| People v Morrison |
| 2011 NY Slip Op 09450 [90 AD3d 1554] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WilliamMorrison, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Roseann B. Mackechnie of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April18, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the first degree,sexual abuse in the first degree and endangering the welfare of a vulnerable elderly person, or anincompetent or physically disabled person in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrape in the first degree (Penal Law § 130.35 [1]), sexual abuse in the first degree (§130.65 [1]), and endangering the welfare of a vulnerable elderly person, or an incompetent orphysically disabled person in the second degree (§ 260.32 [4]), stemming from charges thathe raped a 90-year-old resident of a residential health care facility where he worked as a certifiednurse's aide. An investigator with the Medicaid Fraud Control Unit interviewed defendantapproximately two weeks after the rape and made a written report of that interview, but thatreport was not turned over to defense counsel until after the investigator testified at trial. CountyCourt denied defendant's motion for a mistrial but struck the testimony of the investigator, andthe court directed that he testify again, precluding the People from questioning the investigatorabout that interview.
On appeal, defendant contends that the People's delayed disclosure of the report constituted aBrady violation, a violation of CPL 240.20 (1) (a), and a Rosario violation, andthat a mistrial was warranted. We reject defendant's contention that the People's delayeddisclosure constituted a Brady violation. "To establish a Brady violation, adefendant must show that (1) the evidence is favorable to the defendant because it is eitherexculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3)prejudice arose because the suppressed evidence was material" (People v Fuentes, 12 NY3d 259,263 [2009], rearg denied 13 NY3d 766 [2009]; see Strickler v Greene, 527 US263, 281-282 [1999]). Evidence cannot be said to have been suppressed by the prosecution"where the defendant 'knew of, or should reasonably have known of, the evidence and itsexculpatory nature' " (People vLaValle, 3 NY3d 88, 110 [2004]). Here, there is no question that defendant knew whatstatements he made to the investigator during the [*2]interview,and thus possession of the investigator's report "would not have revealed any essentialinformation that the defense did not already know" (id.). Moreover, "a defendant'sconstitutional right to a fair trial is not violated when, as here, he is given a meaningfulopportunity to use the allegedly exculpatory material to cross-examine the People's witnesses oras evidence during his case" (People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Comfort, 60 AD3d1298, 1300 [2009], lv denied 12 NY3d 924 [2009]; People v Barney, 295AD2d 1001, 1002 [2002], lv denied 98 NY2d 766 [2002]).
We agree with defendant that, based on their delay in disclosing the report, the Peopleviolated CPL 240.20 (1) (a) and committed a Rosario violation (see CPL 240.45[1] [a]). Nevertheless, reversal is not warranted based on those violations because defendantfailed to establish that he was substantially prejudiced by the delay in obtaining the report (see People v Benton, 87 AD3d1304, 1305 [2011]; People vSweney, 55 AD3d 1350, 1351-1352 [2008], lv denied 11 NY3d 901 [2008]; People v Gardner, 26 AD3d 741[2006], lv denied 6 NY3d 848 [2006]). Rather, we conclude that the court did not abuseits discretion by denying defendant's motion for a mistrial (see People v Lluveres, 15 AD3d 848, 849 [2005], lv denied5 NY3d 807 [2005]), and by instead providing "suitable alternative relief" (People v Lewis, 37 AD3d 176,177 [2007], lv denied 9 NY3d 846 [2007]; see CPL 240.70 [1]).
Defendant further contends that the admission in evidence of a certified DNA report preparedby an analyst who did not testify at trial and the testimony of an analyst who testified at trialregarding that report violated his rights under the Confrontation Clause of the US ConstitutionSixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54 [2004]). Weagree. "The Sixth Amendment to the United States Constitution guarantees a defendant the rightto be 'confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338 [2009]). "This provision bars'admission of testimonial statements of a witness who did not appear at trial unless he [or she]was unavailable to testify, and the defendant . . . had a prior opportunity forcross-examination' " (id., quoting Crawford, 541 US at 53-54). We must thereforedetermine whether the statements were "testimonial," because only testimonial statements aresubject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821 [2006]).
In Brown (13 NY3d at 336), the report in question contained machine-generated rawdata, graphs and charts of a male specimen's DNA characteristics that were isolated from a rapekit. The Court of Appeals held that the report was not testimonial inasmuch as there were "noconclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d866, 866-867 [2010], lv denied 15 NY3d 757 [2010]). The forensic biologist whoconducted the actual analysis that linked the defendant's DNA profile to the profile in the victim'srape kit was in fact called by the People as a witness in Brown (id. at 340). Thatwas not the case here, where the analyst who performed the tests and concluded that the DNAmixture profile from the vaginal swab sample was consistent with DNA from the victim mixedwith DNA from defendant was never called to testify. Contrary to the People's contention, theanalyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her ownindependent review and analysis of the DNA data. Rather, her testimony makes clear that she hadnothing to do with the analysis performed by the uncalled witness, and that her only involvementwas simply reading the report after it was completed to ensure that the uncalled witness followedproper procedure. The People could not substitute her testimony for that of the actual analyst whoperformed the tests in order to avoid a violation of the Confrontation Clause (see Bullcomingv New Mexico, 564 US —, —, 131 S Ct 2705, 2709-2710 [2011]).
We agree with the People, however, that the error is harmless. "Trial errors resulting inviolation of a criminal defendant's Sixth Amendment right to confrontation 'are consideredharmless when, in light of the totality of the evidence, there is no reasonable possibility that theerror affected the jury's verdict' " (People v Porco, 17 NY3d 877, 878 [2011]). A forensicscientist [*3]testified at trial that the vaginal smear slide sheexamined was "sperm positive," thus establishing that someone had intercourse with the victim.The DNA evidence established that it was defendant who had intercourse with the victim, but hisidentity was not in issue inasmuch as he confessed to having intercourse with her. We thusconclude that there is no reasonable possibility that the error in admitting the DNA testimonyaffected the jury's verdict (see id.). We further conclude that any error in allowing certainhearsay testimony of the victim is likewise harmless (see generally People v Crimmins,36 NY2d 230, 241-242 [1975]). Present—Scudder, P.J., Centra, Carni, Lindley andMartoche, JJ.