The following papers were read:Order to Show Cause-Affirmation of ADA Anthony J. Curti, Esq. — Annexed Exhibits 1-3People v. Victor, 2016 NY Slip Op 51180(U) (City Ct. City of Peekskill 2016) 4DECISION & ORDER The People move for an order requiring defendant Justin Pitt to make himself available for, and present himself for, the taking of buccal swab samples of his saliva and mouth, by reasonable force if necessary, for the purpose of comparing his DNA with evidentiary items collected in this case.Upon the foregoing papers and the proceedings held and the arguments made in open Court on August 3, 2018, it is hereby ORDERED that the People’s application is granted.The People have moved this Court for an Order directing the defendant to provide buccal swab samples of his saliva and mouth. The samples are sought in connection with an alleged burglary of a residence located at 196 Walnut Street in the Village of Walden, Orange County, New York on October 24, 2014. A window on the ground floor of the residence was broken. Blood was found on the floor of the residence’s hallway, on a chair, and on a desk. Samples of this blood were recovered by the police. Further, buccal swab samples were taken from the owners of the residence, as well as from James C., Jay M., Laura L., and Marc L. The blood samples and buccal swabs were sent to the New York State Police Forensic Investigation Center for analysis. A profile was developed in connection with the blood samples recovered from the residence. The defendant previously had provided a DNA sample as a result of a previous criminal conviction and a profile was developed from that sample, which was kept and maintained through the New York State DNA Index. A search of the New York State DNA Index resulted in an association between the blood samples recovered from the burglarized residence and the DNA on file for the defendant. When the police were notified of this “association” they conducted an interview of the defendant.When the defendant was interviewed by the police he allegedly admitted that he entered the residence in question on October 23, 2014 into October 24, 2014. The defendant’s purported statements, coupled with the DNA evidence, resulted in the defendant being arrested for Burglary in the Second Degree and Criminal Mischief in the Second Degree. The People now seek to obtain buccal swabs to provide DNA samples for comparison with the samples recovered from the residence.Defendant contends that this Court is without jurisdiction to compel the defendant to submit a buccal swab prior to an Indictment being filed, despite that a felony complaint is pending. In support of his argument, defendant submitted an uncorrected, unpublished opinion, People v. Victor, 2016 NY Slip Op 51180(U)(City Ct. City of Peekskill 2016). Further, defendant argues that because his DNA profile already is on file, compelling defendant to submit a buccal swab is unnecessary since the profile already on file is a less intrusive means than requiring the defendant to provide a buccal swab.The law is clear that this Court may order an individual to provide certain non-testimonial evidence if the People establish:1. Probable cause to believe the person committed a crime.2. A clear indication that relevant material evidence will be found.3. That the method used to secure the evidence is safe and reliable (Matter of Abe A., 56 NY2d 288 [1982]; People v. Shields, 155 AD2d 978 [1989]).The People’s affirmation sets forth facts establishing probable cause that the defendant committed a crime. Further, the Court finds that the taking of buccal swabs will provide relevant material evidence. The People seek the samples to identify or eliminate the defendant as the source of the potential DNA evidence recovered. While it may or may not be dispositive on any single issue, evidence regarding the source of the DNA is clearly highly relevant and material (People v. Wesley, 140 Misc.2d 306 [Albany Co. Court, 1988). The taking of the buccal swab samples would not constitute an unreasonable risk to the health of the defendant, would involve only a minimal intrusion into his body, and is reliable. Finally, no lesser intrusive alternative means for obtaining the evidence was brought forward. Specifically, the defendant is not willing to waive any objections and stipulate to the evidentiary use of the DNA profile that is on file in the instant case. The defendant is reserving all objections related thereto. The People have an obligation to insure the sample being utilized is a true sample of the defendant’s DNA.Defendant’s argument that this Court is without jurisdiction to compel the defendant to submit a buccal swab prior to an Indictment being filed is wholly without merit, and the defendant’s reliance on People v. Victor is misplaced. The City Court in the Victor case specifically addressed the issue of whether a lower court has jurisdiction to compel a defendant to provide non-testimonial evidence in a case where only a felony complaint was pending. The People brought the instant application in a Superior Court, not a lower court. The law is clear that a County Court does have jurisdiction to issue such an Order.Accordingly, the People’s application must be granted, and it is herebyORDERED that the defendant make himself available to the Orange County District Attorney at the Office of the District Attorney or the Orange County Correctional Facility, upon 24 hours notice to defendant’s attorney, to submit to the taking of buccal swab samples of his saliva and mouth.The aforesaid constitutes the Decision and Order of this Court.Dated: August 8, 2018Goshen, New York
