Supreme Court, Bronx County, May 3, 2018

The Bronx Defenders, Bronx (Anne Dean of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Scott G. McDonald of counsel), for plaintiff.

The People seek an order compelling the taking of a saliva sample from the defendant for the purpose of DNA analysis. The defendant opposes, and citing to Matter of Abe A. (56 NY2d 288 [1982]), argues that the "prosecution has failed to demonstrate a clear indication that material, probative DNA evidence will result from comparing Mr. White's DNA sample and the forensic evidence sample." Specifically, the defendant claims that even if his DNA were found on the gun "it would prove nothing more than at some point in time and some unknown location [he] touched a gun that he had a legal permit for in Pennsylvania." In the event the People's application is granted, the defendant moves for a protective order limiting the comparison of his DNA to this case and prohibiting its inclusion in the Office of the Chief Medical Examiner's (OCME) local DNA database (LDIS).

{**60 Misc 3d at 306}[1] The People's motion is granted. The defendant has been indicted by a grand jury, which found that there was probable cause to believe that the defendant committed the crimes with which he is charged. Moreover, upon inspecting the minutes of the grand jury presentation, this court found it sufficient in all respects. According to the arresting officer's grand jury testimony, he responded to the location of the crime based on a radio run of a man wearing all white with a firearm, when he arrived at the location the individual who had made the call to the police approached the officer and pointed out a man wearing all white with a ponytail as the person with the gun. The officer observed the man in white with the ponytail drop a black bag, pick it back up, walk into a building with it, and toss the bag in a corner. Both the arresting officer and the supervising sergeant testified that the sergeant recovered a loaded firearm from that black bag.

According to OCME's laboratory report generated for this case, a DNA mixture from two contributors suitable for comparison was found on the slide grip grooves of the recovered firearm. Thus, there is a "clear indication" that relevant material will be found through DNA [*2]analysis. (Matter of Abe A., 56 NY2d at 297.) There is no doubt that a routine cheek swab is a "safe and reliable" method of obtaining the defendant's DNA sample. (Id. at 297-298.) That the DNA present on the firearm may establish only, as the defendant alleges, that the defendant at some point in time, at some location, touched the gun, which he claims to possess a valid out-of-state license for, does not negate the necessity of the People obtaining DNA evidence linking the defendant to the crimes charged. Accordingly, since the People have satisfied all legal requirements for obtaining the defendant's DNA sample, their motion is granted.

[2] The defendant retains no Fourth Amendment right or privacy interest in his DNA once it is lawfully obtained. (See People v Elysee, 49 AD3d 33, 40-41 [2d Dept 2007]; People v King, 232 AD2d 111, 117 [2d Dept 1997].) As the Second Department held:

"once a person's blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body, and the scientific analysis of a sample{**60 Misc 3d at 307} does not involve any further search and seizure of a defendant's person. In this regard we note that the defendant could not plausibly assert any expectation of privacy with respect to the scientific analysis of a lawfully seized item of tangible property, such as a gun or a controlled substance. Although human blood, with its unique genetic properties, may initially be qualitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests." (King, 232 AD2d at 117-118.)

Thus, if it has been lawfully obtained, there is no legal basis for a protective order restricting disclosure of the results of the DNA testing for any purpose other than prosecuting the defendant in this case.

While the provisions of Executive Law, article 49-B, specifically sections 995-c (State DNA Identification Index) and 995-d (Confidentiality), only allow a DNA sample to be included in the New York State DNA data bank upon conviction of a designated offense, they do not explicitly prohibit OCME from entering a lawfully obtained DNA sample into its own local database. (See People v Franco, Sup Ct, Bronx County, June 10, 2014, Mogulescu, J., indictment No. 3760/13 [People's exhibit 4]; People v Hernandez-Garcia, Crim Term, Kings County, Mar. 26, 2014, Donnelly, J., indictment No. 7398/13 [People's exhibit 6]; In the Matter of Emidio Sandoval, Sup Ct, Bronx County, Mar. 25, 2014, McGuire, J., docket No. 2013BX066562 [People's exhibit 7]; People v Cleare, Sup Ct, NY County, Jan. 5, 2012, Obus, J., indictment No. 3605/11 [People's exhibit 15]; People v Zelaya, Crim Term, Kings County, Jan. 14, 2008, Mullen, J., indictment No. 7792/07 [People's exhibit 18].)^[FN1]

The defendant's argument that the Executive Law does not authorize, and the legislature did not intend for, the creation of local DNA databases for the purpose of storing DNA profiles is unpersuasive. Going back at least a decade, numerous courts have denied protective orders to [*3]defendants and permitted defendants' profiles to be stored and compared with other profiles in LDIS. OCME is operating its local database openly and{**60 Misc 3d at 308} transparently, and the lab itself operates under strict supervision. According to the People, the Federal Bureau of Investigation, the New York State Division of Criminal Justice Services Office of Forensic Services, and American Society of Crime Lab Directors/Laboratory Accreditation Board are aware suspect DNA profiles are maintained in LDIS. Furthermore, DNA reports generated by OCME note whether a suspect's DNA profile will be maintained in LDIS, and whether the profile matches any other DNA profile stored in LDIS. Nonetheless, the legislature has not spoken out against these court decisions or LDIS, nor has it amended the statute. In fact, Executive Law, article 49-B, § 995-c (9) appears to acknowledge the existence of local DNA databases without requiring that they include only DNA records of persons convicted of a designated offense.

As originally adopted in 1994, subdivision (9) primarily provided for the automatic expungement of a defendant's "DNA record"^[FN2] from the state database upon reversal of a conviction or the granting of a pardon. (See Executive Law, art 49-B, § 995-c [9], as added by L 1994, ch 737, § 1.) As amended, section 995-c (9) (a) essentially tracks the original provision but expands it to authorize an individual whose DNA record has been stored in the state DNA database to himself move for expungement, not only of his DNA record from that database, but also of any "samples, analyses, or other documents relating to the DNA testing of such individual in connection with the investigation or prosecution of the crime." Furthermore, the original provision directing that "[t]he division shall, by rule or regulation, prescribe procedures to ensure that the record, and any samples, analyses, or other documents relating to such record, whether in the possession of the division, or any law enforcement or police agency, or any forensic DNA laboratory" are returned to the individual or his attorney was amended to require procedures ensuring the return of "the DNA record in {**60 Misc 3d at 309}the state DNA identification index, and any samples, analyses, or other documents relating to such record, whether in the possession of the division, or any law enforcement or police agency, or any forensic DNA laboratory . . . ." (L 2002, ch 524, § 1 [emphasis denoting amended language].) Thus, as originally drafted and as amended, this provision addresses only the DNA records maintained in the state database and any samples or documents related to the creation of the DNA records in the state database that may be stored elsewhere.

At the same time the legislature made those amendments, it also added an entirely new provision which states that "if an individual, either voluntarily or pursuant to a warrant or order of a court, has provided a sample for DNA testing in connection with the investigation or prosecution of a crime" the individual may seek expungement of "any DNA record and any samples, analyses, or other documents" obtained "in connection with the investigation or prosecution of a crime." (Executive Law, art 49-b, § 995-c [9] [b].) Paragraph (b) permits an individual to move for expungement, not only after a reversal, vacature or pardon after a [*4]conviction, but also following an acquittal or when "no criminal action against the individual relating to such crime was commenced . . . ." (Id. § 995-c [9] [b] [i], [ii].) That section 995-c (9) (b) explicitly authorizes an individual to move for expungement of his or her DNA record and related documents even when the person has not been charged with or convicted of a designated offense demonstrates that the legislature contemplated DNA records and related documents being maintained in databases other than the New York State database, including local databases such as LDIS.

Read together, the original statute and the amended version indicate an intention by the legislature to authorize the inclusion of DNA records in the state DNA database only after conviction of a designated offense (see Executive Law §§ 995-c [1], [2], [3], [6]; 995-d), but placed no such restriction on what DNA records could be included in local databases. Unless and until the legislature or binding court authority holds otherwise, this court adheres to its previous decisions, and those of the majority of courts that have addressed the matter, and finds nothing unlawful in OCME's development and maintenance of its local DNA data bank, and its inclusion in that database of DNA records of persons not yet convicted of a crime. Accordingly, the defendant's motion to prohibit his DNA sample from{**60 Misc 3d at 310} being entered into OCME's local database, and being compared to other samples contained within it, is denied.

"DNA record" is defined as

"DNA identification information prepared by a forensic DNA laboratory and stored in the state DNA identification index for purposes of establishing identification in connection with law enforcement investigations or supporting statistical interpretation of the results of DNA analysis. A DNA record is the objective form of the results of a DNA analysis sample." (Executive Law, art 49-B, § 995 [8].)

Earlier in this decision, the court used the more common term, "DNA profile," when referring to a "DNA record."