People v Vargas

People v Vargas 2012 NY Slip Op 06743 Decided on October 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012
Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.
8227 1522/09

[*1]The People of the State of New York, Respondent,

v

Luis Vargas, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Risa Gerson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J.
Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 26, 2010, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that made reference to data gathered by nontestifying technicians (see People v Brown, 13 NY3d 332 [2009]). Williams v Illinois (US, 132 S Ct 2221, 2242-2244 [2012]) provides further support for the proposition that the DNA evidence in this case did not violate the Confrontation Clause.

The court erred in ruling that class sign-in sheets from the program defendant was enrolled in on the date of the crime were admissible under the business records exception to the hearsay rule. The evidence did not establish that these records were kept "regularly, systematically [and] routinely" (People v Kennedy, 68 NY2d 569, 579 [1986]), or that if kept in the regular course of business, they were "needed and relied on in the performance of the functions of the business" (People v Cratsley, 86 NY2d 81, 89 [1995]). There was no other basis for admissibility. However, the error was harmless in light of the overwhelming evidence of defendant's guilt, including the DNA match (see People v Crimmins, 36 NY2d 230 [1975]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012 [*2]

CLERK