People v Jones
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People v Jones 2013 NY Slip Op 34263(U) September 30, 2013 Supreme Court, Kings County Docket Number: Indictment 05146/12 Judge: Martin P. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY: PART 40 --------------------------------------------------------------------x Decision and Order THE PEOPLE OF THE STATE OF NEW YORK -against- Indictment 05146/12 DNA Swab Decision and Order LAWRENCE JONES Defendant --------------------------------------------------------------------x JUSTICE MARTIN P. MURPHY The defendant is charged inter alia murder in the second degree and criminal possession of a weapon in the second degree. It is alleged that on or about May 25, 2012 in the vicinity of 847 Hancock Street in Kings County, the defendant shot in the back. . ยท later died from his wounds. Numerous witnesses at the time reported hearing at least five shots fired at the time. A deformed bullet was recovered at the scene and vouchered. Defendant was arrested at his home at 77 Schaeffer Street in Kings County on June 15, 2012. A black revolver, believed to belong to the defendant, was recovered at the time. Microscopic results of the bullet and firing tests of the revolver concluded that the recovered deformed bullet had been fired from the revolver recovered at defendant 's home. Defendant was later indicted as previously indicated. The weapon was vouchered and later submitted to the Office of the Chief Medical Examiner (O.C.ME.) lab for testing. Swabs of the firearm were also obtained for possible DNA testing. On September 14, 2012, the 0. C. M E. issued a report, indicating that swabs taken from [* 1] the gun were tested and that the results are suitable for comparison. Specifically, the report in part indicated that: Human DNA sufficient for PCR DNA testing was found on the following samples: swab from swab from swab from swab from swab from "cylinder" "grip" "trigger and trigger guard" "safety" "muzzle" It continued: PCR DNA testing was done and the results suitable for comparison. The report also indicated that a mixture of DNA from at least three people was found on the grip of the gun and a mixture of DNA from at least two people was found on the swabs from the trigger, trigger guard and safety. Furthermore, the mixture of DNA on the grip contains a profile of at least one major contributor. The profile of the minor contributors on the grip, trigger and trigger guard could not be determined, but the results are also suitable for comparison. Pursuant to CPL 240. 40 (2 )(b) (v), the People now request an order permitting the taking of oral swab samples from the defendant by means of a buccal swab for DNA testing and comparison to the stains obtained from the weapon. The People believe that such comparison will establish the identity of the defendant as the possessor/owner of the weapon and further their investigation into the charged crimes. The defendant has submitted an affirmation in opposition in which he contests the the sufficiency of the People's arguments in meeting their burden to establish that relevant, material evidence will be found. Defendant also contests that the People previously objected to a [* 2] Mapp, stating they did not intend to introduce any physical evidence. Defendant therefore requests that should a swab order be granted, this court order a Mapp hearing in this case. Finally, again should this court grant a swab order, defendant requests a protective order preventing the OCME from sharing the results with other agencies. After a review of the People' s motion papers, filed on July 8, 2013 and the defendant's affirmation in opposition, filed on August 2, 2013, the official court file, and all of the prior court proceedings, this court finds defendant 's arguments to be unavailing and GRANTS the People's request for the taking of a buccal swab. CPL 240.40 (2)(b) (v) provides : Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor's information , information, or simplified information charging a misdemeanor is pending .. .(b) may order the defendant to provide nontestimonial 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 the Matter ofAbe A. , 56 NY2d 288 [1982], the Court of Appeals held that a suspect in a murder investigation could be compelled to provide a blood sample provided the prosecutor established: (1) that there was probable cause to believe the suspect has committed the crime, (2) that there is a "clear indication" that relevant evidence will be found, and (3) that the method used to secure it is safe and reliable. The court continued : "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." [* 3] Also People v Cacciabaudo, l 53 AD2d 856 [2 nd Dept., 1989], People v Rohl, 148 AD2d 706 [2 nd Dept.,1989], Matter of Victor Valdes, 28 AD2d 781 [2 nd Dept., 2006]. In this case, the requirements of Abe A. have been met. As previously noted, the defendant was indicted by legally sufficient evidence to establish reasonable cause to believe defendant's commission of the charged crimes. In addition, this court has determined in a Decision and Order, issued earlier, that the grand jury proceeding was not defective and that there was legally sufficient evidence presented to sustain the indictment. In addition, there is a clear indication that the evidence sought is relevant and material to the crimes with which defendant is charged. A swab of defendant's inner cheek would be minimally invasive and the method to be used is safe and reliable. Finally, this court finds that the defendant is charged with very serious crimes; that the evidence sought is important to the investigation and the minimal intrusiveness of obtaining it outweighs any concern for the defendant's constitutional right to be free from bodily intrusion. It is therefore ORDERED, that for the purpose of taking the oral swab samples, defendant Lawrence Jones, NYSID #? , must be made available for New York City Court Officers, Detectives of the New York City Police Department and/or Detective Investigators from the Kings County District Attorney 's Office, to take the oral swab samples, which representative will thereafter take custody of said oral swab samples. It is further : ORDERED, that the Office of the Chief Medical Examiner is directed to compare the known DNA profile of Lawrence Jones strictly to the items of evidence submitted in association with Forensic Biology # 12-02624. and it is further: [* 4] ORDERED, that the Office of the Chief Medical Examiner is further directed to refrain from entering the DNA profile of Lawrence Jones into the OCME DNA Databank, unless there is a conviction in this case and it is further: ORDERED, that the Office of the Chief Medical Examiner is further directed to refrain from entering the DNA profile of Lawrence Jones into any State-wide or Federal DNA database. Finally, should the DNA comparison results indicate the presence of defendant 's DNA on the recovered weapon, and should the People seek to admit the gun into evidence at trial, defendant is hereby GRANTED a pretrial Mapp hearing to determine the weapon's admissibility. The foregoing constitutes the decision and order of the court. Dated: Brooklyn, New York September30, 2013 MARTINP. [* 5]
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