Opinion
605/10.
Decided September 16, 2010.
Lindsay Coleman, Esq., Kings County District Attorney's Office, Brooklyn, New York, for the People.
Michael A Millet, Esq., Attorney at Law, Brooklyn, New York, for Defendant Curtis Goodman.
The People have submitted the grand jury minutes for the court's inspection. The evidence presented to the grand jury was legally sufficient to sustain the finding of a true bill. See, People v. Jensen, 86 NY2d 248 (1995); People v. Pelchat, 62 NY2d 97 (1984). The assistant district attorney correctly instructed the grand jury with respect to the applicable law. People v. Calbud, Inc., 49 NY2d 389 (1980).
An issue of note is the wholly circumstantial evidence of defendant's identity. In this case, a movie theater was burglarized and property was taken from the box office. The only evidence linking defendant to the burglary was the DNA recovered from a screwdriver found near the cash box, which had apparently been used as a tool to pry the box open.
The Appellate Division, Second Department, recently reversed a conviction in a case where the only evidence linking defendant to a burglary was DNA recovered from a cigarette butt found outside the burglarized premises, holding that the proof was insufficient to support a finding of guilt beyond a reasonable doubt. People v. Person , 74 AD3d 1239 (2d Dep't, 2010). There is ample precedent, however, particularly in cases involving fingerprints, for the proposition that a conviction can be upheld in a wholly circumstantial case in which defendant is linked to the crime scene through scientific evidence. As with fingerprint evidence, DNA evidence is accepted and found reliable by the scientific community as "strong evidence of a person's presence at and participation in a criminal act." See People v. Wesley, 83 NY2d 417 (1994).
In a fingerprint case, whether circumstantial proof is sufficient turns on the absence of an innocent explanation for the presence of the fingerprint at the scene of the crime. See People v. Gates, 24 NY2d 666 (1969). In burglary prosecutions where the defendant's fingerprints were found on the glass from the doors or windows used to gain entry, fingerprint evidence, standing alone, has been held sufficient to support a finding of guilt beyond a reasonable doubt. See People v. Rawlins , 37 AD3d 183 (1st Dep't, 2007) aff'd 10 NY3d 136 (2008); People v. Texeira , 32 AD3d 756 (1st Dep't, 2006); People v. Klein, 156 AD2d 385 (2d Dep't, 1989); People v. Vasquez, 131 AD2d 523 (2d Dep't, 1987); People v. Riddick, 130 AD2d 780 (2d Dep't, 1987); People v. Hall, 89 AD2d 898 (2d Dep't, 1982). But cf. People v. Jacob, 55 AD2d 961 (2d Dep't, 1977) (no testimony as to whether fingerprints were on inside or outside of window glass). To support a conviction, it must appear that the fingerprints could not have been placed at a time other than during the commission of the burglary. In People v. Rawlins ( 37 AD3d 183), for example, the court decided that the evidence supported the conclusion that defendant placed his fingerprint on the window during the burglary and "not on some hypothetical alternate occasion." In cases involving large moveable objects the same proof is required: the presence of the fingerprints must not be susceptible of an innocent explanation and it must appear that they could not have been placed at a time other than during the commission of the crime. See People v. Jones, 257 AD 5 (4th Dep't, 1939) (no evidence that a fingerprint was placed on the door of a safe innocently); People v. Basciano, 109 AD2d 945 (3d Dep't, 1985) (fingerprint recovered from inside the coin box compartment on an arcade game from which the box had been forcibly removed).
Citing United States v. Van Fossen, 460 F2d 38, 40 (1972), the Appellate Division in People v. Person similarly noted that where DNA is found on a readily moveable object, it is of questionable probative value unless the proof showed it was left only during the commission of the crime. Where fingerprints were found on a small moveable object such as an envelope, the evidence was sufficient for the trier of fact to find guilt beyond a reasonable doubt where defendant had no connection to the premises and the evidence established that the object with defendant's fingerprint could not have come to be at the location other than at the time of the commission of the crime. Such evidence was sufficient to exclude all reasonable hypotheses of defendant's innocence. See People v. Jenkins, 115 AD2d 562 (2d Dep't, 1985); see also People v. Dennison, 94 Misc 2d 26 (County Ct, Rockland Cty, 1978).
In this case, the testimony of the custodian of the movie theater established that the business had been closed and locked for the night; that the cash box had been jimmied; that the screwdriver from which defendant's DNA was recovered was found near the cash box and had apparently been used to jimmy the lock on the box; and that the screwdriver had not been in the premises when the custodian locked up and left before the burglary. Defendant had no legitimate access to the premises at the time the burglary occurred or permission or authority to be there. In contrast to the facts in People v. Person, the screwdriver containing defendant's DNA was found inside the location; in Person the court noted that the fact that the cigarette butt was found outside the location raised innocent inferences. See also People v. Collins, 150 AD2d 476 (2d Dep't, 1989) (jewelry box containing defendant's fingerprints was recovered outside complainant's apartment). The facts in this case are further distinguishable from those in Person in that there was evidence as to when the screwdriver was left inside the premises. In Person it could not be established when the cigarette butt was left outside the location; here, the screwdriver was left in the location in the period in which the business was burglarized. In the context of a grand jury proceeding, the standard for reviewing the sufficiency of the evidence is whether the evidence established a prima facie case. In a case involving circumstantial evidence, the reviewing court need only determine ifthe grand jury could have rationally drawn an inference of guilt. See People v. Deegan, 69 NY2d 976 (1987); People v. McDowell, 255 AD2d 976 (4th Dep't, 1998); People v. Shaw, 111 AD2d 835 (2d Dep't, 1985).
In view of the foregoing, this court finds that the evidence before the grand jury was legally sufficient to sustain the indictment.
This constitutes the decision and order of the court.