People v. Goldman

• Decision Date: 23 April 2019
• Docket Number: 9039,Ind. 1114/12
• Citation: 99 N.Y.S.3d 257,171 A.D.3d 581
• Parties: The PEOPLE of the State of New York, Respondent, v. Reginald GOLDMAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 581

99 N.Y.S.3d 257

The PEOPLE of the State of New York, Respondent,

v.Reginald GOLDMAN, Defendant–Appellant.

9039

Ind. 1114/12

Supreme Court, Appellate Division, First Department, New York.

ENTERED: APRIL 23, 2019

Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.

Friedman, J.P., Sweeny, Tom, Moulton, JJ.

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J. at search warrant hearing; Martin Marcus, J. at jury trial and sentencing), rendered June 9, 2016, convicting defendant of manslaughter in the first degree, and sentencing him to a term of 25 years, unanimously reversed, on the law, defendant's motion to suppress DNA evidence obtained by way of a search warrant issued on or about January 31, 2012 granted, and the matter remanded for a new trial.

The hearing court improperly precluded defense counsel from reviewing the People's application for a search warrant to obtain a sample of defendant's saliva for DNA purposes and from participating in the substantive portion of the hearing on the application. Defendant had not yet been charged with the homicide at issue, and he was in custody on unrelated charges. Counsel was notified of the search warrant proceeding because he represented defendant in connection with the other charges.

In general, search warrant applications are made ex parte ( People v. McNair , 85 A.D.3d 693, 694, 926 N.Y.S.2d 101 [1st Dept. 2011], lv denied 17 N.Y.3d 819, 929 N.Y.S.2d 808, 954 N.E.2d 99 [2011] ). However, as explained in Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), special rules apply to evidence to be taken from a suspect's body, such as blood or DNA samples.

The hearing court excluded defense counsel based on its understanding that the discussion of notice in Abe A. applied only to the first "discrete level" of Fourth Amendment analysis identified in that case, involving "the seizure of the person necessary to bring him into contact with government agents," and not the second level, involving "the subsequent search and seizure for the evidence" ( id. at 295, 452 N.Y.S.2d 6, 437 N.E.2d 265 [internal quotation marks omitted] ). The hearing court ruled that defendant's entitlement to notice of the application to seize his person to "bring him into contact with government agents" was satisfied because he was already detained in an unrelated case, and that he was not entitled to notice and opportunity to be heard on the question of whether there was probable cause to support obtaining corporeal evidence from him.

Abe A. 's discussion of due process notice consisted of the following: "At this point it seems appropriate to add, since here there was no exigency, that the course followed by the People on its original application on notice to the suspect was no more than is required by such circumstances. After all, when frustration of the purpose of the application is not at risk, it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed" ( id. at 296, 452 N.Y.S.2d 6, 437 N.E.2d 265 [citations omitted] ).

We agree with defendant that the mere fact that the Abe A. court placed its pronouncement regarding notice in the midst of its discussion of the first level of intrusion at issue there does not establish that the principle announced applied only to that first level. Nothing in the Court's opinion suggests a basis for applying the ...