Edward J. Nowak, Public Defender of Monroe County (Mary P. Davison of counsel), for defendant.
Howard R. Relin, District Attorney of Monroe County (Gino M. Nitti of counsel), for plaintiff.
Kenneth R. Fisher, J.
Charged with first degree robbery and first degree sodomy on the sole basis of DNA evidence linking the defendant with the sodomy victim, defendant moves to suppress all evidence derived from the blood sample used for the DNA analysis. The blood sample was taken by Erie County authorities in connection with another case. The order was signed on February 15, 2000, after written application was made pursuant to Matter of Abe A. (56 N.Y.2d 288 ). Defendant attacks the sufficiency of the affidavit supporting the application for the order on the ground that the People did not establish probable cause to believe that the defendant committed the crime in Erie County. Defendant invokes the three-fold test of Matter of Abe A. (supra) which is that " a court order to obtain a blood sample of a suspect may issue provided 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.)
A preliminary question is presented whether the issue defendant raises is reviewable in this proceeding. There are two aspects to this: whether the court has jurisdiction to review a blood draw order issued in another county, and whether a determination of the probable cause issue in Erie County last month (the Erie County case has progressed along the same time line as this one) has preclusive effect here. On the first aspect, defendant points out that " the corporeal evidence order, like a search warrant, may be challenged by suppression motion in the event that petitioner is charged and may be reviewed on direct appeal in the event he is convicted." (Matter of Tucker v Buscaglia, 262 A.D.2d 979 [4th Dept. 1999].) The People concede that this court has jurisdiction to review the Erie County blood draw order, and it appears that the court must do so in resolving the motion to suppress. (Matter of James N. v D'Amico, 139 A.D.2d 302, 305 [4th Dept. 1988].)
The order at issue in this case, however, was made in a proceeding in Erie County, and was reviewed on a pretrial suppression motion in the criminal case that resulted from the blood draw there. (See People v Afrika, Sup Ct, Erie County, Sept. 10, 2001, indictment No. 98-2639, slip opn.) The decision in the Erie County case denied suppression on the grounds that (1) " the rape kit DNA comparison alone provided sufficient
probable cause to permit the granting of the blood draw application" (id. at 6), (2) the DNA comparison made it clear that relevant material evidence would result from the drawing of blood (id. at 8), and (3) the order granting the application provided that a safe and reasonable method for the taking of blood would be undertaken. (Id.) The parties have represented that the defendant was tried in Erie County very shortly after the motion to suppress was denied, and that he was convicted in late September.
Anticipating the ruling in Erie County, the People in this case, on oral argument held last August, contend that the determination in Erie County of probable cause together with the finding that the other Matter of Abe A. requirements were met precludes independent consideration of the same in this proceeding. They contend further that the court need only turn to People v King (232 A.D.2d 111, 117-118 [2d Dept. 1997]) to " conclude that it was neither unreasonable nor impermissible to utilize the defendant's blood sample" taken in the Erie County case to further the Rochester investigation resulting in this indictment. (Id. at 117.) The King case does not address the collateral estoppel issue. The Court found it necessary in King to determine the lawfulness of a blood draw order issued in a collateral case to resolve a motion to suppress (id. at 116), but there was no prior determination of a suppression motion in connection with the criminal proceeding in which the blood draw order was issued. Further examination beyond King is necessary to resolve the collateral estoppel issue.
The Supreme Court has not decided whether collateral estoppel can be applied against a defendant in a criminal case. (See United States v Gallardo-Mendez, 150 F.3d 1240, 1242 [10th Cir 1998]; United States v Pelullo, 14 F.3d 881, 890 [3d Cir 1994] [both making that observation and holding generally that collateral estoppel cannot be applied against a criminal defendant].) The New York Court of Appeals has twice left open the issue whether collateral estoppel or " issue preclusion should never be employed against a criminal defendant at any stage of the case." (People v Aguilera, 82 N.Y.2d 23, 31  [emphasis supplied], citing People v Plevy, 52 N.Y.2d 58 .) In each case, the issue was not reached because the doctrine was found inapplicable " in any event." (People v Aguilera, 82 N.Y.2d at 31.) The court has found only one reported New York case in which collateral estoppel was applied against a criminal defendant. (People v Carroll, 200 A.D.2d 630, 631 [2d Dept. 1994].) Nevertheless, " relevant decisional law demonstrates
that application of the doctrine in criminal cases is extremely limited." (People v Hilton,266 A.D.2d 233, 234 [2d Dept. 1999]; see e.g. People v Rumph,267 A.D.2d 1093 [4th Dept. 1999].) The two criminal proceedings at issue in this case have run a roughly parallel course, and there is an open question whether the Erie County order, entered only a month ago, lacks the requisite finality necessary for application of collateral estoppel. (People v Aguilera, 82 N.Y.2d at 31, n.) The pleadings and motion papers in the Erie County case were not submitted to this court. Furthermore, in deciding whether to apply collateral estoppel " the preeminent concern is to reach the correct result." (Id. at 30.) For these reasons, and because both the Supreme Court and our Court of Appeals have yet to decide whether collateral estoppel can ever be applied ...