The opinion of the court was delivered by: Ciparick, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The main issue raised on appeal is whether defendant's Sixth Amendment right to confrontation was violated by the introduction of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME. Because the report is "non-testimonial," we hold that its admission did not constitute a Crawford violation (see Crawford v Washington 541 US 36 ; Melendez-Diaz v Massachusetts, 557 US _,_, 129 S Ct 2527 ).
The People alleged that on the morning of August 6, 1993, as the nine-year old female victim was walking to her friend's apartment in Queens, defendant followed her inside the building to the fifth floor. Placing his hand over her mouth, he accosted her and brought her to the rooftop of the building. He then used a cigarette lighter to burn a plastic hair clip into her arm and threatened her if she resisted his sexual advances. When she did resist, he picked up a brick and struck her in her head, temporarily knocking her unconscious. Upon awakening, she wore only a t-shirt that was covered in blood, and she had a footprint on her face from being kicked. She fled downstairs to her friend's apartment and was taken to a local hospital.
Police interviewed the victim at the hospital. She told them that she did not know her attacker, nor was she able to describe him with any specificity, other than he was an African-American male in his mid-thirties. A canvas of the area yielded no additional evidence.
The hospital prepared a rape kit that was later sent to OCME. Due to a substantial backlog,*fn1 OCME was unable to perform DNA testing on the rape kit at that time. On August 2, 2002, almost nine years after the crime, OCME received additional funding to address the backlog. It sent the rape kit, along with 225 others, to Bode Technology, one of at least three of its subcontracting laboratories, for testing. Bode is a private laboratory that is fully accredited. Shortly thereafter, Bode isolated a male DNA specimen from the rape kit, reflecting a string of numbers of all thirteen areas of DNA. Bode further produced a DNA report containing machine-generated raw data, graphs and charts of the male specimen's DNA characteristics.
Subsequently, the DNA characteristics were entered into the Combined DNA Index System. By June 2000, defendant's DNA specimen had been recorded in the national database by Maryland police, upon his arrest for an unrelated matter. In February 2003, a routine search of the database registered a "cold hit," linking defendant's DNA to the profile found in the victim's rape kit. A detective from the Queens Special Victims Squad took a DNA sample from defendant and delivered it to OCME. Thereafter, a forensic biologist/criminalist from OCME compared defendant's DNA characteristics to the specimen from the victim's rape kit.
Based upon this analysis, she determined that the profiles were a match occurring in one-out-of one trillion males.
Defendant was charged with two counts of sodomy in the first degree, two counts of kidnapping in the second degree, three counts of assault in the second degree and endangering the welfare of a child. Before trial, he moved to dismiss the indictment on the ground that the statute of limitations had run, arguing that the People could not rely upon the five-year extension under CPL 30.10 (4) (a), where the whereabouts of the defendant are unknown and unascertainable, because police failed to exercise "reasonable diligence" in locating him. Supreme Court denied the motion, holding that the delay was caused by the child-victim's inability to identify her attacker and that defendant was arrested based upon DNA evidence found years later.
At trial, the victim provided a more ample description of her attacker, calling him "muscular." She also testified that he asked her about members of her family, including her "Uncle Sol." Defense counsel did not renew the motion to dismiss the indictment as time-barred based upon this additional evidence provided at trial by the victim.
The People called as a witness the forensic biologist/criminalist from OCME who analyzed defendant's DNA profile. She testified that she supervised other criminalists at OCME, reviewed their reports and findings, and oversaw quality control management to ensure the laboratory's procedures met appropriate standards. She stated that she had personally performed thousands of DNA tests and reviewed many more. The court granted the People's application to have her deemed an expert in DNA testing and forensic biology. The witness then testified in depth as to the characteristics of DNA and about the testing protocols for all accredited crime laboratories in the United States, including OCME and Bode.
The People then moved to introduce the DNA report, containing a profile of the specimen taken from the victim's rape kit, as a business record. Defense counsel objected, claiming that any documents generated by Bode were "testimonial evidence" that would violate defendant's Sixth Amendment right to Confrontation, unless the analyst who performed the test was present to testify. Defense counsel further asserted that the witness was not familiar with Bode's quality assurance and how this particular test was performed. The People responded that the report contained merely raw data and was not testimonial, and that the witness herself had performed the analysis in comparing defendant's profile with the profile of the DNA found in the rape kit. The People cited to People v Cratsley (86 NY2d 81 ) and People v Kennedy (68 NY2d 569 ), arguing that a business record can be introduced by a person who is not a custodian of records, provided that the other criteria for the business record exception are established. Initially, the court denied the application to admit the DNA report.
The OCME witness then testified that the Bode report consisted merely of raw data and contained no conclusions other than noting that there was a male specimen found in the victim's rape kit. She stated that she drew her own scientific conclusions from analyzing the data and defendant's DNA profile. She further noted that she was familiar with Bode's procedures and protocols. The court then admitted the report into evidence.*fn2 Subsequently, the jury convicted defendant of first-degree sodomy, two counts of second-degree assault and endangering the welfare of a child.
The Appellate Division affirmed the conviction, concluding that introduction of the DNA report did not violate defendant's Sixth Amendment confrontation right,*fn3 and further that there was no statute of limitations violation because defendant was not a suspect until the DNA evidence linked him to this crime (see 50 AD3d ...