Defendant, along with two co-defendants, is charged with criminal possession of narcotics in the third degree (PL § 220.16[1]), criminal possession of a loaded weapon in the second degree (PL § 265.03[1]) and related charges after the execution of a search warrant at his residence. Defendant has filed an omnibus motion seeking the following orders: inspecting the grand jury minutes and dismissing or reducing the counts of the indictment for legal insufficiency; dismissing the weapons possession charges as unconstitutional pursuant to New York State Rifle & Pistol Assn, Inc., v Bruen (597 US 1[2022]), and United States v Rahimi (602 US 680 [2024]); controverting the search warrant as lacking probable cause for its issuance, and its execution beyond the scope of its terms; suppressing evidence seized, or alternatively, a Mapp/Dunaway/Payton hearing; granting a Darden hearing; suppressing statements made to law enforcement and/or civilians, or alternatively, Huntley and voluntariness hearings; precluding non-noticed evidence under CPL § 710.30; for additional discovery under CPL article 245; precluding cross-examination of Defendant regarding any prior bad acts or convictions should he testify at trial, or a Sandoval hearing; and reservation of rights to file additional motions. Defendant has also opposed the People's motion to compel a DNA sample and has cross-moved for a protective order. The court has reviewed all papers and proceedings in the case and addresses all issues here.

A prima facie showing, not proof beyond a reasonable doubt, is all that is required before the grand jury. (People v Brownlee, 121 AD2d 553 [2d Dep't 1986], citing People v Brewster, 63 NY2d 419, 422 [1986]). The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the [*2]charged crimes, and whether the grand jury could rationally have drawn the guilty inference. (People v Gaworecki, 37 NY3d 225 [2021], quoting People v Grant, 17 NY3d 613, 616 [2011]; People v Mills, 1 NY3d 269, 274-275 [2003]). Determination of the adequacy of the proof establishing reasonable cause is exclusively the province of the Grand Jury. (People v Swamp, 84 NY2d 725, 730 [1995]; see CPL § 190.65[1][b]).

Since grand jury proceedings bear the presumption of regularity, in order to qualify for the "exceptional remedy" of dismissal of the indictment, Defendant has a "high" statutory burden to demonstrate defects impairing the integrity of the Grand Jury proceeding which raise a possibility of prejudice; "mere flaw, error, or skewing" is not enough. (People v Darby, 75 NY2d 449, 455 [1990]; People v Welch, 2 AD3d 1354, 1356 [4th Dep't 2003]). Defendant has set forth insufficient facts in support of this branch of his motion, and thus has failed to meet his burden here of showing a particularized or gross and prejudicial irregularity in the proceedings or some other similarly compelling defect. (People v Maddox, 31 AD3d 970, 973 [3d Dep't 2006]). The court finds that no testimony or improperly authenticated evidence undermined the integrity of the proceeding. (see, e.g., People v Nunez-Garcia, 178 AD3d 1087, 1089 [2d Dep't 2019]; People v Austin, 9 AD3d 369, 372 [2d Dep't 2004]).

In accord with the above standards, the court finds that from the testimony adduced and inferences that logically flow therefrom, the grand jury could have reasonably inferred that Defendant committed every element of the crime charged. The evidence was both competent and legally sufficient to provide reasonable cause to believe that Defendant committed every element of all the offense charged. (see CPL §§ 190.65 [1]; 210.20 [1]; 210.30 [1]; 70.10 [1]; see also People v Jensen, 86 NY2d 248 [1995]; People v Calbud, Inc., 49 NY2d 389 [1980]). Moreover, a quorum was present during the presentation, and the same quorum of jurors heard all evidence prior to the prosecutor's legal instructions, which principles were adequate and proper. (Calbud, 49 NY2d 389). Each witness testified under oath; the ADA complied with the applicable rules of evidence in accordance with CPL § 190.30; and no unauthorized person within the meaning of CPL § 190.25 was present at any time. (People v Sayavong, 83 NY2d 702 [1996]).

Overall, there were no irregularities or defects in the proceedings which impaired the integrity of the proceeding to prejudice Defendant. As such, Defendant's application for further release of the grand jury minutes is denied. The motion to dismiss or reduce the indictment counts for legal insufficiency or on procedural grounds is denied.

Defendant also moves under CPL §§ 210.25[3] and 210.20[1] to dismiss the six counts of the indictment charging him with unlawful weapons possession and ammunition.^[FN1] Defendant jumps on the Bruen bandwagon in alleging that these counts of the indictment are unconstitutional restrictions on his Second Amendment rights as determined by the Supreme Court in NY State Rifle & Pistol Ass'n v Bruen, 597 US 1 [2022] and United States v Rahimi, 602 US 680 [2024].

Defendant argues as follows: i) that he has standing to challenge the constitutionality of the statutes under which he is charged; ii) that the current Concealed Carry Improvement Act, [*3]New York's firearm licensing statute set forth in PL § 400.00 ("CCIA"), remains invalid in its entirety even after the amendments made pursuant to Bruen; iii) that pursuant to Bruen and Rahimi, lack of licensure of firearms is now an essential element of offenses under PL article 265, and the failure to plead such element in the counts of the indictment is a jurisdictional defect requiring dismissal; iv) that there is no historical tradition of a presumption of unlawful intent to use a firearm as is included in PL § 265.15 and therefore such a restriction is inconsistent with Second Amendment rights; v) that the penalties for violating PL article 265 crimes in the home and out in public are so disparate that they violate Bruen's statement of equal footing of public and private firearm possession, therefore the severe penalties for public possession violate the Eighth Amendment to the US Constitution. The People argue that Bruen and Rahimi had no impact on the constitutionality of New York's criminal possession of a weapon statutes. (see, e.g., People v Li, 226 AD3d 830, lv denied, 41 NY3d 1003 [2d Dep't 2024]).

The court has carefully considered Defendant's arguments, the People's response, and all relevant statutes and caselaw in reaching its decision. The court acknowledges that this is a rapidly evolving area of constitutional law, as evidenced by the docketed certiorari petitions pending from virtually every federal circuit in the country. The court relies, as it must, on existing caselaw and statutes. Neither Bruen, nor any other court has held that PL § 400.00 is facially unconstitutional and therefore invalid in all its applications. (see, Antonyuk v James, 120 F4th 941, 981 [2d Cir 2024], cert petition docketed January 25, 2025).

This court will not be the first. The court presumes the parties' familiarity with the Bruen and Rahimi framework and sets forth the principles of those and related cases only to the extent necessary for context of the court's decision herein. For the following reasons, the court denies this motion to dismiss these counts.

Defendant first argues that he has standing to challenge the constitutionality of his weapons possession charges. Most New York courts following Bruen have determined that defendants who have not applied for firearm licenses have suffered no injury under the CCIA and therefore have no standing to challenge the constitutionality of the weapons possession criminal statutes. In contrast to the situation here, many of those defendants raised such issue initially on appeal or in pos-conviction motions. (see, e.g., People v Liriano, 226 AD3d 520 [1st Dep't 2024], lv denied 41 NY3d 1019; People v Shilman, 85 Misc 3d 408 [Sup Ct Bronx County 2024]). Here, Defendant has raised the constitutionality issue in his omnibus motion pursuant to CPL § 210.25[3], which permits dismissal of indictments on constitutional grounds. (People v Williams, 78 Misc 3d 1205(A) [Sup Ct Eric County 2023]; People v Foster, 30 Misc 3d 596, 597, 915 N.Y.S.2d 449, 449—50 [Crim Ct Kings County 2010]). Despite the fact that there is no evidence that Defendant either applied for, already possesses, or would clearly be ineligible for, a handgun license, the court finds that CPL §§ 210.35 and 210.20 confer standing on Defendant to challenge the constitutionality of criminal charges filed against him.^[FN2] (compare People v [*4]Watts, 234 AD3d 620 [1st Dep't 2025]; People v Davis, 234 AD3d 1356 [4th Dep't 2025]; People v Bailey, 234 AD3d 560 [1st Dep't 2025]).

Defendant argues that the CCIA as amended after Bruen remains unconstitutional as it is still novel and vague and without historical tradition to support its restrictions. This is plainly contrary to the Bruen holding and concurring opinions. Bruen examined the historical tradition of firearm possession in the United States in order to determine if PL § 400.00 unconstitutionally restricts rights under the Second Amendment. Building on its decisions in District of Columbia v Heller, (554 US 570 [2008]) and McDonald v City of Chicago, Ill. (561 US 742 [2010]), the Court emphasized that the Second Amendment protects the rights of "ordinary, law-abiding citizens to possess handguns . . . for their self-defense." (Bruen, 597 US 1, 9).

Bruen observed that, like other constitutionally protected rights, the right to bear arms is subject to reasonable, well-defined, properly administered, evenhanded licensing restrictions. (Bruen, 597 US, at 70; Rodriguez, 76 Misc 3d at 498, citing Bruen and Heller). Justice Kavanaugh in his concurrence emphasized that the Court's decision does not prohibit states from imposing licensing requirements for carrying a handgun for self-defense and does not affect the existing "shall-issue" licensing regimes that are employed in 43 States. (Bruen, at 79-80). In the 43 states with constitutionally permissible licensing statutes, authorities "shall issue" concealed-carry handgun licenses based on certain threshold requirements and have no discretion to deny such licenses for failing to demonstrate "cause or suitability" if the applicant satisfies the statutory criteria. (Id., at 14—15).

Bruen narrowly struck down a single provision of New York's handgun licensing statute — the "proper cause" requirement — because its vague and undefined character standard permitted "open-ended" and "unchanneled" discretion in licensing officials to deny a handgun license to otherwise law-abiding citizens unless they demonstrated a special need for a gun beyond the personal self-defense needs of the general community. (Bruen at 13, 38; People v Rodriguez, 76 Misc 3d 494, 495 [Sup Ct NY County 2022]).

The New York State legislature quickly responded with the following amendments to PL § 400.00: the "proper cause" provision was excised; the "good moral character" requirement was defined to provide guidance to licensing officials and remove discretion; and other specific criteria were added to be considered by licensing officials. (See, Sponsor Mem., 2022 SB No 51001; https://www.nysenate.gov/legislation/bills/2021/S51001). In view of Bruen's approval of the 43 "shall-issue" licensing schemes now mirrored by PL § 400.00,^[FN3] it is reasonable to infer [*5]that the remaining provisions therein are constitutionally compliant, and the court will not further address them.^[FN4] For several reasons, Defendant is mistaken in his contention that the "validity of a constitutional challenge does not turn on the number of constitutional violations in a statutory scheme." (Martinez affirmation in support, ¶ 60). The Bruen court engaged in the well-settled procedure of severing the unconstitutional subdivisions from the valid provisions and preserving the remainder of the statute. (People v Viviani, 36 NY3d 564, 583 [2021] [internal citations omitted]). A facial constitutional challenge carries a very high burden of proof which Bruen proves Defendant has not met.

Defendant posits a flawed syllogism that because Bruen held that "the rules for issuing firearm licenses are unconstitutional, then the Penal Law crimes that depend on unlicensed possession are themselves invalid." (Defendant Martinez affirmation in support of omnibus motion, ¶ 50). This misunderstands Bruen's principle and methodology of assessing Second Amendment claims. Bruen was a very narrowly drawn decision striking a single provision of New York's handgun licensing provision. Justice Alito's concurrence emphatically reaffirmed that it decided "nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald." (Bruen, 597 US, at 72). Nor did Bruen "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Id., at 81[Kavanaugh, J., concurring, quoting Heller, 554 U.S. at 626—627, fn. 26 ("We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive")]). The decision in Bruen "had no impact on the constitutionality of New York State's criminal possession of a weapon statutes." (People v Cabrera, 41 NY3d 35, 49-50 [2023]; People v Joyce, 219 AD3d 627, 628 [2d Dep't 2023], lv denied 40 NY3d 1013).

The court has reviewed dozens of post-Bruen cases. There is a mountain of historical tradition supporting some limits on Second Amendment rights which are directly applicable here. It is a well-worn principle that the Second Amendment does not grant "a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." (United States v Rahimi, 602 US 680, 691 [2023], citing Heller). Bruen clarified that these historical limitations on the right to bear arms stemmed from the "right of the public to peaceably carry handguns for self-defense" and "no disorderly person, vagrant, or disturber of the peace shall be allowed to bear arms." (Bruen, at 60 [internal citations and quotes omitted]). Rahimi [*6]underscored the Heller and McDonald principles that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on firearm possession by felons and" others; many prohibitions on firearms possession are presumptively lawful. (DC v Heller, 554 US 570, 626-627 [2008]). In upholding an historically based analogous restriction on Rahimi's Second Amendment rights as a result of an active family offense order of protection, the Court held that the government is "free to disarm individuals who present a credible threat to the physical safety of others." (Rahimi, at 700, cited in United States v Ayala, 740 F Supp 3d 314 [SDNY 2024]).

There is a clear "history and tradition of keeping guns away from those engaged in criminal conduct." (Orrego Goez v United States, 656 F Supp.3d 1370, 1376 [SD Fla 2023][internal citations omitted]). The Supreme Court observed that Congress has sought broadly to keep firearms away from persons classified as potentially irresponsible and dangerous, and curb "lawlessness and violent crime." (United States v Jackson, 110 F4th 1120, 1128 [8th Cir 2024] cert pet docketed Edell Jackson v United States, February 25, 2025; citing Huddleston v United States, 415 US 814 [1974], and Barrett v United States, 423 US 212 [1976]). Further, "Congress obviously determined that firearms must be kept away from . . . those convicted of serious crimes who might be expected to misuse them." (Id., at 1128, citing Dickerson v New Banner Inst., Inc., 460 US 103 [1983]). The "historical record contains ample support for the categorical disarmament of people who have demonstrated disrespect for the legal norms of society." (United States v Hunt, 123 F4th 697, [4th Cir 2024], cert petition docketed, Matthew Ryan Hunt v United States, March 20, 2025, citing Jackson, 110 F4th at 1127).

It is an uncontroversial premise; regulations governing non-law-abiding citizens' use of firearms do not implicate Bruen and Heller. "Given that the Supreme Court has said the purpose of the Second Amendment right is lawful self-protection . . . the Second Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of drug trafficking crime." (Orrego Goez v United States, 656 F Supp 3d 1370, 1375 [SD Fla 2023], accord, United States v Bryant, 711 F3d 364, 369 [2d Cir 2013] [defendant's conviction for unlawful possession of a firearm in furtherance of drug trafficking crime did not violate his Second Amendment right to possess a firearm for self-defense in his home]).

The Defendant here has at least four prior felony convictions. He is charged here with multiple counts of felony narcotics and weapons possession. Moreover, the firearm seized from Defendant's bedroom bears no serial number; it is what is euphemistically called a "ghost gun." Since all firearms are required to have serial numbers, it is hard to imagine that one without such an identifier is intended to be used for the lawful purpose of self-defense by a law-abiding citizen, and thus a reasonable inference may be drawn that the possession of such a weapon is outside the scope of the Second Amendment. (see generally, Bondi v VanDerStok, 604 US —, 2025 WL 906503 [March 26, 2025][holding that "Buy Build Shoot" gun part kits are "weapons" within the meaning of the Gun Control Act to be regulated by ATF]). This court finds that on these facts, Defendant's conduct is exactly the type that may be regulated under the Criminal Procedure Law consistent with Second Amendment rights. The court denies Defendant's request for a hearing on "historical analogues."

Defendant next argues, quoting from the dissent in People v David (41 NY3d 90, 101[2023]), that "the Second Amendment makes lack of licensure an essential element of the PL article 265 offenses with which Defendant is charged, and bars shifting the burden of production on licensure" to him. The David majority rejected this argument, explaining that because

the licensure exemption is not found within the text of the relevant Penal Law provision criminalizing possession of a weapon, it presumptively operates as a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial.

(David, at 96). Bruen clearly recognized that the Second Amendment merely permits states to promulgate valid licensing laws; it does not require licensing as an essential element of lawful possession. Building on this rejected argument, Defendant continues that because the lack of licensure has not been pleaded as an element in those counts of the indictment, those counts are jurisdictionally defective and must be dismissed. The omission of the licensure element is not a jurisdictional defect of the weapons possession counts. Essential allegations required to be pleaded in the indictment are generally determined by the statute defining the crime; the incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime. (People v Santana, 7 NY3d 234, 236 [2006]; People v Davis, 13 NY3d 17, 31 [2009]; People v D'Angelo, 98 NY2d 733, 735 [2002]). The indictment counts under PL article 265 are legally sufficient.

Further, Bruen does not even hint that the Second Amendment bars shifting the burden of production to defendants, and this branch of Defendant's argument misunderstands the decision. The Bruen standard for applying the Second Amendment is that the government must first determine if the conduct by Defendant is covered by or is outside the scope of the Amendment as originally understood. If "the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." (Bruen, at 24). The burden of persuasion is always on the government. Requiring the People to prove a negative fact—that Defendant lacks a license—is not "unique in our system of criminal jurisprudence." (Mullaney v Wilbur, 421 US 684, 702 [1975]). This court does not concede that the New York Penal Law statutes in issue actually shift the burden of production of licensure to defendants, and Bruen certainly does not bar such burden shift.

Defendant also asserts, misstating the rule in People v Galindo, 23 NY3d 719 [2014], that the statutory presumptions of unlawful intent in PL §§ 265.03 [1] and 265.15 [4] unconstitutionally burden his right because he can be convicted "without any additional evidence [beyond unlicensed possession] to prove the intent element." (Martinez affirmation in support, ¶ 62). Defendant ignores the distinction between a permissive presumption on which the prosecution is entitled to rely as part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense. (Cnty Ct of Ulster Cnty NY v Allen, 442 US 140, 166 [1979]). Permissive presumptions permit, but do not require, the jury to find the presumed fact; they satisfy due process if, as applied in the particular case, there exists a "rational connection between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is more likely than not to flow from the former." (Ulster v Allen, 442 US, at 164—67 [1979]).

All criminal presumptions are permissive and rebuttable, and do not shift the burden of proof. (In re Raquel M, 99 NY2d 92, 95—96 [2002], cited in People v Galindo, 23 NY3d 719, 723 [2014]). A presumption is "an inference which the trier of fact may draw from facts found or otherwise established during the course of the trial;" before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact(s) which the statute requires be proved—the presumption "receives the same treatment that any other fact so thoroughly [*7]controverted would receive." (Galindo, at 723 [internal citations omitted]). Additional proof of possession and unlawful intent are always required to be proven as part of the People's case with respect to the charged crimes in that particular case. (Id.).

But even if a defendant has the burden of going forward to raise licensure as an exemption from criminal prosecution, this does not violate his due process rights. (People v David, 41 NY3d 90, 98—99 [2023]; Glenn v Bartlett, 98 F3d 721, 727 [2d Cir 1996]). It is "old law" that the burden of production, not the burden of persuasion, may be placed on a defendant. (People v Laietta, 30 NY2d 68 [1972]). Moreover, the constitution does not prohibit the "piggybacking" of presumptions within this standard. (Mitchell v Bradt, No. 11-CV-6399 MAT, 2012 WL 2194628, at *5—6 [WDNY 2012]).

Defendant's final constitutional challenge asserts that there is no historical tradition permitting the use of a statutory presumption (i.e., intent to use the firearm unlawfully against another) which limits one's Second Amendment right. But under Bruen, and considering the foregoing, that argument is without merit, as follows:

"The Second Amendment guaranteed to "all Americans" the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials.

The court has considered all Defendant's arguments that Bruen rendered unconstitutional New York's CCIA and weapons possession crimes, including any not specifically addressed above, and finds them to be without merit. The branch of Defendant's motion to dismiss the PL article 265 crimes on constitutional grounds is denied.

Defendant moves to suppress all evidence seized tangible and non-tangible, physical and verbal, or alternatively, an order for Mapp, Dunaway, Payton, and Huntley hearings. Defendant also moves to controvert the search warrant, and the court finds that he has standing to do so, as he resides at the location.

A defendant seeking to controvert a search warrant has the initial burden of establishing, by a preponderance of the evidence, that a deficiency in the warrant exists. (People v Scales, 80 Misc 3d 335, 344—45 [Sup Ct Queens County 2023], citing Franks v Delaware, 438 US 154 [1978]). Defendant's "kitchen sink" allegations are mostly couched in hypothetical terms unsupported by evidentiary facts, which is perplexing because Defendant has already received all discovery including the redacted search warrant materials, grand jury minutes and evidence.

"A presumption of validity attaches to a judicially approved search warrant." (People v Haas, 211 AD3d 1176, 1179 [3d Dep't 2022] [internal citations omitted]). The standard of review is for this court to review the application in a common-sense and realistic fashion, considering all the facts and circumstances together, and affording great deference to the issuing magistrate's probable cause determination. (People v Hanlon, 36 NY2d 549, 560 [1975]; People v Cruz, 221 AD3d 1423, 1424—25 [4th Dep't 2023], lv denied 41 NY3d 1001 [2024], citing People v Shulman, 6 NY3d 1, 26 [2005], cert denied 547 US 1043 [internal quotations, citations and addl history omitted]; People v Humphrey, 202 AD3d 1451 [4th Dept. 2022], lv denied 38 NY3d 951 [internal quotation marks omitted]). Probable cause merely requires information [*8]sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found at a certain place. (People v Griminger, 71 NY2d 635, 639 [1988]; People v Bigelow, 66 NY2d 417, 423 [1985]).

The court's review of the meticulously detailed search warrant materials reveals that the applicant's basis of knowledge for the information he imparted to the issuing magistrate was derived from the detective's own investigation, a confidential informant ("CI") who also appeared before the magistrate and gave sworn testimony regarding the investigation, and confirmation of the CI's evidence by the detective's own observations of the subject location. The sworn allegations of the affidavit and the testimony presented were not perjurious on their face and otherwise satisfy the Aguilar-Spinelli "two-pronged test" of reliability and credibility (Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]; People v Griminger, 71 NY2d 635 [1988]). The information provided to the magistrate occurred close enough in time to the application to justify a finding of probable cause at that time and was not stale. (People v Fernandez, 210 AD3d 693, 694 [2d Dep't 2022]). Accordingly, the issuing judge reasonably concluded that evidence of illegal activity as set forth would be present at the specific time and place indicated in the warrant, and that probable cause existed for authorizing the search warrant in this case. (People v Lambey, 176 AD3d 1232, 1233 [2d Dep't 2019][internal citations omitted]; Scales, 80 Misc 3d 335, 344—45).

In ruling on a motion to suppress evidence, the court is required to grant a hearing if the defendant raises a factual dispute on a material point which must be resolved before the court can decide the legal issue of whether evidence was obtained in a constitutionally permissible manner. (Lambey, 176 AD3d, at 1234). In evaluating whether a defendant's factual allegations in a suppression motion are sufficient to warrant a hearing, the court must assess the face of the pleadings, assessed in conjunction with the context of the motion, and defendant's access to information. (Id., citing People v Mendoza, 82 NY2d 415, 426 [1993]). In view of the above, as well as Defendant's access to the discovery here, and the dearth of evidentiary facts adduced in support hereof, his motion to controvert the warrant or alternatively, be granted a Mapp hearing, must fail.

Defendant's allegations of overbreadth of the warrant and the search are without merit. The warrant did not use the dreaded language to authorize seizure of "any other contraband." (People v Brown, 96 NY2d 80 [2001]), and the court finds the quantity and volume of items sought was not unreasonable. The warrant identifies with particularity the items to be seized and ties those items to the crimes as to which the warrant affidavit provides probable cause. Each of the items seized were evidence or instrumentalities or the fruits of the subject offenses in the warrant. (United States v Ray, 541 F Supp 3d 355, 389 [SDNY 2021]). The court finds that the items requested and authorized to be seized were properly authorized under the warrant and specifically connected to the crimes being investigated, and Defendant's identity. (People v Carter, 31 AD3d 1167 [4th Dep't 2006]). The warrant was not overbroad.

Defendant also argues that the scope of the search was beyond the warrant's authorized parameters. The court disagrees. Among other specific items, the warrant authorized the seizure of "other evidence reflecting controlled substance trafficking." The police seized narcotics, drug paraphernalia, items of evidence of identity and residence at the location, a firearm, and its ammunition.

Because the warrant authorized the seizure of narcotics and "evidence of the possession and distribution of controlled substances" and "controlled substances trafficking," the police [*9]were lawfully permitted to look in any place within the premises where the subjects of the warrant might be found and were not limited by the possibility that separate acts of entry or opening may be required to complete the search. (United States v Ross, 456 US 798, 820—21 [1982]). Thus, the warrant here implicitly authorized police to open closets, chests, drawers, and any containers in which narcotics or evidence of controlled substances trafficking might be found. The officers executing the valid warrant thus had authority to open the backpack in the makeshift bedroom, where the incriminating nature of the firearm was immediately apparent. It is reasonable to view a firearm as a necessary accessory to and additional evidence of narcotics trafficking. (see, e.g., Vaher v Town of Orangetown, 133 F Supp 3d 574, 590 [SDNY 2015]). Even if, for the sake of argument, the firearm was not within the scope of the warrant's authorization, the police were entitled to seize it under the "plain view" doctrine, as the doctrine's three conditions were met here: i) the police are lawfully in the location from which the object was viewed; ii) the police had lawful access to the object; and iii) the object's incriminating nature was immediately apparent.^[FN5] (People v Rodriguez, 211 AD3d 854, 857—58 [2d Dep't 2022]; Horton v California, 496 US 128 [1990]; Coolidge v New Hampshire, 403 US 443 [1971]).

In view of the above, the court finds the scope of the search to be proper within the warrant parameters. Defendant's allegations of an overbroad search fail to raise a factual dispute requiring resolution by the court. (People v Duval, 36 NY3d 384 [2021]).

Defendant's motion for a Darden hearing is denied, as the confidential informant appeared and gave sworn testimony before the issuing magistrate. (People v Darden, 34 NY2d 177 [1974]; People v Edwards, 95 NY2d 486, 493 [2000] [informant need not be produced for a Darden hearing if he/she previously appeared before the issuing judge]).

Defendant's motions for Dunaway and Payton hearings are also denied. The Fourth Amendment prohibits police from making warrantless and nonconsensual entry into suspect's home in order to make a routine felony arrest. (Payton v New York, 445 US 573, 576 [1980]). Payton has no applicability here, where the police were lawfully inside Defendant's residence to execute the warrant and detain the occupants of the makeshift bedroom, where they observed narcotics, evidence of narcotics trafficking and an unlicensed ghost gun, and thereby had probable cause to arrest Defendant.

Defendant has moved to suppress all statements made to law enforcement and to civilians and has moved for a voluntariness hearing for any non-noticed statements expected to be used on cross-examination. The People have consented to a Huntley hearing to be held before trial. A defendant who moves to suppress noticed statements, and who receives a full opportunity to litigate all statements elicited at the hearing whether noticed or not, waives the sufficiency of the notice as to the unnoticed statements. (People v Lazzaro, 62 AD3d 1035, 1036 [2nd Dep't 2009]; People v McCray, 53 Misc 3d 19, 23—24 [App Term 2d Dep't 2016]). Further, under CPL § [*10]60.45, no statement is admissible whether noticed or not, if it is made involuntarily; such determination is respectfully deferred to the trial court.

A Sandoval hearing is ordered to be held prior to trial.

The People filed their certificate of discovery compliance and statement of readiness on October 24, 2024. A bill of particulars was provided in the People's affirmation in opposition to this motion. Defendant's multiple motions for additional discovery orders are granted only to the extent that the People are reminded of their continuing statutory and constitutional discovery obligations.

The People have filed a cross-motion to compel Defendant to provide a DNA sample. Defendant opposes the motion and as an alternative requests a protective order preventing upload and comparison of any DNA results to any other case. In determination, hereof, the court has reviewed the motion papers and the court file.

Defendant is charged with several counts of constructively possessing an unlawful weapon after a loaded, operable firearm was recovered from a backpack inside the makeshift bedroom which Defendant had created for himself and his co-defendant, Ray Ramos in the apartment of Danielle Mendez, the third co-defendant in this case. The firearm and ammunition found with it were vouchered as evidence with the NYPD and swabbed for DNA. The swabs were submitted to the Forensic Biology Department of the New York City Office of the Chief Medical Examiner ("OCME") for DNA testing and analysis. A report was issued which indicates that the swabs yielded a mixture of DNA suitable for comparison to a known sample. Individual contributors of the DNA were not determined. The People now request Defendant be ordered to provide such sample.

An order compelling an accused to provide corporeal evidence such as saliva for DNA analysis is a search and seizure implicating rights under the Fourth Amendment. (Schmerber v California, 384 US 757,767 [1966]; Matter of Abe A., 56 NY2d 288 [1982]). The Abe A. guidelines are now codified in CPL § 245.40[1][e]. The statute permits a court to order a defendant to provide non-testimonial evidence "[a]fter the filing of an accusatory instrument," and "subject to constitutional limitations," where the People establish: (i) probable cause to believe Defendant has committed the crime; (ii) a clear indication that relevant material evidence will be found; and (iii) that the method used to secure it is safe and reliable.

The firearm and ammunition were found from inside the Defendant's admitted bedroom by the detective executing a search warrant. Probable cause is established by information from an identified eyewitness to a crime. (People v Roldan, 37 AD3d 300 [1st Dep't 2007], lv denied 9 NY3d 850), and the grand jury vote and filing of the indictment in this case establishes the probable cause requirement under the statute. (see, e.g., Colon v City of New York, 60 NY2d 78, 82 [1983]).

The court also finds a clear indication that the sample will yield relevant evidence for the case. 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. DNA evidence is indisputably the most powerful forensic evidence in determining either the guilt or the innocence of an accused. Given 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 would be unlikely to provide material evidence. (People v Goldman, 35 NY3d 582, 594 [2020], quoting [*11]Maryland v King, 569 US 435, 442 [2013]). Identifying the DNA on the firearm as Defendant's would constitute strong evidence of possession thereof by him at trial. Conversely, the presence of unknown DNA on the firearms at trial would cause speculation by the jury about why Defendant's DNA was not compared to the DNA found therein. (People v Quintanilla Hernandez, 62 Misc 3d 983 [Crim Ct, NY County 2018]).

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." (Strickler v Greene, 527 US 263 [1999], cited in People v Giuca, 33 NY3d 462, 487 [2019][Rivera, J., dissenting]). Identifying the DNA profiles on the firearm seized here will ensure the community's and Defendant's interests in a fair and just prosecution. The court has considered Defendant's arguments in opposition to this second requirement under CPL § 245.40[1] (Defendant's affirmation in opposition to the People's motion to compel a DNA sample, Point B, ¶¶ 21-39). The court finds his arguments unpersuasive. The court finds that the arguments speak not to the to the clear probability that material evidence will be found, nor even to the admissibility of any DNA evidence to be introduced at trial, but only to its weight for consideration by the trier of fact.

The buccal swab method of collecting a DNA sample has been held "undeniably safe" and reliable, thus satisfying the third prong of the statute. (People v Goldman, 35 NY3d 582, 594 [2020]). Finally, there can be no argument that the charged crimes are serious ones, and that the value of identifying or excluding Defendant as the source of the evidence DNA 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 intrusive nature of the buccal swab, and the court rejects Defendant's contention that the statutory and constitutional standard for this order have not been met. The application for an order compelling Defendant to supply a DNA sample by buccal swab is hereby granted. Defendant's motion for a protective order limiting the use thereof is also granted. An accompanying order is issued.

Defendant's motion to inspect the grand jury minutes is granted. Further disclosure thereof is denied. The motion to dismiss any count of the indictment, on either statutory or constitutional grounds, is denied. The motion to controvert the search warrant is denied. The motions to suppress evidence are denied, except to the extent that Huntley and Sandoval hearings are ordered. The motions for Darden, Mapp, Dunaway, and Payton hearings are denied. The motions for additional discovery orders are denied except that the People are reminded of their continuing statutory and constitutional discovery obligations. Defendant's reservation of rights to file additional motions are denied subject to CPL § 255.20[3] for leave to file upon good cause shown.

This constitutes the Decision and Order of the Court.