Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15