The People move this court pursuant to CPL § 245.40 (1) (e) for an order directing the defendant to provide samples of his saliva for DNA analysis. The defendant opposes, arguing that the People have shown neither "probable cause to believe the defendant has committed the crime" nor "a clear indication that relevant material evidence will be found" (CPL 245.40 [e]). The defendant also cross-moves for a protective order limiting the use of any compelled DNA sample or any other DNA sample collected from the defendant while he was in police custody.

For the reasons below, the People's motion and the defendant's cross-motion are denied.

On January 10, 2025, NYPD Officer Edwin Nieves saw a vehicle make an improper turn and observed that neither the driver (the defendant) nor the passenger (his co-defendant, John Michael Hoti) was wearing a seatbelt. Officer Nieves then attempted to initiate a car stop, but instead the car accelerated, finally coming to a stop nine blocks away. After the defendant stopped the car, Mr. Hoti jumped out of the car and placed an object under a vehicle before the police stopped and arrested him. Officer Nieves recovered a loaded and operable firearm under the vehicle where Officer Nieves had seen the co-defendant place an object.

Both the defendant and co-defendant were arrested, and officers recovered a large quantity of marijuana in the vehicle and a controlled substance on the defendant's person. While felony drug and cannabis charges were listed among the defendant's arrest charges, those charges are not included on the pending felony complaint. At the time of his arrest, the defendant was on probation.

The Office of the Chief Medical Examiner (OCME) analyzed swabs taken from the firearm and determined that one sample was suitable for comparison.

Under CPL § 245.40 (1) (e), the court may order a defendant to "[p]ermit the taking of samples of . . . materials of the defendant's body that involves no unreasonable intrusion" upon a showing of "probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable." (See also Matter of Abe A., 56 NY2d 288, 291 [1982].) Even if these standards are met, the court must as a constitutional matter "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" before issuing such an order (Abe A., 56 NY2d at 291). Here, the People have not shown probable cause to believe that the defendant possessed the firearm, and thus the motion to compel is denied.

Probable cause exists when the evidence is "collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]; see also David M. v Dwyer, 107 AD2d 884, 885 [3d Dept 1985]). In the context of probable cause analysis, "reasonably likely" means "at least more probable than not," and "conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]). Here, the question is whether there is probable cause to believe that the defendant possessed a firearm (PL 265.03 [3]). Possessing a firearm means either "to have physical possession" or "to exercise dominion or control" over the firearm (PL 10.00 [8]).

None of the People's allegations suggest that the defendant had actual physical possession of the firearm, either when the firearm was recovered or at any time prior to its recovery. The allegations show that Mr. Hoti, the co-defendant, had physical possession of the firearm: he was seen tossing the firearm under the car, and the facts suggest that prior to abandoning the firearm, he was carrying it in a fanny pack on his body. There is no evidence that the defendant ever held the firearm.

Nor is there any indication that the defendant exercised dominion or control over the firearm. First, possession cannot be presumed under PL § 265.15 (3), which allows a finder of fact to presume that any person in a vehicle possessed a firearm found therein. The presumption does not apply where the firearm "is found upon the person of one of the occupants of the vehicle" (PL 265.15 [3] [a]). That is what happened here: the firearm was in the co-defendant's actual physical possession immediately before he was arrested and the firearm recovered (id.; see also People v Smith, 155 AD2d 704, 705 [2d Dept 1989], People v Lester, 61 AD2d 844, 844 [2d Dept 1978]). Unbolstered by the automobile presumption, the facts here do not establish that the defendant even knew about the firearm, much less exercised dominion or control over it. The People do not allege that the defendant admitted possessing the firearm or that any other person made any such allegation. Nor have the People presented information about the defendant's relationship with the co-defendant that would support an inference that they would likely have shared possession of the firearm. The defendant's flight from the police is at best equivocal as to his knowledge of the firearm, as the defendant was carrying other contraband while on probation (see People v Chandler, 121 AD2d 644, 646 [2d Dept 1986]). On the available facts, it is not "reasonably likely" that the defendant possessed the firearm, and the People therefore have not made a showing of probable cause (Carrasquillo, 54 NY2d at 254).

Because the People have not demonstrated probable cause to believe that the defendant is guilty of the charged offenses, this court need not consider any of the other statutory or [*2]constitutional factors, and the motion for an order directing the defendant to submit to a buccal swab is denied.

The defendant moves for a protective order limiting the use of any compelled DNA sample as well as any other DNA samples gathered from the defendant related to this case. The motion for a protective order for a compelled sample is denied as moot. The motion for a protective order for other samples collected from the defendant is also denied. First, the defendant has not offered any reason to believe law enforcement in fact collected his DNA. Further, the proposed order would restrict two non-parties to this litigation — NYPD and OCME — in their handling of material obtained outside of the discovery process. The proposed order is beyond the scope of CPL § 245.70 (1), and the defendant has provided no other legal basis for his motion.

This constitutes the decision and order of this court.