[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Castillo 2024 NY Slip Op 05817 [42 NY3d 628] November 21, 2024 Garcia, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Jairo Castillo, Appellant. Argued October 17, 2024; decided November 21, 2024 People v Castillo , 210 AD3d 414 , reversed. {**42 NY3d at 630} OPINION OF THE COURT Garcia, J. The shooting at issue here occurred during a dispute over a drug transaction between the owner of a barbershop in the Bronx and the victim. After the owner and the victim had a series of confrontations in and around the shop, including a fistfight and threats of violence by the victim against the owner and his family earlier that same day, the victim returned to the shop. The owner called defendant, a friend, and shortly thereafter when defendant arrived at the scene, the victim confronted him with a razor blade, and defendant shot and killed him. Defendant was convicted of second-degree murder and second-degree criminal weapon possession. On appeal, he argues that his convictions must be reversed because of the trial court's failure to instruct the jury on the defense of justification (Penal Law § 35.15). We agree that the failure to charge the jury on that defense as to the murder count was error and, because that failure may have affected the jury's verdict on the possession count, both convictions must be reversed. During defendant's trial, after hearing testimony from, among others, an eyewitness to the shooting and the medical examiner, the trial court declined defendant's request that the jury be charged with the justification defense. The trial court concluded that justification is not "an appropriate charge," noting that she had "reviewed the testimony, including the photographs, including the razor blade and reviewing the relative sizes and ages, descriptions of the two parties involved." The jury convicted on both counts. The Appellate Division affirmed, holding because [*2] "defendant stepped back, and the victim did not cut him," and that, even if the two shots to the victim's front were justified, "there was no reasonable view of the evidence . . . that defendant . . . was justified in firing four additional shots into the victim's back" (210 AD3d 414, 415 [1st Dept 2022]). A Judge of this Court granted defendant leave to appeal (39 NY3d 1109 [2023]), and we now reverse. [1] {**42 NY3d at 631} The defense of justification provides that a person may use physical force to defend himself against an assailant's "imminent use of unlawful physical force," but does not authorize the use of "deadly physical force . . . unless . . . [t]he [person] reasonably believes that [the assailant] is using or about to use deadly physical force" (Penal Law § 35.15 [1], [2] [a]). When considering a request for a justification charge, courts examine the evidence in the light most favorable to the defendant, and must provide the instruction if there is any reasonable view of the evidence that defendant was justified in his actions ( see People v Heiserman , 39 NY3d 988 , 990 [2022]). Justification has both a subjective requirement, that "defendant . . . actually believed . . . he [was] threatened with the imminent use of deadly physical force," and an objective requirement, that defendant's "reactions were . . . those of a reasonable man acting in self-defense" ( People v Collice , 41 NY2d 906, 907 [1977]). The defense does not automatically apply throughout the entirety of an encounter—a defendant who may be justified in using deadly physical force at the start of an encounter loses the right to use such force " 'at the point he can no longer reasonably believe the assailant still poses a threat to him' " ( People v Williams , 35 NY3d 24 , 45 [2020], quoting People v Del-Debbio , 244 AD2d 195, 195 [1st Dept 1997]). Applying this standard to the evidence here, we conclude defendant was entitled to a justification instruction on the second-degree murder charge. At trial, an eyewitness testified that the victim confronted defendant in the barbershop's doorway, told him he could not leave, and held a razor blade against defendant's face, threatening to cut him from ear to ear. Defendant then took a step back, drew his gun, and shot the victim six times. The eyewitness testified that defendant and the victim were facing each other when defendant first fired, but that the victim was facing away from defendant as he continued to fire. Although his body turned, the victim did not move from where he was standing. The altercation lasted approximately 30 seconds, and the shooting itself only approximately five seconds from the first to the last shot. The medical examiner testified that, because the victim's wounds lacked distinctive markings, or "stippling," the two men must have been at least two feet apart. According to the medical examiner, the autopsy showed that one bullet entered the victim's side, while another entered his arm, and four entered his back. The medical examiner also testified that three {**42 NY3d at 632} of the six shots would have been fatal: the one to the victim's side, and two to the victim's back. When viewed under the appropriate standard, there is a reasonable view of this evidence that defendant was justified in his actions ( see Heiserman , 39 NY3d at 990). It is undisputed that the victim was the initial aggressor and, as the People concede, defendant faced an imminent threat of deadly force at the time the victim held the blade to his face. Despite the Appellate Division's reasoning to the contrary, that defendant stepped back does not mean he could no longer have reasonably believed the victim still posed a threat to him. Given the rapid unfolding of events—there was testimony that the entire confrontation was over in 30 seconds—jurors could also conclude that the shots to the victim's back were justified; that is, that defendant " 'reasonably believe[d] the assailant still pose[d] a threat to him' " ( Williams , 35 NY3d at 45, quoting Del-Debbio , 244 AD2d at 195). While the victim appears to have turned his body at some point, he remained standing close to defendant, and under the circumstances it would not be unreasonable for defendant to believe the victim continued to pose a threat. In other words, a jury could conclude that defendant still subjectively feared an imminent deadly threat, and that such a fear and defendant's response were reasonable ( see Heiserman , 39 NY3d at 990). Finally, on this record, there is a reasonable view of the evidence that defendant could not safely retreat into the back of the barbershop at the time he used deadly physical force ( see People v Sanchez , 31 NY3d 949 , 950 [2018]). Accordingly, the failure to provide the jury with a justification charge was error, and defendant's murder conviction must be reversed. [FN1] The People are correct that the trial court did not err in failing to give a justification charge on the possession count. Justification is not available as a defense to a possessory offense, including possession of a weapon with intent to use it unlawfully against another person ( see People v Pons , 68 NY2d 264, 265 [1986]; People v Almodovar , 62 NY2d 126, 129-131 [1984]). That does not end our inquiry, however, as we must examine whether the failure to provide the instruction on the murder count affected the jury's verdict on the possession count. [2] {**42 NY3d at 633} Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person ( see Penal Law § 265.03 [1]). The model Criminal Jury Instruction provides that "a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and, that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another" (CJI2d[NY] Penal Law § 265.03 [1] [b] [crime committed on or after Nov. 1, 1998], https://www.nycourts.gov/judges/cji/2-PenalLaw/265/265-03(1)(b).pdf [emphasis added]). [FN2] But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge ( see Jackson v Edwards , 404 F3d 612, 627 [2d Cir 2005] [in deciding a habeas petition, the court held that "if a properly instructed jury were to have concluded that (the defendant) was not guilty of any homicide offense, then it might have also concluded that he lacked the requisite intent to be guilty of the weapons charge"]; see also Davis v Strack , 270 F3d 111, 134-135 [2d Cir 2001]). In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully. To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully ( see People v Muhammad , 17 NY3d 532 , 545 [2011] ["(T)he intent element is satisfied if the defendant intended to use the weapon unlawfully against another at any time during the period of possession" (emphasis added)]). But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as {**42 NY3d at 634} proof of the unlawful intent element of the possession charge. For example, the jury's intent determination may rest on defendant's conduct "during the continuum of time that he possessed it prior to the shooting" ( Pons , 68 NY2d at 268). Accordingly, the order of the Appellate Division should be reversed and a new trial ordered. Chief Judge Wilson and Judges Rivera, Singas, Cannataro, Troutman and Halligan concur. Order reversed and a new trial ordered. Footnotes Footnote 1: We of course do not decide whether, based on the evidence introduced in any retrial, the People would be entitled to a charge that each shot must be justified. Footnote 2: Here, the jury appears to have been instructed that unlawful "intent only exists at the very moment that a person engages in the unlawful use of the firearm against another" (emphasis added). That instruction would serve only to aggravate the problem described above. For simplicity, the writing assumes the standard instruction was given.

[Assistant]
Justification is not available as a defense to a possessory offense, including
possession of a weapon with intent to use it unlawfully against another
person, but absence of justification charge may have had adverse impact
on jury's consideration of CPW count. In a case such as this,
"the jury must
be instructed that, while justification is not a defense to that crime, in the
event the jury finds that the shooting was justified, that lawful use of the
weapon cannot be considered as proof of the unlawful intent element of
the possession charge.
"


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Campbell 2024 NY Slip Op 03995 [229 AD3d 1296] July 26, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Laryn Campbell, Appellant. Sarah S. Holt, Conflict Defender, Rochester (Fabienne N. Santacroce of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Ryan P. Ashe of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered May 13, 2019. The judgment convicted defendant upon a nonjury verdict of criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts 3 through 5 of the indictment. Memorandum: On appeal from a judgment convicting him after a nonjury trial of one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]), defendant contends that the evidence is legally insufficient to establish that he constructively possessed the drugs and drug paraphernalia, and that the evidence is insufficient to establish his liability as an accomplice. Because defendant's motion for a trial order of dismissal was not " 'specifically directed' at th[at] alleged error," he failed to preserve for our review his contention that there is insufficient evidence of his liability as an accomplice ( People v Gray , 86 NY2d 10, 19 [1995]; see People v Bell , 198 AD3d 1305 , 1306 [4th Dept 2021], lv denied 37 NY3d 1144 [2021]). With respect to the preserved contention, viewing the evidence in the light most favorable to the People ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention that there is insufficient evidence of his constructive possession of the drugs and drug paraphernalia ( see People v Mattison , 41 AD3d 1224 , 1225 [4th Dept 2007], lv denied 9 NY3d 924 [2007]). Among other things, defendant told a police officer that he rented a room inside the home where the drugs and drug paraphernalia were found, and identification cards with defendant's name were found in one of the bedrooms therein ( see generally People v Slade , 133 AD3d 1203 , 1205 [4th Dept 2015], lv denied 26 NY3d 1150 [2016]; People v Holley , 67 AD3d 1438 , 1439 [4th Dept 2009], lv denied 14 NY3d 801 [2010]). The drugs and drug paraphernalia were found in common areas of the apartment, i.e., the living room and kitchen, and mail addressed to defendant at the home was found on a table in the kitchen ( see generally People v Tucker , 173 AD3d 1817 , 1818 [4th Dept 2019], lv denied 34 NY3d 938 [2019]; People v Davis , 101 AD3d 1778 , 1779-1780 [4th Dept 2012], lv denied 20 NY3d 1060 [2013]). The testimony at trial that the other bedroom in the home contained no furniture supports the inference that defendant's room was the only occupied bedroom ( see generally People v Banks , 14 AD3d 726 , 727-728 [3d Dept 2005], lv denied 4 NY3d 851 [2005]). "Viewing the evidence in light of the elements of the crime[s] in this nonjury trial" ( People v Ghent , 132 AD3d 1275 , 1275 [4th Dept 2015], lv denied 26 NY3d 1145 [2016]; see Danielson , 9 NY3d at 349), we likewise reject defendant's contention that the weight of the evidence did not support the verdict with respect to his constructive possession of the drugs and drug paraphernalia ( see Mattison , 41 AD3d at 1225), and his liability as an accessory ( see generally People v Brewer , 196 AD3d 1172 , 1174 [4th Dept 2021], lv denied 37 NY3d 1095 [*2] [2021], cert denied 596 US &mdash, 142 S Ct 1684 [2022]). We agree with defendant, however, that Supreme Court erred in applying the "room" or "drug factory" presumption pursuant to Penal Law § 220.25 (2) ( see People v Kims , 24 NY3d 422 , 425 [2014]). As relevant here, section 220.25 (2) provides that "[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found." "Penal statutes 'must be construed according to the fair import of their terms to promote justice and effect the objects of the law' " ( People v Fraser , 264 AD2d 105, 110 [4th Dept 2000], affd 96 NY2d 318 [2001], cert denied 533 US 951 [2001], quoting § 5.00; see People v Miller , 70 NY2d 903, 906 [1987]). The drug factory presumption is "intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals' participation in a drug operation" ( Kims , 24 NY3d at 432-433). According to its drafters, the presumption is "designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a 'drug factory,' only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such 'factories,' who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare" (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4). The legislative history includes the further explanation that the phrase "close proximity" within the statute is "intended to include persons who might, upon the sudden appearance of the police, hide in closets, bathrooms or other convenient recesses" (Letter from St Commn of Investigation, Dec. 1, 1971, Bill Jacket, L 1971, ch 1044 at 7; see Kims , 24 NY3d at 433). In light of the statute's legislative purpose, the phrase "close proximity" in Penal Law § 220.25 (2) means "when the defendant is sufficiently near the drugs so as to evince defendant's participation in an apparent drug sales operation, thus supporting a presumption of defendant's knowing possession" ( Kims , 24 NY3d at 433). "[T]he proximity determination requires careful consideration of the underlying facts related to the defendant's location on the premises" ( id . at 434). Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of "close proximity" ( see People v Hogan , 118 AD3d 1263 , 1264 [4th Dept 2014], affd 26 NY3d 779 [2016]), and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police ( see Kims , 24 NY3d at 435). Here, the drugs were found in a room on the ground floor, and the police did not find defendant in the room with the drugs or in flight therefrom. Officers first observed defendant upstairs on the second floor, "walking from [the observing officer's] left to [his] right." The officers' observation is consistent with defendant walking out of his bedroom, which was, as explained at trial, "up the stairs and kind of off to the left" from where the officers were standing. Officers also testified at trial that defendant was wearing only underwear when he was first encountered, and that defendant's clothing was discovered inside his bedroom. The "underlying facts related to . . . defendant's location on the premises" ( id. at 434) reflect that defendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not "sufficiently near the drugs so as to evince defendant's participation in an apparent drug sales operation, thus supporting a presumption of defendant's knowing possession" ( id . at 433). Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just "moments before," been engaged in drug distillation or packaging (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4). We therefore conclude that the court erred in ruling that the drug factory presumption applied to the facts of this case. Although the drug factory presumption was applied directly to only count 3, which arose from the alleged possession of cocaine, we further conclude that the [*3] erroneous application of the presumption requires reversal of the judgment and a new trial on each of the three counts upon which defendant was convicted. Indeed, in their respondent's brief in this appeal, the People rely, in part, on the drug factory presumption when addressing defendant's contentions regarding the sufficiency and weight of the evidence with respect to all three counts, and correctly contend that the presumption, if properly applied to the cocaine, would have allowed the court to "infer that, if the drugs to which the statutory presumption applied were part of the drug factory's supply, all the contraband found must have been controlled by the factory's operatives" ( People v Bundy , 90 NY2d 918, 920 [1997]). In light of our determination, we do not address defendant's alternative contention that the court erred in denying defendant's request for a circumstantial evidence charge. Present—Lindley, J.P., Montour, Ogden, Keane and Hannah, JJ.

[Assistant]
Court should not have given the drug factory presumption instruction.
Defendant was found on a different floor than the drugs seized, and the
proof failed to establish that he was either hiding or had fled the area
where the drugs were recovered. Reversed because "close proximity"
phrase in PL 220.25(2) not met because defendant not apprehended in
close proximity to drugs as contemplated by drug factory presumption.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Alexander 2024 NY Slip Op 05160 [231 AD3d 1310] October 17, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Charles A. Alexander, Appellant. John A. Cirando, Syracuse, for appellant. Mary E. Saitta, Special Prosecutor, Binghamton, for respondent. Pritzker, J. Appeal from a judgment of the County Court of Broome County (Kevin P. Dooley, J.), rendered October 26, 2021, upon a verdict convicting defendant of the crime of burglary in the third degree. Defendant was convicted, after a jury trial, of one count of burglary in the third degree stemming from an incident wherein he unlawfully entered an apartment building in the City of Binghamton, Broome County with the intent to commit a larceny. County Court sentenced defendant, as a second felony offender, to a prison term of 3 1/2 to 7 years. Defendant appeals. Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to provide sufficient evidence to identify defendant beyond a reasonable doubt. As is relevant here, "[a] person is guilty of burglary in the third degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein" (Penal Law § 140.20). "[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime" ( People v Shabazz , 211 AD3d 1093 , 1095 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1113 [2023]). The victim testified that on February 17, 2021, she received notifications that three packages had been delivered to her apartment. However, when she returned home to the apartment building that evening around 7:45 p.m., her packages were missing from the lobby. She messaged the building manager to inform him of this. The building manager testified that the main entrance to the building is the front door which features a "paddle latch" lock that requires a metal key to unlock it. After he had received an email from the victim about her missing packages, he went to the building to check to see if the front door was still working and review the security footage. In reviewing the footage, [FN1] he observed that between 6:30 p.m. and 7:00 p.m., a male individual entered the front door, rummaged through the packages stacked inside the foyer and put some packages in his backpack. The building manager also observed that the individual used a knife to break the latch on the door to let himself in. He could not identify the individual who took the packages but was able to determine that the individual did not reside at the apartment building. An officer with the Binghamton Police Department responded to the scene soon after and observed that the front door locking mechanism, which required a key, was not properly functioning at the time because a screw had been removed or damaged. She also observed scratches on the lock. Jonathan Kellar, a police officer with the Binghamton Police Department, who was familiar with defendant, testified that he reviewed the security footage from the apartment building and recognized defendant, who has a "strong jawline," as the individual in [*2] the video. Kellar also testified that he "could see [defendant's] face in this surveillance, also has the same characteristics as far as height and weight, so [the officer] knew for a hundred percent fact that it was [defendant]." A few weeks later, while sitting in his patrol car, Kellar observed defendant walking down the street. Kellar reviewed the security footage again and observed that defendant was "wearing a black leather jacket, gray hooded sweatshirt underneath, and a black baseball hat, like a flat brim baseball hat with a yellow circular sticker on the top of the brim," which matched the clothes that the individual was wearing in the security footage. During a subsequent encounter with defendant, Kellar located a pocketknife in defendant's pants pocket. [FN2] "Based on the foregoing, when construing the evidence in the light most favorable to the People as we must, a rational person could conclude that the [perpetrator's] identity was sufficiently proven to be defendant" ( People v Slivienski , 204 AD3d 1228 , 1234 [3d Dept 2022] [citations omitted], lv denied 38 NY3d 1136 [2022]; accord People v Montgomery , 229 AD3d 899 , 903 [3d Dept 2024]; see People v Brown , 145 AD3d 1549 , 1550 [4th Dept 2016], lv denied 29 NY3d 947 [2017]; People v Williams , 46 AD3d 1024 , 1026 [3d Dept 2007]). Additionally, "[d]efendant's intent to commit a crime when he entered the building could also readily be inferred by the circumstances of his entry and his actions once inside" ( People v Thomas , 203 AD3d 634 , 635 [1st Dept 2022] [citation omitted], lv denied 38 NY3d 1136 [2022]; see People v Oliveras , 203 AD3d 1233 , 1237-1238 [3d Dept 2022], lv denied 38 NY3d 1073 [2022]). "As to the weight of the evidence, although a different verdict would not have been unreasonable, when viewing all of the evidence in a neutral light and deferring to the jury's credibility determinations, we find that the weight of the credible evidence supports the conclusion that defendant was the [perpetrator]" ( People v Slivienski , 204 AD3d at 1235 [citations omitted]; see People v Kilgore , 218 AD3d 1054 , 1056 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Hines , 214 AD3d 1117 , 1119 [3d Dept 2023], lv denied 39 NY3d 1155 [2023]). Defendant also argues that County Court erred in declining to give a cross-racial identification jury instruction based upon Kellar's identification testimony as requested. We agree. As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), "when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification" ( id. at 526 [emphasis added]; see People v Watkins , — NY3d &mdash, &mdash, 2024 NY Slip Op 02842, *4-5 [2024]). Here, at the close of proof, defendant requested that the jury be given a cross-racial identification instruction pursuant to Boone . County Court denied his request noting, among other things, that in [*3] the present case, the identifying witness, Kellar, knew defendant. County Court, however, misinterpreted the Boone standard and erred in denying defendant's request for a cross-racial identification jury instruction upon defendant's request for same (30 NY3d at 535; see People v Watkins , — NY3d at &mdash, 2024 NY Slip Op 02842, *4-5; People v Boyd , 184 AD3d 1151 , 1153-1154 [4th Dept 2020]; People v Jiggetts , 168 AD3d 507 , 508 [1st Dept 2019], lv denied 33 NY3d 977 [2019]; People v Bradley , 160 AD3d 760 , 761-762 [2d Dept 2018], lv denied 31 NY3d 1115 [2018]; compare People v Bailey , 201 AD3d 601 , 602 [1st Dept 2022], lv denied 38 NY3d 1069 [2022]). We do not find the error to be harmless. "[U]nless the proof of . . . defendant's guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error" ( People v Crimmins , 36 NY2d 230, 241 [1975]; see People v Mosley , 41 NY3d 640 , 652-653 [2024]; People v Hansel , 200 AD3d 1327 , 1331 [3d Dept 2021], lv denied 38 NY3d 927 [2022]). Here, without Kellar's identification testimony, the jury would have been tasked with identifying defendant from fleeting glances of his face, or at least the portion of his face able to be seen under his baseball hat, in the surveillance video. In fact, as conceded by the People at oral argument, it was because defendant had "disquised himself in a way" and was not looking at the camera that the jury may have needed some assistance in identifying defendant and thus they sought to admit Kellar's identification testimony. Although the People put in evidence that when defendant was arrested, weeks later, he was wearing similar clothing and in possession of a similar knife, we find that the identity evidence was not overwhelming ( compare People v Boyd , 184 AD3d at 1153-1154; People v Jiggetts , 168 AD3d at 508; People v Bradley , 160 AD3d at 762). As such, "the error thus cannot be deemed harmless and requires reversal for a new trial" ( People v Mosley , 41 NY3d at 653; see also People v Crimmins , 36 NY2d at 241). In light of this determination, defendant's remaining argument is rendered academic. Egan Jr., J.P., Lynch, McShan and Powers, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for a new trial. Footnotes Footnote 1: The security footage was admitted into evidence. Footnote 2: The black hat, pocketknife, gray hoodie and black leather jacket recovered from defendant were entered into evidence as People's exhibits.

[Assistant]
A
police officer knew the defendant who was pictured on security camera
video. Where the defendant and identification witness appear to be from
different races, pursuant to People v. Boone, 30 NY3d 521 (2017),
defendant was entitled, upon request, to a cross-racial identification
charge. Even though the identification witness knew the defendant, it was
error to deny the requested charge, and a new trial was ordered.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Jury charge involved both harmless and reversible errors. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Wilson 2024 NY Slip Op 04285 [230 AD3d 448] August 22, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 2, 2024 [*1] The People of the State of New York, Respondent, v Yuri Wilson, Appellant. Caprice R. Jenerson, Office of Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Sarah Lubin of counsel), for respondent. Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 4, 2022, convicting defendant, after a jury trial, of attempted assault in the first degree and assault in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously reversed, on the law, and the matter remanded for a new trial. Coworkers Quintero, Rahman, and Donado were walking along Broadway between West 32nd and West 33rd Street in Manhattan at approximately 8:00 p.m. on November 20, 2020. Rahman exchanged words with another person, Diallo, about a marijuana purchase that he had just made from Diallo. Surveillance video captured the conversation and the beginning of the physical altercation. As they argued, Diallo started punching Rahman, who fought back. Defendant, and another person, Traore, ran up from behind Rahman and began punching Rahman repeatedly around the head. Quintero, the victim, became involved in the melee when he tried to pull Rahman away. Rahman, who was the only eyewitness to testify at trial, described the attack as the surveillance video was played to the jury. Rahman described witnessing defendant throw several "normal" punches and then make a motion with his arm toward Quintero in which defendant's "hand was like kind of like come straight from behind not like just punch." He described this motion as "like trying to pull something out, not like a punch, you know." Although Rahman testified that he never saw a weapon, he heard Quintero respire as if he was physically hurt and explained to the jury, "[t]hat's where [Quintero] got stabbed." The video, which is grainy, shows what the People described as a long, thin, dark-colored object in defendant's hand and what the defense described as a shadow. Rahman also testified about what happened after the fight moved outside of the view of the surveillance camera. Defendant and Traore jumped on top of Quintero and continued to punch him. Diallo was no longer involved, but he was standing nearby. Rahman was struck in the head with a cell phone and may have lost consciousness for 40-50 seconds. After the fight ended, Rahman found Traore's cracked cell phone. Surveillance video captured defendant and Traore leaving the scene together. Traore grabbed defendant's bag on the way out. Rahman testified that after the fight ended, he and Quintero walked toward the subway. At that point, he saw blood on his shoes and realized that Quintero was bleeding. Quintero removed his jacket, revealing a "dime size" laceration that was bleeding heavily on the left side of his chest, and then he collapsed to the ground. Although Quintero did not testify, his statements to an investigating officer were admitted at trial. Quintero did not know who stabbed him. He initially thought that he had been punched in the chest and did not realize that he was stabbed until after the fight ended. Quintero required surgery for a puncture wound to his heart and was in [*2] the Intensive Care Unit at Bellevue Hospital for eight days. Preliminarily, we note that the verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The jury could reasonably conclude from the video footage and Rahman's testimony that defendant stabbed Quintero with a sharp object during the altercation. However, the evidence was legally insufficient to establish defendant's liability under an acting in concert theory, as the People presented no evidence that defendant was aware that Traore possessed or used a dangerous instrument and, thus, no evidence that defendant shared with Traore the required intent to cause serious physical injury or physical injury ( see People v Campbell , 79 AD3d 624 , 624 [1st Dept 2010], lv denied 17 NY3d 793 [2011]). Nevertheless, the court's erroneous charge does not require reversal because "[w]here, as here, a general verdict has been rendered and there are two lawful grounds upon which the jury could have reached that verdict but one of those grounds lacks support in the evidence, we may presume that the jury reached its determination upon the factually sufficient grounds" ( People v Giordano , 87 NY2d 441, 451 [1995], citing Griffin v United States , 502 US 46 [1991]). Reversal is required, however, because the court should have granted defendant's request to charge the jury with attempted assault in the third degree as a lesser included offense. Both requirements of the applicable test were met ( see People v Glover , 57 NY2d 61, 64 [1982]). The court erroneously concluded that the second prong of the Glover test was not satisfied. Viewing the evidence in the light most favorable to defendant ( see People v Martin , 59 NY2d 704, 705 [1983]), there is a reasonable view of the evidence that defendant merely attempted to cause physical injury to the victim without use of a dangerous instrument to cause that injury ( see e.g. People v Battle , 22 NY2d 323, 324-325 [1968]; People v Brown , 117 AD3d 1536 , 1537-1538 [4th Dept 2014]; People v Pezzella , 103 AD2d 851, 851-852 [2d Dept 1984]; cf. People v Nieves , 136 AD2d 250 [1st Dept 1988]). Concur—Manzanet-Daniels, J.P., Moulton, Mendez, Rosado, O'Neill Levy, JJ.

[Assistant]
Trial court should not have instructed jury on acting in concert culpability,
since the People presented no proof that the defendant should be held
liable under that theory. Error deemed harmless under People v Giordano,
87 NY2d 441, 451 (1995) ("where, as here, a general verdict has been
rendered and there are two lawful grounds upon which the jury could have
reached that verdict but one of those grounds lacks support in the
evidence, we may presume that the jury reached its determination upon the
factually sufficient grounds"). But new trial ordered because court should
have charged the jury on Attempted Assault 3 as a lesser included offense
since there was a reasonable view of the evidence that defendant merely
attempted to cause physical injury to the victim without using a dangerous
instrument to cause that injury.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Trial court's response to jury note created "false impression of the evidence". The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dortch 2024 NY Slip Op 03283 [228 AD3d 1329] June 14, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] The People of the State of New York, Respondent, v Chester Dortch, Appellant. David M. Giglio, Utica, for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Amy N. Walendziak of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered February 23, 2018. The judgment convicted defendant upon a jury verdict of robbery in the first degree, robbery in the second degree, and assault in the second degree. It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3]), robbery in the second degree (§ 160.10 [2] [a]), and assault in the second degree (§ 120.05 [2]). The conviction arises out of an incident in which the defendant allegedly, inter alia, cut a woman with a knife and forcibly stole property from her while they were seated in a car owned by defendant's girlfriend. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). We agree with the defendant that Supreme Court failed to respond meaningfully to a jury note and we therefore reverse the judgment and grant defendant a new trial. A court is required to respond meaningfully to a jury request ( see CPL 310.30; People v Malloy , 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). While " '[n]ot every failure to comply with a jury's request for information during deliberation is reversible error,' " reversal is required where the " 'failure to respond seriously prejudice[s] the defendant' " ( People v Lourido , 70 NY2d 428, 435 [1987]; see People v Taylor , 26 NY3d 217 , 224 [2015]). Here, the jury submitted a note requesting, inter alia, a readback of testimony from the victim "about the time she was in the car on Glenwood until she was out of the car from both defense and the DA's questions." The court responded to the jury's request by reading back only testimony from the victim on direct examination about the time that she was inside the car. The court did not order the readback of any cross-examination, which included questioning about inconsistencies in the victim's account of the incident, including questions about the victim's earlier statement to the police describing a conversation that she had with defendant outside the car and questions regarding her statement to the police on the day of the incident that the driver of a car attempted to pull her into the car through the window. The court also instructed the jury that only direct examination included questions with respect to the victim being inside the car and, despite the jury's request to hear questioning from both the prosecution and the defense, the court did not request clarification from the jury whether they wanted to hear the defense's cross-examination regarding the incident. A meaningful response to a request for a readback of testimony "is presumed to include cross-examination which impeaches the testimony to be read back" ( People v Grant , 127 AD3d 990 , 991 [2d Dept 2015], lv denied 26 NY3d 968 [2015] [internal quotation marks omitted]; see People v Sommerville , 159 AD3d 1515 , 1516 [4th Dept [*2] 2018], lv denied 31 NY3d 1121 [2018]). We conclude that the court's "failure to give the jury necessary information and its inaccurate . . . remarks prejudiced the defense," and that, under the totality of the circumstances in this case, the court abused its discretion "by failing to adequately answer the jurors' . . . note and creating a false impression of the nature of the evidence" ( Taylor , 26 NY3d at 227). We also agree with defendant that the court erred in refusing to conduct a suppression hearing with respect to the search of the vehicle and the seizure of the knife during that search. Initially, we conclude that, as the daily user of the vehicle, defendant has standing to seek suppression of the evidence seized during the search of the vehicle ( see generally People v Ramirez-Portoreal , 88 NY2d 99, 108 [1996 ]; People v Banks , 85 NY2d 558, 561-562 [1995]). Further, we conclude that defendant raised a factual dispute regarding the voluntariness of the consent to search the vehicle given by the owner of the vehicle, i.e., defendant's girlfriend. "[A] motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point" ( People v Gruden , 42 NY2d 214, 215 [1977]). A suppression motion my be summarily denied "if [the] defendant does not allege a proper legal basis for suppression, or (with two exceptions) if the 'sworn allegations of fact do not as a matter of law support the ground alleged' " ( People v Mendoza , 82 NY2d 415, 421 [1993], quoting CPL 710.60 [3] [b]). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information" ( id. at 426). Here, defendant's factual submissions, which included body camera footage capturing a conversation between police officers where they allegedly discuss their intent to threaten to seize the vehicle from defendant's girlfriend in order to attempt to obtain her consent to search the vehicle, and allegations that, after the girlfriend purportedly consented to a search of the vehicle, she nevertheless attempted to move the knife out of plain view before the vehicle was searched, are sufficient to warrant a hearing to determine whether the girlfriend's consent to search "was induced by overbearing official conduct and was not a free exercise of the will" ( People v Gonzalez , 39 NY2d 122, 130 [1976]). In light of our determination, we do not address defendant's remaining contentions. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ.

[Assistant]
Reversed on several grounds, including court’s failure to respond
meaningfully to a jury note requesting readback testimony. Jury requested
readback of direct and cross of robbery/assault victim about certain time
frame during which she was in a car until she got out - asked for the DA’s
questions and the Defense’s questions. Court only read back direct only.
Omission was not harmless error, because the cross-examination included
questions about:
inconsistencies in the victim’s account of the incident
about the victim’s earlier statement to the police
describing a conversation that she had with defendant outside the car
and
the victim's statement to the police on the day of the incident that the
driver of a car attempted to pull her into the car through the window.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Constitutional Claims and the subtopic of Confrontation Clause. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Franklin 2024 NY Slip Op 02227 [42 NY3d 157] April 25, 2024 Halligan, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 9, 2024 [*1] The People of the State of New York, Appellant, v Cid C. Franklin, Respondent. Argued March 14, 2024; decided April 25, 2024 SUMMARY Statement of Case Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 6, 2022. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree; and (2) ordered a new trial. People v Franklin , 207 AD3d 476 , reversed. {**42 NY3d at 159} OPINION OF THE COURT Halligan, J. This case requires us to determine when an out-of-court statement is "testimonial" and thus triggers the requirements of the Sixth Amendment's Confrontation Clause. Consistent with precedent from the United States Supreme Court, we ask whether, in light of all the circumstances viewed objectively, the statement was created for the primary purpose of serving as trial testimony. Contrary to the Appellate Division, we conclude that the Criminal Justice Agency (CJA) report at issue here does not qualify under this standard. I. In the course of responding to a road rage incident that included a report of a firearm, police officers searched the basement of the home that the defendant Cid Franklin shared with his son and stepmother, Grace Mapp. Officers discovered a gun in a basement closet containing blankets, pillows, and other miscellaneous items belonging to both Mapp and Franklin. Franklin was subsequently arrested and, while in Queens central booking prior to arraignment, interviewed by an employee of the Criminal Justice Agency, as is standard practice for New York City defendants. CJA is a nonprofit organization funded by the City of New York that provides pretrial services similar to those provided by probation departments in counties outside the city ( see People v Yu , 167 AD3d 521 , 522 [1st Dept [*2] 2018]). As relevant here, CJA interviews "nearly all individuals arrested" in New York City to "make a pretrial release recommendation to the court" (New York Criminal Justice Agency, http://www.nycja.org/ [hover over "Services" in the main menu and click on "Court Services" in the drop-down menu]; see also People v Jin Cheng Lin , 26 NY3d 701 , 715 n 1 [2016]; People ex rel. Maxian v Brown , 77 NY2d 422, 425 [1991]). In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee's address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. {**42 NY3d at 160} The CJA employee records the answers to these questions on a standardized form titled "Interview Report." The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. As relevant here, the CJA employee who interviewed Franklin recorded his address as "[XX] 168TH ST, BSMT." The employee also recorded that he or she verified this information with Mapp, referred to as Franklin's "mother" on the form. That form was central to the People's case at trial. No DNA or fingerprints were discernable on the gun. The officer who took Franklin's pedigree information testified that Franklin gave his address as [XX] 168th Street, without specifying where in the house he lived. None of the witnesses who testified at Franklin's trial provided direct proof that he lived in the basement, and the People put forth no evidence that any personal documents or effects of Franklin's were found there. To prove that Franklin had dominion and control over the basement, the People introduced the CJA form through the current CJA Queens borough supervisor, Oscar Morales. The interviewer was no longer employed by CJA and did not testify. Defense counsel objected to the introduction of the form both as hearsay [FN1] and as a violation of Franklin's Sixth Amendment right of confrontation. Supreme Court rejected both objections, admitting the form as either "a public document" or "a business record," and finding that "there is no Crawford violation in that this was not made specifically for [a] prosecution purpose," but rather "as an aid to the Judge to [determine] if any bail should be set at arraignments." Franklin was convicted of one count of second-degree criminal possession of a weapon (Penal Law § 265.03 [3]). {**42 NY3d at 161} The Appellate Division reversed, holding that the introduction of the report through Morales, who did not author it, violated Franklin's Confrontation Clause rights (207 AD3d 476 [2d Dept 2022]). A Judge of this Court granted leave to appeal (39 NY3d 986 [2022]), and we now reverse. II. The Sixth Amendment of the Federal Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against [them]" (US Const Amend VI). The Confrontation Clause focuses on " 'witnesses' against the accused—in other words, those who 'bear testimony' " ( Crawford v Washington , 541 US 36, 51 [2004]). Thus, to determine whether the defendant's confrontation rights were implicated by introduction of the CJA report, we ask whether the report was "testimonial" ( id. ). The Appellate Division relied on Crawford 's definition of testimony as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact" (207 AD3d at 476, quoting Crawford , 541 US at 51). Citing several decisions that apply an "essential element" test, the Court reasoned that introduction of the CJA form violated the Confrontation Clause because it was "admitted in order to establish an essential element" of the charged crime, and defendant "was never given the opportunity to cross-examine the CJA employee" who prepared it ( id. at 477, citing People v Ellerbee , 203 AD3d 1068 , 1069 [2d Dept 2022] [testimony "improperly admitted in order to [*3] establish an essential element of the crime" in violation of the Confrontation Clause], People v Stokeling , 165 AD3d 1180 , 1181 [2d Dept 2018] [same], and People v Francis , 114 AD3d 699 , 700 [2d Dept 2014] [introduction of facts going to essential element through supervisor insufficient]). These "essential element" cases generally rest on our decision in People v Pacer (6 NY3d 504 [2006]). In Pacer , decided two years after Crawford , the People relied on an affidavit explaining the Department of Motor Vehicle's routine procedures that had been prepared for use at trial to prove that the defendant knew or had reason to know his driving privileges had been revoked ( see id. at 507). This Court held that introduction of the affidavit violated the defendant's right of confrontation because "the lack of a live witness to confront eliminated defendant's opportunity to contest a decisive piece of evidence against him" ( id. at 512). Pacer and several {**42 NY3d at 162} subsequent cases, including the Appellate Division's decision below and the cases it cites, look to whether an out-of-court statement establishes an essential element of the crime to determine whether it is testimonial. As we recently recognized in People v Ortega , the Supreme Court has refined its Confrontation Clause analysis on numerous occasions since it decided Crawford in 2004 (40 NY3d 463, 474 [2023]; [FN2] see also Ohio v Clark , 576 US 237, 244 [2015] [noting the Supreme Court's "labor( )" subsequent to Crawford to "flesh out what it means for a statement to be 'testimonial' "]). These decisions render some of our earlier analyses at odds with the current framework ( see e.g. Ortega , 40 NY3d at 474 [recognizing that our previous analysis in People v Freycinet (11 NY3d 38 [2008]) was "inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court"]). As with the test applied to autopsy reports in Freycinet , the "essential element" approach in Pacer has been eclipsed by subsequent developments in Confrontation Clause jurisprudence. We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, "whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony' " ( Clark , 576 US at 245, quoting Michigan v Bryant , 562 US 344, 358 [2011]). When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. III. The Supreme Court first articulated the primary purpose test only months after this Court decided Pacer , in two cases concerning out-of-court statements from domestic abuse victims ( see Davis v Washington and Hammon v Indiana , 547 US 813 [2006]). In Davis , the statements at issue were made to a 911 operator ( id. at 817-819), and in Hammon , to police officers after a physical attack ( see id. at 820). The Supreme Court {**42 NY3d at 163} concluded that the statements in Davis were not testimonial because they were made "under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency," while in Hammon , the statements were testimonial because "the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution" ( see id. at 822). Since Davis and Hammon , the Supreme Court has continued to apply the primary purpose test in cases concerning out-of-court conversations ( see Bryant , 562 US at 360 [examining the "primary purpose" of an out-of-court interrogation through an "objective analysis of the circumstances of (the) encounter and the statements and actions of the parties"]; Clark , 576 US at 245 [reaffirming the primary purpose test]). [FN3] Clark confirms the centrality [*4] of the primary purpose test and sets forth relevant considerations: whether the statements were made under circumstances indicating "that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution" ( id. at 244 [internal quotation marks omitted], quoting Davis , 547 US at 822); the "informality of the situation and the interrogation," with a "formal station-house interrogation, like the questioning in Crawford , . . . more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused" ( id. at 245 [internal quotation marks omitted], quoting Bryant , 562 US at 366, 377); the "standard rules of hearsay, designed to identify some statements as reliable" ( id. [internal quotation marks omitted], quoting Bryant 562 US at 358-359); and to whom the statements are made, as "[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be {**42 NY3d at 164} testimonial than statements given to law enforcement officers" ( id. at 249). Defendant contends that Crawford articulates a "core class" of testimonial statements that are always subject to the Confrontation Clause and thus immune from primary purpose analysis, and that the CJA report here falls within that category because an objective witness would reasonably believe it "would be available for use at a later trial" (541 US at 52 [internal quotation marks omitted]). Crawford , however, acknowledged that it was leaving "for another day any effort to spell out a comprehensive definition of 'testimonial' " ( id. at 68), and the Supreme Court has subsequently applied the primary purpose test to statements falling within Crawford 's "core class" of police interrogations to determine whether they were testimonial ( see Davis , 547 US at 822; Bryant , 562 US at 355). Precedent therefore confirms that an out-of-court statement is testimonial when, viewed objectively, all the circumstances indicate its primary purpose was to create an out-of-court substitute for trial testimony. [FN4] IV. We now turn to whether the introduction of the CJA Interview Report violated the Confrontation Clause. The CJA report is markedly different from the mine-run of evidence that runs afoul of the Confrontation Clause in several key respects. First, though we do not resolve the defendant's hearsay objection here ( see n 1, supra ), we note that the CJA report was introduced as a business or public record. As the Supreme Court has explained, "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial" ( Melendez-Diaz , 557 US at 324; {**42 NY3d at 165} see also Crawford , 541 US at 56 ["Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records"]). Second, the People introduced the report not to put before the jury the CJA interviewer's conclusions, but as evidence that Franklin had "self-report[ed]" his residence as the basement of the house. According to the CJA supervisor's testimony, standard practice is that all the information of the report, including the defendant's address, comes "from the defendant," though it is also later "verified" through a third party. But the People's argument that because the defendant, rather than the CJA employee, was the declarant, the statement falls outside the ambit of the Confrontation Clause is unpreserved for our review. We therefore proceed to the merits of the Confrontation Clause assuming, arguendo, that the CJA interviewer was the declarant of the statements found on the form for purposes of the Confrontation Clause. Under the relevant circumstances, we conclude that the primary purpose of the CJA interview report was not to create an out-of-court substitute for trial testimony, and that it is not therefore testimonial. The primary purpose of [*5] a CJA interview and resulting report is administrative, not something tailored "to establish or prove past events potentially relevant to later criminal prosecution" ( Clark , 576 US at 244 [internal quotation marks omitted]). Its objective is to give the arraignment judge information pertaining to a defendant's suitability for pretrial release ( see Yu , 167 AD3d at 522), not to elicit incriminating statements. This function is reflected in the pedigree nature of the questions posed to defendants during these interviews ( see e.g. People v Williams , 264 AD2d 325, 328-329 [1st Dept 1999] [defendant's "CJA interview" is "defendant's pedigree evidence"]), and confirmed by the notation on the face of the report: a CJA report "assesses the defendant's risk of flight by considering . . . community ties and warrant history as defined in sections 2 (a) (ii) and 2 (a) (iii) and (vi) of CPL 510.30 and open cases," and "does not consider other criteria listed in CPL 510.30 such as defendant's mental condition, the weight of the evidence, or the possible sentence." We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant {**42 NY3d at 166} and makes a recommendation to the court as to the defendant's suitability for pretrial release. [FN5] As for the verification step ( see dissenting op at 173), the record indicates that the defendant provides the verification source and contact information, and there is no indication that the CJA employees conduct any independent inquiries. The dissent opines, without any record support, that CJA interviewers are "standing in the shoes of a law enforcement officer" (dissenting op at 176). To the extent this characterization sweeps in practices "everywhere else in the state" ( id. at 171), our decision rests on the facts before us in this case, not suppositions about other approaches to providing pretrial services. As explained, while CJA employees work within the court system, they are not "principally charged with uncovering and prosecuting criminal behavior" ( Clark , 576 US at 249), and for this reason are not law enforcement officers as contemplated by the Supreme Court's Confrontation Clause jurisprudence. [FN6] That a CJA report is generated for a court and has consequences for a defendant's liberty does not change the fact that its primary purpose is administrative, and not testimonial. [FN7] We note that other courts have reached a similar conclusion regarding other records primarily prepared for administrative reasons ( see Melendez-Diaz , 557 US at 324 [records "created for the administration of an entity's affairs and not for the purpose {**42 NY3d at 167} of establishing or proving some fact at trial" are "not testimonial"]; see also United States v Noria , 945 F3d 847, 856, 859 [5th Cir 2019] [forms created by Customs and Border Patrol relaying migrants' basic information not testimonial because routinely created in the course of the agency's "non-adversarial duties," not "in anticipation of litigation"]; United States v Caraballo , 595 F3d 1214, 1228-1229 [11th Cir 2010] ["basic biographical information" that is "routinely requested" not testimonial, though it may later become relevant to prosecution]; United States v Torralba-Mendia , 784 F3d 652, 666 [2015] [immigration documents "prepared for administrative purposes" not testimonial]; State v Staudenmayer , 411 [*6] Mont 167, 176, 523 P3d 29, 35 [2023] [minute entries not testimonial because primary purpose is to "aid the administration of the trial court"]; Jackson v United States , 924 A2d 1016, 1020-1021 [DC 2007] [docket entries and notice to return created for operation of the court, not to document facts or events for future prosecution]). Finally, the pedigree information collected, including the defendant's address, is pertinent to establishing community ties; it is only incidentally relevant in this case ( see e.g. Noria , 945 F3d at 857-858 ["No doubt, the biographical portion of an (immigration form) can be helpful to the Government in a later criminal prosecution," but it is not testimonial because its "primary purpose is administrative, not investigative or prosecutorial"]; Caraballo , 595 F3d at 1229 [an "incidental or secondary use" is of "little moment" because the question is the " primary purpose"]). The fact that the report became relevant during this trial does not alter or diminish the primary purpose for which it was created ( see Clark , 576 US at 250). The introduction of the CJA interview report thus did not violate the defendant's right of confrontation, and consequently, we reverse. [FN8] Accordingly, the order of the Appellate Division should be reversed, and the case remitted to that Court for consideration of {**42 NY3d at 168} the facts and issues raised but not determined on appeal to that Court. Aarons, J. [FN*] (dissenting). The issue is whether an interview report recommending defendant's pretrial release, produced by the New York City Criminal Justice Agency (CJA) at Queens Central Booking while defendant awaited arraignment and provided directly to the arraignment court, was "testimonial" and thus subject to the Confrontation Clause. I would conclude that the CJA report was a "statement[ ] that [was] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" ( Crawford v Washington , 541 US 36, 52 [2004] [internal quotation marks and citation omitted]). Put another way, "its primary purpose was testimonial" ( Ohio v Clark , 576 US 237, 245 [2015]). [*7] The majority takes the opposite view, relying on assumptions about the relevant circumstances, i.e., pretrial release determinations are administrative, the residential address collected is merely "pedigree information," rather than viewing the CJA report as a critical datapoint in assessing pretrial release. And for that effort, the majority concludes that a jailhouse interview report generated at the start of a criminal prosecution and submitted to the court to utilize in a core judicial decision concerning a defendant's liberty is not a "testimonial" statement. Because the Sixth Amendment right of confrontation applies to the CJA report at issue here, I respectfully dissent. I. A. The facts of defendant's alleged crime are essentially as the majority articulates. Police found a gun in the basement of a house defendant shared with his stepmother and son but found no direct evidence that defendant had dominion and control over that space—an element deemed essential by all parties to prove defendant constructively possessed a weapon in violation of the law. After defendant's arrest, he was jailed at Queens Central Booking to await arraignment. There, an employee of the {**42 NY3d at 169} CJA—a nonprofit agency under contract with and funded by the City of New York—interviewed defendant to assess his fitness for pretrial release and bail and make a recommendation to the arraignment court. Significantly, on the subject report, the CJA employee wrote "BSMT" next to defendant's current address of "[XX] 168TH ST." The report also indicates defendant's mother "verified" that defendant lived with her at that address, and that he had lived there for three years. And herein lies the problem—the arresting officer testified only to defendant's street address, whereas the CJA report adds "BSMT." [FN1] Therefore, it is critical to this case to know who said that he lived in the basement, when, and under [*8] what conditions. The interview report captures data about defendant as well as his mother, which undermines the reliability of the form language indicating that the address came from defendant. Regardless, the only "witness" statement the People offered to prove defendant occupied the basement was the CJA employee's report asserting defendant lived at his home address in a "BSMT." B. Rather than produce the CJA employee who wrote "BSMT" on the form, the People introduced the report through Oscar Morales, the recently installed Queens borough manager for CJA who did not interview defendant, complete the report, or have any direct knowledge as to whether defendant said he lived in the basement or whether he in fact lived there. Indeed, when the interview was conducted in 2016, Morales was working {**42 NY3d at 170} at the Bronx CJA in an unspecified role for an unspecified period with no indication he knew of CJA's business practices at that time ( cf. CPLR 4518). Nevertheless, Morales testified to the procedure used to generate the report at Queens Central Booking—where he had been working for about a year. According to Morales, the CJA interviewer goes to an arrestee's cell, who is called over for the five-minute interview while waiting to be arraigned. At this point, the interviewer uses a tablet to collect some information from the arrestee, including the arrestee's "name, date of birth, sex, address, prior address, whether or not they work, [and] whether or not someone is coming to court during their arraignment." The interviewer records this information on an interview report form, then verifies the information collected with another source identified by the arrestee. All of this is done so that "[CJA] can verify community ties in order to make our recommendation to the Judge that they can be released without paying bail." The interviewer calculates point values based upon the arrestee's and verifier's responses and records a recommendation for pretrial release on the interview report. The court receives a copy of the report along with the prosecutor and defense counsel. [*9] C. The majority asserts that the CJA report serves the court's administrative function. Not so. The CJA report is created in the context of an arraignment—a decidedly judicial affair ( see Clark v Town of Ticonderoga , 291 AD2d 597, 600 [3d Dept 2002], lv denied 98 NY2d 604 [2002]). Among other functions, an arraignment commences the criminal action, and is the process by which a person charged with a crime is brought under the personal jurisdiction of the court ( see CPL 1.20 [9]). With jurisdiction established, the court then issues a "securing order" that reasonably assures the defendant will return to court (CPL 500.10 [5]; see CPL 510.10 [1]). Depending on the crime alleged and certain other factors, the securing order may incarcerate the defendant to await trial with or without bail or direct release on the defendant's own recognizance with or without conditions ( see CPL 500.10 [5]; 510.10 [1]). To make that determination, the court at the time of defendant's arraignment in 2016 was required to use "available information" to consider, among many other factors, defendant's "family ties and the length of [their] residence if any in the community," {**42 NY3d at 171} along with defendant's "employment and financial resources" and "previous record[,] if any[,] in responding to court appearances when required or with respect to flight to avoid criminal prosecution" (CPL former 510.30 [2] [a]). A court may not necessarily have had access to the information required to issue the securing order, but it could rely upon a report from a pretrial services agency to collect the information at the time a defendant is arraigned. Such an agency is either "a public entity under the supervision and control of a county or municipality or a non-profit entity under contract to the county, municipality or the state" (CPL 510.45 [2]). Outside of New York City, pretrial services are generally the purview of the county probation departments ( see People v Yu , 167 AD3d 521 , 522 [1st Dept 2018] lv denied 33 NY3d 1037 [2019]). Within New York City, the CJA does that job pursuant to a contract with the City, which funds its operation ( see id. ). Said differently, the CJA does a job that everywhere else in the state is entrusted to law enforcement officers ( see generally CPL 2.10 [24]; 2.20). [*10] II. The Federal Constitution guarantees criminal defendants the right "to be confronted with the witnesses against [them]" (US Const 6th Amend). "In particular, the Confrontation Clause is concerned with admission of testimonial statements made by declarants who are unavailable for cross-examination" ( People v Hao Lin , 28 NY3d 701 , 704 [2017], citing Williams v Illinois , 567 US 50, 76 [2012]). "Thus, under [Supreme Court] precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. 'Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause' " ( Ohio v Clark , 576 US at 245, quoting Michigan v Bryant , 562 US 344, 359 [2011]). Tying the confrontation right to a determination that a hearsay statement is "testimonial" originates in Crawford v Washington (541 US 36), though that case did not define the universe of statements that could be testimonial. Instead, the Crawford Court looked to an 1828 Webster's Dictionary and used the definitions of witness and testimony to identify a "core class" of testimonial statements. The Court listed "[v]arious formulations of this core class," including, "statements that were made under circumstances which would lead an objective {**42 NY3d at 172} witness reasonably to believe that the statement would be available for use at a later trial" ( id. at 51-52 [internal quotation marks and citation omitted]). The Court also identified "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially" ( id. at 51 [internal quotation marks and citation omitted; emphasis added]). Indeed, "[r]egardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing" ( id. at 52). Of course, Crawford was addressed to an out-of-court statement by a witness to police, which was not a scenario animating the Sixth Amendment's ratification in late eighteenth century ( see id. at 52-54). Consequently, police interrogations did not fit neatly into the core class of testimonial statements assembled using the tools of originalism. The Crawford Court, speaking through Justice Scalia, temporarily solved this problem by analogizing modern police interrogations to questioning by seventeenth century English magistrates and then simply included those interrogations in the core class. [*11] Because Crawford could be read as subjecting all out-of-court statements to police to the Confrontation Clause analysis, the Supreme Court later refined its definition of testimonial through the primary purpose test. The Court in Davis v Washington (547 US 813 [2006]) emphasized that the correct application of the test must look to all of the surrounding circumstances. Accordingly, the Court concluded that statements made "under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" were not testimonial—for example, a 911 call reporting an assault that had occurred moments before ( id. at 818, 822). By contrast, statements "are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," such as statements made to police arriving at the location of a domestic violence incident that had already ended, and therefore the officers' questions about that incident were investigatory ( id. at 821-822). Nothing in Davis overruled Crawford ; the fact that the Court limited how statements to police triggered the right of confrontation did not negate the other examples of core-class {**42 NY3d at 173} testimonial statements ( see Lambert v Warden Greene SCI , 861 F3d 459, 469-470 [3d Cir 2017]). Ohio v Clark (576 US 237) further refined the primary purpose test as applied to out-of-court statements made by and to individuals who are not law enforcement. Those statements are by their nature less likely to be testimonial than statements made to police and other government officials ( see Crawford v Washington , 541 US at 51). In that case, statements by a child to his teachers reporting abuse were not testimonial because the primary purpose of those conversations was protective, not investigatory, and the teachers were not "principally charged with uncovering and prosecuting criminal behavior" ( Ohio v Clark , 576 US at 249). The Clark Court articulated the primary purpose test as "whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony' " ( id. at 245, quoting Michigan v Bryant , 562 US at 358). This is the test the majority clarifies that courts should apply to ascertain whether out-of-court statements are testimonial ( see majority op at 164). [*12] III. A. "[C]onsidering all the relevant circumstances here," the primary purpose of the CJA interview report was testimonial ( Ohio v Clark 576 US at 246; see Michigan v Bryant , 562 US at 369). The CJA report—generated for and given directly to the court during a criminal prosecution to prove facts and make conclusions about defendant—is a "pretrial statement[ ] that declarants would reasonably expect to be used prosecutorially" ( Crawford v Washington , 541 US at 51). Although titled an interview report, the verification step makes the process of generating it investigative. The CJA provides services of a probation department, including operating a supervised release program in Queens, which, in my view, makes that organization like a law enforcement agency for present purposes. Assuming the procedure outlined by Morales was followed—an issue defendant does not concede—the CJA employee created the subject report after questioning defendant while he was in custody. Although the interview report form in the record was not a sworn statement {**42 NY3d at 174} , "the absence of oath [i]s not dispositive" of testimoniality ( id. at 52). That the report was generated for the court itself indicates it was made with sufficient solemnity to qualify as testimonial ( see id. ). In sum, the formality of the circumstances under which the report was created, the role of the CJA employee, the interview and verification procedure, and the intended recipient all lean toward concluding the CJA interview report was testimonial ( see id. at 51; cf. Garlick v Lee , 1 F4th 122, 134-135 [2d Cir 2021], cert denied 595 US &mdash, 142 S Ct 1189 [2022]). Four other considerations merit attention in the analysis. First , the report was generated in preparation for arraignment—the start of defendant's criminal prosecution ( compare United States v Noria , 945 F3d 847, 849-851, 856 [5th Cir 2019], cert denied 589 US &mdash, 140 S Ct 2629 [2020]; United States v Hano , 922 F3d 1272, 1287 [11th Cir 2019], cert denied 589 US &mdash, 140 S Ct 488 [2019]; United States v Caraballo , 595 F3d 1214, 1226-1227, 1229 [11th Cir 2010]). Second , the CJA interview report functioned, essentially, as a fact-finding tool for the court to use in meeting its obligation to issue a securing order informed by relevant considerations ( see CPL former 510.30 [2] [a]; People v Yu , 167 AD3d at 522). This direct connection to the court sets the CJA interview report apart from the kinds of statements the primary purpose test was written to address in Clark and Davis . Third , the statements in the report "can be used against [arrestees] if they violate any release conditions" ( People v Brown , 109 Misc 2d 366, 369 [Sup Ct, NY County 1981]). [*13] Fourth , the report provides data to determine pretrial release, which bears on an arrestee's prosecution. As one trial judge wrote over 40 years ago, "Competent studies have fully documented the many disadvantages endured by incarcerated defendants—both pretrial and postconviction—as compared to their bailed or paroled counterparts. Lack of adequate ability to prepare a defense, to consult with counsel, to communicate with relatives and friends, to locate witnesses and to gather evidence, are but a few, pretrial; as well as a greater likelihood of conviction in all events. Postconviction, {**42 NY3d at 175} the detainee can expect a more severe sentence." ( Id. at 368 [citation omitted].) [FN2] B. In light of these considerations, I cannot subscribe to the majority's conclusion that the subject report fails the Clark primary purpose test. The report was a testimonial statement because it was generated for the court "to create a record for [defendant's] criminal prosecution" ( United States v LeBeau , 867 F3d 960, 981 [8th Cir 2017]). But for that prosecution, there would be no conversation between the CJA employee and defendant and thus no report—a relationship that suggests the primary purpose of the conversation and report was "prosecutorial" ( United States v Noria , 945 F3d at 857). Simply stated, the declarant at issue—the CJA employee—is speaking through the report to the court. [FN3] No doubt, defendant and the CJA employee knew this when defendant's interview occurred ( see People v Brown , 109 Misc 2d at 369). The CJA employee's questions and that employee's duty to ask them—and thus the report generated by that questioning—were prescribed by the employee's obligation to the court ( compare Ohio v Clark , 576 US at 249). Defendant's responses to the CJA employee's questions were therefore informed by his awareness of the employee's role as a court functionary ( compare id. ). [*14] Worth noting is that the primary purpose test was developed on facts that differ from this case in important ways. Put plainly, neither the police in Davis nor the teachers in Clark wrote reports about their conversations with the complainants {**42 NY3d at 176} in those cases that they immediately handed directly to the court for a judicial determination as those prosecutions commenced. [FN4] Identifying this case's distinguishing features is important because the primary purpose test is a fact-driven inquiry ( see e.g. Ohio v Clark , 576 US at 246-251; Michigan v Bryant , 562 US at 359, 374-375). And the Supreme Court has not provided an exhaustive list of considerations bearing on the primary purpose test ( see Davis v Washington , 547 US at 822). Relatedly, the Supreme Court has not set categorical rules for determining testimonial statements ( see Ohio v Clark , 576 US at 246). [FN5] In light of this history, I do not read Clark or other Supreme Court precedent to bar this Court from holding the CJA report testimonial. In any event, the primary purpose test requires consideration of all relevant circumstances. The report here took the place of the CJA employee speaking directly to the court at the start of defendant's criminal prosecution to inform a judicial decision impacting him. From that perspective, and in view of all of the relevant circumstances—many of which were not at issue in Clark and its predecessors—the primary purpose of the CJA interview report was testimonial ( cf. Lambert v Warden Greene SCI , 861 F3d 459, 469 [3d Cir 2017], quoting Crawford v Washington , 541 US at 68). [*15] IV. The CJA report is not some kind of intake form; it is a statement by a person standing in the shoes of a law enforcement officer working within the criminal justice system about a defendant that has critical consequences for that defendant's liberty. Starting at arraignment, the report can help or hurt a defendant: declining to participate in the CJA interview will count against the defendant and jeopardize his freedom despite being cloaked with the presumption of innocence ( see People v Brown , 109 Misc 2d at 374). Regardless of its contents, the People {**42 NY3d at 177} receive a copy, and it can be used to make any case they can against a defendant's interests. And it's tucked into the court's file to be pulled out and leveraged against a defendant at any time during the prosecution. Today, this Court approves of using a CJA interview report to prove where a defendant lived in a prosecution that hinges on that fact. Tomorrow, it may be used to prove any other fact that the report assembles, such as a defendant's employment status, where he gets his money, whom he financially supports, how he pays for his food, his history in treatment programs, or any other information that the CJA gives to the court about a locked-up defendant. [FN6] The confrontation right does not bar the report from coming in as evidence at all; it simply requires the proponent of the evidence to produce the witness who wrote it. Nothing more. The Confrontation Clause is meant to protect against convictions based upon untested and unreliable evidence. In this case, a lone statement of questionable provenance secured defendant's conviction. The People concede that, if the trial court erred, that error would not be harmless, necessitating a new trial. I agree and cast my vote in favor of that outcome. Chief Judge Wilson and Judges Garcia, Singas and Cannataro concur. Judge Aarons [FN*] dissents in an opinion, in which Judge Bannister [FN*] concurs. Judges Rivera and Troutman took no part. Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Footnotes Footnote 1: Defendant also argues before us that the report was improperly admitted under the hearsay rules ( see e.g. Matter of Leon RR , 48 NY2d 117, 122-123 [1979] [addressing embedded hearsay in business reports]; Vincent C. Alexander, Supp Prac Commentaries, McKinney's Cons Laws of NY, CPLR C4518:3 [discussing records with "Multiple Layers of Hearsay"]). The Appellate Division reversed the judgment based solely on its determination that the Confrontation Clause was violated, and we reach no issue in this appeal other than the grounds on which the Appellate Division ruled. Footnote 2: Ortega presents the distinct question of when forensic reports are testimonial (40 NY3d at 474; see also Melendez-Diaz v Massachusetts , 557 US 305, 307-308 [2009] [certificates of analysis indicating that seized material was cocaine]; Bullcoming v New Mexico , 564 US 647, 651 [2011] [forensic laboratory report certifying defendant's blood-alcohol concentration]; Williams v Illinois , 567 US 50, 56 [2012] [DNA profile]). We do not address that issue here. Footnote 3: The federal circuits likewise apply the primary purpose test ( see e.g. Johnson v Griffin , 2024 WL 302387, *3, 2024 US App LEXIS 1802, *8-9 [2d Cir, Jan. 26, 2024, 22-2007-pr]; United States v Latu , 46 F4th 1175, 1180 [9th Cir 2022]; United States v Stepanets , 989 F3d 88, 116 [1st Cir 2021]; United States v Miller , 982 F3d 412, 434-435 [6th Cir 2020]; United States v Mathis , 932 F3d 242, 255 [4th Cir 2019]; United States v Buluc , 930 F3d 383, 392 [5th Cir 2019]; United States v Hano , 922 F3d 1272, 1287 [11th Cir 2019]; Lambert v Warden Greene SCI , 861 F3d 459, 469-470 [3d Cir 2017]; United States v Klemis , 859 F3d 436, 444 [7th Cir 2017]; United States v LeBeau , 867 F3d 960, 980 [8th Cir 2017]; United States v Alcorta , 853 F3d 1123, 1137 [10th Cir 2017]). Footnote 4: The dissent appears to agree that the primary purpose test governs this inquiry (dissenting op at 173), notwithstanding comments that the test "was written" only for "the kinds of statements . . . in Clark and Davis " (dissenting op at 174), and suggesting that a nebulous "but for" standard informs the primary purpose test (dissenting op at 175). These points are either unsupported by or contradicted by precedent. To the extent the dissent suggests that courts may "pick and choose" among standards (dissenting op at 176 n 5), we are bound to follow the Supreme Court's precedent on the Sixth Amendment. Footnote 5: The information the defendant provides to the CJA may assist him by facilitating his release ( see New York Criminal Justice Agency, https://www.nycja.org [CJA description of its mission as "assist(ing) the courts and the City in reducing unnecessary pretrial detention"]). Footnote 6: Even if we viewed the CJA employee as akin to a probation officer, that alone would not make the report testimonial since we have long recognized that even police officers conduct both "investigative inquiries" and inquiries purely directed at "administrative concerns" ( see e.g. People v Wortham , 37 NY3d 407 , 415 [2021], citing People v Rodney , 85 NY2d 289, 294 [1995] [addressing the pedigree exception to Miranda ]). Footnote 7: Use of the report to determine whether a defendant should be released prior to trial does not make the report testimonial, contrary to the dissent's contention ( see e.g. dissenting op at 174-175). " '[T]he right to confrontation is a trial right' available against witnesses at trial " ( People v Hameed , 88 NY2d 232, 239 [1996], quoting Pennsylvania v Ritchie , 480 US 39, 52-53 [1987], and citing Barber v Page , 390 US 719, 725 [1968] [right to confrontation is "basically a trial right," contrasting trial with preliminary hearings, which are "much less searching" inquiries into whether "to hold the accused for trial"]). The only case the dissent offers in support of its view is a trial court opinion that does not discuss the Confrontation Clause and has been cited only once in 40 years ( see dissenting op at 174-175, 175, 176-177, citing People v Brown , 109 Misc 2d 366 [Sup Ct, New York County 1981]). Footnote 8: Although the dissent suggests that CJA interview reports may be widely used against defendants, we have identified only four cases over the past five decades in which the prosecution has attempted to do so at trial, even though CJA presumably creates these forms for countless individuals arrested by NYPD every year ( see e.g. Jin Cheng Lin , 26 NY3d at 714-715; People v Mitchell , 74 AD3d 417 , 417 [1st Dept 2010] [holding that a CJA report was a "business record" and "not testimonial"], lv denied 15 NY3d 922 [2010]; Williams , 264 AD2d at 328-329; Brown , 109 Misc 2d at 367). Policy issues sounding in the right to counsel and the Fifth Amendment right against self-incrimination are not before us in this case and we do not opine on them ( see brief for amicus curiae University of Buffalo School of Law). Footnote *: Designated pursuant to NY Constitution, article VI, § 2. Footnote 1: The majority refers to defendant's address as "pedigree information," which is the term used for basic data such as name, address and birthdate taken down after a defendant is arrested and booked. In this context, however, "the data . . . goes far beyond the mere pedigree information secured by arresting officers during the booking procedures. For example, the police official asks simply for the defendant's residence. The CJA staff member, on the other hand, inquires also as to: the length of such residence; with whom the defendant lives; any alternative residence; and the names of friends and relatives who can confirm such information." ( People v Brown , 109 Misc 2d 366, 371 [Sup Ct, NY County 1981] [internal quotation marks and citations omitted].) @f2That information factors into the pretrial release recommendation. Indeed, according to the unredacted subject report, defendant received points in his favor for providing a verified "NYC area address." Footnote 2: In other words, the CJA interview report informs the court's pretrial release decision, which has a measurable impact on whether a criminal prosecution will result in a conviction. And the CJA is not blind to this connection ( see e.g. New York City Criminal Justice Agency, NYC Pretrial Data, What are the court case outcomes for prosecuted arrests? , https://www.nycja.org/court-case-outcomes [last accessed Apr. 19, 2024; click on question three under "About the Data"] ["In 2022, there were 87,909 disposed cases stemming from Summary Arrests that were not resolved at arraignment. . . . For those released pretrial, 24% of cases were resolved with a guilty disposition, compared to 62% for those detained until disposition"]). In my view, that connection and the CJA's awareness of it are relevant considerations in determining whether the primary purpose of the CJA interview report "is to establish or prove past events potentially relevant to later criminal prosecution" ( Davis v Washington , 547 US at 822). Footnote 3: There is no dispute that the CJA employee wrote "BSMT" and everything else in the report. Footnote 4: I do not suggest a defendant should be able to assert the confrontation right during arraignment ( see majority op at 166 n 7). Footnote 5: Even after Clark , courts occasionally seem to pick and choose among Supreme Court decisions setting out Confrontation Clause precedent ( see e.g. United States v Foreman , 84 F4th 615, 620 [5th Cir 2023] [using test articulated in Davis v Washington (547 US 813, 822 [2006])]; United States v Noria , 945 F3d at 852 [same], quoting Bullcoming v New Mexico , 564 US 647, 659 n 6 [2011] [same]; see also People v Ortega , 40 NY3d 463 , 474 [2023], quoting Crawford v Washington , 541 US at 51; see generally United States v Miller , 982 F3d 412, 436-437 [6th Cir 2020], cert denied 141 S Ct 1354 [2021]). Footnote 6: Although there is a small number of reported cases in which the prosecution sought to introduce the CJA report as evidence ( see e.g. People v Jin Cheng Lin , 26 NY3d 701 , 714-715 [2016]; People v Mitchell , 74 AD3d 417 [1st Dept 2010], lv denied 15 NY3d 922 [2010]; People v Williams , 264 AD2d 325, 328 [1st Dept 1999], lv denied 93 NY2d 1046 [1999]; People v Brown , 109 Misc 2d at 367), that number will surely increase as a result of this case. Footnote *: Designated pursuant to NY Constitution, article VI, § 2. Footnote *:

[Assistant]
Introduction of
a Criminal Justice Agency interview report was not testimonial because it
was not "created for the primary purpose of serving as trial testimony"
(CJA is a NYC non-profit that makes pretrial release recommendations). Thus, defendant's right of confrontation was not violated.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Constitutional Claims and the subtopic of Confrontation Clause. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Lacen 2024 NY Slip Op 03868 [229 AD3d 435] July 18, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] (July 18, 2024) The People of the State of New York, Respondent, v Jose Lacen, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Gamaliel Marrero of counsel), for respondent. Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered December 17, 2019, convicting defendant, after a jury trial, of attempted assault in the first degree and robbery in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed. The verdict was supported by legally sufficient evidence, and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Defendant's conduct of stabbing the victim in the neck with a knife evinced an intent to cause serious physical injury ( see People v Gilford , 65 AD3d 840 , 841 [1st Dept 2009], affd 16 NY3d 864 [2011]; Penal Law § 10.00 [10]). The jury could have reasonably inferred that defendant intended to permanently deprive the victim, a cab driver, of the cab, as well as the money and phones inside the cab, when defendant drove away in it ( see Penal Law § 155.00 [3]), even though he abandoned it a short time later ( see People v Peterson , 193 AD3d 431 , 432 [1st Dept 2021], lv denied 37 NY3d 959 [2021]). The testimony of the DNA analyst did not violate defendant's right of confrontation. "The analyst's testimony demonstrated [his] own 'independent analysis o[f] the raw data' to make the comparison, and the analysis was not merely 'a conduit for the conclusions of others' " ( People v Lawrence , 198 AD3d 493 , 494 [1st Dept 2021], lv denied 37 NY3d 1147 [2021], quoting People v John , 27 NY3d 294 , 315 [2016]; see People v Jordan , 40 NY3d 396 [2023]). Defendant did not preserve his challenge to the court's interested witness charge, and we decline to review it in the interest of justice. As an alternative holding, we find that the charge, which followed the Criminal Jury Instructions, was not constitutionally deficient ( see People v Roby , 217 AD3d 505 , 507 [1st Dept 2023], lv denied 40 NY3d 952 [2023]; People v Blake , 39 AD3d 402 , 403 [1st Dept 2007], lv denied 9 NY3d 873 [2007]). We perceive no basis for reducing the sentence. Concur—Kern, J.P., Friedman, Kapnick, Gesmer, Rodriguez, JJ.

[Assistant]
Testimony of DNA analyst did not violate defendant's right of
confrontation as it demonstrated independent analysis of the raw data for
making the comparison, not merely a conduit for the conclusions of others.