HE PEOPLE OF THE STATE OF NEW YORK v.

LEONARD CALLACE, DEFENDANTCounty Court of New York,

Suffolk CountyJune 27, 1991FACTS: In July 1986, he was charged with the January 1985 sexual assault of
an eighteen-year-old nursing home aide at knifepoint in the parking lot of a shopping center. She had
beenaccosted by two men and forced into a nearby car. The second man was never identified.
Thevictim picked Callace out of a lineup as her assailant. Eighteen months earlier, she
haddescribed her assailant as 5’ 10” or taller, with reddish-blond afro style hair, a full beard, and across
tattoo on his left hand. Callace is 5’ 8”, had straight blond hair, a tightly trimmed goatee,and a tiny cross
on his right hand. Prosecutors offered a deal to Callace: that he plead guiltyand serve just four more
months. Callace refused. The jury took one hour to convict him of fourcounts of sodomy, three
counts of sexual abuse, wrongful imprisonment, and criminalpossession of a weapon. On March
24, 1987, he was sentenced to twenty-five to fifty years inprison. At trial, the prosecution presented a
sketch by police artists resembling Callace, thevictim’s identification of Callace from a photo array and
the victim’s in-court identification ofCallace. The prosecution also showed that the blood group (ABO
type) of the semen collectedfrom the scene was the same as Callace’s. Callace presented an
alibi, but it wasuncorroborated. Callace’s conviction was confirmed on appeal. After
learning about DNAtesting, he asked his attorney about the original trial evidence. The attorney
remembered thatthe victim had just picked up her jeans from the cleaners and that she had spit out
semen ontothe jeans after one of the assaults. The jeans were secured from the prosecution for
DNAtesting at Lifecodes, Inc. On June 27, 1991, a judge granted Callace’s motion to consider DNAtests as
new evidence. He also ruled that if the samples did not match, he would hold a hearingto consider post-
conviction relief for Callace.ISSUE: Whether or not Callace can avail of DNA testing post conviction and
admit it as newevidence?RULING: YES. It is apparent that the application before the Court is a prelude to
the making ofthe motion to set aside a judgment on the basis of newly discovered evidence. However
there isno specific authority in the Criminal Procedure Law for discovery in connection with a motion
toset aside a judgment. On the other hand there is authority for a Court of record to devise andmake
new process and forms of proceedings necessary to carry into effect the power andjurisdiction
possessed by it. Thus the Court finds that it has the requisite authority to orderdiscovery on this
application. In any event, the prosecution is entitled to reasonable safeguardsto insure the integrity of
the evidence as well as any test results. Here the prosecution hasrequested to have a representative
present when the blood sample is taken, and that request isgranted. The People may include in the
proposed order any other reasonable safeguards whichthey believe would be necessary. Accordingly,
the application for discovery and testing of thephysical evidence, and for an order authorizing the taking
of a blood sample from the defendantis granted. The expense of these procedures shall be borne by the
defendant