Officer says ‘minimum’ force, not Taser, was OK’d to get DNA
Reluctant suspect shocked by Taser
LOCKPORT — A Niagara Falls police lieutenant testified Monday that an assistant county prosecutor gave officers the go-ahead last fall to use “minimum force” necessary to take a DNA sample from a man who was subsequently shocked by a Taser when he wouldn’t submit to a mouth swab.
In testimony contrary to what was written in a police report, Detective Lt. William M. Thomson said he was told by Assistant Niagara County District Attorney Doreen M. Hoffmann “we could use the minimum force that was necessary” to compel Ryan S. Smith to submit to a DNA sample while he was being detained by police.
Hoffmann was not told police were considering using a Taser because Thomson “didn’t think that was germane,” he said about his Sept. 29 conversation with Hoffmann during an evidence suppression hearing before Niagara County Court Judge Sara Sheldon Sperrazza.
Smith, 21, of Niagara Falls, has been charged with multiple counts of kidnapping, robbery and burglary, along with other counts, in connection with a December 2006 incident at a city gas station, during which Smith is accused of pointing a gun at a police officer.
A Niagara County grand jury handed up a 24-count indictment in December after investigators received the test results of the DNA sample, which was obtained when Smith was sitting handcuffed on the floor at Niagara Falls Police Headquarters, an officer testified Monday.
Officers discussed different methods of forcing Smith to give the sample, including prying open his mouth with their hands, but the decided the Taser “would be the safest way,” testified Officer George W. McDonell, who administered the shock.
Smith was picked up about 6 p. m. Sept. 29 near Niagara and Seventh streets. Police said they had a court order for a DNA sample.
Smith’s attorney, Patrick Balkin of Lockport — who maintains officers had the authority to lock up his client for refusing to give his DNA, but not take matters into their own hands — called four members of the Falls Police Department to the stand on Monday.
Thomson, McDonell, Crime Scene Unit Officer Jason G. Sykes and Detective James C. Galie Jr. each gave the court their version of events. Officer Ryan G. Warme, who was also present during the incident, was not called to testify. Warme has been jailed and suspended from his job since he was charged by the FBI in October with conspiracy to distribute crack cocaine, wire fraud and other counts.
During their testimony, McDonell, Sykes and Galie said Smith had refused numerous times to submit to the swab. They said Smith told them that if they wanted the sample they were going to have to shock him with a Taser.
McDonell testified he gave Smith a “dry stun” — referring to what police call a “less effective” shock that doesn’t shoot prongs from the Taser into the recipient — to his left shoulder for about 1z to 2 seconds. The normal length of time a person is shocked is five seconds, unless the officer manually stops the equipment, McDonell testified.
After the shock, Smith complied with their request to take a mouth swab, they said.
After the sample was taken from Smith, he was charged with criminal contempt, “because of the means that it took to get him to comply,” McDonell said.
While Balkin, Smith’s attorney, asserts his client was rendered unconscious by the shock, police testified on Monday Smith remained conscious.
Just before the hearing recessed, Sperrazza, Galie and Balkin watched about a 40-second video clip picturing the moments right before and including when the Taser was used. The clip was viewed from the bench and could be heard, but not seen, by the public.
Galie was on the stand when the hearing went into recess and will continue his testimony when the hearing resumes at 2 p. m. today.
After he was led from the courtroom, Smith told reporters he refused to volunteer a sample because he “didn’t feel they had to take it,” and had “never seen a court order, period.”
Smith has previously been jailed for two incidents that took place in 2005, for which he was granted youthful-offender status. He also has been accused in a July 2006 shooting in Niagara Falls.
Balkin had previously told The Buffalo News he planned to call Hoffmann, the prosecutor, as a witness during the hearing. Hoffmann did not take the stand because she gave Balkin the piece of information he said he wanted from her — when she found out a Taser had been used to obtain the DNA sample.
Hoffmann said she found out the same day, shortly after the shock was administered.
During Monday’s hearing, Sperrazza attempted to dampen any hostility that may exist between attorneys on both sides, reminding them they have to be cordial with each other, at least in the courtroom.
“The facts are what they are,” the judge said. “Let them come out, and the court will make a decision.”
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