        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1374
KA 09-00310
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM MORRISON, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ROBERT R. REITTINGER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROSEANN B. MACKECHNIE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered April 18, 2007. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, sexual
abuse in the first degree and endangering the welfare of a vulnerable
elderly person, or an incompetent or physically disabled person in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of rape in the first degree (Penal Law § 130.35
[1]), sexual abuse in the first degree (§ 130.65 [1]), and endangering
the welfare of a vulnerable elderly person, or an incompetent or
physically disabled person in the second degree (§ 260.32 [4]),
stemming from charges that he raped a 90-year-old resident of a
residential health care facility where he worked as a certified
nurse’s aide. An investigator with the Medicaid Fraud Control Unit
interviewed defendant approximately two weeks after the rape and made
a written report of that interview, but that report was not turned
over to defense counsel until after the investigator testified at
trial. County Court denied defendant’s motion for a mistrial but
struck the testimony of the investigator, and the court directed that
he testify again, precluding the People from questioning the
investigator about that interview.

     On appeal, defendant contends that the People’s delayed
disclosure of the report constituted a Brady violation, a violation of
CPL 240.20 (1) (a), and a Rosario violation, and that a mistrial was
warranted. We reject defendant’s contention that the People’s delayed
disclosure constituted a Brady violation. “To establish a Brady
violation, a defendant must show that (1) the evidence is favorable to
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                                                         KA 09-00310

the defendant because it is either exculpatory or impeaching in
nature; (2) the evidence was suppressed by the prosecution; and (3)
prejudice arose because the suppressed evidence was material” (People
v Fuentes, 12 NY3d 259, 263, rearg denied 13 NY3d 766; see Strickler v
Greene, 527 US 263, 281-282). Evidence cannot be said to have been
suppressed by the prosecution “where the defendant ‘knew of, or should
reasonably have known of, the evidence and its exculpatory nature’ ”
(People v LaValle, 3 NY3d 88, 110). Here, there is no question that
defendant knew what statements he made to the investigator during the
interview, and thus possession of the investigator’s report “would not
have revealed any essential information that the defense did not
already know” (id.). Moreover, “a defendant’s constitutional right to
a fair trial is not violated when, as here, he is given a meaningful
opportunity to use the allegedly exculpatory material to cross-examine
the People’s witnesses or as evidence during his case” (People v
Cortijo, 70 NY2d 868, 870; see People v Comfort, 60 AD3d 1298, 1300,
lv denied 12 NY3d 924; People v Barney, 295 AD2d 1001, 1002, lv denied
98 NY2d 766).

     We agree with defendant that, based on their delay in disclosing
the report, the People violated CPL 240.20 (1) (a) and committed a
Rosario violation (see CPL 240.45 [1] [a]). Nevertheless, reversal is
not warranted based on those violations because defendant failed to
establish that he was substantially prejudiced by the delay in
obtaining the report (see People v Benton, 87 AD3d 1304, 1305; People
v Sweney, 55 AD3d 1350, 1351-1352, lv denied 11 NY3d 901; People v
Gardner, 26 AD3d 741, lv denied 6 NY3d 848). Rather, we conclude that
the court did not abuse its discretion by denying defendant’s motion
for a mistrial (see People v Lluveres, 15 AD3d 848, 849, lv denied 5
NY3d 807), and by instead providing “suitable alternative relief”
(People v Lewis, 37 AD3d 176, 177, lv denied 9 NY3d 846, 847; see CPL
240.70 [1]).

     Defendant further contends that the admission in evidence of a
certified DNA report prepared by an analyst who did not testify at
trial and the testimony of an analyst who testified at trial regarding
that report violated his rights under the Confrontation Clause of the
US Constitution Sixth Amendment (see generally Crawford v Washington,
541 US 36, 50-54). We agree. “The Sixth Amendment to the United
States Constitution guarantees a defendant the right to be ‘confronted
with the witnesses against him [or her]’ ” (People v Brown, 13 NY3d
332, 338). “This provision bars ‘admission of testimonial statements
of a witness who did not appear at trial unless he [or she] was
unavailable to testify, and the defendant . . . had a prior
opportunity for cross-examination’ ” (id., quoting Crawford, 541 US at
53-54). We must therefore determine whether the statements were
“testimonial,” because only testimonial statements are subject to the
Confrontation Clause (see Davis v Washington, 547 US 813, 821).

     In Brown (13 NY3d at 336), the report in question contained
machine-generated raw data, graphs and charts of a male specimen’s DNA
characteristics that were isolated from a rape kit. The Court of
Appeals held that the report was not testimonial inasmuch as there
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                                                         KA 09-00310

were “no conclusions, interpretations, or comparisons apparent in the
report” (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv
denied 15 NY3d 757). The forensic biologist who conducted the actual
analysis that linked the defendant’s DNA profile to the profile in the
victim’s rape kit was in fact called by the People as a witness in
Brown (id. at 340). That was not the case here, where the analyst who
performed the tests and concluded that the DNA mixture profile from
the vaginal swab sample was consistent with DNA from the victim mixed
with DNA from defendant was never called to testify. Contrary to the
People’s contention, the analyst who was called to testify, i.e., the
supervisor of the other analyst, did not perform her own independent
review and analysis of the DNA data. Rather, her testimony makes
clear that she had nothing to do with the analysis performed by the
uncalled witness, and that her only involvement was simply reading the
report after it was completed to ensure that the uncalled witness
followed proper procedure. The People could not substitute her
testimony for that of the actual analyst who performed the tests in
order to avoid a violation of the Confrontation Clause (see Bullcoming
v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).

     We agree with the People, however, that the error is harmless.
“Trial errors resulting in violation of a criminal defendant’s Sixth
Amendment right to confrontation ‘are considered harmless when, in
light of the totality of the evidence, there is no reasonable
possibility that the error affected the jury’s verdict’ ” (People v
Porco, 17 NY3d 877, 878). A forensic scientist testified at trial
that the vaginal smear slide she examined was “sperm positive,” thus
establishing that someone had intercourse with the victim. The DNA
evidence established that it was defendant who had intercourse with
the victim, but his identity was not in issue inasmuch as he confessed
to having intercourse with her. We thus conclude that there is no
reasonable possibility that the error in admitting the DNA testimony
affected the jury’s verdict (see id.). We further conclude that any
error in allowing certain hearsay testimony of the victim is likewise
harmless (see generally People v Crimmins, 36 NY2d 230, 241-242).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
