Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Frank GARCIA, Defendant–Appellant.
John E. Tyo, Shortsville, for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
John E. Tyo, Shortsville, for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of murder in the first degree (Penal Law § 125.27[1][a] [viii]; [b] ) and kidnappingin the second degree (§ 135.20). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion for a mistrial based on a violation of the court's Ventimiglia ruling ( see generally People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794). Any prejudice resulting from the Ventimiglia violation was alleviated by the court's curative instruction ( see People v. Allen, 78 A.D.3d 1521, 1521, 911 N.Y.S.2d 528,lv. denied16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179). In any event, the error is harmless inasmuch as there is overwhelming evidence of guilt, and there is no significant probability that the single statement by the witness affected the jury's verdict or that the absence of the error would have led to an acquittal ( see People v. Orbaker, 302 A.D.2d 977, 978, 754 N.Y.S.2d 492,lv. denied100 N.Y.2d 541, 763 N.Y.S.2d 7, 793 N.E.2d 421;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Contrary to defendant's further contention, the court did not abuse its discretion in denying defense counsel's request for an adjournment of the trial to allow him additional time to prepare for trial. Defense counsel had notice of the trial date over five months in advance, thereby giving him sufficient time to prepare, and defendant did not demonstrate that he was prejudiced by the court's denialof his request for an adjournment ( see People v. Peterkin, 81 A.D.3d 1358, 1360, 921 N.Y.S.2d 744,lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102;People v. Bones, 50 A.D.3d 1527, 1528, 856 N.Y.S.2d 408,lv. denied10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446). Indeed, the record demonstrates that defense counsel was well prepared to represent defendant. Additionally, defendant's contention that the court erred in refusing to suppress the identification evidence is without merit inasmuch as the lineup was not unduly suggestive ( see People v. Corchado, 299 A.D.2d 843, 844, 749 N.Y.S.2d 814,lv. denied99 N.Y.2d 581, 755 N.Y.S.2d 716, 785 N.E.2d 738;see generally People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).
We agree with defendant, however, that the court erred in refusing to suppress the evidence obtained from a buccal swab. As the court properly determined, the taking of the swab after defendant had invoked his right to counsel was error inasmuch as defendant could not consent to the seizure in the absence of counsel ( see People v. Loomis, 255 A.D.2d 916, 916, 682 N.Y.S.2d 743,lv. denied92 N.Y.2d 1051, 685 N.Y.S.2d 429, 708 N.E.2d 186). Nevertheless, the court denied the motion after concluding that the evidence was admissible under the inevitable discovery doctrine. That was error. The inevitable discovery doctrine provides that “evidence obtained as a result of information derived from an unlawful search or other illegal police conduct is not inadmissible under the fruit of the poisonous tree doctrine where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence” ( People v. Fitzpatrick, 32 N.Y.2d 499, 506, 346 N.Y.S.2d 793, 300 N.E.2d 139,cert. denied414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 [emphasis added]; see People v. Turriago, 90 N.Y.2d 77, 85, 659 N.Y.S.2d 183, 681 N.E.2d 350,rearg. denied90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369). It thus follows that the inevitable discovery doctrine does not apply where “the evidence sought to be suppressed is the very evidence obtained in the illegal search [and seizure]” ( People v. Stith, 69 N.Y.2d 313, 318, 514 N.Y.S.2d 201, 506 N.E.2d 911;see Turriago, 90 N.Y.2d at 86, 659 N.Y.S.2d 183, 681 N.E.2d 350;People v. James, 256 A.D.2d 1149, 1149, 684 N.Y.S.2d 112,lv. denied93 N.Y.2d 875, 689 N.Y.S.2d 436, 711 N.E.2d 650). Here, the DNA sample from the buccal swab that defendant sought to suppress was “the very evidence that was obtained as the immediate consequence of the illegal police conduct” ( James, 256 A.D.2d at 1149, 684 N.Y.S.2d 112). While the People are correct that they could have obtained a court order to compel defendant to give a DNA sample, they should have done just that instead of relying on the inevitable discovery doctrine, which was not applicable ( see e.g. People v. Doll, 98 A.D.3d 356, 362, 948 N.Y.S.2d 471). We conclude, however, that the error is harmless. As noted, the evidence of defendant's guilt is overwhelming, and we conclude that there is no reasonable possibility that the erroneously admitted evidence contributed to defendant's conviction ( see People v. Vaughn, 275 A.D.2d 484, 488, 712 N.Y.S.2d 193,lv. denied96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222;see generally Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Finally, we agree with defendant that the consecutive sentences imposed for murder in the first degree under counts one and two of the indictment are illegal, and we therefore modify the judgment by directing that the sentences on those counts run concurrently ( see People v. Rosas, 8 N.Y.3d 493, 495, 836 N.Y.S.2d 518, 868 N.E.2d 199;People v. Ojo, 43 A.D.3d 1367, 1368, 842 N.Y.S.2d 648,lv. denied10 N.Y.3d 769, 854 N.Y.S.2d 331, 883 N.E.2d 1266,reconsideration denied11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed for murder in the first degree under count one of the indictment shall run concurrently with the sentence imposed for murder in the first degree under count two of the indictment and as modified the judgment is affirmed.