People v. Middleton

• Decision Date: 27 October 1981
• Citation: 429 N.E.2d 100,54 N.Y.2d 42,444 N.Y.S.2d 581
• Parties: , 429 N.E.2d 100 The PEOPLE of the State of New York, Respondent, v. Lymus MIDDLETON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 581

444 N.Y.S.2d 581

54 N.Y.2d 42, 429 N.E.2d 100

The PEOPLE of the State of New York, Respondent, v. Lymus MIDDLETON, Appellant.

Court of Appeals of New York.

Oct. 27, 1981.

Harvey J. Michelman and Perry S. Reich, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Victoria Lea Smith and Robert M. Pitler, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

The reliability of bite mark evidence as a means of identification is sufficiently established in the scientific community to make such evidence admissible in a criminal case, without separately establishing scientific reliability in each case, but subject, of course, to the establishment by foundation evidence of the authenticity of the materials used and propriety of the procedure followed in the particular case and to cross-examination intended to test the reliability of the conclusion reached in that case. The order of the Appellate Division, 76 A.D.2d 762, 428 N.Y.S.2d 688, should, therefore, be affirmed.

Defendant Middleton worked in the maintenance engineering department at Mount Sinai Hospital in New York City. His supervisor, Gladstone Scale, was found on the floor of his office on December 16, 1976 at about 9:30 P.M. and pronounced dead at 10:00 P.M. Defendant was arraigned at 9:00 A.M. the next morning on a felony complaint. Four days thereafter his attorney demanded a preliminary hearing pursuant to CPL 180.60. The hearing was several times adjourned on the representation of the People that the case was being prepared for presentation to the Grand Jury.

Autopsy made by the chief medical examiner, Dr. Dominick Di Maio, revealed five distinct bite marks on Scale's back. Though the matter was then still pending in the Criminal Court, the People by motion returnable January 10, 1977 in Supreme Court sought an order directing defendant to submit to examination of his mouth and the making of a cast or mold by Dr. Lowell J. Levine, a dentist associated with the office of the chief medical examiner. Defendant's attorney opposed that motion on the grounds that the Supreme Court was without jurisdiction, that the People had failed to establish probable cause to believe defendant had committed the crime, and that the examination and casting would violate defendant's Fifth Amendment rights. Those objections having been overruled, the examination and casting took place and the Grand Jury after presentation to it of that as well as other evidence indicted. A motion addressed to the sufficiency of the Grand Jury minutes was then made and denied for failure to make the requisite factual showing that there was reasonable cause to believe the evidence before the Grand Jury insufficient. Several months thereafter, defendant's attorney sought suppression of admissions made by defendant in a statement to the District Attorney during the early morning hours of December 17, 1976, and, after hearing, that motion was denied. No pretrial motion for suppression of the bite mark evidence was ever made.

During the course of the trial defendant argued for suppression of the casts of defendant's teeth on the ground that the order for the taking of them violated defendant's "Fifth and Fourteenth Amendment rights against self-incrimination", for a hearing with respect to the reliability of testimony concerning bite marks and for the exclusion of Dr. Levine's testimony on the latter ground. At the end of the People's case defendant moved to strike Dr. Levine's testimony on the ground that it lacked scientific validity, and to dismiss the indictment for insufficiency of evidence on the ground that Dr. Levine's testimony should not have been submitted to the Grand Jury. The Trial Judge ruled that no hearing on reliability was required in light of decisions and literature on the subject, that the suppression motion was governed by the order for examination of defendant and the taking of a cast as the law of the case, and the sufficiency of the indictment, by the denial of so much of the omnibus motion as sought inspection of the Grand Jury minutes.

Convicted of manslaughter in the first degree after a jury trial, defendant appealed to the Appellate Division, First Department, which, affirming the suppression court's findings, held defendant's statements to the District Attorney voluntary, and the bite mark order proper notwithstanding that there had not yet been a preliminary probable cause hearing or an indictment, because defendant was under arrest and in custody, his arrest having been based upon evidence and information which clearly amounted to probable cause to arrest. On appeal by permission to this court defendant argues, with respect to the bite mark evidence, (1) that the Supreme Court was without jurisdiction to make the order requested, (2) that the order was in any event improper absent a showing of probable cause, and (3) that in any event the evidence should have been excluded because its reliability had not been established either generally or with respect to the comparisons to which Dr. Levine testified. For the reasons hereafter stated, we disagree with the first and third contentions, and find that the second was not properly preserved.

I

When the application was made for an order permitting examination and the taking of bite impressions, defendant had been arraigned and preliminary hearing had been adjourned for presentation of the matter to the Grand Jury. The Supreme Court has the authority to issue an order in furtherance of a Grand Jury investigation even though no arrest or indictment has yet occurred (Matter of District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127, app. dsmd. 38 N.Y.2d 923, 382 N.Y.S.2d 981, 346 N.E.2d 820; see People v. Perri, 72 A.D.2d 106, 112, 423 N.Y.S.2d 674, affd. 53 N.Y.2d 957, 441 N.Y.S.2d 444, 424 N.E.2d 278). Nor was it ousted of jurisdiction because defendant had been arraigned in Criminal Court, for CPL 10.10 (subd. 3, par. f) recognizes the authority of a Supreme Court Justice to sit "as a local criminal court", subdivision 3 of section 10.30 of that law gives a superior court Judge sitting as a local criminal court preliminary jurisdiction, and subdivision 2 of that section makes the preliminary jurisdiction of a local criminal court "subject to divestiture thereof in any particular case by the superior courts and their grand juries." Whether the Supreme Court order be regarded as made by that court sitting as a local criminal court or by a superior court in aid of a Grand Jury proceeding it was, therefore, properly made. ¹

II

The People advance several reasons why the Fourth Amendment issue is not properly before us. They argue first from the fact that defendant was arraigned and held without bail and the presumption of regularity that, defendant having failed to supply the arraignment minutes, it must be presumed that probable cause was found on arraignment. The difficulty with that argument is that the People do not contest that a preliminary hearing request was made after arraignment and was adjourned rather than denied as it would have been had probable cause been found as the result of an evidentiary hearing at arraignment.

More fruitful is the People's second argument that, though, as defendant's motion to suppress his statements shows, he was familiar with the general rule (CPL 710.40) that a motion to suppress evidence be made prior to trial, no such motion was here made. Though CPL 710.40 (subd. 4) permits such a motion to be made during trial under proper circumstance and defendant did, just before Dr. Levine testified, move to suppress the bite mark evidence, he did so on Fifth Amendment grounds and made no mention of probable cause or the Fourth Amendment. Defendant seeks to circumvent that omission by pointing to his objection, made to and tacitly overridden by the Judge who heard the motion to examine and take impressions of his mouth, that the court was without authority to grant such an order until probable cause had been shown. That ruling, says defendant, became the law of ...