| People v Gibson |
| 2010 NY Slip Op 05038 [74 AD3d 1700] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey D.Gibson, Appellant. |
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Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered March 19, 2008. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robberyin the first degree (Penal Law § 160.15 [4]), defendant contends that Supreme Court erredin refusing to suppress evidence establishing that his DNA matched the DNA obtained from aknitted cap found a short distance from the scene of the robbery. According to defendant, hisindelible right to counsel was violated because, despite knowing that defendant was in custodyon an unrelated charge for which he was represented by counsel, a police investigator offereddefendant a cigarette for the purpose of obtaining DNA evidence from his saliva in an effort tolink him to the instant robbery. Defendant was in custody at the police station at that timepursuant to a bench warrant issued on the unrelated charge. Defendant had asked to speak to acertain investigator known to him from prior dealings, and the investigator offered defendant thecigarette during their conversation in the investigator's office. At the time, the investigatorsuspected defendant of having committed the robbery at issue herein, and the police had DNAevidence from the knitted cap worn by the perpetrator. Defendant smoked the cigarette and leftits remains in an ashtray at the completion of the conversation. A DNA test later showed thatdefendant's DNA from the cigarette matched that obtained from the cap, and defendant wasthereafter charged with the commission of the robbery.
Because formal proceedings had not been commenced against defendant with respect to therobbery charge, defendant's right to counsel arose from the unrelated charge pursuant to the FifthAmendment and its state counterpart (see Miranda v Arizona, 384 US 436, 466 [1966];People v Settles, 46 NY2d 154, 161 [1978]). It is well established that the rights set forthin the Fifth Amendment do not apply to evidence that is not "testimonial or communicative" innature (Schmerber v California, 384 US 757, 761 [1966]; see People v Hawkins,55 NY2d 474, 482 [1982], cert denied 459 US 846 [1982]). As the Court of Appeals hasexplained, "[e]vidence is 'testimonial or communicative' when it reveals a person's subjectiveknowledge or thought processes" (People v Hager, 69 NY2d 141, 142 [1987]). The FifthAmendment thus does not protect an accused from being compelled to produce " 'real or physicalevidence' " (Pennsylvania v Muniz, 496 US 582, 582 [1990], quoting Schmerber,384 US at 764). For example, a person suspected of driving while intoxicated is not required toreceive Miranda warnings before being asked by the police to submit to field sobrietytests or a chemical test to determine his or her blood alcohol content (see People v Berg,92 NY2d 701, 703 [1999]; Hager, 69 NY2d at 142), nor does the taking of a handwritingsample from a suspect in custody who refuses to answer questions in the absence of counsel runafoul of the Fifth Amendment (see Gilbert v California, 388 US 263, 266 [1967]). Weconclude that the DNA from defendant's saliva is analogous to the blood alcohol content of ablood sample, and thus can be viewed only as real or physical evidence because it is nottestimonial or communicative in nature under the definition set forth in Hager (seee.g. Wilson v Collins, 517 F3d 421, 430 [2008]; United States v Zimmerman, 514F3d 851, 855 [2007]).
Inasmuch as the Fifth Amendment right of defendant against self-incrimination was notviolated by the surreptitious seizure of his saliva by the police, it necessarily follows that hisderivative right to counsel under the Fifth Amendment was not thereby violated either. Indeed,we note that the Supreme Court in Schmerber held that a petitioner whose blood wasdrawn without his consent and against the advice of his attorney was not deprived of his rightagainst self-incrimination or his right to counsel. The Court in Schmerber reasoned, interalia, that the evidence in question was not testimonial or communicative in nature and thus thatthe petitioner's Fifth Amendment rights were not violated (384 US at 765). The Court furtherreasoned that, because the petitioner was not entitled to assert a privilege againstself-incrimination, he also was not denied his right to counsel. The Court wrote that, "[s]ince[the] petitioner was not entitled to assert the privilege [against self-incrimination], he has nogreater right because counsel erroneously advised him that he could assert it" (id. at766). Although the right to counsel under the New York State Constitution is broader than thatunder the Federal Constitution (see People v Ramos, 99 NY2d 27, 33 [2002]), New Yorkjurisprudence parallels federal law with respect to the scope of Fifth Amendment protection(see Hawkins, 55 NY2d at 482). We thus conclude that the police did not violatedefendant's right to counsel by obtaining defendant's DNA from the saliva on the discardedcigarette.
As further support for our determination, we note that, were we to agree with the dissent, aperson stopped by the police on suspicion of driving while intoxicated could refuse withoutconsequence to submit to field sobriety tests and a chemical test if he or she happened to berepresented by counsel on pending charges or, indeed, if he or she simply asked for an attorney.Because under those circumstances the right to counsel previously would have attached or wouldthereby be invoked upon the request for an attorney, the refusal of the suspect to consent to thetests could not be used against him or her at trial, thus making it virtually impossible in manycases for the prosecution to obtain a conviction. Although the suspect, by virtue of operating avehicle in New York State, may under certain conditions be deemed to have consented to achemical test (see Vehicle and Traffic Law § 1194 [2] [a] [1]), state law cannot, ofcourse, override constitutional provisions, including the right to counsel. We thus cannot agreewith the dissent's conclusion, which, in our view, stems from an overly broad interpretation ofthe right to counsel in the Fifth Amendment context and could have far-reaching consequences.
We reject the further contentions of defendant that the evidence is legally insufficient tosupport the conviction and that the verdict is against the weight of the evidence. Clothing wornby the perpetrator was found by the police in the backyard of a residence approximately 200yards from the scene of the robbery, including the knitted cap with the DNA matching that ofdefendant. In addition, defendant's girlfriend was observed near the scene of the robbery shortlyafter the crime was committed, and she and defendant were seen walking together approximatelya half mile from the crime scene less than an hour later. Finally, defendant matched the general[*2]description of the perpetrator, whose face was covered byclothing during the robbery. Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid lineof reasoning and permissible inferences to support the jury's finding that defendant committedthe robbery based on the evidence presented at trial (see generally People v Bleakley, 69NY2d 490, 495 [1987]). In addition, viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Finally, we have reviewed defendant's remaining contentions and conclude that nonewarrants reversal.
All concur except Green, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Green, J. (dissenting). I respectfully dissent. I cannot agree with the majority that SupremeCourt properly refused to suppress DNA evidence obtained from defendant because, asdefendant correctly contends, that evidence was obtained in violation of his right to counsel. Therecord of the suppression hearing establishes that, when that evidence was obtained, defendantwas in custody on unrelated charges and was represented by counsel on those charges.Consequently, he could not be interrogated on any matter, " 'whether related or unrelated to thesubject of the representation' " (People v Burdo, 91 NY2d 146, 149 [1997]). Theinvestigating detective was aware that defendant was represented by counsel, but neverthelessdevised a scheme to obtain DNA evidence from him in counsel's absence. The detective wasacquainted with defendant, knew that he was a smoker and did not have access to cigaretteswhile incarcerated, and would likely request a cigarette from the detective. As in People vFerro (63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]), the detectiveengaged in conduct that was " 'reasonably likely to elicit an incriminating response' " fromdefendant (see People v Kollar, 305 AD2d 295, 297 [2003], appeal dismissed 1NY3d 591 [2004]), and that was designed to circumvent defendant's right to counsel.
"The indelible right to counsel arises from the provision of the State Constitution thatguarantees due process of law, the right to effective assistance of counsel and the privilegeagainst compulsory self-incrimination" (People v Grice, 100 NY2d 318, 320 [2003]).Further, under the State Constitution, a waiver of rights may be obtained from a criminal suspectwho is actually and known by the police to be represented by counsel only in the presence ofcounsel (see People v Grimaldi, 52 NY2d 611, 616 [1981]). "Underlying the rule is theconcept that a criminal defendant confronted by the awesome prosecutorial machinery of theState is entitled, at a bare minimum, to the advice of counsel when he is considering surrender ofhis valuable legal rights" (id.). The advice of counsel, moreover, is "no less important ifthe police seek a relinquishment of defendant's constitutional right to be secure againstunreasonable searches and seizures than if they seek a waiver of his privilege againstself[-]incrimination" (People v Johnson, 48 NY2d 565, 569 [1979]; see People vEsposito, 68 NY2d 961, 962 [1986]).
Consistent with the right to be secure against unreasonable searches and seizures, the Peoplemay obtain nontestimonial evidence such as a DNA sample from a suspect pursuant to a courtorder, "subject to constitutional limitation" (CPL 240.40 [2] [b]; see Matter of Abe A.,56 NY2d 288, 291 [1982]; People vAfrika, 13 AD3d 1218, 1219 [2004], lv denied 4 NY3d 827 [2005]).Alternatively, the People may obtain a DNA sample with a suspect's consent, provided that theconsent "was voluntary and not the product of coercion" (People v Dail, 69 AD3d 873, 874 [2010]). Here, however,defendant was actually and known by the police to be represented by counsel, and thus it wouldhave been constitutionally impermissible for the detective to seek defendant's consent to providea DNA sample before defendant had been permitted access to counsel (see People vLoomis, 255 AD2d 916 [1998], lv denied 92 NY2d 1051 [1999]). In my view, it wasno less constitutionally impermissible to obtain such a sample from defendant without hisknowledge or consent, i.e., by way of trickery, before he had been permitted access to counsel. Itherefore would reverse the judgment, grant that part of defendant's motion seeking to suppressthe DNA evidence obtained from defendant while he was in custody, and grant a new trial.Present—Scudder, P.J., Fahey, Lindley and Green, JJ.