People v. Fuller, 4399.

• Decision Date: 08 June 2012
• Docket Number: No. 4399.,4399.
• Citation: 953 N.Y.S.2d 552,2012 N.Y. Slip Op. 51020,35 Misc.3d 1236
• Parties: The PEOPLE of the State of New York, v. Eric A. FULLER, Defendant.
• Court: New York County Court

35 Misc.3d 1236

953 N.Y.S.2d 552

2012 N.Y. Slip Op. 51020

The PEOPLE of the State of New York,

v.Eric A. FULLER, Defendant.

No. 4399.

County Court, Essex County, New York.

June 8, 2012.

Kristy L. Sprague, Esq., Essex County District Attorney, (Michael P. Langey, Esq., of counsel), Elizabethtown.

Kindlon Shanks & Associates, (Terence L. Kindlon, Esq. and Gennaro D. Calabrese, Esq., of counsel), Albany, for the defendant.

RICHARD B. MEYER, J.

Motion by the defendant pursuant to CPL § 440.10(1)(g) and (h) to vacate the judgment, rendered May 8, 2003 upon a jury verdict, convicting him, among other crimes ¹, of rape in the first degree ( Penal Law § 130.35[2] ) and rape in the third degree ( Penal Law § 130.25[2] ). The defendant maintains that new expert DNA evidence has been discovered which could not have been produced by the defendant at trial with due diligence, and that the judgment was obtained in violation of the defendant's constitutional right to effective assistance of counsel.

A.

To evaluate the defendant's claims, a brief review of DNA ² evidence is necessary. “DNA is the chemical name for the molecule that carries genetic instructions in all living things[, and] ... consists of two strands that wind around one another to form a shape known as a double helix” ³, often described as a “twisted ladder” ⁴. “Each strand has a backbone made of alternating sugar (deoxyribose) and phosphate groups. Attached to each sugar is one of four bases—adenine (A), cytosine (C), guanine (G), and thymine (T). The two strands are held together by bonds between the bases; adenine bonds with thymine, and cytosine bonds with guanine” ⁵. Because adenine and thymine only bond to each other, as does cytosine bond only with guanine, knowledge of the sequence of the bases on one strand will automatically reveal the sequence on the companion strand ⁶. The sequences of the bases “tell the cell how to make a specific protein” ⁷, and it is these proteins that “play a variety of roles in the cell, including structural (cytoskeleton), mechanical (muscle), biochemical (enzymes), and cell signaling (hormones)” ⁸. However, not all of the base sequences on a DNA molecule function to create proteins, and these sequences are known as “non-coding DNA” ⁹. “Most non-coding DNA lies between genes on the chromosome and has no known function” ¹⁰

“A chromosome contains a single, long DNA molecule, only a portion of which corresponds to a particular gene” ¹¹. A “gene is the basic physical unit of inheritance ... passed from parents to offspring and contain[ing] the information needed to specify traits” ¹². Human beings have 23 pairs of chromosomes, with half of each pair coming from their mother and the other half from their father ¹³, containing approximately 23,000 genes ¹⁴. Twenty-two of the pairs are numbered chromosomes ¹⁵, and one pair consists of sex chromosomes, X and Y, a female having two X chromosomes and a male having one X and one Y chromosome ¹⁶. “These chromosomes, taken together, contain approximately 3.1 billion bases of DNA sequence” ¹⁷. “Only one-tenth of a single percent of DNA (about 3 million bases) differs from one person to the next” ¹⁸, and it is from within these variable bases that thirteen genetic markers ¹⁹—“a DNA sequence with a known physical location on a chromosome” ²⁰—have been identified as being the locations (“loci” ²¹) of non-coding DNA sequences “nationally and internationally recognized as the standard for human identification” ²². The different versions of the non-coding DNA sequences are called “alleles” ²³.

These genetic markers consist of “short tandem repeat” ²⁴ (STR) sections of DNA—“DNA regions with short repeat units (usually 2–6 bp in length)” ²⁵. “A tandem repeat is a sequence of two or more DNA base pairs that is repeated in such a way that the repeats lie adjacent to each other on the chromosome” ²⁶. “The number of repeats in STR markers can be highly variable among individuals, which make these STRs effective for human identification purposes” ²⁷.

An individual's DNA profile is arrived at by counting the number of times a specific sequence of DNA bases is repeated in the alleles at each of the thirteen genetic marker loci from a known sample of that individual's DNA. This is done at the specific locus on each pair of chromosomes, so for each locus there are two numbers, one representing the number of times that the particular base sequence is repeated within the allele on the chromosome obtained from one parent, and a second number from the allele in the paired chromosome contributed by the individual's other parent. The results are then compared to the profile generated from the alleles at the same loci in the DNA specimen taken from the crime scene or the alleged victim. If the number of repeated base sequences at each of the corresponding loci is the same in both the individual's and the crime scene/victim's DNA specimens, the individual “may have contributed the [latter] sample” ²⁸. “[T]he likelihood that any two individuals (except identical twins) will have the same 13–loci DNA profile can be as high as 1 in 1 billion or greater” ²⁹. A DNA profile shows the “unique genetic characteristics belonging to an individual, [and] can provide strong evidence of a person's presence at and participation in a criminal act” ( People v. Wesley, 83 N.Y.2d 417, 421, 611 N.Y.S.2d 97, 99, 633 N.E.2d 451, 453[1994] ).

B.

At the 2003 trial, the People produced Dr. Russell Gettig (Gettig), a forensic scientist at the New York State Police crime laboratory, as an expert witness. After the People offered Gettig's report into evidence, the defendant's counsel conducted a voir dire in which he questioned Gettig about the existence of “a draft report from which was prepared this final report” ³⁰. The final report, along with two enlargements of the STR DNA profile charts in the report, were thereafter admitted into evidence. The charts list the thirteen genetic marker locations and the results of the DNA testing and analysis of blood samples of the victim and the defendant as well as of the sperm and non-sperm fractions from two areas of the victim's pajama bottoms and from vaginal swabs taken from the victim. The results are stated as the number of repeated base sequences at each allele. Gettig testified that the results from the blood samples provided by the victim and the defendant establish their respective DNA profiles. He explained that when seminal fluids are involved a “differential extraction” is performed on each biological sample to separate the male sperm from the non-sperm cells, which means that there are two profiles generated from each sample. Gettig also testified ³¹ that “sometimes the separation isn't complete”, in which event “we would get a mixture profile because we have both male and female components present”.

Using the charts, Gettig told the jury that the STR profiles at every locus of the sperm fractions of both pajama bottoms' specimens were the same as the defendant's STR DNA profile from his blood sample. He also testified that the profile of the non-sperm fractions from the pajama bottoms “matched” that of the victim as “all the alleles are there” ³². Gettig then explained to the jury the results of the DNA analysis of the sperm and non-sperm fractions from the vaginal swabs. The profile of the non-sperm fraction matched the victim's profile. As to the sperm fraction, Gettig testified ³³:

“The sperm fraction was not a complete separation, so you see more than two alleles. And what it is is a combination of [the victim] and Eric Fuller. And just to indicate, like at this locus, [the victim] is a 14–16, Eric Fuller is a 16–19. In the sperm fraction, we see again a 14–16 from [the victim] a 17–19 from Eric Fuller, and there were no other alleles from anybody else that I could determine.

So to summarize then, from the pajama bottoms, the sperm fraction, they match that of Eric Fuller. And in the vaginal swabs, the sperm fraction was a mixture of [the victim] and Eric Fuller.”

Finally, Gettig testified on direct examination to having performed a statistical analysis of the probability that the defendant was the source of the DNA from which was generated the STR profiles in the sperm fractions of the two pajama bottoms specimens. The statistical analysis revealed that “the probability of selecting at random an individual with a STR profile identical to that of Eric Fuller was less than 1 in 280 billion” ³⁴. The same statistical probability existed for an individual having the same STR profile as the victim. He concluded his testimony by stating that “we're 99 percent confident that in a population the size of the United States, the probability of finding or the likelihood of finding this profile once, that's the likelihood of just finding it once. So this is with the knowledge that we have already found it once” ³⁵. No evidence was presented as to the statistical probability that the defendant was the contributor of the male DNA found in the vaginal swab specimens.

The final report received in evidence stated, in relevant part under the section labeled “Conclusions” ³⁶:

“The STR DNA mixture profile from the vaginal swabs-sperm fraction ... is consistent with DNA from [the victim] ... admixed with DNA from Eric A. Fuller ..., with [the victim] being the major contributor.”

On cross-examination, the defendant's trial counsel was able to get Gettig to admit that he could not say there was a “match” between the defendant's DNA and the male DNA components in the mixture profile from the vaginal swabs. Counsel also established that Gettig's direct testimony of there being a 99 percent probability that only one person out of two hundred eighty billion people would have the same male DNA profile as found in the sperm fraction taken from the victim's pajama bottom did not apply to the male profile from the vaginal swabs. Moreover, Gettig admitted that no proportional ratio or...