Opinion
Indictment No. 70053-23
07-07-2023
THE PEOPLE OF THE STATE OF NEW YORK, v. DARWIN S. GONZALEZ-MENDOZA (DOB: September 9, 1973), Defendant.
PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE Attn: ADA Melissa Lynch. PUTNAM COUNTY LEGAL AID SOCIETY, INC. Attorneys for Defendant Darwin S. Gonzalez-Mendoza Attn: Marisa N. Finkclbcrg, Esq.
Unpublished Opinion
PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE Attn: ADA Melissa Lynch.
PUTNAM COUNTY LEGAL AID SOCIETY, INC. Attorneys for Defendant Darwin S. Gonzalez-Mendoza Attn: Marisa N. Finkclbcrg, Esq.
DECISION & ORDER
Anthony R. Mole Judge.
The following papers were read and considered on: (1) the motion by the PEOPLE OF THE STATE OF NEW YORK (seq. no. 1), made pursuant to CPL 245.40 (1), for an order to compel DARWIN S. GONZALEZ-MENDOZA (defendant) to submit to a buccal saliva swab; and (2) defendant's cross motion for a protective order of his DNA profile should the People's motion for a court-ordered swab be granted (mot. seq. no. 2):
Papers:
Notice of Motion, People's Affirmation in Support, and People's Proposed Order Defendant's Notice of Cross Motion, Affirmation in Opposition, and Exhibits A-B
Upon review of the foregoing papers, the Court finds and determines as follows:
In March 2023, defendant was charged in a four-count indictment with rape in the third degree (counts one and two), endangering the welfare of a child (count three), and forcible touching (count four). A bench warrant was issued for defendant when the indictment was filed.
In April of 2023, he was extradited from Texas when the indictment was unsealed at arraignment. He has been remanded to the County Jail since his arraignment to face the criminal charges. He was arraigned upon said charges on April 24, 2023 when he entered a plea of not guilty.
On May 19, 2023, the People filed a motion, under CPL 245.40 (1), for an order to compel defendant to submit to a buccal saliva swab for purposes of obtaining his DNA (Deoxyribonucleic Acid). Defendant opposes and filed a cross motion on June 6, 2023 for the issuance of a protective order, under CPL 245.70 and Executive Law § 995-d, in the event the People's motion is granted to protect confidentiality of his DNA profile.
Both motions are fully submitted. The Court will address each in turn.
I. The People's Motion to Collect DNA Samples from Defendant
Turning first to the People's motion, relevant here is CPL 245.40 (1) (e), which states that "[a]fter the filing of an accusatory instrument, and subject to constitutional limitations, the court may, upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable, require a defendant to provide nontestimonial evidence, including to . . . [p]ermit the taking of samples of the defendant's blood, hair, and other materials of the defendant's body that involves no unreasonable intrusion thereof' (emphasis added).
Prefatorily, although CPL 245.40 was enacted in 2020, the necessary showing by the prosecution to permit the taking of corporeal samples from a defendant has existed since 1982 based on the Court of Appeals' seminal decision in Matter of Abe A. (56 N.Y.2d 288 [1982]). Now, CPL 245.40 (1) (e) explicitly codifies a method to obtain corporal evidence from a criminal suspect. That statute specifically covers applications, like the one here, being made post indictment. The Court of Appeals guidelines permit a trial court to order a defendant to provide non-testimonial evidence upon the filing of an indictment where the People meet the three-prong test codified in CPL 245.40 (1)(e).
In deciding whether to issue such an order, the Court must balance "the seriousness of the crime, the importance of the evidence to the investigation, and the availability of less intrusive means of obtaining it, against concern for the suspect's constitutional right to be free from bodily intrusion" (Matter of Abe A., 56 N.Y.2d at 291; see Matter of Miller v Foley, 145 A.D.3d 1011, 1011 [2d Dept 2016]). Usually, "facts which would establish probable cause will also tend to establish the high degree of relevance the nontestimonial evidence sought would have" (People v Flores, 65 Mise 3d 971, 973 [Sup Ct, Bronx County 2019]).
Applying the law and principles to the matter at hand, defendant is charged with, among other crimes, two counts of rape in the third degree in violation of Penal Law § 130.25 (2), which states that a person is guilty of such crime when he or she"[b]eing [21] years old or more... engages in sexual intercourse with another person less than [17] years old." Rape in the third degree is a class E felony sex offense. For this crime alone, defendant can be sentenced to a determinate prison sentence of between VA and 4 years (see Penal Law § 70.80 [4] [a] [iv]).
Of significance, the charges stem from the accusations of defendant's stepdaughter (born 2002), who claims that defendant, while 44 to 45 years of age at the time, allegedly engaged in sexual intercourse with her on separate occasions between August 15, 2018 and September 15, 2018, and impregnated her when she was a minor. The prosecutor's affirmation in support of the motion asserts that the victim gave birth in June of 2019 to L.C., and that an investigator from the Putnam County Sheriffs Office obtained two buccal swabs from L.C. in July 2019. Thereafter, L.C.'s DNA was eventually transported to a laboratory of the New State Police Forensic Investigation Center (Forensic Investigation Center) in Albany. The prosecutor represents that L.C.'s buccal swabs have been maintained in the custody and control of the Forensic Investigation Center in climate-controlled storage since July of 2019.
The People thus represent, based on the foregoing, that determining L.C.'s paternity is "an instrumental piece of evidence" for this statutory rape case given the victim's accusations. To that end, the People claim that a buccal swab is needed from defendant in order to conduct a proper scientific analysis and comparison between his and L.C.'s DNAs in order to ascertain if defendant is L.C.'s father - in view of the victim's complaint of having been allegedly raped and impregnated by defendant, and subsequently giving birth to her child, L.C.
In opposition, defendant contends that the People have failed to demonstrate a clear indication that relevant material evidence will be found by collecting his saliva for DNA purposes. But he does not further develop this argument whatsoever. Defendant assails the collection and storage of L.C.'s DNA, arguing that such is "wholly circumstantial" inasmuch as information about the specific procedures and information in collecting and obtaining L.C.'s DNA is "missing." Defendant takes exception to the viability of the sample and the Forensic Investigation Center's lab quality control of the specimen to be tested. Additionally, defendant avers that there are issues with its chain of custody since the documents indicate that it was moved between 2019 to 2022 before the indictment had been filed.
To the extent defendant faults the prosecution for not purportedly collecting a buccal swab from the victim in order to compare the evidence, such is unavailing as his views not comporting with the investigative process need not be addressed. Defendant's further assertion that his DNA will be of "no value" is self-serving and without merit.
Further, contrary to defendant's contention, any issues regarding chain of custody as to L.C.'s DNA sample go to the weight of the evidence. In this regard, it is well established that "[a]ny deficiencies in the chain of custody affect[] only the weight of the evidence, not its admissibility" (People v Elwell, 202 A.D.3d 817, 819 [2d Dept 2022]; see People v Wakefield, 175 A.D.3d 158, 171 [3d Dept 2019], affd 38 N.Y.3d 367 [2022], cert denied 143 S.Ct. 1799 [2023]). "Where ... an object possesses unique characteristics or markings and is not subject to material alteration that would not be readily apparent, a simple identification is sufficient to warrant admission" (People v Weiler, 194 A.D.2d 894, 895 [3d Dept 1993], Iv denied 82 N.Y.2d 728 [1993]).
Here, DNA evidence derived from buccal swabs is a distinct, tangible piece of physical evidence. Any issue about its chain of custody could create an issue concerning the weight of the evidence for the factfinder to evaluate, not whether it would be admissible. Critically, it would be the People's burden at the time of trial to establish chain of custody and provide reasonable assurances as to the identity and unchanged condition of the evidence in question, notwithstanding defendant's claim of chain of custody issues concerning transportation, storage, and the responsibilities of those involved in that process. As such, the Court is unpersuaded by defendant's argument about claimed deficiencies in the chain of custody since it would pertain to the weight to be accorded to such evidence and not its admissibility (see People v Wakefield, 175 A.D.3d at 171; People v Feola, 154 A.D.3d 638, 639 [1st Dept 2017], Iv denied 31 N.Y.3d 1013 [2018]).
Here, the People established all of the elements necessary to support an order compelling the defendant to submit a buccal saliva swab. The Court concludes that the underlying indictment and prosecutor's affirmation in support of this motion, coupled with application of CPL 245.40 (1) (e) and governing case law inclusive of Abe A. and its progeny, provides the requisite probable cause to grant the People's motion directing defendant to provide his saliva by buccal swab for collecting his DNA. Defendant has been indicted by a grand jury, which already found that there was probable cause to believe that he committed the crimes with which he is charged.
Requiring defendant to submit to a buccal swab for the purpose of comparing his DNA with L.C.'s ensures that relevant material evidence will be found. For example, if their respective DNAs are different and/or do not match, that could provide favorable evidence for his defense. This relevant material could even be exculpatory for defendant. Forensic evidence being gathered in what appears to be an ongoing investigation does not alter the conclusion that there is a "clear indication" that relevant material will be found through DNA analysis based upon the alleged sexual incident here according to the complainant-victim. Without such evidence at trial, it could cause speculation by the jury about why defendant's DNA was not compared to L.C.'s DNA (see People v Fortuna, 78 Mise 3d 378, 386 [Crim Ct, Bronx County 2023]). While defendant has a constitutional right to be free from bodily intrusion, the Court has balanced the seriousness of the alleges crimes, the significance of the evidence to the investigation, and the unavailability of a less intrusive means of obtaining such evidence from him, consisting of a unique and personal nature (see Matter of Miller v Foley, 145 A.D.3d at 1011-1012; Matter of Edwards v DeRosa, 98 A.D.3d 979, 979 [2d Dept 2012]).
Moreover, defendant has been charged with serious crimes, including two counts of rape in the third degree. The importance of identifying him as the actual perpetrator in this case is essential. It is "the court's duty to ensure that trials are an undistorted search for [the] truth" (id. at 387). Justice has to be done the right way. The Court thus holds that the People have satisfied their burden under CPL 245.20 (1) (e) and Abe A. to compel defendant to submit a saliva sample, via buccal swab, in order to be used for DNA testing. Defendant is therefore directed to provide a buccal swab for DNA testing (see id. at 386-387; People v Rogers, 77 Mise 3d 182, 183-185 [Sup Ct, Erie County 2022]).
II. Collection of Defendant's DNA by Buccal Swab
When buccal swabs are ordinarily taken, cells are collected from inside a person's cheek using a long cotton swab. As for the method to be used to secure defendant's saliva for DNA collection, it has been accepted scientifically, and approved legally, that applying buccal swabs is safe, reliable, and minimally intrusive.
Indeed, the Supreme Court of the United States has characterized the buccal swabbing procedure as a "brief and . . . minimal intrusion" that is "quick and painless," and expressed that a reasonable expectation of an individual's privacy is not offended by the "minor intrusion of a brief swab of [the] cheeks" (Maryland v King, 569 U.S. 435, 463, 465 [2013]). And giving more credence to this view, the Court of Appeals has too recognized as much, observing that a buccal swab is "now a simple and common method" and "is undeniably safe, consists of a minimal intrusion[,] and involves no discomfort" (People v Goldman, 35 N.Y.3d 582, 594 [2020]). In fact, "[n]o less-intrusive alternative means for obtaining such evidence has been approved" yet (People v Fortuna, 78 Mise 3d at 386).
In their motion papers, the People represent that an investigator from the Putnam County Sheriffs Office will collect a saliva sample from defendant by swabbing the interior of his mouth with cotton/buccal swabs using a specimen collection kit. As explained, the preferred specimen collection technique for DNA testing is by buccal swab vis-a-vis cheek or mouth cavity because it is noninvasive, painless, and easier to collect and transport.
The Court hereby approves the method outlined by the People in their motion. Defendant shall comply and submit to the court-ordered swab without any resistance in what is a speedy and simple procedure.
To the extent that they request the order "contain an explicit authorization" for the collector to use "force if necessary," the Court finds that the People's motion papers are devoid of a sufficient factual basis to support the issuance of a force order to conduct a buccal swab of defendant (see People v Lewis, 35 Mise 3d 1216[A], *3 [Crim Ct, Kings County 2012]; see also People v Rodriguez, 59 Mise 3d 1212[A], *4 [Sup Ct, Kings County 2018]; compare People v Williams, 163 Mise 2d 212, 215, 219-220 [Co Ct, Westchester County 1994], affd 2M A.D.2d 587 [2d Dept 1997]). Additionally, the People's request for a force order is premature given that no basis has been established that defendant is unwilling to comply with the court-ordered swab (see People v Lora, 72 Mise 3d 1223[A], * 1 [Sup Ct, NY County 2020]; People v Flores, 61 Mise 3d 1219[A], *9 [Crim Ct, NY County 2018]; cf People v Cherry, 34 Mise 3d 1235[A], *1-2 [Crim Ct, Kings County 2012]).
III. Defendant's Cross Motion for a Protective Order
Turning next to his cross motion, defendant, alternatively, requests a protective order where, as here, the Court is granting the prosecution's motion for a court-ordered swab in collecting defendant's DNA. The People did not file any opposition thereto.
CPL 245.40 (2) allows court orders for the taking of buccal swabs to be subject to protective orders. That statute states, in relevant part, that "an order pursuant to this section may be denied, limited[,] or conditioned as provided in [CPL] 245.70."
Important in this context, the Executive Law ensures that all forensic DNA laboratories comply with any applicable privacy laws, and adhere to restrictions on the disclosure or redisclosure of DNA records, findings, reports, and results (see Executive Law § 995-d [1]). Under Executive Law § 995-d, DNA testing records, findings, and reports "shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing," with certain exceptions, including for use by law enforcement authorities (id. § 995-d [2]; see § 995-c [6]).
Defendant's argument predicated on his cross motion is simple. Relying on Executive Law § 995-d and a 2016 case out of Supreme Court, Bronx County: People v. K.M. (54 Mise 3d 825 [Sup Ct, Bronx County 2016]), he wants his DNA to remain confidential and not be used in a national system collectively known as the Combined DNA Index System ("CODIS"). Defendant advances that this Court has discretion to issue a protective order because he is still presumed innocent and that uploading his DNA profile into the database system, as a suspect, arrestee, and accused, violates state law and public policy.
By way of background, CODIS has been used by the federal and state governments since the 1990s and is maintained as a national system to facilitate DNA crime scene comparisons. CODIS was created by, and is regulated through, federal and state law. "CODIS is an umbrella system of DNA indexes: the National DNA Index System ('NDIS'), State DNA Index Systems ('SDIS'), and Local DNA Index Systems ('LDIS') (Leslie v City of New York, 2023 WL 2612688, at *1 [SD NY Mar. 23, 2023, 22 Civ 2305 (NRB)]). "The three tiers are LDIS on the local level, . . . SDIS on the state level[,] and NDIS [used on a national scale], [CODIS] was first established in 1994 when Congress passed the DNA Identification Act which authorized the FBI to establish a national DNA database. The actual database was launched in 1998 and linked all [50] states. The primary purpose in the creation of CODIS was to assist law enforcement in developing investigative leads" (People v Rogers, 77 Mise 3d 182, 185 [Sup Ct, Erie County 2022]). In New York, the statutory framework provides that after a criminal conviction and sentence of a defendant, such convicted person is required to provide DNA, which is then uploaded to SDIS and CODIS, and is available for general comparison to crime scene evidence in unrelated cases (see Executive Law §§ 995-c [3], [5], [6]).
As explained above, LDIS, used on a local level, is part of the three-tier system of CODIS. The undersigned notes that trial courts appear to be split on the discretionary granting of a protective order against local uploading of a presumptively innocent defendant's DNA profile into LDIS. Many trial courts were initially granting such applications (see e.g. People v Delgado Macias, 65 Mise 3d 1225[A], *2-3 [Crim Ct 2019];Peqp/e v Blank, 61 Mise 3d 542, 545-548 [Sup Ct, Bronx County 2018]; People v Halle, 57 Mise 3d 335, 344-348 [Sup Ct, Kings County 2017]; People v. K.M., 54 Mise 3d at 828-832 [local DNA indexes that include individuals not convicted of any crime "run afoul of (State law) which allows inclusion of a DNA profile into a wide-ranging database only after conviction"]; People v Flores, 61 Mise 3d 1219[A] at *10-12; cf. People v K.N., 62 Mise 3d 444, 458-460 [Crim Ct, NY County 2018).
There is now a trend to deny protective orders preventing the indexing of DNA profiles to LDIS and the Office of the Chief Medical Examiner ("OCME") for use by local authorities (see e.g. People v Rogers, 77 Mise 3d at 190-194; People v Lora, 72 Mise 3d 1223[A] at *2-3; People v Belliard, 70 Mise 3d 965, 969-972 [Sup Ct, NY County 2020]; People v White, 60 Mise 3d 304, 305-310 [Sup Ct, Bronx County 2018]). The thought seems to be that once that DNA sample is lawfully obtained, local law enforcement should be within their rights to use such evidence for further criminal investigative purposes - i.e., for unsolved crimes or cold cases. "Once evidence is lawfully obtained, law enforcement is permitted to perform additional scientific testing and use the evidence for further investigative leads. Once lawfully obtained, DNA is no different than fingerprints or mugshots, and if anything, is a more reliable method of identification which not only links suspects to crimes, but serves to exonerate the innocent. Finally, there are methods already proscribed by statute allowing for the removal of a DNA profile from LDIS of an individual who is acquitted or not charged with a crime" (People v Rogers, 77 Mise 3d at 193-194).
Another important reason is founded upon the Supreme Court's holding in Maryland v King that a criminal defendant no longer has a Fourth Amendment privacy interest in a buccal swab sample after it is taken (see Maryland v King, 569 U.S. 435 at 463; see also People v Rogers, 77 Mise 3d at 192-193; People v Lora, 72 Mise 3d 1223[A] at *2; People v K.N., 62 Mise 3d at 458-459).
CODIS standardizes the points of comparison in DNA analysis and "sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information" (Maryland v King, 569 U.S. 435 at 445). For example, in Maryland v King, the defendant's "identification as the rapist" was made by CODIS, which "connects DNA laboratories at the local, state, and national level" and "collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence" (id. at 444). The Supreme Court noted in the opinion that "the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee" (id. at 464 [emphasis added]).Moreover, the Executive Law permits the OCME to compare the profile harvested from the court-ordered swab to other crime scene evidence in related cases, without an additional court order (see Executive Law § 995 [2]; Maryland v King, 569 U.S. 435 at 462; see also People v Rogers, 77 Mise 3d at 193-194; People v Fortuna, 78 Mise 3d at 387).
In that seminal case, the Supreme Court upheld a Maryland statute permitting state law enforcement authorities to collect DNA samples from individuals who are charged with violent crimes and certain other serious crimes for inclusion into a statewide DNA database for comparison to DNA from unsolved crimes.
This Court too adopts the more recent view observed by fellow trial jurists. Maryland v King settled the issue that a criminal defendant retains no Fourth Amendment privacy interest in a DNA sample, including saliva that is lawfully obtained by police via a cheek swab. Hence, defendant will no longer retain a personal privacy interest in his DNA in light of this Order.
What's more, CODIS is now a widely used national DNA database which blends forensic science and computer technology to aid law enforcement in criminal investigations. It has proven to be a useful tool for police, who are in the business of catching criminals, to fetter out and prevent crimes.
The fact that the underlying criminal conduct here occurred in 2018, defendant was indicted in March 2023, could not be found, and was subsequently extradited from Texas in April of 2023 to answer the indictment, gives the Court additional pause in granting him a protective order. Put shortly, we do not know if defendant could be suspected of committing a crime in New York or in another state.
Although the Court notes that defendant does not have any prior criminal convictions according to his RAP sheet, he overlooks that should the circumstances warrant, he can later avail himself of the statutory remedy set forth in Executive Law § 995-c (9) (b), which states, as relevant here, that:
This Court has no information whether any DNA record of defendant is on file with SDIS. New York State's central DNA database.
"[I]f an individual, either voluntarily or pursuant to a warrant or order of a court, has provided a sample for DNA testing in connection with the investigation or prosecution of a crime and (i) no criminal action against the individual relating to such crime was commenced with the period specified by [CPL 30.10], or (ii) a criminal action was commenced against an individual relating to such crime which
resulted in a complete acquittal, or (iii) a criminal action against the individual relating to such crime resulted in a conviction that was subsequently reversed or vacated, or for which the individual was granted a pardon pursuant to article two-A of this chapter, such individual may apply to the supreme court or the court in which the judgment of conviction was originally entered for an order directing the expungement of any DNA record and any sample, analyses, or other documents relating to the DNA testing of such individual in connection with the investigation or prosecution of such crime."
Because he must provide his DNA sample pursuant to a court order, he can later seek expungement of his DNA records if, for example, the case is dismissed, he is acquitted, or his conviction is reversed or is vacated. That is because the "Executive Law § 995-c (9) (b) explicitly authorizes an individual to move for expungement of his or her DNA record and related documents even when the person has not been charged with or convicted of a designated offense" (People v White, 60 Mise 3d at 309). This "demonstrates that the Legislature contemplated DNA records and related documents being maintained in databases other than the New York State database, including local databases such as LDIS" (id., see People v Lora, 72 Mise 3d 1223[A] at *2).
Under the Executive Law, the discretionary authority of the court in which the original judgment of conviction was granted allows expungement of DNA records contained in the SDIS and OCME databases, inclusive of "DNA material that may have been collected during the investigatory, preconviction phase of a criminal proceeding" (Matter of Francis O., 208 A.D.3d 51, 55-56 [1st Dept 2022]). Hence, it would be incumbent upon defendant to properly apply for an order of discretionary expungement depending on the outcome of this case (see Matter of Samy F. v Fabrizio, 176 A.D.3d44, 53 [1st Dept 2019], Iv dismissed 3 A N.Y.3d 1033 [2019]; People v Rogers, 77 Mise 3d at 192-193; People v Midgley, 196 Mise 2d 19, 27-28 [Sup Ct, Kings County 2003]; see also Matter of John R., 69 Mise 3d 493, 503 [Fam Ct, NY County 2020]).
Parenthetically, an order denying the defendant's motion for a protective order to prohibit his or her DNA from being uploaded into the statewide database for review and comparison "is not part of the conviction or sentence comprising the judgment" (People v James, 173 A.D.3d 1207, 1209 [2d Dept 2019], Iv denied 34 N.Y.3d 1017 [2019]; see CPL 1.20 [15]; 450.10).
Accordingly, defendant's cross motion is denied based upon the foregoing rationale (see People v Rogers, 77 Mise 3d at 190-194; People v Lora, 72 Mise 3d 1223[A] at *2-3; People v Belliard, 70 Mise 3d at 969-972; People v White, 60 Mise 3d at 305-310).
To the extent not specifically mentioned herein, the parties' remaining contentions have been examined and are either without merit or otherwise rendered academic based on this decision. Any other relief requested that is not squarely addressed herein is denied. Accordingly, it is hereby:
ORDERED that the motion of the PEOPLE OF THE STATE OF NEW YORK, made pursuant to CPL 245.40 (1), for an order to compel defendant DARWIN S. GONZALEZ-MENDOZA to submit to a buccal saliva swab from his body, is GRANTED (mot. seq. no. 1); and it is further
ORDERED that defendant shall submit to and provide a buccal swab for DNA testing; and it is further
ORDERED that defendant's cross motion for a protective order in this respect is DENIED (mot. seq. no. 2); and it is further
ORDERED that the People shall have an investigator from the Putnam County Sherriff's Office, or other appropriate law enforcement authority, available for the taking of a saliva sample from defendant DARWIN S. GONZALEZ-MENDOZA in compliance with this Order as it pertains to the underlying indictment.
The People's accompanying order submitted in connection with this motion is being signed and issued herewith in accordance with the findings and determinations made herein.
This constitutes the decision, order, and opinion of this Court.