People v. Roraback

Casey, J. (concurring in part and dissenting in part).

It is

our opinion that Supreme Court properly admitted for the jury’s consideration the testimony of Charles Pompa and the results of the analysis from the Fourier Transform Infrared Spectrophotometer (hereinafter FTIR) without conducting a Frye hearing and, accordingly, we would affirm the judgment of conviction in its entirety.

After establishing his qualifications as a forensic scientist with the State Police, Pompa testified about the different tests he performed on several samples of cement dust taken from tools and areas in the vicinity of the crime scene. During the course of this testimony, which covered over 20 pages, no objection was registered by defendant even when Pompa was asked to identify exhibits (Nos. 82 through 90) representing the FTIR analysis establishing the similarity between safe lining and the cement dust samples. Defendant objected only when the People asked Pompa to identify one specific computer-generated spectrum (exhibit No. 91) visually depicting the dissimilarities between safe lining and a concrete cinderblock. Notably, this objection was addressed to the People’s failure to provide discovery with respect to this exhibit pursuant to CPL 240.20 (l).¹

The discussion that ensued centered strictly around notice and the timing of the disclosure of this exhibit.² At no time did defendant make any argument with respect to the reliability or general acceptance of the FTIR in the scientific community, which is the focus and purpose of a Frye hearing (see, People v Wernick, 89 NY2d 111). Although Supreme Court initially questioned whether the FTIR analysis constituted a “scientific test or experiment”, it did so only to decide the applicability of CPL 240.20 (1) (c), in which these terms are used, and not in reference to a Frye hearing. Consequently, since defendant’s reference to a Frye hearing was at best ambivalent, defendant’s claim on appeal that Supreme Court erred in ruling this evidence admissible without conducting a Frye hearing is unpreserved (see, People v Angelo, 88 NY2d 217, 223).

Even if it could be argued that defendant requested and was denied a Frye hearing with respect to any or all of this evidence, we nevertheless conclude that such hearing is not warranted as the FTIR is not “novel scientific evidence requiring a determination as to its reliability” (People v Wesley, 83 NY2d 417, 422). Pompa testified that he has used the FTIR device for seven years in his job with the State Police to identify the chemical composition of substances (see, People v Serrano, 219 AD2d 508, 509, lv denied 87 NY2d 907).

Finally, in view of the remaining overwhelming evidence of defendant’s guilt with respect to counts XI and XII, the error, if any, attending the admission of this evidence should be considered harmless.

Carpinello, J., concurs. Ordered that the decision is withheld with respect to defendant’s convictions of the crimes of burglary in the second degree and grand larceny in the third degree under counts XI and XII of the indictment, and matter remitted to the Supreme Court for a posttrial Frye hearing, with Supreme Court to report back within 90 days from the date of this Court’s decision. Ordered that the judgment is affirmed with respect to defendant’s convictions of the crimes of robbery in the first degree, burglary in the first degree and petit larceny.

1 . Although defendant never specified the statute under which discovery was sought, Supreme Court determined that defendant’s objection was made pursuant to CPL 240.20.

2 . Although defendant ultimately registered an objection to the admission of exhibit Nos. 82 through 90, he gave no reason therefor.