By Indictment No. 71807-21, defendant is charged with Murder in the Second Degree, and two counts of Criminal Possession of a Weapon in the Second Degree. The People allege that defendant shot and killed his brother, Daniel Biggs (hereafter referred to as "decedent"), on May 2, 2021, near the corner of Putnam and Patchen Avenues in Kings County. The People seek to introduce in evidence expert testimony concerning firearms operability and toolmarks and microscopic comparisons of shell casings from three shootings and a recovered firearm. The defense has moved to preclude the expert evidence of firearms and toolmarks (FATM) identification and microscopic comparisons; limit the scope of the testimony; or in the alternative, seeks a hearing pursuant to Frye v United States, 293 F 1013 (DC Cir 1923).

Upon review of defendant's motion to preclude, the People's affirmation in opposition of the motion, defendant's reply and the People's supplemental submission, the court grants a Frye hearing.

As part of the homicide investigation, seventeen 9mm caliber shell casings were recovered from two locations, one block from each other, at the scene of the crime. A criminalist with the NYPD Firearms Analysis Section conducted a microscopic analysis and concluded that all seventeen shell casings shared microscopic characteristics. A second NYPD firearms expert microscopically analyzed the shell casings and concluded they were discharged from the same gun.

The People seek to offer as evidence expert testimony concerning firearms and toolmarks (FATM) identification and microscopic comparisons for the homicide and two shootings that occurred just prior to the homicide. On March 26, 2021, a firearm was discharged near 210 Stuyvesant Avenue in Brooklyn. The defendant's sister identified the defendant as the shooter from video surveillance. No one was injured. The NYPD recovered sixteen 9mm caliber shell casings. These shell casings were later microscopically analyzed and determined to have shared microscopic characteristics and to have been fired from the same gun as the ballistics evidence recovered in the May 2, 2021, homicide. The defendant has not been charged with this shooting. A month later, on April 23, 2021, a firearm was discharged near 770 Putman Avenue in [*2]Brooklyn. The NYPD recovered eleven 9mm caliber shell casings at that location, and another 9mm caliber shell casing a half a block away. NYPD officers viewed a cellphone video that depicted a male riding a bicycle and discharging a firearm at that location. That cellphone video no longer exists, and defendant has not been identified as the shooter. However, the shell casings were later microscopically analyzed and determined to have shared microscopic characteristics and to have been fired from the same gun as the ballistics evidence recovered in the May 2, 2021, homicide and the March 26, 2021, shooting.

In a decision dated March 28, 2025, this court granted the People's Molineaux application to offer evidence on the People's case-in-chief the March 26, 2021, incident, but denied the People's application offer the April 23, 2021, incident, as the defendant was never identified as the shooter, and the video of the incident no longer exists.

The testing results of all the shell casings evidence was entered into the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)'s National Integrated Ballistic Information Network (NIBIN) which compares recovered ballistic evidence from crimes involving the discharge of firearms. The NIBIN confirmed the NYPD findings that the shell casings from these three incidents indicate that the same firearm was used.

In September 2025, the prosecution received further notification from the NIBIN that a shooting had occurred on September 12, 2025, in Binghamton, New York and that a 9mm caliber firearm and eight 9mm caliber shell casings were recovered. The NIBIN report indicated that the shell casings recovered from the September 12, 2025, shooting matched the ballistics evidence from the March, April and May 2021 incidents and that the firearm was potentially the same firearm used. A named suspect has been arrested and charged with Attempted Murder, among other charges, for the 2025 shooting. The NYPD is making arrangements to take custody of the firearm and conduct further microscopic testing to confirm the NIBIN report.

To determine whether expert testimony is admissible, New York courts follow the long-recognized framework set forth in Frye v United States, 293 F. 1013 (1923) (see also People v Wesley, 83 NY2d 417, 422 [1994]; State v Richard S., 158 AD3d 710, 711 [2d Dept 2018]). That is, "[e]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained 'general acceptance' in its specified field" (People v Wesley, 83 NY2d at 422, quoting Frye v Unted States, 293 F. at 1014; State v Richard S., 158 AD3d 710, 711). If acceptance cannot be established by judicial notice, legal writings, or judicial opinion, a trial court should conduct a hearing to determine the admissibility of such evidence (see Prince, Richardson On Evidence, § 7-311 at 476 [Farrell 11th ed.]). In determining the reliability of novel scientific evidence at the hearing, the court must consider "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (Parker v Mobil Oil Corp., 7 NY3d 434, 446 [2006], quoting People v Wesley, 83 NY2d at 422). The reliability test is whether a subject procedure is generally accepted, not unanimously indorsed, by the scientific community (People v Middleton, 54 NY2d 42, 49 [1981]). The burden lies with the party seeking admission of the testimony to offer evidence of its general acceptance within the relevant scientific community (State v Richard S., 158 AD3d at 711; Zito v Zabarsky, 28 AD3d 42, 44 [2d Dept 2006]).

The necessity for courts to conduct Frye hearings, however, is not limited to scientific principles or procedures that are novel or experimental (People v Williams, 35 NY3d 24, 43 [2020]). Rather, the Court of Appeals in People v. Williams, reminded trial courts that the [*3]responsibility to ensure that only scientific evidence that is generally accepted in the relevant scientific community be admitted extends to "previously accepted techniques . . . that may have become common over time" (Id.). The Court opined:

Familiarity does not always breed accuracy, and our Frye jurisprudence accounts for the fact that evolving views and opinions in a scientific community may occasionally require the scrutiny of a Frye hearing with respect to a familiar technique. There is no absolute rule as to when a Frye hearing should or should not be granted, and courts should be guided by the current state of scientific knowledge and opinion in making such determinations.

[R]ecent questioning of previously accepted techniques related to hair comparisons, fire origin, comparative bullet lead analysis, bite mark matching, and bloodstain-pattern analysis illustrates that point; all of those analyses have long been accepted within their relevant scientific communities but recently have come into varying degrees of question (internal citation omitted).

The Williams Court held that the trial court erred in failing to order a Frye hearing to determine the general acceptance of the proprietary software then in use by the Office of the Chief Medical Examiner (OCME) to analyze complex DNA mixtures in small quantities (People v Williams, 35 NY3d 24, 30). One rationale cited by the Court, in finding that the trial court had abused its discretion, was the paucity of Frye hearings that had been conducted— in fact at the time of the original motion before the trial judge, only one Frye hearing had been conducted, which the trial court had then relied upon (Id.at 35). However, the Court concluded that the analysis following that Frye hearing "did not adequately assess" whether OCME's testing was, in fact, generally accepted within the relevant scientific community (Id. at 39) The Court intimated that the ten subsequent trial court decisions denying Frye hearings based upon that same case were equally flawed, concluding: "[t]he repetition of a single, questionable judicial determination does not strengthen or add validity to such ruling, and it defies logic that an error, because it is oft-repeated, somehow is made right" (Id. at 39). The Court warned that the growing list of scientific techniques long-used in courts throughout the United States, but now called into question, as well as "the lessons of this case, reinforce the importance of judicial caution in the admission of developing scientific evidence in proceedings that may result in the deprivation or limitation of liberty" (Id. at 43-44).

Here, the court finds that the defense has raised a question of fact concerning the general acceptance of firearm and toolmark methodologies. Starting with the National Academy of Science (NAS) Ballistics Imaging Report from 2008 and the follow-up, 2009 NAS report, the defense details numerous scientific reports that have called into question both the reliability and general acceptance of FATM expert testimony such as: the President's Council of Advisors on Science and Technology Report (PCAST) from 2016; the 2021 Ames II Study; the 2024 firearms-comparison studies "Cuellar, M. et. al, Methodological Problems in Every Black Box Study of Forensic Firearm Comparisons, Law, Probability and Risk, 1-23 (2024) (Defense Brief at 18-31).

As in Williams, it is undisputed that there has only been one Frye hearing in New York State on FATM expert testimony in 2020 after which Judge April Newbauer limited the testimony of the firearms expert to "class characteristics" only (People v. Ross, 68 Misc 3d 899 [*4][Sup Ct. Bronx County 2020][Newbauer, J]). Judge Newbauer held that the examiner may not opine further as to individual characteristic comparisons (of the type that the People are seeking to use here in its case against defendant Biggs), since "the reliability of that practice in the relevant scientific community as a whole has not been established" (Id. at 918).

Further, the defense cites numerous very recent decisions of federal and state courts that have conducted Daubert or the equivalent evidentiary hearings and have similarly called into question either the reliability or general acceptance of FATM expert testimony: United States v. Tibbs, 2019 DC Super LEXIS 9 (D.C. Super Ct. 2019); United States v. Adams, 444 F. Supp. 3d 1248 (D. Or. 2020); United States v. Briscoe, 703 F. Supp 3d 1288 (D.N.M. 2023); United States v. Cloud, 576 F. Supp. 3d 827 (E.D. Wash. 2021); United States v. Shipp, 422 F. Supp. 3d 762 (E.D.NY 2019); Abruquah v. State, 483 Md. 637 (Md. 2023); State v. Adams, 340 Or. App. 661 (2025); People v. Kimberley, No. 22CR 0293201 (Ill. Cir. Ct. Cook County 2025).

In response, the People raise many factual questions about the validity of the studies cited by the defense and cite other studies, such as the 2021 Department of Justice Report, that sought to undermine the 2016 PCAST report. The People spelled out the stringent international accreditation standards met by the NYPD Firearms Analysis Section and the protocols of the Association of Firearms and Toolmarks Examiners. The People further argue that Judge Newbauer's conclusion was wrongly decided based upon an analysis that violated Frye, that discredited aspects of the Bronx District Attorney's case "without explanation" and that misidentified the relevant scientific community.

As to the other cases cited by the defense, the People call out these cases as "wrongly decided outliers, against the current case law on the subject in New York and not binding on this Court," but can point to just one unpublished federal case that denied a defendant's motion to limit or preclude ballistics or toolmark comparison evidence following a Daubert hearing (United States v. Rhodes and Jones, [Case No. 3:19-cr-00333-MC] [McShane, J.] [USDC Oregon, January 17, 2023]) (People's Brief, Exhibit 4). The list of published federal cases cited by the prosecution that permitted this type of evidence without a Daubert hearing predate the cases cited by the defense in which Daubert or evidentiary hearings were conducted resulting in the testimony limited or excluded (see People's response brief p. 64- 67).

Given the recent groundswell of Daubert hearings supporting the defense position, and the clear directive from the Court of Appeals in Williams, this Court is not persuaded by the New York State trial court decisions, nor does the Court consider itself bound by the Second and Fourth Department Appellate Division decisions cited by the People, that have denied Frye hearings based primarily on the argument that, "historically," courts have found there has been a "long-standing and widespread acceptance" of this science (People v. Johnson, 192 AD3d 1516, 1523 (4th Dept 2021); see also People v. Frederick, 186 AD3d 1398 (2nd Dept 2020); People v. Burns, 221 AD3d 1408 (4th Dept 2023); People v. Bostic, 217 AD3d 678 (2nd Dept 2023).^[FN1] That [*5]might have been the case, but the defense has now made a threshold showing that questions this understanding and demonstrates that this "historical acceptance" has not been sufficiently fully litigated in full-blown adversarial hearings. The Court of Appeals in Williams commands this Court do just that.

Accordingly, it is hereby:

ORDERED, that defendant's request for a Frye hearing is GRANTED.

The forgoing constitutes the Decision and Order of the Court.