The People, Respondent,v.Peter Austin, Appellant.BriefN.Y.September 7, 2017To be argued by: MARIANNE STRACQUADANIO (15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PETER AUSTIN, Defendant-Appellant. BRIEF FOR RESPONDENT DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-6100 stracquadaniom@bronxda.nyc.gov NANCY KILLIAN RAFAEL CURBELO MARIANNE STRACQUADANIO Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER TABLE OF CONTENTS RESPONDENT’S BRIEF .................................................................................... 1 STATEMENT ....................................................................................................... 1 QUESTIONS PRESENTED ............................................................................... 2 THE FACTS ......................................................................................................... 3 The Trial .............................................................................................................................. 3 The People’s Case ............................................................................................................... 3 The Defense ...................................................................................................................... 10 The Verdict and Sentence ................................................................................................ 10 The Appellate Division Decision ................................................................................... 10 ARGUMENT ...................................................................................................... 12 POINT ONE: DEFENDANT’S CONFRONTATION CLAIM IS UNPRESERVED AND MERITLESS, SINCE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED. ....................................................... 12 A. Defendant’s claim that his right to confrontation was violated is unpreserved. ...................................................................................................................... 13 B. Defendant’s Confrontation Claim is Meritless ................................................... 16 POINT TWO: DEFENDANT WAS NOT ENTITLED TO AN ADVERSE INFERENCE CHARGE, SINCE THE PHYSICAL DNA EVIDENCE WAS NOT DESTROYED BY AGENTS OF THE STATE. ............................................ 27 A. The Unavailability of the DNA Evidence and Defendant’s Request for an Adverse Inference Instruction ........................................................................................ 27 B. Defendant was not entitled to an adverse inference instruction ...................... 32 CONCLUSION................................................................................................... 40 TABLE OF AUTHORITIES State Cases People v. Austin, 134 A.D.3d 559 (1st Dept. 2016) .......................................................... 2, 37 People v. Beckham, _ A.D.3d_, 2016 WL 4199149 (2d Dept. August 10, 2016) ............. 25 People v. Brown, 13 N.Y.3d 332 (2009) ..................................................................... 20, 23, 24 People v. Budd, 46 N.Y.2d 930 (1979) .................................................................................. 35 People v. Crimmins, 36 N.Y.2d 230 (1975) ........................................................................... 39 People v. Diaz, 97 N.Y.2d 109 (2001) ................................................................................... 35 People v. Durant, 26 N.Y.3d 341 (2015) ......................................................................... 34, 37 People v. Goldstein, 6 N.Y.3d 19 (2005) ................................................................................ 19 People v. Handy, 20 N.Y.3d 663 (2013) ......................................................................... passim People v. Haupt, 71 N.Y.2d 929 (1988) ......................................................................... 36, 38 People v. James, 93 N.Y.2d 620 (1999) .................................................................................. 36 People v. John, 27 N.Y.3d 294 (2016) ............................................................................. passim People v. Julian, 41 N.Y.2d 340 (1977) ................................................................................. 30 People v. Kelly, 62 N.Y.2d 516 (1984) ................................................................................... 39 People v. Luperon, 85 N.Y.2d 71, 78 (1995) .......................................................................... 13 People v. Oliver, 63 N.Y.2d 973 (1984) ................................................................................. 14 People v. Pealer, 20 N.Y.3d 447 (2013) ................................................................................. 20 People v. Rawlins (Meekins), 10 N.Y.3d 136 (2008) .............................................................. 20 People v. Stahl, 141 A.D.3d 962 (3d Dept. 2016) ................................................................ 25 People v. Tevaha, 84 N.Y.2d 879 (1994) ................................................................................ 14 People v. Tutt, 38 N.Y.2d 1011 (1976) .................................................................................. 15 ii Federal Cases Arizona v. Youngblood, 488 U.S. 51 (1988) ........................................................................... 36 Bullcoming v. New Mexico, 564 U.S. 647 (2011) ................................................ 12, 14, 17, 22 Crawford v. Washington, 541 U.S. 36 (2004) ......................................................................... 18 Melendez Diaz v. Massachusetts, 557 U.S. 305 (2009) ............................................... 12, 14, 18 Williams v. Illinois, 132 S. Ct. 2221 (2012) ..................................................................... 14, 18 Statutes C.P.L § 240.20 ......................................................................................................................... 2 C.P.L.§ 470.05 ....................................................................................................................... 13 iii COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PETER AUSTIN, Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Judith J. Gische, Justice of the Appellate Division, First Department, granted February 9, 2016, Peter Austin appeals from an order of the Appellate Division, First Department, entered on December 22, 2015, affirming the judgment of the Supreme Court, Bronx County (Williams, J.), rendered January 10, 2013, and amended May 30, 2013. By that judgment, defendant was convicted, after a jury trial, of Burglary in the Third Degree (two counts) and Criminal Mischief in the Fourth Degree under Indictment Number 1712/2010, and sentenced to two consecutive indeterminate terms of from three-and-one-half to seven years of incarceration for each burglary count, followed by one year of incarceration for the criminal mischief conviction. Defendant was released from incarceration, and is currently on parole. QUESTIONS PRESENTED 1. Whether the trial court properly admitted into evidence testimony regarding DNA test results. The trial court was not presented with the precise issue that defendant now raises—that defendant’s right to confrontation was violated because defendant did not have the opportunity to confront the analyst who generated the DNA profile from defendant’s exemplar (see defendant’s brief, p. 39-42); instead, counsel argued below that Mr. O’Connor’s testimony about the DNA at the crime scene (see A938 referring to the “the first two” vouchers) raised a confrontation issue because he was merely a supervisor, not the analyst (A934-938). The court ultimately held that the law did not require that the prosecution present every single analyst who tested the evidence (see A938-939). The Appellate Division did not have the opportunity to rule on defendant’s confrontation claim, since it was not raised on direct appeal. See People v. Austin, 134 A.D.3d 559 (1st Dept. 2016). 2. Whether the trial court properly declined to issue an adverse inference instruction with respect to physical DNA evidence that was not introduced as evidence at trial, considering that defendant neglected to demand said evidence pursuant to C.P.L § 240.20, and considering that said evidence was unavailable due to Hurricane Sandy, as the storage facility in which it was kept was flooded and subsequently closed by the Occupational Safety and Health Administration at the time of trial. The court denied defendant’s request for an adverse inference charge, but noted that, depending on how dissatisfied it was with the People’s witnesses, it would grant defendant’s potential request for a mistrial (A822-824). The Appellate Division held, “we cannot see any ‘inadvertence’ with which the State can be charged here,” and that by placing the evidence in a storage facility that was flooded, “We do not believe that this kind of exercise of a discretionary governmental function was what the Court of Appeals had in mind when it indicated that a loss of evidence resulting from ‘a good faith error by the State’ could be the basis for an adverse inference charge.” See Austin, 134 A.D.3d at 561-62. 2 THE FACTS The Trial The People’s Case The June 29, 2009 Burglaries at 1441 and 1449 East Gun Hill Road Donna Artis was an owner of the building located at 1441-1449 East Gun Hill Road. The building had separate storefronts that were connected by a rear door and through the basement, with doors to each establishment in the basement (A176-180). One of these establishments, a dry cleaning business called Klean Dr. Kleaners, was operated by Andy Lee (A537-538, 543). On June 29, 2009, he was the last to leave work at approximately 6 P.M. When he departed, the store was in good condition, with everything neatly organized, and with $100 in the cash register, as was Lee’s practice (A539, 544). Lee kept $6000 cash inside of three little boxes in a cabinet box, which remained in the store when he left that night, along with a pair of brand new Nike sneakers (A539-540, 544, 562). When Lee returned to his store at approximately 8 A.M. on the morning of June 30, 2009, he observed that his computer monitor was on the floor underneath the counter, his money cabinet was open, and his cash register was open, turned over, and empty. Everything was disheveled (A543-544). Lee also observed that the door in the basement was open and dented, and the metal shutter door for another storefront was open (A546-549). Lee called 911, as well as Artis (A183, 547). After being informed by Lee that there had been a break-in (A183), Artis 3 arrived at the building at approximately 8:00 A.M. When she approached the storefront located at 1441 East Gun Hill Road, which was a vacant store, she noticed streaks on the door, and a glass panel on the door that was broken (A188, 203, 228- 229, 250-255, 268). The vacant storefront had only rugs, a toilet, and an air freshener (A189, 213). Detective Richard Carrasquillo of the 47th Precinct was one of the first officers to respond on June 30, 2009 (A305-306). He spoke with Lee, and determined that the point of entry for the intruder was the rear door to the entire building. He observed that the door was pried open, and had a red substance on it that looked like blood (A307-310, 382). Det. Carrasquillo also watched surveillance footage from Lee’s dry cleaning store (A310, 370). Det. Carrasquillo requested that the evidence collection team be called to the scene (A311-312). Police Officer Patrick Tunnock arrived on the scene. After observing that the rear door was broken, with what appeared to be blood on it, Officer Tunnock took photographs of it, “swabbed” the door, and sealed and vouchered the swabs under voucher number P752662, according to protocol (A653- 656, 668). Officer Tunnock requested a laboratory analysis of the swabs for DNA blood analysis (A656). Det. Carrasquillo’s partner, Detective Michael Murray, became involved with the investigation a few days later, on July 6 or 7, 2009 (A577-578). At that time, Det. Murray spoke with Artis and Lee, watched video surveillance of the burglary from the 4 Lee’s dry cleaning store, and brought it to the NYPD Technical Assistance Response Unit (hereinafter “TARU”), which handles the downloading of surveillance systems (A368, 457, 582, 589, 729-730). The video surveillance footage was ultimately received into evidence and played for the jury (see A854, 943-944, 1153-1154). The September 2, 2009 Burglary at 4132 White Plains Road Sammy Saad was a manager at Classic Bed and Bath, located at 4132 White Plains Road (A460). Saad left his store on September 2, 2009, after locking two doors—the one in front and the back door to the alley—and putting on the alarm system (A461-464). When he left, everything was in good condition, and was ready for the next morning, with $200 in cash and $100 in change in the register, as was his practice (A462, 488). When Saad arrived at Classic Bed and Bath the morning of September 3, 2009, he saw that the back door was open. He also observed that the lock was missing on the back door, and that half of this door was broken (A463). The inside of the store was a mess. The cash register was broken and open, and the money that Saad had left in it was gone (A464-466). The phone lines, through which the alarm system functioned, were cut (A465, 474-475). A 2x4 piece of wood was left next to the counter, which seemed to be the tool that was used to pry open the cash register (A467, 481). There was also a bloody layaway receipt left near where the cash register had been, which had not had blood on it when Saad left on the previous night (A469- 471). Saad called 911 from his cell phone (A480). 5 Sergeant James Foster was the first officer to respond. He took a complaint and noticed that the back door looked disturbed (A614, 619). Det. Carrasquillo relieved him later that day, spoke to Saad, and determined that the rear door was the point of entry (A312-315, 337-338, 620). Det. Carrasquillo called the evidence collection team, and Police Officer Orlando Martinez responded (A336, 361, 503). Officer Martinez took photographs of the bloody receipt, and vouchered it according to NYPD protocol by putting in a brown paper bag, and sealing it with his name, tax number, and an assigned serial number under voucher number was R088968 (A507- 510, 512). Officer Martinez dusted for fingerprints, but obtained negative results. He was unable to process the 2x4 piece of wood, since it did not have any blood on it, and was too glossy to lift fingerprints. (A508-509). Officer Martinez also vouchered a cardboard box that contained some blood on it, which was found in the back area (A406-408, 492, 504, 512, 514, 523). The DNA Evidence The results of the DNA analyses of the crime scene evidence (see Criminalist O’Connor’s testimony, infra) were run through the CODIS (Combined DNA Index System) database. There was an “offender hit,” meaning that the DNA from the crime scene evidence matched a DNA profile that was in the database; defendant’s DNA was on file because of his previous convictions, although the parties had agreed prior to trial that the prosecutor would not refer to any of defendant’s previous convictions, and would merely refer to matches in the database itself (A46, 135, 137- 6 141). Detective Murray issued an ICARD (Investigative Card) for defendant’s arrest, and was notified when defendant was arrested on an unrelated matter on April 14, 2010 (A595-600). While defendant was in custody, Detective Michael Smith collected defendant’s DNA sample, pursuant to a court order, on July 24, 2012, under voucher number 2012-0732 (A945, 949). Detective Smith requested that defendant’s DNA sample be tested and compared with the crime scene evidence, which was assigned forensic biology numbers FB09-05593 and FB09-04107 (A952-953; see also 893, 976-977). A criminalist from the OCME (Office of the Chief Medical Examiner), James O’Connor, testified about his comparison of the DNA evidence from the blood that was found at the crime scenes with defendant’s DNA. As a “Criminalist Level 3,” Mr. O’Connor’s duties included examining evidence, looking for biological materials on the evidence, submitting the biological materials for further testing, reviewing the results of the test, and writing a report based on those results (A877). In brief, Mr. O’Connor compared the DNA profiles from the 2009 burglaries to the profile from defendant’s 2012 sample. Specifically, the crime scene evidence was subject to the Kastle Meyer test for the possible presence of blood. When the Kastle Meyer test yielded positive results, DNA was extracted from the sample by “adding chemicals… and releasing the DNA into the solution so that it could be further tested.” The DNA was then quantified—meaning that it was determined how much DNA was present—and then amplified. Amplification is a process in which 7 specific areas of interest on the DNA are targeted and copied (A978-980). After amplification, a DNA typing procedure was done1 (A981-982). An analyst—who was not Mr. O’Connor—compared the DNA peaks from the evidence with the standard (A983). After all of the testing was done and all of the data was compiled in the case file, Mr. O’Connor reviewed “every test that was done, every control that was involved, and all of the data that was finally found.” Mr. O’Connor himself “made the determination” of the DNA profile from the crime scene evidence (A984; see also A1196 [not in evidence], wherein the numbers constituting DNA profile are listed according to locus, chromosome, and allele).2 He made a report concerning his findings (see A1195-1197 [not in evidence]), which was reviewed by Joanna Schlessar-Perry (A988-989). Mr. O’Connor did not know of Peter Austin prior to developing the DNA profile (A987). After Mr. O’Connor had a DNA profile, he uploaded the numbers into a local 1 Specifically, the DNA typing procedure involves taking a small sample of the amplified DNA and putting it into an instrument called a “3130,” where the DNA moves through a very thin tube using electricity. The reason for this is because the specific areas of DNA that have been amplified are different sizes, and, therefore, move through the tube at different rates. The shorter the fragment of DNA, the quicker it goes through, and the longer, the slower. Using a “detector” allows the criminalists to determine the lengths of these DNA. With the lengths, they are able to determine the DNA profile. The 3130 outputs data for the criminalists, and they input the data into a different software program where they can view it in an “electropherogram” graph (see, e.g., A1214-1215 [not in evidence]), which has shorter fragments on one side and longer fragments on the other that allows the criminalists to see DNA fragments as peaks of DNA (A981-982). 2 Specifically, this portion of Mr. Connor’s testimony related to the crime scene evidence from the Gun Hill Road burglaries that was tested under FB 09-04107. The evidence from the Classic Bed and Bath burglary—for which defendant was not convicted—was tested under FB 09-05593 (see Mr. O’Connor’s later testimony at A997-998). 8 database to see if there was a match from one case to another case. He was notified that the DNA profile from the evidence collected from the Gun Hill Road burglaries matched that of the Classic Bed and Bath burglary (A986, 996). He then compared the DNA profiles in the two cases by looking at them together to see if all of the numbers were the same. There was a match between the two cases (A996-997). The DNA sample that was taken by Detective Smith under voucher number 2012-0732 (same as 2000120732, see A1004) was received by the OCME. The DNA sample was subject to the same testing procedures as the crime scene evidence— extraction, quantitation, amplification, and typing (A1004). Mr. O’Connor reviewed the DNA profile in this case—that is, he looked at the string of numbers, which is the DNA profile, and compared it to the profiles under FB09-04107 and FB09-05593. He compared each separately, and determined that there was an exact match “at every location,” meaning that all three samples had the same DNA profile (A1004-1005). He drafted a report about his findings on October 23, 2012 (A1005; see also A1233- 1288 [not in evidence]). The Unavailability of the DNA Evidence Sergeant Ralph Charles, who worked in the Bronx Property Clerk’s Office, testified that according to his business records, the evidence collected under voucher numbers P752662 and R088968 were stored at the NYPD’s Kingsland Avenue Storage Facility (A694, 916). However, because of Hurricane Sandy, the Kingsland facility was closed and deemed unsafe to enter on the eve of trial (A694, 859-861). 9 Sergeant John Capuzzi, who worked in the Property Clerk’s Division in Kingsland, testified that the federal government, and specifically, OSHA (the Occupational Safety and Health Administration), condemned the Kingsland building because the water that flooded the warehouse contained contaminants from a nearby creek, which was a designated Superfund location (A859-861). Sgt. Capuzzi could not enter the building to look for the physical DNA evidence, as well as the original reports relating to the testing of the physical evidence, because OSHA had closed down the building and prohibited the officers from entering (A686-687, 870). The Defense The defense rested after the People’s case. The Verdict and Sentence The jury found defendant guilty of two counts of Burglary in the Second Degree, as well as Criminal Mischief in the Fourth Degree with regards to the dry cleaning store and the vacant office at East Gun Hill Road. The jury found defendant not guilty of having committed third degree grand larceny in the dry cleaning store (for the $6000 cash), and also found defendant not guilty of any of the charges relating to the Classic Bed and Bath store (A1168-1169). The Appellate Division Decision On December 22, 2015, the Appellate Division, First Department, affirmed defendant’s judgments of conviction. The First Department did not rule on 10 defendant’s claim that his right to confrontation was violated, since it was not raised below. It did, however, reject the claim that defendant was entitled to an adverse inference instruction as a result of the unavailability of the DNA evidence. Crucially, the Court held that the DNA evidence in question was not lost or destroyed by agents of the State within the meaning of People v. Handy, 20 N.Y.3d 663 (2013), since it was not inadvertently lost through the negligence of government employees or destroyed pursuant to a government policy (A6). The First Department further held that the materiality of the DNA evidence from the crime scene—meaning, the physical blood itself—was questionable (see A7, 12). The court noted that the condition of the physical evidence itself was irrelevant, since defendant “never expressed any interest in conducting an independent DNA analysis.” (A13). Justice Judith Gische dissented, noting that the DNA evidence was in the People’s custody and control, and that Handy should not be read narrowly so that only destruction by an “agent of the state” calls for the issuance of an adverse inference instruction (A22-23). On February 9, 2016, she granted leave to appeal to this Court (A3). 11 ARGUMENT POINT ONE DEFENDANT’S CONFRONTATION CLAIM IS UNPRESERVED AND MERITLESS, SINCE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED. The heart of defendant’s claim is that his right to confrontation was violated because the People did not call the analyst who made his DNA profile (defendant’s brief, p. 42-43). He argues that the comparison between defendant’s DNA exemplar and the profiles from the crime scene evidence was testimonial because that comparison was created for the primary purpose of producing evidence for trial (defendant’s brief, p. 36-37), and that the failure to call the analyst who generated “the numerical identifiers or the calling of alleles at the final state of the DNA typing” (defendant’s brief, p. 43) violated his right to confrontation. This claim is unpreserved and meritless. Defendant never raised this argument below. To be clear, counsel argued that under Melendez Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), Mr. O’Connor was not the proper witness to testify regarding “the first two” analyses of the crime scene evidence, since he did not “calibrate[] the instruments” (A934, 938-939). However, at no point did counsel object that the People were required to call the analyst who generated defendant’s DNA profile from his exemplar (see A934-939). His claim is therefore unpreserved. To the extent that defendant’s claim is reviewable, this case falls outside of the 12 scope of People v. John, 27 N.Y.3d 294 (2016), since the DNA reports were not in evidence. Even if the rule announced in John were operative here, because Mr. O’Connor himself made the DNA profiles of the crime scene evidence as well as compared those DNA profiles and defendant’s DNA—and, because Mr. O’Connor testified to that effect—there was no violation of defendant’s right to confrontation. A. Defendant’s claim that his right to confrontation was violated is unpreserved. Defendant claims for the first time that the testimony of Mr. O’Connor regarding the DNA profile comparison, without the testimony of a witness that “prepared, witnessed, or supervised the generation of the…numerical DNA profile” from his exemplar violated his constitutional right of confrontation under John (see defendant’s brief, p. 36-37). In support of this claim, defendant relies on the argument that the DNA comparison evidence was developed for the primary purpose of producing evidence for defendant’s trial, and was, therefore, testimonial. However, defendant failed to raise this argument below, and accordingly, it is beyond the scope of this Court’s review. See C.P.L. § 470.05(2). The rules of preservation require that any claim that a defendant wishes an appellate court to review must have been brought to the attention of the trial court’s attention at a time when the trial court could have had the opportunity to “remedy the problem and thereby avert reversible error.” See People v. Luperon, 85 N.Y.2d 71, 78 (1995). In doing so, a defendant must assert at trial an argument that is “sufficiently specific” to alert the court to the alleged error. See People v. Oliver, 63 N.Y.2d 973, 975 13 (1984); see also People v. Tevaha, 84 N.Y.2d 879 (1994)(“the word ‘objection’ alone is insufficient to preserve an issue for appellate review”). Here, prior to Mr. O’Connor’s testimony, the prosecutor announced that Mr. O’Connor would testify that “it was under his supervision that the original samples were tested before they ever found out it was the defendant, and they developed the DNA profile and [Mr. O’Connor] did the subsequent comparison” (A934). Counsel objected “on the grounds of Melendez Diaz versus Massachusetts,” and argued that the testimony that the prosecutor was trying to elicit was going to be from a witness who would not be called (A934). Soon after this exchange, counsel clarified, “Judge, the issue that I have now is that the DA disclosed that Mr. O’Connor was not the actual analyst, but merely a supervisor on the first two and I think that now creates an issue…as to the Melendez Diaz confrontation issue” (A938). The court responded that there is a “certain level of minutiae” regarding chain of custody foundations, and that the reason for the business record rule in the first place was in order to avoid the necessity of “bring[ing] in every human being whoever had to do with something in the modern commercial world.” Counsel responded that “where the test is actually being used and relied upon…the People are required to bring in a person or persons who calibrated these instruments who are relied upon by Mr. O’Connor in the DNA analysis,” and cited Melendez Diaz, Bullcoming, and Williams v. Illinois, 132 S. Ct. 2221 (2012) (A939). By framing his objection as such, counsel did not adequately preserve 14 defendant’s claim. Counsel argued that there was a confrontation problem because Mr. O’Connor was not the analyst of the crime scene evidence—that is, the “the first two” laboratory reports (A938)3—and that the People were required to bring in the person “who calibrated the[] instruments” (A939); however, he never argued that the analyst who generated defendant’s DNA profile needed to be called. Defendant’s claim that Mr. O’Connor could not have testified about the match between defendant’s DNA and the crime scene DNA, since he was not involved in the underlying testing of defendant’s DNA and did not perform an independent analysis of that data (defendant’s brief, p. 4-5), should have been raised in the trial court, “when the People would have [had] an evidentiary opportunity to counter [this] assertion” People v. Tutt, 38 N.Y.2d 1011, 1013 (1976). This did not happen (see A1004- 1005). It would be unfair to allow defendant to complain here that Mr. O’Connor was not involved in testing and did not independently analyze the data; had the objection been made below, the People could have delved further into Mr. O’Connor’s role in this case to reassure the defendant and the Court that Mr. O’Connor was the appropriate witness for this evidence.4 Accordingly, defendant’s claim is unpreserved. 3 Ultimately counsel’s characterization is misleading, because Mr. O’Connor was the criminalist who created the original DNA profiles (see A984). 4 Nonetheless, on the face of this record, Mr. O’Connor’s testimony was sufficient under John, 27 N.Y.3d 294 (2016), since he made the DNA profile of the crime scene evidence before defendant was even a suspect (A984), and independently analyzed the DNA profiles from the crime scene evidence and defendant’s exemplar (A1004-1005; see also Point I.B. infra). 15 B. Defendant’s Confrontation Claim is Meritless Even if this Court were to review the merits of defendant’s claim, it should find that defendant’s right to confrontation was not violated. The criminalist who made the DNA profile of the crime scene evidence and who compared that profile with defendant’s DNA profile testified at trial with regard to his analysis, and was cross- examined, thus raising no confrontation concerns. 1. This case does not implicate the rule announced in John, since the DNA reports were not in evidence In John, this Court addressed “whether defendant’s Sixth Amendment right to confront the witnesses against him was violated when the People introduced DNA reports into evidence asserting that defendant’s DNA profile was found on the gun that was the subject of the charged possessory weapon offense, without producing a single witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile from the gun or defendant’s exemplar.” Id. at 297 (emphasis added). This rule should not be applied beyond the unique situation described there—that is, when laboratory reports themselves are introduced into evidence that explicitly refer to the fact that a defendant’s DNA profile is found on crime scene evidence. See id. at 297; this Court evidently sought to apply this rule narrowly, stating, “under the circumstances presented here, defendant’s right to confrontation was violated” (emphasis added). Id. Here, there were no reports admitted into evidence, since the court sustained counsel’s objection (see A1011). Without the reports in evidence, there was no such 16 confrontation problem, because Mr. O’Connor was cross-examined with regard to his comparison of defendant’s DNA profile and the DNA profiles from the crime scenes. In John, this Court explained that it is the DNA profile itself that raises confrontation concerns. Relying on the principle announced by the Supreme Court in Bullcoming v. New Mexico, 564 U.S. 647 (2011) that a criminal defendant had the right to confront a forensic analyst who certified a laboratory report stating the defendant’s blood alcohol content—which established the defendant’s intoxication, an element of the crime charged—the John Court found that DNA profiles are testimonial in nature. “[I]t is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged.” Id. at 313. This Court, therefore, held that the “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.” Id. at 315. Considering the facts and circumstances of this case, there was no confrontation violation because there was no “DNA typing that effectively accuse[d] defendant of his role in the crime charge.” Crucially, defendant’s DNA profile had already been known, since it was in the CODIS database from his prior conviction. And, the DNA profile from the crime scene evidence had already been prepared before defendant was accused, since it was the “match” between defendant’s known 17 DNA profile and the crime scene profile that led law enforcement to investigate defendant in the first place. Thus, there was no profile that was “prepared for the primary purpose of accusing a targeted individual,” (Williams v. Illinois, 132 S. Ct. 2221, 2243 [2012]), unlike John, where the defendant was known to have “HANDLED THE FIREARM.” See John, 27 N.Y.3d at 298. In this case, it was the comparison between the already-existent DNA profile from the crime scene evidence and the already-existent DNA profile of defendant that accused defendant of his role in the crime charged. Defendant concedes as much, since he is only challenging that portion of Mr. O’Connor’s testimony for being testimonial (see defendant’s brief, p. 36-37). Here, unlike John, the testifying criminalist, Mr. O’Connor, was the one who concluded that the two DNA profiles matched, and who made the report stating that the two DNA profiles matched. This is evident in the testimony, wherein he explained that “The match is exact. At every location that we test the DNA profile matches up—the DNA profiles match[]” (A1005). This is also evident in the report itself, which shows that Mr. O’Connor was the one who made the report (see A1236 [not in evidence]; see also A1010). There was, therefore, no confrontation violation since the person who accused defendant was cross-examined. Defendant had the opportunity to confront those who bore testimony against him. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009), citing Crawford v. Washington, 541 U.S. 36 (2004). Counsel had a full and meaningful opportunity to question him; he voir dired Mr. O’Connor at length 18 regarding whether he was the person who prepared the report, whether he performed the analysis himself, and whether he reviewed someone else’s work, which apparently was effective since the court did not admit the report into evidence (A1008-1011). Counsel also questioned Mr. O’Connor about whether the OCME “worked for the government,” and whether defendant’s DNA was ever compared to a “fresh sample” of the crime scene evidence (A1029-1032). This invited the jury to speculate as to whether the OCME’s procedures were reliable or whether they “rubber stamped” computer generated numbers linking defendant to the crime (A1031). Defendant’s claim that under People v. Goldstein, 6 N.Y.3d 19 (2005), hearsay statements introduced by Mr. O’Connor were subject to the Confrontation Clause (defendant’s brief, p. 41-42) rings hollow. To begin with, it is unclear what defendant’s claim is; he states that Mr. O’Connor was introducing “the underlying test results for their truth,” but he does not describe what he means by “underlying test results” (see id.). Clearly, here, there was no confrontation problem since 1) the DNA profile from the crime scene evidence was determined by Mr. O’Connor himself (A984), who was subject to cross-examination, and 2) defendant’s DNA profile was not created for the purpose of this litigation, since it was already in the CODIS database from a prior case. C.f. John, 27 N.Y.3d at 308 (“The DNA profiles were 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”). Accordingly, the creation of defendant’s DNA profile was 19 not testimonial since it was “a contemporaneous, objective account of observable facts that [did] not link the commission of the crime to a particular person.” Id. at 315 (citing People v. Pealer, 20 N.Y.3d 447, 454 [2013]). The only testimonial piece of evidence in this case was the comparison of defendant’s known DNA profile5 with the DNA profile from the crime scenes. As stated, this comparison was introduced orally by Mr. O’Connor, who was cross- examined, therefore raising no confrontation issue. That the prosecutor chose to call Mr. O’Connor alone without also calling someone in Albany (A46) to testify about the creation of defendant’s DNA profile does not alter this result. At the time that defendant’s DNA profile was typed—after defendant’s DNA was on file as a result of his other convictions—his profile, “standing alone, shed no light on [his] guilt.” See People v. Rawlins (Meekins), 10 N.Y.3d 136, 159 (2008); see also John, 27 N.Y.3d at 310 (2016)(noting that the DNA profiles in People v. Brown, 13 N.Y.3d 332 [2009] and Meekins would not be considered testimonial hearsay because they were generated when the suspect was unknown and the defendant was later identified on a “cold hit” from the CODIS database); Pealer, 20 N.Y.3d at 453 (“a statement will be treated as testimonial only if it was “procured with a primary purpose of creating an out-of- 5 The DNA profile from defendant’s exemplar was “machine-generated,” as many exemplars are (see A1274, the allele table of FBS12-0094). In essence, because a buccal swab is a known, single source sample of DNA, it does not require the same editing process as DNA from crime scene evidence. Defendant’s claim that because Mr. O’Connor did not perform, witness, or supervise the generation of the DNA profile from appellant’s oral swab (see defendant’s brief, p. 43) is misleading since there was no editing done on appellant’s oral swab (see A1262 and A1276, indicating that no editing was done in the batch wherein FBS12-00994 was located). 20 court substitute for trial testimony”). In sum, the testimony of Mr. O’Connor did not trigger the rule announced in John, since there were no reports admitted into evidence. His testimony, which was subject to cross-examination, did not run afoul of the Confrontation Clause. 2. Even if this Court were to find that defendant’s case falls under the purview of John, Mr. O’Connor’s testimony demonstrates that he independently analyzed the DNA comparison, and, as such, satisfies the standard for admissibility articulated in John. In any event, in this case, Mr. O’Connor conducted an “independent analysis on the raw data” See John, 27 N.Y.3d at 315. Accordingly, the testimony in this case satisfies the standard for admissibility outlined in John, and, as such, this Court should not disturb defendant’s conviction. In light of the facts of John, it clear why this Court held that the defendant’s right to confrontation was violated. Briefly, in that case, the defendant was convicted after trial of second degree criminal possession of a weapon and menacing for pointing a gun at his neighbor during an altercation outside of their apartment building. Another neighbor informed the police that she saw defendant go into the basement with something in his hand and, upon entering the basement, the officer found a box marked “Smith and Wesson” which contained a loaded 9 millimeter handgun and an extra magazine. Three swabs were taken from the gun and submitted to OCME for analysis with the comment “PERP HANDLED THE FIREARM.” Id. at 297. Later, an exemplar DNA sample was obtained from defendant and compared 21 to the samples from the gun. The comparison indicated that defendant’s DNA profile matched that of the loaded firearm and, accordingly, defendant was convicted of the weapons possession offense. At trial, one of the People’s witnesses—Melissa Huyck of the OCME— testified that she did not conduct, witness, or supervise any part of the DNA testing on the gun swabs from the defendant’s case. After conducting his voir dire of Ms. Hyuck, counsel objected to the admission of the DNA laboratory reports into evidence, and asserted that the reports were testimonial. Counsel argued that under Bullcoming, the analysts who had “performed the DNA tests” had to be produced for cross-examination. The court overruled the objection. Later, during cross examination, Ms. Hyuck explained that she reviewed the laboratory reports “to make sure that everything looked ok and everything was signed off on by the necessary people.” Id. at 301. Defense counsel highlighted the perceived shortcomings of Ms. Huyck’s involvement in the testing by asking her about the DNA profile “editing” process. When peaks appear on an electropherogram (see, e.g., A1214-1215 [not in evidence]), the analyst must engage in an “editing” process which involves “remov[ing]” peaks. Huyck, did not engage in the editing process, but she testified that she “reviewed” the editing to make sure that she agreed that certain edits should have been taken out. Id. at 301-302. Based on Ms. Hyuck’s testimony it is evident why this Court held that the defendant’s right to confrontation was violated. Ms. Huyck’s description of her 22 involvement in the case was vague and mostly consisted of her describing what other analysts had done, not her own actions. From her testimony, it seems as though she merely looked at reports developed by other analysts and did not engage in any of her own independent analysis. Thus, on that record, this Court deemed it was necessary that the defendant be given the opportunity to confront the analysts who had conducted an analysis that ultimately indicated that he was guilty of the weapons possession offense. On this record, on the other hand, the testimony of Mr. O’Connor was straightforward and does not trigger the same concerns that were present in John. For one, defendant was not a suspect because he was reported to have committed the crime; instead, defendant only became a suspect when the DNA profile from the crime scene evidence—which Mr. O’Connor himself generated—matched defendant’s DNA profile in the CODIS Database. See, e.g., Brown, 13 N.Y.3d at 336. In a case with similar circumstances, Brown, this Court held that the testimony of the analyst who compared the crime scene DNA profile with the defendant’s known DNA profile was sufficient enough to lay the foundation for the admission of the reports. See id. at 337-339. There, an independent laboratory conducted an analysis of the perpetrator’s DNA from a vaginal swab. When that information was run through CODIS, a “cold hit” linked defendant’s DNA profile to that which was generated from the victim’s rape kit. Id. at 336. At trial, an OCME witness then testified that the independent laboratory’s report consisted merely of raw data and 23 contained no conclusions, and that she drew her own scientific conclusions from analyzing the data and defendant’s DNA profile. Id. This Court held that because she “conducted the actual analysis at issue, linking defendant’s DNA to the profile found in the victim’s rape kit,” having testified that she personally examined the independent laboratory’s report and interpreted the profile of the data represented in the machine- generated graphs, and “made the critical determination linking defendant to this crime,” there was no confrontation problem, in part because defendant could have challenged her claims on cross-examination. Id. at 340. Here, Mr. O’Connor’s testimony was no different from that of the Brown witness but instead, was even more conducive to cross-examination since Mr. O’Connor himself made the DNA profiles from the crime scene evidence (A984). Mr. O’Connor “reviewed the DNA profile in this case,” meaning that he “looked at the DNA profile, the string of numbers,” and separately compared that profile to each of the DNA profiles from the crime scene evidence. He found that they were the same DNA profile. He testified that the match was exact, and that at every “location,” the profiles match up. (A1004-1005). Mr. O’Connor himself was the person who prepared the report, who did the analysis of the data, and who reviewed the testing that was done (A1010-1011). He was ultimately responsible for all the conclusions issued in the final reports (see A1185-1288). Recently, appellate courts have been finding that the testimony of a criminalist like Mr. O’Connor satisfies the admissibility requirements of John. In People v. Beckham, 24 _ A.D.3d_, 2016 WL 4199149, at *1 (2d Dept. August 10, 2016), the Second Department held that the defendant’s right to confrontation was not violated when an OCME criminalist who performed her own analysis of the DNA profiles and who concluded that there was a DNA match and issued the final report was cross- examined. Similarly, in People v. Stahl, 141 A.D.3d 962 (3d Dept. 2016), the Third Department held that the testimony of a forensic scientist who analyzed DNA data— that was compiled by technicians who did not testify—and linked that data to the samples from the rape kit was proper under John. There, the witness testified that other technicians extracted, quantified and amplified the DNA and operated the “genetic analyzer” that created the raw data upon which she relied. Stahl, 141 A.D.3d at *2. She also testified that she “analyzed and interpreted that raw data and rendered her scientific opinions and conclusions linking the DNA evidence to defendant” Id. Notably, the court found that there was “no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile,” or that the witness “relied upon any such opinions or conclusions drawn by others.” Id. Here, like Stahl, there is no evidence that an analyst engaged in any data editing or analysis, or that any analyst other than Mr. O’Connor compared or interpreted the DNA profile from the crime scene and that of defendant. As such, defendant’s right 25 to confrontation was not violated, because there was no one other than Mr. O’Connor who “pointed the finger” at defendant. In sum, Mr. O’Connor—who was the creator of the DNA profiles from the crime scenes and the independent analyst of the comparison between those profiles and defendant’s—was the proper testifying analyst under John. 3. Any error in the admission of Mr. O’Connor’s testimony was harmless Defendant was convicted of two counts of third degree burglary and one count of fourth degree criminal mischief for the June 29, 2009 intrusion at 1441-1449 East Gun Hill Road. Tellingly, the prosecutor believed that the DNA evidence was not critical to her case, as she stated before trial that she was prepared to go forward even without the DNA files (A48). This assessment was accurate. For this incident, video surveillance was available, which featured a man who strongly resembled defendant with a flashlight in his mouth and blood on his clothing, who broke the glass door, rifled through items in the Dry Cleaning Store in an attempt to search for money, and who cleaned up after the areas he had touched in order remove fingerprints (see Exhibits 12, 13). This video was played in the middle of trial, during summation, and after the jury requested it (see A854, 943-944, 1090-1092, 970-971, 1153-1154, 1289). Proof of the fact that the DNA evidence could not have had any significant effect on the jury is to be found in the verdict itself. The jury convicted defendant of burglary only with regards to the Gun Hill Road incident, finding defendant not guilty 26 with regards to any of the crimes committed at Classic Bed and Bath, where there was no video surveillance footage. Thus, the jury chose not to simply accept—without any other corroboration—that defendant committed the crimes at Classic Bed and Bath merely because his DNA profile matched the DNA profile of the evidence collected at the location. Here, the jury was able to distinguish the value of the blood DNA analysis in an incident where video surveillance demonstrated the presence of a man with a bloodied shirt who was surrounded by broken glass, from the value of the blood DNA analysis in an incident without any other corroborating evidence. In sum, there is no reasonable possibility that the absence of Mr. O’Connor’s testimony would have altered the verdict. POINT TWO DEFENDANT WAS NOT ENTITLED TO AN ADVERSE INFERENCE CHARGE, SINCE THE PHYSICAL DNA EVIDENCE WAS NOT DESTROYED BY AGENTS OF THE STATE. A. The Unavailability of the DNA Evidence and Defendant’s Request for an Adverse Inference Instruction During voir dire, on October 24, 2012, defense counsel expressed frustration with not having received the DNA testing reports (A45-46, 77-80). The court reassured defense counsel that he did not need the reports in order to begin his opening statement, and noted that defense counsel “didn’t do anything” about not 27 having received the reports earlier, and that counsel “didn’t see fit to ask that” the prosecutor be ordered to hand over the reports previously, and as a result, the failure to turn them over prior to opening was “no harm, no foul” (A80-84). When the court convened on November 1, 2012—after Hurricane Sandy—defense counsel stated, “Judge, I got all the DNA files from Ms. Jacobson E-mailed to me so I’ve already gone through everything so we are ready to go” (A100). Prior to opening statements, on November 13, 2012, defense counsel communicated that he requested the physical receipt that was vouchered, but that he had not yet seen it (A142-143). In the middle of trial, and specifically, in the middle of Detective Carrasquillo’s testimony, on November 14, 2012, defense counsel once again requested the receipt from Classic Bed and Bath (A316). The court responded that defense counsel made a demand, did not get a response, and then forgot about it “a year and a half ago”; the court also noted that when defense counsel did not get “what he was supposed to,” the “burden [was] on [him] to make the demand” (A318- 320). The prosecutor replied that her understanding was that a photograph of the receipt was a duplicative equivalent, and that defense counsel only asked to see the original once they were sent out to trial (A321-322). She explained that the receipt was no longer available, because it was located in a storage facility that was closed due to Hurricane Sandy (A326, 332). The court noted that defense counsel needed to proceed without it, and noted that defendant selected a jury, meaning that he was 28 ready to proceed at trial, before Hurricane Sandy. Defense counsel moved to preclude all testimony regarding forensic evidence recovered from the receipt, which the court denied (A332-333). Defense counsel mentioned the missing forensic evidence once again in the middle of trial, emphasizing that his client had a Sixth Amendment right to cross- examine the People’s DNA specialist (A636-637). To this, the court responded that defendant had the right to “seek the assistance of somebody to make their own analysis of the blood,” and that it was his choice not to request an examination, because he “wanted to just cross-examine whoever they put up to make their analysis” (A637-638). Defense counsel responded that the physical evidence was in the control of the NYPD, who “chose to put these items in a location susceptible to get damaged,” to which the court noted that the hurricane was “an act of God… an act of Mother Nature…[and] not something that anybody had any control over” (A637- 638). The court noted that defense counsel had not made an effort to inspect the evidence since 2010, when defendant was first arrested, and denied defense counsel’s motion to preclude the DNA evidence and his request to have testimony regarding the flooded facility be held outside of the presence of the jury, explaining that the People were entitled to show why the evidence did not exist (A642). Defense counsel also moved to preclude testimony regarding the DNA evidence based on cases that raised chain-of-custody concerns, citing People v. Julian, 41 N.Y.2d 340 [1977], which the court denied, explaining that the loss of evidence in 29 defendant’s case was different, having been caused by a hurricane or act of God. The court also noted that defense counsel’s chain-of-custody concerns went to the weight, rather than the admissibility, of the evidence (A674-675). After the prosecutor confirmed that the DNA evidence was unavailable because the facility where it was stored was under quarantine, the court asked defense counsel if he wished to request a mistrial in order to wait for the items to be unquarantined, which defense counsel declined (A679). Defense counsel emphasized that the parties “didn’t know” if the physical evidence was actually in the quarantined NYPD storage facility, to which the court remarked that for three years defendant was not interested in conducting his own DNA analysis. The court ruled that there were two options: 1) if the prosecutor was able to establish that the DNA evidence was unavailable through no fault of their own, then the prosecutor would be able to put on her analysis and defense counsel would have an opportunity to “poke holes in it,” or 2) the parties could start over. Defense counsel stated he did not want a mistrial, and the court declared that the parties would “go forward on the other way that’s possible” (A681-682). At the end of Sergeant Charles’s testimony, defense counsel moved to preclude the testimony of the DNA criminalist, regarding vouchers P752662 and R088968, which the court ultimately denied (A724, 876). Defense counsel once again raised the issue of the DNA evidence immediately before the testimony of Criminalist O’Connor. He repeated his argument that the DNA might not have been in the 30 Kingsland facility, and requested that Criminalist O’Connor be precluded from testifying about the analyses of the vouchers (A966). The court denied counsel’s request, noting that the analyses of the vouchers were conducted before defendant was arrested—meaning that they were conducted before Hurricane Sandy—and that since he was indicted, no one followed up with any further testing (A972). At the end of the People’s case, defense counsel moved to dismiss the indictment, arguing that the DNA was the People’s entire case, and yet, there was not “one piece” of DNA evidence in evidence (A1042-1043). The court noted that the DNA was not the only evidence in the People’s case, stating, “You might have forgotten a little something. Remember the CD?...That’s for them [the jury] to decide, isn’t it? Isn’t that an issue of fact as to who that is and isn’t that a sufficient enough item that the jury can draw a conclusion from that your client was the person in that…”(A1045-1046). Defense counsel requested an adverse inference charge for the “missing” DNA evidence (A817-818). The court ruled that it would not give an adverse inference charge because the police department could not be faulted for the “unprecedented disaster” that rendered the DNA evidence unavailable (A822-823). The court ruled that if it was not satisfied with the upcoming testimony regarding the availability of the DNA evidence, it would “mistrial this case” until the evidence could be produced. It noted that this would not be charged against the People, and there would be no 31 double jeopardy (A823-824).6 B. Defendant was not entitled to an adverse inference instruction Defendant claims that the trial court’s failure to issue an adverse inference instruction with respect to the unavailable physical DNA evidence—a receipt and evidence collection swabs containing blood—demands reversal. According to defendant, because the People had a duty to preserve and disclose the DNA evidence, and because they failed to timely disclose it prior to its unavailability, an adverse inference charge was required (defendant’s brief, p. 58-59). Defendant also argues that the jury should have been given the opportunity to assess the weight of the unavailable evidence, instead of “usurping that factual decision” (defendant’s brief, p. 59). Defendant’s claims are meritless. In People v. Handy, 20 N.Y.3d 663 (2013), this Court held that permissive adverse inference charges should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence had been destroyed by agents of the State. See id. at 669. There, defendant was convicted of assaulting a deputy sheriff; images from a video camera that faced toward defendant’s cell—which was the area where the defendant and the sheriff had their altercation—were destroyed before trial. In an omnibus motion made before trial, defendant asked “[w]hether any electronic surveillance in any form was utilized in this 6 On this trial date, the prosecutor also brought to the court’s attention that defense counsel was quoted in the New York Post with regards to defendant’s DNA evidence (A825-827). On the next court date, the court asked jurors if they had seen the article; none of them had (A835-853). 32 case,” and the prosecutor replied that they provided all discoverable material in their possession and that “[t]o the extent that there may be” any videotapes defendant would be permitted to view or inspect them. Id. at 666-667. At trial, the sheriff testified that he informed the defendant that defendant’s sandals and boxer shorts that were not “jail issue,” and asked defendant to give them to him, which caused defendant to take a swing at him, and led to a fistfight. The sheriff also testified that he had himself, in the presence of others, looked at the images recorded by that camera, and that he saw the incident from the images. Defendant testified that the sheriff started the fight by swinging at him and that the sheriff tackled him. Id. The court refused to issue an adverse inference instruction with regard to the destroyed surveillance. Id. This Court held that because it was the fault of the state agents that “created the need to speculate about the video’s contents” by destroying the video, an adverse inference charge was needed. In essence, an adverse inference instruction “mitigates the harm done to defendant by the loss of the evidence.” Id. at 669. Critically, the Court put forth a “checklist” for when an adverse inference charge should be given, which is when 1) a defendant using reasonable diligence has requested 2) evidence that is “reasonably likely to be material,” and 3) where that evidence has been destroyed by agents of the State. Id. The Court also noted that when a video like the one showing the altercation between the defendant and the sheriff would foreseeably lead to criminal prosecution, state actors should “take whatever steps are necessary to 33 insure that the video will not be erased—whether by simply taking a tape or disc out of a machine, or by instructing a computer not to delete the material.” Id. In People v. Durant, 26 N.Y.3d 341 (2015), this Court picked up where Handy left off, and held that an adverse inference charge is not always required when state actors are unable to affirmatively ensure that evidence is created and maintained. There, law enforcement conducted a custodial interrogation of the defendant in one police station that did not have video recording equipment, even though another police station that was ten minutes away was equipped with this technology. Id. at 345. This Court noted, “A permissive adverse inference instruction typically serves as either: 1) a penalty for the government’s violation of its statutory and constitutional duties or its destruction of material evidence; or 2) an explanation of logical inferences that may be drawn regarding the government’s motives for failing to present certain evidence at trial.” See id. at 347. Ultimately, the Court held that there was no statutory mandate or circumstances that called for the trial court to give a permissive inference charge due to the police’s failure to record the interrogation, and so the trial court did not abuse its discretion in declining to give the charge. Id. at 353. In light of Handy and Durant, an adverse inference charge was not required in this case. Defendant did not use reasonable diligence in requesting the physical DNA evidence, since he did not do so in a timely manner. As the First Department held below, “beyond making standard discovery requests, defendant took no steps before the hurricane to enforce his right to production of the physical blood evidence.” See 34 Austin, 134 A.D.3d at 560. It should be noted that whether a party acted with due diligence is a mixed question of law and fact that normally precludes review by this Court “if there is any evidence in the record to support it” See People v. Diaz, 97 N.Y.2d 109, 112 n.1 (2001). Here, there is ample evidence in the record to support the majority’s finding that the defense did not exercise due diligence in requesting the blood evidence; see A320-321 [court noted that when defendant did not receive the physical evidence, the burden was on him to make a demand], A681-682 [“For three years you didn’t take a look at the originals because it wasn’t necessary. Now that we are at trial you want to take a look at it. Fine, you can’t do that because of the circumstances.”]; A477 [court noted that for two years, defendant did not test the evidence]). The Court of Appeals is beholden to the majority’s factual finding on this score. See Diaz, supra; see also People v. Budd, 46 N.Y.2d 930, 931 (1979) (whether the People exercised due diligence to locate or produce an informant is “essentially factual”). Next, the physical evidence in this case was not “reasonably likely to be material.” It is important to remember that the only evidence that was unavailable at trial was the physical evidence of the evidence collection swabs and the receipt, all of which contained blood. It is unclear what could be gleaned by the admission of a blood-streaked receipt and evidence collection swabs. Surely a jury could no more ascertain defendant’s involvement from an examination of the physical blood evidence as opposed to the “duplicative equivalents” of photographed copies of the 35 evidence itself (see A322, 638-639, 505-506). Indeed, it is only the analyses of the physical evidence that had any evidentiary value, and here, the reports were available for trial, although counsel objected to their admission. In actuality, defendant was at an advantage without the physical DNA evidence. The admission of the blood-streaked swabs and receipt could very well have strengthened the testimony of the officers who observed and collected the blood at the scenes of the crimes. The absence of the physical evidence itself enabled defense counsel to speculate that the police had made a mistake, did sloppy work, or as defense counsel postured during summation, that the red stain was ketchup (see A1080), and that the police were trying to hide this by not producing the evidence at trial. Finally, the unavailability of the DNA evidence was not the People’s fault. It has long been established that the People are obligated to preserve evidence in their possession, and the failure to do so may result in court-imposed sanctions, such as an adverse inference charge. See People v. James, 93 N.Y.2d 620, 644 (1999). However, the loss or destruction of evidence prior to trial does not necessarily require imposition of a sanction. See People v. Haupt, 71 N.Y.2d 929, 931 (1988). As this Court remarked in Handy, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Handy, 20 N.Y.3d at 669 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 [1988]). 36 Here, as the Appellate Division held, there was no bad faith or destruction of the DNA evidence on the part of state agents. Instead, it was “rendered inaccessible as the result of a meteorological event beyond human control.” Austin, 134 A.D.3d at 560. As the prosecutor explained to the court—and as the witnesses testified—the DNA evidence was being stored in the Kingsland Avenue Storage Facility that was condemned by OSHA as a result of Hurricane Sandy (A326, 331-332, 694, 859-861, 916). Accordingly, the unavailability of the physical DNA evidence was not the result of the People’s negligence or error—not even a “good faith error by the State”. C.f. Handy, 20 N.Y.3d at 669. This is especially true in light of Durant, since an adverse inference instruction in this case would not have served the purpose of being a penalty for the government’s “violation of its statutory and constitutional duties” or as an “explanation of logical inferences that may be drawn.” Durant, 26 N.Y.3d at 347. Ultimately, neither of these circumstances exist here: the evidence was rendered inaccessible due to a meteorological disaster, and was not attributable to any governmental violation, destruction, or motive. As such, Handy’s requirement of a permissive adverse inference instruction was not triggered here. Crucially, as the prosecutor noted below, defense counsel only requested the physical evidence once it was no longer available. To be clear, counsel asked for “DNA files” and “DNA reports” prior to trial on October 24, 2012 (A45-46, 79), and expressed on November 1, 2012 that he received all the DNA files from the 37 prosecutor, that he went through them, and that they were “ready to go” (A100). It was not until November 13, 2012 that counsel actually asked for the physical DNA evidence of the receipt (A142-143), a request which he continued throughout the remainder of trial (see, e.g., A315-317, 328, 331). For this reason, defendant’s claim that the People’s “lack of diligence in failing to timely disclose [the physical DNA evidence]—before it was rendered unavailable by Hurricane Sandy—was no less negligent than had they permitted it to be destroyed” (defendant’s brief, p. 57) is unavailing, since counsel had not requested it prior to its being rendered unavailable. Because the rule announced in Handy is not applicable here, this Court’s holding in Haupt, 71 N.Y.2d at 931—that is, that when determining an appropriate sanction, the trial court must consider the proof available at trial, the significance of the lost or destroyed evidence, and whether the loss or destruction was intentional or inadvertent—is controlling. Given the events of Hurricane Sandy and its aftermath, the destruction or inaccessibility of the evidence did not call for a permissive adverse inference instruction. It is worth noting that there is no disagreement or “split” among the Appellate Division departments that a permissive adverse inference is required under the circumstances of this case. The majority’s decision in this case, the First Department’s Decision in People v. Daly, 140 A.D.3d 593 (1st Dept. 2016) and the Second Department’s decision in People v. Hester, 122 A.D.3d 880 (2d Dept. 2014), agree that the trial courts below were not required to give an adverse inference instruction when evidence was lost as a result of Hurricane Sandy. 38 Defendant’s contention that the court precluded defense counsel from addressing the lack of DNA evidence in summation (defendant’s brief, p. 59), is incorrect. Defense counsel commented extensively that the missing evidence undermined the Strength of the People’s case (see, e.g. A1073 [“Of course you are probably going to hear an argument that says; well, it was destroyed by Sandy the hurricane that hit and it is unfortunate, that they put sandbags and tried to lift it off of the ground and it wasn’t preserved. The problem with that is that you don’t really know, and I don’t know, and they don’t know which is even scarier where this stuff really is or who touched it]; 1076 [“Then the problem is that these mistakes propagate through the case. You have a DNA guy going: Yup, this stuff was recovered between April the 15th of ‘09 and June of ‘09, June the 30th of ‘09, but believe us we are doing this 100%, because we don’t make mistakes. But they do”]; see also 1079-1082). Accordingly, because defendant was not prejudiced, the trial court properly denied his request for an adverse inference charge. See People v. Kelly, 62 N.Y.2d 516, 520 (1984)(primary consideration in determining the appropriate sanction is the harm to the defense). Finally, any error by the court in declining to deliver an adverse inference charge was harmless. See People v. Crimmins, 36 N.Y.2d 230, 241 (1975). As noted (supra at p. 26-27), defendant was convicted only of the charges for which surveillance video was available. Additionally, he was acquitted of the charge concerning the missing receipt (see A326-333). 39 Thus, given the evidence that was put before the jury, and defendant’s exploitation of the unavailable evidence during summation, there is no reasonable possibility that an adverse inference charge would have resulted in a different verdict. CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent _________________________________ BY: MARIANNE STRACQUADANIO NANCY KILLIAN RAFAEL CURBELO MARIANNE STRACQUADANIO Assistant District Attorneys Of Counsel September 9, 2016 40