NY court: Illegal to use TASER to compel a suspect to give DNA sample

By Thomas J. Prohaska
Buffalo News

LOCKPORT, N.Y. — It's illegal for police to use a Taser to compel a suspect to give a DNA sample, an appeals court ruled Friday as it ordered a new trial for a Niagara Falls man convicted of two home invasions, one including a shooting, and a gas station robbery.

The Appellate Division of State Supreme Court ruled 4-1 that Ryan S. Smith of Niagara Falls should have a new trial because DNA evidence obtained after police zapped him with 50,000 volts of electricity should have been disallowed.

Niagara County Judge Sara Sheldon Farkas, who at the time was known as Sara Sheldon Sperrazza, had allowed the evidence to be used against Smith. He was convicted of 24 counts by a jury in August 2009 in connection with the 2006 crimes and sentenced to 45 years in prison, a sentence later revised to 30 years by state prison officials.

It was believed to be the first case of its kind in the nation when Farkas made her ruling in June 2009.

The Rochester-based appeals court overruled her, saying the use of force by police was excessive.

Smith was handcuffed and was sitting on the floor of Niagara Falls Police Headquarters on Sept. 29, 2008, when the Taser was used.

He refused to open his mouth for a "buccal swab," a long, thin swab similar to a Q-tip, which is used to rub cells off the inside of the cheek for DNA analysis. Smith had given a DNA sample without protest the month before, but objected to being asked to give another.

Niagara Falls police had sent the August 2008 sample to the wrong lab, where it was contaminated when it was opened. Niagara County Deputy District Attorney Doreen M. Hoffmann went privately to Farkas, who signed an order for a new sample without consulting the defense. That violated Smith's rights, the four-judge majority ruled. It appeared police didn't explain the situation to Smith, either, as he complained about the demand for a second sample.

"You're going to have to Tase me," he said, according to police reports.

"Although the crimes at issue are unquestionably serious, the record establishes that [Smith] posed no immediate threat to the safety of himself or the officers, nor did he attempt to evade the officers by flight," Justice Erin M. Peradotto wrote for the court majority.

She said the police could have arrested Smith for criminal contempt of court for disobeying Farkas' order, and then collected the DNA sample later. Instead, police pressed the stun gun to Smith's shoulder for about two seconds, took the sample and then arrested him.

In a dissenting opinion, Justice Henry J. Scudder, the presiding judge of the appellate panel, said that because Smith didn't contest the first sample, he wasn't entitled to protest the second. He had no problem with "the very brief use of a Taser" on a suspect whom police believed to be a violent criminal. He thought Smith's refusal to open his mouth for the swab meant he was "actively, albeit not physically, resisting the police," and efforts to force Smith to comply without zapping him likely would have caused a fight resulting in injury to Smith, the officers or both.

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