People v. Belliard

DECISION AND ORDER   The defendant is charged with felony sexual abuse and endangering the welfare of a child. The People successfully moved to compel a buccal swab from the defendant, pursuant to CPL §245.40, for the purpose of developing his DNA profile. In his response, the defendant moved for a protective order pursuant to CPL §245.70, limiting the comparison of his DNA profile to evidence collected in the investigation of the instant matter. Pursuant to CPL §245.70(3), a hearing was held on the defendant’s motion. For the reasons below, the defendant’s motion is denied. Factual Background. It is alleged that on or about August 2, 2020, the 51-year-old defendant, while working as a porter in the building where a seven-year-old girl lived with her mother and infant brother, touched the girl’s vagina underneath her clothing. Male DNA, suitable for comparison, was found in the child’s underwear and vaginal area, which provided a clear indication that relevant evidence would be found by a buccal swab of the defendant (See CPL §245.70, Matter of Abe A., 56 NY2d 288, 291 [1982]). At about 7 p.m. on a Sunday evening, the children’s mother was in the basement laundry room of her building to do her family wash, accompanied by the victim and her baby brother. It is alleged that while she was there the defendant offered to babysit the children in the building superintendent’s office until the laundry was done. The porter was known to the family and the mother permitted it. As soon as the laundry was finished and they were back in their apartment, the child told her mother that the defendant had improperly touched her. The mother called the police and within an hour of the alleged incident, the defendant was placed under arrest. He was indicted on August 14, 2020 and arraigned in Supreme Court on September 11, 2020, at which time he pleaded, “not guilty.” A motion schedule was set. The instant motion. The defendant puts forth two arguments in support of his application for a protective order. The first argument is that he should not have to request a protective order to resolve this issue — instead, he insists that the legal onus is on the prosecution to request permission to compare the evidence compelled in this case against evidence of other uncharged crimes. The defendant has cited no authority for this notion. Instead, he infers the shifted burden from the legislature’s recent incorporation into CPL §245.40 of the New York Court of Appeals’ requirements from the case of Abe A. That case requires that before any buccal swab can be ordered there must be probable cause to believe the defendant committed the crime charged and a clear indication that evidence relevant to that crime will be found.¹ But the legislature’s approval by adoption of the Court of Appeals’ Abe A. standard only establishes a threshold for the determination of the motion to compel the taking of the sample. The text of CPL §245.40 contains no language limiting the prosecution’s use of the evidence, once that threshold is met. The Court finds no support for the defendant’s interpretation. By parity of reasoning, while law enforcement may need a search warrant to recover a firearm from a defendant’s home, no further authorization is necessary to compare ballistic evidence from that firearm with ballistic evidence from unsolved crimes. Similarly, before a defendant can be compelled to provide fingerprints there must be probable cause to arrest him for a specific crime, or a court order pursuant to CPL §245.40. Yet no application to a court is required before those fingerprints may be compared with records from the Division of Criminal Justice Services, or with prints obtained in unsolved crimes. These examples are consistent with the Appellate Division’s holdings that, once evidence has been lawfully obtained, privacy and Fourth Amendment concerns no longer apply (People v. DeProspero, 91 AD3d 39, 47 [2011], affd 20 NY3d 527 [2013]; People v. Sterling, 57 AD3d 1110, 1111-12 [2008], lv denied 12 NY3d 788 [2009]; People v. King, 232 AD2d 111, 117-18 [1997], lv denied 91 NY2d 875 [1997]). In DeProspero, the defendant’s computer and other electronics were seized pursuant to a search warrant in a child pornography investigation. The defendant pleaded guilty and was sentenced. Two months after that case had ended, law enforcement searched the computer and electronics more thoroughly and uncovered hundreds of additional images and videos of child pornography, which led to a new case and new charges. The Appellate Division, Fourth Department, rejected the defendant’s contention that a further warrant was necessary and upheld the search of the defendant’s property because once the police lawfully gained control over the property, the defendant lost any legitimate expectation of privacy in the computer’s contents (DeProspero, 91 AD3d at 47, citing People v. Natal, 75 NY2d 379 [1990]). Similarly, in Sterling, the Appellate Division, Third Department, found that an incarcerated defendant’s discarded milk carton was properly seized as abandoned property, in which he had no reasonable expectation of privacy. That Court further reasoned that since the milk carton had been lawfully seized, law enforcement could subject it to testing, including recovering the defendant’s DNA from the carton, without seeking permission from the trial court. That decision was in part based upon an earlier holding by the Second Department in King. In that case, the Court found that a blood sample taken from a defendant for DNA comparison in the investigation of one rape could be used as evidence against him in the prosecution of a different rape, notwithstanding that there would have been insufficient probable cause to order such a blood sample in the second rape. The King Court held that “[a]lthough human blood, with its unique genetic properties, may initially be qualitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests” (232 AD2d at 118). The fact that there is no constitutional violation in situations such as these is well-settled (See Maryland v. King, 569 US 435 [2013] [holding further testing of lawfully taken DNA does not implicate Fourth Amendment]). The defendant’s argument is also refuted by the relevant statutes. The defendant argues that the People must make an application for permission to upload his DNA profile to an index, but CPL §245.40, which prescribes a motion to compel, contains no mechanism for the prosecution to make such a motion. Nor does any other section within Article 245. CPL §245.70, however, is titled “Protective Orders,” and explicitly authorizes orders restricting, conditioning, or deferring discovery. The title of this section and its language imply that the purpose of such orders is to provide relief to parties, such as this defendant, whom Article 245 have compelled to disclose something. This Court, therefore, holds that the determination of whether to limit subsequent use of a defendant’s DNA profile relies upon a successful CPL §245.70 application by the defendant. Indexing the Defendant’s DNA Profile in OCME’s LDIS. The defendant’s second argument is that the local DNA index system (“LDIS”) maintained by the Office of the Chief Medical Examiner (“OCME”) is not authorized by Executive Law §§995 et seq., so therefore uploading his DNA profile to LDIS is unlawful. The defendant has supplemented this motion with oral argument and a letter, by which he has informed the Court that his objection is to the indexing of his DNA profile, rather than its storage, and has further elaborated on his argument that Executive Law §§995 et seq. pre-empts OCME’s authority to establish a local index system. The Executive Law applies to OCME’s DNA laboratory and LDIS. The Appellate Division, First Department, categorically held this in Matter of Samy F. v. Fabrizio, 176 AD3d 44 (2019). In Samy F., the defendant had voluntarily provided a DNA sample, from which a DNA profile was developed and uploaded to OCME’s LDIS. The defendant subsequently was offered and agreed to a Youthful Offender disposition, ending his criminal case. Later, that defendant moved to have his DNA profile and DNA-related records expunged from OCME’s databank. The Supreme Court had held that it had no authority to consider expungement because the Executive Law did not apply to OCME’s LDIS and the Youthful Offender statute did not provide for expungement of DNA profiles. The Appellate Division ruled that the Executive Law did apply to OCME’s LDIS, and directed the Supreme Court to consider the motion for expungement under Executive Law §995-c(9)(b). In so doing, the Appellate Division applied provisions of Executive Law §995-c, titled “State DNA identification index,” to OCME’s LDIS. It did not rule on the lawfulness of the LDIS or its protocol of indexing its stored DNA profiles. And it expressly did not address the “open legal issue” of when DNA information may be uploaded to particular DNA databases (See Samy F. 176 AD3d at 48, n 1). Its decision addressed only the issue of whether the Executive Law provisions applied to OCME’s data bank, and determined that it did. Although the defendant requests that OCME’s LDIS be declared unlawful, this Court declines to do so. The OCME and all other forensic laboratories in this state are regulated by commissions established by the legislative branch and under the purview of the executive branch of the New York State government (See https://www.criminaljustice.ny.gov/forensic/aboutofs.htm [last accessed December 16, 2020]). The defendant’s motion does not implicate any fundamental or constitutional issues that would permit this Court to intrude upon the separate powers of those branches. The Executive Law established a commission on forensic science, tasked with “promulgat[ing] a policy for the establishment and operation of [the] DNA identification index,” and empowered the commissioner of criminal justice services “to establish a computerized state DNA identification index.” Executive Law §§995-a, 995-b, 995-c. The commission on forensic science’s policy was codified in 9 NYCRR 6192, wherein the commission defines “LDIS.” 9 NYCRR 6192.1(r). Nothing in part 6192 authorizes local public DNA laboratories to “index” DNA profiles, although there are two references to LDIS being able to be “searched.” 9 NYCRR 6192.1(r), 6192.3(g)(1)(i). But, part 6192 contains no prohibition against such indexing either. In the 26 years since Executive Law §§995-a, 995-b, and 995-c were enacted, neither the commission on forensic science nor the commissioner of criminal justice services has exercised its authority to prohibit indexing within the LDIS. Applying the Executive Law, the Court finds no impediment to the inclusion of a voluntary or court-ordered DNA profile in OCME’s LDIS. Executive Law §995-c(3) states that “[a]ny designated offender…shall be required to provide a sample…and to be included in a state DNA identification index.” Other courts have interpreted this provision to mean that only designated offenders may be included in the state DNA index.² This interpretation denies the antecedent, ignoring the plain language of the statute (See Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653, 660 [2006] ["[C]ourts should construe unambiguous language to give effect to its plain meaning.”]). Suppose Executive Law §§995-c(1) & 995-c(2) called for a commission to create a refrigerator, and section 995-c(3) stated that all apples must be put into the refrigerator. This would not prevent the commission from also placing oranges in the refrigerator. The provision that compels designated offenders to provide DNA profiles for inclusion in the index does that and only that — it makes no claims about other DNA profiles, whether from defendants, victims, or crime scene evidence, that may be included in the index (See Chem. Specialties Mfrs. Ass’n v. Jorling, 85 NY2d 382, 394 [1995] ["[A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact.”]). This plain language interpretation is supported by the expungement provisions of Executive Law §995-c. Section 995-c is titled “State DNA identification index,” and its provision can therefore be taken to apply to that index. Section 995-c(9) provides the mechanism for expunging DNA records from the index. Section 995-c(9)(b) provides for the expungement of records of voluntary and court-order DNA profiles. The inclusion of this provision under the title “State DNA identification index” implies that such samples may find their way into the index. This interpretation is further supported by the policies of the Division of Criminal Justice Services. The Division explains that the index, in addition to including the DNA profiles of designated offenders, “also includes samples from offenders who provided them under certain circumstances outlined in state regulation” (https://www.criminaljustice.ny.gov/forensic/dnadatabank.htm [last accessed December 16, 2020]). The index “also contains forensic DNA profiles that are developed from the analysis of crime scene evidence” (id.). None of this would be permissible if section 995-c(3) restricted the index to only designated offenders. The Court therefore finds the defendant’s legal arguments unavailing. Although the existence of OCME’s LDIS as an element of New York’s computerized DNA identification index is not defined in the Executive Law, that law gives authority over such matters to the commission on forensic science and the commissioner of criminal justice services, not this Court. Similarly, that law compels designated offenders to provide DNA samples for inclusion in the data bank, but does not prevent the commission or its agents from including other DNA profiles. The defendant has not established a legal prohibition against indexing his DNA profile in OCME’s LDIS, nor has he demonstrated good cause for this Court to exercise its discretion to issue a protective order preventing such indexing. The motion is therefore denied. This constitutes the Decision and Order of the Court. Dated: December 26, 2020