AD1 order dated December 22, 2015, affirming judgment of conviction. Decision below: 134 AD3d 559, 23 NYS3d 17. Gische, J. (AD dissenter), granted leave February 9, 2016.

ISSUE PRESENTED: Whether a court must provide a permissive adverse inference instruction when important evidence that was promptly requested by the defense and is in the custody of the People is destroyed as a result of a natural disaster or otherwise, and whether a court may sua sponte forbid defense counsel from commenting on the missing evidence in summation. (Assigned counsel: Mark W. Zeno & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue Presented: Whether appellant’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.

 

Held: The Court unanimously held that the court violated appellant’s right to confront the witnesses against him 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. 

 

CAL Observes: The majority opinion was a straightforward application of the Court’s recent opinion in People v. John 27 N.Y.3d 294 (2016). The DNA testing and comparison results were testimonial, violating the Confrontation Clause, because the DNA was tested and the reports were prepared after Austin had been accused. The results were inadmissible through the criminalist offered by the People, because he had not prepared, witnessed, or supervised the generation of the numerical DNA profile.

 

In a concurring opinion, Judge Garcia did not contend otherwise. Instead, Judge Garcia pitched Austin as a vehicle for overruling John in the United States Supreme Court (Slip Op., concurring opinion at 2) ( “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). While Judge Garcia is correct that Austin’s facts have some significant parallels to Illinois v. Williams, 567 U.S. 50, 132 S.Ct. 1221 (2012), he’s incorrect that the rules set down by the Supreme Court in Williams, would compel a different result than reached by the Court in Austin. 

 

The Williams plurality found the admission of DNA test results did not violate the Confrontation Clause for two reasons. Both would have independently excluded the DNA-test-results evidence linking Austin to the crime scene here. First, the Williams Court found that, because the DNA-results report was not entered into evidence, but only referred to by a DNA expert, the test results had been not offered for their truth, and therefore did not violate the Clause. The Court cited to the Illinois rules of evidence allowing an expert, in a non-jury trial, to “base an opinion an opinion on facts that are ‘made known to the expert at or before the hearing.” Williams, 567 U.S. at _, 132 S.Ct. at 2224. Because the report results were not admitted for the truth of the matter asserted, the evidence did not violate the Clause, since the results of the reports were only admitted as a basis for the expert’s conclusion that the DNA found on the weapon matched the defendant’s. New York law, however, does not permit such basis testimony. People v. Goldstein, 6 N.Y.3d 119, 127 (2005); John, 27 N.Y.3d at 306; Slip Op. at 16 (opinion testimony based on out-of-court statements inadmissible unless underlying statement is admissible); see, Williams, _ U.S. at _, 132 S.Ct. at 2269 (Kagan,  J., dissenting)(citing Goldstein and other sources describing the idea that basis evidence comes in for some reason other than its truth as “factually implausible,” “nonsense,” and “sheer fiction”). Here, when the criminalist testified that he’d looked at the DNA profile comprising appellant’s DNA profile, and concluded that it matched the profile compiled from the scene, the criminalist was introducing the underlying test results for their truth.

 

Second, the Supreme Court found that the DNA-test-result evidence did not violate the Clause because the test had not been prepared to accuse an identified suspect, but instead to “catch a dangerous rapist who was still at large.” Williams, 567 U.S. at 84. The test results were pre-accusatory, because they were prepared before Williams was identified as a suspect. In Austin, Judge Garcia acknowledged that the DNA test was performed after Austin had been identified as a suspect and was done for the purpose of proving his guilt (Slip Op. at 3). But Judge Garcia contends that, because the accusatory test was preceded by a CODIS match, the post-accusatory report results entered into evidence through the criminalist were merely confirmatory of the prior CODIS match. Judge Garcia would create an exception to the classification of post-accusatory testing results as testimonial where the results confirm the results of a prior pre-accusatory test. 

 

Creating a confirmatory exception to the Clause would be contrary to its purpose. That the DNA criminalist in Austin was aware that there had been a pre-arrest DNA profile in the CODIS database and that that profile connected Austin to the crime scene did not render the post-arrest DNA profile non-testimonial. That Austin’s CODIS profile alerted authorities that it might be his 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. 

 

If the facts in Austin are judged solely by the rules laid down by the plurality opinion in Williams, the criminalist’s testimony about the post-arrest DNA test results would have violated the Confrontation Clause.