People v. Smith

• Decision Date: 24 July 1981
• Citation: 443 N.Y.S.2d 551,110 Misc.2d 118
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Lemuel SMITH, Defendant.
• Court: New York County Court

Page 551

443 N.Y.S.2d 551

110 Misc.2d 118

The PEOPLE of the State of New York, Plaintiff, v. Lemuel SMITH, Defendant.

Dutchess County Court.

July 24, 1981.

William E. Stanton, Sp. Dist. Atty., for the People.

C. Vernon Mason and William Kunstler, New York City, for defendant.

ALBERT M. ROSENBLATT, Judge.

The prosecution by application dated June 8, 1981, has moved for an order authorizing the acquisition of photographs and dental impressions of the defendant's lower teeth and bite. ¹

The defendant has been arrested for murder in the first degree upon an allegation, in a felony complaint dated June 8, 1981, that on May 15, 1981, while serving a life sentence as an inmate at Green Haven Correctional Facility, he intentionally killed Donna Payant, a Correction Officer.

He resists the motion, claiming that neither this Court nor any other court has legal authority to compel the seizure of this evidence before indictment, in that it would be violative of defendant's constitutional right to privacy, freedom from self-incrimination, and would involve a seizure without probable cause. ²

The Court ordered a hearing, the results of which, when taken together with the controlling statutes, decisions, and constitutional provisions, relate to four separate considerations, which the Court will discuss.

I--THE CONSTITUTIONALITY OF THE PROCEDURE UNDER FOURTH AND FIFTH AMENDMENT STANDARDS--PROBABLE CAUSE REQUIREMENTS.

II--THE STATUTORY AND COMMON-LAW POWER OF THE COURT TO GRANT THE RELIEF SOUGHT AT THIS STAGE OF THE ACTION.

III--THE STATUS OF ODONTOLOGICAL EVIDENCE IN CRIMINAL CASES.

IV--THE NECESSITY OF THE PROPOSED PROCEDURE UNDER THE TEST OF MTR. OF BARBER v. RUBIN, 65 A.D.2d 811, 410 N.Y.S.2d 361, 72 A.D.2d 347, 424 N.Y.S.2d 453, AS AGAINST THE DEGREE OF INVASION INTO DEFENDANT'S BODY, THE LEVEL OF POSSIBLE HARM, AND THE VALUE OF THE EVIDENCE SOUGHT.

At the hearing, on June 12, 1981, the prosecution called New York State Police Investigator Jack Fox, through whom a photo of the body of the deceased, Donna Payant, was introduced.

The photograph depicts her as mutilated by apparent bite marks. The proof at the hearing further established that the Medical Examiner, Dr. Michael Baden, on May 18, 1981, upon observing Donna Payant's body, contacted Dr. Lowell Levine, a leading forensic odontologist. Dr. Levine furnished the Court with his credentials, from which he may be counted as a forensic odontologist of the widest experience as an expert witness, author, and lecturer in legal and academic circles. He has been consultant to the New York City Medical Examiner, the Kennedy assassination committee, among others, and holds Dental School Faculty rank, and editorial board positions in several recognized odontological journals. As appears from the Court's own research, Dr. Levine has been cited extensively in both the decisional law and the odontological literature for his numerous writings and appearances. [Point III].

Dr. Levine testified that he examined photographs of the deceased for purposes of possible bite mark identification. At the time of the examination, Dr. Levine was acquainted with the defendant's dental characteristics, since he had, in September of 1977, acquired and examined a cast of the defendant's teeth in an investigation of a Schenectady County homicide, and, on the basis of his examination, had concluded that the defendant, Lemuel Smith, had imposed the bite marks found on the victim, Marilee Wilson. ³

Dr. Levine, on the basis of these comparisons, concluded, to a reasonable scientific certainty, that the same person administered the bite marks to both Donna Payant at Green Haven and Marilee Wilson in Schenectady County. Dr. Levine added that he requires a cast of defendant's teeth, at present, to confirm his opinion, that is, to Dr. Levine made his conclusions after an examination conducted with the use of instruments employed in forensic odontology, including analog image, enhancement dividers, and a Boley gauge, all of which, he stated enable him to measure the unique configurations of individual bite marks. While the body of Donna Payant revealed torn nipples and mutilation of the abdomen, there was, in Dr. Levine's judgment, one distinctly discernible bite mark, which formed the basis for his findings.

ascertain whether the defendant's lower teeth are the same now as they were in 1977. Naturally, points of dissimilarity in this examination might well exonerate the defendant.

Notably, his testimony and conclusion was not contradicted, nor did the defendant produce any rebuttal expert or other testimony after a month long adjournment, granted for the express purpose of affording defendant an opportunity to do so. During this period, the defense received all of the available photographs, and the 1977 cast of the defendant's teeth, for use in connection with the acquisition of a defense expert.

Dr. Levine testified that the process of casting and photographing defendant's lower teeth is painless and risk free.

Undeniably, the degree of intrusion is minimal, and the procedure may be completed in a matter of minutes.

At the close of the hearing, it having been asserted that a delay might impair the integrity of the evidence sought, the Court asked Dr. Levine to look at the defendant's lower teeth and determine whether, on the basis of a visual observation only the defendant still had the same number and type of bottom teeth. After doing so, Dr. Levine stated that the defendant did, that his opinion was unchanged, but reiterated his need for a cast and photographs of defendant's lower teeth.

While the ultimate issue of guilt or innocence must be decided by others, this Court need only now determine whether the doctor's uncontradicted testimony furnishes the requisite probable cause, and whether, on the strength of that testimony, undisputed as of now, the Court has the authority to grant the prosecutor's application.

POINT I

A. FOURTH AND FIFTH AMENDMENT STANDARDS.

As a constitutional matter, the compulsion of non-testimonial evidence generally falls outside of Fifth Amendment guarantees Where the intrusion is substantial or dangerous, constitutional interdictions may be invoked But when the intrusion is as brief, innocuous, and transitory as it is here, the constitution poses no barrier to the compelled production of corporeal evidence, when acquired under due process safeguards, preceded by arrest, adversarial argument, and a hearing to establish probable cause. ⁴

In New York and elsewhere, courts have perceived no constitutional violation upon a compelled submission for dental impressions. In People v. Toomer the Appellate Division, Second Department, denied a motion to set aside a County Court order requiring defendant to submit to a dental procedure to take impressions [N.Y.L.J., March 6, 1979, p. 12, col. 4].

Similar relief was authorized in People v. Middleton, 76 A.D.2d 762, 428 N.Y.S.2d 688 where the Appellate Division, First Department, noted that a post-arrest pre-indictment odontological order of this type was properly issued at Special Term. [See, also, People v. Allah, 84 Misc.2d 500, 376 N.Y.S.2d 399 (post-indictment)].

B. PROBABLE CAUSE.

It is well established that the constitution places restraints on the prosecution in the acquisition of even non-testimonial corporeal evidence The power of the state to acquire the requested odontological evidence must be based upon a showing of probable cause.

Hence, whether viewed in terms of probable cause to support the arrest of Lemuel Smith for murder, or probable cause to justify the requested order to take dental impressions, the Court finds that the uncontradicted testimony of Dr. Lowell Levine establishes probable cause that meets the required standards for both.

POINT II--POST-ARREST, PRE-INDICTMENT AUTHORITY.

The defendant claims that the prosecutorial discovery statutes apply only when an "indictment, superior court information, prosecutor's information, or information is pending" The defendant is charged by felony complaint, and the case awaits grand jury presentation. Hence, the defendant argues, the Court is not statutorily empowered to grant the application.

The last sentence of CPL § 240.40(2), however, reads as follows:

This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States. [Emphasis ours]

Because the defendant has been arrested and is charged with a felony complaint, this Court, as a Superior Court has authority before the filing of an indictment, to order the procedure for the use of such evidence by a County Court Grand Jury The arrest, for the reasons aforesaid, is supported by probable cause, and, together with the evidence adduced at the hearing, provides the procedural basis for granting the application [cf. People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419; 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; Matter of Alphonso C., 50 A.D.2d 97, 376 N.Y.S.2d 126, app. dsmd. 38 N.Y.2d 923, 382 N.Y.S.2d 980, 346 N.E.2d 819, in which no criminal actions had been commenced against defendants].

The most recent appellate expression, as to the stage in which such non-testimonial orders may be issued by a Superior Court is Matter of Abe A., 81 A.D.2d 362, 440 N.Y.S.2d 928, p. 932, 1981, in which the First Department held that absent a probable cause arrest, the Supreme Court lacked authority to compel the production of a blood sample. Matter of Abe A. confirms this Court's view that the proposed odontological order is properly issuable, as a post-arrest, pre-indictment vehicle At bar, the Court has exceeded the procedural requirements imposed in Middleton,...