People v. Morales

• Decision Date: 28 May 1996
• Citation: 227 A.D.2d 648,643 N.Y.S.2d 217
• Parties: The PEOPLE, etc., Respondent, v. Roberto MORALES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 217

643 N.Y.S.2d 217

227 A.D.2d 648

The PEOPLE, etc., Respondent, v. Roberto MORALES, Appellant.

Supreme Court, Appellate Division Second Department.

May 28, 1996.

Richard Ware Levitt, New York City (Nicholas Kaizer, of counsel), for appellant.

Michael E. Bongiorno, District Attorney, New City (Lisa Cohen, of counsel), for respondent.

ROSENBLATT, J.P., and MILLER, PIZZUTO and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered September 7, 1994, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

The defendant shot two men, killing one of them, in a drug-related dispute. Contrary to the defendant's contention, the People proved by clear and convincing evidence that the complainant had an independent source to identify the defendant in court. The complainant testified that before unlocking the front door of his apartment, he looked out the window and, in the porch light, saw the defendant and a man known to him as "G". The complainant recognized the defendant because he had been to the apartment just one month before with "G". When the door burst open, the complainant, with an unobstructed view, saw the defendant fire a gun at him. Thus, the complainant not only had a sufficient opportunity to view the defendant (Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401), but also had a prior familiarity with him (see, People v. Thomas, 188 A.D.2d 569, 591 N.Y.S.2d 464; see also, People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967).

The defendant, who suffered a gunshot wound to the thumb in the course of the crime, contends that the trial court erred in permitting the People to present evidence obtained by the polymerase-chain-reaction method (hereinafter PCR method) of DNA profiling. The test matched the defendant's blood with blood samples taken from the getaway car owned by "G", with a 1 in 2,234 probability of a random match. At the time of trial, evidence obtained through the restriction-fragment-length-polymorph-ism method (hereinafter RFLP method) of DNA profiling had been found to be admissible in New York (see, People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451). However, the newer PCR method had not yet been the subject of an appellate decision in this State. The trial court therefore conducted a hearing pursuant to Frye v. United States, 293 F. 1013. We agree with the court that the hearing evidence sufficiently established that the reliability of the PCR method had gained general acceptance in the relevant scientific community so as to permit the submission of evidence obtained by that method to a jury (see, People v. Palumbo, 162 Misc.2d 650, 618 N.Y.S.2d 197).

At the Frye hearing the People presented testimony from three highly qualified experts in the field of DNA testing, namely Dr. David Bing, Scientific Director of the Center for Blood Research Laboratories (hereinafter CBR Labs), which is affiliated with the Harvard Medical School where Bing is a member of the Department of Medicine; Dr. Robert Shaler, the Director of Forensic Biology for the Office of the Chief Medical Examiner for New York City; and Dr. Kenneth Kidd, a full professor at the Yale University School of Medicine's Department of Genetics. Their testimony established that the PCR method had been validated by numerous peer-reviewed articles in the scientific literature, was used in an increasing number of forensic laboratories throughout the United States and the world, and was widely accepted within the scientific community as reliable for forensic applications. The People also demonstrated that the PCR method was better suited than the RFLP method for forensic use since it was capable of testing smaller and degraded samples, usually the only type available at a crime scene.

CBR Labs performed the testing in this case using the HLA-DQ Alpha and the newer Amplitype PM or Polymarker variants of the PCR method. The hearing testimony showed that the two tests are based on the same scientific principles and have nearly identical methodologies and protocols, but use different primers and probes because they target different genetic loci. The HLA-DQ Alpha test targets one genetic locus while the Polymarker test targets six loci. Thus, any validation...