People v. John

52 N.E.3d 1114, 27 N.Y.3d 294

• Court: New York Court of Appeals
• Decided: April 28, 2016
• Status: Published

Opinions

OPINION OF THE COURT

Chief Judge DiFiore.

On this appeal, we address whether defendant’s Sixth Amendment right to confront the witnesses against him was violated when the People introduced DNA reports into evidence, asserting that defendant’s DNA profile was found on the gun that was the subject of the charged possessory weapon offense, without producing a single witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile from the gun or defendant’s exemplar. We conclude that, under the circumstances presented here, defendant’s right to confrontation was violated.

I.

Defendant was involved in an altercation just outside of his apartment building, during which he pointed a gun at complainant. Defendant’s neighbor, the ground floor resident of the three-story, multifamily brownstone, witnessed the encounter and called the police. When the police arrived and investigated, defendant was arrested. Defendant’s neighbor advised the responding officer that she had seen defendant go into the building’s basement with something in his hand. She indicated the door to the basement was the one across from her apartment.

The officer entered the basement through a latched but unlocked door. The basement was unlit and unfurnished, with dirt on the floor, and, although apparently used for storage, it did not have any areas designated for particular tenants. The officer searched the basement using his flashlight and found a blue box marked “Smith & Wesson,” which he recognized as “the same box that [his] firearm came in.” He opened the box, which contained a loaded 9 millimeter handgun and an extra magazine. When later shown the gun, complainant identified it as the same one defendant had pointed at him.

The gun was secured and an officer from the evidence collection team took three swabs from the gun to test for the presence of DNA. The officer prepared a written request for a laboratory examination on the evidence, with defendant listed as the arrestee. This report, along with the swabs, was submitted to the Department of Forensic Biology of the New York City Office of Chief Medical Examiner (OCME), plainly stating that the specific reason for the requested analysis was “PERP HANDLED THE FIREARM.”

Using PCR (polymerase chain reaction) DNA typing, the scientific reliability of which, if performed correctly, is not in issue, the lab found the presence of a single source male DNA profile on swabs from the gun. The combination of the DNA alleles found in the sample would be expected to be found in approximately “1 in greater than 1 trillion people.” The PCR DNA typing analyzes DNA in the form of alleles that are found at the same location (locus) of the DNA on homologous (matching) chromosomes. A person has two different alleles at a particular locus. OCME tests for 15 specific short tandem repeat (STR) locations (loci) and the amelogenin locus, which is used to determine the sex origin of the sample. The STR alleles are identified by the number of core repeats present at the locus. Experienced analysts convert these numeric identifiers into a DNA profile using machine-generated raw data analyzed by a software program and the analyst’s independent manual examination which involves an editing process (see John M. Butler, Fundamentals of Forensic DNA Typing at 213 [2010]).

In this case, on February 5, 2010, analyst “CJB” completed the electropherogram that graphically depicted the peaks of the DNA analysis and a handwritten editing sheet for the DNA typing of the gun swabs and exported the 16 loci DNA profile from the gun swabs into a spreadsheet. On February 16, analyst Melissa Huyck¹ issued a report containing defendant’s name and arrest number and stating that the 16 loci profile was developed through PCR analysis and that a comparison of the DNA profile recovered from the gun could be done upon submission of an oral swab from a suspect. Upon defendant’s indictment, the People, in April 2010, moved pursuant to CPL article 240 for a court order to take defendant’s DNA by buccal swabs. The same officer who had swabbed the gun collected buccal swabs from defendant in September 2010. On September 20th, and again in a retest on the 24th, the lab generated a 16 loci DNA profile from defendant’s exemplar. Analyst “CS” was involved in the two generations of the same DNA profile from the exemplar, initialing both of the edit tables, the electro-pherogram and the allele table — another spreadsheet containing the generated DNA profile. The DNA profiles are printed in a simple series of 15 pairs of numbers and the XY sex designation. In a table resembling a box score, dated October 1, 2010, and initialed by Huyck (MAH), the two DNA profiles generated from the gun swabs and the exemplar were listed in “identifier loci order” and “CODIS loci order.” The series of numbers were identical.

Prior to trial, defendant moved to suppress the firearm. Defendant maintained that he had standing based upon a reasonable expectation of privacy both in the gun box and in the basement from which the gun was recovered, that there was no exigency permitting the warrantless search for a gun since he was already under arrest at the time of the search of the basement and that the officer did not obtain the neighbor’s consent to search the shared basement. After a suppression hearing, the court denied the motion, concluding that the neighbor had consented to the search of the basement, that defendant had no objective privacy interest in the basement and that once the officer was lawfully in the basement and “he saw the firearm it was appropriate for him to seize it.”

Defendant also moved prior to trial to either preclude the People from introducing the OCME laboratory reports certifying the DNA test results into evidence, or require each analyst who had tested the DNA to testify at trial. Defendant cited Bullcoming v New Mexico (564 US 647 [2011]), Melendez-Diaz v Massachusetts (557 US 305 [2009]) and People v Brown (13 NY3d 332 [2009]) in support of his argument that it would violate his Sixth Amendment right to confrontation to introduce the DNA evidence through a surrogate expert who had not performed, witnessed or supervised the DNA testing of the samples. The court denied the motion.

At trial, the People called the analyst Huyck as an expert in forensic biology and DNA analysis. She testified that she was an OCME Criminalist Level II within the Department of Forensic Biology and that the Department was predominantly responsible for examining and testing items from crime scenes for DNA analysis. When the People sought to introduce the OCME files containing the DNA laboratory reports and test results (exhibits 6A [DNA report on the gun swabs] and 6B [DNA report on the suspect’s exemplar]) as certified business records through Huyck, defense counsel conducted a voir dire examination of the witness. Huyck testified as to the stages necessary to generate a DNA profile and agreed with defense counsel’s statement that an analyst does not just “put a piece of paper in the machine and it does all of the work for you.” Rather, as Huyck explained, the sample is unpacked and subject to four stages of DNA testing: extraction (to release the DNA from any cells), quantitation (to determine how much DNA was present), amplification (to make millions of copies of the specific locations, or loci of the DNA, to be tested) and then, “running a sample on a DNA instrument.” In this final stage, the analyst uses an electrophoresis instrument and a sophisticated software program (GeneMapper ID in this case) to produce an electropherogram, which graphically depicts the peaks of the DNA analysis, and conducts an interpretive analysis to compile the numerical DNA profile that is used for comparison.²

Huyck testified that, according to OCME policy, due to the volume of their workload, different analysts perform each stage and that various controls and duplicate tests were conducted to ensure that the results were accurate and reliable. With respect to the gun swabs, Huyck testified that she opened the package containing the swabs, cut portions of each swab and put them into a tube. She neither conducted nor witnessed nor supervised any part of the DNA testing on the gun swabs that followed. By Huyck’s count, the four-stage process involved six other analysts. Based on the reports for the four-stage process on defendant’s exemplar, Huyck, who was, again, not involved in the testing, estimated that aside from the two analysts who did the cutting of the sample, there were eight more analysts involved.³ Significantly, one analyst and one reviewer provided the reports for each of the two DNA profiles generated using the electrophoresis instrument and the software program on the gun swabs and the exemplar.

At the end of the voir dire, defendant renewed his objection to allowing the laboratory reports into evidence. He asserted that the reports were testimonial and that under Bullcoming the analysts who had performed the DNA tests had to be produced for cross-examination. The court overruled the objection and allowed the reports into evidence. The People also submitted, over defendant’s objection, the table depicting the two generated DNA profiles (exhibit 7) as 15 pairs of numbers and the XY sex determinations. While the exhibit was displayed to the jury, Huyck opined that the two obviously identical series of numbers, represented in box score form, were a match and that the source of the two DNA profiles were the gun and defendant. Huyck’s opinion as to the comparative match of the two identical DNA profiles is not at issue.

On cross-examination, Huyck testified that she had reviewed the laboratory reports “to make sure that everything looked okay and everything was signed off on by the necessary people.” Defendant then inquired about the electropherogram from exhibit 6A, pertaining to the gun swab results. Huyck testified that the electropherogram was “a fancy name for DNA results” and that the chart looked like “a bunch of peaks,” with each peak representing “one of the numbers” used to identify the alleles. Peak heights are important in the analysis and Huyck explained that, on occasion, the results would contain “artifacts” which she defined as — “just little peaks that actually aren’t from the sample itself.” When these peaks appear, it is necessary for the analyst to engage in an editing process, which is accomplished through the use of a filter in the software program or by the testing analyst after the “data comes off the instrument.” In the latter instance, an analyst along with a reviewing analyst will remove a peak, known as a “stutter,” if it “is below 20 percent of the actual peak.” She testified that “in this case [as to the gun swabs] there were two or four peaks taken out in the stutter position.” Huyck, who did not engage in the editing process, claimed that she “did review [the results of the editing to] make sure that [she] agreed that that edit, that artifact should have been taken out.” The “Forensic Biology - Editing Sheet” for the gun swabs contained handwritten notes, initialed by the testing analyst and the reviewing analyst, neither of whom was Huyck. The report noted pull ups, nonspecific artifacts and four stutters in the testing of the sample from the gun swabs. The very same analyst who initialed the editing sheet for the gun swabs also initialed the “PROFILE GENERATION TABLE” setting forth the 16 loci DNA profile, as well as the electropherogram.

Defendant was convicted of criminal possession of a weapon in the second degree and menacing in the second degree. The Appellate Division affirmed, concluding that suppression was properly denied, with one Justice concurring in the result (120 AD3d 511 [2d Dept 2014]). A Justice of the Appellate Division granted defendant leave to appeal (24 NY3d 1005 [2014]). We now reverse.

II

As a preliminary matter, defendant’s arguments concerning the warrantless search and seizure are only partially preserved. There is record support for the affirmed finding that, based on the neighbor’s conduct, the officer was authorized to search the basement (see e.g. People v Leach, 21 NY3d 969, 971-972 [2013]; People v Adams, 53 NY2d 1, 8 [1981]). Moreover, once the officer saw the Smith & Wesson box in plain view, he was authorized to seize it (see People v Brown, 96 NY2d 80, 88-89 [2001]; People v Diaz, 81 NY2d 106, 110-111 [1993]). Defendant failed to argue to the suppression court, as he does now, that once the officer located the gun box, he was unable to open it because he could not be sure that the Smith & Wesson box contained a gun (see People v Graham, 25 NY3d 994, 996 [2015]; CPL 470.05 [2]). Although the Appellate Division went on to address the legality of the officer’s subsequent search of the gun box, since that specific argument was not raised to the suppression court, it is beyond our review (see People v Vasquez, 66 NY2d 968, 970 [1985]).

Defendant’s remaining argument is that the admission into evidence of the laboratory reports violated his Sixth Amendment right to confrontation. Preliminarily, there is no dispute that DNA evidence is powerful forensic evidence in determining either the guilt or the innocence of an accused. The DNA profile evidence in this case was used as substantive evidence to prove defendant’s guilt, as it directly linked him to the loaded gun that was found in a box in the basement. As the accused in a criminal prosecution, defendant has the right to be confronted with the witnesses “who bear testimony against him” (see Melendez-Diaz, 557 US at 309 [internal quotation marks omitted], quoting 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, 564 US at 657). Statements that are considered testimonial include “affidavits, . . . similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . [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” (Crawford, 541 US at 51-52 [internal quotation marks and citations omitted]). Forensic evidence reports admitted into evidence for proving the truth of the matter asserted are not exempt from the Confrontation Clause under Crawford and its progeny.

In Melendez-Diaz, the Court concluded that notarized certificates of forensic analysis — stating that a substance seized from the defendant was cocaine — were testimonial as the report was created to serve as evidence in a criminal proceeding. The Court determined that the certificates were “functionally identical to live, in-court testimony” and that their “sole purpose” was evidentiary in nature (see 557 US at 310-311). The Court recognized that the Confrontation Clause may create additional burdens on the prosecution at criminal trials, but like other constitutional rights, the right to confrontation “is binding, and we may not disregard it at our convenience” (557 US at 325). As it was already the norm in New York for the chemist who performed the analyses on the controlled substances to be the trial witness in drug crime prosecutions, the potential additional burden was not a concern in this state.

In Bullcoming, the Court, noting that Crawford in 2004 was a pathmarking decision, found an unsworn laboratory report certifying that the defendant’s blood alcohol level was above the legal threshold for aggravated DWI to be testimonial. At trial, the prosecution did not call the analyst who performed the gas chromatograph test, which produced a printout of the test results of the defendant’s blood alcohol content. Instead, the prosecution introduced into evidence the laboratory report as a business record and used a different trained analyst, one who was familiar with the testing procedures and was an administrator of the statewide blood and alcohol programs, to testify as to the machine-generated results. The expert witness, similar to Huyck, was required as part of his job responsibility to provide courtroom testimony and had reviewed the reported test results, but had not supervised, conducted or observed the testing that produced the results upon which he relied for his opinion. The same scenario that occurred in Bull-coming occurred in this case, to wit, a witness who never tested the forensic evidence that incriminated an accused defendant was asserting that the nontestifying analyst’s testing results were truthful.

The Court rejected the argument that the “surrogate testimony” provided by the expert at trial was adequate to satisfy the defendant’s right to confrontation (see 564 US at 652). The Court rejected the proposition that the nontestifying analyst had merely certified a machine-generated number, observing that an analyst, in order to work the instrument, had to have specialized knowledge and training. It further observed that “the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar” (564 US at 661). Reiterating that the Confrontation Clause requires that even reliable evidence be subject to cross-examination, the Court concluded that “analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa’ ” (564 US at 661, quoting Melendez-Diaz, 557 US at 319-320 n 6). The Court observed that a surrogate expert would be unable to testify to what the testing analyst knew or observed about the testing process, or to the analyst’s proficiency or veracity (see 564 US at 661-662). “[T]he 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” (564 US at 662).

In finding that the laboratory report was testimonial on the basis that it was prepared by the testing analysts for the purpose of establishing some fact in a criminal proceeding, the Court emphasized that the defendant’s blood was provided by police to the state’s Department of Health laboratory, which was required by law to assist in police investigations. Further, the testing analyst had prepared a certificate concerning the blood alcohol content results in a signed but unsworn document, which was deemed sufficiently formalized (see 564 US at 664-665).

Recently, in Williams v Illinois (567 US —, 132 S Ct 2221 [2012]), a four-Justice plurality of the Supreme Court determined that there was no Confrontation Clause violation when a forensic expert in a bench trial was permitted to testify to an opinion that two DNA profiles matched based on facts about which the expert was not competent to testify. The DNA profiles, however, were not admitted into evidence. Specifically, the issue was whether it was proper for a DNA expert who had neither performed the actual testing nor was vouching for the accuracy of the profiles to testify that a DNA profile was generated by an outside lab from semen found on the victim’s vaginal swabs, and that the DNA profile matched the DNA profile generated by the police lab using the defendant’s blood.

The plurality took two paths to its conclusion that the expert’s opinion of a DNA match between two profiles did not violate the Confrontation Clause. First, it concluded that the fact that the source of the DNA profile was found on the semen from the victim’s vaginal swabs was not a fact admitted into evidence, as the lab report setting forth this information had not been admitted, and the expert’s reference to that fact was not offered for the truth of the matter asserted therein. Pivot-ally, the Court opined that since this was a bench trial, the trier of fact, which was a judge and not a layperson, would understand this evidentiary distinction (see 567 US at —, 132 S Ct at 2234-2235), i.e., that the factual statements had been “related by the expert solely for the purpose of explaining the assumptions on which [his or her] opinion rest[ed]” (567 US at —, 132 S Ct at 2228). Since the expert’s opinion evidence of a DNA match in Williams had no relevancy without proof that the defendant’s DNA profile was derived from the vaginal swabs from the rape victim and that the DNA profile was accurate, and neither foundational fact was admitted into evidence, this opinion testimony was inadmissible under New York law (see People v Goldstein, 6 NY3d 119, 127-129 [2005]). Importantly, the plurality also found that their conclusion was entirely consistent with Melendez-Diaz and Bullcoming, because in those cases, unlike Williams, the forensic reports of the nontestifying analysts were introduced into evidence for the truth of the matter asserted.

On its second path, the plurality used a primary purpose test narrower than the one stated in Bullcoming. It observed that, even if the expert’s hearsay testimony as to the source of the DNA had been offered for the truth of the matter asserted, it was not a testimonial statement that the Confrontation Clause was originally understood to encompass (see 567 US at —, 132 S Ct at 2228) — the reason being that the laboratory report as to the source of the DNA from the vaginal swabs “was not prepared for the primary purpose of accusing a targeted individual” (567 US at —, 132 S Ct at 2243). Its primary purpose was therefore not to create evidence for use at a criminal trial of a suspect who had already been captured, but “to catch a dangerous rapist who was still at large” (567 US at —, 132 S Ct at 2243). The forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were made for the purpose of proving the guilt of a particular defendant at trial. Thus, under the circumstances in Williams where there is no particular defendant, “there was no ‘prospect of fabrication’ and no incentive to produce anything other than a scientifically sound and reliable profile” (567 US at —, 132 S Ct at 2244).

Justice Thomas concurred in the result, but nonetheless agreed with the four dissenting Justices that the DNA reports in Williams were offered into evidence for their truth, and that the plurality’s narrow primary purpose test, requiring that forensic testing involve a targeted individual in order to be testimonial, was not based on constitutional text. However, he found that the reports lacked the necessary “formality and solemnity” that would render them testimonial within the meaning of the Confrontation Clause (see 567 US at —, 132 S Ct at 2255). None of the other eight Justices agreed with the latter rigid interpretation of testimonial hearsay.

The remaining four Justices dissented, finding the case controlled by Bullcoming. The dissent would have found that the DNA reports were admitted into evidence for their truth, that the reports were testimonial and that the narrow primary purpose test used by the plurality was not grounded in the constitutional text. In short, an analyst who performed the DNA tests was required to testify (see 567 US at —, —, 132 S Ct at 2268, 2273). The dissent further observed that the Williams decision has left significant confusion in its wake.

III.

For our part, we 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. “[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], quoting Michigan v Bryant, 562 US 344, 358 [2011]). Adhering to the decisions of the Supreme Court, we did not declare any ironclad rule as to a definition of testimonial evidence. We have considered two factors of particular importance in deciding whether a statement is testimonial— “ ‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing.’ Furthermore, the ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform these two interrelated touchstones’ ” (Pealer, 20 NY3d at 453 [citation omitted], quoting People v Rawlins, 10 NY3d 136, 156 [2008], cert denied sub nom. Meekins v New York, 557 US 934 [2009]).

Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged. The testing analysts purposefully recorded the DNA profile test results, thereby providing the very basis for the scientific conclusions rendered thereon. Under these circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial. The DNA profiles were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of a defendant in his pending criminal action. The primary purpose of the laboratory examination on the gun swabs could not have been lost on the OCME analysts, as the laboratory reports contain the police request for examination of the gun swabs on the basis that the “perp” handled the gun and repeatedly identify the samples as “gun swabs.” In addition, certain documents in the OCME file refer to the suspect (defendant) by name.

The facts of this case fit into even the narrow primary purpose test articulated by the Williams plurality.⁴ On this record, the admission into evidence of the laboratory reports for their truth as to the generation of the DNA profile from the gun without a testifying analyst who performed, witnessed or supervised any portion of the testing is indistinguishable from Bullcoming.5 The fact that defendant’s DNA profile was found on the gun was established by testimonial hearsay in the laboratory report, which could not be admitted as a business record without honoring the right of confrontation. We cannot ignore that the People did not produce the analyst who generated the DNA profile from either the gun or the exemplar in this case. As a result, these critical analysts who engaged in an independent and qualitative analysis of the data during the DNA typing tests — none of whom was claimed to be unavailable — were effectively insulated from cross-examination. And Huyck, instead, was permitted to parrot the recorded findings that were derived from the critical witnesses’ subjective analyses. To be sure, Huyck merely exported the very DNA profiles that the testing analysts had generated to create a box score chart. Although Huyck testified that she had subsequently reviewed the reports of the DNA profile generated by the non-testifying analysts and agreed with the results they obtained in the actual performance of the testing, this is nothing more than surrogate testimony to prove a required fact — that defendant’s DNA was found on the loaded gun for which he stood charged.

IV

By finding the report of blood alcohol content results from a gas chromatograph to be testimonial, Bullcoming demands that where the primary purpose test has been satisfied, forensic reports offered into evidence for their truth, as here, must be assessed for their admissibility as those reports are not covered by any categorical exception to testimonial hearsay. In this regard, although we have previously held that certain DNA laboratory reports were raw data or machine-generated (see People v Meekins, 10 NY3d 136, 158-159 [2008]; People v Brown, 13 NY3d 332, 340 [2009]), Huyck’s testimony and the laboratory reports admitted into evidence prove otherwise in this case. Further, the original DNA profiles in Brown and Meekins would not be considered testimonial hearsay as they do not satisfy the Williams primary purpose test. The profiles, like those in Williams, were generated from rape kits by private laboratories when the suspect was unknown and the defendant was later identified on a “cold hit” from the CODIS database. Nonetheless, our focus in both of those cases was that extrajudicial facts were shepherded into evidence by a testifying expert whose subsequent independent analysis of that raw data provided the assurance that the DNA profile generated was accurate. Our sharpest focus was on the final stage of the DNA typing results, to wit, the generated DNA profile.

In Brown, when we characterized the DNA evidence as “machine-generated graphs,” we referred to the electropherogram. The testifying witness, an OCME Level IV Criminalist who had supervised the generation of the DNA profile from the defendant’s exemplar, had personally examined and independently interpreted the data (see 13 NY3d at 340; People v Brown, 9 Misc 3d 420 [Sup Ct, Queens County 2005]). Determinatively, the expert testified that any conclusions or opinions she reached from the raw data supplied by the outside laboratory were her own and were not contained in any reports (see 13 NY3d at 337). By contrast, Huyck, who made no such claim and who was not an OCME supervisor, reviewed the reports of the other OCME analysts, including the numerical DNA profiles generated after an editing process, saw that the “necessary people” had signed off and agreed with their conclusions. This cursory testimony vitiated defendant’s right to confront the analysts who actually generated the DNA profiles. Contrary to the dissent’s position, we conclude that Huyck’s exportation of the two identical numerical sequences into a chart so that the jury could easily see the numbers were identical is not the same as independently verifying the accuracy of testing conducted by the nontestifying analysts who produced those two DNA profiles. To this end, Huyck was acting purely as a surrogate witness as defined by Bullcoming in vouching for the accuracy of the DNA profiles. Her conclusory testimony in this regard was based solely on the reports of the nontestifying analysts that were admitted into evidence for their truth and not based on a separate, independent and unbiased analysis of the raw data.⁶

We interpret our prior decisions in Brown and Meekins informed by the binding precedent of the Supreme Court in this Sixth Amendment context. The record in this particular case perforce informs the present decision as to the nature of the testimonial evidence of the DNA profiles. In contrast, the dissent, by apparently discounting the continued viability of the Bullcoming and Melendez-Diaz decisions, notwithstanding that the 'Williams plurality did not overrule its own precedent, unduly relies on core factors that informed the dissents in those cases in defining testimonial evidence when dealing with forensic reports. The multiple factors set forth in those dissents — especially laboratory workload, the professional detachment of laboratory analysts and the analysts’ objective recording of facts pursuant to scientific protocols — are once again touted in the dissent in this case.

We will not indulge in the science fiction that DNA evidence is merely machine-generated, a concept that reduces DNA testing to an automated exercise requiring no skill set or application of expertise or judgment. Likewise, the sophisticated software programs require trained analysts who engage in skilled interpretation of the data from the electrophoresis instrument, using the computer software with its color images, particularly as to the peaks in the graphs, to construct the DNA profile. Even Huyck conceded that the testing and reviewing analysts independently make these necessary and qualitative judgments by applying the laboratory’s thresholds when using the software.⁷ And, of course, the editing tables in the admitted DNA reports that were compiled during electrophoresis as to the testing of both the gun swabs and defendant’s exemplar in this case bear witness to this fact.

As Huyck testified, every person who prepared the information in the laboratory reports had a business duty to do so truthfully and accurately. It is incongruous to our state’s mission to foster scientific excellence in our public DNA crime laboratories to suggest that the recording of the test results in the reports of accredited labs is not an entry of scientific certainty because of the absence of a hypertechnical requirement of formalism. Under these circumstances, even though the DNA profiles were not provided under oath, they were obviously facts prepared to be used as critical evidence at a criminal trial and are sufficiently formal to be considered testimonial (see e.g. Goldstein, 6 NY3d at 129). Moreover, an excessive emphasis on formalism for the admissibility of business records is particularly unwise in the area of scientific reports, as the certification requirement can be easily subverted by a simple omission in the format of the documents, with a design to facilitate their use as evidence in a criminal trial.

V

The People raise the same concern previously presented to the United States Supreme Court in its Crawford cases dealing with the admission into evidence of forensic science laboratory reports — given OCME’s team and rotation procedures, practical difficulties will be presented if they are required to produce each analyst who was involved in the DNA testing. The Court has not accepted these concerns as a basis for categorically exempting forensic evidence as testimonial hearsay and dispensing with a defendant’s constitutional right to confrontation (see Bullcoming, 564 US at 665; Melendez-Diaz, 557 US at 325-328). We hold, however, that an “all analysts” rule is not consistent with the decisional law. Clearly, not every person who comes in contact with the evidence — for instance, analysts who are performing duplicative work, such as reviewers, those involved in the testing of controls, or certain individuals who would only be relevant to issues as to the chain of custody — must be produced (see Melendez-Diaz, 557 US at 311 n 1). Here, the record is somewhat limited on this issue as neither the People nor defendant seriously attempted to demonstrate the importance of any one analyst or any one step in the actual DNA typing process. However, where the laboratory report is testimonial in nature — and the generation of the DNA profile in this pending criminal action was testimonial — at least one analyst with the requisite personal knowledge must testify (see Williams, 567 US at — n 4, 132 S Ct at 2273 n 4 [Kagan, J., dissenting] [stating that “none of our cases . . . has presented the question of how many analysts must testify about a given report . . . The problem in the cases ... is that no analyst came forward to testify” and opining that the existence of that open question “is no reason to wrongly decide the case before us — which, it bears repeating, involved the testimony of not twelve or six or three or one, but zero . . . analysts”]).

More succinctly, nothing in this record supports the conclusion that the analysts involved in the preliminary testing stages, specifically, the extraction, quantitation or amplification stages, are necessary witnesses. As this was a 16 loci DNA profile from a single source, any hypothetical missteps of the analysts in the multiple stages preliminary to the DNA typing at the electrophoresis stage would result in either no DNA profile or an incomplete DNA profile, or one readily inconsistent with a single source 16 loci profile.⁸ As noted in the Williams plurality, “the knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard” (567 US at —, 132 S Ct at 2244). Accordingly, we conclude that it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged. In addition, OCME or a laboratory that uses a similar multiple-analyst model may adapt its operation so that a single analyst is qualified to testify as to the DNA profile testing. For example, an analyst who generated the DNA profile from one sample may also observe the final stage of testing or retesting involved in the generation of the other profile. Nor do we suggest that, when the testing analysts are unavailable, a fully qualified OCME expert, like the witness in Brown, cannot testify after analyzing the necessary data, including an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis. Thus, the claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford and Bullcoming.9

Notably, courts around the country have grappled with the application of Bullcoming and Williams vis-á-vis DNA evidence and have sought to satisfy a defendant’s right to confrontation while sensibly placing some limit on the number of analysts who are necessary to testify at trial (see e.g. State v Roach, 219 NJ 58, 79, 95 A3d 683, 695-696 [2014] [observing that an independent reviewer trained in the testing procedures and knowledgeable about the laboratory’s processes can testify based on his or her independent review of the raw DNA data and the conclusions drawn from that data; “(h)owever, the testimony must be provided by a truly independent and qualified reviewer of the underlying data and report, and the witness may not merely parrot the findings of another”]; Speers v State, 999 NE2d 850, 855 [Ind 2013] [testimony of technician who prepared sample for later testing was considered chain of custody and was not required where sole analyst who conducted DNA testing and prepared lab reports testified]; State v Lui, 179 Wash 2d 457, 489, 315 P3d 493, 508 [2014] [“the only ‘witness against’ the defendant in the course of the DNA testing process is the final analyst who examines the machine-generated data, creates a DNA profile, and makes a determination that the defendant’s profile matches some other profile”]; State v Lopez, 45 A3d 1, 14, 16 [RI 2012] [analyst who evaluated the raw data and prepared DNA profile was “the very witness . . . deemed necessary in Bullcoming” and the fact that he had used the data generated by other analysts to form his independent conclusion “did not bestow upon defendant the constitutional right to confront each and every one of those subordinate analysts”]; State v Medicine Eagle, 835 NW2d 886, 898-899, 2013 SD 60, ¶ 34 [SD 2013] [no confrontation violation where each analyst who performed steps of the testing did not testify, as testifying analyst participated in various steps in the DNA testing, “independently reviewed, analyzed, and compared the data,” and came to independent conclusions]; State v Gomez, 226 Ariz 165, 169-170, 244 P3d 1163, 1167-1168 [2010] [not every analyst that “handled the samples and obtained the machine-generated data” had to testify, where the testifying analyst was not a mere “conduit,” but had reached independent conclusions on the DNA profiles]; see also Commonwealth v Greineder, 464 Mass 580, 984 NE2d 804 [2013]; State v Norton, 443 Md 517, 117 A3d 1055 [2015]; Young v United States, 63 A3d 1033 [DC 2013]).¹⁰ We conclude that 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, must be available to testify.

Finally, the dissent’s concern about the admissibility of redacted autopsy reports, specifically ones omitting the opinions as to the cause and manner of death, is misplaced. We are not retreating from our prior decisions holding that, given the primary purpose of a medical examiner in conducting autopsies, such redacted reports — “a contemporaneous, objective account of observable facts that [do] not link the commission of the crime to a particular person” — are not testimonial (Pealer, 20 NY3d at 454; People v Freycinet, 11 NY3d 38, 42 [2008]; see also United States v James, 712 F3d 79, 99 [2d Cir 2013]).

Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

1 . The lab casefile also contains a DNA Profile Evaluation Form reflecting that Huyck checked the generated profile against the local OCME database, which is not to be confused with the national or state CODIS (Combined DNA Index System) database and which produced no match. The form also indicates that the DNA profile from the gun was reviewed not by Huyck but by another analyst who did an evaluation of the associated data and the positive and negative controls.

2 . The premise that DNA typing and the generation of the DNA profile is software driven and needs no independent manual evaluation by the trained analysts is both unsupported by the record, including Huyck’s testimony and the laboratory reports detailing the editing process attending the generation of the DNA profiles, and scientifically unsound. This meritless premise is also quite contrary to standard laboratory protocols including OCME’s protocols for the GeneMapper ID used in this case. Any claim that the machine-generated results from the gas chromatograph test admitted into evidence in Bullcoming required more independent evaluation and less skill, specialized knowledge and training than a DNA analyst generating a DNA profile is similarly scientifically unsound.

3 . The lab reports for defendant’s exemplar state that there was an electrophoresis failure involving a dropout of alleles in all samples (including defendant’s exemplar) at the same loci so, for quality control, the samples were all reamplified and run again in the electrophoresis instrument in order to generate the DNA profile. This may explain why there were two more analysts used for defendant’s exemplar.

4 . Contrary to the position taken by the dissent, this case is not analogous to Williams, or Brown for that matter, unless one eschews the pivotal fact that defendant was not only an identified suspect, but was charged with the possession of the very gun that the lab was subsequently asked to test. And, unlike Williams, the reports of the DNA profiles were admitted into evidence for their truth. Further, the plurality in Williams formulated a narrow primary purpose test for testimonial hearsay that would include this case, and conspicuously did not categorically exempt DNA laboratory reports from the Confrontation Clause. Although Justice Breyer, in his concurring opinion, discussed the possible solution of a presumptive exception for DNA reports, it was conditioned on the ability to allow the defendant to call the analysts on his or her own behalf, a proposal that might prove as onerous as an “all analysts” rule.

5 . The laboratory report in Melendez-Diaz was from the “State Laboratory Institute, a division of the Massachusetts Department of Public Health” (see 557 US at 346). The testifying witness in Bullcoming was from “the New Mexico Department of Health, Scientific Laboratory Division” (see 564 US at 652-653). The dissent relies heavily on the fact that OCME, affiliated with the NYC Department of Health and Mental Hygiene, and given its role as a medical examiner, is a government agency independent of law enforcement for purposes of the People’s discovery obligation under CPL article 240. This relationship was a factor in the primary purpose test considered in Pealer (20 NY3d at 454-455). However, since the predominant purpose of OCME’s Forensic Biology Department is to provide DNA testing on crime scene evidence for the New York City Police and prosecutors, the independent nature of the agency does not exclude it from the primary purpose test. To be sure, if the label of “independent agency” was controlling, Bullcoming would have been decided differently and we would have exempted OCME from our Confrontation Clause analysis long ago. Any emphasis on this factor in this particular case is unpersuasive as the evidence was submitted to the lab for testing during a pending criminal action. The preparation of these DNA profiles was not ancillary to the future prosecution of an unknown defendant (see 20 NY3d at 455).

6 . To the extent the dissent supposes that DNA typing does not involve the independent analysis of a trained expert, we note that Justice Breyer’s concurrence in Williams, relied upon by the dissent, cites the following description which proves otherwise:

“Using the proper computer software, we properly transcribed the data produced by the electropherogram into a report. We applied the proper criteria to review the computer determinations of what the allele values are at each of the chromosomal locations analyzed. We properly documented those allele values to produce the DNA profile” (567 US at —, 132 S Ct at 2254 [Appendix] [internal quotation marks omitted]).

7 . The present case involved a single source 16 loci DNA profile. This record does not provide a basis to review issues which may arise in the more complex interpretation of DNA profiles from mixtures or in high sensitivity DNA analysis. We note that the amicus curiae brief by the Innocence Network provides examples of wrongful convictions attributed to the misinterpretation of DNA profiles by analysts derived from mixture samples (see Innocence Network brief at 26-29). The complexity in the calling of alleles by the analyst in mixture and high sensitivity DNA samples while using the DNA typing computer software undermines any position favoring the use of experts who play no part in the generation of the DNA profile in the final stage of the DNA typing process.

8 . As a practical matter, in this case, “shoddy or dishonest work” (see Williams, 567 US at —, 132 S Ct at 2239) would appear unlikely to result in an exact match to defendant’s own DNA profile.

9 . There is also the option that, when a prosecution approaches trial, a single analyst, who was not involved in the original tests, may participate in the generation of DNA profiles during a retest of the samples, if same are available.

10 . The dissent would hold that, if the DNA profiles are testimonial, every analyst involved in generating the profiles must be produced for cross-examination (see dissenting op at 336). This sweeping conclusion is reached without citation and, as noted above, is inconsistent with the weight of authority, including the Williams plurality opinion.