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The People &c., Respondent, v. George Tsintzelis, Appellant (No. 17).; Jose Velez, Appellant (No. 18)

People v. George Tsintzelis (No. 17); Jose Velez (No. 18)

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Chief Judge DiFiore and Judges Stein, Fahey, Garcia, Wilson and Feinman concur. Judge Rivera concurs in result in an opinion in which Judge Wilson concurs.

MEMORANDUM: In each case the order of the Appellate Division should be reversed and a new trial ordered. In People v. John, we held that, when confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “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” (27 NY3d 294, 315 [2016]). In People v. Austin, we reiterated that a testifying analyst who did not participate in the generation of a testimonial DNA profile satisfies the Confrontation Clause’s requirements only if the analyst “used his or her independent analysis on the raw data to arrive at his or her own conclusions” (30 NY3d 98, 105 [2017] [quotations omitted]). The records before us do not establish that the testifying analyst had such a role in either case. Accordingly, because the analyst’s hearsay testimony as to the DNA profiles developed from the post-arrest buccal swabs “easily satisfies the primary purpose test” for determining whether evidence is testimonial (see id. at 103), we conclude that her testimony and the admission of those DNA profiles into evidence, over defendants’ objections, violated defendants’ confrontation rights.¹ These errors are not harmless. In both cases, the People relied solely on the evidence of the DNA profile generated from the post-arrest buccal swabs to prove defendants’ guilt at trial (see id. at 104).²

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