By motion filed November 16, 2011, the People moved for an order authorizing the taking of a saliva/buccal cell swab from the defendants pursuant to CPL 240.40 (2) (b) (v). This [*2]court, having received no opposition from defendants, deemed the People's motion submitted and granted it on default. Defendants' default notwithstanding, this court carefully examined and considered the applicable law as well as the People's arguments set forth in their papers, prior court proceedings, and documents on file with the court. By decision dated January 20, 2012, this court found that the District Attorney's application was amply supported by probable cause to obtain a sample of defendants' saliva for the purpose of performing DNA testing.

Subsequently, after receiving this court's decision, counsels for defendants Elijah Ellington and Wakimi Joseph advised this court that they had not received the People's motion. As such, neither counsel was able to file their opposition. By notices of motion dated February 9, 2012, and February 17, 2012, defendants Joseph and Ellington, respectively, move to vacate this court's decision and order, and seek leave to file their opposition. This court finds no reason to deny counsels that opportunity, and thus grants them such relief in the interest of justice. Upon accepting their affirmations the taking of a saliva/buccal cell swab from the defendants, this court has careful considered the arguments set forth in the parties' respective papers, the applicable law, prior court proceedings and documents on file with the court, and finds that the District Attorney's application is amply supported by probable cause to obtain a sample for the purpose of performing DNA testing.

CPLR 2103 (b) (2) provides that service of papers may be made upon the mailing of such papers to the opposing party's attorney. Service by mail shall be complete upon mailing (see CPLR 2103 [b]). It further provides that where counsel files a notice of appearance for two or more parties, only one copy need be served. Pursuant to CPLR 2103 (f), "mailing" is defined as "the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state" (see CPLR 2103 [f]).

Here, the People clearly discharged their service of papers obligation. The affidavit of service accompanying the People's motions indicate that a true and accurate copy of a motion to compel was properly served on Hannah Gladstein, Esq., and Barry Weiss, Esq., "by enclosing the same in a securely sealed post-paid wrapper . . . and depositing same in the post office box [*3]regularly maintained by the United States Government located near 198 East 161st Street, Bronx, New York, addressed to her [him] at . . . the address given by her [him] in the last papers served by him in the within proceedings."^[FN2]

The Court of Appeals has unequivocally stated that a properly executed affidavit of service raises a presumption that a proper mailing occurred (Engel v Lichterman, 62 NY2d 943 [1984]). In Engel, plaintiffs claimed they never received a copy of a conditional order of preclusion with notice of entry that defendant placed in a sealed post-paid wrapper in an official depository maintained by the United States Post Office. Strikingly similar to counsels' claim, Engel's counsel stated that although it appeared the order was mailed, his office never received it, from which he could "only surmise that this document was lost in the mail, since it was never

delivered to our offices" (Engel at 944). In rejecting plaintiffs' claim, the Court held that "[b]y statute, service is complete upon mailing (CPLR 2103, subd [b], par 2). Plaintiffs' papers raise no question of fact as to whether proper service was made" (Engel at 944-945).

Thus, regardless of whether counsels in fact received the District Attorney's motions to compel a saliva sample, service was properly effected. Nevertheless, this court has no reason to disbelieve counsels, and appreciates the prompt and forthright notice of their not having received it. This court, therefore, grants their motion to vacate.

The Forensic Biology Unit at the New York City Office of the Chief Medical Examiner ("OCME") performed DNA analysis on swabs taken from the loaded .380s that revealed the presence of a DNA mixture. That analysis indicated that the defendants may be potential contributors. Because DNA mixtures are not CODIS ^[FN4] eligible, they cannot be uploaded to the New York State DNA database. The deduced DNA profile, however, is suitable for direct comparison to the defendants' DNA to either include or exclude them as its source. The District [*4]Attorney further states that OCME's Forensic Biology Unit has agreed to perform a DNA comparison and that a saliva sample from the defendants is necessary to do so.

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, the fact that innocent explanations exist for the defendants' conduct is irrelevant (see People v Daye, 194 AD2d 339 [1st Dept 1993]). Additionally, it is irrelevant whether the arresting officer neglected to investigate or pursue other possible suspects (People v Archibald, 192 AD2d 537 [2d Dept 1993]).

A finding of probable cause, then, does not require the submission of a sworn affidavit to corroborate every allegation, or the presence of "concrete," direct, or consistent evidence, nor does it require proof sufficient to warrant a conviction beyond a reasonable doubt. Rather, probable cause merely requires "information sufficient to support a reasonable belief" (People v Bigelow, 66 NY2d 417, 423 [1985]). Thus, at a minimum, the District Attorney must set forth factual allegations sufficient to establish the defendants' connection to the loaded .380 caliber guns.

Here, the arresting officers observed a loaded .380 caliber semi-automatic inside Attoh's vehicle on the rear center arm rest next to where defendant Ellington was seated. Additionally, Ellington had been observed with gun earlier that evening. Joseph, who was also seated inside the vehicle, had been observed placing his belongings in the trunk, where a second loaded .380 caliber semi-automatic was recovered. Although Joseph claims that the factual allegations set forth by the District Attorney fail to establish that the defendants constructively possessed the guns, this court finds that under the totality of the circumstances there is a sufficient basis to establish probable cause (Matter of Chaplin v McGrath, 215 AD2d 842 [3d Dept 1995]; Matter of Vivanco v West, 214 AD2d 618 [2d Dept 1995]; Matter of David M. v Dwyer, 107 AD2d 884, 885 [3d Dept 1985]; People v Forelli, 58 AD2d 76 [2d Dept 1977]; see People v Shabazz, 301 AD2d 412 [1st Dept 2003], lv denied 100 NY2d 566 [2003], People v Simpson, 244 AD2d 87 [1st Dept 1998], appeal withdrawn 92 NY2d 947 [1998], People v Robinson, 237 AD2d 535 [2d Dept 1997], appeal denied 90 NY2d 909 [1997]; cf. People v Washington, 33 Misc 3d 640 [Crim Ct, Kings County 2011, Grosso J] [Defendant's actions, including, standing in a crowd, grabbing [*5]his waistband, walking briskly into a two-family dwelling and then exiting, were found to be insufficient to justify arresting the defendant for possessing two guns that were subsequently recovered from an open cooler inside the two-family dwelling when a second individual opened the door to the two-family dwelling to allow the police to enter]).

Joseph's other claim, that the factual allegations upon which the District Attorney relies are, at least in part, based upon hearsay statements made by co-defendant Attoh also fails. "Probable cause" may indeed be based on reliable hearsay evidence (CPL 70.10 [2]; see also Matter of David M. at 885). Here, the credible evidence demonstrates a clear connection between the defendants and the loaded .380s.

Ellington's claim, that this court is precluded from granting the People's application because the grand jury did not indict him for criminal possession of a weapon, is unpersuasive. He bases this argument on the dubious assumption that the reason for the grand jury's decision was a lack of probable cause. The grand jury elected to charge Ellington with unlawful possession of ammunition; ammunition that was discovered inside the very gun it declined to indict him for possessing— a peculiar result indeed. Nevertheless, regardless of whether the grand jury believed sufficient probable cause was lacking, it neither binds nor precludes this court from authorizing the taking of a saliva/buccal cell swab pursuant to CPL 240.40 (2) (b) (v). A court is entitled to "great deference" in determining whether probable cause exists (People v King, 232 AD2d 111, 116 [2d Dept 1997]; see People v Hanlon, 36 NY2d 549, 559 [1975]). Indeed, the existence of a formal charge is not a prerequisite for a judicial directive compelling a suspect for the taking of a DNA sample (Matter of David M. at 885).

Based on the factual allegations presented, this court finds the existence of sufficient probable cause. With respect to relevant, material evidence, the DNA analysis that revealed a mixture of DNA on the .380 caliber guns. The defendants' proximity to, and ostensible knowledge of, the guns, establishes a sufficient nexus between the defendants and the guns, and provides ample support that relevant and material evidence will be discovered on them upon an examination of a DNA sample from the defendants (see People v Beecham, 25 Misc 3d 1214(A) [Sup Ct, Westchester County 2009, Molea J]).

the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other. Only if this stringent standard is met . . . may the intrusion be sustained (Matter of Abe A. at 299).

This court finds that the manner in which the District Attorney seeks to take a sample of defendants' saliva, a swab inside the defendant's mouth, is accepted as both safe and reliable. And, significantly, the seriousness of possessing two, loaded semi-automatic weapons cannot be understated, particularly when weighed against the minimal intrusion upon defendant's body by means of a mouth swab. [*6]

Furthermore, defendant Joseph requested a protective order pursuant to CPL 240.50. Such a 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 be entered into the local New York City DNA databank.

Accordingly, this court concludes that probable cause exists to order the taking of a sample of defendants' saliva, that relevant and material evidence will be found, and that the manner in which the DNA sample will be taken is both safe and reliable. The District Attorney 's motion to compel the taking of a saliva/buccal cell swab from the defendants pursuant to CPL 240.40 (2) (b) (v) is therefore granted.

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: June 26, 2012

E N T E R

________________________________Richard Lee Price, J.S.C.