Judge Dena Douglas
Gill, charged with criminal possession of marijuana, moved, as an indigent person, to have prosecutors perform DNA testing of the marijuana cigarette allegedly seen in Gill’s mouth by the arresting officer. He argued that if his DNA was not present on the cigarette it would provide exculpatory evidence supporting his innocence claim. While prosecutors have not opposed the motion, the court questioned if Gill’s rights as an indigent person included entitlement to the DNA analysis upon request, and if prosecutors were required to perform the test they might otherwise deem unnecessary. It found in the negative on both points, concluding while indigent persons had many constitutional rights, they were not unlimited, and nothing in the Executive Law or Criminal Procedure Law was construed to impose an affirmative obligation on any law enforcement agency regarding performing pretrial DNA testing. Further, as no Brady violation occurred at this time, it was unreasonable to compel prosecutors to carry out testing they might voluntarily undertake, or deem unnecessary as they did not need the DNA analysis to convict Gill. Thus, Gill’s motion was denied.
