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Featured Case

The Weakness of the Complainant’s Testimony About the Identity of the Assailant and the Weakness of the High-Sensitivity DNA Analysis Required Reversal Under a Weight of the Evidence Review

The Second Department, under a weight of the evidence analysis, reversed defendant’s gang assault conviction. The Second Department noted the weakness of the complainant’s testimony about the identity of the assailant and the weakness of the DNA evidence. One of the assailants removed complainant’s sneaker and threw it. There was very little DNA on the sneaker and a special “high-sensitivity” analysis was used: “The complainant’s sneaker was recovered six days after the incident. The DNA sample obtained from the sneaker contained only 97.9 picograms of DNA, which is less than the minimum amount of DNA material—100 picograms—needed for traditional DNA testing. Further, the DNA sample was a nondeducible mixture, meaning that it contained the DNA of two or more persons, but that the mixture could not be broken apart to determine which strings of DNA came from which person.” People v. Herskovic, 2018 N.Y. Slip Op. 06763, Second Dept 10-10-18

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New York appellate courts release, on average, between 150 and 200 decisions per week. The CasePrepPlus service summarizes the most significant decisions, which include substantive discussions of the facts and the law, into one-paragraph summaries, which are prefaced by succinct headings, allowing the reader to quickly decide whether a case is of interest. Each summary is linked to the full decision. Keeping up with the decisions released the week before, a process which could easily take an individual attorney numerous hours every week, takes only minutes with CasePrepPlus.

Summaries are written by Rochester-based attorney Bruce Freeman. For his bio, click here.