People v Hernandez

[*1] People v Hernandez 2018 NY Slip Op 28397 Decided on December 14, 2018 Criminal Court Of The City Of New York, Bronx County Hornstein, J. 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 printed Official Reports.

Decided on December 14, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Mynor Rolando Quintanilla Hernandez, Defendant.



2017BX016775
Steven Hornstein, J.

Defendant has been charged by information with forcible touching (Penal Law § 130.52 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]), sexual abuse in the second degree (Penal Law § 130.60 [1]) sexual abuse in the third degree (Penal Law § 130.55) and harassment in the second degree (Penal Law §240.26 [1]).

The complainant, Y.C. ("deponent"), states that on or about April 22, 2017, at approximately 4:45 AM inside of 2020 Walton Avenue, Apt. No.5B, Bronx County, New York:

she felt a hand on her vagina. Deponent further states that this caused her to wake up. Deponent further states that when she woke up she saw the defendant standing at the end of her bed and his hand moving away from her vagina. Deponent further states that when she fell asleep her pants were buttoned and when she woke up her pants were unbuttoned.Deponent further states that she did not give the defendant permission or consent to touch her vagina.Deponent further states that she is fifteen (15) years old and her date of birth is January 5, 2002.Deponent further states that as a result of the defendant's aforementioned conduct she experienced, annoyance, alarm, and fear for her physical safety.

The complainant reported the allegations to members of her family and the police (People's affirmation, ¶ 3). The defendant was arrested on April 22, 2017, and the complainant went to a hospital where a sexual assault examination was performed (id.). Other evidence, including some of the complainant's clothing, was sent with the contents of a sexual assault examination kit to the Office of the Chief Medical Examiner ("OCME") for further investigation (id.).

According to a laboratory report, dated June 9, 2017, OCME found, in pertinent part (bold type in original):

Prostate Specific Antigen was detected on the following item(s):• underwear• vulvar swabsPresumptive testing for saliva was positive on the following item(s):• vulvar swabsSAMPLES WITH SUFFICIENT CONCENTRATION OF DNA DETECTEDSample(s): underwear stain 2, sperm cell fractionNumber of contributors: 2The DNA profiles of the individual contributors to the mixture(s) could not be determined; however, the results are suitable for comparison.Sample(s): buccal specimen from (complainant)STR DNA typing was performed. A DNA profile was determined.SAMPLES WITH AN INSUFFICIENT CONCENTRATION OF DNA DETECTEDSample(s):• vulvar swab, sperm cell fraction• vulvar swab, epithelial cell fraction• underwear stain 2, epithelial cell fraction• underwear stain 4, sperm cell fraction• underwear stain 4, epithelial cell fraction

The report also stated an examination failed to detect the presence of blood, spermatozoa, prostate specific antigen or amylase on other various items. An appendix attached to the report defined certain terms, in relevant part (bold type in original):

A presumptive test is a non-confirmatory test used for detecting the possible presence of biological fluids. Prostate Specific Antigen (PSA) is a protein and is found in semen. PSA concentration in semen is typically in levels far in excess of those found in other fluids.Spermatozoa are the male reproductive cells that can be found in semen.The detection of an elevated level of amylase indicates, but does not conclusively establish, the presence of saliva. Sources of amylase include (but are not limited to) saliva, vaginal secretions and bacteria.

On or about June 22, 2017, the People filed a motion to compel the taking of a DNA sample from the defendant to compare it with the evidence developed by OCME. The People argued, inter alia, there was probable cause to believe the defendant committed the crimes charged in the information and that relevant material evidence would be obtained by comparing the defendant's DNA exemplar with the other biological evidence.

The defendant, in opposition to the motion, noted that OCME detected PSA on the complainant's underwear and vulvar swabs, the presumptive presence of amylase on a vulvar swab, and sperm cell fraction on the complainant's underwear with a concentration of DNA suitable for testing, and that OCME did not find skin cells with enough DNA for additional testing. The defendant asserted, inter alia, that because the information did not allege the defendant placed his mouth or penis on the complainant's vagina, or ejaculated during the alleged events, the OCME findings failed to justify taking an exemplar swab from the defendant for comparison. The defendant claimed "(i)f the allegations in the criminal complaint were true, then skin cells from a male donor would have been documented by OCME" (Defendant's opposition to motion to compel, ¶ 26).[FN1]

On or about January 17, 2018, the Honorable Patsy Gouldborne granted the People's request and ordered the defendant to submit to the taking of a DNA exemplar via oral swab. A swab was taken from the defendant on or about February 14, 2018, and promptly forwarded to OCME for analysis.

A DNA profile was created from the known exemplar sample taken from the defendant. The defendant's profile was then compared to the results from the June 9, 2017, OCME report. In a second laboratory report, dated March 13, 2018, OCME found, in pertinent part (bold type in original):

Sample: underwear stain 2, sperm cell fractionHypothesis 1: Mynor Rolando Quintanilla Hernandez and (complainant)Hypothesis 2: (complainant) and one unknown personThe DNA mixture found on underwear stain 2, sperm cell fraction is approximately 121 million (1.21 x ) times more probable if the sample originated from Mynor Rolando Quintanilla Hernandez and (complainant) than if it originated from (complainant) and one unknown person. Therefore, this supports that Mynor Rolando Quintanilla Hernandez is included as a contributor to this sample.

On or about August 30, 2018, the defendant moved to preclude the People "from calling an expert witness to testify as to any conclusion regarding the results of the presumptive serology testing, including Prostate Specific Antigen (PSA), Acid Phosphate (AP), and Amylase testing, performed by (OCME) on items recovered from the complainant in this case, on the grounds that such testimony is misleading, prejudicial and not probative in this case and would violate (the defendant's) constitutional rights" (defendant's notice of motion to preclude, ¶ 1). The defendant raised numerous factual challenges to the testing performed by OCME and their conclusions thereon. The defendant also submitted a curriculum vitae and an affidavit from Dr. Maher Noureddine, an expert in molecular biology and molecular genetics retained by the defendant, to further challenge the notion that the testing performed by OCME in this matter conclusively proved the presence of amylase and PSA on the examined items.

The defendant also moved to preclude certain testimony from the People's OCME witness because it purportedly "relies on data that is not generally accepted in the relevant scientific community to make the conclusion for which (it) is being offered" (defendant's notice of motion to preclude, ¶ 2) and moved, in the alternative, for a hearing on the issue (id., ¶ 4). Defendant asserted it is "undisputed within the forensic scientific community that these tests are merely presumptive and do not allow an expert to testify as to the presence of semen and/or saliva with any degree of scientific certainty" (defendant's affirmation, ¶ 16).

Finally, citing the fact that the People intend to call as a witness Criminalist III Cassandra Williams, an employee of OCME who did not conduct the original testing and analysis of the evidence collected in this matter, the defendant also raised Confrontation Clause objections to her testimony at trial (defendant's notice of motion to preclude, ¶ 3; defendant's memorandum of law, ¶ 22). Specifically, defendant objects that the People's proposed expert:

did not 'witness, perform or supervise' the ALS florescence on underwear, the cutting of the underwear, the use and analysis of the Seratec Cassette, or the other serological [*2]testing. Nor did she determine which items to test for DNA. Each of these steps required the analyst to exercise judgment and to draw her own conclusions. Ms. Williams merely read the reports and notes from the prior analysts and agreed with their findings based on the materials she reviewed (defendant's memorandum of law, ¶ 24).

Counsel for the defendant reiterated these objections in an email to the Court and the People, dated November 28, 2018, stating: Ms. Williams testimony about her review of the electronic data from the quantification, extraction and amplification of the DNA is not the issue before the court. Rather, the defense objects to Ms. Williams' testimony about: • another analyst's examination of the underwear• another analyst's determinations of where cuttings were made• another analyst's performance, observations and conclusions from PSA, sperm search, AP, KM, or Amylase tests.Ms. Williams did not conduct any of these tasks. She has not conducted an independent analysis of the raw data from these tasks because no raw data exists. Rather, her testimony would be the "conduit" for the conclusions of the analyst who performed these tasks, in violation of Mr. Quintanilla-Hernandez's confrontation rights. See Bullcoming v. New Mexico, Melendez-Diaz v. Massachusetts.

Defendant also asserted each forensic report in this matter is "testimonial" (id., ¶ 20) and thus inadmissible via the People's proposed expert.

In response, on or about September 25, 2018, the People opposed the defendant's motion to preclude, or for a hearing, insisting the forensics tests used in the instant matter were generally accepted for their stated purposes (People's reply at 5, 11). The People averred they "would not seek to introduce speculative or inappropriate conclusions unrelated to the witnesses' testimony, medical evidence and DNA findings" (id. at 9). The People addressed some of the defendant's criticisms of the original OCME testing and challenged many of the statements made by the defendant's expert, Dr. Noureddine.

The People confirmed they intended to call Criminalist III Cassandra Williams from OCME to testify about the forensic evidence although she did not conduct the original testing (People's reply at 9). The People opined there would be no Confrontation Clause issue because Criminalist Williams "conducted her own independent conclusions after she analyzed the raw data () she did not simply adopt the conclusions of another Criminalist as the defendant makes it seem" (id.). In emails on November 28 and 29, 2018, the People insisted that clear protocols govern the determination of which stains are suitable for testing, that the OCME case files reflect the application of these protocols and that Criminalist Williams is capable of explaining all of this at trial.[FN2] The People also asserted the challenged report, generated after the initial OCME [*3]testing, was not inculpatory and therefore does not violate the defendant's Confrontation Clause rights.

Having reviewed the court file, the parties' submissions, and the exhibits attached thereto, the Court's decision is as follows:

RELEVANCE

"(A)ll relevant evidence is admissible unless its admission violates some exclusionary rule" (People v. Cheng Lin, 26 NY3d 701, 727 [2016], citing People v. Scarola, 71 NY2d 769, 777 [1988]). "Evidence is relevant if 'it tends to prove the existence or non-existence of a material fact '" (id., internal citations omitted). "A court, in its discretion, may exclude relevant evidence if 'its probative value is substantially outweighed by the potential for prejudice' trial delay, or the potential to mislead or confuse the jury (id., internal citations omitted).

The defendant, from the inception of this matter, has challenged whether the objective facts justified taking his DNA sample. At trial, the defendant will seek to test the forensic investigation and conclusion by OCME that his DNA contributed to a DNA mixture found on the complainant's underwear. It is reasonable to challenge the strongest objective evidence which also tends to corroborate the complainant's expected testimony. Thus, it is also reasonable for the fact-finder to know what OCME plausibly knew as it determines the credibility of the OCME witness and the scientific investigation (see People v. Williams, 6 NY2d 18 [1959]; People v. Taylor, 75 NY2d 277 [1990]; see also People v. Fisher, 73 AD2d 886 [1st Dept 1980], affd 53 NY2d 907 [1981]; People v. Abdur-Razzaq, 60 Misc 3d 631 [Sup Ct, Bronx County 2018]). The fact finder should know that at least two points of evidence suggested the presence of male DNA on items related to the female complainant: the presumptive presence of PSA and the observation of sperm cell fraction.[FN3] The omission of such facts would be misleading, potentially allowing the jury to speculate about why the defendant's DNA was compared to that observed on the sexual assault kit items and the complainant's underwear.

The People intend to present a qualified expert witness from OCME who will be able to explain the scientific basis (and limitations) for all testing performed, and the results thereby obtained. As stated above, the reports themselves explain the limits of the conclusions reached [*4]by members of OCME. The People's witness will also be thoroughly cross-examined by counsel for the defendant, as indicated by the written submissions (see, e.g., People v. Wright, 25 NY3d 769 [2015]). Additionally, the defendant has the option of calling as a witness his retained expert, Dr. Maher Noureddine. The defendant's objections to testimony about presumptive testing for PSA and amylase essentially go to the weight of such testimony and not to its admissibility (see People v. Mountain, 66 NY2d 197, 203 [1985] ["Although blood grouping may only serve to show that the defendant and the assailant are part of a large group having that particular characteristic, it does not follow that such proof completely lacks probative value."] [overturning People v. Robinson (27 NY2d 864 [1970]) and People v. Macedonio (42 NY2d 944 [1977]) which held such evidence inadmissible]; People v. Campbell, 269 AD2d 461 [2d Dept 2000], lv denied 94 NY2d 917 [2000]; People v. Belle, 47 Misc 3d 1218[A] [Sup Ct, Bronx County 2015] [denying preclusion of challenged DNA statistics tool and permitting both sides to introduce results of competing calculations]; see also People v. Alexander, 49 Cal 4th 846, 904 [2010] ["The factors raised in defendant's challenge to this evidence — that the presumptive tests could not confirm the substance tested was human blood, that confirmatory tests failed to confirm the presence of blood, and that it is unknown when the jacket might have been exposed to the substance that created the positive results - do not mean the test results have no tendency in reason to establish that defendant shot Agent Cross. Those issues affect the probative weight of the evidence, not whether the test results meet the threshold requirement of relevancy. The trial court did not abuse its discretion in finding this evidence was relevant."] [emphasis in original]; State v. Pittman, 419 NJ Super 584, 594 [2011] ["In those cases that have recognized the admissibility of the test results as presumptive evidence of the presence of blood without further confirmatory testing, the limitation of the test and the possibility of false positive results have been fully explained to the jury (T)he admissibility of the presumptive evidence was expressly conditioned on the existence of expert testimony as to the possibility of a false positive."]; Cage v. City of Chicago, 979 F Supp 2d 787, 810 - 811 [ND Ill, 2013] ["The soundness of the factual underpinnings of the expert's analysis is a factual matter to be determined by the trier of fact .The fact that an expert's testimony contains some vulnerable assumptions does not make the testimony irrelevant or inadmissible." (internal quotations and citations omitted)]).

Furthermore, the People are aware of their duty to avoid exaggerating the meaning or significance of the evidence they intend to introduce (see People v. Wright, supra [ineffective counsel failed to object when prosecutor misleadingly emphasized significance of forensic failure to exclude defendant's DNA from crime scene]; People v. Powell, 165 AD3d 842 [2d Dept 2018] [new trial for prosecutorial misconduct in misrepresenting statistical comparison testified to by People's expert who conducted DNA analysis on murder weapon]; People v. Jones, 134 AD3d 1588 [4th Dept 2015] [new trial after prosecutor overstated value of DNA evidence]). The People will be permitted to elicit testimony that OCME investigation showed the presumptive presence of PSA and amylase on the relevant items. They will not be permitted to argue such tests proved the conclusive presence of those substances. The Court will hear the appropriate objections should the trial evidence develop in a different manner.

A Frye hearing is unnecessary as the People do not seek to introduce the results of the PSA and amylase tests as conclusive proof of the presence of semen or saliva. The defendant does not challenge the scientific validity or general acceptance of the testing for the presumptive presence of PSA and amylase. The defendant does not otherwise challenge the scientific validity [*5]of the DNA testing performed in this matter and does not seek a Frye hearing to challenge the admissibility of the results of the DNA testing (see People v. Wesley, 83 NY2d 417 [1994]).

CONFRONTATION CLAUSE

As recently summarized in People v. Rodriguez (153 AD3d 235, 238 [1st Dept 2017], affd on other grounds 31 NY3d 1067 [2018]):

As the accused in a criminal prosecution, a defendant has the right to be confronted with the witnesses who bear testimony against him (Crawford v Washington, 541 US 36, 51 [2004]). Therefore, "[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness" (Bullcoming v New Mexico, 564 US 647, 657 [2011])."[A] statement will be treated as testimonial only if it was 'procured with a primary purpose of creating an out-of-court substitute for trial testimony' " (People v Pealer, 20 NY3d 447, 453 [2013], cert denied 571 US &mdash, 134 S Ct 105 [2013], quoting Michigan v Bryant, 562 US 344, 358 [2011]; see Davis v Washington, 547 US 813, 822 [2006] ["(Statements) are testimonial when the circumstances objectively indicate that . . . the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution"]).Our Court of Appeals has set forth a test to be used in determining whether a report was prepared for such a "primary purpose" and is, therefore, testimonial. The "primary purpose" test consists of four factors:" '(1) whether the agency that produced the record is independent of law enforcement; (2) whether it reflects objective facts at the time of their recording; (3) whether the report has been biased in favor of law enforcement; and (4) whether the report accuses the defendant by directly linking him or her to the crime' " (People v Pealer, 20 NY3d at 454, quoting People v Brown, 13 NY3d 332, 339-340 [2009]; see People v Freycinet, 11 NY3d 38, 41 [2008]).Recently, in People v John (27 NY3d 294 [2016]), our Court of Appeals reaffirmed the centrality of the primary purpose test for Confrontation Clause purposes (id. at 307 ["(W)e have deemed the primary purpose test essential to determining whether particular evidence is testimonial hearsay requiring the declarant to be a live witness at trial"]).

Here, the People indicate they will call Criminalist III Cassandra Williams from OCME, who was not involved in the original testing but performed an independent analysis of the raw data and came to her own conclusions regarding the forensic evidence. Provided her testimony establishes she did indeed "(use) her independent analysis on the raw data, as opposed to functioning as a conduit for the conclusions of others " (People v. John, 27 NY3d at 315), the Confrontation Clause does not bar her appearance as a trial witness (see People v. Mason, — AD3d &mdash, 2018 NY Slip Op 07944 [1st Dept 2018]; People v. Webb, 163 AD3d 880 [2d Dept 2018], lv denied — NY3d &mdash, 2018 WL 6032079 [2018]; People v. Gibson, 163 AD3d 586 [2d Dept 2018], lv denied — NY3d &mdash, 2018 WL 6033455 [2018]; People v. Breazil, 165 AD3d 1159 [2d Dept 2018]; People v. Fuller, 165 AD3d 1163 [2d Dept 2018]; see also People v. Gonzalez, 47 Misc 3d 137[A] [App Term, 1st Dept 2015], lv denied 25 NY3d 1201 [2015]). As noted above, the People intend to present at trial a certified document detailing how Criminalist Williams performed her analysis of the raw data. The People are encouraged to provide a copy [*6]of that document to counsel for defendant as soon as is practicable to avoid any delay or adjournment mid-trial.

Non-testimonial reports do not violate a defendant's Sixth Amendment rights and may be entered into evidence under the proper foundation (see Rodriguez, supra). Here, under the "primary purpose" test, the initial report generated by OCME is not testimonial because: (1) It is well-established that OCME is an agency separate and independent from law enforcement (see People v. Washington, 86 NY2d 189 [1995]); (2) the report appears to reflect objective facts, such as the results of the presumptive PSA and amylase tests, or the observation of sperm cell fraction on the complainant's underwear, at the time of their recording; (3) the report is not biased in favor of law enforcement although it does list the defendant as "suspect" at the top (see People v. Encarnacion, 87 AD3d 81 [1st Dept 2011], lv denied 17 NY3d 952 [2011] [citing People v. Rawlins, 10 NY3d 136 (2008)] [defendant identified as suspect from inception of police investigation]);[FN4] and (4) the report does not directly link defendant to the crimes charged.

While the defendant has clearly and forcefully demanded cross-examination of the analyst who originally conducted the examination of the underwear and determined what stains to further examine, what swabs to make and how to interpret the results of testing performed on the swabs, such objections go to the weight rather than the admissibility of such evidence (see Rodriguez, 153 AD3d at 247 ["The dissenters' concern with (the criminalist's) failure to personally witness OCME's employment of safeguards in conducting DNA testing in this case, such as gowning up with mask, hairnet, gloves and lab coat and cleaning the bench top and utensils to be used in the examination with bleach and ethanol, is misplaced. Such considerations do not implicate Confrontation Clause concerns, since they are not testimonial statements against the accused; they merely affect the weight to be given by the jury to the evidence in question, not its constitutional admissibility."]). The report is admissible in evidence, subject to the proper foundation being laid, via the testimony of Criminalist Williams.

The second report is, however, testimonial as it directly links the defendant to the crime in matching his DNA profile to the initially detected DNA mixture. The second report itself thus cannot come into evidence at trial. The raw data, however, is admissible (see Rodriguez 153 AD3d at 240, 246).

Criminalist III Cassandra Williams will thus be permitted to testify in the manner dictated by John. The Court will hear the appropriate objections should the trial evidence develop in a different manner.

This constitutes the decision and order of the Court.

DATED: December 14, 2018

Hon. Steven Hornstein Footnotes

Footnote 1: This statement is both scientifically dubious (see, e.g., People v. Rodriguez, 153 AD3d 235, 252 [1st Dept 2017] [Acosta, dissenting], affd on other grounds 31 NY3d 1067 [2018]) and misleadingly inconsistent with the defendant's acknowledgement that the epithelial cells found were unsuitable for further testing.

Footnote 2: In a November 28, 2018, email, the People informed the Court the "initial testing criminalist" left OCME and moved out of state. This statement presumably refers to Frances Rue, Criminalist III, who is listed as "Analyst" on the two OCME reports pertaining to this matter. The People have not indicated the status with OCME of Julissa Perez, who also appears on both reports as "Administrative Reviewer." The People also stated via email they would present at trial a certified document indicating how Criminalist Williams conducted her independent analysis of the raw data here. An uncertified copy of the document has not yet been proffered to the Court.

Footnote 3: A comparison to narcotics field tests and PBT devices, as suggested by the defendant (Defendant's memorandum of Law, ¶ 7), is inapt. PBT results are often inadmissible at trial to prove a motorist's intoxication because the reliability of the PBT device for that purpose is not generally accepted in the relevant scientific community, proof of proper maintenance and calibration is often lacking, and the law enforcement officer conducting the breath testing with the PBT is usually not qualified to explain how the device works (see, e.g., People v. Palencia, 130 AD3d 1072 [2d Dept 2015], appeal dismissed, 27 NY3d 1111 [2016] [PBT results should not have been introduced even for limited purpose due to risk of undue prejudice]; see also People v. Thomas, 121 AD2d 73 [4th Dept 1986], affirmed 70 NY2d 823 [1987]). Similarly, positive narcotics field test results would be insufficient at trial to prove the identity of the substance recovered by law enforcement unless the scientific reliability and accuracy of the field test were proven (see, e.g., People v. Jason F, 181 Misc 2d 653 [Horseheads Just Ct 1999], citing People v. Swamp, 84 NY2d 725 [1995] and Matter of Angel A, 92 NY2d 430 [1998]). Here, in contrast, the People are expected to call a witness qualified to address all of these issues.

Footnote 4: It is, however, ordered that the defendant's name, NYSID and arrest number be redacted from the report should it be entered into evidence at trial.