Barber v. Rubin

• Decision Date: 04 February 1980
• Citation: 72 A.D.2d 347,424 N.Y.S.2d 453
• Parties: In the Matter of James BARBER, Petitioner, v. Isaac RUBIN, as Justice of the Supreme Court of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 453

424 N.Y.S.2d 453

72 A.D.2d 347

In the Matter of James BARBER, Petitioner, v. Isaac RUBIN, as Justice of the Supreme Court of the State of New York, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 4, 1980.

Stephen J. Pittari, Legal Aid Society of Westchester County, White Plains (David B. Weisfuse, White Plains, of counsel), for petitioner.

Carl A. Vergari, Dist. Atty., White Plains (Gerald D. Reilly, Michael E. Halkitis and Anthony J. Servino, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, TITONE and O'CONNOR, JJ.

HOPKINS, Justice Presiding.

The petitioner has been indicted for murder in the second degree and other crimes. The clenched fist of the victim contained a number of human hairs. The Supreme Court, on application of the District Attorney, granted an order permitting a physician to extract hairs, including roots, from the petitioner's head, for use as specimens to determine whether the hairs found in the victim's hand had come from the petitioner.

The petitioner then brought this article 78 proceeding to prohibit the enforcement of the order of the Supreme Court. We held the application in abeyance and remitted it for an evidentiary hearing probing the necessity of the procedure for the removal of the hair, the degree of the invasion into the petitioner's body, the degree of harm to which the petitioner might be exposed, and the probative value of the evidence sought (Matter of Barber v. Rubin, 65 A.D.2d 811, 410 N.Y.S.2d 361).

The hearing has been held and the evidence presented has been considered by us. ¹ We hold that, based on that evidence and the teaching of People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735, the petition should be denied and the proceeding dismissed. Sufficient facts demonstrating necessity and probable cause have been established warranting the order of the Supreme Court. The petitioner will not be subjected to either an unnecessary exposure of harm or an impermissible invasion of his person.

I

On April 25, 1978 the petitioner was indicted for murder in the second degree, arson in the second degree, grand larceny in the third degree, and criminal possession of a weapon in the fourth degree. On July 7, 1978 the People moved in the Supreme Court for an order permitting the extraction of hairs from the head of the petitioner. That motion was supported by an affidavit of an Assistant District Attorney, asserting that the victim of the homicide had been strangled, and that the autopsy had revealed hair in the victim's hand.

The Supreme Court by order dated July 17, 1978 permitted a physician to extract hairs from the petitioner's head with his attorney present.

Thereafter, the petitioner instituted this proceeding under CPLR article 78 to prohibit the enforcement of that order. ² The petitioner contended that the order, having been granted without a hearing, exceeded the jurisdiction of the court and violated the petitioner's constitutional rights of due process and his protection against unreasonable searches and seizures under the State and Federal Constitutions. In turn, the respondent moved to dismiss the proceeding, on the ground, among others, that prohibition was not the proper remedy.

We held the proceeding in abeyance and remitted it for an evidentiary hearing probing the necessity of the procedure for the removal of the hair, the probative value of the evidence sought, the degree of invasion into the petitioner's body, and the harm to which he might be exposed (Matter of Barber v. Rubin, 65 A.D.2d 811, 410 N.Y.S.2d 361, Supra ).

At the hearing testimony was received from a chemist employed at the New York State Police Laboratory, a special agent of the Federal Bureau of Investigation assigned to the F.B.I. laboratory in Washington, D. C., a physician and a detective who had investigated the homicide. From this testimony, it appears, and we find, that hair found in the victim's hand had been compared with the victim's own hair and determined through analysis to be dissimilar; that with the use of proper samples, an expert in the field can conclude with a reasonable degree of certainty whether hair from an unknown source matches the hair from a known source; that hair samples microscopically alike or closely similar can be said with a high degree of probability to have originated from the same source; that no standards have yet been set in the field for hair comparisons; that hair samples can be gathered with minimal pain and without an invasive surgical procedure or danger of harm to the donor; that the petitioner had been a roomer in the victim's home; and that the victim's car had been missing and seen in the petitioner's possession on the night of the homicide, and had been recovered thereafter while in the petitioner's possession.

The petitioner argues that the hair sought to be obtained from him would be inconclusive and prejudicial, because no scientific standards have been established for the procedure or for the analysis to be carried out for the examination and comparison of the hair. Moreover, he urges that probable cause does not exist for the necessity of the extraction of hair from him.

These issues, and the initial issue raised by the People at the time this proceeding was brought, that prohibition is not the proper remedy to test the right of the People to obtain hair samples from the petitioner, we now discuss.

II

We recognize that prohibition is not traditionally a method of appellate review. Indeed, the statute forbids its use when an appeal is available (CPLR 7801, subd. 1). Especially it is true that resort to prohibition directed toward a criminal proceeding should not be made, unless the jurisdiction of the court itself is untenable (Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 768, 366 N.E.2d 854, 856; La Rocca v. Lane, 37 N.Y.2d 575, 578-580, 376 N.Y.S.2d 93, 96-98, 338 N.E.2d 606, 609-610). In La Rocca v. Lane (Supra, pp. 579-580, 376 N.Y.S.2d pp. 97-98, 338 N.E.2d pp. 609-610), Chief Judge BREITEL outlined several factors which influence the appropriate maintenance of the proceeding: (1) the gravity of the harm which might be caused by the action of the court against which the remedy would be invoked; (2) the adequacy of correcting the action of the court by appeal or other means; (3) the duration of time which correction by appeal or other means will take; and (4) the nature of the right whether constitutional or common law which may be infringed.

Surveying these factors, we think that in this case the remedy of prohibition lies to review the order of the Supreme Court permitting the removal of the petitioner's hair, although on the merits, as the Court of Appeals decided in La Rocca, we hold that the Supreme Court properly exercised its discretion in granting the order. First, we observe that no appeal from the order is available to the petitioner (see Matter of District Attorney of Kings County v. Angelo G., 38 N.Y.2d 923, 382 N.Y.S.2d 981, 346 N.E.2d 820).

We do not consider that People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419 holds otherwise. In that case, Vega, a defendant in a criminal proceeding in another county, was directed to be turned over to the District Attorney of Queens County, his beard removed, and placed in a lineup to be viewed by witnesses to certain robberies. The original order had been made ex parte by the Supreme Court, Queens County. Vega was not the subject of any criminal proceeding in Queens County. We determined that the order was essentially civil in character, since no criminal proceeding was extant in Queens County, and that an appeal was the proper manner of review (Matter of Blumenfeld v. Dubin, 49 A.D.2d 593, 371 N.Y.S.2d 133). We thereafter entertained an appeal from an order denying a motion to vacate the ex parte order. The facts are distinguishable; here the petitioner is a defendant in a criminal proceeding in Westchester County and the order permitting the extraction of his hair is manifestly directed toward the ultimate use of the evidence against him in the very criminal proceeding pending in Westchester County.

It is of course incontrovertible that in the event the petitioner were convicted, the procedure of obtaining the hair by the order and the admissibility of the evidence so procured could be challenged on appeal. Nevertheless, we perceive clear disadvantages to the petitioner and others who may be the subject of similar orders involving the compulsory examination of their person or requirements impinging on their liberty, if review of the propriety of the constraint is not provided and instead a determination is delayed for months or even years. The criteria of probable cause and necessity to justify the order should be promptly applied, lest the rights of the individual may needlessly be violated (cf. United States v. Harris, 453 F.2d 1317 (8th Cir.), cert. den. 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154; State v. Fierro, 107 Ariz. 479, 489 P.2d 713; Wise v. Murphy, 275 A.2d 205 (D.C.App.)). We should avoid this dilemma by authorizing an immediate test of the compulsion through prohibition, in the light of the gravity of the possible harm to the individual, the length of time an appeal from a conviction would endure, and the fact that the compulsion may indeed implicate a serious invasion of the individual's constitutional rights, if not corrected at once.

Consistent with these considerations, it is now a rule of general application that the claim of former jeopardy, though cognizable by a motion to dismiss the indictment expressly prescribed by statute (CPL 210.20, subd. 1, par. (e)), may also be raised by prohibition (Matter of Di Lorenzo v. Murtagh, 36 N.Y.2d 306, 309, 367 N.Y.S.2d 761, 763, 327 N.E.2d 805, 806; Matter of Kraemer v. County Ct. of Suffolk County, 6 N.Y.2d 363, 365, 189 N.Y.S.2d 878, 879, 160 N.E.2d 633, 634). The same salutory...