1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK,

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COURT OF APPEALS

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STATE OF NEW YORK

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---------------------------------------THE PEOPLE OF THE STATE OF NEW YORK,

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Respondent,

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-against6

NO. 2

LEVAN EASLEY,

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Appellant.

---------------------------------------20 Eagle Street

Albany, New York

March 15, 2022

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Before:

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CHIEF JUDGE JANET DIFIORE

ASSOCIATE JUDGE JENNY RIVERA

ASSOCIATE JUDGE MICHAEL J. GARCIA

ASSOCIATE JUDGE ROWAN D. WILSON

ASSOCIATE JUDGE MADELINE SINGAS

ASSOCIATE JUDGE ANTHONY CANNATARO

ASSOCIATE JUDGE SHIRLEY TROUTMAN

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Appearances:

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DAVID FITZMAURICE, ESQ.

APPELLATE ADVOCATES

Attorney for Appellant

111 John Street

9th Floor

New York, NY 10038

WILLIAM H. BRANIGAN, ADA

QUEENS COUNTY DISTRICT ATTORNEY'S OFFICE

Attorney for Respondent

125-01 Queens Boulevard

Kew Gardens, NY 11415

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Karen Schiffmiller

Official Court Transcriber

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CHIEF JUDGE DIFIORE:

The first appeal on this

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afternoon's calendar is The People of the State of New York

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v. Levan Easley.

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Counsel?

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MR. FITZMAURICE:

Good afternoon, Your Honors.

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David Fitzmaurice on behalf of Mr. Easley, and I'd like to

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reserve two minutes for rebuttal.

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CHIEF JUDGE DIFIORE:

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MR. FITZMAURICE:

You may, sir.

Your Honors, we're here again

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talking about FST, which is the black box technology that

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the OCME was using when faced with mixed DNA samples.

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this court has held three times already, this technology

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cannot be admitted without a Frye hearing.

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really a straightforward example of the most recent time

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this court considered the issue, which was Wortham.

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As

This case is

Just like Wortham, a request for a Frye hearing

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was denied on the merits on the grounds that it was "not

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new" or exciting DNA, and it was just math, and as a

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result, FST's likelihood ratio, the 4.5 million likelihood

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ratio, was admitted into evidence and became the ¨C- really

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the focal point of the People's case, because it was the

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only evidence connecting Mr. Easley to the gun.

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So in virtually every respect, this case is ¨C - -

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is like Wortham.

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that we request the traditional remedy of a new trial, and

The only real difference with Wortham is

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that is because of the second issue presented by this case,

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which is the disclosure failures.

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So you know, the disclosure failures, I suppose,

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you know, the essence of the argument is - - - is really

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the ¨C - - the price of using innovative software in a

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criminal case is disclosure to the defense.

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put simply, is the cost of use.

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disclosure to the defense, because an entire jury trial

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happened, without a single flaw of FST coming to their

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Disclosure,

And here, there was no

attention.

And again, this is FST; this is technology so

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flawed that the OCME abandoned using it several years ago.

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Defendant's request for - ¨C - defense request for

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disclosure was denied, and instead, the trial consisted of

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the FST likelihood ratio itself coming into evidence, as

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well as an analyst from the OCME, who essentially parroted

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this black box figure of 4.5 million likelihood ratio.

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JUDGE WILSON:

So you didn't actually - ¨C - over

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here, sorry.

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specifically the source code until the trial was underway.

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If you'd - ¨C - if the Court had granted your motion then,

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what could you have done with that?

You - - - you didn't actually request

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MR. FITZMAURICE:

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JUDGE WILSON:

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So part of the re - - -

The source code is pretty

difficult to - - - to deci - ¨C - to ¨C - - to work through,

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no?

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MR. FITZMAURICE:

It - - - it absolutely is.

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mean, you know, it ¨C - - it ¨C - - it could require ¨C - - it

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would require an expert probably to read.

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written, lawyers probably can't read it on their own.

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- - - but to go to Your Honor's point, the reason that this

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was requested midtrial was because that's when these issues

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came to a head.

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software, that wasn't disclosed in the course of the

regular discovery period.

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¨C - - and I appreciate - - -

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JUDGE GARCIA:

I mean, I ¨C - - I think that and

But Counsel, you did have the

report in a regular discovery period, right?

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But

This was ¨C - - this was black box

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Although it is

MR. FITZMAURICE:

We eventually got the FS ¨C - -

the FST likelihood ratio, but I think, you know - - -

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JUDGE GARCIA:

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MR. FITZMAURICE:

But that was before trial, or no?

It was before trial, but I

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think the ¨C - - the ¨C - - the kind of ¨C - - the issues with

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that report really came to a head after you had started

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becoming aware that, you know, this wasn't like other DNA

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evidence.

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You know, it's - - JUDGE GARCIA:

Was that as a result of the Daily

News article?

MR. FITZMAURICE:

You know, as a result of the

Daily News article, maybe that's what alerted counsel to

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it, but at the time, you know, this was ¨C - - this was an

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ongoing issue across trial courts in the state.

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think the point is - - -

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JUDGE TROUTMAN:

And I

So are you saying that counsel

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wasn't properly edit ¨C - - educated with respect to the

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science?

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MR. FITZMAURICE:

I ¨C - - I don't ¨C - - I don't

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think counsel could have been properly educated, because

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there was not proper disclosure.

I mean, remember when we

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think about DNA evidence, before FST - - - before FST came

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on the scene, all that the OCME would have been able to do

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was say that it's more likely than not that defend - - -

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you know, that defendant cannot be excluded as a possible

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contributor.

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And now all of a sudden, we're faced with - - -

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with this value, this 4.5 million figure, so you - - - the

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- - - the disclosure that typically accompanies regular DNA

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cases, simply cannot be the disclosure that's sufficient

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here, because here, by - - - by - - - by the OCME¡¯s

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recognition, something happened that wasn't regular DNA.

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You know, a computer came on and did something that the

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humans have - - - have been unable to do prior to then, and

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it only became, you know, evident during the trial, because

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it - - -

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JUDGE TROUTMAN:

And the code that's created - -

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