Supreme Court, Bronx County, September 6, 2018

Darcel D. Clark, District Attorney (Tala Nazareno of counsel), for plaintiff.

Legal Aid Society (Alice Swenson of counsel) for defendant.

On February 6, 2018, the defendant was indicted by a grand jury and charged with criminal possession of a weapon in the second degree and related counts. The defendant was arraigned on March 14, 2018, and on April 18, 2018, the People moved under Criminal Procedure Law § 240.40 (2) (b) (v) for an order directing the collection of a saliva sample from the defendant for DNA analysis. Defendant opposed the motion, claiming that the prosecution failed to establish probable cause he committed the crimes charged and demonstrate that the method by which they intend to analyze the sample is reliable within the meaning of Matter of Abe A. (56 NY2d 288 [1982]). The defendant also moved for a protective order pursuant to CPL 240.50 (1). For the reasons stated below, both motions are granted.

On August 10, 2017, the New York City Police Department (NYPD) Evidence Collection Team responded to 997 Summit Avenue, apartment 3A, in Bronx County after an NYPD report of a 9 millimeter pistol at that location. The firearm was swabbed for DNA and the swabs were vouchered and then submitted to the New York City Office of Chief Medical Examiner (OCME) for DNA testing to determine if a profile could be obtained. The OCME Department of Forensic Biology,{**61 Misc 3d at 544} using statistical tool PowerPlex Fusion PCR Amplification kit, isolated a DNA profile from a male (Male Donor A), and determined it suitable for comparison. (Lab No. FB17-04764.) OCME provided this information to the Bronx District Attorney's office in the form of a report dated October 20, 2017.

Meanwhile on August 20, 2017, the NYPD purportedly obtained the defendant's saliva sample from a water bottle he abandoned while in custody. The sample was vouchered and subsequently submitted to OCME for DNA testing and comparison to the swabs obtained from the 9 millimeter pistol. (Lab No. FBS17-03486.) On November 9, 2017, OCME generated a written report under FBS17-03486 relating to the water bottle and the comparison of the DNA [*2]profile of the swabs of the firearm. The report indicated that a DNA profile was obtained from the water bottle. When comparing that DNA profile to the profile from the swabs, OCME drew the following conclusion:

"[It is] . . . approximately 1.47 quadrillion times more probable if the sample originated from the DNA donor to the water bottle submitted for Kevin Blanks [sic] and two unknown persons than if it originated from three unknown persons. Therefore, this supports that the DNA donor to the bottle submitted for Kevin Blanks [sic] in [sic] included as a contributor to this sample. Further analysis could be done upon submission of an oral swab from the suspect."

The People now contend that based on the report, further DNA testing is necessary to conclusively include or exclude the defendant as a source of the DNA obtained from the 9 millimeter pistol.

Criminal Procedure Law § 240.90 (1) states, "[a] motion by a prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown may be made at any time before commencement of trial." The People's motion is timely. Pursuant to CPL 240.40 (2) (b) (v), a court may order the defendant to provide non-testimonial evidence including requiring the defendant to provide a sample of blood from his body in a manner not involving an unreasonable intrusion. In Matter of Abe A. (56 NY2d 288 [1982]), the Court of Appeals announced the standard to be used before a suspect can be required to provide a sample of his or her blood in furtherance of an investigation of a crime. The Court held that an order to obtain a sample may issue if the People establish: (1) probable{**61 Misc 3d at 545} cause to believe the suspect has committed a crime; (2) a clear indication that relevant material evidence will be found; and (3) the method used to secure the sample is safe and reliable.

[1] The People have satisfied the requirements of Abe A. The evidence presented before the grand jury was found legally sufficient to establish probable cause to believe that the defendant committed the crimes charged on the indictment. No Mapp hearing was granted as to the firearm, which was recovered pursuant to a search warrant. There is a clear indication that the relevant material will be found as a result of the preliminary testing of the profile from the swabs of the firearm compared to the purported DNA profile of the defendant from the water bottle. The DNA test results from the firearm may result in material and relevant evidence. (See People v Shields, 155 AD2d 978 [1989].) A comparison of the known DNA profile of a sample from that firearm to the defendant's DNA buccal swab would be relevant and material to the issue of the identity of the perpetrator. Finally, the method of swabbing the inside of the defendant's mouth has been deemed to be safe and reliable. (See Matter of Abe A., 56 NY2d 288, 299 [1982].) As the People have advanced, DNA testing may either include or exclude the defendant from involvement with the firearm. Accordingly, the People's motion for an order, pursuant to CPL 240.40 (2) (b) (v), directing that the defendant submit to the taking of an oral swab from his mouth for DNA testing and analysis is granted.

Protective Order

[2] For the reasons stated in People v K.M. (54 Misc 3d 825 [Sup Ct, Bronx County 2016]), the defendant's motion for a protective order is granted. OCME's practice of uploading DNA samples for all purposes runs afoul of the Executive Law. In 1994, the legislature established a statewide DNA data bank along with a comprehensive set of standards and protocols for accrediting forensic laboratories throughout New York State. Enacted as article 49-B of the [*3]Executive Law, the legislation starts with the creation of the New York State Commission on Forensic Science, a representative body whose mission is to promulgate rules for "any laboratory operated by the state or unit of local government" (Executive Law § 995 [1]) "that performs forensic DNA testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding" (Executive Law § 995 [2]).

All forensic laboratories subject to accreditation in New York State must abide by Executive Law § 995-d, which provides:

{**61 Misc 3d at 546}"Confidentiality

"1. All records, findings, reports, and 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 . . .

"2. Notwithstanding the provisions of subdivision one of this section, records, findings, reports, and results of DNA testing, other than a DNA record maintained in the state DNA identification index, may be disclosed in a criminal proceeding to the court, the prosecution, and the defense pursuant to a written request on a form prescribed by the commissioner of the division of criminal justice services. Notwithstanding the provisions of subdivision one of this section, a DNA record maintained in the state DNA identification index may be disclosed pursuant to section nine hundred ninety-five-c of this article." (Emphasis added.)

As part of the same comprehensive enactment, Executive Law § 995-c established a state DNA identification index. Laboratories under the jurisdiction of the State Commission are permitted to upload a DNA profile into the state identification index database only after a defendant's conviction and sentencing. (Executive Law § 995-c [3]; see also People v Debraux, 50 Misc 3d 247 [Sup Ct, NY County 2015].)

In Maryland v King (569 US 435 [2013]), the Supreme Court upheld a state statute permitting Maryland's law enforcement authorities to collect DNA samples from individuals who were charged with violent crimes and upload them into a statewide DNA database for comparison to DNA from unsolved crimes. The Court found a defendant had no Fourth Amendment privacy interest in the buccal swab sample once it was taken. (Id. at 463-465.) While Maryland v King resolves the question of the defendant's constitutional privacy interest, it has no bearing on the interpretation of the Executive Law. The Maryland statute at issue expressly permitted the use of the defendant's DNA before trial. The Executive Law takes precisely the opposite view of uploading a presumptively innocent defendant's DNA into a searchable database. (See Executive Law § 995-c.)^[FN1]

The New York City Office of Chief Medical Examiner is a forensic DNA laboratory that must operate under New York State{**61 Misc 3d at 547} accreditation and testing standards. (See People v John, 27 NY3d 294 [2016].) OCME practices and procedures fall under the jurisdiction of the Commission on Forensic Science. Only federal laboratories are exempted [*4]from the comprehensive statutory scheme. (Executive Law § 995-e.)^[FN2]

Some courts have properly found Executive Law § 995-d to apply to OCME, and yet denied protective orders to presumptively innocent defendants. At least one court found the OCME local uploading practice acceptable because it was limited to local law enforcement and prosecutors. These conclusions ignore the obvious fact that OCME is a "local" laboratory in name only. New York City accounts for a great percentage of the state's crimes for which DNA would be sought. Over half of all the violent crimes in New York State are committed within the five boroughs of New York City.^[FN3] The court in People v Halle (57 Misc 3d 335, 346 [Sup Ct, Kings County 2017]) sharply questioned OCME's end run around the Executive Law and noted that after critique of its ultra vires database in the courts, OCME ceased using the term "Linkage" to describe the practice of using DNA samples approved in one context to make comparisons in others. OCME also requested that protective orders specify by FB laboratory number the evidence to which any court-ordered exemplar may be compared.

One recent case observed that the state legislature has not spoken out against court decisions limiting OCME's use of{**61 Misc 3d at 548} DNA, or amended the Executive Law to expressly prohibit this "local" practice. (See People v White, 60 Misc 3d 304 [Sup Ct, Bronx County 2018] [denying protective order].) Yet it is well understood that legislative inaction is a weak reed to lean on in determining intent. (See Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427 [1969].) The Court of Appeals has said that the "more realistic course" is to decline to draw an inference of legislative intent either way from the failure to act when contradictory meaning could be inferred. (Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 451 [1985].)^[FN4] An inactive legislature can just as well be understood [*5]as relying on courts to enforce the Executive Law by issuing protective orders. Nothing should be read into the legislature's failure to enact an ameliorative statute.

The defendant's motion for a protective order is granted. The court directs that the defendant's sample from which a DNA profile obtained will only be used for comparison purposes with respect to the DNA profile previously generated from the swab of the 9 millimeter pistol in this case only and will not be utilized for any other purpose or comparison and will not be added to state or OCME databases pending his conviction and sentencing.