### People v Suarez 2022 NY Slip Op 34691(U) November 29, 2022 County Court, Westchester County Docket Number: Indictment No. 20-70271 Judge: Robert J. Prisco Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER 

### ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK-againstSANDRO SUAREZ, Defendant. 

### ------------------------------------------------------------------x ROBERT J. PRISCO,J. 

# FILED MAR 06 2023 TIMOTHYC. IDONI

COUNTYCLERK COUNTYOFWESTCHESTER
ORDER DNA SAMPLE Indictment No: 20-70271

# g**~6~** 10?/zd
During a court appearance onJuly 29, 2022, the People served and filed aNotice ofMotion for the Taking ofBuccal Cell Samples, an Affirmation in Support ofthe Taking ofBuccal Cell Samples, and a Memorandum ofLaw seeking an Order "requiring the defendant to permit the taking ofDNA samples from his body via buccal cell swabs," pursuant to CPL§ 245.40 (1) (e). On August 30, 2022, Defendant filed an Affirmation in Opposition to the People's Motion for the Taking ofBuccal Cell Samples, which is attached to his motion seeking omnibus relief. CPL § 245.40 (1) (e) provides that, "[a]fter the filing of an accusatory instrument, and subject to constitutional limitations, the court may, upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable, require a defendant to provide non-testimonial evidence, including to [p]ermit the taking ofsamples ofthe defendant'sblood, hair, and othermaterials ofthe defendant's body thatinvolves
no unreasonable intrusion thereof." Although CPL § 245.40 was enacted on January 1, 2020, the necessary showing by the prosecution to permit the taking ofcorporeal samples from a defendant has existed since 

### Matter of AbeA., 56NY2d288,291 [1982]. Whilethe requirements setforth in

### Matterof AbeA. pertained to a pre-accusatory instrument application to obtain corporeal evidence from a suspect, CPL § 245.40 (1) (e) now specifically covers applications to obtain corporeal evidence from a defendant, like Defendant Suarez, upon whom an accusatory instrument has already been filed.
In the case at bar, pursuant to Indictment No. 20-70271, Defendant Suarez was charged with one count ofBurglary in the Third Degreepursuantto Penal Law [PL]§ 140.20 [Count One],
one count ofGrand Larceny in the Third Degree pursuant to PL § 155.35 (1) [Count Two}, and
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### [* 1]one count ofCriminal Possession ofStolen Property in the Third Degree pursuant to PL § 165.50 [Count Three]. 1 The indictment was filed on March 11, 2020, and Defendant was arraigned thereon on July 11, 2022. The charges pertain to Defendant's alleged unlawful entry into the Verizon Store building located at 89 Pondfield Road, in the Village ofBronxville, and his alleged theft ofproperty from within. The offenses are alleged to have occurred at approximately 5:50 a.m., on October 9, 2019. During the processing ofthe Verizon Store, aplastic bag which appeared to have traces of blood on it was recovered from an office that was allegedly rummaged through and that plastic bag was submitted to the Westchester County Department of Laboratories and Research for forensic analysis. Here, the indictment _filed against Defendant provides the requisite probable cause and statutory authority to obtainaDNA samplefrom him (see People vFields, 160AD3d 1116 [2018], lv. denied31 NY3d 1116 [2018]; People v Vieweg, 155 AD3d 1305 [2017], lv. denied30NY3d 1121 [2018];People vRoshia, 133 AD3d 1029 [2015], aff'd28NY3d989 [2016]; People vHogue, 133 AD3d 1209 [2015], lv. denied 27 NY3d 1152 [2016]; People v Pryor, 14 AD3d 723 [2005], lv. denied 6 NY3d 779 [2006]). Moreover, on December4, 2019, the Westchester County Department ofLaboratories and Research (WCDLR) was advisedby the Massachusetts StatePoliceCrimeLaboratorythata search of the Combined DNA Index System (CODIS) revealed that a DNA profile collected from a forensic sample by the WCDLRwas linkedto the DNA profile from the defendant. The WCDLR Forensic Lab and Item numbers assigned to this matter reveal that the subject DNA profile was collected from the "plastic bag." Pursuant to a WCDLR Forensic Biology CODIS Unit letter dated December 10, 2019, a detective ofthe Village ofBronxville Police Department was notified ofthe above information so that an additional DNA sample from Defendantcouldbe obtained and submittedto the lab as soon
as possible "sothatit canbe comparedto the case evidence sample(s)." It isthus clearthat material evidence linking Defendant to the crimes at issue can be expected to result from a comparison of

1The charges ofGrand Larceny in the Third Degree and Criminal Possession ofStolen Property in the Third Degree have been reduced by this Court to Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree, respectively, due to the People's failure to present legally sufficient evidence as to the value ofthe property at issue.

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### [* 2]the DNA profile obtained from the plastic bag and a known DNA sample obtained from the defendant 

### (see People v Fields, supra). Regarding the method to be used to secure Defendant's safety and reliability ofthe saliva samples, the Court ofAppeals has recently addressed such in 

### People v Goldman, 35 NY3d 582 [2020]. Like 

### Matter of Abe A., Goldman involved a request for corporeal evidence from an uncharged suspect. However, the Court specifically discussed the securing ofDNA samples by way ofbuccal swabs, which is the method that would be used in this case. Citing and quoting from the 2013 United States Supreme Court case of

### Marylandv King, 569 US 435, the Court ofAppeals in 

### Goldman accepted the Supreme Court's characterization of the buccal swab procedure as a "brief and minimal intrusion" that is "quick and painless" and "undeniably safe." The Court in 

### Goldman also noted that where a defendant has been validly arrested based upon probable cause, his expectations ofprivacy are not offended by the minor intrusion of a brief swab ofhis cheeks, given the significant state interests in identifying him. Here, unlike the defendants in

### Matter of AbeA. and 

### Goldman, Defendant Suarezhas not only been arrested but he has also been indicted. Finally, following the reasoning ofthe Supreme Court in 

### Marylandv King, the Goldman Court noted that because "the utility ofDNA identification in the criminaljustice system is already undisputed," a defendant cannot mount a credible claim that the DNA evidence is unlikely to provide material evidence. This Court believes the same to be true in this case. Furthermore, upon balancing the seriousness ofthe crime, the importance ofthe evidence to the investigation and the unavailability oflessintrusive means ofobtaining the evidence, onthe
one hand, against a concern for Defendant's Constitutional right to be free from bodily intrusion
onthe other, the Court finds that the scale tips in the People's favor in this regard. As to the seriousness ofthe crime, Burglary in the Third Degree is a Class "D" felony offense which a carries a maximum term of2 1/3 to 7years in state prison. As to the importance ofthe evidence to the investigation, a match ofthe Defendant's DNA to the DNA profile allegedly recovered from the plastic bag would be very important to establish his identity and participation in the crimes for which he has been indicted. Finally, the Court finds thatthere is no less intrusive means ofobtaining the evidence from Defendant. "The buccal swab--now a simple and common method for securing a...defendant's

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### [* 3]DNA

...is undeniably safe, consists ofa minimal intrusion and involves no discomfort" (People v Goldman, 35 NY3d at 594). Accordingly, while recognizing that the People's request for a DNA sample in this case could have been made earlier, as the People have satisfied the statutory requirements of CPL 

### § 245.40 and the requirements ofMatter of AbeA. and its progeny, the People's motion requiring Defendantto permitto the taking ofDNA samples from his body viabuccal cell swabs is granted. IT IS HEREBYORDEREDthatthe People shall have an investigatorfrom the Westchester County District Attorney's Office or a member ofthe Bronxville Police Department available on December 2, 2022 for the taking ofsuch sample.

The foregoing constitutes the Order ofthis Court.
Dated: White Plains, New York November 29, 2022

To: HON. MIRIAM E. ROCAH Westchester County District Attorney 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 Attn: Assistant District Attorney Annmarie Stepancic

THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attorney for Defendant Sandro Suarez 150 Grand Street-Suite 100 White Plains, New York 10601 Attn: Ketienne Telemaque, Esq.

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