LOCKPORT – Ryan S. Smith, the Niagara Falls man whose convictions for two robberies and a shooting were overturned because police Tasered him to obtain a DNA sample, has again refused to consent to a swab for a DNA test.
Niagara County Judge Sara Sheldon Farkas said her Dec. 4 order for Smith to give his DNA to the prosecution is still in effect, but Smith would not obey it.
The order is being appealed to the Appellate Division of State Supreme Court, said Joseph Terranova, Smith’s court-appointed defense attorney.
Smith, 24, is to be retried April 8 on the 24-count indictment that brought him a 45-year prison sentence after Niagara County prosecutors used DNA to place Smith at the crime scenes.
The handcuffed Smith was zapped with the stun gun in September 2008 to force him to yield to police demands for a swab for cells from the inside of his cheek.
Smith had given a DNA sample the previous month, but it was spoiled at the laboratory, meaning it couldn’t be compared with Smith’s DNA on file in the state criminal database. He gave that sample after a previous conviction.
The forcibly obtained DNA matched that left on a glove found near the scene of a Christmas Eve 2006 armed robbery of a Falls gas station and convenience store, as well as DNA on a can of soda sipped by a man who invaded a Niagara Falls home July 27, 2006.
Smith was convicted of carrying out two home invasions that day. At the second, a man was shot.
In March 2012, the Appellate Division overturned the convictions and ordered a new trial.
Terranova said he supports Smith’s refusal to comply with Farkas’ Dec. 4 order.
“Why should they let the [prosecution] benefit by going back a third or fourth time?” he asked.
Farkas suggested to Paul Parisi, the Erie County assistant district attorney who now has the case, that he prepare an “order to compel” for her to sign at the next court date March 13.
Farkas said as far as she is concerned, the trial will go forward as scheduled unless the Appellate Division issues a stay of the DNA order.
Terranova said he believes Smith cannot be convicted without DNA evidence.