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People v. Halle

Supreme Court, Kings County

June 12, 2017

The People of the State of New York,

          For the People: ADA Cassandra Pond, Kings County District Attorney's Office.

          For Defendant Jermaine Halle: Noor Ahmad, Esq.

          For Defendant Dhaylon Feggins: Michael Colihan, Esq.

          LAURA R. JOHNSON, J.

         Defendants have been charged in felony complaints with various offenses including the class C felony of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]). It is alleged that defendants were passengers in a vehicle in which a loaded gun was recovered. The People seek orders pursuant to Matter of Abe A., 56 N.Y.2d 299, 291 [1982], compelling each defendant to submit to a buccal swab for the purpose of collecting a DNA sample in order to determine if his DNA matches DNA from swabs of the gun. Defendants oppose the application or, in the alternative, seek a protective order preventing any sample ordered by this Court from being maintained in the Medical Examiner's local database. For the following reasons, the request for an order to compel each defendant to provide a sample of his DNA is GRANTED, albeit with a PROTECTIVE ORDER.


         According to the felony complaints, the allegations in the parties' motion papers, and the notices served pursuant to CPL 710.30, at approximately 10:18 p.m. on January 3, 2017, Officer Salvatore Melore observed a taxi or livery car run through a red light without stopping. At police direction, the car pulled over in front of 946 Ashford Street in Kings County. Defendant Halle was seated in the front passenger seat and defendant Feggins was seated in the rear passenger-side seat behind Halle, and a third individual, Joshua Berrroa, was seated behind the driver. Officer Melore observed a lit marijuana cigarette in defendant Feggins's hand, a quantity of marijuana was recovered from the person of defendant Halle, and a loaded revolver was observed on the rear driver's side floor near Berroa's feet. [1]

         The gun (which is identified in the felony complaints as a.32 caliber revolver, but in other paperwork including the People's motion as a.38) was swabbed in various locations and those swabs were submitted on January 10, 2017 to the Office of the Chief Medical Examiner (OCME) for DNA testing. On March 16, 2017, OCME issued a report of its analysis of Lab No. FB17-00235 indicating that a mixture of DNA from three contributors was found on all three swabs. From the swab of the trigger and trigger guard, OCME reported that it was able to develop a 22-locus DNA profile of "Male Donor A, " who had contributed 85% of the DNA mixture on that swab. While no individual contributor's profile could be developed from the DNA mixtures on the other two swabs, OCME reports that the results of those swabs are nonetheless "suitable for comparison, " meaning that upon submission of a DNA sample from a known person, it might possibly be determined whether that person can be excluded or included as one of the three contributors to the mixture (People's Exh 1). [2]


         By motion filed March 30, 2017, the People now seek to obtain a DNA sample directly from each defendant so that they may compare it to the mixtures of DNA found on the gun, including the DNA profile of "Male Donor A." In papers filed April 25, 2017, defendant Halle opposed the motion and, in the alternative, cross-moved for a protective order limiting the use of any court-ordered sample to this investigation. Defendant Halle also applied to this Court for a subpoena addressed to the OCME, seeking information about any comparison of the swabs from the gun in this case to any "existing DNA profile" of defendant Halle. The Court ordered that subpoena on April 26, 2017. On May 10, 2017, this Court received papers from defendant Feggins, also opposing the People's application and, in the alternative, seeking a protective order.

         On May 25, 2017, OCME's response to the subpoena was delivered to the Court. [3] OCME had supplied copies of the responsive documentation for defendant Halle and for the People, which those parties collected from the Court.

         The initial briefing schedule on the People's motion included an opportunity for them to submit Reply papers on May 30, 2017. On May 18, the Court notified all parties of its request that the People's Reply include clarification as to whether OCME was in possession of a putative profile of Halle's DNA, whether any such profile was subject to a protective order, and whether any such profile had been compared to the swabs from the gun in this case. On May 30, 2017, the People submitted an Affirmation and Memorandum in Reply.

         The matter is now fully submitted for the Court's decision.



         At the outset, this Court rejects defendant Halle's contention that this Court lacks jurisdiction to compel the production of DNA at this stage of the proceedings. In Matter of Abe A., 56 N.Y.2d 288, such an order was found to be a lawful and proper mechanism to compel evidence when an investigation was in a pre-arrest stage. Contrary to defendant's assertion, the filing of a felony complaint does not require the People to cease investigation and seek an indictment based only on the evidence they already have, nor do the rules of CPL Article 240 applicable to indicted cases suggest that an application for a search warrant or court order is precluded between the filing of a felony complaint and an indictment. Where a felony complaint is pending, defendant's Fourth, Fifth, and Sixth Amendment rights are all protected by the requirement that District Attorney make, on notice to the defense with an opportunity to respond, an application setting forth the showing of probable cause described in Abe A. Only then will a court compel an individual to provide a DNA sample or other non-testimonial evidence (Matter of Abe A., 56 N.Y.2d at 296; see also People v Benitez, 33 Misc.3d 1232 (A) [Sup Ct Bronx County 2011]; People v Salcedo, 2001 NY Slip Op 40323[U], 2001 WL 1537673 [Sup Ct Westchester County 2001]; see also People v Pastorius, 272 A.D.2d 944, 944-45 [4th Dept 2000] [court had jurisdiction to order lineup even though pending accusatory instrument was a felony complaint]; People v Shields, 155 A.D.2d 978, 978 [4th Dept 1989] [same]). [4]

         At the same time, likening the DNA Order to a search warrant, defendant Halle argues that evidence recovered pursuant to the execution of that order should be returned to the Court, and not to OCME (CPL 690.55) (Halle Opp. ¶ 19). The provisions governing search warrants grant the Court the authority to grant physical custody of evidence seized pursuant to a warrant to the agency that sought the warrant (CPL 690.55 [1] [b]), allowing the agency to subject it to forensic examination - with outside assistance as necessary (see People v DeProspero, 20 N.Y.3d 527, 531 [2013]). The Court of Appeals declaration that "the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency" (People v Washington, 86 N.Y.2d 189, 192 [1995]) by no means precludes law enforcement from submitting evidence obtained pursuant to search warrant or court order to OCME for analysis. On the contrary, the medical examiner is frequently called upon and "may play an important role even in nonhomicide cases by supplying the People with critical biochemical forensic analyses, such as serology testing and DNA profiling" (id. at 196).

         As the Court of Appeals has stated, "[n]omenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is." (Matter of Abe A., 56 N.Y.2d at 294). So long as the requirements of Abe A. are met, then, this Court has authority to issue an order requiring defendant to provide a DNA sample and authorizing the testing of that sample by OCME.

         The Sufficiency of the ...

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