The People, Respondent,v.Peter Austin, Appellant.BriefN.Y.September 7, 2017APL-2016-00037 To be argued by MARK W. ZENO Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PETER AUSTIN, Defendant-Appellant. DEFENDANT-APPELLANT’S REPLY BRIEF ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street New York, NY 10005 Tel: (212) 577-2523 ext. 505 Fax: (212) 577-2535 mzeno@cfal.org MARK W. ZENO Of Counsel October 7, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. THE COURT VIOLATED APPELLANT’S RIGHT TO CONFRONTATION BY PERMITTING AN OCME CRIMINALIST TO TESTIFY ABOUT DNA TESTING AND COMPARISON EVIDENCE PRODUCED BY OTHERS AFTER APPELLANT WAS UNDER ARREST WITHOUT CALLING ANY WITNESS WHO PERSONALLY PERFORMED, SUPERVISED, OR OBSERVED THAT TESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Appellant preserved his Confrontation Clause challenge to the criminalist’s testimony that his post-arrest DNA profile matched the DNA profiles derived from the crime-scene evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Because the DNA profile generated following appellant’s arrest was created for the purpose of creating evidence to prove his guilt of this crime, it was testimonial within the meaning of the Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . 9 C. The DNA evidence was testimonial even though it came into evidence through the testimony of criminalist O’Connor, rather than through introduction of a lab report. 14 D. Because O’Connor had not “witnessed, performed or supervised the generation” of appellant’s post-arrest profile or “used his ... independent analysis on the raw data, ” his testimony that appellant’s post-arrest profile matched the DNA profiles derived from the crime-scene evidence violated the Confrontation Clause. . . . . . . . . . . . . . 17 i II. THE COURT’S REFUSAL TO SANCTION THE PEOPLE WITH AN ADVERSE-INFERENCE INSTRUCTION FOR FAILING TO PRODUCE THE BLOOD EVIDENCE, AND ITS FURTHER REFUSAL TO PERMIT THE DEFENSE TO ADDRESS THE UNAVAILABILITY OF THAT EVIDENCE IN SUMMATION, DEMANDS REVERSAL. . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. Because the evidence loss was a result of the People’s lack of diligence, not appellant’s, the court should have instructed the jury that it could draw an adverse inference from the unavailability of the blood evidence. . . . . 23 B. The failure to provide an adverse-inference instruction was compounded by the court’s refusal to permit counsel to address the lost physical blood evidence in summation. . . . . 26 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ii TABLE OF AUTHORITIES Cases People v. Beckham, 142 A.D.3d 556 (2d Dep’t 2016) . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Brown, 13 N.Y.3d 332 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Bullcoming v. New Mexico, 564 U.S. 647 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. John, 27 N.Y.3d 294 (2016). . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22 People v. Finch, 23 N.Y.3d 408 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Garcia, 25 N.Y.3d 77 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Goldstein, 6 N.Y.3d 119 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Smith, 95 A.D.3d 1145 (2d Dep’t 2012) aff’d 22 N.Y.3d 462, (2013). . . . 8 People v. Stahl, 141 A.D.3d 962 (3d Dep’t 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Williams v. Illinois, 132 S.Ct. 2221 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16 Williams v. Taylor, 567 U.S. _, 132 S.Ct. 2221 (2012) . . . . . . . . . . . . . . . . . . . . . . . 16 Statutes CPL 470.05(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 iii STATE OF NEW COURT COURT OF APPEALS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PETER AUSTIN, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief (RB). INTRODUCTION Appellant argued in Point I of his opening brief (AB), that his Sixth Amendment right to confront the witnesses against him was violated: The court erroneously permitted an OCME criminalist to testify that he’d compared appellant’s post-arrest DNA profile1 (the “post-arrest profile”) to profiles derived from evidence gathered at the two crime scenes and concluded that they matched, without calling a witness who had personally performed, supervised, observed, or independently analyzed the post-arrest testing. Because the primary purpose of the DNA testing of appellant’s post-arrest oral swab was to prove that he was guilty of 1When used herein, the term “DNA profile,” or the word “profile,”has the same meaning as given in People v. John, 27 N.Y.3d 294, 313 (2016), the “generated numerical identifiers” resulting from “the calling of the alleles at the final stage of the DNA typing.” 1 the burglaries, the results of those tests were testimonial and subject to the Confrontation Clause. People v. John, 27 N.Y.3d 294 (2016). Since the criminalist neither “prepared, witnessed, or supervised the generation of the ... numerical DNA profile” from appellant’s post-arrest oral swab, nor performed an “independent analysis” of that data, his DNA-match testimony violated the Confrontation Clause. Id., at 314. Respondent does not directly challenge appellant’s contention that the post- arrest DNA profile was testimonial within the meaning of the Sixth Amendment. Respondent argues first that appellant’s Confrontation Clause argument is unpreserved for this Court’s review, defense counsel having failed to raise the claim in the trial court. For the reasons stated in Point I(A), below, appellant’s claim is fully preserved. On the merits, respondent first argues that the use of the DNA-comparison evidence presented no Confrontation Clause violation because, before the post- arrest swab was profiled, there had already been a match between the crime-scene- evidence profiles and a profile of appellant’s DNA in the CODIS database. The post-arrest profile was not accusatory, respondent’s argument goes, because there had been a pre-arrest match. For the reasons stated in Point I(B) below, because the post-arrest profile was created to prove appellant’s guilt of this crime, it was testimonial within the meaning of the Sixth Amendment, regardless of whether 2 there was a previous CODIS match. Respondent alternatively argues that, although the criminalist testified about the results of the DNA profiles, the Confrontation Clause is not “implicated” because the report containing that profile was not introduced into evidence. For the reasons stated in Point I(C), below, the Confrontation Clause is violated when testimonial evidence is admitted without being subject to cross-examination, regardless of whether it is presented through the testimony of a live witness or through documents. Respondent’s final Confrontation Clause argument is that, even if the criminalist introduced testimonial statements not subject to cross-examination, that testimony did not violate the Confrontation Clause because the criminalist had “independently analyzed” the DNA evidence. For the reasons stated in Point I(D), below, respondent is wrong on this count, as well, as the record presents no proof that the criminalist independently analyzed the post-arrest profile. Appellant argued in Point II of his opening brief that the court erroneously refused to sanction the People with an adverse-inference instruction for failing to produce the blood evidence, and erroneously refused to permit defense counsel to comment on the unavailability of that evidence. Respondent argues that appellant was not entitled to an adverse-inference charge because the loss of evidence was not the People’s fault (RB: 36-38). As discussed in Point II(A), below, respondent is incorrect: had the People responded to defense counsel’s timely requests for the 3 property with reasonable promptness, the evidence would have been available for use at trial. As for appellant’s claim that the court wrongly refused to permit defense counsel to comment on the lack of evidence in summation, respondent contends that appellant is factually wrong: according to respondent, “[d]efense counsel commented extensively that the missing evidence undermined the strength of the People’s case” (RB: 39). As discussed in Point II(B), the record does not support respondent’s contention. Despite the court’s promise to counsel that he would be permitted to comment on the unavailable evidence, his attempt to make that argument in summation was met with an unbidden sustained objection from the court. REPLY ARGUMENT I. THE COURT VIOLATED APPELLANT’S RIGHT TO CONFRONTATION BY PERMITTING AN OCME CRIMINALIST TO TESTIFY ABOUT DNA TESTING AND COMPARISON EVIDENCE PRODUCED BY OTHERS AFTER APPELLANT WAS UNDER ARREST WITHOUT CALLING ANY WITNESS WHO PERSONALLY PERFORMED, SUPERVISED, OR OBSERVED THAT TESTING. A. Appellant preserved his Confrontation Clause challenge to the criminalist’s testimony that his post-arrest DNA profile matched the DNA profiles derived from the crime-scene evidence. Respondent contends that appellant did not preserve his Confrontation Clause challenge to the admission of his post-arrest profile because counsel challenged only the testimony regarding the DNA profiles derived from evidence 4 gathered at the two crime scenes, and not the DNA profile derived from the sample taken from appellant following his arrest (RB: 12, 13-15). Respondent misreads defense counsel’s objection. When it became clear the People would present the expert testimony of criminalist James O’Connor from the Office of the Chief Medical Examiner (OCME), who would connect appellant to the two crime scenes through DNA testimony, counsel objected on “Melendez-Diaz v. Massachusetts grounds.” Counsel stated that the prosecutor was attempting to elicit “testimony” from witnesses who would not be called, and was trying to “get around” that problem by calling a criminalist to “testify as the supervisor” (A934). This initial objection alone, which not only identified the prevailing constitutional caselaw, but also identified the precise error raised on this appeal, preserved the claim appellant raises on this appeal. Regardless of what was said later, the issue is preserved. Subsequent discussion of the issue only honed appellant’s constitutional claim. In response to counsel’s objection, the court reviewed the three OCME laboratory reports on the record with counsel and appellant, but outside the presence of the jury. The first, FB 09 04107, analyzed two swabs of blood from the East Gun Hill Road door (A936-37). The second, FB 09 05593, analyzed blood found on the receipt and cardboard box from the Bed and Bath Store (A937). The third, FB 12 00994, incorporated the profiles from swabs of the East Gun Hill 5 Road door, and the materials from the Classic Bed and Bath store, and separately analyzed the post-arrest oral sample provided by appellant. The report concluded that DNA from appellant’s post-arrest profile matched the DNA in the blood found at both crime scenes (A937, A1233-1288). According to the prosecutor, O’Connor had “signed off” on each of the reports (A938). Counsel argued that a “Melendez Diaz confrontation issue” was presented because O’Connor was “not the actual analyst, but merely a supervisor on the first two” sets of tests producing the crime-scene evidence profiles (A938). The court responded that the law did not require the People to bring in “every single witness who ever even breathed on something” (A938-39). By the court’s reckoning, “that was the reason for the business record rule in the first place” (A939). Counsel was free to argue otherwise to the jury, but the “Rules of Evidence” did not require “every human being who ever had” something to do with the testing, the court ruled (A939). The court continued that “[w]e are not going to stop the case,” for other witnesses, and, to put finality to the discussion, the court told counsel that he had “an issue to appeal” (A939-40). Respondent argues that, because defense counsel, in explaining his objection, stated that O’Connor was merely a supervisor on the first two tests, he conceded the post-arrest profile was unobjectionable (RB: 14). Defense counsel did point out that O’Connor was the supervisor on the first two tests because that 6 was a fact important to his argument: he was the supervisor on the first two lab reports, and been the analyst on some individual stages, but had had much more limited involvement in the third. Counsel was bringing O’Connor’s role in each of the three tests to the court’s attention, not waiving an objection to the third test. That O’Connor was the supervisor on the first two tests but neither the testing analyst nor the supervisor on the third set of tests— i.e., the post-arrest profile linking appellant to the crime scenes— is the fact that presents the central Confrontation Clause problem with the third test. It was the results of the third test on the post-arrest swab that O’Connor was unqualified to testify about. The remark on which respondent focuses—that O’Connor had supervised the first two sets of tests—rather than present a failure to object, demonstrates that counsel preserved the claim, presenting the critical factual failing appellant raises on appeal. See, People v. Garcia, 25 N.Y.3d 77, 82, 86 (2015) (counsel preserved Confrontation Clause challenge to admissibility of detective’s testimony that victim’s sister had described friction between defendant and victim, by objecting that “[w]e don’t have that witness here”). If counsel’s invocation of the appellant’s right to confrontation and his description that the prosecutor was attempting to elicit “testimony” from witnesses who would not be called, was insufficient to preserve the issue, then his repeated references to Melendez-Diaz did. Melendez-Diaz held that certificates of analysis 7 from a state laboratory proving two elements of the crime without any testimony from the analysts who made the underlying conclusions, violated defendant's Sixth Amendment right to confront witnesses, because, inter alia, the primary purpose of the affidavits was accusatory, and there was no business records exception to the Confrontation Clause. Melendez-Diaz v. Massachusetts, 557 U.S. at _, 129 S Ct 2527, 2532 (2009). By citing the very case that held that the business records exception to the hearsay rule provided no exception to the Confrontation Clause where the primary purpose of the testimony is accusatory, counsel preserved the claim appellant raises here. If counsel did not frame his objection with adequate precision, the court’s ultimate ruling, that the People were under no obligation to call anyone other than O’Connor, preserved the issue. CPL 470.05(2); see, People v. Smith, 95 A.D.3d 1145, 1146 (2d Dep’t 2012) aff’d 22 N.Y.3d 462, (2013)(while counsel’s one-word objection to testimony would not have been sufficient to preserve claim of improper bolstering, court’s ruling on the issue “expressly decided the question raised on appeal”). In response to counsel’s protest that the prosecutor was attempting to elicit “testimony” from witnesses who would not be called, and was trying to “get around” that problem by calling the criminalist to “testify as the supervisor” (A934), the court ruled that no additional witnesses were required. The court’s express ruling preserved the claim raised here. Alternatively, because the 8 court ruled that the People would not be required to bring in any analysts other than O’Connor, counsel cannot be faulted for failing to repeat the Confrontation Clause challenge to each profile. See, People v. Finch, 23 N.Y.3d 408, 413 (2014) (counsel “is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected”). The Confrontation Clause challenge to the post-arrest profile is preserved. B. Because the DNA profile generated following appellant’s arrest was created for the purpose of creating evidence to prove his guilt of this crime, it was testimonial within the meaning of the Sixth Amendment. Respondent defends the use of the DNA-comparison evidence here on the grounds that “there was no confrontation violation because there was no ‘DNA typing that effectively accuse[d] defendant of his role in the crime charge[d]’” (RB: 17). Respondent insists that there was no “effective accusation,” because “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.” Respondent’s argument continues, “[d]efendant concedes as much, since he is only challenging that portion of Mr. O’Connor’s testimony for being testimonial,” citing pages 36-37 of appellant’s brief (RB: 18). Respondent misreads the evidence and appellant’s brief. Two DNA profiles of appellant’s genetic material were discussed during the course of the proceedings: a DNA profile found in the CODIS database produced 9 as a result of a prior contact with law enforcement (the “CODIS profile”), and the DNA profile created in 2012 from the oral swab taken from him after his arrest in this case pursuant to a court order—the post-arrest profile—which became the basis of Forensic Biology File FB12-0994 (A1233). Respondent insists that it was the “already-existent DNA profile,” i.e., the CODIS profile, that criminalist O’Connor testified matched the profiles taken from the crime scene evidence. Respondent is wrong. The trial prosecutor disclaimed any intention to use the CODIS profile at trial (A141, A931-32). Evidence of the CODIS profile was not admitted at trial through reports or testimony. The prosecutor specifically avoided referring to the fact that there was a CODIS match, in favor of testimony that the post-arrest profile matched the profiles from the crime-scene evidence (A986-87). The prosecutor made no effort to lay the business-records foundation that might have made the CODIS report admissible. The jury heard only that the post-arrest profile matched the profiles derived from the crime scene evidence: O’Connor testified that the DNA profile generated in 2012—the post-arrest profile—matched the DNA profiles from the evidence recovered at the two crime scenes (AB: 28; A1004-1005). Similarly wrong is respondent’s contention that appellant is “only challenging” the use of the “portion of Mr. O’Connor’s testimony” comparing the 10 CODIS profile to the DNA profiles derived from either crime scene (RB: 18). To the contrary, appellant challenges only that part of O’Connor’s testimony that concluded that the post-arrest profile matched the DNA profiles derived from the crime scene evidence (see, e.g., AB: 36, 39-40, 422). Neither the trial evidence, nor appellant’s brief, leaves any room for confusion on this point. For this reason, respondent is wrong in saying that “there was no profile that was ‘prepared for the primary purpose of accusing a targeted individual’” (RB: 18, quoting Williams v. Illinois, 132 S.Ct. 2221, 2243 (2012)), and there was “no confrontation problem since ... defendant’s DNA profile was not created for the 2Sub-Point heading I(A) in appellant’s opening brief reads, “Because the primary purpose of the DNA testing of appellant’s post-arrest oral swab was to prove that he was guilty of the burglaries, the results of those tests were testimonial and subject to the Confrontation Clause” (AB: 39, italics added). The introduction to Point I reads, “OCME analysts developed a DNA profile from an oral swab taken from appellant after his arrest for the purpose of linking him to DNA evidence recovered from the two crime scenes. Defense counsel objected to the admission of those test results through an analyst who did not perform the underlying tests. As discussed in subpoint A, below, because the DNA evidence was developed for the primary purpose of producing evidence for appellant’s criminal trial, it was testimonial. (AB: 36; italics added). The text of appellant’s opening brief argument reads, When O’Connor testified that he’d “looked at the DNA profile, the string of numbers,” comprising appellant’s DNA profile obtained in 2012, compared it with the male donor’s DNA found on the swab of the East Gun Hill Road door and the bloodied receipt, and concluded that they matched, O’Connor was introducing the underlying test results for their truth. (AB: 42). 11 purpose of this litigation, since it was already in the CODIS database from a prior case” (RB: 19). It was only the match between the DNA profile created following appellant’s arrest on these charges—the post-arrest profile—and the DNA profiles from the crime-scene evidence, that were presented to the jury through O’Connor’s testimony. As appellant demonstrated in Point (I)(A) of his opening brief, the post-arrest DNA profile was testimonial because it was prepared for the primary purpose of accusing appellant of the crime. That OCME analysts were aware that there had been a pre-arrest DNA profile in the CODIS database and that that profile connected appellant to the crime scenes does not render the post-arrest DNA profile non-testimonial. A statement is testimonial under the Confrontation Clause if its “primary purpose” is to link an identified suspect to a crime, or “prov[e] the guilt of a particular defendant at trial.”John, 27 N.Y.3d at 306. That appellant’s CODIS profile alerted authorities that it might be appellant’s blood left behind at the two crime scenes made the subsequent testing more accusatory not less, and the post-arrest profile more testimonial than if there had been no prior profile from appellant suggesting he had been present at the site of the burglaries. As demonstrated in appellant’s opening brief at pp. 40-41, OCME analysts were given a discrete post-arrest accusatory task: analyze appellant’s DNA to determine whether it matched the samples from the two burglary scenes. The 12 analysts were on notice that appellant had been accused of the burglaries, that he was in criminal proceedings, and on notice that the test results, if positive, would be used as proof in a criminal proceeding. In particular, the “Request for Laboratory Examination” noted that appellant had complied with a court order to produce a DNA sample, and asked that the resulting profile be compared to the DNA profiles OCME had compiled from blood recovered from the two crime scenes (A1245). The request named the assistant district attorney assigned to the case (A1245, 1246), and attached a copy of the court order (A1248-49). Since the primary purpose of the resulting reports was to link appellant to the two crime scenes and prove his guilt at trial, the reports were testimonial.. See, John, 27 N.Y.3d at 306. Respondent’s argument would not only allow law enforcement to skirt the Confrontation Clause, but state hearsay rules as well. By respondent’s reckoning, the post-arrest profile was not accusatory because it was the CODIS match that was the basis for the accusation against appellant. Yet the People made no attempt to lay the foundation necessary to insure the CODIS report’s admissibility and reliability under the business records exception to the hearsay rule. The prosecutor disclaimed any intention to call the necessary witnesses from Albany that would have been required for admission of the report. Despite having made no attempt to demonstrate the reliability of the CODIS report, respondent would use its mere 13 existence—untested not only by cross-examination, but even business-records foundational requirements— to insulate the witnesses who prepared the testimonial post-arrest profile from cross-examination. Such a result would be inconsistent with the truth-seeking policies underlying the Sixth Amendment’s Confrontation Clause. C. The DNA evidence was testimonial even though it came into evidence through the testimony of criminalist O’Connor, rather than through introduction of a lab report. Appellant argued in his opening brief that the Confrontation Clause was violated even though the OCME lab report documenting the post-arrest profile was not admitted into evidence, because the content and results of the lab report came in through the testimony of criminalist O’Connor (AB: 41-42). O’Connor was permitted to testify that, after the post-arrest profile had been created by OCME, he “looked at ... the string of numbers which is the DNA profile” in the report, compared it with the DNA profile derived from the blood found at the two crime scenes, and “found that they were the same DNA profile” (A1004-1005). According to respondent, O’Connor’s testimony presented no Confrontation Clause problem because “[t]he only testimonial DNA evidence in this case was O’Connor’s comparison of defendant’s known DNA profile[] with the DNA profile from the crime scenes,” and O’Connor was cross-examined on this issue (RB: 20). By respondent’s lights, because the report containing the post- 14 arrest profile was not introduced into evidence, the only evidence that the post- arrest profile matched the profiles derived from the crime-scene evidence was O’Connor’s testimony that the profiles matched, so it was irrelevant to Confrontation Clause analysis whether O’Connor had “witnessed, performed or supervised the generation of defendant’s DNA profile,” or “used his ... independent analysis on the raw data.” Because O’Connor was “the person who accused” appellant with his testimony that the profiles matched, and he was cross- examined, there was no Confrontation Clause violation, respondent contends. Respondent is wrong: an expert opinion that relies on evidence that would be inadmissible as violative of the Confrontation Clause itself violates the Clause. Because O’Connor’s opinion that appellant’s post-arrest profile matched the profile derived from the crime-scene blood evidence would have had no relevancy without proof that the post-arrest profile was accurate, and that profile was not admitted into evidence, and would not have been admissible because it would have violated the Confrontation Clause, his testimony that the post-arrest profile matched the profile derived from the crime-scene blood evidence violated the Confrontation Clause. See, People v. Goldstein, 6 N.Y.3d 119, 129 (2005) (expert testimony of psychiatrist, conveying “what witnesses defendant had no chance to cross-examine had said to her,” violated Confrontation Clause). See, John, 27 N.Y.3d at 305. 15 John’s discussion of Williams v. Taylor, 567 U.S. _, 132 S.Ct. 2221 (2012), demonstrates the point. In Williams, a DNA expert was permitted to testify at a bench trial to his opinion that defendant’s DNA profile matched a profile derived from a swab taken from a rape victim, based upon facts “about which the expert was not competent to testify,” because he had not performed the actual testing and was not in a position to vouch for the testing’s accuracy. John, 27 N.Y.3d at 305, describing the facts in Williams, 567 U.S. at _, 132 S.Ct. at 2227. As here, the DNA profiles were not admitted into evidence, and the expert would have been unqualified to admit them. Id. This Court confirmed that the expert’s opinion that the DNA profiles matched would have been inadmissible, because that opinion “had no relevancy without proof that the defendant’s DNA profile ... was accurate,” and that “foundational fact,” had not been admitted into evidence and could not have been admitted without testimony from the witness who had compiled it. John, 27 N.Y.3d at 306. The expert’s surrogate testimony in Williams would have violated the Confrontation Clause. Here, similarly, the post-arrest profile—i.e., the numerical identifiers resulting from the calling of the alleles at the final stage of the DNA typing that accused appellant of his role in the crime charged—was not admissible except through a witness who had “witnessed, performed or supervised the generation of defendant’s DNA profile,” or “used his ... independent analysis on the raw data.” 16 O’Connor was not such a witness. The People could not bypass the Confrontation Clause requirement that they call a witness with adequate knowledge of the post- arrest profile before the profile itself could be admitted into evidence by having O’Connor testify to the ultimate conclusion that he’d looked at the numbers in the profile and concluded that they matched. Shortcutting the Confrontation Clause this way violates its protections. Because O’Connor’s DNA-match testimony was no more than a surrogate for the underlying DNA report, and fully dependent upon it for his DNA-match conclusion, it did not obviate the need for Confrontation Clause compliance for the underlying analysis. Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011) (“surrogate testimony” from an expert recounting test results produced by another expert does not satisfy the Confrontation Clause). D. Because O’Connor had not “witnessed, performed or supervised the generation” of appellant’s post-arrest profile or “used his ... independent analysis on the raw data, ” his testimony that appellant’s post-arrest profile matched the DNA profiles derived from the crime- scene evidence violated the Confrontation Clause. Respondent urges that, even if O’Connor’s testimony that appellant’s post- arrest profile matched the profiles derived from the crime-scene evidence fell “under the purview of John,” his testimony did not violate the Clause because he “conducted an ‘independent analysis on the raw data’” underlying the profile (RB: 21). The evidence does not support respondent’s assessment. 17 In John, this Court stated held that testimonial DNA-profile evidence may not be admitted at trial, except through the testimony of “at least one analyst with ... the requisite personal knowledge.” 27 N.Y.3d at 315. The Court stated that an analyst can acquire the necessary knowledge if they “performed, witnessed or supervised the generation of the critical numerical DNA profile,” or, if they did not perform the underlying test, if they independently analyzed the “raw data, as opposed to ... testifying ... as a conduit for the conclusions of others.” Id. O’Connor neither performed, witnessed, or supervised the generation of the post-arrest numerical DNA profile, nor did he “independently analyze” the raw data. Respondent makes no attempt to argue that O’Connor was involved in the underlying testing of the post-arrest profile, instead contending that his involvement in the underlying testing of the DNA profiles derived from the crime- scene evidence, and his after-the-fact involvement in the post-arrest profile satisfy the John standard (RB: 24). That O’Connor was involved in producing the crime- scene profiles is irrelevant to the question of whether he had independent knowledge of the post-arrest profiles. Only the post-arrest profile was testimonial, because it was that profile that accused appellant of crime. That O’Connor may have been involved in the underlying profiling of the crime-scene evidence did not satisfy the People’s obligation to present a witness with first-hand knowledge of the post-arrest testing. 18 Nor did O’Connor satisfy John’s independent analysis standard. In John, this Court anticipated the exact situation that unfolded here. The John rule does not require that the People call every OCME employee who engaged in the DNA extraction, quantitation, and amplification stages of testing. An office like OCME that uses a “multiple-analyst model,” can satisfy the Confrontation Clause in two ways without calling multiple analysts: first, “an analyst who generated the DNA profile from one sample” could “also observe the final stage of testing or retesting involved in the generation of the other profile.” A second option, where the original “testing analysts are unavailable” to testify, would be to call an OCME expert, who had not been involved in the original testing, to testify after performing “an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis.” John, 27 N.Y.3d at 314. Since O’Connor was not involved in the final-stage testing or retesting of the post-arrest profile, he could only satisfy John if he performed an independent analysis of the profile. While respondent insists O’Connor satisfied this standard because he “was the person who prepared the report, who did the analysis of the data, and who reviewed the testing that was done,” his testimony demonstrates otherwise. Asked by the prosecutor whether he’d “analyzed” the DNA profile in this case, O’Connor responded only that he’d “reviewed it” (A1004). When the 19 prosecutor asked O’Connor what he meant when he said he’d reviewed the profile, O’Connor said that he’d “looked at the DNA profile, the string of numbers, which is the DNA profile,” compared it to the profiles generated from the crime-scene evidence, and “found that they were the same DNA profile (A1004-05). He then took these “findings,” and put them in the report (A1005). O’Connor’s own testimony reveals that he did not perform “an independent analysis of the computer imaging from the software used for calling the alleles” and did not record his own “separate and distinct analysis” of that data. John, 27 N.Y.3d at 314. Instead, he was a conduit for the analysis of others: he “looked” at the data prepared by others and concluded the data matched the DNA profile from the crime-scene evidence. As discussed in appellant’s opening brief (AB: 44-46), this is no different than the review by the OCME analyst rejected by this Court in John as inadequate. Respondent attempts to use this Court’s decision in People v. Brown, 13 N.Y.3d 332 (2009), to argue that O’Connor’s “analysis of the data” satisfied the Confrontation Clause. Rather than support respondent’s argument, Brown supports appellant’s. In Brown, the People sought to admit a DNA report prepared by an outside lab containing “machine-generated raw data, graphs and charts” of a male’s DNA that they concluded was defendant’s. 13 N.Y.3d at 340. The People called an OCME analyst, qualified as an expert, who testified that the 20 underlying report “consisted merely of raw data,” and that she “drew her own scientific conclusions from analyzing the data” Id. at 337. This Court found no Confrontation Clause violation because the analyst had “interpreted the profile of the data represented in the machine-generated graphs, and ... made the critical determination linking defendant” to the crime. Id. at 340. In John, this Court emphasized that this distinction was “determinative”: the OCME analyst’s “independent[] interpretation” of the “raw data,” i.e., the “machine-generated graphs” satisfied the Confrontation Clause. In contrast, the analyst in John, who had “reviewed” the lab reports prepared by others, but had not independently interpreted the data in the machine-generated graphs, was not constitutionally qualified to testify. 27 N.Y.3d at 301-02. In this Court’s view, this was “nothing more than surrogate testimony to prove a required fact,” and did not satisfy the Confrontation Clause requirement that the People produce a witness qualified to testify about the raw data. Id. at 309. Here, too, because O’Connor did not independently interpret the machine- generated graphs to confirm that the uncalled analysts had correctly converted those graphs to numerical identifiers, but had merely compared the numerical identifiers produced by others from the post-arrest oral swab to the DNA profiles derived from the crime-scene evidence, O’Connor’s surrogate testimony that 21 appellant’s DNA matched that found at the crime scenes violated the Confrontation Clause. Respondent’s claim that, post-John, “appellate courts have been finding that the testimony of a criminalist like Mr. O’Connor satisfies” the Confrontation Clause, is similarly wrong (RB: 24). Respondent’s own discussion of People v. Beckham, 142 A.D.3d 556 (2d Dep’t 2016)(briefed before John, but decided after), distinguishes it from the facts here. In Beckham, by respondent’s description, the OCME criminalist through whom the DNA-profile evidence was admitted had “performed her own analysis of the DNA profile” (RB: 25). O’Connor performed no analysis; he merely compared the numerical post-arrest profile that had been created by others to the profiles derived from the crime-scene evidence, creating the same box-score-like chart created by the analyst in John and concluded that they matched. John, 27 N.Y.3d at 310. This was insufficient in John, and insufficient here. Respondent’s citation to People v. Stahl, 141 A.D.3d 962 (3d Dep’t 2016), does not further the People’s argument either. In Stahl, the forensic scientist testified that she had “analyzed raw data” prepared by other non-testifying lab technicians, and “did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions.” Id. at 965. While respondent contends that these facts make Stahl’s forensic examiner’s testimony “like” O’Connor’s the 22 testimony is dispositively different: O’Connor did not analyze raw data, but instead merely compared numbers generated by others. The lack of raw-data analysis from O’Connor is fatal to his testimony. Accordingly, because appellant’s Confrontation Clause claim was preserved and not harmless, appellant’s federal and state constitutional right to confront the witnesses against him was violated. II. THE COURT’S REFUSAL TO SANCTION THE PEOPLE WITH AN ADVERSE-INFERENCE INSTRUCTION FOR FAILING TO PRODUCE THE BLOOD EVIDENCE, AND ITS FURTHER REFUSAL TO PERMIT THE DEFENSE TO ADDRESS THE UNAVAILABILITY OF THAT EVIDENCE IN SUMMATION, DEMANDS REVERSAL. A. Because the evidence loss was a result of the People’s lack of diligence, not appellant’s, the court should have instructed the jury that it could draw an adverse inference from the unavailability of the blood evidence. Defense counsel requested an adverse-inference instruction for the People’s failure to produce physical blood evidence for trial that would have allowed the jury to consider the unavailability of the blood samples and make its own evaluation of the weight to be afforded to the People’s DNA expert and his testimony about the test’s conclusions. Respondent contends that appellant was not entitled to such an instruction because the “unavailability of the evidence was not the People’s fault” (RB: 36). By respondent’s lights, the failure was appellant’s. 23 According to respondent, appellant failed to timely request the evidence. In support of this claim, respondent cites the fact that counsel asked for “DNA files” and “DNA reports” before trial, and expressed that he’d “received all the DNA files from the prosecutor,” and was “ready to go,” and that it was not until the trial was about to begin that counsel first asked to see the physical evidence (RB: 38, A143). The record does not support respondent’s contention. Defense counsel timely and repeatedly asked to see the physical evidence. Two years before trial, on December 8, 2010, at the time of appellant’s omnibus motion, defense counsel requested “all physical evidence” from the People (A317). When, at a court appearance on June 9, 2011, the court asked the parties if there were any “discovery issues,” counsel stated that there was “still discovery outstanding.” When the People stated that they were prepared to file a statement of readiness, the court stated that it wanted “all outstanding discovery provided no later than June 24,” two weeks later (A40). When, 16 months later, on October 24, 2012, the case was moved to trial, the prosecutor had still not completed her discovery obligations. The prosecutor had turned over some, but not all, of what she termed the “DNA file” from OCME, but had not produced for inspection the swabs from the East Gun Hill Road door, or the bloodied receipt (A47-50). Defense counsel specified that he wanted “more than just the reports,” and the court responded that defense counsel 24 would get them: “whatever it is that they had used in making their examination and comparison of the DNA,” defendant would receive, because the defense was “entitled to have it” (A49-50). Hurricane Sandy made landfall five days later on October 29, 2012 in the midst of jury selection. In a telephone status conference on November 1, 2012 defense counsel noted that he’d received the DNA reports from the prosecutor and had reviewed them (A100). On November 5, the parties agreed to declare a mistrial, discharge the jurors that had been selected before Sandy, and restart jury selection from the beginning (A108-09). Before opening statements of the restarted trial, defense counsel alerted the court to the fact that, despite his request, he still had not seen the bloodied receipt from Classic Bed and Bath, but that he and the prosecutor were “trying to work that out” (A143). The court criticized the prosecutor for not having provided the evidence to defense counsel for inspection, and stated that it was “open to applications to preclude,” and that the prosecutor would “have to come up with the excuse of having been in a coma for three years” (A143-44). The record does not support respondent’s claim that “[c]rucially ... defense counsel only requested the physical evidence once it was not longer available” (RB: 37). As shown, defense counsel requested the physical evidence two years before trial in a written demand for discovery, the court ordered its production on June 9, 25 2011, and defense counsel alerted the prosecutor and the court as the trial began on October 24, 2012, that he still had not had an opportunity to view the bloodied receipt. The court ordered its production, because the defense was “entitled to have it.” It was not until five days later that Sandy rendered the evidence unavailable. The record contradicts respondent’s claim that defense counsel did not ask for the receipt until after Sandy made landfall, rendering it unavailable. Because, as discussed more fully in Point II of appellant’s opening brief, the People violated their discovery obligation causing appellant prejudice, an adverse- inference charge was warranted. While Sandy may have been the ultimate cause of the unavailability of the evidence, it was the People’s ongoing failure to produce it—despite requests and court orders over a period of years—that made the production vulnerable to the storm. And, while Sandy may have been an unpredictable occurrence, it was entirely predictable that discovery delays spanning years resulted in lost or unavailable evidence. Accordingly, appellant was entitled to an adverse-inference instruction. B. The failure to provide an adverse-inference instruction was compounded by the court’s refusal to permit counsel to address the lost physical blood evidence in summation. Respondent challenges appellant contention that the court erroneously precluded defense counsel from addressing the loss of DNA, arguing that counsel “commented extensively that the missing evidence undermined the [s]trength of 26 the People” (RB: 39). In support, respondent quotes two passages from defense counsel’s summation; both support appellant’s argument, not respondent’s. Respondent first contends, citing page A1073 of the appendix, that counsel was permitted to argue that there was no evidence about what had happened to the physical evidence, “you don’t really know, and I don’t know, and they don’t know ... where this stuff really is or who touched it.” Respondent is correct that this argument addressed the unavailable evidence. But respondent neglects to include in the quoted passage, or even acknowledge, that the court immediately interrupted counsel when he made this argument, without objection from the prosecutor, and sustained its own objection (reproduced in Appellant’s brief at p. 29-30, see, A155, A1125 concerning court’s initial and final instructions about disregarding evidence for which objections have been “sustained”). Later, when defense counsel attempted again to comment on the fact that the evidence had been “presumably” submitted to the lab for DNA typing, but not preserved, the prosecutor objected, and the court again sustained an objection (A1080). Far from allowing counsel to comment on the missing evidence, the court prevented it. Respondent also cites to page A1076 of the appendix (RB: 39), contending that it shows counsel commenting on the missing evidence, but the cited passage contains no such reference. There, in the quoted passage, counsel cited to errors 27 made by the DNA experts about the dates evidence was alleged to have been recovered, but nothing about the disappearance or unavailability of the evidence. Defense counsel’s summation does not support respondent’s claim that counsel was permitted to comment about the missing evidence at all, much less that he did so “extensively” (RB: 39). The refusal to allow defense counsel to comment upon the missing evidence was particularly unfair because the court allowed the prosecutor to explain it away at length (AB: 30; see, e.g., “[y]ou also know the exact circumstances ... why [the physical evidence] is not here ...”). Accordingly, based on the lack of an adverse-inference instruction and the preclusion of counsel’s legitimate argument, appellant’s conviction must be reversed and a new trial ordered. CONCLUSION FOR THE REASONS STATED ABOVE, AND IN APPELLANT’S OPENING BRIEF, APPELLANT’S CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant October 7, 2016 ____________________ Mark W. Zeno 28