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State v. Gathers

Superior Court of New Jersey, Appellate Division

March 21, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TARIQ S. GATHERS, Defendant-Appellant.

          Argued October 25, 2016

         On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-11-1558.

          Chanel J. Hudson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Joseph J. Russo, Deputy Public Defender, of counsel; Ms. Hudson, on the brief).

          Timothy M. Lanni, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Mr. Lanni, on the brief).

          Before Judges Fisher, Ostrer and Vernoia.

          OPINION

          FISHER, P.J.A.D.

         We granted leave to appeal to consider defendant's argument that the trial judge erroneously directed that he provide a buccal swab. The State seeks the swab to determine whether defendant's DNA matches DNA that might be obtained from a handgun the State believes defendant unlawfully possessed. We reverse not only because the State failed to submit proper sworn statements, but also because the State has not ascertained whether DNA may be obtained from the handgun or, if that DNA were to become available, why it is not sufficient - before now seizing DNA from defendant - for comparison with information derived from DNA already taken from defendant and retained by the State as a result of a prior conviction.

         The factual record is quite limited. Defendant was charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a), for conduct occurring in Jersey City on August 21, 2015. On April 22, 2016, eight months after the alleged offense and five months after the indictment - as defendant resided in the county jail awaiting trial - the State moved for an order authorizing the taking of a buccal swab of defendant's mouth.

         The motion was only supported by a certification signed by an assistant prosecutor who asserted that:

• police received a call that "shots [were] fired" near 67 Clinton Avenue;
• in canvassing the area, police found a revolver lying "behind the back passenger tire of" a Chevrolet parked near 86 Sackett Street;
• police examined the revolver and discovered it contained five live rounds and one spent shell casing;
• police dusted the handgun and five bullets for fingerprints "with no results";
• police swabbed the handgun and prepared the swabs for submission to the state ...

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