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Court Weighs Possibility of Taking DNA Samples


A man is charged with menacing in the third degree, sexual misconduct, sexual abuse in the third degree and harassment in the second degree. The opponent moves for an order to permit the taking of DNA samples from the man’s cheek cells for the purpose of testing and analysis.

The opponent alleges that the charges stem from an incident which the man and the complainant went to the man’s home. When both of them were inside the house, the opponent asserts that the man turned the complainant around and penetrated the complainant from the back with the man’s penis. A New York DWI Lawyer said that the opponent also asserts that the complainant’s attempts to stop the man resulted in a struggle where she sustained a laceration on her chin.

A New York DWI Lawyer said that the opponent claims that upon contacting the police, the complainant was treated and at the hospital a rape kit was prepared and taken to the office of the chief medical examiner for DNA results. The opponent asserts that the DNA results revealed that dried secretions were found on the left breast.

Consequently, the opponent seek an order to permit the taking of DNA from the man’s cheek cells by use of all necessary force to obtain the samples by officers of the department of corrections, the county’s district attorney’s office and the police department.

The man opposes the opponent’s motion on the ground that it is untimely. The man further argues that the opponent was required to serve and file their motion within forty-five days of arraignment. The man’s argument was respectively arraigned on the felony complaint and on the instant information. The man claims that the opponent did not serve and file the instant motion until nine (9) months after his arraignment.

Consequently, a Nassau County DWI Lawyer said the man recognizes that law allows late filing of motions but argues that the opponent offer no basis to apply the law’s exception. The man asserts that the evidence of the alleged crime was collected the next day after the commission and a rape kit was taken to the testing laboratory. The man contends that the DNA report was found in the rape kit and a comparison could be done upon submission of the man’s DNA.

The man further asserts that within the discovery by stipulation paperwork submitted by the opponent is indicated that at the time of his arrest the man consented to a DNA oral swab and concludes that a swab was taken.

The man further argues that the opponent have not set forth sufficient grounds to allow oral swabs to be taken from the man. The man asserts that the taking of oral swabs would violate his fourth and fifth amendment rights, among his other federal and state constitutional rights, even if the motion had been timely made. The man alleges that the opponent’s motion would create an unnecessarily lengthy delay in the case and it should be denied in its entirety.

The man submits that the opponent’s proposed order is improper and overly broad. The order to the man to maintain, prematurely request a force order when no basis has been established that demonstrates the man’s unwillingness to cooperate with a court order. The order also authorizes court officers, detectives and other employees from the police department and employees from the medical examiner’s office to take oral swab samples. The man argues that no basis has been set forth to authorize the opponents to take the man’s DNA samples

As a result, the court finds the opponent’s motion for an order to permit the taking of DNA samples from the man’s cheek cells for the purpose of testing and analysis is appropriately denied.

When sexual abuse or assault happens and you feel that your dignity was taken away from you, call the Kings Sex Crime Attorneys so they can assess your case and provide you a good defense in court. You can also have the Kings Criminal Attorney at Stephen Bilkis and Associates to provide you with more legal options as you go along with your lawsuit process.

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