| People v Oliver |
| 2012 NY Slip Op 01486 [92 AD3d 900] |
| February 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clarence Oliver, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.),rendered May 25, 2010, convicting him of burglary in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of burglary in the second degree beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
However, the County Court erred in granting the People's motion to compel the defendant toprovide a buccal swab sample for DNA analysis. A court order to obtain such a sample from asuspect " 'may issue provided the People establish (1) probable cause to believe the suspect hascommitted the crime, (2) a "clear indication" that relevant material evidence will be found, and(3) the method used to secure it is safe and reliable' " (Matter of Marino v Kahn, 49 AD3d 741 [2008], quoting Matterof Abe A., 56 NY2d 288, 291 [1982]). Here, on their motion the People failed to establishprobable cause to believe the defendant committed the burglary at issue. The Assistant DistrictAttorney's affidavit submitted in support of the motion asserted, in a conclusory fashion, that thedefendant had injured himself during the commission of the burglary and that blood wasrecovered at the crime scene without providing further detail or the source of this information.Contrary to the People's contention, the record does not demonstrate that the County Court waspresented with additional evidence in support of the motion sufficient to establish probablecause. Under the circumstances of this case, the error in granting the People's motion, and inadmitting the evidence concerning the defendant's DNA profile obtained as a result, cannot bedeemed harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).[*2]
Moreover, as the defendant contends, his right toconfrontation (see US Const 6th Amend) was violated at trial. Robert Baumann, aforensic scientist employed by the Suffolk County Crime Laboratory, testified that DNA materialrecovered from the crime scene was uploaded by his office into a database, that he was informedseveral days later that the DNA profile from the crime scene matched a profile in that database,and that, approximately two weeks later, "Albany" informed him that the profile in the databasethat matched the DNA recovered from the crime scene was the defendant's profile. This evidenceconstituted testimonial hearsay (see Melendez-Diaz v Massachusetts, 557 US 305[2009]; Crawford v Washington, 541 US 36 [2004]). The evidence did not, for example," 'consist[ ] of merely machine-generated graphs' and raw data" (People v Thompson, 70 AD3d866, 866 [2010], quoting People vBrown, 13 NY3d 332, 340 [2009]), but instead consisted of information which shedlight on the guilt of the defendant and accused the defendant "by directly linking him. . . to the crime" (People v Brown, 13 NY2d at 339-340). The source of thisinformation did not testify at trial, and thus was not subject to cross-examination. The People'scontention that this evidence was properly admitted to complete the narrative is without merit.Under the circumstances of this case, this Crawford violation cannot be deemed harmlessbeyond a reasonable doubt (see People v Crimmins, 36 NY2d at 237).
The defendant's contentions that his rights under CPL 30.30 and his constitutional speedytrial rights were violated are without merit.
In light of our determination, we need not reach the defendant's remaining contentions.Balkin, J.P., Dickerson, Belen and Cohen, JJ., concur.