People v. King
| Decision Date | 06 October 1997 |
| Citation | 663 N.Y.S.2d 610,232 A.D.2d 111 |
| Parties | , 1997 N.Y. Slip Op. 8120 The PEOPLE, etc., Respondent, v. Jermaine KING, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert N. Isseks, Middletown, for appellant.
Jeanine Pirro, District Attorney, White Plains (Gregory H. Babikian and Maryanne Luciano, of counsel), for respondent.
Before BRACKEN, J.P., and RITTER, SANTUCCI and ALTMAN, JJ.
On this appeal we consider the question of whether a blood sample taken from a defendant in the investigation of an uncharged crime may be used as evidence against him in another prosecution. On the facts of this case, we conclude that this question should be answered in the affirmative.
By Westchester County Indictment No. 93-0689 the defendant was charged with two counts of rape in the first degree, two counts of sodomy in the first degree, robbery in the first degree, and burglary in the first degree. The charges arose out of an incident which occurred on May 22, 1991, in Yonkers, New York, when the then-14-year-old defendant entered the complainant's apartment (hereinafter referred to as the May complainant), held a knife to her throat, forced her to submit to sexual intercourse and oral sex, and stole $140 from the premises. As part of their investigation the police removed the sheets which were on the complainant's bed during the attack, as well as the underpants and nightshirt she was wearing at that time.
Three months later, in August 1991, detectives from the Police Department of the City of Yonkers responded to another reported rape and robbery which occurred in an apartment located in the lower portion of a house occupied by the defendant and his family. The victim of that attack (hereinafter referred to as the August complainant) described her assailant as a "[t]all, thin [young] black male", a description similar to the one which had been provided to the police by the May complainant. The August complainant also stated that her assailant had a distinctive body odor which she described as an "industrial odor".
After interviewing the August complainant and taking into evidence the complainant's nightgown, the police questioned the defendant, Jermaine King, and obtained permission from a visiting aunt to search the King apartment. In the course of this search the detectives seized some mothballs from one of the defendant's dresser drawers. Also taken into evidence was some discarded clothing which was found in the basement of the house where the trash cans were located. The August complainant later identified the mothball smell as the "industrial odor" which had emanated from her assailant, and the clothing as that which had been worn by her assailant during the attack. (The defendant was ultimately not indicted for the August 22, 1991, incident).
Shortly thereafter the police contacted the office of the Westchester County District Attorney to coordinate the two rape investigations. It was then determined that the bedding and clothing gathered from both reported rapes had been delivered to the Westchester County Department of Laboratories and Research by the Yonkers Police. The District Attorney's office contacted the laboratory and spoke to a forensic scientist, an expert in the field of DNA analysis, who advised that there was sufficient material in each of two items bearing semen stains (one from each case) to conduct a DNA analysis for comparison with a blood sample.
Based upon the scientific opinion offered by the crime laboratory, the People moved for an order compelling the defendant to permit the taking of blood samples from his body for a comparison with tests to be performed on the nightgown belonging to the August complainant. The People concluded that there was no probable cause to secure an order compelling the defendant to give a blood sample with respect to the alleged attack on the May complainant.
The affirmation of the Assistant District Attorney in support of the motion set forth other information which had been gathered in connection with the August incident--e.g., that the perpetrator had said things during the attack which required a knowledge of the complainant's personal background and her recent daily activities in the apartment building, and that a neighbor had seen the defendant near the building's trash cans at a time immediately after the perpetrator had fled the complainant's apartment. The motion papers made no mention of the rape which allegedly took place in May 1991.
In a well-reasoned decision dated April 3, 1992, the County Court, Westchester County (LaCava, J.), determined that a sufficient showing had been made by the People to take the requested blood samples from the defendant for the purpose of forensic testing and analysis. Thereafter the court entered an order to this effect dated December 16, 1992. In the order the court noted that it had "been advised that defense counsel does not oppose this application, and has reviewed this order before the Court has signed it".
The blood samples were obtained on December 29, 1992. The District Attorney's office directed the laboratory to analyze and compare the defendant's blood against the stains recovered from both cases. When an analysis of the stain on the evidence recovered from the August incident was attempted, it was discovered that the stain did not contain sufficient material for a DNA analysis. However, analysis of the stain from the alleged rape of the May complainant revealed a positive match with the defendant's blood. On May 25, 1993, the defendant was arrested in connection with the May 1991 incident.
Prior to trial the defendant filed an omnibus motion, which sought, inter alia, to suppress the results of the DNA analysis. The defendant argued that probable cause for the issuance of the order to take a blood sample from him (hereinafter the blood order) was predicated upon evidence seized as a result of an illegal arrest and interrogation, and an unlawful search of his apartment. The defendant also argued that the result of the DNA analysis must be suppressed because the application for the blood order was based on information allegedly linking the defendant to the alleged August 1991 rape, and not upon probable cause that he had committed the crime at bar, i.e., the May 1991 rape.
The County Court ordered that a pre-trial evidentiary hearing be conducted to determine the admissibility of the DNA evidence. Based upon the testimony adduced at that hearing, the court denied the motion to suppress. In pertinent part the court reasoned as follows:
"[S]ome of the information averred in support of the People's application appears to have been infected by one or more constitutional infirmities, which would render it inadmissible at trial and unavailable for consideration of this Court's inquiry into the validity of the Blood Order. However, assuming--without deciding--that such infirmities have been established, the Court finds that, 'the application contained sufficient lawfully obtained information, untainted by and independent of the illegality to constitute probable cause'
* * *
. 161 Misc.2d 448, 452-453, 613 N.Y.S.2d 545.
After trial the jury returned a verdict convicting the defendant of rape in the first degree (two counts), sodomy in the first degree, and a related charge in connection with the May incident.
On appeal the defendant again argues that the results of the DNA analysis should have been suppressed because the application for the blood order was based upon illegally-obtained evidence, and thus there was inadequate probable cause to issue such an order in connection with the attack upon the May complainant. He also contends that the prosecutor was aware that the blood/semen sample from the August incident contained insufficient serological evidence with which to compare a sample of the defendant's blood. Therefore, defendant concludes that the People, in bad faith, used the probable cause that existed in connection with the uncharged August 22, 1991, attack to secure the...
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