DECISION AND ORDER Defendant was arraigned on March 3, 2018 and charged with Forcible Touching (PL §130.52[1]); Sexual Abuse in the Third Degree (PL §130.55); Sexual Abuse in the Second Degree (PL §130.60[2]); and Endangering the Welfare of a Child (PL §260.10[1]). The accusatory instrument alleges that on March 2, 2018, Defendant placed his hands on six-year-old complainant’s buttocks and squeezed her buttocks. On October 2, 2019, the People filed a motion to compel a buccal swab sample from Defendant and filed an addendum on October 10, 2019. On October 15, 2019, Defendant filed opposition. The People seek to compel an oral swab from Defendant in order to determine whether Defendant’s DNA was present on the complainant’s pajama pants. Procedure: Preliminarily, Defendant asserts that the People’s motion is untimely pursuant to CPL §240.90 (1), as it was filed over 45 days after arraignment. Pursuant to CPL §240.90 (1), a motion by a prosecutor for discovery must be made within 45 days after arraignment, but for good cause shown may be made at any time before commencement of trial (See CPL §240.90 [1]). Defendant was arraigned on March 3, 2018 and the People’s motion was filed on October 3, 2019, approximately 542 days late. Defendant contends that the People failed to demonstrate good cause for this extensive delay. The People acknowledge the delay and assert that they were unable to move to compel DNA in as much as Defendant warranted for approximately sixteen months. Good cause is a broad exception (People v. Acosta, 49 Misc. 3d 957 [Crim Ct Kings County 2015]). “The words of CPL §240.90 are the best evidence of the Legislature’s intent (citing Riley v. County of Broome, 95 N.Y.2d 455 [2000]). As a general rule unambiguous language of a statute is alone determinative. The legislature chose to add a single broad exception for good cause” (Id. at 962). “A review of the cases interpreting ‘good cause’ demonstrates that it takes very little to satisfy this requirement” (People v. Addison, 51 Misc. 3d 498, 503 [Crim Ct Bx County 2016]). The Court finds good cause for the People’s delay in filing the instant motion. Defendant failed to appear in Court on May 10, 2018 and was involuntarily return on warrant on September 13, 2019, sixteen months after a missed appearance. The People filed the instant motion at the court appearance following Defendant’s return. Defendant’s assertion that Defendant’s absence does not constitute good cause is without merit. The caselaw cited by Defendant are distinguishable. Defendant annexed copies of two unpublished decisions from Kings County Criminal Court, People v. Scanlebury, (Indictment 5029-2018) and People v. Khan Lopez, (Indictment 1814-2018), neither of which support his position that the Court must deny the People’s motion as untimely. In both People v. Scanlebury and People v. Khan Lopez, the Court denied a motion to compel a buccal swab as untimely when the People did not acknowledge that their motion was late or offer any good cause explanation for the delay. Motion to Compel Buccal Swab: The Court of Appeals has held that in deciding whether or not to grant an order for a DNA sample for analysis from a Defendant, the People must establish a three part test: “(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. 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.” (Matter of Abe A., 452 N.Y.S.2d 6 [1982]). The People assert that they have met these requirements because (1) there is probable cause that Defendant committed the crimes in question; (2) the forensic comparison between the DNA on complainant’s pajamas and a DNA sample from Defendant is likely to provide material evidence implicating or exonerating Defendant; and (3) the taking of the DNA by oral swab is safe, reliable and unintrusive. In response, Defendant claims the People have not met their standard under Abe A. as they have not demonstrated a clear indication that material evidence will be found, nor that the oral swab is reliable. After analyzing the elements set forth in Abe A., the People have satisfied the burden required to support an order to compel a buccal sample. The first prong of the test, probable cause that Defendant committed the crimes in question, has been satisfied in that the complainant identified Defendant via point out on the date of the incident at the scene (People’s Motion pg. 10). The second prong has been satisfied in that male DNA is present on the female complainant’s pajamas suitable for comparison. The requirement that there be a clear indication that the DNA swab will provide material evidence is to guard against “fishing expeditions” (See Matter of Abe A., 452 N.Y.S.2d 6 [1982]). Therefore, it is tied strongly to the requirement of probable cause (See Id). A comparison of Defendant’s genetic material from the buccal swab would be relevant and material to both the People and defense in either the implication or exoneration of Defendant. Finally, the third prong is satisfied as it is well established that obtaining a buccal swab is safe and reliable (See Matter of Abe A., 452 N.Y.S.2d 6 [1982]). In weighing the seriousness of the crimes, this Court notes that Complainant was a six-year-old minor at the time of the alleged crimes, which were sexual in nature. Protective Order: Defendant requested that if a sample is compelled, the Court grant a protective order pursuant to CPL §240.50 and Executive Law §995-d precluding dissemination of Defendant’s DNA. The People oppose the protective order. Executive Law 995-d provides that the “results of DNA testing performed on any person shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing” (See Executive Law 995-d). In the instant case, there is good cause for the Court to issue a protective order limiting the use of Defendant’s genetic information. An individual maintains a significant interest in the use of his or her genetic material, and Defendant is not consenting to DNA being entered into OCME database (See People v. Rodriguez, 193 Misc. 2d 725 [Sup Ct Kings County 2002]). “There is no authority under New York State law for uploading a presumptively innocent defendant’s DNA profile into a database” (People v. Halle, 57 Misc. 3d 335 [2017]). Accordingly, the protective order is granted to the extent that the Court orders OCME not to upload Defendant’s DNA profile to any state or federal databases unless and until Defendant is convicted and sentenced. Conclusion The People’s motion to compel a buccal sample from Defendant is granted. Defendant’s cross-motion for a protective order is granted to the extent that the Court is granting an order directing OCME not to upload Defendant’s DNA profile to any state or federal databases unless and until such time Defendant is convicted and sentenced. This constitutes the decision and order of the court. Dated: October 31, 2019 New York, New York
