The opinion
State of New York MEMORANDUM
Court of Appeals This memorandum is uncorrected and subject to
revision before publication in the New York Reports
No. 76
The People &c.,
Respondent,
v.
Jorge Espinosa,
Appellant.
Samuel Feldman, for appellant.
Amanda Iannuzzi, for respondent.
The Legal Aid Society, amicus curiae.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
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Defendant asserts that trial counsel rendered ineffective assistance by failing to
argue that the admission into evidence of DNA reports through the testimony of an analyst
who did not perform, witness or supervise the testing, or independently analyze the raw
data, violated his constitutional right to confrontation. This argument is without merit.
“Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge,
the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that
no reasonable defense counsel would have failed to assert it’” (People v Rodriguez, 31
NY3d 1067, 1068 [2018], quoting People v McGee, 20 NY3d 513, 518 [2013]). Nor, on
this record, has defendant demonstrated that the alleged error was not a matter of legitimate
trial strategy (see id.).
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RIVERA, J. (dissenting):
In 2016, defendant Jorge Espinosa was convicted of second-degree burglary and
several misdemeanors based on allegations that he forcibly entered a New York City
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apartment with a co-defendant who stole money from a wallet. At trial, the prosecution
admitted two reports containing DNA analyses through a criminalist who testified, based
on his review of the file prepared by another criminalist, that defendant’s DNA matched
DNA on a screwdriver recovered from the scene of the break-in. This evidence was
therefore admitted through a surrogate witness in violation of the Confrontation Clause
(Bullcoming v New Mexico, 564 US 647 [2011]; Crawford v Washington, 541 US 36
[2004]). The question on this appeal is whether defense counsel was ineffective for failing
to raise a Confrontation Clause objection to this evidence’s admission. At the time of
defendant’s trial, the law was sufficiently settled to support such an objection. Indeed,
counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable
to attack, as he asked the jury to reject those conclusions on the ground that the criminalist
did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this
DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause
grounds cannot be explained as a reasonable strategy. Therefore, I would reverse and order
a new trial.
I.
Defendant was prosecuted on charges arising from a New York City apartment
break-in. One resident saw a man going through his wallet before running towards the back
of the apartment. Another resident entered the home and bumped into a man wearing a ski
mask—who she had “a gut feeling” was Latino—run out of the building and down the
street. She then noticed another man jump off the upstairs balcony; this other man was
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arrested that night and eventually pleaded guilty to second-degree burglary. Defendant was
arrested months after the crime when the City’s Office of Chief Medical Examiner
(OCME) notified investigators that his DNA matched a DNA profile developed from a
screwdriver recovered from an outdoor patio located underneath the balcony from which
the other man had jumped. Neither resident knew defendant or ever identified him as
having been at the scene of the burglary. Thus, the entire case against defendant depended
on this DNA evidence.
The prosecution presented testimony from an OCME criminalist, Daniel Ferrara,
and, through him, admitted two DNA reports. The first report was based on the swab from
the screwdriver and listed defendant under “SUSPECT(S).” The other report was based on
a DNA buccal swab sample the police obtained from defendant in an unrelated 2006 case
and stated that “[t]he DNA alleles from the suspect, Jorge Espinosa, are the same as those
of the DNA donor identified in” that previous case. Ferrara did not participate in any of the
DNA testing in the instant case. Instead, as he explained during direct examination, a
former OCME employee named Ashley Rhodes was “the reporting analyst” who
performed the testing and interpretive analysis, rendered the conclusions, and wrote the
report. By the time of trial, Rhodes no longer worked for OCME, so Ferrara reviewed the
file and Rhodes’s conclusions.
Ferrara testified that he had been Rhodes’s supervisor and the “technical reviewer”
in this case, meaning that he “[went] through all the results, look[ed] at the testing and
ma[de] sure it [wa]s scientifically sound and based on policies and procedures.” Although
he had supervised “thousands” of DNA analyses before, he did not testify that he
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supervised Rhodes’ analysis here. Rather, Ferrara acknowledged that his “opinion
conclusion” was “based on [his] own review of the business record”—i.e., Rhodes’s report.
Neither Ferrara’s name nor his initials were in the portion of the report covering the
electrophoresis stage of the analysis.1
Rhodes’ analysis concluded that the screwdriver contained a mixture of DNA
which, when compared against DNA collected during the earlier, unrelated case, revealed
a match with defendant’s DNA. The prosecution did not present any testimony regarding
who collected and analyzed the DNA in the prior case, and Ferrara did not testify that he
was in any way connected to it. Ferrara’s name did not appear in the 2007 report, which
placed defendant’s name in a field labeled “Suspect.”
Defense counsel failed to object to the DNA reports’ admission and Ferrara’s
testimony but did cross-examine Ferrara about his lack of involvement in the testing and
analysis of the DNA. Ferrara acknowledged that he was “not the person who did the
testing” and “personally did not do any of the testing in this case” but that he instead had
“read the reports prepared by other people.” Ferrara testified that “Ashley Rhodes wrote
1
Ferrara’s name appears four times in the DNA report, related to reviews conducted on
two dates—July 14, 2014, and August 1, 2014—where his name is in a box labeled,
“Report Tech1 Reviewed By Daniel Ferrara.” The initials “DAF” appear throughout the
report for the 2006 case, but there is no evidence in the record confirming that those were
Ferrara’s initials.
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the report and made her conclusions. [He] technically reviewed those conclusions and that
is how the report came to be.”
During his summation, defense counsel argued to the jury that the DNA evidence
was “incomplete” and “insufficient” because the prosecution failed to call the person who
conducted the DNA testing and instead “called the supervisor who submitted the report”
whose conclusions therefore should not be credited. For their part, the prosecutor relied
heavily on the DNA evidence, arguing: “He chose to use a screwdriver. How do we know
he used it? Well, his DNA is all over that screwdriver.” The prosecutor also repeated a
theme first raised during opening statements, exhorting that defendant “can’t run away
from his own DNA.”
The jury convicted defendant on all counts and the court sentenced him to an
aggregate of 15 years incarceration, followed by five years of post-release supervision.
The Appellate Division affirmed the judgment of conviction (207 AD3d 655, 656
[2022]). The Court concluded that Ferrara’s testimony did not violate defendant’s right of
confrontation and therefore defendant was not deprived of his right to the effective
assistance of counsel when his attorney failed to object to the testimony on Confrontation
Clause grounds (id.). A Judge of this Court granted defendant leave to appeal (39 NY3d
962). We should reverse because defense counsel should have objected based on the law
established at the time of trial that the prosecution could not present DNA evidence through
the testimony of a criminalist like Ferrara who was not involved in any stage of the DNA
analysis and merely served as a conduit for the work of others.
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II.
A.
Under the Sixth Amendment to the Federal Constitution, defense counsel is
ineffective when their performance falls below “an objective standard of reasonableness”
and prejudices the defendant (Strickland v Washington, 466 US 668, 688 [1984]). Under
Article I, Section 6 of the New York Constitution, a defendant is denied effective counsel
when the circumstances, “viewed in totality,” show that the attorney did not provide
“meaningful representation” (People v Benevento, 91 NY2d 708, 712 [1998]), a standard
that the Court has characterized as “somewhat more favorable to defendants” and which,
like the federal standard, requires an initial showing of objective unreasonableness (People
v Turner, 5 NY3d 479, 480 [2005]). Thus, conduct found deficient under the federal
standard also constitutes ineffectiveness under our State standard (see People v Wragg, 26
NY3d 403, 412 [2015] [rejecting defendant’s state-based ineffective assistance claim
“(s)ince ‘our state standard . . . offers greater protection than the federal test’ ”], quoting
People v Caban, 5 NY3d 143, 156 [2005]).
An attorney who performs in an objectively reasonable fashion is one who “take[s]
the time to review and prepare both the law and the facts relevant to the defense” (People
v Droz, 39 NY2d 457, 462 [1976]). On the other hand, counsel performs deficiently where,
due to an unreasonable mistake of law or failure to perform research, counsel overlooks a
viable claim and no plausible strategy explains the apparent oversight (see Hinton v
Alabama, 571 US 263, 274 [2014] [“An attorney’s ignorance of a point of law that is
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fundamental to (their) case combined with (their) failure to perform basic research on that
point is a quintessential example of unreasonable performance under Strickland”]).
To establish prejudice under the federal standard, the defendant must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (Strickland, 466 US at 693-694). “[A] defendant
need not establish that the attorney’s deficient performance more likely than not altered the
outcome” (Nix v Whiteside, 475 US 157, 175 [1986]), only a reasonable probability of an
impact on the verdict “sufficient to undermine confidence in the outcome” (Strickland, 466
US at 693-694). By contrast, the state standard “does not require the defendant to fully
satisfy the prejudice test of Strickland” even though the Court “continue[s] to regard a
defendant’s showing of prejudice as a significant but not indispensable element in
assessing meaningful representation” (Caban, 5 NY3d at 155-156 [internal quotation
marks omitted]). “Our focus is on the fairness of the proceedings as a whole” (People v
Stultz, 2 NY3d 277, 282 [2004]).
Under both standards, a single error may qualify as ineffective assistance (see
Murray v Carrier, 477 US 478, 496 [1986] [observing that the right to effective assistance
“may in a particular case be violated by even an isolated error of counsel if that error is
sufficiently egregious and prejudicial”]; People v Hobot, 84 NY2d 1021, 1022 [1995]
[“Where a single, substantial error by counsel so seriously compromises a defendant's right
to a fair trial, it will qualify as ineffective representation”]; see also Turner, 5 NY3d at 480,
citing Caban, 5 NY3d at 152; Murray, 477 US at 496). Where a defendant complains that
counsel failed to raise a claim, the claim must typically involve “an issue that is so clear-cut
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and dispositive that no reasonable defense counsel would have failed to assert it, and it
must be evident that the decision to forgo the contention could not have been grounded in
a legitimate trial strategy” (People v McGee, 20 NY3d 513, 518 [2013]; see e.g. Turner, 5
NY3d at 481 [holding that an attorney who objected to submission of a lesser-included
count, but failed to raise a “clear-cut and completely dispositive” statute of limitations
defense to that same count was ineffective]). A “[d]efendant bears the burden of
establishing [their] claim that counsel’s performance is constitutionally deficient by
demonstrating the absence of strategic or other legitimate explanations for counsel’s
alleged failures” (People v Sposito, 30 NY3d 1110, 1111 [2018] [cleaned up]), and
“counsel’s performance is objectively evaluated to determine whether it was consistent
with strategic decisions of a reasonably competent attorney” (People v Mendoza, 33 NY3d
414, 418 [2019]). Overall, ineffectiveness must be assessed “as of the time of
representation” (People v Carncross, 14 NY3d 319, 331 [2010]).
The law on an omitted claim need not be “definitively settled” at the time of trial
and the claim need not be “a clear winner” before its omission can qualify as ineffective
assistance (Turner, 5 NY3d at 483). Recently, we held that, in such single-error cases, there
must be some “clear appellate authority” supporting the omitted claim (People v Saenger,
39 NY3d 433, 442 [2023]). Counsel is not constitutionally ineffective simply for failing to
raise a claim having had “nothing to lose” (Knowles v Mirzayance, 556 US 111, 122
[2009]), but is ineffective in foregoing a claim supported by clear appellate authority when
“no reasonable defense lawyer could have found it so weak as to be not worth raising”
(Turner, 5 NY3d at 483).
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B.
In addition to decisional law and state professional rules, the United States Supreme
Court and this Court look to professional norms in assessing defense counsel’s
effectiveness (see Strickland, 466 US at 688; Hurrell-Harring v State of NY, 15 NY3d 8,
18 [2010]). “[P]revailing norms of practice as reflected in American Bar Association
standards and the like . . . are guides to determining what is reasonable . . . [because] these
standards may be valuable measures of the prevailing professional norms of effective
representation” (Padilla v Kentucky, 559 US 356, 366 [2010] [internal citations omitted];
e.g. People v Clark, 28 NY3d 556, 563 [2016] [looking to ABA Standards to determine
whether counsel was ineffective for declining to pursue a justification defense at the
defendant’s insistence]; see also People v Arjune, 30 NY3d 347, 367-368 [2017] [Rivera,
J., dissenting] [professional norms relevant in determining whether counsel was ineffective
for, after filing a notice of appeal, failing to either perfect the appeal advise the defendant
of how to do so, resulting in the appeal’s dismissal]).
III.
Defendant argues, as he did before the Appellate Division, that the DNA reports are
testimonial, and that defense counsel was ineffective for failing to object to the DNA
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evidence on the ground that Ferrara served as a surrogate witness for its admission in
violation of defendant’s right of confrontation. Defendant is correct on all points.
A.
The Confrontation Clause of the Sixth Amendment guarantees criminal defendants
the right to be “confronted with the witnesses against [them]” (US Const, Amend VI), and
“[t]his bedrock procedural guarantee applies to both federal and state prosecutions”
(Crawford, 541 US at 42, citing Pointer v Texas, 380 US 400, 406 [1965]). As the Supreme
Court has noted, “[t]he right to confront one’s accusers is a concept that dates back to
Roman times” (id.). The Crawford Court observed that the Confrontation Clause “applies
to ‘witnesses’ against the accused,” meaning “those who bear testimony . . . for the purpose
of establishing or proving some fact” (id. at 51 [internal citation and quotation marks
omitted]). Out-of-court testimonial statements are admissible under the Confrontation
Clause only when the declarant is “unavailable to testify, and the defendant [had] had a
prior opportunity for cross-examination” (id. at 54). The Supreme Court has included
within the “core class of testimonial statements . . . pretrial statements that the declarant
would reasonably expect to be used prosecutorially, extrajudicial statements . . . contained
in formalized testimonial materials . . . [and] statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial” (id. at 51-52).
In 2009, in Melendez-Diaz the Supreme Court concluded that formal forensic
reports—such as the narcotics report at issue there—are testimonial for purposes of the
Confrontation Clause (557 US at 310, quoting Crawford, 541 US at 51). A forensic report
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is “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of
establishing or proving some fact’ ” (id., quoting Crawford, 541 US at 51). In other words,
the report at issue in that case was “the precise testimony” that the witness “would be
expected to provide if called at trial” (id.). Critically, the Court rejected the claim that the
Confrontation Clause applies only to statements that “directly accuse [defendants] of
wrongdoing[,]” noting that such view “finds no support in the Sixth Amendment or in [its]
case law” and, indeed, “would be contrary to longstanding case law” (id. at 313-315, citing
Kirby v United States, 174 US 47, 53-55 [1899]). As the Court explained, there is no
“category of witnesses, helpful to the prosecution, but somehow immune from
confrontation” (id.). “To the extent the analysts were witnesses”— because their statements
were testimonial—“they certainly provided testimony against [the defendant], proving one
fact necessary for his conviction—that the substance he possessed was cocaine” (id. at 313
[emphasis in original]).
In 2011, the Supreme Court reaffirmed Melendez-Diaz in Bullcoming and further
held that, under the Confrontation Clause, “a forensic laboratory report containing a
testimonial certification—made for the purpose of proving a particular fact—through the
in-court testimony of a scientist who did not sign the certification or perform or observe
the test reported in the certification” was inadmissible “surrogate testimony” that deprived
the accused of the “right to be confronted by the analyst who made the certification” (564
US at 652). Moreover, the Court concluded, “the Clause does not tolerate dispensing with
confrontation simply because the court believes that questioning one witness about
another’s testimonial statements provides a fair enough opportunity for cross-examination”
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(id. at 662). Thus, at the time of defendant’s 2016 trial, the DNA evidence proffered by the
prosecution fell squarely within the Supreme Court’s description of testimonial evidence
subject to confrontation and the evidence offered through Ferrara—who did not prepare
the file, “perform or observe the test[,]” or conduct an independent analysis of the DNA
samples—was “surrogate testimony of [an] order [that] does not meet the constitutional
requirement” (id. at 652).
The prosecution argues that our decision in People v Brown (13 NY3d 332 [2009])
was controlling at the time of defendant’s trial and made clear that the Confrontation
Clause did not apply to reports compiled before a defendant became a suspect. Here, the
prosecution continues, the DNA match was based on a DNA profile developed in an
unrelated matter years before defendant was a suspect in the underlying burglary and,
therefore, under Brown, Ferrara’s testimony satisfied the Confrontation Clause. This
argument fails. First, the defendant’s status as a non-suspect in Brown was not the primary
focus of Brown’s holding (see 13 NY3d at 340). Rather, the Brown Court concluded that
the DNA report there “was not testimonial because it consisted of machine-generated
graphs, charts and numerical data” that did not reflect the analyst’s conclusions or
interpretations (id. [internal quotation marks omitted]). In any event, the Supreme Court
decided Bullcoming two years after Brown and nearly five years before defendant’s trial.
Counsel should have been aware of this binding Supreme Court precedent that the Sixth
Amendment guarantees defendants the right to be confronted by the individuals who
performed the analysis and rendered conclusions, not a “surrogate” like Ferrara, who
merely relays the analyses and conclusions of others (Bullcoming, 564 US at 652).
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The prosecution’s reliance on Williams v Illinois (567 US 50 [2012]) is similarly
unpersuasive. Williams involved a forensic expert who testified that a DNA profile
generated by an outside laboratory based on evidence collected as part of a rape kit matched
the defendant’s DNA profile that was already in the government’s possession as part of an
earlier, unrelated case (see id. at 56). A plurality of the Court concluded that “[o]ut-of-court
statements that are related by [a testifying] expert solely for the purpose of explaining the
assumptions on which [the expert’s] opinion rests” are not subject to confrontation, in
relevant part, because they are “not prepared for the primary purpose of accusing a targeted
individual” (id. at 58, 84).2 Justice Thomas concurred only in the judgment, agreeing that
the Confrontation Clause did not cover the underlying DNA profile, but on the basis—
which no other Justice endorsed—that the profile was “not a statement by a witness within
the meaning of the Confrontation Clause” because it lacked “the solemnity of an affidavit
or deposition” (id. at 111 [Thomas, J., concurring] [internal quotation marks and alteration
omitted]).
2
The plurality alternatively concluded that the outside laboratory’s profile was not offered
for its truth and therefore was not testimonial (Williams, 567 US at 57-58). Five justices
squarely rejected this view (see id. at 105-110 [Thomas, J. concurring], 125-130 [Kagan,
J., dissenting]), and this Court had previously rejected the same several years prior to
defendant’s trial (see People v Goldstein, 6 NY3d 119, 128 [2005] [holding that statements
from third parties familiar with the defendant made to an expert psychiatrist were offered
for their truth because one could “not see how the jury could use the statements of the
interviewees to evaluate (the psychiatrist’s) opinion without accepting as a premise either
that the statements were true or that they were false”]; see also id. [“The distinction
between a statement offered for its truth and a statement offered to shed light on an expert's
opinion is not meaningful”]).
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Justice Thomas squarely rejected the plurality’s targeted-individual test (see id. at
114 [“There is no textual justification . . . for limiting the confrontation right to statements
made after the accused’s identity became known”]). So too did Justice Kagan who, joined
by three other Justices, dissented, but agreed with Justice Thomas that none of the Court’s
prior cases had held that a testimonial statement “must be meant to accuse a previously
identified individual” and that the plurality’s targeted-individual test “derives neither from
the text nor from the history of the Confrontation Clause” (id. at 135 [Kagan, J.,
dissenting]). Thus, before defendant’s 2016 trial, a majority of the Justices specifically
rejected the targeted-individual test the prosecution argues controlled at the time.
Indeed, at the time of trial, several federal and state courts had concluded that
Williams did not establish any controlling rule (see United States v James, 712 F3d 79,
95-96 [2d Cir 2013] [concluding that, as “five Justices disagreed with” the Williams
plurality’s “narrowed definition of testimonial” “and it would appear to conflict directly
with Melendez-Diaz,” Williams did not “yield a single, useful holding”]; United States v
Duron-Caldera, 737 F3d 988, 994-995 [5th Cir 2013] [declining to adopt targeted-
individual test and noting the Williams plurality is not “controlling”]; Jenkins v United
States, 75 A3d 174, 176 [DC 2013] [noting that Williams yielded “no new rule of law”];
State v Stanfield, 158 Idaho 327, 366, 347 P3d 175, 185 [2015] [“Because no position
received support from a majority of the justices, Williams does not provide us a governing
legal principle”]; State v Maxwell, 139 Ohio St 3d 12, 24, 9 NE3d 930, 950 [2014] [noting
“five justices in Williams rejected the plurality’s narrowed definition of the
primary-purpose test (the targeted-individual test),” and rejecting use of that “narrowed
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definition”]). Thus, at the time of defendant’s trial, the “clear appellate authority”
established in Melendez-Diaz and Bullcoming controlled and supported a Confrontation
Clause objection (Saenger, 39 NY3d at 442).
Even assuming the Supreme Court had not provided a clear basis for a Confrontation
Clause challenge to the admission of the reports and Ferrara’s testimony, there was “clear
appellate authority” from our state courts supporting one (id.). Counsel could have relied
on People v Cartagena where, post-Brown (13 NY3d 332), the Appellate Division, Second
Department—the intermediate appellate court to which defendant here would appeal—
held that the defendant’s “rights under the Confrontation Clause of the Sixth Amendment
were violated when the Supreme Court admitted a nontestifying DNA analyst’s report
linking the defendant to DNA evidence recovered at the crime scene” (126 AD3d 913 [2d
Dept 2015]); see also People v Gonzalez, 120 AD3d 832 [2d Dept 2014] [same, but
conceded by the prosecution]).
In addition, defendant’s trial began after full briefing and oral arguments in People
v John (27 NY3d 294 [2016]) and, although we did not decide John until after defendant’s
conviction, defense counsel had a continuing obligation throughout his representation to
“take[ ] the time to review and prepare both the law and the facts relevant to the defense”
(Droz, 39 NY2d at 462), and “stay abreast of changes and developments in the law”
(National Legal Aid and Defender Association, Performance Guidelines for Criminal
Defense Representation § 1.2 [2006]). This continuing obligation also included “a duty to
be well-informed regarding the legal options and developments that can affect a client’s
interests during a criminal representation” and “a duty to continually evaluate the impact
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that each decision or action may have at later stages, including . . . post-conviction review”
(ABA Standards for Criminal Justice, Defense Function 4-1.3 [e], [f] [4th ed 2017]).
Defense counsel’s failure to object could not have been part of a “legitimate trial
strategy” (McGee, 20 NY3d at 518). Ferrara admitted on direct and cross examination that
he was not involved at all in the DNA testing that produced the two reports admitted at
trial, nor did he independently analyze any of their raw data. True, defense counsel drew
on these acknowledgments in an attempt to persuade the jury to reject the evidence but, by
then, the damage had been done; the reports were admitted into evidence and the jury had
heard Ferrara’s testimony. In a case that turned on the DNA evidence, defense counsel
inexplicably failed to take the singular preventive step available to him—object to the
admission of this powerful DNA evidence on confrontation grounds—despite the “clear
appellate authority” supporting it (Saenger, 39 NY3d at 442). Under these circumstances,
defendant was deprived of effective assistance of counsel.
B.
The majority erroneously concludes that our decision in People v Rodriguez (31
NY3d 1067 [2018]) controls this case and compels the conclusion that defense counsel
here was not ineffective (majority mem at 2). That conclusion is mistaken. First, we issued
that one-paragraph memorandum more than two years after defendant’s trial and thus it
could not have dissuaded counsel from raising a Confrontation Clause objection to the
DNA evidence—the only question relevant to deciding whether counsel was ineffective.
Second, Rodriguez is distinguishable in meaningful ways. There, the Appellate
Division concluded that the defendant’s Confrontation Clause claim was unpreserved and
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declined to review it under that Court’s interest of justice jurisdiction (People v Rodriguez,
153 AD3d 235, 238 [1st Dept 2017]). The majority nonetheless, in pure dicta, addressed
the merits and concluded that the prosecution’s failure to call the criminalists who
generated two DNA profiles on which the testifying criminalist relied to determine that the
defendant’s DNA was present on a pair of wire cutters used to commit the underlying
burglary did not violate the Confrontation Clause (id. at 247). The Court explained that, in
response to the prosecutor’s pretrial motion for a ruling on the introduction of DNA testing,
the defense counsel “argued against the introduction of reports of conclusions reached by
nontestifying examiners, and urged that the admissible evidence from OCME’s files should
be limited to the pages of documents reflecting raw data that had been personally reviewed
and initialed by” the proffered criminalist witness (id. at 239). The majority further
explained that the testifying criminalist “performed an independent review of the raw data
generated by the testing analysts,” distinguishing her testimony from what this Court found
insufficient in John (id. at 245-246, citing 27 NY3d at 312-313). According to the Court,
the criminalist’s conclusions were instead “based upon her own ‘separate, independent and
unbiased analysis of the raw data,’ [ ]as reflected in the OCME laboratory report bearing
her name as analyst as well as in her own testimony at trial” (id. at 246, quoting John, 27
NY3d at 311). In addition, as defendant here points out, the defense counsel in Rodriguez
subpoenaed the raw data and employed their own forensic DNA expert to review it (see
brief for respondent [People v Rodriguez, 31 NY3d at 1067] at 3, 8).
The Appellate Division’s description of defense counsel’s actions in Rodriguez thus
shed light on our summary decision there and confirm that we did not, as the majority
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suggests, foreclose an ineffectiveness claim based on pre-John conduct. Our holding in
Rodriguez that the record failed to establish counsel’s ineffectiveness was based on the
assumption “that counsel failed to assert a meritorious Confrontation Clause challenge”
(31 NY3d at 1068). From that premise, we then concluded that “the alleged omission d[id]
not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense
counsel would have failed to assert it,’ ” (Rodriguez, 31 NY3d at 1068, quoting McGee, 20
NY3d at 518). As our memorandum decision and the record of that criminalist’s testimony
suggest, the defendant’s allegations of a meritorious confrontation claim may have been
exaggerated—based on the law at the time—and not clear-cut grounds for a defense
objection (see id.; Rodriguez, 153 AD3d at 239-247).3 As we further noted, on that record,
defendant also failed to demonstrate “ ‘that the decision to forgo the contention could not
have been grounded in a legitimate trial strategy’ ” (Rodriguez, 31 NY3d at 1068, quoting
McGee, 20 NY3d at 518). Notably, the defendant in Rodriguez did not advance an
ineffective assistance of counsel claim at the Appellate Division, and made that claim for
the first time on appeal to our Court (compare Rodriguez, 153 AD3d at 235, with id., 31
NY3d at 1067).
Defendant here presents a different case. Based on the record and the law at the time
of defendant’s trial, the Confrontation Clause violation is plain, whereas in Rodriguez we
merely assumed arguendo that the defendant had a meritorious confrontation challenge
3
In fact, the Appellate Division majority, after deeming the Confrontation Clause claim
unpreserved, held that any such claim would have been futile anyway had defense counsel
properly raised it (see Rodriguez, 153 AD3d at 238).
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before concluding that defense counsel there was not ineffective for failing to raise it (31
NY3d at 1068). Defense counsel here did not object to the DNA evidence based on
Ferrara’s lack of involvement in the testing of the DNA evidence that was the core of the
prosecution’s case. In contrast, defense counsel in Rodriguez vigorously objected to the
proffered evidence on what were essentially Confrontation Clause grounds (see Rodriguez,
153 AD3d at 239). Indeed, defense counsel there did not merely object, but also sought
and eventually was granted access to the raw data to conduct independent DNA testing,
the results of which may have informed counsel’s decisions regarding the DNA evidence
in that case.4 In contrast, here, defense counsel’s actions belie any reasonable trial strategy
for failing to object to admission of the DNA evidence even though counsel based their
arguments to the jury for discounting the DNA evidence on the very same grounds they
could have raised to the judge for excluding that evidence (see McGee, 20 NY3d at 518).
IV.
The DNA evidence was the only direct link connecting defendant to the crime.
Defense counsel understood as much and argued to the jury that this evidence should not
be credited, in part, because it was presented by someone who did not conduct the tests.
However, defense counsel could have and should have avoided creating this
post-admission uphill battle by objecting to prevent its admission on confrontation grounds
in the first instance, based on existing Supreme Court and state decisional law. This single
failure had an outsized impact on the verdict because it allowed the prosecution to put the
4
Indeed, Rodriguez’s trial attorney “did not present any evidence at trial” (Rodriguez, 153
AD3d at 252 [Acosta, P.J., dissenting]).
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most compelling evidence of defendant’s guilt before the jury. Therefore, this error
deprived defendant of effective assistance and, accordingly, requires reversal and a new
trial.
I dissent.
Order affirmed, in a memorandum. Chief Judge Wilson and Judges Garcia, Singas,
Cannataro, Troutman and Halligan concur. Judge Rivera dissents in an opinion.
Decided November 21, 2023
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