People v. Rush

• Citation: 165 Misc.2d 821,630 N.Y.S.2d 631
• Parties: PEOPLE of the State of New York, v. Basheen RUSH.
• Decision Date: 07 June 1995
• Court: New York Supreme Court

Page 631

630 N.Y.S.2d 631

165 Misc.2d 821

PEOPLE of the State of New York, v. Basheen RUSH.

Supreme Court, Kings County.

June 7, 1995.

Charles J. Hynes, Dist. Atty., Kings County, Brooklyn (Michael Naftolen, Asst. Dist. Atty., of counsel), for plaintiff.

David Walensky, Brooklyn, for defendant.

ALAN D. MARRUS, Justice.

This case presents an issue of apparent first impression in New York. In a criminal prosecution, can DNA evidence alone establish a legally sufficient case of a defendant's guilt? While there appears to be general acceptance of the notion that DNA evidence alone can exculpate a defendant accused or even convicted of a crime, ¹ no reported decision in New York has determined that DNA evidence alone can inculpate a defendant sufficiently to support a guilty verdict.

Here the People commenced trial with a complainant who had been robbed and raped at knifepoint by a stranger. Several weeks after the crime, the complainant selected the defendant's photograph from a photographic array as the person who perpetrated the crime. About two weeks later, she identified the defendant in a corporeal lineup. When the complainant testified at trial, however she identified a spectator in the courtroom as her assailant. As a result, evidence of the previous lineup identification of the defendant had to be precluded. See, CPL 60.25 and 60.30.

The only other evidence of identification offered by the prosecution came from an F.B.I. special agent who is an expert in forensic DNA analysis. He performed a DNA profiling test using anal and vaginal swabs taken from the complainant at a hospital shortly after the rape and two dried blood samples, one taken from the complainant and one from the defendant. This expert testified that at least four out of the six "genetic loci" that he tested from the vaginal swabs and one from the anal swabs matched the known blood sample of the defendant. The expert's conclusion was "that the probability of selecting another individual at random from the population that would have the same set of DNA profiles was less than 1 in 500 million for the black, the white, and the Hispanic populations." Trial transcript, p. 203. The only other evidence offered at trial which in any way related to identification was the testimony of an acquaintance of the defendant who saw him in the vicinity of the crime three days before the crime took place.

At the close of the People's case, the defendant moved to dismiss the case on the ground that the evidence was legally insufficient to make out a prima facie case for the jury. The court reserved decision until after the jury deliberated and reached a verdict. The jury subsequently convicted the defendant of rape in the first degree and robbery in the first degree.

The standard for a trial order of dismissal is whether the evidence offered by the prosecution is legally sufficient. CPL 290.10. Legally sufficient evidence means "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." CPL 70.10(1). "Legally sufficient evidence" and "prima facie case" are often used interchangeably, but neither standard is as rigorous as "proof beyond a reasonable doubt." (Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 70.10, at 177.)

The evidence of defendant's guilt was entirely circumstantial:

(1) the complainant was robbed and raped;

(2) swabs taken from her vagina and anus shortly after the rape contained semen;

(3) the semen samples matched the DNA profile of the defendant sufficiently to estimate that the odds were 1 in 500 million that another person was the source of that DNA;

(4) the complainant testified that before the rape she had not engaged in sexual intercourse for at least four or five years; and

(5) the defendant was seen in the area where the rape took place three days before the crime.

Circumstantial evidence is legally sufficient when "the hypotheses of guilt ... flow[s] naturally from the facts proved, and [is] consistent with them and ... exclude[s] 'to a moral certainty' every reasonable hypothesis of innocence." People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334.

To determine whether the evidence here meets that standard, this court has reviewed cases where fingerprint evidence was deemed sufficient to establish the identity of the perpetrator. See, People v. Murray, 168 A.D.2d 573, 562 N.Y.S.2d 788 (2d Dept.1990) and People v. Talley, 110 A.D.2d 792, 488 N.Y.S.2d 62 (2d Dept.1985). But a fingerprint expert will testify that the fingerprints left at the scene "match" those of the defendant. People v. Murray, supra. The DNA expert here was clear, however, to distinguish his finding from a fingerprint match:

"Q. Agent, recently in the news there's been a lot of the use of the term DNA fingerprinting suggesting the possibility of absolute identification. Can the DNA comparisons you described result in such an absolute identification?

A. No, they cannot. The DNA tests that I do and I've described to you do not result in an absolute identification, as a fingerprint comparison results in an absolute identification." Trial transcript, p. 186.

This court has also reviewed the appellate case law on identification by bite mark evidence. But in the one reported New York case on the subject, the expert testimony of a forensic odontologist that a bite mark on the defendant's arm was consistent with the victim's "dentition," was not conclusive on identity and was offered to corroborate the victim's in-court identification of the defendant. People v. Bethune, 105 A.D.2d 262, 484 N.Y.S.2d 577 (2d Dept.1984).

DNA profiling evidence, however, is a relative newcomer to New York trials. Indeed, it was only a little more than a year ago that our highest State court determined that DNA evidence is admissible. People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994). But in declaring that DNA evidence should be admissible, the New York Court of Appeals observed that "[s]uch evidence, consisting of unique genetic characteristics belonging to an individual, can provide strong evidence of a person's presence at and participation in a criminal act." People v. Wesley at 421, 611 N.Y.S.2d 97, 633 N.E.2d 451 (emphasis added). Yet it appears that neither that Court, the Appellate Division, nor any of the State trial courts have issued a reported decision sustaining a criminal conviction on DNA evidence alone.

For guidance on this issue, therefore, decisions from other jurisdictions have been consulted. There appear to be two reported decisions in the United States, both of which have upheld criminal convictions where the sole evidence linking the defendant to the crime is DNA evidence. In Springfield v. State, 860 P.2d 435 (1993), the Wyoming Supreme Court upheld a rape conviction based entirely on DNA evidence developed, as here, by the F.B.I. laboratory. The victim, while able to give a general description of her assailant, was unable to make an identification, although she did testify that the defendant "resembles him." The DNA expert found a match between the defendant's blood sample and samples recovered from a stain on the victim's panties and from her anus. The probability that another Indian person would have the same DNA was estimated to be at 1 in 250,000. The Wyoming Supreme Court concluded that "the evidence was sufficient for 'reasonable and rational individuals' to conclude that the [defendant] was the perpetrator." 860 P.2d at 449.

In California, the Court of Appeals, 4th District, Division 3, in People v. Soto, 34 Cal.App.4th 1588, 35...