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LOCKPORT – Niagara County Judge Sara Sheldon Farkas ordered a robbery suspect to give another DNA sample Tuesday, but the defendant refused and was given two weeks to file an appeal of Farkas’ order.

Ryan S. Smith had his previous conviction overturned by the Appellate Division of State Supreme Court on the grounds that Farkas should not have permitted prosecutors to use a DNA sample obtained after the handcuffed Smith was zapped with a Taser electronic stun gun by Niagara Falls police in 2008.

That DNA sample, a “buccal swab” from the inside of Smith’s cheek, was taken after a laboratory error contaminated the first sample he had given with full consent the month before.

The forcibly obtained DNA matched that left on a glove found near the scene of a Christmas Eve 2006 armed robbery of a gas station and convenience store in the Falls, and that left on a can of Sierra Mist allegedly sipped by a man who invaded a Niagara Falls home July 27, 2006.

That was one of two invasions Smith allegedly committed that day. The second included the shooting of a man.

Smith, 24, was found guilty of 24 charges for the three incidents and was sentenced to 45 years in prison, but the Appellate Division canceled the verdict and the sentence in March.

Court-appointed defense attorney Joseph Terranova has asserted that without DNA evidence, the prosecution cannot convict Smith.

“We’ve already litigated the first and second buccal swabs,” said Erie County Assistant District Attorney Paul C. Parisi, assigned as a special prosecutor. “We’re left with starting over.”

“Unfortunately, that is true,” Farkas told Smith. “We start fresh.”

Parisi conceded that the Appellate Division gave no guidance on how to deal with a request for fresh DNA.

Terranova said the genetic material collected from Smith in 2008 is still available in the state DNA database, and he said Smith thinks forcing prosecutors to use that for his new trial, now set for April 8, would help his cause.

“Then the jury becomes aware your client has a prior conviction, and we don’t want the jury to hear that,” Farkas replied.

Parisi denied Smith’s claim that he is trying to use “fruit from a poisonous tree.” But Farkas gave Terranova two weeks to appeal her order to State Supreme Court.

email: tprohaska@buffnews.com