NY (Bronx): No “clear indication” shown to connect defs to gun in trunk to compel DNA test

The state doesn’t show a “clear indication” to take DNA samples from three defendants to attempt to connect them to a gun found in the trunk of one defendant’s car that he owned up to. A motion to suppress the case search hasn’t yet been filed. People v. Heyward, 2021 NY Slip Op 21017, 2021 N.Y. Misc. LEXIS 379 (Bronx County Jan. 28, 2021):

As to defendant Colon, as an initial matter the People have not established probable cause to believe that he possessed the gun. Simply being present in a car that someone else was driving does not indicate that he even knew that a gun was in the trunk, inside a closed container, inside someone’s personal bag. Furthermore, even if he had any knowledge that one of his companions had a gun in the trunk, the People present no facts that would indicate that Colon, the backseat passenger, in any way exercised dominion and control over the weapon, as is necessary to legally constitute possession. (PL 10.00[8]; People v. Ballard, 133 Misc 2d 584, 507 N.Y.S.2d 572 [Sup Ct, NY, 1986]).

For similar reasons, the People have not alleged any facts that create a “clear indication” that Colon’s DNA would be found on the gun. The People do not allege that Colon ever handled the gun. The allegations presented by the People are that the gun belongs to Iglesias, based on his statement to the police that the gun was his, which is reinforced by Heyward’s statement also asserting that the gun belongs to Iglesias. Colon disclaimed any knowledge of the gun’s existence, and the People have provided no basis to conclude otherwise. The “clear indication” that the intrusion will supply probative evidence is a prerequisite for an infringement on bodily integrity and privacy as the People are requesting here. (Winston, 470 US at 762; Abe A., 56 NY2d at 297; Schmerber, 384 US at 770.). As the People have not met the basic, preliminary requirements necessary for the issuance of the order, the People’s motion as to defendant Colon is denied.

It should be noted that the People may not rely on the “automobile presumption” to establish probable cause for the purpose of the present inquiry. The “automobile presumption” codifies the commonsensical conclusion that where a gun is found in a car, that may, but need not, be taken as some evidence that everyone in the car at the time possessed it. (See PL 265.15[3], “the presence in an automobile of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found[]”). However the presumption is unconstitutional in the absence of “a reasonable basis for concluding that the defendant had control over the weapon.” (People v. Porter, 133 Misc. 2d 584, 590-591, 507 N.Y.S.2d 572, citing Ulster County Court v. Allen, 442 US 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]).

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