Opinion
2018NY016632
11-05-2018
The PEOPLE of the State of New York, Plaintiff, v. Constantino FLORES, Defendant.
Justine Luongo, Esq., The Legal Aid Society, 49 Thomas Street, New York, New York 10013, By: Beth Rennekamp, (212)-298-3051, Counsel for Defendant Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: Shira Arnow, (212)-335-9202, Counsel for The People
Justine Luongo, Esq., The Legal Aid Society, 49 Thomas Street, New York, New York 10013, By: Beth Rennekamp, (212)-298-3051, Counsel for Defendant
Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: Shira Arnow, (212)-335-9202, Counsel for The People
Sandra E. Roper, J.
This Honorable Court Grants Search Warrant to obtain buccal saliva samples for DNA Fingerprint Analysis and comparison solely to recovered evidence in This Instant Case to extent that People are ordered to strike entire clause containing "necessary and reasonable force ".
This Honorable Court Grants Protective Order to Restrain Local DNA Index System (LDIS) — New York City Office of the Chief Medical Examiner (OCME) from comparing defendant's DNA Fingerprint to any other unrelated recovered crime scene investigation.
This Honorable Court Orders OCME to store sample, analysis, and DNA Fingerprint until disposition of the instant case. Where defendant exonerated or acquitted, defendant's sample, testing data, analysis and any and all instrumentalities attendant thereto are to be destroyed, and DNA Fingerprint in OCME LDIS be expunged within jurisdiction of this Court.
INTRODUCTION
People move for a warrant to search defendant and seize buccal saliva samples for DNA Fingerprinting and comparison to recovered crime scene samples in this instant case, and to compare and match to other unrelated pending investigations. Defense counter-moved for a protective order limiting the use of any obtained sample for comparison solely in the instant case and to oppose order for seizure of saliva sample.
PROCEDURAL HISTORY
On or about April 9, 2018 defendant was arrested and charged with Sexual Abuse in the First Degree (PL § 130.65 [1] ) and Forcible Touching (PL § 130.52 [1] ). On April 10, 2018, defendant was arraigned, People served Grand Jury notice and defense served Cross Grand Jury notice. The court set bail at $500 bond over $500 cash and adjourned to Part F on April 13, 2018 for Grand Jury Action. On April 11, 2018, defendant posted cash bail of $500 and was released. At appearances of all parties from April 13, 2018 to September 13, 2018, People failed to go forward with Grand Jury Action as defendant's cross Grand Jury Action remained in effect.
Off calendar on August 22, 2018, People served and filed a motion for an Order to search and seize saliva samples from defendant. On September 13, 2018, defense served and filed motion opposing order for saliva sample, motion opposing People's request for force in obtaining said saliva sample, and cross-moved for a protective order limiting use of any obtained defendant's sample to comparison in the instant matter only. Court adjourned to November 5, 2018 for decision.
ALLEGATIONS
Defendant, a 29-year old male, was arrested under the circumstances stated in the NYPD Court Verification/Arraignment Card:
AT TPO, C/V STATES THAT DEFT. DID FORCIBLY REMOVE HER PANTS AND DID TOUCH HERVAGINA WITHOUT HER CONSENT.
The felony accusatory instrument, sworn by the Detective sets forth the following:
On or about April 9, 2018 at about 1:30 A.M., Via Italia, 45 West 46th Street, in the County and State of New York, the defendant subjected another person to sexual contact by forcible compulsion; the defendant intentionally, and for no legitimate purpose, forcibly touched the sexual and other intimate parts of another person for the purpose of degrading and abusing such person, and for the purpose of gratifying the defendant's sexual desire.
The factual basis for the charges are as follows:
I am informed by an individual known to the District Attorney's Office that informant observed the defendant pull down her pants, stand behind her while restraining her, and touch her vagina while she was screaming for the defendant to stop and trying to swat the defendant's arm away from her. Informant did not consent to the defendant's conduct in any way.
DISCUSSION
HISTORY OF FORENSIC DNA FINGERPRINTING
The advent of forensic DNA fingerprinting as a crime-fighting tool is indeed revolutionary. It has become an authoritative tool used to either indict or acquit. DNA fingerprinting is where biological science meets crime fighting in forensics. It is a relatively recent crime-fighting scientific technique discovered and developed by British geneticist, University of Leicester Professor, Dr. Alec Jeffreys and his research team in what he pronounced as his "eureka moment. " Jeffreys recounts:
DNA (deoxyribonucleic acid) is the biological information that stores the genetic material present in every human being's cell. Each person has their own unique individualized DNA fingerprint or DNA profile, except for identical twins from one split zygote. However, there is still the long-standing hand fingerprint that can differentiate twins.
DNA Fingerprinting or DNA Profiling are used interchangeably and can be extracted from human cell samples from blood, skin, saliva, perspiration, hair, mucus, semen or perspiration from a crime scene and from the alleged perpetrator, which may be compared for matching. If a match, then Judge determines admissibility of the DNA evidence then the jury is to determine the weight of DNA evidence along with all other admitted evidence to deliberate the ultimate verdict.
Dr. Jeffreys recounts his discovery, "Within seconds, it was obvious that we had stumbled upon a DNA-based method not only for biological identification, but also for sorting out family relationships. It really was an extraordinary moment." That historic moment Dr. Jeffreys "could see patterns in the genetic material which completely discriminated between the three people who had been involved in the analysis: a technician, and her mother and father." (BBC News, DNA Pioneer's ‘Eureka’ Moment, http://news.bbc.co.uk/2/hi/programmes/newsnight/8245312.stm [last updated Sept. 9 2009] ) (hereinafter "BBC DNA Pioneer").
"My life changed on Monday morning at 9:05 am, 10 September 1984. What emerged was the world's first genetic fingerprint. In science it is unusual to have such a ‘eureka’ moment. We were getting extraordinarily variable patterns of DNA, including from our technician and her mother and father, as well as from non-human samples. My first reaction to the results was ‘this is too complicated,’ and then the penny dropped and I realized we had genetic fingerprinting. "
University of Leicester, A History of Genetic Fingerprinting, https://www2.le.ac.uk/offices/press/for-journalists/archive/dna-fingerprinting /geneticshistory.
Dr. Jeffreys had stumbled upon the groundbreaking forensic technique that would revolutionize criminal investigations in his discovery that global scientific researchers had for decades attempted to develop. Dr. Jeffreys discovered variations in DNA unique to each individual which allowed the ability to read or map an individual's personal genetic code. Dr. Jeffreys research was not intended for crime-fighting. Rather, his original intent was to discover a method to prove paternity through DNA fingerprinting to determine genetic links between alleged parent and child. It is for this reason that his research test subjects were specifically chosen with familial linkage.
"GENETIC FINGERPRINTS : These exist in blood, bone, hair follicles, saliva, semen, skin and sweat. They are the same in every cell and retain their distinctiveness throughout a person's life. Human cells contain 23 chromosomes (packets of DNA) from the father and 23 from the mother. Each DNA strand contains a unique sequence or code of genetic information. But while most of DNA shows only slight variation from one person to the next, certain areas, called ‘minisatellites’ (short sequences of chemical building blocks) show variation in the numbers of repeat units (or stutters) unique to each person. DNA information can be recovered from human and animal remains as far back as Neanderthal man and has been used to solve a number of high profile mysteries from the past, including the identification of Josef Mengele's skeleton and the identity of children of US President Thomas Jefferson's children by one of his slaves. Apart from identification, paternity and immigration cases, the technique is also used in medical research including cancer and genetic conditions such as Huntington's disease." Id.
Dr. Jeffreys' DNA fingerprinting faced its first test in a court of law soon thereafter in March 1985, less than half a year after his discovery. Not in a criminal court of law, but rather an immigration court of law. In a worldwide case of first impression, the British court granted admissibility of the DNA fingerprinting findings which proved the Ghanaian parentage of a little boy in his deportation case. Dr. Jeffreys stated after the court's ruling in the case,
GENETIC FINGERPRINTING INVOLVES: the extraction of DNA; using enzymes to cut it into fragments some of which will contain minisatellites; separating the fragments according to size; treating the fragments with a radioactive probe which identifies shared motifs and can be captured on X-ray film; the result will be a pattern of more than 30 stripes, resembling a ‘bar code’. Id.
Id.
"But our first application was to save a young boy and it captured the public's sympathy and imagination. It was science helping an individual challenge authority. Of all the cases this is the one that means most to me. The court allowed me to let the family know we had proven their case, and I shall never forget the look in the mother's eyes."
University of Leicester, A History of Genetic Fingerprinting, https://www2.le.ac.uk/offices/press/for-journalists/archive/dna-fingerprinting /geneticshistory.
The child was saved from deportation.
As a result of the success in this first of its kind case in a court of law, Jeffreys' DNA fingerprinting gathered much worldwide publicity and his small University of Leicester lab was the only place where the technique was available, which caused an overrun of global demand in paternity and immigration law cases. However, in the interim, there was a developing interest in the use of DNA fingerprinting for crime-fighting. Dr. Jeffreys was very cautious in his use of the technique in forensics as he stated, "If our first case had been forensic I believe it would have been challenged and the process may well have been damaged in the courts. "
Id.
Although Jeffreys thought of the forensic use of DNA fingerprinting , he felt much caution in entering its use in the criminal arena. As fate would have it, in Jeffreys' Leicester hometown, its Detective Chief Superintendent David Baker, after reading about Jeffreys' DNA fingerprinting in the local newspaper, sought out Jeffreys' help in a perplexing confession in a local criminal case. In Leicester, the detective sought to reopen the investigation of unsolved cases of the rape and murder of two 15-year old girls 3 years apart with very similar modus operandi . A 17-year old developmentally challenged Richard Bucklan confessed to the rape and murder of the second girl in the Summer of 1986 with no corroborating evidence. However, Bucklan steadfastly refused to confess to the rape and murder of the first girl in 1983. Detective Baker hoped that by use of Jeffreys' DNA fingerprinting that it could be proven that Bucklan was also guilty of the first rape and murder, 3 years earlier. Because of the novelty of Jeffreys' DNA technique he approached this forensic use in this first criminal case with much trepidation , particularly unaware whether his DNA fingerprinting would be effective and viable from such an old crime scene 3 years previously. DNA fingerprinting results in this analysis were so astonishingly clear to have conclusively found that the semen samples recovered from both girls indicated that the same man committed both crimes. But, that man was not Bucklan, the disabled teen who had confessed. In ruling him out as a suspect, Jeffreys concluded, "one of the suspects who had confessed to the murders was not guilty of that crime ." But for DNA fingerprinting, this innocent teen boy likely would have been found guilty of these murders and convicted for crimes that he did not commit. This was historically the first criminal case exoneration through forensic evidence of DNA fingerprinting.
GENETIC PROFILING - This involves testing minisatellites one at a time, producing a simpler image than genetic fingerprinting. It gives a pattern unique to a particular person and is therefore suitable for forensic cases. Id.
University of Leicester, Detective Chief Superintendent David Baker, https://www2.le.ac.uk/offices/press/for-journalists/code-of-a-killer-1/detective-chief-superintendent-david-baker (Mar. 31 2015); Yourgenome, The ‘Eureka’ Moment That Revolutionized Crime Solving, https://www.yourgenome.org/stories/the-eureka-moment-that-revolutionised-crime-solving (last updated Jun. 13, 2016).
Dr. Jeffreys later stated, "I took it on with a considerable degree of foreboding. No-one had ever attempted a crime scene DNA analysis before." And upon receiving from the "intimate samples" of the 2 teens, "it was a chilling moment." "We took on the analysis in full expectation that we would get nothing back at all. But we got-I confess to my astonishment- a completely clear read-out" (BBC DNA Pioneer).
NEWS.BBC UK BBC.CO.UK, 9/9/2009, 16:42.
In continuing the pursuit of the perpetrator of these gruesome pedophilic crimes, Leicester Police in the first of its kind forensic mass DNA screening investigation, led an expansive DNA based manhunt. Police collected blood and saliva samples of 5,000 townsmen in the very small town. Dr. Jeffreys compared the DNA fingerprint of each of the 5,000 men to that of the DNA fingerprint of the male perpetrator from his initial analysis ruling out Bucklan. This DNA fingerprint manhunt resulted in what would become the first criminal case in which the perpetrator was guilty through court ordered admissibility of DNA fingerprinting evidence. A town baker, Colin Pitchfork, through cunning subterfuge with an intent to evade the police's dragnet, had a friend provide blood and saliva samples in Pitchfork's name. Pitchfork's callous hubris led him to brag about his subterfuge which led to his discovered deception by the police. When police did eventually obtain Pitchfork's blood and saliva under police control and chain of custody monitoring, he was a match, much to Dr. Jeffrey's relief. With overwhelming DNA evidence against Pitchfork, on January 22, 1988 he pled guilty and was sentenced to life in prison with a 30-year minimum, on appeal reduced by 2 years. Dr. Jeffreys was indeed humbled as he stated: "So that was the birth of forensic DNA in real casework and this was DNA potentially saving the life of future victims, which was quite sobering stuff. " In 2016 and 2018 Pitchfork was denied parole after testimony by the parents of both murdered 15-year-old girls. Pitchfork holds the notorious distinction as the first person worldwide to be found guilty of a crime based upon DNA fingerprinting evidence.
Suzanne Elvidge, Explore Forensics, Forensic Cases: Colin Pitchfork, First Exoneration Through DNA , http://www.exploreforensics.co.uk/forenisc-cases-colin-pitchfork-first-exoneration-through-dna.html (last updated Jul. 18, 2016).
"I felt relief because he was a serial murderer and would kill again, and because if the operation had failed then the public's perception of forensic DNA would have been shattered. Also, here was a serial killer in the region who knew what I was doing and where I worked and where my family lived. That feels very uncomfortable so on a personal level it was a great relief when he was trapped." University of Leicester, A History of Genetic Fingerprinting, https://www2.le.ac.uk/offices/press/for-journalists/archive/dna-fingerprinting /geneticshistory (accessed Oct. 29, 2018).
See BBC News, No Parole for Colin Pitchfork, First Killer caught by DNA, https://www.bbc.com/news/uk-england-leicestershire-36168459 (Apr. 29, 2016); see also R v Pitchfork, [2009] EWCA Crim 963, http://www.bailii.org/ew/cases/EWCA/Crim/2009/963.html.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1482540/
https://www.bbc.com/news/uk-england-leicestershire-36168459
After Pitchfork's sentencing, Dr. Jeffreys commented, "I felt relief because he was a serial murderer and would kill again, and because if the operation had failed then the public's perception of forensic DNA would have been shattered. University of Leicester, A History of Genetic Fingerprinting, https://www2.le.ac.uk/offices/press/for-journalists/archive/dna-fingerprinting /geneticshistory.
Forensic DNA became a worldwide evidentiary staple particularly in rape cases where there are always biological trace samples of recovered DNA evidence of the perpetrator left behind at the crime scene - the victim's corpus. The criminal case of first impression In the United States with the admissibility of DNA fingerprinting at issue was the serial rapist case of Florida v. Tommie Lee Andrews. Having been suspected in at least 24 rapes in Orange County, Florida, he had evaded being caught. Even though this rape victim could not definitively identify Andrews as her rapist, his DNA did. Andrews' DNA fingerprint from his blood sample was compared to semen traces recovered from the rape victim and it matched. Andrews was convicted on November 7, 1987 and sentenced to 22 years. He argued on appeal, the trial court abused its discretion in admitting the scientifically novel, unproven and unreliable DNA fingerprinting evidence.
On appeal, Andrews v. Florida , 533 So.2d 841(1988)
After this conviction of Andrews in this case, a retrial was held in a previous case of rape, which initially ended in a mistrial in October 1987. At this retrial, his DNA fingerprint from the other case was used to compare to the semen sample in the retrial and it matched garnering a conviction this time at retrial based upon DNA fingerprinting. The New York Times, Rapist Convicted on DNA Match, https://www.nytimes.com/1988/02/06/us/rapist-convicted-on-dna-match.html (Feb. 6, 1988).
In a case of first impression, Florida Court of Appeals, Fifth District on October 10, 1988, Judge Orfinger writing the opinion of the court, denied Andrews' Appeal and upheld his conviction. Defense argued that the DNA test was unreliable. The court found argument unpersuasive. Despite its newness in the United States, People presented expert witnesses along with scientific corroborating graphs, specialized research on the reliability and generally accepted scientific principles of the DNA fingerprinting techniques and were skillfully and thoroughly cross-examined, whereas defense presented no expert witnesses at trial. Court opines in this novel case of first impression:
"Admittedly, the scientific evidence here, unlike that presented with fingerprint, footprint, or bite mark evidence, is highly technical, incapable of observation and requires the jury to either accept or reject the scientific conclusion that it can be done The scientific testimony indicates acceptance of the testing procedures. The probative value of the evidence is for the jury The radiographs of the victim's and appellant's blood and the vaginal smear were exhibited to the jury, the comparison was explained, and the radiographs were admitted into evidence The scientific testimony indicates acceptance of the testing procedures. The probative value of the evidence is for the jury."
Consistent with this court's ruling as to the evidentiary nature of DNA fingerprinting, Dr. Jeffreys explained, "It does not solve crimes. It establishes whether sample X comes from person Y. It is then up to the court to interpret that in the context of other evidence in a criminal case." University of Leicester, A History of Genetic Fingerprinting, https://www2.le.ac.uk/offices/press/for-journalists/archive/dna-fingerprinting /geneticshistory.
( Andrews v. State 533 So2d 841, 850 [1988] ).
In assessing the admissibility of DNA fingerprinting, the court relied heavily on the Frye standard or general acceptance test in the admissibility of novel scientific evidence. The court candidly stated,
In 1993, the Daubert standard superseded the Frey standard for admissibility of novel scientific testimony in federal court, although Frey Standard continues to be controlling in some states. Daubert v Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993). Federal Rules of Evidence Part 702. People v Wesley , 83 NY2d 417(1994) in defining the Frye Test as "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (Id 422 ) rejected Daubert standard as "not applicable" in New York State Courts. Id. at 422.
"[w]e begin by confessing some uncertainty as to the standard applicable in this state governing admissibility into evidence of a new scientific technique. In the seminal case of Frye v. United States , 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), which involved the question of admissibility of lie detector test results [Frye ] declared, ‘the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. ’ 293 F. at 1014."
(Id. At 843). Judge Orfinger reasoned, People argued that DNA fingerprinting had "proved effective for 10 years in paternity cases. " Id. The court found that Frye standard had been satisfied and serial rapist Andrews' conviction was upheld.
The first serial murder capital case tried and convicted by jury for rape, burglary, and murder on DNA fingerprinting was of the Southside Strangler, Timothy Wilson Spencer in Arlington, Virginia, on July 11, 1988. Spencer was again convicted by jury on the same charges also on DNA evidence on September 22, 1988 and again on January 17, 1989. Virginia law enforcement also compared Spencer's DNA fingerprint to crime scene samples from various unsolved and cold cases, which yielded a DNA match in a rape and murder in 1984. However, in this 1984 case a David Vasquez was wrongfully convicted and sentenced to jail for this crime in 1985. As a result of this match to Spencer, Daniel Vasquez became the first person in the United States to be exonerated on the basis of contradictory DNA evidence. Spencer was executed by electric chair at the age of 32 on April 27, 1994 after exhausting all appeals.
DEVELOPMENT OF DNA DATABANKS
It was the subsequent proved matchings of Spencer's DNA fingerprint to other active, unsolved and cold cases that was a forerunner and impetus for Virginia becoming the first state to legislate the creation of a repository DNA Database for some convicted felons in 1990. Virginia enacted Article 1.1- DNA Analysis and Databank Code §§ 19.2-310.2 and 19.2-310.5, effective July 1, 1990, directing its Division of Forensic Sciences to mandate DNA fingerprint be taken of convicted felons for certain enumerated violent and sex-based crimes to be deposited and kept indefinitely in a DNA Databank. The law was later amended in 1991 to include all convicted felons, which withstood a Constitutional challenge.
Likewise, it was the expansive mass DNA screening of 5000 Leicester Townsmen that was the precursor to UK's National Criminal Intelligence DNA Database in 1995, 4 years after establishment of Virginia's Databank.
Virginia Department of Forensic Science Director Dr. Paul Ferrara used Spencer's cases in 1989 to advocate for legislation to establish and fund the very first of its kind, DNA Database in the country. Dr. Ferrara had argued, "if there had a DNA Databank at the time Spencer was committing his heinous acts he would have been identified even earlier before some of these other crimes." WRVA Radio interview, 1994. Richard Foster, Style Weekly, Legacy of Hope: Virginia's DNA database, the first in the nation, is created as a direct result of the South Side Strangler case, https://www.styleweekly.com/richmond/legacy-of-hope-virginias-dna-database-the-first-in-the-nation-is-created-as-a-direct-result-of-the-south-side-strangler-case/Content?oid=10356686 (Jul. 24, 2018).
On April 7, 1992, United States Court of Appeals for the Fourth Circuit upheld the constitutionality of Virginia's DNA Database Law as it did not violate the Fourth Amendment protections against unreasonable searches and seizures, nor Ex-Post Facto Law, U.S. Constitution Art I, § 10, cl.1 . Jones v. Murray, 962 F2d 302 (1992).
Within the following 9 years, the other 49 states likewise established DNA Databanks, with much interstate inconsistency in their respective laws: all felons or specified felons; no misdemeanants or specified misdemeanants; no juveniles or specified juveniles; no suspects or specified suspects; automatic searchability or limited searchability; no expungement or expungement. There needed to be national consistency not necessarily in the application of the DNA Databanks but with the scientific techniques which had advanced from the initially discovered rudimentary technique by Dr. Jeffreys to further isolate segments within the DNA. In the same year that Virginia codified the establishment of its DNA Databank, the United States Federal Bureau of Investigation (FBI) developed a pilot software project to serve 14 states and local DNA fingerprinting laboratories. It wasn't until several years later that Congress passed the DNA Identification Act of 1994 , 42 USC § 13132, which codified the FBI's authority to establish a National DNA Index System (NDIS) for forensics and developed and promoted consistent quality assurance of scientific technique with the nation's DNA laboratories.
In 1989, the Technical Working Group on DNA Analysis Methods (TWGDAM) took cognizance of the large number of sexual assaults and tendency for sex offenders to repeat crimes (i.e., recidivism) and proposed the concept of combining forensic DNA technology with computer science capabilities to aid in resolving violent crimes. By taking advantage of the unfortunately high repeat offense rate by some individuals, combined with the power of forensic DNA technology and utilization of computerized DNA databanks, law enforcement individuals may be able to solve many cases that previously could not be addressed (i.e., cases without suspects). Another important fact contributing to the need for databases involves the entry of convicted offenders back into the community. Approximately 234,000 offenders convicted of sexual assault are under the control or care of corrections agencies, and 60% of these sex offenders are under some type of conditional supervision in the community (1). Finally, individuals convicted of sexual offenses will be back in society in a relatively short time. The average time served by a convicted rapist is about 5 years, and those incarcerated for other sexual assault sentences typically serve under 3 years (1). (https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf)
The "DNA Identification Act of 1994" contained within the Omnibus Crime Control Act (The Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, 108 stat. 1796) expressly authorizes the FBI to establish an index for law enforcement purposes. The Act also authorizes the FBI Director to establish quality assurance (QA) standards for laboratories performing forensic DNA testing. (https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf); see also FBI, Combined DNA Index System (CODIS), https://www.fbi.gov/services/laboratory/biometric-analysis/codis#CODIS-Overview.
The NDIS is the nation's DNA Database which separately maintains categories of DNA fingerprints of: convicted offenders, arrestees, detainees, unidentified human remains, missing persons, relatives of missing persons, recovered forensic crime scene and legal casework samples, in which all states participate in. NDIS is the federal database and CODIS (the Combined DNA Index System) is the computerized software system for analyzing and communicating DNA data. CODIS combines forensic DNA fingerprinting science with computerization to store, share, exchange and compare electronically DNA fingerprinting, DNA identification, DNA profiling information with the national index, NDIS, the state index, SDIS (State DNA Index System), local index, LDIS (Local DNA Index System) and international indexes. CODIS does not affect the state law as to how CODIS information may be used, it is merely a repository for gathering, maintaining and sharing DNA information.
CODIS is a hierarchical database of DNA identification records. The DNA records in CODIS contain limited information to enable profile searching. In general, the identification record contains 1) a laboratory identifier, 2) a specimen identifier, 3) DNA characteristics, and 4) information to classify and review the integrity of the DNA record. (https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf)
To be completely functional for comparing DNA profiles, the FBI Laboratory's CODIS must be a fully integrated network among local, state, and federal crime laboratories. CODIS enables federal, state and local law enforcement crime laboratories to exchange and compare DNA profiles, to link serial violent crimes, and to identify potential suspects by matching DNA profiles from crime scene evidence to convicted offenders' profiles. DNA records from a number of sources can be obtained, stored, and compared in CODIS. (https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf)
NEW YORK DNA DATABANK
One of the later states to be developed, New York State DNA Databank was codified in 1996 by Executive Law Art. 49-B and became operational in August 1996. It is an SDIS within CODIS. Although its first match linking a perpetrator with DNA crime scene sample was in February of 2000, DNA fingerprinting had been found admissible evidence in New York criminal law cases from 1988. Initially, DNA samples were only collected from convicted homicide and some sex-related crimes. Over the years the law has been amended to exponentially expand the type of crimes considered DNA eligible but has consistently not applied to children in Family Court matters, youthful offenders and more recently, first-time offenders convicted of marijuana possession pursuant to Penal Law § 221.10 (1). NYS has eight local DNA laboratories (LDIS) that are compliant with quality assurance and accreditation requirements of CODIS. Each LDIS maintains a Forensic Index, which is comprised of those DNA profiles from recovered crime scene evidence. Although the New York State Police Forensic Investigation Center is a LDIS, it also serves as SDIS laboratory for New York State to directly communicate with CODIS. Also, it maintains New York State's Convicted Offender Index ( 9 NYCRR § 6192.1 [z] and 9 NYCRR § 6192.1 [aa] ). Routinely, the Forensic Index from all 8 LDIS containing crime scene DNA, is compared and matched to NYS SDIS Offender Index, containing convicted felons' DNA profiles or DNA exemplars.
People v. Wesley , 533 NYS 2d 643 (1988).
New York State, Division of Criminal Justice Services, http://www.criminaljustice.ny.gov/forensic/dnaoffenses.htm
Erie County Department of Central Police Services Forensic Laboratory
Monroe County Public Safety Laboratory
Nassau County Office of the Medical Examiner Division of Forensic Services
New York City Office of the Chief Medical Examiner Department of Forensic Biology
New York State Police Forensic Investigation Center
Onondaga County Center for Forensic Sciences
Suffolk County Crime Laboratory
Westchester County Department of Laboratories & Research Division of Forensic Sciences
DNA fingerprinting, profiling, mapping or exemplars has overcome many challenges from being novel to becoming a standardized well-entrenched scientifically-accepted admissible forensic evidence in criminal courts of law worldwide. Going forward, the real issue that remains as global legislatures have expanded DNA Fingerprinting Databanks beyond the guilty into the not guilty is how far should governments be able to infringe on the privacy interests of the innocent. It begs the question, whether a mere allegation of criminal malfeasance should be enough to brand a former suspect who provided DNA Fingerprint and adjudicated as innocent to be a forever suspect in perpetuity.
Dr. Jeffreys was compelled to chastise the United Kingdom's ever-expanding overreach in its DNA Databank collection and permanent storage of thousands of people who have neither been charged nor convicted: "My view is very, very simple, has been right from the outset. Innocent people do not belong on that database. Branding them as future criminals is not proportionate response in the fight against crime. And I've met a fair number of these people and some of these people are very, very upset and are distressed by the fact that their DNA is on that database. They cannot get it off and they feel as if they're branded as criminals. " BBC News, DNA Fingerprinting 25 Years Old, http://news.bbc.co.uk/2/hi/uk/8247641.stm (last updated Sept. 10, 2009).
THE DNA SEARCH WARRANT
As a LDIS, New York City Office of Chief Medical Examiner (OCME) is tasked with testing, analysis and matching of defendant's biological sample, generally by buccal saliva swab samples, as in the instant matter herein. However, the OCME DNA fingerprinting or mapping testing and analysis is not statutorily a matter of course upon arrest. Rather, it is by consent, court order, either by search warrant or motion, or by pseudo-exemplars also termed "abandoned DNA" samples. In the instant matter, People are seeking search and seizure of defendant's person for a compelled saliva sample through a non-invasive safe and reliable buccal swab by search warrant. As in any search warrant, there must be found probable cause that a crime has been committed to be constitutionally viable. However, when the search and seizure is an intrusion of a corporeal nature, there is a higher level of scrutiny. The seminal New York Court of Appeals case on the constitutional limitations of search and seizure of a corporeal nature is Matter of Abe A. , 56 NY2d 288 (1982). It is well settled law that Abe A sets forth the 3-prong test for search and seizure of corporeal evidence from an arrestee, suspect or defendant: "(1) probable cause to believe defendant has committed a crime, (2) a ‘clear indication’ that relevant evidence will be found, and (3) the method used to secure it is safe and reliable" (See People v. Debraux, 50 Misc 3d 247, 260 [Sup Ct, New York County 2015], citing Matter of Abe A. , 56 NY2d 288 [1982] ). In addition, the trial court must engage in a balancing of factors to "weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it against concern for the suspect's constitutional prerequisite for ordering non-testimonial discovery of the defendant's person" (see Abe. A at 297, 298).
"Abandoned DNA is any amount of human tissue capable of DNA analysis and separated from a targeted individual's person inadvertently or involuntarily, but not by police coercion. We can distinguish this method of DNA retrieval from samples obtained by force (by drawing blood) or by consent (for exoneration purposes). Abandoned DNA collection is also distinct from the acquisition of a suspect's DNA sample pursuant to a court-issued warrant." (https://pdfs.semanticscholar.org/e0a1/12455589136b2bfcd9d9c52fee8d5aeaed88.pdf). However, pseudo-exemplars are not as reliable since they are often not obtained within controlled conditions in which the sample was acquired and reliable documented chain of custody.
Defendant argues that People fail to satisfy the second prong of Abe A. . Defendant contends there is no clear indication that relevant material evidence would be found as a result of the OCME buccal saliva swab testing that People seek herein; "the mere presence of epithelial cells on the complainant's pants, is not probative evidence of the charges that are alleged" as the defendant concedes that he was present in the restaurant the evening of the alleged crime (Defendant's Cross-Motion at Paragraph 9). However, the informant victim, with specificity, states that defendant was the male person who pulled down her pants, stood behind her while restraining her and touched her vagina while she was screaming for defendant to stop and trying to swat his arm away from her, without her consent. Clearly, not only does victim's statement satisfy the first prong of Abe A. for probable cause, it also satisfies the 2nd prong. Defendant's DNA profile will provide probative evidence if there is or isn't a match with the male DNA sample on victim's pants and underwear. The weight of the probative evidentiary value of the match or non-match is within the province of the fact-finder as jury or judge at trial. Defendant argues that since he concedes his presence at the restaurant on the date and time of alleged assault therefore obviates the need for his DNA sampling because as a matter of course there may have been casual brushing off epithelial cells unto the victim's pants. However, a DNA match to the male sample found by OCME on victim's pants and underwear to defendant would provide clear indication that relevant material evidence would be found to establish close physical contact as opposed to mere casual happenstance contact. The charges herein of Forcible Touching and Sexual Abuse in the First Degree require the elements of "contact" and of "touch" (see Penal Law §§ 130.65 [1], 130.52 [1] ). Therefore, defendant's buccal saliva swab will reveal defendant's inclusion or exclusion as the male contributor of the DNA samples obtained from victim's pants and underwear. Consequently, defendant's argument is unpersuasive and there is clear indication that relevant material evidence would be found as a result of search and seizure of defendant's buccal saliva swab.
For the foregoing reasons:
People's motion for order for search warrant to compel defendant to submit to a buccal saliva swab is GRANTED;
People's motion to order taking of buccal saliva swab by "necessary and reasonable force" is deemed premature and DENIED.
PROTECTIVE ORDER
The court now turns to defendant's cross motion for a protective order pursuant to CPL 240.50 to prevent his DNA profile results from the testing and analysis of his buccal saliva swab from being entered into OCME's local suspect database. OCME statutorily as LDIS to process, test, analyze, maintain and store recovered crime scene evidence in a Forensic Index. Defendant contends that there is no law that expressly authorizes OCME to store, maintain or be a repository for DNA profiles of exonerated nor acquitted former suspects (Defendant's Cross-Motion at Paragraph 37). Further, OCME is not legislatively authorized to maintain a Suspect Forensic Databank (Defendant's Cross-Motion at Paragraph 37). As such, defendant moves to limit the use of his DNA profile to a comparison and matching solely against recovered crime scene DNA evidence in the instant case and in no other case or investigations not relevant thereto (Defendant's Cross-Motion at Paragraph 25).
See New York State Division of Criminal Justice Services, The NYS DNA Databank and CODIS, http://www.criminaljustice.ny.gov/forensic/dnabrochure.htm.
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In Maryland v King , 569 US 435 (2013), the Supreme Court held that a defendant had no Fourth Amendment privacy interest in a buccal swab sample once it was taken (id. at 1978-9). Although Maryland v. King settles the defendant's constitutional privacy interest in his bodily fluids once taken by law enforcement, it does not resolve the New York State Executive Law issue at hand herein. Whereas, the Maryland statute at issue authorized arrestee or non-convicted suspect's DNA profile to be uploaded into its SDIS for comparison and matching for even non-related investigations pre-trial; Executive Law Section 995-c expressly takes the complete contrary position in which DNA profiles of arrestee and non-convicted suspects are not to be uploaded to NY SDIS and specifically limiting the instances when DNA records may be released ( Executive Law §§ 995-c [6], 995-d ).
As discussed in depth supra, as LDIS, OCME must operate under New York State and CODIS accreditation, quality assurance, and testing standards (see People v K.M. , 54 Misc 3d 825 [Sup Ct, Bronx County 2016], citing People v. John , 27 NY3d 294 [Ct App 2016] ). Specifically, Executive Law § 995-c authorizes the commissioner to establish "a computerized state DNA identification index" in which DNA records may only be released for the purposes listed in Executive Law § 995-c (6) (see Executive Law § 995-c [1] ). None of the listed purposes apply in this instance as defendant has not been convicted, therefore his DNA is not to be uploaded into New York SDIS.
Pursuant to Executive Law § 995-c (3), forensic laboratories under the State Commission are permitted to upload DNA profiles into the New York SDIS after the conviction and sentencing of a defendant (see People v. Debraux , 50 Misc 3d 147 [Sup Ct, New York County 2015]. As one of the eight LDIS in New York State, OCME's forensic laboratory operates under the authority of New York State SDIS and must operate within the confidentiality rules of Executive Law § 995-d (see People v. Hernan , 2018 NYLJ LEXIS 205; see also People v. Murray , 41 NYS3d 875 [Sup Ct, Bronx County 2016] ). Executive Law § 995-d provides:
"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."
Accordingly, defendant's DNA profile results by OCME as a never-convicted suspect cannot be uploaded to either NY SDIS or CODIS. Rather, OCME may upload recovered crime scene forensic male DNA evidence from the defendant's pants and underwear into SDIS and CODIS for comparison to match to repository of Convicted Offenders Index. Citing numerous cases, the People contend that many New York City courts deny protective orders to defendants while convictions are pending. People's Response at Paragraph 3. However, more recently, courts have granted protective orders under the statutory scheme of the Executive Law (see People v. K.M. , 54 Misc 3d 825 [Sup Ct, Bronx County 2016] ; see also People v. Blank , 2018 NYMisc LEXIS 3774, 2018 WL 4290569, 2018 NY Slip Op 28274 [2018] ; see also People v. Murray , 2016 NYLJ LEXIS 4267; see also People v. Halle , 57 Misc 3d 335 [Sup Ct, Kings County 2017] ). Whereas the Executive Law does not expressly authorize or prohibit LDIS OCME from maintaining and storing DNA profiles of arrestees, suspects, exonerees and innocents, it is left to the court's discretion to interpret the current state of the law. Until such legislative amendment, there will continue to be inconsistency in these rulings. This Court concurs with the holdings granting protective orders to innocents and the exonerated, particularly concurring in the reasoning set forth in Halle pursuant to Abe A's analysis:
"To allow OCME to compare these defendants' DNA profiles to any other crime scene evidence in their possession, now or in the future, would vitiate the Abe A. requirements that such an order issue only upon a showing of ‘probable cause to believe the suspect has committed the crime [and] a clear indication that relevant material evidence will be found’ (Matter of Abe A., l56 NY2d at 291). Equally if not more significant is the New York State statutory framework previously discussed. That framework provides that only upon a criminal conviction and sentence is an individual required to provide DNA which, when uploaded to SDIS and CODIS, is then available for general comparison to crime scene evidence in unrelated cases ( Exec Law § 995—c [3], [5], [6] )"
( People v. Halle , 57 Misc 3d 335 [Sup Ct, Kings County 2017] ).
OCME does not and is not authorized to automatically feed into the New York state's database, except for Forensic Evidence only, and no other agency has access to OCME's local database (see People v. Debraux, 50 Misc 3d 247, 262 [Sup Ct, New York County 2015] ). However, the Forensic Biology lab of OCME is a "Forensic DNA Laboratory," as defined in Executive Law § 955 of Article 49-b (see People v. Halle at 16) and the Executive Law must be read cohesively to preclude OCME from uploading DNA fingerprint of an individual into its local database until the legislature acts to explicitly state otherwise.
The Court orders any DNA result from defendant's buccal saliva sample to be used solely for comparison to recovered crime scene DNA male profile in this instant case. The Court precludes OCME from using defendant's buccal swab results for any other reason than those stated herein. Defendant's cross-motion for protective order is GRANTED.
This constitutes the opinion, decision and order of This Honorable Court.