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DNA was not found on the victim’s body

Late in the evening of August 4, 1994, an exchange student from Japan was returning from work to his residence. He would never safely reach the refuge of his apartment, as he would be fatally shot in the head by the defendant during a botched robbery on the 4th floor stairwell of his building. Upon entering his building, he was followed into the elevator by the defendant and an individual while a third individual waited in the lobby. During the ensuing robbery attempt that commenced after the exchange student exited from the elevator, a physical altercation developed between the victim and the perpetrators culminating with the defendant discharging his weapon at the exchange student.

For his part, the defendant alleged that the shooting was accidental. In a written statement given to the police, the defendant wrote that the three of them went up in the building and they saw a Chinese man and they all got off and the Chine man ran out the elevator and started to fight back and the gun went off by mistake. During the course of the next 18 years the defendant would claim that this statement, as well as a subsequent statement memorialized on videotape, were untrue, and were illegally obtained by the police because they tricked him into confessing. In fact, he would later claim that he was not present at the time of the shooting, but was instead with his girlfriend driving her back to the Bronx.

The defendant proceeded to a jury trial and was convicted of two counts of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Second Degree. The defendant was sentenced to concurrent indeterminate prison terms of from 25 years to life on each of the murder convictions and from 5-15 years on the Criminal Possession of Weapon conviction. The defendant’s judgment of conviction was affirmed by the Appellate Division and leave to appeal to the Court of Appeals was denied. As is his right, the defendant has consistently sought judicial relief, having filed four prior Criminal Procedure Law (CPL 440.10) motions seeking to vacate his conviction. He has also sought writs of error coram nobis on three occasions and he has petitioned for a writ of habeas corpus in the Federal District Court. All efforts have proven unsuccessful and the defendant remains incarcerated.

Before turning to the current motion now before the County Court, the defendant’s most prior CPL 440.10 motion must be referenced in order to provide context to this proceeding. That motion was filed by the defendant after the Queens County District Attorney’s Office had given their consent for DNA testing of fingernails and fingernail scrapings of the victim which had been collected during the autopsy of the exchange student. The tests were performed by Criminalist of the Office of the Chief Medical Examiner. In sum and substance, the results, as set forth in her sworn affidavit, indicated that some of the preserved evidence yielded sufficient DNA (deoxyribonucleic acid) for PCR (polymerase chain reaction) and High Sensitivity PCR DNA testing and that they yielded a DNA profile that was the same or consistent with the exchange student’s DNA profile. However, no conclusions could be drawn regarding the source of DNA alleles detected in right nail and right nail scraping which could not be attributed to the exchange student. And, although human DNA was found on right nail and left nail scrapings, the amount of DNA recovered was insufficient to conduct High Sensitivity PCR DNA testing.

In denying the defendant’s motion, the judge rejected the defendant’s argument that the results of the DNA testing constituted newly discovered evidence requiring the Court to vacate his conviction, since the defendant’s DNA was not found on the victim’s body. The judge concluded that the DNA test results did not constitute newly discovered evidence because it would most probably have not resulted in a more favorable verdict to the defendant had it been admitted at trial. The Court’s reasoning was based upon the trial testimony established that scratches on the victim’s body were the result of a struggle at the time of the attack, but there was no testimony showing any contact between the victim’s fingernails and the defendant’s body; if anything, the scenario depicted allowed for the victim’s DNA under the defendant’s fingernails. According to the criminal trial testimony of the Detective of the Queens Homicide Squad, the defendant told him that in attempting to defend himself the defendant made a kicking movement which set the gun off. Therefore, there would not have been a period of time where the transference of DNA from the defendant to the victim could have been possible; and most importantly, the criminalist’s findings indicated that no conclusions concerning the source of the DNA not attributed to the defendant could be made. The DNA evidence was inconclusive and would most probably have not changed the jury’s verdict if it had been admitted at trial.

The defendant moved for leave to appeal the denial of his CPL§440.10 motion but the Appellate Division denied the defendant’s application for leave to appeal. Pursuant to CPL 440.30, the defendant has moved for an order directing the performance of a forensic DNA comparison test. More specifically, the defendant seeks to submit a sample of his own DNA to have it compared to the DNA alleles detected in right nail, left nail and right nail scrapings of the exchange student. The People have submitted an affirmation in opposition.

Submitted by the People in support of their opposition to the defendant’s motion is a sworn to affidavit prepared by an Assistant Director from the OCME Department of Forensic Biology, where she has been employed for 13½ years. The Assistant Director reviewed the lab report prepared by the Criminalist relating to the testing of the post mortem nail clippings and nail scrapings of the victim. In sum and substance, the Assistant Director concurs with the conclusions originally drawn by the Criminalist that is, that the few DNA alleles detected in the nail clippings and scrapings do not belong to the exchange student and are not suitable for comparison. Furthermore, the Assistant Director unequivocally states that what was written to the defendant was simply not accurate. Assault is not an issue.

Conclusions of Law provides that when the defendant’s motion requests the performance of a forensic DNA test on specified evidence, and upon the court’s determination that any evidence containing deoxyribonucleic acid (DNA) was secured in connection with the trial resulting in the judgment, the court shall grant the application for a forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

As has been set forth above, the DNA samples detected and preserved from the autopsy of the exchange student either match the victim’s DNA profile or are not suitable for comparison to a DNA sample submitted by this defendant or anyone else. Therefore, the so-called comparison test sought by the defendant is not forensically possible at this point in time. Moreover, since there was no evidence at trial that there existed a possibility of a transference of DNA from the defendant to the victim during the course of the attempted robbery/murder, and the defendant still maintains that his confession was false, in that he claims that he was not present at the time of the gun crime, the results of any forensic DNA test comparing the defendant’s DNA to the unknown samples would be inconclusive; therefore, it is the Court’s determination that despite an admission at trial of inconclusive test results, there does not exist a reasonable probability that the verdict would have been more favorable to the defendant. Accordingly, the defendant’s motion for a comparison DNA test is denied.

Nowadays, even in our homes are not fully safe from people with bad intentions. If you experienced crime in the hands of someone and would want to make sure that the people responsible would pay in jail for what they did, consult the Queens County Criminal Lawyer together. You can also seek the legal advice of the Queens County Possession of a Weapon Lawyer and the Queens County Arrest Attorney from Stephen Bilkis and Associates.

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