DECISION AND ORDER I. By an unsigned motion dated and filed with the Court on August 13, 2019 (“Motion to Compel”) and by signed Affirmation and Exhibits (“People’s Exhibit”) filed with the Court on August 29, 2019 (collectively, “Motion to Compel DNA”), the People moved for an order compelling the Defendant to submit to the taking of saliva and buccal cell sample for the purpose of DNA testing. The Defendant has submitted an opposition (“Opposition Motion”) dated September 12, 2019 and filed with the Court on October 1, 2019 to People’s Motion to Compel DNA. The Defendant also cross-moved, that if the Court grants People’s Motion to Compel DNA, he seeks a protective order preventing the disclosure of his DNA profile for any purpose other than the prosecution of the instant case. II. In their Motion to Compel DNA, the People alleged that on June 27, 2019, a friend of Ms. Eubanks called 911 to report an incident at [XXX] Schenectady Avenue, Brooklyn, New York (“Location”). The caller told the 911 operator that Baptiste, the ex-boyfriend of Ms. Eubanks and the mother of his child, had attacked Ms. Eubanks and that Baptiste had a gun. Pursuant to the 911 call, the police responded to the Location. Baptiste was not present at the Location when the police arrived. Ms. Eubanks told the police that she heard Baptiste told someone to take his gun but did not know to whom Baptiste was talking. Ms. Eubanks did not see Baptiste with a gun nor did she see Baptiste gave a gun to anyone on that day. Present at the Location was Defendant Harvin. Upon making eye contact with the police, Defendant threw a black object under the stairwell at the Location. The police recovered from the floor, under such stairwell, a black bag containing marijuana and a scale with marijuana residue. Approximately one foot away from where the police observed Defendant threw the object, the police recovered a loaded .22 caliber Smith and Wesson semi-automatic pistol and twelve rounds of ammunition. At the 71st police precinct, Ms. Eubanks identified the recovered firearm as belonging to Baptiste. Ms. Eubanks had seen said firearm in the possession of Baptiste in the past and was able to identify the white markings on the side of the pistol. (Mot. to Compel at 3rd page1.) Defendant was arrested on June 27, 2019 at approximately 12:30 AM at the Location. The misdemeanor Criminal Court complaint (“Complaint”) alleged that on or about June 27, 2019 at approximately 12:30 AM at the Location, Police Officer Scanlon “observed the Defendant in the lobby of a residential building, a public place, and that…[Officer Scanlon] recovered a marijuana cigarette and a scale containing marijuana residue from Defendant’s hands.” The Complaint also alleged that Officer Scanlon was informed by Lieutenant Guida that Lieutenant Guida “observed the Defendant throwing a black object to the floor underneath the building’s stairwell.” Police Officer Adair “recovered a black plastic bag containing marijuana from underneath the building’s stairwell.” The Complaint charged Defendant with two counts of criminal possession of marijuana in the fifth degree (Penal Law §§221.10 [1]) and 221.10 [2]) and unlawful possession of marijuana (Penal Law §221.05). The Complaint further alleged that on June 27, 2019 at approximately 1:00 AM at 421 Empire Boulevard, Kings County, New York, Police Officer Scanlon recovered from a wallet that the Defendant was carrying a prepaid Netspend debit card, an item which appeared to be a five-dollar bill, a paper receipt containing marijuana and a ziplock bag containing marijuana from Defendant’s person. The Complaint charged the Defendant with two counts of criminal possession of a forged instrument in the third degree (Penal Law §170.20), one count of criminal possession of marijuana in the fourth degree (Penal Law §221.15), one count of criminal possession of marijuana in the fifth degree (Penal Law §221.10 [2]) and one count of unlawful possession of marijuana (Penal Law §221.05). The Defendant was arraigned on the Complaint on June 27, 2019. He was released on his own recognizance and the case was adjourned to Part AP3 on August 6, 2019 for conversion. At Defendant’s arraignment, the People filed CPL 710.30 (1) (a) notice of an oral statement made by the Defendant on June 27, 2019 to Police Officer Scanlon. The sum and substance of the statement was that the Defendant stated to the police that he had just walked into the building, saw the bag on the floor, did not know what was in it and picked it up. As soon as he saw the police, he dropped the bag. The Defendant said that the police got the wrong person, that he did not do anything and that he was innocent. The Defendant further stated that someone told him to pick the bag up from the floor and that he did. He stated that he “was there to pick up a package from ‘my man,”‘ that “‘my man’ got into a fight with his girl” and that the Defendant went to Location “to help him out.” The Defendant said that the package he threw was the black bag and that it was marijuana. Following the recovery of the gun, swabs were taken for possible DNA evidence. The swabs were sent to the Department of Forensic Biology at the Office of the Chief Medical Examiner (“OCME”) where DNA testing was performed on the swabs. On July 30, 2019, the OCME issued a laboratory report which was submitted to the Court as People’s Exhibit 1 on August 29, 2019. The DNA analysis of the swabs indicated that there is a mixture of DNA from at least three (3) people according to the swab recovered from the “slide grip grooves, slide release, safety” which is suitable for direct comparison, including one major male contributor (“Male Donor A”) who had contributed 91 percent of the DNA mixture on that swab. The DNA profile of the Male Donor A was suitable for entry into the Local DNA Index System (“LDIS”). A mixture of DNA from at least three (3) contributors were also recovered from swab of the “trigger, trigger guard” and swab of “back strap, slide grip, front strap.” The OCME determined that the profiles of the three (3) individuals to this mixture could not be determined but nevertheless “the results are suitable for comparison.” The People now move for an order requiring the Defendant to submit to the taking of a buccal saliva swab sample for the purpose of comparing Defendant’s DNA to that found on the gun on the ground that there is probable cause to believe that the Defendant is the perpetrator who possessed the weapon inside the Location and that testing of DNA obtained from a swab of the gun and a comparison of said sample to the proposed sample of a buccal swab from the Defendant is necessary and material to the investigation and prosecution. The Defendant opposes People’s Motion to Compel DNA on the grounds that the People have “failed to make out probable cause that the defendant possessed the weapon in question at the time of the recovery” (Opposition Mot. at 4). III. Pursuant to CPL 240.40 (2) (b) (v), “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” (CPL 240.40 [2] [b] [v]). Under the guidelines established by the New York State Court of Appeals, in order to obtain a court order compelling a Defendant to supply nontestimonial evidence, 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.” In making such a determination as to whether to issue such an order to compel, a court must also consider “the seriousness of the crime, the importance of the evidence to the investigation and the availability of less intrusive means of obtaining it,…against concern for the suspect’s constitutional right to be free from bodily intrusion.” (Matter of Abe A., 56 NY2d 288, 291 [1982].) The Defendant argues that the Court should deny People’s motion because the People have failed to establish probable cause that the Defendant possessed the weapon. The Defendant contends that the People’s probable cause analysis rests on the mere presence of the Defendant in a public hallway (close to where the weapon is alleged to have been recovered) and an overheard conversation. In the absence of other significant factors, the Defendant asserts that such facts are insufficient to establish probable cause to connect the Defendant to the weapon recovered. The People argue that the observations by the police, Ms. Eubanks’ statement and Defendant’s statements to the police gave probable cause that the Defendant was engaged in illegal activity at the Location and that a buccal swab would produce relevant material evidence. The People contend that a buccal swab is minimally invasive, and the benefit of collecting Defendant’s DNA sample outweighs any burden he might experience. Here, as pointed out by the Defendant, no one saw the Defendant discarded a weapon nor did anyone hear the sound of metal when the Defendant allegedly threw a plastic bag at the Location. There is no evidence that the Defendant and Baptiste are known associates nor is there evidence that the Defendant has any direct contact with the weapon. Moreover, the weapon was recovered from a public place and the Defendant was not in exclusive possession of the premises where the gun was recovered. While there was a temporal and spatial nexus between the Defendant and the weapon and the Defendant provided the police with an inculpatory statement placing himself at the Location, mere presence at the Location is not enough to support an inference of Defendant’s dominion and control over the firearm. In the Matter of Abe A., respondent Jon L. was “the only suspect” in a murder investigation where collecting blood sample of Jon L. was compelled (Matter of Abe A., 56 NY2d at 298), while here, in the instant case, both the Defendant and Baptiste are the suspects of the uncharged crime of possession of a weapon. Pursuant to People’s Motion to Compel here, Ms. Eubanks identified the recovered gun as belonging to Baptiste because she has seen Baptiste in the possession of said firearm in the past and was able to identify the white markings on the side of the pistol. Here, there is a less likelihood that the Defendant has the ownership over such firearm. In addition, based on Court’s analysis above, the constructive possession of the firearm by the Defendant at the Location is not established by the People in the instant case. Furthermore, in the Matter of Abe A., the respondent Jon L. suffered “abrasions” on the face, and “swellings and bruises on both hands, one of which bore tooth marks,” which injuries “were just the kind of injuries…[the victim's] assailant would have been likely to have received in the encounter which preceded [victim's] death” (Matter of Abe A., 56 NY2d at 292). Notably in the Matter of Abe A., “[t]here was dramatic evidence of a violent struggle” in the victim’s apartment, where “[b]lood was splattered through the apartment and five teeth, missing from the decedent’s mouth, were on the floor,” with “no signs of a forced entry” (Matter of Abe A., 56 NY2d at 291); “analysis of the blood found in…[the victim's] apartment revealed it was of two types, one matching that of the deceased and the other a relatively rare one which was to be found in less than 1 percent of the population” (Matter of Abe A., 56 NY2d at 292); and, respondent Jon L. was the business partner of the victim with access to victim’s apartment and Jon L. was found on the crime scene after he called 911 to report victim’s death. Court in the Matter of Abe A. found that there was probable cause to believe that respondent Jon L. had committed the murder of his business partner Abe A. and there was a “clear indication” that “relevant material evidence [would] be found” through compelling respondent Jon L.’s blood sample (Matter of Abe A., 56 NY2d at 291). Here, in the instant case, however, there is no probable cause to believe that Defendant Harvin has committed the uncharged crime of criminal possession of a weapon at the Location, nor is there a “clear indication” that relevant evidence will be found by collecting Defendant Harvin’s buccal saliva swab for DNA analysis to prove that Defendant Harvin is the majority contributor of the DNA mixture found on the gun and that the Defendant Harvin is the Male Donor A based on the facts before the Court. Considering the totality of the evidence presented, the Court finds that the People have failed to establish “probable cause” to believe that the Defendant has committed the uncharged crime of possession of a weapon, nor had the People established “a ‘clear indication’ that relevant material evidence will be found” in order for the Court to issue an order to compel DNA collection from the Defendant. (id..) Therefore, People’s motion to compel buccal saliva swab from the Defendant is denied and Defendant’s cross motion for a protective is deemed as moot. IV. People’s Motion to Compel DNA is denied. Defendant’s motion seeking the right to make further motions is granted to the extent afforded by CPL 255.20 (3). This constitutes the DECISION and ORDER of the Court. Dated: October 28, 2019 Kings County, New York
