Sandra E. Roper, J.

Justine Luongo, Esq., The Legal Aid Society, 49 Thomas Street, New York, New York 10013 By: Lauren Gottesman, (212)-298-3029, Counsel for Defendant

Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013 By: Meghan Hast, (212)-335-4172, Counsel for The People

Sandra E. Roper, J.

This Honorable Court Rules as follows:

Law enforcement's search and seizure of minor defendant's buccal saliva swab sample for DNA Fingerprinting is an unlawful search and seizure; NYS LDIS OCME is Ordered to return minor defendant's buccal saliva swab sample and any and all tangible instrumentalities attendant thereto to minor defendant's counsel; NYS LDIS OCME is Ordered to permanently destroy and expunge any data uploaded to any and all of its computerized information systems contained and maintained within Databank that are related and relevant, either directly or tangentially, to minor defendant; and Protective Order is Deemed Moot.

INTRODUCTION

Minor defendant moves by Order to Show Cause (hereinafter referred to as OSC) to destroy and expunge minor defendant's DNA profile, or in the alternative, for a protective order limiting the use of any buccal swab sample obtained from minor defendant for comparison solely in the instant case. Whereas, People move to compare minor defendant's DNA Fingerprint to crime scene evidence recovered in other unrelated investigations that are stored and maintained in forensic DNA Databases.

PROCEDURAL HISTORY

On or about July 31, 2018 minor defendant was arrested and charged with two counts of Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03[1][a] and Penal Law § 265.03 [3 ] ). On August 1, 2018, minor defendant was arraigned, People served Grand Jury notice, and defense served Cross Grand Jury notice. With his first criminal contact, minor defendant was released on own recognizance on People's consent. On September 25, 2018, Court was adjourned to Part F for Grand Jury Action. Off calendar on September 13, 2018, defense moved by OSC to direct OCME to destroy and expunge any DNA sample or profile that was obtained from minor defendant during his pre-arraignment detention, along with any comparisons of his DNA sample or profile to any crime scene evidence in this instant case; in the alternative, defense moved for a protective order prohibiting OCME from uploading minor defendant's DNA profile into the New York City Local DNA databank and prohibiting any further comparisons apart from this instant case. By letter dated September 20, 2018, which was addressed, served, and filed upon the court, OCME stated the position that although it takes no position on the relief defense requests, its status as LDIS is fully legal. Defense further stated that although minor defendant's buccal saliva swab is currently in possession of OCME, it has not and will not perform any DNA testing until the Court's decision has been rendered.

As of the last court appearance of all parties on September 25, 2018, People stated no grand jury action. Therefore, jurisdiction remains with criminal court Part F until such time that grand jury votes to indict.

ALLEGATIONS

Minor defendant, a 17-year-old male with no prior criminal conduct was arrested along with a co-defendant under the circumstances stated in the NYPD Court Verification/Arraignment Card:

AT TPO DEDENDANT WAS THE PASSENGER OF VEHICLE BEING DRIVEN WITH EXCESSIVE TINTS. UPON FURTHER INVESTIGATION, DEFENDANT WAS FOUND TO BE IN POSSESSION OF A LOADED 9MM SMITH AND WESSON WITH 1 LIVE ROUND IN THE CHAMBER AND 14 LIVE ROUNDS IN THE MAGAZINE.

The felony accusatory instrument, herein sworn by deponent police officer, sets forth the following:

On or about July 31, 2018 at about 10:03 P.M., behind 425 East 105th Street in the County and State of New York, the defendants possessed a machine gun with intent to use it unlawfully against another; the defendants possessed a loaded firearm outside of his home and place of business; the defendant uttered and possessed a forged instrument of a kind specified in section 170.10 of the Penal Law and particularized below with knowledge that the instrument was forged and with intent to defraud, deceive and injure another.

The factual basis for the charges are as follows:

I observed both the defendants inside a car with windows with illegal tints that was driving down the street. When my partner and I signaled to the car to stop by using our lights, I observed that the back door to the car was opening. I then observed both defendants get out of the car and run away. Defendant Jamel Vicks was the driver of the vehicle. My partner and I chased after the defendants and apprehended them.

Inside the car on the back passenger seat, I observed a firearm, which was loaded with a total of 15 rounds of ammunition.

I observed the car had a temporary New Jersey plate, which was affixed to the back of the car. I am informed by New Jersey State Trooper Launess that they ran a check of the temporary plate and that it was forged.

FACTUAL BACKGROUND BY DEFENDANT

As People failed to present any opposing version of facts in its response to OSC, this Court shall accept defense's facts as creditable. The creditable facts appear in OSC, as follows:

3. [K. N.], a seventeen-year-old boy, is charged in this case with two counts of Criminal Possession of a Weapon in the Second Degree (pursuant to P.L. §§ 265.03 [1] [a], 265.03 [3] ).

4. On July 31, 2018 at about 10:00pm, [K. N.] was a passenger in the vehicle of his co-defendant who is 22 years old. According to the criminal complaint filed against [K. N.] and his co-defendant, the vehicle, which allegedly had illegal window tinting, was in the vicinity of 425 East 105th Street, in the County and State of New York. When police officers put on the siren and signaled for the vehicle to pull over, a back door of the vehicle opened, and the vehicle's occupants, including [K. N.], allegedly exited the vehicle and began to run away. Officer Jonathan Perez and his partner chased after [K. N.] and his co-defendant and apprehended them. The officers searched the vehicle and recovered a loaded firearm on the back-passenger seat of the vehicle.

5. [K. N.] ultimately was taken to the 23rd police precinct for questioning. The police took pedigree information from [K. N.] and fingerprinted him. The police confirmed through the pedigree process that [K. N.] was 17 years old and has no prior criminal record.

6. After his pedigree information was taken, [K. N.] was detained at the 23rd precinct for more than 12 hours. At no point did the police contact, nor allow [K. N.] to contact, his Aunt who is his legal guardian. The police officers at the 23rd precinct did, however, make contact with [K. N.]'s biological mother. Anticipating that she would be able to see and speak with her son, [K.N.'s mother] came to the precinct. Despite waiting at the precinct for over two hours, [K.N.'s mother] was never given the opportunity to speak with or see her son.

7. During his detention, [K. N.] was questioned by members of the 23rd precinct and an assistant district attorney. At some point during his detention, [K. N.] was provided with a consent form to provide a DNA sample. Despite his mother's presence at the precinct, [K. N.] was not provided the opportunity to discuss his decision to provide a DNA sample with his mother, legal guardian, or an attorney. Upon information and belief, the police did not ask [K. N.]'s mother, nor any other guardian, for parental consent before inserting a DNA swab into [K. N.]'s mouth and removing a bodily sample for genetic profiling.

8. During his prolonged detention, the police did not tell [K. N.] the basic facts about forensic DNA testing before taking his DNA sample. They did not tell him that even if his DNA were not on the evidence recovered from the firearm or vehicle, his case may not be dismissed. Nor did the police explain that "touch" DNA, like the kind typically found on a weapon, could be transferred innocently through an intermediary, such that [K. N.]'s DNA could wind up on an object that he never even touched.9. Additionally, the police led [K. N.] to believe that his DNA would be compared only to the gun that was recovered at the time of his arrest. Significantly, the police did not inform [K. N.] that after his DNA was collected, it would be uploaded into New York City' local "suspect" DNA database, known as LDIS. LDIS stores all DNA profiles obtained by the police for the purpose of comparison to all forensic DNA evidence samples collected in New York City from any time in the past and any time in the future. The police did not tell [K. N.] that by "consenting" to give his DNA, he was signing away his DNA profile to the City of New York for forensic comparisons from the time he was a teenager into perpetuity.

10. Under these circumstances, [K. N.] did not refuse the DNA sample.

11. Upon information and belief, the NYPD sent [K. N.]'s DNA swab to the OCME. The swab was sent with a "request for laboratory examination," which is a law enforcement document requesting that OCME develop a DNA profile from this swab for the purpose of comparing it to DNA swabs that the police also took from the evidence in this case (as well as all other forensic evidence samples in OCME's local DNA database). OCME, pursuant to its regular policy, generally complies with the requests from law enforcement to compare a DNA swab from an individual to evidence.

12. Upon information and belief, no such development of [K. N.]'s DNA profile or comparison with any evidence has been performed currently. Upon an affirmative order from this Court, DNA comparisons will be performed imminently.

Arraignment and Current Procedural Posture

13. [K. N.] was arraigned late in the evening on August 1, 2018, over 24 hours after his arrest. At his arraignment was the first time he was able to speak to a lawyer (or any other adult) about the DNA swab.

14. At his arraignment, [K. N.] was released on his own recognizance, on consent of the prosecution. His case was adjourned for grand jury action to September 25, 2018.

The Current Status of the DNA Swab

15. On August 21, 2018, the defense emailed a representative from OCME to inquire whether the swab from [K. N.] had been developed into a DNA profile. This representative, an attorney at OCME, informed counsel that she is in possession of [K. N.]'s DNA sample, but that testing has not yet begun. The representative further informed counsel that the OCME will not conduct laboratory testing on [K. N.]'s DNA sample until the instant motion for a protective order is resolved. (Defendant's OSC at Paragraph 3-15)

DISCUSSION

CONSENT TO DNA TESTING

Of the three methods used for obtaining a suspect's forensic biological sample for DNA profiling (consent, court order, or covert abandoned DNA - pseudo-exemplars), critics contend consent has become insidiously over-used. Detractors argue, this unregulated overuse of consent by law enforcement runs afoul of those civil rights protections found in the Fourth and Fourteenth Amendments; the overuse is more so harmful to minority children. When a biological sample is obtained by court order, there are well-established legal standards: an individual has a privacy interest to his or her bodily fluids (see Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2012) ); a court order allowing the government to procure evidence from a person's body constitutes a search and seizure under the Fourth Amendment of the United States Constitution (see Id. ). Such court order may be issued if the three-prong standard of Abe A. is met. Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265. This well-established test decided by The New York State Court of Appeals held a court may order a suspect to provide a sample for DNA profiling provided the People establish: (1) probable cause to believe the suspect has committed the crime. (2) a "clear indication" that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. Matter of Abe A. , 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982). The Court also stated that the worth of the evidence to the case must also outweigh the intrusion to the individual (see Id. ). In the absence of any exigencies, the individual must be put on notice of the People's application for an order (see People v. Smith , 95 A.D.3d 21, 940 N.Y.S.2d 373 [App. Div. 2012] ).

However, where law enforcement asks a party of interest or suspect for consent to obtain a biological sample for DNA profiling, legal guidance is not so concise: "when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given " ( Bumper v. North Carolina , 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 [1968], see also Johnson v. United States , 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 [1948] ; Amos v. United States , 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 [1921] ). To determine the voluntariness of the consent, the totality of the circumstances must be assessed and be free of any scintilla of coercion. Factors to be considered: suspect's age, level of education, lack of advice of suspect's constitutional rights, length of detention, nature of interrogation and deprivation of food or sleep. The seminal case on the voluntariness of consent for search and seizure, Schneckloth v. Bustamonte , states:

"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable ...subject only to a few specifically established and well -delineated exceptions.’ Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Coolidge v. New Hampshire , 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; Chambers v. Maroney , 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Davis v. United States , 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453 ; Zap v. United States , 328 U.S. 624, 630, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946). The constitutional question in the present case concerns the definition of ‘consent’ in this Fourth and Fourteenth Amendment context." ( 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 [1973] ).

Although not mandatory for law enforcement to inform a suspect of his right to refuse consent, failure of law enforcement to do so may also be a factor considered along with age to determine voluntariness of the consent. See People v. Gonzalez , 39 N.Y.2d 122, 130, 383 N.Y.S.2d 215, 347 N.E.2d 575 (Ct. of Appeals, 1976) (citing People v. Kuhn , 33 N.Y.2d 203, 209, 351 N.Y.S.2d 649, 306 N.E.2d 777 (1973) ). In Gonzalez , The New York Court of Appeals reversed conviction of two less than 20-year-old defendants: who were separated from their grandparents, and each other, with little previous contact in the criminal context, were handcuffed in custody and signed written consent forms to search apartment given by law enforcement. In its holding which factored in the age of the suspects, it was ruled consent was not voluntary and evidence recovered as a result thereof suppressed. People v. Gonzalez , 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575. "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle. " Id. at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575. In citing Gonzalez , where Four police officers stopped a 14-year-old girl and asked to search her purse and although she gave over her purse but did not explicitly assert verbal consent, NYS Appellate Division, First Department held consent to search was involuntary and evidence recovered suppressed, also factoring in her age. In Re Daijah D. , 86 A.D.3d 521, 927 N.Y.S.2d 342 (2011).

Upon application of the totality of circumstances test pursuant to Schneckloth and Gonzalez , in accepting as creditable the factual allegations unopposed by People as presented by defense counsel, in the accusatory instrument and the arrest record, this Court finds that in considering all the following factors, of which age is an enumerated factor; no parent, legal guardian nor guardian ad litem present and involved; minor defendant's first arrest; and inexperience with law enforcement, result in an overall coercive nature of minor defendant's confinement and custody as an arrestee. Therefore, this Court rules that this 17-year-old's signed consent was not voluntary and therefore his buccal swab sample obtained by police was violative of this juvenile's Fourth Amendment Rights against unlawful search and seizure.

While Schneckloth and Gonzalez considered age as a factor in applying the voluntariness test for consent to search, the Supreme Court and state legislatures have increasingly applied age as The Factor in juvenile criminal jurisprudence in many facets, or rather have categorized age as the distinct deciding factor. The Supreme Court has ruled that children are to be treated differently than adults in the criminal justice context: "[a ] child's age differs from other personal characteristics that, even when known to police, have an objectively discernible relationship to a reasonable person's understanding of his freedom of action " in a case of custody of a 13-year-old juvenile ( J.D.B. v. North Carolina , 564 U.S. 261, 273, 131 S.Ct. 2394, 180 L.Ed.2d 310 [2011] ). Although Roper, Graham and Miller involved sentencing of juveniles as opposed to custody, ranging from life in prison to the ultimate death penalty, the central overarching theme is the same- children as a category are to be treated differently than that of adult offenders ( Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 [2005] ; Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 [2010] ; Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 [2012] ). The Supreme court in its analysis delved in depth into the psychosocial, psychological and cognitive brain development scientific research of children and the significant divergent distinctions in conduct and decision making with adults requiring that youth be considered a separate and apart category in the criminal context (see id. ).

Courts acknowledge the inherent value of juvenile consent to search and seizure for the law enforcement role in crime fighting. However, courts are vexed with the tension of balancing this crime fighting value against the voluntariness of consent by juveniles, who are deemed a distinct category of beings based upon cognitive brain development. The tension of balancing has caused courts to refrain from rendering bright line rules for determining the voluntariness of consent, and per se invalid rules for juveniles in other criminal law contexts. However, Roper unequivocally drew that bright line, as it overruled its earlier decision in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Court held that a 17-year-old juvenile was constitutionally barred by the Eight and Fourteenth Amendments from execution by a death sentence ( Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 [2005] ). In Roper, the Court decided that "[d ]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules however, a line must be drawn age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest" ( Id. at 574, 125 S.Ct. 1183 ). Unlike the Supreme Court, state courts have not been as consistent with categorizing juveniles as a distinct class of offenders or suspects.

In considering Supreme Court decisions and scientific juvenile jurisprudence research, state legislatures have acted to remedy the vexing tension between balancing the value of crime fighting against consent and conduct by juveniles below the age of eighteen (18). In 2017, New York State and North Carolina were the only states that continued mandating minors sixteen and seventeen years of age to be prosecuted in adult criminal courts, until later in the year when New York State enacted the Raise the Age legislation (hereinafter referred to as RTA) in 2017. Of note, the legislative history of the Bill states, without explicitly citing the case, the language in Roper as the Bill sponsors and proponents reasoned that the law was vital based upon present ineffective penological value and brain development of child offenders as opposed to adult offenders ( Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 [2005] ). See Sponsor's Mem in Support of 2017 NY Assembly Bill A04876. Since it has been merely a month earlier, October 1, 2018, that the first phase of RTA for 16-year-olds became effective, this Court finds the issue presented in the instant case timely: Whether a pre-arraignment signed consent for buccal saliva swab for DNA profiling by a juvenile defendant absent parent, legal guardian, guardian ad litem or attorney renders the signed consent not voluntary by virtue of the defendant's age and therefore unlawful as an unreasonable search and seizure in violation of the Fourth Amendment. This Court answers in the affirmative.

In the alternative, pursuant to the foregoing analysis of the Supreme Court, New York court decisions, and the newly-enacted RTA, this Court opines that in the instant matter this 17-year-old's signed consent to a buccal saliva swab was not voluntary by virtue of his age and therefore the buccal swab sample obtained by police was violative of this juvenile defendant's Fourth Amendment rights against unlawful search and seizure, pursuant to Roper's bright line age standard of below 18. Therefore, sample must be returned, and any downloaded information resultant thereto be destroyed and expunged.

This Court adopts reasoning in Roper as does RTA even though this instant case is as to voluntariness of juvenile's consent and obviously not for execution as to the death penalty of a juvenile. However, RTA in its spirit through legislative history makes clear that it likewise follows, is persuaded by and is influenced by Roper's standards in criminal juvenile jurisprudence. Even if People may argue that this 17-year old defendant herein is not within the current phase of RTA for 16-year-old classification of juvenile offenders now protected by RTA, is of no moment. This Court decides this instant case pursuant to precedential law of Roper , Graham, Miller and J.D.B. (see Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 [2005] ; Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 [2010] ; Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 [2012] ); J.D.B. v. North Carolina , 564 U.S. 261, 273, 131 S.Ct. 2394, 180 L.Ed.2d 310 [2011] ). Although search and seizure of juvenile is not expressly addressed in RTA legislative history, the spirit of the Bill's legislative history is instructive, compelling and persuasive to this Court's determination herein. See Sponsor's Mem in Support of 2017 NY Assembly Bill A04876. It is clear from the Purpose and General Idea of the Bill of the RTA Legislation, that the legislature implicitly prohibits law enforcement to allow this minor defendant as any similarly situated minor defendant to "consent" to providing his buccal saliva swab for DNA profiling in the absence and lack of involvement of a parent, legal guardian or court appointed guardian ad litem by virtue of age. More so, RTA explicitly mandates that upon arrest of these "children" "respondents" their parent, legal guardian or court appointed guardian ad litem must be present at and involved in any questioning of the child which also mandates that said questioning must be done in an "age-appropriate setting." RTA acknowledges that these adolescents are children, and "that the human brain is not fully formed until the age of 25." In addition, "as the cognitive skills of adolescents are developing, adolescents' behavior is often impulsive and lacks the ability to focus on the consequences of their behavior." The legislature along with New York Court System are reevaluating and modifying the new law's implementation to better accommodate the needs of minor defendants as in the instant matter herein.

This Court opines that consistent with the intended special protections to juvenile offenders in the criminal justice system through the newly implemented RTA, any and all requests for DNA fingerprinting or mapping of minors, shall be in the presence and with the involvement of parent, legal guardian, guardian ad litem or attorney. Although New York is not one of them as yet , some states have now explicitly moved towards regulating treatment of minors in criminal proceedings and requiring parental presence for voluntary consent to search of a minor in some circumstances. Although not explicit, this court does find that New York State implicitly has moved in the opposite direction through RTA and does require parental presence and involvement for lawful voluntary consent to search minor. The Court has also previously recognized that "parental notice and consent are qualifications that typically may be imposed...on a minor's right to make important decisions" ( Bellotti v. Baird , 443 U.S. 622, 640, 99 S.Ct. 3035, 61 L.Ed.2d 797 [1979] ).

The very important public policy societal reasoning behind RTA is the acknowledgement that our children may be but 30% of our population but are indeed 100% of our future. We as a society need to do more to treat juveniles at risk for societal banishment towards better penological outcomes through treating juveniles as children and giving them a better chance for rehabilitation for all of our sakes. Adults, let alone terrified minors, are barely able to comprehend the grave consequences of surrendering their DNA to law enforcement. This Court strongly emphasizes therefore, where request for DNA buccal saliva swab sample from a minor defendant for valid voluntariness of consent to be upheld, it must be in the presence and with the involvement of parent, guardian, guardian ad litem or attorney in an age appropriate setting. A minor in police custody by herself is much more susceptible to police coercion. The court's instruction to law enforcement must be unequivocal for judicial efficiency. However, it is imperative that this Court makes clear that it is not making a broad sweeping all-encompassing rule as to all consents by juveniles. The uniqueness of DNA evidence requires a more precisely articulated standard of consent than that of other consents for search and seizures in this Court's opinion. Unlike other tangible recoverable evidence there are no exigent circumstances; DNA is ever-present in perpetuity even in death.

It is acknowledged that nationally there is much ambiguity and inconsistency in the role age plays when consenting to search and seizure, particularly in the circumstance of a DNA swab by request of individuals by law enforcement. Although it has now become a common practice for law enforcement to request DNA swabs routinely and upon a mere stop, there is little law surrounding consensual DNA collection in general and even more so as to juveniles in particular. Consequently, there is growing concern over law enforcement's reliance on consent to circumvent the need for a warrant in the search and seizure of even adult's DNA swab. More so troubling is that a minority child may be improperly riding her bicycle on the sidewalk in a high crime area and asked upon a mere stop on the street by law enforcement and swabbed with a mere police ask and a child's consent given not knowing that she is not obligated to comply and can say no without any lawful adverse consequences, and without understanding the gravity and life-long implications thereof. This Court is very hopeful that legislators will fill in the gaps through RTA to settle this issue of consent by minor juvenile respondents or defendants, generally, but more specifically as to consent for DNA biological samples from children in the New York State Criminal Justice System.

PROTECTIVE ORDER

This Honorable Court rules request for Protective Order Moot.

Arguendo, this Court will analyze defense's request for 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 alleged local suspect database. OCME statutorily is a NYS LDIS to process, test, analyze, maintain and store recovered crime scene evidence in a Forensic Index. There is no law that expressly authorizes OCME to store, maintain or be a repository for DNA profiles of suspects, arrestees, exonerated nor acquitted former suspects. Neither is there law to expressly prohibit same, unlike defense argument that by omission to authorize creates prohibition. As such, defense argued that in the alternative, if this court grants the taking of minor defendant's buccal saliva swab as lawful, then it must prohibit the use of his DNA profile for comparison and matching solely against recovered crime scene DNA evidence in the instant case and not in any other case or investigations not relevant thereto (Defendant's OSC at Page 8).

In Maryland v. King , 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), the Supreme Court held that a defendant had no Fourth Amendment privacy interest in a buccal swab sample once it was taken ( id. ). 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 explicitly 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 one of eight NYS 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, 41 N.Y.S.3d 875 [Sup. Ct., Bronx County 2016]citing People v. John , 27 N.Y.3d 294, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [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 247, 21 N.Y.S.3d 535 [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. K.M. , 54 Misc.3d 825, 41 N.Y.S.3d 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, a defendant's DNA profile results by LDIS OCME as a non-convicted suspect cannot be uploaded to either NY SDIS or CODIS. Rather, OCME may upload recovered crime scene forensic DNA evidence to NYS SDIS and CODIS for comparison to match to repository of Convicted Offenders Indexes. 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, 41 N.Y.S.3d 875 [Sup. Ct., Bronx County 2016] ; see also People v. Blank , 61 Misc.3d 542, 82 N.Y.S.3d 872 [2018] ; see also People v. Murray , 2016 NYLJ LEXIS 4267; see also People v. Halle , 57 Misc. 3d 335, 55 N.Y.S.3d 634 [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 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. , 56 N.Y.2d at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 ). 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, 55 N.Y.S.3d 634 [Sup. Ct., Kings County 2017] ).

LDIS OCME does not and is not authorized to automatically feed into the New York state's database, except for crime scene Forensic Evidence only, and no other agency has access to OCME's local database (see People v. Debraux, 50 Misc. 3d 247, 262, 21 N.Y.S.3d 535 [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 345, 55 N.Y.S.3d 634 ) 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.

Arguendo, if this court had ruled minor defendant's buccal swab saliva sample lawfully obtained for DNA profiling, then this court would have granted protective order. However, being as this court has ruled buccal swab saliva sample as not lawfully obtained, request for protective order deemed moot.

This constitutes the opinion, decision and order of This Honorable Court.