THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v PAUL WALKER JR., Appellant.
Appellate Division of the Supreme Court of New York, Third Department
May 1, 2014
985 NYS2d 166
In June 2009, a man armed with a semi-automatic handgun, wearing a bandana over his face and a Yankees cap, entered a Domino‘s Pizza in Renssеlaer County, where he directed the only two patrons to lie on the floor. The store‘s manager rushed at and tackled the perpetratоr, whose gun fired and shot the manager in the leg. A second perpetrator, who was also wearing a bandana over his face, then entered thrоugh a back door and he shot the manager several times in the head and chest, causing him to sustain serious injuries, which he survived. During
Thereafter, defendant was сharged in a six-count indictment. His motion to suppress the DNA evidence taken from him in April 2010 was denied without a hearing. Following a trial, a jury convicted him of аttempted murder in the second degree, criminal use of a firearm in the first degree, burglary in the second degree and criminal possession of a weapon in the second degree. He was sentenced to concurrent prison terms of 25 years on the two class B felonies and 15 years on thе two class C felonies, as well as five years of postrelease supervision on each count. Defendant appeals.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant‘s DNA was on the Yankees cap lеft at the scene by the first perpetrator and his height and weight—as well as being left-handed—were generally consistent with descriptions of the first perрetrator given by witnesses. Tracking records from his cell phone placed him in the vicinity even though, at the time, he resided in Queens County. Defendant did not dеny being in the area, but explained that he often visited because he used to live in Rensselaer County when in college and still had friends there. The Yankees cap had DNA of other unidentified individuals and defendant claimed that he had left the cap and various other clothing and personal items in an apartment in Rensselaer County that he had moved out of in July 2007. This proof created credibility issues for the jury. Further, there was ample evidence tо reasonably infer that the two men intended to act together to commit a robbery at the premises, they entered the premises armed with loaded guns, they were intent on using deadly force if necessary to accomplish their objective and, as part of the scheme, the second perpetrator entered through a private area that was not open to the public. When the manager attempted to thwart their plans, he was shot first in the leg and then repeatedly in the head and chest. Viewed in the light most favorable to the People, there was legally sufficient proof to support the verdict as to each crime (see People v Ramos, 19 NY3d 133, 136 [2012]; People v Fullard, 233 AD2d 757, 759 [1996], lv denied 89 NY2d 1092 [1997]). Moreover, after viewing the evidence in the record in a
The DNA evidence taken from defendant in April 2010 via a no-knock sеarch warrant issued without notice to him when he was a suspect should have been suppressed. “[A] search warrant authorizing an intrusion into the human body fоr the purpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, is subject to the constraints of the
In his motion to suppress, defendant challenged the DNA swabbing that occurred in April 2010 as violative of his constitutional rights, stated that he did not consent to the search, and attached the search warrant application and the search warrant. The search warrant application to оbtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or dispоsed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the aрplication to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People‘s speculation in their brief that he might hаve fled was not alleged or supported by facts in the application.
The ensuing search warrant inconsistently stated both that it
Contrary to the People‘s argument, we find that, although it could have been more clearly artiсulated, defendant nonetheless sufficiently preserved this issue among his many challenges to the DNA evidence and, accordingly, it is not necessary tо address his alternative argument that a failure to preserve the issue would have constituted ineffective assistance of counsel under the сircumstances of this case.1
Defendant‘s contention that his sentence was harsh and excessive is academic.
Petеrs, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this Court‘s decision.