A Brooklyn judge has refused to compel a sex offense defendant to give up a genetic fingerprint because prosecutors waited too long to request a DNA sample. Criminal Court Judge George A. Grasso (See Profile) held in People v. Cherry, 2011KN035732, that the nine-month delay in seeking a buccal swab was unreasonable under CPL 240.90. The Criminal Procedure Law requires such motions to be made within 45 days of arraignment, but permits late application upon a showing of good cause. Here, Judge Grasso held, there was no good explanation for why a DNA sample was not taken immediately.
Records show that Blake Cherry was arrested in May on charges of sexual misconduct, sexual abuse and menacing—all misdemeanors—and the violation of second-degree harassment. The Brooklyn District Attorney’s Office contended that dried secretions were recovered from the victim’s breast and sought to compare the evidence with Mr. Cherry’s DNA. However, while the district attorney had that information in May, the request for a sample was not made for some nine months, Judge Grasso said.
