The People v. Howard S. Wright

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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 109

The People &c.,

Respondent,

v.

Howard S. Wright,

Appellant.

David M. Kaplan, for appellant.

Geoffrey Kaeuper, for respondent.

RIVERA, J.:

We are presented in this appeal with a confluence of

prosecutorial misconduct committed during closing argument, and a

series of critical lapses by defense counsel when faced with the

prosecutor's obvious transgressions from the leeway generally

afforded attorneys during summation. As the record establishes,

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defense counsel failed to object, time and again, when the

prosecutor repeatedly misrepresented to the jury critical DNA

evidence as proof of defendant's guilt, in contradiction of the

People's expert testimony. We conclude defense counsel was

ineffective, and, on the record before us, defendant was denied a

fair trial as a result. Therefore, the order of the Appellate

Division should be reversed.

I.

Defendant Howard Wright was tried and convicted of

murder in the second degree. The People's case was

circumstantial because there were no eyewitnesses to the crime

and no forensic evidence that clearly established defendant's

guilt. Other than testimony that placed defendant and others in

the victim's company around the time of her death, and

defendant's statement that he engaged in consensual sex with the

victim, the People had no evidence that linked her to defendant.

To meet the People's burden of proof, the prosecutor relied

heavily on the results of DNA testing to connect defendant to the

murder. However, the DNA analysis was also circumstantial

because it did not "match" defendant's DNA to the DNA collected

at the crime scene. Instead, the test only indicated that

defendant could not be excluded from the pool of male DNA

contributors, and the expert testimony provided no statistical

comparison to measure the significance of those results.

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Notwithstanding the known limitations of this 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.

To understand the nature of the prosecutor's actions

and the lack of any reasonable strategy for leaving the

prosecutor's statements unchallenged, we begin our consideration

of defendant's appeal with a review of the relevant trial

evidence and the prosecutor's closing argument. Our legal

analysis then focuses on the details of the summation and defense

counsel's unexplained silence.

II.

A. Testimony Connecting Defendant to the Victim

Defendant was tried in 2007 for the murder of the

victim, a female drug user, who was found dead on a Rochester

street on November 29, 1995. Defendant had been seen in the

victim's company, in the hours before her murder, in the vicinity

of a building associated with drug use.

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According to a witness who knew defendant and had seen

the victim "around" on prior occasions, she observed the victim

in a car with three men, whom she identified as defendant,

Christopher Gifford, and Keith Evans, between 8:00 and 9:00 p.m.

on November 28, 1995. She saw the car pull up to a building on

North Clinton Avenue and drive away after Evans exited the car.

She then saw defendant and Gifford the following morning, between

5:00 and 6:00 a.m., as they exited through the back of the same

building. This time she did not see the victim. Shortly after

defendant walked out, she saw the victim's car pull out from the

back of the building and drive past. Although she testified she

did not see who was in the car, she assumed that it was defendant

and Gifford because they were the only persons who exited through

the back of the building to where she had observed the car was

parked.

Evans testified and confirmed that he had been with the

victim and defendant around the time of the murder. Evans, a

drug dealer at the time, was a regular associate of defendant,

and also knew the victim. He testified that, on November 28, he

went to a building on Chamberlain Avenue, to sell cocaine. He

found the victim with her baby, defendant, Gifford, and two other

individuals, identified as brothers Freddy and Christopher

Walker, in one of the apartments. He claimed that defendant and

Gifford had sold drugs to the victim that day. At some point the

victim left in her car and, between 4:00 and 5:00 p.m., returned

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without the baby. She again left the apartment, this time with

Freddy, returning 45 to 60 minutes later. Between 5:00 and 7:30

p.m., the victim drove Evans, defendant, and Gifford to a tavern,

where she and Evans spent approximately 15 minutes inside the

tavern before she drove to the North Clinton Avenue building and

dropped off Evans, somewhere between 7:30 and 8:00 p.m. She then

drove off with defendant and Gifford.

Evans further testified that, over the course of the

next several hours, he saw defendant and Gifford together, but

without the victim. Evans claimed that between 11:00 and 11:45

p.m. he was outside on the street near the North Clinton Avenue

building, on his way to make a telephone call to the police on an

unrelated matter, when he saw defendant and Gifford walking by.1

Evans also testified that he saw the victim's car in the alley

next to the building where he had just seen defendant and

Gifford.

Around 2:00 a.m., on November 29, he saw defendant and

Gifford drive past in the car. Evans next saw defendant and

Gifford a few hours later, between 4:00 and 5:00 a.m., when he

went inside one of the apartments in the North Clinton Avenue

building looking for them believing they had taken his food. He

found them sleeping in the apartment, and, after he woke them up,

they exited the building and drove away in the victim's car.

1

The fact of the call, but not the time, was confirmed by a

police officer who testified that he received a dispatch at 12:40

a.m. and spoke with Evans a few minutes later.

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Evans testified that he saw defendant a few days after

he saw a newspaper reference to the victim. As they walked on

the street defendant pointed out the victim's car, which was

parked where the police subsequently found it. When Evans asked

defendant about the victim, defendant told Evans that he and

Gifford engaged in sex with her. Afterwards, defendant and

Gifford dropped her off, and then Gifford dropped off defendant.

Later Gifford told defendant where he left the victim's car.

Evans described the location where the victim was dropped off as

where "people that were doing the same thing they were doing."

On cross-examination, Evans suggested that she had been left with

others who were "strung out on drugs."

B. Discovery and Examination of the Victim's Body and Car

At approximately 9:00 a.m. on November 29, 1995, the

victim was found lying in the driveway of a house, clothed but

barefoot, with her hands bound by a shoelace behind her back, and

with a shoelace tied around her neck as a ligature. A sock was

found inside her clothing near her buttocks.

The police found the victim's car on November 30, 1995,

near North Clinton Avenue, and discovered a pink sock inside,

along with various baby items. The victim's hairs were found in

the car as well as hair samples from both white and black

individuals.

The medical examiner testified that the victim died as

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a result of asphyxia from ligature strangulation, with the

approximate time of death between 11:30 p.m., on November 28, and

3:30 a.m the day she was discovered. The body had abrasions

under the chin and around the neck. The medical examiner also

found two dark-colored hairs near the victim's external

genitalia, later identified not to be the victim's.

Various physical evidence, including the hand and neck

shoelace ligatures, vaginal swabs taken from the victim, a sperm

sample taken on her panties, the two hairs, and an additional

hair from the victim's mouth, were sent to an independent

laboratory for further analysis. The results of the analysis

were presented at trial through expert testimony.

C. Forensic and DNA Evidence

The People presented testimony of three forensic

experts to discuss the DNA evidence collected during the police

investigation. The evidence included samples from the crime

scene and the victim, and buccal swabs from the victim's husband,

defendant, Evans, Gifford, and Christopher and Fred Walker.

One expert from the Monroe County Public Safety

Laboratory, explained DNA and DNA profiles, how DNA profiles are

developed, and how DNA testing and analysis are used to compare

an individual's DNA profile with the DNA profile of evidence

obtained at a crime scene. She explained that because less than

one percent of human DNA is different, DNA analysis looks at

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specific regions of DNA to identify where the DNA is different

between individuals. In order to make comparisons, the analyst

studies the different locations on DNA profiles to determine if

the individual is a possible donor to the DNA from the crime

scene. If there are differences on the locations, then the

individual is excluded from the possible contributors to the DNA.

She testified that in 1995 when she was an Assistant

Forensic Chemist for Monroe County, she examined swabs taken from

the victim, which contained semen and sperm. Then in 2006, in

her position as a Forensic Biologist, she examined ligatures from

the victim's hands and neck. The DNA profile from the neck

ligature only matched the victim. The DNA from the hand ligature

was so low-level that she did not report that data. Instead, she

sent the swabs from the ligatures to a private laboratory for

additional testing, specifically Y chromosome or YSTR DNA

testing, and mitochondrial DNA testing. She also sent hairs

collected from the victim's body, DNA extracts from the vaginal

swab and the victim's panties, and the DNA samples from the

victim, her husband, Evans, and the Walker brothers.

On cross-examination, the expert testified that the DNA

profiles from the hand and neck ligatures were mixtures of at

least two contributors, but that the DNA was of such a low level,

meaning that there was a small amount of DNA or that it was

degraded, that she was unable to report back any comparisons.

Given the quality of the DNA, she could not state whether there

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were more than two contributors. She further explained the term

"transference" as the process by which DNA transfers from one

object to another, or from one person to an object.

She explained that a "match" results when the profiles

are the same at all the locations tested on the DNA, after

comparing the DNA crime scene profiles to an individual's DNA

profile. In contrast, the term "not excluded" is applied to

mixtures of DNA. She clarified that when the result establishes

that an individual is "not excluded" this means "the data is of

such quality that it is not strong enough to say it matches a

particular person, but yet the data is also such that you cannot

say that it is not them in that [DNA]."

A second expert, the Assistant Lab Director and DNA

Technical Manager for the Monroe County Public Safety Laboratory,

testified that in 2002, and again in 2006, she performed a

differential DNA extraction on the vaginal swab and semen stain

from the victim's panties. Differential extraction is a method

by which DNA is drawn from the biological material, and DNA from

sperm cells is separated from the DNA in non-sperm cells.

According to her test results, the sperm fraction on the vaginal

swab contained a DNA mixture of at least two contributors, of

which Gifford could not be excluded as a contributor, but the

victim's husband, Evans, and the Walker brothers were excluded.

The test also indicated that the semen stain from the

panties contained a DNA mixture of at least four contributors, of

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which the victim, her husband, and Gifford could not be excluded,

but Evans and the Walker brothers were excluded. She also

testified that her examination of certain vaginal slides from the

victim's autopsy indicated recent sexual contact. The expert

provided no testimony regarding defendant because she did not

analyze his DNA, but rather sent his sample to the independent

laboratory for further DNA testing.

The third forensic expert was from the independent

laboratory that conducted the YSTR DNA tests on the swabs and

physical material sent from the Monroe County laboratory. She

described YSTR DNA testing, explaining that it is used to isolate

male DNA from male/female DNA mixtures. The expert testified

that she compared the male DNA samples provided by Monroe County

with the samples from the victim and her husband, defendant,

Gifford, Evans, and the Walker brothers. The purpose of these

tests was to show whether any of the men's DNA characteristics

matched characteristics of the crime scene DNA. If there was a

match, she could not exclude the male from the pool of

contributors with the DNA characteristics identified through the

YSTR DNA test. She explained that YSTR DNA testing is distinct

from autosomal DNA testing, which permits a statistical

determination that an individual's DNA matches the crime scene

DNA, rather than a finding that someone cannot be excluded from

the pool of possible contributors, who have some of the same DNA

characteristics found on the victim DNA samples.

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The expert testified that based on the results of the

YSTR DNA analysis she could not exclude defendant and the

victim's husband as contributors to the hand ligature sample;

that the analysis of the vaginal swab could not exclude defendant

or Gifford as contributors; and that the victim's husband,

Gifford, and defendant could not be excluded as contributors to

the sample taken from the panties. She also testified that the

mitochondrial DNA testing of a black hair sample, recovered from

the victim's genitalia, matched the mitochondrial sequence of the

victim and Gifford.

On cross-examination, the expert admitted that there

was no statistical calculation drawn from the YSTR DNA testing,

as can be done with autosomal DNA analysis, the more commonly

familiar DNA testing.2 She explained there is simply no single

profile in YSTR DNA testing, as there is in autosomal DNA

analysis. Instead, YSTR DNA analyzes a mixture of more than one

DNA profile. Asked specifically if she could quantify how many

men other than the defendant, in the Rochester area or the trial

courtroom, had the same combination of DNA characteristics

indicated on the hand ligature, the expert said she could not.

She testified that she could only provide information based on

2

In autosomal DNA testing, a profile derived from nuclear

DNA is compared to another nuclear DNA profile to produce "a

statistical expression of the profile's rarity in certain human

populations" (Justice Ming W. Chin, et al., Forensic DNA

Evidence: Science and the Law, ch. 5 [2015]).

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persons for whom she had samples. Again, asked specifically by

defense counsel, "can you tell us with a reasonable degree of

scientific certainty that [defendant's] DNA is present on this

hand ligature sample that you tested," she responded "No, I

cannot. All I can say is I can't exclude him."

D. Closing Arguments

During summation both the defense and the prosecution

presented their respective views of the witnesses' testimony, and

what it revealed about the timeline leading up to, and following,

the victim's death. For her part, the prosecutor relied heavily

on the DNA evidence, and argued that the DNA established that

defendant raped and murdered the victim. She told the jury that

the case could be decided based on "common sense and science."

She said that defendant and Gifford "left their DNA all over the

crime" then turned her focus to what she argued was the one

constant of the DNA analysis: that defendant was the only

matching contributor across several DNA samples.

In the course of summation, she described the DNA

evidence as narrowing the number of contributors. She stated

that there were "two contributors and two contributors only, and

the sperm fraction of the vaginal swab matched the YSTR/DNA

profile of the defendant and . . . Gifford." She also stated

that there were "[t]wo contributors to the sperm found in [the

victim's] vagina after she was tied up, the defendant and his

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accomplice, [Gifford]." She also stated that the DNA is a

mixture that cannot provide a statistical calculation, she stated

repeatedly that defendant "could not be excluded as a contributor

to the mixture."

In addition the prosecutor stated,

"The ligature on the hands, every single

number that they were able to determine, and

they were able to detect partial profile

matches, is that of Howard Wright and [the

victim's husband]"

. . . .

"We have no reasonable explanation for Howard

Wright's DNA on that ligature that bound her

hands"

. . . .

"We have [defendant's] sperm in [the

victim's] vagina. We have [defendant's] sperm

on [the victim's] underwear, and we have

[defendant's] DNA profile included on the

ligature that bound her hands together, the

same identical ligature that is around her

neck and strangled her to death.

She argued that of the YSTR DNA profiles tested, defendant was

the singular match to one of the most incriminating pieces of

evidence, the ligature. "[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]."

E. Defendant's Conviction and Appeal

The jury found defendant guilty of second degree

intentional murder (Penal Law § 125.25 [1]) and acquitted him of

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felony murder (Penal Law § 125.25 [3]) and rape (Penal Law §

125.35). The court sentenced defendant to a term of 25 years to

life.

In a 3-2 decision, the Appellate Division affirmed,

with the majority rejecting defendant's claims that the evidence

was legally insufficient and against the weight of the evidence.

The court also concluded that defendant was not denied meaningful

representation, and that his prosecutorial misconduct claim was

unpreserved (115 AD3d 1257).

The two dissenters would have exercised the court's

interest-of-justice jurisdiction to review defendant's claim of

prosecutorial misconduct committed during summation, and would

have reversed on that ground. They further would have reversed

on ineffective assistance of counsel grounds because

"counsel's failure to object to the

prosecutor's baseless transformation of

evidence that defendant was in a group or

class of people that could have contributed

to the subject DNA samples to evidence that

defendant was the sole possible contributor

to those samples was so egregious and

prejudicial that defendant did not receive a

fair trial"

(id. at 1262). A justice of the Appellate Division granted leave

to appeal (22 NY3d 1204 [2014]). We now reverse.

III.

Defendant claims that his defense counsel was

ineffective because of various alleged errors committed by his

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attorney during the course of the trial.3 We agree with

defendant only as to some of the errors alleged. On this record,

we conclude that defense counsel's serial failure to object to

the prosecution's inaccurate and misleading descriptions of the

DNA evidence during the People's closing constitutes a pattern of

inexcusable mistakes that cannot be attributed to a failed trial

strategy, and which denied defendant a fair trial.

Every defendant is constitutionally entitled to

effective assistance of counsel, meaning under our state

standards that "[s]o long as the evidence, the law, and the

circumstances of a particular case, viewed in totality and as of

the time of the representation, reveal that the attorney provided

meaningful representation, the constitutional requirement will

have been met" (People v Baldi, 54 NY2d 137, 147 [1981], citing

People v Droz, 39 NY2d 457 [1976]). Where a defendant claims

that counsel's performance is deficient the defendant must

"'demonstrate the absence of strategic or other legitimate

explanations' for counsel's alleged shortcomings" (People v

Benevento, 91 NY2d 708, 712 [1998], citing People v Rivera, 71

NY2d 705, 709 [1988]; comparing People v Flores, 84 NY2d 184

[1994] with People v Bennett, 29 NY2d 462, 465 [1972]; People v

3

Defendant claims specifically that trial counsel made a

prejudicial statement during his opening statement, did not

present an expert witness to testify about Y chromosome DNA

testing, and failed to object to prejudicial statements during

the People's opening statement and summation.

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Droz, 39 NY2d at 463; People v Gonzalez, 47 NY2d 606, 611

[1979]).

The standard is challenging, but not insurmountable.

Even where counsel's errors "individually may not constitute

ineffective assistance, 'the cumulative effect of [defense]

counsel's actions [can] deprive[] defendant of meaningful

representation' " (People v Oathout, 21 NY3d 127, 132 [2013]

[first modification original], citing People v Arnold, 85 AD3d

1330, 1334 [3d Dept 2011]). The task of a reviewing court is to

"consider[] the seriousness of the errors in their totality" (id.

at 132). Moreover, as we have recognized, "although the inquiry

focuses on the quality of the representation provided to the

accused, the claim of ineffectiveness is ultimately concerned

with the fairness of the process as a whole rather than its

particular impact on the outcome of the case" (Benevento, 91 NY2d

at 714).

An ineffective assistance claim based on defense

counsel's failure to challenge a prosecutor's summation presents

a unique set of considerations given the nature of closing

statements generally. However, prosecutorial misconduct is not

immune to attack by defense counsel merely because it occurs

during the course of summation. As the Court has recognized,

"although counsel is to be afforded 'the

widest latitude by way of comment,

denunciation or appeal in advocating

[counsel's] cause' (Williams v Brooklyn El.

R. Co., 126 NY 96, 103 [1891]) summation is

not an unbridled debate in which the

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restraints imposed at trial are cast aside so

that counsel may employ all the rhetorical

devices at his command. There are certain

well-defined limits"

(People v Ashwal, 39 NY2d 105, 109 [1976]). Summation must

remain within

"the four corners of the evidence and avoid

irrelevant comments which have no bearing on

any legitimate issue in the case. Thus the

District Attorney may not refer to matters

not in evidence or call upon the jury to draw

conclusions which are not fairly inferable

from the evidence"

(id., at 109-110 [internal cites omitted]). Defense counsel's

inaction in the face of prosecutorial misconduct made during

closing argument is subject to the same "meaningful

representation" standard applicable to other trial errors. Under

that standard, where defense counsel fails to object when faced

with a pattern of prosecutorial misstatements far afield from

acceptable argument, such as statements that misrepresent

evidence central to the determination of guilt, and where there

is no apparent strategic explanation for defense counsel's

silence, defendant has been deprived of meaningful representation

and the constitutional right to a fair trial.

IV.

Here, defense counsel failed to object when the

prosecutor misrepresented the scientific import of the DNA

evidence, suggested that the evidence directly linked defendant

to the murder although it did not, and made statements that

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contradicted the expert testimony about the limitations of YSTR

DNA analysis. Given the significance of the DNA evidence,

defense counsel's silence is inexplicable, and under the

circumstances of this case, his inaction was error.

During summation the prosecutor returned to the theme

she had promoted during her opening, that this case was about

"common sense and science." While some amount of hyperbole is

not unusual, she exceeded "the four corners of the evidence" when

she stated that defendant and his accomplice "left their DNA all

over the crime." In fact, the YSTR DNA analysis in this case did

not result in a "match" between defendant's DNA and the DNA found

at the scene. According to the People's own expert, the analysis

only revealed that defendant "could not be excluded" from the

pool of possible contributors to the DNA mixture of samples

collected.4

Although the prosecutor acknowledged that the DNA was a

mixture and that the hand ligature comparison was based on

"partial profile matches" of YSTR DNA, the prosecutor

4

The dissent contends that "it is irrelevant that the

prosecutor referred to defendant's DNA being inside the victim or

on her underwear" (dissenting op, at 8) because defendant

conceded that he engaged in intercourse with the victim and

therefore defense counsel had no basis to object. However, the

prosecutor relied on the DNA evidence in support of her theory of

the case that the sex was not consensual and that DNA from the

panties and vaginal swab matched the DNA on the ligatures,

meaning the victim was murdered by the rapists. Thus, defense

counsel had good reason to object when the prosecutor

misrepresented that the DNA evidence of sexual contact connected

defendant to the murder.

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aggressively argued the view that defendant's DNA conclusively

matched that found at the crime scene and on the victim.

However, the expert testified on direct and cross-examination to

just the opposite, and described the significant limitations of

the YSTR DNA testing conducted in this case. Significantly, the

expert testified that she could not state positively the total

number of DNA contributors to the hand ligature sample, no wide

statistical comparisons were made to identify the potential

number of men who would be included in the pool of possible

contributors, and that the hand ligature sample contained limited

information possibly due to degradation of the DNA.

Nevertheless, the prosecutor's comments negated the

main shortcoming of YSTR DNA analysis -- that it can only reveal

that an individual is not excluded from the pool of persons with

the same DNA profile as that found at the scene. She argued that

of the people who were with the victim around the time of her

murder, only defendant matched the hand ligature DNA profile.

However, this was in direct contravention of the expert testimony

on cross-examination:

Defense counsel: Now, can you tell us with a

reasonable degree of scientific certainty

that [defendant's] DNA is present on this

hand ligature sample that you tested?

Answer: No, I cannot. All I can say is I

can't exclude him.

The prosecutor's attempt to establish defendant as the

sole contributor also contradicted the expert's testimony on

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cross-examination that it was possible that three individuals

contributed to the DNA mixture on the hand ligature. It also

minimized and ignored the expert's testimony that the lab was

able to obtain reportable results on only 4 of the 12 areas of

the Y chromosome tested, which constituted a "partial profile,"

meaning the lab obtained a limited amount of information, and

that it was possible that, before testing, the sample had

degraded over time. The prosecutor compounded these

misrepresentations when she further asserted -- again in

contravention of the expert testimony -- that there was "no

reasonable explanation for [defendant's] DNA on that ligature."5

While the prosecutor was entitled to fair comment on

the DNA evidence available in this case, she was not entitled to

present the results in a manner that was contrary to the evidence

and the science. By interspersing references to DNA on the

ligature with comments about defendant's DNA profile, the

prosecutor mischaracterized the probativeness of the DNA

evidence.

As the prosecutor acknowledged during her summation,

and as the People concede on this appeal, the case against the

defendant is circumstantial. Apart from the forensic experts'

5

The prosecutor's own statements establish that she did not

consider the DNA as merely "one piece of the puzzle" as the

dissent suggests (dissenting op, at 9), but rather as the

critical piece of evidence that could be used to persuade the

jury of defendant's guilt.

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testimony, the remaining trial evidence established only that

defendant was one of at least two people seen with the victim

before her death, and then in her car after the approximate time

of the murder. Defendant's statement that he engaged in sex with

the victim was not proof of his role in her death, and the jury

in fact acquitted the defendant of rape, apparently crediting the

defense that the sex was consensual, and rejecting part of the

prosecution's version of the events. Thus, leaving only the DNA

evidence to connect defendant to the murder. Defense counsel,

therefore, could not allow these misrepresentations to stand

unchallenged.

Moreover, failing to object to the prosecutor's

misstatements cannot be attributed to reasonable trial tactics

because the summation undermined what, until that point, had been

a rather effective defense strategy of identifying the weaknesses

of the DNA evidence. He secured an admission from the expert on

cross-examination that she could not confirm defendant's DNA was

on the hand ligature, and he solicited testimony that YSTR DNA

analysis has several limitations, and that the DNA might have

been degraded. Defense counsel could not have reasonably chosen

a strategy of allowing the prosecution to misrepresent the

strength of the DNA evidence and equate the results of the

testing with a finding that defendant was the sole match for the

hand ligature DNA sample.

Indeed, the potential danger posed to defendant when

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DNA evidence is presented as dispositive of guilt is by now

obvious. As this Court previously recognized, "forensic DNA

testing has become an accurate and reliable means of analyzing

physical evidence collected at crime scenes and has played an

increasingly important role in conclusively connecting

individuals to crimes" (People v Pitts, 4 NY3d 303, 309 [2005]).

Courts and commentators have remarked on the unique status of DNA

evidence within the criminal justice system and in the minds of

jurors. "Modern DNA testing can provide powerful new evidence

unlike anything known before" (Dist. Attorney's Off. for Third

Jud. Dist. v Osborne, 557 US 52, 62, [2009]). The persuasiveness

of DNA evidence is so great that as one commentator noted,

"[w]hen DNA evidence is introduced against an accused at trial,

the prosecutor's case can take on an aura of invincibility"

(Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of

High-Tech Evidence By Prosecutors: Ethical and Evidentiary

Issues, 76 Fordham L. Rev. 1453, 1469 [2007]). Similarly, in a

three-case study, the researchers noted that "a mystical aura of

definitiveness often surrounds the value of DNA evidence to

exonerate the innocent and convict the guilty" (Joel D. Lieberman

et. al., Gold Versus Platinum: Do Jurors Recognize the

Superiority and Limitations of DNA Evidence Compared to Other

Types of Forensic Evidence?, 14 Psychol Pub Pol'y & L 27 [2008]).

Furthermore, this same aura "that surrounds DNA profiling has led

it to become 'perhaps the most powerful and thus the most

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troubling forensic technology to ever be used in a court of law'"

(id. at 33 [citation omitted]). The studies suggested that

"[g]iven the strength of DNA evidence in the face of strong

cross-examination (and in the absence of any additional

accompanying direct evidence), it appears that jurors may

overvalue this high quality, but not flawless, evidence" (id. at

57). The researchers concluded that "[t]he strong and largely

invariant impact of DNA evidence across experimental conditions

suggests that this type of scientific evidence maybe so

persuasive that its mere introduction in a criminal case is

sufficient to seriously impede defense challenges" (id. at 56).

Our dissenting colleague argues that defense counsel

was effective and that we have wrongly concluded that a single

failure to object constitutes ineffective assistance (dissenting

op, at 1, 12). That is incorrect and oversimplifies our

analysis. We do not base our decision on defense counsel's

failure to object to an isolated, insignificant, albeit

erroneous, statement by the prosecutor. As our discussion makes

clear, the prosecution's summation contains numerous

misrepresentations of the evidence. The apparent intent was to

persuade the jury that the DNA established that defendant had

committed the rape and murder, when the evidence did not, and

could not, dispositively establish his guilt. The record also

makes clear that defense counsel failed to object throughout the

summation, thus presenting multiple failures, different in kind

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from that identified in People v Turner (5 NY3d 476 [2005]).

Given the prosecutorial misrepresentations that define the

summation in this case, we disagree with our dissenting colleague

that counsel's inactions are the equivalent of an excusable

"single error."

Furthermore, the appeal before us does not involve a

closing argument in which the prosecutor adhered to the trial

evidence and employed a certain rhetorical flourish, or merely

asked the jury to draw reasonable inferences from the evidence

presented at trial. Nor are we presented with the more common

and understandable situation in which defense counsel was

reluctant to interrupt and bring undue attention to one slightly

off comment by the prosecution, and where the summation had

little or no impact on the defense. Instead, defense counsel

here failed to object when the prosecution's statements exceeded

the "four corners of the evidence" (Ashwal, 39 NY2d at 109), and

affirmatively misrepresented the most critical evidence against

the defendant.6 Under these circumstances, defendant was

deprived of a fair trial.

6

Our dissenting colleague's discussion of People v Fisher

(18 NY3d 964 [2012]) reveals that his disagreement with us is not

so much about whether defense counsel was ineffective for failing

to object based on some comparison to Fisher, but instead whether

the prosecutor actually misrepresented the evidence, and thus

committed prosecutorial misconduct under any standard (dissenting

op at 10-11). Unlike the dissent, we believe the prosecutor

exceeded the bounds of acceptable commentary. Once she crossed

that line, defense counsel should have acted.

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- 25 - No. 109

Defendant's remaining contention that the evidence was

legally insufficient is without merit. Accordingly, the order of

the Appellate Division should be reversed and a new trial

ordered.

- 25 -

People of the State of New York v Howard S. Wright

No. 109

PIGOTT, J.(dissenting):

The majority holds that defendant was deprived of the

effective assistance of counsel by looking at a single error in a

vacuum, namely, alleged prosecutorial misconduct during summation

to which defense counsel failed to object. However, we have long

held that "'[s]o long as the evidence, the law, and the

circumstances of a particular case, viewed in totality and as of

the time of the representation, reveal that the attorney provided

meaningful representation, the constitutional requirement will

have been met'" (People v Rivera, 71 NY2d 705, 708 [1988],

quoting People v Baldi, 54 NY2d 137, 146-147 [1981] [emphasis

supplied]). I write separately because I believe that defense

counsel's representation of defendant should be placed in its

proper context and, viewed in its totality, defense counsel's

representation in this instance was light years from what is

deemed ineffective assistance under our jurisprudence.

I.

In this circumstantial case, defendant was convicted

after a jury trial of one count of murder in the second degree

(intentional murder), but was acquitted of murder in the second

degree (felony murder) and rape in the first degree. The

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underlying facts, as proven at trial, were that the victim had

last been seen in her car with defendant and another man,

Christopher Gifford, in the early morning hours of November 29,

1995. Later that morning, she was found dead with a black

ligature tied around her hands and neck. The defense conceded

that defendant and the victim had engaged in sexual intercourse

the morning she was found dead, and that both defendant and

Gifford had been in the victim's car with the victim that

morning. The only issue at trial therefore was the identity of

the person(s) who allegedly raped and murdered the victim.

In addressing that issue, the People presented at trial

test results from, among other things, swabs taken from both the

hand and neck ligatures and sperm samples taken from the victim's

underwear and vagina. Thus, we must assess defense counsel's

competence in attacking the test results that tended to implicate

defendant, i.e., the samples taken from the hand ligature.

To prove their case, the People relied on a type of DNA

testing called Y-chromosome analysis, or "YSTR testing."

According to the People's expert, Meghan Clement, Technical

Director of the Forensic Testing Division at LabCorp, YSTR

testing involves the analysis of male DNA when DNA samples

consist of mixtures of both male and female DNA. This form of

testing ignores female DNA and focuses exclusively on the male

DNA. It allows the technician to distinguish how many males have

contributed to a sample and whether the sample can be attributed

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- 3 - No. 109

to a specific male. When asked by the People to explain the

process of YSTR testing, Clement testified as follows:

"The first thing that occurs is we add

chemicals to the sample to break open the

cell to allow the DNA to be released. We will

then quantitate to determine approximately

how much Y chromosome DNA we are able to

recover from a portion of a sample that we

have used for testing. We then genetically

photocopy the specific areas on the Y

chromosome where there are differences

between males and run it through a detection

system to visualize the characteristics

present in a particular sample. We use the

same procedure for the unknown evidentiary

sample as we do with a known reference sample

and simply compare the fields of the two

samples to determine if there are

similarities or differences."

LabCorp created a chart from the samples subjected to

the YSTR testing. The chart contained, among other things, a

column depicting the reference profile that had been obtained

from the oral swab sample taken from defendant. The chart also

contained results that had been obtained from the swab samples

taken from the hand ligature and the sperm samples taken from the

victim's underwear and vagina. Clement explained that, with

regard to the hand ligature, she compared defendant's and the

victim's husband's reference profiles to the characteristics

obtained from the ligature sample and determined that both were

possible contributors to mixture sample, i.e., she could not

exclude them as contributors. Clement explained that "[w]hat

that means is that the characteristics seen within the mixture or

characteristics possessed by that particular individual, and

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because characteristics that they possess are found within that

mixture, we cannot exclude them as being possible contributors."

Significantly, the proof at trial established that

Clement excluded Gifford as a possible contributor to the hand

ligature sample. With respect to the vaginal swab sample,

however, Clement was unable to exclude defendant, Gifford or the

victim's husband. However, defendant was excluded as the

contributor to the sperm sample taken from the underwear,

although Gifford was not.

Defense counsel ably attacked Clement's testimony,

getting her to admit that a number of men may possess similar

characteristics to defendant and that she had obtained reportable

results for only four of the 12 areas tested on the hand

ligature. Certain of those areas, she conceded, had shown

evidence of degradation, i.e., that the sample had "broken down,"

so that she was able to obtain only what is known as a "partial

profile." During cross-examination, Clement admitted that she

obtained only "a limited amount of information" from the hand

ligature samples; she also acknowledged that it was "possible"

that there could have been more than two contributors to the hand

ligature.

Significantly, defense counsel asked Clement if she had

conducted any statistical calculations with regard to the YSTR

testing, and she responded in the negative. She explained that

she engaged in an "accounting method" for that type of testing,

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- 5 - No. 109

but acknowledged that one could not "calculate statistics like we

do with traditional, with nuclear or autosomal DNA testing" with

YSTR. She further conceded that she could not give the jury a

"statistical significance for the profile present in the [hand]

ligature." Perhaps the most damaging testimony that defense

counsel elicited from Clement was that she could not state with a

reasonable degree of scientific certainty that defendant's DNA

was on the hand ligature sample that she had tested.

Defense counsel was simply unrelenting at trial

attacking not only YSTR analysis as a science, but also what the

results ultimately showed. His attacks did not cease at the

conclusion of the People's case-in-chief, either. During his

summation, he hammered away at Clement's concessions that she

could not state with a reasonable degree of scientific certainty

that the DNA on the hand ligature was defendant's and that she

could not provide any statistical analysis concerning the YSTR

results.

II.

The critical error that defense counsel made, according

to the majority and defendant, is that he did not object to

certain statements that the prosecutor made during summation. To

be sure, the prosecutor stated that defendant and Gifford "left

their DNA all over the crime." Viewing that statement in a

vacuum, as the majority does, one could not draw any conclusion

other than that defense counsel should have been on his feet,

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- 6 - No. 109

pounding the table and objecting to that statement. Viewed in

context, however, that statement does little more than serve as

an introduction to the prosecutor's discussion of the DNA

evidence. What was contained in her discussion? Statements that

one "cannot put a statistical calculation on" YSTR DNA, and that

the sperm fraction of the vaginal swab "matched the YSTR DNA

profile" of defendant and Gifford. The majority takes issue with

the prosecutor's use of the word "matched," but when she utilized

that word, it was to argue that the sample "matched" defendant's

YSTR DNA profile.

The majority claims that "the prosecutor aggressively

advanced the view that defendant's DNA conclusively matched that

found at the crime scene and on the victim" (majority op, at 18),

but that is simply not the case. The People did not misrepresent

the evidence as the majority claims, but, rather, repeatedly

argued that defendant's YSTR DNA profile matched the DNA taken

from the ligature:

"Probably the most or the piece of evidence

that we, [defense counsel] and I, disagree on

the most would be the DNA taken from the hand

ligature that was binding [the victim's]

hands behind her back. . . . That ligature

was wrapped and tied tight around her wrist.

And what do we know about that? Were we able

to get a complete profile? No. But at four

locations there was able to be detected the

presence of a Y chromosome, and this is

something that you can go back and study,

too. As you've heard during the testimony of

LabCorp, each number represents an allele or

a number assigned to that individual's DNA at

that particular Y location. The ligature on

the hands, every single number that they were

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- 7 - No. 109

able to determine, and they were able to

detect partial profile matches, is that of

[defendant] and [the victim's husband]. She

told you, because this is a partial profile

and because the DNA on the ligature is a

mixture, they are not able to give you a

statistical calculation, but she can tell

you, according to her expertise, that

[defendant] could not be excluded as a

contributor to the mixture on that ligature.

"Now, I want you to also look at the chart.

Of the people that were with her that night,

we have Christopher Gifford's YSTR profile,

Keith Milburn Evans' profile, we have the

Walker brothers' profile. Remember,

Christopher and Frederick Walker would have

the same YSTR profile because they are

brothers, and [defendant], we have got the

YSTR profile, even throwing [the victim's

husband] in, they all have different

profiles, all have different alleles at the

locations. The 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]. Is that

coincidence? I don't think it is. Could it

be transference? I don't think it is. Could

there be a reasonable explanation? I don't

think there is, and I don't think I am asking

you to take a leap of faith or assume facts

upon facts upon facts. You need to look at

the ligature DNA profile in light of all the

other evidence that you have. Could there be

a reasonable explanation for one thing?

Sure. Could there be a reasonable

explanation for two things? Sure. But what

we have here, we have no reasonable

explanation for [defendant's] DNA on that

ligature that bound her hands.

"In light of all the other evidence, we have

[defendant] and his codefendant with her

hours before her body was discovered. [The

victim's husband] wasn't there. We had

[defendant] and Christopher Gifford together

alone hours later. We have them alone in her

car before her body is discovered. We have

[defendant] showing [the victim's] car to

Keith Evans. We have [defendant's] sperm on

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- 8 - No. 109

[the victim's] underwear, and we have

[defendant's] DNA profile included on the

ligature that bound her hands together, the

same identical ligature that is around her

neck and strangled her to death. When you

look at all of that, there is no reasonable

explanation other than the fact that he and

Christopher Gifford took her in that car,

tied her up, raped her, strangled her, dumped

her on Skuse Street, and got on with their

own business.

"This is a case of common sense and science.

[The victim] didn't deserve to die that way.

She was a drug addict. She got herself into

a bad situation, but it doesn't escape the

facts. The defendant's DNA is inside her, on

her underwear, on the ligature that binds her

hands. He is seen with her while she is

alive before her body is discovered. He is

seen with Christopher Gifford afterwards

driving around in her car, and he points out

her car to another friend, bragging about it

being parked on Burbank Street. When you put

it all together, members of the jury, it is

common sense and there is only one conclusion

you can reach and that is guilty. Thank you"

(emphasis supplied).

It is irrelevant that the prosecutor referred to

defendant's DNA being inside the victim or on her underwear; the

defense conceded during opening statements that defendant had

been with the victim and had engaged intercourse with her, so

there was no point in defense counsel objecting to that part of

the prosecutor's statement. Moreover, defense counsel, proving

his effectiveness, actually got defendant acquitted of the first

degree rape and felony murder counts. The jury plainly rejected

the People's theory that defendant raped the victim. When the

rape charge fell, so too did the felony murder charge upon which

the rape charge was premised.

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- 9 - No. 109

The People carefully explained to the jury that they

were not able to obtain a complete profile or a statistical

calculation. Essentially, the People's summation acknowledges

that they believed that their YSTR DNA evidence was relatively

weak, which explains why the prosecutor told the jury that

"[t]his is a case of common sense and science." The prosecutor

did not represent the YSTR DNA evidence as a "slam dunk," but,

rather, asked the jury to "put it together" and "to look at the

ligature DNA profile in light of all the other evidence that you

have" (emphasis supplied). Indeed, the People had more than just

the YSTR DNA results tying defendant to the crime. They also had

the testimony of two eyewitnesses who saw defendant and his

accomplice with the victim hours before she died, and testimony

from one of those witnesses that defendant had taken him to where

the victim's car was parked just one day after the victim was

found dead. The YSTR DNA profile evidence was just one piece of

the puzzle. The prosecutor knew that. Defense counsel knew

that. And the jury knew that, too, based on both the proof

presented at trial and defense counsel's effective cross

examination of Clement.

This is not a case where the People misrepresented the

DNA evidence as being more important and powerful than it

actually was. The People did not pursue a theory that this type

of DNA evidence statistically identified defendant as the

perpetrator. Indeed, the prosecutor was careful to explain the

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- 10 - No. 109

limitations of the YSTR DNA evidence that was presented.

Essentially, what the majority does is take two throwaway lines

by the prosecutor, one made at the beginning of the discussion of

the DNA evidence and one at the end, and ignores the prosecutor's

thorough explanation of the evidence that is sandwiched in

between the two. There is a reason why defense counsel did not

object: when the two damaging statements are viewed in the

context of the prosecutor's overall summation, there was simply

no need for him to register an objection. His silence in that

regard did not somehow "negate" his competent representation up

until that point.

The alleged ineffectiveness in this case is

significantly weaker than counsel's ineffectiveness in People v

Fisher (18 NY3d 964 [2012]). In that case, which involved child

molestation allegations against the defendant, "the prosecutor

improperly encouraged inferences of guilt based on facts not in

evidence" by arguing during summation that the two alleged child

victims had "'said the exact same thing over and over again'" to

police, social workers and others when there was no evidence to

that effect, thereby bolstering their testimony (id. at 966).

The prosecutor also asked the jury to infer that the childrens'

acting out at school supported the abuse allegations (see id.).

Further, the prosecutor minimized her influence over the benefit

that was to be bestowed upon the jailhouse snitch who testified

that the defendant had made incriminating statements while

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- 11 - No. 109

incarcerated (see id. at 967). And, during summation, the

prosecutor pleaded to the jury that "'[t]he voice of a child is

evidence, the testimony of the two children is evidence. The day

that the voice of child is not evidence is the day that those

doors [the doors to the courtroom] should be locked forever'"

(id.). Defense counsel did not object to any of these

improprieties, and we held that his failure to do so deprived the

defendant of his right to the effective assistance of counsel

(see id.).

Unlike the situation in Fisher, where errors occurred

not just during the People's case-in-chief but also during

summation, the majority's real problem with defense counsel's

representation in this case is his failure to object to the

prosecutor's statements during summation. But, as evidenced from

the overall context of that summation, there was no

misrepresentation of the DNA evidence at all. To claim otherwise

is a disservice to defense counsel, who ably cross examined

Clement, obtained damaging concessions from her, and persuaded

the jury to acquit defendant on two of the three counts in the

indictment. A cursory review of the prosecutor's summation

statements does not paint a picture of a rogue prosecutor

attempting to mislead the jury by misrepresenting the evidence

presented, nor does it paint a picture of a defense counsel

sitting idly by while the prosecutor spins a deceitful web.

The majority concedes that, up until the prosecutor's

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- 12 - No. 109

summation, defense counsel had undertaken "a rather effective

defense strategy of identifying the weaknesses of the DNA

evidence" (majority op, at 21-22). By this, what it really means

is that this is one of those "rare" cases where "a single failing

in an otherwise competent performance is so 'egregious and

prejudicial' as to deprive [this] defendant of his constitutional

right" (People v Turner, 5 NY3d 476, 480 [2005], quoting People v

Caban, 5 NY3d 143, 152 [2005]; Murray v Carrier, 477 US 478, 496

[1986]).

The majority claims that defense counsel's failure to

object to the prosecutor's alleged objectionable statements

evidenced "multiple failures, different in kind from that

identified in Turner" (majority op, at 23-24), but simply calling

something "multiple failures" does not make it so. The one

mistake defense counsel allegedly made, and the one mistake cited

by the majority as a basis for its reversal, is that defense

counsel failed to object to the prosecutor's alleged

mischaracterization of the evidence. Indeed, even the Appellate

Division dissenters deemed defense counsel's alleged failure to

object to be a "single error" that "was so egregious and

prejudicial that defendant did not receive a fair trial" (115

AD3d 1257, 1262 [4th Dept 2014]). If the majority wishes to

extend Turner to an alleged single mistake made by counsel during

summation, it should expressly do so rather than utilizing

phrases like "serial failure to object" (majority op, at 15) and

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"multiple failures" (majority op, at 23) in order to justify the

result it reaches in this appeal.

Viewing defense counsel's representation in its

totality, as we must, it is evident that defendant was afforded

his constitutional right to effective assistance of counsel, and

I would therefore affirm the order of the Appellate Division.

* * * * * * * * * * * * * * * * *

Order reversed and a new trial ordered. Opinion by Judge Rivera.

Chief Judge Lippman and Judges Read, Abdus-Salaam and Stein

concur. Judge Pigott dissents in an opinion. Judge Fahey took

no part.

Decided July 1, 2015

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