Opinion
09-0756.
Decided January 21, 2010.
Honorable Janet DiFiore, District Attorney of Westchester County, White Plains, New York.
Attention: A.D.A. Heide Mason, Donald Singer, Esq., Attorney for Defendant, Cortlandt Manor, New York.
By notice of motion, the Westchester County District Attorney's Office moves this Court pursuant to CPL 240.40(2)(b)(v) to enter an order directing the defendant to submit to the taking of a buccal cell sample in connection with the above-referenced indictment. In resolving the instant application, this Court has considered the notice of motion, affirmation in support and memorandum of law of Assistant District Attorney Heide Mason, and the affirmation in opposition and memorandum of law of counsel for the defendant, Donald Lee Singer, Esq. Upon consideration of the foregoing, the instant application is resolved as follows:
Pursuant to Indictment Number 09-0756, the defendant presently stands charged with a single count of Assault in the first degree, a single count of Assault in the second degree, a single count of Criminal Possession of a Weapon in the third degree, and a single count of Menacing in the second degree. In support of the charged crimes it is alleged that on April 10, 2009, within the premises of 3144 East Main Street in Mohegan Lake, the defendant stabbed the victim twice in the lower abdomen with a knife, and it is further alleged that the victim underwent surgery at the Westchester County Medical Center to repair the resulting injury he sustained to a kidney and an artery. Following the defendant's apprehension by law enforcement authorities immediately after the alleged commission of these charged crimes, his clothing was seized by members of the New York State Police and sent to the New York State Forensic Investigation Center (NYSFIC) for analysis. Although the forensic examination of the defendant's clothing revealed the existence of blood stains bearing a DNA profile which was consistent with that of the victim, the People's affirmation in support further relates that a "mixed stain" was recovered "from the scene" without specifying either the character of the stain, or the specific location from which the stain was recovered.
Through the instant application, the People seek an order of this Court compelling the defendant to submit to the taking of a buccal cell sample in order to enable the People to conduct a forensic examination and DNA comparison between the genetic profile of this buccal cell sample and the genetic profile(s) of the mixed stain which was recovered from what the People characterize as "the scene". Specifically, the People submit that if the forensic examination of the "mixed stain" of unknown character and the defendant's known buccal cells revealed a positive match between the respective DNA profiles, this result would serve to corroborate the victim's testimony at trial with regard to the sequence of events as well as the identification of the defendant as the perpetrator of the charged crimes.
Pursuant to CPL 240.40(2)(b)(v), the People are specifically authorized to seek a court order compelling an indicted defendant to furnish the prosecution with non-testimonial evidence, including a buccal cell sample. Pursuant to the holding of the Court of Appeals in Matter of Abe A. ( 56 NY2d 288, 291), the applicable standard governing the issuance of an order to compel an individual to furnish non-testimonial evidence to the prosecution requires that the following three elements be established: (1) that there exists probable cause to believe that the individual from whom non-testimonial evidence is sought has committed the crime under investigation, (2) that there exists a clear indication that relevant and material evidence will be found as a result of the disclosure of the non-testimonial evidence sought, and (3) that the method used to obtain the non-testimonial evidence sought is safe and reliable ( see, People v. King, 232 AD2d 111, app. denied 91 NY2d 875; Matter of Anonymous v. Cacciabaudo, 153 AD2d 856, app. denied 74 NY2d 890; Matter of Santorelli v. District Attorney of Westchester County, 252 AD2d 504, 505; Matter of Chaplin v. McGrath, 215 AD2d 842; Matter of Vivanco v. West, 214 AD2d 618). In addition, the Court of Appeals further requires that the issuing court consider the seriousness of the crime under investigation, the significance of the evidence sought and the availability of less intrusive means of obtaining it, and balance these concerns against the individual's constitutional right to be free from bodily intrusion ( see, Matter of Abe A., supra, at 291; People v. King, supra, at 116).
Although the People's showing in support of the instant application is sufficient to establish the existence of the requisite probable cause to believe that the defendant committed the charged crimes ( see generally, People v. Ricketts, 255 AD2d 341; see also, People v. Roberto, 222 AD2d 310), this Court finds that the People's showing is insufficient to establish the existence of a clear indication that relevant and material evidence will be found as a result of the disclosure of the non-testimonial buccal cell sample sought from the defendant. In this regard, the failure of the People to identify the character of the "mixed stain" as one comprised of a particular type of DNA-bearing cellular material, i.e. blood, saliva, epithelial cells, semen, etc., as well as their failure to specify the location at the "scene" from which the sample was recovered undermines their effort to demonstrate how either the victim's trial testimony to the sequence of events of the charged crimes or his identification of the defendant would be corroborated by the forensic examination sought through the instant application. For example, if the "mixed stain" was comprised of saliva or semen which was recovered from the passenger seat of the vehicle in which the defendant was apprehended by the New York State Police, this Court can discern no relevant and material evidence which could be drawn from the forensic examination of the defendant's buccal cells. In sum, in the complete absence of any proffer by the People concerning the reasoning they rely upon to reach the conclusion that the forensic examination of the "mixed stain" at issue would corroborate the defendant's trial testimony regarding the sequence of events and identification of the defendant, the Court must conclude that the People have failed to meet their burden to establish that relevant and material evidence will be found as a result of the disclosure of the non-testimonial evidence sought ( People v. Allweis, 48 NY2d 40, 50; Matter of Cacciabaudo, supra, at 858; Matter of Eric Price, County Ct., Westchester County, Sept. 10, 1997, Lange, J., indictment No. 97-0771).
Accordingly, as the People have failed to establish the existence of a clear indication that relevant and material evidence will be found as a result of the compelled disclosure of the non-testimonial buccal cell sample sought from the defendant, the present application seeking an order of this Court directing such disclosure is denied.
The foregoing shall constitute the Decision and Order of the Court.