Alternatively, the court must review the weight of the evidence to determine whether, “based on all the credible evidence, a different finding would not have been unreasonable.” People v. Bleakley, 69 N.Y.2d 490, 495 (1987); see also N.Y. Crim. Proc. Law § 470.15(5) (McKinney 2009).5 “‘[E]ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further.’” People v. Cahill, 2 N.Y.3d 14, 57-58 (2003) (quoting Bleakley, 69 N.Y.2d at 495).

Whether the 8 hearing court made such a ruling, as Respondent appears to suggest, is unclear.2 If the court did not find that the police had probable cause “to believe that defendant’s car contained stolen property,” Respondent’s Brief at 27, such a finding may not serve as a basis for upholding the denial of Mr. Lee’s suppression motion. See N.Y. Crim. Proc. Law § 470.15; People v. Concepcion, 17 N.Y.3d 192, 195 (2011). If the court did so find, that finding was error.

2 As Judge Bellacosa explained in People v. Bleakley, 69 NY2d 490, 495 (1987), for the Appellate Division to reverse a conviction based on a legal insufficiency claim, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial (Cohen v Hallmark Cards,45 NY2d 493, 499) and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. However, under N.Y. Crim. Pro. Law §470.15(5), the Appellate Division may vacate a conviction even if the evidence passes muster under the legal sufficiency test: Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, Case 7:10-cv-04917-CS Document 254 Filed 12/17/14 Page 4 of 6 5 Third, the fact that Plaintiff was convicted twice is relevant and admissible to refute Plaintiff’s assertion that an error in jury selection was the sole reason that the first jury convicted him.

20 Alternatively, this Court should reverse the conviction as against the weight of the evidence, and dismiss the indictment. See N.Y. Crim. Proc. Law § 470.15(5). POINT II WILLIAM RODRIGUEZ’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT ADMITTED THE EXPERT TESTIMONY OF A CRIMINOLOGIST WHO DID NOT PERFORM THE DNA TESTING THAT LINKED MR. RODRIGUEZ TO THE SCENE OF THE BURGLARY. Appellant William Rodriguez’s federal and state constitutional rights to confront and cross-examine the witnesses against him were violated when the jury heard and considered testimony concerning the results of a DNA test performed by a criminalist— who worked for the OCME and was not present at trial— concluding that Mr. Rodriguez’s DNA was found on tools that were purportedly used during the burglary.

. . . . . . . . . . . . . . . . . . . . . . . . 11-13, 15 People v. Burgos-Santos, 98 N.Y.2d 226 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Goodman, 69 N.Y.2d 32 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9 People v. Lo Cicero, 14 N.Y.2d 374 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Newman, 216 A.D.2d 151 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . . . . . 18 People v. Ortiz, 69 A.D.3d 490 (1st Dep’t 2010) . . . . . . . . . . . . . . . . . . . . . . 12, 15 People v. O’Toole, 22 N.Y.3d 335 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Paperno, 54 N.Y.2d 294 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18 People v. Rivera, 58 A.D.2d 147 (1st Dep’t 1977) . . . . . . . . . . . . . . . . . . . . . 11-12 aff’d, 45 N.Y.2d 989 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iv STATUTES AND CONSTITUTIONAL PROVISIONS N.Y. Crim. Proc. Law § 470.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.Y. Crim. Proc. Law § 470.

A weight of the evidence claim is “an error of state law, for which habeas review is not available,” because it presents no federal issue. Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’ argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5)”).1 12 While legal insufficiency claims are cognizable on habeas review, petitioner does not now raise a claim that the evidence was legally insufficient to support the verdict. See, e.g., Jackson v. Virginia, 443 U.S. 307 (1979).