People v Thomas

Criminal Court of the City of New York, New York County

Decided on March 9, 2026

Docket No. CR- 022742-25NY

Kacie A. Lally, J.

Defendant Frank Thomas is charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [1] [b]), Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [3]), Criminal Possession of a Weapon in the Third Degree (PL § 265.02 [1]), Criminal Possession of a Firearm (PL § 265.01-b [1]), and Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01 [1]). The People move, pursuant to Criminal Procedure Law § 245.40 (1) (e), for an order requiring the Defendant to provide a saliva and buccal cell sample for DNA analysis. The People seek this sample to compare it to forensic evidence collected during their investigation of this case. The Defendant opposes the motion. The Defendant also requests, if the People's motion is granted, "a hearing and the imposition of strict limitations on the use, retention, and dissemination of any biological material obtained" (Defendant's Memorandum of Law at 4).

According to the sworn allegations in the felony complaint and additional facts contained in the People's affirmation, on July 18, 2025, at 1:46 A.M., across from 250 West 135th Street, in New York County, police officers observed the Defendant driving a white Kia sedan. The Defendant's wife, separately charged co-defendant Shaniqua Thomas, was seated in the passenger seat. Police Officer Braulio Roman observed the Defendant park the white Kia in front of a fire hydrant and exit the vehicle. Officer Roman further observed that the Defendant was wearing a bullet-proof vest, and carried a taser, mace, and an imitation pistol on his person.

NYPD officers arrested the Defendant, and transported both the Defendant and the white Kia to the 32nd precinct. At the precinct, NYPD officers conducted an inventory search of the [*2]white Kia. The officers recovered a switchblade from the front passenger side,^FN1 and a purse^FN2 from the front passenger seat. A .22 caliber pistol with one bullet inside the chamber was recovered from the purse.

Swabs were taken from multiple areas of the firearm and submitted to the Office of the Chief Medical Examiner ("OCME") for DNA analysis. An OCME criminalist examined the DNA mixtures developed from the swabs and produced a report. The report states that there are four contributors to each sample taken from the firearm's "trigger," "handle," and "barrel area." The report concludes that although no DNA profiles could be determined from any of the samples, the results for each sample are suitable for comparison.

An order to obtain a saliva and buccal cell sample for DNA analysis may only issue if the People establish "(1) probable cause to believe the suspect has committed the crime, (2) a 'clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable." (Matter of Abe A., 56 NY2d 288, 291 [1982].) The issuing court must also "weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other" (Id.; see also People v Goldman, 35 NY3d 582 [2020]).

The Defendant asserts that the People have failed to establish probable cause to believe he possessed the firearm, as the factual allegations do not demonstrate a nexus between the Defendant and the recovered firearm. He argues that the firearm was not recovered from his person; he was not observed carrying either the purse or the firearm; and the People have not shown probable cause to believe that he owned the firearm.^FN3 The People respond that both the Defendant and his wife are charged with jointly possessing the firearm under the automobile presumption, pursuant to Penal Law § 265.15 (3) (a).

Penal Law § 265.15 (3) (a) provides that the presence of a firearm in an automobile is presumptive evidence of its possession by all occupants, unless the weapon is found upon the person of one occupant (PL § 265.15 [3] [a]). Moreover, the "placement of a weapon in a handbag does not necessarily indicate that the owner of a handbag is in sole and exclusive possession of the weapon" (People v Lemmons, 40 NY2d 505, 511 [1976]). Rather, "whether [*3]the owner of the handbag is the sole possessor of the weapon depends upon the access to the bag that others may have and whether the others have knowledge of its contents" (Id.).

Here, the People allege that the Defendant and his co-defendant wife drove together in the white Kia from Niagara Falls to New York County. When they reached New York County, Officer Roman observed the Defendant exit the vehicle wearing a bullet-proof vest, and carrying a taser, mace, and an imitation pistol. NYPD officers recovered the firearm from the passenger seat of the vehicle, not the co-defendant's person, thus triggering the automobile presumption (PL § 265.15 [3] [a]). The fact that the firearm was found in a "purse" in the passenger seat does not vitiate this presumption (Lemmons, 40 NY2d at 511). Rather, the facts alleged by the People, taken together, establish probable cause to believe that the Defendant possessed the firearm.

Contrary to the Defendant's contention, the People need not establish probable cause that the Defendant "owned" the firearm. Each of the charges against the Defendant prohibits "possession" of a weapon; "ownership" is not an element of any charge. (Criminal Possession of a Weapon in the Second Degree [PL § 265.03 [1] [b]] [with intent to use unlawfully against another, defendant "possesses a loaded firearm"]; Criminal Possession of a Weapon in the Second Degree [PL § 265.03 [3]] [defendant "possesses any loaded firearm" unless "such possession takes place in [defendant's] home or place of business"]; Criminal Possession of a Weapon in the Third Degree [PL § 265.02 [1]] [defendant commits the crime of "criminal possession of a weapon in the fourth degree" and has been previously convicted of any crime]; Criminal Possession of a Firearm [PL § 265.01-b [1]] [defendant "possesses any firearm"]; Criminal Possession of a Weapon in the Fourth Degree [PL § 265.01 [1]] [defendant "possesses any firearm"]).

There is a clear indication that a buccal swab will supply material probative evidence. After examining swabs taken from the firearm, the OCME has determined that testable forensic evidence obtained therefrom can be further analyzed if compared to a buccal swab sample of the Defendant's DNA profile. Such a comparison could "be relevant and material to both the People and defense in either the implication or exoneration of Defendant" (People v Macias, 65 Misc 3d 1225[A], 2019 NY Slip Op 51846[U] [Crim Ct, Kings County 2019]).

Finally, it is well established that the method for obtaining buccal cell samples, swabbing inside the cheek, is safe, reliable and minimally intrusive (see Maryland v King, 569 US 435 [2013]; Matter of Abe A, 56 NY3d 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 prosecution's request.

Accordingly, the People have met their burden to obtain a saliva and buccal cell sample from the Defendant for DNA analysis. The Court thus considers the Defendant's request to limit the use, retention, and dissemination of the Defendant's DNA.

Executive Law § 995-d provides that the "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." While some courts have held that Executive Law § 995-d does not prohibit the OCME from uploading DNA samples collected during the investigatory proceedings, (see, e.g., People v Torres, 85 Misc 3d 1261[A] [Crim Ct, Kings Cty 2025]; People v Chiclana, 85 Misc 3d 1267[A] [Sup Ct, Erie Cty 2025]), this Court notes that "[a]n individual maintains a significant interest in the use of his or her genetic material" (Macias, 65 Misc 3d 1225[A], *3; see also People v Halle, 57 Misc 3d 335, 344-48). The Court thus finds good cause [*4]to issue a protective order limiting the use and dissemination of the Defendant's DNA profile. The OCME is hereby ordered not to upload the DNA profile of the Defendant to any local, state, or federal databases, unless and until the Defendant is convicted and sentenced in this matter (see People v K.M., 54 Misc 3d 825 [Sup Ct, Bronx County 2016]; Halle, 57 Misc 3d at 344-48).

Accordingly, it is

ORDERED that the Defendant present himself to an authorized member of the New York City Police Department or an investigator employed by the New York County District Attorney's Office for the purpose of taking saliva and buccal cells from his body; and it is further,

ORDERED that the Defendant submit to the taking of saliva and buccal cells from his body by a member of the New York City Police Department or an investigator employed by the New York County District Attorney's Office and that the taking of such samples take place at the 12th floor bridge, 100 Centre Street, New York, New York, or at the Five Points Correctional Facility in Niagara Falls, New York, at the District Attorney's Squad office;^FN4 and it is further,

ORDERED that the Defendant's counsel or a representative of the Defendant's counsel be permitted to be present at the time such samples are taken from the Defendant's body; and it is further,

ORDERED that the Office of the Chief Medical Examiner, Department of Forensic Biology take possession of said samples; and it is further,

ORDERED that the Office of Chief Medical Examiner, Department of Forensic Biology strictly and solely compare the DNA profile of the Defendant to the evidence in this case, specifically, the swab of the firearm's "trigger," "handle," and "barrel area"; and it is further,

ORDERED that the Office of Chief Medical Examiner, Department of Forensic Biology, refrain from entering the DNA profile of the Defendant into the local, state, or federal DNA identification index systems.

This opinion constitutes the decision and order of the Court.

Dated: March 9, 2026

New York, New York

Kacie A. Lally, J.C.C.