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Defendant is charged with two counts of Criminal Possession of a Weapon in the Fourth Degree

Defendant is charged with two counts of Criminal Possession of a Weapon in the Fourth Degree, and three counts of Possession of Pistol Ammunition, both Class A misdemeanors, and Criminal Possession of Marijuana, a drug crime violation.

By motion, the People move under CPL Sec. 240.20(2)(b)(v) to compel the Defendant to submit to the taking of oral swab samples from his body for DNA testing and analysis. By a response, Defendant opposes the People’s motion, and seeks a Protective Order to prevent the disclosure of any recovered DNA to anyone other than the parties to this action.

A Kings County Criminal attorney said that, Defendant was arrested during the execution of a search warrant at Defendant’s residence. During the search of the location, a .25 caliber semi-automatic pistol, a .357 caliber Taurus Magnum Revolver, as well as .25 caliber, .357 caliber, and .38 caliber ammunition were recovered from a safe, while marijuana was recovered from a nightstand.

By a decision, the Court found probable cause for the issuance of the search warrant, and denied Defendant’s motion to suppress the evidence seized.

Defendant admits to residence at the location where the guns, ammunition and marijuana – not heroin– were found.

The People assert that the .357 caliber Taurus Magnum Revolver recovered from Defendant’s residence contains “a mixture of DNA.” Thus, the People seek the taking of oral swab samples from Defendant’s body for DNA testing and analysis “so that they can compare the defendant’s known DNA sample to the DNA profile generated from the DNA recovered from the above firearm.”

Defendant argues that “the very issue of probable cause has yet to be determined and reviewed in this matter … at an upcoming hearing.” Further, since “it has been over a year and a half since Defendant was arrested before the People moved to obtain an Order compelling” the collection of the DNA sample, “this motion is untimely and the People have not exercised due diligence in moving to obtain the evidence they now seek.”

Alternatively, Defendant seeks a protective order, pursuant to Executive Law § 995–d, to preclude the disclosure of the recovered DNA to anyone other than those involved in this case and prohibiting the Office of the Medical Examiner from posting its findings in any database that it maintains for DNA information.

In pertinent part, CPL 240.40(2)(b)(v) reads as follows: “2. Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor’s information, information or simplified information charging a misdemeanor is pending: (b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to: (v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto.

In order to prevail on a motion pursuant to CPL 240.40(2)(b)(v), the People must establish the following; “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other.”

The first prong is satisfied since a determination has already been made regarding the issue of probable cause. In its decision, the Court specifically stated “since the defendant had control over the premises, the contraband recovered established sufficient probable cause for the arrest of this defendant.” 1 The firearms and marijuana were recovered from Defendant’s apartment, and Defendant was found to have standing to challenge the search warrant based upon his residence in the target apartment.

The second prong is satisfied since there is a “clear indication” that relevant material will be found. The laboratory report of the Office of the Medical Examiner indicates that the DNA swab of the firearm determined that “a mixture of DNA.” was recovered from the .357 caliber Taurus Magnum Revolver recovered from Defendant’s residence.

The Court finds that “The inclusion or exclusion of the defendant as the source of the DNA sample obtained from the seized [handgun] clearly constitutes relevant and material evidence in this case.”

The third requirement of the case law is also satisfied here. This Court finds that as long as the sample is procured by a trained professional, in a manner that is in concert with already established scientific procedures, the method of collection will be safe, reliable and free from risk or serious physical injury.

This Court further finds that given the seriousness of the crime alleged, the evidence sought by the People is probative as to the identity of the possessor of the gun, and may either include or exclude Defendant. The oral swab sought here represents a minimally intrusive mean of obtaining a DNA sample by simply using a cotton swab in Defendant’s cheek lining.
Finally, Defendant’s constitutional right to be free from bodily intrusion is outweighed by the People’s need to obtain the non-testimonial evidence sought to satisfy the element of possession in the crime charged. This Court finds that the People have established that Defendant’s submission to DNA testing and analysis is warranted in this case.

Defendant asserts that since “it has been over a year and a half since Defendant was arrested before the People moved to obtain an Order compelling” the collection of the DNA sample, “this motion is untimely and the People have not exercised due diligence in moving to obtain the evidence they now seek.”

The Court is aware that a Court of concurrent jurisdiction has held that the People’s delay in filing their discovery motion renders the motion “untimely and in violation of the mandates set forth in CPL Sec. 240.90(1).”

Under CPL Sec. 240.90(1), “a motion by a prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown may be made at any time before commencement of trial.” The Cherry Court emphasized that “the People have not articulated any argument whatsoever asserting good cause’ for failing to comply with the time constraints of CPL 240.90(1).”

However, in another case, the Court ruled “although the People failed to show good cause for their delay, the delay itself did not cause defendant any prejudice.” The Appellate Division supported their position with reference to another case, where the Court of Appeals stated that “preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice cannot be cured by a lesser sanction.”

Though it discussed compelling a defendant to submit to handwriting samples, the same finding has been made in a matter involving the collection of a DNA sample.

Therefore, given the appellate authority cited above, which predates the holding in a case, the People’s delay in filing their motion will be excused given that the standards of Abe A. have been satisfied, and the Defendant is not prejudiced by the request.

Notwithstanding this Court’s finding that the People have sufficiently satisfied the requirements set forth in a case law., and that the Defendant is not prejudiced by the delay in the People’s application, this Court also finds that the People have not articulated a factual basis to support the issuance of a force order to accomplish this objective. CPL Sec. 240. 70(1); CPL Sec. 240.40(2)(b)(v);

In addition, Defendant is not categorized as a designated offender as defined by Executive Law § 995(7). Therefore, this Court finds that the People’s procurement of the Defendant’s DNA is limited to utilization in this case solely and must not be included in a state DNA identification index.

Accordingly, for the reasons stated above, the People’s motion for an order, pursuant to Criminal Procedure Law (CPL) 240.40(2)(b)(v), directing that the Defendant submit to the taking of oral swab samples from his body for DNA testing and analysis, is granted to the extent that the order issued by this Court omits language that permits the use of force upon the Defendant for these purposes and further states that the Defendant’s DNA must not be added to the state DNA identification index, and may not be publicized in any other manner by the Office of the Medical Examiner.

All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.

Criminal case, for being a delicate matter should be entrusted to competent and skilled advocates like our Nassau County Criminal lawyers here in Stephen Bilkis and Associates. We also have our Nassau County Drug Possession attorneys who will help you file a case against a person who possessed such substance in spite of the fact that it is known to be illegal.

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