| People v Wilson |
| 2021 NY Slip Op 01803 [192 AD3d 1379] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1](March 25, 2021)
| The People of the State of New York,Respondent, v Casey Wilson, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered November 3, 2014, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts), rape in the first degree (two counts), criminal sexual act in the firstdegree (two counts), aggravated sexual abuse in the third degree (two counts) and robbery in thefirst degree.
Based upon acts perpetrated against separate victims in June 2011 and September 2013,defendant was convicted of two counts of burglary in the first degree, two counts of rape in thefirst degree, two counts of criminal sexual act in the first degree, two counts of aggravated sexualabuse in the third degree and one count of robbery in the first degree. County Court sentenceddefendant to various concurrent prison terms, the longest of which was 25 years, followed by 10years of postrelease supervision. Defendant appealed and, when such appeal was previouslybefore this Court, this Court found that defendant's convictions were supported by legallysufficient evidence and the weight of the evidence (164 AD3d 1012 [2018]). However, this Courtfound that defense counsel was ineffective for failing to request a Frye hearing tochallenge the reliability of a computer program—the TrueAllele Caseworksystem—used to determine the statistical probability of a match between defendant's DNAand the DNA found inside lavender gloves discovered near the 2013 victim's apartment andargued to be the same gloves worn by an individual captured in video footage outside theapartment on the morning in question. We therefore withheld decision and remitted the matter toCounty Court for a posttrial Frye hearing to consider the reliability of the TrueAlleleCasework system at the time the DNA analysis was performed. County Court (Baker, J.)conducted that Frye hearing and ultimately concluded that the TrueAllele Caseworksystem was, as of 2013, "reliable and generally accepted within the relevant scientificcommunity." Upon review of the parties' supplemental briefs, as well as the outstanding issuesraised by defendant on appeal, we now affirm.
Defendant argues that the evidence presented at the Frye hearing did not, as CountyCourt concluded, demonstrate the reliability of the TrueAllele Casework system so as to renderthe DNA evidence admissible. The singular purpose of a Frye hearing is to ascertain thereliability of "novel scientific evidence" by determining whether the methods used to generatesuch evidence will, when properly performed, produce "results accepted as reliable within thescientific community generally" (People v Wesley, 83 NY2d 417, 422 [1994]; seeFrye v United States, 293 F 1013, 1014 [1923]; People v Williams, 35 NY3d 24, 37 [2020]). The proponent of thenovel scientific evidence bears the burden of establishing "consensus in the scientificcommunity" as to the reliability of the methods used to produce the evidence (People vWesley, 83 NY2d at 439 [Kaye, [*2]Ch. J.,concurring]; see Sean R. v BMW of N.Am., LLC, 26 NY3d 801, 809 [2016]).
At the Frye hearing, the People offered extensive documentary evidence andtestimony from Mark Perlin, the chief scientific officer of the bioinformationcompany—Cybergenetics—that developed and owns the proprietary TrueAlleleCasework system, as well as Jay Caponera, the supervisor of forensic services at the New YorkState Police Investigation Center. Perlin explained that, unlike the human approach to DNAinterpretation, which rules suspects in or out based upon a statistical analysis of "simplifieddata," the TrueAllele Casework system separates out genotypes from genetic data and usesprobabilistic genotyping to calculate match statistics between genotypes, ultimately assigning aprobability to the possibility of a match between evidence and a suspect. Perlin asserted thatprobabilistic genotyping is considered by most statisticians and forensic analysts to be thepreferred method of forensic DNA interpretation and stated that the Federal Bureau ofInvestigation issued guidelines in 2010 permitting the use of probabilistic genotyping byvalidated computer programs.
With respect to the TrueAllele Casework system specifically, the testimony and documentaryevidence demonstrated that, at the time in question, the reliability of the TrueAllele Caseworksystem had been tested in roughly two dozen validation studies, two of which were conducted byCaponera, and found to be reliable in each study. Perlin and Caponera explained that validationstudies test reliability by looking at certain metrics, such as sensitivity, specificity, reproducibilityand accuracy. The record also established that the reliability of the TrueAllele Casework systemhad been the subject of several peer-reviewed articles published in forensic science journals in orbefore 2013. Further, in 2011, the New York State Commission on Forensic Science determinedthat the TrueAllele Casework system was reliable and authorized its use by the State Police.Moreover, at the time in question, courts in at least three other states had found the TrueAlleleCasework system to be reliable under the Frye standard. Upon review of the foregoing, aswell as other evidence contained in the extensive record, we agree with County Court that thePeople established that the methods employed by the TrueAllele Casework system weregenerally accepted as reliable within the relevant scientific community at the time the DNAevidence was analyzed (see People vWakefield, 175 AD3d 158, 162-163 [2019], lv granted 35 NY3d 1097 [2020];see generally People v Wesley, 83 NY2d at 426-427).[FN*]
We find defendant's remaining contentions, which relate to his sentence, to be unpersuasive.First, defendant takes issue with the manner in which County Court (Hayden, J.) corrected theillegal terms of postrelease supervision that it initially imposed on his burglary and robberyconvictions. Pursuant to CPL 380.20 and 380.40, [*3]sentencesmust be pronounced and, subject to certain exceptions, such pronouncements must take place inthe presence of the defendant (seePeople v Sparber, 10 NY3d 457, 470 [2008]; People v Condon, 10 AD3d 811, 812 [2004], lv denied 4NY3d 742 [2004]). Here, after recognizing that it had imposed illegal terms of postreleasesupervision on defendant for his burglary and robbery convictions, County Court sent a letter tothe clerk indicating that the postrelease supervision term for those convictions should have beenfive years (see Penal Law § 70.45 [2]), rather than 10 years, and requestingthat the commitment order be modified accordingly for the court's authorization. Defendantthereafter appeared before County Court for sentencing on a separate conviction, at the start ofwhich the court confirmed that the parties had received its letter regarding the previouslyimposed illegal sentence and inquired as to whether there were any objections to the corrected,shorter term of postrelease supervision for the burglary and robbery convictions. Defendant hadno objection, and the court thereafter signed the amended uniform sentence and commitmentform. Under these circumstances, we find that County Court's correction of the illegal sentenceand imposition of legally permissible periods of postrelease supervision complied with thedictates of CPL 380.20 and 380.40.
Lastly, defendant challenges the severity of his sentence. However, upon consideration of theheinous and premeditated nature of defendant's crimes, we do not find the sentence imposed tobe harsh or excessive (see People vHartle, 159 AD3d 1149, 1155 [2018], lv denied 31 NY3d 1082 [2018]; People v Glass, 150 AD3d 1408,1411 [2017], lv denied 30 NY3d 1115 [2018]). To the extent that we have not addressedany of defendant's remaining contentions, they have been reviewed and rejected.
Egan Jr., J.P., Lynch and Colangelo, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Perlin estimated that, at the timeof defendant's trial, there were between 25 and 50 scientists within the forensic DNAinterpretation community in the United States.