87 A.D.3d 81
N.Y. App. Div.2011Background
- January 20, 2005, Bronx murder scene with two victims; defendant provided initial statements and later confessed in writing and on video after Ofelia survived.
- Ofelia Torres testified to grand jury and later changed her account; DNA from items in the bag matched defendant, Johnny, and an unidentified female.
- Defendant was tried and convicted of second-degree murder, attempted second-degree murder, and two counts of first-degree assault; sentence: 20 years to life, plus 5 years post-release supervision.
- Prosecution sought to use Ofelia’s grand jury minutes in its case-in-chief based on claimed misconduct by the defendant causing Ofelia’s unavailability, supported by a Sirois hearing.
- DNA testimony was asserted to be admissible under existing precedents despite the tester not having performed all the tests; preservation issues were raised but not pursued on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether grand jury minutes used in case-in-chief violated Confrontation Clause | People argues misconduct caused Ofelia’s refusal | Torres contests waiver not adequately proven | Forfeiture established; grand jury minutes admissible as proper under Sirois framework |
| Whether DNA testimony without the tester personally testifying violated Confrontation Clause | Coye’s testimony linking DNA to defendants and others admissible | Admission violated confrontation rights | Not a Confrontation Clause violation; evidence considered harmless error given overwhelming guilt |
| Whether failure to instruct Extreme Emotional Disturbance defense was preserved and/or reversible | N/A | Claim unpreserved; alternative merits rejected | Unpreserved; no reversible error; defense instruction declined |
Key Cases Cited
- People v Cotto, 92 NY2d 68 (1998) (Sirois hearing requires clear and convincing evidence of misconduct)
- People v Geraci, 85 NY2d 359 (1995) (Defendant’s misconduct can justify waiver of confrontation right)
- Holtzman v Hellenbrand, 92 AD2d 405 (1983) (Circumstantial proof permissible to establish misconduct)
- People v Johnson, 93 NY2d 254 (1999) (Evidence of intimidation through a relationship can support misconduct finding)
- Melendez-Diaz v. Massachusetts, 557 U.S. 396 (2009) (Testimonial lab certificates require confrontation absent unavailability/Cross-examination)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause; testimonial statements require right to cross-examine)
- People v Brown, 13 NY3d 332 (2009) (DNA reports without producing analyst generally permissible)
- People v Rawlins, 10 NY3d 136 (2008) (DNA testing reports not constituting confrontation violation when not accusatory)
- People v Thompson, 70 AD3d 866 (2010) (DNA testing reports admissible without examiner in court)