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.
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.
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.
Legal Insufficiency and Weight of the Evidence
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 ).
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 ).
Confrontation Clause Claim
claims that he was deprived of his Sixth
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.
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
). 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 ).
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 , cert denied
__ U.S. __, 134 S.Ct. 105');">134 S.Ct. 105');">134 S.Ct. 105');">134 S.Ct. 105 , quoting Michigan v
Bryant, 562 U.S. 344, 358 ; see Davis v
Washington, 547 U.S. 813, 822  ["(Statements)
are testimonial when the circumstances objectively indicate
that... the primary purpose... is to establish or prove past
events potentially relevant to later criminal
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
(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 ; see People v
Freycinet, 11 N.Y.3d 38, 41 ).
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 ), 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"]).
Supreme Court's Trial Rulings
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
Court's ruling was as follows:
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."
after issuing that ruling, Supreme Court reiterated and
clarified the ruling in the following manner:
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."
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
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."
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 ) 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 , 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 ...