartment was broken into. (T2 234-237).' The burglar had entered her top-floor apartment by breaking through the skylight in one of the apartment’s bathrooms. Jewelry was stolen. A pair of wire cutters were found wedged in the cushions in her living room sofa. McKeon -T1 248). They belonged to McKeon but she kept them in her rooftop office which she often left unlocked. (T1 214, 249-250). DNA testing, discussed in depth infra, established that defendant’s DNA was on the wire cutters. No other evidence connected defendant with the burglary of Ms. McKeon’s apartment. The only evidence tying him to the burglary was the DNA evidence.2 • DNA Evidence The DNA evidence at the trial consisted of three reports and the testimony of a criminalist, Melissa Huyck, employed by the Office of the Chief Medical Examiner (“OCME”), testifying about the contents of those reports, none of which she prepared, and giving her opinion as derived from those reports. As to the first report, Huyck testified that her office received a pair of wire cutters from the Police Department’s Evidence Collection Unit so that they could be tested for DNA. (Segura: T2 61; Huyck: T2 109, 112). Michael Kuhn, and OCME criminalist, performed the testing. It came up with a “single source male DNA profile,” meaning the DNA on the wire cutter was from a man. (Huyck: T2 1 13, 126); People Ex. 5a{OCME Report on DNA from wire cutters]). This DNA profile was then uploaded to a state level database and then to the national level database, the Combined DNA Indexing System (“CODIS”). (Huyck: T2 103-104). The report received back, the second report, stated that the DNA 1 Parenthetical references beginning with “Tl” refer to the minutes 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. 2 Defendant’s argument that the evidence was legally insufficient and the verdict was against the weight of the evidence was rejected by the Appellate Division. (Deft. Brief, Point I; Slip Opinion, pp.3-4). 3 from the wire cutters matched the profile of defendant’s DNA in CODIS, (Huyck: T2 114-115; People’s Ex. 5b [OCME Report]). Detective Michael McCready, once defendant was identified as a suspect in the burglary, then collected a buccal swab sample from defendant. (Huyck: T2 115-116; Stipulation; People’s Exhibit 5c [OCME Report on Defendant’s DNA Profile]). A report, the third report, of defendant’s DNA profile was created. (Ibid.). Huyck then gave an opinion based on these three reports. She reviewed the results from the third report and compared the profile from defendant’s DNA profile with the profile developed from the wire cutters as set forth in the first report. She concluded they were an “exact match.” (Huyck: T2 123-124, 130, 132, 146; People’s ex. 7 [match summary chart]. Huyck “expected 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’re “1000 earths all with 6.8 billion people, you would expect to see this profile just once. (Huyck: T2 124, 132). • No Defense Objections to DNA Evidence Defense counsel did not object to the admission of Huyck’s testimony. Furthermore, although defense counsel was aware that Huck did not conduct the testing of the wire cutters or swabbing, counsel did not demand that the criminalist who performed the testing testify at trial. : Appellate Division • Defendant’s Appellate Argument Defendant’s appellate counsel argued that defendant’s right of confrontation was violated by the admission of Huyck’s testimony concerning the results of the DNA testing performed on the wire cutters because she did not perform that testing. (Defendant’s Brief, Point II, p.21). In support of this argument, defendant relied upon this Court’s decision in People v. John (23 NY3d 294 [2016]). Defendant made no argument regarding the admission of the three laboratory reports or as to Huyck’s opinion in so far as it was based upon the results of the swabbing or the CODIS match. 4 Conceding that the confrontation argument was not preserved because trail counsel made no objection to Huyck’s testimony, appellate counsel argued that the Appellate Division could, and should, review it under its “interest of justice’ review power. (Defendant’s Brief, pp. 24-25). Appellate counsel also argued that trial counsel’s failure to object to Huyck’s testimony on the basis of defendant’s right of confrontation constituted ineffective assistance of counsel. (Defendant’s Brief, pp. 25-26). • Appellate Division Decision The Appellate Division affirmed defendant’s conviction in a 3-2 decision. The majority’s opinion, authored by Justice Kahn, addressed only defendant’s confrontation argument. Initially, the majority held that the argument was unpreserved and that it would not review the argument in the interest of justice. As “an alternative holding”, the majority then rejected it. (Slip Opinion, p. 4). In its view, this rejection required an extended discussion. (Id.). The majority found that there was no violation of defendant’s confrontation right and John was distinguishable as argued by defendant because Huyck conducted her own independent review of the “raw data” in the OCME report. (Slip Opinion, pp. 18- 20). Presiding Justice Acosta, joined by Justice Gesmer, dissented in an opinion he authored. In their view, the majority erred in concluding that Huyck relied upon raw data which was proper because the “raw data” consisted of the profiles generated by other criminalists who did not testify and those DNA profiles may or may not have been generated properly. Slip Opinion, pp. 25-26). Since she did not create those profiles and the criminalists who created them did not testify, this Court’s decision in John required a conclusion that defendant’s right of confrontation was violated by Huyck’s testimony as argued by defendant. (Slip Opinion, pp. 24, 33-35). The dissenters reviewed and decided defendant’s argument, although unpreserved pursuant to the Appellate Division’s “interest of justice” review power because “the only evidence linking defendant to the burglary was the DNA evidence at issue.” (Slip Opinion, p. 32). Notably, the dissenters also held that the failure of defendant’s trial counsel to object to Huyck’s testimony constituted ineffective assistance of counsel. (Slip Opinion, p. 32, n. 4). 5 ARGUMENT POINT I DEFENDANT’S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED BY THE TESTIMONY OF HUYCK WHOSE OPINION WAS BASED UPON DNA TESTING AND PROFIUES CREATED BY OTHER CRIMINALISTS WHO WERE NOT CALLED BY THE PEOPLE TO TESTIFY ABOUT THEIR TESTING OCME criminalists developed a DNA profile from the wire cutters and an oral swab taken from defendant after he was identified as a suspect for the purpose of aiding the police in a criminal investigation and for the purpose of then linking defendant to the DNA evidence recovered from the crime scene evidence, the wire cutters. The DNA profiles as created were then admitted through Huyck who did not perform the testing that produced those profiles. Where the primary purpose of DNA testing is to prove “a particular fact in a criminal proceeding,” the test results, i.e., the DNA profiles and matching evidence, are testimonial. {People v. John, 27 NY3d 294, 307-308 [2016]; People 8v. Austin, 30 NY3d 98, 104 [2017] [quoting John]). Here, because the DNA evidence from the wire cutters and the oral swabbing were developed for the sole purpose of producing evidence for a criminal trial, it was testimonial. Thus, “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, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify.” (John, 27 NY3d at 316, supra; Austin, 30 NY3d at 105-106, supra [“As we explained in John, such expert opinion testimony of a comparison of numbers would likely be inadmissible in New York without establishing a proper foundation......—i.e , that defendant's DNA profile was obtained from the scene of the burglary and that the numerical profile was reliable and accurate in the first instance.”). As there was no criminalist called to testify as to how those profiles were created, defendant’s right of confrontation was must be found to have been violated here, as both John and Austin instruct. 6 Furthermore, this violation cannot be deemed harmless, as the DNA evidence was the only evidence linking defendant to the burglary. Accordingly, defendant’s constitutional right to confrontation was violated. 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 BURGLRY IN ISSUE To establish ineffective assistance of counsel under New York law, a defendant must prove that counsel's performance, viewed in its totality, did not amount to meaningful representation. (See People v. Benevento, 91 NY2d 708, 7 1 1-712 [ 1 998]). At bottom., the analysis turns not on whether the defendant would have been acquitted but for counsel's error, but rather on whether the defendant was deprived of a fair trial. (See Benevento. 91 NY2d at 7 1 4, supra [stating that "jwjhile the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case”j). Thus, even a single error can so seriously compromise a defendant's right to a fair trial as to qualify as ineffective representation. (See People v. Hobot, 84 NY2dl021, 1022 [1995]; People v. Turner, 5 NY3d 476 [2005]). Under federal law, to vacate a conviction based on ineffective representation, a defendant must show that his attorney's performance was professionally unreasonable, and that there was a reasonable probability that, but for counsel's unprofessional conduct, the result of the proceedings would have been different. (See, Strickland v. Washington 466 US 668, 689-692 [1984]). The "ÿbenchmark” forjudging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Id. at 686). Further, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at 694). 7 Under cither standard, “It is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense.'''{People v. Droz, 39 NY2d 457, 462 [1976]). Where counsel has adopted an inexplicably prejudicial course, courts have consistently held that the defendant was denied effective assistance. (See, e.g. People v. Barnes, 106 AD3d 600 [1st Dept. 2013]; People v. Cyrus, 48 AD3d 150 [1st Dept. 2007]; Henry v. Poole, 409 F3d 48, [2d Or. 2005]). Here, defendant’s trial counsel adopted an “inexplicably prejudicial course” where he failed to object to Huyck’s opinion testimony as based upon the DNA laboratory reports setting forth DNA profiles through testing by other OCME criminalists. That testimony was the only evidence linking defendant to the burglary and if excluded would have required dismissal of the burglary charges against defendant. Yet, counsel never objected. What would be the specific ground for the objection? - Testimony of Huyck violated defendant’s right to confrontation because it was based upon reports prepared by criminalists who dis not testify. Contrary to what the People might then argue, /.