People v Velez

[*1] People v Velez 2017 NY Slip Op 50049(U) Decided on January 13, 2017 Supreme Court, Bronx County Newbauer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2017
Supreme Court, Bronx County

The People of the State of New York,

against

Dyllon Velez, Defendant.



1933/2016



Raymond G Valerio, Director of DNA Prosecutions, Office of the Bronx County District Attorney

Jesse Hoberman-Kelly, 928 Broadway, Suite 1005, NY,NY 10010, for the Defendant
April A. Newbauer, J.

The People move pursuant to Criminal Procedure Law section 240.20(2)(b)(v) for an order directing the collection of a saliva sample from the defendant for the purpose of DNA analysis. The defendant opposes the motion, arguing that probable cause has not been established and that the People have not demonstrated 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).

Procedural history

On September 29, 2016, the People filed this motion under Criminal Procedure Law ("CPL") §240.40(2)(b)(v). On October 31, 2016, the Defendant opposed the motion claiming the People offer no support for "a new and different statistical tool AmpF/STR Identifiler PCR Amplification kit," with which they seek to have the Office of the Chief Medical Examiner ("OCME") test the sample. Defendant suggests that the procedure does not meet the test under Matter of Abe A, 86 NY2d288 (1982), because the People cannot produce a DNA profile to compare the defendant's DNA profile but rather further DNA testing is necessary to determine the origin of the DNA found on the swabs from the .22 revolver to either include or exclude defendant as the source of the unidentified individual contributors to the DNA mixture recovered. The defendant requests that if the court grants an order to compel the collection of a sample of the defendant's saliva, the court should issue a protective order as follows: 1) specifically prohibiting the comparison of the defendant's DNA to DNA in any other case; 2) prohibiting the inclusion of the defendant's DNA in the Office of Chief Medical Examiner's [*2]DNA database; 3) prohibiting the use of the defendant's DNA results for any purpose beyond the use in this case for comparison with the DNA profile developed in any related forensic biology file prepared for this case; and 4) directing the destruction and expungement of the swabs used to collect the sample from the defendant, the numeric DNA profile created from those swabs, the DNA extract, and the forensic biology case file created after this case is completed if the sample of the defendant's DNA results in a "negative hit" as compared to any potential DNA profile in this case.

Facts

On June 21, 2016, defendant was indicted for Criminal Possession of a Weapon in the Second Degree in violation of Penal Law section 256.03(3) for an incident that occurred on April 15, 2016 at approximately 11:48 p.m. at the northeast corner of East 160th Street and Tinton Avenue in Bronx County. The indictment alleges that the defendant possessed a loaded .22 caliber revolver. The firearm was swabbed and the swabs were vouchered. These swabs were then submitted to the New York City Office of the Medical Examiner ("OCME") for DNA testing to determine if a profile could be obtained. The OCME Department of Forensic Biology was able to determine that mixtures of DNA were found and were suitable for comparison from the firearm and provided this information to the People in the form of a report dated September 16, 2016. The defendant was arraigned in Part SCA upon the charge of Penal Law section 265.03(3) and related charges. On September 29, 2016, the People filed the motion requesting an order directing the collection of a saliva sample from the defendant for the purposes of DNA analysis. The Defendant filed an affirmation in opposition on October 31, 2016 and a supplemental affirmation on January 3, 2017. The court heard oral argument on January 5, 2017.

DNA sample

Criminal Procedure Law section 240.90(1) states, "[a] motion by the prosecutor for discovery shall be made within forty-five days after arraignment, but for good cause shown maybe made at any time before commencement of trial." As the People's motion is timely served and filed, this Court will consider the merits of the motion.

CPL section 240.40(2)(b)(v) provides that 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 high court held that an order to obtain a blood sample may issue if the prosecution establishes: 1) probable cause to believe the suspect has committed a crime; 2) a clear indication that relevant material evidence will be found; and 3) that the method used to secure the sample is safe and reliable.

The People contended at oral argument that the AmpF/STR Identifiler PCR procedure was not new at all, but simply the OCME process examined by the courts in Frye hearings in People v. Collins, 49 Misc 3d 595 (Sup Ct Kings Co 2015) and People v. Rodriguez, Ind No. 5471/2009 (Sup Ct NY Co 2013)(Carruthers, J). The defense does not offer anything to contradict this assertion or argue that a Frye hearing should be held before a swab is taken, but takes the position that the People's motion papers do not support their position with sufficient indicia of reliability to satisfy the requirements of Matter of Abe A, 56 NY2d 288.

While a Frye hearing may be appropriate at another stage, the People's motion papers are sufficient to justify their position under CPL §240.20. The grand jury minutes have been reviewed and established probable cause to believe that defendant committed the crimes charged in the indictment by the grand jury, and thus to support the motion for a buccal swab. There is also a clear indication that the relevant material will be found as the firearm was alleged to have been in the defendant's possession and recovered inside the pocket of the shorts the defendant was wearing at the time. The DNA test results from the firearm may result in material and relevant evidence. See People v. Shields, 155 AD2d 978 (4th Dept 1989). Indeed, the defense concedes at a minimum that if the test results exclude the defendant, the DNA comparison would be relevant and material to the issue regarding the identity of the perpetrator. Finally, the method of swabbing the inside of the defendant's mouth is both safe and reliable. See Matter of Abe A., 56 NY2d at 299. Accordingly, the People's motion for an order, pursuant to CPL §240.40(2)(b)(v), directing that the defendant to submit to the taking of an oral swab from his mouth for DNA testing and analysis is granted.

Protective order

For the reasons stated in People v. Katina Murray, —Misc.3d&mdash, 41 NYS3d 875(Sup Ct Bx Co 2016), the defendant's motion for a protective order is granted. In 1994, the Legislature established a statewide DNA databank along with a comprehensive set of standards and protocols for accrediting forensic laboratories throughout New York State. Enacted as Article 49-B of the 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" (Exec. Law §995-1) that performs forensic testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding..." Exec. Law §995-2. Only federal laboratories are exempted from the comprehensive statutory scheme. Exec. L. §995-e.[FN1] The legislation also empowered the state Commission to revoke, suspend or otherwise limit the accreditation of a forensic laboratory which violates the provisions of Article 49-B. Exec. Law §995-b(3)(e)(v).

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

Confidentiality1. 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 section 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 subsequent to a defendant's conviction and sentencing. Exec. Law §995-c(3); see also, People v. Debraux, 50 Misc 3d 247 (Sup Ct NY Co 2015).

The New York City Office of the Chief Medical Examiner ("OCME") is a forensic DNA laboratory that must operate under New York State accreditation and testing standards. See, People v. John, 26 NY3d 1101 (2016); see also, People v. Marcelino Lopez, Index No. 3139/2014 (Sup Ct Bronx Co Clancy, J.)("...the people conceded during oral argument before the court that OCME is a forensic DNA laboratory that is accredited by New York State.") OCME practices and procedures fall under the jurisdiction of the Commission on Forensic Science.

A number of courts have properly found Executive Law 995-d to apply to OCME, and then nonetheless denied protective orders to defendants while their convictions are pending. At least one court found the OCME local uploading practice acceptable because it was limited to local law enforcement and prosecutors. However in considering the inclusion of DNA profiles from pending cases in the OCME local "Linkage" database there is no getting around the conflict between the state statutory scheme as embodied in Exec. L. §995-d. State law mandates DNA uploading only upon conviction and sentencing and also establishes a state DNA database for that purpose. These two subsections of Executive Law 49-B are part of a comprehensive and detailed scheme the Legislature created to regulate the arena of forensic DNA testing in New York State.

Where the state evinces an intention to preempt the field, localities are precluded from, among other things, passing contrary local laws, even when their intent is to promote the welfare of their citizens. See People v. Djack, 24 NY3d 674 (2015); People v. Cooper, 49 Misc 3d 132(A) (App Term, 2d & 11th Dists 2015). Cf., People v. Jarret Jefferson, Ind. No. 2862/2013 (Sup Ct Bronx Co Gross, J.). The New York City Council has not even passed local legislation permitting the creation of this database, which would generate the need for a preemption balancing test, the local rule to be a factor weighed against the clear policy under the New York State statutory framework. Without such an enactment, there is no reason for this court to conduct a such a balancing test. The court will not imbue OCME's ultra vires procedures with [*3]its own positive imprimatur by denying a protective order to a presumptively innocent defendant.

According to the New York State Division of Criminal Justice Services, in 2015 slightly under half of all crimes and about two thirds of all violent crimes in New York State were committed within New York City. See DCJS, Uniform Crime/incident Based Reporting System, 2010-2015. The "local" NYC database is therefore providing the upload capacity to approximately half the investigations in the state while the defendants' cases are pending. By denying a protective order to the defendant awaiting trial, this court would be permitting the operation of a shadow state DNA index that operates for just five counties, but in reality for as many as half the state investigations implicating DNA. Such widespread availability of a defendant's DNA profile for matching would run afoul of Executive Law 995-c, which allows inclusion of a DNA profile into a wide-ranging database only after conviction. For this reason, although the Legislature indeed may never have contemplated the establishment of a local database, OCME's creation of the "Linkage" database in New York City contravenes the statutory intent in more than a minor way. It may be that OCME has simply established Linkage and adopted procedures for the internal database for unrelated and innocuous reasons of its own. Although not necessarily intending to skirt the state statute, that is the practical effect for a highly significant percentage of law enforcement users.

In Maryland v. King, 569 US&mdash, 133 SCt 1958 (2013), the Supreme Court in a 4-3 decision upheld a Maryland statute permitting that state's law enforcement authorities to collect DNA samples from individuals who are charged with violent crimes and certain other serious crimes for inclusion into a statewide DNA database for comparison to DNA from unsolved crimes. The Court found the defendant had no Fourth Amendment privacy interest in the buccal swab sample once it is taken. Id. at 1978-9. While Maryland v. King settles the question of the defendant's constitutional privacy interest, it has no bearing on the question presented under New York State law. The Supreme Court was asked to determine the Fourth Amendment interest in the context of a state statute which expressly permitted the use of the a defendant's DNA before trial. The New York Executive Law takes precisely the opposite view of uploading a presumptively innocent defendant's DNA into a database. See, Exec. L§995-c.[FN2]

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 DNA profile previously generated from the swab of the firearm in this case only and will be not utilized for any other purpose or comparison and will not be added to state or OCME databases pending her conviction and sentencing.

An accompanying order has been signed.

E N T E R

Dated: January 13, 2017

Bronx, New York

[*4]__________________________________

April A. Newbauer

A.J.S.C. Footnotes

Footnote 1: People v Velez A number of opinions which construe the state law not to apply to the New York City forensic laboratory (Office of the Chief Medical Examiner), at least with respect to its creation and use of a local databank. See, e.g., People v. Mohammed, 48 Misc 3d 415 (Sup Ct Bronx Co 2015). The analysis below compels a contrary conclusion.

Footnote 2:People v. King, 232 AD2d 111 (2d Dept 1997), is not binding because the facts in that case arose prior to the enactment of Article 49B and the case turned on the constitutional question. See, People v. Rodriguez, 193 Misc 2d 725 (Sup Ct Kings Co 2002).