DECISION AND ORDER The defendant has been charged in a felony complaint with Criminal Possession of a Weapon in the Second Degree (P.L. 265.03[3]), Criminal Possession of a firearm (P.L. 265.01-b[1]); Criminal Possession of Stolen Property in the Fourth Degree (P.L. 165.45[5]); Making a False Statement-Stolen Vehicle (V.T.L. 426); Criminal Possession of a Weapon in the Fourth Degree (P.L. 265.01[1]); Unauthorized Use of a Vehicle in the Third Degree (P.L. 165.05[1]); Criminal Possession of Stolen Property in the Fifth Degree (P.L. 165.40); and Possession of Ammunition (A.C. 10-131[i][3]). On June 5, 2018, the defendant moved for an order directing the Office of the Chief Medical Examiner (“OCME”) to destroy and expunge the DNA sample taken from a cigarette butt which defendant discarded while in pre-arraignment custody. The People did not submit opposition to the defendant’s motion.Instead, on September 19, 2018, the People moved for an order pursuant to Criminal Procedure Law 240.40(2)(b)(v), authorizing the collection of a saliva/buccal cell sample from the defendant for comparison to the mixtures of DNA found on the semi-automatic pistol recovered by the Police. On October 3, 2018, the parties contacted the Court and requested an Order directing the OCME to destroy any samples of the defendant’s DNA and expunge from their files and databases any of the defendant’s DNA record obtained through the water bottle submitted for analysis under Docket No. 2017BX047574. On October 4, 2018, the Court issued said Order on the consent of the parties.On October 9, 2018, the defendant filed opposition to the People’s application and, in the alternative, sought a protective order limiting the use of the defendant’s DNA profile to a comparison to the DNA evidence collected in this case and preventing any sample ordered by this Court from being entered into the local OCME DNA databank. On October 17, 2018, the parties appeared in Part FA and the People consented on the record to the defendant’s cross-motion, pending the disposition of the instant motion. The court, having reviewed the felony complaint, each parties’ submissions, and the court file concludes as follows:Having received no opposition from the People, defendant’s June 5, 2018 motion is GRANTED on default.The Court now moves to the People’s request for an order compelling the defendant to submit to a saliva/buccal cell swab for the purposes of DNA analysis. The People’s September 19, 2018 motion, filed pursuant to CPL 240.20(2)(b)(v), is GRANTED. Defendant’s cross motion for a protective order is GRANTED on the consent of the People.FACTSAccording to the felony complaint and allegations contained within the People’s motion papers, on May 3, 2018, at approximately 12:52 A.M., the defendant, while acting in concert with others, was observed by off-duty officers at the Northwest corner of Fulton Avenue and East 170 Street, County of the Bronx, in a gray 2006 Chevrolet van which was being operated by Jacob Rowland. It is alleged that the defendant, who was wearing all black and had a black firearm in his custody and control, exited the van from the passenger side, approached a group of males and displayed the firearm. The off-duty officers further observed the defendant engage in a conversation with Kincie Martin and Jacob Rowland. After the conversation, the defendant placed the firearm under a nearby vehicle and walked away alone. He then returned to the scene and approached Kincie Martin again. Defendant then bent down to pick up the firearm and subsequently walked across the street with Kincie Martin. It alleged that Jacob Rowland then drove approximately one-half block, in the same direction as the defendant and Kincie Martin and ultimately parked the van.In their affirmation, the People contend that Police Officer Greaige received a radio run for the above location, reporting that two black males wearing all black in a gray van and one wearing red near the van had a firearm. When Police Officer Greaige arrived on the scene, he observed Jacob Rowland and Kincie Martin standing directly next to a truck parked in front of a gray van. Police Officer Greaige detained the above individuals while another unit canvassed for the firearm. While canvassing for the firearm, Police Officer Olsen observed a firearm under the truck where Jacob Rowland and Kincie Martin were standing. More specifically, the felony complaint alleges that Jacob Rowland and Kincie Martin had in their custody and control, on the ground next to their feet, one (1) black Lorcin Engineering .380 caliber semiautomatic pistol loaded with seven (7) .380 caliber live rounds.The People’s affirmation further alleges that Officer Greaige continued to canvass the area for the third male and located the defendant on Franklin Avenue. The defendant was detained and brought back to East 170th Street and Fulton Avenue where the off-duty officers that witnessed the incident positively identified him as the individual they observed displaying the firearm and concealing it under a vehicle. The People submit that the observations of Officers Betancourt, Listhrop, Greaige, and Olsen established probable cause to believe the defendant committed the crime of Criminal Possession of a Weapon in the second degree as defined in New York Penal Law 265.03(3).The People also contend that during the investigation into the incidents, the New York City Police Department Evidence Collection Team (ECT) responded to the 42nd Precinct located at 830 Washington Avenue, Bronx NY 10451 (People’s affirmation at 4). On May 3, 2018 they recovered one (1) semi-automatic pistol. The pistol was swabbed and the samples were vouchered under Property Clerk Invoice #2000759809 (People’s affirmation at 4). The swabs were then submitted to the OCME for DNA testing and analysis (People’s affirmation at 4). The OCME performed DNA analysis on the swabs and assigned the case file lab number FB18-02755 (People’s affirmation at 5). On June 14, 2018, the assigned criminalist, Joe Ho, issued a written report under FB18-02755 regarding the swabs taken from the trigger/trigger guard and vouchered under Property Clerk Invoice #2000759809 (People’s affirmation at 6; People’s Exhibit 1). The report indicates that STR DNA typing was performed on the samples and a mixture of DNA samples from three (3) contributors were determined (People’s Exhibit 1). Although the DNA profiles of the individual contributors could not be determined, the results were deemed suitable for comparison (People’s Exhibit 1).1In response to the People’s motion, the defendant submits that the People have failed to meet Abe A’s first two prongs. Specifically, the defendant argues that the People have not established probable cause. Rather, the defendant contends that the People have presented a series of facts that may establish a connection between the other suspects and the gun, but not the defendant (Defendant affirmation at 20). Additionally, the defendant maintains that there are two significant and dispositive gaps which prevent the People from showing a clear indication that relevant material evidence will be found in a comparison of the DNA found on the gun referenced in the People’s motion: (1) the People do not establish that the gun the police recovered in the field is the same gun that the defendant was allegedly seen handling; and (2) the People do not establish that the gun at the 42nd precinct was the same gun that was recovered in the field (Defendant affirmation at 21). Based on these alleged omissions, the defendant argues that the first two prongs of the Abe A analysis have not been met and the People’s motion should be denied.Motion to Compel Saliva SampleAt the outset, this Court notes that that Criminal Procedure Law (CPL) Article 240.40 is only applicable in cases where an “indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending.” CPL 240.40(2). Specifically, Criminal Procedure Law (CPL) 240.40(2)(b)(v) provides: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 unreasonable intrusion thereof or a risk of serious physical injury thereto.However, as the Court of Appeals stated in Matter of Abe A., 56 NY2d 288, 294, 452 NYS2d 6, 437 NE2d 265, 268 (1982), “[n]omenclature notwithstanding, if the application and relief comport with all the requisites of a search warrant, it may be taken for what it is.” Therefore, despite the People’s application being made pursuant to an inapplicable CPL provision, to promote judicial economy, this court will review the People’s application to compel a saliva sample on this felony complaint since the arguments set forth by the People comport to the requirements established in Matter of Abe A.In Matter of Abe A., the Court of Appeals articulated the standard to be used before obtaining corporeal evidence from a defendant (see Matter of Abe A., 56 NY2d at 291). In this seminal decision, the court provided that the People must establish: “[(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” before a suspect can be required to provide a sample of his or her blood in furtherance of the investigation of a crime. (Id.) Additionally, “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” (Id.; see also People v. Debraux, 50 Misc 3d 247, 21 NYS3d 535 [Sup Ct, NY County 2015] [defendant charged with criminal possession of weapon can be compelled to give buccal swab to compare fingerprint found on weapon with his DNA]). “[O]nly if this stringent standard is met…may the intrusion be sustained” (Matter of Abe A., 56 NY2d at 291).Probable Cause and Relevant, Material EvidenceCriminal Procedure Law 140.10 (1)(b) provides that “a police officer may arrest a person for… [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.”2 Therefore, in the absence of an indictment, courts have generally articulated a low bar for establishing probable cause in a motion to compel a defendant to supply corporeal evidence (see People v. Ellington, 36 Misc 3d 1207[A], 3, 954 NYS2d 760 [Sup Ct, Bronx County 2012] [holding that a "finding of probable cause…does not require the submission of a sworn affidavit to corroborate every allegation, or the presence of 'concrete,' direct, or consistent evidence, nor does it require proof sufficient to warrant a conviction beyond a reasonable doubt."]; see also People v. Benitez, 33 Misc 3d 1232[A], 943 NYS2d 793 [Sup Ct, Bronx County 2011] [explaining that in order to satisfy probable cause "it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator"]).As such, establishing probable cause simply requires enough information to support a “reasonable belief” that the defendant committed the crime (People v. Bigelow, 66 NY2d 417, 423 [1985]). This information “may be supplied, in whole or part, through hearsay” (id.), particularly when the informant is identified by name and therefore “presumptively credible” (Benitez, 33 Misc 3d at 2; see also People v. Clark, 15 AD3d 864, 865, 788 NYS2d 800, 802 [4th Dept 2005], lv denied 4 NY3d 885, 798 NYS2d 730, 831 NE2d 975, 5 NY3d 787, 801 NYS2d 807, 835 NE2d 667 [2005]; People v. Afrika, 13 AD3d 1218, 1219, 787 NYS2d 774, 777 [4th Dept 2004], lv denied 4 NY3d 827, 796 NYS2d 582, 829 NE2d 675 [2005]). Relevant here, Penal Law §265.03(3) provides that “[a] person is guilty of criminal possession of a weapon in the second degree when…such person possesses any loaded firearm.”3 Therefore, to establish probable cause for criminal possession of a weapon in the second degree, the People must set forth factual allegations which establish the defendants’ connection to the loaded firearm (see Ellington, 36 Misc 3d at 3; see also Penal Law §265.03[3]).Here, the Court finds that the People have demonstrated a sufficient nexus between the defendant and the alleged crime. Specifically, it is alleged that two off-duty Police Officers, Officer Betancourt and Officer Listhrop, observed the defendant exit a gray 2006 Chevy Van with a black firearm in his possession and control (People’s affirmation at 14; Wilson Complaint at 2). The defendant then approached a group of males and displayed said firearm (People’s affirmation at 14). The officers then observed the defendant engage in a conversation with Kincie Martin and Jacob Rowland (People’s affirmation at 14). After this conversation, the defendant placed the firearm under a nearby vehicle and walked away alone (People’s affirmation at 14). It is alleged that the defendant then came back to the location, approached Kincie Martin again and the two individuals engaged in another conversation. After the conversation, the defendant bent down, picked up the firearm, and the two individuals walked away from the location (People’s affirmation at 14).When Officer Greaige arrived on the scene, he observed Jacob Rowland and Kincie Martin standing directly next to a truck parked in front of the gray van which was previously being driven by Jacob Rowland (People’s affirmation at 15). It is alleged that Jacob Rowland and Kincie Martin had in their custody and control, on the ground under the truck next to where they were standing, a loaded black Lorcin Engineering .380 caliber semiautomatic pistol loaded with seven (7) .380 caliber live rounds4 (Wilson complaint at 2).Officer Greaige then canvassed the area and located the defendant on Franklin Avenue. The defendant was detained and brought back to East 170th Street and Fulton Avenue where the off-duty officers positively identified him as the individual they observed displaying the firearm and concealing it under a vehicle (People’s affirmation at 14). While the Court notes that the evidence of possession is presented in the form of unsworn hearsay, the off-duty officers are named in the motion papers and presumed credible (see Benitez, 33 Misc 3d at 2). Nonetheless, the form of these allegations is not detrimental to the People’s application because probable cause may be established by hearsay information (see CPL 70.10[2], see also Ellington, 36 Misc 3d at 3; Bigelow, 66 NY2d at 423). Therefore, based on the factual allegations presented, and despite the defendant’s arguments to the contrary, this Court concludes that the People have established the first prong of the Abe A analysis and probable cause exists to order the taking of a sample of defendants’ saliva for DNA testing in connection with the alleged crime.With respect to the second prong of the Abe A analysis, the People’s affirmation in support of their September 19, 2018 motion to compel a saliva sample demonstrates a clear indication that relevant evidence will be found if the requested DNA sample is provided. Here, OCME has issued a written report under FB18-02755 which indicates that STR DNA typing was performed on the samples taken from the trigger/trigger guard of the firearm (vouchered under Property Clerk Invoice #2000759809) and a mixture of DNA samples from three (3) contributors were determined (People’s affirmation at 6; People’s Exhibit 1). While the results indicate that the DNA profiles of the individual contributors could not be determined, they were deemed suitable for comparison (People’s Exhibit 1).The defendant argues that the People have not established the second prong of Abe A because there are no factual allegations connecting him to the recovered firearm. In support of his argument, the defendant cites several decisions which the Court finds distinguishable from the instant case. Specifically, here, the People have alleged the defendant’s connection to the recovered firearm (cf. People v. Lloret, Ind No 2282-2016 [Sup Ct, Bronx County 2017] [Clancy, J.]); People v. Swan, Ind No 3781-2010 [Sup Ct, Kings County 2010] [Dwyer, J.]). They have also provided the factual basis that led to the recovery of the firearm (cf. People v. Mansell, Ind No 267-2018 [Sup Ct, Bronx County 2018] [Clancy, J.]), and established that the firearm in question is relevant to the case (cf. People v. Melvin Colon, Ind No 0570-2018 [Sup Ct Bronx Co Aug 1, 2018] [Best, J.]). Therefore, the Court finds that DNA testing would be relevant in either including or excluding the defendant as a contributor to the DNA mixture on the firearm.Safe and Reliable MethodFinally, the People have satisfied the third prong of the Abe A analysis because the proposed procedure used to extract DNA from the Defendant, to wit: a swab inside the defendant’s mouth, is safe, reliable, and far less invasive than other methods used to collect corporeal evidence (e.g., blood draw), (see Matter of Abe A., 56 NY2d at 299; People v. Trocchio, 107 Misc 2d 610, 435 NYS2d 639 [Suffolk County Ct 1980]; see also United States v. Amerson, 483 F3d 73, 84 [2d Cir. 2007] ["If the DNA were to be collected by cheek swab [rather than by blood sample] there would be a lesser invasion of privacy because a cheek swab can be taken in seconds without any discomfort”]), and there is no risk of serious injury inherent in the procedure itself (see Ellington, 36 Misc 3d at 4 ["This court finds that the manner in which the District Attorney seeks to take a sample of defendants' saliva, a swab inside the defendant's mouth, is accepted as both safe and reliable."]). Accordingly, this court finds that (1) the seriousness of the crime in question, a violent felony offense within the meaning of Penal Law §70.02(1)(b); (2) the importance of the evidence to the investigation of this case, and (3) the minimal intrusiveness of the of the oral cheek swap, outweighs the defendant’s constitutional right to be free from bodily intrusion. As such, the District Attorney’s request for an order compelling the defendant to submit to a saliva/buccal cell swab for the purposes of DNA analysis is GRANTED.In light of this disposition, the defendant’s application for a protective order is GRANTED on the consent of the People.This constitutes the Decision and Order of this Court.Dated: November 2, 2018Bronx, New York
