Criminal Court of the City of New York, Kings County
Counsel for the People: Ms. Stephanie Parker.
Counsel for the Defense: The Legal Aid Society by Mr. Clinton Hughes, Esq.
Robert D. Kalish, J.
Upon the submitted papers, the People's motion to compel the Defendant Ivan Matos to permit the taking of oral swab samples from his body pursuant to CPL 240.40 and the Defendant's cross-motion for a protective order pursuant Executive Law §995-d restricting the disclosure of the results of said testing are both granted as follows:
In the instant criminal action, the Defendant is charged with crimes stemming from two separate alleged time and places of occurrence ("TPOs").
On the first TPO on or about December 27, 2011 at approximately 12:10 p.m. at 177 Avenue T, Apt 1F in Kings County, the Defendant is charged with violating Penal Laws §§ 120.0 - Assault in the Third Degree (Class A Misdemeanor); 130.52 - Forcible Touching (Class A Misdemeanor); 130.60 - Sexual Abuse in the Second Degree (Class A misdemeanor); 135.05 - Unlawful Imprisonment in the Second Degree (Class A Misdemeanor); 110/120.00 - Attempted Assault in the Third Degree (Class B Misdemeanor); 120.15 - Menacing in the Third Degree (Class B Misdemeanor); and 240.26 - Harassment in the Second Degree (Violation)
On the second TPO on or about December 27, 2011 at approximately 5:00 a.m. at 1925 Bath Avenue in Kings County, the Defendant is charged with violating Penal Laws §§ 145.00 - Criminal Mischief in the Fourth Degree (Class A Misdemeanor) and 145.60 - Making graffiti (Class A Misdemeanor).
The People now move pursuant to CPL §240.40[b][v] for an order to permit the taking of an oral swab from the Defendant's body. The Defendant opposes and cross-moves for a protective order pursuant Executive Law §995-d.
The People indicate in their moving papers that on December 27, 2011 the Defendant allegedly used his penis to penetrate the victim's vagina without the victim's consent. The People argue that in preparation for trial they intend to submit a DNA sample from the Defendant, specifically, oral swab samples for DNA testing and analysis. The People intend to compare the Defendant's DNA sample with the male DNA profile recovered from a swab taken from the victim in the instant criminal action. The People indicate that if the Defendant's DNA matches the DNA from an amylase recovered from the swab taken of the victim subsequent to the alleged incident, then sexual contact between the Defendant and the victim will be established.  The People conclude that based upon said arguments, they have met the requirements of CPL 240.40[b] to compel the Defendant to submit to an oral swab DNA test.
In opposition, the Defense argues that the People have failed to timely move to permit the taking of an oral swab sample. Specifically, the Defense argues that the People did not move for an oral swab until roughly 116 days after receiving a report indicating that amylase was allegedly found in a vulvar swab taken from the victim that could be compared to the Defendant's DNA. The Defense further argues that the People have not established a clear indication that relevant material evidence will be found from the oral swab. Specifically, the Defense argues that the People have failed to establish that the requested oral swab test is "safe and reliable". The Defense further argues that the People have failed to provide the Defense with certain documents, which prevents the Defense from commenting upon whether the testing methods are safe and reliable. The Defense further argues that the People have not responded to discovery requests that are necessary for the Defense to oppose the instant motion. Finally, should this Court grant the People's instant motion, the Defense cross-moves pursuant to Executive Law §995-d for a protective order limiting disclosure of the DNA test results to only the court, the prosecution and the Defense in the instant criminal matter.
In their reply to the Defendant's opposition, the People reiterate that they intend to compare the Defendant's DNA sample recovered from the requested oral swab to the male DNA profile recovered from the swab taken of the victim in the instant case. The People further argue that there was a delay in the assigned ADA's receipt of the OCME laboratory report indicating that the DNA of an unidentified male had been recovered from the victim's swab test. Specifically, the People argue that on or about January or February of 2012, the People received a laboratory report from the OCME indicating that amylase was recovered from a vulvar swab of the victim, however said report did not indicate that male DNA was recovered. The People indicate that since amylase is commonly present in the female vulva, they did not move to compel an oral swab test of the Defendant at that time. The People further indicate that on April 17, 2012, they were informed by the NYPD OCME liaison unit that the OCME had recovered a positive DNA result from the amylase. The People indicate that on April 19, 2012, they contacted the OCME and requested any additional reports in regards to the instant case. The People affirm that on April 19, 2012 they received the OCME laboratory report indicating that the victim and an unknown male's DNA were found from the vulvar swab.
The People argue that the assigned ADA did not receive the OCME report until April 19, 2012 and only after making proactive efforts to contact and obtain said report from the OCME. The People further argue that once they received the OCME report indicating that male DNA had been recovered from the vulvar swab, they made the instant motion within 20 days thereafter (on May 8, 2012). Therefore, the People argue that there was "good cause" for their delay in moving to compel an oral swab pursuant to CPL §240.40.
In the alternative, the People argue that the 45 day time limit of CPL 240.90 does not apply to non-testimonial evidence, including DNA evidence obtained from oral swab tests. Specifically, the People argue that said evidence is non-testimonial in nature and does not implicate the Defendant's constitutional rights. The People do not include in their reply papers any objection to the Defendant's motion ...