People v. Forte, 2022-22066

CourtNew York City Court
Writing for the CourtF. Christopher Giruzzi, J.
Decision Date09 March 2022
PartiesThe People of the State of New York, Plaintiff, v. Richard J. Forte, Defendant.
Docket NumberCR-02368-18,CR-02367-18,2022-22066

The People of the State of New York, Plaintiff,

Richard J. Forte, Defendant.

No. 2022-22066

Docket Nos. CR-02367-18, CR-02368-18

City Court of Utica, Oneida County

March 9, 2022

Scott D. McNamara, Oneida County District Attorney (Rebecca G. Kelleher, Assistant District Attorney), for the People

Christopher J. Pelli, Esq., for the defendant

Anthony J. Lafache, Esq., for the defendant

F. Christopher Giruzzi, J.

Defendant, Richard J. Forte, was convicted after a bench trial in Utica City Court of Making a False Written Statement (PL §210.45), Criminal Tampering in the Third Degree (PL §145.14) and Criminal Mischief in the Fourth Degree (PL §145.00). The defendant appealed to an intermediate appellate court (Oneida County Court, J. Bauer) arguing among other issues, that this court erred in finding that it lacked jurisdiction to hear the issue of suppression of certain DNA evidence. The defendant sought to suppress genetic information from a DNA sample obtained from him by an order issued pursuant to CPL §240.40(2)(b)(v) by Oneida County Court Judge Michael L. Dwyer on March 9, 2018. The matter was held and remitted to this court by Judge Robert J. Bauer for the issuance of a written decision with specific findings of fact and conclusions of law relative to defendant's suppression motion of his DNA sample. The intermediate appellate court provided further guidance in this regard and set forth a review by Utica City Court may "simply comprise a review of the hearing transcript of the proceeding in County Court coupled with Judge Dwyer's subsequent written decision, or such other process and materials relative to this issue the court deems appropriate." Based upon the remittal order the court undertook a review of the moving papers with attached exhibits, affirmations and transcript of the proceeding, in making the findings herein.

Pre-Charge Procedural History

On February 9, 2018 Oneida County First Assistant District Attorney Dawn Catera Lupi filed an Order to Show Cause (hereinafter referred to as OTSC) in Oneida County Court with a supporting affidavit requesting an order directing the respondent, Richard J. Forte, to supply a sample of his DNA. [1] Hon. Michael L Dwyer granted the OTSC and directed the respondent show cause before the court on February 20, 2018 at 9:30 AM to allow for counsel to be heard as to why a final order should not be entered directing the taking of a DNA sample, as it would not involve an unreasonable intrusion of his person. The court heard oral argument as to the relief being requested on the return date of the OTSC and on February 23, 2018. A full fact-finding hearing was then conducted on March 6, 2018 at which time the People called six witnesses who testified, and four exhibits were offered and received into evidence. The exhibits received consisted of a text message, an excerpt from a logbook, lab reports with the order to show cause along with a compact disc. [2]

On March 9, 2018 the Oneida County Court issued an 18-page written decision applying the factors set forth in Matter of Abe A., 56 N.Y.2d 288 [1982], upon determining Mr. Forte must provide a buccal swab of his saliva. Specifically, Judge Dwyer found the People of the State of New York had: (1) satisfied their burden in establishing there was probable cause to believe the respondent committed the offense of Criminal Mischief in the Fourth Degree (2) established 'a clear indication' that relevant evidence would result from the genetic testing (3) showed the method to obtain the evidence would be safe, reliable, and be minimally intrusive. The court also considered the seriousness of the crime charged, importance of the evidence along with the respondent's constitutional right to be free from bodily intrusion. After consideration of all these factors Judge Dwyer directed the respondent to appear at the Oneida County Courthouse on March 15, 2018 at 9:30 AM to supply a buccal swab of his saliva to a police officer of the Utica Police Department or an investigator from the Oneida County District Attorney's Office.

Post-Charge Procedural History

The People filed charges against Mr. Forte (hereinafter referred to as 'defendant') on March 29, 2018. Each of the accusatory instruments were signed by Investigator Joseph Trevisani and were based upon his investigation into the matter along with the lab report from the New York State Police Forensic Investigation Center. The laboratory report described the physical and forensic evidence linking the defendant to the crimes charged and was made part of a supplemental report dated March 27, 2018, which included the buccal swabs taken from the defendant.

On July 12, 2018 the defendant filed an omnibus motion including, inter alia, a motion to suppress the DNA evidence ordered by Judge Dwyer by making three separate arguments. First, the defendant argued the OTSC was an improper "vehicle" for the relief being requested and even assuming arguendo, that it was proper, the show cause order should not have been granted as the allegations in the supporting documents did not demonstrate the existence of probable cause to believe the defendant committed any crime. Secondly, the defendant asserts the proper venue for an application seeking genetic testing is one wherein an accusatory charging a felony or misdemeanor is pending, and the prosecution engaged in "forum shopping" by making their request to a county court judge. Lastly, the defendant requested suppression of the genetic evidence as the crime of criminal mischief is not a "serious crime" which can serve as the basis for an order directing the taking of a buccal swab sample.

The People argued the bodily samples from the defendant were obtained in accordance with the applicable provisions of the Criminal Procedure Law and at the hearing the requisite criteria was established for the court to properly issue an order directing DNA testing.

On August 15, 2018, in a written decision on the omnibus motion this court held the following:

Suppression of Physical Evidence

Defendant has moved for suppression of evidence consisting of a DNA sample obtained from him by an order issued pursuant to CPL § 240.40 by the Hon. Michael L Dwyer on March 9, 2018. The suppression motion is, in essence and reality, an appeal from the order and, as such, cannot be heard in this court.

The order was issued following a hearing conducted on March 8, 2018 in Oneida County Court. Oneida County Court is a criminal court. ("The 'criminal courts' of this state are comprised of the superior courts and the local criminal courts. 'Superior court' means: (a) The supreme court; or (b) A county court." CPL § 10.10 (1-2)) The hearing was a criminal proceeding, being a "proceeding which... occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation." CPL § 1.20 (18) (emphasis added) An appeal by a defendant from an order of a criminal court, either by right or permission is taken to an "intermediate appellate court" See CPL § 450.10, 450.15 "'Intermediate appellate court' means any court possessing appellate jurisdiction, other than the court of appeals." CPL § 1.20 (22) "An appeal from a judgment, sentence or order of a county court must be taken to the appellate division of the department in which such judgment, sentence or order was entered." CPL § 450.60 (2) This court is without jurisdiction to review the County Court order.

Findings of Fact and Conclusions of Law

As the procedural history of the pending matter is complex in nature, the court is compelled to review the various aspects of the pre-accusatory request for the underlying genetic sample, the court's authority to conduct such a review along with making findings as it relates to the defendant's suppression requests.

a. Authority to issue a pre-accusatory genetic testing order

Under most circumstances the discovery process commences after an accusatory instrument is filed however, situations do arise where a court may grant an application for a search warrant, wiretap or authorization to obtain DNA samples prior to charges being brought. The process begins with the filing of an OTSC requesting an individual to provide corporeal evidence. Such a request is a criminal proceeding in and of itself, despite whether an accusatory has been filed. Criminal Procedure Law §1.20[18][b] states a criminal proceeding is one which "occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation". Since there was a criminal investigation pending along with a prospective criminal action when the application for DNA was made, the method to obtain the evidence was governed by CPL §240.40 [2][b][v] [3]. It must be noted that not all courts are permitted by statute to entertain requests of this nature as CPL §240.40[2] states:

"Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment superior court information, prosecutor's information information, or simplified information

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