People v. Wesley

• Decision Date: 22 October 1992
• Citation: 183 A.D.2d 75,589 N.Y.S.2d 197
• Parties: , 61 USLW 2287 The PEOPLE of the State of New York, Respondent, v. George WESLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

589 N.Y.S.2d 197

183 A.D.2d 75, 61 USLW 2287

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

Supreme Court, Appellate Division,

Third Department.

Oct. 22, 1992.

Roger M. Fritts (Jeanne M. Heran, of counsel), Albany, for appellant.

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

Before YESAWICH, J.P., and LEVINE, CREW, MAHONEY and HARVEY, JJ.

MAHONEY, Justice.

Appeals (1) from a judgment of the County Court of Albany County (Harris, J.), rendered February 22, 1989, upon a verdict convicting defendant of the crimes of murder in the second degree (four counts), rape in the first degree, attempted sodomy in the first degree and burglary in the second degree, and (2) by permission, from an order of said court, entered May 10, 1990, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

These appeals present the issue, one of first impression in the appellate courts of this State, of whether and under what circumstances the results of forensic DNA testing using the RFLP technique, ¹ colloquially referred to as DNA fingerprinting, is admissible in a criminal trial. The underlying facts are easily stated. On September 15, 1987, 79-year-old Helen Kendrick was found dead in her Madison Avenue apartment in the City of Albany. An autopsy revealed that she had been sexually assaulted and sodomized; the cause of death was attributed to manual strangulation. Police investigation centered upon defendant when caseworkers from the Albany City Hostel, an organization serving developmentally disabled adults of which defendant and the victim were clients, discovered a bloodstained T-shirt with gray and white hairs on it, bloodstained underwear and sweatpants in defendant's apartment. During questioning, defendant admitted visiting the victim on September 13, 1987. He admitted "tripping" her but denied sexually assaulting or murdering her.

In connection with the investigation, samples of the victim's hair and defendant's bloodstained clothing were delivered to Lifecodes Laboratory (hereinafter Lifecodes) for forensic DNA testing. Testing revealed that the DNA isolated from the victim's hair samples matched with the DNA isolated from the blood on the clothing, thus directly connecting defendant to the commission of the crime. Despite the foregoing, the prosecution nonetheless then moved in County Court to compel defendant to submit to a blood test for DNA analysis (ostensibly to definitively rule out any possibility that the blood on the clothing could be his). Apparently of the view that resolution of the prosecution's motion required the court, as a threshold matter, to determine the admissibility of this evidence at trial, a hearing pursuant to Frye v. United States, 293 F. 1013, and People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581, 429 N.E.2d 100, was conducted to determine the scientific reliability of forensic DNA fingerprint evidence in establishing the identity of a suspected criminal.

At the conclusion of the lengthy hearing, County Court found that forensic DNA fingerprint evidence satisfied the standards for admissibility set forth in Frye v. United States, supra, and People v. Middleton, supra, and granted the prosecution's motion (140 Misc.2d 306, 533 N.Y.S.2d 643). Not surprisingly, DNA analysis of defendant's blood confirmed that defendant's DNA did not match with the DNA isolated from the bloodstained clothing. The DNA evidence was admitted at trial. While defendant was acquitted of one of the charged counts of murder in the second degree and the sodomy charge, he was convicted of four counts of murder in the second degree, rape in the first degree, attempted sodomy in the first degree and burglary in the second degree. From the judgment entered on the jury verdict and by permission from the order denying his postverdict motion to set aside the conviction, defendant appeals.

The gravamen of defendant's arguments on appeal is that the evidence submitted at the hearing regarding forensic DNA fingerprinting did not satisfy the threshold of reliability necessary to permit its admission at trial. We disagree. By way of explanation, we begin with the proposition that the admissibility of DNA fingerprint evidence, like any other novel scientific evidence, requires a threshold showing that the scientific theory and the procedures used to obtain the result have gained general acceptance in the scientific community and the result achieved is accepted by that community as reliable (Frye v. United States, supra; People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484; People v. Middleton, supra ). Under this test, ancillary issues regarding integrity of the particular forensic sample from which the DNA fingerprint was obtained and whether the laboratory followed the accepted procedures in carrying out the tests on the particular sample at issue speak to the weight the evidence is accorded and thus are not relevant to the initial determination of admissibility (see, e.g., People v. Mohit, 153 Misc.2d 22, 579 N.Y.S.2d 990; cf., People v. Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920). ²

A review of the hearing transcript, the particulars of which are described extensively in County Court's opinion (140 Misc.2d 306, 533 N.Y.S.2d 643, supra ) and are not reiterated here, clearly demonstrates that the prosecution has satisfied its burden of proof of the general acceptance and reliability of this type of evidence. As reflected in the transcript, the theory underlying forensic DNA fingerprinting has gained acceptance in the scientific community. Indeed, as defendant concedes here, this conclusion is no longer subject to much dispute (see, United States v. Jakobetz, 955 F.2d 786, cert. denied --- U.S. ----, 113 S.Ct. 104, --- L.Ed.2d ---- [1992]; People v. Lipscomb, 215 Ill.App.3d 413, 158 Ill.Dec. 952, 574 N.E.2d 1345, lv. denied 141 Ill.2d 553, 162 Ill.Dec. 501, 580 N.E.2d 127; Commonwealth v. Rodgers, 413 Pa.Super.Ct. 498, 605 A.2d 1228; Andrews v. State, 533 So.2d 841 [Fla]; Cobey v. State, 80 Md.App. 31, 559 A.2d 391, cert. denied 317 Md. 542, 565 A.2d 670; State v. Pennington, 327 N.C. 89, 393 S.E.2d 847; Kelly v. State, 792 S.W.2d 579, affd 824 S.W.2d 568 [Tx]; Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775, cert. denied 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775; State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253; see also, People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985; cf., People v. Crosby, 116 A.D.2d 731, 498 N.Y.S.2d 31, lv. denied 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118).

Likewise, we believe the evidence sufficiently established that the six-step RFLP technique used to isolate the DNA from a source and to obtain a "fingerprint" therefrom is reliable. ³ At the Frye hearing, numerous scientists who are at the forefront of genetic and DNA testing presented expert testimony that the results of forensic DNA testing are reproducible, the protocols used are reliable and are the same or modifications of those used for decades in other areas of DNA identification. It was further established that these accepted protocols are used by Lifecodes, and quality controls are in place at that laboratory to insure reliability of each step of the testing process. While RFLP testing in the forensic arena presents unique problems not encountered in other areas because the samples from which the DNA is extracted often are contaminated or exposed to environmental influences, expert testimony also established that these factors do not degrade the quality of the DNA or compromise the fingerprint. Significantly, it was unrefuted that it is impossible under the RFLP procedure to obtain a false positive result, i.e., to identify the wrong individual as the contributor of the DNA being tested; if there was insufficient DNA for the test, if it was degraded due to environmental or other factors, or if any of the procedures were performed improperly, no print at all will register.

Finally, although one of the more disputed issues at the hearing and the basis for most objections to the admission of DNA fingerprint evidence in general ( see, State v. Schwartz, 447 NW2d 422 [Minn.]; see generally, Duceman, DNA Analysis: Scientific and Legal Aspects, 2 Albany L.J. of Science & Technology 53 [1992]; Committee on DNA Technology in Forensic Science, National Research Council Staff, DNA Technology in Forensic Science, Apr. 1992), the...