        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

202
KA 09-02653
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                OPINION AND ORDER

RYAN S. SMITH, DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

RYAN S. SMITH, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered November 17, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (five
counts), robbery in the first degree (seven counts), kidnapping in the
second degree (three counts), criminal use of a firearm in the first
degree (two counts), assault in the first degree, assault in the
second degree (two counts), criminal possession of a weapon in the
second degree, menacing a police officer, grand larceny in the third
degree and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law, the motion to suppress the DNA evidence is
granted, and a new trial is granted.

     Opinion by PERADOTTO, J.: On appeal from a judgment convicting
him upon a jury verdict of, inter alia, five counts of burglary in the
first degree (Penal Law § 140.30 [2] - [4]) and seven counts of
robbery in the first degree (§ 160.15 [1], [3], [4]), defendant
contends in his main and pro se supplemental briefs that County Court
erred in denying his motion to suppress DNA evidence because he lacked
notice of the application seeking to compel him to provide a buccal
swab and because the police used excessive force to obtain the swab.
We agree, and we therefore conclude that the judgment should be
reversed, defendant’s motion to suppress the DNA evidence should be
granted, and a new trial should be granted.

                                  I

     In July 2006, four men participated in two home invasion-style
armed robberies at two residences in Niagara Falls (hereafter, home
invasions). In December 2006, two men committed an armed robbery of a
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gas station in Niagara Falls (hereafter, gas station robbery).
Approximately two years later, defendant was convicted of assault in
the third degree in connection with an unrelated crime, and his DNA
was collected pursuant to Executive Law § 995. Defendant’s DNA was
entered into the CODIS system, and there was a “hit” indicating that
his DNA matched evidence collected in the 2006 home invasions and the
gas station robbery. By an order to show cause in August 2008, the
People sought to compel defendant to provide a buccal swab to the
Niagara Falls Police Department (NFPD). Defendant did not appear on
the return date of the order to show cause, and the court issued an
order requiring defendant to provide a buccal swab “to be taken by or
at the direction of the [NFPD].” The order indicates that defendant
was served with notice of the order to show cause and that the People
provided proof of service upon defendant. Defendant submitted to a
buccal swab pursuant to the order.

     According to the People, after that swab was obtained from
defendant, the DNA sample was sent to the incorrect lab and was
“compromised.” As a result, the People sought an order to collect a
second buccal swab from defendant by a letter to the court in
September 2008. The court issued a second order requiring defendant
to provide the NFPD with another buccal swab. It is undisputed that
defendant was not provided with notice of the People’s application for
a second buccal swab and was not served with the second order.
Thereafter, the police approached defendant on a street in Niagara
Falls, handcuffed him, and transported him to the police station for
the purpose of obtaining a buccal swab. When defendant refused to
open his mouth to allow the officers to obtain the buccal swab, the
police applied a taser to defendant’s bare skin for several seconds,
after which they were able to obtain the sample.

                                  II

     An order compelling an individual to provide corporeal evidence,
such as blood or saliva for DNA analysis, constitutes a search and
seizure within the meaning of the Fourth Amendment (see Skinner v
Railway Labor Executives’ Assn., 489 US 602, 618; Schmerber v
California, 384 US 757, 767; Matter of Abe A., 56 NY2d 288, 295).
Although no New York statute expressly authorizes courts to compel
uncharged suspects to supply a DNA sample (see Abe A., 56 NY2d at 293-
294; cf. CPL 240.40 [2]), the Court of Appeals has held that a court
may issue an order to obtain a blood sample from a suspect so long as
the People establish: “(1) probable cause to believe the suspect has
committed the crime, (2) a ‘clear indication’ that relevant material
evidence will be found, and (3) the method used to secure it is safe
and reliable. In addition, the issuing court must weigh the
seriousness of the crime, the importance of the evidence to the
investigation and the unavailability of less intrusive means of
obtaining it, on the one hand, against concern for the suspect’s
constitutional right to be free from bodily intrusion on the other.
Only if this stringent standard is met . . . may the intrusion be
sustained” (Abe A., 56 NY2d at 291). Here, the court determined that
the People satisfied the requirements of Abe A. set forth above, and
defendant does not expressly challenge that determination. Rather,
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defendant contends that (1) he was denied due process because the
second order compelling defendant to provide a buccal swab was not
made upon notice to him; and (2) the method of collecting the swab,
i.e., the use of the taser, was excessive and objectively
unreasonable. We agree with defendant on both counts, and thus that
reversal is required.

                                 III

     Addressing first defendant’s due process contention, we conclude
that defendant’s due process rights were violated when he was not
afforded an opportunity to appear before the court and contest the
second order compelling him to submit to a buccal swab (see US Const
Amend XIV; NY Const, art I, § 6). Where, as here, there are no
exigencies, we conclude that the People’s application for an order to
compel a suspect to provide a DNA sample must be made upon notice to
the suspect (see Abe A., 56 NY2d at 296; see also People v King, 161
Misc 2d 448, 452, affd 232 AD2d 111, lv denied 91 NY2d 875; People v
Latibeaudierre, 174 Misc 2d 60, 61-62). “After all, when frustration
of the purpose of the application is not at risk, it is an elementary
tenet of due process that the target of the application be afforded
the opportunity to be heard in opposition before his or her
constitutional right to be left alone may be infringed” (Abe A., 56
NY2d at 296). Indeed, as the United States Supreme Court stated,
“[t]he importance of informed, detached and deliberate determinations
of the issue whether or not to invade another’s body in search of
evidence of guilt is indisputable and great” (Schmerber, 384 US at
770).

     We reject the contention of the People that no notice was
required because defendant failed to appear in opposition to the
People’s first application for a buccal swab. Defendant’s failure to
object to the first order compelling him to provide a buccal swab does
not constitute a waiver to any subsequent such orders inasmuch as each
order constitutes a bodily intrusion warranting notice and an
opportunity to be heard (see Schmerber, 384 US at 770; Abe A., 56 NY2d
at 296; King, 161 Misc 2d at 452). Further, we disagree with the
dissent that, because defendant received notice of the first
application for a buccal swab, the People were not obligated to
provide notice of any further such applications. In our view, it does
not elevate form over substance with respect to defendant’s due
process rights to require the People to provide notice to an uncharged
suspect each and every time they seek authorization to invade the
individual’s body in search of evidence of guilt (see generally
Schmerber, 384 US at 770; Abe A., 56 NY2d at 296). Although the
People may not need to make a showing of probable cause upon each
successive application, defendant could contest, among other things,
the need for further buccal swabs and the availability of less
intrusive means of obtaining a DNA sample (see Abe A., 56 NY2d at
291). Inasmuch as the second order pursuant to which the DNA evidence
was obtained was entered in violation of defendant’s due process
rights, we conclude that the DNA evidence must be suppressed on that
ground (see Latibeaudierre, 174 Misc 2d at 61-62).
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                                  IV

     We further conclude that the DNA evidence must be suppressed
because the police utilized excessive force to obtain the buccal swab.
Claims that law enforcement officials used excessive force in the
course of making an arrest, investigatory stop, or other seizure of a
person “are properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard” (Graham v Connor, 490 US 386, 388; see
Mazzariello v Town of Cheektowaga, 305 AD2d 1118, 1119; Ostrander v
State of New York, 289 AD2d 463, 464). “Determining whether the force
used to effect a particular seizure is reasonable under the Fourth
Amendment requires a careful balancing of the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake” (Graham, 490 US at
396 [internal quotation marks omitted]). The test of reasonableness
under the Fourth Amendment “requires careful attention to the facts
and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he [or she] is
actively resisting arrest or attempting to evade arrest by flight”
(id.; see Tracy v Freshwater, 623 F3d 90, 96).

     Here, we conclude that the use of a taser to obtain the buccal
swab was objectively unreasonable under the circumstances (see Hammer
v Gross, 932 F2d 842, 846, cert denied 502 US 980). Although the
crimes at issue are unquestionably serious, the record establishes
that defendant posed no immediate threat to the safety of himself or
the officers, nor did he attempt to evade the officers by flight (see
Graham, 490 US at 396). The testimony at the suppression hearing
established that, when the two police officers approached defendant on
the street and told him that he had to be transported to the police
station, defendant did not resist and entered the police vehicle, even
though the police did not tell him why he had to accompany them.
While at the police station, defendant was placed in a secure room,
where he was handcuffed, seated on the floor, and surrounded by three
patrol officers and two detectives. It is undisputed that defendant
did not threaten, fight with, or physically resist the officers at any
time; rather, he simply refused to open his mouth to allow the
officers to obtain a buccal swab (cf. Orem v Rephann, 523 F3d 442,
444-445; Burkett v Alachua County, 250 Fed Appx 950, 950-954 [11th
Cir.], 2007 WL 2963844, *1-3; People v Hanna, 223 Mich App 466, 468,
472-475, lv denied 458 Mich 862, cert denied 528 US 1131). Notably,
the record reflects that defendant refused to open his mouth for, at
most, 10 to 15 minutes before the police used the taser to force him
to do so. Defendant was picked up by the police at approximately 6:00
P.M., and was tased at 6:18 P.M. During the intervening time, the
police drove defendant to the police station, consulted with their
superiors, and decided to utilize the taser. We cannot agree with the
suppression court that, after 10 to 15 minutes of asking a suspect to
comply with a court-ordered buccal swab of which the suspect had no
prior knowledge, it is reasonable for the police to tase a nonviolent,
handcuffed, and secured defendant in order to force the suspect into
submission (cf. J.B. Hickey v Reeder, 12 F3d 754, 759).
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Significantly, there were no exigent circumstances to justify the
failure to employ a less-intrusive alternative to the use of a taser.
An individual’s DNA, unlike blood-alcohol content or other types of
evanescent evidence, is not susceptible to alteration, destruction or
loss if not obtained in a timely manner (cf. Hanna, 223 Mich App at
473).

     While the People seek to characterize the use of a taser as a
“minimal” degree of force and emphasized at the suppression hearing
that defendant did not lose consciousness and suffered no visible
scarring or injuries, we note that “extreme pain can be inflicted with
little or no injury” (Hickey, 12 F3d at 757). The officers who
witnessed the tasing incident acknowledged that the use of a taser
causes pain and that, upon application of the taser, defendant
appeared to be in pain and shouted for the officers to stop using it.
Our review of a videotape of the tasing incident supports the
conclusion that defendant was in pain upon application of the taser to
his bare skin.

     Finally, we note that there were reasonable alternatives to the
use of the taser. For example, the police could have arrested
defendant for contempt, thereby securing him while awaiting court
intervention (see Abe A., 56 NY2d at 292-293). Indeed, after tasing
defendant and obtaining the buccal swab, the police in fact arrested
him for criminal contempt. The People then could have sought and,
upon good cause shown, received judicial approval to use physical
force if necessary to extract the DNA sample (see United States v
Bullock, 71 F3d 171, 176, cert denied 517 US 1126).

     We thus conclude that the use of a taser to obtain the buccal
swab was objectively unreasonable under the circumstances (see Graham,
490 US at 399), and that the DNA evidence therefore should have been
suppressed as the product of an unconstitutional search and seizure
(see generally Matter of Victor M., 9 NY3d 84, 86; People v Whetstone,
47 AD2d 995, 995).

                                  V

     Contrary to defendant’s further contention, we conclude that the
court did not abuse its discretion in denying that part of his omnibus
motion seeking to sever the counts relating to the home invasions from
the counts relating to the gas station robbery (see generally People v
Owens, 51 AD3d 1369, 1370-1371, lv denied 11 NY3d 740; People v
Dozier, 32 AD3d 1346, 1346, lv dismissed 8 NY3d 880). As defendant
correctly concedes, the charges relating to the home invasions and
those relating to the gas station robbery were properly joinable
pursuant to CPL 200.20 (2) (c) because, “[e]ven though based upon
different criminal transactions, . . . such offenses are defined by
the same or similar statutory provisions and consequently are the same
or similar in law” (id.). The record belies defendant’s contention
that there was substantially more proof of his involvement in the home
invasions than the gas station robbery (see CPL 200.20 [3] [a]).
Defendant was connected to both crimes by the presence of his DNA at
or near the crime scenes, and no witnesses to either incident were
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able to identify defendant.

                                  VI

     In light of our conclusion with respect to suppression of the DNA
evidence, there is no need to address defendant’s remaining
contentions. Accordingly, we conclude that the judgment should be
reversed, defendant’s motion to suppress the DNA evidence should be
granted, and a new trial on the indictment should be granted.

     All concur except SCUDDER, P.J., who dissents and votes to affirm
in the following Opinion: I respectfully dissent. In my view, under
the circumstances presented here, defendant’s due process and Fourth
Amendment rights in connection with obtaining a buccal swab from
defendant’s mouth were not violated and thus I disagree with the
majority’s determination to reverse the judgment and grant defendant’s
motion to suppress the DNA evidence retrieved from that swab.

     It is essentially undisputed that County Court properly
determined that the People established that there was probable cause
to believe that defendant committed both the home invasions and the
gas station robbery based upon DNA located at both crime scenes that
matched information regarding defendant’s DNA contained in the CODIS
data base. With respect to defendant’s due process rights, it is well
established that defendant was entitled to notice of the application
to obtain a buccal swab in order to provide him with the opportunity
to contest the People’s contention that probable cause existed to
believe that he was involved in the robberies before he could be
compelled by police to provide a buccal swab (see generally Matter of
Abe A., 56 NY2d 288, 296). The issue then is whether defendant’s due
process rights were violated when the People asked the court to issue
a second order because the sample obtained pursuant to the first order
was compromised, without providing notice to defendant of that
request. I respectfully disagree with the majority’s conclusion that
defendant’s due process rights were violated by the failure of the
People to provide defendant with notice of that second request.

     Defendant was “afforded the opportunity to be heard in
opposition” to the People’s initial application (id.), and he failed
to appear to oppose the application. The People’s second application
was nothing more than a duplicate of their first application, which
had been determined by the court to have met the “stringent standard”
that a buccal swab was a minimally intrusive means to obtain evidence
that was critical for the investigation of serious crimes (id. at
291). In my view, defendant was properly given the requisite notice
that the People sought evidence in the form of a buccal swab to
connect him to both the home invasions and the gas station robbery
(see id. at 296), and thus the court properly determined that his due
process rights were not violated when the People sought a duplicate
order. In my view, to conclude otherwise, under the unique
circumstances presented here, improperly places the form of the
required due process protection over its substance.

     I also respectfully disagree with the majority that defendant’s
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Fourth Amendment rights were violated by the very brief use of a taser
to effectuate defendant’s cooperation to obtain the buccal swab.
“Determining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of
the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests
at stake” (Graham v Connor, 490 US 386, 396 [internal quotation marks
omitted]). Although defendant did not physically resist the police,
he repeatedly and adamantly refused to open his mouth to provide the
requested DNA sample and, indeed, repeated several times that the
police would have to “tase” him to get a sample. Inasmuch as the
police were familiar with defendant’s violent tendencies, and after
consultation with their superiors, the officers made the determination
that the risk to officer safety and to defendant’s safety would be
reduced by the use of the drive stun on defendant’s shoulder, rather
than by an attempt to compel defendant to open his mouth by any other
means requiring the use of force. They therefore placed defendant on
the floor to reduce the risk of injury in the event that defendant
struggled or fell. The recording device on the taser established that
it was in use for a total of five seconds. An officer testified that
it takes 1½ seconds for the device to turn on and 1½ seconds to turn
off. Thus, although pain was inflicted for approximately two to three
seconds, the officer testified that the pain experienced by defendant
stopped immediately when the trigger was off. Although I do not
disagree with the majority that the police could have sought judicial
intervention for permission to use force (see United States v Bullock,
71 F3d 171, 176, cert denied 517 US 1126), I nevertheless submit that
the failure to do so does not render the officers’ actions
“ ‘objectively [un]reasonable’ in light of the facts and circumstances
confronting them” (Graham, 490 US at 397). In my view, because
defendant was “actively,” albeit not physically, resisting the police,
and because another method to obtain the sample would likely result in
injury to defendant and/or the officers, and in light of the
seriousness of the crimes, the test whether the use of force was
reasonable under the Fourth Amendment has been met here (id. at 396).

     The United States Supreme Court, while recognizing that “[t]he
overriding function of the Fourth Amendment is to protect personal
privacy and dignity against unwarranted intrusion by the State”
(Schmerber v California, 384 US 757, 767), further recognized that
there are circumstances warranting intrusion and thus provided
guidance for courts in determining whether the Fourth Amendment has
been violated in a particular circumstance (see id. at 769-771). In
my view, the instant circumstance is one in which the intrusion by the
State was warranted. First, the procedure utilized to obtain the
necessary DNA evidence, i.e., a buccal swab, did not pose any risk to
defendant’s health or safety (see Bullock, 71 F3d at 176). Second,
defendant’s dignity was not infringed upon by using a buccal swab to
obtain the evidence, despite the need to use reasonable force in light
of defendant’s steadfast refusal to open his mouth (see id.). Third,
the “need for the scientific evidence from the [saliva] samples was
great” (id. at 177). Thus, I submit that the court properly
determined that defendant’s Fourth Amendment rights were not violated.
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Accordingly, I would therefore affirm the judgment.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
