People v. Ortega

203 N.Y.S.3d 868

227 N.E.3d 302

40 N.Y.3d 463

The PEOPLE of the State of New York, Respondent,

v.Yoselyn ORTEGA, Appellant.

Court of Appeals of New York.

Decided November 20, 2023

Jenay Nurse Guilford, Center for Appellate Litigation, New York City (Abigail Everett of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York City (Dana Poole, Steven C. Wu and Alan Gadlin of counsel), for respondent.

Weil, Gotshal & Manges LLP, New York City (Konrad Cailteux of counsel), and Innocence Project, Inc., New York City (M. Chris Fabricant of counsel), for The Innocence Project, amicus curiae.

John J. Flynn, District Attorneys Association of the State of New York, Albany (David M. Cohn and Darcel D. Clark of counsel), for the District Attorneys Association of the State of New York, amicus curiae.

OPINION OF THE COURT

SINGAS, J.

₄₆₈At issue in this case is whether the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as that witness’s testimony, violated defendant’s Sixth Amendment right to confrontation where defendant had not been given a prior opportunity to cross-examine the performing medical examiner. We hold that the admission of those reports and the expert witness’s testimony violated defendant’s constitutional right to confrontation, but conclude that the error was nevertheless harmless.

I.

In October 2012, defendant Yoselyn Ortega was employed as a nanny by a family living in Manhattan and entrusted with the care of three young children. On October 25, 2012, defendant brought two of those children, aged two and six, into a bathroom of their Upper West Side home where she repeatedly stabbed them, thereby killing them. Defendant was charged with two counts of murder in the first degree and two counts of murder in the second degree. During defendant’s 2018 trial, she conceded that she had killed the two children but asserted a defense of not guilty by reason of insanity (see Penal Law § 40.15).

The autopsy reports of the two victims were admitted into evidence at trial through the People’s witness, Dr. Susan Ely of the New York City Office of Chief Medical Examiner (OCME). Dr. Ely did not perform either autopsy, nor was she present when the autopsies were conducted. Still, after a review of the autopsy reports, dictation tapes, and autopsy photographs, Dr. Ely testified to the number, type, and pattern of the victims’ wounds, as well as to the cause and manner of death of each child. The autopsies were performed, and the reports created, by Dr. James A. Hayes of OCME. It is undisputed that defendant lacked the prior opportunity to cross-examine Dr. Hayes regarding these reports.

Though the entirety of each report was available to the jury, the jury only viewed seven diagrams of the decedents’ bodies. These diagrams were displayed during Dr. Ely’s testimony. Three of the diagrams depicted the outline of a generic human body, with indications of where the victims sustained stab wounds. The other diagrams narrowed in on the victims’ necks and the six-year-old victim’s hands. On each diagram, Dr. ₄₆₉Hayes had drawn the location of the victims’ wounds and annotated these markings with descriptions of the size, location, and type of the respective wound. During jury deliberations, the jury requested to inspect the diagrams of the six-year-old victim’s body; the jury did not request to view any other material from the autopsy reports.

Defendant objected to the admission of each autopsy report and Dr. Ely’s testimony on the ground that they violated her constitutional right to confront the individual that conducted the autopsies. Supreme Court overruled defendant’s objections. The jury ultimately found defendant guilty of two counts of murder in the first degree and two counts of murder in the second degree. The Appellate Division dismissed the two counts of murder in the second degree as "inclusory concurrent counts of the first-degree murder counts" and otherwise affirmed the judgment (202 A.D.3d 489, 492, 162 N.Y.S.3d 347 [1st Dept. 2022]). The Court agreed with Supreme Court that the admission of the autopsy reports through Dr. Ely did not violate defendant’s right to confrontation, concluding that the reports were not testimonial because they "‘[did] not link the commission of the crime to a particular person’" (id. at 491, 162 N.Y.S.3d 347, quoting People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016], and citing People v. Freyci.net, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008]). Regardless, the Court determined that "any error was harmless under the standards for constitutional error" (id. at 492, 162 N.Y.S.3d 347, citing People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]). A Judge of this Court granted defendant leave to appeal (38 N.Y.3d 1073, 171 N.Y.S.3d 424, 191 N.E.3d 376 [2022]).

II.

A.

[1] 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]" (U.S. Const Amend VI). Pursuant to this Confrontation Clause, a witness’s out-of-court "testimonial" statement may only be admitted for its truth where the witness appears at trial or, if the witness is unavailable for trial, where the defendant has had a prior opportunity to cross-examine that witness (Cranford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004]). In Crawford, the United States Supreme Court defined "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact" (id. at 51, 124 S.Ct. 1354 [internal quotation ₄₇₀marks omitted]). The Court provided several examples of the "core class of ‘testimonial’ statements" but acknowledged that "[v]arious formulations … exist" (id.). These formulations include, as relevant here, "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’" (id. at 51–52, 124 S.Ct. 1354 [internal quotation marks omitted]).

This Court had occasion to consider the impact of Crawford and its progeny on the admission of autopsy reports in Freycinet, where it held that a redacted autopsy report was not testimonial for purposes of the Confrontation Clause (11 N.Y.3d at 39, 862 N.Y.S.2d 450, 892 N.E.2d 843). In reaching this conclusion, the Court evaluated four purported "indicia of testimonial- ity": (1) "the extent to which the entity conducting the procedure is an arm of law enforcement"; (2) "whether the contents of the report are a contemporaneous record of objective facts"; (3) "whether a pro-law-enforcement bias is likely to influence the contents of the report"; and (4) "whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime" (id. at 41, 862 N.Y.S.2d 450, 892 N.E.2d 843 [internal quotation marks and citations omitted]). All four factors, the Court concluded, weighed in the People’s favor and thus, the autopsy report at issue was not testimonial (id. at 42, 862 N.Y.S.2d 450, 892 N.E.2d 843).

Though the United States Supreme Court has never considered the testimonial nature of autopsy reports, the Court did address the testimonial nature of forensic reports in a trilogy of cases that inform our analysis here. Shortly after Freycinet, the Supreme Court decided Melendez–Diaz v. Massachusetts, in which the Court brought forensic reports directly within the ambit of the Confrontation Clause (557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 [2009]). In that case, the Court considered whether sworn "certificates of analysis" were testimonial where the certificates concluded that a substance recovered from the petitioner was cocaine and further established the weight of that substance (id. at 308-309, 129 S.Ct. 2527). The Court held that the certificates were testimonial because they were affidavits—"a solemn declaration or affirmation made for the purpose of establishing or proving some fact"—and the affidavits were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" (id. at 310–311, 129 S.Ct. 2527, quoting Crawford, 541 U.S. at 51, 52, 124 S.Ct. 1354 [internal quotation marks omitted]). In fact, the Court stated, "under Massachusetts law the sole purpose of the affidavits was to provide ₄₇₁prim a facie evidence of the composition, quality, and the net weight of the analyzed substance" (id. at 311, 129 S.Ct. 2527 [emphasis and internal quotation marks omitted]). Further, the certificates were "functionally identical to live-in-court testimony, doing ‘precisely what a witness does on direct examination’" (id. at 310–311, 129 S.Ct. 2527, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006]). As such, the "affidavits were testimonial statements, and the analysts were ‘witnesses’" within the meaning of the Confrontation Clause (id. at 311, 129 S.Ct. 2527). "Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial" (id., quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354 [internal quotation marks omitted]).

The Supreme Court emphasized that forensic evidence "is not uniquely immune from the risk of manipulation," particularly by law enforcement, nor is it insulated from the possibility of incompetence (id. at 318–319, 129 S.Ct. 2527). The Court observed that "there is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material" (id. at 320–321, 129 S.Ct. 2527 [internal quotation marks omitted]). These issues "might be explored on...