| People v Garcia |
| 2012 NY Slip Op 08886 [101 AD3d 1604] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank Garcia,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedSeptember 1, 2009. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree (two counts) and kidnapping in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentence imposed for murder in the first degree under count one of theindictment shall run concurrently with the sentence imposed for murder in the first degree undercount two of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts each of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]) andkidnapping in the second degree (§ 135.20). Contrary to the contention of defendant,County Court did not abuse its discretion in denying his motion for a mistrial based on aviolation of the court's Ventimiglia ruling (see generally People v Ortiz, 54 NY2d288, 292 [1981]). Any prejudice resulting from the Ventimiglia violation was alleviatedby the court's curative instruction (seePeople v Allen, 78 AD3d 1521, 1521 [2010], lv denied 16 NY3d 827 [2011]). Inany event, the error is harmless inasmuch as there is overwhelming evidence of guilt, and there isno significant probability that the single statement by the witness affected the jury's verdict orthat the absence of the error would have led to an acquittal (see People v Orbaker, 302AD2d 977, 978 [2003], lv denied 100 NY2d 541 [2003]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's further contention, the court did not abuse its discretion in denyingdefense counsel's request for an adjournment of the trial to allow him additional time to preparefor trial. Defense counsel had notice of the trial date over five months in advance, thereby givinghim sufficient time to prepare, and defendant did not demonstrate that he was prejudiced by thecourt's denial of his request for an adjournment (see People v Peterkin, 81 AD3d 1358, 1360 [2011], lvdenied 17 NY3d 799 [2011]; Peoplev Bones, 50 AD3d 1527, 1528 [2008], lv denied 10 NY3d 956 [2008]). Indeed,the record demonstrates that defense counsel was well prepared to represent defendant.Additionally, defendant's contention that the court erred in refusing to suppress the identificationevidence is without merit inasmuch as the lineup was not unduly suggestive (see People vCorchado, 299 AD2d 843, 844 [2002], lv denied 99 NY2d 581 [2003]; seegenerally People v [*2]Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]).
We agree with defendant, however, that the court erred in refusing to suppress the evidenceobtained from a buccal swab. As the court properly determined, the taking of the swab afterdefendant had invoked his right to counsel was error inasmuch as defendant could not consent tothe seizure in the absence of counsel (see People v Loomis, 255 AD2d 916, 916 [1998],lv denied 92 NY2d 1051 [1999]). Nevertheless, the court denied the motion afterconcluding that the evidence was admissible under the inevitable discovery doctrine. That waserror. The inevitable discovery doctrine provides that "evidence obtained as a result ofinformation derived from an unlawful search or other illegal police conduct is notinadmissible under the fruit of the poisonous tree doctrine where the normal course of policeinvestigation would, in any case, even absent the illicit conduct, have inevitably led to suchevidence" (People v Fitzpatrick, 32 NY2d 499, 506 [1973], cert denied 414 US1033 [1973] [emphasis added]; see People v Turriago, 90 NY2d 77, 85 [1997], reargdenied 90 NY2d 936 [1997]). It thus follows that the inevitable discovery doctrine does notapply where "the evidence sought to be suppressed is the very evidence obtained in the illegalsearch [and seizure]" (People v Stith, 69 NY2d 313, 318 [1987]; see Turriago, 90NY2d at 86; People v James, 256 AD2d 1149, 1149 [1998], lv denied 93 NY2d875 [1999]). Here, the DNA sample from the buccal swab that defendant sought to suppress was"the very evidence that was obtained as the immediate consequence of the illegal police conduct"(James, 256 AD2d at 1149). While the People are correct that they could have obtained acourt order to compel defendant to give a DNA sample, they should have done just that insteadof relying on the inevitable discovery doctrine, which was not applicable (see e.g. People v Doll, 98 AD3d356, 362 [2012]). We conclude, however, that the error is harmless. As noted, the evidenceof defendant's guilt is overwhelming, and we conclude that there is no reasonable possibility thatthe erroneously admitted evidence contributed to defendant's conviction (see People vVaughn, 275 AD2d 484, 488 [2000], lv denied 96 NY2d 788 [2001]; seegenerally Crimmins, 36 NY2d at 237).
Finally, we agree with defendant that the consecutive sentences imposed for murder in thefirst degree under counts one and two of the indictment are illegal, and we therefore modify thejudgment by directing that the sentences on those counts run concurrently (see People v Rosas, 8 NY3d 493,495 [2007]; People v Ojo, 43 AD3d1367, 1368 [2007], lv denied 10 NY3d 769 [2008], reconsideration denied11 NY3d 792 [2008]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche,JJ.