People v. Goldman

• Decision Date: 22 October 2020
• Docket Number: No. 62,62
• Citation: 159 N.E.3d 772,35 N.Y.3d 582,135 N.Y.S.3d 48
• Parties: The PEOPLE of the State of New York, Appellant, v. Reginald GOLDMAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 582

159 N.E.3d 772

135 N.Y.S.3d 48

The PEOPLE of the State of New York, Appellant,

v.Reginald GOLDMAN, Respondent.

No. 62

Court of Appeals of New York.

October 22, 2020

OPINION OF THE COURT

Chief Judge DiFIORE In Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), we sanctioned the use of a search warrant pursuant to CPL article 690 for the seizure of corporeal evidence from an uncharged suspect. Since the seizure required a bodily intrusion, the Court, using a Fourth Amendment reasonableness analysis, set forth a three-prong standard, requiring the People to demonstrate probable cause to believe the individual committed the crime, a "clear indication" that material and relevant evidence will be found, and that the means of obtaining the evidence is "safe and reliable." We explained that, in balancing the need for a search warrant against any unwarranted intrusion, a court "must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other ( id. at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 ). Generally, when the corporeal evidence sought is not subject to alteration or destruction, there is no exigency and the search warrant application must be brought on notice to the suspect (see id. at 295–296, 452 N.Y.S.2d 6, 437 N.E.2d 265 ). The primary issue presented by this appeal is whether Abe A. and the constitutional right against unreasonable search and seizure requires that, prior to a neutral magistrate's issuance of a search warrant to obtain DNA evidence from a suspect's body by buccal swab, a suspect must receive—in addition to notice and the opportunity to be heard—discovery as to the demonstration of the probable cause in the warrant application and an adversarial hearing. We hold that there was no violation of any constitutional rights, as defendant, provided with an opportunity to be heard on the issuance of the warrant, directed no argument to the magistrate as to the reasonable nature of the bodily intrusion sought.

I.

Defendant was a member of Young Uptown Boys (YUB), a subset of a larger Bronx crew, Young Gunnaz (YG). At 12:40 am on August 14, 2010, defendant and three other individuals drove into a rival crew's territory and defendant, exiting the front passenger seat of a vehicle, shot and killed the 16–year–old victim, who happened to be standing outside a residential building. The shooting was captured on surveillance video, and depicted a gold Nissan Maxima, occupied by four individuals. The shooter's identity could not be determined from the surveillance footage. However, two days after the homicide, police located the driver of the vehicle, KG, who later became a cooperating witness and identified defendant as the shooter.

KG's vehicle was seized and processed for DNA evidence. The Office of the Chief Medical Examiner (OCME) tested the evidence and generated DNA profiles, including an unknown profile from Male Donor A on a sample taken from the interior front passenger seat door handle and a mixture of DNA from the front passenger armrest handle. In the meantime, the police obtained surveillance footage from defendant's apartment building, recorded minutes after the shooting, corroborating KG's narrative that the four occupants of the gold Maxima went to the building after the shooting.

On January 31, 2012, the People sought a search warrant to obtain a saliva sample for DNA testing from defendant, who was in custody in Rikers Island on unrelated charges. The supporting affidavit, submitted by the investigating officer, alleged that, based on surveillance footage and information provided by known witnesses based on their direct knowledge, defendant was the shooter who exited the front passenger seat of the Maxima and killed the victim. The application sought an exemplar of defendant's DNA for comparison to the DNA profiles the lab generated from the samples taken from the front passenger area of the Maxima, as evidence of his commission of the murder. The affidavit alleged that a police officer would take the saliva sample and deliver it to OCME and, citing to Abe A. and other case law, represented that the method of seizure is safe and reliable.

The People notified counsel who was representing defendant on the unrelated charges of the pending application and that attorney appeared at the hearing on defendant's behalf. At that time, the court noted that, although the People "elected to notify the defense counsel" of the search warrant application, "this is an ex-part[e] application." The court observed that during the proceeding the cooperating witness in this murder investigation would likely be identified on the record, making it "anomalous" that defense counsel would be present. Nonetheless, the court stated that it would "allow [defense counsel] to make your objection to the substantive issues."

Based on Abe A., counsel argued that, where, as here, there is no exigency in the seizure of the DNA evidence, due process required that a suspect be given notice and an opportunity to challenge the search warrant "before his constitutional right to be let alone may be infringed." Notwithstanding the absence of an accusatory instrument, defense counsel also asserted that the discovery procedure under (former) CPL 240.40¹ should apply—and that he should be permitted to review the warrant application, even if it was only a redacted copy. Counsel directed no argument to either the safety, reliability, or physical discomfort of the method to be used to seize saliva through a buccal swab or that the swab would "put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained" ( Birchfield v. North Dakota, 579 U.S. ––––, 136 S Ct 2160, 2177, 195 L.Ed.2d 560 [2016] ). The court then excluded counsel from the remainder of the hearing.

The court signed the search warrant, concluding that there was "probable cause and more" to believe that defendant committed the crime and was the source of the DNA profile in the vehicle. OCME analyzed defendant's exemplar, compared it to the profile of the primary donor from a mixture taken from the front passenger seat area of the Maxima and concluded that the profiles were the same. In March 2012, defendant was charged by indictment with two counts of murder in the second degree, manslaughter in the first degree and criminal possession of a weapon in the second degree.

Prior to trial, defendant moved to suppress the DNA evidence. He argued that the court refused to hear from his attorney on the issue of probable cause. Defendant, without the benefit of access to the search warrant application, made the conclusory assertion that the application failed to set forth probable cause that he committed the homicide and failed to articulate how the DNA profile related to the homicide investigation. Despite a second opportunity to do so, defendant directed no argument to the safety, reliability, or physical discomfort of the use of the buccal swab to obtain his DNA, the value of DNA comparative evidence or the adequacy of any applicable restrictions on the use of his DNA sample—instead, defendant contested only the "first[ ] and second requirements set forth in Matter of Abe A. " The court denied the suppression motion, adhering to its conclusion that probable cause had been established to support the issuance of the warrant.

At trial, the People sought to introduce a redacted version of a music video in which defendant appeared entitled, "Mobbin Out." The video, which had been uploaded to YouTube on August 25, 2010, depicted defendant rapping about "run[ning] up" into a rival crew's "house" and was offered as probative of defendant's motive. Defendant did not contest that he was the person depicted in the video, but argued that the video was inadmissible on the ground that it was not properly authenticated, as the People could not prove when it had been created. The court held that the video was admissible, subject to connection with KG's testimony as to the timing of its creation.

KG testified about the murder, including details of defendant's participation. He also related that defendant called him the morning after the shooting to declare that the victim was dead and to invite him to attend the filming of a video later that day. KG did not attend the filming, but believed that the name of the video was "Mobbing Out." He affirmed that the video in evidence accurately represented what he had previously viewed on YouTube and identified, from the video, defendant and the two rear-seat passengers who had been in the Maxima at the time of the shooting. He also confirmed that a social media handle that appeared as text on the video was associated with defendant's nickname—J Smooth—as well as the name of defendant's crew (YUB).

Defendant was convicted, upon a jury verdict of manslaughter in the first degree. The jury acquitted defendant of second-degree murder.

The Appellate Division reversed, granted defendant's motion to suppress the DNA evidence and remanded for a new trial ( 171 A.D.3d 581, 99 N.Y.S.3d 257 [1st Dept. 2019] ). The Court held that Supreme Court erred in precluding defense counsel from reviewing the search warrant application and in denying counsel the opportunity to be heard on the issue of probable cause. The Court rejected the People's argument that Abe A. requires notice only for the first level of intrusion—seizure of the person—and held that the due process requirement of notice and an opportunity to be heard is likewise required for the subsequent search and seizure of corporeal evidence. The Court also held that the People failed to adequately authenticate the YouTube video under People v. Price, 29 N.Y.3d 472, 58 N.Y.S.3d 259, 80 N.E.3d 1005 (201...