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In re Morgenthau

Decided: February 9, 1983.

IN THE MATTER OF AN APPLICATION BY ROBERT M. MORGENTHAU, DISTRICT ATTORNEY, NEW YORK COUNTY, FOR AN ORDER TO COMPEL JEANNIE NASH AND MICHELLE EL GOHAIL TO PRODUCE HAIR AND BLOOD SAMPLES, FINGER AND PALM PRINTS


On appeal from Superior Court, Law Division, Middlesex County.

Matthews, Antell and Francis.

Per Curiam

[188 NJSuper Page 304] This is an appeal from a trial court's order which would compel two New Jersey residents to supply hair and blood samples and finger and palm prints to police. These exemplars are contemplated for use in a criminal prosecution for murder in the State of New York.

On October 12, 1982, the New York County District Attorney filed separate applications in the Law Division, Superior Court, Middlesex County, State of New Jersey, for orders directing Jeannie Nash and Michelle El Gohail,*fn1 two Middlesex County residents, to give blood and hair samples and finger and palm prints in connection with the investigation and prosecution of the murder of four persons in New York City. After a hearing on November 16, 1982, the trial judge granted the applications. Appellants, subjects of the application, filed a notice of appeal to this court after the trial judge stayed his own order pending appeal.

The facts which underlie and support the applications were presented to the trial court in the affidavit of Assistant District Attorney Gregory Wapels. For the purposes of our consideration of the matter on appeal, we may accept as true the contents of that affidavit, the substance of which is set forth in respondent's counter-statement of facts which we repeat at length.

On April 12, 1982, Margaret Barbera was abducted from a roof-top parking lot on a Westside pier in Manhattan. Three employees of the Columbia Broadcasting System, Leo Kuranoki, Robert Schulze, and Edward Benford, witnessed the abduction and tried to aid Ms. Barbera. Ms. Barbera's abductor shot and killed each of those three men with a single .22 caliber gunshot to the head. After subduing Ms. Barbera, the killer placed her in a late-model van. He then entered the van and drove from the pier. Investigators summoned to the scene found a .22 caliber shell casing near each of the three bodies on the pier.

The following day, April 13, 1982, Margaret Barbera's body was found in an alley in lower Manhattan. Ms. Barbera had been shot once in the head with a .22 caliber gun. In one of her hands was a human hair.

On April 19, 1982 Donald Nash was arrested by the State Police in Kentucky while driving a van similar to the one in which Ms. Barbera had been abducted. This van was owned by and registered to Donald Nash, of 81 Creek Road, Keansburg, New Jersey. At the time of the killings, Nash owned Rubin Construction Co., a New York company with offices located several blocks from the pier on which the murders took place. Donald Nash used the van in

connection with his business at the Rubin Construction Company. At night, he parked the van at his home in Keansburg, New Jersey.

Following Nash's arrest in Kentucky, a warrant authorizing a search of Nash's van was obtained in the United States District Court for the Eastern District of Kentucky on April 20, 1982. In executing the warrant, authorities discovered a .22 caliber shell casing, numerous bloodstains, latent fingerprints, and human hair similar to the hair found in Margaret Barbera's hand.

Examinations conducted by the Ballistics Section of the New York City Police Department's crime laboratory have established that the shell casing found in Nash's van and the three shell casings found near the bodies of the three CBS employees were fired in and ejected from the same gun. Serological tests conducted by the New York City Medical Examiner's Office reveal that there is a high statistical correlation -- to the exclusion of 99% of the population -- between Margaret Barbera's blood type and some of the bloodstains found in Nash's van. Other bloodstains found in the van do not match the known blood type of either Margaret Barbera or Donald Nash.

At some point, police officials discovered that Nash had repainted the van in the garage of his home on April 16, 1982, four days after the killings on the pier. Once the van was repainted, decals were affixed to its exterior. Latent fingerprints recovered from those decals have ...


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