| People v Jenkins |
| 2008 NY Slip Op 08146 [55 AD3d 850] |
| October 21, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v StanleyJenkins, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and DelayneAustin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.),rendered May 30, 2006, convicting him of burglary in the first degree, burglary in the second degree,robbery in the first degree, grand larceny in the third degree, criminal possession of a weapon in thefourth degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's general motion for a trial order of dismissal was not sufficiently specific to preservefor appellate review his claim that the evidence was legally insufficient to prove his identity as theperpetrator (see CPL 470.05 [2]; People v Ayala, 36 AD3d 827 [2007]; People v Eugene, 27 AD3d 480[2006]). In any event, viewing the evidence in the light most favorable to the prosecution, as we must(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt (see People v Schouenborg, 42 AD3d 473 [2007]; People v Dolan, 2 AD3d 745, 746[2003]; see also People v Ayala, 36AD3d 827 [2007]; People vStevens, 27 AD3d 670, 671 [2006]; People v Eugene, 27 AD3d 480 [2006]; People v Sease, 305AD2d 700, 701 [2003]; cf. People v Rush, 242 AD2d 108, 109 [1998]). Moreover, upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).[*2]
At trial, the Supreme Court admitted into evidence a lab reportof DNA testing and analysis performed at Cellmark, an independent, private laboratory, offeredthrough Dr. Charlotte Word, a forensic DNA consultant employed by Cellmark who testified as anexpert in the field of DNA testing and analysis. Contrary to the defendant's contention, the courtproperly admitted this report into evidence under the business records exception to the hearsay rule(see CPLR 4518 [a]; People v Cratsley, 86 NY2d 81, 89 [1995]). Although Worddid not herself perform the testing, her testimony revealed her familiarity with the business practices andprocedures of the private laboratory, and otherwise provided the proper foundation for the admissionof the report (see People v Cratsley, 86 NY2d at 89; People v Antongiorgi, 242AD2d 578 [1997]).
The admission into evidence of Cellmark's business records did not violate the defendant's right toconfrontation under Crawford v Washington (541 US 36, 56 [2004]). As noted by the Courtof Appeals in People v Rawlins (10NY3d 136 [2008]), records of independent laboratories reflecting DNA test procedures andresults are nontestimonial in nature, as DNA test results are not directly accusatory and lawenforcement officials can not influence the tests' outcomes (id. at 159-160). Rather, the testresults reflected by the admissible business records of Cellmark were compared to the defendant'sknown DNA profile by Kara Keblish, a criminologist employed by the Medical Examiner's office, whotestified at trial and was subject to cross-examination regarding her opinions. Therefore, the defendant'sright to confrontation was not violated (id. at 158-159).
We likewise find unavailing the defendant's argument that the Cellmark records were inadmissibleas business records based on the characterization that they were prepared in anticipation of litigation, asthat argument has been considered and rejected by the Court of Appeals under almost identicalcircumstances (id. at 159). Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur.