TUCKER v. BUSCAGLIA III (1999)

In this original CPLR article 78 proceeding seeking relief in the nature of prohibition, petitioner challenges a determination (denominated order) of respondent Hon. Russell P. Buscaglia, Acting Justice of New York State Supreme Court (Supreme Court), granting the application of respondent Hon. Frank J. Clark, III, Erie County District Attorney, for an order directing petitioner to provide hair and blood samples to aid authorities in their investigation of a homicide.   Petitioner contends that Supreme Court exceeded its jurisdiction in ordering him to provide such corporeal evidence because there was no “ ‘clear indication’ that relevant material evidence [would] be found” linking petitioner to the homicide (Matter of Abe A., 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265).

 Prohibition does not lie to obtain collateral review of an order directing a suspect in a criminal investigation to supply corporeal evidence (see, Matter of James N. v. D'Amico, 139 A.D.2d 302, 303, 530 N.Y.S.2d 916, lv. denied 73 N.Y.2d 703, 537 N.Y.S.2d 491, 534 N.E.2d 329;  cf., Matter of Anonymous, 76 N.Y.2d 766, 767-768, 559 N.Y.S.2d 976, 559 N.E.2d 670, affg. 156 A.D.2d 1028, 549 N.Y.S.2d 308;  Matter of Philips v. Belfi, 259 A.D.2d 620, 684 N.Y.S.2d 919;  Matter of Pryor v. Greenberg, 247 A.D.2d 711, 712, 668 N.Y.S.2d 760;  Matter of Dunnigan v. Weissman, 181 A.D.2d 731, 732, 581 N.Y.S.2d 229;  Matter of Vann v. Friedlander, 170 A.D.2d 782, 566 N.Y.S.2d 549).   Granting prohibition in these circumstances would violate well-established rules governing use of the writ and defeat the overriding policies of avoiding proliferation of litigation in criminal cases and delays in investigation and prosecution (see, Matter of James N. v. D'Amico, supra, at 303-304, 530 N.Y.S.2d 916).   Petitioner's challenge to the order-that Supreme Court misapplied the test established in Matter of Abe A. (supra )-asserts a mere error of law and does not demonstrate that the court acted without or in excess of its jurisdiction (see, Matter of James N. v. D'Amico, supra, at 303, 530 N.Y.S.2d 916).   Further, the corporeal evidence order, like a search warrant, may be challenged by suppression motion in the event that petitioner is charged and may be reviewed on direct appeal in the event he is convicted (see, Matter of James N. v. D'Amico, supra, at 305, 530 N.Y.S.2d 916;  see generally, People v. Harrison, 255 A.D.2d 335, 681 N.Y.S.2d 38, lv. denied 93 N.Y.2d 853, 688 N.Y.S.2d 501, 710 N.E.2d 1100;  People v. King, 232 A.D.2d 111, 663 N.Y.S.2d 610, lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646).   We therefore dismiss the petition on the ground that prohibition does not lie (see, Matter of James N. v. D'Amico, supra, at 305, 530 N.Y.S.2d 916).   Were we to review the merits, we would conclude that the People met their burden of showing a “clear indication” that the blood and hair samples ordered to be furnished by petitioner would constitute “relevant material evidence” or “substantial probative evidence” (Matter of Abe A., supra, at 291, 297, 452 N.Y.S.2d 6, 437 N.E.2d 265;  see, Matter of Chaplin v. McGrath, 215 A.D.2d 842, 626 N.Y.S.2d 294;   Matter of Vivanco v. West, 214 A.D.2d 618, 625 N.Y.S.2d 255;  Matter of Anonymous v. Cacciabaudo, 153 A.D.2d 856, 858, 545 N.Y.S.2d 374, appeal dismissed 74 N.Y.2d 890, 547 N.Y.S.2d 844, 547 N.E.2d 99).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: