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Split Court of Appeals upholds weapon conviction, saying error was harmless

In a 4-3 decision, the New York State Court of Appeals has upheld a weapon conviction, despite a ruling that the trial judge should not had admitted DNA evidence without a hearing.

“The evidence of defendant’s guilt was overwhelming,” the majority wrote in the decision released Tuesday.

Defendant Levan Easley, 30, was convicted in July 2013 in state Supreme Court in Queens of second-degree criminal possession of a weapon and two counts of third-degree criminal possession of a weapon for a gun he placed on a store shelf.

Video footage from a security camera inside the store showed a group of men attacking Easley. The majority concluded that the video showed Easley place the gun on the shelf.

Voting in the majority were: Chief Judge Janet DiFiore, and judges Michael Garcia, Madeline Singas and Anthony Cannataro. Judge Jenny Rivera dissented and judges Rowan Wilson and Shirley Troutman concurred.

In a dissenting opinion, Judge Jenny Rivera wrote that the Court of Appeals agreed unanimously that “the trial court abused its discretion as a matter of law in admitting the Forensic Statistical Tool (FST)-derived DNA results without first holding a Frye hearing.”

The FST DNA test is a controversial method of using computer software to determine the likelihood someone’s DNA is present in a complex mixture containing multiple individuals’ DNA.

“We part company on the impact of that admission on the jury’s verdict and disagree with the majority that the error was harmless,” Rivera wrote.

The evidence of Easley’s guilt of criminal possession of a weapon “was not overwhelming and the FST DNA evidence was the strongest evidence of possession against him.”

“There was a significant probability that the error infected the verdict and, accordingly, was not harmless,” she wrote.

Shortly after Easley and another person entered the store, several individuals began shouting and attacking them, according to Rivera’s dissent.

“The assault was recorded on the store’s video camera, which captured several men tackling, pushing, and punching defendant as they pinned him against the shelves in front of the deli counter,” she wrote.

“It also appears that … one of them attempted to stab and slash defendant several times,” she wrote.

A store employee called 911 and police arrived within minutes.

“After isolating defendant … one of the officers pulled a gun from between two boxes on one of the shelves where the men had attacked defendant,” Rivera wrote.

The officer testified that she believed that Easley had the gun because he was dressed in black, which was consistent with the description of the person described in the 911 call.

“The evidence also showed that at least two other men were also dressed in black, including the man who appeared to be stabbing defendant in the video recording. The officers arrested defendant, who was visibly bleeding and had suffered a cut to his hand and head which required medical attention,” Rivera wrote.

“No eyewitness observed defendant in possession of the gun at any time in the store, and there were no fingerprints or blood on the weapon,” Rivera wrote.

For physical proof, the prosecutor relied heavily on the FST-derived DNA results. According to a criminalist called by the prosecution, Easley was not a major contributor to the DNA on the gun, although he could not be excluded as one of three possible contributors.

The criminalist concluded that “there is very strong support that Levan Easley and two unknown unrelated persons contributed to this mixture rather than three unknown unrelated persons,” Rivera wrote.

In two other cases the Court of Appeals ruled that it was error to admit FST-derived DNA results without first holding a Frye hearing to determine whether the methodology had been accepted as reliable by the scientific community.

The Court of Appeals unanimously agreed that a hearing should have been held.

“The only question remaining is whether the error in defendant’s case was harmless,” Rivera wrote.

“The erroneous admission of the FST DNA results was not harmless. The evidence of defendant’s criminal possession of the gun was not overwhelming. There was no eyewitness who saw defendant in possession of the gun, no admission of his guilt, and no video recording depicting him holding the gun at any time,” Rivera wrote.

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