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People v. Rodriguez

Supreme Court of New York, First Department

July 25, 2017

The People of the State of New York, Respondent,
William Rodriguez, Defendant-Appellant.

         Defendant appeals from the judgment of the Supreme Court, New York County (Richard D. Carruthers, J.), rendered March 19, 2014, convicting him, after a jury trial, of burglary in the second degree, and imposing sentence, and the judgment of the same court and Justice, rendered May 12, 2013, as amended May 20, 2014, convicting him, upon his plea of guilty, of burglary in the first degree (five counts), robbery in the first degree (five counts), robbery in the second degree (two counts), kidnapping in the second degree (six counts), and endangering the welfare of a child (two counts), and imposing sentence.

          Seymour W. James, Jr., The Legal Aid Society, New York (Anita Aboagye-Agyeman of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista and Patrick J. Hynes of counsel), for respondent.

          Rolando T. Acosta, P.J., Peter Tom, Barbara R. Kapnick, Marcy L. Kahn, Ellen Gesmer JJ.


          KAHN, J.

         On this appeal, we are asked to decide whether the judgment convicting defendant of burglary in the second degree (the burglary conviction), following a jury trial, should be vacated on the grounds that the verdict was unsupported by legally sufficient evidence, or that the verdict did not comport with the weight of the evidence, or that defendant was deprived of his right of confrontation at trial. Should we answer that question in the affirmative, we are further asked to determine whether the judgment convicting defendant, upon his plea of guilty, of various counts in a separate indictment (the plea conviction), should also be vacated on the ground that defendant's guilty plea was induced by a promise that his sentences for the burglary and the plea convictions would run concurrently. Additionally, we are asked to decide whether the sentences imposed for both convictions were excessive. For the reasons that follow, we hold that both judgments should be affirmed and that the sentences imposed were not excessive.

         I. Burglary Conviction

         A. Legal Insufficiency and Weight of the Evidence Claims

         The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). Defendant's identity as the burglar was strongly established by the match of his known DNA to the DNA found on wire cutters that had been stored within the glass enclosure on the victim's rooftop deck but were found tucked between cushions on the sofa in her apartment after the burglary (see People v Harrison, 22 A.D.3d 236, 236 [1st Dept 2005] [rejecting sufficiency and weight claims where "(t)he proof connecting defendant with the crime consisted almost entirely of DNA evidence, " which "was particularly powerful and established defendant's identity beyond a reasonable doubt"] , lv denied 6 N.Y.3d 754');">6 N.Y.3d 754 [2005]).

         B. Confrontation Clause Claim

         1. Defendant's Contention

         Defendant claims that he was deprived of his Sixth

         Amendment right of confrontation under the federal and state constitutions by the introduction into evidence at trial of laboratory reports of DNA testing linking him to the crime based solely upon the testimony of Melissa Huyck, a criminalist from the New York City Office of the Chief Medical Examiner (OCME) who was not among the analysts who performed, witnessed or supervised the testing. Defendant's Confrontation Clause claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it. However, we find that an extended discussion of the merits is warranted.

         2. Legal Standards

         As the accused in a criminal prosecution, a defendant has the right to be confronted with the witnesses who bear testimony against him (Crawford v Washington, 541 U.S. 36, 51 [2004]). Therefore, "[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness" (Bullcoming v New Mexico, 564 U.S. 647');">564 U.S. 647, 657 [2011]).

         "[A] statement will be treated as testimonial only if it was procured with a primary purpose of creating an out-of-court substitute for trial testimony'" (People v Pealer, 20 N.Y.3d 447, 453 [2013], cert denied __ U.S. __, 134 S.Ct. 105');">134 S.Ct. 105');">134 S.Ct. 105');">134 S.Ct. 105 [2013], quoting Michigan v Bryant, 562 U.S. 344, 358 [2011]; see Davis v Washington, 547 U.S. 813, 822 [2006] ["(Statements) are testimonial when the circumstances objectively indicate that... the primary purpose... is to establish or prove past events potentially relevant to later criminal prosecution"]).

         Our Court of Appeals has set forth a test to be used in determining whether a report was prepared for such a "primary purpose" and is, therefore, testimonial. The "primary purpose" test consists of four factors:

         " (1) whether the agency that produced the record is independent of law enforcement; (2) whether it reflects objective facts at the time of their recording; (3) whether the report has been biased in favor of law enforcement; and (4) whether the report accuses the defendant by directly linking him or her to the crime'" (People v Pealer, 20 N.Y.3d at 454, quoting People v Brown, 13 N.Y.3d 332, 339-340 [2009]; see People v Freycinet, 11 N.Y.3d 38, 41 [2008]).

         Recently, in People v John (27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294');">27 N.Y.3d 294 [2016]), our Court of Appeals reaffirmed the centrality of the primary purpose test for Confrontation Clause purposes (at 307 ["(W)e have deemed the primary purpose test essential to determining whether particular evidence is testimonial hearsay requiring the declarant to be a live witness at trial"]).

         3. Supreme Court's Trial Rulings

         Notably, at trial, before OCME criminalist Huyck testified concerning the DNA testing performed in this case, the People sought a ruling from the court on the scope of evidence it would permit them to introduce from the OCME and Huyck about the DNA testing. Defense counsel argued against the introduction of reports of conclusions reached by nontestifying examiners, and urged that the admissible evidence from OCME's files should be limited to the pages of documents reflecting raw data that had been personally reviewed and initialed by Huyck.

         Supreme Court's ruling was as follows:

         "The raw data, the data concerning the [DNA] testing comes in. What [Huyck] did comes in. All the other stuff about police reports and other material is out."

         Immediately after issuing that ruling, Supreme Court reiterated and clarified the ruling in the following manner:

         "So the raw data made by the people who actually did the test is admissible. As far as the data is concerned, what this witness [Huyck] did is admissible, not the other conclusions by these other individuals."

         Huyck then proceeded to testify concerning the testing of DNA material taken from the wire cutters and the development of the DNA profile of an unknown male donor denominated as Male Donor A. Later that same day, before Huyck testified as to the DNA testing of the buccal swabs taken from defendant, Supreme Court further explained and clarified its earlier ruling. So much of that clarification as is relevant here is as follows:

         "[M]y intention is to permit only the raw data contained in these files so that ultimately Miss Huyck will ultimately use it to testify about her own comparisons to go before the jury. Only that data is to be considered evidence with respect to these files, and all extraneous material contained in the files, including... opinions of nontestifying examiners and experts[, ] must be deleted."

         Supreme Court's rulings were in keeping with the requirements of the Crawford rule as established under the case law in effect at that time. They adhered to federal constitutional standards by limiting the admission of statement evidence proffered in conjunction with Huyck's testimony to relevant evidence that either "was not prepared for the primary purpose of accusing a targeted individual" (Williams v Illinois, 567 U.S. 50, __, 132 S.Ct. 2221');">132 S.Ct. 2221, 2243 [2012]) or consisted of "testimonial statements by [a] declarant[] [Huyck] who [was]... subject to cross-examination" (id., 567 U.S. at __, 132 S.Ct. at 2238). In this regard, Supreme Court's rulings presaged People v John (27 N.Y.3d 294 [2016], supra) by ensuring that Huyck's testimony would pertain to her role as a criminalist "who used... her own independent analysis on the raw data, as opposed to a ...

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