Criminal Court of the City of New York, Bronx County

Decided on July 16, 2026

Docket No. CR-024976-25BX

Yadhira González-Taylor, J.

[*1]

By motion dated February 17, 2026, the People moved pursuant to Criminal Procedure Law ("CPL") § 245.40 (1) (e) for an order directing defendant, Tysean Griiffin, to permit the taking of buccal samples for the purpose of DNA analysis and comparison with evidence obtained from weapons recovered from the scene of his arrest in forensic biology case file number F25-06377. On March 6, defense counsel opposed the motion and, further, cross-moved for a protective order in the event that this Court grants the People's motion. On May 12, the Court requested that the People file a reply brief in response to issues of fact raised by defense counsel which reply was filed on July 2.^FN1

Upon review and consideration of the submissions, court file and relevant legal authority, the People's motion for an order compelling a buccal swab from defendant Tysean Griiffin for purposes of providing a biological exemplar for DNA analysis in connection with the above-captioned case is GRANTED, however, the Court DENIES that portion of the People's motion that seeks to use all reasonable force necessary to obtain defendant's DNA sample as premature; and Defendant's cross-motion for a protective order which prohibits OCME from using defendant's DNA exemplar to DNA in any other case except for comparison with the DNA profile developed in forensic biology file numbered F25-06377 is GRANTED.

RELEVANT HISTORY

On September 17, 2025, defendant was arrested for violating Penal Law ("PL") §§ 265.03 (3) (criminal possession of a weapon in the second degree, two counts), 265.01-b (1) (criminal possession of a firearm, two counts), 222.35 (1) (criminal possession of cannabis in the second degree), all felonies, and 265.01 (1) (criminal possession of a weapon in the fourth degree, two counts), 222.30 (1) (criminal possession of cannabis in the third degree), and Administrative Code § 10-131 (i) (3) (possession of ammunition), all misdemeanors. Defendant was arraigned and released under supervision the following day. The information alleges that defendant was observed to have in his possession a backpack which contained one Beretta APX 9mm pistol and one Taurus Spectrum 380 caliber pistol, both of which, along with ammunition and cannabis, were recovered from the vehicle in which defendant was seated at the time of the arresting officer's observations.

The assigned ADA asserts that a group of individuals were observed engaged in what appeared to be hand-to-hand narcotics sales near a white 2014 Dodge Ram van parked in the vicinity of 884 E. Tremont Avenue, Bronx, NY (People's affirmation at 4). After having apprehended those individuals, when the officers approached the van, they observed the front passenger side door was ajar, and NYPD Sergeant Robert Wichers ("Sgt. Wichers") noticed what appeared to be the butt of a firearm protruding from an unzipped backpack on the front driver's seat of the van (id.). Sgt. Wichers then observed defendant, who was the sole occupant seated in the rear of the van, exit from the front passenger door (id.). The People state that all items in the backpack were vouchered, including a second firearm which was loaded with a magazine holding five live rounds (id.).

The prosecution contends that standard locations on both firearms were swabbed for potential DNA, and six swabs were thereafter submitted to the NYC Office of Chief Medical Examiner ("OCME") on September 29, 2025; the People followed up for testing results on October 2, October 17, November 26, December 8, 2025, and January 12, 2026. Both firearms were found to be operable (People's affirmation at 4-5). On February 3, 2026, the assigned OCME criminologist issued a written report which indicated that "STR DNA" typing was performed on both firearms and one swab per firearm had been deemed suitable for comparison (People's affirmation at 5).

DISCUSSION

I. The Parties' Legal Arguments

The People

The People maintain that if the samples from the vouchered swabs were compared to defendant's DNA exemplar such comparison would in no way violate defendant's constitutional rights (People's affirmation at 6). Specifically, the assigned ADA argues that the prosecution has established probable cause to believe that defendant unlawfully possessed the firearms because he was observed as the sole occupant of the vehicle in which the backpack containing the two firearms was recovered, and thus, the People are entitled to the statutory presumption set forth in PL § 265.15 (3) (People's affirmation at 6-7). Next, the People claim that the evidence they seek to compel will be probative of defendant's possession of the firearms insofar as both guns were recovered from the backpack collected from the van in which he alone occupied at the time of Sgt. Wicher's observations (People's affirmation at 7). Moreover, the prosecution avers that the method of collecting a buccal sample is a time-tested approach which does not involve either an unreasonable bodily intrusion nor does it cause serious physical injury (id.).

[*2]Defendant

The gravamen of defendant's opposition concerns counsel's contention that OCME failed to determine the number of contributors to the two swabs found suitable for comparison (defendant's affirmation at 4). Indeed, counsel complains that the OCME Laboratory Report indicated that no individual profile nor gender of the contributors was established (defendant's affirmation at 5). Defendant avers that OCME failed to follow its own testing protocols and the analyst's findings were necessarily preliminary where the number of contributors for the two subject swabs was left uncertain (defendant's affirmation at 6). Defendant further argues that the risk of contamination was not properly assessed because the prosecution failed to provide any detailed information concerning the evidence collection (defendant's affirmation at 7).

With respect to the prosecution's burden of proof to obtain an order to compel a DNA sample from defendant, counsel contends that unanswered questions and contradictions undermine the People's probable cause (defendant's affirmation at 10). Defense counsel notes that the People have not posited whose van was observed by Sgt. Wicher, how long the van was surveilled or if anyone else arrested with defendant may have been seen with the backpack (id.). Hence, counsel asserts that the statutory presumption concerning defendant's possession is rebutted and the lack of detail fatal to the prosecution's case (defendant's affirmation at 10-11). Next, defense counsel asserts that the record does not demonstrate a clear indication that relevant evidence would be obtained especially, he argues, since there is no reason to believe that defendant handled either firearm, or that the collected swabs were suitable for comparison without a fixed number of contributors identified by OCME (defendant's affirmation at 12).

Lastly, counsel requests that if the Court were to grant the People's motion, it strike the language authorizing a force order because it would deny defendant's due process to review the actions which purportedly justified the prosecution's method of collection (defendant's affirmation at 16).

The People's Reply

The People endeavored to correct the record by clarifying that after conferring with Sgt. Wicher, the assigned ADA was advised that the subject backpack was actually located on the floorboard of the passenger side seat and not on the driver's seat as previously stated (People's reply affirmation at 2). Specifically addressing issues raised in defense counsel's brief, the People insist that where defendant was the sole occupant of the vehicle, the unzipped backpack within his orbit, and the butt of a firearm plainly visible through the car door left ajar, the presumption of possession which forms the basis of their purported probable cause is sound law - irrespective of where the backpack was located within the van (People's reply affirmation at 7-8). The prosecution further argues that contrary to defense counsel's suggestion that OCME's report of findings failed to include metrics for determining whether the collected swabs were actually suitable for comparison with defendant's exemplar, OCME followed their own established protocols for analysis, and this Court has no scientific basis to second-guess the integrity of their process (People's reply affirmation at 8-9). Lastly, the People assert that the requested force order is conditional in nature, and they further posit that whether OCME would input defendant's DNA into their database is outside their purview (People's reply affirmation at 10).

II. Applicable Legal Standards

Criminal Procedure Law § 245.40 (1) (e), non-testimonial evidence from the defendant, provides, in pertinent part, that:

"(a)fter the filing of an accusatory instrument, and subject to constitutional limitations, the court may, upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material will be found, and that the method used to secure such evidence is safe and reliable, require a defendant to provide non-testimonial evidence, including to: (e) (p)ermit the taking of samples of the defendant's blood, hair, and other materials of the defendant's body that involves no unreasonable intrusion"

(see CPL § 245.40 [1] [e])

Matter of Abe A, et al.

Criminal Procedure Law § 245.40 (1) (e) codified the standard set for in Abe A., the seminal case in which the Court of Appeals found that it could not be concluded as a matter of law "that there was not a substantial predicate upon which to base a finding of probable cause, and there is no serious question but that respondent's blood type would constitute probative evidence" (see Abe A., 56 NY2d 288, 289 [1982]). Further, the high court held that an issuing court "must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it" against the "concern for the suspect's constitutional right to be free from bodily intrusion" (see Abe A. at 291).

Criminal Procedure Law § 265.15 (3) presumptions of possession, unlawful intent and defacement, provides, in pertinent part, that:

"(t)he presence in an automobile, other than a stolen one or a public omnibus, of any firearm [ . . . ] is presumptive evidence of its possession by all persons occupying such automobile at the time [ . . . ]"

(see CPL § 265.15 [3])

However, the presumption of possession is nevertheless rebuttable (see People v Lemmons, 40 NY2d 505, 511 [1976] ["the statutory presumption establishes a prima facie case against the defendant which presumption he may, if he chooses, rebut by offering evidence"]). The Lemmons court further held that "(g)enerally, the presumption will remain in the case for the jury to weigh even if contrary proof is offered but may be nullified if the contrary evidence is strong enough to make the presumption incredible" (see Lemmons at 510; see also People v Williams, 95 AD2d 866 [1983] [The presumption of possession is permissive and may be disregarded by a jury]).

III. The Court's Analysis

Probable Cause

The Court is unpersuaded by arguments advanced by defense counsel who posits that the statutory automobile presumption is undermined by the prosecution's differing factual assertions concerning placement of the backpack within the van and the unanswered questions about whether defendant was aware of the firearms recovered from it. Notably, while counsel claims that defendant was "seated in the back seat of a van being used by others," there is no assertion by the People regarding whether those other individuals standing nearby the van had actually been inside of it. Here, the rebuttable presumption of possession stands where the facts alleged provide that defendant was the sole occupant of the van, and irrespective of whether the backpack was on the driver's seat or the floorboard near the passenger's seat, the record suggests [*3]that the backpack was reachable by defendant (compare People v Heyward, 71 Misc 3d 470, 477, 2021 NY Slip Op 21017 [Crim Ct, Bronx County 2021] [No evidence that defendant, who occupied the driver's seat while his co-defendant occupied the passenger seat, exercised dominion and control over a firearm secreted inside a closed container], with People v Lynch, 116 AD2d 56, 61 [1st Dept 1986] [Evidence demonstrated that the firearm which protruded from a tear in the vehicle's upholstery directly in front of the defendant while he sat in the passenger's seat was within the defendant's reach]).

Additionally, the record at bar, including photographic evidence annexed to the People's reply affirmation as Exhibit 9, corroborates the assertion that the butt of at least one firearm was plainly visible in an unzipped backpack. A well-settled principle holds that "probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely requires information sufficient to support a reasonable belief" (see People v Salcedo, 2001 NY Slip Op 40323[U], * 3 [Sup Ct, Westchester County 2001] citing People v Bigelow, 66 NY2d 417, 423 [1985]). Accordingly, although defendant may yet rebut the presumption of possession inference at trial, the Court finds that the People have met their threshold burden of proof that officers had probable cause to believe that defendant had committed the charged crimes.

Indicia of Relevant Material Evidence

The OCME Laboratory Report concerning the DNA typing results states "samples with sufficient concentration of DNA detected" and, further, provides that one swab from the trigger/trigger guard from both the Beretta and the Taurus Spectrum guns were found to be suitable for comparison (People's reply affirmation as Exhibit 8). Although defense counsel contends that these results are merely preliminary because the number of contributors to these two samples are designated as "Not determined," this Court notes that the OCME report does not specifically exclude them as suitable for comparison- as was the case for the other four swabs collected from the firearms.

The plain reading of the Laboratory Report provides no basis for the Court to impugn the reliability of OCME's protocols or findings. Moreover, it cannot be credibly argued that no relevant material evidence would be ascertained where, if compared with an exemplar from defendant, the results would possibly confirm whether defendant had handled the firearms or provide exculpatory evidence that he did not (see People v Blank, 61 Misc 3d 542, 545, 2018 NY Slip Op 28274 [Sup Ct, Bronx County 2018] ["DNA testing may either include or exclude the defendant from involvement with the firearm"]. The Court finds that the prosecution has satisfied the second prong of CPL § 245.40 (1) (e) (see also Abe A. at 289).

Reliability of Collection Method

Courts have routinely deemed the methodology for collecting a buccal swab to obtain a defendant's DNA safe and reliable (see People v Matos, 37 Misc 3d 252, 262, 2012 NY Slip Op 22217[U], *5 [Crim Ct, Kings County 2012] ["So long as the oral swab test is performed by a trained professional in accordance with accepted procedures prescribed for the taking of an oral swab, the method to be utilized will be deemed safe, reliable and free from unreasonable intrusion or risk of serious physical injury"] citing People v Beecham, 25 Misc 3d 1214[A], 2009 NY Slip Op 52090[U], *3 [Sup Ct, Westchester County 2009]; see also Heyward at 477 [Buccal swab collection is widely accepted as safe and causing little to no discomfort]). The People have satisfied the third prong of CPL § 245.40 (1) (e).

Constitutional Considerations

In weighing the further considerations enunciated in the Abe A. decision concerning the [*4]seriousness of the alleged crime and the unavailability of less intrusive means of obtaining defendant's DNA sample, this Court finds that defendant is charged with having committed multiple offenses, including the top charge- two counts of PL § 265.03 (3) (criminal possession of a weapon in the second degree)- statutorily defined as a Class C violent felony (see PL § 70.02 [1] [b]; see also Abe A. at 289). As previously noted, the prosecution has established the significance of the DNA sample to its investigation which could also yield exculpatory evidence for defendant. Finally, given the safety and reliability of the methodology for obtaining a buccal sample and the unavailability of less intrusive means to collect defendant's exemplar, this Court finds that, on balance, the record supports granting the People's motion to compel a saliva sample from defendant by buccal swab, and for its use in DNA testing and comparison with the specimen identified in forensic biology case file number F25-06377.

The Court is satisfied that defendant's Fourth Amendment rights of personal privacy and to be free from unreasonable search and seizure would not be violated by the grant of the People's motion to compel (see Abe A. at 297-298). However, the Court finds the record bereft of factual allegations that suggest that defendant is unwilling to comply with the court-ordered swab. Thus, the prosecution's request for a force order is denied as premature (see People v Lewis, 35 Misc 3d 1216[A], 2012 NY Slip Op 50718[U], *3 (Crim Ct, Kings County 2012] [The prosecution failed to articulate a basis for arguing that a force order was necessary to obtain the defendant's DNA]).

Defendant's Cross-Motion for a Protective Order

Defense counsel's cross-motion asserts that without a protective order, defendant's DNA will be unlawfully subject to forensic examination and comparison for evidence involving other cases having nothing to do with him (defendant's affirmation at 4). Moreover, counsel argues that although OCME is a local laboratory, its operations are nonetheless subject to the State Executive Law § 995-c (defendant's affirmation at 4-5). Further, counsel avers that in the absence of legislative intent or authority to grant additional powers to OCME, this Court should recognize the particular privacy concerns of individuals such as defendant who are merely suspected but not convicted of crimes if their DNA were indexed by OCME, including uploading his profile to local, state and national databases (defendant's affirmation at 8). Lastly, counsel posits that given the confidentiality provisions set forth in Executive Law Article 49-b, a protective order is necessary to guard defendant's Fourth Amendment rights and to prevent his DNA from being used for any purpose other than the instant prosecution (defendant's affirmation at 10, 13-14).

As a threshold matter, the Legislature enacted Article 49-b to create a commission charged with promulgating "a plan for the establishment of a computerized state DNA identification index within the division of criminal justice services" (Exec. Law § 995-b, et seq.). All state forensic laboratories, including OCME, are subject to the jurisdiction of this state commission and they must operate in accordance with the guidelines established for creating a state DNA database (see Matter of Samy F. v Fabrizio, 176 AD3d 44, 2019 NY Slip Op 06374 [1st Dept 2016] ["There is abundant support for the conclusion that OCME's responsibilities in testing, analyzing and retaining DNA data are subject to the Executive Law"], see also People v K.M., 54 Misc 3d 825, 829, 2016 NY Slip Op 26403 [Sup Ct, Bronx County 2016]).

Additionally, OCME is a part of the "Combined DNA Index System" ("CODIS"), managed by the FBI, which facilitates the sharing of DNA information with local, state and [*5]national databases (see https://www.criminaljustice.ny.gov/forensic/dnadatabank.htm [last accessed July 13, 2026]). As discussed in the K.M. decision, Executive Law § 995-c provides that a laboratory such as OCME is permitted to include a defendant's profile into their DNA identification index to eventually be uploaded to the state data bank only after conviction (see K.M. at 830; see also Exec. Law § 995-c (3) (a) ["Any designated offender subsequent to conviction and sentencing for a crime specified in subdivision seven of section nine hundred ninety-five of this article, shall be required to provide a sample appropriate for DNA testing . . . "] [emphasis added]).

The Legislature recognized the concomitant privacy considerations regarding databases which disseminate DNA results and, thus, "(a)ll records, findings, reports, and results of DNA testing performed on any person shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing" (see Exec. Law § 995-d [1]). However, "results of DNA testing, other than a DNA record maintained in the state DNA identification index, may be disclosed in a criminal proceeding to the court, the prosecution, and the defense" (see Exec. Law § 995-d [2] [emphasis added]). While a straightforward reading of the statutory provisions set forth in Article 49-b demonstrates that the Legislature did not contemplate the storage of pre-conviction suspect profiles in a state identification index, insofar as OCME is subject to the same guidelines established for creating a state DNA database, this Court finds the prohibition applicable to OCME as well (see Fabrizio at 49, see also Matos at 262-263).

This Court is persuaded by arguments advanced by defense counsel that the confidentiality and privacy concerns of a defendant pending his prosecution warrant the issuance of a protective order which constrains OCME from using defendant's exemplar for any other analysis except for the swabs of the Beretta APX 9mm and Taurus Spectrum 380 caliber pistols deemed to be suitable for comparison concerning the instant prosecution.

An accompanying Order has been signed.

CONCLUSION

Based upon the foregoing, the People's motion for an order compelling a buccal swab from defendant Tysean Griiffin for purposes of providing a biological exemplar for DNA analysis in connection with the above-captioned case is GRANTED, however, the Court DENIES that portion of the People's motion that seeks to use all reasonable force necessary to obtain defendant's DNA sample as premature; and

Defendant's cross-motion for a protective order which prohibits OCME from using defendant's DNA exemplar to DNA in any other case except for comparison with the DNA profile developed in forensic biology file numbered F25-06377 is GRANTED.

This constitutes the opinion, decision, and order of the Court.

Dated: July 16, 2026

Bronx, New York

HON. YADHIRA GONZÁLEZ-TAYLOR, A.J.S.C.