# STATE OF NEW JERSEY v. DANIEL ROCHAT (13-07-1002, BERGEN COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · January 28, 2022

URL: https://www.frixlaw.com/law-library/cases/6113549

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** January 28, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0103-17

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 28, 2022
v. APPELLATE DIVISION

DANIEL ROCHAT,

Defendant-Appellant.
________________________

Argued November 9, 2021 – Decided January 28, 2022

Before Judges Hoffman, Geiger and Susswein.

On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 13-07-
1002.

David A. Ruhnke argued the cause for appellant
(Ruhnke & Barrett, attorneys; David A. Ruhnke, on
the briefs).

Ian C. Kennedy, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Danielle Grootenboer, Chief
Assistant Prosecutor, David A. Malfitano, Chief
Assistant Prosecutor, and Ian C. Kennedy, of counsel
and on the briefs; John J. Scaliti, Legal Assistant, on
the briefs).

Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for amicus curiae Office of the
Public Defender (Joseph E. Krakora, Public Defender,
attorney; Tamar Y. Lerer, of counsel and on the brief;
Julie Fry, Director, Forensic Science Unit, on the
brief).

The opinion of the court was delivered by

GEIGER, J.A.D.

Defendant Daniel Rochat was convicted of the murder of Barbara

Vernieri and related charges and sentenced to life in prison. He appeals his

convictions, primarily arguing that certain disputed DNA evidence was

improperly admitted at trial. The disputed DNA evidence was obtained

through a technique known as low copy number (LCN) DNA testing

performed by the Office of the Chief Medical Examiner of the City of New

York (OCME). One of the samples was analyzed by OCME using its Forensic

Statistical Tool (FST) software program. Defendant argues that both LCN

DNA testing and FST are not generally accepted in the scientific community.

We agree, and because the error in admitting the evidence was not harmless,

we reverse defendant's conviction and remand for a new trial.

I.

We derive the following facts from the record. Shortly after noon on

September 14, 2012, Sinan and Holland Logan, who rented the upstairs

apartment in Vernieri's residence, heard a beeping sound coming from

Vernieri's downstairs living space. When they opened the door that led to the
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stairwell connecting the living spaces, they smelled gasoline. They descended

the stairs, rang Vernieri's doorbell, and knocked on her door. When she did

not respond, Sinan called her cell phone, which she did not answer. He then

called her daughter who told him to call 911.

Vernieri's body was found lying face down in her sitting room. She was

nude, her hair was scorched off, and she had burns on her back, arms, and legs.

Investigators discovered burn patterns on the floor and determined that

gasoline was "applied to areas in this room, including her body and . . . set on

fire." A large, suspected blood stain was found on the carpet.

Vernieri was pronounced dead at the scene. The medical examiner

determined that the cause of death was blunt force head injuries, and the

manner of death was homicide.

Sergeant Gary Boesch of the Bergen County Prosecutor's Office

interviewed defendant at 10:15 p.m. on September 14, 2012. Defendant told

Boesch that on September 12, 2012, at about 7:15 p.m., his car overheated near

Vernieri's home. He pulled over and decided to pay her an unannounced visit.

When she answered the door, she was speaking on the phone to her

"companion from Florida." She hung up the phone and he visited with her for

about one hour. During the visit, Vernieri was cooking, and defendant drank

two bottles of water but had nothing to eat. He denied drinking beer. They

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discussed the real estate business and relationships. Defendant asked her if she

needed help moving anything, but she declined.

Defendant told Boesch that the last time he saw Vernieri was on the

afternoon of September 13, 2012, when he stopped in at the Kurgan-Bergen

Real Estate Agency, where Vernieri had worked for approximately twenty-

seven years, to check his emails. The agency was owned by defendant's father.

Before leaving, he chatted with Vernieri and gave her his phone number at her

request in case she wanted to take him up on his offer to help move her things.

Defendant also told Boesch that he woke up at around 11:00 a.m. on

September 14, 2012, and a little later went to see his father to borrow money

from him. He then went to a deli in Woodbridge and then drove to the Jersey

shore.

On September 17, 2012, investigators obtained communication data

warrants for defendant and Vernieri's cell phones. On the morning of

September 18, 2012, Boesch and Detective James McMorrow conducted a

recorded interview of defendant at his apartment after defendant refused to

accompany the detectives to their office. Defendant was advised of his

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Miranda1 rights. He said Vernieri was a long-time family friend who worked

for his father's real estate agency.

Defendant described that on September 12, 2012, as his car was about to

overheat, he pulled over about two blocks from Vernieri's house and decided to

walk to her home. He estimated that he arrived at her house at 7:20 p.m. It

was the first time he had ever visited Vernieri's home. She was on the phone

with a man she was seeing in Florida but invited defendant into her house. She

offered defendant something to drink and gave him a bottle of water. She also

offered him food, but he declined. He visited with her for about one hour.

When asked if he only had a bottle of water during the visit, defendant

stated that Vernieri offered him a beer, which he drank. He clarified that he

had two beers and two bottles of water. Vernieri took defendant to the

basement of her home so that he could choose the beer from her basement

refrigerator. Defendant commented to Vernieri that he had never been in her

home before, and she gave him a "quick tour." While he was there, defendant

asked her if she needed help moving anything, but she declined.

Defendant told the detectives that he saw Vernieri on September 13,

2012, when he stopped by his father's real estate office that afternoon. He

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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spoke briefly with her; she asked for his cell phone number in case she needed

help moving anything.

Defendant recounted that on September 14, 2012, he woke up between

11:00 a.m. and noon and then drove to Lyndhurst to get a bagel. Afterwards,

he stopped at a condominium on Van Winkle Avenue in East Rutherford that

was managed by his father. The property had been sold by defendant's father

to an Egyptian family who visited the United States regularly. Defendant and

his father managed the property when the owners were absent. Defendant was

permitted to keep his truck there and had access to the garage area. Defendant

said he kept tools and cleaning supplies there for his truck. After stopping at

the condominium, defendant returned to his apartment to shower and went to

his father's office to get money. He then returned home to pack for a stay at

his parent's shore house.

Defendant said he went to the shore later that night after stopping to see

a friend, Kristen Henke, who was house sitting for her parents in Ridgewood.

He was with Henke when his father called to tell him about Vernieri.

After recounting these events, defendant changed his story and said he

saw his father after visiting Henke and drove to the shore immediately

thereafter. He could not remember what time it was when he drove to the

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shore but believed it was early that evening. He denied being on Shepard

Terrace, the street where Vernieri lived, at any time on September 14, 2012.

Defendant said he was wearing either his Nike Air Max or Adidas

athletic shoes when he visited Vernieri on September 12, 2012. The detectives

showed defendant a photograph of an impression of an Adidas shoe taken at

Vernieri's house and defendant showed the detectives Adidas shoes he may

have been wearing when he visited Vernieri.

McMorrow informed defendant that his cell phone records showed he

received a call at 10:39 a.m. on the morning of September 14, 2012.

Defendant claimed that he did not remember getting the call. Additional calls

were made to defendant's phone at 11:06, 11:10 and 11:42 a.m. but were not

completed. McMorrow said that showed that defendant's phone had been

turned off. McMorrow told defendant that they were able to map where his

phone was and that he was on Shepard Terrace at 10:39 a.m. Defendant

denied he was there. He refused to speak further with the detectives.

McMorrow then informed defendant that they had a search warrant for

his apartment and that he needed to accompany them to the prosecutor's office

for fingerprinting and DNA collection. Sergeant James Brazofsky, along with

other officers, executed the search warrant. Brazofsky testified that Adidas

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sneakers retrieved from defendant's apartment matched the shoe impression

found at the crime scene.

On September 19, 2012, Boesch obtained a search warrant for the Van

Winkle Avenue condominium. In his affidavit supporting the issuance of a

search warrant, Boesch recited the following facts:

• Sinan Logan reported hearing sounds from Vernieri's residence

between 10:10 a.m. and 10:30 a.m., which he attributed to

Vernieri's grandchildren, and which he described as "a struggle, or

two people wrestling, and a yell or a shriek."

• Vernieri's daughter reported that Vernieri had a "strange

encounter" with defendant, who stopped by Vernieri's house

unannounced on September 12, 2012, something he had never

done before.

• Vernieri's daughter reported that her mother told her defendant had

two beers while he visited, that he asked her to "take him on a

walk-through to see the house," and asked her about diamond

jewelry.

• Joanna Connelly and Joanne DeMauro, who were both friends of

Vernieri, reported that Vernieri described defendant's September

12, 2012, visit as an "odd" or "unusual event," and that Vernieri

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told them she offered him a beer and a sandwich, which he

accepted;

• In his first statement to police, defendant denied having beer at

Vernieri's house and said he only had two bottles of water and

nothing to eat.

• Shoe impressions of an Adidas shoe were found at the crime

scene.

• Cell phone records identified the location of defendant's cell phone

as in the area of Vernieri's home and the parking lot behind it

when an incoming call was received at 10:39:57 a.m. on

September 14, a time coinciding with the disturbance heard by

Logan;

• In his first statement to police, defendant claimed that he slept

until about 11:00 a.m. on September 14, and in his second

statement he claimed that he slept until sometime between 11:00

a.m. and noon.

• In his second statement to police, defendant said that after waking

on September 14, he drove to Lyndhurst for a bagel and then

stopped at a condominium on Van Winkle Avenue to get cleaning

supplies for his vehicle.

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• A friend of defendant identified the condominium unit on Van

Winkle Avenue that was utilized by defendant and a nearby

resident described a man, matching defendant's description, who

drove vehicles matching the description of those owned by

defendant, that he observed at the property on multiple occasions.

Investigators, including McMorrow, executed the search warrant on the

Van Winkle Avenue condominium. Samples were taken from two areas of the

kitchen sink that reacted to Leuco Crystal Violet, a substance used by

investigators to detect blood. The swabs were sent to OCME for analysis. On

October 2, 2012, McMorrow received the OCME lab test results and was

authorized to arrest defendant.

Boesch and McMorrow were part of the team that arrested defendant on

October 3, 2012. The arrest was effectuated through a motor vehicle stop.

Defendant ignored numerous commands to turn off the engine, open the door,

and exit the vehicle. Officers physically removed defendant from the vehicle

and when he refused to place his hands behind his back, he was taken to the

ground and forcibly handcuffed.

On July 15, 2013, a Bergen County grand jury returned an indictment

charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2)

(count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two

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and three); second-degree burglary, N.J.S.A. 2C:18-2 (count four); second-

degree aggravated arson, N.J.S.A. 2C:17-1(a) (counts five, six and seven);

first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts

eight and nine); second-degree desecrating and/or damaging and/or destroying

human remains, N.J.S.A. 2C:22-1(a) (count ten); third-degree obstruction,

N.J.S.A. 2C:29-3(b)(1) (count eleven); third-degree hindering prosecution,

N.J.S.A. 2C:29-3(b)(4) (count twelve); fourth-degree false swearing, N.J.S.A.

2C:28-2(a) (count thirteen); and third-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(3)(a) (count fourteen).

Defendant moved for a Frye2 hearing to determine the admissibility of

LCN DNA test results issued by OCME. On August 6, 2015, the court issued

a written opinion denying defendant's motion.

Defendant subsequently moved to dismiss the indictment; dismiss counts

twelve through fourteen of the indictment; sever counts twelve through

fourteen; suppress his statements; and for a Franks/Howery3 hearing. On

February 7, 2017, a different judge issued an order and lengthy written opinion

denying defendant's motion in its entirety.

2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3
Franks v. Delaware, 438 U.S. 154 (1978); State v. Howery, 80 N.J. 563
(1979).

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The State moved to admit certain out-of-court statements of the victim

and defendant. On March 16, 2017, the court granted the motion in part and

denied it in part. The court ruled that statements made by the victim to

DeMauro two nights before the murder were admissible as present sense

impressions.

THE TRIAL TESTIMONY

A jury trial was conducted on eighteen nonconsecutive days from April

11, 2017, through June 14, 2017. At trial, Maurice Paul Murphy testified that

he had been involved in a relationship with Vernieri since 2011, and that he

spoke to her "[p]robably every night." He was speaking to her at

approximately 9:00 p.m. on September 12, 2012, when her doorbell rang and

"startled" them. Vernieri said "nobody comes here this time of night." He

remained on the phone while she answered the door and could hear her

greeting the person as someone that she knew. When Vernieri returned to the

phone, she told Murphy that it was someone from the office, everything was

fine, and she would call him tomorrow. Vernieri told Murphy the next

morning that her visitor was male.

DeMauro testified that she had been friends with Vernieri for at least

fifty years and they spoke every night. She spoke to Vernieri at around 9:30 or

10:00 p.m. on September 12, 2012, and Vernieri told her that defendant had

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visited her that evening because his car broke down and he knew that she lived

nearby. Vernieri recounted that she invited defendant into her home, offered

him dinner, and showed him around the house because he had never seen it.

Defendant ate and had a beer and when he asked for another, Vernieri told him

he could get it himself, which he did. Vernieri told DeMauro that she was

surprised by the visit because defendant had never been there before.

Melissa Huyck testified for the State as an expert in forensic biology and

statistical analysis associated with DNA testing. She testified that while

working at OCME in 2012, she analyzed two sets of swabs sent to OCME from

the Van Winkle condominium kitchen sink using LCN DNA testing. A single

DNA profile was developed from the first set of swabs, labeled 1.2.4 and 1.2.5

(Sample 1), that was "consistent with that of Barbara Vernieri." Huyck

explained that, statistically, one would expect to see that same profile in 1 in

88.1 billion people.

Testing of the second set of swabs, labeled 1.2.1 and 1.2.2 (Sample 2),

showed a mixture of DNA from two people. Using FST, Huyck determined

that the mixture "was approximately 71.2 million times more likely to have

come from Barbara Vernieri and another person rather than that mixture

coming from two unknown, unrelated people." However, "the mixture was

575 times more probable to have come from Barbara Vernieri and an

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unknown, unrelated person rather than having come from Barbara Vernieri and

[defendant]." Hyuck said the DNA test results "indicate[d] strong support that

the DNA from the kitchen sink was from Barbara Vernieri and an unknown

person, rather than having come from Barbara Vernieri and [defendant]." She

agreed that she could not tell when the DNA mixture was created and that

there could have been DNA in the sink before the blood was put there.

Huyck tested additional samples obtained from Vernieri's home,

defendant's apartment, and his car. The samples from Vernieri's home did not

test positive for defendant's DNA. The samples from defendant's apartment

and car did not test positive for Vernieri's DNA

The New Jersey State Police (NJSP) also conducted DNA testing of

several samples obtained from Vernieri's home and person. Kimberly

Michalik of the NJSP Office of Forensic Sciences, testified for the State as an

expert in forensic DNA analysis. She stated that defendant could not be

excluded as a contributor to the DNA found in fingernail clippings from

Vernieri's left hand. The DNA profile obtained would be "expected to occur . .

. no more frequently than . . . 1 in 333 of the Caucasian population" but would

occur in all of defendant's paternal male relatives. No other DNA implicating

defendant was found in any of the other samples tested by the NJSP

laboratory.

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FBI Special Agent Ajit David testified for the State as an expert in

historical cell site analysis. He was "absolutely certain" that defendant's cell

phone interacted with Vernieri's home cell phone tower and sector at 10:39

a.m. on September 14, 2012. David testified that it was not possible for that

tower and sector to service defendant's cell phone if he was at his apartment,

which was approximately one mile from the tower.

Heather Coyle, Ph.D., testified for the defense as an expert in DNA

analysis and DNA statistical analysis. She opined that LCN DNA testing was

not reliable.

Manfred Schenk testified for the defense as an expert in historical cell

site analysis and radio frequency engineering. He opined that the location of

defendant's cell phone could not be determined based upon the cell phone

records relied upon by the State's expert. He stated that cell phones do not

always use the closest cell tower and that a phone can access a tower that is up

to 21.75 miles away.

Counts six through nine and fourteen were dismissed before the case was

submitted to the jury.

THE JURY INSTRUCTIONS

Relevant to the issues on appeal, the trial court gave the following final

instructions to the jury:

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Proof of other crimes, wrongs or acts, New
Jersey Rule of Evidence 404(b). The State has
introduced evidence that on October 3, 2012, this
defendant ignored police commands to turn off his
vehicle, get out of his car and submit to being
handcuffed.

Normally, such evidence is not permitted under
our rules of evidence. Our rules specifically exclude
evidence that a defendant has committed other wrongs
or acts when it is offered only to show that he has a
disposition or tendency to do wrong and therefore,
must be guilty of the charged offenses. Before you
can give any weight to this evidence, you must be
satisfied that the defendant committed the other wrong
or act.

If you are not so satisfied, you may not consider
it for any purpose. However, our rules do permit
evidence of other wrongs or acts, when the evidence is
used for certain, specific, narrow purposes. Here, the
evidence has been offered to attempt to convince you
that the defendant's refusal to follow the police
commands is evidence of a consciousness of guilt on
defendant’s part regarding the other charged offenses,
particularly, the murder and arson.

You may not draw this inference unless you
conclude that the defendant did, in fact, ignore police
commands to turn off his vehicle, get out of his car
and submit to being handcuffed on October 3rd, 2012.
Whether this evidence does, in fact, demonstrate
consciousness of guilt is for you to decide. You may
decide that the evidence does not demonstrate
defendant's consciousness of guilt and is not helpful to
you at all.

In that case, you must disregard the evidence.
On the other hand, you may decide that the evidence
does demonstrate consciousness of guilt and use it for
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that specific purpose. However, you may not use this
evidence to decide that the defendant has a tendency
to commit crimes or that he is a bad person. That is,
you may not decide that just because the defendant has
committed other wrongs or acts, he must be guilty of
the charged crimes.

I've admitted the evidence only to help you
decide the specific question of defendant's
consciousness of guilt. You may not consider it for
any other purpose and may not find the defendant
guilty now simply because the State has offered
evidence that he committed these other wrongs or acts.

The jury convicted defendant of the remaining counts, including murder.

Defendant moved for a judgment of acquittal and a new trial. On July

28, 2017, the trial judge denied both motions. That same day, defendant was

sentenced to life, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on

the murder charge, a consecutive five-year term on the obstruction charge

(count eleven), and terms that run concurrently to count eleven on the

remaining counts, except counts two and three, which were merged into count

one for sentencing purposes.

Defendant appealed his conviction. On September 26, 2017, we granted

defendant's motion for a remand and directed the trial court to conduct a

N.J.R.E. 104(a) hearing to determine the admissibility of LCN DNA evidence

under the standards established in Frye and State v. Harvey, 151 N.J. 117

(1997). We retained jurisdiction. We denied the State's motion for

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reconsideration. The Supreme Court denied leave to appeal. State v. Rochat,

232 N.J. 151 (2018).

THE FRYE HEARING ON REMAND

The Frye Hearing was conducted over six nonconsecutive days in May

and June 2018. Multiple expert witnesses testified during the hearing.

The State's Witnesses

Craig O'Connor, Ph.D., a geneticist, testified for the State as an expert in

forensic DNA analysis and the statistical significance of those results.

O'Connor began working for OCME in May 2008. He performed both

conventional short tandem repeat (STR) DNA testing and LCN DNA testing.

Between 2008 and 2012, he processed hundreds of cases using LCN and

conventional DNA testing. He also used FST "dozens if not over a hundred"

times.

By 2014, O'Connor was promoted to a position responsible for

overseeing all aspects of the testing done at the laboratory. He very rarely

performed DNA testing himself but was still proficient in the testing

techniques. In August 2017, O'Connor was promoted to assistant director of

the Forensic Biology Department, a position he still held at the time of his

testimony.

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O'Connor testified that the relevant scientific community for LCN DNA

testing was international. He identified several individuals that he claimed

were members of the relevant scientific community, including Peter Gill, a

pioneer in LCN DNA testing from the United Kingdom; John Buckleton, a

pioneer in LCN DNA testing and probabilistic genome typing from New

Zealand; Hinda Haned, a pioneer in probabilistic genome typing programs

from the Netherlands; and John M. Butler, a scientist with the National

Institute of Standards and Technology (NIST), who has published several

books on forensic DNA analysis, including one that has a chapter devoted to

LCN DNA testing.

O'Connor claimed that the Scientific Working Group on DNA Analysis

Methods (SWGDAM) was also part of the relevant scientific community.

SWGDAM is part of the Federal Bureau of Investigation (FBI) and is

comprised "of professionals within the scientific community that look at DNA

testing and typing, methods and interpretations, and . . . put out guidelines, and

occasionally standards." He also considered the New York State Commission

on Forensic Science (CFS), which accredits all laboratories in the state, and its

DNA Subcommittee, which reviews validation studies and laboratory

procedures, to be part of the relevant scientific community.

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O'Connor testified that the Forensic Biology Department at OCME

began doing DNA testing in 1991. In 1994, it started doing STR DNA testing,

and was approved for LCN DNA testing, also known as high sensitivity testing

or low template DNA testing, by the CFS after a binding recommendation by

the DNA Subcommittee in December 2005. LCN DNA testing is used on

items of evidence expected to contain small amounts of DNA. It is a

modification of the conventional STR DNA technique designed to increase its

sensitivity. O'Connor testified that OCME had done LCN DNA testing for the

FBI and more than eighty jurisdictions in ten states.

O'Connor explained that except for identical twins, DNA can be used to

identify individuals and link them to evidence.

DNA testing involves several steps. The first is to examine evidence for

the presence of biological material. The next step is DNA extraction where the

DNA is separated from other parts of a cell and measured. Testing is stopped

if there is not enough DNA.

After quantification, an analyst decides whether conventional STR DNA

testing, also referred to as high copy number testing, or LCN DNA testing

should be used. Copies of the DNA at the locations selected for testing are

then made using a process called Polymerase Chain Reaction (PCR). Because

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there are three to four billion base pairs, testing can be done only on selected

locations, referred to as loci.

In 2012, when OCME processed the samples obtained in this case, it was

using a product called Identifiler to perform PCR. Identifiler was able to

examine sixteen loci. Identifiler's manufacturer recommended twenty-five to

twenty-eight PCR cycles but also advised that each laboratory should perform

the appropriate validation steps to determine the optimal number of cycles. In

conventional DNA testing, twenty-eight PCR cycles were run by OCME, and

for LCN DNA testing, thirty-one cycles were run. This process is known as

amplification.

DNA is measured in picograms, which are one trillionth of a gram. Each

cell contains about six picograms of DNA. In 2012, the optimal amount of

DNA for OCME's conventional STR testing was 500 picograms, but the

testing could be done with only 100 picograms. LCN DNA testing was done

on any sample containing less than 100 picograms of DNA.

Once amplification is complete, capillary electrophoresis is performed,

which involves running the sample through a matrix to separate out fragments

of DNA by size. The analyst can review and interpret the results of this

process on an electropherogram, which represents the different alleles by

numbers. An allele is a difference of the DNA at a location. For example, eye

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color is a locus on the DNA and the allele would determine the color of a

person's eyes.

OCME's validation process for LCN DNA testing began in 2001 and was

completed in 2005. The 2004 SWGDAM Validation Guidelines, as well as the

FBI's 1998 quality assurance standards, were followed and over 800 samples

were tested. O'Connor testified that reliable DNA profiles were obtained from

as little as 6.5 picograms of DNA. OCME modeled its validation studies on

procedures used in the United Kingdom for LCN DNA testing. Several other

countries also used LCN DNA techniques in criminal cases including

Australia, Italy, Belgium, the Netherlands, New Zealand, Croatia, and Spain.

O'Connor acknowledged that stochastic, or random, effects are more

common in LCN DNA testing than in conventional high copy number testing.

Stochastic effects can include increased stutter products, allelic drop-in, allelic

drop-out, and peak imbalance. 4 Stutter is a biological phenomenon that

happens during PCR. Allelic drop-in "is a term that's used when you see

pieces of DNA that aren't expected to be in the sample." Possible causes of

allelic drop-in are an additional contributor or contamination. Allelic drop-out

is where an allele that should be present is absent. Peak imbalance occurs

4
These stochastic effects are also referred to as "artifacts."

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when there are two alleles at one location that should be the same height on an

electropherogram, and one peak is much lower than the other.

OCME made "some general modifications" in its LCN DNA testing

protocols to account for stochastic effects. One modification was to increase

the number of PCR cycles from twenty-eight to thirty-one "to try and get some

more amplification of those products." Another was to test the sample three

times during the amplification process and use a combination of the three

results. This consensus approach only includes alleles in a DNA profile if they

are seen at least twice in the three test results. According to O'Connor, this

approach accounts for allelic drop-in because it is a "rare random occurrence"

and "you wouldn't expect it to be seen in more than one of the runs."

O'Connor testified that most laboratories performing LCN DNA testing use the

consensus approach. He identified a comment by Butler in his book,

Advanced Topics in Forensic DNA Typing: Methodology (Methodology book)

that states, "this replicate amplification strategy has become the core feature of

reliable Low Level [DNA] Testing."

O'Connor explained that scientific experiments generally yield

reproducible results, meaning that if you ran the test multiple times you would

get the same result. However, because of the stochastic effects when dealing

with low amounts of DNA in LCN DNA testing, one would not expect the

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same allele calls at the same peak height value every time. He agreed that the

purpose of triplicate amplification was to try to account for stochastic effects

such as drop-in and drop-out. The electropherograms for the three

amplifications would be different but "the reproducibility part of it would be

that the conclusion is reproducible, not the exact alleles and the exact peak

heights." O'Connor claimed that reproducibility of the conclusion was shown

to be accurate in OCME's validation studies. He did not deny that LCN testing

was "less robust" than conventional STR analysis and acknowledged one

would expect to get less information from lower amounts of DNA, which is

why OCME modified its interpretation protocols to account for stochastic

effects.

O'Connor testified that by 2014, enough laboratories were using "low

amounts of DNA that SWGDAM thought it necessary to come out with

guidelines [on] how to deal with these enhanced detection techniques."

Enhanced detection techniques include extra amplification cycles. The 2014

SWGDAM Guidelines for STR Enhanced Detection Methods (2014

SWGDAM Guidelines) state that if a laboratory chose to use LCN DNA

Analysis, "it is strongly recommended that the laboratory incorporate Replicate

Amplification Analysis." According to O'Connor, the significance of the 2014

SWGDAM Guidelines is that enhanced detection methods had "become

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widespread throughout the scientific or the forensic DNA community and

[were] generally accepted [such that] SWGDAM took it upon themselves to

offer guidelines to . . . standardize the way that the validation was done with

these methods."

O'Connor testified that after an electropherogram is done, the analyst

estimates the number of contributors and makes a comparison to a known

individual. When there is a single contributor to the DNA sample, a random

match probability is calculated, which is the "probability of randomly selecting

a person from the population that would also have this DNA profile." Sample

1 from Van Winkle Avenue was a single source sample; the random match

probability was calculated as 1 in 88.1 billion people, using the Hardy

Weinberg equation, which looks at the frequency of alleles in population

databases.

O'Connor explained there are two alleles at each locus in a DNA sample

because a person gets half of their DNA from each parent. When most of the

loci in a DNA sample have more than two alleles, the sample is identified as a

mixture with more than one contributor. O'Connor noted that mixtures are

very common in conventional as well as LCN DNA testing. A person can be

excluded or included as a possible contributor to a mixture. The National

Academy of Sciences, SWGDAM, and other scientific bodies in the forensic

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DNA community have recommended that "a statistic should accompany any

positive associations" in a mixture sample.

A likelihood ratio is a tool for measuring the probability that a person is

included as a possible contributor to a DNA sample. Prior to 2009, only a few

programs used likelihood ratios "to determine strength of evidence in mix tures

and DNA analysis." Because the programs were not commercially available,

OCME developed its own program, FST, to calculate likelihood ratios. By

2015, several other laboratories had developed software like FST to calculate

likelihood ratios.

O'Connor described OCME's development and internal validation

process for FST. He said that over 400 samples were tested, and more than

500,000 comparisons were performed. George Carmody, Ph.D., a population

geneticist and forensic statistician in this field was a member of the DNA

Subcommittee when it approved FST. He voted in favor of its approval. In

October 2010, the DNA Subcommittee recommended that FST be approved for

forensic casework.

Thereafter, FST was modified twice. Shortly after it was first brought

online, it was taken offline because it produced a negative likelihood ratio,

which was mathematically impossible. At that point, the software had already

been validated. Some "unrelated maintenance" that purportedly caused the

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problem was addressed and testing verified that it was calculating correctly.

Later, some "cosmetic changes" were made. After each of those changes a

performance check was done but the software was not re-validated.

FST is used for both conventional and LCN DNA testing. According to

O'Connor, "based on the fact that it was properly validated, the results are

reliable and the likelihood ratios that are obtained . . . make sense and are

reliable based on the data and the comparisons that are being done."

O'Connor testified that FST was not used on single-source samples; it

was only used where there was a two- or three-person mixture. FST was used

to calculate likelihood ratios for Sample 2, a mixture containing twenty -five

picograms of DNA.

FST calculated that it was "approximately 71.2 million times more

probable that [Sample 2] originated from . . . Vernieri and one unknown,

unrelated person than if it had originated from two unknown, unrelated

persons." O'Connor contended the methodology was generally accepted within

the relevant scientific community.

In September 2016, OCME wrote to customers describing new

technologies to be implemented in 2017. PowerPlex Fusion was a new DNA

typing kit that could look at twenty-four loci rather than the sixteen examined

by Indentifiler. The change was necessary because the FBI increased the

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number of core locations that had to be tested for inclusion in the Combined

DNA Index System (CODIS), the national DNA database. In addition,

PowerPlex Fusion is more sensitive than Identifiler and allows DNA profiles

to be determined from samples as small as 37.5 picograms without using any

LCN DNA testing modifications.

O'Connor maintained that moving to PowerPlex Fusion was not a

refutation of the LCN DNA testing previously done by OCME. He explained

that there was a cost benefit to using PowerPlex Fusion because they could

obtain profiles from smaller samples without running additional amplification

cycles. At the time of O'Connor's testimony, OCME was still using LCN

testing for old cases that were pending trial or might need additional work but

had stopped using it on any new cases.

O'Connor testified that the samples from Van Winkle Avenue contained

19.4 picograms amplified of DNA in Sample 1, and 25 picograms amplified in

Sample 2. If the samples had been taken after OCME switched to PowerPlex

Fusion, the one that was 19.4 picograms would not have been able to be tested.

The 25 picogram sample could be tested because the PowerPlex Fusion

amplification tube is larger than the one used in Indentifiler and when

amplified, the sample would have 37.5 picograms of DNA, which is the lower

limit for PowerPlex Fusion. He contended, however, that even if the samples

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could not have been tested using PowerPlex Fusion, it did not make the results

of the LCN DNA testing unreliable because OCME's validation of the process

and review by the DNA Subcommittee showed it was reliable. O'Connor

testified that OCME processed dozens of cases with samples below twenty-

five picograms.

When OCME began using PowerPlex Fusion it also began using a tool

called STRmix to calculate likelihood ratios. OCME did not use FST on any

case received after 2017 but was still using it on cases that were amplified

using Indentifiler.

O'Connor identified a December 2017 letter from the chair of the DNA

Subcommittee written in response to allegations made by the Legal Aid

Society (LAS), the primary public defender in New York City, and the Federal

Defenders of New York regarding FST and OCME's LCN DNA testing

methodology. The letter reported that the DNA Subcommittee had reviewed

OCME's response to the allegations and over 1700 pages of supporting

documentation.

The letter stated the "DNA Subcommittee concludes it was appropriate

for the OCME to use 31 PCR cycles in accordance with the OCME's validated

casework protocols" and that "[b]ased on the validations performed by the

OCME, the DNA Subcommittee believes that the OCME could, using their

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LCN methodology, potentially identify a major contributor to a DNA mixture

regardless of the number of minor contributors." It also stated that "OCME

performed adequate performance checks prior to the use of Versions 2.0 and

2.5 [of FST]" and "[a]ccordingly, the DNA Subcommittee [did] not believe

that any re-validation was required." In addition, "OCME used reasonable

scientific methods to estimate the role of allelic drop-out in [its] FST

software." O'Connor felt that the letter represented an acceptance of OCME's

LCN DNA testing methodology by members of the relevant scientific

community.

On cross-examination, O'Connor testified that LCN DNA profiles can be

uploaded to state and local databases, but the FBI does not allow them in the

national database. The FBI Laboratory DNA Case Work Unit (DCU), Case

Acceptance Policy, states that "the usage of test strategies to enhance the

detection of DNA, sometimes referred to as . . . LCN testing, is currently being

researched by the FBI laboratory; however, none have yet demonstrated the

necessary reliability for use in forensic case work by the DCU nor [are any]

approved for uploading [into CODIS]." O'Connor disagreed that the FBI had

deemed LCN testing unreliable and claimed that the FBI was not commenting

on OCME's research or validation but, rather, was only commenting that

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through its own research, the FBI had not yet demonstrated the "necessary

reliability to be used in their casework."

O'Connor acknowledged that there are members of the relevant scientific

community that oppose the use of LCN testing and likelihood ratios in

criminal casework. He claimed that was not surprising because "there have

been dissenters [to] every single technology that has been used in forensic

DNA since the beginning." He was unaware of any current dissenters to high

copy number testing but said in the early days there were people opposed to its

use in criminal cases.

Howard Baum, Ph.D., also testified for the State as an expert in forensic

DNA analysis and the statistical significance of those results, molecular

biology, and LCN DNA analysis. Baum began working for OCME in 1990.

He was tasked with setting up OCME's DNA laboratory. Early on in his role

as Technical Leader, Baum reviewed every DNA case processed by the

laboratory.

Baum worked at OCME for eighteen years and served as its Deputy

Director for his last eight years. He also retained his position as Technical

Leader and in that role was "responsible for directing and reviewing validation

of new and modified techniques" and oversaw the validation of OCME's LCN

DNA testing. Baum left OCME in 2008.

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Baum considered LCN DNA testing to be "an extension of an existing

methodology" rather than a new methodology. He explained that LCN testing

is "basically performed the same way as high copy number . . . testing." DNA

is extracted, quantified, and amplified "essentially in the same way, but with

lower amounts." Even though amplification is run three times, the DNA is

"still separated the same way [and] the peaks or alleles are detected the same

way."

Baum related that in the late 1990s, Gill published a paper addressing

LCN DNA analysis. At the time, less than 200 or 300 picograms was

considered LCN and analysts were unable to obtain satisfactory DNA profiles

from such samples. Gill determined that DNA profiles could be obtained from

smaller amounts of DNA by increasing the number of amplification cycles.

Gill recognized that the analysis had to account for artifacts such as peak

imbalance and allelic drop-in and drop-out. He suggested that by amplifying

more than once and developing a consensus profile, the effects of these

artifacts could be mitigated. Based on Gill's work, OCME began to research

LCN DNA testing. The research phase took several years. Once a protocol

was established the validation phase began.

Validation involved multiple experiments to test the limits of DNA

detection and issues with artifacts. One goal during validation was to

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minimize or mitigate the artifacts. During the four to five years of research

and validation, OCME scientists also conferred with other laboratories that

were working on LCN testing. Baum testified that OCME's LCN validation

was the most extensive validation he had ever overseen.

OCME submitted the validation data to the DNA Subcommittee, which

made a binding recommendation to the CFS that OCME be permitted to

employ LCN testing in forensic case work. OCME's protocols, which were

approved by the DNA Subcommittee and the CFS, required thirty-one PCR

cycles, three cycles of amplification, the formation of a consensus profile, and

considered artifacts that could occur. Baum identified the members of the

DNA Subcommittee as members of the relevant scientific community.

Baum claimed that the LCN technique was generally accepted within the

relevant scientific community, "but not with unanimity." He recalled that in

the mid-1990s there was also opposition to conventional STR testing by some

members of the relevant scientific community. One objector was Bruce

Budowle, who oversaw the FBI's research division. By the late 1990s, the FBI

instituted STR testing.

Baum testified that Butler was a member of the relevant scientific

community. In one of his reference books, Butler pointed out "some of the

concerns and how to solve [them]" regarding LCN DNA testing. Butler also

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commented that replicate amplification strategy, which is used to create a

consensus composite profile, "has become the core feature of reliable low level

DNA testing." Baum stated that consensus profiles had been used for regular

STR typing in the "earlier days of DNA testing," and were now used in "next

generation sequencing" and "mitochondrial DNA sequencing."

A peer-reviewed article that Baum co-authored described the protocol

OCME was using for LCN DNA testing and reported that amplification of 100

or less picograms of DNA generated reproducible results. The article stated

the interpretation protocol achieved 100 percent "accurate allele assignments

for over 107 non-probative case-work samples and 319 forensic case work

samples." The article concluded that LCN DNA testing was "reliable and

robust" and that "an appropriate quality control program" ensures that LCN

DNA testing "is suitable for forensic purposes."

Baum testified that LCN DNA profiles were included in the New York

City and New York State databases but were not allowed in CODIS. He

agreed that some held the view that the profiles were not allowed in CODIS

because they are inherently unreliable, but he did not agree.

Baum contended that the fact that the source code for FST was not

publicly available did not make the program unreliable as long as it was tested

properly. He considered approval by CFS and the DNA Subcommittee to be

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an indication that the program was properly tested. He also asserted that the

2014 SWGDAM Guidelines addressing LCN testing would not have been

issued "unless they felt it was a relevant issue that is being practiced in the

community." Baum noted that in 2015, SWGDAM issued "Guidelines for the

Validation of Probabilistic Genotyping Systems" that were significant because

probabilistic genotyping systems were "an important issue that is being

practiced in the community and gaining more acceptance and more usage."

Baum testified that PowerPlex Fusion was developed "because the FBI

increased the number of required loci from 13 to 20" and the new program was

needed to meet that requirement. Baum was aware that OCME began using

PowerPlex Fusion in January 2017 and is no longer using the LCN DNA

testing technique. He viewed the switch as a change to updated technology

and did not believe it rendered the LCN DNA testing technique unreliable.

On cross-examination, Baum agreed that Budowle, Coyle, Arthur

Eisenberg, Angela Van Daal, Ranajit Chakraborty, Eli Shapiro, Deborah L.

Hobson, Jill B. Smerick, and Jennifer A.L. Smith were all members of the

relevant scientific community. He was aware that Eisenberg, Budowle, and

Van Daal had written papers criticizing the use of LCN DNA testing in

forensic criminal cases.

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He testified that Chakraborty was on the DNA Subcommittee when it

considered OCME's LCN validation and that, at the time, Chakraborty was in

favor of validating the technique but has since had a "change of heart."

Baum was asked about a paper written by Budowle, Hobson, Smerick,

and Smith that noted the authors had problems with the use of LCN in forensic

criminal trials. Baum said the paper was an "early objection" regarding the

kits that were in use before Identifiler and that OCME had some of the same

issues with the earlier kits. Baum acknowledged that Budowle and others also

wrote a paper that was critical of LCN DNA testing that was published in the

same issue of the Croatian Medical Journal as Baum's paper.

Baum admitted that some of the members of the DNA Subcommittee

may not have been familiar with LCN DNA testing and that not all members of

the Subcommittee read the documentation that OCME provided to them.

Baum considered LCN DNA testing to be reproducible. However, when

the sample is run three times, the same alleles may not all be present in each

run, but the consensus profile is reproducible. Baum stated that during the

OCME's validation process, which involved 800 samples, they were able to

"account for 100 percent of the validation data by doing three runs."

The Defense Witnesses

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Angela Van Daal, Ph.D. testified as an expert in genetics and molecular

biology, forensics, statistics, and probability. In 1991, Van Daal was hired by

Adelaide Forensic Science (AFS) Laboratory to implement DNA typing for

use in court proceedings. The laboratory used high copy number DNA testing

and she used LCN only for research purposes. After spending seven or eight

years with AFS Laboratory she taught undergraduate and graduate forensic

science courses, followed by consulting in forensic sciences, which involved

reviewing case work issued by forensic labs globally.

Van Daal testified that some laboratories in Europe started using LCN

testing after Gill published his paper describing the technique in 1999 but

OCME was the only laboratory in the United States to implement the

technique. Van Daal believed that Gill was "one of the top five recognized

people in this field." According to Van Daal, the LCN technique used by

OCME differed from that of other laboratories because many of the other

laboratories only do two replicates and must see the allele in both to include it

in a DNA profile, whereas OCME does three replicates and includes an allele

if seen in two out of the three.

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Van Daal testified "[t]here are numerous problems with LCN" testing

including allele drop-out, stutter,5 contamination, and that the results are not

reproducible. She explained that when the replicates are run, "different alleles

are seen in different replicates." Van Daal criticized OCME's use of a

consensus profile, pointing out that alleles that are not part of the consensus

are ignored in the interpretation. Also, because such small amounts of DNA

are involved, the process "is extremely sensitive to contamination." Further,

peak height imbalance makes results difficult to interpret. Van Daal asserted

that "[t]he issues with LCN are widely recognized in the forensic community."

According to Van Daal, the results reported by OCME for the samples

obtained from the Van Winkle Avenue condominium were unreliable. She

explained that LCN mixture samples are very difficult to interpret, and the

difficulty is compounded by missing alleles and imbalanced peak heights. She

claimed that "mixtures can appear to be from a different number of

contributors than they truly are" and opined that Sample 1 appeared to have

"potentially two or more contributors," while Sample 2 "looked to have more

than two contributors."

5
Van Daal explained that stutter is a peak that appears in an electropherogram
that was not the true peak.

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Van Daal maintained that "the main use of LCN [testing] is for

investigative purposes in missing persons cases." In those cases, the sample is

from a single source and can be compared to a known reference sample. LCN

testing is also used in the "medical arena," such as "pre-implantation genetic

diagnosis" where both parents are known, and a single source sample is

involved. Van Daal claimed that in those settings, the stochastic effects

associated with LCN testing could be accommodated, and its use was

"perfectly acceptable".

Van Daal testified that SWGDAM did not endorse the use of LCN

testing. She pointed out that the 2014 SWGDAM Guidelines state that "this

document does not offer an opinion on the viability of any Enhanced Detection

Methods, including Low Template and [LCN] DNA Analysis." She believed

the guidelines were developed "for the laboratories doing DNA identification

work from missing persons and remains" and did not endorse LCN testing in

other applications.

Van Daal opined that the relevant scientific community has not accepted

LCN testing as reliable. She claimed that "numerous" other scientists believed

LCN testing was unreliable and that the majority of scientists she talks to

"would not think it's a reliable method." Van Daal pointed out that in the

twelve years since OCME began using LCN DNA testing, no other laboratory

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in the United States adopted this method. She asserted "that the lack of use of

LCN by laboratories around the world is indicative of the lack of acceptance of

it."

Van Daal further testified that OCME is the only laboratory to use FST

"as a statistical interpretation tool." She opined that FST had "significant

limitations in interpretation." She claimed that most LCN samples are

degraded, and testified that OCME developed a degradation model for FST.

When the model did not work, it was abandoned and FST, therefore, does not

account for degradation. Van Daal opined that the samples from Van Winkle

Avenue tested by OCME appeared to be degraded.

Van Daal criticized OCME's FST validation because it did not account

for degradation and because if you incorrectly "nominate the number of

contributors to the profile . . . the weighting is also incorrect." Van Daal

opined that FST could not give reliable results. She noted that FST has not

been peer reviewed because no one had access to the proprietary code. Van

Daal testified that the relevant scientific community has not accepted FST as

reliable.

On cross-examination, Van Daal said that except for two members, the

members of the DNA Subcommittee were all academics who had never done

forensic work, so she was not sure if they would be considered members of the

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relevant scientific community. Van Daal agreed that Butler was a member of

the DNA forensic science community, and she used his Methodology book as a

textbook for her students. She acknowledged that in the book, Butler

identified several laboratories around the world, including OCME, that were

using enhanced detection protocols in LCN DNA case work. Butler reported

that by early 2010, the United Kingdom's Forensic Science Service (FSS), had

used LCN analysis in over 21,000 cases. He also stated that in 2008, Great

Britain's Crown Prosecution Service concluded after an internal review that

there was "no reason to believe that there [was] any inherent unreliability in

the [FSS's] LCN DNA analysis process[,] provided that it is carried out

according to the prescribed processes and the results are properly interpreted."

Van Daal acknowledged that Andrew Rennison, a British forensic science

regulator, issued a statement that the science underpinning the process was

sound.

Van Daal also acknowledged that Butler devoted an entire chapter in his

Methodology book to "Low Level DNA Testing: Issues, Concerns and

Solutions." Van Daal did not believe that including this chapter showed

general acceptance in the scientific community. She disagreed with Butler's

statement that replicate amplification "has become the core feature of reliable

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low level DNA testing." She stated that her research showed fewer stochastic

effects when samples were not split and subjected to replicate analysis.

Eli Shapiro, Ph.D., testified as an expert in forensic biology and forensic

DNA analysis. He was hired by OCME in 2000 as a training coordinator. In

that role, he trained scientists in laboratory techniques used in DNA forensic

work, including the interpretation of results. Shapiro also did case work at

OCME and was eventually promoted to assistant director. He was in charge of

case work and training for the mitochondrial DNA group. Shapiro was with

OCME for over ten years, but never used FST while employed there.

Prior to joining OCME, Shapiro had no forensic experience. Nor had he

authored an article relating to forensic DNA or statistics in a peer-reviewed

journal. Shapiro was not a member of any professional organization related to

forensic DNA analysis.

Shapiro called FST a "black box" because at first, "OCME would not let

anyone look at the source code" and, therefore, "you could not independently

reproduce that software and get the same result." He acknowledged, however,

that OCME was ordered to release the source code in 2015 or 2016.

Shapiro criticized the estimated drop-out rates used in the validation of

FST. He testified that "if you underestimate drop out which is the basic

strategy of the FST, you will overestimate the strength of the evidence."

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Shapiro claimed that was "part of the design" of FST. "The difference

between a 50% and a 5%" drop-out rate "could make a difference . . . in the

likelihood ratio . . . in the tens of thousands, or hundreds of thousands or

millions."

Shapiro also criticized the "pristine, very high quality buccal exemplar

swabs" used in the validation claiming "[t]hat does not relate at all to . . . the

casework situation" where "touch samples" may have degraded and "have a lot

more drop in than the pristine samples." He asserted that "the dropout rates

and the conditions that were set by the validation are not applicable or relevant

to the actual casework." Shapiro contended that OCME "got lower estimates

of the dropout rates by using very high quality samples [and] by also running

[the samples] with the highest injections to limit the number of drop out[s]."

Shapiro also testified that OCME "changed the numbers" when it did not

observe any drop-out in its validation experiments. According to Shapiro,

OCME arbitrarily lowered drop-out rates below empirically observed rates.

He opined that "for most of the casework examples [in the validation,] the drop

out rates [were] underestimated," and the drop-out rate used by FST for

mixture samples was "way too low." Shapiro asserted that OCME investigated

a degradation model for drop-out rates during validation, but it did not work

and was not included in the final version of FST. He opined that ignoring

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degradation in probabilistic genotyping was not generally accepted in the

scientific community.

Shapiro explained that the number of contributors was "an important part

of the math formula" used by FST to calculate likelihood ratios. He found it

problematic that OCME ignored alleles that appeared only once when

constructing a consensus profile. He also noted that OCME's protocols

ignored peaks appearing on an electropherogram below a certain threshold,

which could be alleles signifying a potential new contributor or potential drop -

out

Shapiro opined that FST was not generally accepted in the scientific

community and that many of the assumptions FST makes are not generally

accepted. For example, "using the original quantitation as the step to setup a

lot of the parameters." In addition, "using preset drop out and drop in rates

without access, or even attempting to match it to the evidence is not generally

accepted in the probabilistic genotyping [community]." Shapiro noted that

FST was the only program that used preset drop-in and drop-out rates and

opined that practice was not generally accepted in the scientific community

"because it's divorced from the real data." He stated that only OCME used

FST and no one other than OCME ever conducted controlled experiments

using FST.

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On cross-examination, Shapiro admitted that he did not review any of

the raw data from the FST validation study. Instead, he "only looked at a

limited part of the validation," which included the "charts, tables, summaries,

conclusions, drop out rates, drop in rates, et cetera."

Shapiro acknowledged that the members of the DNA Subcommittee

were members of the relevant scientific community. He also acknowledged

that Butler was a member of the relevant scientific community and that in his

book, Advanced Topics in Forensic DNA Typing: Interpretation, Butler listed

probabilistic genotyping software programs, including FST, and commented

that such software "can produce standardized and uniformed results from

complex mixtures."

Coyle, who was previously qualified at trial as an expert in DNA

analysis and the statistics associated with it, testified for the defense. She

stated that LCN DNA testing was "very similar" to conventional STR testing

except that "the quantity that you start out with is less than 100 picograms a nd

the test amplifications are performed in triplicate." However, with LCN

testing "there's a higher rate of non-reproducible alleles . . . that are not

reported or included in the consensus profile." She claimed LCN testing was

not reproducible because "you cannot get exactly the same profile most of the

time," and explained that in "normal scientific testing" it was important to get

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the same result each time a piece of evidence was tested to show that the

results are reliable and scientifically accurate.

Coyle maintained that proponents of LCN testing, like Butler, have set

an arbitrary number of three replicates because in their validation studies they

realized they had to run additional replicates to find reproducible alleles. She

noted that in LCN testing, you usually do not obtain the same results when you

run three replicates because many alleles do not repeat. Coyle agreed that all

labs using LCN DNA testing build consensus profiles from triplicate runs.

Coyle disputed that the consensus profiles rendered LCN DNA testing

reproducible and opined that it is not scientifically reliable because it is not

reproducible. She asserted that a consensus profile "really is cherry -picking

only the reproducible alleles and omitting information about all of the other

scientific data that we see." Coyle characterized such profiles as a "slight of

hand" to "force-fit[] the data . . . to make it reproducible."

Coyle claimed that omitting non-repeating alleles from the consensus

profiles is problematic when attempting to determine "how many contributors

are actually in the sample." She maintained that "[i]f you only count the

[alleles] in the consensus profile, you can underestimate the number of true

contributors." To get a correct statistical result from FST, the true number of

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contributors to a DNA sample must be known, and therefore, ignoring the non -

repeating alleles was scientifically incorrect.

Coyle testified that no contaminant alleles were permitted in OCME's

conventional DNA testing, but up to nine contaminant alleles were allowed in

LCN DNA testing. Moreover, OCME often does not know where those alleles

came from and there is "no way, scientifically, to determine if . . . those alleles

are actually contaminants or if they're from another donor that was on the

sample . . . ." Coyle believed it was "scientifically inappropriate" to allow the

contaminant alleles in LCN testing. Moreover, artifacts including stutter,

allele drop in and dropout, and peak height imbalance are all exaggerated with

LCN DNA testing and reduce the ability to reliably interpret the data.

Although Coyle recognized that it was appropriate to use LCN DNA

testing to identify skeletal remains in the context of missing persons, she

maintained that "[m]issing persons identifications [are] not the same as

criminal casework where you're dealing with very trace amounts of DNA with

high contamination in the background." Coyle testified that crime scene

samples are often contaminated because "a lot of the crime scene personnel are

not trained in [LCN] testing and how to collect [samples]." She opined that

LCN testing "should not be used [in] criminal case work because of the

contamination issues and the difficulty in interpreting the PCR artifacts." She

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further opined that LCN DNA testing was not generally accepted by the

scientific community for use in a forensic setting "because of the high

contamination risk." On cross-examination, she acknowledged that the LCN

testing technique was the same whether used for criminal casework or missing

persons identification.

Coyle was aware that there were laboratories in other countries that use

LCN DNA testing, but she was unfamiliar with their procedures and did not

know which used the technique for criminal casework. She noted that while

Gill favored using LCN testing as a tool, he did not represent the entire

forensic science community. She identified Budowle, Van Daal, Shapiro, and

Eisenberg as other scientists who do not believe LCN testing is reliable. She

claimed that many authors "have questions and concerns about [LCN] testing."

Coyle noted a 2008 letter to the editor of the International Journal of Legal

Medicine signed by six authors stated:

[T]he stochastic effects associated with the small
amount of template, allele drop-out and drop-in,
exaggerated peak [im]balance, and stutter coupled
with the diminished ability to ascertain the tissue
source of DNA samples or how long they have been
associated with an article, dramatically reduced the
weight that can be attached to the finding of an LCN
DNA profile match. Given the acknowledged lack of
consensus in [] interpretation, among other concerns,
as well as the availability of viable alternative
approaches . . . it is unlikely that LCN test[ing] . . .
will be embraced by crime laboratories in the [U.S.] or
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48
that such results would be deemed to be admissible if
they were challenged.

Coyle emphasized that LCN testing was still not accepted by most crime

laboratories in the United States.

Coyle identified an article titled "Low Copy Number Typing Has Yet to

Achieve General Acceptance." The article was critical of OCME's use of LCN

DNA testing, stating: "The OCME approach is inconsistently applied and

overstates the weight of the evidence." A 2001 article titled "Low Copy

Number Considerations and Cautions," stated that the success rate of LCN

testing is low and "[o]ften, the results cannot be interpreted or are meaningless

for the case." The authors of that article, Budowle, Smerick, Hobson, and

Smith, all worked in the in the FBI's laboratory division.

Coyle noted that while the 2014 SWGDAM Guidelines provided

guidance to laboratories interested in LCN technology, the guidelines did not

impose standards, endorse the technology, or approve it for use.

Coyle criticized OCME's FST validation, noting that when DNA samples

were treated with ultraviolet light, which was similar to exposing them to

sunlight, OCME "could not effectively model or use the FST." In these

degraded samples, OCME "could not distinguish between people who had

actually touched items and people who had never touched the item" and there

was "a lot of false matching due to the partialness of the profiles that they
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49
obtained back." Coyle contended that OCME could not determine consistent

drop-out rates for degraded samples, so FST uses drop-out rates for pristine

samples. She opined that it was not generally accepted in the scientific

community to ignore degradation when calculating genotyping statistics.

Coyle further opined that FST was not generally accepted by the

scientific community. She explained that FST was an in-house software

program that was not commercially available and could not be tested by

anyone else. According to Coyle, other members of the scientific community

believe FST is not reliable including Budowle and Chakraborty, who was a

member of the DNA Subcommittee that approved FST and who has since

changed his mind.

On cross-examination, Coyle acknowledged that Butler devoted an entire

chapter to LCN DNA testing in his Methodology book, which listed several

laboratories that performed LCN DNA testing. She agreed that two of the

laboratories in the United Kingdom as well as laboratories in the Netherlands

and New Zealand were using the technique for criminal cases in 2018, and that

the scientists working at those laboratories were members of the relevant

scientific community. Coyle also agreed that Butler reported that increasing

the number of PCR cycles from twenty-eight to thirty-one improved the

success rate for a correct DNA profile.

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Coyle testified that using LCN DNA testing to exonerate someone was a

different matter than using the technique to incriminate someone. She

conceded that when an analyst performs the testing, they do not know whether

the test results will implicate a defendant. She identified issues with

contamination as the basis for treating the results differently.

Coyle acknowledged that the members of the DNA Subcommittee were

members of the relevant scientific community. She agreed that the DNA

Subcommittee reviewed OCME's LCN DNA testing protocols in 2005, 2014,

and 2017, and that in an October 2010 letter, the DNA Subcommittee also

made a binding recommendation to the CFS that "the use of FST by the OCME

be approved for forensic casework."

Coyle further acknowledged that the 2014 SWGDAM Guidelines state

that if a laboratory chooses to do LCN testing "it is strongly recommended that

the laboratory incorporate [] replicate amplification analysis." The guidelines

further state: "Where replicate analysis is required, the laboratory must have an

interpretation procedure to determine how to generate the final consensus

DNA profile." Coyle agreed that OCME performs replicate amplification and

has written procedures for generating a consensus profile.

Coyle also acknowledged that between 2000 and 2010, the FSS lab in

Great Britain processed 21,000 items of evidence using LCN testing. She

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understood that some other scientists disagreed with her and "believe[d] in the

three-replicate process and building a consensus profile."

THE TRIAL COURT'S FRYE HEARING DECISION

On August 23, 2018, the trial court issued a lengthy written opinion that

concluded the State had "met its burden under the Frye standard and clearly

established that the LCN DNA testing technique and the FST [are] generally

accepted in the relevant scientific community and therefore, admissible." An

accompanying order denied defendant's motion for a new trial.

The court found O'Connor, Baum, Van Daal, and Shapiro to be credible.

The court found Coyle "credible in her knowledge of scientific principles

concerning LCN DNA" but "less than credible, when she testified that LCN

DNA testing methods were not reliable in forensic cases where the information

was used to include a defendant as a suspect, but were reliable and should be

used in cases where the information was utilized to exclude a defendant as a

suspect."

The court took note of five scientific articles submitted by the defense

that were critical of LCN testing and FST, and seven articles submitted by the

State in support of the techniques, along with the Butler books. The court also

took judicial notice of twenty-one New York state court decisions, fourteen of

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which were unpublished. 6 In all but two of the cases, the courts determined

that LCN and FST evidence was admissible after holding Frye or Daubert7

hearings or determining that a Frye hearing was unnecessary. In one

unpublished case, a Frye hearing was ordered but never took place. In the

final case, People v. Collins, 49 Misc. 3d 595, 629 (N.Y. Sup. Ct. 2015), both

LCN DNA and FST evidence were held to be inadmissible under the Frye

standard.

In finding that both LCN testing and FST met the Frye standard for

admissibility, the court relied on the similarities between LCN and

conventional high copy number testing, endorsement of the LCN technique by

Gill and Butler, who the court identified as leading scientists in the field,

OCME's "extensive validation procedures," the approvals of the CFS and DNA

Subcommittee, and the New York court decisions. The court concluded that it

could not "be credibly argued . . . that LCN DNA results are reliable to rule

suspects out, but not to implicate suspects." It further determined:

LCN DNA testing is not a novel technique, it is not
junk science, it is not even experimental; it is
demonstrable, has been used by renowned scientists
here and abroad, and validated and approved multiple

6
Unpublished opinions do not constitute precedent, are not binding, and with
limited exceptions, shall not be cited by any court. R. 1:36-3.
7
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

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53
times . . . by the DNA Subcommittee and the [CFS].
The method has been discussed favorably (and
unfavorably) in learned treatises and ruled accepted in
the scientific community in a majority of judicial
proceedings.

The court also found that defendant's concerns regarding contamination and

stochastic effects had been addressed by OCME's LCN testing protocols and

those concerns go to the weight of the evidence, not its admissibility. This

appeal followed.

We granted leave to appear as amicus curiae to the Office of the Public

Defender. Defendant raises the following points for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN ITS
CONCLUSION, FOLLOWING THE POST-
VERDICT FRYE HEARING ORDERED BY THIS
COURT, THAT LOW COPY NUMBER DNA
TESTING ("LCN") AND THE FORENSIC
STATISTICAL TOOL ("FST") UTILIZED IN THIS
CASE MET THE FRYE/HARVEY STANDARD AS
GENERALLY ACCEPTED WITHIN THE
RELEVANT SCIENTIFIC COMMUNITY FOR
FORENSIC DNA TESTING.

....

POINT TWO

THE AFFIDAVIT IN SUPPORT OF THE SEARCH
WARRANT FOR THE VAN WINKLE [AVENUE]
PROPERTY WAS INSUFFICIENT TO ESTABLISH
PROBABLE CAUSE THAT APPELLANT HAD
PARTICIPATED IN THE MURDER OR THAT
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54
EVIDENCE OF THE MURDER WOULD BE
FOUND AT A SEARCH OF THAT LOCATION.

POINT THREE

THE TRIAL COURT ERRED BY ADMITTING THE
HEARSAY STATEMENTS OF THE DECEASED
VICTIM AS "PRESENT SENSE IMPRESSION."

POINT FOUR

THE TRIAL JUDGE ERRED BY INSTRUCTING
THE JURY, OVER OBJECTION, THAT
APPELLANT'S REACTION TO HIS ARREST WAS
POTENTIALLY RELEVANT TO HIS
"CONSCIOUSNESS OF GUILT."

II.

"In criminal cases, [our Supreme] Court has continued to rely on the

Frye standard to assess [the] reliability" of expert evidence. State v.

Ghigliotty, 463 N.J. Super. 355, 374 (App. Div. 2020) (first alteration in

original) (quoting State v. J.L.G., 234 N.J. 265, 280 (2018)); accord In re

Accutane Litig., 234 N.J. 340, 399 (2018). That standard "requires trial judges

to determine whether the science underlying the proposed expert testimony has

'gained general acceptance in the particular field in which it belongs.'" J.L.G.,

234 N.J. at 280 (quoting Frye, 293 F. at 1014).

"Proof of general acceptance within a scientific community can be

elusive." Harvey, 151 N.J. at 171. It "entails the strict application of the

scientific method, which requires an extraordinarily high level of proof based
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on prolonged, controlled, consistent, and validated experience." Ibid. (quoting

Rubanick v. Witco Chem. Corp., 125 N.J. 421, 436 (1991)). "The proponent

of the technique has the burden to 'clearly establish' general acceptance." State

v. Cassidy, 235 N.J. 482, 492 (2018) (quoting State v. Johnson, 42 N.J. 146,

171 (1964)). "Essentially, a novel scientific technique achieves general

acceptance only when it passes from the experimental to the demonstrable

stage." Harvey, 151 N.J. at 171.

"[T]here are three ways to establish general acceptance under Frye:

expert testimony, authoritative scientific and legal writings, and judicial

opinions." J.L.G., 234 N.J. at 281. "Proof of general acceptance does not

mean that there must be complete agreement in the scientific community about

the techniques, methodology, or procedures that underlie the scientific

evidence." Ghigliotty, 463 N.J. Super. at 375 (quoting State v. Chun, 194 N.J.

54, 91-92 (2008)). Nor does it "require complete agreement over the accuracy

of the test or the exclusion of the possibility of error." Harvey, 151 N.J. at

171. Thus, "the party proffering the evidence need not show infallibility of the

technique nor unanimity of its acceptance in the scientific community."

Ghigliotty, 463 N.J. Super. at 383 (quoting Cassidy, 235 N.J. at 492). "[T]he

State's burden is to prove that the . . . test and the interpretation of its results

are non-experimental, demonstrable techniques that the relevant scientific

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56
community widely, but perhaps not unanimously, accepts as reliable." Ibid.

(alterations in original) (quoting Harvey, 151 N.J. at 171).

"Generally, appellate courts apply an abuse of discretion standard to the

evidentiary rulings of a trial court." In re Commitment of R.S., 339 N.J.

Super. 507, 531 (App. Div. 2001), aff'd, 173 N.J. 134 (2002). However, "when

the matter involves novel scientific evidence in a criminal proceeding, 'an

appellate court should scrutinize the record and independently review the

relevant authorities, including judicial opinions and scientific literature.'" Ibid.

(quoting Harvey, 151 N.J. at 167); accord State v. Pickett, 466 N.J. Super. 270,

303 (App. Div. 2021). Therefore, when a trial court applies the Frye test, we

employ a de novo standard of review. Ibid.

"While the trial court is in a better position to shape the record and make

credibility determinations, 'appellate courts can digest expert testimony as well

as review scientific literature, judicial decisions, and other authorities.'" State

v. Torres, 183 N.J. 554, 567 (2005) (quoting Harvey, 151 N.J. at 167).

The appellate court should carefully review the
relevant authorities in determining the correctness of
the decision to admit or exclude the disputed
testimony. In short, the appellate court need not be as
deferential to the trial court's ruling on the
admissibility of expert scientific evidence as it should
be with the admissibility of other forms of evidence.

[Ibid. (citing Harvey, 151 N.J. at 167).]

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57
In Harvey, the Court further explained:

In the rapidly changing world of modern science,
continuing research may affect the scientific
community's acceptance of a novel technology. By
reviewing posttrial publications, an appellate court can
account for the rapid pace of new technology. The
continuing review also recognizes that general
acceptance may change between the time of trial and
the time of appellate review.

[151 N.J. at 167-68 (citing State v. Bible, 858 P.2d
1152, 1189 n.33 (Ariz. 1993)).]

Applying these principles, we engage in the following de novo review of

the admissibility of the LCN testing and FST evidence.

THE FST EVIDENCE

The State relies on approval by the DNA Subcommittee and case law

from New York to establish general acceptance of FST by the relevant

scientific community. Recently, however, the New York Court of Appeals

cast considerable doubt on the New York lower court decisions admitting LCN

and FST evidence. People v. Williams, 147 N.E.3d 1131, 1140-42 (N.Y.

2020). The court cogently observed that "repetition of a single, questionable

judicial determination does not strengthen or add validity to such ruling, and it

defies logic that an error, because it is oft-repeated, somehow is made right."

Id. at 1140.

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The court explained that "FST is a proprietary program exclusively

developed and controlled by OCME. The sole developer and the sole user are

the same." Id. at 1141. It concluded that those circumstances were "an

invitation to bias." Ibid. The court recognized that FST was approved by the

DNA Subcommittee but found "that insular endorsement [was] no substitute

for the scrutiny of the relevant scientific community." Id. at 1142. Moreover,

"rely[ing] solely on the Subcommittee's approval as dispositive of the general

acceptance would . . . supplant the courts' obligation to ensure" the Frye

standard has been met. Ibid. The court further commented that internal

validation by OCME and approval by the DNA Subcommittee were "no

substitute for community review." Ibid. It cautioned that "Frye demands an

objective, unbiased review" and that "FST should be supported by those with

no professional interest in its acceptance." Ibid. The court held that the trial

court abused its discretion by admitting LCN and FST evidence without

holding a Frye hearing. Id. at 1143.

In a recent published decision considering whether the source code and

related documentation for a different probabilistic genotyping software

program was required to be disclosed to a defendant for purposes of

challenging the reliability of the software at a Frye hearing, the court

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commented on the reliability of FST. Pickett, 466 N.J. Super. at 278-79, 307-

08. The court stated:

For example, as part of a Daubert hearing, a federal
judge unsealed the source code of [FST], a
probabilistic genotyping software that had been
developed and used by the [OCME]. In 2017, that
review demonstrated the software -- employed in
thousands of criminal prosecutions -- was unreliable,
did not work as intended, and had to be eliminated.

[Id. at 278 (footnote omitted).]

In a more detailed discussion, the court commented:

The troubling FST case study demonstrates a
rational basis for independent source-code review of
probabilistic DNA programs like TrueAllele. After
being subjected to an adversarial audit when
ProPublica obtained an order for the release of FST's
source code, it was revealed that FST had a problem
with a certain calculation that was only learned
through the adversarial examination of the source
code. Steven M. Bellovin et al., Seeking the Source:
Criminal Defendants' Constitutional Right to Source
Code, 17 Ohio State Tech. L.J. 1, 38 (2021). The
audit discovered that certain "loci were removed from
the likelihood ratio calculation" without "notice, either
intended or actual, provided to the user of FST," nor
any "indication that this behavior [was] intended
during [the] examination of FST-related publications
and the FST [v]alidation materials." Ibid.; see also
Stephanie J. Lacambra et al., Opening the Black Box:
Defendants' Rights to Confront Forensic Software,
Champion 28, 30 (May 2018) (providing a snippet of
the source code and explaining that "if the sum of
frequencies is greater than 0.97, a row in the
raceTable is removed"). As a result, the software was
overestimating the likelihood of guilt. Beyond
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60
undocumented calculations, it was discovered that
FST exhibited code smells, which suggested that "the
program is below normal professional standards and
may have other, not yet detected problems" which are
"extremely difficult to detect . . . without access to
[the] source code." Bellovin et al., 17 Ohio State
Tech. L.J. at 39. At oral argument, the Innocence
Project pointed out that, like TrueAllele, FST was
subject to multiple validation studies but errors were
still found in the source code, proving that validation
of this type of evidentiary software is not
determinative when evaluating computer science
reliability.

[Id. at 307-08 (alterations in original) (footnotes
omitted).]

Citing to a New York Times article, the court further stated that

"production and review of the code for the since-discontinued FST program

proved crucial to identification of significant errors, albeit not before

compromised test results had already been used in many prosecutions." Id. at

310 (citing Lauren Kirchner, Doubts and DNA Evidence, N.Y. Times, Sept. 5,

2017, at A1). The court remarked that it could not "ignore these facts when

evaluating whether there exists a rational basis for access to the proprietary

information here." Ibid. It concluded that "FST serve[d] as [an] important

cautionary tale[]." Id. at 323.

The State contends the comments were dicta that "must be wholly

disregarded" because there was no adversarial testing of the statements made

by the court. We disagree. The scholarly analysis undertaken in Pickett is
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61
sound, illuminating, and persuasive. We give these carefully considered

statements due consideration. See In re A.D., 441 N.J. Super. 403, 422-23

(App. Div. 2015) ("Mere obiter may be entitled to little weight, while a

carefully considered statement . . . though technically dictum, must carry great

weight . . . ." (quoting Barreiro v. Morais, 318 N.J. Super. 461, 468 (App. Div.

1999))), aff'd o.b., 227 N.J. 626 (2017).

As we have noted, our standard of review is de novo. R.S., 339 N.J.

Super. at 531. We apply the more stringent Frye test for admissibility.

Ghigliotty, 463 N.J. Super. at 374. It was the State's burden to "'clearly

establish' general acceptance" of the FST software. Cassidy, 235 N.J. at 492

(quoting Johnson, 42 N.J. at 171). In our view, the State did not satisfy its

burden of proof.

The State's reliance on New York cases to clearly establish general

acceptance is unpersuasive. Despite the Second Circuit finding no abuse of

discretion in a trial court's decision to admit FST evidence, Jones, 965 F.3d at

161-62, the Court of Appeals in Williams was critical of the many New York

decisions admitting FST evidence and disapproved of the reliance by those

courts on OCME's validation studies and approval by the DNA Subcommittee.

147 N.E.3d at 1140-42. The only other New York case cited by the State is

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unpublished.8 The New York cases do not clearly establish general

acceptance.

Another method to establish general acceptance under Frye is through

expert testimony. J.L.G., 234 N.J. at 281. Expert testimony in support of FST

was provided by O'Connor and Baum. O'Connor, who was working at OCME

when FST was developed and implemented, described OCME's extensive

validation process for the software, and its approval by the DNA

Subcommittee and CFS. Baum, who left OCME before FST was developed

and implemented, testified that likelihood ratios are commonly used to

interpret DNA mixtures. He believed the program was reliable based on

OCME's validation and the approvals by the DNA Subcommittee and CFS.

An internal validation of proprietary software cannot establish general

acceptance because the Frye standard requires that "the relevant scientific

community widely, but perhaps not unanimously, accepts [the software] as

reliable." Ghigliotty, 463 N.J. Super. at 383 (quoting Harvey, 151 N.J. at 171).

O'Connor claimed that the relevant scientific community for LCN DNA testing

is international. Certainly, the relevant scientific community for probabilistic

genotyping software programs extends beyond the scientists at OCME.

8
See R. 1:36-3; Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48
(2001) (Verniero, J., concurring) (explaining that unreported decisions "serve
no precedential value").

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63
Although likelihood ratios may be generally accepted in the relevant scientific

community as a method of determining the probability that an individual is a

contributor to a DNA sample, the fact that FST calculates likelihood ratios

does not establish the reliability or general acceptance of the program itself.

Because no entity other than OCME used or has examined FST, we must

determine whether approval by the DNA Subcommittee and CFS establishes

general acceptance in the relevant scientific community. By statute, the CFS

must "develop minimum standards and a program of accreditation for all

forensic laboratories in New York state" and approve "forensic laboratories for

the performance of specific forensic methodologies." N.Y. Exec. Law § 995 -

b(1) (McKinney 2021). "The minimum standards and program of accreditation

[are] designed to . . . ensure that forensic analyses, including forensic DNA

testing, are performed in accordance with the highest scientific standards

practicable . . . ." Id. at § 995-b(2)(b).

In accordance with New York law, the CFS has established a DNA

Subcommittee. Id. at § 995-b(13)(a). The chair of the Subcommittee is

appointed by the chair of the CFS, and the remaining six members of the

Subcommittee are appointed upon the recommendation of either the

Commissioner of the Department of Health or the Commissioner of Criminal

Justice Services, with two members each representing the disciplines of

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64
population genetics and forensic science, one member from the field of

molecular biology, and one member from the field of laboratory standards and

quality assurance regulation and monitoring. Ibid.

By statute, "[t]he DNA [S]ubcommittee shall assess and evaluate all

DNA methodologies proposed to be used for forensic analysis, and make

reports and recommendations to the [CFS] as it deems necessary." Id. at §

995-b(13)(b). In addition, "[t]he DNA [S]ubcommittee shall make binding

recommendations for adoption by the [CFS] addressing minimum scientific

standards to be utilized in conducting forensic DNA analysis including, but not

limited to, examination of specimens, population studies and methods

employed to determine probabilities and interpret test results." Ibid. "Upon

the recommendation of the DNA [S]ubcommittee . . . the [CFS] shall designate

one or more approved methodologies for the performance of forensic DNA

testing, and shall review and act upon applications by forensic DNA

laboratories for approval to perform forensic DNA testing." Id. at § 995-b(11).

Defense witnesses Shapiro and Coyle acknowledged that the members of

the DNA Subcommittee were members of the relevant scientific community.

Approval of FST for forensic casework by the DNA Subcommittee thus

establishes acceptance of the program by at least certain members of the

relevant scientific community. The issue is whether acceptance by the DNA

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Subcommittee establishes "general acceptance" by the scientific community.

Frye, 293 F. at 1014.

Because this is a criminal matter, the State's burden is to "clearly

establish," Cassidy, 235 N.J. at 492 (quoting Johnson, 42 N.J. at 171), that the

challenged technique is "widely, but perhaps not unanimously, accept[ed] as

reliable" by the relevant scientific community, Ghigliotty, 463 N.J. Super. at

383 (quoting Harvey, 151 N.J. at 171). Standing alone, approval by the DNA

Subcommittee does not clearly establish that FST is widely accepted as

reliable. Therefore, the FST evidence was improperly admitted into evidence.

FST was used to calculate likelihood ratios only for Sample 2. Huyck

testified that FST calculated that the mixture in Sample 2 "was approximately

71.2 million times more likely to have come from . . . Vernieri and another

person rather than that mixture coming from two unknown, unrelated people."

The State contends admitting the testimony regarding Sample 2 was harmless

error given the other evidence in the case. We disagree.

As recognized in Pickett, "DNA evidence is powerful and compelling."

466 N.J. Super. at 306. For the reasons discussed below, we have also

determined that the testimony regarding sample 1 was inadmissible.

The only other evidence in the case linking defendant to the crime was

his visit to Vernieri two days earlier, the shoe imprint, testimony regarding his

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cell phone records, which was disputed by his expert, and DNA evidence from

Vernieri's fingernail clippings. This DNA evidence did not positively identify

defendant. Instead, it indicated defendant could not be excluded as a

contributor and the profile would be expected to occur in 1 of 333 Caucasian

individuals. We do not find this evidence to be overwhelming.

In sum, admitting the evidence regarding Sample 2 "raise[s] a reasonable

doubt as to whether [it] led the jury to a verdict it otherwise might not have

reached." State v. R.B., 183 N.J. 308, 330 (2005) (second alteration in

original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). We therefore

reverse defendant's conviction and remand for a new trial.

THE LCN DNA TESTING

We next address the State's reliance on the LCN DNA testing. As with

FST, the State relies on OCME's internal validation, approval by the DNA

Subcommittee, and case law from New York to establish general acceptance of

LCN DNA testing by the relevant scientific community. For the reasons

discussed above, those considerations alone are insufficient to establish

general acceptance. Moreover, even though the State provides additional

support for its position regarding LCN DNA testing, it has failed to clearly

establish general acceptance of the technique by the relevant scientific

community.

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In addition to relying on New York state case law, the State cites to two

federal district court cases. In the one published case, the district court found

that LCN DNA evidence was admissible under Daubert, but it did not make

any findings as to whether the technique was generally accepted in the

scientific community. United States v. Morgan, 53 F. Supp. 3d 732, 740-47

(S.D.N.Y. 2014), aff’d, 675 Fed. Appx. 53 (2d Cir. 2017). In affirming the

district court's decision, the Second Circuit commented that

although LCN analysis is supported by significantly
weaker evidence of reliability than traditional DNA
analysis, the district court did not abuse its discretion
. . . in holding that the proffered expert evidence met
the reliability standards of [Fed. R. Evid.] 702: We
cannot say that its ruling here was "manifestly
erroneous."

[Morgan, 675 Fed. Appx. at 55-56 (quoting
Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d
256, 265 (2d Cir. 2002)).]

Notably, the Second Circuit "express[ed] no opinion on the propriety of

admitting the results of LCN testing in other cases." Id. at 56.

Morgan analyzed admissibility under Daubert, which only "requires the

district court to ensure 'that an expert's testimony both rests on a reliable

foundation and is relevant to the task at hand.'" Morgan, 675 Fed. Appx. at 55

(quoting Daubert, 509 U.S. at 597). "Although Frye has been replaced in the

federal court system in favor of the more lenient standards of [Fed. R. Evid.]

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702 as set forth in Daubert, in New Jersey, with the exception of toxic tort

litigation, Frye remains the standard." State v. Doriguzzi, 334 N.J. Super. 530,

539 (App. Div. 2000). "Thus, the test in criminal cases remains whether the

scientific community generally accepts the evidence." Harvey, 151 N.J. at 170

(citing State v. Spann, 130 N.J. 484, 509 (1993); Windmere, Inc. v. Int'l Ins.

Co., , 105 N.J. 373, 386 (1987)); accord Doriguzzi, 334 N.J. Super. at 539.

Moreover, an opinion by a federal district court or parallel federal

appellate court is not binding precedent, especially as to the interpretation of

our rules of evidence. State v. Reyes, 140 N.J. 344, 357 (1995).

In an unpublished opinion, the Western District of New York concluded

that LCN DNA testing was generally accepted in the scientific community.

The court relied, in part, on the district court's decision in Morgan, the trial

court's decision in this case, and People v. Megnath, 898 N.Y.S.2d 408 (Sup.

Ct. 2010), aff’d, 79 N.Y.S.3d 557 (App. Div. 2018),9 a trial court decision that

was roundly criticized by the New York Court of Appeals in Williams, 147

N.E. 3d at 1140, which found the lower court's ruling "was an analysis that did

not adequately assess whether OCME's LCN testing was generally accepted

within the relevant scientific community." Notably, in Williams the Court of

9
Apparently, the defendant in Megnath did not raise the issue of the
admissibility of the DNA evidence on appeal as the Appellate Division does
not mention or address it in its opinion.

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Appeals observed that "the People were unable to cite any New York appellate

cases, or out-of-state case law, assessing the general acceptance of LCN

evidence." 147 N.E.3d at 1140. As we have noted, the Court of Appeals was

critical of lower court decisions finding that LCN testing was generally

accepted based on OCME's internal validation and evidence that the method

was used in other countries. Ibid. For these reasons, the unpublished New

York trial court opinion is not persuasive. It also has no precedential value.

See e.g., Meadowlands Basketball Ass'n v. Dir., Div. of Taxation, 340 N.J.

Super. 76, 83 (App. Div. 2001) (interpretative decision by a New York tax

appeal tribunal of a similar New York statute is "not binding or controlling");

State v. Warriner, 322 N.J. Super. 401, 407 (App. Div. 1999) (Connecticut

state court and federal district court decisions are not binding on our courts).

In the final case cited by the State, a Maryland appellate court affirmed a

trial court's determination that LCN DNA evidence was admissible under the

Frye standard. Phillips v. State, 126 A.3d 739, 748-51 (Md. Ct. Spec. App.

2015). The DNA sample at issue was analyzed by the Prince Georges County

DNA laboratory. Id. at 748. The court concluded that the "laboratory used

generally accepted scientific methodology to analyze the sample," relying

upon the laboratory's compliance with the FBI Quality Assurance Standards

and its finding that other forensic laboratories used the same methodology

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employed by the Prince George's laboratory. Id. at 748. The court did not

identify the other laboratories and provided no details regarding the technique

employed other than to state that the LCN testing was "particularly susceptible

to stochastic effects—random errors that make accurately analyzing the DNA

more difficult—and increased risks of contamination." Id. at 749.10

We conclude that the two published cases relied upon by the State do not

clearly establish that LCN DNA evidence has achieved general acceptance in

the relevant scientific community.

As to authoritative scientific and legal writings, in addition to the l etters

authored by the DNA Subcommittee, the State points to the 2014 SWGDAM

Guidelines and seven peer-reviewed scientific articles. SWGDAM "serves as

a forum to discuss, share and evaluate forensic biology methods, protocols,

training, and research to enhance forensic biology services as well as provide

recommendations to the FBI Director on quality assurance standards for

forensic DNA analysis." SWGDAM Mission Statement, Sci. Working Grp. on

DNA Analysis Methods (SWGWAM), https://www.swgdam.org (last visited

Jan. 18, 2022). When the group issued the 2014 SWGDAM Guidelines, it was

comprised of "approximately [fifty] scientists representing Federal, State and

10
The State's witnesses did not identify the Prince George County's laboratory
as a facility that was still performing LCN testing for use in criminal cases.

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Local forensic DNA laboratories in the United States and Canada." Although,

as Van Daal pointed out, the guidelines state that SWGDAM "does not offer an

opinion on the viability of any Enhanced Detection Methods, including Low

Template or [LCN] DNA Analysis," the guidelines also acknowledge that

laboratories "are engaging in methods that will enhance the recovery from low

quality DNA samples" and state SWGDAM's purpose is to "provide[]

guidelines for the use of Enhanced Detection Methods as applied to forensic

casework DNA analysis."

The guidelines recommend procedures followed by OCME including

replicate amplification and development of a consensus profile. Baum, who at

one time was a member of SWGDAM, testified that the guidelines would not

have been issued unless SWGDAM felt LCN testing "was a relevant issue that

[was] being practiced in the community."

Regarding the seven peer-reviewed scientific articles cited by the State,

there was no testimony regarding six of the articles and the State has not

explained how the articles support the view that LCN DNA testing is generally

accepted. Baum testified that the remaining article, which he co-authored with

at least one other OCME scientist, described the protocol OCME was using for

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LCN DNA testing.11 Although the authors concluded that the LCN DNA

protocols and interpretation guidelines used by OCME were "reliable and

robust," that conclusion by OCME personnel does not adequately demonstrate

general acceptance in the scientific community.

Finally, expert testimony elicited at the Frye hearing demonstrated that

there are conflicting views on whether LCN DNA testing is accepted by the

scientific community for use in criminal casework. Baum testified that LCN

testing was not a new technique; it was an extension of the conventional high

copy number testing methodology. He explained that LCN testing was first

developed by Gill in the United Kingdom, and identified Butler, who devoted a

chapter in his Methodology book to LCN DNA testing, as a member of the

scientific community that approved of LCN testing.

O'Connor identified Gill, Buckleton, Haned, and Butler as members of

the scientific community that supported LCN DNA testing. He testified that

laboratories in Australia, Italy, Belgium, the Netherlands, New Zealand,

Croatia and Spain all used LCN DNA techniques in criminal casework. Baum

and O'Connor both admitted that LCN testing was not unanimously accepted

11
Theresa Caragine et al., Validation of Testing & Interpretation Protocols for
Low Template DNA Samples Using AmpFlSTR Identifiler, 50 Croatian Med.
J. 250 (2009).

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by the scientific community but recalled that there was also opposition to

conventional high copy number testing early on.

Van Daal testified that some laboratories in Europe started using LCN

DNA testing after Gill, whom she acknowledged was highly regarded in the

field, published his paper describing the technique in 1999. She believed,

however, that OCME's LCN protocols differed from those of other

laboratories. She noted there were acceptable uses for LCN DNA testing, such

as "for investigative purposes in missing persons cases" and in the "medical

arena," for instance in "pre-implantation genetic diagnosis."

Van Daal claimed that many other scientists believed LCN testing was

unreliable but named only Budowle and Chakraborty. She agreed that Butler

was a member of the relevant scientific community and that he reported in his

Methodology book that the FSS in the United Kingdom had used LCN analysis

in over 21,000 cases by early 2010. She also agreed that a forensic science

regulator in the United Kingdom had issued a statement concluding that the

science underlying LCN testing was sound.

Coyle testified that LCN DNA testing was "very similar" to conventional

STR testing. She maintained that it was appropriate to use the technique to

identify skeletal remains in the context of missing persons but not for criminal

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casework. But she acknowledged that the LCN testing technique was the same

whether used for criminal casework or missing persons identification.

Coyle identified Budowle, Van Daal, Shapiro, and Eisenberg as

members of the scientific community who do not believe that LCN testing is

reliable. She discussed three articles and one letter critical of LCN DNA

testing written by Budowle, Eisenberg, Van Daal, and others. She

acknowledged that laboratories in the United Kingdom, the Netherlands and

New Zealand were using LCN DNA testing at the time of her testimony, that

the scientists working at those laboratories were members of the relevant

scientific community and acknowledged that other scientists disagreed with

her opinion.

In Harvey, the Court faced a similar issue. In that case, the Court

considered whether a type of DNA testing known as polymarker testing was

generally accepted in the scientific community. 151 N.J. at 169-76. The

State's expert explained that the test was technologically and procedurally

similar to the PCR/DQ Alpha test, which courts in New Jersey had already

deemed scientifically reliable. Id. at 162, 172. In addition, the company that

performed the DNA testing, which was not the company that manufactured the

test kit, had conducted validation studies on the test in accordance with

protocols established by the Technical Working Group on DNA Analysis

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Methods (TWGDAM).12 Id. at 172. Six other laboratories in the United States

had also independently verified the accuracy of the test and it was used for

casework or validation studies in approximately thirty to forty laboratories

throughout the United States. Ibid.

The Court found that "[s]cholarly and scientific publications . . .

approve[d] the polymarker test." Id. at 173. Three published articles opined

the polymarker test "was reliable for casework." Ibid. In addition, " a list of

forty-four presentations, posters, lectures, seminars, and workshops in which

forensic scientists discussed issues regarding polymarker-related research,

testing, and results." Ibid. No documents were produced suggesting the test

was unreliable. Id. at 174.

At the time of the Rule 104 hearing in Harvey, there was only one New

York case where polymarker evidence had been admitted. Id. at 175.

However, since the defendant's trial, at least six courts in other jurisdictions

had determined the test was admissible. Id. at 176. The Court was satisfied

that the polymarker test was scientifically reliable and held that the trial court

properly admitted the polymarker evidence. Ibid.

12
TWGDAM was the predecessor to SWGDAM. History of SWGDAM,
https://www.swgdam.org/about-us (last visited Jan. 18, 2022).

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By any measure, the evidence for general acceptance was much stronger

in Harvey than it is here. Whereas in Harvey, six laboratories had

independently verified the accuracy of the polymarker test, the testimony here

only established that OCME had done validation studies on its own LCN DNA

testing technique. In addition, far more laboratories were using the

polymarker test than performing the LCN DNA testing at issue here. Also,

unlike in Harvey, where the defendant produced no scholarly articles disputing

the accuracy of the polymarker test, Coyle testified to three articles and one

letter critical of LCN DNA testing. Moreover, the State's experts referred to

only one published article in support of LCN testing and that article was

written by OCME personnel.

Finally, in Harvey, appellate courts in three other states and the Eighth

Circuit Court of Appeals found the polymarker test was generally accepted in

the scientific community. Id. at 176. Here, the State relies on questionable

New York lower court decisions and an appellate decision from Maryland.

In sum, although there is some evidence supporting a finding of general

acceptance, we conclude that the State has failed to "clearly establish" general

acceptance of OCME's LCN DNA testing technique. Cassidy, 235 N.J. at 492

(quoting Johnson, 42 N.J. at 171). Accordingly, the LCN DNA evidence was

not admissible. As discussed above, the error in admitting this evidence was

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not harmless. Its use also "raise[s] a reasonable doubt as to whether [it] led the

jury to a verdict it otherwise might not have reached." R.B., 183 N.J. at 330

(second alteration in original) (quoting Bankston, 63 N.J. at 273). For this

additional reason, the conviction must be reversed and the retried.

III.

For sake of completeness, we next address defendant's argument that the

affidavit submitted in support of the issuance of a search warrant for the Van

Winkle Avenue property where the disputed DNA was found was insufficient

to establish probable cause. The resulting search revealed evidence of blood,

later determined to contain Vernieri's DNA.

The State contends that defendant's unusual conduct in visiting Vernieri

two days before the murder, the disparities in his account of the visit, his

assertion that he slept until 11:00 a.m. on the date of the murder even thou gh

cell phone records placed his phone behind Vernieri's home at 10:39 a.m.,

Logan's statement that he heard a shriek from downstairs between 10:10 and

10:30 a.m., and defendant's statement that he visited the Van Winkle property

on the date of the murder, provided a sufficient basis for the search warrant.

In considering an application for a search warrant, "[t]he issuing

authority 'must be satisfied that there is probable cause to believe that a crime

has been committed, or is being committed, at a specific location or that

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evidence of a crime is at the place sought to be searched.'" State v. Jones, 179

N.J. 377, 388 (2004) (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)).

"Probable cause for the issuance of a search warrant requires 'a fair proba bility

that contraband or evidence of a crime will be found in a particular place.'"

State v. Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994

F.2d 1051, 1056 (3d Cir. 1993)). "[T]he probable cause determination must be

. . . based on the information contained within the four corners of the

supporting affidavit, as supplemented by sworn testimony before the issuing

judge that is recorded contemporaneously." State v. Marshall, 199 N.J. 602,

611 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)).

"A search that is executed pursuant to a warrant is 'presumptively valid,'

and a defendant challenging the issuance of that warrant has the burden of

proof to establish a lack of probable cause 'or that the search was otherwise

unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.

Watts, 223 N.J. 503, 513-14 (2015)). "Reviewing courts [should] 'accord

substantial deference to the discretionary determination resulting in the

issuance of the [search] warrant.'" Ibid. (second alteration in original)

(quoting Jones, 179 N.J. at 388). However, "[c]ourts [must] consider the

'totality of the circumstances' and should sustain the validity of a search only if

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the finding of probable cause relies on adequate facts." Ibid. (quoting Jones,

179 N.J. at 388-89).

Defendant's argument lacks sufficient merit to warrant extended

discussion. R. 2:11-3(e)(2). Considering the totality of the circumstances,

Boesch's affidavit contained adequate facts supported by the record that

demonstrated probable cause that evidence of a crime would be found at the

Van Winkle Avenue property.

Boesch averred that cell phone records showed that defendant's cell

phone was in the area of Vernieri's house and the commercial parking lot

behind it at 10:39 a.m. on September 14, 2012, which was close to the time

that Sinan Logan reported hearing a disturbance from Vernieri's home. In

statements given to the police, defendant claimed that he was asleep in his

apartment at that time. Defendant also admitted in his second statement to

police that he visited the Van Winkle property on the date of the murder.

Vernieri's daughter reported that Vernieri had a "strange encounter" with

defendant, who stopped by Vernieri's house unannounced on September 12,

2012, something he had never done before. She further reported that her

mother told her that defendant asked her for a tour of the house and asked her

about diamond jewelry. Shoe impressions of an Adidas athletic shoe were

found at the crime scene.

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The facts set forth in Boesch's affidavit established probable cause for

the issuance of the search warrant. The seizure of evidence during the

execution of the warrant did not violate defendant's constitutional rights.

IV.

Defendant further argues that the trial court erred in admitting the

statements made by Vernieri to a friend under the present sense impression

exception to the hearsay rule, N.J.R.E. 803(c)(1). DeMauro testified regarding

comments made to her by Vernieri on September 12, 2012, following

defendant's visit to Vernieri's home. Defendant contends that there is no

evidence that DeMauro spoke with Vernieri "'while or immediately after' the

event was taking place." He claims that DeMauro's testimony allowed the

State to argue in summation that his visit to Vernieri's home was perceived by

her as "strange," and led to the State's assertion that something bad was going

to happen on September 12, 2012, but "the plan had to change when [Vernieri]

opened the door on the phone."

The State argues that the trial court properly admitted DeMauro's

testimony as a present sense impression because she spoke with Vernieri

immediately after defendant left Vernieri's home. The State also contends that

DeMauro's testimony that Vernieri said she was surprised by defendant's visit

was admissible under the state of mind exception to the hearsay rule, N.J.R.E.

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803(c)(3). The State further maintains that the testimony was not clearly

capable of producing an unjust result because it was "largely cumulative" of

testimony given by Murphy and defendant's father, and the statements given to

police by defendant. It claims that there was ample evidence in the record to

establish that Vernieri was surprised by defendant's visit and, therefore, the

prosecutor's comments in summation about the strangeness of the visit were

appropriate.

"We review evidentiary rulings under an abuse of discretion standard."

State v. Jackson, 243 N.J. 52, 64 (2020) (citing State v. Nantambu, 221 N.J.

390, 402 (2015)). "Under that deferential standard, we review a trial court's

evidentiary ruling only for a 'clear error of judgment.'" State v. Medina, 242

N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). When

inadmissible evidence is heard by the jury, "an appellate court should not order

a new trial unless the error was 'clearly capable of producing an unjust result.'"

State v. Yough, 208 N.J. 385, 397-98 (2011) (quoting R. 2:10-2). As we are

remanding for retrial, we provide the following guidance to the trial court.

The present sense impression exception to the hearsay rule applies to

statements "describing or explaining an event or condition, made while or

immediately after the declarant perceived it and without opportunity to

deliberate or fabricate." N.J.R.E. 803(c)(1). There is no dispute that Vernieri

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spoke to DeMauro after defendant's visit on September 12, 2012.

Accordingly, the applicability of the exception turns on whether Vernieri's

comments to DeMauro were made "immediately after" the visit.

In State ex rel. J.A., 195 N.J. 324, 336-40 (2008), the Court considered

the meaning of the phrase "immediately after" under the present sense

impression exception. The Court determined there was a distinction between

delays measured in seconds as opposed to those measured in minutes. Id. at

339. The Court held that a witness statement taken by police ten minutes after

a robbery occurred was not "immediately after" and the trial court abused its

discretion by admitting the statement under the present sense impression

exception. Id. at 340. Similarly, in Gonzales v. Hugelmeyer, 441 N.J. Super.

451, 458 (App. Div. 2015), we held that a statement by an eyewitness given to

police who "arrived at least 'several minutes'" after an accident occurred was

not admissible under the present sense impression exception.

Murphy testified that he was on the phone with Vernieri at about 9:00

p.m. when defendant arrived at her home on September 12, 2012. In his

statements to police, defendant said he arrived at Vernieri's home at around

7:20 p.m. and stayed for approximately one hour. DeMauro testified that she

spoke to Vernieri at around 9:30 or 10:00 p.m. that night. Despite the

conflicting evidence of the time defendant arrived and left, the trial court

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found "defendant rang her doorbell at approximately 8:30 p.m." and the

statements "were made at 10 p.m. on September 12, 2012, immediately after

the defendant left her home." The record does not establish that the statements

to DeMauro were made within seconds rather than minutes of perceiving the

event "and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1).

Therefore, the statements are not admissible as present sense impressions.

We also consider whether Vernieri's statements to DeMauro are

admissible under the state of mind hearsay exception, which provides an

exception for "[a] statement made in good faith of the declarant's then-existing

state of mind, emotion, sensation or physical condition (such as intent, plan,

motive, design, mental feeling, pain or bodily health), but not including a

statement of memory or belief to prove the fact remembered or believed . . . ."

N.J.R.E. 803(c)(3).

"Simply stated, the 'state of mind' exception to the hearsay rule allows

admission of extrajudicial statements to show the state of mind of the declarant

when it is at issue in a case." State v. McGuire, 419 N.J. Super. 88, 136 (App.

Div. 2011) (quoting State v. Benedetto, 120 N.J. 250, 255–56 (1990)). "Such

state-of-mind testimony may properly be used only for evaluating the victim's

actions or the likelihood of him or her acting in a certain way." State v.

Scharf, 225 N.J. 547, 581 (2016) (emphasis in original). "[T]he evidence may

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not be used as evidence of the defendant's actions or intent." Ibid. Moreover,

a limiting instruction should be provided to the jury regarding "the permissib le

and prohibited purposes of the evidence." Ibid.

The statement that Vernieri was surprised by defendant's visit was not

offered to evaluate any actions of Vernieri or the likelihood of her acting in a

certain way. Rather, it was used to show that defendant's behavior was

unusual or odd. Therefore, the statement was not admissible under the state of

mind hearsay exception.

While this evidentiary error was not clearly capable of producing an

unjust result, Vernieri's statements to DeMauro shall not be admitted into

evidence during the retrial.

V.

Finally, we address defendant's argument that the trial court erred by

instructing the jury that it could consider his conduct at the time of his arrest

as evidence of his consciousness of guilt. He contends that his conduct was

not "relevant to any material issue disputed at trial" and points out that he was

acquitted of resisting arrest. He maintains that he did not attempt to flee and

that his conduct was entirely "consistent with utter panic."

Relying on State v. Williams, 190 N.J. 114, 125 (2007), as well as cases

from foreign jurisdictions, the State argues that evidence of resisting arrest is

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admissible "to prove defendant's consciousness of guilt of the underlying

crime." It claims that count fourteen of the indictment, which charged

defendant with third degree resisting arrest, was dismissed only because

testimony failed to establish the element of physical force. The State notes

that the trial court found that the testimony could constitute disord erly-persons

resisting arrest, N.J.S.A. 2C:29-2(a)(1). The State also contends that the

court's limiting instruction properly protected defendant's rights.

Both McMorrow and Boesch testified, without objection, that defendant

ignored numerous commands to turn off and exit his vehicle, that he refused to

submit to handcuffs after being forcibly removed from the vehicle, and that he

was taken to the ground by officers and restrained. Defendant has not argued

on appeal that McMorrow's or Boesch's testimony was improperly admitted.

We deem that issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648,

657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

We therefore focus on the jury instruction.

In summation, defense counsel disputed that defendant's conduct at the

time of his arrest showed consciousness of guilt. Counsel pointed out that

defendant voluntarily stopped his vehicle and placed the car in park. Counsel

suggested that defendant's failure to immediately follow

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6113549. Public record. Not legal advice.