State of New York                                                      OPINION
Court of Appeals                                        This opinion is uncorrected and subject to revision
                                                          before publication in the New York Reports.




 No. 15
 The People &c.,
         Respondent,
      v.
 Cadman Williams,
         Appellant.




 Mark W. Zeno, for appellant.
 Robert C. McIver, for respondent.
 The Innocence Project; Office of the Appellate Defender, Inc., et al.; and The Legal Aid
 Society, amici curiae.




 FAHEY, J.:

       Over 150 years ago the science of genetics was born. It grew out of the beloved

 garden of Gregor Mendel’s pea plants. It has come to be as important to our perception of
                                           -1-
                                            -2-                                       No. 15

the modern world as the atom or the byte. This revolution in our understanding of biology

extends to most aspects of medical science.

       In the criminal justice system, it has provided forensic science with one of the most

powerful tools for identification yet seen. DNA testing has become the “gold standard” of

this process.

       For this reason, more than any other, courts must use the tools available to make

sure that the highest standards of reliability are maintained.

       The primary issue on this appeal is whether the trial court should have held a Frye

hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) with respect to the

admissibility of low copy number (LCN) DNA evidence and the results of a statistical

analysis conducted using the proprietary forensic statistical tool (FST) developed and

controlled by the New York City Office of Chief Medical Examiner (OCME). Under the

circumstances of this case, we conclude that the trial court abused its discretion as a matter

of law in admitting that evidence without holding such a hearing. However, inasmuch as

the error is harmless, and inasmuch as defendant’s other contentions lack merit, we

ultimately conclude that the judgment of should not be disturbed.

                                            Facts

                                              A.

       In May 2008 the victim and his brother had a dispute with several teenagers in the

Bronx. That dispute ended in the death of the victim following an incident in which he

swung a baseball bat at one of the teenagers. The use of the bat apparently prompted



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                                           -3-                                      No. 15

defendant, who was present with the group of teenagers, to grab a gun and fire four bullets

at the victim.

       Two of those bullets struck the victim, who subsequently staggered into the lobby

of a nearby apartment building and died a short time later. The medical examiner

determined that one of the bullets entered the left side of the victim’s face, and that the

second projectile punctured the right side of his back. The examiner also concluded that

each of the wounds was fatal.

       Defendant escaped the scene of the shooting and had the gun hidden in the apartment

of a former girlfriend before he fled to neighboring states. Defendant eventually was

arrested in Brooklyn several months later, and the gun in question was recovered from a

covered wall cavity in the aforementioned apartment prior to his prosecution. At trial, the

People presented evidence with respect to those facts, including eyewitness testimony

identifying defendant as the shooter and video footage placing him at the scene of that

incident.   The People also presented testimony from defendant’s former girlfriend

explaining that defendant forced her to stow the gun used in the shooting in her apartment

immediately after that incident and admitted to her that “he had just shot somebody.”

       Trial also saw the People present evidence with respect to DNA testing that was

conducted with the goal of providing a scientific link between defendant and the subject

gun. That DNA testing revealed that there was a mixture of DNA from at least two

contributors on the firearm. OCME initially was unable to link defendant’s DNA profile




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                                            -4-                                       No. 15

to the DNA found on the gun through “standard” DNA testing.1 Eventually, though, what

an expert for the People characterized as a “sensitive” form of traditional DNA review (that

is, the LCN testing) and a proprietary “calculator” (that is, the FST2) yielded the conclusion

that it was millions of times more likely that the DNA mixture found on the gun contained

contributions from defendant and one unknown, unrelated person, rather than from two

unknown, unrelated people.3



1
        In this context, “standard” DNA testing generally refers to the polymerase chain
reaction, or PCR, technique involving 28 amplification cycles of DNA loci (see generally
People v John, 27 NY3d 294, 298 [2016]). In the PCR process, a specific region of DNA
is replicated over and over again to yield many copies of a particular sequence, which
permits minute amounts of DNA to be examined (John M. Butler, Fundamentals of
Forensic DNA Typing at 7, 125, 1260 [2009]).
2
        The addendum to this opinion contains a more detailed explanation of the nature of
the LCN evidence and the FST calculations in question on this appeal.
3
        OCME’s findings were the culmination of a series of four reports issued over a
period of approximately seven months in which OCME, respectively,
        (1)    used PCR DNA testing to determine that mixtures of DNA from at least two
people were present on the trigger and grip areas of the gun, but that the DNA profiles of
individual contributors to the mixture could not be determined;
        (2)    determined that, based on a DNA profile developed from a buccal swab
sample and a PCR analysis, defendant could not be excluded as a contributor to the
mixtures found on the grip and trigger areas of the gun;
        (3)    determined that, based on LCN testing and an FST analysis, it was (a) 4.13
million times more probable that the DNA mixture found on the handle area of the gun
originated from defendant and one unknown, unrelated person than from two unknown,
unrelated contributors, and (b) 131,000 times more probable that the DNA mixture found
on the trigger area of the gun originated from defendant and one unknown, unrelated person
than from two unknown, unrelated contributors; and, finally,
        (4)    following a recalculation based on additional LCN testing and FST analysis,
ultimately concluded that it was (a) 125 million times more probable that the DNA mixture
found on the handle area of the gun originated from defendant and one unknown, unrelated
person than from two unknown, unrelated contributors, and (b) 1.97 million times more
probable that the DNA mixture found on the trigger area of the gun originated from
defendant and one unknown, unrelated person than from two unknown, unrelated
contributors.
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                                           -5-                                      No. 15

                                            B.

       The LCN and FST evidence did not reach the jury without protest. Prior to trial

defendant had moved for an order precluding the People from introducing expert testimony

regarding any conclusion reached by either the use of LCN testing or the FST on the ground

that such methods were not generally accepted as reliable by the relevant scientific

community. In the alternative, defendant sought an order directing that a Frye hearing be

held with respect to the reliability of any proposed evidence generated through LCN and

FST review. That application is the focal point of this appeal.

                        Defendant’s Support for the Frye Motion

       The LCN testing process, as noted in the addendum, obtains DNA profiles from a

very minute amount of genetic material by increasing the number of amplification cycles

(28 in a “standard” test, and 31 using this method) used to copy that DNA. In support of

the Frye motion defendant put before the motion court, among other things, evidence in

the form of an expert averment that “no generally accepted guidelines for the testing,

analysis, or interpretation of LCN [had] been agreed upon by the forensic community,” and

that “[t]he use of LCN testing [was] still highly debated within the forensic community due

to the unreliability of the LCN profiles generated.” The same expert did “not believe that

profiles generated from LCN testing [were] reliable or valid for the implementation for

DNA testing associated with criminal casework” and noted that LCN testing was “not

implemented within” the out-of-state laboratory in which he was employed.4


4
     That expert worked as a Forensic Scientific Examiner in the Nuclear DNA
Casework Unit of the Connecticut Forensic Lab.
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                                             -6-                                       No. 15

       Supplementing that sworn expert submission were ten scholarly articles and

comments questioning the validity and robustness of LCN analysis. One of those texts

explained that “it is fair to say that LCN typing is the subject of great dispute among some

of the leading lights of the forensic community,” while another noted “the acknowledged

lack of consensus in interpretation” of LCN tests, the “unlikel[ihood] that LCN tests

[would] be embraced by crime laboratories in the [United States],” and the likelihood “that

such results would be deemed inadmissible if they were challenged.” Other parts of those

materials discussed the “highly charged debate in the scientific and law-enforcement

communities about [LCN] analysis.”

       The evidence defendant put before the motion court with respect to the LCN

question also indicated that only one publicly funded laboratory—located at the University

of North Texas Health Sciences (UNTHS) campus—performed LCN testing.                      “For

purposes of admissibility in a court proceeding,” defendant cautioned, “the UNTHS lab

only perform[ed] LCN testing for missing persons identification.”

       Interestingly, the executive director of applied genetics at UNTHS and perhaps “the

father of American DNA analysis” (People v Collins, 49 Misc 3d 595, 608 [Sup Ct, Kings

County 2015]), Dr. Bruce Budowle, co-authored one of the scholarly articles tendered to

the motion court in support of the Frye motion. That article noted that a “claim[] ha[d]

been made recently” in People v Megnath (27 Misc 3d 405 [Sup Ct, Queens County 2010])

“that LCN typing is generally accepted as being reliable.” Dr. Budowle and his co-authors,

however, believed that conclusion “difficult to substantiate . . . because of the inherent lack

of reproducibility of the current LCN method(s).” The conclusion to that article explained

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                                           -7-                                       No. 15

that Dr. Budowle and his co-authors would not endorse OCME’s “flawed” LCN testing

practices, which the writers believed to be “inconsistently applied [to] [overstate] the

weight of the evidence.” The title the authors chose for that article distilled those points

and neatly summarized defendant’s case with respect to the LCN question; the authors

labeled this piece, “Low Copy Number Typing has yet to Achieve ‘General

Acceptance.’ ”

       Defendant’s case with respect to the FST was thinner, but with good reason.

Defendant characterized the FST as a program “developed by the OCME itself” that had

“not been adequately subjected either to validation or peer review by anyone else in the

relevant scientific community.” Outside validation, defendant suggested, would have been

impossible because OCME had not “shared” the software. That black-box approach,

defendant continued, was contrary to the tack recommended by the Committee on DNA

Technology in Forensic Science of the National Research Council, which had concluded

that “[q]uality-assurance programs in individual laboratories alone are insufficient to

assure high standards” and recommended “[e]xternal mechanisms . . . to ensure adherence

to the practices of quality assurance.”5

                       The People’s Opposition to the Frye Motion



5
       Based on, among other things, counsels’ review of Frye applications in other matters
considering the use of LCN analysis and the FST, defendant also questioned the accuracy
of the likelihood calculations produced by the FST. Defendant asserted that such
calculation improperly assumed allelic drop-out, which occurs when a piece of DNA is not
seen in a DNA result, even though it is known to be in a sample (see addendum to this
opinion).

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                                            -8-                                      No. 15

       In opposing the motion, the People contended that LCN evidence could be admitted

in the absence of a Frye hearing because OCME had “submitted extensive validation

studies detailing [its] protocols and procedures,” which had been examined and certified

by the New York State Commission on Forensic Science. Along those lines, the People

noted that “OCME has long been recognized as the gold standard of forensic institutions

not only in the United States but indeed in the world,” and that OMCE is subject to yearly

audits conducted by outside agencies such as the National Forensic Science and

Technology Center, which employ auditors trained by the FBI.

       The People also noted that, at the time of this motion practice, LCN evidence had

“been admitted 140 times in New York State Supreme Court” and in at least 12 foreign

courts. Although OCME was the only government facility in the United States “issuing

results of LCN testing,” the People added that there were “many private laboratories and

universities both [domestically] and abroad performing [such] testing and reporting results,

including the [UNTHS], where defense DNA expert [Dr.] Bruce Budowle [taught].”

       Finally, at least with respect to the LCN question, the People noted that the LCN

procedure was “not based on new or novel scientific techniques,” and was not newly

applied to forensic casework inasmuch as “[t]he procedures and protocols used to extract

the DNA and make comparisons [had] been around for over 25 years.” And “[b]ecause

[LCN] testing employs no different scientific process to examine and analyze smaller

amounts of DNA than the established and universally accepted PCR [DNA testing, the

People characterized it as] an acceptable science that falls outside the strictures of a Frye

hearing.”

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                                            -9-                                       No. 15

       With respect to the FST issue, the People similarly maintained that such evidence

should be admitted without a Frye hearing because “numerous articles published in peer-

reviewed scientific journals” supported the point that “the analytical software employs

well-established principles such as Bayesian statistics and likelihood ratios which are used

in many areas of science including forensics, medicine and social sciences.”6 The People

added that “FST does not change the results of the DNA tests performed in case” and that,

given both the thorough review of the FST by DNA Subcommittee of the New York State

Forensic Science Committee and the exhaustive validation of that tool by OCME, the

relevant scientific community had accepted the FST as reliable.

                                             C.

       At the time this motion practice was initiated no court had completed a Frye hearing

with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court

questioned by Dr. Budowle—had conducted such a hearing with respect to LCN testing.

Nevertheless, by order rendered March 5, 2014, the motion court denied the application in

its entirety. With respect to the LCN issue, the court relied almost exclusively on Megnath

(27 Misc 3d 405), quoting that decision’s conclusion that LCN analysis “ ‘is basically the

same method of DNA testing that occurs with [traditional high copy number review]’ ”

inasmuch as “ ‘[t]he only difference [in approach] is that the LCN method can test smaller

amounts of DNA by increasing the amplification cycles’ ” (id. at 410).



6
       That is, the People essentially contended that because the mathematical and
analytical tools built into the FST software are accepted in other areas of use, so too should
they be deemed generally accepted here and exempted from the scrutiny of a Frye hearing.
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                                           - 10 -                                    No. 15

       With respect to the FST issue, the court relied on the approval of such tool by the

“Subcommittee on DNA Evidence,” reasoning that because that the subcommittee “itself

is a distinguished cross-section of the scientific community,” that body’s approval of the

FST “can easily be equated with general acceptance of this methodology in the relevant

scientific [society].” In that vein, the court referred to People v Rodriguez (Sup Ct, NY

County, Oct. 24, 2013, Carruthers, J., index No. 5471/2009), which was decided during the

pendency of this motion practice and which concluded following a Frye hearing that FST

evidence was admissible based on an internal validation by OCME and approval by the

DNA Subcommittee of the New York State Forensic Science Commission. The court also

pointed to People v Garcia (39 Misc 3d 482 [Sup Ct, Bronx County 2013]), which had

concluded that “a Frye hearing is [not] required before the prosecution can introduce . . .

testimony concerning the [FST] used to calculate probability ratios when testing a mixture

containing several DNA profiles” (id. at 483).

       The result was the same when defendant moved to renew and/or reargue the

application in November 2014. The rekindling of the motion was prompted by a ruling of

Supreme Court, Kings County, rendered following a lengthy Frye hearing in People v

Jacquan Collins. That court concluded, among other things, that “neither LCN nor FST

are generally accepted in the scientific community.”7


7
       The Collins ruling initially was an oral one. The transcript of that decision was put
before the motion court in this case on the application to renew and/or reargue, and the
minutes of the Collins bench decision reflect that the court acknowledged “that there [was
nothing] that [it could] say [was] wrong with [LCN] or [FST] and [that] it is a big
temptation and a big mistake in a Frye hearing situation for a judge ultimately to decide
which scientific techniques he [or she] things work.” The “job” of the court, instead, was
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       The expert affidavit offered in support of defendant’s motion in this case was also

put before the hearing court in Collins. (In point of fact, the expert submission in the case

actually bears the caption for the Collins case.) Still, the court here denied the renewed

application through a written decision and order entered May 26, 2015 in which it “simply

decline[d] to follow” Collins and instead relied on ten trial-level decisions in which “many

of [the court’s] colleagues [had] similarly ruled.” Those decisions have a common

touchstone: People v Megnath (27 Misc 3d 405 [Sup Ct, Queens County 2010]).

                                             D.

       Eventually, on appeal, the Appellate Division refused to disturb the trial court’s

determination of the Frye motion (158 AD3d 471 [1st Dept 2018]). The Court noted only

that it had “considered and rejected defendant’s arguments concerning [LCN] and [FST]

evidence” (id. at 472-473, citing People v Gonzalez, 155 AD3d 507 [1st Dept 2017]

[relying on Megnath (27 Misc 3d at 413) in concluding that the trial court in that case did

not abuse its discretion in refusing to hold a Frye hearing on expert testimony relating to




“to see whether or not there is essentially general agreement in the scientific community as
to the challenged scientific principles.” Inasmuch as the FBI refused to use LCN results
and “pioneers in the filed like Dr. Budowle” did not “trust [LCN] in criminal courtroom
situations,” the Collins court concluded “that it was inconsistent with Frye to give it to a
jury when so many of the experts in the field don’t think that is appropriate.”
        Collins’s FST analysis was similar. Essentially, based on “the defense position . . .
that there is difficulty in approving of the methods through which the drop in and dropout
rates and other stochastic effects are considered in the FST,” the Collins court again took
a measured approach and refused to admit FST evidence on the ground “that the Frye test
ha[d] [not] been satisfied.” Those conclusions were reiterated in a lengthy written opinion
rendered July 2, 2015 (People v Collins, 49 Misc 3d 595 [Supreme Court, Kings County
2015 (Mark Dwyer, J.)]).
                                           - 11 -
                                            - 12 -                                    No. 15

LCN testing], lvs denied 30 NY3d 1115 [2018], 31 NY3d 1148 [2018]). A Judge of this

Court granted defendant leave to appeal (32 NY3d 942 [2018]).

                                Analysis of the Primary Issue

    “Science is the organized skepticism in the reliability of expert opinion.”8 – American

                          theoretical physicist Richard P. Feynman.

                                              A.

        “The long-recognized rule of Frye . . . 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” (People v Wesley, 83 NY2d 417, 422 [1994],

quoting Frye, 293 F at 1014). “The process is meant to assess ‘whether the accepted

techniques, when properly performed, generate results accepted as reliable within the

scientific community generally’ ” (People v Brooks, 31 NY3d 939, 941 [2018], quoting

Wesley, 83 NY2d at 422).

        “Although unanimity is not required, the proponent [of the disputed evidence] must

show consensus in the scientific community as to [the methodology’s] reliability” (Sean R.

v BMW of N. Am., LLC, 26 NY3d 801, 809 [2016] [internal quotation marks omitted]).

That consensus has been described as “a surrogate for determining the reliability of a

purported scientific methodology” (Martin, Capra & Rossi, New York Evidence Handbook

§ 7.2.3 at 644 [1997]). A showing that an expert’s opinion has “some support” is not




8
        Lee Smolin, The Trouble with Physics 309 (2006) (quoting Feynman).
                                            - 12 -
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sufficient to establish general acceptance in the relevant scientific community (see Cornell

v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 783 [2014]).

       The determination whether a trial court erred in admitting disputed scientific

evidence in the absence of a Frye hearing turns on whether the court abused its discretion

as a matter of law (see generally People v Boone, 30 NY3d 521, 530-531 [2017]). “[T]he

mere fact that a court is the first to evaluate novel scientific evidence does not mean the

evidence is unreliable,” but it does “increase[] the task of the hearing court” (Wesley, 83

NY2d at 437 [Kaye, Ch. J., concurring]). Certain materials, including texts, laboratory

standards, and articles issued with respect to the technique in question, may, under

appropriate circumstances, support a conclusion that such technique is generally accepted

as reliable (see id.).

       Judicial precedent may also support a conclusion with respect to the general

reliability of a disputed scientific technique short of a hearing (see id.; People v LeGrand,

8 NY3d 449, 457 [2007]; Matter of Lahey v Kelly, 71 NY2d 135, 144 [1987]). In the

absence of such materials and support, the hearing court may take expert testimony on the

subject. Review of a Frye determination must be based on the state of scientific knowledge

and opinion at the time of the ruling (see Cornell, 22 NY3d at 784-785 [“a Frye ruling on

lack of general causation hinges on the scientific literature in the record before the trial

court in the particular case”]).

                                             B.

       Against that backdrop we turn to the question whether the trial court abused its

discretion as a matter of law in permitting the admission of the LCN evidence without

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holding a Frye hearing. Under the circumstances of this case, we conclude that there was

an abuse of discretion as a matter of law.

       In deciding not to evaluate the reliability of LCN evidence in a Frye hearing, the

motion court relied heavily on the prior judicial opinion in Megnath (27 Misc 3d 405). That

court had ruled, among other things, that LCN testing, as performed by OCME, was

“generally accepted as reliable in the forensic scientific community” (Megnath, 27 Misc

3d at 411). That conclusion, however, was based on the court’s review of what was

OCME’s own, internal support for its process (see id. at 407-410), as well as upon evidence

reflecting that such methodology had “been used worldwide for over 10 years and [was]

currently used in many other countries” (id. at 408).

       By the time the motion court in this case determined the application to renew and/or

reargue, there were approximately ten decisions of various trial courts of this state that

purportedly supported the determination in this case.9 Underlying those determinations,

however, was the ruling in Megnath, and underlying the Megnath ruling was an analysis

that did not adequately assess whether OCME’s LCN testing was generally accepted within

the relevant scientific community.      The repetition of a single, questionable judicial

determination does not strengthen or add validity to such ruling, and it defies logic that an



9
       Although the point is not essential to our conclusion with respect to the LCN
evidence, it bears repeating that, at the time the Frye motion here was reargued, the trial
court in Collins had concluded that LCN testing results could not be admitted into evidence
without first surviving the scrutiny of a Frye hearing. That determination, which was well-
articulated in a bench decision put before this motion court on the application to renew
and/or reargue, was based in part on the same expert affidavit that defendant offered in
support of this Frye motion practice.
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                                            - 15 -                                    No. 15

error, because it is oft-repeated, somehow is made right (see David H. Kay, The New

Wigmore on Evidence, “Limiting Strict Scrutiny by Methodology,” § 9.5.1 [2018]

[concluding that where a trial court relies on the findings of a previous hearing, that court

should be convinced that the hearing was fair and thorough given the possibility that an

early hearing with respect to a given technique may not be balanced]).              Scientific

community approval, not judicial fiat, is the litmus test for the admission of expert evidence

generated from a scientific principle or procedure, and it is not to be assumed that one

hearing is automatically “enough” to hurdle a Frye inquiry in a different matter.

Significantly, the People were unable to cite any New York appellate cases, or out-of-state

case law, assessing the general acceptance of LCN evidence (cf. People v Middleton, 54

NY2d 42, 49 [1981]; People v Magri, 3 NY2d 562, 566 [1958]).

       Moreover, the fact remains that there was “marked conflict” with respect to the

reliability of LCN DNA within the relevant scientific community at the time the LCN issue

was litigated in this case (see generally People v Jeter, 80 NY2d 818, 820-821 [1992]).

The evidence tendered by defendant included OCME’s admission that “traditional” DNA

testing involved 28 amplification cycles of DNA loci, whereas LCN testing applied

additional amplification—31 cycles—when traditional testing could not yield an adequate

DNA profile. In assuming that the additional reproduction cycles gave rise to no distinction

between “traditional” and LCN testing, the People simply ignored the opinion of

defendant’s expert that LCN’s enhancements “increases the sensitivity of detection [of

genetic markers in tested material] and may result in inaccurate genetic profiles which do

not reliably reflect the condition of the evidence[ and] generat[e] invalid results.” The

                                            - 15 -
                                           - 16 -                                     No. 15

People’s bald assumption of accord between traditional and LCN methods, and the

deference shown by the motion court to that faulty point, similarly ignored the chorus of

defendant’s scholarly voices accepting of traditional DNA testing but sounding suspicion

with respect to the LCN methodology.

       Additionally, contrary to the People’s suggestion and the motion court’s conclusion,

the fact that LCN evidence had been used in foreign courts should have been of no

consequence inasmuch as there was no indication that the threshold for admissibility in

those bodies contains the same exacting standards to be applied in courts of this state.

Defendant was not required to establish, in his motion papers, that LCN evidence was

generally not accepted by the relevant scientific community in order to obtain a hearing to

resolve the very question of general acceptance. Here, defendant’s submissions raised

sufficient questions regarding the general acceptance of the LCN evidence, based on its

lack of use by other laboratories, the absence of prior meaningful review, and the scientific

articles proffered by defendant questioning the reliability of the evidence for criminal

prosecution. As the proponent of the LCN evidence, the People ultimately bore the burden

of establishing its general acceptance by the relevant scientific community (see LeGrand,

8 NY3d at 458; Sean R., 26 NY3d at 809), and defendant was entitled to have the People

put to that burden.

                                             C.

       Our conclusion—that the court abused its discretion as a matter of law in failing to

hold a Frye hearing—is the same with respect to the FST evidence. The logic underlying

the admission of FST evidence not subjected to Frye scrutiny hinged principally on two

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                                           - 17 -                                    No. 15

points: the “strength” of Garcia (39 Misc 3d 482) and the observation that FST technology

basically uses the building blocks of existing mathematical formulas to calculate the

likelihood that a person contributed to one part of a DNA mixture. If the analysis was as

simple as determining whether FST is comprised of existing mathematical formulas that

are individually accepted as generally reliable within the relevant scientific community,

then FST evidence probably would be admissible even in the absence of a Frye hearing.

       The point remains, however, that FST is a proprietary program exclusively

developed and controlled by OCME. The sole developer and the sole user are the same.

That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned

by Frye” (Wesley, 83 NY2d at 441 [Kaye, Ch. J., concurring]). It is an invitation to bias.

       It may well be that what the People say is accurate; to paraphrase their words, FST

technology is based on an aggregation of generally accepted tools and therefore should be

deemed generally accepted itself. The tool has, as the People noted, been vetted and

approved by “the distinguished scientists making up the DNA Subcommittee of the New

York State Forensic Science Committee.” The Subcommittee’s approval is certainly

relevant and may constitute some evidence of general acceptance at a Frye hearing. But

that insular endorsement is no substitute for the scrutiny of the relevant scientific

community. To rely solely on the Subcommittee’s approval as dispositive of the general

acceptance would be supplant the courts’ obligation to ensure, under Frye, that scientific

techniques and methods are sufficiently reliable to be admitted into evidence in a criminal

proceeding.



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       Indeed, here, defendant was hamstrung in demonstrating the existence of conflicting

scientific opinions in order to show the need for Frye review of the FST based on the “black

box” nature of that program, but his papers adequately showed that OCME’s secretive

approach to the FST was inconsistent with quality assurance standards within the relevant

scientific community. Those papers also showed that facts adduced in challenges to the

FST made in Frye applications in other proceedings suggested that the accuracy

calculations of that program may be flawed.

       Neither People v Rodriguez (Sup Ct, NY County, Oct. 24, 2013) nor Garcia (39

Misc 3d 482) supported a different result. The court in Rodriguez concluded, following a

Frye hearing, that FST evidence was admissible based on internal validation by OCME

and approval of the tool by the DNA Subcommittee of the New York State Forensic

Science Commission. Approval by that narrow class of reviewers, some of whom were

employed by the very agency that developed the technology, is no substitute for community

review.

       By contrast, in Garcia (39 Misc 3d 482), the court skirted a Frye hearing, reasoning

that the FST is not “new or novel science that requires a Frye hearing” (id. at 490) based

on what essentially was the “aggregation” theory advanced by the People here. That is,

the Garcia court concluded that “[c]omputer programs that allow for drop-in and drop-out

rates when calculating likelihood ratios are not new or novel in the scientific community,”

and that the application of “accepted mathematical formulas to already existing data

previously created by LCN DNA techniques” was a generally reliable technique in the

relevant scientific community (id. at 488-489). That decision, however, did not adequately

                                           - 18 -
                                            - 19 -                                    No. 15

account for either the proprietary nature of the FST or the relatively narrow subsection of

the relevant scientific community able to examine and endorse that tool. Moreover, to the

extent that the FST had not been used by OCME for a significantly long period of time

prior to its use in defendant’s case, and because the particulars of the program were not

readily available to the general scientific community so as to facilitate meaningful review

and criticism, the People’s claim that defendant failed to proffer sufficient evidence that

the program was not generally accepted is unavailing.

       In short, the FST should be supported by those with no professional interest in its

acceptance. Frye demands an objective, unbiased review.10

                                             D.

       The errors in admitting expert testimony with respect to LCN and FST results in the

absence of a Frye hearing are significant. In this case, however, the errors also are harmless

under our standard for errors of nonconstitutional magnitude. Here, in sum, the People

presented video evidence of the shooting, the eyewitness testimony identifying defendant

as the shooter, and the testimony of defendant’s former girlfriend with respect to the events

that followed that incident—including the girlfriend’s account of defendant’s handling of

the subject gun and the forced secretion of that device. Based on all of that proof, we

conclude that the evidence of defendant’s guilt is overwhelming and that there is no


10
       In so concluding we acknowledge the possibility that there may be circumstances
in which a scientific field is so small that there are no knowledgeable scientists who are
completely disinterested in the technology in question. A Frye challenge raised in such a
scenario may yield a result different from that produced through the analysis of the FST
issue in this case, which considers the markedly different question of the general
acceptance of proprietary, black-box technology.
                                            - 19 -
                                            - 20 -                                    No. 15

significant probability that the jury would have acquitted defendant had it not been for

these errors (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

                                             E.

       Our conclusion that the trial court abused its discretion as a matter of law in denying

a Frye hearing is not the only important point. We have said that a Frye hearing is generally

unwarranted “[a]bsent a novel or experimental scientific theory” (Brooks, 31 NY3d at

941). That teaching, of course, leaves room for such a hearing even where the scientific

principle in question is neither novel nor experimental.        The recoil with respect to

previously accepted techniques demonstrates the importance of the space accorded trial

courts to conduct a Frye hearing even with respect to a scientific approach that may have

become common over time.

       Familiarity does not always breed accuracy, and our Frye jurisprudence accounts

for the fact that evolving views and opinions in a scientific community may occasionally

require the scrutiny of a Frye hearing with respect to a familiar technique. There is no

absolute rule as to when a Frye hearing should or should not be granted, and courts should

be guided by the current state of scientific knowledge and opinion in making such

determinations.

       Indeed, admissibility even after a finding of general acceptance through a Frye

hearing is not always automatic. Recent questioning of previously accepted techniques

related to hair comparisons, fire origin, comparative bullet lead analysis, bite mark

matching, and bloodstain-pattern analysis illustrates that point; all of those analyses have

long been accepted within their relevant scientific communities but recently have come

                                            - 20 -
                                               - 21 -                                 No. 15

into varying degrees of question (see e.g. Overturning Wrongful Convictions Involving

Misapplied    Forensics,    available     at   https://www.innocenceproject.org/overturning-

wrongful-convictions-involving-flawed-forensics/ [last accessed Feb. 21, 2020]; Heather

Murphy, A Leading Cause for Wrongful Convictions: Experts Overstating Forensic

Results, NY Times, April 20, 2019; Leora Smith, How a Dubious Forensic Science Spread

Like a Virus, available at https://features.propublica.org/blood-spatter-analysis/herbert-

macdonell-forensic-evidence-judges-and-courts/ [last accessed Feb. 21, 2020]). Those

points, and the lessons of this case, reinforce the importance of judicial caution in the

admission of developing scientific evidence in proceedings that may result in the

deprivation or limitation of liberty.11




11
       The epilogue to this case, although immaterial to the question whether the record
establishes that the motion court abused its discretion as a matter of law in refusing to hold
a Frye hearing, well illustrates the need for caution in the area of the admission of
inculpatory scientific evidence in criminal proceedings. The leading judicial dissenter with
respect to the reliability of LCN DNA has been Justice Mark Dwyer of Supreme Court,
Kings County, who, as noted, refused to admit LCN DNA analysis into evidence following
a Frye hearing held in People v Collins (49 Misc 3d 595 [Supreme Court, Kings County
2015]). That ruling followed a proceeding in which five biologists or geneticists, including
Dr. Bruce Budowle, generally objected to OCME’s procedures in the LCN area (see id. at
609-610). That testimony revealed that LCN is used in only two laboratories in the United
States (OCME and UNTHS), and that only OCME develops such DNA for use in criminal
matters. That testimony also showed that the FBI refuses to use high sensitivity analysis,
and that the national Combined DNA Index System (CODIS) will not upload profiles
created with high sensitivity analysis.
       Most importantly, though, in that case, a former member of the DNA subcommittee
of the New York State Forensic Commission, which had approved OCME’s LCN analysis,
“defected” and testified for the defense (see id. at 611-613). Since that time, OCME also
has abandoned LCN testing, and it is doubtful that the People would defend an application
seeking a Frye hearing on that issue today.

                                               - 21 -
                                           - 22 -                                     No. 15

       There is one additional point to be drawn from this case. When pressed to a literal

extreme, some of our precedent may be interpreted to suggest that a single decision or

single court opinion with respect to the general acceptance of a disputed scientific

technique or process may not support the admission of such evidence in the absence of a

Frye hearing (see LeGrand, 8 NY3d at 458 [“A court need not hold a Frye hearing where

it can rely upon previous rulings in other court proceedings as an aid in determining the

admissibility of the proffered testimony”] [emphasis added]; Wesley, 83 NY2d at 437 [“If

no court opinions, texts, laboratory standards or scholarly articles have been issued on the

technique—the types of materials relevant to a determination of general acceptability—(a)

court may . . . take the testimony of expert witnesses”] [Kaye, Ch. J., concurring] [emphasis

added]). This decision should not be read to suggest that a trial court can never rely on a

single prior judicial ruling in concluding that expert testimony based on scientific

procedures or principles has gained general acceptance in its specified field, or that

multiple judicial determinations to that effect are required for admission in the absence of

a Frye hearing. Hearing courts retain the flexibility to admit such evidence in the absence

of a Frye inquiry based on a single, sound, prior judicial opinion on a consonant question.

                             Analysis of the Remaining Issues

       Defendant advances three additional contentions on appeal.           None of those

contentions has merit.

       First, defendant contends that trial counsel was ineffective for failing to object to

the instruction that the jury must determine whether the use of deadly physical force was

justified with respect to each of the gunshots that struck the victim (cf. People v Del-

                                           - 22 -
                                             - 23 -                                     No. 15

Debbio, 244 AD2d 195, 195 [1st Dept 1997] [“Even if a defendant is justified in using

deadly physical force at the beginning of a single, ongoing encounter with an assailant, his

right to use that force terminates at the point he can no longer reasonably believe the

assailant still poses a threat to him”], lv denied 91 NY2d 925 [1998]). An objection on that

point, however, was unlikely to have succeeded, and trial counsel cannot be ineffective for

failing to advance an argument that has little or no chance of success (see People v Caban,

5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d

702 [2004]). Defendant essentially contends that because the People’s medical expert

testified that each of the two gunshots that struck the victim was fatal, the second gunshot

necessarily is academic with respect to the justification analysis because the first shot killed

the victim. That contention, however, overlooks the point that the jury was free to reject

the testimony of that expert with respect to the conclusion that the victim could have been

killed solely by the first gunshot (see People v Drake, 7 NY3d 28, 33 [2006]). The victim,

after all, was alive when he was shot a second time, and for a short while thereafter. To

the extent the jury believed the second gunshot was at least partially responsible for the

victim’s death, the challenged jury instruction would have been appropriate.

       Second, defendant contends that trial counsel was ineffective for failing to object to

the part of the jury instruction containing the “initial aggressor” exception to the

justification defense. A person may not use physical force upon another person to defend

himself when that person is the initial aggressor (see Penal Law § 35.15 [1] [b]; People v

Petty, 7 NY3d 277, 284-285 [2006]). Where there is a reasonable view of the evidence

that the defendant is the initial aggressor, the court may instruct the jury with respect to

                                             - 23 -
                                            - 24 -                                    No. 15

that exception to the justification defense (see generally People v Valentin, 29 NY3d 57,

61 [2017]). Here, the People adduced testimony that defendant shot the victim after the

baseball bat held by the victim had shattered and no longer presented a threat, meaning that

the initial aggressor instruction was appropriate. Inasmuch as an objection to that challenge

was unlikely to succeed, and inasmuch as trial counsel cannot be ineffective for failing to

make a motion that has little or no chance of success (see Caban, 5 NY3d at 152; Stultz, 2

NY3d at 287), this contention with respect to ineffective assistance of counsel lacks merit.

       Third, defendant contends that the trial court abused its discretion as a matter of law

in admitting into evidence a recording of a telephone call defendant made while

incarcerated before trial at Rikers Island. This issue was raised in a brief filed before we

decided People v Diaz (33 NY3d 92 [2019]) and People v Cisse (32 NY3d 1198 [2019]).

In those cases, we concluded that defendants who use the “public” telephone system at

Rikers Island while warned of the potential that such calls may be recorded impliedly

consent to the “taping” of those conversations. Those cases are controlling here.

       Accordingly, the Appellate Division order should be affirmed.




                                            - 24 -
                                             - 25 -                                     No. 15

                                          Addendum

                          Low Copy Number (LCN) DNA Testing

       “DNA,” or deoxyribonucleic acid, “is found in the chromosomes of every cell and

contains coded information that provides the genetic blueprint for all living things”

(Martin, Capra & Rossi, New York Evidence Handbook § 7.2.3 at 647-648 [1997]).

“[C]ertain regions of DNA contain DNA sequences that [are] repeated over and over again

next to each other” (John M. Butler, Fundamentals of Forensic DNA Typing at 4 [2009]).12

       Today, DNA typing typically analyzes “STR”—or “short tandem repeat”—

markers, or certain DNA regions with short repeat units that are highly variable between

individuals (id. at 5). The utility of DNA profiling arises from the point that, with the

exception of identical twins, the genome (that is, the complete genetic composition) of each

human being is different (id. at 6). A person inherits a single allele—or section of DNA at

a particular genetic location—from each parent, providing two alleles at a given location

(referred to as a locus), and an STR analysis involves the examination of 13 or more

different loci to establish a profile of which alleles appear at which locus.

       The copying of specific regions of DNA from its cells—through technique known

as polymerase chain reaction, or PCR—produces millions of reproductions of each DNA

segment of interest and therefore permits very small amounts of DNA to be examined (see

id. at 7; see id. at 191). In a criminal investigation, after that copying or amplification, the



12
      The United State Supreme Court has recognized the value of Butler’s overview of
DNA evidence, citing that work as authoritative in Maryland v King (569 US 435, 442
[2013]).
                                             - 25 -
                                            - 26 -                                      No. 15

PCR products typically are separated based on their size, and the alleles in that material are

compared to the alleles in a known sample to determine whether the tested material

contains a DNA profile that matches that of the control sample (see id. at 7). In the event

of a similar profile—which frequently is characterized as a “match”—the odds that a

random person (who did not give a sample for testing) would have the same DNA profile

as that which appears on the sample tested are determined.

         At issue here is low copy number DNA testing. That process was developed as a

means of obtaining DNA profiles from even smaller amounts of DNA by increasing the

PCR amplification cycles to essentially make more copies of the DNA segments to allow

for analysis. That is, where there is a minute amount of available genetic material the LCN

technique generates many more copies of DNA molecules and enables STR typing to

obtain      results   from     those    small        samples   (id.   at     330-331;      see

http://www.nyc.gov/html/ocme/ downloads/ pdf/HISENS_ brochure.pdf [last accessed

Feb. 21, 2020] [also referring to LCN analysis as “high sensitivity,” “low level,” and

“touch” DNA testing]).

                             The Forensic Statistical Tool (FST)

         In the People’s words, FST, or forensic statistical tool, “is a computer software

program developed by OCME which is used to calculate likelihood ratios.”                 That

“application,” the People say, “is simply [a] math software program that performs

calculations that could not be done by hand in a human time frame.” Programs such as

FST are particularly useful where there is a DNA mixture inasmuch as they account for the

possibility of allelic “drop out” and “drop in.”

                                            - 26 -
                                           - 27 -                                    No. 15

       Allelic “drop out” occurs when a piece of DNA is not seen in a DNA result, even

though it is known to be in a sample. For example, when a minute amount of DNA is

tested, the testing process may not pick up all of the pieces of DNA in the profile and refer

only to those that were identified. The pieces not picked up or identified are said to have

“dropped out” because, although they are part of the original sample, they will not be

shown or represented in the result. Drop out also may occur when a DNA sample is

degraded and some pieces deteriorate and are not detected during the testing process, and

therefore “drop out” of the results.

       Allelic “drop in” occurs when a minute piece of DNA or allele is seen in the sample

but cannot be attributed to the contributors in the sample. Drop in may result from, among

other things, “stutter”—which is essentially a byproduct of the testing process and which

generally presents as peaks much shorter than a true allele—and contamination of the

sample.

       The People claim that “[w]hat sets FST apart [as an estimation program] is that FST

uses empirically established drop out and drop in rates generated by thousands of tests.”

Along those lines, the People maintain that “FST is not a method” and instead “is a name

for a software program that is being applied after the testing is completed.”

       According to the People, “scientists can predict with a reasonable degree of

scientific certainty the likelihood of a piece of DNA dropping out, or not being seen, at

every location that is being tested.” Consequently, the dropout rates can be estimated, (as,

apparently, can drop in rates) through mathematical calculations performed through the

FST.

                                           - 27 -
                                             - 28 -                                     No. 15

       The People characterize likelihood ratios generated by the FST as “statistics relating

to the likelihood of one scenario over another.” According to the People, the likelihood

ratio “is not a statement that the defendant’s profile is part of the DNA mixture present on

evidence.” Rather, “the likelihood ratio is a standard statistical calculation used in all areas

of science” and simply says “that given the composition of the mixture it’s s more likely

than not that the defendant is a contributor to the DNA mixture.”




                                             - 28 -
People v Cadman Williams

No. 15




DiFIORE, Chief Judge (concurring):

         I concur that the issues joined in this 2014 motion practice raised the existence of a

credible dispute among scientists in the relevant scientific community that was ripe for a

Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]), and the denial of the same

was an abuse of discretion. I write separately because I cannot join the majority’s

                                              -1-
                                           -2-                                      No. 15

pejorative view of the New York City Office of the Chief Medical Examiner’s (OCME’s)

low copy number (LCN) DNA typing technique and its use of a Forensic Statistical Tool

(FST), a probabilistic genotyping software program, to determine likelihood ratios for the

interpretation of DNA typing in multiple source samples. I also write to emphasize the

paramount importance of the Commission on Forensic Science (CFS) and its highly

credentialed DNA subcommittee and the significance of their joint approval of the

OCME’s validated techniques for generating and interpreting LCN DNA typing.

       The narrowly disputed issue presented to the trial court concerned challenges to the

relatively new internal validation studies conducted by OCME to support its LCN DNA

typing interpretation protocols to address the conceded increased stochastic effects and

allelic dropout associated with multiple contributor samples. Here, the People alleged that

the interpretation protocols of the DNA testing tools at issue – i.e., the LCN DNA typing

and FST techniques – were validated by empirical evidence through extensive testing. The

validation studies did not lack “external mechanisms” of quality assurance as the majority

asserts (majority op. at 7), and that is a conclusion that completely ignores the

comprehensive oversight, regulation and approval of the subject DNA testing techniques

by the legislatively created CFS and DNA subcommittee.1 Ignored by the majority as well


1
  In direct response to this Court’s green light in People v Wesley (83 NY2d 417 [1994])
for the introduction of DNA profile evidence after it survived a Frye challenge similar to
that raised here, in 1994, our State Legislature preemptively established the independent
CFS and its DNA subcommittee (Executive Law § 995-b). These entities are charged with
accreditation and regulation of DNA laboratories and personnel and full vetting of the DNA
testing tools at issue – requiring them to establish minimum standards for program
accreditation, forensic laboratory personnel and performance of forensic DNA
methodologies, all of which shall be designed to “ensure that forensic analyses, including
                                           -2-
                                           -3-                                      No. 15

is OCME’s reliance on the guidelines of the Scientific Working Group on DNA Analysis

Methods (SWGDAM) – a group of federal, state and local scientists representing forensic

DNA laboratories that meets under the FBI’s guidance and proposes and recommends

revisions to the FBI’s Quality Assurance Standards (QAS) for DNA analysis – in

performing its validation studies2 (United States v Morgan, 53 F Supp 3d 732, 737-738 n

6 [SD NY 2014], affd 675 Fed Appx 53 [2d Cir 2017], cert denied 138 S Ct 176 [2017]).

OCME’s adherence to the national QAS, and the approval of those studies by CFS,

demonstrates the rigorous nature of OCME’s validation process and should not be simply




forensic DNA testing, are performed in accordance with the highest scientific standards
practicable” (Executive Law § 995-b [1], [2] [a], [2] [b]). DNA subcommittee members
are appointed from a cross-section of the relevant scientific disciplines, including
molecular biology, population genetics, laboratory standards, quality assurance regulation
and monitoring and forensic science (id. at § 995-b [13]). Hardly an “insular” or “narrow
class of reviewers” (majority op. at 17, 18), the DNA subcommittee consists of “world-
class scientists in various disciplines relevant to DNA analysis” (People v Carter, 50 Misc
3d 1210[A], 2016 NY Slip Op 50067[U], *13 [Sup Ct, Queens County 2016], quoting
People v Collins, 49 Misc 3d 595, 612 [Sup Ct, Kings County 2015]; see also United States
v Jones, 2018 WL 2684101, *4, 2018 US Dist LEXIS 94791, *9 [SD NY, Jun. 5, 2018, S4
15-CR-153 (VSB)] [DNA subcommittee consists of a group of “well-known,” “respected”
and “distinguished experts” in the field of DNA analysis]; Letter from St Health Dept, July
25, 1994, Bill Jacket, L 1994, ch 737 [involvement of scientists and geneticists with
expertise in DNA technology on DNA subcommittee “will enhance the effectiveness and
accuracy of DNA tests performed by state and local forensic laboratories”]). The statute
also contains strict parameters for laboratory accreditation by the DNA subcommittee,
including minimum levels of proficiency testing, inspections, quality assurance, validation
procedures and corrective action (see Executive Law § 995-b [3]).
2
 Dr. Budowle was the former chair of SWGDAM and one of the original architects of
CODIS (see Collins, 49 Misc 3d at 608).

                                           -3-
                                            -4-                                      No. 15

discounted by a court as only an “insular endorsement” of the subject test methodologies

(majority op. at 17).3

       Despite my view that CFS certification, in the absence of countervailing empirical

evidence, weighs heavily in favor of finding that the subject DNA testing methodologies

themselves were scientifically accepted by the relevant community, of particular concern

here is whether OCME’s interpretation protocols encompassed the proffered test results,

as the DNA sample sizes appear to have fallen outside validated parameters. To be sure,

the parties did not dispute that LCN DNA testing essentially replicates the procedures used

in the well-accepted Polymerase Chain Reaction Short Tandem Repeat (PCR/STR) process

and that it includes three additional PCR amplification cycles to account for the use of

smaller DNA sample sizes. It was also undisputed that increased PCR amplification cycles

increase the risk of stochastic effects and allelic dropout when low copy mixture samples

are used, thereby affecting the DNA typing profiles. The People alleged, though, that

OCME accounted for these known effects in its conservative interpretation protocols and

conducted extensive validation studies on known DNA samples to prove their hypothesis.4


3
  In DWI prosecutions, for example, a breathalyzer test result is scientific evidence that is
admissible at trial without expert testimony on its general acceptance where the evidence
is created by technologies regulated by state agencies (see e.g. People v Boscic, 15 NY3d
494, 497-500 [2010] [results of breath alcohol detection machines, which are regulated,
evaluated and approved by DOH, have long been considered scientifically reliable]; see
also People v Hampe, 181 AD2d 238, 240 [3d Dept 1992]).
4
  The majority relies heavily on the criticisms of LCN and FST contained in the numerous
articles proffered by the defense (see majority op. at 6-7). Although the majority claims
the articles identify disputes as to the underlying scientific methods of LCN and FST per
se, closer inspection reveals they do not support such a broad rejection of those techniques.
Instead, they sound the alarm that the use of these techniques with smaller DNA samples
                                            -4-
                                            -5-                                       No. 15

The crux of the dispute among scientists pertains to the precise manner in which they

translated the results of their studies into protocols to account for stochastic effects (see

Collins, 49 Misc 3d at 605). As one commentator has explained, “[t]he issue is not whether

the tools by which LCN testing is undertaken are identical to those for conventional STR

testing, but rather whether the methodology and protocols have been validated for low

levels of DNA” (Faigman et al., 4 Modern Scientific Evidence: The Law and Science of

Expert Testimony § 30:32 at n 19 [2019-2020 ed]). Thus, the People had the burden to

demonstrate that the interpretation of the DNA typing profiles derived from increased

amplification of the DNA sample was admissible because it was appropriately derived

using OCME’s protocols.




and increased amplification cycles lead to increased stochastic effects – no surprise.
However, none of the articles address the fact that OCME accounted for those stochastic
effects in developing interpretation protocols after running thousands of validations studies
in accordance with SWGDAM guidelines, and none offer contrary empirical proof
discounting the interpretation protocols adopted by OCME. Indeed, studied review of the
nine attachments reveals that, far from providing a “chorus of . . . scholarly voices . . .
sounding suspicion with respect to the LCN methodology” (majority op. at 16), a number
of the annexed writings are not appropriately considered in this context at all.
Fundamentally, in evaluating the positions advanced by scientists, we must ensure that
their opinions are supported by empirical data. In a case like this one, where the underlying
PCR/STR technology was already scientifically accepted for certain uses, it was necessary
to inquire whether the scientists attempting to stretch its use to new applications, and those
who were disputing the reliability of such use, could back up their positions with empirical
proof. Most importantly, none of the articles annexed to defendant’s papers addressed the
import of the external validation of OCME’s use of LCN by the CFS and DNA
subcommittee and SWGDAM, including through oversight, approvals and regulation.
Indeed, careful attention must be paid to the exact procedures the articles address, as
“LCN” has been used to describe various types of high-sensitivity testing, including one
type using 34 PCR amplification cycles, and in various settings, including commercial
laboratories that are not regulated in the same manner or with the same rigor as the
processes certified for OCME’s use.
                                            -5-
                                            -6-                                       No. 15

       It is not clear whether, in 2014, OCME’s extensive empirical studies supporting its

interpretation protocols to account for stochastic effects and allelic dropout in the LCN

DNA typing had been validated and consequently approved by CFS for multiple

contributor samples falling below what appears to have been – according to the People’s

own submissions – a 25 picogram threshold. That floor was not met on one of the samples

here, as only 17.2 picograms of DNA was recovered from the gun trigger swab. An

interrelated concern existed as to the range of the validation studies for OCME’s

interpretation protocols as to LCN DNA multiple contributor samples consisting of two or

more unknown contributors. Accordingly, an important focus for the Frye court was to

determine whether the interpretation protocols to account for stochastic effects and allelic

dropout on LCN DNA samples were properly utilized in analyzing the particular DNA

mixture samples in this case. A Frye hearing was needed to resolve these disputes.

       As for FST, CFS approved that software program for OCME’s use in analyzing

DNA mixtures in July 2011, and the first report generated in this case by the FST was

issued the same month, making it “possible,” as OCME’s witness testified at trial, that

defendant’s first FST report was one of the first that OCME had ever issued for use in a

criminal case. At the time of the motions, use of probability ratios to explain the results of

DNA typing evidence by use of Bayesian mathematical principles was not uncommon, and

“[t]he validity of the math in the probability analysis underlying the FST software” was

not in issue (Collins, 49 Misc 3d at 601). However, OCME’s newly minted proprietary

software had not been shared publicly, and defendant reasonably complained that there was

“no basis on which the external forensic DNA community [was] capable of determining

                                            -6-
                                             -7-                                       No. 15

whether OCME’s methodology and procedures are adequate to assure the reliability and

the accuracy of the results” relating to this defendant. The LCN DNA profiles drive the

FST analysis, and FST results are only as reliable as the predicate assumptions integrated

into the FST software program. The People did not meet their burden of establishing the

validity of the empirical data used to fuel the calculations performed by this statistical

model, including the manner of accounting for the occurrence of the stochastic effect and

allelic dropout in a multiple contributor sample of less than 25 picograms, in a manner

sufficient to bypass a Frye hearing. Fundamentally, the combined use of that statistical

tool with DNA typing on samples that fell beneath validated thresholds may have impacted

the reliability of the results, raising a valid challenge to the admissibility of that evidence

in a criminal prosecution.

       When sufficiently challenged, a laboratory’s validation studies, conducted at the

nascent stages for the acceptability of the scientific methodology, require a Frye court to

answer the admissibility inquiry with more than “unanalyzed, rote reliance” on the

conclusions of the initial decisions of other courts (United States v Wilbern, 2019 WL

5204829, *4, 2019 US Dist LEXIS 152353, *9 [WD NY Oct 16, 2019, 17-CR-6017 CJS]).

At a minimum, an independent review of the underlying factual support for the previously

litigated competing positions was warranted (see Wilbern, 2019 WL 5204829, *3, 2019

US Dist LEXIS 152353, *7, citing Morgan, 675 Fed Appx at 54-56; Jones, 2018 WL

2684101, *7, 2018 US Dist LEXIS 94791, *19). Since a more thorough inquiry as

identified above was warranted at the time of defendant’s motions, complete deference to

the decisions in People v Megnath (27 Misc 3d 405 [Sup Ct, Queens County 2010]) and

                                             -7-
                                            -8-                                      No. 15

People v Rodriguez (Sup Ct, NY County, Oct. 24, 2013, Carruthers, J., indictment No.

5471/2009) was not an appropriate substitute for the more critical analysis of the LCN and

FST evidence that should have been undertaken in a Frye hearing (see People v Jeter, 80

NY2d 818, 820-21 [1992]). Nonetheless, I cannot join the unfair characterization of the

court’s analysis in Megnath as “questionable” (majority op. at 14), given that we have

before us neither the Frye hearing transcript nor the underlying arguments of the parties,

which certainly framed the issues for that court.5

       The issue before the trial court warranted a Frye hearing to afford an opportunity

for more scrutiny based upon actual evidence and to determine if the so-called “organized

skepticism” (majority op. at 12)6 was even predicated on validated empirical data. Despite


5
  The courts in Megnath and Collins conducted Frye hearings to address the same narrow
issue that warranted a Frye hearing in this case – whether OCME’s protocols to account
for and interpret increased stochastic effects and allelic dropout arising from additional
amplification cycles of LCN DNA samples were scientifically reliable. Those courts
reached opposite conclusions, based largely on the value each court gave to OCME’s
validation studies and certification by the CFS. The Collins court did “not seek to state
whether the People were correct” that “OCME’s protocols create conservative
interpretations of the test data and ensure trustworthy and sound scientific conclusions” (49
Misc 3d at 605). It opted instead to consider whether the relevant scientific community
generally accepts the OCME protocols and further held, with respect to CFS approval, “that
no state subcommittee can be equated with the general membership of the relevant
scientific community” (49 Misc 3d at 613). By contrast, Megnath found that OCME’s
validation studies “were reviewed by the DNA subcommittee of the [CFS] and were
implicitly found to be scientifically reliable and reproducible” and concluded that “OCME
has properly developed interpretation protocols for LCN DNA testing based upon its
extensive validation studies and that when correctly performed these protocols consistently
yield reliable and reproduceable results” (27 Misc 3d at 408, 411).
6
  Although it has been stated that “‘[t]he Frye test emphasizes “counting scientists” votes,
rather than on verifying the soundness of a scientific conclusion’” (Wesley, 83 NY2d at
439 [Kaye, Ch. J., concurring], quoting Jones v United States, 548 A2d 35, 42 [DC Cir
1988]; see also Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]), that paradigm
                                            -8-
                                             -9-                                       No. 15

the error in denying the Frye hearing, I concur in the majority’s affirmance of the judgment

on the ground of harmless error, as the evidence of defendant’s use of the handgun involved

in the murder – including defendant’s own trial testimony admitting he shot the victim in

addition to the proof cited by the majority – was overwhelming.



*    *     *     *     *     *     *    *     *     *     *     *     *     *    *     *     *

Order affirmed. Opinion by Judge Fahey. Judges Rivera, Stein, and Wilson concur.
Chief Judge DiFiore concurs in result in an opinion in which Judges Garcia and Feinman
concur.

Decided March 31, 2020




incorrectly suggests that whether a Frye hearing is required will depend on the mere
number of voices disputing the efficacy of a particular scientific methodology. Such a
proposition is not consistent with the axiom that reproducibility is the linchpin of a reliable
methodology. The more exact inquiry should be whether the dissenting voices are from
scientists who have empirical proof to refute the validated empirical evidence and thus
substantiate their competing hypotheses.

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