People v Lewis
2012 NY Slip Op 50718(U)
Decided on April 25, 2012
Criminal Court Of The City Of New York, Kings County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
People v Lewis
Decided on April 25, 2012
Criminal Court of the City of New York, Kings County
The People of the State of New York,
Saintclaire Lewis, Defendant.
For the People, Charles J. Hynes, District Attorney, Kings County, by Darren Albanese, Esq., Assistant District Attorney.
For the Defendant, Melanie M. Marmer, Esq.
John H. Wilson, J.
Defendant is charged with two counts of Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 256.01), and three counts of Possession of Pistol Ammunition (AC Sec. 10-131(i)(3)), both Class A misdemeanors, and Criminal Possession of Marijuana (PL Sec. 221.05), a violation.
By motion dated September 19, 2011, The People move under CPL Sec. 240.20(2)(b)(v) to compel the Defendant to submit to the taking of oral swab samples from his body for DNA testing and analysis.
By a response dated April 2, 2012, Defendant opposes the People's motion, and seeks a Protective Order to prevent the disclosure of any recovered DNA to anyone other than the parties to this action.
The Court has reviewed the court file, the People's motion, and the Defendant's response. For the reasons stated below, The People's motion is granted; and Defendant's motion for a Protective Order is also granted.
STATEMENT OF FACTS
On or about March 5, 2010, at approximately 6:25 AM, Defendant was arrested during the execution of a search warrant at Defendant's residence, the basement of 139 Newport Street, Brooklyn, New York. During the search of the location, a .25 caliber Jimenez semi-automatic pistol, a .357 caliber Taurus Magnum Revolver, as well as .25 caliber, .357 caliber, and .38 caliber ammunition were recovered from a safe, while marijuana was recovered from a nightstand.
By a decision dated October 26, 2010, the Court found probable cause for the issuance of the search warrant, and denied Defendant's motion to suppress the evidence seized.
Defendant admits to residence at the location where the guns, ammunition and marijuana were found. See, Criminal Justice Agency report dated March 5, 2010.
ARGUMENTS OF THE PARTIES
The People assert that the .357 caliber Taurus Magnum Revolver recovered from Defendant's residence contains "a mixture of DNA." See, People's motion dated September 19, 2011, p 2, para 6. Thus, the People seek the taking of oral swab samples from Defendant's body for DNA testing and analysis "so that they can compare the defendant's known DNA sample to the DNA profile generated from the DNA recovered from the above firearm." See, People's motion dated Septembe7 19, 2011, p 2-3, para 6.
Defendant argues that "the very issue of probable cause has yet to be determined and reviewed in this matter...at an upcoming (evidentiary) hearing." See, Defendant's Response dated April 2, 2012, p 2, para 5. Further, since "it has been over a year and a half since Defendant was arrested before the People moved to obtain an Order compelling" the collection of the DNA sample, "this motion is untimely and the People have not exercised due diligence in moving to obtain the evidence they now seek."See, Defendant's Response dated April 2, 2012, p 3, para 10.
Alternatively, Defendant seeks a protective order, pursuant to Executive Law § 995-d, to preclude the disclosure of the recovered DNA to anyone other than those involved in this case and prohibiting the Office of the Medical Examiner from posting its findings in any database that it maintains for DNA information.
In pertinent part, CPL 240.40 (2) (b) (v) reads as follows:
"2. Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor's information, information or [*2]simplified information charging a misdemeanor is pending :
(b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to: ...
(v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto... .
In order to prevail on a motion pursuant to CPL 240.40 (2) (b) (v), the People must establish the following; "(1) probable cause to believe the suspect has committed the crime, (2) a clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other." See, Matter of Abe A., 56 NY2d 288, 291, 452 NYS2d 6(1982).
The first prong of Abe A. is satisfied since a determination has already been made regarding the issue of probable cause. In its decision dated October 26, 2010, the Court specifically stated "since the defendant had control over the premises, the contraband recovered established sufficient probable cause for the arrest of this defendant." See, decision of October 26, 2010, p 3-4 (citations omitted).[FN1] The firearms and marijuana were recovered from Defendant's apartment, and Defendant was found to have standing to challenge the search warrant based upon his residence in the target apartment. See, decision of October 26, 2010, p 2.
The second prong of Abe A. is satisfied since there is a "clear indication" that relevant material will be found. The laboratory report of the Office of the Medical Examiner indicates that the DNA swab of the firearm determined that "a mixture of DNA." was recovered from the .357 caliber Taurus Magnum Revolver recovered from Defendant's residence . See, People's motion dated September 19, 2011, p 2, para 6. The Court finds that "The inclusion or exclusion of the defendant as the source of the DNA sample obtained from the seized [handgun] clearly constitutes relevant and material evidence in this case." See, People v. Beecham, 25 Misc 3d 1214 (A) at 3, 901 NYS2d 908 (S Ct, Westchester Cty, 2009); People v Allweiss, 48 NY2d 40, 50, 421 NYS2d 341 (1979). [*3]
The third requirement of Abe A. is also satisfied here. This Court finds that as long as the sample is procured by a trained professional, in a manner that is in concert with already established scientific procedures, the method of collection will be safe, reliable and free from risk or serious physical injury.
This Court further finds that given the seriousness of the crime alleged, the evidence sought by the People is probative as to the identity of the possessor of the gun, and may either include or exclude Defendant. The oral swab sought here represents a minimally intrusive mean of obtaining a DNA sample by simply using a cotton swab in Defendant's cheek lining. Finally, Defendant's constitutional right to be free from bodily intrusion is outweighed by the People's need to obtain the non-testimonial evidence sought to satisfy the element of possession in the crime charged. This Court finds that the People have established that Defendant's submission to DNA testing and analysis is warranted in this case.
Defendant asserts that since "it has been over a year and a half since Defendant was arrested before the People moved to obtain an Order compelling" the collection of the DNA sample, "this motion is untimely and the People have not exercised due diligence in moving to obtain the evidence they now seek."See, Defendant's Response dated April 2, 2012, p 3, para 10.
This Court is aware that a Court of concurrent jurisdiction has held that the People's delay in filing their discovery motion renders the motion "untimely and in violation of the mandates set forth in CPL Sec. 240.90(1)." See, People v. Cherry, 34 Misc 3d 1235(A), (Crim Ct, Kings Cty, 2012). However, this Court rejects the reasoning of Cherry.
UnderCPL Sec. 240.90 (1), "a motion by a prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown may be made at any time before commencement of trial." The Cherry Court emphasized that "the People have not articulated any argument whatsoever asserting good cause' for failing to comply with the time constraints of CPL 240.90(1)."
However, in People v. Lewis, 44 AD3d 422, 422-423, 843 NYS2d 72, (1st Dept, 2007), the Court ruled "although the People failed to show good cause for their delay, the delay itself did not cause defendant any prejudice." The Appellate Division supported their position with reference to People v. Jenkins, 98 NY2d 280, 284, 746 NYS2d 651 (2002), where the Court of Appeals stated that "preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice ...cannot be cured by a lesser sanction."
Though Lewis discussed compelling a defendant to submit to handwriting samples, the same finding has been made in a matter involving the collection of a DNA sample. See, People v. Ruffell, 55 AD3d 1271, 864 NYS2d 347 (4th Dept, 2008) ("the delay itself did not cause defendant any prejudice.") [*4]
Therefore, given the appellate authority cited above, which predates the holding in Cherry, the People's delay in filing their motion will be excused given that the standards of Abe A. have been satisfied, and the Defendant is not prejudiced by the request.[FN2]
Notwithstanding this Court's finding that the People have sufficiently satisfied the requirements set forth in Abe A., and that the Defendant is not prejudiced by the delay in the People's application, this Court also finds that the People have not articulated a factual basis to support the issuance of a force order to accomplish this objective. CPL Sec. 240. 70 (1); CPL Sec. 240.40 (2) (b) (v); See also, People v Williams, 163 Misc 2d 212, 620 NYS2d 710 (Cty Ct Westchester Cty 1994).
In addition, Defendant is not categorized as a designated offender as defined by Executive Law § 995(7). Therefore, this Court finds that the People's procurement of the Defendant's DNA is limited to utilization in this case solely and must not be included in a state DNA identification index.
Accordingly, for the reasons stated above, the People's motion for an order, pursuant to Criminal Procedure Law (CPL) 240.40 (2) (b) (v), directing that the Defendant submit to the taking of oral swab samples from his body for DNA testing and analysis, is granted to the extent that the order issued by this Court omits language that permits the use of force upon the Defendant for these purposes and further states that the Defendant's DNA must not be added to the state DNA identification index, and may not be publicized in any other manner by the Office of the Medical Examiner.
All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.
Dated: Brooklyn, New YorkApril 25, 2012
_______________________________Hon. John H. Wilson, JCC
Footnote 1: It should also be noted that contrary to Defendant's assertions in his response dated April 2, 2012, based upon the Court's decision of October 26, 2010, the issue of probable cause and the admissibility of the physical evidence are not subject to evidentiary hearings. Thus, there is no need to hold this matter "in abeyance pending the Court's decision and findings after conduction (sic) the suppression hearings."See, Defendant's Response dated April 2, 2012, p 2, para 7
Footnote 2: The parties are reminded that DNA testing may lead to the "exclusion of the defendant as the source of the DNA sample." Beecham 25 Misc 3d 1214 (A) at 3. Thus, Defendant can hardly be prejudiced by the gathering of evidence that may lead to the discovery of potentially exculpatory evidence.