| People v Dail |
| 2010 NY Slip Op 00532 [69 AD3d 873] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkDail, Also Known as Wayne William, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Laurie K.Gibbons of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County(Jaeger, J.), rendered May 1, 2008, convicting him of burglary in the second degree underindictment No. 1091/07, upon a jury verdict, and imposing sentence, and (2) a judgment of thesame court, also rendered May 1, 2008, convicting him of burglary in the second degree underindictment No. 2311/07, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, pursuant to a stipulation in lieu of motions, of the suppressionof physical evidence.
Ordered that the judgments are affirmed.
The Supreme Court properly declined to suppress DNA evidence derived from a buccalswab. The evidence presented at the suppression hearing supports the court's conclusion that thedefendant voluntarily agreed to give the police a saliva sample for testing (see People vGonzalez, 39 NY2d 122, 128 [1976]; People v Brewster, 48 AD3d 696 [2008], cert denied 555US —, 129 S Ct 265 [2008]; People v Edwards, 46 AD3d 698, 699 [2007]). While thedefendant was in custody, he had been at the precinct for less than one hour when the salivasample was requested, and only two officers were present in the interview room with him (see People v Quagliata, 53 AD3d670, 672 [2008]; People v Edwards, 46 AD3d at 699). The defendant, who was not anovice to the criminal justice system, also signed a form which expressly informed him of hisright to refuse consent, and was fully cooperative with the officers (see People v Quagliata,53 AD3d at 672; People vKnudsen, 34 AD3d 496 [2006]; People v Maldonado, 184 AD2d 531, 532[1992]; People v Del Valle, 149 AD2d 610 [1989]; People v Credidio, 141 AD2d661, 662 [1988]). Considering the totality of the circumstances, the defendant's consent wasvoluntary and not the product of coercion (see People v Quagliata, 53 AD3d at 672;People v Edwards, 46 AD3d at 699; see generally People v Gonzalez, 39 NY2dat 128).
Furthermore, the defendant's Sixth Amendment right to confront his accusers was notviolated by the admission of lab reports generated by employees of the Nassau County MedicalExaminer's Office (hereinafter the Medical Examiner's Office), who recorded the results of DNAtests performed on the defendant's saliva and items recovered from the burglarized residences. Afoundation for the admission [*2]of these reports as businessrecords was established through the testimony of a forensic geneticist employed by the MedicalExaminer's Office (see CPLR 4518 [a]; People v Brown, 13 NY3d 332, 341 [2009]; People v Meekins, 34 AD3d 843,844-845 [2006], affd 10 NY3d 136, 158-160 [2008], cert denied 557 US—, 129 S Ct 2856 [2009]; Peoplev Grogan, 28 AD3d 579, 581 [2006]; People v Baylor, 25 AD3d 562 [2006]). Moreover, businessrecords "are generally admissible absent confrontation . . . because—havingbeen created for the administration of an entity's affairs and not for the purpose of establishing orproving some fact at trial—they are not testimonial" (Melendez-Diaz v Massachusetts,557 US —, —, 129 S Ct 2527, 2539-2540 [2009]; see Crawford vWashington, 541 US 36, 56 [2004]). Here, the subject lab reports were prepared in theordinary course of business of the Medical Examiner's Office, a scientific laboratory independentfrom the Nassau County District Attorney and the Nassau County Police Department (seePeople v Brown, 13 NY3d at 341). Moreover, the reports consisted of contemporaneouslyrecorded objective facts which did not, standing alone, link the defendant to the crime (see People v Freycinet, 11 NY3d38, 41, 42 [2008]; People v Meekins, 10 NY3d at 149-150). Rather, the criticaldetermination linking the defendant to the crimes was made by the forensic geneticist whotestified, based upon her analysis of data in the lab reports, that the defendant's DNA was presenton items recovered from the burglarized residences. Accordingly, the lab reports were nottestimonial in nature, and their admission through the forensic geneticist's testimony did notviolate the defendant's right to confrontation (see People v Brown, 13 NY3d at 340;People v Freycinet, 11 NY3d at 41-42; People v Meekins, 10 NY3d at 158-160).
The court did not err in denying the defendant's request to individually question all jurymembers about whether they could remain impartial after one juror saw the defendant beingescorted down a hallway in handcuffs during a recess. The court granted the defendant's requestto discharge the juror who had seen him in handcuffs, and there is no indication in the record thatany other juror also might have so viewed him (see People v Malinowski, 152 AD2d 710[1989]). In any event, the possibility that other jurors may have briefly and inadvertently seenthe defendant in handcuffs provides no basis for reversal (see People v Harper, 47 NY2d857, 858 [1979]; People v Montgomery,1 AD3d 984 [2003]; People v Fioravantes, 229 AD2d 784, 785-786 [1996];People v Anderson, 175 AD2d 806 [1991]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982];see also People v O'Brien, 52 AD3d535, 537 [2008]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Dillon, J.P., Eng, Belen and Hall, JJ., concur.