Opinion
3512/19
08-26-2020
The PEOPLE of the State of New York v. Yamira LORA, Defendant.
The defendant and her co-defendant were indicted for one count each of Robbery in the First and Second Degrees. The People allege that on October 28, 2019, the defendants approached the complainant and demanded his belongings. The co-defendant displayed a machete and both defendants threatened to kill the complainant. This defendant then took the complainant's wallet, cellular telephone, and keys. The defendants fled. Less than thirty minutes later the defendants were arrested within a short distance of each other. Both defendants possessed items belonging to the complainant and the machete was recovered under a car near the location where this defendant was arrested. The complainant identified his property as well as the defendants and the machete used to rob him.
The People submitted the machete to the Office of the Chief Medical Examiner ("OCME") for DNA testing. The results showed that DNA suitable for testing was found and that three people had contributed to the sample found on the machete. Although the testing did not determine whether there was any female DNA present, quantitation results indicated an approximate ratio of seventy-five percent male DNA to presumably twenty-five percent female DNA. The People have moved to take DNA samples from both defendants. This defendant opposes the application or in the alternative, seeks a protective order limiting the use of her DNA. The People have submitted a reply and the defendant submitted a sur-reply. For the reasons stated herein, this Court grants the People's motion to take a sample of the defendant's DNA and denies the defendant's motion for a protective order. The People have withdrawn their request for the use of force to obtain the defendant's sample. This Court would have nonetheless denied the request as premature.
In codifying Matter of Abe A., 56 NY2d 288 (1982), the new C.P.L. § 245.40 statute states that a defendant may be required to provide non-testimonial evidence:
After the filing of an accusatory instrument, and subject to constitutional limitations upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable.
Here, the defendant has already been indicted, therefore probable cause has been established. The sample will be extracted by a professional safely and easily by swabbing the inside of the defendant's cheek. In addition, as noted above, relevant material evidence will be found by testing the defendant's DNA. Should the defendant's DNA be discovered on the machete, it could indicate that the defendant did indeed handle the machete. It could establish that she was not merely an innocent bystander while the co-defendant allegedly robbed the complainant but that she was an active participate either before and/or after the robbery. This is especially important since the defendant was not seen handling the machete although it was recovered in close proximity to where this defendant was apprehended. It is inconceivable that at trial the defendant might argue DNA transference — an argument that would affect the weight of the evidence, not its admissibility. Should her DNA not be found, however, the defense may argue that she was not involved in the robbery at all. Accordingly, the Abe A., and statutory requirements have been met.
The defendant puts forth several arguments in support of her application for a protective order. They are: that the OCME lab is not authorized and it is therefore illegal to upload her DNA sample; uploading her DNA violates the confidentiality provisions of the Executive Law; comparison of her DNA violates the Fourth Amendment probable cause requirement; and, finally, that uploading her DNA without her consent deprives her of her property right to her own genetic material. The defendant relies heavily upon Samy F. v. Fabrizio, 176 AD3d 44 (1st Dept. 2019), in support of her motion.
Authority does exist for creation of the OCME lab. The Court in Samy F., noted that the OCME is a creation of the New York City Charter which may, to the extent permitted by law, provide forensic testing and analysis in furtherance of investigations. Id., at 50.
Nonetheless, the Legislature has not spoken out against these court decisions or LDIS, nor has it amended the statute. In fact, Executive Law 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.
People v. White , 60 Misc 3d 304, 308 (Sup. Ct., Bronx Co. 2018)
A review of the OCME's website indicates that the Linkage database has been closed for several years. No other DNA profiles have been uploaded but searches may still be performed. When viewing the Forensic Biology CODIS Manual, it indicates that suspect — as opposed to convicted persons’ — DNA may be uploaded to a local DNA database but not a State level database. Suspect profiles are limited for upload by the OCME to only those where a crime has been committed. If a case has been deemed "unfounded" by the police, any DNA profile generated in that case will be ineligible for entry into the database. (www1.nyc.gov; Overview of the CODIS Program, 2.1 Forensic Biology CODIS Overview, 2.1.2 Note.)
The defendant's reading of Samy F. , is overly broad. While the Executive Law applies to the OCME, it is for the limited purposes of testing procedure and regulation of those procedures. The decision is not as far-reaching as the defendant would have. Even assuming arguendo the Executive Law applied to all aspects of the OCME, Executive Law § 995-d provides that testing, reports, records and findings remain confidential with an exception for use by law enforcement. Id. The People affirm in their response that DNA "hits" are not disseminated to the entire Police Department but that the information is sent via a secured link to a special desk at the Police Department and to the Chief of Forensic Prosecutions at the relevant District Attorneys’ Offices. (People's Affirmation in Opposition, p.7.)
Furthermore, since the defendant will be providing her DNA sample pursuant to a court order, the Executive Law permits her to later seek discretionary expungement of her DNA records. Should the action be found to be untimely filed, or the defendant acquitted, or her conviction reversed, or vacated, or she receives a pardon, she may apply for this remedy. Id., at 53; People v. White, 60 Misc 3d at 309 (while the Executive Law limits defendant's DNA samples uploaded to the State database to convicted defendants only, it does not authorize such limitations on the local DNA database; in addition, a defendant may later seek expungement of all his DNA information including that in the local database).
The defendant does not have a Constitutional Fourth Amendment privacy interest in a buccal swab once it is taken. Maryland v. King, 133 S.Ct. 1958 (2013).
While the Court is aware of decisions of other courts limiting the use of DNA samples, it respectfully declines to follow that line of cases. The defendant's motion for a protective order is, therefore, denied.
In sum, the People's motion to take a sample of the defendant's DNA is granted; the motion to use force is denied as moot; the defendant's cross-motion for a protective order is denied. This constitutes the decision and order of the Court.