On April 23, 2025, at approximately 4:00 PM, inside of 1365 5th Avenue, New York, New York, defendant, Daniel Hightower, displayed a firearm to two individuals known to the District Attorney's Office, while stating in sum and substance, "I'm tired of your shit." On April 24, 2025, a search warrant issued by the Honorable Jonathan Svetkey was executed. Upon execution of the warrant, Police Officer Matthew Ciprian recovered a safe containing a 9mm caliber firearm with no rounds in the magazine, eighty-one loose 9mm rounds of ammunition, a black .380 caliber firearm, fourteen .380 rounds of ammunition, and a large capacity ammunition feeding device. The firearms were vouchered and sent to the NYPD Ballistics Laboratory for testing, where they were determined to be operable. The firearm was additionally swabbed for the presence of DNA by an officer of the NYPD's Evidence Collection Team (ECT). The DNA swabs were then vouchered and submitted to the Office of the Chief Medical Examiner (OCME) for DNA analysis.

For these acts, defendant was arrested and charged with two counts of Criminal Possession of a Weapon in the Second Degree, (Penal Law [PL] §§ 265.03[1][b], [3]), one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[8]), one count of Criminal Possession of a Firearm (Penal Law § 265.01[b][1]), and one count of Menacing in the Second Degree (Penal Law § 120.14[1]).

Thereafter, an OCME criminalist examined the DNA mixtures developed from the swabs and produced a report under lab number FB25-02354, which indicated that samples with a sufficient concentration of DNA were detected on swabs from the firearms' "backstrap and slide grips", "slide and slide grooves", "trigger and trigger guard", and "slide and slide grooves", that are suitable for comparison. This report was generated on August 15, 2025.

Now, in papers, dated September 18, 2025, the People move this Court for an Order compelling defendant to provide a buccal swab sample for DNA analysis and comparison to the [*2]DNA found on the firearms. In support of their motion, the People argue that the buccal swab will be taken by a law enforcement official, and that the procedure is safe, reliable, and minimally intrusive. In papers, dated January 19, 2026, defendant, through counsel, opposes the People's motion and cross-moves for a protective order if the motion is granted.

After an accusatory instrument is filed, a court can require a defendant to permit the district attorney to take a saliva sample for DNA analysis if certain statutory and constitutional conditions are met (see Criminal Procedure Law (CPL) § 245.40 [1] [e]; Matter of Abe A., 56 NY2d 288 [1982]). The statutory conditions require that the district attorney establish (1) "probable cause to believe the defendant has committed the crime;" (2) "a clear indication that relevant material evidence will be found;" and (3) "that the method used to secure such evidence is safe and reliable" (CPL § 245.40 [1]). The statute also requires that the district attorney establish that a buccal swab "involves no unreasonable intrusion" of defendant's body (CPL § 245.40 [1] [e]). To satisfy constitutional requirements, the court must weigh the seriousness of the crime, the importance of the evidence to the case, and the unavailability of a less intrusive means of acquiring the evidence, against the defendant's constitutional right to be free from bodily intrusion (Matter of Abe A., 56 NY2d at 291).

The People have satisfied the requirements of Abe A. First, there is probable cause to believe defendant possessed the firearm. Probable cause exists where "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10[2]. The legal conclusion is to be made after considering all of the facts and circumstances together, along with all possible reasonable inferences derived therefrom. People v Bigelow, 66 NY2d 417, 423 (1985). Viewed singly, these may not be persuasive, "yet when viewed together the puzzle may fit and probable cause found." People v Shulman, 6 NY3d 1, 26 (2005); People v Bigelow, 66 NY2d 417, 423 (1985). It does not require, however, "proof to a mathematical certainty or proof beyond a reasonable doubt." People v Mercado, 68 NY2d 874 (1986); see also People v Oglesby, 121 AD3d 818 (2d Dept 2014). Probable cause is based on the "realities of everyday life and common sense." People v Wright, 8 AD3d 304, 307 (2d Dept. 2004). The fact that probable cause may be based on circumstantial, rather than direct, evidence is immaterial. People v Carrasquillo, 54 NY2d 248, 254 (1981).

Here, judged by these standards, the facts noted above demonstrate that it is reasonably likely that defendant possessed a firearm. Defendant's claims to the contrary fail, as he critically evaluates each piece of information separately and in isolation, rather than as a whole. Bigelow, 66 NY2d at 423. In addition, and in any event, the issuance of the search warrant further establishes that there was probable cause. People v Castillo, 80 NY2d 578 (1992) (presumption of validity attaches to search warrants because there has already been a judicial review as to its justification based on the existence of probable cause).

Second, there is also a clear indication that relevant material will be found as a result of the preliminary testing of the profile(s) from the swabs of the firearm. A comparison of the DNA evidence taken from that firearm to defendant's DNA buccal swab will be relevant and material to the issue of the identity of the perpetrator. Such a comparison could "be relevant and material to both the People and defense in either the implication or exoneration of [d]efendant." People v Macias, 65 Misc 3d 1225[A] (Crim Ct Kings Co 2019). Finally, it is well established that the method for obtaining buccal cell samples — namely, swabbing inside of the cheek — is safe, [*3]reliable, and minimally intrusive. See Maryland v King, 569 US 435 (2013); Matter of Abe A., 56 NY2d at 291; Goldman, 35 NY3d at 591.

These factors, combined with the seriousness of the crime of possessing a loaded firearm, weigh in favor of the People's request. The People's motion for an Order directing defendant to submit to a buccal swab for DNA testing and analysis is therefore granted. Defendant's remaining contentions in opposition are denied as meritless.

In light of the court's determination that the People have met their burden to obtain the DNA sample, it will now address defendant's cross-motion for a protective order.

Defendant's cross-motion for a protective order is granted to the extent that the testing results may be placed, by the OCME, into any and all databases provided that an earlier sample of defendant's DNA is already contained in any database. If not, the results of the present testing shall only be placed in any state or federal database should there be a conviction in this matter.

In sum, the People's motion for an Order directing defendant to provide a buccal cell sample for DNA analysis is granted subject to the protections noted above.

An accompanying Order has been signed.

The foregoing constitutes the Opinion, Decision, and Order of the Court.