By motion submitted September 7, 2011, the People move for an order authorizing the taking of a saliva/buccal cell swab from defendants pursuant to Matter of Abe A, 56 NY2d 288 (1982) and People v Salcedo, 2001 WL 1537673. Defendants oppose the People's motion and move to dismiss the felony complaints pursuant to CPL 210.20(g) and 30.30(1)(a). After review of the motion papers, supporting affirmations, and other papers on file with the court as well as prior court proceedings and prevailing authority, this court finds that the District Attorney's application to obtain a sample of defendants' saliva for the purpose of performing DNA testing is supported by probable cause. The People's motions are therefore granted. Defendants' respective motions to dismiss the unindicted felony complaints, however, are denied.

Background and Procedural History

It is alleged that on January 8, 2011, at approximately 3:50 a.m., in the vicinity of 15 Marcy Place, Bronx, New York, defendant Ciprian brandished a revolver at Zuleika Domenach's face and stated, "I will shoot you bitch." Ciprian then handed the gun to defendant Benitez, who [*2]also brandished it at Ms. Domenach and stated, "Get the fuck out of here."^[FN1] Ms. Domenach then observed the defendants throw "the revolver down to the ground, in the same location where Police officer Rafael Morales recovered the loaded .32 COLT caliber revolver."^[FN2]

Later that day, both defendants were arrested and charged with criminal possession of a weapon in the second degree (PL 265.03[3]), and other related offenses. The defendants were arraigned on January 9, 2011, and entered pleas of not guilty.

On July 26, 2011, the People filed motions to compel the defendants to provide saliva samples for the purpose of DNA analysis. On August 2, 2011, counsel for Ciprian filed an opposition to the People's motion and moved to dismiss the felony complaint pursuant to CPL 210.20(g) and 30.30(1)(a). On September 7, 2011, counsel for Benitez did the same.

On October 24, 2011, the District Attorney filed a supplemental affirmation in support of the People's motion to compel.

People's Motion to Compel Saliva Sample

It is well established that the District Attorney has broad discretion regarding when to present evidence to a grand jury, in what manner to do so and on what charges to seek an indictment (see CPL 190.50[2],[3], and [4]; cf People v Mitchell, 40 AD2d 117 [3d Dept 1972]). In so doing, the District Attorney may apply, prior to obtaining and filing an indictment, for an order compelling an individual suspected of committing a crime to provide a DNA sample or other non-testimonial evidence (Matter of Abe A, 56 NY2d 288 [1982]). Issuance of such an order requires: (1) probable cause to believe that the individual from whom such evidence is sought has committed the crime under investigation; (2) a clear indication that relevant material evidence will be discovered as a result; and, (3) the method used to obtain it is safe and reliable (People v Salcedo, 2001 WL 1537673; Abe A at 288). Beyond these requirements, the issuing court should also consider "the seriousness of the crime under investigation, the significance of the evidence sought and the availability of less intrusive means of obtaining it, and balance these concerns against the individual's constitutional right to be free from bodily intrusion (Salcedo at 2001 WL 1537673, Abe A at 291).

Regarding probable cause, "a police officer may arrest a person for . . . [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise" (CPL 140.10 [1][b]). In other words, "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" (People v Carrasquillo, 54 NY2d 248, 254 [1981]). Probable cause requires only that the arresting officer be aware that some crime may have occurred, not that a specific crime actually occurred (People v Wilmer, 90 AD2d 918 [3d Dept 1982]; People v Schneider, 58 AD2d 817 [2d Dept 1977]). Thus, it is of no moment that innocent explanations for defendant's conduct may exist (see People v Daye, 194 AD2d 339 [1st Dept 1993]). Also irrelevant is whether the arresting [*3]officer neglected to investigate or pursue other possible suspects (People v Archibald, 192 AD2d 537 [2d Dept 1993]).

Moreover, a finding that probable cause exists does not require the submission of a sworn affidavit to corroborate every allegation. Nor does it require the presence of "concrete," direct or consistent evidence. In fact, a finding of probable cause to obtain non-testimonial evidence does not require non-hearsay allegations, especially where the informant is identified by name and therefore presumptively credible (People v Clark, 15 AD3d 864, 865 [4th Dept 2005]; People v Afrika, 13 AD3d 1218, 1219 [4th Dept 2004]. "Hearsay, even chains of hearsay, can satisfy the probable cause requirement" (People v Bush, 266 AD2d 642, 645 [3d Dept 1999]). Benitez's claim, then, that the District Attorney's motion should be denied because it is based solely on the unsworn hearsay allegations of the complaining witness is unpersuasive. It should be noted, however, that the complainant's allegation was nevertheless sufficiently corroborated by Police Officer Morales' recovery of a revolver from the vicinity.

As indicated above, the District Attorney alleges that on January 8, 2011, at approximately 3:50 a.m., the defendants, while acting together, possessed a loaded .32 caliber revolver. DNA analysis performed on a swab taken from the revolver by the Forensic Biology Unit at the New York City Office of the Chief Medical Examiner ("OCME") revealed the presence of a mixture of DNA samples from at least three individuals. The deduced DNA profile is apparently suitable for direct comparison to either include or exclude the defendants as its source. The District Attorney further states that OCME's Forensic Biology Unit has agreed to perform a DNA comparison and that a saliva sample from each of the defendants is necessary to do so.

First, this court notes the District Attorney's affirmations lack particularity. Neither of the People's supporting affirmations (the initial or supplemental) specifically describe the location where the gun was recovered, nor do they indicate how or when the arresting officer was directed to that area. Indeed, this court is wanting in its knowledge of whether the complainant notified the police and pointed them in the direction that defendants fled, or whether they arrived there on their own. This is especially troubling considering that counsel for Benitez alleges the complainant was attempting to place responsibility for her possession of the gun onto defendants. To be clear, however, Benitez provides no basis for such bald assertion.

Also of concern is People's failure to particularize the location where the complainant observed the defendants throw the revolver to the ground or where it was recovered. Although the People indicate in their initial affirmation that it was found "in the vicinity of Elliot Place and Grand Concourse, within a short distance from where the incident occurred,"^[FN3] they state it in their supplemental that "was recovered is approximately thirty feet away from where the complainant was menaced."^[FN4] The problem is that incident allegedly occurred at 15 Marcy Place, which is ostensibly three blocks from Elliot Place and Grand Concourse. Such vague and inconsistent allegations may, at worst, be fatal. At best, it reflects careless drafting. [*4]

Indeed, failure to allege specific and particular facts in support of a motion to compel may result in denial. Recently, in People v Washington, 33 Misc 3d 640 (Crim Ct Kings Co 2011, Grasso, J), the defendant was observed grabbing his waistband, entered a two-family dwelling, and quickly exited. When he did, police officers observed him drop a bag of marijuana to the ground. Upon approaching him, police officers discovered he was in possession of a gravity knife. One of the police officers was then invited into the two-family dwelling and observed two firearms in plain view. Arguing there was probable cause to believe that defendant's DNA would match the DNA swab taken from the guns, the People moved to compel a DNA sample. Finding such allegations insufficient, the court denied it.

Though similar in some respects—— both involve weapons recovered at a time and place different from defendant's seizure, and both suffer vagueness in describing the location (in Washington, the People's affirmation failed to specify which entrance to the two family dwelling that defendant entered and whether it was the same as the entrance the police used), it is distinguishable because there were no allegations that the defendant was observed in possession of the firearms, and there were no statements connecting the defendant to them. However, where a victim and an eyewitness identified the respondent-defendant by means of a photographic array, there is certainly a reasonable belief that a crime has been committed by him (In re Daniel C, 15 Misc 3d 543 [2007]).

Here, the complainant, who was acquainted with the defendants for several months before the alleged incident, states she observed defendants in possession of a revolver while threatening to kill her. The responding police officers subsequently recover a revolver from a nearby location that contains a DNA mixture. The People's carelessness aside, such allegations are indeed sufficient to satisfy the required elements articulated in Matter of Abe A: (1) there is ample evidence that the defendants committed a crime; (2) there is a clear indication that relevant material will be found if the requested DNA samples are provided, and (3) the method used to obtain the oral swab samples will be safe and reliable. It would be improvident, then, to deny the District Attorney an opportunity to establish whether one of the DNA profiles obtained from these items is consistent with either, or both, defendants. This court concludes, therefore, that probable cause exists to order the taking of a sample of defendants' saliva and further finds that the manner in which the District Attorney seeks to do so is accepted as both safe and reliable, to wit: a swab inside the defendant's mouth (Matter of Abe A, 56 NY2d 288, 299; People v. Trocchio, 107 Misc 2d 610).

Finally, regarding defendants' request for a protective order pursuant to CPL 240.50, such request is granted only to the extent that defendant's known DNA profile is to be compared only with evidence submitted to the New York City Office of the Chief Medical Examiner relative to the above-captioned matter. Defendant's known DNA profile may not, however, be entered into the local New York City DNA databank. Defendant's request, however, for an "order directing destruction and expungement of any and all items and documents obtained and/or prepared in connection with the obtaining of the DNA sample and the comparison" in the event of a negative hit" must be summarily rejected. Defendant fails to provide any authority or support demonstrating he is entitled to such relief.

Defendants' Motion to Dismiss Pursuant to CPL 30.30(1)(a) [*5]

CPL 30.30(1)(a) provides:

1. Except as otherwise provided in subdivision three, a motion made pursuant to . . . paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: (a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony (CPL 30.30[1][a]).

CPL 210.20(1)(g) further states:

1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: (g) The defendant has been denied the right to a speedy trial (CPL 210.20[1][g]).

Clearly, CPL 210.20 provides only for the dismissal of an indictment. Thus, this court is entirely without jurisdiction to entertain a motion dismiss (Morgenthau v Roberts, 65 NY2d 749 [1985][supreme court has no inherent or supervisory authority for dismissal of a felony complaint]. The People have not, as of yet, presented this matter to a grand jury. Presently, then, the only accusatory instrument in place is the felony complaint. Thus, unless and until an indictment is filed, this court has no authority to grant defendants the relief sought, even if it were inclined to do so.

In support of his motion, Ciprian erroneously relies People v Osgood, 52 NY2d 37 [1980], and People v Rhee, 52 NY2d 37 [1980]. Both cases stand for the principal, enshrined in CPL 1.20(17), that where more than one accusatory instrument is filed, the speedy trial clock begins to run on the filing of the first accusatory instrument. While true, if and when the People secure an indictment, the proverbial speedy trial clock will have commenced on January 9, 2011, and any time chargeable to the People from then will be included in such calculation. Until then, however, the speedy trial remedy of CPL 30.30 is not available to the defendants. This constitutes the decision of this court. This court's order is incorporated by reference herein and shall be executed as indicated therein. The District Attorney is hereby directed to serve a copy of that order on the defendant.

Dated:December 5, 2011

________________________________Richard Lee Price, J.S.C.