PEOPLE v. VARGAS

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The PEOPLE of the State of New York, Respondent, v. Luis VARGAS, Defendant–Appellant.

Decided: October 09, 2012

TOM, J.P., MAZZARELLI, CATTERSON, RENWICK, DEGRASSE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 26, 2010, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that made reference to data gathered by nontestifying technicians (see People v. Brown, 13 N.Y.3d 332 [2009] ). Williams v. Illinois (––– U.S. ––––, 132 S.Ct. 2221, 2242–2244 [2012] ) provides further support for the proposition that the DNA evidence in this case did not violate the Confrontation Clause.

The court erred in ruling that class sign-in sheets from the program defendant was enrolled in on the date of the crime were admissible under the business records exception to the hearsay rule. The evidence did not establish that these records were kept “regularly, systematically [and] routinely” (People v. Kennedy, 68 N.Y.2d 569, 579 [1986] ), or that if kept in the regular course of business, they were “needed and relied on in the performance of the functions of the business” (People v. Cratsley, 86 N.Y.2d 81, 89 [1995] ). There was no other basis for admissibility. However, the error was harmless in light of the overwhelming evidence of defendant's guilt, including the DNA match (see People v. Crimmins, 36 N.Y.2d 230 [1975] ).

We perceive no basis for reducing the sentence.