Abromowitz, Matter of

• Citation: 440 N.Y.S.2d 928,81 A.D.2d 362
• Parties: In the Matter of an Investigation into the Death of Abe ABROMOWITZ. An Application Permitting the Taking of Blood Samples from Jon L. JON L., Appellant, v. DISTRICT ATTORNEY, NEW YORK COUNTY, Respondent.
• Decision Date: 25 June 1981
• Court: New York Supreme Court Appellate Division

Page 928

440 N.Y.S.2d 928

81 A.D.2d 362

In the Matter of an Investigation into the Death of Abe ABROMOWITZ An Application Permitting the Taking of Blood Samples from Jon L JON L., Appellant, v. DISTRICT ATTORNEY, NEW YORK COUNTY, Respondent.

Supreme Court, Appellate Division First Department.

June 25, 1981.

Lawrence Iason, New York City, of counsel (Robert Kasanof and Howard E. Heiss, New York City, with him on the brief, Kasanof, Schwartz & Iason, New York City, attorneys), for appellant.

Gary Greenfield, New York City, of counsel (Mark Dwyer, Asst. Dist. Atty., with him on the brief, Robert M. Morgenthau, Dist. Atty., attorney), for respondent.

Before MURPHY, P. J., and KUPFERMAN, ROSS and SILVERMAN, JJ.

ROSS, Justice.

Can a citizen who is a suspect in an ongoing homicide investigation, and against whom no criminal proceeding has been instituted, be compelled to provide a sample of his blood for analysis? A majority of this Court concludes that it was error to require this blood extraction.

Jon L., the appellant herein, was the business partner of Abe A., the decedent. Deceased was last seen alive while parking his car at approximately 6:30 P.M. on January 15, 1980, in the garage of his apartment building located at 1385 York Avenue. Decedent was found by the police, bludgeoned to death, the following day in his tenth floor apartment. The cause of death was multiple lacerations of the scalp with contusions of the face and fractures of the larynx.

When decedent failed to arrive at work on the morning of January 16th, appellant allegedly became concerned and attempted to contact his partner by telephone but received no answer. Appellant then called deceased's son-in-law to voice his concern. The latter proceeded to Jon L.'s office, at which time the police were informed of these circumstances and were requested to examine deceased's apartment. Appellant and deceased's son-in-law proceeded to the apartment where the police had already arrived. During the course of their investigation, the police found evidence of a violent struggle; blood was splattered throughout the apartment and a number of deceased's teeth were observed on the floor. In addition, there was no sign of forced entry into the apartment.

While at deceased's apartment, the investigating officer, Detective Acosta, noticed that appellant had abrasions on his face, that there were teeth marks on his hands and that his hands were swollen and bruised. This detective was of the opinion that the injuries sustained by appellant were consistent with the kinds of injuries he would have suffered had he engaged in a struggle with the deceased that resulted in the latter's death. Appellant explained that he received these injuries as the result of a mugging in the Chambers Street subway station at approximately 4:30 P.M. on January 15th. Appellant claimed that an unidentified man approached him, asked him for the time of day and then grabbed for his watch. In an ensuing struggle the assailant clawed at appellant and grabbed his hand and bit it. Appellant, it is alleged, then blacked out for approximately one hour. No property was stolen from appellant and he failed to report this incident to the authorities. Although this crime took place at a busy subway station during the evening rush hours, the police could find no one who witnessed this incident.

The blood found in the apartment of deceased was analyzed by the Office of the Chief Medical Examiner. This sample was found to consist of two different types of blood, one of which matched the blood type of the deceased and the other was a very rare type which is found in less than one percent of the population. It is the belief of the authorities that this blood sample is the blood of the assailant.

The District Attorney requested that appellant submit to a physician for the taking of blood samples. This request was rejected. Accordingly, on June 3, 1980, the District Attorney moved in Supreme Court, New York County, for an order compelling appellant to submit to the taking of blood samples. In support of this application, the People stated that "is probable cause for belief that Jon L. caused the death of the deceased," (underscoring supplied) and the People, therefore, contend that samples of appellant's blood are necessary for their investigation. Jon L. opposed this application on the grounds that he was not charged with a crime and that he had not been subpoenaed to appear before any Grand Jury. Subsequently, on August 1, 1980, the hearing court directed appellant to submit to the taking of blood samples from his body. Upon appellant's refusal to comply with this court order, a second order was then entered finding him in contempt of court pursuant to Judiciary Law § 750, and sentencing him to thirty days in jail. However, this sentence was stayed pending determination of this appeal.

The Justice presiding made a finding that the People had made a sufficient showing that there was reasonable cause to assume that the decedent had been murdered by appellant. The Justice concluded that "case law supports the general proposition that it is proper to enter an order involving an intrusion upon the rights of a person not yet charged with a crime and the specific proposition that, in a proper case, such a person may be compelled to submit to the extraction of a blood sample." The Court in support of its order cited, inter alia, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900, where the United States Supreme Court held that the police may properly extract scrapings from a suspect's fingernails by a court order, and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, where the Court upheld the extraction of blood from a suspect without a court order. In addition, the Court found that the blood type discovered at the scene of the crime was rare and, therefore, would have probative value. The intrusion into the body of appellant was termed "trifling" and the application of the District Attorney was granted "based upon the probable cause shown and probative value of the evidence."

Appellant advances three reasons why the order should be reversed. Initially, he asserts that the Court lacked the requisite jurisdiction to compel him to submit to the taking of blood samples. Secondly, he argues that the Court improperly issued the order as there is insufficient cause to believe that the evidence which the District Attorney seeks will actually be found, and thirdly, that, even if such evidence were to be obtained it would not have any substantial evidentiary value.

The People rely heavily on Schmerber v. California, supra, where the United States Supreme Court held that a defendant's Fourth, Fifth, Sixth and Fourteenth Amendment rights had not been violated when blood was withdrawn from his body after he had been properly arrested for drunk driving, and where the blood had been taken at the direction of a police officer without a court order (underscoring supplied). It is significant to note that in Schmerber what the police were seeking was evidence of alcohol in the blood system. It is common knowledge that with the passage of time the availability of such evidence diminishes until a point approaches when all traces of alcohol vanish from the blood system. Thereafter, a blood/alcohol ratio cannot be determined by means of any modern blood test. Accordingly, in Schmerber, time was truly of the essence from the viewpoint of the police investigation.

Even though the police had probable cause to arrest the drunken driver, Schmerber, this alone was deemed not sufficient to justify the taking of the blood sample. Rather the Court held, that under those circumstances, there had to be a clear indication that the desired evidence would be found. Here, the trial court concluded that since appellant had been given adequate notice, had an opportunity to be heard and since the Court issued an order compelling appellant to submit to the blood test, the clear indication standard is not required.

The People, in support of their position, also rely upon Cupp v. Murphy, supra, wherein the defendant's wife was strangled to death, there were no signs of forced entry and the defendant had been at his wife's home the night of the crime. The police were aware that evidence of a strangulation was often found under the fingernails. In addition, the authorities noticed a spot on defendant's finger which could have been blood, so they forcibly took scrapings from defendant without a judicial order. The Supreme Court held that this search was appropriate since the police had probable cause to believe that defendant had murdered his wife, the intrusion was limited and the evidence could have been easily destroyed.

The question becomes, as is apparently conceded by both sides, whether the trial court had the authority to direct appellant, who had not been charged with any offense and who had not been arrested, to submit to the extraction of a blood sample from his body for the purpose of matching this sample to that blood found at the murder scene.

Pursuant to CPL § 240.40(2), the Court in which an indictment or information is pending may require a defendant to provide non-testimonial evidence including inter alia, blood samples as long as the evidence obtained is gathered "in a matter not involving an unreasonable intrusion of his body". A second limiting factor imposed by this section is that the application of the People is subject to constitutional limitations. In addition, it is important to note that this statute applies only to a post arrest situation. There does not appear to be any provision in the CPL which authorizes the taking of blood prior to arrest. The Vehicle and Traffic Law § 1195(1) also authorizes the taking of blood samples to determine the alcohol level in blood only after an arrest has been made. However, this is not to suggest that courts are totally without pre-arrest...