The People, Respondent,v.William Rodriguez, Appellant.BriefN.Y.June 5, 2018DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY May 1, 2018 Honorable John P. Asiello Clerk of the Court of Appeals Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: People v. William Rodriguez, N.Y. Co. Ind. Nos. 5471/2009 and 9/2013 APL-2017-00229 Dear Mr. Asiello: I submit this letter in opposition to defendant’s submission in the referenced cases, pursuant to this Court’s designation of this appeal for examination on the merits under Rule 500.11 of the Court of Appeals. The People do not object to consideration of this appeal under that Rule. By permission of the Honorable Rolando T. Acosta, Presiding Justice of the Appellate Division, First Department, defendant William Rodriguez appeals from an order of the Appellate Division, First Department, dated July 25, 2017. People v. Rodriguez, 153 A.D.3d 235 (1st Dept. 2017). The Appellate Division’s order affirmed two separate judgments of the Supreme Court, New York County (Richard Carruthers, J.). By a judgment dated March 19, 2014, under New York County Indictment Number 9/2013, defendant was convicted, after a jury trial, of second- degree burglary and sentenced to an indeterminate prison term of from 20 years to life. By a judgment dated May 12, 2014, under New York County Indictment 5471/2009, defendant was convicted in the same court, upon his plea of guilty, of five counts of first-degree burglary, five counts of first-degree robbery, two counts of second-degree robbery, six counts of second-degree kidnapping, and two counts of endangering the welfare of a child and sentenced to an aggregate prison term of from sis mm 2 25 years to life, to run concurrently with his sentence for the burglary conviction under Indictment Number 9/2013.1 Defendant is currently incarcerated pursuant to those judgments. The issue in this case arises from defendant’s second-degree burglary conviction under Indictment Number 9/2013. The question before this Court is whether his defense attorney’s failure to object under Crawford v. Washington, 541 U.S. 36 (2004), to the admission of evidence regarding DNA testing that tied him to the burglary amounted to ineffective assistance of counsel. As an initial matter, since defendant did not raise this claim by way of a postconviction motion, the record is inadequate for this Court to properly evaluate defense counsel’s decision not to raise a Crawford claim. Moreover, as the majority of the Appellate Division, First Department properly found, there would not have been any merit to challenging the admission of the contested testimony on Crawford grounds, even under current law, and counsel cannot be deemed ineffective for failing to raise a claim that had no chance of success. Further, at the time of defendant’s representation, it was far from clear cut that a Crawford claim was appropriate because all existing case law involving DNA evidence held that DNA reports were nontestimonial. Finally, defense counsel mounted a vigorous defense of defendant that involved a clear strategy: she proceeded on a theory that the DNA on the wire cutters had been transferred there by another perpetrator. Accordingly, this Court should reject defendant’s newfound claim of ineffective assistance. I. Facts and Procedural History. Defendant’s burglary conviction arose from a break-in he committed in August 2012, when he smashed through the skylight of a woman’s apartment while she was gone for the day. He left a substantial amount of his DNA on a pair of wire cutters that were normally stored on the roof but were found in the victim’s living room. Before defendant was a suspect in this case, New York City’s Office of the Chief Medical Examiner (OCME) analyzed a DNA sample collected from the wire cutters and uploaded the resulting profile to CODIS, a DNA databank. A CODIS administrator later notified OCME that the uploaded profile matched a profile in CODIS belonging to defendant (A088, A269).2 The results of the crime-scene analysis generated an OCME case file in January 2013 (A268).3 Relevant portions of this file were later marked as Exhibit 5a at trial (A267). 1 Defendant admitted to a series of knifepoint robberies where he targeted vulnerable victims in their homes, including the elderly and women with infant children. Defendant left some of his victims bound and gagged on the floor of their apartments. 2 Parenthetical references beginning with “A” are to the Appendix for Respondent. 3 The OCME case file for a DNA profile may contain many different documents, including reports, forms, and the raw data analyzed during the testing (A267-A383). The court in Rodriguez referred to all the DNA-related documents entered into evidence as “reports.” In fact, the documents entered into evidence were OCME case files, some of which contained reports. 3 The results of the DNA profile from the crime scene were later compared to a DNA profile generated from a buccal swab collected from defendant in 2010 in connection with a prior arrest.4 OCME began its analysis of this sample on November 22, 2010 and generated a case file regarding this DNA testing in December 2010 (A353, A383). Relevant portions of this case file were admitted into evidence at trial as Exhibit 5c (A352). OCME Criminalist III Melissa Huyck compared the DNA profile from the sample collected at the crime scene in 2012 with the profile form the swab collected from defendant in 2010. Huyck created a laboratory report that contained her own conclusion that the two DNA profiles from the January 2013 and December 2010 reports were a match (A386). A third OCME case file, which contained Huyck’s report and tables comparing the two separate profiles, was admitted into evidence at trial as Exhibit 5b. On January 29, 2013, the People provided defendant with redacted copies of the OCME files pertaining to the DNA testing on the profiles collected from the crime scene and from defendant (People’s Affirmation in Response to Defendant’s Omnibus Motion at 2). Defendant was represented by two attorneys from The Legal Aid Society, Afsi Khot and Claudia Conway. As part of defendant’s initial omnibus motion dated February 28, 2013, Ms. Khot sought the “raw data” from the DNA testing performed in this case (A001-A027). Justice Richard Carruthers denied defendant’s request (A028). By motion papers dated December 5, 2013, defense counsel then sought a subpoena for the raw data, so that defendant’s forensic DNA expert, Dr. Norah Rudin, could conduct a “meaningful, complete and comprehensive review of the DNA evidence” (A030-A031). In her sworn affidavit, Dr. Rudin elaborated that her “purpose for reviewing the work as a whole, and the data in particular, is to determine if the data support the conclusions” (A035). Defense counsel urged that for defendant, the raw data was “especially critical” so that he could “properly confront or cross-examine the prosecutor’s witness(es)” (A031). On December 10, 2013, Justice Carruthers granted defendant’s motion and ordered OCME to provide the court with the raw data from the DNA testing performed in this case (A040). At trial, which began on February 27, 2014, Ms. Conway was the lead attorney, and Ms. Khot was the second seat. In her opening statement, Ms. Khot told the jurors that there was no dispute that the wire cutters normally stored on the roof of the victim’s apartment were found inside of her apartment. Nor was there any dispute, according to defense counsel, that when OCME collected DNA from the handles of the wire cutters and developed a DNA profile, it matched defendant. She told the jurors that they would hear evidence about a concept called “secondary transfer” of DNA, where DNA left on one object, such as a pair of gloves, could be 4 Defendant incorrectly asserts that the sample was collected from him after he was identified as a suspect in the burglary (Defendant’s SSM at 4). Rather, prior to committing the burglary in the instant case, defendant had provided a DNA sample on a buccal swab to a police officer. 4 transferred from that object to another one. According to Ms. Khot, after hearing the evidence at trial, jurors would have a “reasonable doubt” regarding whether defendant had actually entered the victim’s apartment (A057-A060). Prior to Huyck’s testimony, the parties discussed which portions of the OCME case files would be admitted into evidence at trial. Defendant’s attorneys did not object to the People producing Huyck as a witness, nor did they ask for anyone else from OCME to testify about the DNA evidence. In fact, defense counsel urged that the portions of the case files that Huyck reviewed and marked with her initials, such as the raw data underlying the testing, “should come in,” and the court agreed (A081). Portions of the case files for the DNA collected at the crime scene and the DNA analyzed from defendant’s buccal swab were admitted into evidence at trial through Huyck’s testimony. The laboratory report Huyck created, confirming that the two profiles were a match, was also admitted into evidence through her testimony (A093, A130). During trial, Huyck testified that when she reviewed the case files for the DNA profiles, she was a Criminalist III, a higher level than the Criminalist I analysts involved in conducting the DNA testing (A064). As the “Analyst” on the laboratory report for the DNA collected from the crime scene and the “Interpreting Analyst” who evaluated the DNA collected from defendant (A282, A353), Huyck independently reviewed every page of the raw data in the OCME case files entered into evidence, including the machine-generated graphs and edit sheets, as evidenced by her initials on the pages she reviewed (A079-A081, A096, A282, A289-A351, A353, A357-A383). Based on her independent review of the raw data of the DNA profiles in the two case files, Huyck concluded that the profiles were a match (A096- A097). Huyck then created the report with her conclusions that the DNA profiles were a match (A386). When Ms. Conway cross-examined Huyck at trial, she did not challenge the witness’s conclusion that defendant’s DNA was on the wire cutters, nor did she ask any questions challenging the reliability or the methodology of the DNA analysis. Rather, defense counsel questioned Huyck only about her credentials and the concept of secondary transfer (A216-A233). Though defense counsel had notified the court and the People at the beginning of trial that she might call an expert witness to testify (A050), she rested defendant’s case without calling any witnesses. After Huyck testified, the parties entered a stipulation that a detective had collected a DNA sample from defendant (A235). This sample resulted in the DNA profile of the second OCME case file that was already in evidence (A120, A352- A383). Though this second file indicated that OCME first analyzed this sample on November 22, 2010 (A383), the fact that it was collected prior to the instant crime was never explicitly stated at trial. Nor was there any evidence or testimony explaining why the sample had been collected from defendant. 5 During summation, Ms. Conway did not dispute that defendant’s DNA was on the wire cutters found in the victim’s apartment. Nevertheless, she argued that defendant’s DNA on the wire cutters was insufficient proof that defendant had been in the apartment. She instead urged the jury to believe that his DNA appeared on the wire cutters because someone else had broken into the apartment wearing defendant’s gloves (A239-A259). The jury rejected this claim and convicted defendant. On appeal, defendant challenged his burglary conviction, contending that the evidence supporting it was legally insufficient and that the conviction was against the weight of the evidence, and he further contended that his sentence is excessive. He also raised an admittedly unpreserved Confrontation Clause claim, arguing that the People were required to produce someone involved in testing the DNA sample from the crime scene, and Huyck was not the proper witness. Defendant did not raise an appellate challenge to the admission of the second report relating to the buccal swab or to Huyck’s testimony about it, and he did not contend that his team of trial attorneys had rendered constitutionally ineffective assistance. With respect to his conviction arising from the pattern robbery, defendant argued that if his burglary conviction were overturned, his guilty plea in the robbery cases would be rendered involuntary under People v. Fuggazzatto, 62 N.Y.2d 862 (1984), because the court had promised that his sentence in the robbery case would run concurrently with his sentence for the burglary conviction. The Appellate Division, First Department, upheld both convictions. The majority rejected defendant’s challenges to the weight and legal sufficiency of the evidence supporting his burglary conviction and also found that the imposed sentence is not excessive. The court also unanimously agreed that defendant’s Confrontation Clause claim was unpreserved. The majority declined to review that claim in the interest of justice and, as an alternative holding, rejected it. The Appellate Division also upheld defendant’s guilty plea conviction because, in view of the affirmance of the burglary conviction, there was no merit to his Fuggazzatto claim. Rodriguez, 153 A.D.3d at 248. Though defendant’s Confrontation Clause claim was not preserved, the Honorable Marcy L. Kahn, writing for the majority, and Justice Acosta, who wrote a dissenting opinion joined by the Honorable Ellen Gesmer, nevertheless engaged in an extensive discussion regarding the merits of the claim. Justice Kahn conducted a thorough, step-by-step analysis of the four-part test for testimonial evidence set forth in People v. Pealer, 20 N.Y.3d 447 (2013), and People v. Brown, 13 N.Y.3d 332 (2009). The majority ruled that the first DNA lab report regarding the DNA recovered from the crime scene was nontestimonial because: 1) when creating the report, OCME acted independently of law enforcement; 2) the report reflected objective facts at the time of their recording; 3) it was not biased in favor of law 6 enforcement because it did not name defendant or any other suspect; and 4) the profile of the DNA from the crime scene was developed at a time when no suspect had been identified, the report named neither defendant nor any other suspect, and the report did not accuse defendant by directly linking him to the crime. Rodriguez, 153 A.D.3d at 242-43. When evaluating the first and fourth factors with respect to the first DNA report, the majority specifically distinguished the instant case from People v. John, 27 N.Y.3d 294 (2016), by noting that here, the testing was conducted before there was an identified suspect or pending criminal action. Rodriguez, 153 A.D.3d at 242-43, citing John, 27 N.Y.3d at 308, n.5, 310. In that regard, the DNA profile in the first report was “analogous to ‘the original DNA profiles in Brown and Meekins,’ which, as the John Court observed, ‘would not be considered testimonial hearsay . . . when the suspect was unknown and the defendant was later identified on a ‘cold hit’ from the CODIS database.” Rodriguez, 153 A.D.3d at 242-43, citing John, 27 N.Y.3d at 310 Accordingly, the first report was nontestimonial and had been properly admitted through Huyck’s testimony. Rodriguez, 153 A.D.3d at 242-43, citing Brown, 13 N.Y.3d at 339-40; People v. Freycinet, 11 N.Y.3d 35, 42 (2008); Pealer, 20 N.Y.3d at 453-54. With respect to the second laboratory OCME file, which contained the analysis of the buccal swab taken from defendant, the majority noted that defendant was not challenging its admission on Confrontation Clause grounds on appeal, and the report did not purport to establish defendant’s involvement in criminal activity. Rodriguez, 153 A.D.3d at 243-44. Finally, though the third report was testimonial because it accused defendant of the burglary, defendant’s Confrontation Clause rights were not violated because “Huyck was the analyst who prepared it, and she appeared at trial and was subject to cross-examination.” Id. The dissenting justices acknowledged that the Crawford issue was unpreserved, but would have reversed defendant’s conviction in the interest of justice. Relying principally on John, Justice Acosta wrote that “Huyck was merely acting as a surrogate witness” when she testified about the results of DNA testing she did not personally conduct, and the Confrontation Clause “entitled [defendant] to cross-examine at least one analyst with direct personal knowledge of the DNA testing.” Rodriguez, 153 A.D.3d at 257-58, citing John, 27 N.Y.3d at 313, 315. According to the dissenting justices, “there was no strategic or other legitimate explanation” for defense counsel’s failure to object to the admission of Huyck’s testimony; they suggested that defendant may have an ineffective assistance of counsel claim, based on this “isolated error.” Rodriguez, 153 A.D.3d at 253, n.1. Justice Acosta granted defendant’s application for leave to appeal. 7 II. Defendant cannot show that his attorney’s decision not to object to admission of the DNA reports in this case on Confrontation Clause grounds amounted to ineffective assistance of counsel. Since defendant’s Crawford claim is admittedly unpreserved, the issue before this Court is whether or not defense counsel rendered constitutionally ineffective assistance by not challenging the admission of the DNA reports on Confrontation Clause grounds at trial. Specifically, defendant claims that a single error by his attorney—failing to object to Huyck’s testimony on Crawford grounds—was an “inexplicably prejudicial course” that amounted to ineffective assistance of counsel (Defendant’s SSM Letter at 8). Defendant’s claim fails for three reasons. First, defendant’s particular ineffective assistance claim is unreviewable because it requires a record expanded by a postconviction motion that was never filed here. Second, to the extent that the existing record does permit review, defense counsel mounted a vigorous defense with a clear strategy. Finally, as the majority in Rodriguez properly found, there would have been no merit to challenging the contested evidence on Crawford grounds, and defense counsel was not ineffective for failing to raise a claim that would have had no chance of success. 1. Since defendant did not challenge the performance of his attorney by way of a postconviction motion, this Court does not have the necessary record to evaluate his ineffective assistance of counsel claim. To the extent the record does permit review, his claim fails. Without a viable challenge to the admission of the DNA evidence, defense counsel executed a clear strategy that accommodated it. To prevail on an ineffective assistance of counsel claim, both federal and New York standards require a defendant to show that his attorney’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668 (1984); People v. Turner, 5 N.Y.3d 476, 479-80 (2005) (performance standard under New York constitution is the same as the federal standard). When assessing an attorney’s performance, “counsel’s efforts should not be second-guessed with the clarity of hindsight” and “our Constitution ‘guarantees the accused a fair trial, not necessarily a perfect one.’” Turner, 5 N.Y.3d at 480, citing People v. Benevento, 91 N.Y.2d 708, 712 (1988). A showing of deficient performance is “never an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371 (2010), as the “minimum standard of performance required by the Sixth Amendment is a very tolerant one.” Turner, 5 N.Y.3d at 480. “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met.” People v. Baldi, 54 N.Y.2d 137, 147 (1981) (emphasis added). “Very rarely” will a single lapse by an attorney be so “clear cut” as to amount to constitutionally deficient representation. People v. Henderson, 28 N.Y.3d 63 (2016); 8 Turner, 5 N.Y.3d at 478. Among other things, defendant must demonstrate “the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct.” People v. O’Kane, 30 N.Y.3d 669, 672 (2018), citing People v. Caban, 5 N.Y.3d 143, 152 (2005); People v. Every, 29 N.Y.3d 1103, 1104 (2017); citing People v. Wragg, 26 N.Y.3d 403, 409 (2015). Given this standard, knowledge of defense counsel’s trial strategy is crucial to the relevant analysis in this case. Accordingly, this is exactly the kind of ineffective assistance of counsel claim that requires expansion of the record by postconviction motion so defense counsel can explain why they did not object to Huyck’s testimony or insist on anyone else’s testimony regarding the DNA evidence at trial. But defendant never developed such a record via postconviction motion. “Without the benefit of additional facts that might have been developed after an appropriate postconviction motion,” it is impossible for this Court to adequately assess whether or not counsel’s actions lacked any strategic or other legitimate explanation. People v. Denny, 95 N.Y.2d 921 (2000); People v. Campbell, 30 N.Y.3d 941, 942 (2017), citing Henderson, 28 N.Y.3d at 66; People v. Brown, 45 N.Y.2d 852, 854 (1978). Accordingly, this Court should reject defendant’s claim of ineffective of assistance, based on his failure to support his claim with the necessary record. To the extent this record does permit review, defendant would be unable to demonstrate that his attorney’s handling of the DNA evidence in this case amounted to a constitutionally deficient performance. There is no question that defense counsel recognized the importance of the DNA evidence in this case. Prior to trial, defendant’s attorneys vigorously fought to obtain the “raw data” generated from the DNA sample collected at the crime scene so that a forensic DNA expert could determine whether the data accurately supported OCME’s conclusion that the sample belonged to defendant. Undeterred by the court’s initial denial of the request for raw data, defense counsel persisted, successfully changed the judge’s mind, and obtained this information. Thus, prior to trial, defendant had an opportunity to have his forensic DNA expert do a thorough review of the data to ensure the accuracy and reliability of the results. Although the expert remained available to testify on defendant’s behalf, defense counsel ultimately decided not to call her to testify. But based on the defense theory of the case at trial, it can be reasonably inferred that defendant’s forensic DNA expert did not find anything wrong with OCME’s analysis of the DNA sample worth challenging. After all, at trial, defendant’s attorneys did not dispute that defendant’s DNA was found on the wire cutters. Without any viable challenges to the accuracy of the DNA testing, defendant’s attorneys instead tried to convince the jury that someone else had committed the burglary, and the true perpetrator had worn defendant’s gloves while committing the crime. Preventing the jury from considering the DNA evidence at all was, after all, not a realistic option, as a successful Crawford challenge would not have rendered the DNA evidence inadmissible. The evidence presumably would have been admitted 9 through another analyst’s testimony if a Crawford objection had been sustained by the trial court. 2. Counsel’s performance was not deficient for failing to raise a Confrontation Clause challenge to the DNA evidence because there would have been no merit to such a claim. Next, defendant cannot show that his attorneys were ineffective for failing to challenge Huyck’s testimony on Confrontation Clause grounds because, as the majority in Rodriguez correctly ruled, there was no merit to the Crawford claim raised on appeal. Of course, defendant’s right to confrontation under the Sixth Amendment and New York Constitution requires exclusion only of out-of-court hearsay statements that are testimonial. Crawford v. Washington, 541 U.S. at 51; People v. Austin, 30 N.Y.3d 98, 104 (2017); John, 27 N.Y.3d at 303; Brown, 13 N.Y.3d at 338. Under the primary purpose test for determining whether evidence is testimonial, this Court has considered “whether the statement was prepared in a manner resembling ex parte examination and . . . whether the statement accuses defendant of criminal wrongdoing.” Austin, 30 N.Y.3d at 104, citing People v. Pealer, 20 N.Y.3d at 453; People v. Rawlins, 10 N.Y.3d 136, 156 (2008). Defendant’s simplistic explanation of the primary purpose test (Defendant’s SSM at 6) omits a key factor in this Court’s analysis regarding the testimonial nature of a DNA report: whether the DNA was collected and tested before the defendant became a suspect in the case. This Court’s “analysis has been different in cases where defendant was linked to the DNA from the crime scene from a cold hit before he was ever a suspect in the crime.” Austin, 30 N.Y.3d at 104. DNA results derived from a sample collected and analyzed before defendant was accused of the crime are nontestimonial because the evidence does not accuse defendant or directly link him to a crime. Austin, 30 N.Y.3d at 104, citing Brown, 13 N.Y.3d at 340; Freycinet, 11 N.Y.3d at 42; John, 27 N.Y.3d at 310. To testify about such evidence, the People may produce a witness who is both familiar with the testing procedures that were 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. By contrast, DNA results from a sample collected from defendant after he has been identified as a suspect are presumptively testimonial. Austin, 30 N.Y.3d at 104; John, 27 N.Y.3d at 308. This is because the evidence has been “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.” John, 27 N.Y.3d at 308, 315. Yet even under these circumstances, it is not necessary for the People to produce a witness who conducted the actual testing to testify at trial. Rather, it suffices if the People produce as a witness “an analyst who witnessed, performed or supervised the generation of 10 defendant’s DNA profile, or who used his or her independent analysis on the raw data.” John, 27 N.Y.3d at 315. Crucially, the first and second OCME case files in this case both involved DNA evidence that was collected and tested before defendant became a suspect. The first case file involved the DNA from the crime scene and was completed before any suspect in the break-in had been identified. The second case file involved a buccal swab from defendant collected and analyzed in 2010, nearly two years before the instant crime was committed. Accordingly, when those DNA profiles were tested, the resulting analyses were not created to directly link defendant to the instant crime and accuse him of this burglary. As this Court has explained, like the profiles in Brown and Meekins, which were generated when the suspect was unknown, such evidence “would not be considered testimonial hearsay as [it does] not satisfy the Williams primary purpose test.” John, 27 N.Y.3d at 310, citing Brown, 13 N.Y.3d at 340; Meekins, 10 N.Y.3d at 158-59. Accordingly, evidence from the first and second case files was not testimonial, and the majority in Rodriguez was correct to uphold its admission into evidence through Huyck’s testimony. Assuming, arguendo, that the evidence from the first and second case files were testimonial, Huyck’s testimony still adequately satisfied defendant’s Confrontation Clause rights. As the Appellate Division properly found, Huyck was the “Analyst” on the first case file and the “Interpreting Analyst” on the second case file, and she personally reviewed and interpreted the raw data underlying the DNA profile analyses that were admitted into evidence at trial (A079-A081, A096, A282, A289-A351, A353, A357-A383). Her testimony regarding this evidence satisfied Crawford because she “used . . . her own independent analysis on the raw data.” See John, 27 N.Y.3d at 315. The majority in Rodriguez was correct to conclude that the report Huyck personally prepared was testimonial because it reflected a procedure performed after defendant became a suspect in this case, and it accused defendant of the burglary. Rodriguez, 153 A.D.3d at 244. Defendant’s Confrontation Clause rights were fully honored, however, because Huyck created the report and was available for cross- examination about this report that she created. See John, 27 N.Y.3d at 315. Given the lack of merit to a Crawford challenge, defense counsel can hardly be deemed ineffective for failing to raise the claim. Where a “reasonably competent attorney” could conclude that raising an objection would have “little chance of success,” this Court will not find ineffective assistance based on the attorney’s decision not to raise the claim. People v. Honghirun, 29 N.Y.3d 284, 290 (2017), citing People v. Oathout, 21 N.Y.3d 127, 128 (2013); Caban, 5 N.Y.3d at 152. “The test is ‘reasonable competence, not perfect representation.’” Oathout, 21 N.Y.3d at 128, citing People v. Modica, 64 N.Y.2d 828, 829 (1985). For example, if there is negative precedent for a claim that could have been raised at trial, an attorney will not 11 be considered ineffective for failing to raise it. People v. Brunner, 16 N.Y.3d 820, 821 (2011); see also People v. McGee, 20 N.Y.3d 513, 518 (2013) (counsel not ineffective for failing to raise a claim of “dubious efficacy” given the “precedent existing at the time of trial”); People v. Borrell, 12 N.Y.3d 365, 369 (2009) (counsel not ineffective for failing to raise issue of “uncertain efficacy”). Moreover, an attorney’s performance is not ineffective for failing to raise an issue unless it was “clear cut” and “dispositive” at the time of trial. Henderson, 28 N.Y.3d at 65; McGee, 20 N.Y.3d at 518; People v. Keating, 18 N.Y.3d 932, 934 (2012); Brunner, 16 N.Y.3d at 821. Here, at the time of trial, i.e., at the time that counsel’s performance must be assessed—the only cases from this Court involving DNA reports held that they were nontestimonial. Brown, 13 N.Y.3d at 335; Meekins, 10 N.Y.3d at 158. Similarly, in Williams v. Illinois, 132 S. Ct. 2221 (2012), the United States Supreme Court found no violation of the Confrontation Clause when a witness testified on behalf of the prosecution regarding the results of DNA testing that he had not personally conducted. Accordingly, it was hardly “clear cut” that defense counsel should have insisted that someone other than Huyck testify about the results of the DNA analysis in this case. See Brunner, 16 N.Y.3d at 821 (where “the governing law was unfavorable,” counsel’s failure to raise a claim that was not “clear cut” and “dispositive” did not render counsel’s otherwise competent performance deficient); compare with Turner, 5 N.Y.3d at 481-83 (where there was clear statutory support and binding precedent to support a “winning argument” that the defendant had a valid statute of limitations defense to manslaughter charge, trial counsel’s error to raise the claim “should have been apparent to any reasonable appellate counsel”). Defendant suggested that counsel’s performance was deficient for not recognizing the “solid legal foundation to argue that the DNA reports were testimonial” based on Confrontation Clause cases that “foreshadowed John and Austin.” (Defendant’s SSM at 8-9). But once again, defendant’s claim is based on an oversimplified view of what statements qualify as testimonial: they are not so merely because they are “statements from forensic analysts” or “reports used by experts as the basis for the expert’s opinions” (Defendant’s SSM at 8-9). Moreover, as this Court is well aware, the key factor in this Court’s determination that the DNA evidence in John and Austin was testimonial is the fact that it was created after defendant had been identified as a suspect. Not only is this factor absent from the cases defendant cites as “foreshadowing” John, none of the cases have anything to do with DNA evidence (Defendant’s SSM at 8-9, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 [2009] [certificates of analysis showing results of chemical analysis on controlled substances]; Rawlins, 10 N.Y.2d at 136 [latent fingerprint reports]; Pealer, 20 N.Y.3d at 447 [breathalyzer calibration documents]; People v. Goldstein, 6 N.Y.3d 19 (2005) [statements made to expert by nontestifying witnesses]). In short, given the fact that there would have been no merit to counsel raising a challenge to the DNA evidence in this case on Confrontation Clause grounds, this 12 Court cannot deem counsel’s performance deficient based on the decision not to raise a claim that would not have had any chance of success. In sum, defendant cannot prevail on his ineffective assistance of counsel claim because there is an inadequate record for this Court to review defense counsel’s decision not to raise a Crawford claim. Moreover, any objection by counsel on Crawford grounds would have been meritless, thus the defense adopted a reasonable strategy for addressing the DNA after a thorough investigation. Accordingly, the order of the Appellate Division should be affirmed. Respectfully submitted, Sheila L. Bautista Assistant District Attorney (212) 335-9316 cc: Michael J. Hutter, Esq. Powers & Santola, LLP 39 North Pearl Street, 6th Floor Albany, New York 12207-2785