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    People vs Magdelano Perez Calixto

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    People vs Magdelano Perez Calixto

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    People vs Magdelano Perez Calixto

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    56 views19 pages

    People Vs Magdelano Perez Calixto

    Uploaded by

    WNYT NewsChannel 13
    People vs Magdelano Perez Calixto

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 19
    At a Special Term of the County Court of the County of Rensselaer and State of New York, held at the Courthouse thereof, located at Troy, New York on the __ day of January, 2017. PRESENT: HON. ANDREW G. CERESIA Rensselaer County Court Judge - ‘THE PEOPLE OF THE STATE OF NEW YORK ORDER TO SHOW CAUSE -against- Indictment No.: 16-1146 Index No.:254610 MAGDALENO PEREZ CALIXTO, a/k/a “George,” Defendant. Upon the annexed Affirmation of Andrew T. Botts, Assistant District Attorney in and for the County of Rensselaer, affirmed on the 12" day of July, 2016, itis ORDERED, that MAGDALENO PEREZ CALIXTO, a/k/a “George,” show cause at a Special Term of this Court to be held in and for the County of Rensselaer at the Courthouse thereof, located in the City of Troy, New York, on the 1344 day of January, 2017, at FOO _ in the moming of that day, or as soon thereafter as counst) can be heard, why an Order should not be entered herein, permitting the taking of buecil cells from the defendant, pursuant to Criminal Procedure Law Section 240.40 [2)(b)[, People v. Rashia, 133 AD3d 1029 (3d Dept 2015) and People v. Pryor, 14 AD3d 723 (34 Dept 2005), why the People should not have such other and further relief as the Cout may deem just and proper: and itis further ORDERED, that mailed service of this Order, and the papers upon which it was granted upon the Rensselaer County Public Defender’s Office, attomey for MAGDALENO PEREZ CALIXTO, a/k/a “George,” on or before the 4 day of January, 2017, at 202 in the APE noon of that day shall be deemed good and sufficient service thereof. SER sad Lj Dated: December 3, 20 Troy, New York A. fr . Hon. Andrew G. Ceresia Sugrene Court Ts\ice. STATE OF NEW YORK COUNTY COURT COUNTY OF RENSSELAER THE EOPLE OF THE STATE OF NEW YORK AFFIRMATION -against- Indictment No.: 16-1146 Index No.: 254610 MAGDALENO PEREZ CALIXTO, a/k/a “George,” _ Defendant. Andrew T. Botts, under penalties of perjury, duly Affirms as follows: Tam an Assistant District Attomey in and for the County of Rensselaer, and am licensed to practice law in the Courts of the State of New York. This Affirmation is respectfully submitted in support of the Motion by the People for an order permitting the taking of buccal cell samples of the defendant for testing, comparison and analysis by an authorized physician or laboratory. I make this Affirmation based upon a review of the file contained in the Office of the District Attorney, as well as conversations with sworn members of the Troy Police Department and the Rensselaer County Sheriff's Department, and swomn, members and civilian members of the New York State Police. The above named defendant has been charged by Indictment with: one count of Murder in the First Degree, a class A-1 felony, in violation of section 125.27, subdivision 1(a)(viii) of the Penal Law of the State of New York; two counts of Murder in the Second Degree, both Class A-1 felonies, in violation of section 125.25, subdivision 1 of the Penal Law of the State of New York; two counts of Murder in the Second Degree, both Class A-1 felonies, in violation of section 125.25, subdivision 3 of the Penal Law of the State of New York; one count of Kidnapping in the Second Degree, a Class B felony, in violation of section 135.20 of the Penal Law of the State of New York; one count of Concealment of a Human Corpse, a Class E felony, in violation of section 195.02 of the Penal Law of the State of New York; one count of Burglary in the First Degree, a Class B felony, in violation of section 140.30, subdivision 2 of the Penal Law of the State of New York; one count of Burglary in the Second Degree, a Class C felony, in violation of section 140.25, subdivision 2 of the Penal Law of the State of New York; and two counts of Conspiracy in the Fourth Degree, both Class E felonies, in violation of section 105.10, subdivision 1 of the Penal Law of the State of New York. . The Indictment results from an extensive investigation led by the Troy Police Department and the Rensselaer County Sheriff's Department, with substantial assistance from the New York State Police, into the deaths of Javier Gomez and Cristian Gonzalez. On October 17, 2016, the body Javier Gomez was discovered at his 1 East Glenn Avenue apartment in the City of Troy, New York On October 18, 2016, the body of Cristian Gonzalez was discovered wrapped in blankets and lying in a shallow ravine off of Blue Factory Hill Road in the Town of Brunswick, New York. The defendant made a statement to the police in which he admitted that he was present for and participated in the kidnapping, killing and concealing of Cristian Gonzalez, as well as the burglary at 1 East Glenn Avenue and the subsequent killing of Javier Gomez, A copy of this statement is attached hereto as EXHIBIT L 9. Luis Alfredo Monge Guevara, a/k/a “Alfiedo,” a/k/a “EI Gordo,” made a statement to the police in which he admitted that he and defendant were present for and participated in the kidnapping, Killing and concealing of Cristian Gonzalez, as well as the burglary at 1 East Glenn Avenue and the subsequent killing of Javier Gomez, A copy of this statement is attached hereto as EXHIBIT 2 10. Salomon Najera Hemandez, a/k/a “Salo,” a/k/a “The Player,” a/k/a “Tocador,” made a statement to the police in which he admitted that he and defendant were present for and participated in the kidnapping and killing of Cristian Gonzalez, as well as the burglary at 1 East Glenn Avenue and the subsequent killing of Javier Gomez. A copy of this statement is attached hereto as EXHIBIT 3. 11. The Troy Police Department and the Rensselaer County Sheriff's Department, in conjunction with the New York State Police, submitted various items of evidence to the New York State Police Forensic Investigation Center (hereinafter “FIC”) for testing, analyzing and comparing 12, It is material to the preparation of the People’s case that they have the opportunity to obtain buccal cell samples of the defendant for testing, comparison and analysis, The FIC also requires a sample of defendant's buccal cells for exclusion purposes. 13, Upon information and belief, the sources of my knowledge being a review of the case file, conversations with police officers/investigators and contacts by my 14. 15. 16. 7. office with FIC Laboratory personnel, as well as my own research, the item requested is necessary for comparison and analysis for the following reason: buccal cells are requested for DNA comparison and analysis with the evidence collected for a confirmatory analysis of several items of evidence submitted to the laboratory, Defense counsel is invited to be present at the time when the sample is collected. This will be scheduled at 2 mutually convenient time. Further, the withdrawal of the buccal cell samples would be accomplished by a method that is safe and reliable, and which would impose no more physical discomfort than is reasonably necessary, in accordance with accepted medical standards. The Appellate Division has held that in a post-indictment environment, such as this, “the grand jury indictment provide[s} the requisite probable cause and statutory authority for the” issuance of the requested order. People v. Roshia, 133 AD3d 1029, 1030 (3d Dept 2015). See also, People v. Pryor, 14 AD3d 723, 725 (Bd Dept 2005) Iv denied 6 NY3d 779. The People submit that the Court has a reasoned basis for issuance of the requested order, given the seriousness of the charges, the defendant’s admissions to being present for and participating in portions and parts of the charged crimes, as well as the collection of various items of physical evidence upon which DNA ‘comparisons can be made. Even applying the 3-prong test applicable to a pre-indictment environment, the People submit that the present application satisfies those criteria. The Court of Appeals held in Matter of Abe A. that 2 court order to obtain a blood sample could issue provided the People satisfied three requirements: (1) probable cause to believe that the suspect had committed the crime; (2) a clear indication that relevant material would be found; and (3) that the method used to secure the samples would be safe and reliable. Matter of Abe A., 56 N.Y.2d 288, 291 (1982). 18. The Grand Jury of Rensselaer County has already determined that probable cause to believe that defendant has committed the crimes charged because they have issued an Indictment; the discovery of blood-covered physical evidence of a kind and character similar to that which codefendants allege defendant possessed and utilized in his commission of the killings of Cristian Gonzalez and Javier Gomez provides a clear indication that relevant material would be found; and the method to be used to secure a buccal cell sample from defendant is the commonly accepted practice and has already been held by the courts of this State to be safe and reliable. 19. The procedure to be utilized in obtaining the requested sample of defendant will not inftinge upon his constitutional rights. ‘The defendant may not object to such a request for exemplars on the mere ground that possession of probable cause by the People sufficient for the indictment negates the necessity for, or propriety of, an exemplar. United States v. Dionisio, 410 U.S. 1 (1973). 20. The taking of buccal cell samples does not infringe upon the Fifth Amendment privilege against self-incrimination. Identifying physical characteristics, as distinguished from material testimony, is beyond the ambit of the Fifth Amendment protection. Gilbert_v. Califomia, 388 U.S. 263, 266-67 (1967). Moreover, “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature...” Schmerber v, California, 384 U.S. 757, 761 (1965). The taking of samples from defendant is the taking of an identifying characteristic and is clearly non-testimonial and non-communicative. 21. Utilization of the requested procedure does not constitute an unreasonable search and seizure. An individual has no expectancy of privacy with regard to the peculiar properties of his or her body, handwriting or to the taking of his or her photograph. United States v, Mara, 410 U.S. 19, 21 (1973); Dionisio, 410 U.S. at 14, 22.In view of the foregoing your affiant submits that the People’s request is reasonable, and in light of the above-mentioned facts, there is a clear indication that the securing of the buccal cell sample from defendant will supply substantial probative evidence. WHEREFORE, your deponent prays that the Court issue an Order pursuant to Criminal Procedure Law section 240.40(2)(b)(v) and People v. Roshia, 133 AD3d 1029 (Bd Dept 2015), compelling defendant to provide buccal cells for comparison purposes by the FIC, and for such other and further relief, as this Court may deem just and proper. Ata Special Term of the County Court of the County of Rensselaer And State of New York, held at the Court House thereof, located at Troy, New York on the day of January, 2017, PRESENT: HON. ANDREW G. CERESIA Rensselaer County Court Judge STATE OF NEW YORK COUNTY COURT - COUNTY OF RENSSELAER THE PEOPLE OF THE STATE OF NEW YORK, ORDER -against- Indictment No.: 16-1146 Index No.:254610 MAGDALENO PEREZ CALIXTO, a/k/a “George,” Defendant. ‘A Motion having been made by the People of the State of New York at this term of the Court in the above-mentioned action for an Order pursuant to Criminal Procedure Law section 240.40[2](b)[v] permitting the taking of samples of buccal cells from the defendant: NOW, after reading the Order to Show Cause, the Affirmation of Andrew T. Botts, Assistant District Attorney, affirmed on the 22" day of December, 2016, in support of the Motion, and no papers being filed in opposition thereto and/or the Court having heard oral argument in opposition, and after due deliberation, it is hereby ORDERED, that the defendant provide buccal cells, these cells to be obtained under the direction of any qualified person, and itis further ORDERED, that defense counsel shall be allowed to be present during the taking of the aforesaid buccal cell sample at a time and place to be determined by the Rensselaer County District Attorney's Office and it is further ORDERED, that a copy of this Order shall be served on the defense counsel. Dated: January __, 2017 Troy, New York Hon. Andrew G. Ceresia Rensselaer County Court Judge EXHIBIT 1 EXHIBIT 2 Gem. 19 6/e5 StarmonwT STATE OF NEW YoRR Pace ons oy_S" paces conny or NyJhe sare, eapet sup Cy on baytheew. Ne + acRQO , voRw on o3/a9 hoe . t_lWis Alfred Monge Cue vores au mesrpins at_ SEK Cwelr SY fechosule, wt Jeliy “ Faw. Based Boros and Zoe Corey Fl, SAVE BEEN ADVISED ny or mt_NNSP end Bactelas Co. Sheu Rep) + OF THE FOLLOWING: TTAVE THE RIGHT TO REMAIN SILENT, AND I DO NOT HAVE TO MAKE ANY STATENEW? XP I Dow'? WANT TO. TE X GIVE UP THAT RIGHT, ANYTHING I DO SAY CAN AND WILL, BE USED AGAINST KE TN A COORT OP LAW. Ae AVE THE RIGHT TO HAVE A LAWYER PRESEN? BEFORE MAKING ANY STATION? OR AT ANY TIME DURING THIS STATEMENT. TATE NOULD DECIDE I DO WANT A LAMYER, AND I CANMOT APFORD 70 HIRE OME, X TAMTER WILL BE APPOINTED FOR NE FRER OF CHARGE AND I MAY HAVE THAT LANTER PRESENT REPORE MAKING ANY STA’ . i ALSO UNDERSTAND THAT I HAVE THE RIGHT TO STOP AT ANY TIME DURING THIS STATEMENT AND RENAIN SILENT AND HAVE A LANYER PRESENT. wage AY UNDERSTAND THESE RIGHTS, AND AT THIS TIME I AGREE TO GIVE UP MY RIGHTS AND a an Zan fa Farm _od the Vigra Chde Palio OFC and Bem gas hes shedwed Jo So Boras cud Tae File of fst oben Pee ta ll, Te @ Pret J . ‘ bb ds oe Explre- 2002, olor veel T} \s try velcle bit + Jel je. Iso in the velicle ie ited ell adler “the flee hece. 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