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QUEENSBURY — The lawyer for a Queensbury man accused of taking part in a drug deal that police said led to a fatal stabbing has won a stay of an order to force his client to give a DNA sample.

Tucker Stanclift, who represents Richard L. Rothaupt, has been granted a one-week stay to file a lawsuit in state Supreme Court. The lawsuit will challenge Warren County Judge John Hall’s order compelling Rothaupt to provide a cheek swab to get his DNA.

Stanclift said he plans to file the lawsuit because he believes Hall’s ruling was incorrect in the matter, and his client should not be required to provide DNA under the circumstances.

Rothaupt, 24, faces felony drug possession charges in connection with a package of prescription drugs he allegedly picked up at the scene of the June 8 fatal stabbing of 31-year-old Glens Falls resident Charles Werner.

Rothaupt was alleged to have been part of a group that met Werner to sell him Xanax in Glens Falls, but Werner tried to steal the drugs instead and a fight ensued. Two men who allegedly caused Werner’s death — Skylar C. Phillips and Nicholas L. Hamel — face homicide charges, but Rothaupt has not been charged with participating in the fatal brawl.

The Warren County District Attorney’s Office is seeking to get Rothaupt’s DNA to link him to the bag of pills.

Stanclift argued this week that the Warren County District Attorney’s Office had not met its burden to force Rothaupt to provide a sample. He said the prosecution was “using it to prove the case against co-defendants” instead of just for Rothaupt’s case.

Hall initially granted the prosecution’s request but later decided at Stanclift’s urging to stay his decision for a week to allow the defense to go to a higher court.

DNA sample requests have become fairly commonplace in serious cases, although some defense lawyers question their legality.

Phillips, 21, of Glens Falls, has already agreed to give a DNA sample, while an application for a sample from Hamel, 21, also of Glens Falls, has not been argued in court.

Phillips has pleaded not guilty to second-degree murder, first-degree manslaughter and lesser charges, while Hamel has pleaded not guilty to first-degree manslaughter, felony assault and lesser counts.

The trio, along with a Queensbury woman alleged to have been part of the drug activity, are being held in Warren County Jail, pending further court action. Rothaupt also faces accusations he violated his probation in an earlier robbery conviction.

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reporter

Don Lehman covers crime and Warren County government for The Post-Star. His work can be found on Twitter @PS_CrimeCourts and on poststar.com/app/blogs.

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