| People v Cartagena |
| 2015 NY Slip Op 02136 [126 AD3d 913] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Omar Cartagena, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered May 17, 2012, convicting him of burglary in the second degreeand petit larceny, upon a jury verdict, and sentencing him to a determinate term ofimprisonment of 11 years plus a period of five years of postrelease supervision on theconviction of burglary in the second degree and a definite sentence of incarceration ofone year on the conviction of petit larceny, to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the defendant's conviction of burglary in thesecond degree from a determinate term of imprisonment of 11 years plus a period of fiveyears of postrelease supervision to a determinate term of imprisonment of eight yearsplus a period of five years of postrelease supervision; as so modified, the judgment isaffirmed.
The defendant correctly contends that his rights under the Confrontation Clause ofthe Sixth Amendment were violated when the Supreme Court admitted a nontestifyingDNA analyst's report linking the defendant to DNA evidence recovered at the crimescene (see People v Brown,13 NY3d 332, 338 [2009]; People v Rawlins, 10 NY3d 136, 146 [2008]; People v Gonzalez, 120 AD3d832, 832 [2014]; People vOliver, 92 AD3d 900, 901-902 [2012]; People v Morrison, 90 AD3d 1554, 1556-1557 [2011];Crawford v Washington, 541 US 36 [2004]).
"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]). "Constitutional error requires reversal unless the error's impactwas 'harmless beyond a reasonable doubt' " (People v Hardy, 4 NY3d at198, quoting People v 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 [internal quotation marks omitted]).
Here, in addition to the erroneously admitted report, the People presented evidencedirectly linking the defendant to the burglary. Specifically, the nontestifying analyst'ssupervisor testified that she herself analyzed the raw data from the evidence collected atthe crime scene and the DNA collected from the defendant and drew her ownconclusions. Thus, the erroneously [*2]admitted reportwas cumulative, as the expert who did testify reached that same conclusion aftercomparing the same raw data relied upon by the nontestifying analyst. Since there was noreasonable possibility that the erroneously admitted report contributed to the defendant'sconviction, the error was harmless beyond a reasonable doubt (see People vRawlins, 10 NY3d at 157; People v Gonzalez, 120 AD3d at 833; People v Hortiz, 60 AD3d692, 693 [2009]).
The defendant's contention that certain remarks made by the prosecutor duringsummation were improper is without merit, as the challenged remarks were within thebroad bounds of rhetorical comment permissible in closing arguments, fair response toarguments made by defense counsel in summation, and fair comment upon the evidence(see People v Galloway, 54 NY2d 396 [1981]; People v Ashwal, 39NY2d 105, 109 [1976]).
The sentence imposed was excessive to the extent indicated herein. Dillon, J.P.,Leventhal, Sgroi and Hinds-Radix, JJ., concur.