Opinion
Docket No. CR-008630-22BX
01-18-2023
The People of the State of New York v. Israel Fortuna, Defendant.
For the People: ADA Rebecca Farrar, Office of Darcel D. Clark, Bronx County District Attorney For Defendant: Mia Cruz-Worthy, Esq., Bronx Defenders
For the People: ADA Rebecca Farrar, Office of Darcel D. Clark, Bronx County District Attorney
For Defendant: Mia Cruz-Worthy, Esq., Bronx Defenders
Audrey E. Stone, J.
The People have filed a combined motion for orders as follows: 1) under docket CR-016190-22BX, to compel a DNA sample from Defendant's saliva via a buccal swab pursuant to CPL § 245.40[1][e], for the purpose of DNA analysis and comparison with expected DNA evidence gleaned from clothing provided by the complainant.; and 2) under docket CR-008630-22BX, granting leave to re-argue and/or renew a similar motion which was denied by a prior judge. Defendant has opposed these motions and has cross-moved for a protective order, in the event that the People's motions are granted, limiting or preventing the upload or use of any DNA sample taken to any other database or for any other purpose. In determination of the instant motions, the Court has reviewed all papers filed, the contents of the court file and all proceedings heretofore had herein. As set forth below, the Court grants the People's motion to compel a DNA sample via buccal swab in docket CR-016190-22BX, grants the People's motion for reconsideration of the prior court's denial of such motion under docket CR-008630-22BX, and denies Defendant's request for a protective order.
Alleged Facts and Procedural History
On or about February 25, 2022, a then thirteen-year-old girl riding the Bx-12 bus felt an adult male touching and rubbing his testicles against her knee, grunting and moaning, after which she felt that the knee of her jeans was wet and sticky with a whitish substance. That same day, she filed a complaint with police. The complainant's jeans were sent to the Forensic Biology lab of the NYC OCME for testing, and a DNA profile was obtained. On May 12, 2022, DCJS notified the NYPD that the DNA profile obtained from the complainant's jeans belonged to Defendant herein, whose DNA had been uploaded to the DNA offender database (SDIS, or CODIS) because of his 2020 felony conviction. Defendant was arrested and charged with Forcible Touching and related offenses under docket CR-008630-22BX (the "February incident"). A CPL § 710.30 notice was filed indicating that Defendant had stated, "I RIDE THE BX12 BUS, DAMN HOW AM I SUPPOSED TO BEAT THAT IF MY DNA IS ON HER."
On June 28, 2022, the People filed a motion to compel a DNA sample from Defendant (the "June 28 motion"). The People argued that the facts met the statutory burden as required in CPL § 245.40 [1][e], and that even though Defendant's DNA profile already existed in CODIS, a new sample was required as the "best practice" to ensure the integrity of the evidence in the case, and a fair and just prosecution. Defendant opposed the motion and sought a protective order on July 13, 2022, and the People filed a reply affirmation including attached exhibits on July 25, 2022. On August 15, 2022, the assigned judge denied the motion, holding that because an existing "known exemplar" of Defendant's DNA was already in CODIS, not only was a buccal swab not the least intrusive means of obtaining a DNA sample, but that the People had failed to meet their burden under People v Abe A., 56 N.Y.2d 238 [1982] that a new sample was "necessary and not duplicative or cumulative." The court stated that it found unpersuasive the People's argument that it was "unfair" to use the existing CODIS sample to compare to the evidence on the complainant's jeans. (People v Israel Fortuna, docket CR-008630-22BX [Crim Ct Bronx County August 15, 2022]).
The People's motion papers included numerous exhibits including a "DNA Profile Hit" from DCJS (Exhibit 5) and a memorandum with internal exhibits of Florence Hutner, General Counsel to NYC OCME, regarding the city's LDIS database compliance with state and federal law (Exhibit 8).
On August 2, 2022, Kelly Pillcorema was seated aboard the Bx-12 bus when she felt a poking and rubbing on her leg by a man standing directly over her and very close, despite sufficient standing room. As he walked away toward the front of the bus, she observed his erect penis poking out of a hole in his pants. She immediately reported this to the bus driver and passing police officers, whereupon the male fled. Though she did not identify Defendant in a photo array, she confirmed the incident after viewing it on surveillance video obtained by the police. Her clothing was turned over to the Forensic Biology lab of the NYC OCME for DNA testing, but as of this writing, no lab report has been received. On August 9, 2022, the detective assigned to investigate the February incident identified the male in the August 2 surveillance video as Defendant. On September 13, 2022, Defendant was arrested and charged with Forcible Touching and related charges under docket CR-016190-22BX (the "August incident"). The CPL § 710.30 notice filed under this docket indicates that among other statements he made, Defendant identified himself in the August 2 surveillance video previously viewed by Kelly Pillcorema.
On September 14, 2022, the People filed a motion to reargue and renew the previous court's denial of their motion to compel a DNA sample (the "September 14 motion"). The motion, with supporting exhibits attached, stated that it was grounded on new facts contained therein. The alleged new facts stated by the People were that they do not have access to the actual DNA profiles stored in CODIS by which to compare the unknown sample extracted from the complainant's clothing; and that DCJS intends a match from CODIS samples to be merely an investigative lead, and not courtroom evidence, strongly recommending that a confirmatory DNA sample is obtained from the accused. Further, the prosecutor's affirmation included a thorough recitation of the DNA database legislation's processes, rules, protections, and procedures, which they affirmed were established to ensure the scientific integrity of the CODIS profiles. On October 4, 2022, the motion was denied by the judge on the grounds that it was improper, whether construed as a motion to reargue (because it contained new facts not contained in the original motion papers) or as a motion to renew (because the People failed to justify the omission of these alleged new facts from their original motion).
On November 1, 2022, with leave of court, the People filed a motion to compel a DNA sample for the August incident under docket CR-016190-22BX (the "November 1 motion"), and a companion motion for this court to reconsider the denial of the similar motion made under docket CR-008630-22BX.
People's Motion to Reargue under docket CR-008630-22BX
Although a motion to reargue must be made to the judge who signed the order, if he or she is for any reason unable to hear it, the motion may be heard by the trial court. (CPLR § 2221 [a]). In this case, the judge who denied the motion to compel and the September 14 motion to renew or reargue is no longer sitting in Bronx County Criminal Court and thus is unavailable to hear the November 1 motion. (C & N Camera & Electronics, Inc. v Service Mutual Insurance Company, 210 A.D.2d 132, 133 [1st Dep't 1994], cited in People v Davis, 27 Misc.3d 1226 (A) [Sup Ct Bronx County 2010]). As the matter is now pending, and will be tried, before this Court, this Court is the appropriate one to hear and determine this motion to reargue. (Billings v Berkshire Mut. Ins. Co., 133 A.D.2d 919, 919-20 [3d Dep't 1987]).
A motion to reargue may be granted if it is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." (CPLR § 2221 [d][2]; People v Davis, 27 Misc.3d 1226 (A) [Sup Ct Bronx County 2010] [internal citations omitted]). In this case, upon review of all papers and exhibits filed in both captioned cases, the contents of each court file, and in view of the effect the decision on this motion would have on the totality of the evidence to be presented in the case, this Court finds that the prior court overlooked relevant matters of fact and law in denying the People's motion to compel a DNA sample. Thus, for the reasons set forth below, this court finds it a prudent exercise of discretion to grant the People's motion to reargue the June 28 motion to compel a DNA sample. (see, People v Oceanside Institutional Indus., Inc., 15 Misc.3d 22, 25 [App Term 2d Dep't 2007]).
In denying the original motion to compel a DNA sample, the judge addressed not the CPL § 245.40 [1][e] statutory factors, and not the overarching purpose of obtaining the evidence, but only a single aspect for consideration prescribed in Abe A. - "the circumstances of the particular case." (People v Fortuna, 76 Misc.3d 842, 843 [Crim Ct Bronx County 2022], citing People v Abe A., 56 N.Y.2d, at 298). The judge sidestepped Abe A.' s requirement for courts to consider the value of the evidence and its necessity to the People's case and only examined the existence of an alternative means of obtaining the evidence. Solely on the basis that Defendant's DNA profile already existed in the statewide DNA databank, the court mistakenly deemed the People's application as one for "a second DNA sample" and, relying on several local trial court cases, ruled that the People had failed to prove the necessity for the alleged additional sample. (Fortuna, at 844).
"In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other". (Abe A., at 298-299]).
The facts of the cases relied upon by the prior judge to deny the People's motion to compel a DNA sample are inapposite to those at bar. In each case, the prosecution already possessed a DNA profile of the suspect extracted from an item of physical evidence which the suspect had been observed to abandon. Further, full DNA profiles had been extracted from crime scene evidence. In each case, an OCME lab report had been filed certifying that the crime scene DNA profile matched the DNA profile from the Defendant's known (abandoned) exemplar - respectively, a discarded cigarette butt, cup of water, bottle of water, and a voluntarily provided buccal swab. (People v Webber, Ind. 750-2020 [Sup Ct Bronx County 2021] [Carter, J.] [dropped iPod case, cup of water used while in custody]; People v Topping, Ind. 249-2020 [Sup Ct Bronx County 2020] [Marcus, J.][DNA from water bottle used while in custody matched DNA on murder weapon]; People v Ditullio, CR-0101510-20NY [Crim Ct, NY County, Feb. 3, 2020] [Rosenthal, J.] [DNA on sneakers from crime scene matched DNA from cigarette Defendant smoked while in custody]; People v Gonzalez, 2018NY029511 [Crim Ct NY County, Oct. 30, 2018] [Badamo, J.]; People v Carrion, Ind. 1162-2018 [Sup Ct Bronx County 2018] [Newbauer, J.] [DNA sample from buccal swab voluntarily provided by defendant in custody matched DNA on gun]). The existence in these cases of "known exemplars" containing DNA which matched crime scene DNA evidence renders them distinguishable from the case at bar. Though the court held that the People should use the DNA profile from the prior conviction, this edict is problematic in several ways.
In People v Flores, 65 Misc.3d 971 [Sup Ct Bronx County 2019], the known exemplar of Defendant's DNA unequivocally ruled him out as a contributor to the crime scene DNA, and the Court denied the motion to compel a new DNA sample on that basis.
First, the People here are not in possession of Defendant's actual DNA profile from the state database. The DNAHits report from DCJS is attached to the People's Jun 28 motion as Exhibit 8 and shows only a notification to the police that a stored profile with Defendant's name matches the unknown crime scene sample, not a full DNA profile for comparison to crime scene evidence. The People's inability to access the actual DNA profile from the SDIS/CODIS database was even acknowledged by Defendant in his own cross-motion for a protective order: "As relevant here, the OCME cannot download individual suspects' profiles from CODIS or the State Index, or upload suspect's DNA profiles to it." (Defendant's Cross-Motion filed July 13, 2022, p. 5, ¶ 7). Despite the presence of Exhibit 8's documentary proof, and statements from both parties that OCME cannot access Defendant's DNA profile for comparison to the evidence in this case, the prior court denied the People's motion on exactly that basis.
Second, the People's correct assertion in their original motion papers that the need for a DNA sample from Defendant will "ensure the community's and defendant's interests in a fair and just prosecution" (People's Reply in Motion to Compel a DNA Sample, July 25, 2022, p. 4) alerted the court to the constitutional barriers inherent in using a prior forensic report at trial. The People have the sole burden to prove beyond a reasonable doubt the element of Defendant's identity as the perpetrator of the charged offenses, and DNA evidence is indisputably the most powerful forensic evidence in determining either the guilt or the innocence of an accused. But it is well-settled that "DNA evidence is susceptible to flaws and errors, and confrontation" by a defendant of the witnesses "who bear testimony against him" is necessary to unearth and guard against those flaws. (People v Sean John, 27 N.Y.3d 294, 297 [2016], citing Melendez-Diaz v Massachusetts, 557 U.S. 305, 309 [2009] and Crawford v Washington, 541 U.S. 36, 51 [2004]; see also, People v Goldstein, 6 N.Y.3d 119 [2005]). The Supreme Court has held that forensic reports admitted for the truth of the matters therein and used for the purpose of proving an accused's guilt at trial are testimonial and therefore are not exempt from the Confrontation Clause under Crawford and its progeny. (Melendez-Diaz, at 303). Thus, assuming arguendo that the People had access to the conviction profile and attempted to introduce it in evidence, it would surely be challenged on Confrontation Clause grounds. Classifying such evidence as available to the People directly flies in the face of the constitutional barriers which would inevitably preclude its use.
Third, this Court finds that the People's second motion to renew and reargue was properly based on the new information of the August incident charged against Defendant, which had not existed at the time of the initial motion. The filing of charges in the August incident represents new facts which could not have been offered in the original motion even with due diligence and which this court finds should properly "change the prior determination." (CPLR § 2221 [e][2]).
Finally, whereas the prior court found the People's stated desire for a fair trial unavailing or persuasive, this Court holds that a generous policy of encouraging evidence gathering and disclosure "fully aligns with our recognized interests in finding the truth and rejecting efforts at gaming the criminal justice system that undermine the truth-finding process." (Strickler v Greene, 527 U.S. 263 [1999], cited in People v Giuca, 33 N.Y.3d 462, 487 [2019][Rivera, J., dissenting]). For the above stated reasons, the Court will examine the merits of the June 28 application below.
People's Motion to Compel a DNA Sample under docket CR-008630-22BX
The Court of Appeals guidelines, now codified in CPL § 245.40[1][e], permit a court to order a defendant to provide non-testimonial evidence upon the filing of an accusatory instrument "subject to constitutional limitations," where the People establish: probable cause to believe Defendant has committed the crime; a clear indication that relevant material evidence will be found; and that the method used to secure it is safe and reliable. (see, Matter of Abe A., 56 N.Y.2d 288, 291 [1982]).
The Court finds that the People's original motion papers and exhibits had set forth sufficient facts to meet the three-pronged statutory test for a compelled DNA sample in the February incident under CPL § 245.40 [1]. First, probable cause is demonstrated by the facts of the incident as described by the 13-year-old complainant, corroborated in part by the physical evidence extracted from the knee of the jeans she said she wore that day. Second, "given that 'the utility of DNA identification in the criminal justice system is already undisputed', defendant could not mount a credible claim that the DNA evidence was unlikely to provide material evidence. (People v Goldman, 35 N.Y.3d 582, 594 [2020], quoting Maryland v King, 569 U.S. 435, 442 [2013]). Here, a clear indication that relevant, material evidence will be found is provided by the particular facts of the alleged sexual incident here, which are corroborated by the complainant's description of the substance she observed on the knee of her jeans and the OCME lab report which indicates the presence of DNA from male Donor A on that location. (see, e.g., People v Flores, 61 Misc.3d 1219 (A), *10 [Crim Ct NY County 2018]). Conversely, absence of such evidence at trial, the consequence of the original court's ruling, would cause speculation by the jury about why Defendant's DNA was not compared to the DNA observed on the jeans. (People v Quintanilla Hernandez, 62 Misc.3d 983 [Crim Ct, NY County 2018]).
Finally, it is well-settled that a buccal swab from Defendant's cheek "is undeniably safe, consists of a minimal intrusion and involves no discomfort," and is "now a simple and common method for securing" a defendant's DNA sample. (Goldman, 35 N.Y.3d at 591, citing Maryland v King, 569 U.S. 435; People v Fisher, 71 Misc.3d 1051, 1056 [Bronx County Sup Ct 2021]). No less-intrusive alternative means for obtaining such evidence has been approved. (see, e.g., In re M.R., 63 Misc.3d 916 [Orange County Ct 2019]; People v White, 60 Misc.3d 304, 305 [Sup Ct Bronx County 2018]; People v Velez, 54 Misc.3d 1208 [A] [Sup Ct Bronx County 2017]; People v Ellington, 36 Misc.3d 1207 [A], at *5 [Sup Ct Bronx County 2012]).
On balance, there can be no argument that the charged crimes are serious ones, and that the value of identifying or excluding Defendant as "Male Donor A" is important for basic fairness and the court's duty to ensure that trials are an undistorted search for truth informed by all relevant, material, admissible evidence. These important concerns outweigh Defendant's right of privacy, especially in relation to the minimally intrusive nature of the buccal swab. Upon reconsideration of the People's June 28 motion, the Court holds that the People have sufficiently met their burden under CPL § 245.20[1][e] and Abe A to compel a saliva sample from Defendant via buccal swab, for DNA testing and comparison with the complainant's clothing. The Court grants the motion and orders Defendant to provide a DNA sample via buccal swab.
Motion to Compel a DNA Sample under docket CR-016190-22BX
As of November 1, 2022, when the People filed the instant motion, the complainant's clothing from the August incident had been submitted for DNA testing but no results had been reported. The Court finds that the People have not met their burden to compel an additional DNA sample for the August incident: there is not yet a clear indication that it would yield relevant, material evidence in that case, as there is not yet an unknown DNA profile on the submitted clothing from the August incident to which Defendant's DNA could be compared for use as evidence at trial. Thus, the application to compel a DNA sample under this docket is denied without prejudice to renew it later if Kelly Pillcorema's clothing is tested and yields DNA sufficient for profiling. However, a second buccal swab order is unnecessary, as once evidence is lawfully obtained, law enforcement is permitted to perform additional scientific testing and use the evidence for further investigative leads; Defendant has no Fourth Amendment privacy interest in the buccal swab sample once it is taken, and the Executive Law permits the OCME to compare the profile harvested from the swab ordered under docket CR-008630-22BX to other crime scene evidence in related cases, without further order of a court. (Executive Law § 995 [2]; Maryland v King, 569 U.S. at 462; People v Rogers, 77 Misc.3d 182, 193 [Sup Ct Erie County 2022]).
Defendant's cross-motion for a protective order
In view of the foregoing, the Court finds that Defendant's motion for a protective order is moot. Defendant's DNA is already stored in CODIS because of his felony conviction, so prohibiting this sample from being uploaded to the DNA databank will have no effect. Further, the OCME is expressly permitted to compare Defendant's known DNA profile to other crime scene evidence, which does not require any "uploading" or any action that creates a danger of public exposure. As above, once a DNA sample is lawfully taken, defendants retain no Fourth Amendment privacy interest therein. Defendant's motion for a protective is denied as moot.
Conclusion
The People's June 28, 2022 application under docket CR-008630-22BX for an order compelling Defendant to supply a DNA sample by buccal swab is hereby reconsidered and granted. Defendant's motion for a protective order is denied. An accompanying order will be issued.