Dunnigan v. Weissman

181 A.D.2d 731, 581 N.Y.S.2d 229, 1992 N.Y. App. Div. LEXIS 3300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1992
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to bar the respondents from enforcing an order of the respondent Morton Weissman, a Justice of the Supreme Court, dated October 8, 1991, which, upon reargument, adhered to the original determination in an order dated December 13, 1990, authorizing the taking of blood, hair, and saliva samples from the petitioner.

Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements, and the temporary stay contained in the order to show cause dated October 30, 1991, is vacated forthwith.

The petitioner herein was formally charged, pursuant to Suffolk County Indictment Number 1639/90, with various counts of rape, sodomy, and sexual abuse, in connection with an incident which allegedly occurred on August 25, 1990.

Thereafter, upon notice to the petitioner, the People successfully moved pursuant to CPL 240.40 (2) (b) (v) to compel the petitioner to submit blood, hair and saliva samples for analysis.

In the instant proceeding, the petitioner seeks to prohibit the enforcement of the order on the ground that, with the exception of head hair samples which he has already furnished, the other requested samples would not be probative and are therefore unnecessary.

We hold, under the particular facts and circumstances presented herein, including, inter alia, the absence of any "arrogation of power” (Matter of Rush v Mordue, 68 NY2d 348, 354) by the respondent Justice (see, CPL 240.40 [2] [b] [v]), and the safe procedures and relatively minimal intrusions involved, that prohibition does not lie (see, Matter of James N. v D’Amico, 139 AD2d 302).

The decision of this court in Matter of Barber v Rubin (72 AD2d 347), which ostensibly holds to the contrary, is distinguishable, since the order challenged therein, which was dated July 17, 1978, predated the enactment of CPL 240.40 (L 1979, ch 412, eff Jan. 1, 1980). Mangano, P. J., Thompson, Bracken, Sullivan and Harwood, JJ., concur.