New York Supreme and/or Appellate Courts Appellate Division, First Department
October 9, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Vargas
Decided on October 9, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 26, 2010, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.
Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that made reference to data gathered by non-testifying technicians (see People v Brown, 13 NY3d 332 ). Williams v Illinois (US, 132 S Ct 2221, 2242-2244 ) provides further support for the proposition that the DNA evidence in this case did not violate the Confrontation Clause.
The court erred in ruling that class sign-in sheets from the program defendant was enrolled in on the date of the crime were admissible under the business records exception to the hearsay rule. The evidence did not establish that these records were kept "regularly, systematically [and] routinely" (People v Kennedy, 68 NY2d 569, 579 ), or that if kept in the regular course of business, they were "needed and relied on in the performance of the functions of the business" (People v Cratsley, 86 NY2d 81, 89 ). There was no other basis for admissibility. However, the error was harmless in light of the overwhelming evidence of defendant's guilt, including the DNA match (see People v Crimmins, 36 NY2d 230 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 9, 2012
© 1992-2012 VersusLaw Inc.