AD4 order dated March 21, 2014, affirming judgment of conviction. Decision below: 115 AD3d 1257, 982 NYS2d 219. Fahey (AD dissenter), J., granted leave to appeal April 28, 2014. To be argued June 2, 2015.

ISSUES PRESENTED: (1) Sufficiency of the circumstantial evidence of defendant’s identity as the murderer. (2) DA misconduct on summation for mischaracterizing their DNA evidence. (3) Whether defense counsel was ineffective for failing to object to the prosecutorial misconduct. (Assigned counsel: David M. Kaplan, 2129 Five Mile Line Road, Penfield, NY 14526.) To be argued June 2, 2015.

Background Facts: Defendant was convicted of the intentional second-degree murder of a female drug user in a circumstantial case.  The defendant had admitted to having consensual sex with the victim and then leaving her. Three experts testified for the prosecution about the DNA evidence recovered from the victim and from a ligature around her hand.  The experts were clear that none of the recovered DNA “matched” the defendant.  Instead, he was “not excluded” from the mixtures of DNA in either the sperm fraction recovered from the victim or from the hand ligature sample.  No statistical calculation could be made with respect to the likelihood that it was the defendant’s DNA on the ligature sample.  In closing argument, the prosecutor repeatedly stated that the sperm fraction “matched” the defendant’s profile and that the partial profile on the ligature matched the defendant.   She stated,  “[T]he only one that matches of the people that she was with that night, the only one who matches the DNA profile on the ligature is [defendant].”  Although the defense strategy was clearly to identify the weaknesses in the DNA evidence, defense counsel did not object to these comments.  

 

Issue: Was defense counsel ineffective for failing to object to the prosecutor’s comments misrepresenting the expert testimony?

 

Held:   Under the confluence of circumstances here, defense counsel was ineffective.  Judge Rivera, in a 5-1 opinion (Judge Pigott dissented; Judge Fahey took no part) wrote:  “Notwithstanding the known limitations of the DNA evidence and the indeterminate conclusions about the test results drawn by the People’s own experts, the prosecutor in summation misrepresented the DNA analysis, including arguing the evidence established that defendant’s DNA was at the crime scene and on a critical piece of evidence linked to the victim’s murder.  In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results, defense counsel’s failure to object rendered him ineffective.”   

 

CAL Observes: The Court’s decision appears grounded in three circumstances: 1) that the prosecutor affirmatively misrepresented and contradicted the expert testimony; 2) that the misrepresentations involved DNA evidence, which exerts a profound influence on jurors; and 3) that the misrepresentations directly linked the defendant to the murder.  One message for practitioners is to be extra-vigilant where DNA evidence is introduced, particularly with respect to the terms used to characterize the results, for example, “Match” and “established” versus “not excluded.”   Interesting here is the Court’s exclusive reliance on the state constitutional standard for IAC - there is no reference to Strickland at all.   The Court’s shift in its IAC jurisprudence from Strickland’s outcome-determinative prejudice test to the “fairness of the process as a whole” seems complete.  The split for practitioners to be cognizant of, however, appears to concern so-called “single error” versus “multiple error” cases.  The majority here rejected Judge Pigott’s characterization of counsel’s failure to object as a single-error case, which would then have subjected it to review under the demanding test for such IAC claims set forth in Turner and its progeny.  An interesting comparison can be made between Wright and the Court’s decision this same term in People v. Matthew Keschner (decided June 30, 2015), where the Court rejected an IAC claim grounded in counsel’s failure to object to the court’s concededly erroneous accomplice liability charge, in a case where the defendant’s intent was the central issue. The Court in Keschner, unlike in Wright, analyzed the failure to object as a “single error” case, and found that it failed to meet the stringent standard for reversal, although acknowledging that whether the lower court committed reversible error was a "close question."