Criminal Court of the City of New York, Bronx County, July 2, 2020

James E. Johnson, Corporation Counsel, Special Victims Unit, Family Court Division, Bronx (Joseph Pepe and Shannon Ashford of counsel), for presentment agency.

The Legal Aid Society, Bronx (Heather P. Squatriglia and Jamien Weddle of counsel), for Luis T.

New York City Police Department Detective Ronny Morel, of the Bronx Child Abuse Squad, has applied to this court for a warrant to seize DNA from Luis T., a 13-year-old juvenile he has arrested for the crime of criminal sexual act in the first degree (Penal Law § 130.50 [3]) and related charges. Detective Morel received a complaint from the mother of Luis T.'s four-year-old cousin, alleging that Luis T. "put his penis in her buttocks" at a specified location in Bronx County. (Morel aff ¶ 3.) The four year old's parents immediately brought her to the hospital where a sexual offense evidence collection kit was prepared, which included various swabs taken from her clothes and body. Those swabs have been analyzed by the Office of Chief Medical Examiner's Department of Forensic Biology (OCME), which reports that they have "detected male DNA on the underwear, perianal swabs, and anal swabs submitted." (Morel aff ¶ 6.) Additionally, on the complainant's underwear, they discovered a mixture of DNA from three contributors that is "suitable for comparison." (Morel aff ¶ 6.) Detective Morel contends that "taking a DNA sample from [Luis T.] and comparing{**68 Misc 3d at 933} it to the evidence found during [his] investigation will produce evidence that tends to demonstrate" that the defendant committed a sex offense. (Morel aff ¶ 7.)

Detective Morel is being assisted in this matter by two Assistant Corporation Counsels from the New York City Law Department, which serves as the presentment agency in Family Court. (See Family Ct Act § 254 [a].) The presentment agency has filed an affirmation in support of issuance of search warrant (hereinafter affirmation in support), in which they contend that a delinquency petition cannot be filed in this matter without obtaining Luis T.'s DNA sample. (Affirmation in support at 4.) The presentment agency asserts that this court has the authority to issue such a warrant pursuant to Criminal Procedure Law former § 240.40 (2) (now § 245.40 [1], [2]), Criminal Procedure Law §§ 690.05 (1) and 690.10 (4), and Matter of Abe A. (56 NY2d 288 [1982]). They further aver, applying the test articulated in Abe A., that the application is supported by probable cause; that there is a clear indication that relevant and material evidence will be found; and that the method proposed for recovering the evidence is "safe, reliable, and minimally intrusive." (Affirmation in support at 13.) In response, Luis T.'s attorney denies that the "unsworn, hearsay statement of [a] four-year-old child who was never questioned about her ability to understand the nature of an oath" is sufficient to establish probable cause. (Affirmation in opp of issuance of a search warrant [hereinafter affirmation in opp] at 4.) Additionally, Luis T.'s attorney maintains that even if a comparison is made, the comparison will not yield relevant evidence, as "skin cells transfer easily and innocently between people who are in close proximity." (Affirmation in opp at 7.) Finally, his attorney argues that this court does not have jurisdiction to issue such an order, as "the Family Court has exclusive original jurisdiction over juvenile delinquency proceedings." (Affirmation in opp at 8.) The Law Department has filed a reply affirmation, and Luis T. has filed a surreply. Both sides appeared in court for oral argument on this matter.

In Abe A., the Court of Appeals held that the police may obtain a court order for a suspect's blood sample even if the subject has not yet been charged with a crime. In order to obtain such an order, the People must establish:{**68 Misc 3d at 934}

"(1) probable cause to believe the suspect 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. In addition, 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." (56 NY2d at 291.)

The Abe A. Court found its authority under Criminal Procedure Law § 690.05, which authorizes "a search . . . of a designated person" in order to seize property which is "evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense." (56 NY2d at 294, citing CPL 690.10 [4].) The Court found that, in essence, the order was a search warrant: "Nomenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is." (Id. [citations omitted].)

[1] The Court of Appeals' analysis focused on the evidence sought, rather than the status of any case or individual that may have been connected with that evidence. Indeed, in Abe A., a criminal case could not successfully have been brought without the evidence first being recovered and analyzed. A similar focus on the property sought, rather than from whom, is found throughout CPL article 690. In addition to "designated persons," CPL 690.05 (2) and 690.15 (1) also authorize searches of "designated premises" and "designated vehicles." There are [*3]no limitations addressing the status of the person or entity that is the subject of the search or the owner of the premises or vehicle in question. That person or entity can be a defendant, a suspect, a victim or even a wholly uninvolved third party. (See e.g. Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 NY3d 231 [2017].) "The test, quite simply, is whether the affidavits which form the basis for issuance of the search warrant allege that an offense was committed within 'the jurisdictional purview of the issuing court.' " (People v Hickey, 40 NY2d 761, 763 [1976], quoting People v Fishman, 40 NY2d 858 [1976].) In the instant matter, the affidavits allege the commission of the crime of criminal sexual act in the first degree (Penal Law § 130.50 [3]) in Bronx County.

{**68 Misc 3d at 935}Counsel for Luis T. would have the court interpret the provisions of Penal Law § 30.00, which define the defense of infancy, as stripping it of authority to issue search warrants where the subject of the warrant would not be subject to criminal prosecution. (Affirmation in opp at 14-16.) Had that been the legislature's intention, they could have stated it clearly. Instead, Penal Law § 25.00 (1), which defines the defense of infancy, discusses its application "at trial," rather than as a bar to the criminal courts' jurisdiction altogether. While the infancy defense would likely apply in this particular matter, CPL article 690 does not require the court to parse through possible suspects and defenses at this early stage. The focus is on the prompt recovery of evidence.

Luis T.'s attorney further argues that "authorizing a search warrant would subvert the legislative will and offend the purpose of the Family Court Act." (Affirmation in opp at 16.) Despite a thorough review of the history and purpose of article 3 of the Family Court Act in their opposition papers, they are not able to cite to any explicit authority for the proposition that there was an intentional effort to exclude juvenile suspects, or any minors whatsoever, from the search warrant provisions of the Criminal Procedure Law.

Certainly, the legislature did not object to the principle of requiring juveniles accused of delinquent acts to provide "samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto," since the Family Court Act specifically authorizes the submission of these materials. (Family Ct Act § 331.3 [2] [v].) The factual predicate required for such orders is identical to the tests from Abe A. and search warrants generally—probable or reasonable cause. (Compare Family Ct Act § 311.2 [2], with Abe A., 56 NY2d at 291, and CPL 690.10.) Probable and reasonable cause have the same meaning. (People v Maldonado, 86 NY2d 631 [1995].)

Beyond authorizing court orders for blood and other samples after the filing of a delinquency petition, the Family Court Act explicitly acknowledges the possibility of court orders for this type of evidence being issued prior to a petition being filed:

"This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of a petition consistent with such rights as the respondent may derive from this article, the{**68 Misc 3d at 936} constitution of this state or of the United States." (Family Ct Act § 331.3 [2].)

Such language is virtually identical to its counterpart in the Criminal Procedure Law, former section 240.40 (2) (now § 245.40 [2]), which was addressed in Abe A. (56 NY2d at 294 n 2.) In fact, at least one Family Court Judge has found that these provisions provide authority for the Family Court to order disclosure of non-testimonial evidence prior to the filing of a petition. (Matter of Daniel C., 15 Misc 3d 543 [Fam Ct, Queens County 2007, Hunt, J.].)

Moreover, the Court of Appeals has specifically referenced the possibility—and even a preference—for police officers using search warrants as an appropriate method for recovering evidence from juveniles. For example, in suppressing a gun recovered from a 13-year-old suspected runaway's bag, the Court noted that "the police may have simply detained the bag while they obtained a warrant to search it." (Matter of Marrhonda G., 81 NY2d 942, 945 [1993], citing Arkansas v Sanders, 442 US 753, 766 [1979]; see also Matter of Kwok T., 43 NY2d 213 [1977].)

Accordingly, the court finds that it has the authority to order the relief requested.

1. Probable Cause to Believe the Suspect Committed a Crime

Probable cause need not be based upon one factor but rather may be gleaned from the totality of circumstances presented. This collective consideration is essential because individual factors standing alone may be insufficient to support a finding of probable cause. (People v Bigelow, 66 NY2d 417 [1985].) Probable cause is established when it appears "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].)

Where "the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator," absent circumstances that materially impeach the allegation, probable cause is established. (People v Read, 74 AD3d 1245, 1246 [2d Dept 2010], citing People v Gonzalez, 138 AD2d 622 [2d Dept 1988].) Here, the victim is a four-year-old child. As the presentment agency concedes, she currently is not capable of giving sworn testimony. (See affirmation in support at 8; CPL 60.20.){**68 Misc 3d at 937}

In People v Hetrick (80 NY2d 344 [1992]), the Court of Appeals considered a search warrant application that was based on unsworn allegations from a nine-year-old child.^[FN1] The Court rejected the notion that where a child informant is the source for a search warrant application, the child must be shown to be competent to give sworn testimony at trial: "section 60.20 applies only to a witness actually testifying under oath in a criminal proceeding." (Id. at 350.) Instead, the Court pointed to the traditional analysis conducted using the Aguilar-Spinelli test, "i.e., if there is a reasonable showing that the informant was reliable and had a basis of knowledge for the statement." (Id. at 348, citing Aguilar v Texas, 378 US 108 [1964], and Spinelli v United States, 393 US 410 [1969].)

[2] Here, the four-year-old complainant provided her mother with a firsthand account of having been sexually assaulted promptly after she said it occurred. She gave further detail about her experience in a forensic interview conducted at the Bronx Child Advocacy Center a week later. (Morrell aff ¶ 4.) This establishes her basis of knowledge.

The prompt reporting of the incident lends credibility to the report, as does the mother's corroboration of the suspect's opportunity to have committed the act alleged. (See e.g. People v Cordero, 257 AD2d 372 [1st Dept 1999] [six-year-old complainant's prompt outcry, defendant's admission of exclusive opportunity and police recovery of cooking oil described by complainant provided sufficient corroboration to establish prima facie case]; People v Groff, 71 NY2d 101 [1987] [four-year-old complainant's account supported by evidence of her going into woods and returning crying, a change in her personality and redness in her vaginal area].) Forensic evidence further corroborates the complainant's account. Male DNA was detected on the underwear, perianal swabs and anal swabs. A mixture of DNA with three contributors, suitable for comparison, was found on her underwear.^[FN2] (See Groff at 110; People v Dunn, 149 AD2d 528 [2d [*4]Dept 1989] [unsworn testimony sufficiently corroborated by evidence of opportunity, vaginal rash and discharge, and complainant having the same two venereal diseases as defendant].) Under the totality of the circumstances presented in this case, the court finds that the{**68 Misc 3d at 938} corroboration provided establishes the report's reliability for purposes of this application. While counsel for Luis T. posits that there may be innocent explanations for his DNA in the complainant's underwear, "probable cause does not require proof beyond a reasonable doubt or the exclusion of every reasonable innocent explanation." (People v Lewis, 50 AD3d 595, 595 [1st Dept 2008]; see also People v Mercado, 68 NY2d 874 [1986], cert denied 479 US 1095 [1987].)

Probable cause has therefore been established.

2. A "Clear Indication" That Relevant, Material Evidence Will be Found

The complaining witness is currently unable to give sworn testimony and, given her young age, is unlikely to be able to do so for the foreseeable future. This application seeks a sample of the defendant's DNA to compare to the male DNA found on the complainant's underwear. DNA evidence, "consisting of unique genetic characteristics belonging to an individual, can provide strong evidence of a person's presence at and participation in a criminal act." (People v Wesley, 83 NY2d 417, 421 [1994].) The DNA evidence sought here plainly would serve as material corroboration.

3. The Method Used to Secure the Evidence Must be Safe and Reliable

The taking of an oral swab to obtain a DNA sample is minimally intrusive and has been accepted as a safe and reliable method of obtaining the necessary sample. (People v Addison, 51 Misc 3d 498 [Sup Ct, Bronx County 2016]; People v Ellington, 36 Misc 3d 1207[A], 2012 NY Slip Op 51219[U] [Sup Ct, Bronx County 2012].)

4. Abe A.'s Additional Balancing Test

Abe A. requires that the 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. (Matter of Abe A., 56 NY2d at 291.) In this case, the charge is undoubtedly very serious, a class B violent felony (Penal Law §§ 70.02 [1] [a]; 130.50 [3]) and a designated felony act (Family Ct Act § 301.2 [8]). The evidence could be critical to proving the prosecution's case, is unlikely to be secured through other means, and can be obtained in a minimally intrusive manner.

Finally, authorizing the search in this matter will substantially advance, rather than thwart, the objectives of article 3 of{**68 Misc 3d at 939} the Family Court Act—i.e., "the needs and best interests of the respondent as well as the need for protection of the community." (Family Ct Act § 301.1.) If Luis T. is excluded as a contributor, then the presentment agency has affirmed that no petition can be filed, and the matter with respect to him likely will be finished. On the other hand, if the evidence is inculpatory, then the case will be adjudicated. If a finding is made, Luis T. will receive appropriate supervision, treatment or confinement, if warranted. (See Family Ct Act § 352.1; Matter of Jermaine G., 38 AD3d 105 [2d Dept 2007].)

Accordingly, the application to issue the search warrant is granted.