State of New York MEMORANDUM
Court of Appeals This memorandum is uncorrected and subject to
revision before publication in the New York Reports.
No. 2
The People &c.,
Respondent,
v.
Levan Easley,
Appellant.
David Fitzmaurice, for appellant.
William H. Branigan, for respondent.
The Legal Aid Society, Electronic Frontier Foundation, amici curiae.
MEMORANDUM:
The order of the Appellate Division should be affirmed. It was an abuse of
discretion for the trial court to admit the results of DNA analysis conducted using the
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Forensic Statistical Tool without first holding a Frye hearing (People v Williams, 35 NY3d
24 [2020]; People v Foster-Bey, 35 NY3d 959 [2020]). Here, however, this error was
harmless. The evidence of defendant’s guilt was overwhelming. Video footage from a
security camera inside the store was entered into evidence at trial, including footage from
one camera trained on a display shelf which captured a group of men holding defendant
against the shelf. The other men then scatter, leaving the video frame, at which point
defendant places an item on the shelf directly in front of him before he too runs out of the
frame. After approximately two minutes and fifteen seconds, during which no one
approaches the shelf or the area where defendant placed the item, a police officer looks at
the space on the shelf where the item was placed, walks over, and removes a gun. Rather
than “mere physical proximity,” the video shows that only defendant could have placed the
item—the gun recovered minutes later—on the shelf, not “any of the several others in the
same area” (dissenting op at 8). Therefore, there is no significant probability that the jury
would have acquitted defendant had it not been for this error (Williams, 35 NY3d at 42;
People v Crimmins, 36 NY2d 230, 241-242 [1975]). As a result, we need not reach
defendant’s remaining arguments concerning discovery of materials related to the FST.
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RIVERA, J. (dissenting):
A unanimous Court agrees with defendant that, under our prior holdings in People
v Williams (35 NY3d 24 [2020]) and People v Foster-Bey (35 NY3d 959 [2020]), the trial
court abused its discretion as a matter of law in admitting the Forensic Statistical Tool
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(FST)-derived DNA results without first holding a Frye hearing. We part company on the
impact of that admission on the jury’s verdict and disagree with the majority that the error
was harmless. The evidence of defendant’s guilt of criminal possession of a weapon was
not overwhelming and the FST DNA evidence was the strongest evidence of possession
against him. Therefore, even under the nonconstitutional standard, there was a significant
probability that the error infected the verdict and, accordingly, was not harmless.
***
Defendant was convicted by a jury of various counts of criminal possession of a
weapon for a gun found between boxes on a deli store shelf during an attack on defendant
by several unidentified individuals.1 According to the evidence at trial, shortly after
defendant and another person entered the store, several individuals began shouting and
attacking them. The assault was recorded on the store’s video camera, which captured
several men tackling, pushing, and punching defendant as they pinned him against the
shelves in front of the deli counter. All the men were clustered close to defendant and the
shelves. It also appears that, while defendant was held down against the shelves by several
of his attackers, one of them attempted to stab and slash defendant several times.
Minutes after the attack commenced, in response to a store employee’s 911 call that
a group of men was in the store and that two of them had guns, the police arrived. The
officers observed several men fighting with defendant and pinning him to the shelves. One
1
Defendant was acquitted of one count of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [1] [b]).
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man pushed defendant and ran out past the officers. Defendant fell back while the other
men scattered.
The officers testified they could not see defendant’s or most anyone else’s hands.
After isolating defendant, and after one of the assailants re-entered and attempted to punch
defendant in the face, one of the officers pulled a gun from between two boxes on one of
the shelves where the men had attacked defendant. The officer testified that she believed
that defendant had been in possession of the gun because he was dressed in black, which
was consistent with the description of the person described in the employee’s phone call
and communicated via the police radio. The evidence also showed that at least two other
men were also dressed in black, including the man who appeared to be stabbing defendant
in the video recording. The officers arrested defendant, who was visibly bleeding and had
suffered a cut to his hand and head which required medical attention.
The prosecution’s theory was that defendant physically held the gun at some point
and that he attempted to hide it on the store shelf. However, no eyewitness observed
defendant in possession of the gun at any time in the store, and there were no fingerprints
or blood on the weapon. For its physical proof, the prosecutor relied heavily on FST-
derived DNA results.2 According to the criminalist’s testimony, a standard contact/skin
2
FST is a low copy number (LCN) DNA method that was developed by the New York
City Office of Chief Medical Examiner (OCME) (see Williams, 35 NY3d at 47-48). LCN
DNA analysis “was developed as a means of obtaining DNA profiles from even smaller
amounts of DNA by increasing the PCR amplification cycles to essentially make more
copies of the DNA segments to allow for analysis” (id. at 47). As the Electronic Frontier
Foundation explains in its amicus brief, OCME has since discontinued using FST after
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cell DNA analysis3 determined that defendant was not a major contributor to the DNA
collected from the gun, although he could not be excluded as one of three possible
contributors. However, based on the FST analysis, the criminalist concluded that:
“[t]he DNA mixtures found on the sample from the swab from
the trigger [of the gun] is approximately 4.57 million times
more probable if the sample originated from Levan Easley and
two unknown unrelated persons than if it originated from three
unknown unrelated persons. Therefore, there is very strong
support that Levan Easley and two unknown unrelated persons
contributed to this mixture rather than three unknown unrelated
persons.”
In summation, the prosecutor extensively discussed the FST DNA evidence, reiterating
that the criminalist had testified that for “the DNA mixture found on the sample [it] is
approximately 4.57 million times more probable that the sample originated from the
defendant Levan Easley and two unknown unrelated persons than if it originated from three
unknown unrelated persons.”
The Appellate Division affirmed defendant’s conviction (see 171 AD3d 785 [2d
Dept 2019]). Thereafter, we held in Williams and Foster-Bey that it was error to admit low
copy number and FST DNA evidence without first holding a Frye hearing to determine
independent source code audits uncovered serious errors in the software’s calculation of
likelihood ratios.
3
The most common form of DNA analysis, which was used in this case, is polymerase
chain reaction (PCR) short tandem repeat (STR) analysis, which involves reproducing a
DNA sample using PCR and then using STR analysis to “examin[e] . . . 13 or more different
loci to establish a profile of which alleles appear at which locus” (Williams, 35 NY3d at
46-47). Once a profile is established, an analyst may compare that profile to a known DNA
sample and calculate a likelihood ratio, i.e. the odds of whether a particular person can be
included or excluded as a DNA contributor (see id. at 47).
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whether the methodology had been accepted as reliable by the scientific community. A
Judge of this Court granted defendant leave to appeal (see 35 NY3d 1093 [2020]). We now
conclude that the same error identified in Williams and Foster-Bey occurred here. The only
question remaining is whether the error in defendant’s case was harmless.4
Under the nonconstitutional standard, an error cannot be harmless—even when “the
proof of the defendant’s guilt, without reference to the error, is overwhelming”—if “there
is a significant probability, rather than only a rational possibility, in the particular case that
the jury would have acquitted the defendant had it not been for the error or errors which
occurred” (People v Crimmins, 36 NY2d 230, 241-242 [1975]). Thus, in order for a
nonconstitutional error to be harmless, a two-pronged test must be satisfied: first, the
evidence of guilt must be overwhelming, and, second, there must be no significant
probability that, without the erroneously admitted evidence, the jury would have reached a
different verdict. Evidence is overwhelming if it compels a guilty verdict, rather than
merely provide some support for the prosecution’s case. As the Court explained when first
articulating New York’s standard for nonconstitutional error:
“That ‘overwhelming proof of guilt’ cannot be defined with
mathematical precision does not, of course, mean that the
concept cannot be understood and applied in individual cases,
although not always without some difficulty. It surely does not
invite merely a numerical comparison of witnesses or of pages
of testimony; the nature and the inherent probative worth of the
evidence must be appraised. As with the standard, ‘beyond a
reasonable doubt’, recourse must ultimately be to a level of
convincement. What is meant here, of course, is that the
quantum and nature of proof, excising the error, are so
logically compelling and therefore forceful in the particular
4
Defendant’s other claims are either unpreserved or without merit.
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case as to lead the appellate court to the conclusion that ‘a jury
composed of honest, well-intentioned, and reasonable
[people]’ on consideration of such evidence would almost
certainly have convicted the defendant” (id. at 241-242
[emphasis added]).
In Williams, we concluded that the admission of the DNA evidence without first
holding a Frye hearing was harmless error because the evidence of the defendant’s guilt
was overwhelming. In that case, the prosecution
“presented video evidence of the shooting, . . . eyewitness
testimony identifying defendant as the shooter, and . . .
testimony of defendant’s former girlfriend with respect to the
events that followed th[e] incident—including the girlfriend’s
account of defendant’s handling of the subject gun and the
forced secretion of that device” (35 NY3d at 42).
In Foster-Bey, we similarly concluded that the error “was harmless in light of the
eyewitness testimony as to the shooting and defendant’s admission to his involvement in
that incident” (35 NY3d at 961).
Here, the erroneous admission of the FST DNA results was not harmless. The
evidence of defendant’s criminal possession of the gun was not overwhelming. There was
no eyewitness who saw defendant in possession of the gun, no admission of his guilt, and
no video recording depicting him holding the gun at any time. The evidence merely
established that defendant entered the store, where he was attacked by several men and
pinned against the shelf where the police later found the gun. Although there was evidence
that, during the fight, someone yelled that a man dressed in black had a gun, and there was
evidence that two men might have had guns, no one identified defendant as the man in
black with the gun, and there was no evidence of a second weapon in the store. No
eyewitness, including the responding officers who arrived minutes after the fight began,
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testified that defendant was holding a gun before or after the attack. No fingerprints or
blood were recovered from the gun, or the shelf and boxes where the gun was found, even
though defendant was not wearing gloves, and, at the time of his arrest, the police observed
that he was bleeding from lacerations to his head and hand.
Despite the underwhelming nature of the prosecution’s evidence, the majority
concludes the evidence is “overwhelming” based solely on its review of the video footage.
The majority makes three assertions in sequential order, and its analysis is contingent on
the first of those assertions: that the recording shows “defendant plac[ing] an item on the
shelf directly in front of him” (majority mem at 2). The video does no such thing. Indeed,
not even the District Attorney maintains such a view of the evidence. The District Attorney
has consistently argued only that, during the chaotic scene, with several men fighting and
pinning and pushing defendant up against the store shelf where the gun was later found by
an investigating officer, the video shows defendant “reach[ing] between two of the boxes
in front of the deli counter.” When pressed, counsel admitted that he could not “see a gun
in [defendant’s] hand in the video.”
Next in the majority’s analysis is the statement that nobody came near the shelf after
“[t]he other men” had “scatter[ed]” (id.) from the shelf where defendant had allegedly
placed an item and before the officer later removed the gun. However, the video recording
clearly shows several people near the location of the gun—namely, the group of men who
assaulted defendant. The majority disregards that the District Attorney argues that the
relevant portion of the video depicts defendant having “reached” for the shelf “during the
fight” when he was surrounded by the group of men assaulting him, not after the men
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scattered. But mere physical proximity of defendant to the weapon found, without evidence
that distinguishes defendant as the person holding the gun from any of the several others
in the same area, with access and opportunity to put the gun on the shelf, is not
overwhelming proof that defendant possessed the gun.5
Finally, to bridge the gap in direct evidence, the prosecution relies on an inference
that “[n]obody else could have put the gun there, and that’s why there is harmlessness in
this case,” as does the majority, holding that “only defendant could have placed the item—
the gun recovered minutes later—on the shelf” (id.). While a jury may accept such an
inference, our harmless error standard prevents us from calling such circumstantial
evidence overwhelming. Indeed, this Court has no authority to make an independent
assessment of the recording and so the majority cannot rely for its harmless error
conclusion on its factual finding that defendant can be seen putting an object, later found
to be the gun, on the shelf. Our jurisdiction is “limited to the review of questions of law”
(NY Const, art VI, § 3 [a]). Our role is to accept the facts developed in the record below;
“where there are conflicting inferences to be drawn from the proof, the choice of inferences
5
Analogously, in cases where the prosecution seeks to prove possession through a
constructive possession theory, the prosecution has a “heavy burden of establishing the
ownership of a weapon found in an area occupied by several people and where no one
individual could be said to have dominion and control of the weapon” (People v Roberson,
41 NY2d 106, 109 [1976], citing People v Lemmons, 40 NY2d 505, 514 [1976, Wachtler,
J., concurring in part]). Here, although the prosecution rested its case on actual possession,
the court charged the jury with a constructive possession theory, and under that standard,
the evidence was not overwhelming (cf. People v Hylton, 125 AD2d 409, 410 [2d Dept
1986] [holding evidence was legally insufficient to establish constructive possession of a
firearm in a pool hall where multiple people were present], lv denied 69 NY2d 881 [1987];
People v Chandler, 121 AD2d 644, 646 [2d Dept 1986] [holding same for codefendant],
lv denied 68 NY2d 913 [1986]).
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is for the trier of the facts. And that choice is to be honored unless unsupported, as a matter
of law” (People v Leonti, 18 NY2d 384, 390 [1966]).
Since there was no overwhelming evidence of guilt, the analysis ends here because
an error cannot be harmless absent such proof. However, if we proceed to the second prong,
the harmful effect on the verdict is obvious. Still, the majority announces, without
explanation, that there is no significant probability that the jury would have acquitted
defendant without the FST DNA evidence (see majority mem at 2). This conclusion
disregards the impact of the FST DNA evidence in a case without any eyewitness to
defendant’s alleged possession and where the prosecution had no evidence of defendant’s
fingerprints or blood on the gun.
As for the other DNA evidence, the criminalist testified that, based on skin cell DNA
testing of the gun’s trigger mechanism, she could not exclude defendant as one of three
possible contributors, but he was not the major contributor, meaning he was not the person
whose DNA was present in amounts larger than the other two potential contributors. The
prosecutor did not present DNA evidence of the attackers, leaving open the possibility that
any of them could have contributed to the mixture obtained from the gun. Further, the gun
was found on a shelf where several men were in close proximity as the chaotic, violent
episode unfolded. To overcome the fact that the evidence easily suggested that any one of
the attackers may have placed or dropped the gun on the shelf, the prosecutor emphasized
for the jury the FST-derived DNA profile. Thus, the FST DNA results, presented
rhetorically as a 4.57-million-to-one ratio that defendant’s DNA was on the gun,
transformed a thin case of unlawful possession based on supposition and inferences into a
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scientifically supported guilty verdict against defendant. With those numbers, how likely
is it that a reasonable juror would find that defendant’s DNA was not on the gun? It defies
logic to conclude, as the majority apparently does, that the jury could ignore that this
evidence left only an infinitesimally small likelihood that the DNA belonged to someone
else.
Thus, I dissent from the majority’s unsupported, terse holding that the error was
harmless because it ignores the record before us and is contrary to our consistent
application of the harmless error doctrine.
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges Garcia, Singas and
Cannataro concur. Judge Rivera dissents in an opinion, in which Judges Wilson and
Troutman concur.
Decided April 26, 2022
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