The People move, pursuant to CPL §245.40(1)(e), for an order directing defendant to submit to the taking of a DNA sample by means of an oral swab. Defendant replies in opposition and cross-moves for a protective order precluding the Office of the Chief Medical Examiner ("OCME") from adding defendant's DNA sample to any DNA database or comparing defendant's DNA to any additional profiles, but permitting OCME to compare defendant's DNA solely to DNA obtained in connection with the instant matter.

In determining the instant motion, the court reviewed the People's Motion for a DNA Sample and defendant's Affirmation in Opposition and Cross Motion. For the reasons set forth below, the People's motion is denied and the defendant's cross-motion is denied as moot.

The People contend that they are authorized, under CPL §245.40(1)(e), to seek a court order compelling an indicted defendant to furnish the prosecution with non-testimonial evidence such as saliva and blood samples. The People claim they have met the three-prong standard set out in Matter of Abe A. (56 NY2d 288, 291 [1982]):

"(1) that there exists probable cause to believe that the individual from whom non-testimonial evidence is sought has committed the crime under investigation,

(2) that there exists a clear indication that relevant material evidence will be found as a result of the disclosure of the non-testimonial evidence sought, and

(3) that the method used to obtain the non-testimonial evidence sought is safe and reliable."

Here, the People argue that probable cause is evidenced by the fact that a Grand Jury has indicted defendant. The People also point out that OCME analysis found DNA, sufficient for comparison testing, on a handgun recovered upon the execution of a search warrant. The People assert, based upon OCME tests, that comparing defendant's DNA to the foreign DNA recovered from the recovered handgun will provide "relevant material evidence" establishing defendant's contact with it. Finally, the People contend that taking an oral swab from the defendant is the least intrusive means to perform DNA testing.

Defendant argues that the People have not met the standard necessary for entitlement to an oral swab. Defendant contests the People's position that there is a clear indication that relevant material evidence will be discovered through DNA testing. In the alternative, defendant [*2]moves for a protective order prohibiting OCME from entering his DNA into any database or disclosing it for any purpose beyond the instant matter.

The Court finds that the People have demonstrated that there exists probable cause to believe that the individual from whom non-testimonial evidence is sought (defendant) committed the crime under investigation. The application comes after the defendant has been indicted, thus providing statutory authority and probable cause (see People v. Pryor, 14 AD3d 723, 725 [3rd Dept 2005], lv denied 6 NY3d 779 [2006] [citations omitted]). It is also undisputed that the method proposed to obtain the non-testimonial evidence sought (oral swab) is safe and reliable. However, the People have failed to demonstrate that relevant material evidence will be found upon taking an oral swab from defendant and comparing it to the DNA already tested.

According to the People's Memorandum of Law, on February 9, 2024, defendant had a verbal dispute with an unknown individual in the lobby of 1939 Park Place, in Kings County. After briefly walking away from the unknown individual, defendant returned with another male. Defendant then proceeded to strike the unknown individual. At some point, while defendant confronted the unknown individual, a female appeared in the lobby. When the unknown individual attempted to walk away from defendant, the male who returned with defendant drew a handgun and fired multiple rounds in the direction of the unknown individual. Defendant, the male, and the female then proceeded to apartment 3E inside 1939 Park Place. Shortly thereafter, defendant and the male left apartment 3E and entered apartment 4G.^[FN1]

The police responded to 1939 Park Place and, upon review of video surveillance, established live surveillance of apartments 3E and 4G. The female was apprehended upon leaving apartment 3E. Defendant and the male were apprehended upon leaving apartment 4G. Each apartment was then secured, pending the issuance of search warrants. On February 10, 2024, upon execution of a search warrant, a loaded handgun was recovered from a handbag inside apartment 3E.

Based upon the foregoing, the People take the position that defendant is the source of the DNA found on the handgun recovered from apartment 3E on February 10, 2024 and that DNA testing is necessary to prove material elements of their case. This position must be rejected.

The court finds that the People have failed to make a showing that relevant material evidence will be found upon taking an oral swab from defendant. The People's account of the incident that took place on February 9, 2024 contains no evidence that defendant came into physical contact with the recovered handgun. The People's motion clearly indicates that only the other apprehended male is alleged to have used the handgun in the course of the charged offenses ^[FN2] (see People v Mansell, Sup Ct, Bronx County, August 2, 2018, Clancy, J., indictment No. 267/2018; People v Bussey, Sup Ct, Kings County, December 19, 2012, Cyrulnik, J., indictment No. 2446/2012; People v. Swan, Sup Ct, Kings County, December 16, 2010, Dwyer, J., indictment No. 3781/2010).

Finally, as directed by the Court of Appeals decision in Matter of Abe A., (56 NY2d 288, 291, supra) this court has considered the seriousness of the crime under investigation, the significance of the evidence sought and the availability of less intrusive means of obtaining it, balancing these concerns against the individual's constitutional right to be free from bodily intrusion.

Accordingly, the People's motion is denied, with leave to renew, upon a showing that relevant material evidence will be found upon taking of an oral swab from defendant and comparing it to DNA already tested. The defendant's cross motion is denied as moot, without prejudice.

This constitutes the Decision and Order of the Court.