Opinion
RJI No. 19-C-063
03-29-2023
The PEOPLE of the State of New York, Respondent, v. Richard FORTE, Defendant/Appellant.
Scott D. McNamara, Oneida County District Attorney (Evan Esswein, Esq. of counsel) for the People Peter J. DiGiorgio, Jr., Esq., for Defendant
Scott D. McNamara, Oneida County District Attorney (Evan Esswein, Esq. of counsel) for the People
Peter J. DiGiorgio, Jr., Esq., for Defendant
Robert L. Bauer, J.
DECISION AND ORDER Defendant/Appellant appealed from the judgment of Utica City Court (Giruzzi, J.) rendered on December 23, 2019. By that judgment, defendant was convicted, following a bench trial, of Making a Punishable 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[1]). Defendant was sentenced to a term of sixty days incarceration.
Defendant initially raised six arguments on appeal: that the trial evidence was legally insufficient to establish that he made a false written statement, as well as the "damage" incurred to the victim's station pants and his intent for the offense of criminal mischief, that his convictions for criminal tampering and criminal mischief were against the weight of the credible evidence as to who owned the victim's pants and that the lower court erred when it denied suppression of defendant's statement to law enforcement and when it summarily denied defendant's suppression motion of the county court's DNA order by holding that it lacked jurisdiction over such motion.
In December 2021, this Court held the case, reserved decision and remitted the matter back to Utica City Court to issue a written decision with specific findings of fact and conclusions of law relative to defendant's suppression motion of his DNA sample.
Thereafter, in March 2022, the lower court issued a decision which denied defendant's suppression motion and upheld the county court's initial order that compelled defendant to provide a DNA sample.
After remand, defendant argued that the trial court improperly denied the motion to suppress without holding its own hearing on the People's initial application to obtain his buccal swab and therefore, the court deprived defendant of his Fourth Amendment right to be free from unreasonable search and seizure. He further argued that the crime of criminal mischief wasn't a "serious crime" within the context of Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982].
The People countered that the lower court correctly denied such motion.
Legal Insufficiency: False Statement, Element of Damage and Intent for Criminal Mischief
In People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987], the Court of Appeals held that an appellate court properly determines that a verdict is supported by sufficient evidence where it finds "any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial."
When an appellate court determines whether a verdict is legally sufficient, the proof must be viewed in the light most favorable to the People and they are entitled to all reasonable evidentiary inferences ( People v. Delamota , 18 N.Y.3d 107, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ; People v. Cintron , 95 N.Y.2d 329, 717 N.Y.S.2d 72, 740 N.E.2d 217 [2000] ). The reviewing court must also assume that the fact finder credited the People's witnesses ( People v. Person , 74 A.D.3d 1239, 903 N.Y.S.2d 525 [2nd Dept. 2010] ). In determining whether a verdict is legally sufficient, such court is required to marshal competent facts and determine whether, as a matter of law, a jury could logically conclude that the People sustained their burden of proof ( People v. Denson , 26 N.Y.3d 179, 21 N.Y.S.3d 179, 42 N.E.3d 676 [2015], Delamota , supra ).
Legal Insufficiency: False Statement
Defendant raised two arguments specific to his conviction for Making a False Written Statement ( Penal Law § 210.45 ). First, defendant asserted this offense, as a matter of law, cannot apply to a confession made by a defendant to law enforcement and cited People v. Bromley , 85 Misc.2d 988, 381 N.Y.S.2d 965 (Nassau Co. Ct. 1976) to support his claim. Second, defendant asserted his written statement lacked sufficient particularity to be proven false at trial. In defendant's statement to law enforcement, he claimed that "he did not have anything to do with [the victim's] pants being soiled or wet and have no knowledge of how they got the way investigator Trevisani described". (TT-526) (Defendant's brief p 29). He further argued to this point:
This vague statement cannot be the basis for proving that the Defendant lied. Had the Defendant stated in the sworn statement that he did not ever ejaculate on the pants during the relevant time frame, then a prima facie case for this crime could arguably be made provided the People had direct evidence of him ejaculating on the pants. However, during the trial the People attempted to prove by circumstantial evidence that he ejaculated on the pants because seminal fluid containing the Defendant's DNA was found on the pants. The mere fact that his DNA was found on the pants, which is circumstantial evidence that he ejaculated on the pants, does not necessarily prove that the Defendant made a false statement that he did not know how the pants were soiled in the way investigator Trevisani described. (Defendant's brief p 29)
...
Moreover, a person cannot be convicted of the offense of making a punishable false written statement solely based on a single witness without any independent corroborative proof. Absent adequate corroboration, any such conviction must be reversed. See People v. Wright , 122 A.D.2d 554, 505 N.Y.S.2d 8 (4th Dept. 1986). Here the proof that the Defendant ejaculated on the pants came from the circumstantial evidence of the presence of his DNA on the pants and there was no direct eyewitness testimony or corroborating evidence to establish beyond a reasonable doubt as to the falsity of the statement. (Defendant's brief pgs 30-31)
The People argued that the evidence, while not uncontroverted, was overwhelming in that defendant freely made his statement to the officer (see TT 515, 519, 534) and he signed this statement just below a form notice "false statements made herein are punishable as a Class A misdemeanor, pursuant to Section 210.45 of the Penal Law" (TT 523-524) (People's brief p 14).
Therefore, the People claim that his statement that he "never went into the private dorm" of the victim and had "no knowledge" of how her work pants came to be damaged was false as it was subsequently determined the damage was caused by his ejaculate (TT 525-526; see also TT 393, 405-407; TT 470-473) (People's brief pgs 14-15).
With respect to defendant's reliance on Bromley , supra, the People argue Bromley ’s reasoning has been severely undermined, if not abrogated, by the Court of Appeals in People v. Sullivan , 56 N.Y.2d 378, 452 N.Y.S.2d 373, 437 N.E.2d 1130 (1982), and should not be followed: " Sullivan eschews Bromley ’s strict construction of what constitutes legal authority for a PL § 210.45 form notice and replaces it with a more functional approach" (People's brief p 15).
They further argue that, "There is no particularity element which the prosecution is required prove to obtain a conviction for a false written statement (see CJI2d[NY]; Penal Law § 210.45 ). And where, as here, the People ‘are able to offer circumstantial evidence which alone is sufficient to establish’ the falsity of the statement ( People v. Rosner , 67 N.Y.2d 290, 296 [502 N.Y.S.2d 678, 493 N.E.2d 902] [1986] ), no corroboration is required (see People v. Esposito , 225 A.D.2d 928, 930 [3rd Dept. 1996] ; Penal Law § 215.50 )." (People's brief p 17)
Article 210 criminalizes not only false sworn statements, but also false statements that are "apparently sworn." A statement is "apparently sworn" when it is contained in an instrument which the declarant "intends or believes will be uttered or delivered with a jurat affixed
thereto," and the instrument in fact is uttered or delivered with a jurat so affixed. Such statements are referred to as "apparently sworn" because, for purposes of this crime, it does not matter whether in fact they were actually sworn to or not. The Legislature introduced the crime of making an apparently sworn statement based upon "a finding that perjury prosecutions based upon notarized instruments frequently failed because the notary would testify that, the jurat notwithstanding, he or she had not administered an oath or simply did not recall the matter."
A person who subscribes—that is, signs—an "apparently sworn" written instrument "knowing that it contains a statement which is in fact false and which he does not believe to be true" commits the crime of making an apparently sworn statement in
the second degree, a class A misdemeanor.
...
The requirement that the form notice be "legally authorized" is akin to the requirement for perjury in the second degree that an oath be "required by law." Thus, if a police officer places at the bottom of a written and signed confession that the declarant acknowledges that a false statement is punishable as a misdemeanor, a false statement in the confession is not punishable because the form in the statement was not authorized by law. One appellate court has held that for purposes of this crime, the form notice is legally authorized only when the authorization appears in a statute, and reversed a conviction because the form at issue was authorized only in a town regulation.
A person who makes a false statement in such an instrument, which is referred to as a "punishable false written statement," and who "does not believe [the statement] to be true," is guilty of the crime of making a punishable false written statement, a class A misdemeanor.
The testimony of a witness establishing the falsity of apparently sworn false statements and punishable false written statements must be corroborated to the same degree and under the same circumstances as a false sworn statement. Thus, unless non-testimonial or circumstantial evidence conclusively demonstrates that the statement is false, either a second witness to the falsity is necessary or other independent evidence must reasonably satisfy the jury that the witness is telling the truth.
(§ 24:15. Making apparently sworn and punishable false statements, 6A NY Prac., Criminal Law § 24:15 [4th ed.] ) [internal footnotes omitted]
In this case, per a review of the Appendix on appeal, defendant's challenged statement was taken and documented as a "Supporting Deposition", along with the four other supporting depositions included in the Appendix obtained during the investigation (A-008-A-014). These five supporting depositions all contain the same jurat which warned of the penalties of making a false statement.
CPL § 100.30 describes how a "supporting deposition" can be verified, and one manner is that, "(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument."
While the Court agrees that Bromley supports that the jurat is inapplicable to a written and signed confession, this Court finds that defendant cannot use Bromley as both a sword and shield in this case. Two days after the incident, Inv. Trevisani spoke with the victim and obtained the names of other witnesses who were also present during her shift at the fire house when she found her pants were "damp" and "smelled like semen" "primarily in the crotch area" (A-009). He obtained her written and signed statement on a supporting deposition with the applicable jurat.
Then, Inv. Trevisani spoke to defendant and two other firefighters who were present that day and obtained their statements within a "supporting deposition", all with the necessary jurat.
Some years ago a United States Supreme Court Justice stated that he could not define pornography but he knew it when he saw it. The reverse is true as to the topic of confessions and admissions. There are a plethora of definitions but little agreement as to when a statement meets the terms of any one definition.
Among the definition of a confession, one can find the following:
1. A confession is an express acknowledgement of guilt . ( People v. Greenwaldt , 72 A.D.2d 836 (3rd Dept. [1979]) ).
2. A confession is a voluntary express acknowledgement by the accused that he has engaged in conduct which constitutes the crime charged or an essential part of it . ( People v. Edwards , 147 A.D.2d 586 [537 N.Y.S.2d 879 (2nd Dept. 1989)], People v. Alexander , 153 A.D.2d 507 [544 N.Y.S.2d 595 (1st Dept. 1989)] ).
3. A confession is a statement regarding an act which constitutes a principal or res gestae fact ( People v. Duffy , 124 A.D.2d 258 (3rd Dept. [1986]). See People v. Rumble , 45 N.Y.2d 879 [410 N.Y.S.2d 806, 383 N.E.2d 108 (1978)], People v. Burke , 96 A.D.2d 971 [466 N.Y.S.2d 867 (1983)], aff'd, 62 N.Y.2d 860 [477 N.Y.S.2d 618, 466 N.E.2d 158 (1984)].
4. A confession is a direct acknowledgement of
guilt made by a defendant (Richardson on Evidence) § 540, People v. Bretagna , 298 N.Y. 323 [83 N.E.2d 537 (1949)].
5. A statement is not a confession unless it is a full and direct acknowledgement of all the elements of the crime . (Fisch, NY Evid. § 855 ; People v. Williams , 121 A.D.2d 145 [509 N.Y.S.2d 674 (4th Dept. 1986)] ).
6. A confession is a statement interpreted by the fact finder as a relevant admission of guilt . People v. Rumble , 45 N.Y.2d 879 [410 N.Y.S.2d 806, 383 N.E.2d 108]. ( People v. Kelly , 157 Misc.2d 554, 556, 598 N.Y.S.2d 423 (Sup. Ct. 1993) ) [emphasis added] [internal citations omitted]
In this case, by applying the various definitions above, defendant's statement does not express his acknowledgement of guilt, it is not a voluntary express acknowledgement that he engaged in conduct which constituted the crime charged or an essential part of it, it is not a statement regarding an act which constituted a principal or res gestae fact, it is not a direct acknowledgement of his guilt, it is not a full and direct acknowledgement of all the elements of the crime and it cannot be said that his statement can be interpreted by the fact finder as a relevant admission of guilt.
Remarkably, defendant denied any involvement in the victim's pants being soiled. Accordingly, it cannot be said that the written statement defendant provided to Inv. Trevisani was, indeed, a confession in conjunction with the discussion above.
Taken to its logical conclusion, it would make a mockery of legal jurisprudence and defy common sense to consider defendant's complete denials in this case as the equivalent of a confession, and allow him to raise Bromley in his defense and escape the consequences of his actions in knowingly providing a false written statement at the inception of the investigation.
In this particular case, defendant's complete denials regarding the soiling of the victim's pants are specious at best in that there are limited in ways in which such a substance that came from his person can be so deposited; especially since the stain was described by the victim as "damp" upon discovery (A-009).
As such, this Court rejects defendant's argument and finds that Bromley is inapplicable to the facts in this case.
With respect to defendant's second argument that his written statement lacked sufficient particularity to be proven false at trial, the Court finds such argument without merit. His statement was a specific denial of involvement and knowledge. According to the forensic scientist who analyzed the various DNA profiles, she concluded that the "DNA profile of defendant was the ‘John Doe’ profile on the sperm samples (TT 470)" and "the probability of this match occurring at random" she placed "at less than 1 in 320 billion (TT 470)" (People's brief p 10).
Under the facts in this case, as addressed above, the non-testimonial and circumstantial evidence, that being defendant's DNA profile being extracted and developed from the semen deposited on the victim's pants, as well as his presence at the firehouse the day of the incident, conclusively demonstrated that defendant's statement was false.
As such, this Court finds that there was a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the lower court based on the evidence presented at trial ( Bleakley , supra ).
Legal Insufficiency: Criminal Mischief
Defendant also argued that the People failed to prove he ‘damaged’ the victim's pants and that was it was his intent to damage same.
He argued, "the damage to the pants in this case is akin to the cases where juveniles using chalk to deface sidewalks or driveways, which is then able to be washed away. In In re H. , 32 A.D.2d 932, 932 (2nd Dept. 1969), the court held that that the conduct of the juvenile chalking words on the victim's driveway ‘was no evidence of actual damage within the meaning of Section 145.00 of the Penal Law.’ " (Defendant's brief pgs 31-32)
Moreover, defendant postulated:
In the case at bar, there was no actual evidence of physical damage. The alleged victim testified that there was no physical damage done to the pants, other than the pants had been soiled, and that she would have simply put them in the washing machine. (R-156, 181). No proof was adduced that the pants had a permanent stain, needed to be dry cleaned, or that they were unable to be cleaned in a regular laundry machine wash load. Any perceived repulsiveness of the substance placed on the pants is not a substitute for proof of damage. Would there be sufficient evidence to prove damage to the pants
absent a permanent stain had the Defendant smeared whip cream on the pants? The Defendant submits that that answer would be no. (Defendant's brief p 32)
Regarding the intent element, defendant argued:
In the case at bar there is nothing to suggest any surrounding circumstance that would show that it was the Defendant's conscious objective to damage the
pants, even assuming there was sufficient circumstantial proof that he did ejaculate on them. See People v. Taylor-Atkins , 42 Misc.3d 1214[A], 1214A, 2014 N.Y. Slip Op. 50040[U], *4, 2014 WL 223374 (Crim. Ct., New York County 2014) (dismissing the charge for criminal mischief in the fourth degree, holding that the bare allegation that defendant forcefully opened a glass door that shattered was insufficient as to his intent to damage).
Further, generally, with respect to the damaging clothing, the placement of seminal fluid, urine, and other like substances on the garment, without proof that the placement of the same would leave a permanent residue or stain is insufficient to establish intent to damage by the mere presence the act of putting the substance on the clothing. In the case at bar, there may have been an intent to embarrass, annoy or injure the person who owned the pants by proof of the act itself, but the mere fact that one places a substance on the pants which could be easily washed off, is insufficient proof of intent to damage. It is submitted that beer or soda which is thrown a person's clothing intentionally during a dispute, and can be easily cleaned in a regular wash, is insufficient proof of intent to damage property. The court should not consider the nature of the substance deposited in the case at bar as substitute for proof of intent. (Defendant's brief p 36)
The People argued that, in order for a defendant to be found guilty of criminal mischief, they must prove that he intentionally damaged the property of another person. "While this offense requires some amount of damage, the amount is ‘slight’ ( People v. Hills , 95 N.Y.2d 947, 949 [722 N.Y.S.2d 460, 745 N.E.2d 379] [2000] ), and no dollar amount need be proven ( People v. Misevis , 155 A.D.2d 729, 731 [3rd Dept. 1989] ). The evidence is legally sufficient as to the element of damage if there exists record support of ‘injury or harm to property which reduces its value or usefulness’ to the owner ( People v. Collins , 288 A.D.2d 756, 758 [3rd Dept. 2001] )" (People's brief p 19).
Regarding defendant's intent to damage the pants, defendant cites to, inter alia, People v. Roberts , 140 A.D.2d 961, 529 N.Y.S.2d 636 [4th Dept., 1988] where the court held the property damage was an incidental byproduct of, rather than the intended aim, of conduct directed towards the person of another.
The People argued that evidence of intent may "be inferred from the defendant's conduct and the surrounding circumstances" ( People v. Bracey , 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] ) and that as a result of the unique circumstances of this case, defendant's intent to damage the victim's station pants by ejaculating onto them can be inferred from the "act itself" ( People v. Alvino , 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ) (People's brief p 20).
Under the facts in this case, the Court finds that there was legally sufficient evidence of both the damage exacted upon the pants and defendant's intent thereof ( Collins , supra ; Bracey , supra ). Defendant's intentional act of depositing his semen on a female co-worker's pants was an act of such sexual misogyny, that no reasonable person would be expected to continue use of the garment. Defendant's argument that the stain could have been washed away is unpersuasive. The nature of semen being left on a coworker's pants is such a highly defiling and degrading act, it directly resulted in the uselessness of those very pants. Moreover, there is a distinct difference between defendant's analogies to the substances of chalk and whipped cream to that of semen, the latter which carries with it a pejorative and denigrating connotation; especially in light of the fact that such semen was found in the crotch area of the female victim's work pants.
Further, as held in Alvino , supra, the act itself, that being defendant's intent to leave his semen on her work pants, can be inferred based upon the facts in this case. "[I]ntent can also ‘be inferred from the defendant's conduct and the surrounding circumstances’ (La Fave, op cit, p 429, n 80)" ( Bracey , supra at 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ).
As such, this Court finds that there was a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the lower court based on the evidence presented at trial under this argument ( Bleakley , supra ). Against Weight of Evidence: Criminal Tampering and Criminal Mischief Convictions
A legally sufficient verdict can still be against the weight of the evidence at trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).
The standard for evaluating the weight of the evidence is the same regardless of whether it is a bench or jury trial (see People v. Lane , 7 N.Y.3d 888, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Evans , 104 A.D.3d 1286, 960 N.Y.S.2d 829 [4th Dept. 2013] ).
The Court of Appeals has held that appellate courts review "weight of the evidence" claims under a "two-step approach" ( People v. Sanchez , 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; Bleakley , supra ; People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; Delamota , supra ).
Under the first step, an appellate court must first determine whether, based on all the credible evidence, a different finding would have been reasonable (see Bleakley , supra at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; Danielson , supra ). In so doing, this Court must "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( Romero , supra at 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; see also Bleakley , supra ).
If this Court concludes a different verdict would not have been unreasonable after this first step, it must then conduct an element-based review of the evidence (see Delamota , supra at 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ).
Under that second step, this Court must "affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt" ( id. ). Thus, the appellate court serves, "in effect, as a second jury" ( Id. , supra at 117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; Romero , supra at 644 n. 2, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Defendant argued that the weight of the evidence established the City of Utica, not the victim, is the lawful owner of the station pants, and that there exists no evidence that the City of Utica was substantially inconvenienced by his conduct.
He argued, "It is submitted that a common sense reading of the statute presumes that the owner of the property must be substantially inconvenienced, and thus the owner of the pants would have to testify as to the inconvenience. That did not occur here, as no representative from the City of Utica testified as to any inconvenience. It is submitted that a person who does not own a proprietary interest in the subject property cannot initiate a complaint for a criminal charge for criminal tampering." (Defendant's brief p 33)
He also claimed "that the weight of this proof establishes that the pants were not purchased by [the victim] and thus she had no proprietary interest to establish proof of inconvenience. (Defendant's brief p 34)
The People argued that the victim testified that she purchased the station pants at issue "because her department issued pants did not fit comfortably (TT 43, 46)" and that, according to the Deputy Fire Chief, the victim had permission to purchase her own station pants (People's brief p 2).
Moreover, they argued:
While the element of ‘property of another’ is not defined by statute for the offense of criminal tampering, it an element common to larceny and criminal mischief (see People v. Person , 239 A.D.2d 612, 613 [2d Dept. 1997] ; see also Penal Law § 145.13 [defining "property of another" as "all property in which another person has an ownership interest"]; Penal Law § 155.00[5] [defining "owner" as "any person who has a right to possession thereof superior to that of the taker"]). Derived from the common law rule "ownership [was] not limited to the title owner of the property" ( People v. Wilson , 93 N.Y.2d 222, 225 [689 N.Y.S.2d 419, 711 N.E.2d 633] [1999] ), so long as the evidence establishes a person with "a right to possession of the property superior to that of" defendant ( id. ), this element is proven. (People's brief pgs 22-23)
" ‘In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference’ ( People v. Van Akin , 197 A.D.2d 845, 845 [602 N.Y.S.2d 450 (1993)] ). [The lower court] was entitled to reject defendant's version of the events ‘and, upon our review of the record, we cannot say that the court failed to give the evidence the weight that it should be accorded’ ( People v. Britt , 298 A.D.2d 984, 984 , lv. denied 99 N.Y.2d 556 [754 N.Y.S.2d 208, 784 N.E.2d 81 (2002)] )" ( People v. McCoy , 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 [4th Dept. 2012] ) [internal citations omitted].
Upon a review of the record and all of the credible evidence presented, this Court finds these two convictions to be in accord with the weight of the evidence regarding the owner of the pants and that an acquittal would have been unreasonable ( Sanchez , supra ; McCoy , supra ).
Lower Court Erred in Denying Suppression: Defendant's Statement and DNA Sample
Defendant's Statement
"[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses" ( People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), "and its findings should not be disturbed unless clearly erroneous" ( People v. Stokes , 212 A.D.2d 986, 987, 623 N.Y.S.2d 55 [4th Dept. 1995], app. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719 [1995] ) and if "the determination is supported by the record (see, Prochilo , supra ; People v. Daniels , 190 A.D.2d 858, 859 [593 N.Y.S.2d 878 (1993)] )" ( People v. Lugo , 218 A.D.2d 711, 712, 630 N.Y.S.2d 370 [2nd Dept. 1995] ).
Defendant claims the lower court should have suppressed his statement as he was in custody and invoked his right to counsel:
In the case at bar, the interview of the Defendant occurred in the police station, in an interview room with the door closed. (September 21, 2018, Transcript, pages 7-8, 11). During the interview, Investigator Trevisani stated "if you did it, and you tell me you did it, you can walk out this door." The Defendant requested to use the bathroom and tried to open the door but was told to "get back in there, what are you doing?" Additionally, upon signing a statement the Defendant tried to leave and was told to "sit down.". Investigator Trevisani did not read him his rights because he was not in custody. (R-519-520). Therefore, it is submitted that such circumstance taken in their entirety evidence sufficient proof that the defendant was in fact in custody and not free to leave. Since the statement thereafter obtained was procured in the absence of Miranda warnings, it is submitted that the trial court erred in not suppressing the statement.
With respect to invoking the right to counsel, the Defendant also mentioned the need for a lawyer several times during the interview at 22:35, 28:09, 31:45; and 52:10 hours. Specifically, the Defendant stated at 22:35 hours, "I got to hire a lawyer on this one." (Defendant's brief p 38)
...
[T]he defendant[’s] statement "should I call my lawyer now or what?" may not have been an unequivocal request for counsel. See, People v. Kennard , 134 A.D.3d 1519, 1521, 23 N.Y.S.3d 522 (4th Dept. 2015). However, his statement coupled with the Investigator Trevisani's question "what do you got to call a lawyer for?" clearly evinces that he understood the defendant's statement as a request for an attorney. See also, People v. Bethea , 159 A.D.3d 710, 711, 71 N.Y.S.3d 589 (2d Dept. 2018) (holding that the defendant's comment "I think I need a lawyer." Constituted an unequivocal invocation of the right to counsel and therefore any comments thereafter should have been suppressed). Therefore, it is submitted that the Defendant's statements should have been suppressed after 22.35 hours, but most certainly at 28:09 hours, as he made an unequivocal request for counsel. (Defendant's brief p 39)
The People argued that defendant was not in custody while he spoke with Inv. Trevisani, and therefore, there was no need for the investigator to have read defendant his Miranda warnings.
The People further argued that defendant's comments about potentially retaining a lawyer did not rise to the level of an unequivocal request invoking his right to counsel:
While it is true at four points during the interview defendant made statements such as "should I call my lawyer now or what" and "I got to get a lawyer for that" (9/21/18 Tr. 23) they were the functional equivalent of "maybe I need an attorney" ( People v. Davis , 193 A.D.2d 1142, 598 N.Y.S.2d 622 [4th Dept. 1993] ), or I "believe" I need a lawyer ( People v. Lattanzio , 156 A.D.2d 757, 549 N.Y.S.2d 179 [3rd Dept.1989] ), or I "should have counsel" ( People v. Hart , 191 A.D.2d 991, 594 N.Y.S.2d 942 [4th Dept.1993] ). As in those cases, the statements made by defendant to Trevisani regarding an attorney were equivocal, and therefore "insufficient to invoke his right to counsel" under the state constitution (
Hart , 191 A.D.2d at 992, 594 N.Y.S.2d 942). (People's brief p 26)
As held by the lower court, defendant agreed to meet Inv. Trevisani at the police department and that the investigator's "testimony [did] not diverge from the video evidence" (A-033). The lower court found defendant to be "relaxed though perplexed, forthcoming though sometimes guardedly so, and he betrayed no evidence of undue anxiety or stress. He demonstrated an easy familiarity, even an attempted camaraderie, with Trevisani as a long-time fellow city employee. Defendant did comment on occasion that he should call a lawyer but he also said he should call his union representative, other firefighters, and his wife. But despite having his cell phone with him and being left alone in the interview room at times, Defendant never called anyone. He was not forbidden nor preventing [sic] from making a call to whomever he wished" (A-033).
Ultimately, the lower court found that defendant was not in custody when he spoke with the investigator, that his statement was voluntarily made and he was not subject to "undue pressure", that the police conduct was proper and that defendant's comments about counsel were equivocal (A-034).
As great weight must be accorded to the determination of the suppression court which had the peculiar advantage of having seen and heard the witnesses ( Prochilo , supra ), based upon the totality of the circumstances in this case, this Court sees no reason to disturb its findings.
Defendant's DNA
It is well settled that a court order to obtain a blood sample of a suspect "may issue provided the People establish (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" ( Matter of Abe A. , 56 N.Y.2d 288, 291 [452 N.Y.S.2d 6, 437 N.E.2d 265] ; see also, Matter of Chaplin v. McGrath , 215 A.D.2d 842 [626 N.Y.S.2d 294 (1995)] ; Matter of Vivanco v. West , 214 A.D.2d 618 [625 N.Y.S.2d 255 (1995)] ). In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation, and the availability of less intrusive means of obtaining it, against concern for the suspect's constitutional right to be free from bodily intrusion ( Matter of Abe A. , supra, 56 N.Y.2d at 291 [452 N.Y.S.2d 6, 437 N.E.2d 265] ).
The determination that probable cause exists is entitled to great deference (see, People v. Hanlon , 36 N.Y.2d 549, 559 [369 N.Y.S.2d 677, 330 N.E.2d 631 (1975)] ). ( People v. King , 232 A.D.2d 111, 116, 663 N.Y.S.2d 610 [2nd Dept. 1997], app. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] ) [internal citations omitted]
On February 9, 2018, the People filed an Order to Show Cause (OTSC) in Oneida County Court for an order that directed defendant to provide a sample of his DNA. The OTSC was supported by an affidavit detailing the reasons for said request.
Hon. Michael L. Dwyer granted the OTSC and directed that defendant appear in court on February 20, 2018 to allow for counsel to be heard as to why such order should not be granted.
The court heard oral argument on the return date and a fact-finding hearing was then held on March 6, 2018. At the hearing, the People called six witnesses and four exhibits were received into evidence which included a text message, an excerpt from a logbook, lab reports and a compact disc. Defendant was present with counsel.
On March 9, 2018, Judge Dwyer issued an 18-page written decision which applied 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] and held that defendant provide a buccal swab of his saliva.
Initially, the lower court claimed that it was void of jurisdiction when defendant moved to suppress his sample prior to trial. After remittal, the lower court then ruled upon such motion. It ultimately held:
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 [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. ( People v. Forte , 74 Misc.3d 1049, 1059–61, 163 N.Y.S.3d 783 (2022) )
"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place ( People v. McRay , 51 N.Y.2d 594, 602 [435 N.Y.S.2d 679, 416 N.E.2d 1015 (1980)] ; see also, Brinegar v. United States , 338 U.S. 160, 175 [69 S.Ct. 1302, 93 L.Ed. 1879], reh. denied 338 U.S. 839 [70 S.Ct. 31, 94 L.Ed. 513 (1949)] ). The legal conclusion is to be made after considering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found (see generally, Illinois v. Gates , 462 U.S. 213, 231–235 [103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)] ; United States v. Davis , 458 F.2d 819, 821 (D.C.1972) ; 1 LaFave, Search and Seizure § 3.2 et seq. )" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ) [internal citations omitted]. Accordingly, based upon the facts presented during the hearing before Judge Dwyer, the lower court correctly found that there was probable cause to issue the order ( King , supra ). Moreover, there was no violation of defendant's constitutional rights as he was provided with an opportunity to be heard before Judge Dwyer on the issuance of the order (see People v. Goldman , 35 N.Y.3d 582, 135 N.Y.S.3d 48, 159 N.E.3d 772 [2020] ).
The Court finds defendant's remaining contentions to be without merit.
The judgment of conviction for each offense is in all respects affirmed.
The foregoing constitutes the opinion, decision and order of this Court.