Opinion
4347/2017
06-21-2018
The PEOPLE of the State of New York, Plaintiff, v. Adwein RODRIGUEZ, Defendant.
For the People: ADA John Arias, Kings County District Attorney For Defendant: Darren S. Fields, Esq.
For the People: ADA John Arias, Kings County District Attorney
For Defendant: Darren S. Fields, Esq.
John T. Hecht, J.
Defendant has moved pursuant to CPLR § 2221 (d) and (e) to renew and reargue his motion to dismiss on speedy-trial grounds which this court denied by order dated April 12, 2018. The People oppose. For the reasons stated below, the motion is denied.
Defendant was arrested and charged with possession of two firearms, swabs of which the police sent to the Office of Chief Medical Examiner (OCME) for testing. After the OCME determined that there was a sufficient concentration of DNA on a swab from one firearm to compare to defendant's DNA, the People sought a court order to obtain defendant's DNA. After litigation concerning this effort, which was protracted by defendant's refusal to submit to the court order, the People obtained defendant's DNA pursuant to a court order. The OCME then compared defendant's DNA to that found on the subject firearm and issued a report concluding that defendant was a contributor to the DNA found on the firearm. The People then presented this case to the grand jury with that evidence, among others, and secured the present indictment.
In his motion to dismiss, defendant contended that the time in which the People sought, obtained, and tested his DNA should have been charged to the People. This court denied the motion, in part because the People acted diligently, and the Criminal Procedure Law recognizes that the absence of material evidence, such as DNA, which the People diligently seek, is an "exceptional circumstance" that constitutes an exclusion from the speedy-trial calculation (see CPL § 30.30 [4 ] [g] [i] ).
A motion to reargue must be based upon a "showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision by the court in determining the prior motion" ( Loland v. City of New York, 212 AD2d 674 [2d Dept 1995] ; accord, Perez v. Linshar Realty Corp., 259 AD2d 532 [2d Dept 1999] ). It "is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those already asserted" ( Pryor v. Commonwealth Title Ins. Co. , 17 AD3d 434 [2d Dept 2005] ; William P. Pahl Equipment Corp. v. Kassis , 182 AD2d 22, 27 [2d Dept 1992] ; see also, People v. Lopez , 235 AD2d 496, 497 [2d Dept 1997] ). Defendant has not demonstrated that the court overlooked or misapprehended any fact or law. Defendant merely disagrees that the exclusions of CPL § 30.30 [4 ] apply in the preindictment context, despite authority to that effect (see, e.g., People v. Militello , 199 AD2d 1053 [4th Dept 1993] ; People v. Zirpola , 57 NY2d 706 [1982] ; see also People v. Smietana , 98 NY2d 336 [2002] ).
Defendant argues that the judge who issued the order compelling defendant to submit to a DNA swab lacked authority to issue that order. This court is not an appellate court, and defendant's argument is therefore not appropriately raised here. Nevertheless, this court notes that a court may order that nontestimonial evidence, such as DNA, be obtained from a criminal suspect, whether or not he or she is under arrest, providing the People have met the standards articulated in Matter of Abe A , 56 NY2d 288 [1982] [blood], as set forth not only in that case, but also People v. Shields , 155 AD2d 978 [4th Dept 1989] [lineup], lv denied 75 NY2d 818 [1990] and People v. London , 124 AD2d 254 [3rd Dept 1986] [lineup], lv denied 68 NY2d 1001 [1986] ); see also People v. Middleton, 54 NY2d 42 [1981] [bite impressions].
Abe A. and Middleton, indeed, specifically addressed the question of whether a court has the power to grant an application like the one at issue here. In Abe A. , which addressed this question in the prearrest context, the Court of Appeals held that an application to draw blood is akin to a search warrant application, and that therefore "equivalent judicial authority may be exercised under a court's power to issue a search warrant" ( Abe A. , 56 NY2d at 294 ). Search warrants, of course, may be issued by a local criminal court (see CPL §§ 690.05, 10.10 [3 ] ), such as the court that issued the order to compel a DNA swab here. In Middleton , the Court of Appeals held that, in the preindictment context, a "local criminal court" or a superior court in aid of a grand jury proceeding may direct a defendant to submit to the taking of bite impressions (see Middleton , 54 NY2d at 47 & n.1 ).
This court denies defendant's motion to renew because defendant has not provided any new facts that would change the court's prior decision. Defendant asserts—again in a misdirected effort to challenge the order compelling him to submit to a DNA swab—that the police could have used a potential pseudo exemplar of his DNA from a "plastic straw and cup lid" purportedly used by him at the police precinct after his arrest. The People did not request DNA testing on these items. The OCME, pursuant to internal policies, refused to test them.
The People are entitled to decide what evidence they wish to use. They did not have to seek testing of the straw and lid, rather than seek a true DNA exemplar from defendant, after testing on the gun demonstrated that a DNA swab would likely produce probative evidence. Even had defendant offered to stipulate that any DNA on the straw and lid were his—and not only was no such stipulation offered, but there is no indication in the record that measurable DNA actually existed on the straw and lid—the People would have been under no obligation to accept that stipulation (Matter of Johnson v. Shillingford , 108 AD3d 630 [2d Dept 2013] ; see also People v. Andrade , 87 AD3d 160 [1st Dept 2011], lv denied 17 NY3d 951 [2011], citing Prince, Richardson on Evidence § 8–215, at 523 [Farrell 11th ed.]; People v. Hills , 140 AD2d 71, 77 [2d Dept 1988], lv denied 73 NY2d 855 [1988] ; People v. Robinson , 251 AD2d 602 [2d Dept 1998], aff'd 93 NY2d 986 [1999] ).
For these reasons, defendant's motion to reargue and renew the court's prior decision is denied.
The foregoing shall constitute the decision and order of the court.