Papers considered in review of this motion: People’s n/m affirmation, filed January 5, 2024, Tiffany Wakeham, Assistant District Attorney Defendant’s affirmation in response, dated February 14, 2024, Josephine Baldwin-Beneich, Esq., for defendant People’s reply, filed March 21, 2024, Tiffany Wakeham, Assistant District Attorney Court file DECISION AND ORDER N MOTION Abbas G., hereinafter “defendant,” is charged by information with one count of Forcible Touching (Penal Law §130.52 [1]) and one count of Sexual Abuse in the Third Degree (Penal Law §130.55). The People move this court pursuant to CPL 245.40 (e) for an order compelling the defendant to submit to the collection of his saliva and buccal cells for the purpose of a DNA comparison. The defendant opposes and moves, in the alternative, for a protective order pursuant to CPL 245.70 and Executive Law §995-d limiting the use and disclosure of his DNA to the instant prosecution and its parties. For the reasons articulated herein, the People’s motion is DENIED and the defendant’s motion for a protective order is moot. Relevant Factual Allegations The defendant is accused of entering the complainant’s home to repair cable. While in the home, the People allege he lifted up the complainant’s shirt, kissed her on her chest, pulled her pants down, put her hands on his penis to masturbate him and ejaculated in her palm. The complainant indicated that she washed her hands before contacting police to report the alleged offense. Samples were taken from the complainant’s palm and tested for DNA. The defendant was subsequently arrested. While detained at the precinct, he was observed drinking from and discarding a disposable cup. The police recovered the cup and used it to develop a DNA profile (defense counsel’s mem of law 14). Arguments of the Parties The People argue they have met the three prongs required to compel the defendant to supply bodily evidence in that: 1) probable cause exists to believe that the defendant committed the crimes with which he is charged; 2) relevant and material evidence will be found by taking the sample; and 3) the sample will be collected by safe, reliable, and minimally intrusive methods. The defendant argues that the People failed to satisfy the second prong insofar as the proposed sample would not produce relevant and material evidence for the following reasons: 1) the sample collected by the police from the complainant contains DNA from three people, which makes the analysis difficult and less likely to produce clear, reliable comparison results, especially coupled with the complainant’s statement to police that she washed her hands prior to the collection of the DNA from her palm; 2) the police already have a DNA sample taken from the defendant at the time of his arrest, which makes the proposed sample duplicative and unnecessarily intrusive; and 3) even if a match were made, it would not be probative of the defendant’s guilt since the defendant was admittedly working in the complainant’s apartment the day of the alleged crime. The People counter that the defense misrepresents the scientific reliability of DNA admixtures; that the sample they already have is not sufficient; and that the defendant is not entitled to a protective order in any event. Discussion The Court of Appeals long ago established that courts must apply a Fourth Amendment analysis when determining whether a suspect “may be compelled, pursuant to court order, to supply the People with corporeal evidence” (Matter of Abe A., 56 NY2d 288, 290 [1982]). The People are correct in indicating that they must show: “1) probable cause exists to believe that the suspect committed the crimes with which he is charged; 2) a ‘clear indication’ that relevant and material evidence will be found; and 3) the method used to secure it is safe and reliable.” (Id. at 291.) This three-pronged requirement is not the sole criteria: “In addition, 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. Only if this stringent standard is met…may the intrusion be sustained.” (Id.) Here, the defendant does not challenge the first prong (probable cause) or the third (method of DNA collection). Rather, he contests the second prong and asserts the proposed sample would not produce relevant and material evidence to warrant the involuntary search and seizure of his person. Yet, a DNA sample from the defendant is no doubt relevant to this case; if it matches the DNA sample taken from the complainant’s hand, or if it does not, it directly bears on the allegations at bar. Its materiality may indeed be diminished by the complainant having washed her hands before the police collected DNA from her palm, or by the defendant’s admitted presence in the complainant’s apartment the day of the offense. But how much weight to properly assign the DNA is ultimately a question for the trier of fact, if and when it is admitted. The defendant could certainly challenge any attempt to admit cumulative samples, but a second sample is not necessarily stripped of its individual materiality because of the existence of the first. The People have met the prong of materiality and relevance. All prongs having been met, the court must weigh the additional factors set forth in Abe A. The instant case quite clearly turns on the fact that the People already have a sample of the defendant’s DNA. The People’s current possession of the defendant’s DNA directly implicates and perhaps even nullifies “the importance of the [sought] evidence to the investigation and the unavailability of less intrusive means of obtaining it,” which this court must weigh against the defendant’s “constitutional right to be free from bodily intrusion” (Abe A. at 291). Yet the People state no concrete, logical reason why they need another sample, only hypothetical and vague assertions that “a new swab will assure the defense that his rights are respected without the need for ceaseless litigation” and “the People are entitled to prove their case with evidence for which there is a clear chain of custody” (People’s affirmation in response 12). At a minimum, the People must demonstrate a reason why they require this sample — whether that is because the Office of the Chief Medical Examiner (OCME) has deemed the current sample compromised, or because the People have identified a legal deficiency with the existing sample (e.g., the chain of custody has in fact been interrupted), or for another reason altogether. But without that showing to this court, the importance of a second DNA sample has not been sufficiently established and there are clearly less intrusive means available to the prosecution — the People can use the sample they already have. See People v. Heyward, 71 Misc 3d 470, 2021 NY Slip Op 21017 (Crim Ct, Bronx County 2021) (denying buccal swab, citing Abe A., and applying the “compelling need” requirement for bodily intrusion established by the U.S. Supreme Court in Winston v. Lee, 470 US 753 [1985]). Indeed, courts have declined to compel additional DNA when this showing is absent (People v. Roberts, 70 Misc 3d 1221[A], 2021 NY Slip Op 50170[U] [Crim Ct, NY County 2021]; People v. Ditullio, Crim Ct, NY County, Feb.3, 2020, Rosenthal, J., docket No. CR-0101510- 20NY; People v. Gonzalez, Crim Ct, NY County, October 30, 2018, Badamo, J., docket No. 2018NY029511). After “giv[ing] careful consideration to the circumstances of this particular case” (Abe A. at 298), this court finds that the People have not made a showing of necessity that would outweigh the defendant’s right to be free from bodily intrusion. Accordingly, the People’s motion for an order compelling the defendant to provide a sample of his saliva and buccal cells is DENIED, and the defendant’s motion for a protective order is moot. The foregoing constitutes the opinion, decision, and order of the court. Dated: April 11, 2024
