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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 109
The People &c.,
            Respondent,
        v.
Howard S. Wright,
            Appellant.




          David M. Kaplan, for appellant.
          Geoffrey Kaeuper, for respondent.




RIVERA, J.:
          We are presented in this appeal with a confluence of
prosecutorial misconduct committed during closing argument, and a
series of critical lapses by defense counsel when faced with the
prosecutor's obvious transgressions from the leeway generally
afforded attorneys during summation.   As the record establishes,

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defense counsel failed to object, time and again, when the
prosecutor repeatedly misrepresented to the jury critical DNA
evidence as proof of defendant's guilt, in contradiction of the
People's expert testimony.   We conclude defense counsel was
ineffective, and, on the record before us, defendant was denied a
fair trial as a result.   Therefore, the order of the Appellate
Division should be reversed.


                                 I.
            Defendant Howard Wright was tried and convicted of
murder in the second degree.   The People's case was
circumstantial because there were no eyewitnesses to the crime
and no forensic evidence that clearly established defendant's
guilt.    Other than testimony that placed defendant and others in
the victim's company around the time of her death, and
defendant's statement that he engaged in consensual sex with the
victim, the People had no evidence that linked her to defendant.
To meet the People's burden of proof, the prosecutor relied
heavily on the results of DNA testing to connect defendant to the
murder.   However, the DNA analysis was also circumstantial
because it did not "match" defendant's DNA to the DNA collected
at the crime scene.   Instead, the test only indicated that
defendant could not be excluded from the pool of male DNA
contributors, and the expert testimony provided no statistical
comparison to measure the significance of those results.


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           Notwithstanding the known limitations of this DNA
evidence and the indeterminate conclusions about the test results
drawn by the People's own experts, the prosecutor in summation
misrepresented the DNA analysis, including arguing the evidence
established that defendant's DNA was at the crime scene and on a
critical piece of evidence linked to the victim's murder.       In
light of the powerful influence of DNA evidence on juries, the
opportunity for juror confusion regarding the limited probative
value of the DNA methodology employed in this case, and the
qualified nature of the test results, defense counsel's failure
to object rendered him ineffective.
           To understand the nature of the prosecutor's actions
and the lack of any reasonable strategy for leaving the
prosecutor's statements unchallenged, we begin our consideration
of defendant's appeal with a review of the relevant trial
evidence and the prosecutor's closing argument.     Our legal
analysis then focuses on the details of the summation and defense
counsel's unexplained silence.
                                  II.
A.   Testimony Connecting Defendant to the Victim
           Defendant was tried in 2007 for the murder of the
victim, a female drug user, who was found dead on a Rochester
street on November 29, 1995.   Defendant had been seen in the
victim's company, in the hours before her murder, in the vicinity
of a building associated with drug use.


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            According to a witness who knew defendant and had seen
the victim "around" on prior occasions, she observed the victim
in a car with three men, whom she identified as defendant,
Christopher Gifford, and Keith Evans, between 8:00 and 9:00 p.m.
on November 28, 1995.   She saw the car pull up to a building on
North Clinton Avenue and drive away after Evans exited the car.
She then saw defendant and Gifford the following morning, between
5:00 and 6:00 a.m., as they exited through the back of the same
building.   This time she did not see the victim.   Shortly after
defendant walked out, she saw the victim's car pull out from the
back of the building and drive past.    Although she testified she
did not see who was in the car, she assumed that it was defendant
and Gifford because they were the only persons who exited through
the back of the building to where she had observed the car was
parked.
            Evans testified and confirmed that he had been with the
victim and defendant around the time of the murder.   Evans, a
drug dealer at the time, was a regular associate of defendant,
and also knew the victim.   He testified that, on November 28, he
went to a building on Chamberlain Avenue, to sell cocaine.    He
found the victim with her baby, defendant, Gifford, and two other
individuals, identified as brothers Freddy and Christopher
Walker, in one of the apartments.   He claimed that defendant and
Gifford had sold drugs to the victim that day.   At some point the
victim left in her car and, between 4:00 and 5:00 p.m., returned


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without the baby.   She again left the apartment, this time with
Freddy, returning 45 to 60 minutes later.   Between 5:00 and 7:30
p.m., the victim drove Evans, defendant, and Gifford to a tavern,
where she and Evans spent approximately 15 minutes inside the
tavern before she drove to the North Clinton Avenue building and
dropped off Evans, somewhere between 7:30 and 8:00 p.m.   She then
drove off with defendant and Gifford.
           Evans further testified that, over the course of the
next several hours, he saw defendant and Gifford together, but
without the victim.   Evans claimed that between 11:00 and 11:45
p.m. he was outside on the street near the North Clinton Avenue
building, on his way to make a telephone call to the police on an
unrelated matter, when he saw defendant and Gifford walking by.1
Evans also testified that he saw the victim's car in the alley
next to the building where he had just seen defendant and
Gifford.
           Around 2:00 a.m., on November 29, he saw defendant and
Gifford drive past in the car.    Evans next saw defendant and
Gifford a few hours later, between 4:00 and 5:00 a.m., when he
went inside one of the apartments in the North Clinton Avenue
building looking for them believing they had taken his food.     He
found them sleeping in the apartment, and, after he woke them up,
they exited the building and drove away in the victim's car.

     1
      The fact of the call, but not the time, was confirmed by a
police officer who testified that he received a dispatch at 12:40
a.m. and spoke with Evans a few minutes later.

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                                 - 6 -                        No. 109

           Evans testified that he saw defendant a few days after
he saw a newspaper reference to the victim.    As they walked on
the street defendant pointed out the victim's car, which was
parked where the police subsequently found it.   When Evans asked
defendant about the victim, defendant told Evans that he and
Gifford engaged in sex with her.    Afterwards, defendant and
Gifford dropped her off, and then Gifford dropped off defendant.
Later Gifford told defendant where he left the victim's car.
Evans described the location where the victim was dropped off as
where "people that were doing the same thing they were doing."
On cross-examination, Evans suggested that she had been left with
others who were "strung out on drugs."


B.   Discovery and Examination of the Victim's Body and Car
           At approximately 9:00 a.m. on November 29, 1995, the
victim was found lying in the driveway of a house, clothed but
barefoot, with her hands bound by a shoelace behind her back, and
with a shoelace tied around her neck as a ligature.   A sock was
found inside her clothing near her buttocks.
           The police found the victim's car on November 30, 1995,
near North Clinton Avenue, and discovered a pink sock inside,
along with various baby items.    The victim's hairs were found in
the car as well as hair samples from both white and black
individuals.
           The medical examiner testified that the victim died as


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a result of asphyxia from ligature strangulation, with the
approximate time of death between 11:30 p.m., on November 28, and
3:30 a.m the day she was discovered.     The body had abrasions
under the chin and around the neck.      The medical examiner also
found two dark-colored hairs near the victim's external
genitalia, later identified not to be the victim's.
           Various physical evidence, including the hand and neck
shoelace ligatures, vaginal swabs taken from the victim, a sperm
sample taken on her panties, the two hairs, and an additional
hair from the victim's mouth, were sent to an independent
laboratory for further analysis.    The results of the analysis
were presented at trial through expert testimony.


C.   Forensic and DNA Evidence
           The People presented testimony of three forensic
experts to discuss the DNA evidence collected during the police
investigation.   The evidence included samples from the crime
scene and the victim, and buccal swabs from the victim's husband,
defendant, Evans, Gifford, and Christopher and Fred Walker.
           One expert from the Monroe County Public Safety
Laboratory, explained DNA and DNA profiles, how DNA profiles are
developed, and how DNA testing and analysis are used to compare
an individual's DNA profile with the DNA profile of evidence
obtained at a crime scene.   She explained that because less than
one percent of human DNA is different, DNA analysis looks at


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specific regions of DNA to identify where the DNA is different
between individuals.   In order to make comparisons, the analyst
studies the different locations on DNA profiles to determine if
the individual is a possible donor to the DNA from the crime
scene.   If there are differences on the locations, then the
individual is excluded from the possible contributors to the DNA.
           She testified that in 1995 when she was an Assistant
Forensic Chemist for Monroe County, she examined swabs taken from
the victim, which contained semen and sperm.   Then in 2006, in
her position as a Forensic Biologist, she examined ligatures from
the victim's hands and neck.   The DNA profile from the neck
ligature only matched the victim. The DNA from the hand ligature
was so low-level that she did not report that data.    Instead, she
sent the swabs from the ligatures to a private laboratory for
additional testing, specifically Y chromosome or YSTR DNA
testing, and mitochondrial DNA testing.   She also sent hairs
collected from the victim's body, DNA extracts from the vaginal
swab and the victim's panties, and the DNA samples from the
victim, her husband, Evans, and the Walker brothers.
           On cross-examination, the expert testified that the DNA
profiles from the hand and neck ligatures were mixtures of at
least two contributors, but that the DNA was of such a low level,
meaning that there was a small amount of DNA or that it was
degraded, that she was unable to report back any comparisons.
Given the quality of the DNA, she could not state whether there


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                               - 9 -                         No. 109

were more than two contributors.   She further explained the term
"transference" as the process by which DNA transfers from one
object to another, or from one person to an object.
           She explained that a "match" results when the profiles
are the same at all the locations tested on the DNA, after
comparing the DNA crime scene profiles to an individual's DNA
profile.   In contrast, the term "not excluded" is applied to
mixtures of DNA.   She clarified that when the result establishes
that an individual is "not excluded" this means "the data is of
such quality that it is not strong enough to say it matches a
particular person, but yet the data is also such that you cannot
say that it is not them in that [DNA]."
           A second expert, the Assistant Lab Director and DNA
Technical Manager for the Monroe County Public Safety Laboratory,
testified that in 2002, and again in 2006, she performed a
differential DNA extraction on the vaginal swab and semen stain
from the victim's panties.   Differential extraction is a method
by which DNA is drawn from the biological material, and DNA from
sperm cells is separated from the DNA in non-sperm cells.
According to her test results, the sperm fraction on the vaginal
swab contained a DNA mixture of at least two contributors, of
which Gifford could not be excluded as a contributor, but the
victim's husband, Evans, and the Walker brothers were excluded.
           The test also indicated that the semen stain from the
panties contained a DNA mixture of at least four contributors, of


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which the victim, her husband, and Gifford could not be excluded,
but Evans and the Walker brothers were excluded. She also
testified that her examination of certain vaginal slides from the
victim's autopsy indicated recent sexual contact.   The expert
provided no testimony regarding defendant because she did not
analyze his DNA, but rather sent his sample to the independent
laboratory for further DNA testing.
          The third forensic expert was from the independent
laboratory that conducted the YSTR DNA tests on the swabs and
physical material sent from the Monroe County laboratory.   She
described YSTR DNA testing, explaining that it is used to isolate
male DNA from male/female DNA mixtures.    The expert testified
that she compared the male DNA samples provided by Monroe County
with the samples from the victim and her husband, defendant,
Gifford, Evans, and the Walker brothers.   The purpose of these
tests was to show whether any of the men's DNA characteristics
matched characteristics of the crime scene DNA.    If there was a
match, she could not exclude the male from the pool of
contributors with the DNA characteristics identified through the
YSTR DNA test.   She explained that YSTR DNA testing is distinct
from autosomal DNA testing, which permits a statistical
determination that an individual's DNA matches the crime scene
DNA, rather than a finding that someone cannot be excluded from
the pool of possible contributors, who have some of the same DNA
characteristics found on the victim DNA samples.


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                               - 11 -                         No. 109

            The expert testified that based on the results of the
YSTR DNA analysis she could not exclude defendant and the
victim's husband as contributors to the hand ligature sample;
that the analysis of the vaginal swab could not exclude defendant
or Gifford as contributors; and that the victim's husband,
Gifford, and defendant could not be excluded as contributors to
the sample taken from the panties.      She also testified that the
mitochondrial DNA testing of a black hair sample, recovered from
the victim's genitalia, matched the mitochondrial sequence of the
victim and Gifford.
            On cross-examination, the expert admitted that there
was no statistical calculation drawn from the YSTR DNA testing,
as can be done with autosomal DNA analysis, the more commonly
familiar DNA testing.2   She explained there is simply no single
profile in YSTR DNA testing, as there is in autosomal DNA
analysis.   Instead, YSTR DNA analyzes a mixture of more than one
DNA profile.   Asked specifically if she could quantify how many
men other than the defendant, in the Rochester area or the trial
courtroom, had the same combination of DNA characteristics
indicated on the hand ligature, the expert said she could not.
She testified that she could only provide information based on



     2
      In autosomal DNA testing, a profile derived from nuclear
DNA is compared to another nuclear DNA profile to produce "a
statistical expression of the profile's rarity in certain human
populations" (Justice Ming W. Chin, et al., Forensic DNA
Evidence: Science and the Law, ch. 5 [2015]).

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                              - 12 -                        No. 109

persons for whom she had samples.   Again, asked specifically by
defense counsel, "can you tell us with a reasonable degree of
scientific certainty that [defendant's] DNA is present on this
hand ligature sample that you tested," she responded "No, I
cannot.   All I can say is I can't exclude him."


D.   Closing Arguments
           During summation both the defense and the prosecution
presented their respective views of the witnesses' testimony, and
what it revealed about the timeline leading up to, and following,
the victim's death.   For her part, the prosecutor relied heavily
on the DNA evidence, and argued that the DNA established that
defendant raped and murdered the victim. She told the jury that
the case could be decided based on "common sense and science."
She said that defendant and Gifford "left their DNA all over the
crime" then turned her focus to what she argued was the one
constant of the DNA analysis: that defendant was the only
matching contributor across several DNA samples.
           In the course of summation, she described the DNA
evidence as narrowing the number of contributors.   She stated
that there were "two contributors and two contributors only, and
the sperm fraction of the vaginal swab matched the YSTR/DNA
profile of the defendant and . . . Gifford."   She also stated
that there were "[t]wo contributors to the sperm found in [the
victim's] vagina after she was tied up, the defendant and his


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                              - 13 -                          No. 109

accomplice, [Gifford]."   She also stated that the DNA is a
mixture that cannot provide a statistical calculation, she stated
repeatedly that defendant "could not be excluded as a contributor
to the mixture."
           In addition the prosecutor stated,
           "The ligature on the hands, every single
           number that they were able to determine, and
           they were able to detect partial profile
           matches, is that of Howard Wright and [the
           victim's husband]"
            . . . .
           "We have no reasonable explanation for Howard
           Wright's DNA on that ligature that bound her
           hands"
            . . . .
           "We have [defendant's] sperm in [the
           victim's] vagina. We have [defendant's] sperm
           on [the victim's] underwear, and we have
           [defendant's] DNA profile included on the
           ligature that bound her hands together, the
           same identical ligature that is around her
           neck and strangled her to death.
She argued that of the YSTR DNA profiles tested, defendant was
the singular match to one of the most incriminating pieces of
evidence, the ligature.   "[T]he only one that matches of the
people that she was with that night, the only one who matches the
DNA profile on the ligature is [defendant]."


E.   Defendant's Conviction and Appeal
           The jury found defendant guilty of second degree
intentional murder (Penal Law § 125.25 [1]) and acquitted him of


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                                - 14 -                      No. 109

felony murder (Penal Law § 125.25 [3]) and rape (Penal Law §
125.35).   The court sentenced defendant to a term of 25 years to
life.
           In a 3-2 decision, the Appellate Division affirmed,
with the majority rejecting defendant's claims that the evidence
was legally insufficient and against the weight of the evidence.
The court also concluded that defendant was not denied meaningful
representation, and that his prosecutorial misconduct claim was
unpreserved (115 AD3d 1257).
           The two dissenters would have exercised the court's
interest-of-justice jurisdiction to review defendant's claim of
prosecutorial misconduct committed during summation, and would
have reversed on that ground.    They further would have reversed
on ineffective assistance of counsel grounds because
           "counsel's failure to object to the
           prosecutor's baseless transformation of
           evidence that defendant was in a group or
           class of people that could have contributed
           to the subject DNA samples to evidence that
           defendant was the sole possible contributor
           to those samples was so egregious and
           prejudicial that defendant did not receive a
           fair trial"
(id. at 1262).   A justice of the Appellate Division granted leave
to appeal (22 NY3d 1204 [2014]).    We now reverse.


                                 III.
           Defendant claims that his defense counsel was
ineffective because of various alleged errors committed by his


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                             - 15 -                          No. 109

attorney during the course of the trial.3   We agree with
defendant only as to some of the errors alleged.   On this record,
we conclude that defense counsel's serial failure to object to
the prosecution's inaccurate and misleading descriptions of the
DNA evidence during the People's closing constitutes a pattern of
inexcusable mistakes that cannot be attributed to a failed trial
strategy, and which denied defendant a fair trial.
          Every defendant is constitutionally entitled to
effective assistance of counsel, meaning under our state
standards that "[s]o long as the evidence, the law, and the
circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided
meaningful representation, the constitutional requirement will
have been met" (People v Baldi, 54 NY2d 137, 147 [1981], citing
People v Droz, 39 NY2d 457 [1976]).   Where a defendant claims
that counsel's performance is deficient the defendant must
"'demonstrate the absence of strategic or other legitimate
explanations' for counsel's alleged shortcomings" (People v
Benevento, 91 NY2d 708, 712 [1998], citing People v Rivera, 71
NY2d 705, 709 [1988]; comparing People v Flores, 84 NY2d 184
[1994] with People v Bennett, 29 NY2d 462, 465 [1972]; People v



     3
       Defendant claims specifically that trial counsel   made a
prejudicial statement during his opening statement, did   not
present an expert witness to testify about Y chromosome   DNA
testing, and failed to object to prejudicial statements   during
the People's opening statement and summation.

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                              - 16 -                          No. 109

Droz, 39 NY2d at 463; People v Gonzalez, 47 NY2d 606, 611
[1979]).
           The standard is challenging, but not insurmountable.
Even where counsel's errors "individually may not constitute
ineffective assistance, 'the cumulative effect of [defense]
counsel's actions [can] deprive[] defendant of meaningful
representation' " (People v Oathout, 21 NY3d 127, 132 [2013]
[first modification original], citing People v Arnold, 85 AD3d
1330, 1334 [3d Dept 2011]).   The task of a reviewing court is to
"consider[] the seriousness of the errors in their totality" (id.
at 132).   Moreover, as we have recognized, "although the inquiry
focuses on the quality of the representation provided to the
accused, the claim of ineffectiveness is ultimately concerned
with the fairness of the process as a whole rather than its
particular impact on the outcome of the case" (Benevento, 91 NY2d
at 714).
           An ineffective assistance claim based on defense
counsel's failure to challenge a prosecutor's summation presents
a unique set of considerations given the nature of closing
statements generally.   However, prosecutorial misconduct is not
immune to attack by defense counsel merely because it occurs
during the course of summation.   As the Court has recognized,
           "although counsel is to be afforded 'the
           widest latitude by way of comment,
           denunciation or appeal in advocating
           [counsel's] cause' (Williams v Brooklyn El.
           R. Co., 126 NY 96, 103 [1891]) summation is
           not an unbridled debate in which the

                              - 16 -
                             - 17 -                          No. 109

          restraints imposed at trial are cast aside so
          that counsel may employ all the rhetorical
          devices at his command. There are certain
          well-defined limits"
(People v Ashwal, 39 NY2d 105, 109 [1976]).     Summation must
remain within
          "the four corners of the evidence and avoid
          irrelevant comments which have no bearing on
          any legitimate issue in the case. Thus the
          District Attorney may not refer to matters
          not in evidence or call upon the jury to draw
          conclusions which are not fairly inferable
          from the evidence"
(id., at 109-110 [internal cites omitted]).     Defense counsel's
inaction in the face of prosecutorial misconduct made during
closing argument is subject to the same "meaningful
representation" standard applicable to other trial errors.       Under
that standard, where defense counsel fails to object when faced
with a pattern of prosecutorial misstatements far afield from
acceptable argument, such as statements that misrepresent
evidence central to the determination of guilt, and where there
is no apparent strategic explanation for defense counsel's
silence, defendant has been deprived of meaningful representation
and the constitutional right to a fair trial.


                               IV.
          Here, defense counsel failed to object when the
prosecutor misrepresented the scientific import of the DNA
evidence, suggested that the evidence directly linked defendant
to the murder although it did not, and made statements that

                             - 17 -
                              - 18 -                          No. 109

contradicted the expert testimony about the limitations of YSTR
DNA analysis.   Given the significance of the DNA evidence,
defense counsel's silence is inexplicable, and under the
circumstances of this case, his inaction was error.
          During summation the prosecutor returned to the theme
she had promoted during her opening, that this case was about
"common sense and science."   While some amount of hyperbole is
not unusual, she exceeded "the four corners of the evidence" when
she stated that defendant and his accomplice "left their DNA all
over the crime."   In fact, the YSTR DNA analysis in this case did
not result in a "match" between defendant's DNA and the DNA found
at the scene.   According to the People's own expert, the analysis
only revealed that defendant "could not be excluded" from the
pool of possible contributors to the DNA mixture of samples
collected.4
          Although the prosecutor acknowledged that the DNA was a
mixture and that the hand ligature comparison was based on
"partial profile matches" of YSTR DNA, the prosecutor

     4
      The dissent contends that "it is irrelevant that the
prosecutor referred to defendant's DNA being inside the victim or
on her underwear" (dissenting op, at 8) because defendant
conceded that he engaged in intercourse with the victim and
therefore defense counsel had no basis to object. However, the
prosecutor relied on the DNA evidence in support of her theory of
the case that the sex was not consensual and that DNA from the
panties and vaginal swab matched the DNA on the ligatures,
meaning the victim was murdered by the rapists. Thus, defense
counsel had good reason to object when the prosecutor
misrepresented that the DNA evidence of sexual contact connected
defendant to the murder.

                              - 18 -
                             - 19 -                        No. 109

aggressively argued the view that defendant's DNA conclusively
matched that found at the crime scene and on the victim.
However, the expert testified on direct and cross-examination to
just the opposite, and described the significant limitations of
the YSTR DNA testing conducted in this case.   Significantly, the
expert testified that she could not state positively the total
number of DNA contributors to the hand ligature sample, no wide
statistical comparisons were made to identify the potential
number of men who would be included in the pool of possible
contributors, and that the hand ligature sample contained limited
information possibly due to degradation of the DNA.
          Nevertheless, the prosecutor's comments negated the
main shortcoming of YSTR DNA analysis -- that it can only reveal
that an individual is not excluded from the pool of persons with
the same DNA profile as that found at the scene.   She argued that
of the people who were with the victim around the time of her
murder, only defendant matched the hand ligature DNA profile.
However, this was in direct contravention of the expert testimony
on cross-examination:
          Defense counsel: Now, can you tell us with a
          reasonable degree of scientific certainty
          that [defendant's] DNA is present on this
          hand ligature sample that you tested?
          Answer: No, I cannot.   All I can say is I
          can't exclude him.
          The prosecutor's attempt to establish defendant as the
sole contributor also contradicted the expert's testimony on


                             - 19 -
                               - 20 -                       No. 109

cross-examination that it was possible that three individuals
contributed to the DNA mixture on the hand ligature.    It also
minimized and ignored the expert's testimony that the lab was
able to obtain reportable results on only 4 of the 12 areas of
the Y chromosome tested, which constituted a "partial profile,"
meaning the lab obtained a limited amount of information, and
that it was possible that, before testing, the sample had
degraded over time.   The prosecutor compounded these
misrepresentations when she further asserted -- again in
contravention of the expert testimony -- that there was "no
reasonable explanation for [defendant's] DNA on that ligature."5
            While the prosecutor was entitled to fair comment on
the DNA evidence available in this case, she was not entitled to
present the results in a manner that was contrary to the evidence
and the science.   By interspersing references to DNA on the
ligature with comments about defendant's DNA profile, the
prosecutor mischaracterized the probativeness of the DNA
evidence.
            As the prosecutor acknowledged during her summation,
and as the People concede on this appeal, the case against the
defendant is circumstantial.   Apart from the forensic experts'



     5
      The prosecutor's own statements establish that she did not
consider the DNA as merely "one piece of the puzzle" as the
dissent suggests (dissenting op, at 9), but rather as the
critical piece of evidence that could be used to persuade the
jury of defendant's guilt.

                               - 20 -
                              - 21 -                         No. 109

testimony, the remaining trial evidence established only that
defendant was one of at least two people seen with the victim
before her death, and then in her car after the approximate time
of the murder.   Defendant's statement that he engaged in sex with
the victim was not proof of his role in her death, and the jury
in fact acquitted the defendant of rape, apparently crediting the
defense that the sex was consensual, and rejecting part of the
prosecution's version of the events.   Thus, leaving only the DNA
evidence to connect defendant to the murder.   Defense counsel,
therefore, could not allow these misrepresentations to stand
unchallenged.
          Moreover, failing to object to the prosecutor's
misstatements cannot be attributed to reasonable trial tactics
because the summation undermined what, until that point, had been
a rather effective defense strategy of identifying the weaknesses
of the DNA evidence.   He secured an admission from the expert on
cross-examination that she could not confirm defendant's DNA was
on the hand ligature, and he solicited testimony that YSTR DNA
analysis has several limitations, and that the DNA might have
been degraded.   Defense counsel could not have reasonably chosen
a strategy of allowing the prosecution to misrepresent the
strength of the DNA evidence and equate the results of the
testing with a finding that defendant was the sole match for the
hand ligature DNA sample.
          Indeed, the potential danger posed to defendant when


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                              - 22 -                         No. 109

DNA evidence is presented as dispositive of guilt is by now
obvious.   As this Court previously recognized, "forensic DNA
testing has become an accurate and reliable means of analyzing
physical evidence collected at crime scenes and has played an
increasingly important role in conclusively connecting
individuals to crimes" (People v Pitts, 4 NY3d 303, 309 [2005]).
Courts and commentators have remarked on the unique status of DNA
evidence within the criminal justice system and in the minds of
jurors. "Modern DNA testing can provide powerful new evidence
unlike anything known before" (Dist. Attorney's Off. for Third
Jud. Dist. v Osborne, 557 US 52, 62, [2009]). The persuasiveness
of DNA evidence is so great that as one commentator noted,
"[w]hen DNA evidence is introduced against an accused at trial,
the prosecutor's case can take on an aura of invincibility"
(Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of
High-Tech Evidence By Prosecutors: Ethical and Evidentiary
Issues, 76 Fordham L. Rev. 1453, 1469 [2007]).   Similarly, in a
three-case study, the researchers noted that "a mystical aura of
definitiveness often surrounds the value of DNA evidence to
exonerate the innocent and convict the guilty" (Joel D. Lieberman
et. al., Gold Versus Platinum: Do Jurors Recognize the
Superiority and Limitations of DNA Evidence Compared to Other
Types of Forensic Evidence?, 14 Psychol Pub Pol'y & L 27 [2008]).
Furthermore, this same aura "that surrounds DNA profiling has led
it to become 'perhaps the most powerful and thus the most


                              - 22 -
                               - 23 -                        No. 109

troubling forensic technology to ever be used in a court of law'"
(id. at 33 [citation omitted]).   The studies suggested that
"[g]iven the strength of DNA evidence in the face of strong
cross-examination (and in the absence of any additional
accompanying direct evidence), it appears that jurors may
overvalue this high quality, but not flawless, evidence" (id. at
57).   The researchers concluded that "[t]he strong and largely
invariant impact of DNA evidence across experimental conditions
suggests that this type of scientific evidence maybe so
persuasive that its mere introduction in a criminal case is
sufficient to seriously impede defense challenges" (id. at 56).
            Our dissenting colleague argues that defense counsel
was effective and that we have wrongly concluded that a single
failure to object constitutes ineffective assistance (dissenting
op, at 1, 12).   That is incorrect and oversimplifies our
analysis.   We do not base our decision on defense counsel's
failure to object to an isolated, insignificant, albeit
erroneous, statement by the prosecutor.    As our discussion makes
clear, the prosecution's summation contains numerous
misrepresentations of the evidence.     The apparent intent was to
persuade the jury that the DNA established that defendant had
committed the rape and murder, when the evidence did not, and
could not, dispositively establish his guilt.    The record also
makes clear that defense counsel failed to object throughout the
summation, thus presenting multiple failures, different in kind


                               - 23 -
                              - 24 -                         No. 109

from that identified in People v Turner (5 NY3d 476 [2005]).
Given the prosecutorial misrepresentations that define the
summation in this case, we disagree with our dissenting colleague
that counsel's inactions are the equivalent of an excusable
"single error."
          Furthermore, the appeal before us does not involve a
closing argument in which the prosecutor adhered to the trial
evidence and employed a certain rhetorical flourish, or merely
asked the jury to draw reasonable inferences from the evidence
presented at trial.   Nor are we presented with the more common
and understandable situation in which defense counsel was
reluctant to interrupt and bring undue attention to one slightly
off comment by the prosecution, and where the summation had
little or no impact on the defense.    Instead, defense counsel
here failed to object when the prosecution's statements exceeded
the "four corners of the evidence" (Ashwal, 39 NY2d at 109), and
affirmatively misrepresented the most critical evidence against
the defendant.6   Under these circumstances, defendant was
deprived of a fair trial.



     6
      Our dissenting colleague's discussion of People v Fisher
(18 NY3d 964 [2012]) reveals that his disagreement with us is not
so much about whether defense counsel was ineffective for failing
to object based on some comparison to Fisher, but instead whether
the prosecutor actually misrepresented the evidence, and thus
committed prosecutorial misconduct under any standard (dissenting
op at 10-11). Unlike the dissent, we believe the prosecutor
exceeded the bounds of acceptable commentary. Once she crossed
that line, defense counsel should have acted.

                              - 24 -
                              - 25 -                        No. 109

           Defendant's remaining contention that the evidence was
legally insufficient is without merit.   Accordingly, the order of
the Appellate Division should be reversed and a new trial
ordered.




                              - 25 -
People of the State of New York v Howard S. Wright
No. 109




PIGOTT, J.(dissenting):
          The majority holds that defendant was deprived of the
effective assistance of counsel by looking at a single error in a
vacuum, namely, alleged prosecutorial misconduct during summation
to which defense counsel failed to object.   However, we have long
held that "'[s]o long as the evidence, the law, and the
circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided
meaningful representation, the constitutional requirement will
have been met'" (People v Rivera, 71 NY2d 705, 708 [1988],
quoting People v Baldi, 54 NY2d 137, 146-147 [1981] [emphasis
supplied]).   I write separately because I believe that defense
counsel's representation of defendant should be placed in its
proper context and, viewed in its totality, defense counsel's
representation in this instance was light years from what is
deemed ineffective assistance under our jurisprudence.
                                I.
          In this circumstantial case, defendant was convicted
after a jury trial of one count of murder in the second degree
(intentional murder), but was acquitted of murder in the second
degree (felony murder) and rape in the first degree.   The


                               - 1 -
                                - 2 -                         No. 109

underlying facts, as proven at trial, were that the victim had
last been seen in her car with defendant and another man,
Christopher Gifford, in the early morning hours of November 29,
1995.   Later that morning, she was found dead with a black
ligature tied around her hands and neck.   The defense conceded
that defendant and the victim had engaged in sexual intercourse
the morning she was found dead, and that both defendant and
Gifford had been in the victim's car with the victim that
morning.   The only issue at trial therefore was the identity of
the person(s) who allegedly raped and murdered the victim.
            In addressing that issue, the People presented at trial
test results from, among other things, swabs taken from both the
hand and neck ligatures and sperm samples taken from the victim's
underwear and vagina.   Thus, we must assess defense counsel's
competence in attacking the test results that tended to implicate
defendant, i.e., the samples taken from the hand ligature.
            To prove their case, the People relied on a type of DNA
testing called Y-chromosome analysis, or "YSTR testing."
According to the People's expert, Meghan Clement, Technical
Director of the Forensic Testing Division at LabCorp, YSTR
testing involves the analysis of male DNA when DNA samples
consist of mixtures of both male and female DNA.   This form of
testing ignores female DNA and focuses exclusively on the male
DNA.    It allows the technician to distinguish how many males have
contributed to a sample and whether the sample can be attributed


                                - 2 -
                                 - 3 -                      No. 109

to a specific male.   When asked by the People to explain the
process of YSTR testing, Clement testified as follows:
          "The first thing that occurs is we add
          chemicals to the sample to break open the
          cell to allow the DNA to be released. We will
          then quantitate to determine approximately
          how much Y chromosome DNA we are able to
          recover from a portion of a sample that we
          have used for testing. We then genetically
          photocopy the specific areas on the Y
          chromosome where there are differences
          between males and run it through a detection
          system to visualize the characteristics
          present in a particular sample. We use the
          same procedure for the unknown evidentiary
          sample as we do with a known reference sample
          and simply compare the fields of the two
          samples to determine if there are
          similarities or differences."
          LabCorp created a chart from the samples subjected to
the YSTR testing.   The chart contained, among other things, a
column depicting the reference profile that had been obtained
from the oral swab sample taken from defendant.   The chart also
contained results that had been obtained from the swab samples
taken from the hand ligature and the sperm samples taken from the
victim's underwear and vagina.    Clement explained that, with
regard to the hand ligature, she compared defendant's and the
victim's husband's reference profiles to the characteristics
obtained from the ligature sample and determined that both were
possible contributors to mixture sample, i.e., she could not
exclude them as contributors.    Clement explained that "[w]hat
that means is that the characteristics seen within the mixture or
characteristics possessed by that particular individual, and


                                 - 3 -
                                - 4 -                          No. 109

because characteristics that they possess are found within that
mixture, we cannot exclude them as being possible contributors."
            Significantly, the proof at trial established that
Clement excluded Gifford as a possible contributor to the hand
ligature sample.    With respect to the vaginal swab sample,
however, Clement was unable to exclude defendant, Gifford or the
victim's husband.   However, defendant was excluded as the
contributor to the sperm sample taken from the underwear,
although Gifford was not.
            Defense counsel ably attacked Clement's testimony,
getting her to admit that a number of men may possess similar
characteristics to defendant and that she had obtained reportable
results for only four of the 12 areas tested on the hand
ligature.   Certain of those areas, she conceded, had shown
evidence of degradation, i.e., that the sample had "broken down,"
so that she was able to obtain only what is known as a "partial
profile."   During cross-examination, Clement admitted that she
obtained only "a limited amount of information" from the hand
ligature samples; she also acknowledged that it was "possible"
that there could have been more than two contributors to the hand
ligature.
            Significantly, defense counsel asked Clement if she had
conducted any statistical calculations with regard to the YSTR
testing, and she responded in the negative.   She explained that
she engaged in an "accounting method" for that type of testing,


                                - 4 -
                                 - 5 -                         No. 109

but acknowledged that one could not "calculate statistics like we
do with traditional, with nuclear or autosomal DNA testing" with
YSTR.   She further conceded that she could not give the jury a
"statistical significance for the profile present in the [hand]
ligature."    Perhaps the most damaging testimony that defense
counsel elicited from Clement was that she could not state with a
reasonable degree of scientific certainty that defendant's DNA
was on the hand ligature sample that she had tested.
             Defense counsel was simply unrelenting at trial
attacking not only YSTR analysis as a science, but also what the
results ultimately showed.    His attacks did not cease at the
conclusion of the People's case-in-chief, either.    During his
summation, he hammered away at Clement's concessions that she
could not state with a reasonable degree of scientific certainty
that the DNA on the hand ligature was defendant's and that she
could not provide any statistical analysis concerning the YSTR
results.
                                  II.
             The critical error that defense counsel made, according
to the majority and defendant, is that he did not object to
certain statements that the prosecutor made during summation.      To
be sure, the prosecutor stated that defendant and Gifford "left
their DNA all over the crime."    Viewing that statement in a
vacuum, as the majority does, one could not draw any conclusion
other than that defense counsel should have been on his feet,


                                 - 5 -
                                - 6 -                         No. 109

pounding the table and objecting to that statement.     Viewed in
context, however, that statement does little more than serve as
an introduction to the prosecutor's discussion of the DNA
evidence.   What was contained in her discussion?    Statements that
one "cannot put a statistical calculation on" YSTR DNA, and that
the sperm fraction of the vaginal swab "matched the YSTR DNA
profile" of defendant and Gifford.      The majority takes issue with
the prosecutor's use of the word "matched," but when she utilized
that word, it was to argue that the sample "matched" defendant's
YSTR DNA profile.
            The majority claims that "the prosecutor aggressively
advanced the view that defendant's DNA conclusively matched that
found at the crime scene and on the victim" (majority op, at 18),
but that is simply not the case.   The People did not misrepresent
the evidence as the majority claims, but, rather, repeatedly
argued that defendant's YSTR DNA profile matched the DNA taken
from the ligature:
            "Probably the most or the piece of evidence
            that we, [defense counsel] and I, disagree on
            the most would be the DNA taken from the hand
            ligature that was binding [the victim's]
            hands behind her back. . . . That ligature
            was wrapped and tied tight around her wrist.
            And what do we know about that? Were we able
            to get a complete profile? No. But at four
            locations there was able to be detected the
            presence of a Y chromosome, and this is
            something that you can go back and study,
            too. As you've heard during the testimony of
            LabCorp, each number represents an allele or
            a number assigned to that individual's DNA at
            that particular Y location. The ligature on
            the hands, every single number that they were

                                - 6 -
                    - 7 -                       No. 109

able to determine, and they were able to
detect partial profile matches, is that of
[defendant] and [the victim's husband]. She
told you, because this is a partial profile
and because the DNA on the ligature is a
mixture, they are not able to give you a
statistical calculation, but she can tell
you, according to her expertise, that
[defendant] could not be excluded as a
contributor to the mixture on that ligature.
"Now, I want you to also look at the chart.
Of the people that were with her that night,
we have Christopher Gifford's YSTR profile,
Keith Milburn Evans' profile, we have the
Walker brothers' profile. Remember,
Christopher and Frederick Walker would have
the same YSTR profile because they are
brothers, and [defendant], we have got the
YSTR profile, even throwing [the victim's
husband] in, they all have different
profiles, all have different alleles at the
locations. The only one that matches of the
people that she was with that night, the only
one who matches the DNA profile on the
ligature is [defendant]. Is that
coincidence? I don't think it is. Could it
be transference? I don't think it is. Could
there be a reasonable explanation? I don't
think there is, and I don't think I am asking
you to take a leap of faith or assume facts
upon facts upon facts. You need to look at
the ligature DNA profile in light of all the
other evidence that you have. Could there be
a reasonable explanation for one thing?
Sure. Could there be a reasonable
explanation for two things? Sure. But what
we have here, we have no reasonable
explanation for [defendant's] DNA on that
ligature that bound her hands.
"In light of all the other evidence, we have
[defendant] and his codefendant with her
hours before her body was discovered. [The
victim's husband] wasn't there. We had
[defendant] and Christopher Gifford together
alone hours later. We have them alone in her
car before her body is discovered. We have
[defendant] showing [the victim's] car to
Keith Evans. We have [defendant's] sperm on

                    - 7 -
                                - 8 -                        No. 109

          [the victim's] underwear, and we have
          [defendant's] DNA profile included on the
          ligature that bound her hands together, the
          same identical ligature that is around her
          neck and strangled her to death. When you
          look at all of that, there is no reasonable
          explanation other than the fact that he and
          Christopher Gifford took her in that car,
          tied her up, raped her, strangled her, dumped
          her on Skuse Street, and got on with their
          own business.
          "This is a case of common sense and science.
          [The victim] didn't deserve to die that way.
          She was a drug addict. She got herself into
          a bad situation, but it doesn't escape the
          facts. The defendant's DNA is inside her, on
          her underwear, on the ligature that binds her
          hands. He is seen with her while she is
          alive before her body is discovered. He is
          seen with Christopher Gifford afterwards
          driving around in her car, and he points out
          her car to another friend, bragging about it
          being parked on Burbank Street. When you put
          it all together, members of the jury, it is
          common sense and there is only one conclusion
          you can reach and that is guilty. Thank you"
          (emphasis supplied).
          It is irrelevant that the prosecutor referred to
defendant's DNA being inside the victim or on her underwear; the
defense conceded during opening statements that defendant had
been with the victim and had engaged intercourse with her, so
there was no point in defense counsel objecting to that part of
the prosecutor's statement.   Moreover, defense counsel, proving
his effectiveness, actually got defendant acquitted of the first
degree rape and felony murder counts.   The jury plainly rejected
the People's theory that defendant raped the victim.   When the
rape charge fell, so too did the felony murder charge upon which
the rape charge was premised.

                                - 8 -
                                - 9 -                        No. 109

           The People carefully explained to the jury that they
were not able to obtain a complete profile or a statistical
calculation.    Essentially, the People's summation acknowledges
that they believed that their YSTR DNA evidence was relatively
weak, which explains why the prosecutor told the jury that
"[t]his is a case of common sense and science."    The prosecutor
did not represent the YSTR DNA evidence as a "slam dunk," but,
rather, asked the jury to "put it together" and "to look at the
ligature DNA profile in light of all the other evidence that you
have" (emphasis supplied).    Indeed, the People had more than just
the YSTR DNA results tying defendant to the crime.    They also had
the testimony of two eyewitnesses who saw defendant and his
accomplice with the victim hours before she died, and testimony
from one of those witnesses that defendant had taken him to where
the victim's car was parked just one day after the victim was
found dead.    The YSTR DNA profile evidence was just one piece of
the puzzle.    The prosecutor knew that.   Defense counsel knew
that.   And the jury knew that, too, based on both the proof
presented at trial and defense counsel's effective cross
examination of Clement.
           This is not a case where the People misrepresented the
DNA evidence as being more important and powerful than it
actually was.   The People did not pursue a theory that this type
of DNA evidence statistically identified defendant as the
perpetrator.    Indeed, the prosecutor was careful to explain the


                                - 9 -
                               - 10 -                        No. 109

limitations of the YSTR DNA evidence that was presented.
Essentially, what the majority does is take two throwaway lines
by the prosecutor, one made at the beginning of the discussion of
the DNA evidence and one at the end, and ignores the prosecutor's
thorough explanation of the evidence that is sandwiched in
between the two.    There is a reason why defense counsel did not
object:   when the two damaging statements are viewed in the
context of the prosecutor's overall summation, there was simply
no need for him to register an objection.   His silence in that
regard did not somehow "negate" his competent representation up
until that point.
           The alleged ineffectiveness in this case is
significantly weaker than counsel's ineffectiveness in People v
Fisher (18 NY3d 964 [2012]).    In that case, which involved child
molestation allegations against the defendant, "the prosecutor
improperly encouraged inferences of guilt based on facts not in
evidence" by arguing during summation that the two alleged child
victims had "'said the exact same thing over and over again'" to
police, social workers and others when there was no evidence to
that effect, thereby bolstering their testimony (id. at 966).
The prosecutor also asked the jury to infer that the childrens'
acting out at school supported the abuse allegations (see id.).
Further, the prosecutor minimized her influence over the benefit
that was to be bestowed upon the jailhouse snitch who testified
that the defendant had made incriminating statements while


                               - 10 -
                                - 11 -                          No. 109

incarcerated (see id. at 967).     And, during summation, the
prosecutor pleaded to the jury that "'[t]he voice of a child is
evidence, the testimony of the two children is evidence.    The day
that the voice of child is not evidence is the day that those
doors [the doors to the courtroom] should be locked forever'"
(id.).   Defense counsel did not object to any of these
improprieties, and we held that his failure to do so deprived the
defendant of his right to the effective assistance of counsel
(see id.).
             Unlike the situation in Fisher, where errors occurred
not just during the People's case-in-chief but also during
summation, the majority's real problem with defense counsel's
representation in this case is his failure to object to the
prosecutor's statements during summation.     But, as evidenced from
the overall context of that summation, there was no
misrepresentation of the DNA evidence at all.    To claim otherwise
is a disservice to defense counsel, who ably cross examined
Clement, obtained damaging concessions from her, and persuaded
the jury to acquit defendant on two of the three counts in the
indictment.    A cursory review of the prosecutor's summation
statements does not paint a picture of a rogue prosecutor
attempting to mislead the jury by misrepresenting the evidence
presented, nor does it paint a picture of a defense counsel
sitting idly by while the prosecutor spins a deceitful web.
             The majority concedes that, up until the prosecutor's


                                - 11 -
                              - 12 -                         No. 109

summation, defense counsel had undertaken "a rather effective
defense strategy of identifying the weaknesses of the DNA
evidence" (majority op, at 21-22).     By this, what it really means
is that this is one of those "rare" cases where "a single failing
in an otherwise competent performance is so 'egregious and
prejudicial' as to deprive [this] defendant of his constitutional
right" (People v Turner, 5 NY3d 476, 480 [2005], quoting People v
Caban, 5 NY3d 143, 152 [2005]; Murray v Carrier, 477 US 478, 496
[1986]).
           The majority claims that defense counsel's failure to
object to the prosecutor's alleged objectionable statements
evidenced "multiple failures, different in kind from that
identified in Turner" (majority op, at 23-24), but simply calling
something "multiple failures" does not make it so.    The one
mistake defense counsel allegedly made, and the one mistake cited
by the majority as a basis for its reversal, is that defense
counsel failed to object to the prosecutor's alleged
mischaracterization of the evidence.    Indeed, even the Appellate
Division dissenters deemed defense counsel's alleged failure to
object to be a "single error" that "was so egregious and
prejudicial that defendant did not receive a fair trial" (115
AD3d 1257, 1262 [4th Dept 2014]).    If the majority wishes to
extend Turner to an alleged single mistake made by counsel during
summation, it should expressly do so rather than utilizing
phrases like "serial failure to object" (majority op, at 15) and


                              - 12 -
                                 - 13 -                           No. 109

"multiple failures" (majority op, at 23) in order to justify the
result it reaches in this appeal.
            Viewing defense counsel's representation in its
totality, as we must, it is evident that defendant was afforded
his constitutional right to effective assistance of counsel, and
I would therefore affirm the order of the Appellate Division.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order reversed and a new trial ordered. Opinion by Judge Rivera.
Chief Judge Lippman and Judges Read, Abdus-Salaam and Stein
concur. Judge Pigott dissents in an opinion. Judge Fahey took
no part.

Decided July 1, 2015




                                 - 13 -
