People v. Wesley
| Decision Date | 15 July 1988 |
| Citation | 140 Misc.2d 306,533 N.Y.S.2d 643 |
| Parties | The PEOPLE of the State of New York v. George WESLEY, Defendant. The PEOPLE of the State of New York v. Cameron BAILEY, Defendant. |
| Court | New York County Court |
Sol Greenberg, Dist. Atty., Michael Katzer, Asst. Dist. Atty., (of counsel), for the People.
Douglas P. Rutnik, Public Defender, Joseph Cannizzaro, Asst. Public Defender, (of counsel), for George Wesley and Cameron Bailey.
In each of the cases herein the People move for an Order to extract blood from the respective defendant for the purpose of comparing the "DNA" 1 therein with "DNA" contained in biologic evidence reasonably believed to be relevant in each respective case. In People v. Cameron Bailey, the defendant is charged with rape in the 1st degree; the evidence believed to be relevant is an aborted fetus. In People v. George Wesley, the defendant is charged with burglary in the 2nd degree and suspected of murder in the 2nd degree. Bloodstained clothing was retrieved from the defendant; the People propose to compare the "DNA" contained in said bloodstains with "DNA" extracted from the deceased victim and for control purposes with "DNA" to be extracted from a known blood sample of defendant Wesley.
The process sought to be used by the People is colloquially and most frequently referred to in forensic science as "DNA Fingerprinting" 2, by which name the test DNA Fingerprinting is at the "cutting edge" of forensic science, just as molecular biology and genetic engineering are at the "cutting edge" of revolutionary applications in medicine and control of such genetic or genetic-influenced diseases as diabetes, diverse forms of cancer, muscular dystrophy, Down's Syndrome, and Acquired Immune Deficiency Syndrome (AIDS).
will in this decision be hereinafter called. 3
DNA Fingerprinting is a genetic and molecular biological process that has its basis in the fact that each individual has an entirely unique genetic "signature", derived in turn from the fact that the overall configuration of the DNA, found in every cell in the human body (and for that matter, in every living organism) containing a nucleus--over 99% of the cells of the human body 4--is different in every individual except in the case of identical twins. This fact is not only generally accepted by the scientific community to which it is related, but is uniformly accepted therein.
Related to this fact and fully accepted by the scientific community, is the further fact that in each individual the configuration of DNA contained in one cell is the same for every cell in the body of that individual. 5 Thus, for the purpose of DNA Fingerprinting, DNA for comparative purposes can be obtained from blood, semen, hair roots, skin, and indeed from over 99% of the cells of the human body.
The immediate advantage of DNA Fingerprinting, in addition to its ability to utilize a vaster source of obtainable biological evidence than heretofore was the case--practically any portion of the human body--is the claimed certainty of identification. Blood grouping identification tests often can narrow down the number of suspects to from 30 to 40 percent of the population. The laboratory the People propose to utilize claims a mean power of certainty of identification for American Whites of 1 in 840,000,000; for American Blacks, 1 in 1.4 billion. There are approximately only 5 billion people in the entire world.
The overwhelming enormity of these figures, if DNA Fingerprinting proves acceptable in criminal courts, will revolutionize the administration of criminal justice. Where applicable, it would reduce to insignificance the standard alibi defense. In the area of eyewitness testimony, which has been claimed to be responsible for more miscarriages of justice than any other type of evidence, again, where applicable, DNA Fingerprinting would tend to reduce the importance of eyewitness testimony. And in the area of clogged calendars and the conservation of judicial resources, DNA Fingerprinting, if accepted, will revolutionize the disposition of criminal cases. In short, if DNA Fingerprinting works and receives evidentiary acceptance, it can constitute the single greatest advance in the "search for truth", and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination.
Further, the compilation of a DNA Fingerprint data base, such as that in existence for ordinary fingerprints, will enormously enhance the ability of law enforcement to reduce the number of unsolved crimes that currently occur daily.
The matter of the admissibility of DNA Fingerprinting as a contested issue in the courts of the State of New York is a matter of first impression. Thus it was necessary herein that a Frye hearing be held to determine the admissibility of this new kind of scientific evidence. Because of the above and other overwhelming implications of DNA Fingerprinting, it was necessary
that this hearing be both extensive and intensive, so that a record be produced of a quality and thoroughness sufficient for the Court of Appeals ultimately to decide this matter. This resulted in a sharply contested hearing commencing December 11, 1987, and continuing on diverse dates thereafter, entailing the testimony of numerous witnesses prominent in the scientific fields of molecular biology, population genetics, and other diverse areas of genetics and human genetics, producing a transcript of over a thousand pages.
The ultimate standard for the admission of scientific evidence in the State of New York, even though refinements have been added by the appellate courts of the State of New York, is Frye v. United States, 293 F. 1013, (1923). In that case the Court of Appeals of the District of Columbia at page 1014, stated:
In People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581, 429 N.E.2d 100, (1981) the New York Court of Appeals refined the Frye standard, stating "... the test is not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally acceptable as reliable," at page 49, 444 N.Y.S.2d 581, 429 N.E.2d 100.
The particular scientific fields that govern DNA Fingerprinting are molecular biology, genetics, and a specialized branch of genetics known as population genetics.
In order to understand DNA Fingerprinting it is helpful to have a basic knowledge of genetics and cellular biology. To this end the Court presents the following brief genetic and biological primer 6:
A cell is the basic unit of all living organisms--including animals, plants, insects, and people. The human body has more than 10 trillion cells.
A cell has two main parts--the nucleus and the cytoplasm. The nucleus contains two important types of structures: chromosomes and nucleoli. The cytoplasm is all the material inside the cell membrane outside the nucleus.
The nucleus contains the cell's genetic program, a master plan that controls almost everything the cell does. It sends instructions to the cytoplasm, which is the cell's chemical "factory", to take amino acids and build proteins--to construct an arm, a leg, a head, and ultimately a total, functioning human body.
A chromosome is composed mainly of DNA and associated proteins and stores and transmits genetic information. In each human cell there are 46 chromosomes, arranged in pairs of 22 plus two sex chromosomes (represented by X for female and Y for male).
DNA is an abbreviation for deoxyribonucleic acid, its chemical structure. It is a molecule that carries the body's genetic information. It is contained in every cell with a nucleus in every living organism.
In 1953, James Watson, an American scientist, and Francis Crick, a British scientist, working together at Cambridge University in England, discovered the chemical and spatial structure of the DNA molecule. It was a "double helix" in which two chains of nucleotides, running in opposite directions, are held together between pairs of The long threads that make up the sides of the DNA ladder are made up of alternating units of phosphate and sugar called deoxyribose. The "rungs" of the "ladder" are made up of four compounds called bases. These bases are adenine, cytosine, guanine, and thymine (abbreviated A, C, G, and T). They are attached to the sugar units of the ladder's side pieces. Each rung consists of two bases: A-T, T-A, C-G, or G-C, held together by hydrogen bonds, a weak form of chemical bond. No other combination is possible because only the A-T and C-G pairs are chemically attracted to each other; that is, A can only link with T, and C can only link with G. (See Figure 1)
bases reminiscent of the rungs of a ladder, and coiled like a spring. It looks like a twisted rope ladder or a spiral staircase. Whereever their derivation--human, animal or vegetable--all DNA molecules have this shape.
The order of the bases in one strand of the DNA ladder determines the order of the bases in the other strand. For example, if the bases in one strand of the ladder are ACTAGT, the bases in the opposite strand would be TGATCA.
Each rung on the DNA ladder is known as a "base sequence", or a "base pair", and constitutes a bit of information. There are approximately 3 billion bits of information, or base sequences, in a molecule of DNA--that is, the genetic code in the nucleus of each cell of the human body...
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