| People v Easley |
| 2019 NY Slip Op 02545 [171 AD3d 785] |
| April 3, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Levan Easley, Appellant. |
Paul Skip Laisure, New York, NY (Jonathan Schoepp-Wong of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (DeborahStevens Modica, J.), rendered July 2, 2013, convicting him of criminal possession of a weapon inthe second degree and criminal possession of a weapon in the third degree (two counts), upon ajury 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 thirddegree pursuant to Penal Law § 265.02 (3) was not supported by legally sufficientevidence is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]; People vGray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish that the defendant knowingly possessed a defaced firearm(see Penal Law § 265.02 [3]; People v Johnson, 76 AD3d 1103, 1104 [2010]; Matter of Darnell C., 66 AD3d771, 772-773 [2009]). 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 theevidence (see People v Romero, 7NY3d 633 [2006]).
The Supreme Court providently exercised its discretion in denying the defendant's request toconduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir 1923]) todetermine 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 firearmoriginated from the defendant. "A court need not hold a Frye hearing where it can relyupon previous rulings in other court proceedings as an aid in determining the admissibility of theproffered testimony" (People vLeGrand, 8 NY3d 449, 458 [2007]; see People v Gibson, 163 AD3d 586 [2018]; People v Foster-Bey, 158 AD3d641, 641 [2018]; People vGonzalez, 155 AD3d 507, 508 [2017]). At the time of the court's ruling, a court ofcoordinate 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 suspectis a contributor versus the probability of getting the same mixture if the suspect is not acontributor" (People v Garcia, 39Misc 3d 482, 487-488 [Sup Ct, Bronx County 2013]). The court of coordinate jurisdictionnoted that the FST had been peer reviewed, accepted in professional journals, presented atnumerous scientific conferences, and admitted in several criminal trials in this State (seeid. at 488). The court, therefore, providently exercised its discretion in relying on thatdecision to determine that the FST was not novel and was generally accepted by the relevantscientific community (see People v LeGrand, 8 NY3d at 458; People v Gibson,163 AD3d at 587; People v Foster-Bey, 158 AD3d at 641; People v Gonzalez,155 AD3d at 508).
We agree with the Supreme Court's determination to deny the defendant's request fordisclosure of the source code, algorithm, and validation studies of the FST. These materials werenot "made by, or at the request or direction of a public servant engaged in law enforcementactivity" (CPL 240.20 [1] [c]), but by and at the direction of the Office of the Chief MedicalExaminer (hereinafter OCME), an entity that operates independently from the District Attorney'sOffice and the New York City Police Department and is not engaged in law enforcement activity(see People v Brown, 13 NY3d332, 340 [2009]; People vFreycinet, 11 NY3d 38, 42 [2008]; People v Washington, 86 NY2d 189, 192[1995]). The materials were also not "made by a person whom the prosecutor intend[ed] to callas a witness at trial," and there is no indication in the record that the People intended to introduceany such materials at trial (CPL 240.20 [1] [c]). The materials were not required to be disclosedpursuant to Brady v Maryland (373 US 83 [1963]) since they were not in the possessionor control of the People, but of OCME (see People v Spruill, 164 AD3d 1270, 1273-1274 [2018]; Matter of Hoovler v DeRosa, 143AD3d 897, 900 [2016]). The defendant's contention that the failure to disclose thesematerials violated his right to confront witnesses and cross-examine them is unpreserved forappellate review (see CPL 470.05 [2]; People v Liner, 9 NY3d 856, 856-857 [2007]; People v Castro, 149 AD3d 862,865 [2017]) and, in any event, without merit, since he was afforded the "opportunity for effectivecross-examination" of the OCME criminalist (Delaware v Fensterer, 474 US 15, 20[1985] [emphasis omitted]; see People vSmith, 27 NY3d 652, 659-660 [2016]). Mastro, J.P., Austin, Roman and BrathwaiteNelson, JJ., concur.