Criminal Court of the City of New York, Bronx County, January 18, 2023

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

Bronx Defenders (Mia Cruz-Worthy of counsel) for defendant.

The People have filed a combined motion for orders as follows: (1) under docket CR-016190-22BX, to compel a DNA sample from defendant's saliva via a buccal swab pursuant to CPL 245.40 (1) (e), for the purpose of DNA analysis and comparison with expected DNA evidence gleaned from clothing provided by the complainant; and (2) under docket CR-008630-22BX, granting leave to reargue and/or renew a similar motion which was denied by a prior judge. Defendant has opposed these motions and has cross-moved for a protective order, in the event that the People's motions are granted, limiting or preventing the upload or use of any DNA sample taken to any other database or for any other purpose. In determination of the instant motions, the court has reviewed all papers filed,{**78 Misc 3d at 380} the contents of the court file and all proceedings heretofore had herein. As set forth below, the court denies without prejudice to renew the People's motion to compel a DNA sample via buccal swab in docket CR-016190-22BX; grants the People's motion for reconsideration of the prior court's denial of such motion under docket CR-008630-22BX; orders defendant to submit to a buccal swab for the purpose of providing a DNA sample under docket CR-008630-22BX; and denies defendant's request for a protective order under both dockets.

On or about February 25, 2022, a then 13-year-old girl riding the Bx-12 bus felt an adult male touching and rubbing his testicles against her knee, grunting and moaning, after which she felt that the knee of her jeans was wet and sticky with a whitish substance. That same day, she filed a complaint with police. The complainant's jeans were sent to the Forensic Biology lab of the NYC OCME (New York City Office of Chief Medical Examiner) for testing, and a DNA profile was obtained. On May 12, 2022, DCJS (New York State Division of Criminal Justice Services) notified the NYPD (New York City Police Department) that the DNA profile obtained from the complainant's jeans belonged to defendant herein, whose DNA had been uploaded to the DNA offender database (SDIS, or CODIS) because of his 2020 felony conviction. Defendant was arrested and charged with forcible touching and related offenses under docket CR-008630-22BX (the February incident). A CPL 710.30 notice was filed indicating that defendant had stated, "I RIDE THE BX12 BUS, DAMN HOW AM I SUPPOSED TO BEAT THAT IF MY DNA IS ON HER."

On June 28, 2022, the People filed a motion to compel a DNA sample from defendant (the June 28 motion).^[FN1] The People argued that the facts met the statutory burden as required in CPL 245.40 (1) (e), and that even though defendant's DNA profile already existed in CODIS, a new sample was required as the "best practice" to ensure the integrity of the evidence in the case, and a fair and just prosecution. Defendant opposed the motion and sought a protective order on July 13, 2022, and the People filed a reply affirmation including attached exhibits{**78 Misc 3d at 381} on July 25, 2022. On August 15, 2022, the assigned judge denied the motion, holding that because an existing "known exemplar" of defendant's DNA was already in CODIS, not only was a buccal swab not the least intrusive means of obtaining a DNA sample, but that the People had failed to meet their burden under Matter of Abe A. (56 NY2d 288 [1982]) that a new sample was "necessary and not duplicative or cumulative." (People v Fortuna, 76 Misc 3d 842, 844 [Crim Ct, Bronx County 2022] [internal quotation marks omitted].) The court stated that it found unpersuasive the People's argument that it was "unfair" to use the existing CODIS sample to compare to the evidence on the complainant's jeans. (Id. at 845.)

On August 2, 2022, a second complainant (CW #2) was seated aboard the Bx-12 bus when she felt a poking and rubbing on her leg by a man standing directly over her and very close, despite sufficient standing room. As he walked away toward the front of the bus, she observed his erect penis poking out of a hole in his pants. She immediately reported this to the bus driver and passing police officers, whereupon the male fled. Though she did not identify defendant in a photo array, she confirmed the incident after viewing it on surveillance video obtained by the police. Her clothing was turned over to the Forensic Biology lab of the NYC OCME for DNA testing, but as of this writing, no lab report has been received. On August 9, 2022, the detective assigned to investigate the February incident identified the male in the August 2 surveillance video as defendant. On September 13, 2022, defendant was arrested and charged with forcible touching and related charges under docket CR-016190-22BX (the August incident). The CPL 710.30 notice filed under this docket indicates that among other statements he made, defendant identified himself in the August 2 surveillance video previously viewed by CW #2.

On September 14, 2022, the People filed a motion to reargue and renew the previous court's denial of their motion to compel a DNA sample (the September 14 motion). The motion, with supporting exhibits attached, stated that it was grounded on new facts contained therein. The alleged new facts stated by the People were that they do not have access to the actual DNA profiles stored in CODIS by which to compare the unknown sample extracted from the complainant's clothing; and that DCJS intends a match from CODIS samples to be merely an investigative lead, and not courtroom evidence, strongly recommending that a confirmatory DNA sample is obtained{**78 Misc 3d at 382} from the accused. Further, the prosecutor's affirmation included a thorough recitation of the DNA database legislation's processes, rules, protections, and procedures, which they affirmed were established to ensure the scientific integrity of the CODIS profiles. On October 4, 2022, the motion was denied by the judge on the grounds that it was improper, whether construed as a motion to reargue (because it contained new facts not [*3]contained in the original motion papers) or as a motion to renew (because the People failed to justify the omission of these alleged new facts from their original motion).

On November 1, 2022, with leave of court, the People filed a motion to compel a DNA sample for the August incident under docket CR-016190-22BX (the November 1 motion), and a companion motion for this court to reconsider the denial of the similar motion made under docket CR-008630-22BX.

Although a motion to reargue must be made to the judge who signed the order, if he or she is for any reason unable to hear it, the motion may be heard by the trial court. (CPLR 2221 [a].) In this case, the judge who denied the motion to compel and the September 14 motion to renew or reargue is no longer sitting in Bronx County Criminal Court and thus is unavailable to hear the November 1 motion. (C & N Camera & Elecs. v Public Serv. Mut. Ins. Co., 210 AD2d 132, 133 [1st Dept 1994], cited in People v Davis, 27 Misc 3d 1226[A], 2010 NY Slip Op 50919[U] [Sup Ct, Bronx County 2010].) As the matter is now pending, and will be tried, before this court, this court is the appropriate one to hear and determine this motion to reargue. (Billings v Berkshire Mut. Ins. Co., 133 AD2d 919, 919-920 [3d Dept 1987].)

A motion to reargue may be granted if it is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." (CPLR 2221 [d] [2]; People v Davis, 27 Misc 3d 1226[A], 2010 NY Slip Op 50919[U] [Sup Ct, Bronx County 2010] [citations omitted].) In this case, upon review of all papers and exhibits filed in both captioned cases, the contents of each court file, and in view of the effect the decision on this motion would have on the totality of the evidence to be presented in the case, this court finds that the prior court overlooked relevant matters of fact and law in denying the People's motion to compel a DNA sample. Thus, for the reasons set forth below, this court finds it a prudent exercise of{**78 Misc 3d at 383} discretion to grant the People's motion to reargue the June 28 motion to compel a DNA sample. (See People v Oceanside Institutional Indus., Inc., 15 Misc 3d 22, 25 [App Term, 2d Dept, 9th & 10th Jud Dists 2007].)

[1] In denying the original motion to compel a DNA sample, the judge addressed not the CPL 245.40 (1) (e) statutory factors, and not the overarching purpose of obtaining the evidence, but only a single aspect for consideration prescribed in Abe A.—"the circumstances of the particular case." (People v Fortuna, 76 Misc 3d 842, 843 [Crim Ct, Bronx County 2022], citing Matter of Abe A., 56 NY2d at 298.) The judge sidestepped Abe A.'s requirement for courts to consider the value of the evidence and its necessity to the People's case and only examined the existence of an alternative means of obtaining the evidence.^[FN2] Solely on the basis that defendant's DNA profile already existed in the statewide DNA data bank, the court mistakenly deemed the People's application as one for "a second DNA sample" and, relying on several local trial court cases, ruled that the People had failed to prove the necessity for the alleged additional sample. (Fortuna at 844.)

The facts of the cases relied upon by the prior judge to deny the People's motion to compel a DNA sample are inapposite to those at bar. In each case, the prosecution already [*4]possessed a DNA profile of the suspect extracted from an item of physical evidence which the suspect had been observed to abandon. Further, full DNA profiles had been extracted from crime scene evidence. In each case, an OCME lab report had been filed certifying that the crime scene DNA profile matched the DNA profile from the defendant's known (abandoned) exemplar—respectively, a discarded cigarette butt, cup of water, and bottle of water, and a voluntarily provided buccal swab.^[FN3] (People v Webber, Sup Ct, Bronx County, 2021, Carter, J., ind. 750-2020 [dropped iPod case, cup of water used while in custody]; People v Topping, Sup Ct, Bronx County, 2020, Marcus, J., ind. 249-2020 [DNA from water bottle used while in custody matched{**78 Misc 3d at 384} DNA on murder weapon]; People v Ditullio, Crim Ct, NY County, Feb. 3, 2020, Rosenthal, J., CR-0101510-20NY [DNA on sneakers from crime scene matched DNA from cigarette defendant smoked while in custody]; People v Gonzalez, Crim Ct, NY County, Oct. 30, 2018, Badamo, J., 2018NY029511; People v Carrion, Sup Ct, Bronx County, 2018, Newbauer, J., ind. 1162-2018 [DNA sample from buccal swab voluntarily provided by defendant in custody matched DNA on gun].) The existence in these cases of "known exemplars" containing DNA which matched crime scene DNA evidence renders them distinguishable from the case at bar. Though the court held that the People should use the DNA profile from the prior conviction, this edict is problematic in several ways.

First, the People here are not in possession of defendant's actual DNA profile from the state database. The DNAHits report from DCJS is attached to the People's June 28 motion as exhibit 8 and shows only a notification to the police that a stored profile with defendant's name matches the unknown crime scene sample, not a full DNA profile for comparison to crime scene evidence. The People's inability to access the actual DNA profile from the SDIS/CODIS database was even acknowledged by defendant in his own cross-motion for a protective order: "As relevant here, the OCME cannot download individual suspects' profiles from CODIS or the State Index, or upload suspect's DNA profiles to it." (Defendant's cross-mot filed July 13, 2022, at 5 ¶ 7.) Despite the presence of exhibit 8's documentary proof, and statements from both parties that OCME cannot access defendant's DNA profile for comparison to the evidence in this case, the prior court denied the People's motion on exactly that basis.

Second, the People's correct assertion in their original motion papers that the need for a DNA sample from defendant will "ensure the community's and defendant's interests in a fair and just prosecution" (People's reply in mot to compel a DNA sample, July 25, 2022 at 4) alerted the court to the constitutional barriers inherent in using a prior forensic report at trial. The People have the sole burden to prove beyond a reasonable doubt the element of defendant's identity as the perpetrator of the charged offenses, and DNA evidence is indisputably the most powerful forensic evidence in determining either the guilt or the innocence of an accused. (People v John, 27 NY3d 294, 303 [2016].) It is well-settled that "the comparative reliability of an analyst's testimonial report drawn{**78 Misc 3d at 385} from machine-produced data does not overcome the Sixth Amendment bar . . . [T]he Confrontation Clause requires that even reliable evidence be subject to cross-examination." (Id. at 304 [internal quotation marks omitted], citing Bullcoming v New Mexico, 564 US 647, 661 [2011], and Melendez-Diaz v Massachusetts, 557 US 305, 309 [2009]; see also People v Goldstein, 6 NY3d 119 [2005].) Thus, assuming arguendo that the People had access to the conviction profile and attempted to introduce it in evidence, it would surely be challenged on Confrontation Clause grounds. Classifying such evidence as available to the People directly flies in the face of the constitutional barriers which would inevitably preclude its use.

Third, this court finds that the People's second motion to renew and reargue was properly based on the new information of the August incident charged against defendant, which had not existed at the time of the initial motion. The filing of charges in the August incident represents new facts which could not have been offered in the original motion even with due diligence and which this court finds should properly "change the prior determination." (CPLR 2221 [e] [2].)

Finally, whereas the prior court found the People's stated desire for a fair trial unavailing or persuasive, this court holds that a generous policy of encouraging evidence gathering and disclosure "fully aligns with our recognized interests in finding the truth and rejecting efforts at gaming the criminal justice system that undermine the truth-finding process." (People v Giuca, 33 NY3d 462, 487 [2019, Rivera, J., dissenting], citing Strickler v Greene, 527 US 263 [1999].) For the above stated reasons, the court will examine the merits of the June 28 application below.

[2] The Court of Appeals guidelines, now codified in CPL 245.40 (1) (e), permit a court to order a defendant to provide non-testimonial evidence upon the filing of an accusatory instrument "subject to constitutional limitations," where the People establish: probable cause to believe defendant has committed the crime; a clear indication that relevant material evidence will be found; and that the method used to secure it is safe and reliable (see Matter of Abe A., 56 NY2d 288, 291 [1982]).

The court finds that the People's original motion papers and exhibits had set forth sufficient facts to meet the three-pronged{**78 Misc 3d at 386} statutory test for a compelled DNA sample in the February incident under CPL 245.40 (1). First, probable cause is demonstrated by the facts of the incident as described by the 13-year-old complainant, corroborated in part by the physical evidence extracted from the knee of the jeans she said she wore that day. Second, "[g]iven that 'the utility of DNA identification in the criminal justice system is already undisputed', defendant could not mount a credible claim that the DNA evidence was unlikely to provide material evidence." (People v Goldman, 35 NY3d 582, 594 [2020], quoting Maryland v King, 569 US 435, 442 [2013].) Here, a clear indication that relevant, material evidence will be found is provided by the particular facts of the alleged sexual incident here, which are corroborated by the complainant's description of the substance she observed on the knee of her jeans and the OCME lab report which indicates the presence of DNA from male Donor A on that location. (See e.g. People v Flores, 61 Misc 3d 1219[A], 2018 NY Slip Op 51611[U], *10 [Crim Ct, NY County 2018].) Conversely, absence of such evidence at trial, the consequence of the original court's ruling, would cause speculation by the jury about why defendant's DNA was not compared to the DNA observed on the jeans. (People v Hernandez, 62 Misc 3d 983 [Crim Ct, Bronx County 2018].)

Finally, it is well-settled that a buccal swab from defendant's cheek "is undeniably safe, consists of a minimal intrusion and involves no discomfort," and is "now a simple and common [*5]method for securing" a defendant's DNA sample. (Goldman, 35 NY3d at 594, citing Maryland v King, 569 US 435 [2013]; People v Fisher, 71 Misc 3d 1051, 1056 [Sup Ct, Bronx County 2021].) No less-intrusive alternative means for obtaining such evidence has been approved. (See e.g. Matter of M.R., 63 Misc 3d 916 [Orange County Ct 2019]; People v White, 60 Misc 3d 304, 305 [Sup Ct, Bronx County 2018]; People v Velez, 54 Misc 3d 1208[A], 2017 NY Slip Op 50049[U] [Sup Ct, Bronx County 2017]; People v Ellington, 36 Misc 3d 1207[A], 2012 NY Slip Op 51219[U],*5 [Sup Ct, Bronx County 2012].)

On balance, there can be no argument that the charged crimes are serious ones, and that the value of identifying or excluding defendant as "Male Donor A" is important for basic fairness and the court's duty to ensure that trials are an undistorted search for truth informed by all relevant, material, admissible evidence. These important concerns outweigh defendant's right of privacy, especially in relation to the minimally{**78 Misc 3d at 387} intrusive nature of the buccal swab. Upon reconsideration of the People's June 28 motion, the court holds that the People have sufficiently met their burden under CPL 245.40 (1) (e) and Abe A. to compel a saliva sample from defendant via buccal swab, for DNA testing and comparison with the complainant's clothing. The court grants the motion and orders defendant to provide a DNA sample via buccal swab.

As of November 1, 2022, when the People filed the instant motion, the complainant's clothing from the August incident had been submitted for DNA testing but no results had been reported. The court finds that the People have not met their burden to compel an additional DNA sample for the August incident: there is not yet a clear indication that it would yield relevant, material evidence in that case, as there is not yet an unknown DNA profile on the submitted clothing from the August incident to which defendant's DNA could be compared for use as evidence at trial. Thus, the application to compel a DNA sample under this docket is denied without prejudice to renew it later if CW #2's clothing is tested and yields DNA sufficient for profiling. However, the court finds that at this stage, a second buccal swab order is unnecessary, as once evidence is lawfully obtained under docket CR-008630-22BX, law enforcement is permitted to perform additional scientific testing and use the evidence for further investigative leads; defendant has no Fourth Amendment privacy interest in the buccal swab sample once it is taken, and the Executive Law permits the OCME to compare the profile harvested from the swab ordered under docket CR-008630-22BX to other crime scene evidence in related cases, without further order of a court. (Executive Law § 995 [2]; Maryland v King, 569 US at 462; People v Rogers, 77 Misc 3d 182, 193 [Sup Ct, Erie County 2022].)

In view of the foregoing, the court finds that defendant's motions for a protective order are moot. Defendant's DNA is already stored in CODIS because of his felony conviction, so prohibiting this sample from being uploaded to the DNA data bank will have no effect. Further, the OCME is expressly permitted to compare defendant's known DNA profile to other crime scene evidence, which does not require any "uploading" {**78 Misc 3d at 388}or any action that creates a danger of public exposure. As above, once a DNA sample is lawfully taken, defendants retain no Fourth Amendment privacy interest therein. Defendant's motions for a protective order are denied as moot.

The People's June 28, 2022 application under docket CR-008630-22BX for an order [*6]compelling defendant to supply a DNA sample by buccal swab is hereby reconsidered and granted. The People's motion to compel a DNA sample via buccal swab under docket CR-016190-22BX is denied without prejudice to renew. Defendant's motions for a protective order under both captioned dockets are denied. An accompanying order will be issued.