The People of the State of New York v. Malvin Rodriguez Lora, Defendant. (2026)

Defendant Malvin Rodriguez Lora (hereinafter, the "Defendant"), together with co-defendants Donell Soto and Juan Delgado Lopez, is charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03 [1] [b], [3]), and Criminal Possession of a Firearm (PL § 265.01-b [1]). The People move, pursuant to Criminal Procedure Law § 245.40 (1) (e) and (g), for an order requiring the Defendant to provide a saliva and buccal cell sample for DNA analysis by the Office of the Chief Medical Examiner ("OCME"). The People seek this sample to compare it to forensic evidence collected during their investigation of this case. The Defendant opposes the motion. If the Court grants the People's motion, then the Defendant cross-moves for a protective order prohibiting the OCME from uploading his DNA profile into its databank and limiting the use of his DNA sample exclusively to these proceedings. The People oppose the Defendant's cross-motion. For the reasons set forth below, the People's motion is denied; therefore, the Defendant's cross-motion is moot.

According to the sworn allegations in the felony complaint and additional facts contained in the People's affirmation, on August 21, 2025, at approximately 10:43 PM, Police Officer Feliz Cruz observed the Defendant and co-defendants "in front of" 175 East 105th Street, New York, New York. Officer Cruz then observed co-defendant Soto run toward Lexington Avenue along East 105th Street; Officer Cruz further "observed a high capacity magazine containing seven (7) 9m [sic] cartridges inside of [co-]defendant Soto's right pant pocket."

The People affirm that "there was a period of time in between the officers following after [co-] defendant Soto where no officers were outside of the 175 E 105 Street location." Subsequently, NYPD Sergeant Reuben Antwi recovered from "outside of 175 East 105th Street" an "open backpack." The backpack contained a "black 9mm firearm containing a magazine with six (6) rounds," as well as an additional "black 9mm firearm without a magazine." The 9 mm firearm matched the caliber of the magazine recovered from co-defendant Soto's pocket.

The Defendant and co-defendants were arrested. The People contend that while the Defendant was in pre-arraignment custody, he discarded a bottle. NYPD officers secured the bottle, vouchered it, and submitted it to the OCME for analysis. NYPD officers also took swabs from the recovered firearms and magazine and submitted those swabs to the OCME for DNA analysis. Specifically, swabs were taken from the "trigger/trigger guard," "side grips," "front/back straps," "slide grip grooves," and "slide release" of both firearms, as well as the live cartridges from the 9mm caliber magazine.

An OCME criminalist examined the DNA mixtures developed from the swabs of the firearms, magazine, and bottle, and produced a report.¹ With regard to the Ruger firearm, the report states that samples with sufficient concentration of DNA were detected on swabs from the firearm's "back strap, front strap, and side grips." The report concludes that the number of contributors to the mixture is three, and although no DNA profiles for the individual contributors could be determined, the results are suitable for comparison. The report concludes that the swabs taken from the "trigger and trigger guard," and "slide grips grooves and magazine release" of the Ruger firearm were not analyzed due to an insufficient concentration of DNA.

With regard to the Glock firearm, the report states that samples with sufficient concentration of DNA were detected on swabs from the firearm's "trigger and trigger guard," and "slide grips grooves and magazine release." On the "trigger and trigger guard" sample, a DNA profile for Female Donor A, who is 94% of the mixture, was determined. The report concludes that the number of contributors to the mixture is four, and although no DNA profiles for the additional contributors could be determined, the results are suitable for comparison. On the "slide grips grooves and magazine release" sample, the report concludes that the number of contributors to the mixture is four, and although no DNA profiles for the individual contributors could be determined, the results are suitable for comparison. The swabs from the "back strap, front strap, and side grips" of the Glock firearm had five or more contributors, and are not suitable for comparison.

As to the discarded bottle, the OCME report concludes that the result from the bottle is "uninformative" when compared to the swabs taken from the Ruger and Glock. According to the report, an "uninformative" result "does not support whether the DNA donor to the bottle" is "included or excluded as a contributor to the sample" of either firearm.

On February 10, 2026, following receipt of the OCME report, the People filed a motion for an order requiring co-defendants Soto and Lopez to provide saliva and buccal cell samples for DNA analysis.² The People did not file a motion seeking a saliva or buccal cell sample from the Defendant, based on the DNA result from the discarded bottle; namely, that a comparison of the DNA samples from the bottle with those from the Ruger and Glock were "uninformative."

Subsequently, however, the OCME informed the People that the "same abandonment sample" had been submitted for both the Defendant and another individual (the "Deferred Individual").³ The Deferred Individual is not a co-defendant in this case; that individual's case has been "deferred by the District Attorney's Office for further investigation."⁴ As a result of this error, the previously submitted abandonment sample for the Defendant is no longer suitable for comparison for either the Defendant or the Deferred Individual. On May 5, 2026, the People filed the instant motion seeking a DNA sample from the Defendant.

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]).

Here, the People allege that Officer Cruz observed the Defendant and two other men "outside of" a location. There are no allegations regarding what the men were doing: whether they were speaking to one another; whether they were standing together; or even whether the three men were in any sort of physical proximity to one another. Indeed, neither the complaint nor the People's motion indicates whether the location is an apartment, commercial establishment, or other type of building. Co-defendant Soto at some point began to run, but the complaint contains no such allegation regarding the Defendant.

Nor are there allegations connecting the Defendant to the backpack containing the firearms. The People do not allege that the Defendant was observed holding the backpack, that he was observed in proximity to the backpack, or even that the Defendant was observed in the location at the same time as the backpack. Rather, the People allege that three men were outside of a building; that co-defendant Soto began running and was pursued by NYPD officers; and at some point after co-defendant Soto was apprehended, a backpack was found outside the building. The People affirm that "there was a period of time" when NYPD officers were "following [co-]defendant Soto" where "no officers were outside of the 175 E 105 Street location" (People's Motion at 3). It is thus unclear when the backpack was found: whether it was shortly after co-defendant Soto was apprehended, or a significant period later. It is further unclear where the Defendant was at the time that the backpack was found.⁵

In short, the facts before the Court are not of "such weight and persuasiveness" to indicate that "it is reasonably likely" that the Defendant possessed a firearm (CPL 70.10 [2]). Therefore, the Court finds that the People have not satisfied the first prong under the Abe A analysis, and the motion to compel the Defendant to provide a saliva and buccal cell sample is denied.

This opinion constitutes the decision and order of the Court.

Dated: June 26, 2026

New York, New York

Kacie A. Lally, J.C.C.

FOOTNOTES

1.   The OCME report and People's motion papers refer to one firearm as the "Glock" and the other firearm as the "Ruger."

2.   Those motions were granted on March 6, 2026, and March 9 2026, respectively, by the judges presiding in Part F on those dates. The results of any testing have not been provided to the Court.

3.   No additional information has been provided to the Court regarding this mistake; for example, whether it was the bottle itself that was erroneously submitted for two different individuals, whether one or more swabs were assigned to two different individuals' profiles, or whether some other oversight or issue occurred.

4.   No further information is provided regarding the identity of this individual or the individual's alleged conduct.

5.   The OCME report comparing the swabs from the bottle to those from the firearms cannot be considered due to the error regarding the samples. Even so, that comparison would at best be "uninformative" and does not support whether the donor to the bottle "is included or excluded as a contributor" to the samples.

Kacie A. Lally, J.