| Matter of Edwards v DeRosa |
| 2012 NY Slip Op 06141 [98 AD3d 979] |
| September 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Theodore Edwards, Petitioner, v NicholasDeRosa, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Andrew H. Meier of counsel), forrespondent (no memorandum filed). Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel),nonparty pro se.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit theenforcement of an order of the County Court, Orange County (DeRosa, J.), dated June 29, 2012,which directed the petitioner to provide buccal swab samples upon notice from the DistrictAttorney in connection with the investigation of a crime, and application by the petitioner toprosecute this proceeding as a poor person.
Ordered that the application for leave to prosecute this proceeding as a poor person is grantedto the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application isotherwise denied as academic; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed on the merits, withoutcosts or disbursements.
"[A] court order to obtain a [bodily] sample of a suspect may issue provided the Peopleestablish (1) probable cause to believe the suspect has committed the crime, (2) a 'clearindication' that relevant material evidence will be found, and (3) the method used to secure it issafe and reliable" (Matter of Abe A., 56 NY2d 288, 291 [1982]; see Matter of Marino v Kahn, 49 AD3d741, 741 [2008]). The People satisfactorily established each of these elements. Uponbalancing the seriousness of the crime, the importance of the evidence to the investigation, andthe unavailability of less intrusive means of obtaining the evidence, on the one hand, against aconcern for the petitioner's constitutional right to be free from bodily intrusion on the other(see Matter of Abe A., 56 NY2d at 291), we conclude that the petitioner failed todemonstrate "a clear legal right to the extraordinary remedy of prohibition" (Matter of Marinov Kahn, 49 AD3d at 741 [internal quotation marks omitted]; see Matter of Solheim v Weber, 68AD3d 1002, 1002 [2009]). Dickerson, J.P., Leventhal, Belen and Austin, JJ., concur.