The People of the State of New York v. Emilyano Munoz, Defendant. (2026)

Defendant Emilyano Munoz is charged with Criminal Possession of a Firearm (PL § 265.01-b [1]), Reckless Endangerment in the Second Degree (PL § 120.20), Attempted Petit Larceny (PL §§ 110/155.25), and Reckless Driving (VTL § 1212). 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. He also requests that any decision be held in abeyance pending a quality assurance review by the Office of the Chief Medical Examiner ("OCME"), and Mapp/Dunaway hearings. 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 their databank and limiting the use of his DNA sample exclusively to these proceedings. The People oppose the Defendant's cross-motion.

According to the sworn allegations in the felony complaint and additional facts contained in the People's affirmations, on September 12, 2025, at 3:02 AM, at 119 West 10th Street, in New York, New York, Police Officer Tatiana Richard observed the Defendant wearing a ski mask and watching the surrounding area while another unapprehended individual, also wearing a ski mask, "hovered over" a United States Postal Service mailbox. Officer Richard approached the Defendant and the other individual, who both "quickly [left] the area on separate mopeds heading in opposite directions." Officer Richard observed the Defendant operate his moped at a high rate of speed in the wrong direction on a one-way street, weaving through cars against oncoming traffic. The Defendant abandoned his moped after damaging it, and "continue[d to] flee on foot." As Officer Richard apprehended the Defendant, she observed that he was wearing only one shoe. She then observed broken pieces of the moped, the Defendant's other shoe, and a firearm laying on the ground within close proximity to each other. Officer Richard recovered the firearm and determined that it was not loaded.

The Defendant was 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 three locations on the recovered firearm and submitted those swabs to the OCME for DNA analysis.

An OCME criminalist examined the DNA developed from both sets of swabs: those from the firearm and those from the bottle, and produced a report for each set. With regard to the firearm, the report states that samples with sufficient concentration of DNA were detected on swabs from the firearm's "trigger/guard," "entire hand grip," and "slide, slide lock, mag release, all grooves." On the "trigger/guard" 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. On the "entire hand grip" sample, a DNA profile for Male Donor A, who is 84% of the mixture, was determined. The report concludes that the number of contributors to the mixture is three, and although no DNA profiles for the additional contributors could be determined, the results are suitable for comparison. On the "slide, slide lock, mag release, all grooves" sample, a DNA profile matching "Male Donor A," who is 83% of the mixture, was determined. 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.

As to the bottle, the report concludes that the results are suitable for comparison. Additionally, the DNA profile developed from the bottle matches the DNA profile of "Male Donor A."

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]).

The Defendant asserts that the People have failed to establish probable cause, because the People do not indicate the length of time between Officer Richard's pursuit of the Defendant and the recovery of the firearm, or the number of other individuals in the vicinity. He also argues that the People cannot demonstrate that relevant material evidence will be found, because in 2024, the OCME discovered and disclosed certain contamination incidents, which the Defendant contends undermines the reliability of any OCME reports. The Defendant further asserts that a 2024 National Institute of Standards and Technology report (the "NIST Report") casts doubt upon the relevance of the OCME reports. In addition, the defense argues that the People already possess a DNA sample from the Defendant, namely, the sample from the discarded bottle, and therefore a second sample is unnecessary. Finally, the Defendant requests that any buccal swab order be held in abeyance pending a Mapp/Dunaway hearing regarding probable cause for the Defendant's arrest. The Court considers each argument in turn.

The People have adequately established probable cause to believe that the Defendant committed the charged crimes. The People allege that Officer Richard observed the Defendant and another individual, both wearing ski masks, hovering next to a post office box, at approximately 3:00 AM. When Officer Richard approached them, both quickly left the area, on separate mopeds, and headed in opposite directions. The Defendant drove his moped, at a high rate of speed, in the wrong direction on a one-way street. After damaging the moped, the Defendant abandoned it and fled from Officer Richard on foot. When Officer Richard apprehended the Defendant, he was wearing only one shoe. Officer Richard observed broken pieces of the Defendant's moped, together with the Defendant's other shoe, and the firearm, in "close proximity" to each other.

The lack of specificity regarding the length of time between Officer Richard's pursuit of the Defendant and the recovery of the firearm does not vitiate probable cause. Rather, the circumstances here, including the Defendant's flight from Officer Richard; the discovery of the moped pieces and the shoe, both allegedly belonging to the Defendant, in close proximity to the firearm; and the fact that the incident allegedly occurred at 3:00 in the morning, are "collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely" that the Defendant committed the alleged offenses (CPL 70.10 [2]; see People v Maldonado, 86 NY2d 631, 635 [1995]).

The People have also established a "clear indication that relevant material evidence will be found" (Matter of Abe A, 56 NY2d at 291). In August 2024, the OCME discovered certain incidents of cross-contamination in its laboratory. The Defendant contends that he has "not received notice" that the OCME has "performed any quality assurance check" on the submitted materials, and requests that the Court hold the People's motion in abeyance until such a review is conducted.

The People, however, affirm that, following the discovery of the contamination issue, the OCME performed "both a retrospective and prospective quality control check," and affirmatively notified every defendant whose sample was affected (People's Buccal Swab Motion Reply, affirmation of prosecutor at ¶ 9). In addition, the OCME created a process through which any defendant can request a quality control cross-check on their case, by submitting a request form on the OCME public website (id.).

Here, the OCME did not notify the Defendant that any samples in the instant matter were contaminated. Should the OCME's investigation determine that any of the samples have been contaminated, the People would certainly be required to disclose this information to the Defendant (see Brady v Maryland, 373 US 83 [1963]; CPL 245.20 [1] [k]). Nor has the Defendant indicated that he submitted a request for a quality control cross-check of the materials in this case. The Defendant's allegations regarding potential contamination of the swabs are thus speculative (see People v Barnaby, 85 Misc 3d 1210[A], 2025 NY Slip Op 50127[U] [Sup Ct, Kings County 2025]).

The Defendant's reliance on the 2024 NIST Report likewise does not mandate denial of the People's motion. The Defendant argues that the Report raises concerns regarding "DNA touch samples," including the potential for transfer DNA and contamination. He asserts that here, "[a]ny of the individuals that collected [the swabs], interacted with the parties, recovered the evidence, or swabbed for or collected the DNA, could have served as a source of contamination," and that the Court thus cannot "assess the relevance of the DNA mixtures in question." The Court disagrees.

"While opportunities for contamination or transference are relevant to the weight and admissibility of the evidence at trial, the People are only required at this stage to show a clear likelihood of relevant, material evidence" (id.). Here, the OCME concluded that the swabs from the firearm and the bottle contained usable DNA evidence, which could be further analyzed if compared to a buccal swab sample of the Defendant's DNA profile. Such a comparison could "be relevant and material to both the People and defense in either the implication or exoneration of Defendant" (People v Macias, 65 Misc 3d 1225[A], 2019 NY Slip Op 51846[U] [Crim Ct, Kings County 2019]). While the Defendant may potentially raise issues regarding transfer DNA and cross-contamination at trial, the factual allegations here, together with the OCME report, "provide a clear indication that relevant, material evidence is likely to be found" (id.). The People have thus satisfied the second element of Abe A (56 NY2d at 291).

Finally, it is well established that the method for obtaining buccal cell samples, swabbing inside the cheek, is safe, reliable and minimally intrusive (see Maryland v King, 569 US 435 [2013]; Matter of Abe A, 56 NY3d at 291; Goldman, 35 NY3d at 591). The People have thus met each of the elements of Abe A (56 NY2d at 291).

In addition to considering the Abe A requirements, the Court also "weigh[s] 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.). The Defendant asserts that a "less intrusive means" for obtaining the Defendant's DNA exists, because the People already have a sample of the Defendant's DNA from the bottle that the Defendant allegedly discarded while he was in custody. In certain cases, where the People already possess a sample of the Defendant's DNA, a buccal swab may indeed be cumulative and thus may not outweigh a defendant's right to be free from the bodily intrusion of a buccal swab (see People v Aggas G, 82 Misc 3d 1245[A] [Crim Ct, NY Cty 2024]).

Here, however, the People have submitted an affidavit from Tiffany Vasquez, Assistant Director and Technical Leader of Nuclear DNA Operations for the Department of Forensic Biology of OCME, which states that the OCME differentiates between "true exemplars," from blood samples or buccal swabs, and "pseudo-exemplars," from abandonment samples. A "true exemplar" is a "more reliable form of evidence," because it is collected under controlled circumstances, there is a secure chain of custody following collection, and it is most likely to produce a "single source DNA profile." Accordingly, in "reports and in testimony, it is OCME's practice to describe DNA profiles from true exemplars as 'DNA sample from [defendant]' " (Vasquez Aff at ¶ 10). In contrast, the OCME "describes DNA profiles from abandonment samples as 'DNA donor to the bottle submitted for [defendant]' " (id.).

The evidentiary weight of the DNA from the discarded bottle is thus not necessarily equivalent to the DNA from a buccal swab (see People v Halle, 57 Misc 3d 335, 343 [Sup Ct, Kings Cty 2017]). Moreover, concerns raised in the Vasquez affirmation relating to pseudo-exemplars are indicated here, as the Defendant expressly reserves the right to challenge the legality of the seizure of the bottle, as well as the chain of custody of the resulting sample. In considering these factors, as well as the seriousness of the crime of possession of a firearm, the Court determines that the People have met their burden for obtaining a saliva and buccal cell sample from the Defendant for DNA analysis.

As the People have met their burden, the Court declines to hold the People's motion in abeyance pending a Mapp/Dunaway hearing. The Court next considers the Defendant's request to limit the use, retention, and dissemination of the Defendant's DNA.

Executive Law § 995-d provides that the "results of DNA testing performed on any person shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing." While some courts have held that Executive Law § 995-d does not prohibit the OCME from uploading DNA samples collected during the investigatory proceedings, (see, e.g., People v Torres, 85 Misc 3d 1261[A], 2025 NY Slip Op 50594[U] [Crim Ct, Kings County 2025]; People v Chiclana, 85 Misc 3d 1267[A], 2025 NY Slip Op 50654[U] [Sup Ct, Erie County 2025]), this Court notes that "[a]n individual maintains a significant interest in the use of his or her genetic material" (Macias, 65 Misc 3d 1225[A], *3; see also Halle, 57 Misc 3d at 344-48). The Court thus finds good cause to issue a protective order limiting the use and dissemination of the Defendant's DNA profile. The OCME is hereby ordered not to upload the DNA profile of the Defendant to any local, state, or federal databases, unless and until the Defendant is convicted and sentenced in this matter (see People v K.M., 54 Misc 3d 825 [Sup Ct, Bronx County 2016]; Halle, 57 Misc 3d at 344-48).

Accordingly, it is

ORDERED that the Defendant present himself to an authorized member of the New York City Police Department or an investigator employed by the New York County District Attorney's Office for the purpose of taking saliva and buccal cells from his body; and it is further,

ORDERED that the Defendant's counsel or a representative of the Defendant's counsel be permitted to be present at the time such samples are taken from the Defendant's body; and it is further,

ORDERED that the Office of the Chief Medical Examiner, Department of Forensic Biology take possession of said samples; and it is further,

ORDERED that the Office of Chief Medical Examiner, Department of Forensic Biology strictly and solely compare the DNA profile of the Defendant to the evidence in this case; and it is further,

ORDERED that the Office of Chief Medical Examiner, Department of Forensic Biology, refrain from entering the DNA profile of the Defendant into the local, state, or federal DNA identification index systems.

This opinion constitutes the decision and order of the Court.

Dated: ___________________

New York, New York

Kacie A. Lally, J.C.C.

Kacie A. Lally, J.