The defendant is charged by Indictment 5364/11 with multiple gunpoint robberies committed in May and June of 2011. The last of these robberies was committed on June 22, 2011. In that case, the defendant and Tijuan Mullings are accused of robbing a gas station in Brooklyn; it is alleged that the defendant pointed a gun at the employee and demanded money, [*2]and that Mullings took six hundred dollars from the cash register.^[FN1] Both men fled in a gray car driven by a third man.^[FN2] Police stopped the car about ten minutes after the robbery and recovered hooded sweatshirts, one of which contained six hundred dollars, from the car. They also found a revolver in the car's center console. Other officers brought the victim to the scene of the arrest, and he identified the defendant and Mullings as the men who had robbed him ten minutes earlier.

Members of the police department swabbed the gun, and sent those swabs to the Forensic Biology Department at the Office of Chief Medical Examiner (OCME) for DNA testing. Testing of the swabs revealed a mixture of DNA from at least two people. The swabs were compared with DNA samples taken from both defendants. Mullings was excluded as a contributor. The defendant, on the other hand, could not be excluded as a contributor to the mixture. OCME personnel used a computer program called the Forensic Statistical Tool (FST) to calculate likelihood probability ratios, and concluded that it was "3.12 million times more probable [that] the sample originated from [the defendant] and one unknown, unrelated person than if it originated from two unknown, unrelated persons." Accordingly, OCME concluded that there was "very strong support" the defendant contributed to the DNA mixture on the gun.

The defendant moves to preclude the People from "calling an expert witness to testify regarding any conclusion reached by the use of OCME's Forensic Statistical Tool." In the alternative, the defense seeks a hearing pursuant to Frye v. United States, 293 F. 1013 (DC Cir. 1923) to determine the reliability of any testimony about the use of the Forensic Statistical Tool. The People oppose. For the reasons that follow, the defendant's motion is denied.

Expert testimony based on scientific principles or procedures is admissible when that principle or procedure, when properly performed, has "gained general acceptance" in its particular field. Frye v. United States, 293 F. at 1014. See also People v. Wesley, 83 NY2d 417 (1994). A Frye hearing is necessary only when the proposed expert testimony involves "novel or experimental matters." People v. Byrd, 51 AD3d 267, 274 (1st Dep't 2008) (citations omitted). Thus, as long as the technique itself is generally accepted, a Frye hearing is not necessary even if the application of the technique is unique or modified. People v. Garcia, 39 Misc 3d 482, (Sup. Ct. Bronx County 2013, Iacovetta, J.). Moreover, the Frye test addresses only the acceptance of the technique at issue, not whether the technique was correctly performed. See People v. Wesley, supra; People v. Tyrone Wortham, Ind. No. 3148/2011 (Supreme Court, New York County, September 6, 2012, Ward, J.).

There is no question that expert testimony on the science of DNA is admissible in the courts of this state. People v. Wesley, supra. Moreover, DNA experts routinely testify about statistical probability studies at trial. See Id., People v. Megnath, 27 Misc 3d 405(Sup. Ct. Queens Cty, Hanophy, J.) At issue in this case is whether a computer program used to calculate the probabilities that a suspect contributed DNA to a particular mixture — the Forensic Statistical Tool — constitutes a novel or experimental technique. It does not. In so ruling, this Court is persuaded by the thoughtful and well reasoned opinions of other courts on this subject. People [*3]v. Whetstone, Ind. No. 5728/12 (Sup. Ct. NY County, June 17, 2013, White, J.); People v. Foster-Bey, Ind. No. 9239/10 (Sup. Ct. Kings Co., May 22, 2013, Goldberg, J.); People v. Bowens, Ind. No. 336/11 (Sup. Ct. Richmond Cty, April 29, 2013, Rooney, J.); People v. Caballero, Ind. No. 10278/11 (Supreme Court, Queens County, April 15, 2013, Knopf, J.); People v. Brissett, Ind. No. 847/10 (Supreme Court, Bronx County, February 25, 2013, Webber, J.); People v. Garcia, supra; People v. Wortham, supra.

As those courts observed, while OCME developed the FST, the technique used to develop it is not new or experimental. On the contrary, the FST is premised on well established principles of mathematics and statistical analysis. The likelihood ratio — which is what the FST computes —is the ratio of two probabilities of the same event occurring under different hypotheses. Likelihood ratios are used to identify human remains, to establish paternity, and in kinship studies. See People v. Brissett, supra; People v. Wortham, supra. In the context of this case, the probability to be determined is the probability that a subject is one of the contributors to a DNA mixture versus the probability that two unknown people contributed to the mixture. The FST is simply a method to make those calculations. It is, moreover, a method that has been approved by the New York State Commission on Forensic Science. People v. Whetstone, supra; People v. Caballero, supra; People v. Brissett, supra; People v. Garcia, supra;

Of course, as with any evidence, defense counsel will be free to test the accuracy of the FST at trial through cross-examination and upon an appropriate showing, through testimony of defense witnesses. There is, however, no legal basis to order a Frye hearing.

This opinion constitutes the Decision and Order of the Court.

________________________________

ANN DONNELLY

JSC

DATED:Brooklyn, New York

June 13, 2013