People v. Mendez

• Decision Date: 13 October 2021
• Docket Number: Indictment No. 537/21
• Citation: 155 N.Y.S.3d 534,73 Misc.3d 715
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Luis MENDEZ, Defendant.
• Court: New York Supreme Court

73 Misc.3d 715
155 N.Y.S.3d 534

The PEOPLE of the State of New York, Plaintiff,
v.
Luis MENDEZ, Defendant.

Indictment No. 537/21

Supreme Court, Bronx County, New York.

Decided on October 13, 2021

Darcel D. Clark, District Attorney, Bronx (Alexander Mangano of counsel), for plaintiff.

Bronx Defenders, Bronx (Oded Oren of counsel), for defendant.

Martin Marcus, J.

73 Misc.3d 716

The defendant was indicted by the Grand Jury of Bronx County and charged

155 N.Y.S.3d 535

with Criminal Possession of a Weapon in the Second Degree and related crimes. In his omnibus motion, the defendant moved, inter alia , to suppress the DNA evidence obtained from a cigarette butt, arguing that even if the butt was intentionally abandoned, he left whatever DNA was on it "unintentionally," that he did not waive his privacy rights in his DNA material or DNA information, and that extracting and analyzing the DNA evidence constituted a separate and second search to which he did not consent. This Court rejected this argument, relying in part on People v. Sterling , 57 A.D.3d 1110, 1111-12, 869 N.Y.S.2d 288 (2d Dept. 2008), in which the court found that the defendant had not subjectively exhibited an expectation of privacy in a milk carton from which he had drunk, and once the police had lawfully obtained it, "he no longer retained any expectation of privacy in the discarded genetic material [it contained]." The defendant now moves to reargue his motion.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." CPLR § 2221(d)(2). Explaining that he is not seeking to suppress the DNA molecule obtained from the cigarette butt, and instead "the information extracted from that DNA — the reports, analysis, and inferences obtained from the analysis of the physical molecule," the defendant insists, as he had in his omnibus motion, that the decision of the Supreme Court in Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), requires a different result. The People oppose the defendant's motion, relying on their response to the defendant's omnibus motion.

In Carpenter , the Government attempted to invoke the third party exception to the Fourth Amendment to a defendant's historical cell-cite location information obtained from a cell phone service provider, which the defendant had "given" to the

73 Misc.3d 717

service provider by using his cell phone. See Smith v. Maryland , 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 ("When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and exposed that information to its equipment in the ordinary course of business") (internal quotation marks omitted). In rejecting the Government's argument, the Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]." Carpenter , 138 S.Ct. at 2217. Quoting from Carpenter , id. at 2224, the defendant argues that it "articulated a new rule: an individual has an expectation of privacy in their information if the information (1) is of ‘deeply revealing nature,’ (2) of substantial ‘depth, breadth, and comprehensive reach,’ and (3) can easily be collected." The defendant insists that the DNA material obtained from the cigarette butt in this case fits within that new rule because

a person's DNA holds deeply-revealing and vast amounts of information about them and their family — some of it that the person themselves might not know. To a greater or lesser extent, DNA information provides insights into a person's biological sex, sexual orientation, ethnic background, disease tendency, intelligence, political views, ancestry information and the existence of relatives that the person themselves might not be aware of, among others. (Footnotes omitted.)

In support of his argument, the defendant cites cases holding that a Fourth Amendment search occurs when a substance is obtained from which DNA can be extracted. In

155 N.Y.S.3d 536

Skinner v. Railway Labor Executives’ Ass'n , 489 U.S. 602, 618, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), for example, the Supreme Court held that ...