A convicted burglar’s constitutional right to confront witnesses was not violated by a criminalist who testified at trial about DNA tests performed by other analysts, a Manhattan appeals court ruled on Tuesday.
The ruling in People v. Rodriguez, 5471/09, centered on whether defendant William Rodriguez’s rights were violated when prosecutors introduced DNA-testing lab reports linking him to the crime. Melissa Huyck of the New York City Office of Chief Medical Examiner testified about the reports but was not among the analysts who performed, witnessed or supervised the testing.
A 3-2 panel of the Appellate Division, First Department, found that Rodriguez’s Sixth Amendment rights were not stripped by his inability to confront the testing analysts themselves.
Huyck “conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely ‘functioning as a conduit for the conclusions of others,’” said Justice Marcy Kahn, quoting People v. John, a 2016 Court of Appeals decision that was dissected by the split panel.
Rodriguez was convicted by a jury of second-degree burglary in 2014 and sentenced by Manhattan Supreme Court Justice Richard Carruthers to 20 years to life in prison as a persistent violent felony offender.
Rodriguez previously had pleaded guilty to multiple counts of first-degree burglary, first-degree robbery, second-degree robbery, second-degree kidnapping and endangering the welfare of a child. Carruthers sentenced him to a concurrent aggregate term of 25 years to life.
The confrontation clause portion of Rodriguez’s appeal applied only to the second-degree burglary conviction, which he asked to vacate.
Kahn, joined by Justices Peter Tom and Barbara Kapnick, said Rodriguez’s confrontation claim was unpreserved and “we decline to review it in the interest of justice.” But they also said that “as an alternative holding, we reject it,” and added that “we find that an extended discussion of the merits is warranted.”
In the majority’s view, the defense’s cross-examination of Huyck satisfied Rodriguez’s confrontation clause rights.
Moreover, Kahn said dissenting Justices Rolando Acosta and Ellen Gesmer’s took an “impracticable and unwieldy” view, that did not comport with John, by contending that defendants such as Rodriguez should be able to examine a DNA “analyst who actually did the testing.”
This “would impose further restrictions on such evidence far beyond those contemplated by … John, requiring the testimony of any laboratory analyst anywhere in the country who had at any time developed and transmitted a DNA profile to CODIS [Combined DNA Index System] for matching purposes,” Kahn wrote.
Quoting John, she added that, “Rather, the standard could be met if ‘an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, [were] available to testify.’”
Any conclusions or opinions Huyck reached from the raw data were her own, Kahn said, “and were not merely conclusions of others with whom she agreed.”
But Acosta, in the dissent, called the majority’s lengthy analysis “a transparent attempt to circumvent the controlling Court of Appeals decision,” and added that “my colleagues … appear bent on doing an end run around John.”
He pointed out that Huyck was the “testifying criminologist” in John, just as she was in the Rodriguez trial, and called the two cases “virtually indistinguishable.”
“Huyck admitted in her testimony here that she did not conduct the DNA analysis, and merely assumed that it was done properly,” Acosta wrote. “More importantly, the majority concedes that the third DNA report admitted into evidence, which compared Male Donor A’s DNA with defendant’s DNA and thus secured a conviction in this case, is testimonial in nature.”
Acosta found this “particularly troubling, because defendant was convicted of burglary in the second degree and sentenced to 20 years to life in a case where the only evidence linking him to the burglarized apartment was DNA evidence found on a pair of wire cutters.”
As in John, Acosta said, Huyck “did not do any of the testing herself, and candidly admitted that she assumed it was done properly. … She had no way of knowing except by blind faith that her colleagues, who actually tested the DNA evidence but did not testify at trial, followed the established protocol.”
He said John “specifically rejected this approach as surrogate testimony that violates a defendant’s constitutional right to confrontation.”
Anita Aboagye-Agyeman, a staff attorney for The Legal Aid Society’s criminal appeals bureau, represented Rodriguez.
“We agree with Judge Acosta’s dissent that the OCME criminologist’s testimony violated the confrontation clause, and we are exploring Mr. Rodriguez’s options for further appeal,” she said in a statement.
Assistant district attorneys Sheila Bautista and Patrick Hynes represented the Manhattan District Attorney’s Office, which declined to comment on the ruling.