Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered November 17, 2009.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 16, 2012
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
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  - )
and seven counts of robbery in the first degree (§ 160.15 , , ), 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.
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 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 ...