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Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test

The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:

“[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”…. “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” …. Here, the petitioner … 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 …, and “the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor’s discretion”…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13

 

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