New York City's local DNA index that stores data on individuals accused of a crime is subject to state law that prescribes its ability to test, analyze and retain that information, a state appellate court in Manhattan decided this week.

The ruling will allow a man charged with illegally possessing a gun as a teenager to ask that his DNA be expunged from the local database, despite no specific state law governing such a request, the decision said.

It's the first time the Appellate Division, First Department considered the issue of whether state law applies to the local DNA databank, which is largely unregulated under statute. It was also the first time the panel addressed whether a trial court judge has the discretion to expunge a youthful offender's DNA profile from such a database.

The issue in the case was whether the defendant, identified as Samy F., could ask a trial court judge to have his DNA erased from the city's databank, which is operated by the Office of the Chief Medical Examiner.

The request isn't unusual; individuals acquitted on criminal charges can move to have their DNA removed from the city's databank.

The defendant had asked State Supreme Court Justice Ralph Fabrizio of the Bronx to have his DNA expunged from the OCME databank. But Fabrizio said he didn't have the legislative authority to grant such a request.

That's partly because the defendant's case was unlike others that seek to have their DNA expunged from such a database.

He was adjudicated as a youthful offender, rather than being tried as an adult. Youthful offenders in New York have their cases disposed without a conviction, and the decision is automatically sealed. The advantage to the classification is that youthful offenders don't have a criminal record; it's a different category to help younger individuals avoid that burden.

The defendant had consented to have his DNA taken as part of the criminal investigation that ultimately led to the charges against him. He had later moved to have that evidence suppressed in court, contesting whether he had agreed to the collection voluntarily or not.

But before the court decided on that motion, the defendant agreed to a youthful offender disposition. That essentially resolved the charges against him, but his DNA was still uploaded to the city's database at some point.

The defendant then filed to have his DNA and DNA-related records expunged from OCME's databank. Fabrizio said in his decision rejecting the defendant's request that state law didn't expressly govern the retention practices of the OCME databank, nor did it expressly provide for him to consider the expungement of DNA data lawfully collected from a youthful offender.

Associate Justice Judith Gische wrote in the decision from the Appellate Division, First Department that Fabrizio had the statutory authority to review the defendant's request.

“Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated,” Gische wrote. “A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances.”

Gische also wrote that, contrary to Fabrizio's decision, state law applied to the OCME database, despite it being a local DNA databank. That issue was in conflict because state law has left local DNA databases, like that kept by OCME, largely unregulated.

The defendant was represented by Terri Rosenblatt, the supervising attorney of the DNA unit at the Legal Aid Society, and Lenny Sandlar, an associate at Petrillo Klein & Boxer in Manhattan. The firm handled the case pro bono.

“The firm was pleased to take this case pro bono in partnership with the Legal Aid Society,” Sandlar said. “We welcome the Appellate Division ruling in our favor and look forward to continuing our pro bono work on behalf of indigent litigants.”

Rosenblatt urged state lawmakers in Albany to consider legislation that would set stricter regulations for local DNA databanks.

“The court's decision, which by nature could only resolve one nature's cases, still leaves unresolved important questions about OCME's unregulated, rogue DNA index,” Rosenblatt said. “The decision, while a success for our client, emphasizes the need for city and state lawmakers to make clear that the city cannot maintain its unregulated shadow database.”

Democrats have introduced a bill in recent weeks that would affirm a single, statewide DNA index and require that local databanks expunge their records. The bill hasn't moved from committee, but that's not unusual for new legislation.

If lawmakers seek to act on the measure, they'll have to do it quickly. They have the next three weeks to tie up any loose ends before they're scheduled to leave Albany for the year.

The state Attorney General's Office, which represented the trial court judge in the matter, declined to comment on the decision.

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