                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   105773
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES M. ROSHIA JR.,
                    Appellant.
________________________________


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


     Albert F. Lawrence, Greenfield Center, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Rogers, J.), rendered March 21, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sexual
act in the first degree.

      Defendant, who owned a business that catered to young
adults interested in gaming, was arrested and charged in a
four-count indictment after he engaged in certain sexual conduct
with an 18-year-old woman in the back room of his business.
Following the indictment, County Court ordered defendant to
submit to a buccal swab. While in jail awaiting trial, defendant
allegedly solicited another person to murder the victim and to
set both the victim's body and the building housing his gaming
business on fire. He also allegedly committed insurance fraud by
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filing a claim to collect proceeds after he hired someone to
burglarize his business. In satisfaction of the four charges in
the indictment and the subsequent uncharged conduct, defendant
pleaded guilty to criminal sexual act in the first degree.
County Court sentenced defendant to a prison term of 10 years,
followed by 10 years of postrelease supervision and ordered
defendant to pay restitution in the amount of $11,253.09.
Defendant appeals.

      The People correctly concede that the appeal waiver was
invalid, given that County Court failed to inform defendant that
his appeal rights were separate and distinct from those rights
automatically forfeited upon a plea (see People v Bradshaw, 18
NY3d 257, 264-265 [2011]; People v Zabawczuk, 128 AD3d 1267,
1268-1269 [2015], lv denied 26 NY3d 937 [2015]). Turning to the
merits of the appeal, defendant contends that County Court erred
by directing him to provide a buccal swab (see CPL 240.40 [2] [b]
[v]). This challenge may be reviewed on appeal notwithstanding
defendant's plea (see CPL 710.70 [2]). In their application, the
People represented that the evidence included a sexual evidence
assault kit and that "a control sample of the defendant's DNA
[was] necessary to complete the analysis and subsequent
comparison." Defendant maintains that this showing was
inadequate, contending that the People were first required to
identify the presence of bodily fluid from another person on or
within the victim. In Matter of Abe A. (56 NY2d 288 [1982]), the
Court of Appeals held that a court order to obtain a bodily
sample from a suspect may be issued only where 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" (id. at 291; see People v Fomby,
103 AD3d 28, 29-30 [2012], lv denied 21 NY3d 1015 [2013]).
Essentially, defendant asserts no "clear indication" was
demonstrated. The standard enunciated in Matter of Abe A.
(supra), however, governs a pre-accusatory instrument application
to secure corporeal evidence from a suspect. Here, the grand
jury indictment provided the requisite probable cause and
statutory authority for County Court's order (see CPL 240.40 [2]
[b] [v]; People v Pryor, 14 AD3d 723, 725 [2005], lv denied 6
NY3d 779 [2006]; William C. Donnino, Practice Commentaries,
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McKinney's Cons Laws of NY, Book 11A, CPL 240.40 at 173).
Further, given the seriousness of the crime and the securing of a
sexual evidence assault kit, County Court had a reasoned basis to
issue the order.

      Defendant next contends that he received ineffective
assistance of counsel because his attorney did not adequately
investigate his case, was not responsive and did not keep him
apprised of developments during the pendency of his case.
Generally, an ineffective assistance claim does not lie "[s]o
long as the evidence, the law, and the circumstances of a
particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation" (People v Baldi, 54 NY2d 137, 147 [1981]; see
People v Desmond, 118 AD3d 1131, 1135 [2014], lv denied 24 NY3d
1002 [2014]). Further, "[i]t is well settled that in the context
of a guilty plea, a defendant has been afforded meaningful
representation when he or she receives an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness
of counsel" (People v Wares, 124 AD3d 1079, 1080 [2015], lv
denied 25 NY3d 993 [2015]; accord People v Vonneida, 130 AD3d
1322, 1322 [2015]).

      Here, after defendant wrote two letters to County Court
alleging that counsel coerced him into pleading guilty, counsel
sought to be relieved of her assignment. At a subsequent hearing
on the request, defendant detailed his claims with regard to
counsel's shortcomings, but he also confirmed that counsel
visited him in jail and properly requested and appeared at
pretrial hearings. The record confirms that counsel made
appropriate discovery requests, effectively cross-examined
witnesses at a suppression hearing and disputed the admissibility
of certain evidence. Counsel ensured that the uncharged crimes
were included in the plea, which was, in our view, highly
favorable. Accordingly, viewing the record in totality, we find
that defendant received meaningful representation (see People v
Cavallaro, 123 AD3d 1221, 1223 [2014]).

      Finally, defendant claims that County Court improperly
ordered him to pay restitution without first holding an
evidentiary hearing. Because defendant did not request a hearing
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or otherwise object to the amount awarded at sentencing, this
argument is not preserved for our review (see People v White, 119
AD3d 1286, 1287 [2014], lv denied 24 NY3d 1222 [2015]; People v
Leone, 101 AD3d 1352, 1353 [2012], lv denied 21 NY3d 913 [2013];
People v Empey, 73 AD3d 1387, 1389 [2010], lv denied 15 NY3d 804
[2010]).

         Peters, P.J., and Lahtinen, J., concur.


McCarthy, J., (dissenting).

      The relevant facts are uncontested. The People applied for
a court order to conduct a buccal swab of defendant in order to
obtain a sample of his DNA, and they asserted that such a sample
was necessary for comparative purposes. Despite the fact that
the People had obtained a sexual assault evidence kit, they did
not assure County Court that the kit contained evidence in the
form of DNA from an unidentified person. Given these facts, if
the sexual assault evidence kit was later tested and only
revealed the DNA of known persons, the governmental intrusion of
defendant's body would serve no probative purpose in regard to
the charged crimes.

      Nonetheless, the majority holds that, because defendant was
indicted, because he was charged with serious crimes and because
the People established that they had secured a sexual assault
evidence kit, it was reasonable to permit this governmental
intrusion upon defendant's body. I disagree and find that the
order was in violation of the Fourth Amendment. Accordingly, I
respectfully dissent.1

       In Matter of Abe A. (56 NY2d 288 [1982]), the Court of
Appeals set forth the governing legal test for the "Fourth
Amendment inquiry . . . focusing on [a] bodily intrusion" (id. at
297). As is relevant to this appeal, the Court established that,
in order to justify the intrusion upon a suspect's body for the


     1
        I agree with the majority's conclusion that defendant's
waiver of appeal was invalid.
                              -5-                105773

purpose of collecting evidence, the People must supply a court
with a "clear indication that the intrusion will supply
substantial probative evidence" (id. at 297 [internal quotation
marks omitted]). The satisfaction of the clear indication test
is "a sine qua non," that is, an indispensable requirement, of
any such intrusion (id. at 297 [emphasis omitted]). As
elucidated by the Supreme Court of the United States, this is
because the Fourth Amendment forbids "any [bodily] intrusions on
the mere chance that desired evidence might be obtained"
(Schmerber v California, 384 US 757, 770 [1966]; accord Gonzalez
v City of Schenectady, 728 F3d 149, 165 [2d Cir 2013]). In turn,
that principle renders an indictment and/or the seriousness of a
charged crime irrelevant to the inquiry in the event that the
People fail to satisfy the clear indication test (see e.g. Matter
of Valdes v DeRosa, 28 AD3d 781, 782-783 [2006]; Matter of David
M. v Dwyer, 107 AD2d 884, 886 [1985]).

      Turning to the indispensable requirement that the People
provide a "clear indication that the [proposed bodily] intrusion
will supply substantial probative evidence" (Matter of Abe A., 56
NY2d at 297 [internal quotation marks omitted]), the People
failed to assure County Court that they had DNA evidence within
their possession that would render defendant's DNA relevant to
the question of his guilt. In the absence of evidence from the
People that they have tested biological materials related to the
commission of an alleged crime and concluded that they came from
an unknown person, this Court and the Second Department have both
held that the People failed to clearly indicate that an intrusion
upon a suspect's body to obtain biological material for
comparison would supply substantial probative evidence (see
Matter of Valdes v DeRosa, 28 AD3d at 783; Matter of David M. v
Dwyer, 107 AD2d at 885-886). Pursuant to that precedent, which
is consistent with the application of the aforementioned rules, I
am constrained to conclude that the People failed to satisfy the
clear indication test here (see Matter of Valdes v DeRosa, 28
AD3d at 783; Matter of David M. v Dwyer, 107 AD2d at 885-886; see
generally Schmerber v California, 384 US at 770; Matter of Abe
A., 56 NY2d at 297-298). Given that this error undermines the
knowing, voluntary and intelligent nature of defendant's plea,
the conviction must be reversed (see e.g. People v George, 127
AD3d 1496, 1499 [2015]; People v Bradshaw, 76 AD3d 566, 572-573
                              -6-                  105773

[2010], affd 18 NY3d 257 [2011]).



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
