The People move by Order to Show Cause seeking an order to compel the defendant to permit the taking of DNA samples from his body via buccal swabs pursuant to Criminal Procedure Law (CPL) §240.40(2)(b)(v). The defendant opposes the motion.

In deciding this motion, the Court considered the Affirmation of Anthony J. Molea, Assistant District Attorney, dated May 23, 2016, and accompanying Memorandum of Law, and the Affirmation in Opposition of Mary Pat Long, Associate Counsel, Criminal Division, of The Legal Aid Society of Westchester County (LASW), dated June 6, 2016, and accompanying Memorandum of Law.

The motion is decided in accordance herewith.

On November 23, 2015, the defendant was arrested and charged with Criminal Possession of a Weapon 2nd Degree: Loaded Firearm (PL 265.03[01B]), class C Felony; Criminal Possession of a Weapon 4th Degree: Firearm/Weapon (PL 265.01(01)], class A Misdemeanor; Menacing 2nd Degree: Weapon (PL 120.14(01), class A Misdemeanor; and Unlawful Possession of Marihuana (PL 221.05), a Violation.

On November 24, 2015, the defendant was arraigned and entered a plea thereon.

On November 30, 2015, the People withdrew all non-felonies.

On January 19, 2016, February 29, 2016, and April 25, 2016, the defendant made all purpose appearances.

On May 23, 2016, the People filed the within Order to Show Cause and accompanying Memorandum of Law seeking DNA Samples from the defendant.

On June 8, 2016, LASW filed an Affirmation in Opposition with an accompanying Memorandum of Law.

On June 13, 2016, the People indicated that they would not submit a reply and the motion was thereupon marked fully submitted.

The People allege the following:

On or about November 23, 2015 at approximately 3:15 p.m., members of the Peekskill Police Department were dispatched to the area of 1401 Main Street in the City of Peekskill on a report of a man with a gun who was menacing two complaining witnesses. The complainants stated to the police that a male individual they know as Nick' was in possession of a pistol and displayed this pistol to them, pointing it towards them while making threatening gestures and comments. The complainants were able to call the police and described the gun used by the defendant as silver and black. Subsequently, the complainants both identified the defendant they knew as Nick' as the man who menaced them with the gun. Later that evening, once the pistols were recovered by the Peekskill Police Department, both complainants were separately shown the aforementioned silver and black' pistol and each complainant separately confirmed to the officers that was the pistol used by the defendant to menace and threaten them. The defendant was then arrested and charged with Menacing and, ultimately, Criminal Possession of a Weapon [in] the Second Degree.

Members of the Peekskill Police Department then spoke to Ms. Tiffany Thompson who identified herself to the police as the girlfriend of the defendant and she stated to the police that she lived at 1401 Main Street, 3rd Floor apartment, Peekskill, NY. Ms. Thompson called her mother, Ms. Joanna Williams, the leaseholder of said apartment and Ms. Thompson advised her daughter to give the officers the consent to search their 3rd Floor apartment at 1401 Main Street. Once written consent to search was given, the officers searched the 3rd Floor apartment and recovered two semi-automatic pistols from inside a video game cardboard box located inside Ms. Thompson's bedroom closet. One pistol was a silver and black Smith and Wesson 9mm, loaded and operable (identified by the complainants as the pistol used by the defendant to menace them earlier in the day); the other pistol was a black Phoenix Arms .22 caliber, loaded and operable. DNA swabs of both handguns were collected and transported to the Westchester County Lab for analysis and examination on December 2, 2015.

On May 4, 2016, the Westchester County District Attorney's Office received a report from the Westchester County Department of Laboratories and Research indicating that a DNA [*2]profile has been obtained from a swab of the Smith and Wesson 9mm pistol and a DNA profile has also been obtained from a swab of the Phoenix Arms .22 caliber pistol. A buccal swab from the defendant would be needed for the Lab to make a conclusive determination as to whether the DNA profile recovered from the two swabs of the two pistols matched that of the defendant in this case. Ms. Hoey indicated on her report that comparisons can be made to each of the DNA profiles of the two pistols if exemplars are submitted (People's Affirm., at pp. 1-3).^[FN1]

The People contend that a DNA sample—specifically, a buccal cell sample, from the defendant is essential to their case because it will prove "the identity of the defendant as the person who committed the charged crimes and his knowing possession of the aforementioned pistols" (People's Affirm., at p. 4). In short, the People allege that they obtained DNA profiles from latent fingerprints on the two pistols seized from the apartment of the defendant's girlfriend and that the DNA profiles obtained therefrom can be compared with the defendant's DNA profile to include or exclude him as the individual who possessed the pistols and threatened the complaining witnesses (People's Affirm., at pp. 2-3). Lastly, the People contend that a buccal cell swab is the safest and most secure method of extracting a DNA sample from the defendant (People's Affirm., at pp. 3-4).

The defendant contends, in sum and substance, that "a DNA sample is unnecessary as the People have failed to establish probable cause, failed to establish a clear indication that relevant material evidence will be found, and failed to establish the unavailability of other safe, reliable, and less intrusive means of obtaining the sample" (Defendant's Affirm., at ¶6).

Criminal Procedure Law (CPL) 240.40(2)(b)(v) states,

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 unreasonable intrusion thereof or a risk of serious physical injury thereto.

As an initial matter, the People's motion cannot be premised upon CPL 240.40(2)(b)(v) because the People withdrew all non-felonies leaving only a felony complaint pending against the defendant. CPL 240.40(2)(b)(v) does not apply to a prosecution based on a felony complaint because it is not listed among those accusatory instruments encompassed by that section. See, CPL 240.40(2); People v. Latibeaudierre, 174 Misc 2d 60, 662 N.Y.S.2d 926 (Supreme Court, Queens County 1997); People v. Steiner, 103 Misc 2d 844, 427 N.Y.S.2d 176 (County Court, Nassau County, 1980) [lineup identification]; 1-8 New York Search & Seizure §8.01 (2015) [Lexis]; People v. Hunce, 141 Misc 2d 401, 533 N.Y.S.2d 204 (Criminal Court, Bronx County 1988) [handwriting exemplar]; People v. Bagley, 173 Misc 2d 441, 661 N.Y.S.2d 510 (Mount Vernon City Court 1997) [blood sample].

Some courts are of the view that since a felony complaint was not listed among those accusatory instruments set forth in CPL 240.40(2), the omission of a felony complaint, a fortiori, [*3]evidenced a legislative intent to exclude a felony complaint as a predicate for CPL 240.40(2) relief, perhaps due to the fact that it is inherently unreliable because of its hearsay underpinnings and because it "cannot serve as the basis for the prosecution of any crime." See, People v. Odierno, 121 Misc 2d 323, 327, 467 N.Y.S.2d 963 (Supreme Court, Bronx County, 1983); CPL §1.20(8); People v. Bagley, 173 Misc 2d 441, 661 N.Y.S.2d 510 (Mount Vernon City Court 1997); People v. Hunce, 141 Misc 2d 401, 533 N.Y.S.2d 204 (Criminal Court, Bronx County 1988); Riley v. County of Broome, 95 NY2d 455, 463, 742 N.E.2d 98, 719 N.Y.S.2d 623 (2000) ["The words of the statute are the best evidence of the Legislature's intent. As a general rule unambiguous language of a statute is alone determinative."]

There is no question that a defendant can be compelled to provide a buccal cell sample for DNA analysis pre- and post-arrest. In the seminal case of Matter of Abe A., 56 NY2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), the Court of Appeals set forth the now familiar three-part standard that the People must establish on an application for non-testimonial evidence of a suspect: "(1) probable cause to believe the suspect has committed a crime, (2) a clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable." The Abe A. Court further required the issuing court to "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." Id. at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265. See, People v. King, 232 AD2d 111, 663 N.Y.S.2d 610 (2d Dept. 1997); People v. Vernon B., 35 Misc 3d 1241[A], 954 N.Y.S.2d 761, 2012 NY Slip Op. 51097[U] (Criminal Court, Kings County) [2012]; People v. Washington, 33 Misc 3d 640, 929 N.Y.S.2d 432 (Criminal Court, Kings County 2011) [defendant need not be charged with a crime in order for the court to compel him to provide an oral swab]; Marino v. Kahn, 49 AD3d 741, 855 N.Y.S.2d 560 (2d Dept. 2008); [suspect can be compelled to provide buccal swab samples]; People v. Debraux, 50 Misc 3d 247, 21 N.Y.S.3d 535 (Supreme Court, New York County 2015) [defendant charged with criminal possession of weapon can be compelled to give buccal swab to compare fingerprint found on weapon with his DNA].

The Abe A. Court likened an application for an order for nontestimonial evidence to an application for a search warrant and required that it "comport with all the requisites of a search warrant" (Matter of Abe A., 56 NY2d at 294); People v. Latibeaudierre, 174 Misc 2d 60, 662 N.Y.S.2d 926 (Supreme Court, Queens County 1997) [court stated where defendant is arraigned on a felony complaint, CPL 240.40(2) does not apply and the People must apply for a court-ordered search warrant].

The dispositive question for the Court is whether it can entertain the instant application by the People. It has been held that where only a felony complaint is pending against the defendant, lower courts are without jurisdiction to entertain an application to compel a defendant to provide non-testimonial evidence-i.e., saliva, blood, hair, etc. See, People v. Bagley, 173 Misc 2d 441, 661 N.Y.S.2d 510 (Mount Vernon City Court 1997) [Court lacked jurisdiction to order blood sample based on pending felony complaint]; People v. Hunce, 141 Misc 2d 401, 533 N.Y.S.2d 204 (Criminal Court, Bronx County 1988) [Court lacked jurisdiction to order handwriting exemplar based on pending felony complaint]; People v. Wright, 46 Misc 3d 938, 998 N.Y.S.2d 844, (Criminal Court, New York County 2014) [Court lacked jurisdiction to order buccal cell sample based on pending felony complaint.].

There is no general constitutional right to discovery in criminal cases, and discovery in a [*4]criminal proceeding is entirely governed by statute. See, Pirro v. LaCava, 230 AD2d 909, 910, 646 N.Y.S.2d 866 [2d Dept. 1996] citing Matter of Miller v. Schwartz, 72 NY2d 869, 870, 528 N.E.2d 507, 532 N.Y.S.2d 354 (1988); People v. Copicotto, 50 NY2d 222, 406 N.E.2d 465, 428 N.Y.S.2d 649 (1980). Since CPL 240.40 is a criminal statute, it must be strictly construed in favor of the defendant. See, People v. Schmitt, 118 Misc 2d 374, 460 N.Y.S.2d 477 (County Court, Monroe County 1983); People v. Beauchamp, 126 Misc 2d 754, 483 N.Y.S.2d 946 (Supreme Court, Bronx County 1985).

In the case at bar, the defendant argues that in order to grant the People's application for a buccal cell sample, this Court must be "the court in which an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending. CPL §240.40(2)." (Defendant's Memo of Law at p. 1).^[FN2] Further, the Defendant argues that the application made in Matter of Abe A. was made in the Supreme Court and not the local criminal court. (Defendant's Memo of Law at p. 2).

The People argue that,

The Criminal Procedure Law provides a mechanism by which the People may secure DNA samples from a defendant against whom criminal charges are pending. CPL 240.40(2)(b)(v) specifically empowers this Court to order a defendant to submit to the taking of materials, in this case buccal cell samples, in a manner not involving an unreasonable intrusion or risk of serious physical injury. (People's Memo of Law. at p.1).^[FN3]

Contrary to the People's position, CPL 240.40(2)(b)(v) does not empower this Court to order a defendant to submit to the taking of a buccal cell sample when the only charge pending against the defendant is a felony complaint. See, People v. Bagley, 173 Misc 2d 441, 661 N.Y.S.2d 510 (Mount Vernon City Court 1997); People v. Wright, 46 Misc 3d 938, 998 N.Y.S.2d 844, (Criminal Court, New York County 2014); People v. Hunce, 141 Misc 2d 401, 533 N.Y.S.2d 204 (Criminal Court, Bronx County 1988).

This Court agrees with the defendant that an application for a buccal cell sample cannot be made in this Court when only a felony complaint is pending. In light of this decision, the Court need not reach the other arguments raised by the defendant.

This Court expressly holds, in accordance with the other courts that have addressed this issue, that a City Court is without jurisdiction to entertain an application pursuant to CPL 240.40(2)(b)(v) to compel a defendant to provide non-testimonial evidence—i.e., saliva, blood, hair, or other bodily materials, when the only accusatory instrument pending against the defendant is a felony complaint. See, People v. Wright, 46 Misc 3d 938, 998 N.Y.S.2d 844, (Criminal Court, New York County 2014); People v. Bagley, 173 Misc 2d 441, 661 N.Y.S.2d 510 (Mount Vernon City Court 1997); People v. Knight, 138 Misc 2d 78, 523 N.Y.S.2d 968 (County Court, Monroe County 1988) [County Court declared it lacked jurisdiction to order a line up based on pending felony complaint.].

Based on the foregoing, it is

ORDERED, that the People's motion, pursuant to CPL 240.40(2)(b)(v), to compel the defendant to provide a buccal cell sample is denied;

ORDERED, that the parties are directed to appear in Court on September 19, 2016 at 9:30 a.m. for further proceedings in this matter.

This constitutes the Decision and Order of the Court.