Opinion
No. 47739C–2011.
2012-06-26
The PEOPLE of the State of New York v. Elijah ELLINGTON, Wakimi Joseph, Defendants.
Barry Weiss, Esq., New City, Counsel for Defendant Elijah Ellington. Hannah Gladstein, Esq., Lara Belkin, Bronx, Counsel for Defendant Wakimi Joseph.
Barry Weiss, Esq., New City, Counsel for Defendant Elijah Ellington. Hannah Gladstein, Esq., Lara Belkin, Bronx, Counsel for Defendant Wakimi Joseph.
Joseph Shmulewitz, Assistant District Attorney, Office of the Bronx District Attorney, Bronx.
RICHARD LEE PRICE, J.
By motion filed November 16, 2011, the People moved for an order authorizing the taking of a saliva/buccal cell swab from the defendants pursuant to CPL 240.40(2)(b)(v). This court, having received no opposition from defendants, deemed the People's motion submitted and granted it on default. Defendants' default notwithstanding, this court carefully examined and considered the applicable law as well as the People's arguments set forth in their papers, prior court proceedings, and documents on file with the court. By decision dated January 20, 2012, this court found that the District Attorney's application was amply supported by probable cause to obtain a sample of defendants' saliva for the purpose of performing DNA testing.
Subsequently, after receiving this court's decision, counsels for defendants Elijah Ellington and Wakimi Joseph advised this court that they had not received the People's motion. As such, neither counsel was able to file their opposition. By notices of motion dated February 9, 2012, and February 17, 2012, defendants Joseph and Ellington, respectively, move to vacate this court's decision and order, and seek leave to file their opposition. This court finds no reason to deny counsels that opportunity, and thus grants them such relief in the interest of justice. Upon accepting their affirmations the taking of a saliva/buccal cell swab from the defendants, this court has careful considered the arguments set forth in the parties' respective papers, the applicable law, prior court proceedings and documents on file with the court, and finds that the District Attorney's application is amply supported by probable cause to obtain a sample for the purpose of performing DNA testing.
Service of Papers
This court notes that the CPL does not provide general rules governing service of motion papers. Consequently, courts have determined that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which address the issue should be applied in a criminal action (see e.g., People v. Davis, 169 Misc.2d 977 [Co Ct West Co 1996]; People v. Radtke, 153 Misc.2d 554 [Sup Ct Qns Co 1992]; People v. Cortez, 149 Misc.2d 886 [Cr Ct Kings Co 1990] ).
But compare People v. Silva (122 A.D.2d 750 [1986] ), in which the First Department opined the CPLR has “no application to criminal actions and proceedings.” In Silva, however, defendants' motion to set aside the verdict was made orally and the court ruled orally on the record. Their claim that the appeal was “procedurally flawed” pursuant to CPLR 2220 because defendants' counsel was not served with copies of the orders, was held invalid since the People are not required to serve a written order as a prerequisite to appeal where the order has been entered on the record (i.e., orally).
CPLR 2103(b)(2) provides that service of papers may be made upon the mailing of such papers to the opposing party's attorney. Service by mail shall be complete upon mailing (see CPLR 2103[b] ). It further provides that where counsel files a notice of appearance for two or more parties, only one copy need be served. Pursuant to CPLR 2103(f), “mailing” is defined as “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state” (see CPLR 2103[f] ).
Here, the People clearly discharged their service of papers obligation. The affidavit of service accompanying the People's motions indicate that a true and accurate copy of a motion to compel was properly served on Hannah Gladstein, Esq., and Barry Weiss, Esq., “by enclosing the same in a securely sealed post-paid wrapper ... and depositing same in the post office box regularly maintained by the United States Government located near 198 East 161st Street, Bronx, New York, addressed to her [him] at ... the address given by her [him] in the last papers served by him in the within proceedings.”
See affidavits of service on file with the court.
The Court of Appeals has unequivocally stated that a properly executed affidavit of service raises a presumption that a proper mailing occurred (Engel v. Lichterman, 62 N.Y.2d 943 [1984] ). In Engel, plaintiffs claimed they never received a copy of a conditional order of preclusion with notice of entry that defendant placed in a sealed post-paid wrapper in an official depository maintained by the United States Post Office. Strikingly similar to counsels' claim, Engel's counsel stated that although it appeared the order was mailed, his office never received it, from which he could “only surmise that this document was lost in the mail, since it was never delivered to our offices” ( Engel at 944). In rejecting plaintiffs' claim, the Court held that “[b]y statute, service is complete upon mailing (CPLR 2103, subd [b], par 2). Plaintiffs' papers raise no question of fact as to whether proper service was made” ( Engel at 944–945).
Thus, regardless of whether counsels in fact received the District Attorney's motions to compel a saliva sample, service was properly effected. Nevertheless, this court has no reason to disbelieve counsels, and appreciates the prompt and forthright notice of their not having received it. This court, therefore, grants their motion to vacate.
Factual Background
On August 24, 2011, the defendants were arrested and charged with two counts of criminal possession of a weapon in the second degree (PL 265.03[3] ). The District Attorney alleges that the arresting officers approached defendant Attoh's 2007 Infinity and observed defendant Ellington sitting in the rear passenger seat and defendant Joseph in the front passenger seat. The arresting officers then observed a loaded .380 caliber semi-automatic on the rear center arm rest next to where defendant Ellington was seated. Upon further investigation, the officers discovered a second loaded .380 caliber semi-automatic inside the trunk. Defendant Attoh then approached the vehicle and stated to the officers, “[t]his is my car.” Attoh further stated that earlier in the evening, he observed Ellington with the gun and watched Joseph place his belongings in the trunk. “When the officers said it was a black gun in the trunk, I already knew it was his because I have seen him with it before.”
See the District Attorney's unnumbered affirmation in support of People's motion to compel, ¶¶ 4, 9).
The Forensic Biology Unit at the New York City Office of the Chief Medical Examiner (“OCME”) performed DNA analysis on swabs taken from the loaded .380s that revealed the presence of a DNA mixture. That analysis indicated that the defendants may be potential contributors. Because DNA mixtures are not CODIS eligible, they cannot be uploaded to the New York State DNA database. The deduced DNA profile, however, is suitable for direct comparison to the defendants' DNA to either include or exclude them as its source. The District Attorney further states that OCME's Forensic Biology Unit has agreed to perform a DNA comparison and that a saliva sample from the defendants is necessary to do so.
CODIS is a computer software program that operates local, state, and national databases of DNA profiles.
Probable Cause and Relevant, Material Evidence
Courts have well established that the District Attorney has broad discretion regarding what evidence to present to a grand jury, when to present it, in what manner to do so and on which charges, if any, to seek an indictment (see CPL 190.50[2],[3], and [4]; cf. People v. Mitchell, 40 A.D.2d 117 [3d Dept 1972] ). In so doing, the People may apply for an order authorizing them to take a sample of defendant's DNA provided there is: “(1) probable cause to believe the suspect has committed a crime, [and] (2) a clear indication' that relevant, material evidence will be found” (Matter of Abe A., 56 N.Y.2d 288, 291 [1982] ).
Regarding probable cause, “a police officer may arrest a person for ... [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise” (CPL 140.10[1][b] ). In other words, “it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ). Probable cause requires only that the arresting officer be aware that some crime may have occurred, not that a specific crime actually occurred (People v. Wilmer, 90 A.D.2d 918 [3d Dept 1982]; People v. Schneider, 58 A.D.2d 817 [2d Dept 1977] ). Thus, the fact that innocent explanations exist for the defendants' conduct is irrelevant ( see People v. Daye, 194 A.D.2d 339 [1st Dept 1993] ). Additionally, it is irrelevant whether the arresting officer neglected to investigate or pursue other possible suspects (People v. Archibald, 192 A.D.2d 537 [2d Dept 1993] ).
A finding of probable cause, then, does not require the submission of a sworn affidavit to corroborate every allegation, or the presence of “concrete,” direct, or consistent evidence, nor does it require proof sufficient to warrant a conviction beyond a reasonable doubt. Rather, probable cause merely requires “information sufficient to support a reasonable belief” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985] ). Thus, at a minimum, the District Attorney must set forth factual allegations sufficient to establish the defendants' connection to the loaded .380 caliber guns.
Here, the arresting officers observed a loaded .380 caliber semi-automatic inside Attoh's vehicle on the rear center arm rest next to where defendant Ellington was seated. Additionally, Ellington had been observed with gun earlier that evening. Joseph, who was also seated inside the vehicle, had been observed placing his belongings in the trunk, where a second loaded .380 caliber semi-automatic was recovered. Although Joseph claims that the factual allegations set forth by the District Attorney fail to establish that the defendants constructively possessed the guns, this court finds that under the totality of the circumstances there is a sufficient basis to establish probable cause (Matter of Chaplin v. McGrath, 215 A.D.2d 842 [3d Dept 1995]; Matter of Vivanco v. West, 214 A.D.2d 618 [2d Dept 1995]; Matter of David M. v. Dwyer, 107 A.D.2d 884, 885 [3d Dept 1985]; People v. Forelli, 58 A.D.2d 76 [2d Dept 1977]; see People v. Shabazz, 301 A.D.2d 412 [1st Dept 2003], lv denied100 N.Y.2d 566 [2003],People v. Simpson, 244 A.D.2d 87 [1st Dept 1998], appeal withdrawn92 N.Y.2d 947 [1998],People v. Robinson, 237 A.D.2d 535 [2d Dept 1997], appeal denied90 N.Y.2d 909 [1997];cf. People v. Washington, 33 Misc.3d 640 [Crim Ct, Kings County 2011, Grosso J] [Defendant's actions, including, standing in a crowd, grabbing his waistband, walking briskly into a two-family dwelling and then exiting, were found to be insufficient to justify arresting the defendant for possessing two guns that were subsequently recovered from an open cooler inside the two-family dwelling when a second individual opened the door to the two-family dwelling to allow the police to enter] ).
Joseph's other claim, that the factual allegations upon which the District Attorney relies are, at least in part, based upon hearsay statements made by co-defendant Attoh also fails. “Probable cause” may indeed be based on reliable hearsay evidence (CPL 70.10[2]; see also Matter of David M. at 885). Here, the credible evidence demonstrates a clear connection between the defendants and the loaded .380s.
Ellington's claim, that this court is precluded from granting the People's application because the grand jury did not indict him for criminal possession of a weapon, is unpersuasive. He bases this argument on the dubious assumption that the reason for the grand jury's decision was a lack of probable cause. The grand jury elected to charge Ellington with unlawful possession of ammunition; ammunition that was discovered inside the very gun it declined to indict him for possessing—a peculiar result indeed. Nevertheless, regardless of whether the grand jury believed sufficient probable cause was lacking, it neither binds nor precludes this court from authorizing the taking of a saliva/buccal cell swab pursuant to CPL 240.40(2)(b)(v). A court is entitled to “great deference” in determining whether probable cause exists (People v. King, 232 A.D.2d 111, 116 [2d Dept 1997]; see People v. Hanlon, 36 N.Y.2d 549, 559 [1975] ). Indeed, the existence of a formal charge is not a prerequisite for a judicial directive compelling a suspect for the taking of a DNA sample ( Matter of David M. at 885).
Based on the factual allegations presented, this court finds the existence of sufficient probable cause. With respect to relevant, material evidence, the DNA analysis that revealed a mixture of DNA on the .380 caliber guns. The defendants' proximity to, and ostensible knowledge of, the guns, establishes a sufficient nexus between the defendants and the guns, and provides ample support that relevant and material evidence will be discovered on them upon an examination of a DNA sample from the defendants (see People v. Beecham, 25 Misc.3d 1214(A) [Sup Ct, Westchester County 2009, Molea J] ).
Safe and Reliable Method
Finally, the method used to secure a sample of defendants' saliva must be safe and reliable ( Matter of Abe A. at 299; People v. Trocchio, 107 Misc.2d 610 [Suffolk County Ct 1980, Copertino J] ). Additionally,
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. Only if this stringent standard is met ... may the intrusion be sustained ( Matter of Abe A. at 299).
This court finds that the manner in which the District Attorney seeks to take a sample of defendants' saliva, a swab inside the defendant's mouth, is accepted as both safe and reliable. And, significantly, the seriousness of possessing two, loaded semi-automatic weapons cannot be understated, particularly when weighed against the minimal intrusion upon defendant's body by means of a mouth swab.
Furthermore, defendant Joseph requested a protective order pursuant to CPL 240.50. Such a request is granted only to the extent that defendant's known DNA profile is to be compared only with evidence submitted to the New York City Office of the Chief Medical Examiner relative to the above-captioned matter. Defendant's known DNA profile may not be entered into the local New York City DNA databank.
Accordingly, this court concludes that probable cause exists to order the taking of a sample of defendants' saliva, that relevant and material evidence will be found, and that the manner in which the DNA sample will be taken is both safe and reliable. The District Attorney's motion to compel the taking of a saliva/buccal cell swab from the defendants pursuant to CPL 240.40(2)(b)(v) is therefore granted.
This constitutes the decision of this court. This court's order is incorporated by reference herein and shall be executed as indicated therein. The District Attorney is hereby directed to serve a copy of that order on the defendant.