| People v Sterling |
| 2008 NY Slip Op 09667 [57 AD3d 1110] |
| December 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark C. Sterling,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), renderedMay 18, 2007, convicting defendant upon his plea of guilty of the crimes of rape in the first degree (twocounts), burglary in the second degree (two counts) and sodomy in the first degree.
While incarcerated at the Tioga County Jail for the commission of an unrelated offense, defendantwas asked to provide a DNA sample in connection with the investigation of two incidents involving theburglary and rape of female victims. Upon his refusal, a jail correction officer was instructed to retainthe remnants from defendant's lunch meal tray for the purpose of DNA analysis. Based on, amongother things, the results of a DNA comparison of a milk carton acquired by the correction officer andthe vaginal swabs contained in the victims' rape kits, defendant was charged with crimes arising out ofthe incidents.
Defendant moved to suppress the DNA evidence obtained from his milk carton as the product ofan unlawful search. Following a Mapp hearing, County Court found it admissible. Defendanteventually pleaded guilty to the crimes of rape in the first degree (two counts), burglary in the seconddegree (two counts) and sodomy in the first degree and was sentenced to an aggregate prison term of18 years and five years of postrelease supervision. This appeal ensued.[*2]
We discern no error in County Court's denial of defendant'smotion to suppress the DNA evidence obtained from the milk carton. In seeking suppression,defendant must establish standing by demonstrating a legitimate expectation of privacy in the objectsearched (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People vWesley, 73 NY2d 351, 358-359 [1989]). "This burden is satisfied if the [defendant] subjectivelymanifested an expectation of privacy with respect to the . . . item searched that societyrecognizes to be objectively reasonable under the circumstances" (People v Burton, 6 NY3d 584, 588 [2006] [citation omitted]; see People v O'Brien, 2 AD3d 1222,1224 [2003], lv denied 2 NY3d 743 [2004]).
The evidence at the hearing established that the milk carton was a disposable item provided todefendant that defendant knew would be collected by jail personnel upon completion of his meal. Tothe extent that defendant argues that he was ordered to turn over his lunch tray before he hadcompleted his meal, County Court credited the contrary testimony of the correction officer over that ofdefendant, a determination that we accord great deference and will not disturb, where, as here, it issupported by the record (see People vRussell, 41 AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008]; People v Bermudez, 31 AD3d 968,968 [2006], lv denied 8 NY3d 944 [2007]). Thus, defendant did not subjectively exhibit anexpectation of privacy in the milk carton by "seek[ing] to preserve [it] as private" (People vRamirez-Portoreal, 88 NY2d at 108). Furthermore, considering, among other things, thediminished expectation of privacy in the jail and prison context (see Bell v Wolfish, 441 US520, 557 [1979]; People v Frye, 144 AD2d 714, 714 [1988], lv denied 73 NY2d891 [1989]; see also People v Mendoza,50 AD3d 478, 479 [2008]), it simply cannot be said that society would recognize as reasonablean expectation of privacy in a disposable milk carton provided to an incarcerated individual.
Nor did defendant retain an expectation of privacy in the DNA gleaned from the milk carton. As"[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignityagainst unwarranted intrusion by the State" (Schmerber v California, 384 US 757, 767 [1966][emphasis added]), it can hardly be disputed that defendant enjoyed the right to be free fromunreasonable intrusions into his body for the purpose of obtaining his bodily fluids or, in this case, DNA(see Vernonia School Dist. 47J v Acton, 515 US 646, 652 [1995]; Schmerber vCalifornia, 384 US at 767-768). However, it is equally clear that once defendant drank from themilk carton, which was thereafter lawfully obtained by police, he no longer retained any expectation ofprivacy in the discarded genetic material (see State v Athan, 160 Wash 2d 354, 374, 158 P3d27, 37 [2007]; see also Piro v State, 190 P3d 905, 910 [Idaho 2008]; see generallyUnited States v Mara, 410 US 19, 21 [1973]; Abel v United States, 362 US 217,240-241 [1960]). Indeed, "once constitutional concerns have been satisfied, a [genetic] sample is notunlike other tangible property which can be subject to a battery of scientific tests" (People vKing, 232 AD2d 111, 118 [1997], lv denied 91 NY2d 875 [1997]).[FN*]
Nor was defendant's plea rendered involuntary by his statement during the colloquy that he wasintoxicated at the time he allegedly committed the second burglary and rape or his inability to recall allof the specific facts regarding those crimes. "As long as the court takes[*3]'precautions to assure that the defendant is aware of what he is doing,' itmay accept a guilty plea even though defendant's recitation of the underlying facts fails to establish allthe elements of the crimes to which the defendant has pleaded guilty" (People v Munck, 278AD2d 662, 663 [2000], quoting People v Serrano, 15 NY2d 304, 310 [1965]). Further,where a defendant's plea allocution "raises the possibility of a defense such as intoxication, the trialcourt is obligated to inquire whether the defendant is aware of the defense and whether his or herwaiver of it is intelligent and voluntary" (People v Munck, 278 AD2d at 663; see People vOsgood, 254 AD2d 571, 572 [1998]). Here, when defendant stated that he could not recallcertain aspects of the crimes because he was intoxicated, County Court immediately advised defendantthat the crimes to which he was pleading required criminal intent, discussed with him the possibility ofthe intoxication defense and how that defense operated, and explained that by pleading guilty, he wouldwaive his right to assert this defense at trial. Defendant then confirmed his understanding of theintoxication defense and that he was forgoing his right to pursue this defense at trial. Thus, havingassured that defendant's waiver of the potential intoxication defense was knowing and voluntary,County Court properly accepted defendant's plea of guilty (see People v Munck, 278 AD2d at663; People v Moore, 270 AD2d 715, 716 [2000], lv denied 95 NY2d 800 [2000];compare People v Osgood, 254 AD2d at 572-573; People v Braman, 136 AD2d382, 384-385 [1988], lv denied 72 NY2d 911 [1988]).
Next addressing defendant's ineffective assistance of counsel claim, to the extent that this claimimpacts the voluntariness of his plea, defendant's failure to move to withdraw his plea or to vacate thejudgment of conviction renders the issue unpreserved for our review (see People v Clark, 52 AD3d 951,952 [2008]; People v McKeney, 45AD3d 974, 975 [2007]). Further, insofar as defendant's arguments relate to counsel's deficienciesin the preparation and investigation of his case or otherwise involve matters outside the record, suchclaims are more properly the subject of a CPL article 440 motion (see People v Feliz, 51 AD3d 1278, 1279 [2008]; People v Douglas, 38 AD3d 1063,1064 [2007], lv denied 9 NY3d 843 [2007]). Notwithstanding his remaining claimeddeficiencies on the part of counsel, the record as a whole establishes that defendant received meaningfulrepresentation, particularly in view of the advantageous plea agreement which reduced his sentencingexposure (see People v Ford, 86 NY2d 397, 404 [1995]; People v Decker, 32 AD3d 1079, 1080 [2006]).
Finally, defendant's sentence was not harsh and excessive. Considering, among other things, hisprior criminal history and the fact that he could have received consecutive sentences for each of thecrimes pleaded to, we find no abuse of discretion or extraordinary circumstances warranting reductionof the sentence (see People v Hammond,45 AD3d 1060, 1061 [2007]; People vKelly, 37 AD3d 866, 868 [2007], lv denied 8 NY3d 986 [2007]).
Defendant's remaining contentions have been reviewed and found to be without merit.
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant provides no support, andwe have found none, for his contention that an individual perpetually retains a right to privacy in thegenetic material, fingerprints or other evidence of identity which he or she constantly leaves in publicplaces and on objects.