| People v Walker |
| 2014 NY Slip Op 02975 [117 AD3d 1094] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1](May 1, 2014)
| The People of the State of New York, Respondent, vPaul Walker Jr., Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Arthur Glass, Acting District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered January 6, 2011, upon a verdict convicting defendant of the crimesof attempted murder in the second degree, criminal use of a firearm in the first degree,burglary in the second degree and criminal possession of a weapon in the seconddegree.
In June 2009, a man armed with a semi-automatic handgun, wearing a bandana overhis face and a Yankees cap, entered a Domino's Pizza in Rensselaer County, where hedirected the only two patrons to lie on the floor. The store's manager rushed at andtackled the perpetrator, whose gun fired and shot the manager in the leg. A secondperpetrator, who was also wearing a bandana over his face, then entered through a backdoor and he shot the manager several times in the head and chest, causing him to sustainserious injuries, which he survived. During the ensuing investigation, defendant becamea suspect when DNA from the Yankees cap, which had fallen off of the first perpetratorat the scene, matched DNA found on a cell phone registered to defendant that had beendropped at the scene of a separate (uncharged) crime in Queens County. Police obtainedand executed a search warrant in April 2010 to acquire a DNA sample fromdefendant.
Thereafter, defendant was charged in a six-count indictment. His motion to suppressthe DNA evidence taken from him in April 2010 was denied without a hearing.Following a trial, a jury convicted him of attempted murder in the second degree,criminal use of a firearm in [*2]the first degree, burglaryin the second degree and criminal possession of a weapon in the second degree. He wassentenced to concurrent prison terms of 25 years on the two class B felonies and 15 yearson the two class C felonies, as well as five years of postrelease supervision on eachcount. Defendant appeals.
The verdict was supported by legally sufficient evidence and was not against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant's DNA was on the Yankees cap left at the scene by the first perpetrator and hisheight and weight—as well as being left-handed—were generally consistentwith descriptions of the first perpetrator given by witnesses. Tracking records from hiscell phone placed him in the vicinity even though, at the time, he resided in QueensCounty. Defendant did not deny being in the area, but explained that he often visitedbecause he used to live in Rensselaer County when in college and still had friends there.The Yankees cap had DNA of other unidentified individuals and defendant claimed thathe had left the cap and various other clothing and personal items in an apartment inRensselaer County that he had moved out of in July 2007. This proof created credibilityissues for the jury. Further, there was ample evidence to reasonably infer that the twomen intended to act together to commit a robbery at the premises, they entered thepremises armed with loaded guns, they were intent on using deadly force if necessary toaccomplish their objective and, as part of the scheme, the second perpetrator enteredthrough a private area that was not open to the public. When the manager attempted tothwart their plans, he was shot first in the leg and then repeatedly in the head and chest.Viewed in the light most favorable to the People, there was legally sufficient proof tosupport the verdict as to each crime (see People v Ramos, 19 NY3d 133, 136 [2012]; Peoplev Fullard, 233 AD2d 757, 759 [1996], lv denied 89 NY2d 1092 [1997]).Moreover, after viewing the evidence in the record in a neutral light, while accordingdeference to the jury's credibility determinations, we are unpersuaded that the jury'sverdict was against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006];People v Browne, 307 AD2d 645, 645-646 [2003], lv denied 1 NY3d 539[2003]; People v Lewis, 300 AD2d 827, 828-829 [2002], lv denied 99NY2d 630 [2003]).
The DNA evidence taken from defendant in April 2010 via a no-knock searchwarrant issued without notice to him when he was a suspect should have beensuppressed. "[A] search warrant authorizing an intrusion into the human body for thepurpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, issubject to the constraints of the Fourth Amendment" (People v Fomby, 103 AD3d 28, 29 [2012], lvdenied 21 NY3d 1015 [2013]; see People v Smith, 95 AD3d 21, 24 [2012]). Theguidelines for obtaining a search warrant for corporeal evidence are well established(see Matter of Abe A., 56 NY2d 288, 291 [1982]; People v Oliver, 92 AD3d900, 901 [2012], lv denied 19 NY3d 965 [2012]; People v Pryor, 14 AD3d723, 725 [2005], lv denied 6 NY3d 779 [2006]; People v King, 232AD2d 111, 116 [1997], lv denied 91 NY2d 875 [1997]). Significantly, where"there is 'no exigency, . . . [then] frustration of the purpose of theapplication is not at risk' and, in that case, 'it is an elementary tenet of due process thatthe target of the application be afforded the opportunity to be heard in opposition beforehis or her constitutional right to be left alone may be infringed' " (People vFomby, 103 AD3d at 30, quoting Matter of Abe A., 56 NY2d at 296; seePeople v Smith, 95 AD3d at 25; see also Matter of Ford v Vaughan, 196AD2d 869, 869 [1993]).
In his motion to suppress, defendant challenged the DNA swabbing that occurred inApril 2010 as violative of his constitutional rights, stated that he did not consent to thesearch, and attached the search warrant application and the search warrant. The searchwarrant application to obtain DNA from defendant included the unsubstantiated andinaccurate [*3]allegations that the "search warrant cannotbe executed between the hours of 6:00 A.M. and 9:00 P.M.," "the property sought will beremoved or destroyed if not seized forthwith," and "[t]he property sought may be easilyand quickly destroyed or disposed of." There were no factual allegations reflectingexigent circumstances justifying the lack of any notice to defendant of the application toobtain a DNA sample from him. He could not destroy or dispose of his own DNA, andthe People's speculation in their brief that he might have fled was not alleged orsupported by facts in the application.
The ensuing search warrant inconsistently stated both that it was to be executedbetween 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night;and it further authorized police to enter the premises where defendant resided withoutgiving notice of their authority or purpose. Under the authority of the warrant, policearrived unannounced at the place where defendant lived demanding his DNA. The totalabsence of notice to defendant of the search warrant application, which had obviousdefects regarding the manner purportedly necessary to obtain defendant's DNA, violatedhis constitutional rights and the DNA obtained in such search must be suppressed and thejudgment reversed (see People v Fomby, 103 AD3d at 30; People vSmith, 95 AD3d at 25).
Contrary to the People's argument, we find that, although it could have been moreclearly articulated, defendant nonetheless sufficiently preserved this issue among hismany challenges to the DNA evidence and, accordingly, it is not necessary to address hisalternative argument that a failure to preserve the issue would have constitutedineffective assistance of counsel under the circumstances of this case.[FN*]
Defendant's contention that his sentence was harsh and excessive is academic.
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Rensselaer County for furtherproceedings not inconsistent with this Court's decision.
Footnote *:We further note that, hadthe issue not been properly preserved, we would exercise our interest of justicejurisdiction given the particular circumstances (see People v Durrin, 32 AD3d 665, 666-667 [2006]).