The People have filed a motion dated August 2, 2022 pursuant to CPL §245.40(1)(e) seeking to compel the defendant to provide a buccal swab for DNA analysis. The motion came before the Court on August 4, 2022 for argument. During the motion argument, the defendant, through her attorney, requested the Court issue a protective order preventing the DNA profile developed from the buccal swab of the defendant from being uploaded into the Local DNA databank (LDIS). The People opposed the protective order and the matter was adjourned for both parties to submit written arguments. The defendant submitted her Attorney Affirmation in Opposition on August 9, 2022. The People submitted their Opposing Affidavit on August 10, 2022. With regards to the People’s motion compelling the taking of a buccal swab from the defendant for DNA testing, the People have met their burden under CPL 245.40(1) that (1) there is probable cause to believe the defendant has committed the crime, (2) a clear indication that relevant material will be found and (3) that the method used to secure such evidence is safe and reliable. The defendant was indicted by an Erie County Grand Jury, along with two co-defendants, on a single count of Criminal Possession of a Weapon in the 2nd degree pursuant to PL §265.03(3), a class “C” violent felony. The allegations are that on March 29, 2022, in Erie County, the defendants knowingly possessed a loaded and operable pistol not in their home or place of business. The defendants were stopped in the Town of Cheektowaga for two Vehicle and Traffic law violations, tinted windows and an obstructed rear license plate. This defendant was the rear passenger of the vehicle. After conducting an investigation and learning the driver’s license was suspended, the defendants were asked to exit as the vehicle was to be inventoried and towed. The front seat passenger fled from the vehicle upon the officer’s request they exit. The inventory search was subsequently conducted and a loaded Glock pistol was recovered under the front passenger seat sticking out towards the rear passenger seat. The defendant was indicted by a Grand Jury. This satisfies the first prong in that there is probable cause that the defendant committed this crime. In their motion, the People have attached two Erie County Central Police Services lab (CPS Lab) reports. Report two indicates DNA was detected on the submitted pistol; the DNA profile is a mixture of DNA from four individuals. This satisfies the second prong in that there is a clear indication relevant material will be found. Additionally, the relevant material may actually be exculpatory for the defendant. “Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986…law enforcement, the defense bar, and the courts have acknowledged DNA testing’s ‘unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has potential to significantly improve both the criminal justice system and police investigative practices.” Maryland v. King, 569 U.S.435. Finally, the taking of a DNA sample through a buccal swab has long been considered both safe and reliable, satisfying the third prong. See People v. Blank, 61 Misc 3d 542 referring to Matter of Abe A., 56 NY2d 288, ” (T)he method of swabbing the inside of the defendant’s mouth has been deemed to be safe and reliable.” Also, People v. White, 60 Misc 3d 304, “ There is no doubt that a routine cheek swab is a ‘safe and reliable’ method of obtaining the defendant’s DNA sample.” Therefore, the defendant is ORDERED to provide a buccal swab for DNA testing. The Court now turns its attention to the defendant’s request for a protective order. The issue concerns the entry of the DNA profile of the defendant which will be developed from the buccal swab into LDIS. The Court has ruled the People have met their burden and may lawfully obtain said sample. LDIS is part of the three-tier Combined DNA Index System (CODIS). The three tiers are LDIS on the local level, the State DNA Index System (SDIS) on the state level and finally the National DNA Index System (NDIS). This system was first established in 1994 when Congress passed the DNA Identification Act which authorized the FBI to establish a national DNA database. The actual database was launched in 1998 and linked all fifty states. The primary purpose in the creation of CODIS was to assist law enforcement in developing investigative leads. SDIS was created during this same time period. “In 1994, the Legislature established a statewide DNA databank along with a comprehensive set of standards and protocols for accrediting forensic laboratories throughout New York State. Enacted as Article 49-B of the Executive Law, the legislation starts with the creation of the New York State Commission on Forensic Science, a representative body whose mission is to promulgate rules for “any laboratory operated by the state or unit of local government” (Exec. Law §995-1) “that performs forensic testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding…” Exec. Law §995-2.” People v. K.M., 54 Misc 3d 825. The Forensic Science Commission is composed of laboratory directors, prosecutors, defense attorneys, state Department of Health officials and retired judges. The Commission is tasked with developing minimum standards and accreditation for New York State forensic laboratories. The Erie County CPS Lab has maintained a local DNA databank for over two decades, as LDIS was created in 2000. As an accredited forensic lab, the Erie County CPS Lab is under the oversight of multiple accrediting agencies. The FBI, the New York State Division of Criminal Justice Services Office of Forensic Services and American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB) are aware the CPS maintains suspect DNA profiles in LDIS. All three tiers of CODIS have varying rules and regulations both as to what samples are eligible for upload as well as to the access and use of those samples. SDIS, for example, contains convicted offender profiles, certain unknown profiles from crime scenes as well as missing persons and unidentified human remains. In addition to those categories, NDIS also contains arrestee profiles from states that permit the taking of DNA samples upon arrest. LDIS contains forensic DNA profiles derived from crime scene evidence, DNA profiles of individuals deemed to be a suspect by law enforcement (both voluntary and court ordered as well as abandoned), DNA profiles from missing persons, unidentified human remains, and family members of missing persons. There is also a specimen category that contains DNA profiles of CPS personnel who have provided a DNA sample as well as anonymized DNA profiles of Buffalo Police Department personnel who have provided a DNA sample, as well as vendors and visitors of the CPS DNA laboratory. While one of the primary purposed of CODIS and the various tiers of DNA databases is their use as investigative tools in criminal investigations, this is far from their only application. These DNA databanks are vitally important in the investigation of missing persons and unidentified human remains. Additionally, with regards to the criminal investigation aspect of the DNA databanks, not only do they serve to link suspects with unsolved crimes, but they play an equally important role in the exoneration of innocent individuals. The Erie County CPS Lab has strict controls and procedures governing the use of LDIS. All DNA profiles in LDIS are stored under a unique, anonymized specimen number. No personal identifying information relating to any profile, including a suspect’s profile, is maintained in LDIS. LDIS is accessible only to CPS personnel who have been pre-qualified by the FBI. To be an FBI-approved CODIS User with access to LDIS the employee must have submitted a fingerprint card to the FBI and undergone a background check by the FBI. In addition, those CODIS Users who are DNA analysts must also meet national educational standards. The FBI additionally requires annual training to maintain CODIS eligibility. In accordance with FBI requirements, the CODIS computer network, which includes LDIS, is maintained separately from the CPS’s City network and is only accessible at designated terminals within the CPS Lab. Access to the CODIS computer network is password protected. Access to CODIS is deactivated when one leaves the employ of the CPS including temporary extended leaves of absence beyond one year, such as a military activation or a maternity leave. No other City, State or Federal agencies have access to LDIS. These safeguards ensure the DNA profile is secure and protects the privacy interests of individuals whose samples are contained therein. Courts in this Judicial District have consistently denied requests for protective orders. This Court has previously denied such request in People v. Tanaja Whittaker (Indictment No.00032-2017) holding on March 17, 2017 “(A)fter an indicted case is submitted when it’s properly obtained, a protective order is not in issue.” Likewise, in People v. Ibban Akbar (Indictment # 01860-2016), Justice Buscaglia denied a protective order. That Court relied on People v. Mohammed, 48 Misc 3d 415 as well as Maryland v. King, 133 S.Ct.1 (2012) and ruled, “(T)he defendant’s request for a protective order is denied in all respects.” More recently, on February 5, 2021, in People v. Quantic Matthew (Indictment #2020-02072), Justice Burns held “Now, after reviewing the cases submitted by the People, the defense request is denied pursuant to the reasoning of the Court in People v. Belliard, NYS3d (WL 7636675, Dec. 22, 2020).” In April of 2022, Judge Maxwell-Barnes in People v. Darius Smith (File # 00227-2022) denied the defendant’s request for a protective order. The Court recognizes one local Court has granted defense requests for a protective order in part (DNA profile allowed to be stored if defendant’s DNA was found on evidence in that case). See People v. Keenen Turrentinne, (Indictment # 00813-2020) before Judge Eagan. The Court in Turrentinne differentiates between “mugshots, fingerprints and other indicia of arrests” and DNA stating that upon dismissal of the case those items are sealed whereas the defendant’s DNA would remain on file. The Court ruled it did not believe that would be appropriate. This is at odds with the other decisions in this County and there is a remedy already in the law for the removal of DNA profiles from LDIS as will be discussed later in this decision. The further use of a DNA sample, such as entering it in LDIS is clearly a permissible use of lawfully obtained evidence. The operative phrase being “lawfully obtained evidence.” In People v. DeProspero, 91 AD3d 39, the Court held, “Once a person or his [or her] effects have been reduced to custodial control in the law enforcement system his [or her] privacy has been intruded upon” (People v. Perel, 34 NY2d 462, 465 [1974]). The subsequent search of the property lawfully seized “is then but a lesser-related intrusion incident to the [seizure] already effected.” The concept of lawfully obtained evidence was contemplated in People v. King, 232 AD2d 111, “It is also clear that once a person’s blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant *118 once the sample has already lawfully been removed from the body, and the scientific analysis of a sample does not involve any further search and seizure of a defendant’s person. In this regard we note that the defendant could not plausibly assert any expectation of privacy with respect to the scientific analysis of a lawfully seized item of tangible property, such as a gun or a controlled substance. Although 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. In this regard it bears noting that the defendant’s sample was contemporaneously tested against all the stain evidence seized during both investigations in a single scientific procedure.” There is clearly an argument that an individual has a fundamentally greater privacy interest in their DNA as opposed to a physical object such as a firearm or narcotics. This, however, is contemplated in the method in which the various types evidence is obtained. A physical object such as the aforementioned firearm or narcotics can be obtained via search warrant. Law enforcement may obtain a search warrant ex parte and with no notice to the defendant. Fingerprints are obtained upon arrest whereas in New York, DNA is not. In order for the People to obtain a buccal swab, they must file a motion with a Court (or previously an order to show cause under the Matter of Abe A., 56 NY2d 288, whose standard has been codified under CPL §245.40(1)). The defendant is put on notice of the motion and is represented by counsel. Argument on the motion is then heard before a judge with an opportunity for both sides to be heard. The standard to obtain a DNA sample is exponentially higher than for these other types of evidence mentioned. While the privacy expectation is arguably greater, this is balanced by the method used to lawfully obtain a DNA sample. Once evidence is lawfully obtained, there is generally not artificial limitations on what law enforcement is allowed to do with said evidence. When a firearm is recovered, whether during a search of an individual or during the execution of a search warrant, rarely does that end the investigation. That firearm is routinely test-fired to determine whether it is operable. If operable, charges against an individual in illegal possession are vastly more severe than the possession of an inoperable firearm. Further, upon test firing, ballistic comparisons are routinely performed on the firearm, the bullet and the fired cartridge casings. Not only is this evidence compared on that case, but it is routinely uploaded into NIBIN, a national ballistic database. In additional to the ballistic comparisons, firearms and firearm components lawfully obtained are also routinely tested for either fingerprints or DNA. There are no court orders or search warrants required to conduct this additional testing. Fingerprints are another form of evidence which once lawfully obtained can be used for purposes beyond the case in which they were secured. Generally, fingerprints are obtained upon arrest during the booking procedure. Another instance in which evidence is lawfully obtained far-short of the requirements to secure a DNA sample. Once obtained, the fingerprints are routinely uploaded to DCJS where they are available to be compared to crimes throughout the state. A final example would be “mugshots,” photos of individuals obtained upon their arrest. These photographs are stored in a database and used during the investigation of other crimes. They are included in subsequent photo-arrays and other police arranged photographic identifications. These mugshots are kept in a searchable database that is accessible to law enforcement for these further uses. These examples are also outlined in People v. Belliard, 70 Misc 3d 965 (2020). The Court in Belliard held, “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, or with prints obtained in unsolved crimes.” What needs to be acknowledged is DNA is essentially the fingerprint of the 21st century. Some courts feel the need to treat DNA in an overly protected manner. As previously discussed, the level of protection in an individual’s DNA sample is already contemplated in the manner required to obtain the sample. New York maintains a higher standard in obtaining a DNA sample than many states who collect DNA upon arrest. “By the middle of the 20th century, it was considered ‘elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification process. DNA identification is an advanced technique superior to fingerprinting in many ways.” Maryland v. King, 459. In addition to the Constitutional argument, the defendant argues the Court should grant the protective order due to the language contained in Executive Law §995-c(3)(a). That statute reads, “Any designated offender subsequent to conviction and sentencing for a crime specified in subdivision seven of section nine hundred ninety-five of this article, shall be required to provide a sample appropriate for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index pursuant to this article.” The term “State DNA identification index” is defined in Executive Law §995(6) as “the DNA identification record system for New York state established pursuant to this article.” The database referred to under this section of the Executive Law is SDIS, the second tier of CODIS. As discussed previously, SDIS has specific rules and regulations, many set forth in Executive Law §995. What is absent from Executive Law §995 is any specific mention of LDIS, although its existence and tacit approval is clearly acknowledged. The defendant cites People v. Flores, 61 Misc 3d 1219(A) in her argument. The Court in Flores focuses on SDIS and the requirements for upload. That Court does not seem to differentiate that LDIS, while certainly under the umbrella of Executive Law §995, is unique. LDIS contains all the same protections of SDIS, but contains profiles other than those of convicted offenders. The Court in Flores does at one point concede that, “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 current state of the law.” Flores, 11. With regards to protecting exonerees and innocents, a procedure already exists to remove their DNA samples from LDIS (see discussion that follows). Regardless, in People v. Mohammed, 48 Misc 3d 415, “As this court has previously held, Executive Law §995 et seq., only applies to the New York State DNA Databank and does not apply to the OCME local databank…Thus, the Executive Law does not prohibit uploading a defendant’s DNA sample into the local OCME DNA database for comparison to DNA profiles in that database…Contrary to defendant’s contention, the confidentiality section, Executive Law §995-d, which prohibits disclosure of DNA records without consent, is not applicable to the local OCME database.” Also, in Belliard, 970, “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. Finally, the defendant argues that she is presumed innocent at this stage and should not have her constitutional rights and privacy expectations nullified by the involuntary surrender of her DNA to a local database. First, the defendant’s constitutional rights are protected in the manner in which the DNA sample is obtained. Further, once that DNA sample is lawfully obtained, law enforcement is within their rights to use that evidence for further investigative purposes. There are remedies already proscribed in the statute that further protect an individual’s privacy rights. Under Executive Law §995-c(9)(b), “…(I)f an individual, either voluntarily or pursuant to a warrant or order of a court, has provided 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 with the period specified by section 30.10 of the criminal procedure law, or (ii) a criminal action was commenced against an individual relating to such crime which resulted in a complete acquittal, or (iii) 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 or the court in which the judgment of conviction was originally entered for an order directing the expungement of any DNA record and any sample, analyses, or other documents relating to the DNA testing of such individual in connection with the investigation or prosecution of such crime.” Executive Law §995-c(9)(a) is a similar statute in that it specifically refers to expungement from the state DNA identification index. This is a clearly delineated procedure between the state DNA identification index and LDIS further emphasizing that Executive Law §995-c(3)(a) refers specifically to the state DNA identification index and not LDIS. “That §995-c(9)(b) explicitly authorizes an individual to move for expungement of his or her DNA record and related documents even when the person has not been charged with or convicted of a designated offense demonstrates that the Legislature contemplated DNA records and related documents being maintained in databases other than the New York State database, including local databases such as LDIS.” People v. White, 60 Misc 3d 304. Also, People v. Lora, 72 Misc 3d 1223(A), “Since the defendant will be providing her DNA sample pursuant to a court order, the Executive Law permits her to later seek discretionary expungement of her DNA records. Should the action be found to be untimely filed, or the defendant acquitted, or her conviction reversed, or vacated, or she receives a pardon, she may apply for this remedy.” Further, “The defendant does not have a Constitutional Fourth Amendment privacy interest in a buccal swab once it is taken.” Ultimately, this Court finds that Executive Law §995 does not prohibit lawfully obtained samples from being uploaded to the Erie County CPS Lab LDIS. Further, once evidence is lawfully obtained, law enforcement is permitted to perform additional scientific testing and use the evidence for further investigative leads. Once lawfully obtained, DNA is no different than fingerprints or mugshots, and if anything, is a more reliable method of identification which not only links suspects to crimes, but serves to exonerate the innocent. Finally, there are methods already proscribed by statute allowing for the removal of a DNA profile from LDIS of an individual who is acquitted or not charged with a crime. Therefore, based on all of the aforementioned reasons, the defendant’s motion for a protective order prohibiting her DNA sample from being entered into LDIS is DENIED. Dated: August 12, 2022
