SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1155 

KA 10-00517 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

FRANK GARCIA, DEFENDANT-APPELLANT.

 

JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT. 

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (Craig J.

Doran, J.), rendered September 1, 2009. The judgment convicted

defendant, upon a jury verdict, of murder in the first degree (two

counts) and kidnapping in the second degree (two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by directing that the sentence imposed

for murder in the first degree under count one of the indictment shall

run concurrently with the sentence imposed for murder in the first

degree under count two of the indictment and as modified the judgment

is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of two counts each of murder in the first degree

(Penal Law § 125.27 [1] [a] [viii]; [b]) and kidnapping in the second

degree (§ 135.20). Contrary to the contention of defendant, County

Court did not abuse its discretion in denying his motion for a

mistrial based on a violation of the court’s Ventimiglia ruling (see

generally People v Ortiz, 54 NY2d 288, 292). Any prejudice resulting

from the Ventimiglia violation was alleviated by the court’s curative

instruction (see People v Allen, 78 AD3d 1521, 1521, lv denied 16 NY3d

827). In any event, the error is harmless inasmuch as there is

overwhelming evidence of guilt, and there is no significant

probability that the single statement by the witness affected the

jury’s verdict or that the absence of the error would have led to an

acquittal (see People v Orbaker, 302 AD2d 977, 978, lv denied 100 NY2d

541; see generally People v Crimmins, 36 NY2d 230, 241-242).

Contrary to defendant’s further contention, the court did not

abuse its discretion in denying defense counsel’s request for an

adjournment of the trial to allow him additional time to prepare for

trial. Defense counsel had notice of the trial date over five months

in advance, thereby giving him sufficient time to prepare, and

defendant did not demonstrate that he was prejudiced by the court’s
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KA 10-00517 

denial of his request for an adjournment (see People v Peterkin, 81

AD3d 1358, 1360, lv denied 17 NY3d 799; People v Bones, 50 AD3d 1527,

1528, lv denied 10 NY3d 956). Indeed, the record demonstrates that

defense counsel was well prepared to represent defendant. 

Additionally, defendant’s contention that the court erred in refusing

to suppress the identification evidence is without merit inasmuch as

the lineup was not unduly suggestive (see People v Corchado, 299 AD2d

843, 844, lv denied 99 NY2d 581; see generally People v Chipp, 75 NY2d

327, 336, cert denied 498 US 833).

We agree with defendant, however, that the court erred in

refusing to suppress the evidence obtained from a buccal swab. As the

court properly determined, the taking of the swab after defendant had

invoked his right to counsel was error inasmuch as defendant could not

consent to the seizure in the absence of counsel (see People v

Loomis, 255 AD2d 916, 916, lv denied 92 NY2d 1051). Nevertheless, the

court denied the motion after concluding that the evidence was

admissible under the inevitable discovery doctrine. That was error. 

The inevitable discovery doctrine provides that “evidence obtained as

a result of information derived from an unlawful search or other

illegal police conduct is not inadmissible under the fruit of the

poisonous tree doctrine where the normal course of police

investigation would, in any case, even absent the illicit conduct,

have inevitably led to such evidence” (People v Fitzpatrick, 32 NY2d

499, 506, cert denied 414 US 1033 [emphasis added]; see People v

Turriago, 90 NY2d 77, 85, rearg denied 90 NY2d 936). It thus follows

that the inevitable discovery doctrine does not apply where “the

evidence sought to be suppressed is the very evidence obtained in the

illegal search [and seizure]” (People v Stith, 69 NY2d 313, 318; see

Turriago, 90 NY2d at 86; People v James, 256 AD2d 1149, 1149, lv

denied 93 NY2d 875). Here, the DNA sample from the buccal swab that

defendant sought to suppress was “the very evidence that was obtained

as the immediate consequence of the illegal police conduct” (James,

256 AD2d at 1149). While the People are correct that they could have

obtained a court order to compel defendant to give a DNA sample, they

should have done just that instead of relying on the inevitable

discovery doctrine, which was not applicable (see e.g. People v

Doll, 98 AD3d 356, ___). We conclude, however, that the error is

harmless. As noted, the evidence of defendant’s guilt is

overwhelming, and we conclude that there is no reasonable possibility

that the erroneously admitted evidence contributed to defendant’s

conviction (see People v Vaughn, 275 AD2d 484, 488, lv denied 96 NY2d

788; see generally Crimmins, 36 NY2d at 237).

Finally, we agree with defendant that the consecutive sentences

imposed for murder in the first degree under counts one and two of the

indictment are illegal, and we therefore modify the judgment by

directing that the sentences on those counts run concurrently (see

People v Rosas, 8 NY3d 493, 495; People v Ojo, 43 AD3d 1367, 1368, lv

denied 10 NY3d 769, reconsideration denied 11 NY3d 792). 

Entered: December 21, 2012 Frances E. Cafarell

Clerk of the Court