Newton v State of New York, 2018 NY Slip Op 06494 [1st Dept. 2018]

Claimant contends that the testimony of the State’s economist is inadmissible because the methodology he used to arrive at the “theory” that the prior conviction reduced claimant’s employability and earnings capacity has not been shown to be generally accepted in the relevant community under Frye v United States (293 F 1013 [1926]). This argument is unpreserved (see Matter of State of New York v David S., 136 AD3d 445, 446 [1st Dept 2016]). In any event, a Frye analysis is inapplicable because the theory is not “scientific” (see People v Brooks, 31 NY3d 939, 941 [2018]; Wahl v American Honda Motor Co., 181 Misc 2d 396, 398-399 [Sup Ct, Suffolk County 1999]). Further, even if it is scientific, the challenge against it does not implicate a Frye analysis, but rather, “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]).

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