On September 3, 2024, defendant was charged by felony complaint with Burglary in the Second Degree (Penal Law § 140.25[1][a], [2]), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[1][b], [3]) and other charges after he was arrested outside 99 Gelston Avenue. Police officers recovered a pistol from that location, and the People now move to compel defendant to provide a DNA sample for comparison to DNA that was recovered from the pistol. Defendant opposes the motion and requests a protective order; he also moves to dismiss the action on speedy-trial grounds under CPL 30.30. The court assumes the parties' familiarity with facts of the case and the present motion. For the reasons that follow, the People's motion to compel is granted, and defendant's request for a protective order and his motion to dismiss are denied.^[FN1]

A court may order a defendant to provide a sample of their blood, hair, or "other materials" if the People establish "probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable." CPL 245.40(1)(e). The People have established each element here.

First, the People have established probable cause to believe that defendant committed second-degree criminal possession of a weapon. As is relevant here, a person is guilty of that [*2]crime when they knowingly possess a loaded firearm outside "home or place of business."^[FN2] See Penal Law § 265.03(3). Here, the People allege that, on August 31, 2024, police officers responded to a 911 report that gun shots had been fired at the residence located at 99 Gelston Avenue. Officers encountered defendant outside the residence; they also encountered Matthew Edison, who stated that he saw defendant inside the location firing a gun and attempting to remove electronics. A witness (Kerrin Schnell) told officers that she had been staying at the residence with Edison, and was awakened by gun shots and saw a dark-skinned male individual wearing a black-and-red shirt exit the location. Surveillance of the location showed an individual taking off a black-and-red shirt and placing it in the front yard, and officers recovered a red-and-black shirt and a pistol from the front yard the next day. Furthermore, DNA from a cigarette butt discarded by defendant matched DNA taken from the pistol recovered in the front yard. Contrary to defendant's unsupported assertion (Opp. ¶ 11), these allegations are more than "sufficient to support a reasonable belief," People v Bigelow, 66 NY2d 417, 423 (1985), that defendant knowingly possessed a loaded pistol that was later recovered from the front yard of 99 Gelston Avenue.^[FN3]

Second, the People supplied a clear indication that the swab requested here will yield relevant material evidence. The Office of the Chief Medical Examiner ("OCME") tested six test swabs taken from the recovered pistol and determined that two of them contained genetic material that would be suitable for comparison (see Mot. Ex. 1). Further, OCME tested DNA from a cigarette butt discarded by defendant and concluded that it was 263 billion times more likely than not that the DNA from the cigarette butt was from the same person as the DNA from the testable gun swabs (Mot. Ex. 2). These circumstances establish a clear indication that testing of a true exemplar of defendant's DNA will yield material relevant evidence, since comparing that exemplar with the swabs recovered from the pistol will confirm whether defendant's DNA was present on the pistol. Defendant does not contend otherwise.

Third, there is no dispute here that the method proposed to be used to secure a DNA sample from defendant in this case is both safe and reliable. See People v Goldman, 35 NY3d 582, 594 (2020) ("The buccal swab is undeniably safe, consists of a minimal intrusion and involves no discomfort.").

For these reasons, the People's motion to compel is GRANTED. Defendant is ORDERED to permit the taking of a buccal swab sample for the purpose of DNA analysis and comparison testing in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto. It is also ORDERED that officers of the Department of Correction or the New York Police Department, or the investigators from the Kings County [*3]District Attorney's Office, may use reasonable and necessary force to compel defendant to permit the taking of the buccal swab sample.

Defendant's request for a protective order is DENIED. "Upon a showing of good cause," the court is authorized to issue a protective order directing that the "discovery or inspection" of material disclosed under CPL article 245 should be "denied, restricted, conditioned or deferred." CPL 245.70(1). Here, defendant presents no argument in favor of his conclusory application for a protective order (Opp. ¶ 13). See People v. Torres, 2025 NY Slip Op 50594(U), *3-*4 (Crim Ct, Kings Co 2025).

This case was commenced by the filing of a felony complaint on September 3, 2024. Bail was set at arraignment that day, and defendant was released pursuant to CPL 180.80 on September 6, 2024. There has yet been no action by the grand jury, and on April 24, 2025, defendant moved to dismiss the case pursuant to CPL 30.30 on the ground that the People had not declared ready within six months of the action's commencement (Opp. ¶ 10). Defendant's motion to dismiss is denied.

CPL 30.30(1) establishes timeframes within which the People must declare their readiness for trial and provides that a court "must" grant a motion to dismiss if the People fail to comply with those timeframes. The dismissal required by CPL 30.30, however, applies only to motions made under either CPL 170.30(1)(e) or CPL 210.20(1)(g). Those provisions authorize motions to dismiss "an information, a simplified information, a prosecutor's information or a misdemeanor complaint," CPL 170.30(1), or to dismiss an indictment, see CPL 210.20(1). Because defendant is not charged by any of those accusatory instruments, his motion to dismiss is not authorized by one of the provisions for which CPL 30.30 provides a mandatory dismissal remedy. To the contrary, defendant is charged in a felony complaint, and CPL 30.30 does not provide a criminal court with "statutory authority to dismiss a felony complaint." People v Hasson, 74 Misc 3d 374, 379 (Crim Ct, Queens Co 2021). Instead, local criminal court authority to dismiss a felony complaint is set forth in CPL 180.85. See Peter Preiser, Practice Commentaries to CPL 180.85, 11A McKinney's Consol. Laws of NY 247, 247-48 (2007). That provision affords a local court limited authority, on its own motion or by motion of the parties, to issue an order "terminating prosecution of the charges contained in [a] felony complaint on consent of the parties." CPL 180.85(1). But such a motion may be made "not earlier than twelve months following the date of arraignment." CPL 180.85(2). Defendant's dismissal motion would thus be untimely, even if he had made the motion pursuant to CPL 180.85 and had otherwise complied with the requirements of that section (which he has not).

The foregoing constitutes the order of the court.