October 25, 2016
appeal from the Superior Court of New Jersey, Law Division,
Hudson County, Indictment No. 15-11-1558.
J. Hudson, Assistant Deputy Public Defender, argued the cause
for appellant (Joseph E. Krakora, Public Defender, attorney;
Joseph J. Russo, Deputy Public Defender, of counsel; Ms.
Hudson, on the brief).
Timothy M. Lanni, Assistant Prosecutor, argued the cause for
respondent (Esther Suarez, Hudson County Prosecutor,
attorney; Mr. Lanni, on the brief).
Judges Fisher, Ostrer and Vernoia.
granted leave to appeal to consider defendant's argument
that the trial judge erroneously directed that he provide a
buccal swab. The State seeks the swab to determine whether
defendant's DNA matches DNA that might be obtained from a
handgun the State believes defendant unlawfully possessed. We
reverse not only because the State failed to submit proper
sworn statements, but also because the State has not
ascertained whether DNA may be obtained from the handgun or,
if that DNA were to become available, why it is not
sufficient - before now seizing DNA from defendant - for
comparison with information derived from DNA already taken
from defendant and retained by the State as a result of a
factual record is quite limited. Defendant was charged with
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4, second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b), and fourth-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(a), for conduct
occurring in Jersey City on August 21, 2015. On April 22,
2016, eight months after the alleged offense and five months
after the indictment - as defendant resided in the county
jail awaiting trial - the State moved for an order
authorizing the taking of a buccal swab of defendant's
motion was only supported by a certification signed by an
assistant prosecutor who asserted that:
• police received a call that "shots [were]
fired" near 67 Clinton Avenue;
• in canvassing the area, police found a revolver lying
"behind the back passenger tire of" a Chevrolet
parked near 86 Sackett Street;
• police examined the revolver and discovered it
contained five live rounds and one spent shell casing;
• police dusted the handgun and five bullets for
fingerprints "with no results";
• police swabbed the handgun and prepared the swabs for
submission to the state ...