KELLOGG v. TRAVIS (2002)

Order, Supreme Court, New York County (Richard Braun, J.), entered May 24, 2001, which, in an action seeking, inter alia, declaratory relief, granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a), unanimously modified, on the law, to declare in defendants' favor that the State DNA Databank Law is constitutional to the extent challenged, and otherwise affirmed, without costs.

Plaintiff was convicted of two violent felonies in 1994.   His claim, that the DNA Databank Law (Executive Law § 995 through § 995-f), as amended in 1999 (L. 1999, ch. 560 § 1 and § 9), which requires him, by reason of his commission of the aforementioned felonies and subsequent length of imprisonment, to submit a sample of his DNA to the State DNA Databank, constitutes after-the-fact imposition of additional punishment for those felonies, in violation of the Ex Post Facto Clause of the United States Constitution (see Collins v. Youngblood, 497 U.S. 37, 42-43, 110 S.Ct. 2715, 111 L.Ed.2d 30), is without merit.   The requirement that an individual submit to DNA testing does not, when effected by a law such as New York's DNA Databank Law, whose overall intent is manifestly nonpunitive, constitute punishment (see Rise v. State of Oregon, 59 F.3d 1556, 1562, cert. denied 517 U.S. 1160, 116 S.Ct. 1554, 134 L.Ed.2d 656).   We modify only to make the necessary declaration in defendants' favor (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670).

We have reviewed plaintiff's remaining arguments and find them unavailing.