People v. Ellington

• Decision Date: 26 June 2012
• Docket Number: No. 47739C–2011.,47739C–2011.
• Citation: 36 Misc.3d 1207,954 N.Y.S.2d 760,2012 N.Y. Slip Op. 51219
• Parties: The PEOPLE of the State of New York v. Elijah ELLINGTON, Wakimi Joseph, Defendants.
• Court: New York Supreme Court

36 Misc.3d 1207

954 N.Y.S.2d 760

2012 N.Y. Slip Op. 51219

The PEOPLE of the State of New York

v.Elijah ELLINGTON, Wakimi Joseph, Defendants.

No. 47739C–2011.

Supreme Court, Bronx County, New York.

June 26, 2012.

Barry Weiss, Esq., New City, Counsel for Defendant Elijah Ellington.

Hannah Gladstein, Esq., Lara Belkin, Bronx, Counsel for Defendant Wakimi Joseph.

Joseph Shmulewitz, Assistant District Attorney, Office of the Bronx District Attorney, Bronx.

RICHARD LEE PRICE, J.

By motion filed November 16, 2011, the People moved for an order authorizing the taking of a saliva/buccal cell swab from the defendants pursuant to CPL 240.40(2)(b)(v). This court, having received no opposition from defendants, deemed the People's motion submitted and granted it on default. Defendants' default notwithstanding, this court carefully examined and considered the applicable law as well as the People's arguments set forth in their papers, prior court proceedings, and documents on file with the court. By decision dated January 20, 2012, this court found that the District Attorney's application was amply supported by probable cause to obtain a sample of defendants' saliva for the purpose of performing DNA testing.

Subsequently, after receiving this court's decision, counsels for defendants Elijah Ellington and Wakimi Joseph advised this court that they had not received the People's motion. As such, neither counsel was able to file their opposition. By notices of motion dated February 9, 2012, and February 17, 2012, defendants Joseph and Ellington, respectively, move to vacate this court's decision and order, and seek leave to file their opposition. This court finds no reason to deny counsels that opportunity, and thus grants them such relief in the interest of justice. Upon accepting their affirmations the taking of a saliva/buccal cell swab from the defendants, this court has careful considered the arguments set forth in the parties' respective papers, the applicable law, prior court proceedings and documents on file with the court, and finds that the District Attorney's application is amply supported by probable cause to obtain a sample for the purpose of performing DNA testing.

Service of Papers

This court notes that the CPL does not provide general rules governing service of motion papers. Consequently, courts have determined that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which address the issue should be applied in a criminal action (see e.g., People v. Davis, 169 Misc.2d 977 [Co Ct West Co 1996]; People v. Radtke, 153 Misc.2d 554 [Sup Ct Qns Co 1992]; People v. Cortez, 149 Misc.2d 886 [Cr Ct Kings Co 1990] ).¹

CPLR 2103(b)(2) provides that service of papers may be made upon the mailing of such papers to the opposing party's attorney. Service by mail shall be complete upon mailing (see CPLR 2103[b] ). It further provides that where counsel files a notice of appearance for two or more parties, only one copy need be served. Pursuant to CPLR 2103(f), “mailing” is defined as “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state” (see CPLR 2103[f] ).

Here, the People clearly discharged their service of papers obligation. The affidavit of service accompanying the People's motions indicate that a true and accurate copy of a motion to compel was properly served on Hannah Gladstein, Esq., and Barry Weiss, Esq., “by enclosing the same in a securely sealed post-paid wrapper ... and depositing same in the post office box regularly maintained by the United States Government located near 198 East 161st Street, Bronx, New York, addressed to her [him] at ... the address given by her [him] in the last papers served by him in the within proceedings.” ²

The Court of Appeals has unequivocally stated that a properly executed affidavit of service raises a presumption that a proper mailing occurred (Engel v. Lichterman, 62 N.Y.2d 943 [1984] ). In Engel, plaintiffs claimed they never received a copy of a conditional order of preclusion with notice of entry that defendant placed in a sealed post-paid wrapper in an official depository maintained by the United States Post Office. Strikingly similar to counsels' claim, Engel's counsel stated that although it appeared the order was mailed, his office never received it, from which he could “only surmise that this document was lost in the mail, since it was never delivered to our offices” ( Engel at 944). In rejecting plaintiffs' claim, the Court held that “[b]y statute, service is complete upon mailing (CPLR 2103, subd [b], par 2). Plaintiffs' papers raise no question of fact as to whether proper service was made” ( Engel at 944–945).

Thus, regardless of whether counsels in fact received the District Attorney's motions to compel a saliva sample, service was properly effected. Nevertheless, this court has no reason to disbelieve counsels, and appreciates the prompt and forthright notice of their not having received it. This court, therefore, grants their motion to vacate.

Factual Background

On August 24, 2011, the defendants were arrested and charged with two counts of criminal possession of a weapon in the second degree (PL 265.03[3] ). The District Attorney alleges that the arresting officers approached defendant Attoh's 2007 Infinity and observed defendant Ellington sitting in the rear passenger seat and defendant Joseph in the front passenger seat. The arresting officers then observed a loaded .380 caliber semi-automatic on the rear center arm rest next to where defendant Ellington was seated. Upon further investigation, the officers discovered a second loaded .380 caliber semi-automatic inside the trunk. Defendant Attoh then approached the vehicle and stated to the officers, “[t]his is my car.” Attoh further stated that earlier in the evening, he observed Ellington with the gun and watched Joseph place his belongings in the trunk. “When the officers said it was a black gun in the trunk, I already knew it was his because I have seen him with it before.” ³

The Forensic Biology Unit at the New York City Office of the Chief Medical Examiner (“OCME”) performed DNA analysis on swabs taken from the loaded .380s that revealed the presence of a DNA mixture. That analysis indicated that the defendants may be potential contributors. Because DNA mixtures are not CODIS ⁴ eligible, they cannot be uploaded to the New York State DNA database. The deduced DNA profile, however, is suitable for direct comparison to the defendants' DNA to either include or exclude them as its source. The District Attorney further states that OCME's Forensic Biology Unit has agreed to perform a DNA comparison and that a saliva sample from the defendants is necessary to do so.

Probable Cause and Relevant, Material Evidence

Courts have well established that the District Attorney has broad discretion regarding what evidence to present to a grand jury, when to present it, in what manner to do so and on which charges, if any, to seek an indictment (see CPL 190.50[2],[3], and [4]; cf. People v. Mitchell, 40 A.D.2d 117 [3d Dept 1972] ). In so doing, the People may apply for an order authorizing them to take a sample of defendant's DNA provided there is: “(1) probable cause to believe the suspect has committed a crime, [and] (2) a clear indication' that relevant, material evidence will be found” (Matter of Abe A., 56 N.Y.2d 288, 291 [1982] ).

Regarding probable cause, “a police officer may arrest a person for ... [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise” (CPL 140.10[1][b] ). In other words, “it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ). Probable cause requires only that the arresting officer be aware that some crime may have occurred, not that a specific crime actually occurred (People v. Wilmer, 90 A.D.2d 918 [3d Dept 1982]; People v. Schneider, 58 A.D.2d 817 [2d Dept 1977] ). Thus, the fact that innocent explanations exist for the defendants' conduct is irrelevant ( see People v. Daye, 194 A.D.2d 339 [1st Dept 1993] ). Additionally, it is irrelevant whether the arresting officer neglected to investigate or pursue other possible suspects (People v. Archibald, 192 A.D.2d 537 [2d Dept 1993] ).

A finding of probable cause, then, does not require the submission of a sworn affidavit to corroborate every allegation, or the presence of “concrete,” direct, or consistent evidence, nor does it require proof sufficient to warrant a conviction beyond a reasonable doubt. Rather, probable cause merely requires “information sufficient to support a reasonable belief” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985] ). Thus, at a minimum, the District Attorney must set forth factual allegations sufficient to establish the defendants' connection to the loaded .380 caliber guns.

Here, the arresting officers observed a loaded .380 caliber semi-automatic inside Attoh's vehicle on the rear center arm rest next to where defendant Ellington was seated. Additionally, Ellington had been observed with gun earlier that evening. Joseph, who was also seated inside the vehicle, had been observed placing his belongings in the trunk, where a second loaded .380 caliber semi-automatic was recovered. Although Joseph claims that the factual allegations set forth by the District Attorney fail to establish that the defendants constructively possessed the guns, this court finds that under the totality of the circumstances there is a sufficient basis to establish probable cause (Matter of Chaplin v. McGrath, 215...