Defendants move, by motion submitted May 11, 2011, to terminate prosecution under felony complaints 017841C-2010, 017842C-2010, and 017843C-2010 pursuant to CPL 180.85. Previously, by separate motions, each submitted February 17, 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). 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 defendants' motion to be without merit; it is therefore denied. Conversely, this court finds that the District Attorney's application to obtain a sample of defendant's saliva for the purpose of performing DNA testing is amply supported by probable cause. The People's motions are therefore granted.

On March 18, 2010, at approximately 11:40 p.m., defendants were allegedly acting together to possess a defaced .38 caliber revolver, a 12 gauge sawed-off shotgun, and four live 12 gauge rounds, which were recovered from a backpack thrown from defendants Shabeer and [*2]Murphy Hassim's apartment window located at 1775 Eastburn Avenue, Apartment 5C, Bronx County. While not a resident of that apartment, defendant Steffon Persad is alleged to have been present with Shabeer and Murphy Hassim at the time. They were arrested on March 19, 2010, at approximately 12:55 a.m. and charged with criminal possession of a weapon in the second degree, in violation of PL 265.03(3), and other related offenses. On March 20, 2010, all three defendants were arraigned and entered pleas of not guilty.

On June 14, 2010, the People filed motions to compel the defendants to provide saliva samples for the purpose of DNA analysis. On September 7, 2010, the People, in Part 25, indicated that defendants' counsel, Kyle Watters, had not responded to their motions. At that time, counsel stated that he had not received them but confirmed that the address to which they were sent was accurate. The People provided him with courtesy copies and the matter was adjourned to September 8, 2010, in Part A. On September 8, 2010, the matter was adjourned again until October 28, 2010.

On October 28, 2010, the People reiterated their concern over Mr. Watters's failure to respond to their motions. The case was then adjourned until December 17, 2010.

By letter to the People dated November 5, 2010, Mr. Watters claimed he was improperly served in that the motions were mailed to an incorrect address and that the courtesy copies provided to him on September 7, 2010, failed to cure such defective service. He further claimed defective service because the People's motions were dated June 11, 2010, and had a return date of June 14, 2010.

On December 17, 2010, the People, having received no response, sought a default decision on their motions to compel. The court declined to do so and adjourned the matter until January 14, 2011.

On January 14, 2011, Mr. Watters had still not responded. The court then directed him to do so and adjourned the matters until February 28, 2011.

On February 17, 2011, counsel finally filed an affirmation opposing the People's motions to compel. Then, on March 21, 2011, Mr. Watters filed a motion to terminate prosecution pursuant to CPL 180.85 on behalf of all three defendants. The People filed their opposition to it on May 10, 2011.

A motion to terminate a prosecution pursuant to this section may only be made where the count or counts of the felony complaint have not been presented to a grand jury or otherwise disposed of in accordance with this chapter. Such motion shall be filed in writing with the local criminal court or superior court in which the felony complaint is pending not earlier than twelve months following the date of arraignment on such felony complaint. Upon the filing of such motion, the court shall fix a return date and provide the parties with at least thirty days' written notice of the motion and return date.

Since 2004, when CPL 180.85 was enacted, there has been a dearth of interpretative analysis on it. In fact, the most instructive source to date is McKinney's Practice Commentary, which explains that it "partially closes a technical gap in criminal procedure exposed by the opinion in Morgenthau v. Roberts [citation omitted]" (Preiser, 2007 Practice Commentary, [*3]McKinney's Cons Laws of NY, Book 11A, CPL 180.85). Essentially, the basic problem was that after a defendant's arraignment on a felony complaint in a local criminal court, the papers were transferred to the superior court, divesting the local criminal court of jurisdictional authority. Consequently, the matter would remain in limbo until the People presented the case to a grand jury, often well beyond the six month speedy trial requirement for the People's announcement of readiness. Because the superior court had no statutory or supervisory authority to dismiss the felony complaint (see Morgenthau v Roberts, 65 NY2d 749, 751-752 [1985]), the charge(s) remained in suspension, burdening defendant with the impediment of a pending felony charge (see Preiser, supra).

As indicated above, subdivision two permits a defendant to move for an order to terminate the prosecution of a felony charge ^[FN1] after it has been pending for at least one year subsequent to arraignment without having been presented to a grand jury. Upon receipt of the motion, the court must set a return date. If neither party objects by the return date, the court will automatically enter an order terminating the prosecution (CPL 180.85[3]).^[FN2] If, however, the People file a notice of opposition, the court may "either deny the motion outright or defer disposition of the motion for forty-five days" (see CPL 180.85[4]).^[FN3]

Here, the People commenced their prosecution by filing the above-referenced felony complaints on March, 20, 2010, the date upon which the defendants were arraigned. Twelve months and one day later, on March 21, 2011, Mr. Watters filed his CPL 180.85 motion. No grand jury action was taken by the People during this period. On May 10, 2011, the People filed an affirmation opposing counsel's motion. On May 11, 2011, Justice Gonzalez, presiding in Part A, deemed defendants' motion submitted, adjourned the matter until June 28, 2011, and referred them to this court for disposition.

Since the People have objected to defendants' motion, this court could either deny defendants' motion outright or defer decision for forty-five days. In their opposing affirmation, the People explain that the non-presentment of the felony charges to a grand jury is based on their desire to perform DNA testing before doing so. To that end, on June 14, 2010, the People filed and served motions seeking orders compelling defendants to provide a saliva sample. Seven months then passed before counsel filed a response opposing the issuance of such an [*4]order, which he did on February 17, 2011, only after having been directed to do so by the court. While not specifically stated, this court presumes that such delay is attributable to Mr. Watters's belief he was exempt from responding due to his claim of improper service. Thus, before determining whether to deny defendants' CPL 180.85 motion outright or defer it for forty-five days, during which the People could present the felony charges to a grand jury, this court must address counsel's improper service claim.^[FN4]

This court notes at the outset that the CPL does not provide general rules governing service of motion papers. Consequently, courts have determined that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which do address the issue should be applied in a criminal action (see e.g., People v Davis, 169 Misc 2d 977 [Co Ct West Co 1996]; People v Radtke, 153 Misc 2d 554 [S Ct Qns Co 1992]; People v Cortez, 149 Misc 2d 886 [Cr Ct Kings Co 1990]).^[FN5]

Regarding service of papers, then, CPLR 2103(b)(2) provides that service of papers may be made upon mailing to the opposing party's attorney and that 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 quite clearly discharged their service of papers obligation. The affidavits of service accompanying the People's motions indicate that on June 14, 2010, the affiant

served a true and accurate copy of a MOTION TO COMPEL upon

by enclosing the same in a securely sealed post-paid wrapper addressed as follows:

286 Madison Avenue, Ste. 1800

New York, NY 10017

and depositing same in the post office box regularly maintained by the United States Government located near 198 East 161st Street, Bronx, New York, addressed to him at the above number that being the address given by him in the last papers served by him in the within proceedings.^[FN6]

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 Mr. Watters's claim, 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, assuming Mr. Watters did not in fact receive the District Attorney's motions to compel a saliva sample, service was nevertheless properly effected. Moreover, as of September 7, 2010, Mr. Watters was provided with a courtesy copy of the motions and confirmed that the address to which they were sent was indeed accurate. From that point, counsel's failure to respond, presumptively under the false notion that he was not obligated to do so, was improper as a matter of law.

That said, it appears to this court that at some point Mr. Watters was well aware the District Attorney intended to perform DNA tests before presenting the felony counts to a grand jury. Refusing to respond until ordered to do so, coupled with filing the CPL 180.85 motion on the first day he was statutorily eligible to do so, certainly creates the inference that he intended to delay resolution of the motions to compel believing the felony charges would remain unpresented. Of course, if Mr. Watters had never received the District Attorney's motions, an adjournment for him to respond would be appropriate. But even if Mr. Watters concluded, albeit incorrectly, that he had not been properly served, his failure to respond for nearly five months after having been put on notice of the motions is indefensible. To then accuse the District Attorney of failing to prosecute because of it is inexcusable. It is one thing to exploit circumstances for the defendants' benefit; it is an entirely separate matter to disingenuously exacerbate those circumstances in an attempt to set a trap. Defendants' motion is therefore summarily denied.

As indicated above, the District Attorney alleges that defendants, while acting together on March 18, 2010, at approximately 11:40 p.m., possessed a defaced .38 caliber revolver, a 12 [*6]gauge sawed-off shotgun, and four live 12 gauge rounds. DNA analysis performed on a swab taken from the shotgun by the Forensic Biology Unit at the New York City Office of the Chief Medical Examiner ("OCME") revealed the presence of a DNA mixture. Because DNA mixtures are not CODIS ^[FN7] eligible, it cannot be uploaded to the New York State DNA database. The deduced DNA profile, however, is 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 the defendants is necessary to do so.

Counsel claims that the District Attorney's motions should be denied because the taking of a saliva sample is unnecessary. He argues that

the prosecution believed it had all the evidence necessary to establish probable cause to believe the defendants possessed the weapons and ammunition found inside and outside the apartment. There was no need for further investigation to obtain an indictment in the case or to file the necessary ballistics reports to pursue the case as a misdemeanor. It would be disingenuous for the prosecution to imply that test results would affect their decision in any way about whether or not to indict the defendants . . . [because] [a]n indictment would issue regardless of the results of those tests."^[FN8]

It appears Mr. Watters would have this court believe that the District Attorney is obligated to present felony charges to a grand jury immediately upon acquiring the minimum quantity of evidence to establish probable cause. Notwithstanding that he fails to provide even a scintilla of authority remotely suggesting this, such a proposition is preposterous. It is well known 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]). And considering the factual allegations set forth by the People, it would be improvident to deny the District Attorney an opportunity to establish whether one of the DNA profiles obtained from these items is consistent with those of the defendants.

Therefore, the Court concludes that there is probable cause 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 (In Re Abe A, 56 NY2d 288, 299; People v Trocchio, 107 Misc 2d 610).

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 27, 2011

________________________________Richard Lee Price, J.S.C.