On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Number G-11-03.
Before Judges Newman, Fall and Parrillo.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from the Law Division's grant of the State's application, pursuant to Rule 3:5A, for investigative detention of T.G. and the taking of a buccal swab sample to identify T.G.'s DNA for use in connection with the State's continuing investigation of the alleged aggravated sexual assault of A.S. The factual and procedural history relevant to our consideration of the arguments advanced by the parties follows.
On or about April 8, 2003, the State filed a motion in the Law Division seeking an order requiring T.G. to submit to investigative detention pursuant to Rule 3:5A for the purpose of the taking of exemplars in the form of buccal swabbing to obtain a saliva sample from T.G. for DNA analysis. The State's application was solely supported by the April 8, 2003 certification of Senior Assistant Prosecutor Paul D. Colangelo, which contained the following information.
On June 14, 2002, A.S., K.B., K.J., and J.T. arrived at the Franklin Township home of T.G. to use his pool and spa. T.G. gave A.S. an alcoholic drink. At some point, T.G. and A.S. were in the house together. An investigation by Detective Ken Crescitelli of the Franklin Township Police Department disclosed that A.S. contended that after she had used the bathroom she found T.G. standing outside the bathroom door; that T.G. kissed her and she kissed him back; that she recalled a strange smell on T.G.'s breath and, upon inquiry, T.G. asked A.S."if she wanted some[;]" and that she then blacked out. Detective Crescitelli learned from A.S. that she believed she had been sexually assaulted inside the residence of T.G. A.S. told Detective Crescitelli"that she recalled laying on a bed, that it was very dark, that she was sitting on a floor by a closet, and that she did not remember anything about how she got there." Mr. Colangelo's certification related the following additional information:
6. A.S. then remembered sitting on a sofa and a friend coming in and saying that the others at the gathering had been looking all over for her. She next remembered getting sick and vomiting.
7. A.S. remembered that her rings were missing. She told Det. Crescitelli that [T.G.] gave them to a friend. She told Det. Crescitelli that she was told by this friend that [T.G.] pulled some type of vial out of his pocket, but that she, the friend, was not sure what it was.
8. Det. Crescitelli asked A.S. if she remembered being sexually assaulted. A.S. replied she did not know and that she was not sure what happened.
9. A.S. submitted to a sexual assault examination. In addition, A.S. submitted blood and urine samples to test for the presence of any drugs.
10. On August 6, 2002, a certified laboratory report from the toxicological analysis completed on A.S.'s urine sample revealed the presence of benzoylecgonine, a metabolite for cocaine. Det. Crescitelli learned from the husband of A.S. that [T.G.] admitted to him in the past that he used cocaine.
11. On December 9, 2002, the New Jersey State Police Central Regional Laboratory published a report of its analysis of the sexual assault examination kit obtained from A.S. A.S.'s panties and vaginal swabs obtained from A.S. tested positive for the presence of spermatozoa. Raymond T. Klama, Sr. Forensic Scientist, requested the Franklin Township P.D. to submit a buccal control from [T.G.]
12. On or about June 19, 2002, Det. Crescitelli was contacted by A.S.'s husband. This individual told Det. Crescitelli that he had two conversations with [T.G.] over the telephone. First, the husband reported, [T.G.] stated that he had no contact with A.S. After being told by A.S.'s husband that A.S. had undergone a sexual assault examination, [T.G.] told A.S.'s husband that A.S. came on to him, that they started having sexual intercourse, but stopped before they were finished. A.S.'s husband told Det. Crescitelli that [T.G.] said that no evidence of DNA would be found. A.S.'s husband ...