Criminal Court of the City of New York, Bronx County, August 15, 2022

Darcel D. Clark, District Attorney (Rebecca Farrar of counsel), for plaintiff.

The Legal Aid Society (Mia Cruz-Worthy of counsel) for defendant.

Mr. Fortuna's DNA profile is in the State DNA Index (SDIS). In 2019, the State took that DNA sample from him as a mandatory part of a criminal conviction. Earlier this year, the Office of the Chief Medical Examiner (OCME) matched that SDIS profile to a DNA profile developed from evidence in this case. Police subsequently arrested Mr. Fortuna, the People charged him with misdemeanors, and he was arraigned in Bronx Criminal Court.

The People have now moved for a court order compelling Mr. Fortuna to provide a second saliva and buccal sample to develop his DNA profile again. The defense opposes and cross-moves for a protective order. The People have also filed a reply supporting their motion and opposing any protective order.

Constitutional law demands special analysis when the People seek a court order compelling evidence from a person's body. (See generally Matter of Abe A., 56 NY2d 288 [1982] [establishing the relevant analysis]; People v Heyward, 71 Misc 3d 470 [Crim Ct, Bronx County 2021] [providing a thorough background of the doctrine].)

Specifically, a court cannot issue such an order unless the People establish that: (1) there is "probable cause" to believe the accused person committed the crime charged; (2) there is a "clear indication" that relevant material evidence will be found; and (3) the method used to secure the evidence is safe and reliable. (Abe A., 56 NY2d at 291.) Once those necessary factors are met, the court then "must give careful consideration to the circumstances of the particular case." (Id. at 298.) Those "circumstances" should include "not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence." (Id.) "The court must also consider the prosecution's 'need to intrude' into the person's body," which requires "a 'compelling need' for that evidence in light of all the circumstances." (Heyward, 71 Misc 3d at 475, quoting Winston v Lee, 470 US 753, 765 [1985].){**76 Misc 3d at 844} [*2]

There are several recent decisions regarding applications for saliva and buccal orders when a DNA sample for the accused person already exists. (People v Roberts, 70 Misc 3d 1221[A], 2021 NY Slip Op 50170[U] [Crim Ct, NY County 2021, Weiner, J.]; People v Webber, Sup Ct, Bronx County, 2021, Carter, J., ind. No. 750-2020; People v Topping, Sup Ct, Bronx County, 2020, Marcus, J., ind. No. 249-2020; People v Ditullio, Crim Ct, NY County, Feb. 3, 2020, Rosenthal, J., CR-0101510-20NY; People v Gonzalez, Crim Ct, NY County, Oct. 30, 2018, Badamo, J., 2018NY029511; People v Carrion, Sup Ct, Bronx County, 2018, Newbauer, J., ind. No. 1162-2018.)

Applying Abe A., these cases hold that when a known DNA exemplar for the accused person already exists, the People must demonstrate why obtaining a second sample would be "necessary" and not "duplicative and cumulative." (Roberts, 2021 NY Slip Op 50170[U], *2; Gonzalez, 2018NY029511, slip op at 3 [same]; see also Webber, ind. No. 750-2020, slip op at 3-4 ["(The People) have not established the necessity of taking another swab from the defendant"]; Carrion, ind. No. 1162-2018, slip op at 4 ["The People did not establish a need to obtain a second DNA sample from the defendant"]; Ditullio, CR-0101510-20NY, slip op at 5 ["The People have not, however, provided any reason why an additional sample . . . is important to the investigation or . . . would be anything but duplicative of the profile (already) developed"]; Topping, ind. No. 249-2020, slip op at 3 ["(The People) have not established the necessity of taking another swab from the defendant for purposes of DNA testing and analysis"].)

In determining whether the People have met this standard, courts often look to whether the OCME believes that a second sample is necessary. (E.g. Carrion, ind. No. 1162-2018, slip op at 4 ["(N)owhere . . . does the OCME indicate that further analysis is necessary or warranted"]; Topping, ind. No. 249-2020, slip op at 3 ["Neither of (the OCME) laboratory reports . . . indicate that additional testing is needed"].)

In this case, despite the existing SDIS profile, the People argue that "there is no less intrusive means of obtaining a comparison sample." (Prosecution mot at 11.) They assert that a new sample is necessary "to ensure the integrity and fairness of the instant criminal proceeding." (Prosecution reply at 4.) They claim that using the SDIS profile would threaten the proceeding's "integrity and fairness" because it is from "more than a few years ago" and the witnesses to that sample are {**76 Misc 3d at 845}"unknown." (Id.) They also assert that requesting a duplicative sample is "common practice." (Prosecution mot at 11; prosecution reply at 4.) The People distinguish Topping and Webber as involving surreptitious samples taken by police during the arrests "within those instant cases." (See prosecution mot at 11.) The court takes each point in turn.

First, there is plainly a less intrusive means of obtaining a comparison in this case, as the SDIS profile already exists. The People's claim that using the SDIS profile would threaten the "integrity and fairness" of this criminal proceeding is unsupported. The People provide no coherent reason why there is anything wrong with the integrity of the SDIS profile. (See prosecution mot at 5.) Nowhere in the People's exhibits does the OCME indicate that the profile is too old to use. (See prosecution mot, exhibit 4.) Nor is it likely that it could be, as a person's forensic DNA profile does not change during their life—let alone in three years. (See Thomas M. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 ALR4th 313, § 2 [b].) Further, the People do not explain why a profile developed in 2019 is unfair to use. The People do not explain what they mean that the witnesses to the SDIS sample are "unknown." (See prosecution reply at 4.) Surely, those witnesses are not unknowable. Of course, in some cases, witnesses may be unavailable or unascertainable despite a diligent search. Here, however, the People have not made any such claims.

Second, it is not constitutionally relevant that requesting a duplicative DNA sample is [*3]"common practice." (See id.; prosecution mot at 11.) In any event, the above cited cases illustrate that granting such orders is not common. (Roberts, 2021 NY Slip Op 50170[U]; Webber, ind. No. 750-2020; Topping, ind. No. 249-2020; Ditullio, CR-0101510-20NY; Gonzalez, 2018NY029511; Carrion, ind. No. 1162-2018.)

Finally, the court rejects the People's attempts to distinguish Topping and Webber as turning on the police having obtained those initial samples during the arrests within those cases. (See prosecution mot at 11; prosecution reply at 4.) Contrary to the People's claim, neither case turned on the fact that the initial sample was taken "within" the case. (See id.) Further, in those cases, the samples were obtained from trash the accused person discarded at a police precinct during the arrest. (See Topping, ind. No. 249-2020, slip op at 1-2 [involving an "abandon(ed)" "bottle of water . . . taken by the NYPD" at the {**76 Misc 3d at 846}police precinct]; Webber, ind. No. 750-2020, slip op at 2 [involving an "abandoned cup of water" in the police precinct].) A sample like the one here, taken pursuant to standardized, mandatory post-conviction procedures, is likely of greater integrity—not lesser—than a sample taken from discarded trash in the uncontrolled environment of an arrest in a police precinct.

The People have not established why obtaining a second DNA sample is necessary, nor have they established why it would not be duplicative or cumulative. The People's motion is denied.

The defense's cross motion is moot.