The People of the State of New York v. Kenneth Johnson, Defendant. (2026)

Defendant Kenneth Johnson is charged with Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16 [1], [12]), Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [1] [b], [3]), Criminal Possession of a Controlled Substance in the Fifth Degree (PL § 220.06 [5]), and Criminal Possession of a Firearm (PL § 265.01-b [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. For the reasons set forth below, the People's motion is denied at this time, with leave to renew.

I. Factual Allegations

a. Felony Complaint

The felony complaint is signed by NYPD Officer Palwasha Ali. According to the felony complaint, the complainant informed Officer Ali that on September 16, 2025, at 4:49 PM, in front of 71 West 112th Street, in New York County, the Defendant pointed a turquoise firearm at the complainant. The Defendant then entered his vehicle and began to drive away, and the complainant entered his own vehicle and followed the Defendant. A few minutes later, the complainant observed the Defendant stop, exit his vehicle, and "discard the turquoise-colored firearm into the nearby sidewalk/street area." Officer Ali observed the turquoise firearm on the ground. Officer Ali observed a member of the NYPD Evidence Collection Team process the firearm, and it was determined to be loaded with seven rounds of ammunition in the magazine, and one round in the chamber. Officer Ali also conducted an inventory search of the Defendant's vehicle and recovered from the trunk a bag containing a mason jar with what she believed to be phencyclidine, and a bag on the front passenger seat containing substances she believed to be crack/cocaine heroin, fentanyl, and crystal methamphetamine.

b. People's Motion Papers

The People's affirmation in support of their motion for a buccal swab supplements and, in some respects, appears to deviate from, the allegations in the felony complaint. According to the People, on September 16, 2025, at approximately 4:49 PM, the complainant approached the Defendant's vehicle near Park Avenue and 115th Street, in New York County. The complainant sought to purchase marijuana from the Defendant, but did not have sufficient money to complete the transaction. The complainant told the Defendant that he needed to go to an ATM, which angered the Defendant. The Defendant, from inside his vehicle, pointed a green firearm at the complainant, and then drove away. The complainant entered his own vehicle and began to follow the Defendant. The complainant then called 911, and provided a description of the Defendant's vehicle, namely, a black Mercedes Benz with Florida license plate QNB238.

Video surveillance from 4:55 PM depicts a black Mercedes Benz with Florida license plate QNBH38 parking on Lenox Avenue between West 112th and 113th Streets. The Defendant exits this vehicle, and speaks with an unknown male. The Defendant then returns to his vehicle, retrieves a dark-colored duffle bag from inside, and places the bag on the ground next to a nearby vehicle that is parallel parked on Lenox Avenue. The video further depicts the unknown male walking toward the location of the duffle bag, bending down beside the parked vehicle, and walking away with the duffle bag in his hand.

According to the People, the complainant arrived at this location while these events were transpiring, and the police responded shortly thereafter. The complainant observed the Defendant, who was walking on Lenox Avenue in the direction of West 112th Street, and identified the Defendant to officers as the individual who had pointed a firearm at him. Officers stopped the Defendant pending an on-scene investigation, and a search for the weapon began.

A turquoise firearm was recovered on the ground on Lenox Avenue next to the parked vehicle, in the "immediate vicinity of where the Defendant was observed," via video surveillance, discarding the duffle bag. The complainant confirmed to officers that the recovered firearm was the firearm that the Defendant had pointed at him approximately fifteen minutes earlier. The Defendant was arrested. The firearm was processed, and was determined to be operable, and loaded with seven rounds of ammunition in the magazine and one round in the chamber. Narcotics and a scale were recovered during an inventory search of the Defendant's vehicle. Swabs were taken from multiple areas of the firearm and submitted to the Office of the Chief Medical Examiner ("OCME") for DNA analysis.

II. Procedural History

On September 17, 2025, the People filed a felony complaint charging the Defendant with Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16 [1], [12]), Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [1] [b], [3]), Criminal Possession of a Controlled Substance in the Fifth Degree (PL § 220.06 [5]), and Criminal Possession of a Firearm (PL § 265.01-b [1]). The Defendant was arraigned the same day. The case was adjourned to September 22, 2025, for grand jury action.

On September 22, 2025, the People presented the case to the grand jury and requested a vote on the three weapons-related counts.¹ The People informed the grand jury that they would continue the presentation with respect to the controlled substance counts. The grand jury voted no affirmative action on the submitted weapons counts.² The case was adjourned to November 13, 2025, for grand jury action.

On September 23, 2025, the People informed the grand jury that they were withdrawing the presentation of the case.

On November 13, 2025, there was no grand jury action. The People stated that they were awaiting DNA test results from the OCME prior to seeking leave to represent the case to the grand jury. The case was adjourned to January 21, 2026, for grand jury action.

On November 18, 2025, following receipt of test results from the OCME, the People filed and served off-calendar the instant motion seeking a sample of the Defendant's DNA. In support of the motion, the People provided an OCME report stating that samples were taken from the firearm's "trigger and trigger guard," "side grips, front/back straps," and "slide and slide grooves." The report concluded that although no DNA profiles or number of contributors could be determined from any of the samples, the results for each sample are suitable for comparison.

In court on January 21, 2026, the Defendant filed an opposition to the People's motion.³ The Court set a date for the People to file a reply, and the case was adjourned to March 5, 2026, for the Court's decision.

On February 11, 2026, after reviewing the parties' motion papers, the Court requested additional information from the People. Specifically, the Court requested a copy of the grand jury minutes for in camera review. In addition, the Court requested that the People provide further information regarding an apparent factual inconsistency between the felony complaint and the People's motion papers. The case was adjourned to April 17, 2026, for the Court's decision. At the Defendant's request, the case was administratively adjourned from April 17, 2026 to April 20, 2026.

III. Legal Arguments

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]). Probable cause exists where

evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

(CPL 70.10 [2]; see People v. Maldonado, 86 NY2d 631, 635 [1995]).

The Defendant contends that the People have failed to establish probable cause, because (1) the allegations in the felony complaint differ from the allegations set forth in the People's motion papers, (2) the People's motion fails to establish the basis for its factual allegations, and (3) the People have already presented the allegations to the Grand Jury, which voted no affirmative action as to the weapons-related charges.

Here, the felony complaint alleges that the complainant observed the Defendant "discard the turquoise-colored firearm into the nearby sidewalk/street area." The People's motion papers, however, appear to concede that the complainant did not, in fact, observe the complainant discard the firearm. According to the People's motion, "it is the People's theory that when the defendant discarded the . . . duffle bag, the turquoise firearm" was "inside of the bag; however, when the . . . unknown male associate retrieved the duffle bag from the ground," the "male associate removed" the firearm and "left it on the ground prior to walking away from the scene with the bag."

The difference between the original allegations in the felony complaint and the People's theory, as informed by their review of the surveillance footage, could potentially reflect upon the complainant's credibility. The veracity of the complainant is clearly important, as it is the complainant's representation that the Defendant pointed a firearm at him. In addressing the apparent discrepancy between the factual allegations in the felony complaint and their motion, the People contend that the felony complaint contains an "oversimplified version of events," based on the complainant's allegations and the officers' observations.

The discrepancy is not necessarily fatal to a finding of probable cause. Moreover, the fact that the grand jury voted no affirmative action on the weapons-related charges, while potentially relevant to the Court's probable cause inquiry (see People v Chance, 87 Misc 3d 1220[A], 2025 NY Slip Op 51639[U], *6 [Crim Ct, Bronx County 2025]), is likewise nondispositive. Here, however, the factual discrepancy, combined with the lack of clarity regarding the specific basis for the factual allegations in the People's motion papers, renders the Court unable, on the information provided, to determine that the evidence "appears reliable." (CPL 70.10 [2])

The People forthrightly state that the complainant is "not cooperative," and that "all efforts to speak with" him have been "unsuccessful." Certain facts are thus necessarily unclear: the complainant's location and viewpoint at the time the Defendant discarded the duffle bag; whether the complainant saw the Defendant place the firearm into a duffle bag; or what the complainant intended to convey when he asserted that he had observed the Defendant "discard" the firearm.

On the other hand, the People's motion papers have provided a narrative of the alleged events, which includes corroborative evidence for the complainant's claims. The complainant asserted that he attempted to purchase narcotics from the Defendant, and in doing so, angered him; that the Defendant pointed a turquoise firearm at him at Park Avenue and 115th Street; and that the Defendant then drove away in his vehicle, a black Mercedes Benz with Florida license plate QNB238. Approximately ten minutes later, video surveillance footage depicts a black Mercedes Benz with Florida license plate QNBH38—a mere one-digit difference—arrive a few blocks away at Lenox Avenue and 112th Street. The Defendant is captured on video surveillance footage placing an object next to a parked vehicle, and a turquoise firearm is subsequently recovered from under that vehicle.

What is missing is a detailed factual basis for the People's narrative, as it is set forth in their motion papers. Because the complainant is not cooperative, and because an apparent factual inconsistency exists between the complainant's initial statements and the video surveillance, it is all the more important that the People detail a clear chronology of events: what information was conveyed, to whom, and when. For example, the complainant informed NYPD officers that the Defendant had pointed a green firearm at him. The unusual color of the firearm described by the complainant, and the recovery of a similar-colored firearm, could certainly contribute to a finding of probable cause. It is unclear, however, when the complainant informed officers regarding the color of the firearm.⁴

Similarly, the People allege that the complainant approached the Defendant's car to purchase marijuana from him at Park Avenue and 115th Street, that the complainant did not have sufficient money for the transaction, and that the Defendant became angry. Presumably the complainant provided that statement to a member of the NYPD at some point during the NYPD's investigation of the case. Yet it is unclear when, and to whom, the complainant made this statement.

This is not to cast doubt upon the People's good-faith representations in their motion papers. Based upon the circumstances here, however, including the apparent inconsistency in the evidence, the noncooperation of the complainant, and the grand jury's vote of no affirmative action on the weapons-related charges, the Court requires additional information to determine whether the evidence provided "appears reliable" (CPL 70.10 [2]). The People's motion is denied at this time, with leave to renew upon a more thorough record regarding the specific factual bases for the allegations set forth in the People's motion papers.

This opinion constitutes the decision and order of the Court.

Dated: April 17, 2026

New York, New York

Kacie A. Lally, J.C.C.

FOOTNOTES

1.   At his arraignment, the Defendant served the People with notice, pursuant to CPL 190.50, that he intended to testify before the grand jury. On September 22, 2025, the Defendant withdrew this notice. On November 13, 2025, the Defendant again served notice that he intended to testify before the grand jury.

2.   The grand jury did not dismiss the submitted counts, nor did it indict the Defendant on those counts. Rather, the grand jury voted "no affirmative action" (see People v Gordon, 13 Misc 3d 618 [Sup Ct, Kings Cty 2006]).

3.   The Defendant argues, inter alia, that the People's motion should be denied because they already have access to his DNA profile based on a prior felony conviction in New York State in 2015. The People respond that they are prohibited from accessing the Defendant's DNA in the convicted offender portion of the state DNA index for use in the instant proceeding. The Court does not reach this issue, as it denies the People's motion on other grounds.

4.   [REDACTED]

Kacie A. Lally, J.