Defendant stands indicted on charges of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree. In support of their case, the People intend to introduce DNA evidence linking defendant to these crimes. Defendant has filed a motion seeking to preclude the People from calling at trial an expert witness to testify about conclusions reached through the use of the Forensic Statistical Tool (FST) — the computer software program used by the Office of the Chief Medical Examiner (OCME) to determine the likelihood ratio that defendant's DNA was a contributor to the DNA mixture recovered from a sweatshirt allegedly worn by the perpetrator. Defendant claims that the methods and software used by the OCME to determine the likelihood ratio are not generally accepted as reliable by the relevant scientific community. Alternatively, defendant seeks a Frye hearing (Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]), to determine whether the use of the FST is generally accepted in the relevant scientific community. Defendant also seeks preclusion of the evidence on the ground that it is not relevant.

In the event this court denies preclusion, defendant seeks an order requiring the prosecution to disclose the FST source code and software to the defense and order the prosecution, under section 240.20(1)(c) of the Criminal Procedure Law, to provide the defense with the electronic computer files that contain electronic data of the DNA testing performed in this case. In the alternative, defendant seeks leave to submit a subpoena duces tecum to the OCME requiring it to produce the files.

For the reasons stated below, defendant's motion is denied in its entirety.

Background

The People allege that on May 2, 2014, defendant shot Darnell Rowe four times before fleeing. According to the People, nearby surveillance video captured the incident and showed the assailant wearing a sweatshirt and a baseball cap. It captured the shooter running into an apartment still wearing the sweatshirt and hat, and then leaving the apartment minutes later wearing different clothing. Later that day, the police executed a search warrant for the apartment and recovered the sweatshirt and hat seen in the video, as well as a gun. The police submitted those items to the OCME to test for the presence of biological material. Defendant was apprehended in Pennsylvania in July 2014.

In a report dated August 11, 2014, the OCME indicated that both the sweatshirt and the hat contained DNA sufficient for testing. Specifically, a mixture of DNA from at least two people, including at least one major male contributor, was found in scrapings from the baseball cap. A mixture of DNA was also found in scrapings from the sweatshirt, but profiles of the contributors to the mixture could not be determined. The results were deemed to be suitable for comparison to a known sample, however. In a report dated February 5, 2015, the OCME indicated that the DNA found on the gun was insufficient for testing. In a decision and order dated April 21, 2015, the Honorable Leslie Leach ordered defendant to provide a DNA sample to the People for comparison to the DNA recovered from the sweatshirt and hat, and defendant did so.

The OCME created a DNA profile from defendant's sample and compared it to scrapings from the hat and from the hooded sweatshirt. The OCME found that defendant's DNA profile matched the DNA profile of the major contributor to the DNA found on the baseball cap, and that that DNA profile would be expected to be found in approximately one in greater than 6.80 trillion people. Using FST — a software program developed by the OCME to state likelihood ratios between the probability that a defendant is a contributor to a DNA mixture and that he is not — the OCME compared defendant's DNA profile to the mixture of DNA found on the sweatshirt and determined that defendant was a possible contributor to that mixture. Specifically, the OCME concluded that "[t]he DNA mixture found on the scrapings from the hooded sweatshirt is approximately 5640 times more probable if the sample originated from [defendant] and two unknown, unrelated persons than if it originated from three unknown, unrelated persons. Therefore, there is very strong support that [defendant] and two unknown, unrelated persons contributed to this mixture, rather than three unknown, unrelated persons." (July 6, 2015, OCME Laboratory Report).

Defendant is challenging the methods used by the OCME to determine the likelihood ratio that defendant was a contributor to the DNA mixture found in the sweatshirt versus that the contributors were three other unknown individuals. Defendant is not challenging the methodology by which OCME determined that defendant was the main contributor to the DNA found on the baseball cap.

FST is not New, Novel or Experimental, and in any Event Meets the Frye Standard.