Opinion
Docket Nos. CR-02367-18; CR-02368-18
03-09-2022
The PEOPLE of the State of New York, Plaintiff, v. Richard J. FORTE, Defendant.
Scott D. McNamara, Oneida County District Attorney (Rebecca G. Kelleher, Assistant District Attorney), for the People Christopher J. Pelli, Esq., Anthony J. Lafache, Esq., Utica, for the defendant
Scott D. McNamara, Oneida County District Attorney (Rebecca G. Kelleher, Assistant District Attorney), for the People
Christopher J. Pelli, Esq., Anthony J. Lafache, Esq., Utica, for the defendant
F. Christopher Giruzzi, J. Defendant, Richard J. Forte, was convicted after a bench trial in Utica City Court of Making a False Written Statement (PL § 210.45), Criminal Tampering in the Third Degree (PL § 145.14) and Criminal Mischief in the Fourth Degree (PL § 145.00). The defendant appealed to an intermediate appellate court (Oneida County Court, J. Bauer) arguing among other issues, that this court erred in finding that it lacked jurisdiction to hear the issue of suppression of certain DNA evidence. The defendant sought to suppress genetic information from a DNA sample obtained from him by an order issued pursuant to CPL § 240.40(2)(b)(v) by Oneida County Court Judge Michael L. Dwyer on March 9, 2018. The matter was held and remitted to this court by Judge Robert J. Bauer for the issuance of a written decision with specific findings of fact and conclusions of law relative to defendant's suppression motion of his DNA sample. The intermediate appellate court provided further guidance in this regard and set forth a review by Utica City Court may "simply comprise a review of the hearing transcript of the proceeding in County Court coupled with Judge Dwyer's subsequent written decision, or such other process and materials relative to this issue the court deems appropriate." Based upon the remittal order the court undertook a review of the moving papers with attached exhibits, affirmations and transcript of the proceeding, in making the findings herein. Pre-Charge Procedural History
On February 9, 2018 Oneida County First Assistant District Attorney Dawn Catera Lupi filed an Order to Show Cause (hereinafter referred to as OTSC) in Oneida County Court with a supporting affidavit requesting an order directing the respondent, Richard J. Forte, to supply a sample of his DNA. Hon. Michael L Dwyer granted the OTSC and directed the respondent show cause before the court on February 20, 2018 at 9:30 AM to allow for counsel to be heard as to why a final order should not be entered directing the taking of a DNA sample, as it would not involve an unreasonable intrusion of his person. The court heard oral argument as to the relief being requested on the return date of the OTSC and on February 23, 2018. A full fact-finding hearing was then conducted on March 6, 2018 at which time the People called six witnesses who testified, and four exhibits were offered and received into evidence. The exhibits received consisted of a text message, an excerpt from a logbook, lab reports with the order to show cause along with a compact disc. On March 9, 2018 the Oneida County Court issued an 18-page written decision applying the factors set forth in Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982], upon determining Mr. Forte must provide a buccal swab of his saliva. Specifically, Judge Dwyer found the People of the State of New York had: (1) satisfied their burden in establishing there was probable cause to believe the respondent committed the offense of Criminal Mischief in the Fourth Degree (2) established ‘a clear indication’ that relevant evidence would result from the genetic testing (3) showed the method to obtain the evidence would be safe, reliable, and be minimally intrusive. The court also considered the seriousness of the crime charged, importance of the evidence along with the respondent's constitutional right to be free from bodily intrusion. After consideration of all these factors Judge Dwyer directed the respondent to appear at the Oneida County Courthouse on March 15, 2018 at 9:30 AM to supply a buccal swab of his saliva to a police officer of the Utica Police Department or an investigator from the Oneida County District Attorney's Office.
At the time the Order to Show Cause was filed Richard Forte was not charged with any crime and as such was and will be referred to as the ‘respondent’ during the period of time when an order pursuant to CPL § 240.40 was being sought.
Only the exhibits which were attached to the order to show cause and omnibus motion were considered in this decision as being relevant and germane to the issues brought forth by the defendant in the moving papers.
Post-Charge Procedural History
The People filed charges against Mr. Forte (hereinafter referred to as ‘defendant’) on March 29, 2018. Each of the accusatory instruments were signed by Investigator Joseph Trevisani and were based upon his investigation into the matter along with the lab report from the New York State Police Forensic Investigation Center. The laboratory report described the physical and forensic evidence linking the defendant to the crimes charged and was made part of a supplemental report dated March 27, 2018, which included the buccal swabs taken from the defendant.
On July 12, 2018 the defendant filed an omnibus motion including, inter alia, a motion to suppress the DNA evidence ordered by Judge Dwyer by making three separate arguments. First, the defendant argued the OTSC was an improper "vehicle" for the relief being requested and even assuming arguendo , that it was proper, the show cause order should not have been granted as the allegations in the supporting documents did not demonstrate the existence of probable cause to believe the defendant committed any crime. Secondly, the defendant asserts the proper venue for an application seeking genetic testing is one wherein an accusatory charging a felony or misdemeanor is pending, and the prosecution engaged in "forum shopping" by making their request to a county court judge. Lastly, the defendant requested suppression of the genetic evidence as the crime of criminal mischief is not a "serious crime" which can serve as the basis for an order directing the taking of a buccal swab sample.
The People argued the bodily samples from the defendant were obtained in accordance with the applicable provisions of the Criminal Procedure Law and at the hearing the requisite criteria was established for the court to properly issue an order directing DNA testing.
On August 15, 2018, in a written decision on the omnibus motion this court held the following:
Suppression of Physical Evidence
Defendant has moved for suppression of evidence consisting of a DNA sample obtained from him by an order issued pursuant to CPL § 240.40 by the Hon. Michael L Dwyer on March 9, 2018. The suppression motion is, in essence and reality, an appeal from the order and, as such, cannot be heard in this court.
The order was issued following a hearing conducted on March 8, 2018 in Oneida County Court. Oneida County Court is a criminal court. ("The ‘criminal courts’ of this state are comprised of the superior courts and the local criminal courts. ‘Superior court’ means: (a) The supreme court; or (b) A county court." CPL § 10.10 (1-2) ) The hearing was a criminal proceeding, being a "proceeding which ... occurs in a criminal court and is related to a prospective , pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation. " CPL § 1.20 (18) (emphasis added) An appeal by a defendant from an order of a criminal court, either by right or permission is taken to an "intermediate appellate court" See CPL § 450.10, 450.15 " ‘termediate appellate court’ means any court possessing appellate jurisdiction, other than the court of appeals." CPL § 1.20 (22) "An appeal from a judgment, sentence or order of a county court must be taken to the appellate division of the department in which such judgment, sentence or order was entered." CPL § 450.60 (2) This court is without jurisdiction to review the County Court order.
Findings of Fact and Conclusions of Law
As the procedural history of the pending matter is complex in nature, the court is compelled to review the various aspects of the pre-accusatory request for the underlying genetic sample, the court's authority to conduct such a review along with making findings as it relates to the defendant's suppression requests.
a. Authority to issue a pre-accusatory genetic testing order
Under most circumstances the discovery process commences after an accusatory instrument is filed however, situations do arise where a court may grant an application for a search warrant, wiretap or authorization to obtain DNA samples prior to charges being brought. The process begins with the filing of an OTSC requesting an individual to provide corporeal evidence. Such a request is a criminal proceeding in and of itself, despite whether an accusatory has been filed. Criminal Procedure Law § 1.20[18][b] states a criminal proceeding is one which "occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation". Since there was a criminal investigation pending along with a prospective criminal action when the application for DNA was made, the method to obtain the evidence was governed by CPL § 240.40 [2][b][v] . It must be noted that not all courts are permitted by statute to entertain requests of this nature as CPL § 240.40[2] states:
CPL article 240, which set forth the obligations of the parties for discovery upon the filing of an accusatory instrument, has since been repealed (L 2019, ch 59, part LLL, § 1) and replaced by CPL article 245. CPL 240.40allowed for a court order to seize corporeal evidence from a defendant, upon the People's motion with notice to the defendant. The procedure is now authorized in the current version of the non-testimonial discovery statute (CPL 245.40 [containing the language of Abe A. ’s three-prong test]) (as cited in People v. Goldman, 35 N.Y.3d 582, 135 N.Y.S.3d 48, 159 N.E.3d 772 [2020] )
"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 : (a) must order discovery as to any property not disclosed upon a demand pursuant to section 240.30, if it finds that the
defendant's refusal to disclose such material is not justified; and (b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to: (i) Appear in a line-up; (ii) Speak for identification by witness or potential witness; (iii) Be fingerprinted; (iv) Pose for photographs not involving reenactment of an event; (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; (vi) provide specimens of his handwriting; (vii) Submit to a reasonable physical or medical inspection of his body.
This subdivision shall not be construed to limit, expand, or otherwise effect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United
States."
The statute provides direct authority for certain courts to grant a discovery order for "other materials" from an individual's body, such as a saliva sample. ( People v. Hogue, 133 A.D.3d 1209, 19 N.Y.S.3d 640 [4th Dept. 2015] ) Although there is no statute addressing whether a suspect to a crime can be compelled to supply DNA prior to being charged, it was held in Matter of Abe A. 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] that such an order is permissible as long as certain criteria is met, as will be discussed herein. The Court of Appeal further permitted the issuance of such orders on the premise that applications for genetic evidence were equivalent to granting a request for a search warrant to seize property. ( CPL §§ 690.05[2] ; 690.10[4]) Criminal Procedure Law § 690 codifies the constitutional requirements for the issuance of a search warrant, which includes corporeal evidence, as they must be premised on reasonable cause that the individual being subjected to the testing committed the act alleged. The evidence sought must also tend to demonstrate that the person identified engaged in the unlawful conduct.
Practice Commentaries by Peter Preiser, states, "Under present law, absent express statutory authorization, there is no procedure for obtaining corporeal evidence from a suspect without a search warrant based upon a showing of probable cause to believe the intrusion will supply substantial probative evidence (People v. Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982]. This statutory provision provides authority in a limited circumstance i.e., the pending of selected accusatory instruments, not including criminal complains (see e.g., People v. Latibeaudierre, 174 Misc. 2d 60, 662 N.Y.S.2d 926 [S.Ct. 1997].
While the statute specifically states that a court where a matter is pending, is the appropriate forum to seek such relief, the statute is silent as to the proper venue when a pre-accusatory order for such evidence is sought. The court must turn to the limited case law in this area, holding that a county court has the jurisdiction to hear and grant orders upon submission of a pre-accusatory request for genetic testing, while a local court does not. ( James N. v. D'Amico, 139 A.D.2d 302, 530 N.Y.S.2d 916 [4th Dept. 1988] ; People v. Bagley, 173 Misc. 2d 441, 661 N.Y.S.2d 510 [City Ct., Mount Vernon 1997] The court adopts these findings, and further relies upon a litany of cases that have followed whereby applications seeking such relief are exclusively filed with superior courts. In essence, superior courts are conferred with original jurisdiction to hear and determine applications seeking non-testimonial evidence, before an individual is charged with any crime. The court notes, while inevitably the majority of pre-accusatory requests for non-testimonial evidence result in felony charges being prosecuted in a superior court, this case presents an instance where the basis for the genetic order was a misdemeanor level crime.
As such, the People properly filed their OTSC in Oneida County Court, at which time Judge Dwyer was assigned to hear and determine the request for Mr. Forte to supply a buccal swab of his saliva. Despite the defendant's assertions, the People did not strategically roam from one judge to another seeking a more favorable probable cause ruling, rather they worked within the confines dictated by statute and relevant case law in navigating the judicial system. Any argument or insinuation by the defendant, that the prosecution was "forum shopping" is without merit for this reason.
The defendant also maintains in his omnibus motion that "the fourth and fifth amendment rights of the defendant were violated by the signing of the OTSC which happened before any hearing....". The court finds this argument to be nonsensical, as the order to show cause is merely a mechanism to provide notice of the application and to permit an opportunity for the opposing party to appear and be heard on the relief requested. The defendant was provided such opportunity to appear and be heard at oral argument on two occasions, and to participate in a full evidentiary hearing prior to a determination being made on the request. ( People v. Smith, 95 A.D.3d 21, 940 N.Y.S.2d 373 [4th Dept. 2012] ) The defendant fully participated in these proceedings. The court further finds the affirmation of Assistant District Attorney Lupi, dated February 9, 2018, very thorough to support the granting of the order to show cause. The document sets forth the basis for the genetic testing request by outlining the investigation in detail and provides a reasonable basis in identifying the respondent, as the perpetrator of the crime of criminal mischief.
b. Authority to review genetic testing order issued by a superior court
On appeal the defendant argued, the People conceded, and the intermediate appellate court found that this court's ruling that it lacked jurisdiction to review the probable cause determination was in error. After further consideration, this court finds that such authority was not lacking, to review the superior court's directive along with the basis for the probable cause determination. Prior to ruling on the merits of the arguments contained in the omnibus motion dated July 12, 2018, the court will address the inapplicability of the long-held principles which would ordinarily preclude the entertainment of such requests.
The general rule is that a lower court may only review a superior court judge's probable cause determination when the superior court acts in the capacity of a local criminal court. ( People v. P.J. Video, Inc., 65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120 [1985] ; reversed on other grounds, New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 [1986] ) In People v. P.J. Video , Inc., supra, the Court of Appeals found that a non-attorney village justice properly reviewed a supreme court's ex parte probable cause determination as the superior court had exercised its jurisdiction as a local criminal court. Clearly, this court is a lower court, Oneida County Court is a superior court and was not acting as a local criminal court in these circumstances. Therefore, it would seem logical that a review of Judge Dwyer's order would not be subject to further scrutiny in Utica City Court, but the analysis shall not yield there. This is a unique matter wherein, the People are limited and compelled to bring their application to county court, as it is only a superior court which can issue pre-accusatory orders for genetic testing. We cannot preclude the defendant from asserting the right to a further review of a probable cause determination by the mere fact the People are bound to file the request in a higher court.
Next, the applicability of the "Law of the Case Doctrine" must also be considered, as such theory only allows a court, even of coordinate jurisdiction, to review a prior determination when it is based upon an ex parte application. ( People v. Guerra, 65 N.Y.2d 60, 489 N.Y.S.2d 718, 478 N.E.2d 1319 [1985] ) In other words, when a litigant has participated in a full evidentiary hearing, courts of equal jurisdiction are precluded from reviewing the results which are the product thereof. ( People v. Cocilova, 132 Misc. 2d 106, 503 N.Y.S.2d 258 [Rochester City Ct., 1986] citing People v. Guerra , supra, infra, see also Wright v.County of Monroe, 45 A.D.2d 932, 357 N.Y.S.2d 330 [4th Dept. 1974] [Review of pistol permit determination after hearing in County Court found to be an improvident abuse of discretion by subsequent county court judge]; see also, People v. Martin, 97 Misc. 2d 441, 411 N.Y.S.2d 822 [Sup. Ct., Kings County 1978] rev. on other grounds, 71 A.D.2d 928, 419 N.Y.S.2d 724 (1979) ) As here, no ex parte exception exists, the defendant and the prosecutor conducted a full evidentiary hearing over the course of a full day, six prosecution witnesses testified extensively, the defendant had a full opportunity to confront and cross-examine those witnesses and examine/challenge all exhibits. Upon conclusion of the hearing an eighteen page decision was issued which found the People established probable cause warranting the relief being requested.
When Judge Dwyer issued his decision, it became the law of the case and under most circumstances Utica City Court would not review this determination. However, it is the uniqueness of the pre-accusatory application process, which allows further review into the procedural and legal issues raised by the defendant, in the omnibus motion seeking suppression. The court relies upon holdings such as People v. King , 232 A.D.2d 111, 663 N.Y.S.2d 610 [2nd Dept., 1997] finding that the taking of blood samples from an individual for the purpose of forensic testing, prior to arrest, were subject to further scrutiny upon filing of a charging instrument via a suppression motion.
While the defendant in People v. King, supra, argued for suppression of DNA evidence, as the pre-accusatory order granting genetic testing was based upon a separate crime, the same principles apply in this matter which allows for further review of the defendant's requests. That is, upon the issuance of a genetic testing order and the filing of an accusatory instrument, intervening circumstances or additional evidence which may have impacted the court's determination may have been unearthed. This information would be subject to further judicial scrutiny, upon the filing of an accusatory instrument in addition to the potential impacts upon evidence received at the probable cause hearing.
The court further acknowledges the holding in Tucker v. Buscaglia, 262 A.D.2d 979, 693 N.Y.S.2d 373 [4th Dept. 1999], and its lineage which found, "corporeal evidence order, like a search warrant, may be challenged by suppression motion in the event that petitioner is charged and may be reviewed on direct appeal in the event he is convicted." While it is the pre-accusatory nature of the underlying application which allows for a superior court to hear such matters, it is the level of ensuing charges which dictate the court which may review the directives contained therein. A defendant may exercise, and the court must entertain, a challenge to an order directing DNA testing based upon a lack of probable cause by way of a pre-trial suppression motion. ( People v. Goldman, 35 N.Y.3d 582, 135 N.Y.S.3d 48, 159 N.E.3d 772 [2020] ; People v. Afrika , 189 Misc. 2d 821, 738 N.Y.S.2d 159 [4th Dept. 2001] ) The court notes, for a defendant to advance an argument on appeal that no probable cause existed for the issuance of an order compelling a buccal swab sample, they must move to suppress such DNA evidence at the trial court level. ( People v. Easley, 124 A.D.3d 1284, 1 N.Y.S.3d 640 [4th Dept. 2015] ; People v. Brown, 92 A.D.3d 1216, 937 N.Y.S.2d 803 [4th Dept. 2012] ) The court agrees, a defendant should not be deprived of such right and makes the determinations herein to allow for a full appellate review of the defendant's contentions.
c. Merits of the defendant's contentions
Now that the court has dispelled any outstanding questions relative to this court's ability to entertain the merits of the defendant's omnibus motion seeking suppression it will undertake a review of the record, transcript, relevant exhibits, and decision by Judge Dwyer. Upon such review the court finds the People satisfactorily proffered proof and evidence to fulfill the requisite factors as set forth in Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] namely: (1) the existence of probable cause to believe the respondent committed a crime (2) the evidence sought would be relevant to the investigation into the matter (3) the method to obtain the genetic evidence was safe, reliable and minimally intrusive. In addition, the process in Oneida County Court provided a thorough inquiry as to the seriousness of the criminal act, importance of the evidence sought, and unavailability of less intrusive means to obtain such proof. The defendant's main contention under the test set forth in Matter of Abe A., supra, is the crime of criminal mischief is not "serious."
As to whether there was probable cause to determine if a crime had been committed and it was the defendant who was the perpetrator of the crime, the court finds in the affirmative. The People established each element of Criminal Mischief in the Fourth Degree in violation of Penal Law 145.00(1), as there was probable cause that the respondent had intentionally damaged the property of another without having such right or reasonable ground to believe he had such right. The People established through the testimony of the victim, that she owned the article of clothing which a bodily fluid, namely semen, was deposited upon. The victim gave specific testimony as to the time frame when she left her cargo pants on her bed, individuals present at the approximate time the crime occurred, and damage which ensued as a result of the substance she found upon her clothing. The initial application combined with testimony at the hearing, made it abundantly clear that whoever engaged in such activity did not have the permission of the victim to do so. The statute does not specifically define the term "damages" however, it has been found that "while the extent damage necessary to sustain a conviction of fourth degree criminal mischief is slight, some amount of damages is required" ( People v. Hills , 95 N.Y.2d 947, 722 N.Y.S.2d 460, 745 N.E.2d 379 [2000] ) This court agrees with the findings made by Judge Dwyer that the cargo pants belonging to the victim in fact sustained "damages" as defined by the criminal charge of Criminal Mischief in the Fourth Degree. Unequivocally, the intentional depositing of bodily fluid, as in this case, on the trousers of another individual constitutes damage. The nature of this act and substance left behind constitutes greater than slight damage and renders the garment unwearable and of no use to the victim.
The People also demonstrated probable cause to believe that the respondent engaged in such unlawful activity. The standard is whether it is more probable than not that a crime has been committed and it was the suspect who perpetrated the same. ( People v. Smith, 167 A.D.3d 1505, 90 N.Y.S.3d 431 [4th Dept. 2018] ; People v. Carrasquillo, 54 N.Y.2d 248, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ) Given the findings herein the first prong of such test has been satisfied, as upon review of the testimony along with the exhibits submitted at the hearing, it is more probable than not that the respondent committed the crime of Criminal Mischief in the Fourth Degree. The court notes, the testimony of Lieutenant Fasolo and Firefighter De Sarro, along with the victim, demonstrates the respondent was the only other individual seen at the firehouse during the time when the crime occurred. While Lieutenant Fasolo and Firefighter De Sarro were present on the evening before the victim noticed the intrusion upon her cargo pants, these two individuals provided DNA samples which excluded them as potential perpetrators of the crime. Thus, probable cause existed to find that it was the respondent who committed the crime alleged.
The court further finds the evidence sought in the form of DNA evidence would ‘highly likely’ result in the discovery of material evidence to advance the law enforcement investigation. Lab reports state the substance found on the victim's clothing is subject to a forensic DNA analysis and a comparative analysis of the victim, Lieutenant Fasolo and Firefighter De Sarro showed no match. The respondent was the only other individual observed at the firehouse during the time frame when the incident occurred. As such, a clear indication existed that law enforcement would find relevant DNA evidence upon conducting the genetic testing. Lastly, the respondent conceded, and the People established the safety, reliability and minimal intrusiveness of a buccal swab of the respondent's saliva.
The defendant further argues, in sum and substance, that the charge of criminal mischief is not a "serious crime" within the context of the landmark case of Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982]. This Court finds the defendant's minimization of the allegations disquieting as depositing semen on the garment of a co-worker certainly exceeds social norms, decency, and also represents an invasion of privacy. In addition, the issuing court noted the criminal conduct resulted in property damage within the meaning of Penal Law § 145.00(1) and such offense carried a punishment of up to one year of incarceration or three years of probation. Certainly, the possible loss of liberty or prolonged supervision, as a result of a criminal charge, is one that is serious in nature.
Given the findings herein, there is no basis for a hearing on the suppression issues raised in the defendant's moving papers, as the arguments set forth are procedural and legal in nature. The defendant did not proffer any new or substantive evidence for consideration which would require additional testimony or receipt of further evidence. The court has also considered the order for genetic testing was not issued on an ex parte basis. The county court conducted a full evidentiary hearing, whereby six prosecution witnesses gave testimony, and the defendant had a full opportunity to confront and cross-examine each of those witnesses. As previously noted above, following the hearing, Judge Dwyer issued a fully reasoned eighteen page decision finding that the People had established probable cause.
Based on the findings of fact and conclusions of law as set forth herein, the defendant's request to suppress the order for genetic testing and all other relief is hereby DENIED.