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People v. Christopher Porco, 05-848 Unknown

05-848

2006-07-11 00:00:00.0

ALBANY COUNTY

County Court

Albany County District Attorney

Attorney for the People

Kindlon and Shanks

Attorney for Defendant

Judge Berry

UPON reading and filing the within letter to the Court dated June 12, 2006, from Terence L. Kindlon, Esq., of Kindlon and Shanks, P.C., attorney for defendant, the proceedings held in open Court on June 15, 2006 and upon all the papers and proceedings had herein, it is hereby Ordered that the defendant's application is decided as follows:

Defendant moves for a Pre-Trial Hearing pursuant to Frye v. United States (293 F. 1013)to determine the admissibility of analysis and interpretation of mitochondrial DNA evidence which the District Attorney intends to introduce at trial.

Trial Courts in the State of New York have previously determined, after holding a Frye Hearing, that expert testimony relating to mitochondrial DNA analysis and interpretation are generally accepted as reliable in the scientific community (See, People v. Ko, Ind. # 1998-2449, Supreme Court, New York County, [oral decision rendered May 11, 2000] and People v. Klinger, Ind. # 2000-849, County Court, Nassau County, September 5, 2000). In upholding the Trial Court's ruling in People v. Ko, supra, the Appellate Division of the Supreme Court, First Judicial Department stated "The court correctly determined that mitochondrial DNA analysis has been found reliable by the relevant scientific community" and noted that many jurisdictions have also accepted this type of DNA evidence (People v. Ko, 304 AD2d 451, app.den. 1 NY3d 598, vacated and remanded, Ko v. New York, 542 US 901, on remand adhered to 15 AD3d 173, app. den. 5 NY3d 807, writ of certiori denied, Ko v. New York, 2006 U.S. Lexis 81). The Court found no decision of the Appellate Division of any other Judicial Department of New York State addressing the issue and therefore is required to follow the Decision of the Appellate Division, First Judicial Department on mitochondrial DNA evidence, i.e. its analysis and interpretation as being generally accepted as reliable in the scientific community.

Based on the foregoing, defendant's Motion for a Pre-Trial Frye Hearing is denied.

The aforesaid constitutes the Decision and Order of the Court.

New York Law Journal: People v Christopher Porco 05 848 http://www.newyorklawjournal.com/CaseDecisionFriendlyNY.jsp?id=1...

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