Opinion
No. 2013BX061096.
05-02-2014
The PEOPLE of the State of New York v. Jerome GRAY, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Benjamin J. Marzolf, Esq., Assistant District Attorney, for The People. Charles J. Ippolito, Esq., The Legal Aid Society, for Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Benjamin J. Marzolf, Esq., Assistant District Attorney, for The People.
Charles J. Ippolito, Esq., The Legal Aid Society, for Defendant.
Opinion
ARMANDO MONTANO, J.
Defendant is charged with Forcible Touching (P.L. § 130.52); Sexual Abuse in the Third Degree (P.L. § 130.55); Harassment in the Second Degree (P.L. § 240.26(1); Sexual Misconduct (P.L. § 130.20(2)). The People move for the following: (1) to Reargue this Court's decision granting a pre-trial hearing to determine whether there is probable cause to obtain a DNA sample from the defendant.
The complaint alleges that on October 22, 2013 at approximately 5:00 a.m. at 2250 Haviland Avenue, Apartment 3J, Bronx County that Usheka Rosario was subjected to sexual contact that was not consensual.
The defendant asserts in a video statement that he did not touch the complainant.
The People move to reargue the Court's ruling ordering a probable cause/Dunaway hearing. The prior decision noted specifically “that a probable cause/Dunaway hearing ... be conducted. Until such time as the requisite probable cause is established pursuant to the completion of the aforesaid [probable cause/Dunaway] hearings the People's motion for DNA/saliva sample is held in abeyance....” Essentially, the Court in its decision and order denied the People's motion for DNA/Saliva sample and should probable cause be established after the conclusion of the probable cause/Dunaway hearings granted by this Court the People can refile their motion seeking DNA samples of Jerome Gray's saliva for DNA testing.
In support of its motion to reargue the People assert that the instant motion is timely for the following reasons: “... the People have never been served with the Court's Order by the defendant. Moreover, thirty days have not elapsed from the date we received the Court's decision ...” In People v. Lynch, 195 Misc.2d 814 [Crim. Ct, Bronx County 2003] ) the Court stated as follows: “... the Appellate Division, First Department, made clear that “[a] reargument motion is untimely when made after the time to file a notice of appeal has expired....The People's time to file a notice of appeal from an order that does not embody a judgment or sentence does not expire until thirty days after service upon [the non-prevailing] party of a copy of [the] order. See CPL § 460.10(1)[a].” In this case the People assert that the Court calendered this case in AP 3 on March 3, 2014 and issued its written decision. The instant motion was filed with the Court on March 28, 2014. In opposition to the motion to reargue defense counsel does not dispute the timeliness of the reargument motion. In this case, there is no evidence that the Court's order dated February 19, 2014 was served by the defendant. For the foregoing reasons, this Court holds that the aforesaid order was not served with Notice of Entry and the time to move for reargument has not expired. (See, People v. Lynch, 195 Misc.2d 814 [Crim. Ct., Bronx County, 2003] ).
The defendant's opposition to the original motion by the People to compel DNA contains the defendant's request for a probable cause hearing prior to a decision compelling DNA. The defendant's request to conduct a probable cause hearing prior to deciding the motion to compel DNA is consistent with this Court's initial decision which stated as follows: “The Court can not, as a matter of law make a determination that probable cause has been established based upon the aforesaid contradictory evidence. These contradictory statements raise issues of credibility.” Further, before this Court issues a Court Order compelling DNA testing the People must establish the existence of probable cause. Since probable cause has not been shown this Court is adhering to its original decision.
The Court notes that a motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” See, CPLR § 2221(d)[2] ).
In support of its motion to reargue the People claim as follows: “... there is unquestionably probable cause to believe that the defendant committed the crimes he is facing.” Further, the People argue that factual allegations can be clarified or explained as follows: “While the People concede that the complaint reads that deponent' ejaculated onto her own head, this is clearly a typographical error on behalf of the individual who drafted the complaint in the Complaint Room.” Further, the People assert that “mistakenly typing the word “deponent” rather than defendant' is a harmless error ... The People are formally moving at this time to amend the complaint ...”
The branch of this motion to amend the complaint on the purported basis of typographical errors is rejected as the People are seeking to amend factual statements that were sworn to under penalties of perjury by the complainant in the complaint. The People have no right to unilaterally amend the factual statements made in the complaint.
The People also argue as follows: “Whether the complainant was intoxicated or not at the time of defendant's crimes does not automatically trigger a requirement to conduct a pre-trial hearing to determine probable cause.”
In opposition to the People's reargument motion, the defendant claims as follows: “The entire sequence of events alleged by the People's witness is lacking in credibility, common sense and, certainly lacking probable cause.” Further, defense counsel also argues that the People have “... failed to meet the probable cause requirements of Matter of Abe A., 56 N.Y.2d 288 (1982)...” This is consistent with this Court's initial decision. In Matter of Abe A., 56 N.Y.2d 288 (1982) the Court held as follows: “a court order to obtain a blood sample of a suspect may issue provided the People establish three requirements, to wit: (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.” The analysis by the Court of Appeals in Matter of Abe A, supra, on the issue of the People seeking to obtain a blood sample from a suspect in a criminal matter, involved a court order wherein all three (3) prongs must be met. To obtain a blood sample the People must meet all three [3] prongs. Further, the Matter of Abe A Court also “weigh[ed] 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. Only if this stringent standard is met, ..., may the intrusion be sustained.” (See, Matter of Abe A, supra). Moreover, the Court of Appeals also stated as follows: “... when the physical evidence whose possession is the raison d'etre for detaining a person cannot be altered or destroyed, as in the case of the type of blood integral to one's body ..., by definition there can be no exigency to justify exemption from the warrant standard of probable cause ...” (See, Matter of Abe A, supra). The requirements to obtain a blood sample also applies to DNA.
The Court also stated in Matter of Abe A, supra, the following: “One of the greatest contributions of American law may be the protection it affords the individual against the power of the government itself. However, the values this bespeaks often require a delicate balancing of the individual interest in privacy and dignity against circumstances which may call for intrusion by organized society. In this context, we now are called upon to determine the extremely sensitive issue of whether a suspect ... may be compelled, pursuant to a court order, to supply the People with corporeal evidence, in this case in the form of a sample of his blood for scientific analysis.” Furthermore, “it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed.” (See, Matter of Abe A, supra).
Although the Police Officer who arrested the defendant may have had probable cause to make the arrest of the defendant, the People need to establish that probable cause exists to a Court's satisfaction, as this constitutes the first prong required by the three (3) prong test established in “Matter of Abe A, supra,” to allow this Court to compel the defendant to submit to DNA testing. This Court finds that based upon the totality of the circumstances there exists a serious doubt as to the existence of probable cause as the contradictory statements raise issues of credibility. Further, unless probable cause is first established as to the defendant's commission of the alleged crimes the taking of the defendant's DNA exemplar is held in abeyance.
Before a Court can Order the taking of a defendant's DNA exemplar it is the Court that must rule on probable cause in complying with its duty to protect individual liberty interests against the power of the government. This is a sacred responsibility of the judiciary and is not to be determined nor entrusted to an arresting officer.
In Foley v. Roche, 68 A.D.2d 558 [1st Dept., 1979] ) the First Department stated as follows: “A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided ...” Further, the Court also noted in Foley v. Roche, supra, that “A motion for reargument is not an appropriate vehicle for raising new questions.” In this case, the court finds that the People fail to demonstrate a valid basis for their motion for reargument.
For the foregoing reasons, the motion to reargue is denied. The Court notes that the People make no persuasive argument that the Court erred on the facts or the law (C.P.L.R. § 2221 ). The Court is adhering to its original decision.
This opinion constitutes the decision and order of this Court.