| People v Rios |
| 2013 NY Slip Op 00142 [102 AD3d 473] |
| January 15, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kevin Rios, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered October20, 2009, convicting defendant, after a jury trial, of two counts of predatory sexualassault, and sentencing him to concurrent terms of 15 years to life, unanimously affirmed.
Defendant's principal appellate claim is that his right of confrontation was violatedby the admission of a DNA analyst's expert testimony that depended on reports ofprocedures conducted by nontestifying analysts, even though the reports themselves werenever before the jury. Under the circumstances presented, defendant's general referencesto confrontation and related matters were insufficient to alert the trial court to thisparticular claim (see People vPaulin, 78 AD3d 557, 558 [2010], lv denied 16 NY3d 862 [2011]; People v Lewis, 44 AD3d422, 423 [2007], lv denied 9 NY3d 1035 [2008]; compare People v Hardy, 4NY3d 192, 197 n 3 [2005]). Initially, we note that defendant's postverdict motionhad no preservation effect (see People v Padro, 75 NY2d 820, 821 [1990]).
At trial, defendant originally objected to admission of reports by nontestifyinganalysts as "bolstering." This did not preserve a Confrontation Clause claim (see e.g. People v Davis, 90AD3d 432, 433 [2011]). Defendant also made vague references to confrontation andto information that "someone else has provided." However, this was in the context of hisstatement that the reports "could" contain information to which he "would" object. Thismerely stated an intention to object in the future, contingent on whether the evidenceproved objectionable, and was insufficient to preserve his claim (see People vBierenbaum, 301 AD2d 119, 152 [2002], lv denied 99 NY2d 626 [2003],cert denied 540 US 821 [2003]). Ultimately, counsel never stated an objection,and therefore failed to alert the court to his present position that the evidence had indeedproved objectionable. Significantly, defendant declined the court's offers to review thereports to determine what was objectionable.
Moreover, defendant never articulated a claim that the witness's testimonyshould be excluded pursuant to the Confrontation Clause unless the analysts whoprovided the underlying information also testified. Instead, defendant only appeared to beobjecting to the nontestifying analysts' reports. However, those reports ultimately neverreached the jury.
We decline to review defendant's claim in the interest of justice. We note that wherea defect may be readily corrected by calling additional witnesses or directing the Peopleto do so, [*2]requiring a defendant to call the defect tothe court's attention "at a time when the error complained of could readily have beencorrected" (People v Robinson, 36 NY2d 224, 228 [1975]) serves an importantinterest (see People v Gray, 86 NY2d 10, 20 [1995]). Furthermore, although thetrial court opined that the reports of the nontestifying analysts were generally admissibleunder the business records exception, a timely and specific objection would have giventhe court the opportunity to consider whether the witness's testimony violated theConfrontation Clause.
As an alternative holding, we reject defendant's Confrontation Clause claim on themerits. A fair reading of the analyst's testimony establishes that she made her ownindependent comparison between defendant's DNA profile and the DNA recovered fromsemen stains on the victim's underwear. The record does not support defendant'sassertion that the witness merely reported on or agreed with a comparison made by othersin her office. Thus, the witness did not merely provide surrogate testimony that failed tosatisfy the Confrontation Clause (compare Bullcoming v New Mexico, 564 US—, —, 131 S Ct 2705, 2709-2710 [2011]).
Furthermore, in People vBrown (13 NY3d 332, 340 [2009]), the Court of Appeals found a similar DNAreport to be nontestimonial for Confrontation Clause purposes, and we find no basis todistinguish the reports in this case. In addition, as noted, the reports of the nontestifyinganalysts never reached the jury. The witness testified about the other analysts's tests onlyto explain the basis for her own opinion, which was the only statement offered for thetruth of the matter asserted (see Williams v Illinois, 567 US —, —,132 S Ct 2221, 2228 [2012]; People v Vargas, 99 AD3d 481 [1st Dept 2012]).
The only Confrontation Clause claim that defendant arguably preserved is hischallenge to that portion of the DNA analyst's testimony that stated, in essence, that notwo people can have the same DNA profile. However, this was within the realm ofordinary expert testimony, based on statistical information reasonably relied upon byexperts in that field, and defendant's Confrontation Clause objection is without merit.
Defendant's challenges to the prosecutor's summation and the court's charge areunpreserved, and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits. We also find that trial counsel's failure tomake these challenges did not deprive defendant of effective assistance (compare People v Cass, 18NY3d 553, 564 [2012], with People v Fisher, 18 NY3d 964 [2012]). Regardless ofwhether defendant's trial attorneys should have raised these issues, we find that defendanthas not established that he [*3]was prejudiced, undereither state or federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; Strickland v Washington, 466 US 668 [1984]), by counsel's failure to doso. Concur—Tom, J.P., Andrias, Renwick, DeGrasse and Abdus-Salaam, JJ.