Defendant Vernon B. is charged with one count of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01 [1]). The People move, pursuant to CPL 240.40 (2) (b) (v), to compel defendant to permit the taking of an oral swab for DNA testing. Defendant opposes the motion.

The accusatory instrument alleges that on November 10, 2011, a police officer observed defendant at the window of a residence from which he threw a bag to the ground. The officer recovered a Taurus 9 mm. pistol loaded with one round of ammunition from the bag. The pistol subsequently tested positive for the presence of male DNA. The People seek an order to determine if defendant's DNA matches that found on the gun.

Defendant argues that the People's motion is untimely in that it was filed over five months after arraignment, well beyond the 45-day post-arraignment stricture of CPL 240.90 (1). He further contends that the gun was seized unlawfully when the police entered his private property and opened the closed bag without a warrant or consent. Defendant also asserts that the People failed to establish that the forensic testing methods in this case are safe and reliable and asks for various DNA test discovery. Finally, if the court grants the People's motion, defendant seeks a protective order preventing disclosure of his DNA profile for any purpose other than the prosecution of this case.

Although CPL 240.90 requires that the prosecutor move for discovery within 45 days after arraignment, it also states that for good cause shown a motion may be made at any time before trial. Here, the DNA laboratory report is dated May 20, 2012 and reflects an administrative review date of May 24, 2012. The People filed the instant motion on April 27, 2012. The motion is timely.

The Court of Appeals has set forth stringent standards for the issuance of an order to obtain forensic evidence from a defendant's body, according to which the People must establish: 1) probable cause to believe that he has committed the crime; 2) a clear indication that relevant material evidence will be found; and 3) the method used to secure it is safe and reliable (Matter of Abe A., 56 NY2d 288 [1982]).

Matter of Abe A. is based on an interpretation of the search warrant statute. As with a search warrant, the question of probable cause requires the court to consider only lawfully obtained evidence (People v Harris, 62 NY2d 706 [1984]). Thus, in People v. King, the court held that an order to draw blood from a defendant had properly issued because the application [*2]contained sufficient lawfully obtained information, untainted by and independent of alleged illegally obtained evidence, that probable cause existed (People v King, 232 AD2d 111 [2nd Dept. 1997]).

Here, the only viable challenge that the defense raises to an oral swab order under Abe A. is that there is no probable cause because the evidence in this case was allegedly seized unlawfully. The defendant claims that the police violated the Fourth Amendment when they entered his property and opened the bag in which the gun was allegedly secreted. An officer may seize what is in plain view only if he has a right to be in the position from which he makes his observation. Where an officer's warrantless presence on private property is not based on consent or exigent circumstances, his presence may be unlawful and any search or seizure of items may also be unlawful (United States v Jones, 132 S. Ct. 945 [2012] [government's trespass onto private property constituted a "search" within the meaning of the Fourth Amendment]; People v Abruzzi, 52 AD2d 499 [2nd Dept.], affd 42 NY2d 813 [1977] [officer's observations from defendant's rear yard, without a warrant or exigent circumstances, were unlawful and fruits of illegal intrusion were suppressed]; cf. People v Smith, 59 NY2d 454 [1983] [police may not search closed container for a weapon or evidence if arrestee cannot quickly reach its contents]).

In this case, the subject bag and its alleged contents provide the reason to believe defendant committed the charged crime of weapon possession. Accordingly, if the bag, pistol and ammunition had been illegally seized, they will be suppressed, and there would be no probable cause, thus resolving the DNA testing issue and, not incidentally, terminating this prosecution. Holding the suppression hearing at this point will therefore perhaps prevent an unnecessary physical intrusion into defendant and the delay that DNA testing will cause, while at the same time advancing this case towards a resolution, inasmuch as a suppression hearing will need to be held whether or not defendant's DNA is found on the gun.

Accordingly, the People's motion is held in abeyance pending a suppression hearing.

The foregoing constitutes the decision and order of this Court.

Dated: Brooklyn, New York

June 15, 2012

______________________

JOHN T. HECHT

J.C.C.