In re an Investigation into the Death of Abe A.

Silverman, J.

(dissenting). I would affirm the order appealed from.

The majority holds that the Supreme Court should not have granted an order directing appellant to permit the taking of samples of his blood primarily because no accusatory instrument has yet been filed against appellant.

None of us is so naivé as to think that that is the reason for appellant’s objection. The appellant is objecting to the blood test at this stage because this is the stage at which the District Attorney is asking for it.

I can see no reasons of policy against requiring the appellant to furnish a sample of his blood at this time. Appellant has had full judicial protection. The order was made by a Justice of the Supreme Court on notice after full opportunity to appellant to be heard and with representation by counsel, and after a finding by the Supreme Court of probable cause to believe that appellant was guilty of the murder and that the blood sample will have probative value. “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Johnson v United States, 333 US 10, 13-14.) Here that protection has been fully accorded appellant.

The intrusion sought here is trivial, a “minor [intrusion] into an individual’s body” (Schmerber v California, 384 US 757, 772); there can hardly be anyone in this country who has ever been attended by a physician who has not furnished a blood sample. And the court’s order directed that the sample be taken by a medical doctor at Bellevue Hospital in the minimum amount necessary to permit proper analysis and in a manner involving the least risk of trauma or pain.

The Court of Appeals has recently considered a novel extension of the use of a search warrant to permit secret installation of a camera in a dentist’s office and the secret video-taping of a crime expected to take place in that office. (People v Teicher, 52 NY2d 638.) In that case, the Court of Appeals set forth certain requirements for the novel extension of search warrants to video electronic surveillance which should be satisfied. Those requirements are: (1) a showing of probable cause, (2) particularization in the warrant, (3) minimization, (4) a showing that there are no less intrusive means for obtaining the needed evidence. Whether or not the requirements as to blood samples should be as rigorous as those for video surveillance by placing instruments in the privacy of the “surveilled” party’s office, the fact is that these requirements are met in this case. (1) There have been a clear showing and judicial determination of probable cause. (2) The direction could hardly be more particularized—calling for the blood sample of a particular man to be taken at a particular hospital by a doctor. (3) Minimization is provided for. By the court’s order the sample of blood to be taken is to be-in the minimum amount necessary to permit proper analysis and in a manner involving the least risk of trauma or pain. (4) On a showing of probable cause to believe that the appellant has committed the homicide, the finding of blood stains at the scene of the homicide, including a rare blood type which is not the blood type of the victim, the “needed evidence” is appellant’s blood type. There are obviously “no less intrusive means for obtaining the needed evidence” (People v Teicher, supra, p 655) than taking a sample of his blood.

Appellant’s rights would be in no way more protected if in fact an accusatory instrument had been filed against him. Indeed, arrest and indictment as preliminary to the issuance of the order in question would seem to intrude more significantly upon appellant’s privacy than the blood test alone. Appellant has a legitimate interest in not being prosecuted. But what possible legitimate interest does he have in being prosecuted?

“It is well to remember that our goal is to protect the substantive rights of individual defendants, not ritualistically to impose requirements which add nothing to the protections afforded a defendant.” (People v Yut Wai Tom, 53 NY2d 44, 54.)

There remain only technical objections, none of which I think should bar the order directing the taking of the blood sample.

There is ample authority permitting the court to require an unindicted suspect to furnish nontestimonial evidence. In Schmerber v California (384 US, at p 764) the Supreme Court sustained the involuntary drawing of a blood sample from a person who had in fact not yet been indicted or accused against objections that this violated his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. With respect to the privilege against self incrimination, the Supreme Court said (at p 764): “[Bjoth federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”

The courts of this State have frequently directed an unindicted suspect to furnish similar evidence (e.g., Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, app dsmd 38 NY2d 923 [handwriting exemplar]). And this court’s disapproval of an order directing an appearance in a lineup in Matter of Alphonso C. (50 AD2d 97, app dsmd 38 NY2d 923) was specifically based on the absence of a showing of probable cause. In People v Vega (51 AD2d 33, 37) in which the Appellate Division, Second Department, refused to direct an unarrested, unindicted person to have his beard removed prior to an appearance in a lineup, the court specifically pointed out the distinction between that case and taking a blood sample, saying: “In contrast to the facts in Angelo G. * * * we are not here dealing with fingerprinting, measurements, writing or speaking for identification, appearing in court, standing, assuming a stance, walking or making a particular gesture. Nor are we dealing with the taking of a blood sample (see Schmerber v California, 384 US 757).” (Italics mine.)

In addition to the court’s inherent power, I think the recent decision of the Court of Appeals in People v Teicher (52 NY2d 638, supra) is authority for sustaining the present procedure as within the search warrant powers of the court or a reasonable extension thereof. In the Teicher case the Court of Appeals sustained the secret making of video images pursuant to an order made in advance of the criminal activity to be video taped. It sustained this procedure under the search warrant provisions of CPL article 690 even though the search warrant statute relates to the seizure of “[p]ersonal property” (CPL 690.10); the court held that the reference to seizure of personal property was broad enough to include the “seizure of an intangible visual image secured by a video recording.” (People v Teicher, supra, p 651.) But if that “seizure” of intangible visual images is within the permissible scope of a search warrant, I cannot see why the seizure of some blood by a blood sample is not within the permissible scope of such a warrant. At most, the present case involves only a minor extension or modification of the court’s search warrant power, well within thé power of the court “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law, § 2-b, subd 3). For example, the search warrant statute requires that the warrant be addressed to a police officer (CPL 690.25); in the case of a blood sample, it is obviously sensible to modify this to direct that a doctor take the blood sample. Thus I think the order here involved may either be deemed a search warrant authorized by CPL article 690 or a “new process” analogous to a search warrant authorized by section 2-b of the Judiciary Law.

Appellant points to the recently enacted provisions of CPL 240.40 (subd 2) authorizing the court to direct a defendant, among other things, to permit the taking of samples of blood, etc., and argues that thus the court only has such power to make such an order with respect to a defendant against whom an accusatory instrument has been filed. The complete answer to this is the statute's own rejection of that limitation in the last unnumbered paragraph of subdivision 2 of CPL 240.40: “This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States.” The statute is merely a recent regulation of rights of discovery as between prosecutor and defendant. It does not affect rights with respect to someone who is not a defendant.

Appellant cites CPL 10.20 (subd 2): “2. Superior courts have preliminary jurisdiction of all offenses, but they exercise such jurisdiction only by reason of and through the agency of their grand juries.” Appellant argues that under this statute, until the Grand Jury has acted, the Supreme Court can do nothing; i.e., that in addition to whatever objections may be applicable in another court, this statute presents a bar to the jurisdiction of the Supreme Court, a bar obviously not present with respect to courts that do not have Grand Juries. Whatever this statute may mean, it can hardly have the effect appellant argues for in the present case.

To begin with, if we assume that in ordering appellant to furnish a blood sample, the Supreme Court Justice was exercising the powers of a local criminal court, it is hard to see why the Supreme Court Justice does not thereby become for that purpose a local criminal court, i.e., “A supreme court justice sitting as a local criminal court.” (CPL 10.10, subd 3, par [f].)

But a more important flaw in appellant’s argument is its failure to give due weight to the extraordinary unlimited constitutional jurisdiction of the Supreme Court. As I have indicated, the Supreme Court and other superior courts have traditionally exercised the power here referred to before any action by the Grand Jury. If this statute has the effect contended for, it would seem to follow that a local criminal court has jurisdiction which the Supreme Court does not have.

We need not try to analyze the precise meaning of this section, for the particular “superior court” here involved is the Supreme Court of the State of New York. And the Supreme Court has not only the jurisdiction granted to it as a superior court by statute, but also the much broader and indefeasible jurisdiction granted to it by the State Constitution, jurisdiction which no statute can take away from it. The “Supreme Court is a court of original, unlimited and unqualified jurisdiction.” (Kagen v Kagen, 21 NY2d 532, 537.) Article VI (§7, subd b) of the State Constitution provides in part: “b. If the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings, but the legislature may provide that another court or other courts shall also have jurisdiction”. This “amendment removed all limitation previously imposed upon the court’s jurisdiction.” (Kagen v Kagen, supra, at p 536.) Under this constitutional provision, if any court has jurisdiction to render a particular kind of relief, the Supreme Court has that jurisdiction, notwithstanding even a statute providing that some other court shall have exclusive jurisdiction. (See, e.g., Kagen v Kagen, 21 NY2d 532^*, supra; see, also, Matter of Alphonso C., 50 AD2d, at p 99.) In particular, the Supreme Court has the jurisdiction of a local criminal court. The Legislature cannot grant “jurisdiction to local criminal courts and withhold the same from the Supreme Court.” (People v Darling, 50 AD2d 1038.) It follows that the statute cannot constitutionally bar the jurisdiction of the Supreme Court.

Murphy, P. J., and Kupferman, J., concur with Ross, J.; Silverman, J., dissents in an opinion.

Order, Supreme Court, New York County, entered on November 3, 1980, reversed, on the law and on the facts, without costs and without disbursements, the contempt citation vacated and the order of August 1,1980, dismissed as academic.

* For special reasons the Court of Claims is an exception. (Kagen v Kagen, supra, at p 538.)