| People v Pascall |
| 2018 NY Slip Op 06037 [164 AD3d 1265] |
| September 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Angus Pascall, Appellant. |
Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, andJordan Cerruti of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MarkDwyer, J.), rendered February 13, 2013, convicting him of rape in the first degree, predatorysexual assault (seven counts), attempted predatory sexual assault, predatory sexual assault againsta child (three counts), and endangering the welfare of a child, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was charged with committing numerous sex offenses against five differentvictims over the course of 10 years. At trial, the Supreme Court admitted DNA profiles andreports, as well as the testimony of an expert in DNA analysis, pertaining to the five victims andthe defendant. The expert, Craig O'Connor, testified that he had a Ph.D. in genetics andlaboratory sciences, and he was a criminalist level III at the Office of the Chief MedicalExaminer. O'Connor testified that he was not the original criminalist on all of the individualcases. The other two analysts who worked on the cases "resigned in previous years to pursueother endeavors." With regard to the case files that he took over from the analysts who resigned,O'Connor testified that he became the custodian of the case files and, in doing so, he "wasrequired to review them all and look at all the paperwork and the reports and everything."Moreover, O'Connor testified that he would "take all of the results and do the analysis andinterpretations," and he "review[ed] all the facts and all the data contained in all of the files."When the prosecutor asked O'Connor if he had "review[ed] th[e] data and draw[n] [his] ownindependent conclusions," O'Connor responded, "Yes, I reviewed the results that were obtainedand also the reports, yes."
The defendant preserved for appellate review his contention that the admission of the DNAprofiles and reports, as well as the testimony of the expert, violated his Sixth Amendment right toconfrontation (see CPL 470.05 [2]). However, the contention is without merit.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminalprosecution the right to be " 'confronted with the witnesses against him [or her]' "(Melendez-Diaz v Massachusetts, 557 US 305, 309 [2009]; see People v Brown, 13 NY3d332, 338 [2009]). "This provision bars 'admission of testimonial statements of a witness whodid not appear at trial unless he [or she] was unavailable to testify, and the defendant. . . had a prior opportunity for cross-[*2]examination' " (People v Brown, 13 NY3d at 338,quoting Crawford v Washington, 541 US 36, 53-54 [2004]).
Here, the DNA evidence is, at least in part, testimonial (see People v John, 27 NY3d 294, 308 [2016]). However,O'Connor's testimony regarding his review and analysis of all of the case files indicated that heindependently analyzed the raw data, as opposed to functioning as " 'a conduit for theconclusions of others' " (Peoplev Austin, 30 NY3d 98, 105 [2017], quoting People v John, 27 NY3d at 315).Moreover, unlike in other cases, the record here demonstrates that, to the extent that O'Connorwas not the original criminalist assigned to any of the individual cases, the original criminalistshad resigned and, thus, were unavailable (cf. Bullcoming v New Mexico, 564 US 647,659 [2011]; People v Austin, 30NY3d 98 [2017]; People v John, 27 NY3d at 309). Accordingly, the Supreme Courtproperly admitted the DNA profiles and reports and O'Connor's testimony.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Chambers, J.P., Austin, Miller and Maltese, JJ., concur.