| People v Augustus |
| 2018 NY Slip Op 05480 [163 AD3d 981] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyshawn Augustus, Appellant. |
Paul Skip Laisure, New York, NY (Alexis A. Ascher of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil JonFiretog, J.), rendered February 25, 2014, convicting him of murder in the second degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial of the defendant'smotion to controvert a search warrant authorizing the taking of a saliva sample from thedefendant and to suppress evidence seized thereunder.
Ordered that the judgment is reversed, on the law, the defendant's motion to controvert thesearch warrant and to suppress evidence seized thereunder is granted, and the matter is remittedto the Supreme Court, Kings County, for a new trial.
The defendant was convicted of murder in the second degree in connection with the shootingdeath of an individual in Brooklyn in December 2009.
The defendant failed to preserve for appellate review his contention that the Supreme Courterred by allowing prospective jurors who stated that they could not be fair and impartial to optout of serving on the jury without further inquiry (see CPL 470.05 [2]; People v King, 27 NY3d 147, 157[2016]; People v Santos, 150 AD3d1270, 1271 [2017]; People vCunningham, 119 AD3d 601 [2014]). Contrary to the defendant's contention, theexcusal of those jurors did not constitute a mode of proceedings error exempting him from therules of preservation (see People v Cunningham, 119 AD3d at 601; People v Casanova, 62 AD3d 88,91 [2009]). In any event, the defendant's contention is without merit (see People v Santos,150 AD3d at 1271).
However, the Supreme Court should have granted the defendant's motion to controvert thesearch warrant authorizing the taking of a saliva sample from the defendant. "To establishprobable cause, a search warrant application must provide sufficient information 'to support areasonable belief that evidence of a crime may be found in a certain place' " (People v Murray, 136 AD3d 714,714 [2016], quoting People v McCulloch, 226 AD2d 848, 849 [1996]; see People vPaccione, 259 AD2d 563, 564 [1999]). Here, as the People correctly concede, the affidavit ofthe detective submitted in support of the search warrant application was conclusory andinsufficient to establish probable cause to issue the warrant (see People v Oliver, 92 AD3d 900, 901 [2012]). The detectivestated that he believed [*2]evidence related to the victim's murdermay be found in the defendant's saliva based on his interview of witnesses, information suppliedto him by fellow police officers, and his review of police department records. However, thedetective did not identify the witnesses or indicate what information he obtained from them, anddid not specify what police department records he reviewed, or what information was containedin the records. Contrary to the People's contention, under the circumstances of this case, the errorin denying the defendant's motion, and in admitting the evidence concerning the defendant'sDNA profile obtained as a result, cannot be deemed harmless (see People v Crimmins, 36NY2d 230, 240-241 [1975]; People v Oliver, 92 AD3d at 901). Accordingly, thejudgment of conviction must be reversed, and a new trial ordered.
The defendant's remaining contentions either are without merit or need not be reached inlight of our determination. Austin, J.P., Roman, Cohen and Barros, JJ., concur.