| People v Gonzalez |
| 2014 NY Slip Op 05998 [120 AD3d 832] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Adolpho Gonzalez, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andRoni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered June 13, 2011, convicting him of robbery in the first degree (fourcounts), assault in the first degree, and criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The People correctly concede that the defendant's rights under the ConfrontationClause (see US Const, 6th Amend) were violated when the Supreme Courtadmitted a nontestifying DNA analyst's report directly linking the defendant to a firearmrecovered from a codefendant's residence (see Crawford v Washington, 541 US36 [2004]; People v Brown,13 NY3d 332, 338 [2009]; People v Rawlins, 10 NY3d 136, 146 [2008]; People v Oliver, 92 AD3d900, 901-902 [2012]; People v Morrison, 90 AD3d 1554, 1556-1557[2011]).
"Confrontation Clause violations are subject to a constitutional harmless erroranalysis" (People v Hardy, 4NY3d 192, 198 [2005]; seePeople v Douglas, 4 NY3d 777, 779 [2005]; People v Eastman, 85NY2d 265, 276 [1995]; People v Crimmins, 36 NY2d 230, 240-241 [1975])."Constitutional error requires reversal unless the error's impact was 'harmless beyond areasonable doubt' " (People v Hardy, 4 NY3d at 198, quoting Peoplev Eastman, 85 NY2d at 276; see Schneble v Florida, 405 US 427, 430[1972]). This determination is based on a review of the " 'entire record' "(People v Hardy, 4 NY3d at 198, quoting People v Eastman, 85 NY2d at276).
Here, in addition to the erroneously admitted report, the People presented evidencedirectly linking the defendant to the firearm in question. Specifically, the nontestifyinganalyst's supervisor explained how she herself analyzed the raw data from the defendant'sbuccal swab and swabs taken from the firearm, and drew her own conclusions. Thus,because the erroneously admitted report was cumulative, as the expert who did testifyreached that same conclusion after comparing the same raw data relied upon by thenontestifying analyst (see People v Rawlins, 10 NY3d at 157; People v Hortiz, 60 AD3d692, 693 [2009]), the error was harmless beyond a reasonable doubt (cf. People vHardy, 4 NY3d at 198). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.