The People move for an order requiring M.R. 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.The following papers were read:Order to Show Cause — Affirmation of Assistant District Attorney Jessica M. Dovico — Annexed Exhibits 1-3Benjamin Ostrer, Esq.’s Affirmation in Opposition — Annexed Exhibits — Affirmation of Service 4-6Assistant District Attorney Jessica M. Dovico’s Affirmation in Response — Annexed Exhibits — Affidavit of Service 7-9DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the People’s application is granted.The People have moved this Court for an Order directing M.R. to provide buccal swab samples of his saliva and mouth. The samples are sought in connection with an alleged sexual assault of a minor on October 25, 2018 in Orange County, New York.The 14 year old minor alleges that M.R. took her by her arm to a bedroom and removed some of her clothing. The minor then asserts that M.R. placed his mouth on her vagina and then inserted a finger into her vagina. Thereafter, it is alleged that M.R. placed his penis inside of her vagina and then made her touch his penis with her hand. M.R. allegedly placed his penis inside of her vagina again and then removed his penis and ejaculated onto her stomach. The minor then got off of the bed, gathered her clothing, and held her clothing against her body as she walked to the bathroom to shower.On October 26, 2018, the bedding from the bedroom and the minor’s shirt, pants, underpants, and bra were collected as evidence. In addition, the minor was examined at Westchester Medical Center where a sexual offense evidence kit was administered. Buccal swabs were provided by both the minor and her biological mother. The minor’s bedding and clothing, as well as the sexual offense evidence kit and the buccal swabs, were submitted to the New York State Police Forensic Investigation Center for processing. Thereafter, the New York State Police Forensic Investigation Center issued several reports on the collected evidence.The December 5, 2018 report states, inter alia, that, “The profile from the vulvar swabs (Items 9C2-3) is consistent with DNA from an unknown male donor, “John Doe”. This profile can be used for comparison purposes in the event that additional evidence and/or reference samples are submitted in this case” (December 5, 2018 Report from the New York State Police Forensic Investigation Center). The January 8, 2019 report states, inter alia, “Underwear…1. Cutting — Crotch Area. The presumptive screening test for seminal fluid was positive. Spermatozoa were not identified…Bra…A. Cutting — inside Hook Side of Back Strap The presumptive screening test for seminal fluid was positive. Spermatozoa were identified. B. Cutting — Right Shoulder Strap The presumptive screening test for seminal fluid was positive.” (January 8, 2019 Report from the New York State Police Forensic Investigation Center).The February 6, 2019 supplemental report states, inter alia, “Male DNA was detected and further processing was performed on the following evidence sample(s): stained cutting from inside hook side of back strap of bra — sperm and non-sperm fractions (Item 13A) and stained cutting from right shoulder strap of bra — non-sperm fraction (Item 13B). See STR and/or Y-STR DNA results…An STR Deoxyribonucleic Acid (STR-DNA) amplification procedure was performed on the following reference sample(s):Item No. Description7A. Buccal Swab from J.R.8A. Buccal Swab from N.R.An STR Deoxyribonucleic Acid (STR DNA) amplification procedure was performed on the following evidence sample(s):Item No. Description13A. Stained cutting from inside hook side of back bra strap of bra — sperm and non-sperm fractions13B. Stained cutting from right shoulder strap of bra — non — sperm fraction”(February 6, 2019 Supplemental Report from the New York State Police Forensic Investigation Center).The February 6, 2019 Supplemental Report provides the following STR Conclusions: “The mixture profile from the stained cutting from the inside hook side of the back strap of bra-non-sperm fraction (Item 13A) and the stained cutting from the right shoulder strap of the bra-non-sperm fraction (Item 13B) is consistent with DNA from two donors, one of which is male. N.R. (Item 8A) can be included as a possible contributor of DNA to this profile. This profile can be used for comparison purposes in the event that additional evidence and/or reference samples are submitted in this case. Due to insufficient genetic information, the partial profile from the stained cutting from the inside hook side of the back strap of the bra — sperm fraction (Item 13A) is not suitable for comparison.INS A portion of the STR DNA mixture profile developed from item 13B non-sperm fraction will be entered into the Combined DNA Index System (CODIS) for periodic searching between convicted offender and forensic STR DNA profiles…A Y-STR Deoxyribonucleic Acid (Y-STR DNA) amplification procedure was performed on the following evidence sample(s):Item No. Description13A. Stained cutting from inside hook side of back bra strap of bra — sperm fractionY-STR Conclusions:The DNA isolates were characterized through polymerase chain reaction (PCR) using the Yfilerr Plus amplification Kit.Referring to the New York State Police laboratory case number 18ML-02494, report dated December 05, 2018:The profile from the stained cutting from the inside hook side of the back strap of the bra — sperm fraction (Item 13A) is consistent with DNA from “John Doe”. This profile can be used for comparison purposes in the event that additional evidence and/or reference samples are submitted in this case” (February 6, 2019 Supplemental Report from the New York State Police Forensic Investigation Center).Counsel for M.R. states that two other males reside in the alleged victim’s household and argues that those males may be the source of the male DNA. However, while this may be possible for the non-sperm DNA samples, it is highly unlikely that the sperm DNA samples came from these males as these males are only 4 and 6 years old. M.R.’s counsel has submitted “innocent explanations” with respect to the presence of male DNA on the intimate body parts and undergarments of the alleged victim Such explanations include possible DNA transfer during laundering of the clothes and the bra having been previously worn by Mrs. R., the biological mother. M.R.’s counsel further asserts that the alleged victim suffers from psychological disorders and told a medical provider that she was not sure if the assault “happened in my mind or for real.” Nonetheless, the alleged victim provided a detailed description of being sexually assaulted by M.R. on a specific date, time, and place. Physical evidence has been secured which appears, at least in part, to corroborate the alleged victim’s claim of being sexually assaulted.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 M.R. committed a crime. While defense counsel’s “innocent” explanations and his arguments may potentially undermine the credibility, reliability, and believability of the alleged victim, they do not vitiate the probable cause. In addition, while the defense arguments, including those related to the limitations of Y-STR DNA, may affect the weight a finder of fact may attribute to such evidence, the Court finds that there is a clear indication the buccal swabs will provide relevant material evidence. The People seek the samples to identify M.R. 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 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 M.R., 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.To the extent that counsel for M.R. requests a Frye hearing with respect to Y-STR DNA testing, such application is denied. It has been "established that Y-STR DNA analysis is a 'non-experimental, demonstrable technique' that is widely accepted by forensic scientists" (People v. Zapata, 2014 IL App[2d] 120825 [2014] quoting People v. Stevey, 209 Cal. App. 4th 1400 [2012]). Further, “there is a general acceptance of Y-STR DNA analysis in the scientific community” (People v. Stevey, 209 Cal. App. 4th 1400 [2012]). “Although Y-STR data may not be able to offer identification to the degree that autosomal STRs do, there are useful applications for Y-STR typing in forensics” (Forensic DNA Evidence: Science and the Law §7:1 Y chromosome short tandem repeats [May 2018], Justice Ming W. Chin et al.; see also, People v. Wright, 25 NY3d 769 [2015]; People v. Meadow, 140 AD3d 1596 [2016]).Accordingly, the People’s application must be granted, and it is hereby ORDERED that M.R. make himself available to the Orange County District Attorney’s Office and/or the New York State Police, upon 24 hours notice to M.R.’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: March 26, 2019Goshen, New York
