| People v Foster-Bey |
| 2018 NY Slip Op 00845 [158 AD3d 641] |
| February 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Elijah Foster-Bey, Appellant. |
Paul Skip Laisure, New York, NY (Barry Stendig and Dina Zloczower of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel M.Goldberg, J.), rendered November 20, 2013, convicting him of assault in the first degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's motion toexclude, or, alternatively, to conduct a hearing pursuant to Frye v United States (293 F1013 [DC Cir 1923]) to determine the admissibility of, expert testimony relating to low copynumber (LCN) DNA testing and the forensic statistical tool (FST). "A court need not hold aFrye hearing where it can rely upon previous rulings in other court proceedings as an aidin determining the admissibility of the proffered testimony" (People v LeGrand, 8 NY3d 449, 458 [2007]). When the SupremeCourt made its ruling in this case, a court of coordinate jurisdiction, upon conducting anextensive Frye hearing, had determined that LCN DNA testing was not a novel scientifictechnique, and that, when properly performed, it is generally accepted as reliable in the forensicscientific community (see People vMegnath, 27 Misc 3d 405, 413 [Sup Ct, Queens County 2010]; see also People v Gonzalez, 155 AD3d507 [2017]; People v Garcia, 39Misc 3d 482 [Sup Ct, Bronx County 2013]). The Supreme Court providently exercised itsdiscretion in relying upon that determination, as well as the determinations of other courts ofcoordinate jurisdiction accepting that LCN DNA testing and the FST are not novel and aregenerally accepted by the relevant scientific community (see People v Garcia, 39 Misc 3dat 490; People v Megnath, 27 Misc 3d at 413).
The defendant's contention that the introduction of DNA evidence violated his SixthAmendment right to confront witnesses against him (see Crawford v Washington, 541US 36 [2004]) is unpreserved for appellate review (see People v Bones, 17 AD3d 689, 690 [2005]), and we decline toreview it in the exercise of our interest of justice jurisdiction.
The defendant's contention that the Supreme Court's Allen charge (see Allen vUnited States, 164 US 492 [1896]) was coercive is unpreserved for appellate review, asdefense counsel neither requested a specific charge nor objected to the charge as given by thecourt (see CPL 470.05 [2]; [*2]People v Drummond, 143 AD3d 836 [2016]; People v Coad, 60 AD3d 963, 964[2009]). We decline to review this contention in the exercise of our interest of justicejurisdiction.
The defendant's remaining contentions are without merit. Mastro, J.P., Leventhal, Barros andBrathwaite Nelson, JJ., concur.