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The PEOPLE of the State of New York, Plaintiff, v. FORTUNA, Defendant.
Mr. Fortuna's DNA profile is in the State DNA Index (“SDIS”). In 2019, the state took that DNA sample from him as a mandatory part of a criminal conviction. Earlier this year, the Office of the Chief Medical Examiner (“OCME”) matched that SDIS profile to a DNA profile developed from evidence in this case. Police subsequently arrested Mr. Fortuna, the People charged him with misdemeanors, and he was arraigned in Bronx Criminal Court.
The People have now moved for a court order compelling Mr. Fortuna to provide a second saliva and buccal sample to develop his DNA profile again. The defense opposes and cross-moves for a protective order. The People have also filed a reply supporting their motion and opposing any protective order.
Constitutional law demands special analysis when the People seek a court order compelling evidence from a person's body. (See generally Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265  [establishing the relevant analysis]; People v. Heyward, 71 Misc.3d 470, 143 N.Y.S.3d 172 [Crim. Ct., Bronx County 2021] [providing a thorough background of the doctrine]).
Specifically, a court cannot issue such an order unless the People establish that: (1) there is “probable cause” to believe the accused person committed the crime charged; (2) there is a “clear indication” that relevant material evidence will be found; and (3) the method used to secure the evidence is safe and reliable. (Abe A., 56 N.Y.2d at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265). Once those necessary factors are met, the court then “must give careful considerations to the circumstances of the particular case.” (Id. at 298, 452 N.Y.S.2d 6, 437 N.E.2d 265). Those “circumstances” should include “not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence.” (Id.). “The Court must also consider the prosecution's ‘need to intrude’ into the person's body,” which requires “a ‘compelling need’ for that evidence in light of all the circumstances.” (Heyward, 71 Misc.3d at 475, 143 N.Y.S.3d 172 [quoting Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 ]).
There are several recent decisions regarding applications for saliva and buccal orders when a DNA sample for the accused person already exists. (People v. Roberts, 70 Misc.3d 1221[A], 2021 WL 833929 [Crim. Ct., N.Y. County 2021] [Weiner, J.]; People v. Webber, Ind. 750-2020 [Sup. Ct., Bronx County 2021] [Carter, J.]; People v. Topping, Ind. 249-2020 [Sup. Ct., Bronx County 2020] [Marcus, J.]; People v. Ditullio, CR-0101510-20NY [Crim. Ct., NY County Feb. 3, 2020] [Rosenthal, J.]; People v. Gonzalez, 2018NY029511 [Crim. Ct., NY County Oct. 30, 2018] [Badamo, J.]; People v. Carrion, Ind. 1162-2018 [Sup. Ct., Bronx County 2018] [Newbauer, J.]).
Applying Abe A., these cases hold that when a known DNA exemplar for the accused person already exists, the People must demonstrate why obtaining a second sample would be “necessary” and not “duplicative or cumulative.” (Roberts, 70 Misc.3d 1221[A], at *2; Gonzalez, 2018NY029511, at *3 [same]; see also Webber, Ind. 750-2020, at *3-*4 [“[The People] have not established the necessity of taking another swab from the defendant.”]; Carrion, Ind. 1162-2018, at *4 [“The People did not establish a need to obtain a second DNA sample from the defendant.”]; Ditullio, CR-0101510-20NY, at *5 [“The People have not, however, provided any reason why an additional sample ․ is important to the investigation or ․ would be anything but duplicative of the profile [already] developed.”]; Topping, Ind. 249-2020, at *3 [“[The People] have not established the necessity of taking another swab from the defendant for purposes of DNA testing and analysis.”]).
In determining whether the People have met this standard, courts often look to whether the OCME believes that a second sample is necessary. (E.g., Carrion, Ind. 1162-2018, at *4 [“[N]owhere ․ does the OCME indicate that further analysis is necessary or warranted.”]; Topping, Ind. 249-2020, at *3 [“Neither of [the OCME] laboratory reports ․ indicate that additional testing is needed.”]).
In this case, despite the existing SDIS profile, the People argue that “there is no less intrusive means of obtaining a comparison sample.” (Pr. Mot. at 11). They assert that a new sample is necessary “to ensure the integrity and fairness of the instant criminal proceeding.” (Pr. Reply at 4). They claim that using the SDIS profile would threaten the proceeding's “integrity and fairness” because it is from “more than a few years ago” and the witnesses to that sample are “unknown.” (Id.). They also assert that requesting a duplicative sample is “common practice.” (Pr. Mot. at 11; Pr. Reply at 4). The People distinguish Topping and Webber as involving surreptitious samples taken by police during the arrests “within those instant cases.” (See Pr. Mot. at 11). The Court takes each point in turn.
First, there is plainly a less intrusive means of obtaining a comparison in this case, as the SDIS profile already exists. The People's claim that using the SDIS profile would threaten the “integrity and fairness” of this criminal proceeding is unsupported. The People provide no coherent reason why there is anything wrong with the integrity of the SDIS profile. (See Pr. Mot. at 5). Nowhere in the People's exhibits does the OCME indicate that the profile is too old to use. (See Pr. Mot. Ex. 4). Nor is it likely that it could be, as a person's forensic DNA profile does not change during their life—let alone in three years. (See Thomas M. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R. 4th, at § 2[b] ). Further, the People do not explain why a profile developed in 2019 is unfair to use. The People do not explain what they mean that the witnesses to the SDIS sample are “unknown.” (See Pr. Reply at 4). Surely, those witnesses are not unknowable. Of course, in some cases, witnesses may be unavailable or unascertainable despite a diligent search. Here, however, the People have not made any such claims.
Second, it is not constitutionally relevant that requesting a duplicative DNA sample is “common practice.” (See id.; Pr. Mot. at 11). In any event, the above cited cases illustrate that granting such orders is not common. (Roberts, 70 Misc. 3d 1221[A]; Webber, Ind. 750-2020; Topping, Ind. 249-2020; Ditullio, CR-0101510-20NY; Gonzalez, 2018NY029511; Carrion, Ind. 1162-2018).
Finally, the Court rejects the People's attempts to distinguish Topping and Webber as turning on the police having obtained those initial samples during the arrests within those cases. (See Pr. Mot. at 11; Pr. Reply at 4). Contrary to the People's claim, neither case turned on the fact that the initial sample was taken “within” the case. (See id.). Further, in those cases, the samples were obtained from trash the accused person discarded at a police precinct during the arrest. (See Topping, Ind. 249-2020, at *1-*2 [involving an “abandon[ed]” “bottle of water ․ taken by the NYPD” at the police precinct]; Webber, Ind. 750-2020, at *2 [involving a an “abandoned cup of water” in the police precinct]). A sample like the one here, taken pursuant to standardized, mandatory post-conviction procedures, is likely of greater integrity—not lesser—than a sample taken from discarded trash in the uncontrolled environment of an arrest in a police precinct.
The People have not established why obtaining a second DNA sample is necessary, nor have they established why it would not be duplicative or cumulative. The People's motion is DENIED.
The defense's cross-motion is moot.
The foregoing constitutes the Order and Decision of the Court.
Wanda L. Licitra, J.
Response sent, thank you
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Docket No: Docket Number: CR-008630-22BX
Decided: August 15, 2022
Court: Criminal Court, City of New York,
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