the People: ADA Cassandra Pond, Kings County District
Defendant Jermaine Halle: Noor Ahmad, Esq.
Defendant Dhaylon Feggins: Michael Colihan, Esq.
R. JOHNSON, J.
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 ). 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
, 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.
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.
(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). 
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.
25, 2017, OCME's response to the subpoena was delivered
to the Court.  OCME had supplied copies of the
responsive documentation for defendant Halle and for the
People, which those parties collected from the Court.
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
matter is now fully submitted for the Court's decision.
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]).
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  [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
). 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 ) 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).
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.
Sufficiency of the ...