People v. Kluge

• Citation: 180 A.D.3d 705,116 N.Y.S.3d 363
• Decision Date: 05 February 2020
• Docket Number: 2011–11921,Ind.No. 1410–10
• Parties: The PEOPLE, etc., Respondent, v. John KLUGE, Appellant.
• Court: New York Supreme Court Appellate Division

180 A.D.3d 705
116 N.Y.S.3d 363

The PEOPLE, etc., Respondent,
v.
John KLUGE, Appellant.

2011–11921
Ind.No. 1410–10

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

Argued - September 3, 2019
February 5, 2020

116 N.Y.S.3d 367

Thomas Theophilos, Buffalo, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo and Glenn Green of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

180 A.D.3d 705

Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered December 14, 2011, convicting him of rape in the first degree, criminal sexual act in the first

116 N.Y.S.3d 368

degree, and burglary in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress DNA evidence.

180 A.D.3d 706

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

In May 2010, the defendant was arrested and charged with, inter alia, burglary in the first degree, rape in the first degree, and criminal sexual act in the first degree. DNA testing matched his DNA to DNA collected from a complainant who was attacked and raped in her garage in October 2009. After a trial, the jury convicted the defendant of those charges.

The defendant failed to preserve for appellate review his contention that count 3 of the indictment was duplicitous, and we decline to review this contention in the exercise of our interest of justice jurisdiction (see People v. Bonilla, 151 A.D.3d 735, 737, 58 N.Y.S.3d 48 ; cf. People v. Kaye, 137 A.D.3d 938, 940, 26 N.Y.S.3d 593 ).

The defendant's contention that count 3 of the indictment is jurisdictionally defective is without merit. The defendant contends that while count 3 of the indictment charges him with violating Penal Law § 130.50(1), which proscribes, inter alia, engaging in "oral sexual conduct" with another person by forcible compulsion, the indictment alleged that the defendant engaged in oral sexual "contact" with the complainant, rather than oral sexual "conduct." However, the statutory definition of "sexual contact" ( Penal Law § 130.00[3] ) is broad enough to include "oral sexual conduct" ( Penal Law § 130.00[2][a] ; see People v. Colsrud, 144 A.D.3d 1639, 1640, 42 N.Y.S.3d 500 ). Thus, as the indictment charged acts that encompassed the act of oral sexual conduct, it cannot be said that the defendant lacked fair notice of the charges against him.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the first degree beyond a reasonable doubt. Contrary to the defendant's contention, the evidence was legally sufficient to prove that he caused "physical injury" to the complainant within the meaning of Penal Law § 10.00(9) (see People v. Webster, 140 A.D.3d 1196, 1197, 34 N.Y.S.3d 502 ). The evidence presented at trial established that the complainant experienced bruising on her inner and outer cheeks and her inner and outer lips, abrasions on her throat, and bleeding and bruising behind her left ear that caused the examining nurse to suspect a basilar skull fracture. The complainant described her ear drum as having been punctured and testified that it hurt for weeks. Additionally, the medications that the complainant was given to prevent pregnancy and sexually-transmitted diseases, some of which she took for two months, made her nauseated.

There is no merit to the defendant's contention that he was

180 A.D.3d 707

arrested on an unrelated assault charge without probable cause, and that the subsequently acquired evidence against him should therefore have been suppressed. A boyfriend of the defendant's sister had complained to the police that the defendant had assaulted him. The boyfriend was personally acquainted with the defendant, whom he identified to the police as the individual who assaulted him (see People v. Anderson, 146 A.D.2d 638, 639, 536 N.Y.S.2d 543 ). Therefore, when a police officer observed the defendant as a passenger in a vehicle that had been stopped for a traffic infraction, and the defendant

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confirmed his name to the officer, there was probable cause to arrest him (see id. at 639, 536 N.Y.S.2d 543 ). Moreover, contrary to the defendant's contention, the vehicle in which he was a passenger was properly stopped by the police. "[A]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred, even if the underlying reason for the stop was to investigate another matter unrelated to the traffic violation" ( People v. Davis, 103 A.D.3d 810, 811, 962 N.Y.S.2d 174 [internal quotation marks omitted]; see People v. Sluszka, 15 A.D.3d 421, 423, 790 N.Y.S.2d 55 ). Here, the record supports the hearing court's determination to credit a police officer's testimony that he observed the vehicle in which the defendant was a passenger run a stop sign, and that he radioed that information to a fellow officer (see People v. Rosario, 78 N.Y.2d 583, 588, 578 N.Y.S.2d 454, 585 N.E.2d 766 ) who then stopped the vehicle (see People v. Davis, 103 A.D.3d at 811, 962 N.Y.S.2d 174 ).

We agree with the County Court's determination declining to suppress the DNA evidence obtained from a piece of gum that the defendant discarded while he was in custody on the assault charge. A defendant seeking suppression of evidence must establish standing by demonstrating a legitimate expectation of privacy in the place or item searched (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; People v. McCullum, 159 A.D.3d 8, 12, 70 N.Y.S.3d 222, affd 34 N.Y.3d 1022, 114 N.Y.S.3d 773, 138 N.E.3d 502 ). "This burden is satisfied if the [defendant] subjectively manifested an expectation of privacy with respect to the ... item searched that society recognizes to be objectively reasonable under the circumstances" ( People v. Burton, 6 N.Y.3d 584, 588, 815 N.Y.S.2d 7, 848 N.E.2d 454 ; see People v. Ramirez–Portoreal, 88 N.Y.2d at 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; People v. McCullum, 159 A.D.3d at 12, 70 N.Y.S.3d 222 ). "Where a defendant abandons property, there is no search or seizure" ( People v. Hogya, 80 A.D.2d 621, 621, 436 N.Y.S.2d 62 ; see People v. Burkett, 98 A.D.3d 746, 748, 950 N.Y.S.2d 194 ). However, "if the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes ‘fruit’ of the poisonous tree" ( People v. Ramirez–Portoreal, 88 N.Y.2d at 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 ). Moreover, "[t]he police may engage

180 A.D.3d 708

in a ruse with respect to a defendant as long as it is ‘not coercive or so fundamentally unfair as to deny due process’ " ( People v. LaGuerre, 29 A.D.3d 820, 822, 815 N.Y.S.2d 211, quoting People v. Amador, 11 A.D.3d 473, 474, 782 N.Y.S.2d 371 ). Here, the defendant, who was in custody on the assault charge, had no reasonable expectation of privacy in the piece of chewed gum that he freely discarded into a trash can upon being told by a police officer that he had to get rid of it before being searched (see People v. White, 153 A.D.3d 1369, 1370, 61 N.Y.S.3d 603 ). The defendant was not forced or coerced into discarding the gum as there were other options he could have exercised in order to remove it before the search. Moreover, once the defendant "abandoned" the chewed gum by voluntarily discarding it into the trash can, there was no search or seizure (see People v. Burkett, 98 A.D.3d at 748, 950 N.Y.S.2d 194 ; People v. Hogya, 80 A.D.2d at 621, 436 N.Y.S.2d 62 ).

We also agree with the County Court's determination declining to suppress the DNA evidence derived from a buccal swab. The record demonstrates that the defendant voluntarily agreed to

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give a buccal sample (see People v. Dail, 69 A.D.3d 873, 874, 894 N.Y.S.2d 78 ). The testimony presented at the suppression hearing established that the defendant was only in custody for approximately 2½ hours when he consented to the buccal swab (see id. at 874, 894 N.Y.S.2d 78 ). He was asked if he would consent and was not told that he would not be allowed to leave if he did not consent. The defendant read the consent form, which informed him of his right to refuse to provide a buccal sample, and signed it. The defendant remained cooperative throughout the time he was in custody. Considering the totality of the circumstances, the defendant's consent was voluntary and not coerced (see id. ).

At the suppression hearing, the People established that the lineup identification...