In re Luis T., XXXXX
| Decision Date | 02 July 2020 |
| Docket Number | XXXXX |
| Citation | 68 Misc.3d 931,128 N.Y.S.3d 159 |
| Parties | In The MATTER OF LUIS T. |
| Court | New York Criminal Court |
Joseph Pepe, Esq., Shannon Ashford, Esq., NYC Law Department, Office of the Corporation Counsel, Special Victims Unit, Family Court Division, 900 Sheridan Avenue, Bronx, New York 10451
Laurence E. Busching, J. New York City Police Department Detective Ronny Morel, of the Bronx Child Abuse Squad, has applied to this Court for warrant to seize DNA from Luis T., a 13-year-old juvenile he has arrested for the crime of Criminal sexual act in the first degree (Penal Law (PL) § 130.50[3] ) and related charges. Det. Morel received a complaint from the mother of Luis T.'s four-year-old cousin, alleging that Luis T. "put his penis in her buttocks" at a specified location in Bronx County. (Morel Affidavit at ¶3). The four-year-old's parents immediately brought her to the hospital where a sexual offense evidence collection kit was prepared, which included various swabs taken from her clothes and body. Those swabs have been analyzed by the Office of Chief Medical Examiner's Department of Forensic Biology, which reports that they have "detected male DNA on the underwear, perianal swabs, and anal swabs submitted" (Morel Affidavit at ¶6). Additionally, on the complainant's underwear, they discovered a mixture of DNA from three contributors that is "suitable for comparison." (Morel Affidavit at ¶6). Det. Morel contends that "taking a DNA sample from [Luis T.] and comparing it to the evidence found during [his] investigation will produce evidence that tends to demonstrate" that the defendant committed a sex offense. (Morel Affidavit at ¶7).
Det. Morel is being assisted in this matter by two Assistant Corporation Counsels from the New York City Law Department, which serves as the presentment agency in Family Court. (see Family Court Act [FCA] § 254[a] ). The presentment agency has filed an Affirmation in Support of Issuance of Search Warrant (hereinafter "Affirmation in Support"), in which they contend that a delinquency petition cannot be filed in this matter without obtaining Luis T.'s DNA sample. (Affirmation in Support at p.4). The presentment agency asserts that this Court has the authority to issue such a warrant pursuant to Criminal Procedure Law (CPL) 240.40(2), 690.05(1), and 690.10(4) and Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982]. They further aver, applying the test articulated in Abe A. , that the application is supported by probable cause; that there is a clear indication that relevant and material evidence will be found; and that the method proposed for recovering the evidence is "safe, reliable, and minimally intrusive." (Affirmation in Support at p.13). In response, Luis T.'s attorney denies that the "unsworn, hearsay statement of four-year-old child who was never questioned about her ability to understand the nature of an oath" is sufficient to establish probable cause. (Affirmation in Opposition of Issuance of a Search Warrant [hereinafter "Affirmation in Opposition"] at p.4). Additionally, Luis T.'s attorney maintains that even if a comparison is made, the comparison will not yield relevant evidence, as "skin cells transfer easily and innocently between people who are in close proximity." (Affirmation in Opposition at p.7). Finally, his attorney argues that this Court does not have jurisdiction to issue such an order, as "the Family Court has exclusive original jurisdiction over juvenile delinquency proceedings." (Affirmation in Opposition at p.8). The Law Department has filed a Reply Affirmation, and Luis T. has filed a Sur Reply. Both sides appeared in Court for oral argument on this matter.
Authority of the Court to Issue a Search Warrant for a DNA Sample from a Juvenile :
In Abe A. , the Court of Appeals held that the police may obtain a court order for a suspect's blood sample even if the subject has not yet been charged with a crime. In order to obtain such an order, the People must establish:
( 56 N.Y.2d at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 ).
The Abe A. Court found its authority under Criminal Procedure Law 690.05, which authorizes "a search of a designated person" in order to seize property which is "evidence or tends to demonstrate that an offense was committed or that a particularly person participated in the commission of an offense." ( id. at 294, 452 N.Y.S.2d 6, 437 N.E.2d 265, citing CPL 690.10[4] ). The Court found that, in essence, the order was a search warrant: "Nomenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is." ( id. [internal citations omitted] ).
The Court of Appeals' analysis focused on the evidence sought, rather than the status of any case or individual that may have been connected with that evidence. Indeed, in Abe A. , a criminal case could not successfully have been brought without the evidence first being recovered and analyzed. A similar focus on the property sought, rather than from whom, is found throughout CPL article 690. In addition to "designated persons," CPL 690.05(2) and 690.15(1) also authorize searches of "designated premises" and "designated vehicles." There are no limitations addressing the status of the person or entity that is the subject of the search or the owner of the premises or vehicle in question. That person or entity can be a defendant, a suspect, a victim or even a wholly uninvolved third party. (see e.g., Matter of 381 Search Warrants Directed to Facebook, Inc. , 29 N.Y.3d 231, 78 N.E.3d 141 [2017] ). "The test, quite simply, is whether the affidavits which form the basis for issuance of the search warrant allege that an offense was committed within ‘the jurisdictional purview of the issuing court.’ " ( People v. Hickey , 40 N.Y.2d 761, 763, 390 N.Y.S.2d 42, 358 N.E.2d 868 [1976], quoting People v. Fishman, 40 N.Y.2d 858, 387 N.Y.S.2d 1003, 356 N.E.2d 475 [1976] ). In the instant matter, the affidavits allege the commission of the crime of Criminal sexual act in the first degree (PL § 130.50[3] ) in Bronx County.
Counsel for Luis T. would have the Court interpret the provisions of PL § 30.00, which define the defense of infancy, as stripping it of authority to issue search warrants where the subject of the warrant would not be subject to criminal prosecution. (Affirmation in Opposition at pp.14-16). Had that been the legislature's intention, they could have stated it clearly. Instead, PL § 25.00(1), which defines the defense of infancy, discusses its application "at trial," rather than as a bar to the criminal courts' jurisdiction altogether. While the infancy defense would likely apply in this particular matter, CPL article 690 does not require the Court to parse through possible suspects and defenses at this early stage. The focus is on the prompt recovery of evidence.
Luis T.'s attorney further argues that "authorizing a search warrant would subvert the legislative will and offend the purpose of the Family Court Act." (Affirmation in Opposition at p.16). Despite a thorough review of the history and purpose of Article 3 of the Family Court Act in their opposition papers, they are not able to cite to any explicit authority for the proposition that there was an intentional effort to exclude juvenile suspects, or any minors whatsoever, from the search warrant provisions of the CPL.
Certainly, the legislature did not object to the principle of requiring juveniles accused of delinquent acts to provide "samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto," since the Family Court Act specifically authorizes the submission of these materials. ( FCA § 331.3(2)(v) ). The factual predicate required for such orders is identical to the tests from Abe A. and search warrants generally -- probable or reasonable cause. (Compare FCA § 311.2(2) with Abe A. , 56 N.Y.2d at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265, and CPL 690.10 ). Probable and reasonable cause have the same meaning. ( People v. Maldonado , 86 N.Y.2d 631, 635 N.Y.S.2d 155, 658 N.E.2d 1028 [1995] ).
Beyond authorizing court orders for blood and other samples after the filing of a delinquency petition, the Family Court Act explicitly acknowledges the possibility of court orders for this type of evidence being issued prior to a petition being filed:
"This subdivision shall not be construed to limit, expand or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of a petition consistent with such rights as the respondent may derive from this article, the constitution of this state or of the United States."
Such language is virtually identical to its counterpart in the Criminal Procedure Law, section 240.40(2), which was addressed in Abe A., 56 N.Y.2d at 294, n 2, 452 N.Y.S.2d 6, 437 N.E.2d 265. In fact, at least one Family Court Judge has found that these provisions provide authority for the Family Court to order disclosure of non-testimonial evidence prior to the filing of a petition. ( Matter of Daniel C. , 15 Misc. 3d 543, 830 N.Y.S.2d 647 [Fam. Ct., Queens County 2007, Hunt, J.] )
Moreover, the Court of Appeals has specifically referenced the possibility — and even a preference — for police...
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