| People v Alcivar |
| 2016 NY Slip Op 04329 [140 AD3d 425] |
| June 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Joffre Alcivar, Appellant. |
Stanley Neustadter, Cardozo Appeals Clinic, New York (Mark Baker of counsel), forappellant.
Joffre Alcivar, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 14,2013, convicting defendant, after a jury trial, of predatory sexual assault against a childand course of sexual conduct against a child in the first degree, and sentencing him to anaggregate term of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The victim's recantation of her initial allegation at age six, which wassatisfactorily explained, and any weaknesses in her recollection of events that occurredwhen she was a young child, did not render her testimony incredible. Moreover, hertestimony was supported by evidence that she contracted the same sexually transmitteddisease (STD) as defendant and his girlfriend.
The admission of the report on defendant's blood test stating that he tested positivefor the STD, without giving defendant the opportunity to cross-examine the technicianwho operated the machine that conducted the testing and automatically generated thereport, did not violate defendant's right of confrontation.
People v John (27 NY3d 294 [2016]) does not require a contrary result. TheCourt there, in reliance on Bullcoming v New Mexico (564 US 647 [2011]) andMelendez-Diaz v Massachusetts (557 US 305 [2009]), held that the defendant'sSixth Amendment right to confront witnesses against him was violated by the admissioninto evidence of a report regarding the results of DNA typing analysis conducted by NewYork City's Office of the Chief Medical Examiner, because the People failed to introduceit through the testimony of "an analyst who witnessed, performed or supervised thegeneration of defendant's DNA profile, or who used his or her independent analysis onthe raw data" (27 NY3d 294, 315). The use of "a testifying analyst functioning as a conduit for the conclusions ofothers" (id.) was held to be insufficient to satisfy the Confrontation Clause. In itsreasoning, the Court explicitly contrasted the DNA testing performed in that case, byOCME employees who conducted individual analyses of computer-generatedinformation in the course of the testing process, with the kinds of lab reports that containpurely "machine-generated" data analysis (id. at 309). Indeed, the Court in John cited a footnote from Melendez-Diazwhich makes clear that the prosecution is not required to produce the testimony of"anyone whose testimony may be relevant in establishing the chain of custody,authenticity of the sample, or accuracy of the testing device" (Melendez-Diazv Massachusetts, 557 US 305, 311 n 1 [2009] [emphasis added], cited inJohn, 27 NY3d 294, 312).
The lab report at issue here was of the purely "machine generated" category, and thewitness whose testimony defendant claims was required was, at best, a technician whotested the accuracy of the machine before placing the sample in it for testing. UnderPeople v John and the U.S. Supreme Court cases on which it relies, the reportgenerated by the machine should not be [*2]treated astestimonial, and the absence of testimony by the technician who calibrated the machinedid not violate defendant's Sixth Amendment right of confrontation. "[T]he testing andprocedures employed . . . were neither discretionary nor based on opinion;nor did they concern the exercise of fallible human judgment over questions of cause andeffect" (People v Rawlins,10 NY3d 136, 159 [2008], cert denied 557 US 934 [2009] [internalquotation marks and citation omitted]). In addition, contrary to defendant's argument, thereport did not directly link him to the crimes, since the "test results, standingalone, shed no light on the guilt of the accused" (id. [emphasis added]),notwithstanding that they provided circumstantial evidence of guilt in light of otherevidence.
The court properly declined to dismiss a panel of prospective jurors on the groundthat they had been tainted by hearing the comments of one panelist, who was ultimatelydismissed, to the effect that he would be predisposed to credit the child victim'stestimony. The record "establishes that a fair and impartial jury was selected" despite any"prejudicial comments" (People v Cruz, 292 AD2d 175, 176 [1st Dept 2002],lv denied 98 NY2d 696 [2002]), in light of the court's curative instructions on theneed to evaluate children in light of the same factors applicable to any other witness, andcomments by several other prospective jurors affirming that principle.
The court properly exercised its discretion in precluding defense counsel fromshowing prospective jurors a photograph of the victim's genitals infected by the STD(see People v Jean, 75 NY2d 744 [1989]). The court placed no limitation on thescope of counsel's questioning regarding the prospective jurors' ability to remain fair andimpartial when viewing such a photograph or considering the related allegations.
Defendant's pro se ineffective assistance of counsel claims are unreviewable ondirect appeal, since they involve matters outside the record (see People v Rivera,71 NY2d 705, 709 [1988]). We have considered and rejected defendant's remaining prose claims. Concur—Mazzarelli, J.P., Renwick, Saxe, Gische and Kahn, JJ.