LOCKPORT – Ryan S. Smith, whose conviction for two home invasions, an armed robbery and a shooting was overturned because Niagara Falls police used a Taser on him to obtain a DNA sample, is fighting prosecution efforts to obtain another sample for his retrial.
Niagara County Judge Sara Sheldon Farkas reserved decision Thursday on a motion for a sample from Smith, 24, because of his arguments that the appellate ruling that invalidated his previous DNA sample should prevent prosecutors from obtaining another.
“The only evidence against my client is DNA evidence,” court-appointed defense attorney Joseph Terranova said.
Erie County Assistant District Attorney Paul C. Parisi was assigned to the case after Farkas ruled Niagara County prosecutors had a conflict of interest because a member of Smith’s original defense team joined the Niagara County DA’s office since the first trial in 2009.
Parisi said comparison testing is needed for DNA on two key pieces of evidence: a glove left near the scene of the Christmas Eve 2006 armed robbery of a gas station and convenience store in the Falls, and a can of Sierra Mist allegedly sipped by a man who invaded a Niagara Falls home July 27, 2006.
Smith was accused of committing two home invasions that day, one of which ended in a shooting.
He was found guilty of 24 charges for the holdup, the invasions and the shooting, and was sentenced to 45 years in prison.
But in March, the Appellate Division of State Supreme Court overturned the verdict and ordered a new trial because police should not have been allowed to obtain DNA from Smith after zapping him with the Taser, a 50,000-volt electric stun gun, on Sept. 29, 2008.
Smith had given a DNA sample the previous month, but the laboratory spoiled it, so Farkas ordered a second sample without telling the defense. Smith was taken into custody and refused to give more DNA.
He was zapped with the Taser while he was handcuffed and sitting on the floor in Police Headquarters. After that, police were able to get Smith to open his mouth so they could use a “buccal swab,” a long-stemmed Q-Tip, on the inside of his cheek to get the DNA.
“They had their chance, and when they had their chance, it was obtained illegally,” Terranova said.
Smith put in a brief of his own in which he claimed allowing another DNA sample would be “fruit from a poisoned tree.”
Terranova said the information about the glove and the Sierra Mist came out during testimony at the 2009 trial, which has now been invalidated.
Farkas said that normally prosecutors only have to show probable cause to obtain a DNA sample, and with the glove and the pop can, Parisi did that.
But she said, “A cogent, reasonable argument has been raised [by the defense]. Maybe this case is unique.”
The sides are to return to court Dec. 4, and the tentative trial date is Jan. 21.