People v. Moore
| Decision Date | 02 October 2018 |
| Docket Number | 7292/2017 |
| Citation | 61 Misc.3d 868,86 N.Y.S.3d 832 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Paul MOORE, Defendant. |
| Court | New York Supreme Court |
Eric Gonzalez, District Attorney, Brooklyn (Lauren F. Silver of counsel), for plaintiff.
Legal Aid Society, Brooklyn (Matthew Cohen of counsel), for defendant.
By Indictment 7292/2017, defendant Paul Moore is charged with rape in the first degree and other related charges. The People seek an order, pursuant to Criminal Procedure Law § 240.40(2)(b)(v), permitting them to take from the body of the defendant a buccal swab sample for testing and analysis.
Defendant opposes the motion for a buccal swab and cross-moves for an order suppressing any and all physical evidence recovered, including organic materials and DNA profiles generated. Specifically, defendant argues that the pseudo exemplar containing defendant's DNA that was used to identify him as the perpetrator of the instant charges was unlawfully obtained by the police as the fruit of an unlawful arrest and must be suppressed. The People argue that the pseudo exemplar was abandoned by defendant.
The Court initially granted the motion to compel the buccal swab; however, the Court held the decision in abeyance pending an "abandonment" hearing that was consented to by the People. A hearing was conducted before this Court on June 22, 2018.
For all of the reasons set forth herein, the Court grants the People's motion for a buccal swab and denies defendant's cross-motion to suppress the cigarette, including the DNA profile generated from the cigarette.
The People allege that on August 30, 2015, at approximately 12:15 a.m., a female complainant was walking home alone from work in Kings County when she was approached by an unknown male. This male had a shirt covering most of his face. The male put his arm around the complainant's neck and shoulder and instructed her to follow him. He told the complaint that he had a gun and that he was going to shoot her. Complainant observed the outline of a gun in the male's pocket. She tried to give him her property, but he stated that he wanted "pussy."
The male perpetrator led the complainant to the back of a house. Complainant felt what she believed to be the gun pressed against her back. The perpetrator removed the complainant's clothing and inserted his penis into her anus and vagina. He also touched his hands to her breasts and vagina. The perpetrator instructed the complainant not to tell anyone or he would kill her. He fled and thereafter, the complainant called her brother who called 911.
Complainant went to the hospital and a sexual assault evidence kit was collected and sent to the Office of the Chief Medical Examiner ("OCME") for testing and analysis. A male profile, Male Donor A, was determined from the vagina swab and other evidence from the sexual assault collection kit. The profile, Male Donor A, was uploaded to both the local databank and CODIS. However, the identity of the perpetrator remained unknown.
On June 9, 2017, the defendant was arrested on an unrelated gun possession case in which it was alleged that defendant threw a gun while running away from the police. Several hours after being arrested, and while still in custody in the precinct, the defendant interacted with a Detective from the New York Police Department Gun Enhancement Unit. During that interaction, defendant smoked a cigarette that was ultimately collected and sent to the OCME for testing. Defendant was subsequently indicted for gun possession under indictment 7129/2017.
After defendant's indictment on the gun case, the defendant's DNA profile was generated from the cigarette and uploaded into the local OCME databank. Defendant's DNA profile generated from the cigarette matched the DNA profile of Male Donor A generated from the evidence in the sexual assault collection kit.
The Grand Jury voted to indict the defendant under Indictment Number 7292/2017, charging the defendant with rape in the first degree, criminal sexual act in the first degree, and other related charges. As part of the presentation, the prosecution presented the evidence of the DNA match described above. In preparation for trial, the People sought a buccal swab from the defendant to compare the defendant's known DNA sample to the DNA profiles that were generated from the evidence recovered from the sexual assault kit. On January 9, 2018, the Court granted the motion, finding probable cause based upon the match between the defendant's DNA profile generated from the cigarette and the crime scene evidence ( Matter of Abe A. , 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] ).
This Court found the grand jury minutes to be sufficient on February 1, 2018.
On February 21, 2018, a Dunaway, Huntley, and Mapp hearing was held in Part GP28 before the Honorable John T. Hecht on indictment 7129/2017. By decision dated March 9, 2018, the court granted defendant's motion to suppress physical evidence, specifically the gun and some clothing that defendant discarded while fleeing from the police. The Court held that "without reasonable suspicion that defendant was committing or about to commit a crime, the officers' pursuit of him was unlawful and defendant's disposal of the gun and clothing during the pursuit was precipitated by, and not attenuated from, the illegal police action" ( People v. Moore , 59 Misc.3d 969, 971, 72 N.Y.S.3d 423 [Sup. Ct., Kings County 2018] ). The Court also suppressed, as a fruit of the unlawful arrest, a statement made by the defendant immediately upon his arrest.
The circumstances surrounding defendant's interaction with the NYPD Gun Enhancement Unit and the retrieval of the cigarette defendant smoked in the precinct were not the subject of the suppression hearing conducted as part of indictment 7129/2017. By motion dated March 16, 2018, defendant moved to suppress the cigarette and the DNA profile generated from the cigarette before this Court.
The People responded to defendant's motion to suppress the cigarette and the DNA profile by letter dated April 16, 2018 in which the People consented to a hearing regarding the abandonment of the cigarette containing defendant's DNA. This "abandonment" hearing was conducted on June 22, 2018. Detective Matthew Doherty ("Detective Doherty") of the NYPD Gun Violence Suppression Division testified for the prosecution. The Court finds Detective Doherty credible and reliable, and makes the following findings of fact and conclusions of law based upon that testimony.
Detective Doherty is a member of the New York Police Department assigned to the Gun Enhancement Unit (tr. at 5-6). His responsibilities include assisting precinct detectives with gun arrest investigations and interviewing suspects (tr. at 7). During an interview, Detective Doherty presents suspects with the opportunity to partake in a proffer agreement (tr. at 7). Specifically, Detective Doherty advises suspects that they may avail themselves, through their lawyer, of the opportunity to proffer information regarding firearms, narcotics and other crimes (tr. at 7-8). Detective Doherty testified that, generally, he will offer suspects food, drink and cigarettes during the interviews (tr. at 8).
On June 9, 2017, at approximately 11:30 a.m., Detective Doherty was assigned to defendant's gun arrest (tr. at 8-9). Detective Doherty spoke to Police Officer Vargas of the 73rd Precinct (tr. at 9). Officer Vargas advised that defendant was arrested at approximately 1:00 a.m. on that same day for possessing a gun (tr. at 10). Officer Vargas further advised that defendant refused to speak to police, but had not requested counsel (tr. at 10, 15-16).
Shortly thereafter, Detective Doherty went to 73rd Precinct with his team member, Detective Salas (tr. at 14). They arrived at approximately 12:30 p.m. and met with Officer Vargas (tr. at 14). Officer Vargas advised them that defendant refused an offer of food, water or a cigarette and he refused to leave the cell (tr. at 10). Detective Doherty went to see defendant in the cells (tr. at 11). He called out his name and defendant stood up. Detective Doherty introduced himself and asked defendant if he wanted to speak (tr. at 11). Defendant agreed and Detective Doherty handcuffed him and brought him up to 73rd Precinct detective squad interview room (tr. at 11).
The room was empty except for a table, chairs and an ash tray on the table (tr. at 12). Detective Doherty was alone in the room with defendant. Detective Salas waited outside (tr. at 18). After they were seated, Detective Doherty introduced himself again and asked defendant if he wanted to speak about the gun arrest (tr. at 12). Defendant declined (tr. at 12). Detective Doherty began to explain to defendant that a proffer agreement is an opportunity to speak about any knowledge of firearms, narcotics or any other crimes (tr. at 12). During this time, Detective Doherty had a box of cigarettes in his pocket (tr. at 12). Defendant, without any prompting by the detective, asked for a cigarette (tr. at 12-13). Defendant took the cigarette and smoked it (tr. at 12).
In response to the detective's proffer explanation, defendant stated that "He can't snitch" (tr. at 13). The conversation ended and Detective Doherty asked defendant if he had any questions. Defendant stated "no." He was placed back in handcuffs and returned to the cells (tr. at 13). Defendant left behind the cigarette that he had just smoked (tr. at 13). Detective Doherty placed the remaining cigarette in a paper security envelop and vouchered it for testing and analysis (tr. at 13).
Detective Doherty testified that he brings cigarettes for suspects to make them feel comfortable (tr. at 21). He stated that suspects are not required to leave behind what has been offered to them but rather could bring a drink back to the cells or finish a cigarette and keep it (tr. at 22). Detective...
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People v. Flores, 1136/19
...bottle or the like when it is a recognized investigative tactic to obtain and secure it as an "abandoned" sample. See People v. Moore, 61 Misc. 3d 868, 86 N.Y.S.3d 832 (Sup. Ct., Kings County 2018). But an abandoned sample is one that a person discards in public. It is abandoned because the......