People v Fucito
2013 NY Slip Op 05538 [108 AD3d 777]
July 31, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 21, 2013


The People of the State of New York, Respondent,
v
Joseph Fucito, Appellant.

—[*1] Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered February 11, 2010, convicting him of attempted robbery in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant's contention, his right to confrontation (see US Const 6th Amend) was not violated by the admission into evidence of reports generated by the Office of the Chief Medical Examiner of the City of New York. Each of these reports consisted of a DNA profile developed from samples extracted from items found at the crime scene. The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and "consisted of merely machine-generated graphs" and raw data (People v Brown, 13 NY3d 332, 340 [2009]). Accordingly, the reports were not "testimonial" in nature (Crawford v Washington, 541 US 36, 36 [2004]; see People v Brown, 13 NY3d 332 [2009]).

Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518 [a]; People v Brown, 13 NY3d at 341; People v Dail, 69 AD3d 873, 874 [2010]; People v Jenkins, 55 AD3d 850, 851 [2008]), who also conducted the actual analysis and interpretation of the data contained in the reports at issue. Therefore, the admission of the laboratory reports and the testimony of the assistant director did not violate the defendant's right of confrontation (see People v Brown, 13 NY3d at 340; People v Thompson, 70 AD3d 866, 866 [2010]; People v Dail, 69 AD3d at 875; People v Jenkins, 55 AD3d at 851). Skelos, J.P., Dickerson, Austin and Cohen, JJ., concur.