People v. Dail

• Decision Date: 19 January 2010
• Docket Number: 2008-04330,2008-04329.
• Citation: 69 A.D.3d 873,894 N.Y.S.2d 78,2010 NY Slip Op 532
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARK DAIL, Also Known as WAYNE WILLIAM, Appellant.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 873 894 N.Y.S.2d 78 2010 NY Slip Op 532 THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
MARK DAIL, Also Known as WAYNE WILLIAM, Appellant. 2008-04329. 2008-04330 Appellate Division of the Supreme Court of New York, Second Department. Decided January 19, 2010.

[69 A.D.3d 874]

Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County (Jaeger, J.), rendered May 1, 2008, convicting him of burglary in the second degree under indictment No. 1091/07, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, also rendered May 1, 2008, convicting him of burglary in the second degree under indictment No. 2311/07, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, pursuant to a stipulation in lieu of motions, of the suppression of physical evidence.

Ordered that the judgments are affirmed.

The Supreme Court properly declined to suppress DNA evidence derived from a buccal swab. The evidence presented at the suppression hearing supports the court's conclusion that the defendant voluntarily agreed to give the police a saliva sample for testing (see People v Gonzalez, 39 NY2d 122, 128 [1976]; People v Brewster, 48 AD3d 696 [2008], cert denied 555 US ___, 129 S Ct 265 [2008]; People v Edwards, 46 AD3d 698, 699 [2007]). While the defendant was in custody, he had been at the precinct for less than one hour when the saliva sample was requested, and only two officers were present in the interview room with him (see People v Quagliata, 53 AD3d 670, 672 [2008]; People v Edwards, 46 AD3d at 699). The defendant, who was not a novice to the criminal justice system, also signed a form which expressly informed him of his right to refuse consent, and was fully cooperative with the officers (see People v Quagliata, 53 AD3d at 672; People v Knudsen, 34 AD3d 496 [2006]; People v Maldonado, 184 AD2d 531, 532 [1992]; People v Del Valle, 149 AD2d 610 [1989]; People v Credidio, 141 AD2d 661, 662 [1988]). Considering the totality of the circumstances, the defendant's consent was voluntary and not the product of coercion (see People v Quagliata, 53 AD3d at 672; People v Edwards, 46 AD3d at 699; see generally People v Gonzalez, 39 NY2d at 128).

Furthermore, the defendant's Sixth Amendment right to confront his accusers was not violated by the admission of lab reports generated by employees of the Nassau County Medical Examiner's Office (hereinafter the Medical...