By order to show cause, the Westchester County District Attorney's Office moves the Court pursuant to CPL 240.40(2)(b)(v) to enter an order directing defendant Roger Beecham to submit to the taking of a buccal cell sample from his body in connection with the prosecution of the instant indictment. In resolving the People's present application, the Court has considered the order to show cause, affirmation in support, memorandum of law and reply affirmation of Assistant District Attorney Lana B. Hochheiser, and the affirmation in opposition of counsel for the defendant, Michael F. Keesee, Esq. Upon the foregoing papers, the instant application is resolved as follows:

Pursuant to Indictment Number 08-1462-01, the defendant presently stands charged with two counts of Criminal Possession of a Weapon in the second degree pursuant to Penal Law

§ 265.03(1)(b), two counts of Criminal Possession of a Weapon in the second degree pursuant to Penal Law § 265.03(3), a single count of Criminal Possession of a Weapon in the second degree pursuant to Penal Law § 265.03(1)(c), and a single count of Tampering With Physical Evidence pursuant to Penal Law § 215.40(2). It is alleged by the People that these charges stem primarily from the defendant's possession of a loaded and operable Derringer handgun, as well as a loaded, operable and defaced Lorcin handgun, while aiding, abetting and acting in concert with his co-defendants on August 8, 2008 in the area of 511 South 7th Avenue in the City of Mount Vernon in the County of Westchester.

Following the alleged commission of these charged crimes, swabs were taken from the seized handguns and provided to the Westchester County Department of Laboratories and Research (WCDLR) for analysis. Subsequent forensic examination of the swabs by the WCDLR indicated [*2]the presence of a mixed profile of human DNA thereon. Based upon the foregoing, the People assert that the forensic comparison of the defendant's known DNA profile with the DNA profiles obtained from the seized handguns may yield material evidence. These examination results were memorialized in a report generated by the WCDLR on September 26, 2008, which was subsequently provided to the Mount Vernon Police Department. The People claim that they were unaware of the existence of the forensic report prepared by the WCDLR until July 27, 2009, when this information was provided to ADA Lana Hoccheiser via telephone by a forensic scientist employed by the WCDLR. The People further claim that the WCDLR neglected to provide this forensic report to the District Attorney's Office at an earlier time due to the WCDLR's previous submission of same to the Mount Vernon Police Department in connection with a distinct, yet related, ongoing homicide investigation.

In support of the instant application, the People submit that the forensic comparison between the genetic profile of the DNA sample obtained from the seized handguns and the genetic profile of the DNA to be derived from the buccal cells obtained from the defendant may provide material evidence concerning the defendant's actual possession of the handguns which were recovered from the vestibule of a building located in the area where the defendant was apprehended by the police. The defense opposes the instant application due to the alleged insufficiency of the People's showing of good cause for their failure to move for the discovery sought within 45 days of the arraignment date as required by CPL 240.90.

Turning first to consider the defendant's challenge to the People's showing of "good cause" to excuse the untimeliness of the instant discovery application, the Court notes that CPL 240.90(1) does require that "[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 connection with the People's proffer of good cause to excuse the untimeliness of the instant discovery request, the Court finds it significant to note that the defense has failed to make any showing that the People acted in bad faith by neglecting to request buccal cell samples from the defendant at an earlier time, nor that the defense has been prejudiced by the delayed request. Furthermore, were this Court to determine that the People had not established good cause for their failure to make their discovery request in a timely manner, it is well-settled that the violation of CPL 240.90(1) does not require preclusion or suppression unless a constitutionally protected right is implicated (see, People v Patterson, 78 NY2d 711, 716-717). Insofar as relevant here, as the taking of buccal cell samples does not constitute testimonial evidence (see generally, People v Smith, 86 AD2d 251, 252), no constitutional rights are implicated by the People's instant discovery application and preclusion is not a required sanction (see, People v. Finkle, 192 AD2d 783, lv. denied 82 NY2d 753). Accordingly, noting the absence of any defense showing of bad faith by the People or resultant prejudice to the defense, the Court finds that the People's claim that the untimeliness of the instant discovery application stemmed from the failure of the WCDLR to recognize that the forensic examination of the seized handguns related to both the instant matter, as well as a related albeit distinct pending homicide investigation, is sufficient to establish the requisite good cause to excuse the untimeliness of the People's instant discovery application..

Turning next to consider the merits of the People's instant application seeking to compel the defendant to submit to the taking of buccal cell samples, the Court notes that the People are specifically authorized pursuant to CPL 240.40(2)(b)(v) to seek a court order compelling an indicted [*3]defendant to furnish the prosecution with non-testimonial evidence, including a buccal cell sample. Pursuant to the holding of the Court of Appeals in Matter of Abe A. (56 NY2d 288, 291), the applicable standard governing the issuance of an order to compel an individual to furnish non-testimonial evidence to the prosecution requires that the following three elements be established: (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 and 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 (see, People v. King, 232 AD2d 111, app. denied 91 NY2d 875; Matter of Anonymous v. Cacciabaudo, 153 AD2d 856, app. denied 74 NY2d 890; Matter of Santorelli v. District Attorney of Westchester County, 252 AD2d 504, 505; Matter of Chaplin v. McGrath, 215 AD2d 842; Matter of Vivanco v. West, 214 AD2d 618). In addition, the Court of Appeals further requires that the issuing court consider the seriousness of the crime under investigation, the significance of the evidence sought and the availability of less intrusive means of obtaining it, thereupon balancing these concerns against the individual's constitutional right to be free from bodily intrusion (Matter of Abe A., supra, at 291; People v. King, supra, at 116).

Upon assessing the merits of the present application with respect to the existence of probable cause to believe that the individual from whom non-testimonial evidence is sought has committed the crimes under investigation, the Court finds that the requisite probable cause is demonstrated through the grand jury's return of the instant indictment. Turning next to consider the sufficiency of the People's showing that a clear indication that relevant and material evidence will be found as a result of the forensic examination and comparison of the buccal cell sample sought, the Court finds that the inclusion or exclusion of the defendant as the source of the DNA sample obtained from the seized handguns clearly constitutes relevant and material evidence in this case (People v. Allweis, 48 NY2d 40, 50; Matter of Cacciabaudo, supra, at 858; Matter of Eric Price, County Ct., Westchester County, Sept. 10, 1997, Lange, J., indictment No. 97-0771). Upon further considering whether the method proposed to obtain a buccal cell sample from the defendant is safe and reliable, this Court finds that so long as the taking of the sample is performed by a trained professional in accordance with accepted procedures prescribed for the taking of a buccal cell sample, the method to be utilized will be deemed safe, reliable and free from unreasonable intrusion or risk of serious physical injury (see, People v. Trocchio, 107 Misc 2d 610).

In addition to the above, this Court has considered the seriousness of the crimes under investigation, finding that the defendant stands charged with the criminal possession of two distinct loaded and operable handguns which resulted in his indictment for five counts of Criminal Possession of a Weapon in the second degree, class "C" violent felony offenses within the meaning of Penal Law § 70.02(1)(a), and another related felony offense. Concurrently, the Court has also evaluated the significance of the evidence sought by the People through the instant application, finding that the buccal cell sample sought constitutes material evidence which is probative of the identity of at least one or more of the persons who committed the charged crimes. Furthermore, the Court finds that no less intrusive means of obtaining a buccal cell sample from the defendant is available, as the prescribed procedure involves the simple scraping of the cheek lining of the subject's mouth with a cotton swab. Indeed, neither counsel for the defendant, nor the People, have suggested a less intrusive alternative means by which the People might obtain a buccal cell sample [*4]from the defendant. Finally, upon weighing the above concerns against the defendant's constitutional right to be free from the bodily intrusion involved in the taking of a court-ordered buccal cell sample, the Court finds that the balance weighs in favor of granting the People's application for an order compelling the defendant to submit to the taking of a buccal cell sample.

Accordingly, the People's present application seeking an order of the Court compelling the defendant to submit to the taking of a buccal cell sample is granted. In this regard, the sample is to be taken from the defendant at the Westchester County Jail Correctional Health Services Facility and shall be performed in accordance with accepted medical procedures prescribed for the taking of buccal cells, in order to ensure that the method to be utilized shall be safe, reliable and free from unreasonable intrusion or risk of serious physical injury to the defendant. The defendant, through his attorney, Michael F. Keesee, Esq., is consequently directed to contact Assistant District Attorney Lana B. Hochheiser of the Westchester County District Attorney's Office within two (2) days following the date of entry of this Decision and Order, in order to arrange a date and time, to be mutually agreed upon between counsel for the defendant and the Office of the District Attorney, for the taking of the buccal cell sample in a manner consistent with the terms set forth herein, but in no event shall such a date be later than seven (7) days from the date of entry of this Decision and Order, absent leave of this Court.

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

August 25, 2009

Honorable Richard A. Molea

Acting Justice of the Supreme Court

TO: