PEOPLE v. MITCHELL (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered December 9, 2005, convicting him of murder in the second degree (two counts) and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At trial, the People offered into evidence the results of DNA testing performed on samples taken from the decedent and the defendant's clothing.   The test results were offered through the testimony of an expert in DNA testing employed by the Office of the Chief Medical Examiner.   The expert performed a portion of the testing herself, and supervised other employees who performed the remainder of testing.

 The defendant's contention that the admission of this DNA evidence violated his constitutional right to confront his accusers (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) because the expert offering the evidence had not personally conducted all of the tests, is unpreserved for appellate review (see CPL 470.05[2];  People v. Bones, 17 A.D.3d 689, 793 N.Y.S.2d 545).   In any event, the DNA evidence was properly admitted under the business record exception to the hearsay rule (see CPLR 4518 [a];  People v. Baylor, 25 A.D.3d 562, 806 N.Y.S.2d 422), and admitting that evidence did not violate the defendant's right of confrontation (see People v. Grogan, 28 A.D.3d 579, 816 N.Y.S.2d 93).