Defendant Felipe Campos moves for an order: Suppressing all testimony and evidence concerning DNA at the trial in this case on the grounds laid out in the accompanying affirmation of the defense DNA expert, Tiffany Ann Roy, B.S., J.D., M.S.F.S. in that the alleged scientific evidence that the prosecution will seek to admit against the defendant are not generally accepted as reliable in the DNA scientific community and/or has lost reliability due to further advances in the science of DNA such that it cannot or should not be reliable upon in determining the guilty or non-guilt of this defendant in accordance with, inter alia, Frye v. United States, 293 F. 1013 [D.C. Cir. 1923], People v. Wesley, 83 NY2d 417 [1994], and its progeny People v. Williams, 35 NY3d 24 [NY 2020]. The following papers were read: Notice of Motion — Affirmation of Orrin A. Fullerton, Esq. Annexed Exhibits 1-3 Kelle K. Grimmer, Esq.’s Affirmation in Response — Annexed Exhibits 4-5 DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the defendant’s motion to suppress all testimony and evidence concerning DNA is denied. All other requested relief, including a request for a Frye hearing, is denied. The defendant in this murder case seeks to suppress evidence of DNA testing conducted in 2003. Defendant’s DNA expert states, “My primary concerns regarding the samples in this case revolve around the DNA testing carried out in 2003 and its suitability for interpretation under the present, much more stringent standards” (Affidavit of Tiffany A. Roy, MSFS, JD, ABC-MB, paragraph 9). While the Court recognizes the expert’s “concerns”, those concerns actually relate to the weight of the DNA evidence, not to its admissibility. It is uncontroverted that the DNA testing performed by the New York State Police Forensic Investigation Center in 2003 was generally accepted by the scientific community at the time of the testing. In fact, the type of testing utilized — PCR DNA testing — has been generally accepted by the scientific community since the 1990′s and is still generally accepted today (see People v. Hamilton, 255 AD2d 693 [3rd Dept., 1998]; People v. Palumbo, 162 Misc.2d 650 [1994]; People v. John, 27 NY3d 294 [2016]). Accordingly, a Frye hearing is not warranted and holding one under these circumstances would be inappropriate and contrary to well-established law. Certainly, there have been advances in the field of DNA testing since 2003, as there have been in many scientific areas, however, those advances do not invalidate tests conducted in accordance with the standards and technology existing at the time of testing. In short, the Court cannot apply 2022 standards to testing completed in 2003. The fact that the DNA sample has degraded does not require that the 2003 tests be suppressed. The defendant may, of course, choose to present evidence at the time of trial of the advances in the DNA testing field since 2003. The Court notes that the defendant’s reliance upon People v. Williams, 35 NY3d 24 [2020] is misplaced. The Williams case involved low copy number (LCN) DNA evidence and the use of the forensic statistical tool (FST) of the New York City Office of Chief Medical Examiner (OCME). In the matter sub judice, neither LCN DNA evidence nor the FST was utilized. Thus, the basis for the granting of a Frye hearing that existed in Williams does not exist in the instant matter (see also, People v. Wortham, 37 NY3d 407 [2021]). While the Court appreciates the zealous advocacy of counsel for submitting the instant motion, it is important to recognize that the decision in Williams is limited in scope and does not open the proverbial Pandora’s box to revisit well established scientific principles every time there is a scientific advancement. The aforesaid constitutes the Decision and Order of the Court. Dated: March 15, 2022
