People v. Gill

• Decision Date: 06 May 2013
• Citation: 2013 N.Y. Slip Op. 23147,965 N.Y.S.2d 329,40 Misc.3d 246
• Parties: The PEOPLE of the State of New York v. Leonard GILL, Defendant.
• Court: New York Criminal Court

40 Misc.3d 246
965 N.Y.S.2d 329
2013 N.Y. Slip Op. 23147

The PEOPLE of the State of New York
v.
Leonard GILL, Defendant.

Criminal Court, City of New York,
Kings County.

May 6, 2013.

[965 N.Y.S.2d 330]

Office of the District Attorney, Kings County, Charles J. Hynes (ADA Nancy Tosson), for the People.

Sharon Weintraub Dashow, Esq., for defendant.

DENA E. DOUGLAS, J.

[40 Misc.3d 247]Defendant Leonard Gill is charged with criminal possession of marihuana in the fifth degree (PL 221.10) and unlawful possession of marihuana (PL 221.05). Defendant moves as an indigent person to have the People carry out DNA testing of a marihuana cigarette that was alleged by the Arresting Officer as seen in defendant's mouth, on the theory that should

[965 N.Y.S.2d 331]

defendant's DNA not be present on the cigarette it would provide exculpatory evidence to support defendant's claim of innocence. The People have not opposed defendant's motion.¹

A basic tenant of our legal system is that “[i]t is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit” ( People v. Tankleff, 49 A.D.3d 160, 177, 848 N.Y.S.2d 286 [2d Dep't 2007] ). Indeed, “[t]he greatest crime of all in a civilized society is an unjust conviction ...” ( People v. Ramos, 201 A.D.2d 78, 90, 614 N.Y.S.2d 977 [1st Dep't 1994] ).

Two issues arise here, however, that need to be addressed:

1) Do defendant's rights as an indigent person include entitlement to DNA analysis upon demand?

2) Because exculpatory evidence might be present, are the People required to perform a DNA analysis that they might otherwise find unnecessary?

DEFENDANT'S RIGHTS

Gideon v. Wainwright guaranteed the most basic of right of an indigent defendant: the right to representation by counsel. (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963];People v. Margan, 157 A.D.2d 64, 554 N.Y.S.2d 676 [Second Dep't, 1990];People v. Smith, 243 A.D.2d 738, 663 N.Y.S.2d 647 [Second Dep't, 1997] ). Since that time indigent defendants have been found eligible for other entitlements: a constitutional right to a free copy of the minutes of a prior trial or of proceedings before the Grand Jury ( People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103 [1967] ), a free copy of the [40 Misc.3d 248]transcript of a preliminary suppression hearing ( People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 [1966];People v. West, 29 N.Y.2d 728, 326 N.Y.S.2d 388, 276 N.E.2d 226 [1979] ), and the right to receive any and all exculpatory material that the People may have in their possession ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1964] ).

The rights of an indigent defendant are not, however, unlimited. Although an indigent defendant is entitled to a transcript of his/her trial, s/he is not entitled to daily minutes ( People v. Abdullah, 23 N.Y.2d 676, 295 N.Y.S.2d 928, 243 N.E.2d 147 [1968] ). In People v. Jones, 234 A.D.2d 16, 650 N.Y.S.2d 642 [First Dep't, 1996], the trial court...