The People move for an order pursuant to CPL §245.40 (1)(e) compelling the defendant, Imani Samuel-Kennedy, to provide a buccal swab specimen for DNA testing. The defendant opposes the People's application and urges the court to issue a protective order precluding the Office of the Chief Medical Examiner (OCME) from uploading the results of the defendant's buccal swab analysis into any DNA databases maintained by the OCME.

For the reasons set forth below, the People's motion to compel the defendant to provide a buccal swab specimen for DNA testing is denied. The defendant's request for a protective order is denied as moot.

The defendant is charged with Criminal Possession of a Firearm (PL §265.01-b[1]) and other related charges. It is alleged that on April 28, 2024, the NYPD responded to information provided by Sonia Satchell, who is the leaseholder of 703 Rutland Road, Apt 2L (the premises), indicating that she observed a firearm inside of a mattress in the bedroom of a co-defendant, Jeffrey Cottoy (CR-017620-24KN) and gave the police consent to search the premises. The co-defendant, who resides at the premises, is the son of the leaseholder. Upon their arrival at the premises, the defendant who is neither a leaseholder nor a resident, is alleged to have been sitting on the mattress in the co-defendant's bedroom. The police recovered a loaded pistol hidden inside of the mattress. The NYPD's Evidence Collection Team obtained a DNA sample from the weapon that is sufficient for comparison (recovered DNA).

Pursuant to CPL §245.40(1)(e), a court may require a defendant to provide non-testimonial evidence, including "samples of the defendant's blood, hair, and other materials of the defendant's body that involves no unreasonable intrusion thereof." To obtain such an order, the People must establish "(1) probable cause to believe that the suspect has committed the crime, (2) a clear indication that relevant and material evidence will be found, and (3) the method used to secure it is safe and reliable" (CPL §245.40[1][e]). Additionally, the court must weigh these factors against concern for the defendant's constitutional right to be free from bodily [*2]intrusion (Matter of Abe A., 56 NY2d 288, 291 [1982]). This stringent standard is applied in order to guard against an unlawful fishing expedition (Id. at 297). Here, the People have failed to sufficiently establish a basis to compel the defendant to provide a buccal swab sample pursuant to CPL §245.40(1)(e), under an Abe A. analysis.

The allegation is that the defendant was present in an apartment where a pistol was found hidden inside of a mattress. There is no information indicating that the leaseholder ever observed the pistol in plain view or in a manner evincing dominion and control of the pistol by the defendant. Indeed, there is no information describing where the leaseholder first observed the pistol. The People have failed to set forth sufficient facts to support a finding of probable cause as to this defendant and therefore does not satisfy the first prong of Abe A. (see, People v Manini, 79 NY2d 561 [1992]; People v Francis, 79 NY2d 925 [1992]). Moreover, there is no information to draw an inference that the defendant hid the pistol in the mattress, or that the defendant knew or could have known that the pistol was secreted inside of the co-defendant's bed. It is well established that "to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." (Manini, at 573). Mere presence in a location where contraband is seized is not enough to establish the defendant's constructive possession of the seized evidence. (see, People v Brown, 133 AD3d 772 [2d Dept 2015]; People v King, 206 AD3d 1593 [4th Dept 2022]; People v Edwards, 206 AD2d 597 [3d Dept 1994]). The defendant is not a resident of the premises, the pistol was not in plain view or otherwise in the dominion and control of the defendant (id.)

Accordingly, the People's motion for an order pursuant to CPL §245.40(1)(e) is denied (Matter of Abe A., 56 NY2d 288, 291 [1982]). The defendant's request for a protective order is denied as moot.

This constitutes the decision and order of the court.