Opinion
09-0800.
Decided May 26, 2010.
Honorable Janet DiFiore, District Attorney of Westchester County, County Courthouse, White Plains, New York.
Attn: A.D.A. Laura M. Murphy, Kevin Griffin, Esq., Attorney for Defendant, Yorktown, New York.
By order to show cause, the Westchester County District Attorney's Office moves this Court pursuant to CPL 240.40(2)(b)(iii) to enter an order directing the defendant to submit to the taking of a palm print by the People in connection with the prosecution of the instant indictment. In resolving the People's instant application, this Court has considered the affirmation in support and memorandum of law of Assistant District Attorney Laura M. Murphy, as well as the affirmation in opposition of counsel for the defendant, Kevin Griffin, Esq. Upon the foregoing papers, the instant application is resolved as follows: Procedural History
Pursuant to Indictment No. 09-0800, the defendant is charged with a single count of Burglary in the second degree in violation of Penal Law § 140.25(2), a single count of Petit Larceny in violation of Penal Law § 155.25, and a single count of Criminal Mischief in the fourth degree in violation of Penal Law § 145.00(1). On December 16, 2009, the defendant was arraigned on the instant indictment in the presence of counsel and entered a plea of not guilty to all counts charged therein. It is alleged by the People that these charges stem from the defendant's knowingly unlawful entry into the complainant's residence located at 19 Scenic Drive in the Village of Croton-on-Hudson on or about and between May 8, 2009 and May 11, 2009, when he stole property and damaged other property located therein.
Following the alleged commission of these charged crimes, the defendant was apprehended on May 11, 2009 and advised NYSP Trooper Mario Velez that he had attempted to open the rear patio door of the burglarized residence before gaining access through a rear window. Subsequent processing of the crime scene on May 11, 2009 by NYSP Trooper Richard Miller revealed the presence of several latent prints on the rear patio door of the burglarized residence, which were delivered to the NYSP Forensic Investigation Unit for analysis. Subsequent forensic analysis of the latent prints by Latent Print Examiner Kevin Rosa revealed the existence of an identifiable partial palm print.
In support of the instant application, the People assert that the forensic comparison of the defendant's known palm print with the palm print obtained from the rear patio door of the burglarized residence may yield material evidence. In further support of the instant application, the People submit that should the forensic comparison of the defendant's known palm print with the palm print recovered from the crime scene reveal a positive match, this forensic evidence would be admissible at trial to corroborate the police officer's testimony concerning the identification of the defendant as the perpetrator of the crimes charged under the instant indictment. The defense opposes the instant application upon two grounds, specifically arguing that the People have failed to establish probable cause to believe that the defendant committed the charged crimes, and have also failed to establish a clear indication that relevant and material evidence will be found.
Conclusions of Law
Pursuant to CPL 240.40(2)(b)(iii), the People are specifically authorized to seek a court order compelling an indicted defendant to furnish the prosecution with non-testimonial evidence, including a palm print or fingerprint. Pursuant to the holding of the Court of Appeals in Matter of Abe A. ( 56 NY2d 288, 291), the applicable standard governing the issuance of an order to compel an individual to furnish non-testimonial evidence to the prosecution requires that the following three elements be established: (1) that there exists probable cause to believe that the individual from whom non-testimonial evidence is sought has committed the crime under investigation, (2) that there exists a clear indication that relevant material evidence will be found as a result of the disclosure of the non-testimonial evidence sought, and (3) that the method used to obtain the non-testimonial evidence sought is safe and reliable ( see, People v. King, 232 AD2d 111, app. denied 91 NY2d 875; Matter of Anonymous v. Cacciabaudo, 153 AD2d 856, app. denied 74 NY2d 890; Matter of Santorelli v. District Attorney of Westchester County, 252 AD2d 504, 505; Matter of Chaplin v. McGrath, 215 AD2d 842; Matter of Vivanco v. West, 214 AD2d 618). In addition, the Court of Appeals further requires that the issuing court consider the seriousness of the crime under investigation, the significance of the evidence sought and the availability of less intrusive means of obtaining it, and balance these concerns against the individual's constitutional right to be free from bodily intrusion ( Matter of Abe A., supra, at 291; People v. King, supra, at 116).
Upon assessing the merits of the present application with respect to the existence of probable cause to believe that the individual from whom non-testimonial evidence is sought have committed the crime under investigation, this Court finds that probable cause to believe that the defendant has committed the crimes charged under the instant indictment is demonstrated through the grand jury's return of the instant indictment. With respect to the sufficiency of the People's showing that there exists a clear indication that relevant and material evidence will be found as a result of the compelled disclosure of the non-testimonial palm print sought from the defendant, this Court finds that the confirmation or exclusion of the defendant as the creator of the palm print recovered from the rear patio door of the burglarized residence would constitute marginally relevant and material evidence bearing on the defendant's guilt of the charged crimes ( People v. Allweis, 48 NY2d 40, 50; Matter of Cacciabaudo, supra, at 858; Matter of Eric Price, County Ct., Westchester County, Sept. 10, 1997, Lange, J., indictment No. 97-0771). Upon further considering whether the method proposed to obtain a palm print from the defendant is safe and reliable, so long as the method to be utilized is in all respects similar to that routinely employed for the taking of fingerprints, this Court finds that the compelled taking of a palm print is safe, reliable and free from unreasonable intrusion or risk of serious physical injury.
In resolving the instant application, in addition to the above, this Court has considered the seriousness of the crime under investigation, finding that the defendant stands charged with a crime involving the burglary of a dwelling which resulted in the defendant's indictment for the crime of Burglary in the second degree, a violent felony offense within the meaning of Penal Law § 70.02(1)(a), in addition to another non-violent felony offense. Concurrently, this Court has also evaluated the significance of the evidence sought by the People through the instant application, finding that the palm print sought constitutes material evidence which is probative of the identity of the person who burglarized the residence located at 19 Scenic Drive in the Village of Croton-on-Hudson as charged under the instant indictment. Furthermore, this Court finds that no less intrusive means of obtaining a palm print from the defendant is available. Indeed, counsel for the defendant has suggested any less intrusive alternative means by which the People might obtain a palm print from the defendant. Finally, upon weighing the above concerns against the defendant's constitutional right to be free from the bodily intrusion involved in the taking of a court-ordered palm print, this Court finds that the balance weighs in favor of granting the People's application for an order compelling the defendant to submit to the taking of a palm print.
Accordingly, the People's present application seeking an order of this Court compelling the defendant to submit to the taking of a palm print is granted. In connection herewith, the palm print is to be taken from the defendant at the Westchester County Penitentiary or the Office of the Westchester County District Attorney by the Westchester County District Attorney or her authorized representative(s) or agent(s), at a date and time to be mutually agreed upon between counsel for the defendant and the Office of the Westchester County District Attorney, but in no event shall such date be later than seven (7) days from the date of the filing and entry of this Decision and Order, absent leave of this Court.
The foregoing shall constitute the Decision and Order of the Court.