The People of the State of New York v. Peter Austin

The issue presented by this appeal is whether

defendant's Sixth Amendment right to confrontation was violated

by the introduction of DNA evidence through the testimony of a

witness who had not performed, witnessed or supervised the

generation of the DNA profiles. We conclude that the

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introduction of this hearsay evidence through surrogate testimony

in order to prove an essential fact for a finding of guilt --

that defendant was the perpetrator of the burglaries at issue --

violated defendant's right to confront the witnesses against him.

Defendant was charged with three burglaries and several

related offenses in connection with two separate incidents. In

the June 2009 incident, defendant was alleged to have broken into

a building that contained several stores connected through a

common basement. He gained access through a rear door after the

stores were closed, and unlawfully entered both a vacant office

and a dry cleaning establishment inside the building. The dry

cleaner had surveillance cameras that captured the incident and a

copy of the surveillance video was played for the jury at trial.

In addition, the police took swabs from streaks of blood that

were observed on the building's outside rear door. Those swabs

were vouchered and sent to the Office of the Chief Medical

Examiner (OCME) for DNA blood analysis. After testing, which

produced a DNA profile, the swabs were transferred to the New

York Police Department's Kingsland Avenue facility for storage.

The second incident was a burglary that took place at a

Classic Bed and Bath store in September 2009. The back door had

been forced open after business hours and money and merchandise

were taken. The police found a bloody receipt near the cash

register. This receipt was likewise tested for DNA evidence by

OCME. The testing produced a DNA profile, and the physical

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evidence was then transferred to Kingsland for storage. There

was no video surveillance of this incident.

The numerical identifiers constituting the DNA profile

generated from the biological evidence obtained at the scene of

the June 2009 burglaries were uploaded by computer to CODIS (the

Combined DNA Index System) and, on August 27, 2009, OCME was

notified that there was a match between the DNA from the crime

scene evidence and defendant's numerical DNA profile, which was

stored in the state database. In October 2009, the numerical

identifiers constituting the DNA profile developed from the

biological evidence from the September 2009 burglary were also

linked to the DNA profile from the June 2009 burglaries. As a

result, the police issued an investigative card alerting police

that the detectives in this investigation wanted to speak with

defendant in the event of an arrest. Defendant was later

arrested in April 2010 and indicted.

As the People explained at trial, they opted not to

introduce evidence of the "cold hit" from CODIS. Rather, "[t]o

make things easier for the trial[, the People] had the defendant

re-swabbed and retested by the DNA lab so that . . . we'd only

have to call the one person from the downstate DNA lab and not

have to deal with somebody in Albany." Upon a pretrial court

order, and defendant's consent, a buccal swab was collected from

defendant in July 2012. The numerical identifiers from the DNA

profile generated by OCME from that sample were compared to the

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numerical identifiers from the DNA profiles generated from the

evidence from the three 2009 burglaries. The strings of numbers

for the profiles were found to match on October 23, 2012 -- just

prior to defendant's trial.

The People's only forensic witness at trial on the DNA

evidence was an OCME Criminalist level III. As the trial

progressed, it became clear through a series of discussions that

the basis for the criminalist's testimony was going to be his

comparison of the strings of numbers derived from the DNA test

results generated by other analysts -- the 2009 DNA test results

and defendant's 2012 exemplar. Defense counsel raised various

objections throughout the course of the parties' discussions

about the DNA evidence, including that the criminalist's

testimony would violate Melendez-Diaz v Massachusetts (557 US 305

[2009]) because the People were trying to elicit testimony "from

a witness that was not going to be called" and that the testimony

was hearsay because it was "about what someone else did." On

occasion, counsel's attempts to expound upon his objections,

including his Confrontation Clause argument, were frustrated by

the court.

Defense counsel's objections did have some measure of

success, however. To be sure, none of the laboratory reports

including the actual numerical identifiers of the DNA profiles

generated, or physical evidence of the DNA was ultimately

admitted into evidence. Nonetheless, the criminalist was

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permitted to testify in a general and conclusory manner to the

DNA evidence without personal knowledge of many matters he

asserted to be true -- including the DNA profile generated from

defendant's post-accusatory 2012 buccal swab.

Indeed, the criminalist was permitted to testify, over

defendant's repeated hearsay objections, and without having

conducted, witnessed or supervised the generation of the DNA

profiles, that the DNA profile generated from defendant's buccal

swab was a match to the DNA profile generated from evidence found

at the 2009 crime scenes. Specifically, the criminalist

testified that he received the voucher containing defendant's

2012 buccal swab and that the accompanying examination notes both

identified defendant by name and included the evidence unit

number. When the prosecutor asked whether he had "analyze[d] the

DNA profile in this particular case," the criminalist responded

that he "reviewed the DNA profile." In response to the

prosecutor's request for clarification as to what his review of

the DNA profile entailed, the criminalist responded that he

"looked at the DNA profile, the string of numbers, which is the

DNA profile and compared it to [the profiles generated from the

2009 burglaries]. And I compared them to male donor A from each

of those cases and I found that they were the same DNA profile."

Despite the fact that the laboratory reports containing

the generation of the DNA profiles by nontestifying witnesses

were not in evidence, the criminalist was permitted to read from

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those files on the stand. The quality of his direct testimony

was such that the court asked the prosecutor: "How come

everything that [the witness] said that actually happened in this

case he had to read from something that is not in evidence?" The

court further stated that it did not "understand what it is that

he did, and how he did it, or for that matter whether he did

anything."

In contrast to the prosecutor's initial assertion that

the criminalist was "the supervisor on the original test," the

witness admitted on cross-examination that he neither performed,

nor was present for, any of the testing on the September 2009

samples. Moreover, although his name appears on some of the

laboratory reports, which again were not in evidence, in

connection with the June 2009 samples, he testified that he did

not perform the laboratory testing on those samples. Tellingly,

during the criminalist's redirect testimony, when the prosecutor

sought to question him about a document not in evidence, the

court told the attorneys that "[y]ou guys have basically made

this witness into a parrot. He doesn't know anything. He didn't

do anything, but you use him to put in all of this other

information, just as if I [sic] actually had knowledge of it."

During the trial, the parties discovered that the

physical evidence that had been stored in the Kingsland facility

had been rendered unavailable due to conditions caused by

Hurricane Sandy. Specifically, the facility could not be

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accessed because it had been flooded with water that was

contaminated by a nearby Superfund location. The court denied

defendant's request for an adverse inference charge based on the

People's failure to preserve this evidence. Notably, however,

the absence of physical evidence at the trial was not limited to

the effects of the hurricane. Defendant's own 2012 exemplar,

which was available at the trial, was not entered into evidence

on defendant's objection, due to the People's failure to

establish the necessary foundation for admission into evidence.

At the close of the People's case, defendant moved to

dismiss the indictment, arguing that they had failed to establish

a prima facie case given that there was "not one piece of DNA

evidence actually in evidence." The court denied the motion as

to the June 2009 burglaries, noting that there was surveillance

video from the dry cleaner. However, the court reserved decision

on the motion as it related to the September 2009 burglary, after

observing both the criminalist's "questionable validity or status

as a witness" and the fact that "there's really nothing that ties

this defendant to the bath store other than the alleged DNA."

The court described the criminalist's testimony by saying that

"[a]pparently, all he did was to review what other people did."

The jury found defendant guilty of two counts of

burglary in the third degree and criminal mischief in the fourth

degree relating to the June 2009 burglaries. The jury acquitted

him of the counts relating to the September 2009 burglary. The

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Appellate Division affirmed, with one Justice dissenting (134

AD3d 559 [1st Dept 2015]). The dissenting Justice granted

defendant's application for leave to appeal to this Court, and we

now reverse.

Defendant on appeal limits his Confrontation Clause

challenge to the OCME witness's testimony concerning the DNA

profile created from his 2012 post-accusatory buccal swab and the

comparison between that profile and the DNA profiles generated

from the 2009 burglaries. He maintains that this postindictment

evidence is testimonial, as it was created for the primary

purpose of identifying him as the perpetrator of the burglaries,

and that the testimony as to this evidence was inadmissible

hearsay. We agree.

The Confrontation Clause generally prohibits the

admission of testimonial statements made by a nontestifying

witness against defendant at trial, unless the witness is

unavailable and defendant "'had a prior opportunity for crossexamination'"

(People v Pealer, 20 NY3d 447, 453 [2013], quoting

Crawford v Washington, 541 US 36, 53-54 [2004]). Under the

primary purpose test for determining whether evidence is

testimonial, we have considered "'whether the statement was

prepared in a manner resembling ex parte examination and . . .

whether the statement accuses defendant of criminal wrongdoing'"

(Pealer, 20 NY3d at 453, quoting People v Rawlins, 10 NY3d 136,

156 [2008]).

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The criminalist's hearsay testimony as to the 2012 DNA

profile easily satisfies the primary purpose test. Our analysis

has been different in cases where defendant was linked to the DNA

from the crime scene from a cold hit before he was ever a suspect

in the crime (see e.g. People v Brown, 13 NY3d 332, 340 [2009]).

However, here, the People elected not to use the evidence of the

pre-accusatory CODIS match because they wanted to avoid bringing

a witness in from Albany to testify. Instead, the People relied

solely on the evidence of the DNA profile generated from

defendant's 2012 buccal swab, which was developed during the

course of a pending criminal action and was created in order to

prove his guilt at trial (see People v John, 27 NY3d 294, 308

[2016]). Stated differently, the buccal swab was obtained and

the resulting profile was compared with the DNA profile generated

from the 2009 burglaries, "with the primary (truly, the sole)

purpose of proving a particular fact in a criminal proceeding --

that defendant . . . committed the crime for which he was

charged" (27 NY3d at 307-308).

Thus, in order to satisfy the Confrontation Clause,

defendant was entitled to cross-examine the analyst who either

"performed, witnessed or supervised the generation of the

critical numerical DNA profile" or who "used his or her

independent analysis on the raw data" to arrive at his or her own

conclusions (27 NY3d at 314, 315). As we recently held, "it is

the generated numerical identifiers and the calling of the

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alleles at the final stage of the DNA typing that effectively

accuses defendant of his role in the crime charged" (27 NY3d at

313). The trial transcript plainly establishes that the

criminalist had no such role here. Although the criminalist may

have had some level of involvement in OCME's handling of some of

the 2009 crime scene swabs, he had no role whatsoever in the

testing of defendant's post-accusatory buccal swab. His

testimony was, therefore, merely "a conduit for the conclusions

of others" (27 NY3d at 315).

On the whole, the criminalist's testimony was nothing

more than a parroting of hearsay statements, made by other

analysts and of which he had no personal knowledge. There is no

question that his testimony as to the findings and conclusions of

the nontestifying witnesses was elicited in order to prove the

truth of those extrajudicial assertions -- primarily, identifying

defendant as the burglar.* The People's claim that the facts

presented here are meaningfully different from those presented in

John because the laboratory reports that, alone, contained the

numerical identifiers of the DNA profiles were not introduced

* The concurrence, relying on the plurality opinion in

Williams v Illinois (567 US 50 [2012]), attaches great

significance to the "cold hit" -- which was not a matter in

evidence -- arguing that it could have been used to link

defendant to the crime scene. As it was not in evidence, the

characterization of the DNA profile generated from the 2012

buccal swab as merely "confirmatory" is erroneous. Here, the

People relied upon the 2012 post-accusatory DNA result generated

by nontestifying analysts, for the primary purpose of

establishing defendant's guilt at trial.

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into evidence is meritless. Indeed, this case is extraordinary

given the dearth of DNA evidence presented at trial in any

admissible form. Moreover, the People failed to proffer any

exception to the hearsay rule under New York law that would have

allowed the criminalist to relay the content of the unadmitted

laboratory reports (see People v Nieves, 67 NY2d 125, 131

[1986]). For instance, there was no argument that the

criminalist's hearsay testimony concerning the 2009 DNA profiles

was offered not for its truth, but for the limited purpose of

explaining how the criminalist reached his expert conclusion that

the identical strings of numbers were obviously the same (see

People v Goldstein, 6 NY3d 119, 127 [2005]). As we explained in

John, such expert opinion testimony of a comparison of numbers

would likely be inadmissible in New York without establishing a

proper foundation -- i.e., that defendant's DNA profile was

obtained from the scene of the burglary and that the numerical

profile was reliable and accurate in the first instance (27 NY3d

at 306).

The error was not harmless, as the evidence of

defendant's guilt without the DNA evidence was not overwhelming

and there is a reasonable possibility that the error might have

contributed to the verdict (see People v Crimmins, 36 NY2d 230,

237 [1975]). In light of our holding, we do not address

defendant's adverse inference argument.

Accordingly, the order of the Appellate Division should

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be reversed and a new trial ordered.

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People v Peter Austin

No. 97

GARCIA, J.(concurring):

On constraint of People v John (27 NY3d 294 [2016]), I

agree with the majority that defendant's conviction must be

reversed, and a new trial granted. Although the Supreme Court

has declined to take this approach with respect to DNA evidence

under the Confrontation Clause, this Court has made the "leap"

(id. at 316 [Garcia, J., dissenting], citing Williams v Illinois,

567 US 50 [2012]), and the outcome here is an unfortunate but

unavoidable result.

In Williams v Illinois, a plurality of the Supreme

Court concluded that, where the reports relied on by the DNA

expert were not admitted into evidence, the expert's testimony

did not violate the Confrontation Clause, as "that provision has

no application to out-of-court statements that are not offered to

prove the truth of the matter asserted" (567 US 50, 57-58

[2012]). Similarly, here, the DNA expert from the Office of the

Medical Examiner (OCME) testified based on the content of

laboratory reports, which were not admitted into evidence. But

unlike the plurality in Williams, we hold today that this expert

testimony violated the Confrontation Clause.

I agree with the majority that reversal is required by

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our holding in John. There, the Court considered whether the

defendant's rights were violated where the People introduced DNA

reports without producing a witness who conducted or witnessed

the laboratory's generation of the DNA profiles (John, 27 NY3d at

297). Distinguishing Williams, the Court in John reasoned that,

unlike in Williams, the DNA laboratory reports were entered into

evidence, thereby creating a Confrontation Clause violation. But

the Court's holding went further, concluding that a defendant is

entitled to confront at least one of the DNA analysts who

performed a step on one of the samples, thereby prohibiting a

testifying expert from relying on a report generated by others

(majority op at 9-10; see also John, 27 NY3d at 313; People v

Goldstein, 6 NY3d 119 [2005]). Accordingly, while the procedure

used here -- an expert relying on work performed by others but

not admitted into evidence -- mirrors the facts of Williams, our

holding in John compels a different result.

The plurality in Williams alternatively held that, even

if the laboratory report had been admitted into evidence, there

would be no Confrontation Clause violation, in part because

"[t]he report was sought not for the purpose of obtaining

evidence to be used against [the defendant], who was not even

under suspicion at the time, but for the purpose of finding a

rapist who was on the loose" (567 US at 58). As we noted in

John, the profiles in Williams "were generated from rape kits by

private laboratories when the suspect was unknown and the

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defendant was later identified on a 'cold hit' from the CODIS

database" (27 NY3d at 310).

The match in the instant case was, as in Williams, a

classic "cold hit." Specifically, police recovered DNA from the

first crime scene which, when run through the CODIS database,

matched defendant's DNA profile (developed as a result of an

earlier arrest on unrelated charges). DNA from the second crime

scene was then linked to the DNA profile from the first crime

scene. Accordingly, as in Williams, the original DNA profile

that matched the crime scene evidence was created not with

defendant in mind, but rather to ascertain who had committed the

burglaries (see Williams, 567 US at 77 ["Without access to any

other sample of petitioner's DNA (and recall that petitioner was

not even under suspicion at this time), how could a dishonest lab

technician have substituted petitioner's DNA profile?"]). Though

the original CODIS match was not used at trial -- defendant

objected to its admission -- a confirmatory sample of defendant's

DNA profile, obtained by the People, was introduced.1

1 The majority asserts that "the People elected not to use

the evidence of a CODIS match because they wanted to avoid

bringing a witness in from Albany to testify" (majority op at 9).

But defense counsel's on-the-record objection reveals the true

reason behind the People's use of a confirmatory sample: defense

counsel believed that, if the CODIS match was introduced, "the

jury would infer . . . that [defendant] had a prior criminal

history." Defendant therefore "submit[ted] to the DNA swab" in

order to "avoid bringing up the fact that he had a prior

conviction" and any accompanying "inference that he has a

propensity to commit crimes."

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Despite the resemblance to Williams, John again compels

a different result. In John, the Court rejected the defendant's

argument that the DNA match was analogous to the "cold hit" in

Williams (27 NY3d at 310 [also distinguishing, on this basis,

People v Meekins, 10 NY3d 136 (2008) and People v Brown, 13 NY3d

332 (2009)]; see also id. at 329-330 [Garcia, J, dissenting]).

And again, the majority here indicates that the result might be

"different" in the case of a "cold hit," where the defendant "was

linked to the DNA from the crime scene . . . before he was ever a

suspect in the crime" (majority op at 9). But the confirmatory

match in this case was a perfunctory measure, performed solely to

replicate an earlier cold hit. Indeed, the People could have

introduced the CODIS cold hit, but -- in light of defendant's

objection -- opted to obtain the confirmatory sample. As we inch

closer to a cold hit, the reach of John's holding casts

increasing doubt on whether the majority's "cold hit" distinction

survives (see People v John, 27 NY3d at 329 [Garcia, J.,

dissenting]).

The path we are on has "no logical stopping place"

(Williams, 567 US at 89 [Breyer, J., concurring]). Today we

reverse a conviction, obtained prior to John, presenting

circumstances much like those in Williams: (1) the OCME expert

relied on reports not admitted into evidence, and (2) the match

at issue was merely confirmatory, performed after a "cold hit"

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already identified defendant. Unless and until the Supreme Court

provides much-needed clarity on whether DNA reports "lie outside

the perimeter of the [Confrontation] Clause" (see Williams, 567

US at 99 [Breyer, J., concurring]), we have no choice but to

continue.

* * * * * * * * * * * * * * * * *

Order reversed and a new trial ordered. Opinion by Chief Judge

DiFiore. Judges Rivera, Stein, Fahey, Wilson and Feinman concur.

Judge Garcia concurs in result in a separate concurring opinion.

Decided October 19, 2017

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Reversed