People v. Fomby
| Decision Date | 20 December 2012 |
| Citation | 956 N.Y.S.2d 633,103 A.D.3d 28,2012 N.Y. Slip Op. 08827 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Christopher A. FOMBY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
103 A.D.3d 28
956 N.Y.S.2d 633
2012 N.Y. Slip Op. 08827
The PEOPLE of the State of New York, Respondent,
v.
Christopher A. FOMBY, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Dec. 20, 2012.
Maura Kennedy–Smith, Ithaca, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: MERCURE, J.P., ROSE, KAVANAGH, STEIN and EGAN JR., JJ.
MERCURE, J.P.
[103 A.D.3d 28]Appeal from a judgment of the County Court of Chemung County (Buckley, J.),
[956 N.Y.S.2d 634]
rendered October 4, 2010, upon a verdict convicting defendant of the crimes of burglary in the second degree and grand larceny in the third degree.
[103 A.D.3d 29]In October 2009, police investigator Nicholas Demuth applied for a warrant to take a buccal swab from defendant, who was incarcerated and suspected of committing multiple burglaries. One of the victims of the burglary at issue in this case, which took place in the Town of Elmira, Chemung County, found spots of blood on a blanket, bed skirt and robe after the break-in. Demuth sought to compare defendant's DNA to that in the blood stain evidence from the victims' home. The People concede that the search warrant application was made without notice to defendant, and that there were no exigent circumstances that prevented notice. Nevertheless, County Court issued the search warrant, and the buccal swab was administered on the same day.
Thereafter, defendant was charged in an indictment with one count of burglary in the second degree and one count of grand larceny in the third degree. County Court denied his subsequent motion to suppress the DNA evidence and, following trial, he was convicted as charged. Defendant was sentenced, as a persistent felon, to an aggregate term of 20 years to life in prison. The sentence imposed on this conviction was set to run concurrently with that imposed on a separate conviction (People v. Fomby, 101 A.D.3d 1355, –––N.Y.S.2d –––– [103761, decided herewith] ). Defendant appeals and, because we conclude that the DNA evidence should have been suppressed, we now reverse.
“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State” ( Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966] ). Therefore, a search warrant authorizing an intrusion into the human body for the purpose of obtaining corporeal evidence, such...
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