As we have previously written, in 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

Despite that holding, the New York Court of Appeals has continued to consider the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example, the Court in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

That decision appears to be inconsistent with that rendered a few months later by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements 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.”

Despite this inconsistency between the New York holding and that of the Supreme Court, few were aggressively arguing that Meekins was wrongly decided, both because certiorari was denied in Meekins and because the Supreme Court granted certiorari in Briscoe v Virginia where the issue was whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

As discussed previously (here and here)there was concern that the decision in Briscoe would either limit or overturn Melendez-Diaz.

Instead, after oral argument, the Court in Briscoe (559 U. S. ____ (1/25/2010) merely remanded the case for further proceedings not inconsistent with the opinion in Melendez-Diaz. Thus, attorneys can now, with confidence, urge that Crawford fully applies to scientific and medical test. Not only should the holding in Meekins be questioned, but also those of the courts in US v Feliz (467 F3d 227 [2d Cir. 2006]) and People v Freycinet (11 NY3d 38 [2008]) limiting the application of Crawford with respect to autopsy reports.

As we have previously written, in 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

Despite that holding, the New York Court of Appeals has continued to consider the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example, the Court in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

That decision appears to be inconsistent with that rendered a few months later by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements 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.”

Despite this inconsistency between the New York holding and that of the Supreme Court, few were aggressively arguing that Meekins was wrongly decided, both because certiorari was denied in Meekins and because the Supreme Court granted certiorari in Briscoe v Virginia where the issue was whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

As discussed previously (here and here)there was concern that the decision in Briscoe would either limit or overturn Melendez-Diaz.

Instead, after oral argument, the Court in Briscoe (559 U. S. ____ (1/25/2010) merely remanded the case for further proceedings not inconsistent with the opinion in Melendez-Diaz. Thus, attorneys can now, with confidence, urge that Crawford fully applies to scientific and medical test. Not only should the holding in Meekins be questioned, but also those of the courts in US v Feliz (467 F3d 227 [2d Cir. 2006]) and People v Freycinet (11 NY3d 38 [2008]) limiting the application of Crawford with respect to autopsy reports.

One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized in his SORA determination because of his refusal to participate in such a program while his appeal was pending:

With respect to risk factor 12, it is undisputed that defendant refused to participate in sex offender treatment while he was incarcerated, but he contends that his refusal was based on the advice of defense counsel to refrain from participation. According to defendant, his appeal from the judgment of conviction was pending when the treatment was offered and, in the event of reversal on appeal and a subsequent new trial on all counts of the indictment, his participation in treatment would have required him to make admissions against his interest, in violation of his Fifth Amendment privilege against self-incrimination. We note in addition that the risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [2006]).

We thus agree with defendant that the court improvidently exercised its discretion in determining that defendant was not entitled to a downward departure from his presumptive risk level. We therefore substitute our own discretion, " even in the absence of an abuse [of discretion],' " and we modify the order by determining that defendant is a level two risk (People v Smith, 30 AD3d 1070, 1071, quoting Matter of Von Bulow, 63 NY2d 221, 224; see People v Brewer, 63 AD3d 1604). In our view, "there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level" (Brewer, 63 AD3d at 1605; see Smith, 30 AD3d at 1071). The professionals who evaluated defendant all concluded that defendant was not a sexual predator, that he did not have abnormal sexual tendencies, and that he was not a threat to himself or others. In addition, we agree with defendant that he was faced with a "Hobson's choice" when deciding whether to participate in treatment. We thus conclude on the record before us "that there are . . . mitigating factor[s] of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (People v Santiago, 20 AD3d 885, 886 [internal quotation marks omitted]; see Smith, 30 AD3d at 1071; Risk Assessment Guidelines and Commentary, at 4).

One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized in his SORA determination because of his refusal to participate in such a program while his appeal was pending:

With respect to risk factor 12, it is undisputed that defendant refused to participate in sex offender treatment while he was incarcerated, but he contends that his refusal was based on the advice of defense counsel to refrain from participation. According to defendant, his appeal from the judgment of conviction was pending when the treatment was offered and, in the event of reversal on appeal and a subsequent new trial on all counts of the indictment, his participation in treatment would have required him to make admissions against his interest, in violation of his Fifth Amendment privilege against self-incrimination. We note in addition that the risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [2006]).

We thus agree with defendant that the court improvidently exercised its discretion in determining that defendant was not entitled to a downward departure from his presumptive risk level. We therefore substitute our own discretion, " even in the absence of an abuse [of discretion],' " and we modify the order by determining that defendant is a level two risk (People v Smith, 30 AD3d 1070, 1071, quoting Matter of Von Bulow, 63 NY2d 221, 224; see People v Brewer, 63 AD3d 1604). In our view, "there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level" (Brewer, 63 AD3d at 1605; see Smith, 30 AD3d at 1071). The professionals who evaluated defendant all concluded that defendant was not a sexual predator, that he did not have abnormal sexual tendencies, and that he was not a threat to himself or others. In addition, we agree with defendant that he was faced with a "Hobson's choice" when deciding whether to participate in treatment. We thus conclude on the record before us "that there are . . . mitigating factor[s] of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (People v Santiago, 20 AD3d 885, 886 [internal quotation marks omitted]; see Smith, 30 AD3d at 1071; Risk Assessment Guidelines and Commentary, at 4).

A defendant's possession of case at time of arrest is not admissilbe if not linke to criminality. Thus, in People v Sumter (2009 NY Slip Op 09782 [4th Dept 12/30/09]), the Appellate Division, Fourth Department held that the trial

court erred in admitting in evidence testimony concerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as the cash itself. Defendant was arrested over one month after the drug sales that were the basis for the charges against him, and the People failed to establish a relationship between that cash and the charges in question. We thus conclude that defendant's possession of the cash was 'too remote to the issue of [defendant's] intent to sell drugs to outweigh the potential for prejudice inherent in the admission of evidence which invited the jury to speculate that defendant had previously sold drugs' (People v Corbitt, 221 AD2d 809, 810).

A defendant's possession of case at time of arrest is not admissilbe if not linke to criminality. Thus, in People v Sumter (2009 NY Slip Op 09782 [4th Dept 12/30/09]), the Appellate Division, Fourth Department held that the trial

court erred in admitting in evidence testimony concerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as the cash itself. Defendant was arrested over one month after the drug sales that were the basis for the charges against him, and the People failed to establish a relationship between that cash and the charges in question. We thus conclude that defendant's possession of the cash was 'too remote to the issue of [defendant's] intent to sell drugs to outweigh the potential for prejudice inherent in the admission of evidence which invited the jury to speculate that defendant had previously sold drugs' (People v Corbitt, 221 AD2d 809, 810).

The Appellate Division, Fourth Department, in People v Carmichael (2009 NY Slip Op 09788 [4th Dept 12/30/09]), held that the evidence is legally insufficient to support a conviction of criminal possession of a weapon in the third degree where, upon his arrest, the defendant told the police that

the gun was in a safe located on a closet shelf in his mother's bedroom and that he lived in his mother's house. Defendant gave the police an incorrect combination to the safe, and the police were able to open it only after defendant's mother retrieved the correct combination from a slip of paper in her purse.

On these facts, the Court held that that there is no valid line of reasoning and permissible inferences to support the conclusion that defendant exercised dominion and control over the safe, the bedroom in which the safe was located, or his mother, and

thus the evidence is legally insufficient to establish that defendant was in constructive possession of the firearm on the date of his arrest (see People v Manini, 79 NY2d 561, 573-574; People v Edwards, 39 AD3d 1078, 1079; cf. People v Ortiz, 61 AD3d 779, lv denied 13 NY3d 748...