You are here: / Evidence
, ,

DNA Evidence Not Testimonial—No Denial of Right to Confrontation

In affirming defendant’s conviction, the Second Department noted that DNA evidence did not violate defendant’s right of confrontation because the challenged evidence was not testimonial:

[Defendant’s] right of confrontation (see US Const Sixth Amend) was not violated when an expert testified that a DNA profile produced by the Office of the Chief Medical Examiner (hereinafter OCME) from a sample of the decedent’s blood matched a DNA profile produced by the OCME from a sample of a stain on a pair of jeans given to the office by the police department. The DNA profiles were not testimonial …, but rather, were merely raw data that, standing alone, did not link the defendant to the crime… . The connection of the defendant to the crime was made by the testimony of police officers establishing that the defendant was wearing the subject jeans when arrested, and of the DNA expert, who testified that, based on his analysis, the two subject DNA profiles matched…. People v Pitre, 2013 NY slip Op 05231, 2nd Dept 7-10-13

 

,

Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense

The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:

A criminal defendant has a fundamental right to produce witnesses, and “absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied”…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….

In the instant case, the proposed testimony of the defendant’s sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… .  People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13

 

, ,

References to Fingerprint Evidence Processed by Non-testifying Technician Did Not Violate Right to Confrontation

In determining defendant’s right to confrontation was not violated by latent fingerprint evidence processed by a technician who did not testify, the Fourth Department explained:

The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician’s findings were not testimonial because the latent fingerprint, “standing alone, shed[s] no light on the guilt of the accused in the absence of an expert’s opinion that the [latent fingerprint] match[es] a known sample”… .Moreover, the analyst who determined that the latent print matched one of defendant’s fingerprints in fact testified at trial and was available for cross-examination.    Therefore, defendant’s right to confront witnesses against him was not violated… .  People v Jackson, 645, 4th Dept 7-5-13

TESTIMONIAL HEARSAY

 

,

Affidavit Stating that Third Party Confessed to Murder Required a Hearing Pursuant to a Motion to Vacate the Judgment of Conviction Based Upon Newly Discovered Evidence

The Fourth Department reversed Supreme Court finding that a hearing should be held on defendant’s motion to vacate his conviction based on newly discovered evidence.  The evidence was an affidavit from a person to whom a third person is alleged to have confessed to the murder.  The Fourth Department determined the hearsay statement could be considered as a basis for the 440 motion because it met the criteria of a statement against penal interest and, although there was no showing the declarant was unavailable (a criterium for admissibility under this hearsay exception), it was reasonable to assume the declarant would assert his Fifth Amendment privilege against self-incrimination and refuse to testify (thereby becoming unavailable).

We agree with defendant that where, as here, the declarations exculpate the defendant, they “are subject to a more lenient standard, and will be found ‘sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true’ ”…. That is because “ ‘[d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense’ ” ….  Although the People contend that there is no evidence that the third party is unavailable, we conclude that, inasmuch as the statements attributed to the third party implicate him in a murder, there is a likelihood that, if called to testify at a trial, he would assert his Fifth Amendment privilege against self-incrimination and thus become unavailable … .  People v McFarland, 729, 4th Dept 7-5-13

 

,

Evidence Insufficient to Support Reckless Endangerment in the First Degree—No One In Line of Fire

The Fourth Department reversed defendant’s conviction for reckless endangerment in the first degree in a shooting case where there was no evidence anyone was near the line of fire:

“A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct [that] creates a grave risk of death to another person” (Penal Law § 120.25). The evidence at trial established only that defendant stood on a street corner and fired up to five shots from a handgun. The People “presented no evidence that any person . . . ‘was in or near the line of fire’ ” so as to create a grave risk of death to any such person… .  People v Stanley, 757, 4th Dept 7-5-13

 

,

Statement Correctly Admitted as Dying Declaration

In affirming the conviction, the Fourth Department held that a statement was correctly admitted as a dying declaration:

[The trial court admitted] as a dying declaration exception to the hearsay rule the testimony of a prosecution witness that, after being shot in the inner thigh, the victim stated, “I got robbed” and “I got shot.”    The People presented evidence establishing that, when the witness arrived at the scene, the victim was bleeding heavily from a femoral artery wound, his clothes were soaked in blood from the waist down, and he was inhaling and exhaling very hard.  The victim stated to the witness, “I’m gonna die, I’m gonna die”; he then became totally unresponsive and, shortly thereafter, he died. Thus, we conclude that the court properly determined that the victim’s statements were made with “a sense of impending death, with no hope of recovery” …  .  People v Elder, 713, 4th Dept 7-5-13

 

,

Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

STREET STOPS, SEARCH AND SEIZURE

,

Motion to Vacate Conviction Based upon Co-Defendant’s Affidavit Stating Defendant Not Involved Denied

In affirming the denial of a 440 motion to vacate defendant’s conviction based upon a co-defendant’s affidavit stating the defendant was not involved in the crimes, the Fourth Department wrote:

It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” ….  People v Smith, 642, 4th Dept 7-5-13

 

, ,

Evidence Insufficient to Support Criminal Contempt in the First Degree—No Evidence of Intent to Harass (Two Dissenting Justices)

The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree:

Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish that he intended by those calls to harass, annoy, threaten or alarm her, with no purpose of legitimate communication (see § 215.51 [b] [iv];….    Rather, the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend. We therefore modify the judgment accordingly.  People v Webb, 619, 4th Dept 7-5-13

 

,

440 Motion Seeking DNA Testing of Evidence Properly Denied

In affirming the denial of a 440 motion by a defendant convicted of murder seeking DNA testing of blood evidence, the Fourth Department wrote:

We conclude that the court properly denied that part of the motion seeking testing … “because defendant failed to establish that there was a reasonable probability that, had those items been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant”… .  People v Swift, 617, 4th Dept 7-5-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy