DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, vacating defendant’s murder conviction and ordering a new trial, determined the DNA evidence (from under the victim’s fingernails) procured after the trial may have resulted in a verdict more favorable to the defendant. Defendant was identified as the perpetrator by an 88-year-old witness who had poor vision. The DNA recovered from the victim was that of the victim’s boyfriend. There was no other evidence tying defendant to the scene:

… [T]he defense theory at trial was one of mistaken identity. The defendant posited that the perpetrator was actually Samuels’s [the victim’s] boyfriend, Jermaine Robinson. No physical evidence linked the defendant to the crime. The only identity evidence offered by the People at trial was the testimony of a single eyewitness, Marchon, who was 88 years old at the time of the incident and suffered from significantly impaired vision. Marchon’s description to the police of the perpetrator’s appearance was not conclusive and was, in part, more consistent with Jermaine Robinson’s appearance. Under the facts of the case, it would not have been unreasonable to conclude that Marchon confused Samuels’s estranged husband with her current boyfriend in making her identification to the police. Marchon also was not able to conclusively identify the defendant at trial. Moreover, various members of the defendant’s family provided alibi evidence for his whereabouts on the day of the attack. Finally, two Allen charges … were required before the jury was able to reach a verdict.

Under all of these circumstances, while not a “virtual certainty,” there existed a reasonable probability that the verdict would have been more favorable to the defendant had the DNA evidence been admitted at trial … . People v Robinson, 2023 NY Slip Op 01533, Second Dept 3-22-23

Practice Point: Here in this murder case DNA evidence discovered after the trial pointed to a different perpetrator and the single eyewitness was 88 years old and had poor vision. Had the DNA evidence been admitted at trial the verdict may have been more favorable to defendant. New trial ordered.