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DNA TEST RESULTS DEEMED TESTIMONIAL HEARSAY TRIGGERING DEFENDANT’S RIGHT TO CONFRONT THE ANALYST(S) WITH FIRST-HAND KNOWLEDGE OF CRUCIAL STAGES OF THE ANALYSIS.

The Court of Appeals, in an extensive opinion by Judge DiFiore, over an equally extensive three-judge dissenting opinion, determined the results of DNA testing, which matched defendant's DNA to that found on a weapon, should not have been admitted based solely on the testimony of a laboratory analyst who did not witness crucial aspects of the testing. The evidence was deemed “testimonial” requiring the People to produce a witness with first-hand knowledge who can be cross-examined about essential aspects of the analysis:

Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged. The testing analysts purposefully recorded the DNA profile test results, thereby providing the very basis for the scientific conclusions rendered thereon. Under these circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial. 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. * * *

… [W]e conclude that it 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. … [A] laboratory that uses a … multiple-analyst model, may adapt their operation so that a single analyst is qualified to testify as to the DNA profile testing. For example, an analyst who generated the DNA profile from one sample may also observe the final stage of testing or retesting involved in the generation of the other profile. Nor do we suggest that, when the testing analysts are unavailable, a fully qualified … expert … cannot testify after analyzing the necessary data, including an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis. Thus, the claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford [541 US 36] and Bullcoming [564 US 647]. People v John, 2016 NY Slip Op 03208. CtApp 4-28-16


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DEFENDANT RAISED SUBSTANTIVE FACTUAL DISPUTES ABOUT THE EFFICACY AND LEGALITY OF METHODS USED BY THE POLICE TO IDENTIFY HIS IP ADDRESS AND THE CONTENTS OF HIS COMPUTER, SUPPRESSION HEARING WAS REQUIRED.

The Second Department, in this child pornography case, determined Supreme Court should not have denied defendant's motion to suppress evidence seized from his computer without a hearing. The defense motion papers raised substantive factual disputes concerning the efficacy and legality of methods and software used by the police to identify defendant's IP address and the contents of defendant's computer, issues which can only be resolved by a hearing:

In determining a motion to suppress evidence, the court “is required to grant a hearing if the defendant raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . “[T]he sufficiency of [a] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … .

In his omnibus motion, the defendant contended that the search warrant was not supported by probable cause. The defendant's motion included detailed factual allegations regarding the functioning of peer-to-peer networks and, based on these assertions, challenged the detective's contention in the warrant application that he was able to identify child pornography files that actually existed on the defendant's computer. In his separate suppression motion, the defendant raised a factual dispute, inter alia, as to whether the use of certain software or other activity by the investigating detective prior to securing the warrant constituted a search of his computer. People v Worrell, 2016 NY Slip Op 03206, 2nd Dept 4-27-16


FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Second Department determined the trial judge's denial of the defense's for cause juror challenge was reversible error:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence … . A prospective juror's responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict … .

Here, during voir dire, one prospective juror indicated in response to questioning by defense counsel that, because she had a 14-year-old daughter and a 17-year-old daughter, this “could” weigh on her ability to be fair and impartial because “[t]hey are the same age range” as the complainant. When defense counsel followed up by asking, “[w]ould you fear whether or not you could be fair and impartial?,” the prospective juror responded by stating, “I think it would be hard for me to watch a witness, being that I have daughters the same age.”

Once the prospective juror expressed doubt regarding her ability to be impartial, it was incumbent upon the court to ascertain that she would render an impartial verdict based on the evidence … . This was not done. People v Valdez, 2016 NY Slip Op 03203, 2nd Dept 4-27-16


FAILURE TO INFORM JURY OF EFFECT OF ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFCATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant's conviction in the interest of justice because the trial judge did not make clear that acquittal of the top count (second degree murder) based on the justification defense required acquittal of the lesser homicide charges:

… [R]eversal in the interest of justice is warranted by the court's failure to convey to the jury, either directly or indirectly, in any part of its charge, that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the two lesser homicide charges. While the jury may have acquitted on the top charge without relying on defendant's justification defense, it is nevertheless “impossible to discern whether acquittal of the top count . . . was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts”… . People v Rowley, 2016 NY Slip Op 03084, 1st Dept 4-21-16


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IF THE SORA COURT’S RELIANCE ON THE VICTIM’S GRAND JURY TESTIMONY, WHICH WAS NOT DISCLOSED TO THE DEFENDANT, WAS ERROR, UNDER THE FACTS, IT WAS HARMLESS ERROR.

The Second Department, over an extensive dissent, determined the SORA court's reliance on the victim's grand jury testimony, which was not provided to defense counsel, did not deprive defendant of due process of law. 20 points were assessed based upon the victim's helplessness. At the grand jury, the victim testified she was asleep (i.e., helpless) when the abuse began. Because evidence disclosed to the defendant amply notified defendant of the victim's claim to have been asleep, any error in relying on the undisclosed grand jury minutes was harmless:

The Court of Appeals was recently presented with the issue of whether a defendant's due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching the defendant's SORA risk level determination (see People v Baxin, 26 NY3d 6). The Court found that “[g]iven that [the] defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself . . . the failure to disclose the grand jury minutes was a due process violation” … . Significantly, the Court concluded that, given the overwhelming evidence which was disclosed to the defendant in support of the same risk factor, the error was harmless … . It further recognized that “[t]his is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court's discretion to limit the release of such minutes” … .

Guided by these principles, even assuming that the defendant should have had disclosure of the subject grand jury minutes, as in Baxin, any error in failing to disclose them was harmless. There was overwhelming, unchallenged evidence, which provided the requisite clear and convincing evidence supporting the assessment of 20 points … . The record on appeal reveals that the defendant was amply notified through statements contained in the case summary, the presentence report, and other disclosed evidence of the victim's version of the facts and, specifically, her account that she was asleep when the abuse began. Indeed, defense counsel specifically challenged the assessment of points for physical helplessness based upon the victim's account of being asleep when the sexual abuse began. The portion of the victim's grand jury testimony relied upon by the SORA Court, namely, that the victim was asleep at the beginning of the incident, is the exact account contained in the case summary, which was fully disclosed to the defendant. Under these circumstances, the victim's grand jury testimony was cumulative to the disclosed evidence … . People v Wells, 2016 NY Slip Op 02978, 2nd Dept 4-20-16


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PEOPLE DID NOT MEET THEIR BURDEN OF DEMONSTRATING A LACK OF UNDUE SUGGESTIVENESS IN THE PHOTO ARRAY AND LINE UP IDENTIFICATION PROCEDURES.

The Second Department, over a substantial dissent, determined defendant's motion to suppress photo array and line up identification evidence should have been granted. The People did not meet their burden to demonstrate the lack of undue suggestiveness. The photo arrays were not preserved and certain detectives who participated in the photo array and line up identification were not called as witnesses at the Wade hearing:

At the suppression hearing, [detective] McDermott testified that he did not preserve the photo arrays viewed by [witness] Seeram because the computer that displayed those arrays was not attached to a printer. He stated that after Seeram identified the defendant from a photo array, McDermott used another computer to print out a single photograph of the defendant using the defendant's NYSID number, and then showed that photogaph to Seeram. It cannot be said that this testimony was sufficient to dispel any inference of suggestiveness. McDermott did not explain why he did not attach a printer to the computer Seeram was using, or why he did not attempt to reconstruct the photo array (see id.). Moreover, the single photograph was not signed by Seeram, and was dated January 9, 2006, the day following Seerem's photographic identification procedure.

Further, the People failed to produce the detective who conducted [witness] Clyne's photographic identification procedure, or the detective who conducted Seeram's lineup identification procedure. Contrary to our dissenting colleague's determination, McDermott did not conduct either of those procedures, and, therefore, could not provide competent evidence as to the circumstances thereof and what, if anything, transpired during those identification procedures… . People v McDonald, 2016 NY Slip Op 03017, 2nd Dept 4-20-16


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ADMISSION OF PREJUDICIAL EVIDENCE UNRELATED TO THE CHARGED OFFENSES WAS REVERSIBLE ERROR.

The First Department, in a full-fledged opinion by Justice Richter, determined photographs depicting defendants making gang signs and holding a weapon, as well as Facebook messages sent by a defendant boasting about firing weapons should not have been admitted in this weapons possession trial. Neither the pictures nor the messages related to the weapon defendants' were alleged to have possessed, which was found on the backseat of a car. The prejudicial effect of the evidence outweighed its probative value:

There was no evidence that the gun in the photographs had anything to do with the gun found in the car or with any other criminal activity. … The mere fact that defendants were in possession of a different gun in the past is not probative of whether they knowingly possessed the weapon they were charged with possessing. Nor are the photographs probative of defendants' intent to unlawfully use the weapon found in the car. They merely show defendants displaying a gun, and do not depict any unlawful use of the weapon. * * *

The People concede that [defendant] was not referring to the charged crime in [the Facebook] messages, but to an entirely different incident that occurred months later. Thus, these messages are far too attenuated to have any probative value as to [defendant's] knowledge of the gun found in the car or his intent to use that weapon on the day of the incident … . People v Singleton, 2016 NY Slip Op 02945, 1st Dept 4-19-16


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DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT OFFICER AND JURORS BY ASKING THAT DELIBERATIONS CONTINUE DESPITE THE CONVERSATION; THE CONVERSATION DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR.

The Second Department determined the defense waived objection to a court officer's conversation with three jurors during deliberations. Defense counsel asked that the jurors be questioned about their ability to continue and, after the questioning, asked that the jury continue to deliberate. The Second Department further held the communication by the court officer did not constitute a mode of proceedings error which need not be preserved. The decision includes a clear explanation of the types of issues which can be raised in a Criminal Procedure Law (CPL) 330.30 motion to set aside the verdict and the distinction between waiver and preservation:

Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see CPL 310.10[1]…). In considering a motion to set aside a verdict pursuant to CPL 330.30(1), however, a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are preserved for appellate review … .

Waiver and preservation are separate concepts … , although they are often “inextricably intertwined” … . Waiver connotes the intentional relinquishment or abandonment of a known right … . Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error … . People v Armstrong, 2016 NY Slip Op 02843, 2nd Dept 4-13-16


TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE BEHAVIOR BEFORE REMOVING DEFENDANT FROM THE COURTROOM WAS REVERSIBLE ERROR.

The Second Department reversed defendant's conviction because the trial judge did not first warn defendant about the consequences of disruptive behavior before removing defendant from the courtroom:

 

CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

In the present case, the trial court erred in removing the defendant from the courtroom without first warning him that he would be removed if he continued his disruptive behavior … . Contrary to the People's contention, the court's statement to the court officer that, “If he speaks again, officer, do what you need to do,” did not constitute a sufficient warning. This statement was not directed to the defendant, and failed to adequately inform him of the “potential consequences which might result from his continued disruptive behavior” … . Furthermore, while the defendant's conduct was clearly disruptive, it was not violent in nature, and did not “create[ ] an emergency necessitating his immediate removal” where “the court had no practical opportunity to issue a verbal warning that [the] defendant would be removed if he continued to engage in such conduct” … . People v Burton, 2016 NY Slip Op 02847, 2nd Dept 4-13-16


EXCLUSIONARY LANGUAGE IN HARASSMENT STATUTE NEED NOT BE PLED AND NEGATED IN THE CHARGING DOCUMENT; THE EXCLUSIONS ARE PROVISOS WHICH CAN BE RAISED AS DEFENSES.

The Third Department, in the context of a family offense, determined the portions of the second degree harassment statute which state the subdivision does not apply “to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended” (Penal Law § 240.26…)” were “provisos.” The respondent argued that the labor and railroad provisions in the statute were “exceptions” which must be affirmatively pled and negated in the charging document. The Third Department found the provisions were “provisos” which can be asserted as defenses, but which do not have to be pled:

 

“The general rule regarding statutory crimes is that 'exceptions must be negatived by the prosecution and provisos utilized as a matter of defense'” … . In attempting to distinguish between exceptions and provisos, courts will look to whether the defining statute “contains as part of its enacting clause an exception to the effect that under certain circumstances the offense is not to be considered as having been committed” … , in which case a true exception generally will be found, or whether the exception arises either by way of a statutory amendment or reference to a statute outside of the Penal Law, in which case the exception generally will be regarded as a proviso … .

As originally enacted, Penal Law § 240.26 did not contain the exclusionary language at issue; such language was added when the statute was amended in 1994 (see L 1994, ch 109, § 1) to “clarif[y] that activities protected by certain federal labor statutes are not included within the definition of harassment” (Governor's Approval Mem, Bill Jacket, L 1994, ch 109, at 7). Further, as a review of the statute itself makes clear, application of the exclusionary language requires reference to numerous federal statutes outside of the Penal Law. Under these circumstances, the language excluding certain labor activities or disputes from the definition of harassment in the second degree “is more accurately construed as a proviso, which may be raised as a defense [by the charged party], rather than an exception, which must be [affirmatively] pleaded” and negated by the charging party … . Matter of Rogers v Phillips, 2016 NY Slip Op 02687, 3rd Dept 4-7-16


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