Opinion
02-10-2016
The PEOPLE, etc., respondent, v. Rami ABUZIYAD, appellant.
Seymour W. James, Jr., New York, N.Y. (Shane Tela of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Davis Polk & Wardwell LLP [Gerald M. Moody, Jr. ], of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Shane Tela of counsel), for appellant.Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Davis Polk & Wardwell LLP [Gerald M. Moody, Jr. ], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered November 15, 2012, convicting him of criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) is only partially preserved for appellate review (see People v. Mantock, 117 A.D.3d 753, 754, 984 N.Y.S.2d 613 ; People v. McClain, 61 A.D.3d 703, 704, 876 N.Y.S.2d 495 ) and, in any event, is without merit.
The defendant failed to preserve for appellate review his contention that his right to confrontation (see U.S. Const. Sixth Amend.) was violated when two DNA profile reports and a DNA comparison chart generated by the Office of the Chief Medical Examiner of the City of New York (hereinafter the OCME) were admitted into evidence through the testimony of a DNA analyst employed by the OCME. In any event, the defendant's contention is without merit. The two DNA profile reports were not "testimonial" in nature (Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 ) because they consisted of "merely raw data that, standing alone, did not link the defendant to the crime" (People v. Pitre, 108 A.D.3d 643, 644, 968 N.Y.S.2d 585 ; see People v. Thompson, 70 A.D.3d 866, 866–867, 895 N.Y.S.2d 148 ; People v. Dail, 69 A.D.3d 873, 875, 894 N.Y.S.2d 78 ). Accordingly, the admission of these DNA profile reports through the testimony of an OCME analyst did not violate the defendant's right to confrontation (see People v. Pitre, 108 A.D.3d at 644, 968 N.Y.S.2d 585 ; People v. Thompson, 70 A.D.3d at 866–867, 895 N.Y.S.2d 148 ). Moreover, the defendant's right to confrontation also was not violated by the admission of the DNA comparison chart. While the chart directly linked the defendant to DNA evidence recovered at the crime scene, the OCME analyst who created the DNA profiles contained in the chart testified and was subject to cross-examination at trial (see People v. Brown, 13 N.Y.3d 332, 340, 890 N.Y.S.2d 415, 918 N.E.2d 927 ).
Finally, defense counsel's failure to object to the admission of the DNA profile reports and DNA comparison chart did not constitute ineffective assistance of counsel (see People v. Hampton, 81 A.D.3d 974, 975, 917 N.Y.S.2d 579 ).
RIVERA, J.P., BALKIN, ROMAN and SGROI, JJ., concur.