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In re Johnson

Supreme Court of New York, Second Department

July 10, 2013

In the Matter of Sincere Johnson, petitioner,
v.
Ruth Shillingford, etc., et al., respondents.

Valerie A. Hawkins, Hempstead, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent Ruth Shillingford.

RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL JEFFREY A. COHEN ROBERT J. MILLER, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from enforcing an order of the respondent Ruth Shillingford, an Acting Justice of the Supreme Court, Kings County, dated January 8, 2013, in a criminal action entitled People v Johnson, pending in that court under Indictment No. 3621/12, which granted the motion of the respondent Charles J. Hynes, District Attorney, Kings County, to compel the petitioner to submit to a buccal swab for the purpose of DNA testing.

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

"[A] court order to obtain a [bodily] 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" (Matter of Abe A., 56 N.Y.2d 288, 291; see Matter of Edwards v DeRosa, 98 A.D.3d 979). "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" (Matter of Abe A., 56 N.Y.2d at 291). Here, the petitioner concedes that, in support of their motion to compel a buccal swab for the purpose of DNA testing (see CPL 240.40[2][b][iv]), the People established probable cause, a "clear indication" that relevant material evidence will be found, and that the method used to secure it is safe and reliable, but nevertheless contends that the People's motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime (see People v Hills, 140 A.D.2d 71, 77; see also People v Andrade, 87 A.D.3d 160, cert denied _____ U.S. _____, 132 S.Ct. 1871; People v Magnetti, 78 A.D.3d 863; People v Robinson, 251 A.D.2d 602; Old Chief v United States, 519 U.S. 172, 186-187), and "the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor's discretion" (People v Hills, 140 A.D.2d at 77; see People v Robinson, 251 A.D.2d 602, affd 93 N.Y.2d 986). Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied (see Matter of Edwards v DeRosa, 98 A.D.3d 979; Matter of Weissman v Lange, 4 A.D.3d 478; Matter of Dunnigan v Weissman, 181 A.D.2d 731).

The petitioner's remaining contentions are without merit.

BALKIN, J.P., LEVENTHAL, COHEN and MILLER, JJ., concur.


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