*1 [ 884 20] NE2d 855 NYS2d Respondent, v Mi People The State York, New Appellant. chael Rawlins, Respondent, v Dwain State York, New Appellant. Meekins, Argued January 2008; February decided *3 OF
POINTS COUNSEL Legal Aid Society Bureau, Criminal Appeals New York City Donner and Steven Banks of (Amy counsel), appellant first above-entitled action. I. The of introduction fingerprint record reports containing a latent findings fingerprint examiner did not testify who right violated to appellant’s confront against witnesses him to his due process right (a) to fair trial because two reports by a prepared nontestifying expert constituted testimonial hearsay and (b) four of the fingerprint failed to qualify as business records prosecution because the failed to establish that (Davis were prepared contemporaneously v analyses. with the Washington, 813; 547 v US US 36; Washington, 541 Goldstein, Texas, v People Pointer v 119; 6 NY3d 400; 380 US Roberts, v Pacer, Ohio People v 56; United 448 US 6 504; NY3d Bahena-Cardenas, v Hernandez, States v 1067; 411 F3d People 7 Williams, v 3d 568; People Rogers, 8 AD3d v 888; Misc People 980.) Appellant’s AD3d IX. conviction the burglary of Jerome Florist violates due because process evidence linking appellant to the insufficient burglary legally where it is based only of his on a recovery fingerprint broken from a piece glass People’s fingerprint windowpane in the store’s door which the expert on the of the store admitted could have been outside burglary. glass year placed on the before could have been Wong, People (People Foster, 1144; 600; NY2d v 64 NY2d v People Bleakley, Virginia, 307; v 69 NY2d v 443 US Jackson People People Bullard, Gates, 59 AD2d 666; v 24 NY2d v 490; People People McDowell, DiBlasi, 679; v 130 AD2d v 786; People People Pena, Jacob, 55 AD2d 846; 99 AD2d v 976; AD2d v 961.) Appellant’s imprisonment of life III. maximum sentence felony jury persistent right to a trial as a offender violates his process, impose sentence, the and due because in order to jury, required determine facts in ad- court, rather than beyond prior do convictions, his and to so dition and well (People preponderance Rivera, 5 NY3d mere of the evidence. v Jersey, Apprendi Booker, 466; 61; United States v v New 530 US Blakely Washington, Ring Arizona, 584; v v 220; 543 US 536 US 296.) 542 US (Da City Morgenthau, Attorney, District New York
Robert M. counsel), Dwyer respondent in the Cohn vid M. and Mark compellingly first above-entitled action. I. The trial evidence proved guilt. People (People Schulz, v 521; v defendant’s NY3d Virginia, Norman, 307; US 609; 85 NY2d Jackson *4 People People Santi, Williams, v 234; 925; 3 84 NY2d v Yancey, NY3d v People People Gates, v 864; 666; 24 v 24 NY2d NY2d People Vasquez, People Texeira, 523; v 756; 32 v 131 AD2d AD3d 780.) by fingerprint reports prepared Riddick, 130 AD2d II. The Beatty properly evidence. and Laschke were admitted into Detectives (Pe People Kennedy, ople Guidice, v 68 630; 83 NY2d v Grogan, People Cratsley, People v 28 81; v 86 NY2d 569; NY2d People People Taam, v 260 Farrell, 637; v 579; AD3d 58 NY2d Washing People Fisher, 193; v 201 AD2d v 261; AD2d Crawford 56; People Pacer, ton, Roberts, 6 448 v 36; 541 US Ohio v US 504.) constitutionality challenge III. to the NY3d Defendant’s felony sentencing persistent meritless. scheme is offender Jersey, (Apprendi v 466; v 530 US Almendarez-Torres New People States, Rosen, 329; 224; US 96 NY2d United United 523 v Blakely Washington, 296; Booker, v 542 US 220; States v 543 US People People Ring Rivera, 61; Arizona, 584; v 5 NY3d v 536 US 738.) Daniels, v 5 NY3d Lynn Fahey Greenberg, City, for W.L.
David New York P. appellant The court action. I. in the second above-entitled rights deprived appellant of state constitutional his federal and allowing testimony by process as- confrontation to due 140 documentary proof
sociated about DNA data attributable to nontestifying (Crawford Washington, witnesses. v 36; 541 US Washington, People 813; Goldstein, Davis v 547 US v 6 NY3d People 119; Foster, 47; Roberts, v 56; 27 NY2d Ohio v US States, Wade, Diaz v United 442; US v United States People 218; Trombetta, Pacer, US NY3d v 479; v US California 888.) People Rogers, prosecution 504; v 8 AD3d II. The lay adequate rape failed to an foundation for introduction of the (People Kennedy, kit DNA data as a business record. v 68 NY2d People Cratsley, 569; 81; v 86 NY2d Standard Textile Co. v 911.) Equip. Appellant Rental, National 80 AD2d III. was denied process by prosecutor’s opening, due fair and a trial trial ev corresponding commentary conveying idence and summation appellant’s profile part name and DNA of a database by justice system by maintained New York’s criminal hearsay testimony admission of that the Medical Examiner’s of alleged rape ap fice learned of the match between the kit and pellant’s profile from database a letter sent to it the Division (People People Resek, of Criminal 385; Justice Services. v 3 NY3d People People Mullin, 41 475; Cook, v NY2d 204; v 42 NY2d v People People Stanard, 143; Nieves, 125; NY2d v 67 NY2d v 47.) Foster, 27 NY2d (Anthea Hynes, Attorney, Brooklyn Charles J. District H. counsel), respondent and Leonard Joblove of in the Bruffee preserve second above-entitled action. I. Defendant failed to appellate People lay his claim review that the did not an ade- quate foundation for the admission the Gene Screen file as a jurisdiction Therefore, business record. this Court is without any People adequate event, review this claim. an laid foundation for the admission into evidence of both the Gene Screen and Office of the Chief Medical Examiner files busi- any ness records and error of the admission Gene Screen Wright, (People file was v 1274; harmless. 34 AD3d *5 People People Marine, Bones, 268; 30 AD3d v 689; 17 AD3d v Miguel, People People 920; Middleton, 53 NY2d v 54 v 42; NY2d Kennedy, People Cratsley, People 68 569; 81; NY2d v 86 NY2d ex People Grogan, Walters, 317; rel. McGee v 62 NY2d v 28 AD3d 562.) People Baylor, right 579; v 25 AD3d II. Defendant’s of right process by confrontation and his to due were not violated the admission into evidence of DNA test results because these reports properly lab files and testimonial and were (Pointer Texas, admitted into evidence as business records. v Washington, Mungo 400; 36; 380 US v 541 US Dun- v Crawford People Bradley, can, F3d 544 1002; 33, 393 US v 22 8 AD3d
141 Newland, Coleman, v 6 254; People 16 AD3d 124; v NY3d People Feliz, v States 579; 28 AD3d United 330; Grogan, v AD3d People 657; AD3d Brown, 9 Misc 3d 31 v 227; People 467 F3d 729.) due right Durio, 3d III. Defendant’s v 7 Misc People of evidence the admission by not violated was process Moreover, a computer was in database. profile defendant’s DNA Crim the Division of the database of neither the evidence of letter nor the prosecutor’s notification inal Justice Services v (People defendant. prejudiced that evidence comments about Rice, Michael, v 294; 1; People 48 NY2d NY2d v Berg, People 59 Ortiz, 288; Young, v 48 v 54 NY2d 929; People People NY2d Tosca, Medina, 951; v 995; v 53 NY2d People NY2d People Claborn, Montanez, 53; v 660; People v NY2d People NY2d 835.) Till, 244; v 87 NY2d AD3d THE COURT
OPINION OF Jones, J. call to resolve an issue first
These two
us
appeals
upon
DNA and latent fingerprint
for this Court: whether
impression
experts
are
nontestifying
comparison
prepared
meaning
“testimonial”
statements within the
[2004]).
(
People v Rawlins trial, convicted, jury Rawlins after
Defendant Michael was commercial third-degree burglary relating six counts to six sentenced, as a in Manhattan. Defendant was establishments offender, years terms of felony to concurrent persistent life. burglary stems from a May
Defendant’s arrest Manhattan, at ap- located midtown Flowers, Fresh Cut p.m. that he officer testified arresting 11:30 proximately shattered, and that glass door was the store’s observed floor,” with coins on the had over “tipped cash been register Defendant register strewn about. and an ink roll from cash Fur- ink roll. from the apparently had ink stains on his hands the ground found on bag in a ther, a wrapped plastic brick latent lifted five A officer fingerprint near the shattered glass. card. a fingerprint them on register placed from the prints *6 examiner, subsequently Connolly, a fingerprint Detective Arthur prints one matched of the latent with defendant’s inked fingerprint card.1 burglary
Due to the similarities the Fresh between Cut and prior burglaries place four in Manhattan that took between May examining prints March and of 2003, the task of latent burglaries reassigned recovered those was to Detective Con- nolly approximately testify two weeks before he was burglaries, defendant’s trial. The facts of those other leading chronological up burglary, order to the Cut are Fresh follows. approximately police
At 23, 1:15 a.m. on March officers responded uptown Stationers, to a break-in at West Side an portion glass Cut, Manhattan establishment. Like Fresh a of the shattered, door had been and either a brick or a rock found along plastic bag. Additionally, opened floor, on the awith an register along floor, cash was on the items; with coins and other missing. fingerprint some A cash was also latent officer lifted prints register Connolly from the cash and drawer. Detective prints determined a match between one of the latent and print. defendant’s April approximately Next, 1:00 of- a.m., responded upper-East
ficers a Florist, to break-in at Jerome an Again, Side establishment. similar to Side, Fresh Cut and West right the lower half aof window to the of the door was broken. missing register. fingerprint Some coins were from A latent glass prints: pieces officer lifted four three from on the floor pane. and one from door next to the broken window Con- nolly ultimately print piece a determined that latent from a glass right print. matched defendant’s thumb approximately day, responded
At 8:45 a.m. on the same officers Stylists, upper-East ato break-in at Andreas Hair another Side part glass establishment. The lower of the door been had broken styling fingerprint cash A some tools taken. latent print officer lifted one from the bottom the coin drawer register. Connolly subsequently the cash Detective determined a print. match with defendant’s is, According Connolly, fingerprint essentially, 1. a “latent” chance “a [fingerprint] impression” through a transferred onto smooth surface the aid ridged of one’s sweat or other substance that can transfer contours a fingerprint. By contrast, “patent” fingerprint deliberately is one taken patent transferred on a white card with the aid of black ink. Whereas a fingerprint image complete print, completeness, print’s latent usefulness, may vary depending strength
therefore on the of the unintended impression. *7 actually burglary Flowers, Fresh Cut which The last before establishments—Sophia’s separate involved two but connected place approximately 8:20 Soha Bistro and the bar—took am. any breaking-and- Immediately April before on 2003. nearby entering defen- occurred, a cleaner observed had street sitting Sophia’s and a brick. in front of with sweater dant glass that de- he shatter and then noticed later, Minutes heard Sophia’s. alerted his inside The witness then fendant was Shortly entering police. supervisor, after who notified Sophia’s, and his left the street cleaner defendant Soha.2 Both gave supervisor an Soha, while the latter saw defendant exit responding the bottom unfruitful chase. The part officers observed adjacent along shattered, with a a window to door through the window. A latent sweater and a brick that went glass fingerprint prints from the floor in officer lifted 15 Sophia’s, register as as one from cash drawer Soha. well Ultimately, Connolly register print that the found concluded glass Sophia’s matched Soha lifted from shattered and one print. defendant’s reassignment Connolly, Beatty
Before Artis Detective (who testify) prepared fingerprint did not had two latent (Jerome Styl- comparison reports Florist and Andreas Hair ists). Additionally, Laschke, Eric who testified Detective prepared reports witness, defense two similar the West Sophia’s burglaries. by Beatty reports Side, All four Soha Connolly and Laschke admitted as business records. were compared independently case, testified that in each he prints fingerprint card and deter- latent with defendant’s percent certainty,” mined a with match “one hundred Beatty’s prior agreed thus and Laschke’s conclusions. with however, limited trial, Because Laschke defendant testified Beatty’s reports, challenge his to the admission challenged on the of all four and also admission contemporane- ground failed to establish exception. ity requirement records the business Following jury Supreme denied defendant’s Court verdict, insufficiency, toas Je- the conviction aside, motion to set bar, adjacent and the two establish- Sophia’s 2. owns the Soha owner also entrances, ments, internal although separate are connected an with front having Because go outside. facilities without door for staff to serve both and ad- separately separate entrances run establishments with prints burglary The latent dresses, charged counts. with two defendant were, however, single report. in a for both evaluated People subsequently persistent rome Florist.3 The for a moved felony adjudication sentencing pursuant offender to Penal Law § Apprendi 70.10 and CPL 400.20. Over defendant’s Newv [2000]) Jersey objection—that US 466 the sentence judicial require fact-finding beyond enhancement statutes prior adjudicated *8 convictions—Supreme fact of Court defendant persistent felony offender. (see Appellate People The Division affirmed v Rawlins, 37 [2007]). rejected AD3d 183 The court defendant’s Crawford challenge, holding although Beatty testify, did his “reports qualified as nontestimonial '. business records . . they] [because prepared specific purpose were not for the of liti- (id. gation” testimonial, Even if the court deemed their “merely duplicative” admission Connolly, and harmless because Detective subject was cross-examination, who to “made his own comparisons by fingerprints [Beatty] of same the tested and (id.). reached the same conclusions” court also deemed the rejected foundation for a business record established and challenge relating sufficiency meritless defendant’s to the of the finally, rejected Ap- count; Jerome Florist the court defendant’s [2005]). prendi challenge, relying People on v Rivera NY3d People v Meekins jury convicted,
Defendant Dwain trial, Meekins was after a of first-degree sodomy, first-degree third-degree sexual abuse and robbery, accordingly. and sentenced report by prepared trial,
At the introduced a an inde- pendent private laboratory containing testing results of DNA samples complainant’s rape conducted on taken from kit.4 The report through experts was introduced the of two analysis biology: Floyd, by employed DNA and forensic Judith private laboratory, Kyra employed Screen, Keblish, Gene the and by the Office of Chief Examiner, the Medical neither of whom personally performed testing. the actual
Floyd supervised testified that she the technicians who performed testing performed the this case and a final review ensuring their results; of that her duties involved that techni- protocols; vigorous that, cians followed established after (1) challenge establishing 3. Defendant’s the of concerned lack evidence (2) print placed glass when his latent was on which side glass—store print side or street side—the was found. (NYPD) with, City Department 4. The York New Police contracted to, private independent samples sent laboratories collected from crime scenes testing. for DNA protocols periodic inspections, been deemed to those have industry by the lab accredited and that conform standards Society Laboratory Board of the American Accreditation Department Laboratory York Directors, the New State Crime Floyd Safety. Department of Public Health and the Texas report explained in its indicat- a statement that the lab issued [that] originated ing profile from a male that “a DNA rape sperm swab” from the fraction of the oral obtained any comparisons results,” kit that the lab “didn’t do report Examiner’s office to the Medical but instead sent that task.5 was, like Medical Examiner’s office
Keblish testified that the by Laboratory Accreditation Board Screen, Gene accredited Laboratory Society as well Directors, of the American Crime laboratory once the State. Keblish testified that as New York report generated its the Medical data” and sent “raw *9 laboratory “edit[ed] file, office, her the Examiner’s reviewed by interpreted graphical data”—or, “wean- . . . the the data ting] might peaks DNA, be there are times out what because actually peaks up . . . that in the data that are not will show peaks,” distinguished complainant’s DNA DNA DNA alleles or profile “up-loaded profile and then from the semen donor’s DNA existing profiles profile] [the [a] male database” of DNA into possible subsequently a her office was match. Keblish added that by of Criminal Justice Services notified letter from Division same DNA that profile the oral swab was the “semen donor to Subsequently, checked the Meekins.” her office Dwain already profiles DNA case file it had and made sure that the two Attorney same, were the and then contacted the District gave qualified expert, Department. Keblish, a the Police herself profiles rape opinion kit her DNA from the were that the that this DNA match is same as defendant’s. She also testified sample greater found in in than a trillion” of donors. “one Floyd process testing sample thus: explained 5. in detail the of DNA question!, sample such A DNA from the “remove[s] forensic examiner first proce- semen], you subject amplification it [an] then to as a blood stain or reaction,” PCR, strands “polymerase in which “certain dure” called chain or DNA have amounts of “amplified]” ] are to us to sufficient of DNA” “allow! genetic profile.” Floyd that PCR is indicated . . . evaluate and obtain a to laboratory.” [the country every “[A]t the end of “widely used across the copies of you up possibly end millions or billions process PCR] . . then with . capillary elec- subject DNA] to . . . DNA[, [the we which] of after ... would forensically tagged pieces [are] that trophoresis, DNA and then the you up come the software and amplification result are evaluated profile” comparison and evaluation. specific genetic with for later
Finally,
report
Keblish testified that
the DNA
and related
“prepared
regular
files were
in the
course
business of the
agencies”;
medical examiner’s office and its contracted
that it
regular
was “the
course
business for the medical examiner’s
agencies,
keep
office, as
aswell
its contracted
make
such
prepared
records”; that
“at or
near
time
test-
ing
analysis [was]
persons [from
and the
done”; and that “the
office] preparing
both the lab and the Medical Examiner’s
reports”
duty
information
were “under a business
to do
truthfully
accurately.”
so
Keblish also
she
testified that
generated by
custodian of the combined records
the two enti-
objection, Supreme
Over
ties.
defendant’s
Court admitted a
containing
file
consolidated
both labs’
as business rec-
rejected
ords
the Medical Examiner’s office. The court also
hearsay objection
testimony
defendant’s
to Keblish’s
that she
potential
agency.
learned of a
another
match from
(see
Appellate
Division affirmed defendant’s conviction
[2006]).
People Meekins,
II.
A. The Sixth Amendment of United the States Constitution provides: prosecutions, enjoy “In all criminal the accused shall right against . . . to be confronted with the witnesses him” added). (emphasis Our State Constitution is to the same effect (see 6).§ Supreme Const, NY art I, In Crawford, the Court explained principal “the at evil which the Confrontation proce- Clause was directed was the civil-law mode criminal particularly parte dure,” “its use of ex examinations as evidence (541 added]). against [emphasis Thus, accused” US at 50 it (id. 51). applies testimony” “Testimony” to those who “bear at ‘[a] typically in turn “is solemn declaration or affirmation made ” (id.). purpose establishing proving for the or fact’ some emphasized Court that the Confrontation Clause was concerned specific type” statement, “with of testimonial which the Court explained by offering “[v]arious formulations”: testimony parte
“[1] or its functional ‘ex in-court equivalent—that affidavits, is, as material such testimony prior examinations, that the de- custodial pre- cross-examine, or similar fendant was unable trial statements expect to be used prosecutorially, declarants would ’ ... [2] reasonably ‘extrajudi- . . . contained testimo-
cial statements formalized prior depositions, affidavits, as materials, nial such [and 3] testimony, . confessions,’ or . . ‘statements under circumstances which would that were made objective reasonably to believe that lead an witness at would available use a later statement be for ” (id. [emphasis trial’ at 51-52 added citations omitted]).6 (id. 52) gen-
The “common of these formulations nucleus” erally accusatory parte statements. described ex
“Despite precise definition,” the offered the lack of a Court determining testimoniality “additional clues” state- (2 ed]). § [15th “An ment Criminal 6:10 ac- Wharton’s Evidence government officers cuser who makes a formal statement testimony person makes a casual bears in a sense that a who acquaintance (Crawford, remark not” US at to an does government production in the “Involvement officers presents potential eye unique with an toward trial (id. prosecutorial Virginia, Lilly 7;n abuse” at 56 see also government [1999] [“when 527 US is involved production, when the statements describe statements’ they “implicate past the core concerns of the old ex events,” § practice”]; parte McCormick on Evidence affidavit [6th 2006] inquisitorial practices [“These and their mod- ed Crawford”]). analogs are focus of ern [2006]), Washington Court US Davis v new Its contri- but ushered in no law. Crawford, elaborated on evaluating question, in bution, useful for the confrontation resounding emphasis application mat- that context its and its *11 purposes. showed, As Davis Clause ters Confrontation improperly determining question was whether evidence requires inquiry under the circum- a fact-intensive admitted stances of each case. any of them Court, however, unnecessary to endorse deemed it 6. The (541 any definition” US question “qualifie[d] under the statements in
because 52). at 148 police Davis, the Court held that in context inter-
rogations,
“Statements are when in nontestimonial made police interrogation course of objectively indicating under circumstances primary purpose
that the interrogation is to enable assistance to They ongoing emergency. meet an are testimonial objectively when the circumstances indicate that ongoing emergency, there is no such and that the primary purpose interrogation of the is to establish prove past potentially or events relevant to later 822). prosecution” criminal US at Davis reiterated that Confrontation Clause is concerned with the “weaker” but functional “substitute for” live statements) 828). (i.e., parte accusatory {id. ex at “primary purpose” important
Davis’s test reflects the thus (generated through police distinction between statement inter otherwise) rogation perpetrator or that “accuses” a of a crime— precisely i.e., to “do what a witness does direct examination” (id. 830)—versus one that serves some other nontestimonial (i.e., purpose ongoing emergency): an to meet is ac former cusatory “purpose [is] since . its . . nail down the truth past (id.), about criminal events” while the is latter not. Emphasizing purpose produced varying the critical that (Davis’s companion Davis, statements in case) Hammon v Indiana aptly “[n]o Justice Crawford, Scalia observed that goes proclaim emergency court ‘witness’ into an seek (id. help” emerges lodestar, The then, from Davis purpose is that the statement intended In the to serve. police interrogations, purpose gleaned, part, context of in goal responses obtaining from ongoing whether the an was to meet gather emergency, purely investiga or to evidence tory reasons (see People v Nieves-Andino, 9 NY3d [2007] “primary purpose” [officer’s questioning victim was to “prevent() gather People harm,” further not to facts of crime]; Bradley, People v [2006]; Pacer, NY3d v 6 NY3d [2006]; Goldstein, 119, 123-124, [2005], 6 NY3d [2006]). cert denied 547 US
Belatedly, noting govern- it bears that Davis’s concern for ment test, involvement is not absolute. Court’s face on its application, properly its reflects the not all view that government inevitably involvement leads to the forbidden
149 noted, look fruit.7 Justice we should As Scalia testimonial of an the course to law enforcement’s conduct objectively us statements, to inform as as declarant’s well interrogation, nl), as US at 822-823 is testimonial response whether a core Sixth Amendment’s hearsay all implicates “not US at 51 involvement (Crawford, [government 541 concerns” (id. n 7 abuse at 56 potential” prosecutorial posing “unique added])]). [emphasis
B.
an
adopt
us ask us to
appeals
both
before
People
Crawford,
all
records
rule,
business
absolute
discussed
atUS
(Crawford,
nature
not testimonial”
541
“by
[are]
their
56)
the federal
evidence,
Under our rules of
however—unlike
.8
(see
[8])—“law
[6],
rule
enforcement
rules
Fed Rules Evid
803
(People
rule”
agencies
constitute businesses
of the
purposes
v
Guidice,
83 NY2d
630,
635
[1994]
[citation
and internal
quota-
omitted]).9
line
run
tion marks
rule could
Accordingly,
bright
most es-
Constitutions,
afoul of either our Federal or State
AD3d
People v
were business
nection with a 911
prov[e]’
denied sub nom.
ments that
exempted
assistance”
ness records
sistent with what the
prohibition, provides:
omitted)];
characteristics
Or
Misc 3d
7. 8. Some courts have reached
“A 911 call
9. CPLR 4518
App
[2006],
579,
some
Brown,
from
729,
pecially types police business records.10 It is true “ that the “essence” of the is that exception systemati- ‘records cally made for the conduct aof business . . . are inherently highly trustworthy they because are routine reflections of day- to-day operations and because the obligation entrant’s is to have them truthful and accurate for of the conduct purposes ” (83 635, at enterprise’ NY2d 68 quoting People Kennedy, [1986]). 569, NY2d
However, we hasten to
against
warn
the convenient
danger
relying on a hearsay exception—particularly
business
records, and the breadth of that
York—as
exception
New
for the
proxy
statement’s
when the real
reliability
inquiry
concerns whether a statement
is “testimonial”
as that
term is
Indeed,
now understood after
and Davis.
the Supreme
Court explicitly rejected as unfaithful
to the original meaning of
the Confrontation
prior
Clause its
test
in Ohio v Roberts
[1980]),
US 56
which admitted out-of-court statements
“so long
as [they
adequate
had]
indicia of
within a
reliability—i.e.,
[fell]
”
‘firmly rooted hearsay
541 US at
exception’
(Crawford,
66).
quoting Roberts,
terms,
448 US at
In no
uncertain
Court
noted that
the constitutional
concerns do “not evaporate when
broad,
to fall
some
happens
hearsay
within
modern
(id.
7). Thus,
at
n
exception”
case,
each
must
we
view
the statement
a multifaceted
through
prism
properly
(DC
States,
2006),
10. See
App
Thomas v United
914 A2d
Ct
cert
(2007)
—,
(viewing categorical exemption
denied 552 US
generally,
business records are not
that is so not because
are
records,
more,
business
without
but rather because their authors are not in
producing
“striking
business of
a statement
that bears a
resemblance”
52)
(Da-
(Crawford, 541 US at
to “what a witness does on direct examination”
830).
vis,
Certainly
modern-day
547 US at
this much cannot be said of all
records, especially
business
all
business records.
designed
reflects the “core” evil the
Clause
Confrontation
prevent:
procedure”
“the
mode
civil-law
of criminal
and its
parte
against
insidious “use of ex
examinations as evidence
(Crawford,
short,
accused”
541 US
our task in each
properly
case must be to evaluate
whether
statement is
viewed
surrogate
accusatory
testimony.
as a
in-court
reject
attempt
inquiry
vein,
In a similar
we
to reduce the
expedient bright
adopt
Thus,
other
line tests.
we decline to
approach by
hinge
other courts to
our determination on the
(see
*14
expectation
e.g.
that a statement will be available at trial
Super
[App
Renshaw,
State v
456,
390 NJ
The flaw in test, defendants in the peals before us, it, is that like the so-called business records exception to Amendment, the Sixth is too broad.12Davis reminds inquiry objective us that the is an circumstances, one under the approach necessarily an must account for various indicia of testimoniality beyond expectations the declarant’s reasonable (see 826-829). example, Davis, Davis, 547 US at In Michelle McCottry police: again”; jumpin’ told the “He’s here me complainant’s colloquy fists”; “He’s usin’ his later with the (id. operator, she identified defendant his full name 817). Clearly, expected she could well have her statements to be against viewing used However, defendant later at trial. the cir (test general 12. § See McCormick on Evidence at 162 the most “is formulations, “provides opportunity and abstract” of three Crawford’s indeterminate”). application the broadest and is the most objectively, responses questioning—though her to cumstances sense) (in prejudicial—were accusatory Amendment a Sixth primary aiding purpose an as served the ongoing emergency, implicate words, In not to defendant. other (id. 828) analogues” her not the “courtroom statements were designed against. protect short, In Mc that the Clause was Cottry against neither “testified” bore “witness” defen nor dant. foregoing important espe- reminders, are observations
cially seemingly requires apply it in- when courts to Crawford’s complex As the new, nocuous “formulations” situations. “applies noted, Court Clause to ‘witnesses’ [for against a] an “acute concern accused” reflects type [emphasis specific at 51 out-of-court statement” US added]).
*15
C.
analysis, many
tests,
the context of scientific
such DNA
question presented,
have
state
federal courts
considered
(see e.g.
Freycinet,
emerged
and little consensus has
AD3d
731,
731
[2d
Dept
2007],
lv
granted
Nevertheless, we find some of the
(116
Crager
other courts instructive. In State v
objective, highly testing analysis scientific like DNA is that the inherently inculpating results are not biased toward the defen- they exculpate. inescapable corollary dant; can also The is that police prosecutorial unlikely any or involvement is to have impact on Thus, the test’s results. in terms, Davis or prosecutorial Crager involvement in a case like becomes non- (see issue, and the focus shifts Davis, to declarant US at 547 826-827). The force of Davis is that matters; context we look only interrogator’s primary purpose questioning, not to the in purpose also, but in view, declarant’s to the the statement was (see serve, intended to the to motivation for the statement [McCottry acting id. at 828 was “not as a and thus witness” 154 testifying" speaking police; state- instead, The when her
“was to points ongoing emergency]). in ments them an critical aided ordinarily Crager, has then, from are that a lab technician no subjective hardly outcome, in affect interest the test’s could simply recording, any analyst event; the result the was contemporaneously, protocol the administration of scientific to eye. hidden the reveal what is from naked (444 701 In Mass 827 NE2d Commonwealth v Verde [2005]), similarly Supreme Judicial Court Massachusetts the of analysis identifying that of as cocaine held certificates chemical Al seized defendant nontestimonial. substance from were though pub that the fell the the court observed record “within exception clause,” the the court lic records confrontation report, properly of it focused on the “nature” the and whether (444 any Mass bore of substituted at semblance live 705). analy “[c]ertificates 284, 827 at The of NE2d chemical discretionary sis,” view, the court’s were “neither nor based they opinion”; did exercise of human not concern the fallible “they judgment questions effect; instead, cause over of merely procedures contemporaneously, [recorded, the taken and] well-recognized state[d] test the results of scientific composition determining quantity of the the substance” 705; Brown, at also 9 Misc 3d Mass at NE2d see [“The laboratory of notes and records technicians investiga samples DNA . . . not made who tested the for prosecutorial purposes the rou or but rather were made for tive ensuring accuracy purpose testing tine of done laboratory formulating DNA and as a foundation for [drug [Mo 2007] profile”]; March, State SW3d cf. analysis report prepared solely prosecution chemical testimonial]). type “very kinship The had little to the certificate (Verde, hearsay clause the confrontation intended exclude” Crager, short, as in 444 Mass at NE2d protocol contemporaneous must be un recordation of scientific independent any possible the inde trial, use at dertaken ensuring properly pendent purpose test 826-827). (see Davis, US at administered reasoning import Crager's necessary and Verde's performed of the technicians who cross-examination testing no than what actual would have borne more information (i.e., may challenge what an authentication have revealed *17 recorded). free noted, “defendant was to As the Verde court so, and did and rebut the information in the certificate” fact expert’s] [defendant’s jury [was] “the free to credit (444 analysis [it] saw fit” and to discredit the certificate of 706).13 284, 285, 827 NE2d at Mass opinion, Supreme of California
In a detailed
Court
[2007])
(41
this
555,
“observations
. . . constitute a
recordation of observable
rather
than the
events
past
is,
documentation of
events. That
she recorded
regarding
receipt
her
of the DNA
observations
analy-
samples,
preparation
samples
her
of the
analysis
actu-
sis, and the results of that
as she was
[she]
ally performing
‘Therefore,
those tasks.
when
[she]—like
observations,
the declarant
made these
we,
By
appear
suggest,
to
nor do
13.
the court does not
this observation
precludes
find-
challenge
expert by
means
ability
the state’s
such
analysts who
ing
testimoniality;
merely
it
that were the actual
observes
likely
read
testing
testify, they
do no more than
participated in the
would
them,
they
recordings
took
steps
took and how
from their own
suggests
highly
verifiable
adjustments,
any,
made. This
what
if
DNA,
testing,
the need to call
like
obviates
nature of certain scientific
testing.
actual,
analysts
part in
numerous
who took
often
*18
acting
Davis—[was]
reporting
emergency
an
in
“not
’ ” (41
testifying”
[a] witness[
[was]
];”
“not
quoting Ellis,
605-606,
4th at
161 P3d at
Cal
While objectivity procedures emphasized issue, scientific (and, as far that, it is also relevant at least Verde Geier opinion, Crager), tell from the the declarants’ out- as we can directly accusatory, in the sense of-court statements were not they explicitly the crimes. The that linked the defendants to laboratory particularly is noticeable in Geier: while contrast analysis testify, performed by technicians who did not by testifying comparison made wit- to defendant’s DNA was discussed, is not distinction, The like the others we have ness. undoubtedly, be touchstone; statements can often an infallible tendency inculpate their the defendant testimonial where only however, which cases, indirect. In close the directness with particular points defendant as the offender is statement to the a factor to be considered. preceding shows, and context are es-
As the discussion facts testimoniality question requires consideration of The sential. every equal import multiple And while may factors, not all of case. impossible provide exhaustive list of factors it is an important play especially role in this mix, two an enter into prepared in a first, the statement was determination: whether resembling parte second, whether manner ex examination wrongdoing. criminal accuses defendant of the statement making generating purpose statement, and the or doing these two interrelated so, inform declarant’s motive touchstones.
III.
People v Rawlins at issue fingerprint argues
Defendant detective, pre Beatty, because clearly testimonial *19 and, most purposes solely prosecutorial his pared reports and offered to estab accusatory they because were importantly, were Beatty’s reports that identity. agree We lish defendant’s their admission was conclude that testimonial, but nonetheless harmless a reasonable doubt. beyond of- and inherently accusatory reports,
Beatty’s
fingerprint
could
charged,
of the crimes
an essential element
prove
fered to
fingerprint
reports—which
Latent
be
but
testimonial.
nothing
fingerprints
the crime with
latent
from
compare
prints
unknown
definition of “a weaker
individual—fit
the classic
from a known
828).
(Davis,
at
at trial
547 US
testimony”
for live
substitute
that,
in his
his
effect,
“testifying”
through
reports
was
Beatty
committed
is the same
who
person
defendant
opinion,
committing
defendant
had
witnessed
burglaries;
Beatty
Critically,
in like fashion.
he would have testified
burglaries,
crime, i.e.,
prints,
of
latent
past
evidence
a
purpose
gathering
inexact
admittedly
prints—an
them with known
comparing
Beatty
a
ultimately apprehend
perpetrator,
science—was
his
nor
making
comparisons,
had no other expectation
(see Pacer, 6 NY3d
opinion
an
controvertible
rendering
arguably
129).14
512; Goldstein,
at
6 NY3d
harmless er-
Nevertheless,
Beatty’s
admission of
reports
129).
(see Goldstein, 6
doubt
NY3d
beyond
ror
a reasonable
Je-
concluded,
Beatty’s reports
Division
Appellate
As
cumulative,
Florist
Andreas Hair
were
Stylists
rome
that same conclusion
reached
testify (Connolly)
who did
expert
establish-
from those two
prints
after
the latent
comparing
contention
defendant’s
related
Further,
reject
ments.
we
light
him
Beatty’s reports unduly prejudiced
admission of
Beatty’s
colleague
concurring
disagree with our
Respectfully,
14.
we
thus,
and,
business records
reports
nontestimonial
because
are
”
“
(concur
past
truth
criminal events’
‘to nail down the
about
were not made
Beatty
were;
of Detective
Manifestly they
it was the business
ring op at
(if
reports are no less
the crime. His
possible) who committed
to establish
fingerprints with
comparing latent
the task of
testimonial
because
ordinary
in the
course
police officers do
“nature” of what
candidate’s is in the
exculpated
well have
Beatty’s
could
It
true that
conclusions
of business.
however,
point,
is that
suspects;
short list of
Rawlins from the NYPD’s
unique potential” for abuse
“presents
direct law enforcement
involvement
added]).
[emphasis
(Crawford,
Finally,
reject
challenge
we
as meritless defendant’s
to the
constitutionality
persistent
felony
of New York’s
offender
(see
§
sentencing
70.10;
[1];
scheme
Penal
CPL
Law
400.20
see
People Rivera,
also
v
[2005],
Pointing bearing question to certain indicia the on of testimo- niality, argues generated defendant that the data Gene Screen and the in other materials the Medical Examiner’s file are testing testimonial because the technicians who conducted the working rape every and, thus, knew that were on a kit had expect potentially reason to that their results would be used to prosecute ultimately the individual identified. He also notes testing the that NYPD outsourced the task of crime scene samples argues for DNA to Gene Screen. Defendant that “the only collecting memorializing purpose conceivable of and the [testing] identity suspect.” data was to establish the of He a “[t]he contends that data . . . a DNA constituted set state- expressing ments attributable to the lab technicians the results process they performed,” “[n]ei- of the scientific had and that [Floyd any Keblish] procedures ther in nor had direct role” the employed. People, argue hand,
The on the other that the data and report prepared by equiva Gene Screen is not the “functional type historically lent” of the of statements condemned the they argue, report Instead, Confrontation Clause. Screen’s (Crawford, Gene “by [its] record, is a business which is nature” 56) agree that, US at nontestimonial. We under the circum generated by case, stances this the data Gene Screen is DNA not testimonial. (the plainly Floyd indicates,
As the record and as Gene Screen supervisor) report question contained data testified, the raw originated [that] profile . . . from male in the form of “a DNA sperm the of the oral swab” from obtained from the fraction Specifically, rape form of kit. data was nonidenti- raw challenges graphical fying this Defendant data information. testimony, concedes, but criti- substitute for live statement cally, it “did not determine whether the data Gene Screen any suspect.” [defendant] Indeed, as or other collected matched any comparisons Floyd explained, do Gene Screen “didn’t profiles. graphical any test known DNA results” results, DNA guilt standing light alone, of the accused shed no genetically expert’s opinion results in the absence of an that the sample. That, however, the Medical match a known challenge. Indeed, does role, Examiner’s which defendant after office received notice from even the Medical Examiner’s possible be- Services of a match the Division of Criminal Justice profile preexisting in a tween the semen donor and a DNA [it] al- database, ready file that had Keblish’s office “checked case profiles same,” DNA were the made sure the two only notify Attorney it District and the Police then did Department. analysts, report, product multiple is not
Gene Screen’s parte kind of the Confrontation Clause was ex against. designed protect Like the certificates chemical analysis testing employed procedures Verde, issue discretionary opinion” in this case “neither nor based on *21 705); they Mass at the 827 NE2d at nor did concern judgment questions human of cause and exercise fallible over say This to could not have been made effect. is not that errors any, testing procedure errors, if are not in the itself. But those product “testimony” term. as we understand contemporaneously only Because the Screen technicians Gene “state[d] employed procedures of a recorded the the results (id.)—for well-recognized purpose, note, scientific test” we verify permitting subsequent their reviewers work—a to laboratory’s supervising under familiar oath with witness requirements pursuant rigid to could illuminate accreditation protocol whether followed. on cross-examination Further, it Screen technicians is of no moment that Gene (because working every or had reason to know knew kit) rape findings generate results that their could perform- trial, later that Gene Screen was could be used nor prosecution ing nor law Neither the work for enforcement. law govern- outcome; the have influenced the enforcement could inconsequential. Finally, merit’s involvement is the documents prepared by directly the Gene Screen technicians were not ac- cusatory; compared profile they gener- none of them the DNA ated to defendant’s. originating
Most of what we have said of documents from Gene Screen is also true of the other documents in the Medical Many Examiner’s file that were admitted into evidence. of them reflect the work of technicians in the Medical Examiner’s office. Although receiving the authors of these did, documents after the notification from the Division of Services, Criminal Justice suspect, directly know that defendant was a their do not link testifying defendant to the crime. It was left to witness, Keblish, to draw the inference from the evidence that defen profile rape dant’s DNA matched those obtained from the kit. itself, notification in which the Division of Criminal Justice Services informed the Medical Examiner’s office of the part match, was also of the Medical Examiner’s file. This docu- presents apart any ment a different issue. Even from problem, the document was not admissible as a business record prove proof the truth of the it matter stated: there was no preparer ordinary that the of that document did so course Also, of business. because the document comes close to a direct clearly accusation that defendant crime, committed the it is less hearsay nontestimonial than the other documents at issue. But any we need not consider this further, issue because error in admitting beyond the document for its truth was harmless reasonable doubt. The relied on Keblish’s prove match, and evidence that the same match had earlier been identified insignificant. and, Division was cumulative in context, remaining Defendant’s contentions are without merit.
IV Accordingly, Appellate in each case the order of the Division *22 should be affirmed. (concurring). J. I would hold that the forensic Read, appeals issue these are not testimonial statements within [2004]). meaning Washington the of v US 36 Crawford putative up sample
Rawlins, the matched declarant a faceless of physical print—with evidence from the crime scene—a latent fingerprint putative defendant’s card; Meekins, the declar- analyzed samples complainant’s rape ants taken from the kit to profile. report the the evils resembles create a DNA Neither they former are not Confrontation Clause addresses: interrogation; police product within do not fall or the “involve[ parte ], in Both the mode ex examination. civil-law reporting contemporaneous principal part, of a a careful steps are “in the nature found,” facts which series taken and (United 121, F3d Cruz, States v De La of a business record” [“(B)usiness expressly 2008] [1st excluded are Cir records Feliz, United v from see also States Crawford”]; the reach properly [2d 2006] [statements admit- 227, Cir 467 F3d 233-234 records ted the Federal Rules of Evidence business under record is fundamen- “cannot be testimonial because business suggested tally Supreme Court what has inconsistent with comprise defining evidence”]; testimonial characteristics of Pacer, 6 NY3d [2006] [remarking that “(t)he records not have court concluded that business would been considered testimonial at the time Confrontation adopted,” prosecution’s argument rejecting Clause was but public particular the record]). to a or affidavit at issue was akin business by majority do not Further, distinctions advanced explain why fingerprint comparison in Rawlins was profile As an testimonial, but in Meekins not. the DNA report matter, forensic was made “to nail down initial neither past (majority quot- op the truth about criminal events” [2006]). ing Washington, US The Davis v comparison juxtaposed fingerprint detective who conducted whorls) (i.e., ridge loops, fingerprint patterns or arches print report candidate characteristics the latent with from by fingerprints computer a statewide identified search of documenting he a match database, his when found conclusions they might rejected examiner so that be verified or another documenting steps supervisor. taken technicians The doing profile so to allow the DNA were likewise create verify subsequent forensic work. Neither reviewers to their present past report says anything crime; both describe about testing procedures. The fact events—the results of standardized against to build a case documents can be used these descriptions past them does turn into defendants for crimes past events. fingerprint comparison majority suggests that the also profile because the the DNA was not was testimonial but objective, testing highly like scientific “salient characteristic of *23 analysis inherently DNA is that the results are not biased to- inculpating exculpate. ward inescapable corollary the defendant; can also police prosecutorial
is that or involvement unlikely any impact (majority to have on the test’s results” 153). op fingerprint comparisons (although arguably But “highly analysis) may exculpate. scientific” as DNA also majority suggest Moreover, does the mean to that if the fingerprint comparison private had contracted out the to a labo- (thus ratory eliminating police prosecutorial involvement), resulting report forensic would have been nontestimonial? Finally, majority fingerprint comparison finds the in Raw- nothing lins “could be but testimonial” because it was “inher- ently accusatory prove and offered to an essential element of charged” (majority op the crimes But the same could be McCottry’s said Supreme statements in Davis, which the only Court concluded were nontestimonial. Her statements not provided identity, evidence of defendant’s but of other elements charged. of the crime The determinative factor was not the ac- cusatory helped nature of what she said or whether it to estab- (after guilt lish defendant’s all, if it not, had would it), not have offered but whether the statements resembled ex parte examinations. Judge Judges Chief Kaye Smith Ciparick, Graffeo, Judge Judge Pigott concur with Read concurs in result Jones; separate opinion.
in a In each case: Order affirmed.