Articles Posted in Gun Possession

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Thereafter, the defendant received the sentences that he bargained for and that his counsel requested be imposed. The sentences were not excessive. On his appeal, the defendant contends that all of his statements should be suppressed either because he was arrested on the street without probable cause, or else because when he was arrested the police knew or should have known of criminal proceedings pending against him and that he was represented by counsel in those proceedings. The defendant also submits that he was improperly deprived of exculpatory material to which he was so that the pretrial hearings were unfair. Those contentions are also without merit.

It is apparent from the record that the defendant was not under arrest when he was first stopped on the street, or later at the precinct when he was cooperating with the officers’ investigation. The authority to stop persons on public streets is derived from CPL 140.50 and the common-law right to inquire. Under CPL 140.50(1) and (3), a police officer may stop a person in a public place if he has a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime. In addition, the police may stop a person pursuant to the common-law right to inquire if there exists “a founded suspicion that criminal activity is present”. In the instant case, two detectives in a radio car had received a communication describing defendant, who had just been seen with two companions, as the individual who had sold the homicide victim’s jewelry to a local shop some nine days before. The officers therefore had reasonable suspicion that he had committed a crime, and were justified in temporarily detaining him and his companions to the extent necessary to obtain explanatory information regarding their knowledge as to where and how the jewelry had been acquired. He agreed to accompany the police to the precinct to discuss the matter. From the record, it is apparent that he was neither handcuffed nor otherwise coerced to go.

The courts of this State have “rejected as standards for determining when a defacto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen”. The courts have looked instead to “what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position”. Among the factors taken into account when determining whether an individual has been in police custody are the amount of time spent with the police, whether he was physically restrained or his freedom was significantly restricted in any way, the degree of cooperation he exhibited, the atmosphere in which he was questioned, and whether the questioning was investigatory or accusatory in nature.

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Upon review and consideration of the defendant’s motion, the plaintiff’s affirmation in opposition and the defendant’s reply thereto this court finds that the defendant established, prima facie, that the conduct of the accused was not foreseeable. The deposition testimony and police reports submitted by the defendant are not sufficient to establish the foreseeabilty of the shooting. The courts have held that, “Third-party criminal conduct is considered foreseeable as a matter of law where it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”.

Whether the prior criminal activity occurring within the subject premises provides sufficient evidence “to establish that it is reasonably foreseeable that the tenants are at risk of harm depends on a variety of factors, including the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.

Here, it is clear that even if the testimony regarding drug sales, which was all based upon hearsay, was true, loitering by transients and people who didn’t belong in the house as well as suspected drug sales are insufficient to make the shooting a foreseeable event or to have put the owner on notice that there was a possibility of a violent shooting. There is no proof in the record as to the reason for the shooting and only newspaper speculation that it was the result of a drug deal gone bad.

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In this criminal case, the Plaintiff is the mother of and Administratrix of the Estate of her deceased son. In April 2006, the son, who was age 17 at the time, was in the backyard of the premises visiting with his friend. The owner of the premises was the defendant.

A Queens County Criminal lawyer said that at approximately 1:50 p.m., while the son and his friend were working on a car in the backyard, the son was fatally shot by a gunman who approached the two boys in the backyard. When the police arrived on the scene, the son, who was still conscious, told the police that he was shot by someone who came up and shot him from the adjoining yard. He was taken to a Hospital where he was operated on for his gun shot wound. However, at 8:26 a.m. the next morning, he died, never regaining consciousness. An individual, who was not the shooter, was arrested that day for possession of a weapon which was kept in the residence. Five months later, the police arrested another individual and charged him with the murder of the deceased.

Thereafter, the mother individually, and on behalf of the Estate of his son, filed a summons and complaint against the owner of the property where her son was shot and against her daughter, as an owner or operator of the property, seeking monetary damages for negligence.
In the instant case counsel argues that defendant knew the house was unsafe because she removed her mother from the premises when her mother was attacked in the house and she feared for her mother’s safety. Counsel also points to defendants’ testimony in which there are several references to drug activity at the house, numerous calls to the police, transient people coming and going, and “lawlessness at the premises.” Counsel contends that the defendants failed to attempt to make the premises safe by commencing landlord-tenant eviction proceeds against the unwanted individuals.

Counsel concludes that “the subject premises had a history of illegal and criminal activity and even violence, and it was clearly foreseeable that additional violence and criminal activity could and would occur at the premises.” Counsel argues that this murder was not a random and unpreventable act of violence. Counsel contends that the admission of transients in and out of the premises with no control, drug lines outside the driveway, thefts, prostitution, a vicious assault on the homeowner, an unlicensed weapon found in the house, and calls to the police practically everyday, collectively give rise to the foreseeabilty that more violence would, and actually did, occur at the premises.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers. Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact.

“A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others”. This duty includes protecting parties on the property from foreseeable criminal conduct by a third person. This duty arises when there is an ability and opportunity to control such conduct, and is reasonably aware of the necessity for such control. “A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience “that there is a likelihood of conduct on the part of third persons… which is likely to endanger the safety of the visitor'”.

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A Queens Criminal Lawyer said that, consolidated appeals (1), by the defendants from two judgments (one as to each of them) of the Supreme Court, Queens County, both rendered June 19, 1984, convicting Day of murder in the second degree, and convicting defendant of manslaughter in the first degree and robbery in the first degree, upon their pleas of guilty, and imposing sentences, and (2) by the defendant from two judgments of the same court, both also rendered June 19, 1984, convicting him of criminal possession of a weapon in the third degree, and criminal possession of stolen property in the first degree under, upon his pleas of guilty, and imposing sentences. The appeals bring up for review the denial, in part, after a hearing, of those branches of the defendants’ omnibus motions which were to suppress statements made by them to law enforcement officials and identification testimony.

A Queens Gun Crime Lawyer said that, shortly after midnight on November 3, 1983, the defendants with a third companion, were driving through Jamaica Estates in Queens when they observed two students from Saint John’s University, the victims walking from their parked automobile to their apartment building. While one of the defendants relieved the victim of her valuables at gun point, another pursued the fleeing of the victim stabbing her in the heart when she struggled. Money and jewelry were taken from the women, and the jewelry was pawned on the following day at a shop on Rockaway Boulevard in Queens.

A Queens Felony Lawyer said that, on his appeal, the defendant asserts that his statements to the police, as well as the identification testimony of the complainant should be suppressed because the police knew or should have known that he was represented by counsel in pending criminal proceedings. He also argues that his plea allocutions were insufficient, that his guilty pleas were not knowingly and intelligently made, that he did not receive the effective assistance of counsel, and that his sentences were excessive. His contentions are without merit.

The Detective of the Detective Bureau of the Queens Task Force obtained a copy of the defendant’s arrest record and most recent arrest report at about noon on November 13, 1983. The detective testified that he had examined those records only for the names of possible “associates” of the defendant, and, in any event, the records contained no information regarding the disposition of any prior charges against the defendant, or whether those cases were open or closed. At approximately 4:00 P.M., as the Detective was going off duty, he left those records along with other material for the Detective on a desk at the 107th Precinct. The Detective did not indicate that he had spoken to the other Detective concerning those records nor did he ever personally bring them to his attention. Therefore, there is no evidence in the record that the Detective had actual knowledge of the defendant’s pending cases, or that he knew that the material obtained by the Detective existed.

A said that, the Detective came on duty at 4:00 P.M. on November 13, 1983. Queens Gun Crime Lawyer Shortly after he arrived, he set out with other officers to tour the defendant’s neighborhood, and kept watch while several plainclothes detectives entered his home. At between 10:30 and 11:00 P.M. on November 13, 1983, the defendant, accompanied by his mother and his stepfather, voluntarily appeared at the 107th Precinct. At approximately 11:55 P.M., the Detective read defendant his Miranda rights, and he made an inculpatory statement.
The issue in this case is whether defendants’ motion to suppress the evidence against them should be granted.

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A police officer on radio motor patrol duty received a radio run that there was a man with a gun at a luncheonette. The officer immediately proceeded to that busy location, where he observed several other police officers speaking with a white female, grey-haired pedestrian.

The officer overheard the woman say that a man was carrying a shopping bag and that he had a gun. The officer noticed a tall man in blue coat and blue jeans carrying a shopping bag who was walking in the vicinity. Upon inquiry, the woman told the officer that it was the man with the blue coat and blue jeans who had the gun. The officer thereupon jumped back into his radio car and followed the man. Shortly thereafter, the officer approached the man, the defendant herein, drew his revolver and called out turn around. The officer told the defendant to put the shopping bag down and raise his hands. The defendant complied with the officer’s request. The officer then lifted the shopping bag, and from its weight, thought that it contained a gun. He opened the shopping bag and observed a vinyl carrying case which was designed to carry a revolver. The officer opened the case and found an unloaded 22 caliber long rifle. The officer then immediately searched the defendant and found a loaded ammunition clip with 10 rounds in the defendant’s right hand coat pocket. The defendant was handcuffed, put in the radio car and brought to the stationhouse.

In granting the defendant’s motion to suppress the gun and the ammunition clip, Criminal Term held that the quantum of information possessed by the police officer rose only to the level of reasonable suspicion and only justified a frisk of the defendant’s person for the officer’s protection and the intrusion by the police officer into the defendant’s shopping bag constituted a search which was constitutionally infirm in view of the absence of probable cause. The Appellate Court disagrees with the reasoning and holding of Criminal Term.

It is beyond dispute that the detailed description of a man with a gun, received by the police officer from the woman pedestrian, rose to the level of reasonable suspicion and gave the police officer the right to frisk the defendant’s person for weapons, in order to protect himself even without any preliminary inquiry.

Although the police officer did not exercise this right, he took an equally proper precautionary measure for his own safety when he lifted, opened and essentially frisked the shopping bag which was in the defendant’s possession at all times and which could have easily contained a gun. Once having properly seized the gun, the police officer had probable cause to search the defendant’s person and seize the ammunition clip.

Accordingly, the order granting the defendant’s motion to suppress must be reversed and the defendant’s motion to suppress must be denied.

In another criminal lawsuit, the defendant and codefendant were charged with participating, along with three other individuals, in a robbery and mugging of two youths on New Year’s Eve. The defendant and his companions were arrested by the police while riding in an automobile in the vicinity of the location where the incident occurred, after being identified as the perpetrators by the two victims. The property identified by the victims as stolen during the incident was recovered from the back of the automobile where the defendant and two other individuals were seated.

The trial court did not inform the jury that, even if they found defendant to be in recent and exclusive possession of the stolen property without presenting a credible explanation therefore they reasonably could draw that the defendant was guilty of participating in the robbery whereby the goods were stolen; or that the defendant was merely guilty of conscious possession of the stolen property.

The defendant took the stand and admitted that he was involved in a fight with the complaining witnesses, but denied participating in a robbery. Under these circumstances, the misstatement of the presumption by the Trial Judge had the impact of improperly undermining the responsibility of the jurors, as the triers of fact, to determine whether the prosecution had sustained its burden to establish that the defendant was guilty of the robbery counts of the indictment beyond a reasonable doubt.
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The officer also testified that suddenly, a male Hispanic exited the rear passenger side of the vehicle. He engaged with the other police officer in a physical argument. They were about ten feet from the car. A gun popped out of the male Hispanic’s waistband and the police officers proceeded to chase him.

The three remaining occupants were then removed from the vehicle. As to the offender, who had been seated in the front passenger seat, the police officer placed him on the ground, handcuffed him, searched him and recovered money from his right front jeans pocket and left front jean pocket. Money was also recovered from the floorboard of their vehicle.

The third police officer, after hearing the initial radio transmission, proceeded to the site of the robbery. When she arrived at the location, she observed a man holding his head. She saw that his head was bleeding and an ambulance was already on the scene while the medical assistant is attending the man.

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At approximately 3:00 a.m., a radio transmission was broadcast of a robbery in progress and three police officers claimed to have heard it, each initially stating they heard a broadcast describing a robbery that had been committed by four male blacks that fled in with a vehicle. One of the police officer later revised his statement to reflect that the radio broadcast described two attackers, not four. The two other police officers maintained that they heard four male blacks. One of the police officers also stated that he received additional information, that there were four black attackers, by radio from a different unknown source.

The initial radio transmissions, a recording of which was presented in evidence, includes that there had been 10-30 robbery at gun point and that the attackers were described as two male blacks, one mask over face, who fled with a vehicle with unknown license plate and unknown direction of flight. Such radio transmissions did not specify a more detailed physical description of the offenders or their clothing, the license plate of the fleeing vehicle, the model, the number of doors, the age or condition of the vehicle, or as noted, its direction of flight.

Shortly after receiving such radio transmissions, approximately three to four miles from the scene of the robbery, a police officer and his partner, who were in an unmarked police car, and another two police officers who were directly behind them also in an unmarked car, were proceeding northbound. The officers observed a gray vehicle traveling southbound.

When the court asked the officers if the vehicle had any beige on it, the officer responded that it was gray with faded paint on it. He also stated that it was like peeling on certain areas of the car and may have appeared to be beige.

The owner of the vehicle and the mother of the former co-offender provided a copy of the vehicle’s registration that indicated the color of the car was gray. The court then credits her testimony that she never had the car re-painted or refinished.

The photographs of the vehicle were also presented in evidence, showing the vehicle was silver/gray in color, in good condition. The criminal court also stated that from their inspection of such photographs, it is clear that while a small portion of the rear bumper appears to have a slight amount of peeling paint, in no way can the color be described as beige or gray.

The officers further assert that after sighting the alleged vehicle, they observed four individuals inside the car and prior to stopping it, they were unable to identify their race or gender and it was not until the individuals exited their vehicle.

The police officer turned the car around, and followed the offender’s vehicle for a short distance. So did the second police vehicle. The offender’s vehicle stopped at a red light and both the police vehicles activated their lights and sounded their siren briefly.

All four officers exited their vehicles, and approached the offender’s vehicle with their a gun drawn. The police officer indicated that as he approached the vehicle, he could see that the individuals inside the car were dark-skinned but could not tell what gender they were. The police officer also told the occupants to show their hands.

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The defendant was charged with endangering the welfare of a child and criminal possession of a controlled substance in the seventh degree. She now moves the Court for an order dismissing the charge of endangering the welfare of a child for facial insufficiency.

A Queens County Criminal attorney said that an accusatory instrument upon which the defendant may be held for trial “must allege facts of an evidentiary character’ demonstrating reasonable cause to believe that the defendant committed the crime charged.” Further, valid criminal court information must contain non-hearsay factual allegations which, if true, “establish every element of the offense charged and the defendant’s commission thereof.” CPL §100.40(1)(c).

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. “That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry”. “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.”

The accusatory instrument states that in November 2010, inside an apartment in the County and State of New York: deponent recovered cocaine from on top of the refrigerator in the above apartment.

Deponent further states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: deponent’s prior experience as a police officer in drug arrests and defendant’s statements that the substance is in fact what it is alleged to be in that the defendant stated in substance that it was cocaine and she uses a little.

Deponent further states that deponent observed a girl sitting on the couch in the above apartment and that said girl is between two and three feet tall and approximately 40 pounds and, in regards to said girl, the defendant stated in substance that the girl is defendant’s granddaughter.

A violation of P.L. §260.10(1) occurs when a person “knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” “Actual harm to the child need not result for criminal liability” “The statute is broadly written and imposes a criminal sanction for the mere likelihood’ of harm.” “A court cannot and should not await broken bone or shattered psyche before extending its protective cloak around a child”

In the instant case, the cocaine was accessible to anyone in the apartment because it was on top of the refrigerator. Although the cocaine may have been recovered from an area above the height of the child, the cocaine was not “secured or locked ” “It is fair to assume that the defendant’s granddaughter could walk and climb and that therefore she could put herself within reach of the cocaine.” Also, the cocaine could simply fall off the refrigerator. Ingestion of cocaine by the child would certainly be injurious to her physical, mental and moral welfare.
In a case law, the court affirmed the defendant’s conviction for Endangering the Welfare of a Child where the defendant left firearms openly accessible, while residing with his fiancee and her 14 year-old son. The child took one of the guns and loaded it. The gun accidentally discharged and the child’s friend was injured. The Court of Appeals affirmed the defendant’s conviction for endangering the welfare of a child.

In another case law, a gun crime, the defendant lived with his 11 year-old brother. The defendant purchased a gun illegally, and wrapped it in rags, put it “inside a stereo speaker hidden in a closet behind various items of clothing and bags.” The defendant was unaware that his brother had looked through a crack in the bedroom door, and had seen the defendant “cleaning what appeared to be a gun.” Several months later, defendant’s brother, searched for “about an hour” and found the gun. The defendant’s brother and a friend then played with the gun. It accidentally discharged and killed the friend. The Court of Appeals reversed the defendant’s conviction for endangering the welfare of a child.

The distinguishing factor between the two (2) cases was that in the former case, where the gun was left out in the open, the evidence supported a finding that the defendant was aware that his conduct would likely be injurious to a child, whereas in the latter case, where the gun was secreted, the defendant did not know that his conduct would likely be injurious to a child.
Based on this rationale, the factual allegations, as set forth in the within accusatory instrument, are sufficient, at the pleading stage, to support the charge of endangering the welfare of a child. The allegations that the cocaine was left on top of a refrigerator, and not concealed in any manner, are similar to the factual allegations set forth in Hitchcock where the drugs were openly accessible, and the Court affirmed the conviction for endangering the welfare of a child.

Furthermore, when a child, “who is capable of absorbing all of his or her surroundings,” observes illegal drugs in the home, “there is a real likelihood that he or she will come to view such illegal substances as common household items.” The prospect of moral harm in such circumstances, as well as potential physical and mental harm, is neither remote nor speculative.”

Accordingly, the defendant’s motion to dismiss the charge of endangering the welfare of a child for facial insufficiency is denied.
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In denying the defendant’s motion, the judge rejected the defendant’s argument that the results of the DNA testing constituted newly discovered evidence requiring the Court to vacate his conviction, since the defendant’s DNA was not found on the victim’s body. The judge concluded that the DNA test results did not constitute newly discovered evidence because it would most probably have not resulted in a more favorable verdict to the defendant had it been admitted at trial. The Court’s reasoning was based upon the trial testimony established that scratches on the victim’s body were the result of a struggle at the time of the attack, but there was no testimony showing any contact between the victim’s fingernails and the defendant’s body; if anything, the scenario depicted allowed for the victim’s DNA under the defendant’s fingernails. According to the criminal trial testimony of the Detective of the Queens Homicide Squad, the defendant told him that in attempting to defend himself the defendant made a kicking movement which set the gun off. Therefore, there would not have been a period of time where the transference of DNA from the defendant to the victim could have been possible; and most importantly, the criminalist’s findings indicated that no conclusions concerning the source of the DNA not attributed to the defendant could be made. The DNA evidence was inconclusive and would most probably have not changed the jury’s verdict if it had been admitted at trial.

The defendant moved for leave to appeal the denial of his CPL§440.10 motion but the Appellate Division denied the defendant’s application for leave to appeal. Pursuant to CPL 440.30, the defendant has moved for an order directing the performance of a forensic DNA comparison test. More specifically, the defendant seeks to submit a sample of his own DNA to have it compared to the DNA alleles detected in right nail, left nail and right nail scrapings of the exchange student. The People have submitted an affirmation in opposition.

Submitted by the People in support of their opposition to the defendant’s motion is a sworn to affidavit prepared by an Assistant Director from the OCME Department of Forensic Biology, where she has been employed for 13½ years. The Assistant Director reviewed the lab report prepared by the Criminalist relating to the testing of the post mortem nail clippings and nail scrapings of the victim. In sum and substance, the Assistant Director concurs with the conclusions originally drawn by the Criminalist that is, that the few DNA alleles detected in the nail clippings and scrapings do not belong to the exchange student and are not suitable for comparison. Furthermore, the Assistant Director unequivocally states that what was written to the defendant was simply not accurate. Assault is not an issue.

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Late in the evening of August 4, 1994, an exchange student from Japan was returning from work to his residence. He would never safely reach the refuge of his apartment, as he would be fatally shot in the head by the defendant during a botched robbery on the 4th floor stairwell of his building. Upon entering his building, he was followed into the elevator by the defendant and an individual while a third individual waited in the lobby. During the ensuing robbery attempt that commenced after the exchange student exited from the elevator, a physical altercation developed between the victim and the perpetrators culminating with the defendant discharging his weapon at the exchange student.

For his part, the defendant alleged that the shooting was accidental. In a written statement given to the police, the defendant wrote that the three of them went up in the building and they saw a Chinese man and they all got off and the Chine man ran out the elevator and started to fight back and the gun went off by mistake. During the course of the next 18 years the defendant would claim that this statement, as well as a subsequent statement memorialized on videotape, were untrue, and were illegally obtained by the police because they tricked him into confessing. In fact, he would later claim that he was not present at the time of the shooting, but was instead with his girlfriend driving her back to the Bronx.

The defendant proceeded to a jury trial and was convicted of two counts of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Second Degree. The defendant was sentenced to concurrent indeterminate prison terms of from 25 years to life on each of the murder convictions and from 5-15 years on the Criminal Possession of Weapon conviction. The defendant’s judgment of conviction was affirmed by the Appellate Division and leave to appeal to the Court of Appeals was denied. As is his right, the defendant has consistently sought judicial relief, having filed four prior Criminal Procedure Law (CPL 440.10) motions seeking to vacate his conviction. He has also sought writs of error coram nobis on three occasions and he has petitioned for a writ of habeas corpus in the Federal District Court. All efforts have proven unsuccessful and the defendant remains incarcerated.

Before turning to the current motion now before the County Court, the defendant’s most prior CPL 440.10 motion must be referenced in order to provide context to this proceeding. That motion was filed by the defendant after the Queens County District Attorney’s Office had given their consent for DNA testing of fingernails and fingernail scrapings of the victim which had been collected during the autopsy of the exchange student. The tests were performed by Criminalist of the Office of the Chief Medical Examiner. In sum and substance, the results, as set forth in her sworn affidavit, indicated that some of the preserved evidence yielded sufficient DNA (deoxyribonucleic acid) for PCR (polymerase chain reaction) and High Sensitivity PCR DNA testing and that they yielded a DNA profile that was the same or consistent with the exchange student’s DNA profile. However, no conclusions could be drawn regarding the source of DNA alleles detected in right nail and right nail scraping which could not be attributed to the exchange student. And, although human DNA was found on right nail and left nail scrapings, the amount of DNA recovered was insufficient to conduct High Sensitivity PCR DNA testing.

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