Defendant appeals from the judgment of the Supreme Court, New York County (Lewis Bart Stone, J.), rendered March 3, 2009, convicting him, after a jury trial, of murder in the second degree and imposing sentence.
The opinion of the court was delivered by: Andrias J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Richard T. Andrias, J.P. John W. Sweeny, Jr. Dianne T. Renwick Helen E. Freedman Sallie Manzanet-Daniels, JJ. 2634/99
The verdict convicting defendant of second-degree murder at his third trial was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). The issue to be determined is whether the trial court committed reversible error when it precluded a defense expert from testifying about the effect of "weapon focus" on eyewitness identifications without conducting a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]), or when it ruled that if the expert testified about "the effect of postevent information on accuracy of identification," the People could elicit evidence that the identifying witnesses cooperated with police to produce a composite sketch, which resembled defendant.
We hold that under the particular circumstances of this case,the proposed expert testimony as to weapon focus would have had little relevance and its exclusion did not prejudicially deprive defendant of a fair trial. Moreover, the testimony regarding the preparation of the composite sketch would have been admitted for the limited purpose of allowing the People to address a potentially misleading impression that would have been created by the defense identification expert's proposed postevent information testimony, and the conditional ruling was not unduly prejudicial to defendant, given the limiting instruction proposed by the court. Therefore, we affirm the judgment.
On June 15, 1991, livery cab driver Joaquin Liriano was stabbed to death. A number of people witnessed the attack, and within days four of them collaborated on a composite sketch of the perpetrator. In 1993, defendant was deemed a suspect in the homicide after he was arrested for an unrelated burglary and an officer thought that he resembled the composite sketch. The police were unable to locateany of the witnesses and the homicide case remained dormant until April 1998 when defendant was arrested for another burglary and the police again concluded that he resembled the composite sketch.
The authorities then located the witnesses who contributed to the composite sketch and another who did not come forward until 1998. R.P., who saw the perpetrator from the street, positively identified defendant in a photo array and lineup as the perpetrator. T.F., who saw the perpetrator at a distance of 20 to 25 feet through a window in his apartment, viewed the photo array and noted that defendant's photograph was a "very close, if not exact match." J.G., who was with T.F. at the time of the attack, noted that defendant's photograph looked "similar" to the perpetrator. The fourth and fifth witnesses (L.G. and S.G.) were unable to identify defendant. No forensic or physical evidence tied defendant to the stabbing.
Defendant's first trial ended in a hung jury. He was found guilty at his second trial. This Court affirmed (28 AD3d 318 ), but the conviction was reversed by the Court of Appeals (8 NY3d 449 )(LeGrand I) and a new trial ordered on the ground that the trial court erred when it precluded the defense expert's proposed testimony regarding the lack of correlation between confidence and accuracy of identification, confidence malleability, and the effect of postevent information on identification accuracy, the underlying principles of which were generally accepted by the relevant scientific community.*fn1 The Court of Appeals found that testimony as to the psychological phenomenon of weapon focus was properly excluded because there was insufficient evidence to confirm that the principles underlying the proposed testimony were generally accepted in the relevant scientific community at that time.
In so ruling, the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony. In the first stage, the court decides whether the case "turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime" (8 NY3d at 452). In the second stage, a court must consider whether the proposed "testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific ...