This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 97
The People &c.,
            Respondent,
        v.
Peter Austin,
            Appellant.




          Mark W. Zeno, for appellant.
          Matthew White, for respondent.




DiFIORE, Chief Judge:
          The issue presented by this appeal is whether
defendant's Sixth Amendment right to confrontation was violated
by the introduction of DNA evidence through the testimony of a
witness who had not performed, witnessed or supervised the
generation of the DNA profiles.   We conclude that the


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introduction of this hearsay evidence through surrogate testimony
in order to prove an essential fact for a finding of guilt --
that defendant was the perpetrator of the burglaries at issue --
violated defendant's right to confront the witnesses against him.
            Defendant was charged with three burglaries and several
related offenses in connection with two separate incidents.     In
the June 2009 incident, defendant was alleged to have broken into
a building that contained several stores connected through a
common basement.   He gained access through a rear door after the
stores were closed, and unlawfully entered both a vacant office
and a dry cleaning establishment inside the building.   The dry
cleaner had surveillance cameras that captured the incident and a
copy of the surveillance video was played for the jury at trial.
In addition, the police took swabs from streaks of blood that
were observed on the building's outside rear door.   Those swabs
were vouchered and sent to the Office of the Chief Medical
Examiner (OCME) for DNA blood analysis.   After testing, which
produced a DNA profile, the swabs were transferred to the New
York Police Department's Kingsland Avenue facility for storage.
            The second incident was a burglary that took place at a
Classic Bed and Bath store in September 2009.   The back door had
been forced open after business hours and money and merchandise
were taken.   The police found a bloody receipt near the cash
register.   This receipt was likewise tested for DNA evidence by
OCME.   The testing produced a DNA profile, and the physical


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evidence was then transferred to Kingsland for storage.    There
was no video surveillance of this incident.
          The numerical identifiers constituting the DNA profile
generated from the biological evidence obtained at the scene of
the June 2009 burglaries were uploaded by computer to CODIS (the
Combined DNA Index System) and, on August 27, 2009, OCME was
notified that there was a match between the DNA from the crime
scene evidence and defendant's numerical DNA profile, which was
stored in the state database.   In October 2009, the numerical
identifiers constituting the DNA profile developed from the
biological evidence from the September 2009 burglary were also
linked to the DNA profile from the June 2009 burglaries.      As a
result, the police issued an investigative card alerting police
that the detectives in this investigation wanted to speak with
defendant in the event of an arrest.    Defendant was later
arrested in April 2010 and indicted.
          As the People explained at trial, they opted not to
introduce evidence of the "cold hit" from CODIS.    Rather, "[t]o
make things easier for the trial[, the People] had the defendant
re-swabbed and retested by the DNA lab so that . . . we'd only
have to call the one person from the downstate DNA lab and not
have to deal with somebody in Albany."    Upon a pretrial court
order, and defendant's consent, a buccal swab was collected from
defendant in July 2012.   The numerical identifiers from the DNA
profile generated by OCME from that sample were compared to the


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numerical identifiers from the DNA profiles generated from the
evidence from the three 2009 burglaries.    The strings of numbers
for the profiles were found to match on October 23, 2012 -- just
prior to defendant's trial.
          The People's only forensic witness at trial on the DNA
evidence was an OCME Criminalist level III.    As the trial
progressed, it became clear through a series of discussions that
the basis for the criminalist's testimony was going to be his
comparison of the strings of numbers derived from the DNA test
results generated by other analysts -- the 2009 DNA test results
and defendant's 2012 exemplar.    Defense counsel raised various
objections throughout the course of the parties' discussions
about the DNA evidence, including that the criminalist's
testimony would violate Melendez-Diaz v Massachusetts (557 US 305
[2009]) because the People were trying to elicit testimony "from
a witness that was not going to be called" and that the testimony
was hearsay because it was "about what someone else did."     On
occasion, counsel's attempts to expound upon his objections,
including his Confrontation Clause argument, were frustrated by
the court.
          Defense counsel's objections did have some measure of
success, however.   To be sure, none of the laboratory reports
including the actual numerical identifiers of the DNA profiles
generated, or physical evidence of the DNA was ultimately
admitted into evidence.   Nonetheless, the criminalist was


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permitted to testify in a general and conclusory manner to the
DNA evidence without personal knowledge of many matters he
asserted to be true -- including the DNA profile generated from
defendant's post-accusatory 2012 buccal swab.
          Indeed, the criminalist was permitted to testify, over
defendant's repeated hearsay objections, and without having
conducted, witnessed or supervised the generation of the DNA
profiles, that the DNA profile generated from defendant's buccal
swab was a match to the DNA profile generated from evidence found
at the 2009 crime scenes.   Specifically, the criminalist
testified that he received the voucher containing defendant's
2012 buccal swab and that the accompanying examination notes both
identified defendant by name and included the evidence unit
number.   When the prosecutor asked whether he had "analyze[d] the
DNA profile in this particular case," the criminalist responded
that he "reviewed the DNA profile."    In response to the
prosecutor's request for clarification as to what his review of
the DNA profile entailed, the criminalist responded that he
"looked at the DNA profile, the string of numbers, which is the
DNA profile and compared it to [the profiles generated from the
2009 burglaries].   And I compared them to male donor A from each
of those cases and I found that they were the same DNA profile."
          Despite the fact that the laboratory reports containing
the generation of the DNA profiles by nontestifying witnesses
were not in evidence, the criminalist was permitted to read from


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those files on the stand.   The quality of his direct testimony
was such that the court asked the prosecutor: "How come
everything that [the witness] said that actually happened in this
case he had to read from something that is not in evidence?"     The
court further stated that it did not "understand what it is that
he did, and how he did it, or for that matter whether he did
anything."
           In contrast to the prosecutor's initial assertion that
the criminalist was "the supervisor on the original test," the
witness admitted on cross-examination that he neither performed,
nor was present for, any of the testing on the September 2009
samples.   Moreover, although his name appears on some of the
laboratory reports, which again were not in evidence, in
connection with the June 2009 samples, he testified that he did
not perform the laboratory testing on those samples.   Tellingly,
during the criminalist's redirect testimony, when the prosecutor
sought to question him about a document not in evidence, the
court told the attorneys that "[y]ou guys have basically made
this witness into a parrot.   He doesn't know anything.   He didn't
do anything, but you use him to put in all of this other
information, just as if I [sic] actually had knowledge of it."
           During the trial, the parties discovered that the
physical evidence that had been stored in the Kingsland facility
had been rendered unavailable due to conditions caused by
Hurricane Sandy.   Specifically, the facility could not be


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accessed because it had been flooded with water that was
contaminated by a nearby Superfund location.    The court denied
defendant's request for an adverse inference charge based on the
People's failure to preserve this evidence.    Notably, however,
the absence of physical evidence at the trial was not limited to
the effects of the hurricane.   Defendant's own 2012 exemplar,
which was available at the trial, was not entered into evidence
on defendant's objection, due to the People's failure to
establish the necessary foundation for admission into evidence.
          At the close of the People's case, defendant moved to
dismiss the indictment, arguing that they had failed to establish
a prima facie case given that there was "not one piece of DNA
evidence actually in evidence."   The court denied the motion as
to the June 2009 burglaries, noting that there was surveillance
video from the dry cleaner.   However, the court reserved decision
on the motion as it related to the September 2009 burglary, after
observing both the criminalist's "questionable validity or status
as a witness" and the fact that "there's really nothing that ties
this defendant to the bath store other than the alleged DNA."
The court described the criminalist's testimony by saying that
"[a]pparently, all he did was to review what other people did."
          The jury found defendant guilty of two counts of
burglary in the third degree and criminal mischief in the fourth
degree relating to the June 2009 burglaries.    The jury acquitted
him of the counts relating to the September 2009 burglary.    The


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Appellate Division affirmed, with one Justice dissenting (134
AD3d 559 [1st Dept 2015]).   The dissenting Justice granted
defendant's application for leave to appeal to this Court, and we
now reverse.
           Defendant on appeal limits his Confrontation Clause
challenge to the OCME witness's testimony concerning the DNA
profile created from his 2012 post-accusatory buccal swab and the
comparison between that profile and the DNA profiles generated
from the 2009 burglaries.    He maintains that this postindictment
evidence is testimonial, as it was created for the primary
purpose of identifying him as the perpetrator of the burglaries,
and that the testimony as to this evidence was inadmissible
hearsay.   We agree.
           The Confrontation Clause generally prohibits the
admission of testimonial statements made by a nontestifying
witness against defendant at trial, unless the witness is
unavailable and defendant "'had a prior opportunity for cross-
examination'" (People v Pealer, 20 NY3d 447, 453 [2013], quoting
Crawford v Washington, 541 US 36, 53-54 [2004]).   Under the
primary purpose test for determining whether evidence is
testimonial, we have considered "'whether the statement was
prepared in a manner resembling ex parte examination and . . .
whether the statement accuses defendant of criminal wrongdoing'"
(Pealer, 20 NY3d at 453, quoting People v Rawlins, 10 NY3d 136,
156 [2008]).


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           The criminalist's hearsay testimony as to the 2012 DNA
profile easily satisfies the primary purpose test.      Our analysis
has been different in cases where defendant was linked to the DNA
from the crime scene from a cold hit before he was ever a suspect
in the crime (see e.g. People v Brown, 13 NY3d 332, 340 [2009]).
However, here, the People elected not to use the evidence of the
pre-accusatory CODIS match because they wanted to avoid bringing
a witness in from Albany to testify.      Instead, the People relied
solely on the evidence of the DNA profile generated from
defendant's 2012 buccal swab, which was developed during the
course of a pending criminal action and was created in order to
prove his guilt at trial (see People v John, 27 NY3d 294, 308
[2016]).   Stated differently, the buccal swab was obtained and
the resulting profile was compared with the DNA profile generated
from the 2009 burglaries, "with the primary (truly, the sole)
purpose of proving a particular fact in a criminal proceeding --
that defendant . . . committed the crime for which he was
charged" (27 NY3d at 307-308).
           Thus, in order to satisfy the Confrontation Clause,
defendant was entitled to cross-examine the analyst who either
"performed, witnessed or supervised the generation of the
critical numerical DNA profile" or who "used his or her
independent analysis on the raw data" to arrive at his or her own
conclusions (27 NY3d at 314, 315).       As we recently held, "it is
the generated numerical identifiers and the calling of the


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alleles at the final stage of the DNA typing that effectively
accuses defendant of his role in the crime charged" (27 NY3d at
313).    The trial transcript plainly establishes that the
criminalist had no such role here.      Although the criminalist may
have had some level of involvement in OCME's handling of some of
the 2009 crime scene swabs, he had no role whatsoever in the
testing of defendant's post-accusatory buccal swab.     His
testimony was, therefore, merely "a conduit for the conclusions
of others" (27 NY3d at 315).
            On the whole, the criminalist's testimony was nothing
more than a parroting of hearsay statements, made by other
analysts and of which he had no personal knowledge.     There is no
question that his testimony as to the findings and conclusions of
the nontestifying witnesses was elicited in order to prove the
truth of those extrajudicial assertions -- primarily, identifying
defendant as the burglar.*   The People's claim that the facts
presented here are meaningfully different from those presented in
John because the laboratory reports that, alone, contained the
numerical identifiers of the DNA profiles were not introduced


     *
       The concurrence, relying on the plurality opinion in
Williams v Illinois (567 US 50 [2012]), attaches great
significance to the "cold hit" -- which was not a matter in
evidence -- arguing that it could have been used to link
defendant to the crime scene. As it was not in evidence, the
characterization of the DNA profile generated from the 2012
buccal swab as merely "confirmatory" is erroneous. Here, the
People relied upon the 2012 post-accusatory DNA result generated
by nontestifying analysts, for the primary purpose of
establishing defendant's guilt at trial.

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into evidence is meritless.   Indeed, this case is extraordinary
given the dearth of DNA evidence presented at trial in any
admissible form.   Moreover, the People failed to proffer any
exception to the hearsay rule under New York law that would have
allowed the criminalist to relay the content of the unadmitted
laboratory reports (see People v Nieves, 67 NY2d 125, 131
[1986]).   For instance, there was no argument that the
criminalist's hearsay testimony concerning the 2009 DNA profiles
was offered not for its truth, but for the limited purpose of
explaining how the criminalist reached his expert conclusion that
the identical strings of numbers were obviously the same (see
People v Goldstein, 6 NY3d 119, 127 [2005]).   As we explained in
John, such expert opinion testimony of a comparison of numbers
would likely be inadmissible in New York without establishing a
proper foundation -- i.e., that defendant's DNA profile was
obtained from the scene of the burglary and that the numerical
profile was reliable and accurate in the first instance (27 NY3d
at 306).
           The error was not harmless, as the evidence of
defendant's guilt without the DNA evidence was not overwhelming
and there is a reasonable possibility that the error might have
contributed to the verdict (see People v Crimmins, 36 NY2d 230,
237 [1975]).   In light of our holding, we do not address
defendant's adverse inference argument.
           Accordingly, the order of the Appellate Division should


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be reversed and a new trial ordered.




                             - 12 -
People v Peter Austin
No. 97




GARCIA, J.(concurring):
           On constraint of People v John (27 NY3d 294 [2016]), I
agree with the majority that defendant's conviction must be
reversed, and a new trial granted.     Although the Supreme Court
has declined to take this approach with respect to DNA evidence
under the Confrontation Clause, this Court has made the "leap"
(id. at 316 [Garcia, J., dissenting], citing Williams v Illinois,
567 US 50 [2012]), and the outcome here is an unfortunate but
unavoidable result.
           In Williams v Illinois, a plurality of the Supreme
Court concluded that, where the reports relied on by the DNA
expert were not admitted into evidence, the expert's testimony
did not violate the Confrontation Clause, as "that provision has
no application to out-of-court statements that are not offered to
prove the truth of the matter asserted" (567 US 50, 57-58
[2012]).   Similarly, here, the DNA expert from the Office of the
Medical Examiner (OCME) testified based on the content of
laboratory reports, which were not admitted into evidence.     But
unlike the plurality in Williams, we hold today that this expert
testimony violated the Confrontation Clause.
           I agree with the majority that reversal is required by


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our holding in John.   There, the Court considered whether the
defendant's rights were violated where the People introduced DNA
reports without producing a witness who conducted or witnessed
the laboratory's generation of the DNA profiles (John, 27 NY3d at
297).   Distinguishing Williams, the Court in John reasoned that,
unlike in Williams, the DNA laboratory reports were entered into
evidence, thereby creating a Confrontation Clause violation.     But
the Court's holding went further, concluding that a defendant is
entitled to confront at least one of the DNA analysts who
performed a step on one of the samples, thereby prohibiting a
testifying expert from relying on a report generated by others
(majority op at 9-10; see also John, 27 NY3d at 313; People v
Goldstein, 6 NY3d 119 [2005]).    Accordingly, while the procedure
used here -- an expert relying on work performed by others but
not admitted into evidence -- mirrors the facts of Williams, our
holding in John compels a different result.
           The plurality in Williams alternatively held that, even
if the laboratory report had been admitted into evidence, there
would be no Confrontation Clause violation, in part because
"[t]he report was sought not for the purpose of obtaining
evidence to be used against [the defendant], who was not even
under suspicion at the time, but for the purpose of finding a
rapist who was on the loose" (567 US at 58).   As we noted in
John, the profiles in Williams "were generated from rape kits by
private laboratories when the suspect was unknown and the


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defendant was later identified on a 'cold hit' from the CODIS
database" (27 NY3d at 310).
           The match in the instant case was, as in Williams, a
classic "cold hit."   Specifically, police recovered DNA from the
first crime scene which, when run through the CODIS database,
matched defendant's DNA profile (developed as a result of an
earlier arrest on unrelated charges).   DNA from the second crime
scene was then linked to the DNA profile from the first crime
scene.   Accordingly, as in Williams, the original DNA profile
that matched the crime scene evidence was created not with
defendant in mind, but rather to ascertain who had committed the
burglaries (see Williams, 567 US at 77 ["Without access to any
other sample of petitioner's DNA (and recall that petitioner was
not even under suspicion at this time), how could a dishonest lab
technician have substituted petitioner's DNA profile?"]).    Though
the original CODIS match was not used at trial -- defendant
objected to its admission -- a confirmatory sample of defendant's
DNA profile, obtained by the People, was introduced.1


     1
       The majority asserts that "the People elected not to use
the evidence of a CODIS match because they wanted to avoid
bringing a witness in from Albany to testify" (majority op at 9).
But defense counsel's on-the-record objection reveals the true
reason behind the People's use of a confirmatory sample: defense
counsel believed that, if the CODIS match was introduced, "the
jury would infer . . . that [defendant] had a prior criminal
history." Defendant therefore "submit[ted] to the DNA swab" in
order to "avoid bringing up the fact that he had a prior
conviction" and any accompanying "inference that he has a
propensity to commit crimes."


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          Despite the resemblance to Williams, John again compels
a different result.   In John, the Court rejected the defendant's
argument that the DNA match was analogous to the "cold hit" in
Williams (27 NY3d at 310 [also distinguishing, on this basis,
People v Meekins, 10 NY3d 136 (2008) and People v Brown, 13 NY3d
332 (2009)]; see also id. at 329-330 [Garcia, J, dissenting]).
And again, the majority here indicates that the result might be
"different" in the case of a "cold hit," where the defendant "was
linked to the DNA from the crime scene . . . before he was ever a
suspect in the crime" (majority op at 9).    But the confirmatory
match in this case was a perfunctory measure, performed solely to
replicate an earlier cold hit.    Indeed, the People could have
introduced the CODIS cold hit, but -- in light of defendant's
objection -- opted to obtain the confirmatory sample.    As we inch
closer to a cold hit, the reach of John's holding casts
increasing doubt on whether the majority's "cold hit" distinction
survives (see People v John, 27 NY3d at 329 [Garcia, J.,
dissenting]).
          The path we are on has "no logical stopping place"
(Williams, 567 US at 89   [Breyer, J., concurring]).   Today we
reverse a conviction, obtained prior to John, presenting
circumstances much like those in Williams: (1) the OCME expert
relied on reports not admitted into evidence, and (2) the match
at issue was merely confirmatory, performed after a "cold hit"




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already identified defendant.   Unless and until the Supreme Court
provides much-needed clarity on whether DNA reports "lie outside
the perimeter of the [Confrontation] Clause" (see Williams, 567
US at 99 [Breyer, J., concurring]), we have no choice but to
continue.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order reversed and a new trial ordered. Opinion by Chief Judge
DiFiore. Judges Rivera, Stein, Fahey, Wilson and Feinman concur.
Judge Garcia concurs in result in a separate concurring opinion.

Decided October 19, 2017




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