NY- Ruling allowing Taser use to get DNA may be nation’s first

My gut tells me if appealed this will be overturned. Clearly torture, which reminds me, will International laws and protections be applicable?

6-15-2009 New York:

LOCKPORT — It is legally permissible for police to zap a suspect with a Taser to obtain a DNA sample, as long as it’s not done “maliciously, or to an excessive extent, or with resulting injury,” a county judge has ruled in the first case of its kind in New York State, and possibly the nation.

Niagara County Judge Sara Sheldon Sperrazza decided that the DNA sample obtained Sept. 29 from Ryan S. Smith of Niagara Falls — which ties him to a shooting and a gas station robbery— is legally valid and can be used at his trial.

Smith was handcuffed and sitting on the floor of Niagara Falls Police Headquarters when he was zapped with the 50,000- volt electronic stun gun after he insisted he would not give a DNA sample.

He already had given a sample, a swab of the inside of his cheek, without protest the previous month. But police sent it to the wrong lab, where it was opened and spoiled. Prosecutors who had obtained a court order for the first sample went back to Sperrazza, who signed another order without consulting the defense.

Defense lawyer Patrick M. Balkin denounced the ruling in an interview with The Buffalo News.

“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” he asserted. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”

A police officer said that when Smith was ordered by officers to give his DNA, he adamantly refused.

“I ain’t giving up my DNA again. I already gave it up once. I’ll sit in jail. I ain’t giving it up. You’re going to have to Tase me,” the officer’s report stated.

The officer wrote that he then applied the stun gun to Smith’s left shoulder, a “drive stun” that is regarded as less painful than shooting electric prongs into a person, which is the usual Taser approach. Smith then consented to the sample, and he was arrested on a contempt of court charge.

In her ruling, Sperrazza cited numerous legal precedents and the state’s Criminal Procedure Law, allowing the use of reasonable force to carry out a court order.

Although there are no New York cases specifically dealing with using a Taser to accomplish that, the judge did find a Wyoming case where a court ruled it was legal to use a Taser to force a suspect to open his hand for a search.

Balkin and other lawyers familiar with the case say they know of no other case in the country in which a Taser was used to gather DNA.

The decision Wednesday in Niagara County stunned Balkin, who admitted in court that he hadn’t been carrying out trial preparation, such as seeking an expert to review the DNA test results.

“It’s my fault,” Balkin told Sperrazza. “I truly thought it was going to be suppressed.”

Balkin thought a victory on the Taser issue would lead to the dismissal of the 24-count indictment against Smith, 21, of Grove Avenue.

Sperrazza granted a postponement of Smith’s trial to Aug. 10.

Smith is charged with shooting a man in the groin July 27, 2006, after allegedly invading his ex-girlfriend’s home, tying up her two children and forcing the woman to take him to the shooting victim’s home.

He is also accused of taking part in the Dec. 24, 2006, armed robbery of a Sunoco station in Niagara Falls. A codefendant in the robbery, Christopher T. Walker Jr., now 21, pleaded guilty and is serving a 10-year state prison sentence.

DNA was found on a can of pop taken from Smith’s ex-girlfriend’s refrigerator and on a glove dropped at the gas station. It matched a sample he had to give after a previous assault conviction, and prosecutors sought another sample from Smith to confirm the findings.

“Our case is mostly DNA,” Deputy District Attorney Doreen M. Hoffmann said.

She also said she didn’t agree with Balkin that suppressing the DNA sample would have led to the dismissal of the indictment.

There is a surveillance video of the gas station robbery, Hoffmann revealed in court.

Balkin said he also was most concerned about Sperrazza’s reasoning that she didn’t have to go through a courtroom procedure for the second DNA sample because Smith had not objected to the first one.

“The court waived my client’s due process,” the defense lawyer said.

Testimony at a hearing last month partially contradicted the incident report written by Officer George McDonell, who used the Taser on Smith.

Sperrazza wrote in her ruling, based on police testimony, that when Smith refused to give another sample, Detective Lt. William Thomson phoned Hoffmann about it, and Hoffmann “instructed him that they could use the minimum force necessary to obtain the sample.”

But McDonell wrote in his report, “It was relayed that officers could use any means necessary to secure the sample.”

Sperrazza said the police should have arrested Smith first and brought him to court to be warned about the penalties for noncompliance with a court order.

McDonell testified that he used the Taser for 1z to two seconds. Another officer testified that the data readout on the Taser showed it was on for as long as four seconds.

Court papers filed by Smith’s civil attorney, Christopher O’Brien, assert that Smith was zapped three times and lost consciousness. McDonell’s report says, “Suspect complained of no injury and none was observed.” ..Source.. by Thomas J. Prohaska, NEWS NIAGARA REPORTER