People v. Gibson, 2015–08985

• Court: New York Supreme Court Appellate Division
• Citation: 80 N.Y.S.3d 392,163 A.D.3d 586
• Docket Number: 2015–08985,No. 85N–12,85N–12
• Parties: The PEOPLE, etc., respondent, v. Michael S. GIBSON, appellant.
• Decision Date: 05 July 2018

163 A.D.3d 586
80 N.Y.S.3d 392

The PEOPLE, etc., respondent,
v.
Michael S. GIBSON, appellant.

2015–08985
No. 85N–12

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 27, 2018
July 5, 2018

80 N.Y.S.3d 393

Richard M. Langone, Garden City, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Monica M.C. Leiter of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S. Carter, J.), rendered September 8, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two

80 N.Y.S.3d 394

counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to support his conviction of murder in the second degree since the People failed to prove that he acted with intent to kill the victim. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of this crime beyond a reasonable doubt. Here, intent can be inferred from the defendant's conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt of this crime was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

We agree with the Supreme Court's determination to deny the defendant's request for a hearing pursuant to Frye v. United States, 293 F. 1013 to determine the admissibility of testimony concerning Low Copy Number (hereinafter LCN) DNA testing. "A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony" ( People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; see People v. Foster–Bey, 158 A.D.3d 641, 67 N.Y.S.3d 846 ). Given the acceptance of such evidence by other New York courts (see e.g. People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517 [Sup. Ct., Bronx County] ; People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408 [Sup. Ct., Queens County] ), a Frye hearing was not necessary here (see People v. Foster–Bey, 158 A.D.3d at 641, 67 N.Y.S.3d 846 ; People v. Gonzalez, 155 A.D.3d 507, 65 N.Y.S.3d 142 ).

The defendant's contention that his right to confrontation was violated because the People did not produce the analyst who performed the LCN DNA testing is unpreserved for appellate review (see CPL 470.05[2] ; People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 ; People v. Castro, 149 A.D.3d 862, 865, 52 N.Y.S.3d 385 ; People v. Abuziyad, 136 A.D.3d 837, 24 N.Y.S.3d 516 ), and, in any event, without merit. The testifying criminalist performed a technical review of the analyst's report, independently reviewed the analyst's data interpretation, and reached an independent conclusion, and thus, was not merely "functioning as a conduit for the conclusions of others" ( People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ; see People v. Hao Lin, 28...