Frye hearing in New York

2024As to the plaintiffs' request for a Frye hearing with respect to Yarmus's proposed testimony, "[t]he long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has 'gained general acceptance' in its specified field" ( People v Wesley , 83 NY2d 417, 422 , quoting Frye v United States (293 F at 1014).

2024A "Frye inquiry is separate and distinct from the admissibility question applied to all evidence-whether there is a proper foundation-to determine whether the accepted methods were appropriately employed in a particular case." Parker v Mobil Oil Corp., 7 NY3d 434,447 [2006] (citing People v Wesley, 83 NY2d 417,429 [1994]).

2024A "Frye inquiry is separate and distinct from the admissibility question applied to all evidence-whether there is a proper foundation-to determine whether the accepted methods were appropriately employed in a particular case." Parker v Mobil Oil Corp., 7 NY3d 434,447 [2006] (citing People v Wesley, 83 NY2d 417,429 [1994]).

2023To that end, defendant has demanded that plaintiff provide authorizations directing her designated experts, including Dr. Lipton, to produce records regarding controls, standards and calibrations of these tests, for purposes of a Frye challenge ( Frye v United States , 293 F 1013, 1014 [DC Cir. 1923]; see also Parker v Mobil Oil Corp. , 7 NY3d 434, 446-447 [2006]).

2025"A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony" ( People v LeGrand , 8 NY3d 449, 458 ).

2025"A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony" ( People v LeGrand , 8 NY3d 449, 458 ).

2018At the time of defendant's pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program ( see People v Wakefield , 47 Misc 3d 850, 851 [Sup Ct, Schenectady County 2015]; compare People v Middleton , 54 NY2d 42, 49-50 [1981]; People v Magri , 3 NY2d 562, 566 [1958]).

2018At the time of defendant's pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program ( see People v Wakefield , 47 Misc 3d 850, 851 [Sup Ct, Schenectady County 2015]; compare People v Middleton , 54 NY2d 42, 49-50 [1981]; People v Magri , 3 NY2d 562, 566 [1958]).

2026New York courts expanded Frye beyond the results of scientific testing and measurement procedures and have applied it to determine the reliability of psychological and physiological theories or syndromes and also an expert's theory of causation as to a particular matter ( see id. at 57). "[W]hen the Frye test is applied to a theory of causation, 'the court's concern must be limited to making sure that within the scientific field in question, there is a substantive, demonstratable, objective basis for the expert's conclusion,' and . . . '[t]he focus of the inquiry in such an instance should not

2026New York courts expanded Frye beyond the results of scientific testing and measurement procedures and have applied it to determine the reliability of psychological and physiological theories or syndromes and also an expert's theory of causation as to a particular matter ( see id. at 57). "[W]hen the Frye test is applied to a theory of causation, 'the court's concern must be limited to making sure that within the scientific field in question, there is a substantive, demonstratable, objective basis for the expert's conclusion,' and . . . '[t]he focus of the inquiry in such an instance should not

2020The Frye test asks "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" ( People v Wesley , 83 NY2d at 422 ; see People v Wernick , 89 NY2d 111, 115-116 ; Matter of State of New York v Hilton C. , 158 AD3d at 709).

2020The Frye test asks "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" ( People v Wesley , 83 NY2d at 422 ; see People v Wernick , 89 NY2d 111, 115-116 ; Matter of State of New York v Hilton C. , 158 AD3d at 709).

2024Such expert testimony is only admissible in New York courts, pursuant to the Frye test ( see Frye v United States , 293 F 1013), when it is "based on scientific principles, procedures, or theories only after the principles, procedures, or theories have gained general acceptance in the relevant scientific field" ( Zito v Zabarsky , 28 AD3d 42, 44 ; see Farrell v Lichtenberger , 194 AD3d 1013, 1015 ).

2024Such expert testimony is only admissible in New York courts, pursuant to the Frye test ( see Frye v United States , 293 F 1013), when it is "based on scientific principles, procedures, or theories only after the principles, procedures, or theories have gained general acceptance in the relevant scientific field" ( Zito v Zabarsky , 28 AD3d 42, 44 ; see Farrell v Lichtenberger , 194 AD3d 1013, 1015 ).

2025In its motions, Saint-Gobain's arguments primarily focused not on the general scientific acceptance of plaintiffs' experts' methodologies but, rather, on the reliability of the conclusions arrived at by those experts, such that a Frye analysis does not come into play ( see Lipschitz v Stein , 65 AD3d 573, 576 [2d Dept 2009]; Parker v Crown Equip.

2025In its motions, Saint-Gobain's arguments primarily focused not on the general scientific acceptance of plaintiffs' experts' methodologies but, rather, on the reliability of the conclusions arrived at by those experts, such that a Frye analysis does not come into play ( see Lipschitz v Stein , 65 AD3d 573, 576 [2d Dept 2009]; Parker v Crown Equip.

2022The opinion of plaintiff's expert, Michael Klein, a professional engineer, is not premised on the type of "novel theory" that is subject to a Frye inquiry, and therefore, plaintiffs were not required to justify the admission of Klein's opinion by proving its general acceptance in the relevant scientific community ( see Sadek v Wesley , 117 AD3d 193 , 200-201 [1st Dept 2014], affd 27 NY3d 982 [2016]; Nonnon v City of New York , 32 AD3d 91, 103 [1st Dept 2006], affd 9 NY3d 825 [2007]).

2022The opinion of plaintiff's expert, Michael Klein, a professional engineer, is not premised on the type of "novel theory" that is subject to a Frye inquiry, and therefore, plaintiffs were not required to justify the admission of Klein's opinion by proving its general acceptance in the relevant scientific community ( see Sadek v Wesley , 117 AD3d 193 , 200-201 [1st Dept 2014], affd 27 NY3d 982 [2016]; Nonnon v City of New York , 32 AD3d 91, 103 [1st Dept 2006], affd 9 NY3d 825 [2007]).

2015The defendant’s contention that the Supreme Court should have conducted a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 223 [1996]; People v Dashosh, 59 AD3d 731, 732 [2009]) and, in any event, without merit (see People v Oddone, 22 NY3d 369, 375-377 [2013]).

2015The defendant’s contention that the Supreme Court should have conducted a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 223 [1996]; People v Dashosh, 59 AD3d 731, 732 [2009]) and, in any event, without merit (see People v Oddone, 22 NY3d 369, 375-377 [2013]).

2024Therefore, the trial court should not have applied the rule here. [FN12] [*13]A. Applying the traditional Frye standard, the Court has sanctioned the introduction of expert testimony on a vast array of subjects, including, for example: the effect of drugs and alcohol "on a person's ability to act purposefully" ( see People v Cronin , 60 NY2d 430, 433 [1983]); the effects of rape trauma syndrome on complaining witnesses ( see People v Taylor , 75 NY2d 277, 289 [1990]); the adequacy of building security measures to deter crime ( see Price ex rel.

2024Therefore, the trial court should not have applied the rule here. [FN12] [*13]A. Applying the traditional Frye standard, the Court has sanctioned the introduction of expert testimony on a vast array of subjects, including, for example: the effect of drugs and alcohol "on a person's ability to act purposefully" ( see People v Cronin , 60 NY2d 430, 433 [1983]); the effects of rape trauma syndrome on complaining witnesses ( see People v Taylor , 75 NY2d 277, 289 [1990]); the adequacy of building security measures to deter crime ( see Price ex rel.

2021The trial court denied defendant’s request, without conducting a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]; People v Wesley, 83 NY2d 417, 423-429 [1994]). “[T]he admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” (People v Lee, 96 NY2d 157, 162 [2001]).

2021The trial court denied defendant’s request, without conducting a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]; People v Wesley, 83 NY2d 417, 423-429 [1994]). “[T]he admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” (People v Lee, 96 NY2d 157, 162 [2001]).

2020J., concurring], quoting Jones v United States, 548 A2d 35, 42 [DC Cir 1988]; see also Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]), that paradigm -8- -9- No. 15 the error in denying the Frye hearing, I concur in the majority’s affirmance of the judgment on the ground of harmless error, as the evidence of defendant’s use of the handgun involved in the murder – including defendant’s own trial testimony admitting he shot the victim in addition to the proof cited by the majority – was overwhelming. * * * * * * * * * * * * * * * * * Order affirmed.

2020J., concurring], quoting Jones v United States, 548 A2d 35, 42 [DC Cir 1988]; see also Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]), that paradigm -8- -9- No. 15 the error in denying the Frye hearing, I concur in the majority’s affirmance of the judgment on the ground of harmless error, as the evidence of defendant’s use of the handgun involved in the murder – including defendant’s own trial testimony admitting he shot the victim in addition to the proof cited by the majority – was overwhelming. * * * * * * * * * * * * * * * * * Order affirmed.

2016In the dissent in Shannon S., three members of this Court who are now in the majority stated our view that the paraphilia NOS diagnosis presented by Dr. Kirsh-ner and another expert witness in that case ‘amount[ed] to junk science devised for the purpose of locking up dangerous criminals’ and we expressed ‘grave doubt’ whether such a ‘diagnosis would survive a Frye hearing to determine whether it is “sufficiently established to have gained general acceptance” in the psychiatric community.’ ” ( 24 NY3d at 186 , quoting Shannon S., 20 NY3d at 110 [Smith, J., dissenting] [internal quotation marks

2016In the dissent in Shannon S., three members of this Court who are now in the majority stated our view that the paraphilia NOS diagnosis presented by Dr. Kirsh-ner and another expert witness in that case ‘amount[ed] to junk science devised for the purpose of locking up dangerous criminals’ and we expressed ‘grave doubt’ whether such a ‘diagnosis would survive a Frye hearing to determine whether it is “sufficiently established to have gained general acceptance” in the psychiatric community.’ ” ( 24 NY3d at 186 , quoting Shannon S., 20 NY3d at 110 [Smith, J., dissenting] [internal quotation marks

2010A Frye hearing is used, to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific community, for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201 [2008]).

2010A Frye hearing is used, to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific community, for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201 [2008]).

2006My ruling was, of course, heavily influenced by the two most recent Court of Appeals decisions on this issue (see People v Drake, 7 NY3d 28 [2006]; People v Young, 7 NY3d 40 [2006]), and was based upon the Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) I ordered and conducted.

2006My ruling was, of course, heavily influenced by the two most recent Court of Appeals decisions on this issue (see People v Drake, 7 NY3d 28 [2006]; People v Young, 7 NY3d 40 [2006]), and was based upon the Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) I ordered and conducted.

2020We also conclude, however, that the error here was harmless in light of the eyewitness testimony as to the shooting and defendant’s admission to his involvement in that incident (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). -3- People v Elijah Foster-Bey No. 16 DiFIORE, Chief Judge (concurring): I concur for the reasons stated in my concurring opinion in People v Cadman Williams ( __ NY3d __ [decided herewith]), and agree with the majority that any error in the court’s denial of the Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) -1- -2- No. 16 was harmless, giv

2020We also conclude, however, that the error here was harmless in light of the eyewitness testimony as to the shooting and defendant’s admission to his involvement in that incident (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). -3- People v Elijah Foster-Bey No. 16 DiFIORE, Chief Judge (concurring): I concur for the reasons stated in my concurring opinion in People v Cadman Williams ( __ NY3d __ [decided herewith]), and agree with the majority that any error in the court’s denial of the Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) -1- -2- No. 16 was harmless, giv

2018In light of our determination, we hold the appeal from the November 2014 judgment in abeyance and remit the matter to County Court for a posttrial Frye hearing to consider the reliability of the TrueAllele Casework system as it was when the analysis was performed in 2013 and report back on its findings ( see generally People v Roraback , 242 AD2d 400, 406 [1997], lvs denied 91 NY2d 878 , 879 [1997]).

2018In light of our determination, we hold the appeal from the November 2014 judgment in abeyance and remit the matter to County Court for a posttrial Frye hearing to consider the reliability of the TrueAllele Casework system as it was when the analysis was performed in 2013 and report back on its findings ( see generally People v Roraback , 242 AD2d 400, 406 [1997], lvs denied 91 NY2d 878 , 879 [1997]).

2015The court properly denied respondent’s motion for a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), since petitioner’s expert’s opinion did not involve “obviously novel forensic and social science techniques” (Selig v Pfizer, Inc., 185 Misc 2d 600, 606 [Sup Ct, NY County 2000], affd 290 AD2d 319 [1st Dept 2002], lv denied 98 NY2d 603 [2002]).

2015The court properly denied respondent’s motion for a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), since petitioner’s expert’s opinion did not involve “obviously novel forensic and social science techniques” (Selig v Pfizer, Inc., 185 Misc 2d 600, 606 [Sup Ct, NY County 2000], affd 290 AD2d 319 [1st Dept 2002], lv denied 98 NY2d 603 [2002]).

2016Furthermore, because the court failed to grant a Frye hearing, I assume that the matters identified by the defendant are encompassed within generally accepted scientific principles (Oddone, 22 NY3d at 379 ).

2016Furthermore, because the court failed to grant a Frye hearing, I assume that the matters identified by the defendant are encompassed within generally accepted scientific principles (Oddone, 22 NY3d at 379 ).

2017We further conclude that the court did not abuse its discretion in refusing to preclude the testimony of defendant’s expert toxicologist. “ ‘The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case’ ” (Muhammad v Fitzpatrick, 91 AD3d 1353, 1354 [2012]).

2017We further conclude that the court did not abuse its discretion in refusing to preclude the testimony of defendant’s expert toxicologist. “ ‘The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case’ ” (Muhammad v Fitzpatrick, 91 AD3d 1353, 1354 [2012]).

2018The evidence at the Frye hearing showed that there was no clear definition or criteria for the diagnosis, the diagnosis could not be reliably distinguished from other motivations for rape, the articles offered in support of the diagnosis did not reflect a wide, significant, or well-rounded body of research supporting the validity of the diagnosis, and the diagnosis was repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) or in the DSM appendix ( see Matter of State of New York v Donald DD., 24 NY3d 174, 186-187 ; Matter of State of Ne

2018Footnotes Footnote 1: Perhaps tellingly, following its decision in Shannon S. , the Court of Appeals specifically questioned whether PNOS would survive a Frye hearing as to whether it has gained general acceptance in the psychiatric and psychological communities — a question upon which the Court has yet to render a determination ( see Matter of State of New York v Donald DD. , 24 NY3d at 186 ).

2006Some cases have involved physical phenomena and measurements (see People v Angelo, 88 NY2d 217 [1996] [polygraph test results not generally accepted by the pertinent scientific community]; People v Wesley, 83 NY2d 417, 422 [1994] [DNA evidence considered admissible]; People v Hughes, 59 NY2d 523, 537 [1983] [posthypnotic recollection testimony not admissible under Frye]; Styles v General Motors Corp., 20 AD3d 338 [2005] [novel use of combination of two accepted automobile roof stress tests subject to Frye hearing to determine admissibility]).

2005(People v Wernick, 89 NY2d 111, 115-116 [1996]; People v Wesley, 83 NY2d 417 , 423 n 2 [1994]; People v Hughes, 59 NY2d 523, 537 [1983]; see also Frye v United States, 293 F 1013 [DC Cir 1923]; Selig v Pfizer, Inc., 290 AD2d 319 [2002], lv denied 98 NY2d 603 [2002].) This “general acceptance” or “Frye test” applies to all areas of scientific analysis including engineering.

2025When the Supreme Court made its ruling in this case, a court of coordinate jurisdiction, upon conducting an extensive Frye hearing, had determined that LCN DNA testing was not a novel scientific technique, and that, when properly performed, it is generally accepted as reliable in the forensic scientific community ( see People v Megnath , 27 Misc 3d 405, 413 [Sup Ct, Queens County]; see also People v Gonzalez , 155 AD3d 507 ; People v Garcia , 39 Misc 3d 482 [Sup Ct, Bronx County]).

2020Therefore, the court’s “complete deference” to the decision in People v Garcia ( 39 Misc 3d 482 [Sup Ct., Bronx County 2013], affd 170 AD3d 462 [1st Dept 2019], lv denied 33 NY3d 482 [2019]), which held, without a Frye hearing, that both low copy number testing results and FST evidence were generally accepted in the scientific community and admissible, was not a sufficient basis to deny the Frye hearing (see Williams, concurring op. at 7). * * * * * * * * * * * * * * * * * Order affirmed, in a memorandum.

2025When the Supreme Court made its ruling in this case, a court of coordinate jurisdiction, upon conducting an extensive Frye hearing, had determined that LCN DNA testing was not a novel scientific technique, and that, when properly performed, it is generally accepted as reliable in the forensic scientific community ( see People v Megnath , 27 Misc 3d 405, 413 [Sup Ct, Queens County]; see also People v Gonzalez , 155 AD3d 507 ; People v Garcia , 39 Misc 3d 482 [Sup Ct, Bronx County]).

2024At the time of defendant's trial, the use of low copy number (LCN) testing to obtain DNA profiles from small amounts of genetic material and forensic statistical tool (FST) software to calculate likelihood ratios for possible contributors to DNA mixtures was found by almost every court to satisfy the Frye standard ( Frye v United States , 293 F 1013 [DC Cir 1923]) of having gained general acceptance in the relevant scientific community ( see People v Gonzalez , 155 AD3d 507 [1st Dept 2017], lv denied 30 NY3d 1115 [2018]; People v Megnath , 27 Misc 3d 405 [Sup Ct, Queens County 2010]).