DECISION & ORDER Attorney for the Child (“AFC”) moves for an order specifically ensuring that the Office of the Chief Medical Examiner (“OCME”) expunge the respondent’s DNA profile collected from a water bottle from the OCME’s DNA database, or in the alternative, granting a protective order prohibiting any further use of the DNA profile for any other purpose by the OCME or any other law enforcement agency. In opposition, the Presentment Agency contends that this court does not have the jurisdiction to grant respondent’s motion and further that respondent’s request for expungement should not apply to the DNA mixture collected from the complainant during the investigation. Based upon the foregoing, AFC’s motion to expunge respondent’s DNA profile is granted. Procedural History The underlying facts are undisputed. On April 26, 2019, respondent, who was 15 years old, was arrested and charged with Criminal Sexual Act in the First Degree (PL §130.50[3]) and other related crimes. At the time of his arrest, respondent was offered a water bottle. While he was still handcuffed at the precinct, respondent put the water bottle down and fell asleep. The water bottle was then taken by police, vouchered and given to OCME. On May 20, 2019, a petition alleging acts of juvenile delinquency was filed against respondent, charging him with Attempted Criminal Sexual Act in the Frist Degree (PL §110/130.50[3]), Attempted Criminal Sexual Act in the First Degree (PL §110/130.50[1]), two counts of Sexual Abuse in the First Degree (PL §130.65[1]), two counts of Sexual Abuse in the First Degree (PL §130.65[3]), Unlawful Imprisonment (PL §135.05), and two counts of Sexual Abuse in the Third Degree (PL §130.55). Respondent was arraigned and assigned counsel. The Presentment Agency filed an Order to Show Cause to compel a buccal swab from respondent based upon the DNA mixture that was developed from complainant’s swabs, which were taken as part of the sexual offense evidence collection kit. The order to show case was adjourned to June 27, 2019 and then July 25, 2019 due to the parties’ desire for further conferencing. The Presentment Agency learned that the water bottle had been taken from respondent as described above and sent to OCME for testing. However, OCME did not test the sample collected from the water bottle. On July 25, 2019, respondent made an admission to Sexual Abuse in the First Degree (PL 130.65[3]). On October 4, 2019, the AFC filed the instant motion and on October 15, 2019, respondent was adjudicated a juvenile delinquent and placed on Level 1 Probation for 12 months with a mandate to complete problematic sexual behavior treatment. This disposition was on the consent of all parties. Further, a 12-month order of protection was issued on behalf of the complainant. The Presentment Agency filed opposition to the present motion on November 20, 2019 and the AFC submitted reply papers on December 3, 2019. The Executive Law applies to OCME’s DNA laboratory and Databank The Presentment Agency contends that the Family Court does not have the jurisdiction to order expungement of DNA evidence in possession of the OCME. Specifically, the Presentment Agency makes two arguments. First, that the OCME is a department within New York City government not affiliated with any law enforcement agency, and as such is not properly within the scope of the Family Court’s jurisdiction. In support of its argument, the Presentment Agency relies upon Matter of Dewayne W., Bronx County Family Court Docket D-04191/19 (Passidomo, P.) (April 5, 2019) and In the Matter of Darius O., Kings County Family Court Docket D-27334/18 (White, A.) (February 13, 2019). The First Department recently ruled that state Executive Law §995-c(9)(b) applied to the testing, analyzing and retaining of DNA data by the OCME and that the trial court in that matter had authority and discretion under this Executive Law to expunge DNA profiles and related records after a youthful offender disposition (In re Samy F. v. Hon. Ralph Fabrizio JSC and Darcel D. Clark, 176 AD3d 44 [August 27, 2019]). The First Department was clear that OCME’s forensic DNA laboratory operates in accordance with guidelines and accreditation credentialing required under the Executive Law (see id at 51). Further, the First Department stated, “OCME’s operations fall firmly within the Executive law umbrella and ‘must yield to that of the State in regulating that field’ [citing People v. Diack, 24 NY3d 674, 677 (2015)]” (id at 51-52). Accordingly, the OCME is within this court’s jurisdiction as it relates to an adjudicated juvenile delinquent’s motion to expunge his or her DNA sample. The Family Court has discretion under the Executive Law to Expunge a Juvenile Delinquent’s DNA Records The Presentment Agency also argues that the Family Court is a court of limited jurisdiction and that the legislature did not explicitly give the Family Court the power to have DNA evidence destroyed or sealed and that further, the Family Court’s ability to issue protective orders is limited and does not allow for the issuance of the protective order respondent seeks. Though the Presentment Agency is correct that the Family Court Act is silent on whether DNA evidence may be destroyed or sealed, this fact alone does not preclude this court from using its discretion to grant AFC’s motion for expungement. The First Department directly addressed the issue of whether the absence of such language in the youthful offender statute precluded the Supreme Court from having jurisdiction over questions of DNA expungement (see In re Samy F. v. Hon. Ralph Fabrizio JSC and Darcel D. Clark, 176 AD3d 44 at 55 [2019]). Though In re Samy F., dealt with a youthful offender (herein “YO”), this fact does not make the case wholly distinguishable from the present case. Like a youthful offender, a child adjudicated a juvenile delinquent is not a “designated offender” under Executive Law §995-c(3)(a), nor can a juvenile delinquency proceeding result in a conviction. The First Department examined this issue and found that, “[a] YO disposition by its very nature is a judgment of conviction that is vacated and then replaced by a YO determination. This conclusion is supported by the mechanics of the YO statute, its statutory goals, and legislative intent.” The threshold question in all juvenile delinquency proceedings is, not whether a respondent committed a particular act but, whether such an act would be a crime if committed by an adult (see In re Gault, 387 US 1, 87 SCt 1428 [1966]; In re P., 92 Misc 2d 62, 66, 400 NYS2d 455, 458 [Fam Ct 1977], rev’d sub nom. In re Dora P., 68 AD2d 719, 418 NYS2d 597 [1979]). The overriding intent of the juvenile delinquency article is to empower the Family Court to intervene and positively impact the lives of troubled young people while protecting the public (see In re Robert J., 2 NY3d 339, 346, 811 NE2d 25, 29 [2004]). Article 3 of the Family Court Act is based on an “altruistic theory” (Lavette M. v. Corp. Counsel of City of NY, 35 NY2d 136, 142 [1974]) that rests on various “deterministic assumptions” (McKeiver v. Pennsylvania, 403 US 528, 551 1976 [1971]) one of which is that “the juvenile respondent…generally lacks the mental and emotional maturity of an adult” (People ex rel. Wayburn v. Schupf, 47 AD2d 79, 83, 365 NYS2d 235 [1975]). The finding of delinquency “requires a basis of a finding of a condition showing needs for attention of the Court” (In Re Ronny, 40 Misc2d, 194, 197 [1963] [emphasis in original]). Once this “condition” has been found to exist then probation officers, social workers, and a whole range of resources are available to assist the juvenile court judge in diagnosing the child’s treatment needs and in providing the treatment (see Besharov, Practice Commentaries, McKinney’s Cons.Law of N.Y., Book 291, Family Court Article 7, Pt. 1, at 10). This “rehabilitative process [is]…, a key feature of the juvenile system” and “…the central goal of any juvenile proceeding” (In Re Benjamin L., 92 NY2d 660, 670, 685 NYS2d 400 [1999]). “[U]nlike criminal prosecutions, punishment is not a purpose of [juvenile] proceedings” (Matter of Randy K., 77 NY2d 398, 409, 568 NYS2d 562, 570 [1991]; see also People v. Nancy C., 188 Misc 2d 383, 386, 727 NYS2d 867, 870 [2001]). A juvenile delinquent is not and should not be afforded fewer adjudication protections than a YO or an adult in the equivalent circumstances (see In re Samy F. at 55). Furthermore, Executive Law §995-c(9)(b) uses the word “may,” which imparts discretion on the part of the court. In the present case, upon consideration of the totality of circumstances surrounding the underlying juvenile delinquency action, including the manner in which the DNA sample was obtained, the age of the respondent and the charges brought by the Presentment Agency, this court exercises its discretion and grants AFC’s motion as to the expungement of the DNA sample collected from the water bottle (see In re Samy F. at 56). Expungement as to the DNA Mixture collected from Complainant is not Properly Raised Respondent does not seek expungement of the DNA mixture collected from complainant’s perianal swab, nor does the AFC move for such relief in the moving papers. Nonetheless, the petitioner strongly argues that if a protective order or an order for expungement is granted, it can only apply to the DNA gathered from the water bottle, not to any DNA collected from complainant. As the AFC has not moved for this relief, the Presentment Agency’s argument as to the DNA mixture will be disregarded. Respondent’s Motion for a Protective Order is Denied as Moot In the alternative, respondent moves for a protective order that would prohibit any DNA comparisons between the DNA sample obtained from the water bottle and any other DNA sample from any case other than the instant matter. In opposition, the Presentment Agency contends that the legislature has not bestowed the Family Court with the authority to issue protective orders that would limit or instruct an agency, in this case OCME, on any genetic material in its possession. As the court granted AFC’s motion for expungement, the motion in the alternative for a protective order is denied as moot. As OCME has not developed a DNA profile for respondent, the issues of when a DNA profile can be uploaded into OCME’s database and whether this action by OCME would be illegal, are not implicated and will not be opined on (see also In re Samy F. at fn 1). Respondent’s Contention that the DNA was Illegally Obtained Lastly, this court will not consider respondent’s contention that his DNA was obtained illegally and without consent. This argument was improperly raised for the first time in reply papers (see State Farm Fire & Cas. Co. v. LiMauro, 103 AD2d 514, 521-522, 481 NYS2d 90, aff’d 65 NY2d 369 [1984]; People v. Ford, 69 NY2d 775, 777, 505 NE2d 615, 617 [1987]). Conclusion On May 23, 2019, a bill was introduced that would directly address the issues raised in the present motion. The bill seeks to amend Executive Law §995-c(9)(b)(ii) and (iii) to state, (b) As prescribed in this paragraph, if an individual has provided, or law enforcement has obtained, a sample for DNA testing in connection with the investigation or prosecution of a crime and (i) no criminal action against the individual relating to such crime was commenced within the period specified by section 30.10 of the criminal procedure law, or (ii) in the case of a juvenile delinquency arrest, no proceeding under article three of the family court act was commenced within the period specified by section 302.2 of the family court act; or (iii) a criminal action or a proceeding under article three of the family court act was commenced against the individual relating to such crime which resulted in a complete acquittal, dismissal, or adjudication or conviction of a non-criminal offense, or (iv) a criminal action against the individual relating to such crime resulted in a conviction that was subsequently reversed or vacated, or for which the individual was granted a pardon pursuant to article two-A of this chapter, such individual may apply to the supreme court, the court that had jurisdiction over the matter or the court in which the judgment of conviction was originally entered for an order directing the expungement of any DNA record and any samples, analyses, or other documents relating to the DNA testing of such individual in connection with the investigation or prosecution of such crime. A copy of such application shall be served on the district attorney or presentment agency and an order directing expungement shall be granted if the court finds that the individual has satisfied the conditions of one of the subparagraphs of this paragraph; (Proposed 2019 NY Assembly Bill A07818)(emphasis added). Though this legislation has yet to be passed, the issues raised in the present case as to the Family Court’s discretion to expunge DNA samples of juvenile delinquents will likely soon be legislatively mandated. Respondent’s motion prohibiting any DNA comparisons between the DNA found on the water bottle, attributed to him, and any other DNA sample, by expunging the DNA profile obtained from the water bottle from the OCME’s local database is granted. Accordingly, respondent’s motion, in the alternative, for a protective order is denied as moot. This constitutes the decision and order of the Court. Dated: December 17, 2019
