AD2 order dated November 9, 2011, modifying judgment of conviction by reducing the sentence and otherwise affirming. Decision below: 89 AD3d 868, 932 NYS2d 149. Pigott, J., granted leave March 29, 2013.

ISSUES PRESENTED: (1) The trial court’s denial, without a Frye hearing, of the defendant’s application to strike the testimony of the People’s forensic pathologist regarding the cause of the victim’s death. (2) The court’s refusal to charge on intoxication.

Issue before the Court: The correctness of three trial court rulings, all concerning evidence of the length of time the defendant had the victim in a chokehold (from which he subsequently died), an important issue at trial.

Held: (1) It was not error for the doctor who conducted the autopsy to testify that, in his opinion, the victim’s neck had been compressed for “something in the range of 2,3,4 minutes.”  As his testimony was based on his personal experience and not scientific principle, the evidence was not barred by Frye.   (2) It was improper for the court to preclude the defense from refreshing its own witness’s recollection with a prior statement that the part she saw lasted for “maybe 6 to 10 seconds”, evidence more favorable than her trial testimony that it “could have” lasted “ a minute or so” and “I don’t know.”  To preclude the jury from hearing the earlier more favorable answer was “simply unfair” and had not reached the point of being impeachment.  The error was not harmless.  (3) The Court held it unnecessary to thus decide whether it was error to preclude the defense from calling a psychology professor to give testimony regarding the accuracy of estimates of duration.  However, anticipating that the question may arise at the retrial, the Court discusses LeGrand, its scope and limitations, and the way the first trial unfolded as relevant considerations for the trial court on remand.