Opinion
2013–07329 Ind.No. 2340/11
04-03-2019
The PEOPLE, etc., Respondent, v. Levan EASLEY, Appellant.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered July 2, 2013, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his conviction of criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02(3) was not supported by legally sufficient evidence is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the defendant knowingly possessed a defaced firearm (see Penal Law § 265.02[3] ; People v. Johnson, 76 A.D.3d 1103, 1104, 908 N.Y.S.2d 247 ; Matter of Darnell C., 66 A.D.3d 771, 772–773, 887 N.Y.S.2d 211 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court providently exercised its discretion in denying the defendant's request to conduct a hearing pursuant to Frye v. United States, 293 F. 1013 (DC Cir) ) to determine the admissibility of testimony relating to the forensic statistical tool (hereinafter FST) used to evaluate the likelihood that the DNA mixture found on the trigger of the subject firearm originated from the defendant. "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" ( People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; see People v. Gibson, 163 A.D.3d 586, 80 N.Y.S.3d 392 ; People v. Foster–Bey, 158 A.D.3d 641, 641, 67 N.Y.S.3d 846 ; People v. Gonzalez, 155 A.D.3d 507, 508, 65 N.Y.S.3d 142 ). At the time of the court's ruling, a court of coordinate jurisdiction had determined that the FST was not a new or novel scientific technique, but "a computer software program that uses accepted mathematical equations based on Bayes' Theorem to calculate the likelihood ratio of obtaining a recovered mixture of DNA if the suspect is a contributor versus the probability of getting the same mixture if the suspect is not a contributor" ( People v. Garcia, 39 Misc.3d 482, 487–488, 963 N.Y.S.2d 517 [Sup Ct, Bronx County] ). The court of coordinate jurisdiction noted that the FST had been peer reviewed, accepted in professional journals, presented at numerous scientific conferences, and admitted in several criminal trials in this State (see id. at 488, 963 N.Y.S.2d 517 ). The court, therefore, providently exercised its discretion in relying on that decision to determine that the FST was not novel and was generally accepted by the relevant scientific community (see People v. LeGrand, 8 N.Y.3d at 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; People v. Gibson, 163 A.D.3d at 587, 80 N.Y.S.3d 392 ; People v. Foster–Bey, 158 A.D.3d at 641, 67 N.Y.S.3d 846 ; People v. Gonzalez, 155 A.D.3d at 508, 65 N.Y.S.3d 142 ).
We agree with the Supreme Court's determination to deny the defendant's request for disclosure of the source code, algorithm, and validation studies of the FST. These materials were not "made by, or at the request or direction of a public servant engaged in law enforcement activity" ( CPL 240.20[1][c] ), but by and at the direction of the Office of the Chief Medical Examiner (hereinafter OCME), an entity that operates independently from the District Attorney's Office and the New York City Police Department and is not engaged in law enforcement activity (see People v. Brown, 13 N.Y.3d 332, 340, 890 N.Y.S.2d 415, 918 N.E.2d 927 ; People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 ; People v. Washington, 86 N.Y.2d 189, 192, 630 N.Y.S.2d 693, 654 N.E.2d 967 ). The materials were also not "made by a person whom the prosecutor intend[ed] to call as a witness at trial," and there is no indication in the record that the People intended to introduce any such materials at trial ( CPL 240.20[1][c] ). The materials were not required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) since they were not in the possession or control of the People, but of OCME (see People v. Spruill, 164 A.D.3d 1270, 1273–1274, 82 N.Y.S.3d 520 ; Matter of Hoovler v. De Rosa, 143 A.D.3d 897, 900, 40 N.Y.S.3d 147 ). The defendant's contention that the failure to disclose these materials violated his right to confront witnesses and cross-examine them is unpreserved for appellate review (see CPL 470.05[2] ; People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 ; People v. Castro, 149 A.D.3d 862, 865, 52 N.Y.S.3d 385 ) and, in any event, without merit, since he was afforded the "opportunity for effective cross-examination" of the OCME criminalist ( Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 [emphasis omitted]; see People v. Smith, 27 N.Y.3d 652, 659–660, 57 N.E.3d 53 ).
MASTRO, J.P., AUSTIN, ROMAN and BRATHWAITE NELSON, JJ., concur.