Chief Judge DiFiore and Judges Garcia, Singas and Cannataro concur. Judge Rivera dissents in part in an opinion, in which Judge Wilson concurs in a separate dissenting opinion.
OPINION JUDGE FAHEY On this appeal, we are first asked to determine whether a police officer’s question to defendant regarding where he lived falls within the “pedigree exception” to the Miranda requirement. We conclude that it does. We nevertheless reverse and remit because no Frye hearing was held (see Frye v. United States, 293 F 1013 [DC Cir 1923]) on the admissibility of statistical evidence generated by the forensic statistical tool (FST) developed by the New York City Office of Chief Medical Examiner (OCME), where it is alleged that defendant was a contributor to a multiple-source DNA profile. I. In May 2011, police officers executed a search warrant at an apartment in Brooklyn. When the officers entered the apartment, defendant and his two young children were inside. Pursuant to police department policy, defendant was handcuffed. While still inside the apartment, a detective asked defendant his name, date of birth, address, height, and weight. Defendant stated that his children’s mother let him stay at the apartment, motioning toward a bed in the living room. No Miranda warnings were given to defendant before those questions were asked. The detective asked defendant for his pedigree information before any contraband was found in the apartment. After defendant’s departure from the apartment, the officers recovered weapons, drugs, and drug paraphernalia from a back bedroom. Defendant and a codefendant were jointly indicted and tried on several counts related to the possession of the firearms and controlled substances. The admissibility of defendant’s statement that he lived at the apartment was the subject of a pretrial suppression hearing. During that hearing, the detective who asked defendant for his “pedigree” information testified that it was the policy of the New York City Police Department to handcuff all adults found inside a location where a search warrant was to be executed, pat them down for weapons, ask them certain questions for identification purposes, and then transport them from the search warrant location to the precinct or central booking. The questions typically included the person’s name, date of birth, address, height, and weight. The detective testified that all adults found inside a searched location were asked those pedigree questions, regardless of whether contraband was ultimately found during the search, and the information was entered into the online booking system. If the individual was later arrested, the police would have pedigree information for the person under arrest. If that person was not later arrested, the information would still be entered into the online booking system in order to document that the individual had been in police custody at one point. The detective further testified that he followed this procedure with defendant. After the hearing, the suppression court ruled that defendant’s statement that he lived in the apartment was admissible because it fell within the scope of the pedigree exception to the Miranda requirement. Before trial, defendant moved to preclude expert testimony regarding the probability that he was a contributor to a multiple-source DNA sample, a statistic derived from the use of the FST, or, in the alternative, for a Frye hearing. The court denied defendant’s motion without a Frye hearing. Defendant also moved for a severance on the eve of trial, which motion was denied. After a jury trial, defendant was convicted on all counts. The Appellate Division affirmed the judgment (160 AD3d 431 [1st Dept 2018]). The Court concluded that the pedigree exception to Miranda applied and that the trial court properly denied defendant’s motion to suppress his statement (see id. at 431). The Appellate Division further concluded that defendant’s severance motion and his motion for a Frye hearing were properly denied (see id. at 432). A Judge of this Court granted defendant leave to appeal (34 NY3d 940 [2019]). We now reverse. II. We first address defendant’s contention that his suppression motion should have been granted because the pedigree exception to Miranda did not apply. A. Miranda warnings (see Miranda v. Arizona, 384 US 436 [1966]) are required before a person in custody is subjected to interrogation by the police (see Rhode Island v. Innis, 446 US 291, 297-302 [1980]; People v. Paulman, 5 NY3d 122, 129 [2005]).1 ” ‘The term “ interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response’ ” (Paulman, 5 NY3d at 129, quoting People v. Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]; see Innis, 446 US at 300-302). Pedigree questions, also sometimes referred to as “booking questions,” typically ask a suspect for identifying information such as name, date of birth, and address. These questions constitute custodial interrogation when they are posed to a suspect in custody (see People v. Rodney, 85 NY2d 289, 292 [1995], citing Pennsylvania v. Muniz, 496 US 582, 601-602 [1990] [plurality opinion]). Nevertheless, we have recognized an exception to Miranda for pedigree questions (see Rodney, 85 NY2d at 292; People v. Rodriquez, 39 NY2d 976, 978 [1976]; People v. Rivera, 26 NY2d 304, 309 [1970]). We explored the genesis and scope of the pedigree exception in Rodney. “The exception derives from the essential purpose of Miranda—to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime, as distinguished from noninvestigative inquiries” (Rodney, 85 NY2d at 292). Pedigree questions are an exception to Miranda—that is, a defendant’s response to such questions is “not suppressible even when obtained in violation of Miranda”—when the questions are ” ‘reasonably related to the police’s administrative concerns’ ” (id. at 292-293, quoting Muniz, 496 US at 601-602). As a threshold matter, pedigree questions must be reasonably related to the police’s administrative concerns for the pedigree exception to Miranda to apply (see id.). The exception may not apply in certain situations, however, even if the question is reasonably related to police administrative concerns. As we stated in Rodney, “the mere claim by the People that an admission was made in response to a question posed solely as an administrative concern does not automatically qualify that admission for the pedigree exception to Miranda or exempt the People from the necessity of supplying a CPL 710.30 notice” (id. at 293). Our decision in Rodney has engendered some confusion regarding when the pedigree exception will apply. In that decision, the Court stated that the pedigree exception would not apply “if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case,” or, stated another way, if the question is “reasonably likely to elicit an incriminating response from [the] defendant” (id. at 293-294). We also stated in Rodney, however, that the pedigree exception applied in that case because the question was “not a disguised attempt at investigatory interrogation” (id. at 294). Rodney requires clarification. We agree with the Second Circuit’s view that “[w]hether the information gathered turns out to be incriminating in some respect does not, by itself, alter the general rule that pedigree questioning” does not require Miranda warnings (Rosa v. McCray, 396 F3d 210, 221 [2d Cir 2005], cert denied 546 US 889 [2005]). If the biographical questions are reasonably related to police administrative concerns, and thereby meet the threshold requirement for the pedigree exception to apply, the fact that the response given by the defendant may ultimately turn out to be incriminating at trial does not alter the analysis. To the extent that Rodney suggested otherwise when it stated that questions “reasonably likely to elicit an incriminating response” would not qualify for the pedigree exception (see id. at 294), we now clarify that simply because a pedigree question elicits an incriminating response does not preclude the application of the pedigree exception to Miranda. We further conclude that the subjective intent of the officer may be relevant but is not dispositive. In other contexts, we have “acknowledge[d] the difficulty, if not futility, of basing the constitutional validity of searches or seizures on judicial determinations of the subjective motivation of police officers” (People v. Garvin, 30 NY3d 174, 186 [2017] [internal quotation marks omitted]). The suppression court may consider the subjective intent of the officer in assessing whether the pedigree exception applies, but the inquiry itself must be objective (see United States v. Doe, 878 F2d 1546, 1551 [1st Cir 1989] ["The question is an objective one; the officer's actual belief or intent is relevant, but it is not conclusive"]). The primary purpose of Miranda is “to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime” (Rodney, 85 NY2d at 292). The police are “entitled to make a reasonable inquiry as to the identity of the person they have taken into custody” (Rivera, 26 NY2d at 309; see Rodney, 85 NY2d at 292 [distinguishing "noninvestigative inquiries"]). As a result, when a defendant challenges the application of the pedigree exception, the proper inquiry for the suppression court is whether the police used pedigree questions as a guise for improperly conducting an investigative inquiry without first providing Miranda warnings. We hold that the pedigree exception will not apply even if the pedigree question is reasonably related to police administrative concerns where, under the circumstances of the case, a reasonable person would conclude based on an objective analysis that the pedigree question was a “disguised attempt at investigatory interrogation” (Rodney, 85 NY2d at 294). Confining the scope of the pedigree exception to police inquiries that are “directed solely to administrative concerns” (id. at 293), but precluding application of the pedigree exception where an objective analysis demonstrates that the police are using the cover of pedigree questions to improperly conduct an investigative inquiry without Miranda warnings, is consistent with both our decision in Rodney and the policies underlying the Miranda rule. B. Applying those principles to the case before us, we conclude that the pedigree exception applied and that defendant’s suppression motion was properly denied. The detective’s testimony during the suppression hearing established the administrative purpose for seeking pedigree information from any adults found at a location where a search warrant is to be executed: the police must know whom they have in custody (see Rivera, 26 NY2d at 309). The People thereby established the threshold basis for the pedigree exception to apply, i.e., the questions were reasonably related to the police’s administrative concerns (see Rodney, 85 NY2d at 292). We further agree with the People that the pedigree questions were not a disguised attempt at investigatory interrogation (see id. at 294). Notably, the police asked defendant his name, date of birth, and where he lived immediately after their entry to the apartment, before the apartment had been searched and before any contraband had been found. The detective further testified that it is standard practice for all adults found at a location where a search warrant is executed to be handcuffed and asked these pedigree questions, regardless of whether contraband is found during the search. That defendant’s response ultimately turned out to be incriminating does not alter the conclusion that, at the time it was asked, the question was not a disguised attempt at investigatory interrogation by the police (see id.). We have previously observed that “[a]sking a suspect for his name and address is neither intended nor likely to elicit information of a criminal nature” (Rivera, 26 NY2d at 309). Although there may be some circumstances where asking a suspect for core identifying information such as name, date of birth, and address will not qualify for the pedigree exception to Miranda, those circumstances will be rare. Here, the question posed to defendant regarding where he lived was reasonably related to the police’s administrative concerns, and, under the circumstances, was not a disguised attempt at investigatory interrogation (see Rodney, 85 NY2d at 292-294). The pedigree exception to Miranda applied, and no Miranda warnings were required before police asked defendant for this information. Defendant’s suppression motion was properly denied. III. We nevertheless hold that reversal is warranted because the court abused its discretion when it denied defendant’s motion for a Frye hearing with respect to the admissibility of evidence derived from the FST on a multiple-source DNA sample. People v. Williams (35 NY3d 24 [2020]) and its companion case, People v. Foster-Bey (35 NY3d 959 [2020]), control here and require reversal.2 There, we held under nearly identical circumstances that the trial courts had abused their discretion as a matter of law in admitting the results of DNA analysis conducted using the FST without first holding a Frye hearing (see Williams, 35 NY3d at 30; Foster-Bey, 35 NY3d at 961). We upheld the defendants’ convictions on those appeals only because we concluded that the error was harmless (see Williams, 35 NY3d at 42-43; Foster-Bey, 35 NY3d at 961). Williams contains our reasoning on the Frye issue with respect to the FST. In Williams, no Frye hearing had yet been held on the FST at the time of the underlying motion practice (see Williams, 35 NY3d at 35). In support of his motion, the defendant in Williams argued that the FST was a proprietary program developed and used only by OCME and had not been subjected to independent outside validation (see id. at 33). The People opposed the motion primarily by arguing that the FST was based on generally accepted mathematical formulas and had been approved by the DNA Subcommittee of the New York State Commission on Forensic Science (see id. at 34-35). We agreed with defendant that the trial court was required to hold a Frye hearing. We observed that the “FST is a proprietary program exclusively developed and controlled by OCME,” and that the approval of the DNA Subcommittee was “no substitute for the scrutiny of the relevant scientific community” (id. at 41). The Court concluded that the defendant’s papers had “adequately showed that OCME’s secretive approach to the FST was inconsistent with quality assurance standards within the relevant scientific community” (id. at 41). In addition, we stated that the FST “should be supported by those with no professional interest in its acceptance” (id. at 42). Williams and Foster-Bey are controlling here, and the People’s attempt to distinguish this case is unavailing. Although low copy number (LCN) DNA evidence was at issue in those cases, we held, independently, that a Frye hearing was required with respect to both LCN DNA evidence and statistical DNA evidence derived from the FST (see id. at 38-42). The People’s contention that the defendant’s motion papers in Williams were more robust than defendant’s motion papers here is without merit (see id. at 41-42). Unlike Williams and Foster-Bey, the error here was not harmless. The statistical DNA evidence derived from use of the FST was the strongest evidence tying defendant to the contraband found in the apartment. The People’s remaining evidence consisted of proof that defendant either lived at or was frequently present at the apartment itself and did not link him directly to the contraband. Moreover, the People emphasized the DNA evidence as proof of defendant’s possession of the contraband. The evidence of defendant’s guilt was not overwhelming without the DNA evidence, and there was a significant probability that the admission of that evidence contributed to the verdict (cf. id. at 42-43). Inasmuch as Supreme Court abused its discretion in failing to hold a Frye hearing, we remit to that court for a Frye hearing. If the court determines, after a Frye hearing, that the DNA evidence derived from the use of the FST is not admissible, defendant is entitled to a new trial. If the court determines after a Frye hearing that the evidence is admissible, defendant may challenge that determination on direct appeal. We respectfully disagree with our dissenting colleague that this remedy is inappropriate or unconstitutional. As Judge Wilson concedes, we have employed a similar remedy on prior occasions (see e.g. People v. Bilal, 27 NY3d 961, 961-962 [2016]; People v. Clermont, 22 NY3d 931, 932-934 [2013]; People v. Hightower, 85 NY2d 988, 990 [1995]; People v. Williamson, 79 NY2d 799, 801 [1991]; People v. Millan, 69 NY2d 514, 521-522 [1987]; People v. Coleman, 56 NY2d 669, 671 [1982]).3 This Court and the intermediate appellate courts are authorized to “take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant…and to protect the rights of the respondent” (CPL 470.20; see CPL 470.40 [1]). Consistent with that directive, we have ordered different corrective actions, including a conditional remand for a hearing by the trial court, based on the legal error at issue and the circumstances presented in each case (see People v. Carmona, 37 NY3d 1016, 1017-1018 [2021]; People Edwards, 95 NY2d 486, 496 [2000]; People v. Serrano, 93 NY2d 73, 78-79 [1999]).4 Here, the error was the trial court’s failure to exercise its gatekeeping role under Frye to determine the admissibility of the evidence generated by the FST. We do not yet know whether the DNA evidence was improperly admitted at trial because a Frye hearing was not held. The appropriate remedy in this case is a remittal to the trial court for a Frye determination. In the absence of that threshold determination, appellate review of the admissibility of the evidence and, concomitantly, whether the evidence was improperly admitted during trial, cannot be performed. We agree with the Appellate Division that the trial court did not abuse its discretion in denying defendant’s motion for a severance. Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this opinion.
