People v. Wesley

• Citation: 83 N.Y.2d 417,611 N.Y.S.2d 97,633 N.E.2d 451
• Parties: , 633 N.E.2d 451, 62 USLW 2655 The PEOPLE of the State of New York, Respondent, v. George WESLEY, Appellant.
• Decision Date: 29 March 1994
• Court: New York Court of Appeals Court of Appeals

Page 97

611 N.Y.S.2d 97

83 N.Y.2d 417, 633 N.E.2d 451, 62 USLW 2655

The PEOPLE of the State of New York, Respondent, v. George WESLEY, Appellant.

Court of Appeals of New York.

March 29, 1994.

Roger M. Fritts, Public Defender of Albany County, Albany (Douglas P. Rutnik and Jeanne M. Heran, of counsel), for appellant.

Sol Greenberg, Dist. Atty. of Albany County, Albany (George H. Barber, of counsel), for respondent.

Robert T. Johnson, Dist. Atty. of Bronx County, Bronx (Peter D. Coddington and Nikki Kowalski, of counsel), for The Dist. Attys. Ass'n of the State of N.Y., amicus curiae.

G. Oliver Koppell, Atty. Gen., Albany (Richard H. Girgenti, Jerry Boone, Peter H. Schiff and M. Dawn Herkenham, of counsel), for the Div. of Crim. Justice Services, amicus curiae.

Barry C. Scheck, New York City, Lawrence Vogelman, Ellen Yaroshefsky and Peter Neufeld, for Cardozo Crim. Law Clinic, amicus curiae.

OPINION OF THE COURT

SMITH, Judge.

The primary issues on this appeal are whether DNA profiling evidence is admissible in this State and, if so, whether it should have been admitted against defendant in this case. Because such evidence has been accepted and found reliable by the relevant scientific community and because no error was committed in the circumstances of this case, we affirm.

Facts

Defendant appeals, by permission of a Judge of this Court, from an order affirming his conviction for murder in the second degree, rape in the first degree, attempted sodomy in the first degree and burglary in the second degree. On September 15, 1987, 79-year-old Helen Kendrick was found dead in her apartment in the City of Albany. The investigation of her death focused on defendant when caseworkers from the Albany City Hostel, an organization which served developmentally disabled persons, during a routine check of defendant's apartment, found a bloodstained T-shirt with gray and white hairs on it, bloodstained underwear and bloodstained sweatpants. Both defendant and the deceased were clients of the organization.

Even without the DNA profiling evidence, proof of defendant's guilt is compelling. The day after the victim's body was found, defendant told a social worker that he did not know the decedent, even though he had visited her in her apartment only three days before. During questioning by one of the detectives, defendant gave at least three conflicting accounts of how his shirt became bloodied. Defendant also gave an implausible account of how the decedent sustained her injuries. According to a detective, defendant stated that he "tripped" the decedent and she fell to the floor. Defendant noticed blood on the floor so he attempted to check her pulse by feeling in her vaginal area. Because he could not detect a pulse in the victim, he moved toward her chest area and attempted CPR. Unsuccessful in that attempt, he picked her up, thereby staining his clothes with her blood, dropped her to the floor, placed her face down and left the apartment. Defendant volunteered that he "didn't choke her" although the detective never mentioned that she was choked. Defendant also offered that he did not have sexual intercourse with the victim although the detective made no mention of a sexual crime. Defendant told the detective, "I didn't do it. I turned my head when somebody else did it."

In addition, a microscopist testified that nylon from the carpet in the decedent's apartment was on the decedent's dress and on defendant's T-shirt, underpants and sweatpants. She testified that fibers from a blanket in defendant's bedroom were located on the decedent's dress and underpants and on defendant's T-shirt and underpants as well.

The DNA Issue

As stated, the primary issue on this appeal is the introduction of DNA profiling evidence. Such 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. In this case, DNA comparison was made of a bloodstain taken from defendant's T-shirt, hair follicles taken from the deceased and blood drawn from the defendant. The conclusion was that the DNA print pattern on the defendant's T-shirt matched the DNA print pattern from the deceased and that the DNA print pattern from the blood of the defendant was different from that of the decedent.

Prior to the trial, a hearing was held to determine whether or not the DNA evidence proffered should be admissible. Following that hearing the trial court ruled the evidence admissible and the defendant was convicted at a subsequent trial (140 Misc.2d 306, 533 N.Y.S.2d 643). The Appellate Division affirmed (183 A.D.2d 75, 589 N.Y.S.2d 197).

Because the issue here is novel, we will discuss (1) the standard to be used in determining admissibility, (2) the use of DNA evidence in this case and (3) whether the standard was met here. ¹

The Standard of Admissibility

It should be emphasized that the inquiry here is into the reliability of the DNA evidence at the time of the proceedings in this case in 1988 and 1989. The DNA evidence was presented as novel scientific evidence requiring a determination as to its reliability (see, People v. Magri, 3 N.Y.2d 562, 565-566, 170 N.Y.S.2d 335, 147 N.E.2d 728 [approving the use of radar in speed detection]; People v. Middleton, 54 N.Y.2d 42, 49-50, 444 N.Y.S.2d 581, 429 N.E.2d 100 [holding that identification through bite marks is accepted by the scientific community]. While foundation concerns itself with the adequacy of the specific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v. United States, 293 F. 1013 poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. Only that Frye question is before us. The issues of a proper foundation and of the adequacy of laboratory procedures here are not before us, though some of the arguments made by the parties appear not to make this distinction.

In determining whether the DNA profiling evidence was properly admissible, attention must focus on the acceptance of such evidence as reliable by the relevant scientific community. The long-recognized rule of Frye v. United States (supra) is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has "gained general acceptance" in its specified field. In Frye (supra, at 1014) the court stated:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs" (emphasis supplied).

The Frye court rejected evidence that a person's truthfulness could be determined by a study of systolic blood pressure.

This Court has noted that the particular procedure need not be "unanimously indorsed" by the scientific community but must be "generally acceptable as reliable" (see People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 429 N.E.2d 100, supra). ² Thus, the issue here concerns the acceptance by the relevant scientific community of the reliability of DNA evidence.

The Use of DNA Evidence in this Case

Prior to the trial in this case, a Frye hearing was held to determine whether the relevant scientific community had accepted DNA evidence as reliable. The trial court found that DNA evidence was accepted as reliable. Lifecodes Corporation (Lifecodes) was then asked to perform DNA fingerprint identification on items of biological evidence in this case. Specifically, Lifecodes was asked to analyze a bloodstain on a T-shirt belonging to defendant, hair follicles which were taken from the victim, and whole blood that was drawn from the defendant. At trial, after the Frye hearing had been held and the trial court had found DNA evidence to be reliable and in order to lay a foundation for its admission at trial, Dr. Michael Baird, Director of Forensic and Paternity Testing at Lifecodes, explained how each piece of evidence was analyzed. He stated that, in each instance, DNA was extracted from the nucleus of a cell and purified to get a fairly pure DNA sample, free of contaminants. Using a restrictive enzyme that recognizes a particular sequence of DNA, the DNA was then cut into shorter pieces. Agarose gel was then used to separate the DNA pieces by length. The DNA pieces were then stained with ethidium bromide to permit increased visibility using ultraviolet light and to determine whether the separation by size was correctly done. Thereafter, the DNA was split into single strands and transferred from the gel to a nylon membrane. Next, a DNA probe, ³ which had been labelled with radioactive phosphate, was applied to the nylon membrane, causing the probe to bind with the complementary, single-stranded pieces of DNA. Any DNA probe that did not bind, as well as any excess DNA, were washed away. The nylon membrane was then placed on a piece of X-ray film and the pieces of the DNA probe that had been bonded to the membrane were revealed. The X-ray film, now referred to as an autorad, was then analyzed and compared with a known sample. This process is referred to as autoradiography. Dr. Baird concluded that the DNA print pattern that was generated from the bloodstain on the T-shirt matched the DNA print pattern from the victim's hair follicles, and that pattern was different from the DNA pattern from defendant's blood.

Application of the Standard to the Facts Here

Contrary to the contentions of the defendant, DNA profiling evidence is generally accepted as reliable by the...