Stevens v. N.Y. State Div. of Criminal Justice Servs.

2022 NY Slip Op 03062

In the Matter of Terrence Stevens et al., Petitioners-Appellants, v. The New York State Division of Criminal Justice Services et al., Respondents-Respondents.

Brendan Parent, Amicus Curiae.

Appeal No. 14847-14847A Case Nos. 2020-03746 2021-00560

Index No. 151522/18

Supreme Court of New York, First Department

May 5, 2022

Petitioners appeal from a judgment of the Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 20, 2020, denying their petition to, among other things, annul the Familial DNA Search (FDS) Regulations codified at 9 NYCRR 6192.1 and 6192.3 on October 18, 2017, effective the same date, and dismissing the proceeding brought under article 78. Petitioners also appeal from an order, same court and Justice, entered on or about March 27, 2020, which explained the reasoning for the October 20, 2020 judgment.

Gibson, Dunn & Crutcher LLP, New York (Doran J. Satanove Joseph Evall and Lavi M. Ben Dor of counsel), and The Legal Aid Society, New York (Terri Rosenblatt and James Pollock of counsel), for appellants.

Letitia James, Attorney General, New York (Matthew W. Grieco and Steven C. Wu of counsel), for respondents.

Brendan Parent Esq., NYU Grossman School of Medicine, New York, amicus curiae.

Troy K. Webber, Jeffrey K. Oing, Anil C. Singh, John R. Higgitt

Gische, J.P.

In this appeal we are asked to consider whether the respondent agencies, as opposed to the New York State legislature, had the authority to expand the use of the New York State DNA database for familial DNA searches in connection with law enforcement's investigation of crimes. We are not tasked with considering whether familial DNA searches are a good and effective tool for law enforcement and/or what limiting measures may be required to balance competing societal interests. Indeed, we recognize that use of familial DNA matching has produced laudable crime solving outcomes in many cases. Rather, our inquiry focuses on who in New York State is authorized to make the decision of whether and how best to use this law enforcement tool.

Petitioners also argue that even if respondents were authorized to promulgate the regulation, respondents' actions are otherwise arbitrary and capricious because they did not consider the disproportionate effect the regulation has on persons of color. Finally, we are tasked with considering whether the petitioners have standing to raise these challenges.

The background of this dispute is as follows:

Petitioners are relatives of persons whose genetic profiles are in the New York State DNA database. Respondents, the New York State Division of Criminal Justice Services (DCJS), the New York State Commission on Forensic Sciences (Commission) and the New York State Commission on Forensic Science DNA Subcommittee (Subcommittee) are independent agencies within the executive branch of state government.

In 1994, the Legislature enacted the DNA Databank Act, which requires the creation of a statewide database of DNA records based on samples collected from people convicted of crimes (L 1994, ch 737, codified at Executive Law § 995 et seq). The act also created the Commission and the Subcommittee (Executive Law §§ 995[9]-[10]; 995-a[1]; 995-b[13][a]). The Commission and Subcommittee are supported by the resources of DCJS (see Executive Law § 995-a) and the Commissioner of DCJS is the chair of the Commission (Executive Law § 995-a[1]). Pursuant to the Databank Act, the statewide databank consists of DNA profiles based on genetic information collected from "designated offenders" as expressly defined in the statute (see Executive Law §§ 995[6], 995-c).

Although originally the definition of designated offenders was limited to persons convicted of certain serious crimes, over time the category of persons who were required to provide their DNA for the databank was greatly expanded. The expansion of designated offenders was done solely through legislative action. Now (since 2012) the database includes all DNA information of all persons convicted of a felony or a misdemeanor in New York State (Executive Law §§ 995[7], 995-c[3]). Petitioners claim, based on New York State data on arrests, that the majority of data-banked DNA information is from people of color. ^[1] Post-conviction and sentencing, designated offenders are required to provide DNA samples, regardless of whether DNA was required as part of the investigation of the underlying crime for which they were convicted (Executive Law § 995-c[3]). The collected DNA samples are tested and analyzed at authorized forensic DNA laboratories where profiles are created. The profiles are then indexed and eventually uploaded to the state databank (Executive Law § 995-c[5]). The New York State Databank is part of a combined DNA Index System, known as CODIS, a nation-wide searchable software program maintained by the FBI that supports criminal justice DNA databases (https://www.criminaljustice.ny.gov/forensic/dnadatabank.htm#:~:text=The%20state's%20DNA%20Databank%20is, information%20about%20the%20CODIS%20program.s://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet#:~:text=CODIS%20is%20the%20acronym%20for, used%20to%20run%20these%20databases" https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet#:~:text=CODIS%20is%20the%20acronym%20for, used%20to%20run%20these%20databases [last accessed February 9, 2022]; Matter of Samy F. v Fabrizio, 176 A.D.3d 44 [1st Dept 2019] appeal dismissed 34 N.Y.3d 1033 [2019]). ^[2]

Pursuant to the Databank Act, the Commission and its Subcommittee are empowered to, among other things, develop minimum standards and a program of accreditation for all forensic laboratories in New York State. As relevant to this appeal, the Commission and its Subcommittee are statutorily authorized to promulgate standards for a determination of a "match" between DNA records contained in the DNA databank and a DNA record of a person submitted for comparison therewith (Executive Law § 995-b[12]). These duties and authority have remained unchanged since the Databank Act's original enactment.

The Databank Act requires that the Subcommittee assess proposed DNA methodologies and then make binding recommendations to the Commission, which the Commission must then formally adopt (Executive Law § 995-b[13][b]). The DCJS, after public notice, publishes the recommendation as part of the New York City Code of Rules and Regulation (NYCRR). Enacting these regulations are quasi-legislative acts, having the effect of law (Matter of Aufiero v New York State Div. of Criminal Justice Servs., 173 A.D.3d 1320, 1322 [3rd Dept 2019], lv denied 34 N.Y.3d 912 [2020]; see Matter of General Elec. Capital Corp. v New York State Div. of Tax. Appeals, Tax Appeal Trib., 2 N.Y.3d 249, 254 [2004][a duly promulgated regulation has the force and effect of law]; see also Thrun v Cuomo, 112 A.D.3d 1038, 1040-1041 [3rd Dept 2013], lv denied 22 N.Y.3d 865 [2014]).

From its inception, the Databank Act permitted searches by law enforcement agencies and district attorney's offices to determine whether DNA in the databank provided a direct match to DNA recovered in connection with a criminal investigation (forensic DNA) (Executive Law § 995-c[6][a]). A forensic DNA profile is created by analyzing repeating sequences (alleles) found at 13 specific regions or loci on an individual's DNA. The targeted loci, known as "junk DNA," differ from one individual to the next and can, therefore, be used for identification purposes. The particular loci used, however, are not associated with any known physical or medical characteristic and do not provide a basis for determining or inferring anything else about that person (see Boroian v Mueller, 616 F.3d 60, 66 [1st Cir 2010]). On its most simple level, a direct match is made when 13 pairs of alleles from the forensic DNA match the profile of someone in the databank. A direct match means that the forensic DNA and the DNA in the New York State Databank are from the same person. If a search yields a direct match, then the identity of the person in the DNA databank is released to law enforcement. There are circumstances, however, when fewer than 13 pairs of alleles match, but there are otherwise a sufficient number of matching alleles to conclude that the forensic DNA may belong to a close biological relative of the person profiled in the DNA databank. This is referred to as a partial match. In 2010 respondents, subject to certain restrictions, authorized the release of partial match information to law enforcement ^[3] (9 NYCRR 6192.1[s], 6192.3[b], [c], [f], [g][3]).

Familial DNA searching has been the subject of international attention since the early 2000s (see Agueros, J, Liberty Justice and Technology: Why Familial DNA Searches Must Confront the Rigor of the American Political Process, Criminal Law Bulletin, Vol 48, Issue 4, ART 6, page 6 [Summer 2012]). For example it has been successfully used to solve crimes in the United Kingdom since 2003 (Science of the Future: Identifying Criminals Through Their Family Members, DNA Forensics: Familial searches allows law enforcement to identify criminals through their family members DNAForensics.com [last accessed February 9, 2022]). Here in the United States, it was used in California in 2008 to identify the "Grim Sleeper" serial killer (Press Release, California Office of the Att'y Gen., California's Familial DNA Search Program Identifies Suspected "Grim Sleeper" Serial Killer (July 7, 2010)(internet), and also in in 2018, to apprehend another serial killer, the "Golden State Killer" (https://www.dailymail.co.uk/news/article-5666773/UK-police-use-DNA-techniques-used-catch-Golden-State-Killer.html [last accessed January 20, 2022];...