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

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This opinion is uncorrected and not selected for official

publication.
COUNTY COURT: STATE OF NEW YORK 

COUNTY OF WESTCHESTER 

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THE PEOPLE OF THE STATE OF NEW YORK 

-againstSANDRO SUAREZ, 

Defendant. 

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ROBERT J. PRISCO, J. 

FILED 

MAR 06 2023 

TIMOTHY C. IDONI 

COUNTY CLERK 

COUNTY OF WESTCHESTER 

ORDER 

DNA SAMPLE 

Indictment No: 20-70271 

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During a court appearance on July 29, 2022, the People served and filed a Notice of Motion 

for the Taking of Buccal Cell Samples, an Affirmation in Support of the Taking of Buccal Cell 

Samples, and a Memorandum of Law seeking an Order "requiring the defendant to permit the 

taking of DNA 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 of Buccal 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 

of samples of the defendant's blood, hair, and other materials of the defendant's body that involves 

no unreasonable intrusion thereof." 

Although CPL § 245.40 was enacted on January 1, 2020, the necessary showing by the 

prosecution to permit the taking of corporeal samples from a defendant has existed since Matter 

of Abe A., 56 NY2d 288,291 [1982]. While the requirements set forth in Matter of Abe A. 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 of Burglary in the Third Degree pursuant to Penal Law [PL]§ 140.20 [Count One], 

one count of Grand Larceny in the Third Degree pursuant to PL § 155.35 (1) [Count Two}, and 

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one count of Criminal Possession of Stolen 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 of Bronxville, and his alleged 

theft of property from within. The offenses are alleged to have occurred at approximately 5:50 

a.m., on October 9, 2019. 

During the processing of the Verizon Store, a plastic 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 obtain a DNA sample from him (see People v Fields, 160 AD3d 1116 [2018], 

lv. denied31 NY3d 1116 [2018]; People v Vieweg, 155 AD3d 1305 [2017], lv. denied30NY3d 

1121 [2018]; People v Roshia, 133 AD3d 1029 [2015], aff'd28 NY3d 989 [2016]; People v Hogue, 

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 December 4, 2019, the Westchester County Department of Laboratories and 

Research (WCDLR) was advised by the Massachusetts State Police Crime Laboratory that a search 

of the Combined DNA Index System (CODIS) revealed that a DNA profile collected from a 

forensic sample by the WCDLR was linked to 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 of the Village of Bronxville Police Department was notified of the above information so 

that an additional DNA sample from Defendant could be obtained and submitted to the lab as soon 

as possible "so that it can be compared to the case evidence sample( s ). " It is thus clear that material 

evidence linking Defendant to the crimes at issue can be expected to result from a comparison of 

1 The charges of Grand Larceny in the Third Degree and Criminal Possession of Stolen 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 of the property at issue. 

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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 of the saliva 

samples, the Court of Appeals 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 of DNA samples by 

way of buccal swabs, which is the method that would be used in this case. 

Citing and quoting from the 2013 United States Supreme Court case of Maryland v King, 

569 US 435, the Court of Appeals 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 of privacy are not offended by the minor 

intrusion of a brief swab of his cheeks, given the significant state interests in identifying him. 

Here, unlike the defendants in Matter of Abe A. and Goldman, Defendant Suarez has not only been 

arrested but he has also been indicted. Finally, following the reasoning of the Supreme Court in 

Marylandv King, the Goldman Court noted that because "the utility of DNA identification in the 

criminal justice 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 of the crime, the importance of the evidence 

to the investigation and the unavailability ofless intrusive means of obtaining the evidence, on the 

one hand, against a concern for Defendant's Constitutional right to be free from bodily intrusion 

on the other, the Court finds that the scale tips in the People's favor in this regard. 

As to the seriousness of the crime, Burglary in the Third Degree is a Class "D" felony 

offense which a carries a maximum term of 2 1/3 to 7 years in state prison. 

As to the importance of the evidence to the investigation, a match of the 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 that there is no less intrusive means of obtaining the evidence from 

Defendant. "The buccal swab--now a simple and common method for securing a ... defendant's 

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DNA .. .is undeniably safe, consists of a 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 of Matter of Abe A. and its progeny, the People's motion requiring 

Defendant to permit to the taking of DNA samples from his body via buccal cell swabs is granted. 

IT IS HEREBY ORDERED that the People shall have an investigator from the Westchester 

County District Attorney's Office or a member of the Bronxville Police Department available on 

December 2, 2022 for the taking of such sample. 

The foregoing constitutes the Order of this 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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