Appellate Division First Department Cases decided on: August 27, 2019
By Friedman, J.P., Gische, Kapnick, Gesmer, Moulton, JJ. In re: Samy F., pet, v. Hon. Ralph Fabrizio, JSC, Bronx County, res. Darcel D. Clark, Nonparty, res. — Petitioner seeks a writ of mandamus pursuant to CPLR article 78. Janet E. Sabel, The Legal Aid Society, New York (Terri S. Rosenblatt of counsel), for petitioner. Letitia James, Attorney General, New York (Carly Weinreb of counsel), for Hon. Ralph Fabrizio, respondent. Darcel D. Clark, District Attorney, Bronx (James J. Wen and Nancy D. Killian of counsel), for Darcel D. Clark, respondent. GISCHE, J. Databanks containing DNA profiles of convicted defendants have proven to be useful and valuable tools in criminal law enforcement. They allow a DNA profile to be used by law enforcement in identifying qualifying DNA matches to unknown forensic material recovered in connection with ongoing and future criminal investigations (Executive Law §§995-c[3][a];[6][a]; see also 9 NYCRR Part 6192; see e.g. Kellogg v. Travis, 100 NY2d 407, 410 [2003]). Since 1996, New York has maintained a state DNA index system (SDIS) for the mutual exchange, use and storage of DNA records. The storage and use of such records is subject to the provisions and requirements of Article 49-B of the Executive Law (§995 et seq.). This petition raises two issues of first impression for this Court. The first is whether the local DNA databank maintained by the Office of the Chief Medical Examiner (OCME), is subject to the State Executive Law. The second is, when DNA is collected during the investigatory phase of a particular crime that ultimately results in a youthful offender (YO) determination, whether the court has the authority to expunge the YO’s DNA profile from a local DNA databank, like OCME’s, along with the underlying DNA records. We conclude that both questions should be answered in the affirmative. The underlying facts are not in dispute. On October 18, 2015, petitioner, then age 16, was arrested on a weapons charge following a shooting. A gun was recovered from a vehicle in which he was a passenger. Petitioner was taken into custody and administered Miranda warnings. He was then asked to voluntarily provide a DNA sample. Petitioner agreed by signing a consent form, and a buccal swab was obtained from him. He was subsequently indicted on a charge of criminal possession of a weapon in the second degree (Penal Law §265.03). Although in a pretrial suppression motion petitioner contested the voluntariness of his consent to providing DNA, he ultimately agreed to a YO disposition (CPL 720.10 et seq.). Because the YO disposition was agreed to before the court made any decision on the pending suppression motion, petitioner forfeited any right to contest the voluntariness of his consent to providing a DNA sample for use in that particular prosecution (People v. Hecker, 105 AD3d 606 [1st Dept 2013] lv denied 21 NY3d 1016 [2013]). At some point petitioner’s DNA profile was uploaded to OCME’s databank.1 Following the conclusion of his criminal case, petitioner filed a motion in Supreme Court to have his DNA and DNA-related records expunged from OCME’s databank. In denying the motion, the Supreme Court held that, as a matter of law, it had no authority to grant the relief requested on three separate bases. The Supreme Court held that Executive Law §995-c(9)(b), which pertains to expungement of DNA profiles, did not apply to OCME which was a local DNA index. The court also determined that nothing in the YO statute expressly provided for expungement of lawfully collected DNA from a youthful offender (CPL 720.35). Finally, the Supreme Court held that although Executive Law §§995-c(9)(a), (b), provides for expungement of DNA records in the case of an acquittal, reversal or vacatur of a conviction, a YO adjudication did not qualify under any of those criteria. Petitioner contends that the Supreme Court has discretion to expunge a YO’s DNA records and seeks a writ of mandamus, directing that respondent (a Supreme Court Justice) exercise his discretion to decide whether respondent’s DNA profile and records should be expunged under the facts and circumstances of the underlying criminal proceeding. The CPLR Article 78 Petition is Properly Brought Respondent urges dismissal of this petition based on two procedural threshold issues, which we reject. We do not agree that the District Attorney is a necessary party under either CPLR 7804(i) or CPLR 1001(a). Nor is the DA required under a permissive joinder analysis. There is no relief that the DA can provide, and the DA will not be equitably affected by any disposition of this petition (see e.g. City of New York v. Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475 [1979]). Additionally, not only was the DA served with the petition, it filed opposition, which was considered by this Court (Matter of Lovell v. Goodman, 305 AD2d 314, 315 [1st Dept 2003]). Consequently the failure to name the DA as a party is not fatal to this petition. Respondent also argues that petitioner has an adequate remedy at law, namely a direct appeal from the denial of his underlying expungement motion. No appeal lies from a determination made in a criminal proceeding, however, unless specifically provided for by statute (People v. Lovett, 25 NY3d 1088, 1090 [2015]). The limited grounds for appeal set forth in section 450.15 of the Criminal Procedure Law do not apply to the Supreme Court disposition of the expungement motion. Although respondent now argues this is a directly appealable civil matter, neither party, nor the DA, treated the underlying motion as one for civil relief, with a right of direct appeal. In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds (Matter of Clark v. Newbauer, 148 AD3d 260, 265-266 [1st Dept 2017]).2 Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b]; see Matter of Baba v. Evans, 213 AD2d 248 [1st Dept 1995], cert denied 520 US 1254 [1997]). The Executive Law applies to OCME’s DNA Laboratory and Databank There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data are subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. Since 1996, New York has maintained a “state DNA identification index” to store the DNA profiles of “designated offenders” as expressly defined in the statute (Executive Law §§995[6], 995-c). Designated offenders are required to provide post conviction DNA samples, regardless of whether DNA was required as part of the investigation of the underlying crime for which they were convicted (Executive Law §995-c[3]). The collected DNA samples are then tested and analyzed by authorized forensic DNA laboratories, which create profiles that are indexed and eventually uploaded to the state databank (Executive Law §995-c[5]). Article 49-B broadly defines a “forensic [DNA] laboratory as “any laboratory operated by the state or unit of local government that performs forensic [DNA] testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding or for purposes of identification” (Executive Law §995[1][emphasis added]). The Commission on Forensic Science (CFS), a body created under the Executive Law, sets the minimum standards and a process by which “all” public forensic laboratories within the state are accredited (Executive Law §§995-a, 995-b). The Executive Law also ensures that all forensic DNA laboratories comply with any applicable privacy laws, and adhere to restrictions on the disclosure or re-disclosure of DNA records, findings, reports and results (Executive Law §995-d[1]). Pursuant to Executive Law §995-d, DNA testing records, findings, and reports “shall be,” with certain exceptions, one being for use in law enforcement (Executive Law §§995-d[2]; 995-c[6]). OCME, established in 1918, self-identifies as having the largest public DNA crime laboratory in the world (NYC Office of Chief Medical Examiner, About OCME, https://www1.nyc.gov/site/ocme/about/about-ocme.page [last accessed May 10, 2019]). It is an independent subdivision of the New York City Department of Health and Mental Hygiene. Pursuant to section 557(f)(3) of the New York City Charter, OCME may “to the extent permitted by law, provide forensic and related testing and analysis… in furtherance of investigations… not limited to…(DNA) testing.”
