The People, etc., respondent, v. Joseph Fucito, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Joseph Fucito, appellant.

2010–02047 (Ind.No. 641/08)

Decided: July 31, 2013

PETER B. SKELOS, J.P. THOMAS A. DICKERSON LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. 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.

Argued—May 14, 2013


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 U.S. 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).   Accordingly, the reports were not “testimonial” in nature (Crawford v. Washington, 541 U.S. 36, 36;  see People v. Brown, 13 NY3d 332).

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;  People v. Jenkins, 55 AD3d 850, 851), 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;  People v. Dail, 69 AD3d at 875;  People v. Jenkins, 55 AD3d at 851).



Aprilanne Agostino

Clerk of the Court

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