Appearances of Counsel.^[FN1]

Defendant is charged with menacing in the third degree (Penal Law § 120.15 - a class B misdemeanor); sexual misconduct (Penal Law § 130.20 - a class A misdemeanor); sexual abuse in the third degree (Penal Law § 130.55 - a class B misdemeanor); and, harassment in the second degree (Penal Law § 240.26 [1] - a violation).^[FN2] The People now move, pursuant to Criminal Procedure Law (CPL) 240.40 (2) (b) (v), for an order to permit the taking of DNA samples from defendant's cheek cells for the purpose of testing.

The People's motion for an order to permit the taking of DNA samples from [*2]defendant's cheek cells for the purpose of testing is denied.

The People allege that the charges herein stem from an incident that occurred on or about May 4, 2011, when the defendant and the complainant went to the defendant's home. While there, the People allege that, "the defendant turned the complainant around and penetrated the complainant from the back with the defendant's penis." People's Affirmation ¶4. The People assert that the complainant's attempts to stop the defendant resulted in a struggle where she sustained a laceration on her chin.

The People aver that upon contacting the police, the complainant was treated and at the hospital a rape kit was prepared and taken to the Office of the Chief Medical Examiner of the City of New York (OCME) for DNA results. The People assert that the DNA results given by OCME "stated that dried secretions were found on the left breast." " People's Affirmation ¶5.

Insupport of their motion, the People argue that they have satisfied the requirements set forth by the Court of Appeals in Matter of Abe. A., 56 NY2d 288 (1982). The People assert that the alleged facts clearly establish that there is probable cause to believe the defendant committed the crimes he is charged with, that the DNA testing will yield relevant and material evidence, particularly if the defendant's DNA matches the sample swab taken from the complainant, and, that medical and legal communities recognize the scientific validity and reliability of DNA testing.

Consequently, the People seek an order to permit the taking of DNA from the defendant's cheek cells by use of all necessary force to obtain the samples by officers of the Department of Corrections, the King's County District Attorney's Office, and the Police Department.

The defendant opposes the People's motion on the ground that is untimely. In reliance on CPL 240.90 (1), the defendant argues that the People were required to serve and file their motion within forty-five (45) days of arraignment. The defendant argues that defendant was respectively arraigned on the felony complaint and on the instant information, on May 7, 2011 and July 20, 2011. Defendant avers that the People did not serve and file the instant motion until nine (9) months after his arraignment.

Defendant recognizes that CPL 240.90 (1) allows late filing of motions "for good cause shown", but argues that here, the People offer no basis to apply the statute's exception. Defendant asserts that the evidence of the alleged crime was collected the next day after the commission, May 5, 2011, and a rape kit was taken to OCME on that date. The defendant contends that by May 10, 2011, OCME reported DNA was found in the rape kit and a comparison could be done upon submission of the defendant's DNA. It is defendant's position that the District Attorney's Office had knowledge of this information during May, 2011 and had every ability to make a timely motion nine months ago.

Defendant asserts that within the Discovery by Stipulation (DBS) paperwork submitted by the People it is indicated that at the time of his arrest the defendant consented to a DNA buccal swab^[FN3] and concludes that a swab was taken.

Defendant argues that the People have failed to demonstrate any good cause for [*3]their delay in seeking DNA cheek swabs of the defendant. Defendant avers that the People simply chose not to have defendant's already obtained DNA sample tested against the DNA obtained in the rape kit and now seeks a duplicative intrusion of defendant's body. The defendant maintains that under these circumstances, the People's motion cannot "withstand constitutional scrutiny."

Defendant further argues that the People have not set forth sufficient grounds to allow oral swabs to be taken from the defendant. The defendant asserts that the taking of oral swabswould violate his Fourth and Fifth Amendment rights, among his other federal and state constitutional rights, even if the motion had been timely made. Defendant avers that the People's motion would create an unnecessarily lengthy delay in the case and it should be denied in its entirety.

Defendant submits that the People's proposed order is improper and overly broad. The order, defendant maintains, prematurely request a force order when no basis has been established that demonstrates defendant's unwillingness to cooperate with a court order. The order also authorizes Court Officers, detectives and other employees from the NYC Police Department and employees from the NYC Medical Examiner's office to take oral swab samples. The defendant argues that no basis has been set forth to authorize so many people to take defendant's DNA samples

2. 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... .

In order to prevail on a motion pursuant to CPL 240.40 (2) (b) (v), 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 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." Matter of Abe A., 56 NY2d 288, 291(1982).

To establish probable cause for an arrest, "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, for conduct equally compatible with guilt or innocence will not suffice ( People v De Bour, 40 NY2d 210, 216, supra.; People v Corrado, 22 NY2d 308; La Fave, "Street Encounters" and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich L Rev 40, 73-75)." People v [*4]Carrasquillo, 54 NY2d 248, 254 (1981). With respect to the existence of probable cause to believe the defendant from whom non-testimonial evidence is sought, it may be established based on the return of a grand jury indictment. People v Beecham, 25 Misc 3d 1214(A) (Sup Ct Westchester County 2009). "An information is merely the functional equivalent of an indictment." People v Ryff, 100 Misc 2d 505, 509 (Crim Ct Bronx County 1979).

In the instant case, the information sufficiently establishes the requisite probable cause that the defendant allegedly committed the crime. It also appears that there is a clear indication that relevant material evidence would be found and the method utilized has been recognized in the medical community as a valid and reliable means of DNA testing. However, this court is constrained by the statutory time strictures set by the Legislature in CPL 240.90 (1).

The statute reads as follows: "1. A motion by a prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown may be made at any time before commencement of trial."

In the instant case, the People's DBS paperwork contained a submission of the Laboratory Report from the OCME dated May 26, 2011, and said report was administratively reviewed on June 7, 2011. This report found dried secretion swabs from the "left breast" of the complainant and specifically indicated that comparison could be done upon submission of a DNA sample from the defendant for comparison testing.

This court finds the People's delay in the instant motion untimely and in violation of the mandates set forth in CPL 240.90 (1).

In People v Beecham, 25 Misc 3d 1214 (A) (Sup Ct Westchester County 2009), the court found the People had demonstrated sufficient good cause shown for violating CPL 240.90 (1). Here, the People have simply side stepped the issue and leaped on to the merits of their application. In taking this approach, the People have not articulated any argument whatsoever asserting "good cause" for failing to comply with the time constraint of CPL 240.90 (1).

Therefore, given the clear language of CPL 240.90 (1) and the People's failure to offer any good cause for the delay stemming at least from June 7, 2011, when they were fully aware and in receipt of the OCME's Lab Report, this court finds there is no basis to grant the People's motion for DNA swabbing of the defendant.

Accordingly, for the reasons stated, the People's motion for an order, pursuant to Criminal Procedure Law (CPL) 240.40 (2) (b) (v), directing that the defendant submit to the taking of oral swab samples from his body for DNA testing and analysis, is denied pursuant to CPL 240.90 (1).

This opinion constitutes the decision and order of the court.

Dated: March 5, 2012

Brooklyn, New York_____________________________

GEORGE A. GRASSO

Judge of the Criminal Court

City of New York