Opinion
2014-08-27
The PEOPLE, etc., respondent, v. Adolpho GONZALEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Roni C. Piplani of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered June 13, 2011, convicting him of robbery in the first degree (four counts), assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The People correctly concede that the defendant's rights under the Confrontation Clause ( seeU.S. Const. 6th Amend.) were violated when the Supreme Court admitted a nontestifying DNA analyst's report directly linking the defendant to a firearm recovered from a codefendant's residence ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177; People v. Brown, 13 N.Y.3d 332, 338, 890 N.Y.S.2d 415, 918 N.E.2d 927; People v. Rawlins, 10 N.Y.3d 136, 146, 855 N.Y.S.2d 20, 884 N.E.2d 1019; People v. Oliver, 92 A.D.3d 900, 901–902, 938 N.Y.S.2d 619; People v. Morrison, 90 A.D.3d 1554, 1556–1557, 935 N.Y.S.2d 234).
“Confrontation Clause violations are subject to a constitutional harmless error analysis” (People v. Hardy, 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953; see People v. Douglas, 4 N.Y.3d 777, 779, 793 N.Y.S.2d 825, 826 N.E.2d 796; People v. Eastman, 85 N.Y.2d 265, 276, 624 N.Y.S.2d 83, 648 N.E.2d 459; People v. Crimmins, 36 N.Y.2d 230, 240–241, 367 N.Y.S.2d 213, 326 N.E.2d 787). “Constitutional error requires reversal unless the error's impact was ‘harmless beyond a reasonable doubt’ ” (People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953, quoting People v. Eastman, 85 N.Y.2d at 276, 624 N.Y.S.2d 83, 648 N.E.2d 459; see Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340). This determination is based on a review of the “ ‘entire record’ ” (People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953, quoting People v. Eastman, 85 N.Y.2d at 276, 624 N.Y.S.2d 83, 648 N.E.2d 459).
Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the firearm in question. Specifically, the nontestifying analyst's supervisor explained how she herself analyzed the raw data from the defendant's buccal swab and swabs taken from the firearm, and drew her own conclusions. Thus, because the erroneously admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst ( see People v. Rawlins, 10 N.Y.3d at 157, 855 N.Y.S.2d 20, 884 N.E.2d 1019; People v. Hortiz, 60 A.D.3d 692, 693, 874 N.Y.S.2d 554), the error was harmless beyond a reasonable doubt ( cf. People v. Hardy, 4 N.Y.3d at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953). RIVERA, J.P., HALL, SGROI and MALTESE, JJ., concur.