| Matter of Marino v Kahn |
| 2008 NY Slip Op 02594 [49 AD3d 741] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Jayson Marino, Petitioner, v Barbara Kahnet al., Respondents. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to prohibit the respondents from enforcing an orderof the County Court, Suffolk County (Kahn, J.), dated October 3, 2007, which directed thepetitioner to furnish buccal swab samples upon notice from the District Attorney in connectionwith the investigation of the assault of a named individual.
Adjudged that the petition is denied and the proceeding is dismissed, without costs ordisbursements; and it is further,
Ordered that the temporary stay granted on consent of the parties on November 21, 2007 isvacated.
It is well settled that "a court order to obtain a blood sample of a suspect may issue providedthe People establish (1) probable cause to believe the suspect has committed the crime, (2) a'clear indication' that relevant material evidence will be found, and (3) the method used to secureit is safe and reliable" (Matter of Abe A., 56 NY2d 288, 291 [1982]). The Peoplesatisfactorily established each of these elements. Upon balancing the seriousness of the crime, theimportance of the evidence to the investigation, and the unavailability of less intrusive means ofobtaining the evidence, on the one hand, against a concern for the petitioner's constitutional rightto be free from bodily intrusion on the other (id.), we conclude that the petitioner failed todemonstrate "a clear legal right to the extraordinary remedy of prohibition" (Matter of DeFilippo v Rooney, 46AD3d 681, 682 [2007]). Spolzino, J.P., Miller, Dillon and McCarthy, JJ., concur.