People v. K.N.

• Decision Date: 14 November 2018
• Docket Number: 2018NY031674
• Parties: The PEOPLE of the State of New York v. K.N., Defendant.
• Court: New York Criminal Court

62 Misc.3d 444
87 N.Y.S.3d 862

The PEOPLE of the State of New York
v.
K.N., Defendant.

2018NY031674

Criminal Court, City of New York.

Decided November 14, 2018

87 N.Y.S.3d 864

Justine Luongo, Esq., The Legal Aid Society, 49 Thomas Street, New York, New York 10013 By: Lauren Gottesman, (212)-298-3029, Counsel for Defendant

Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013 By: Meghan Hast, (212)-335-4172, Counsel for The People

Sandra E. Roper, J.

This Honorable Court Rules as follows:

Law enforcement's search and seizure of minor defendant's buccal saliva swab sample for DNA Fingerprinting is an unlawful search and seizure; NYS LDIS OCME is Ordered to return minor defendant's buccal saliva swab sample and any and all tangible instrumentalities attendant thereto to minor defendant's counsel; NYS LDIS OCME is Ordered to permanently destroy and expunge any data uploaded to any and all of its computerized information systems contained and maintained within Databank that are related and relevant, either directly or tangentially, to minor defendant; and Protective Order is Deemed Moot.

INTRODUCTION

Minor defendant moves by Order to Show Cause (hereinafter referred to as OSC) to destroy and expunge minor defendant's DNA profile, or in the alternative, for a protective order limiting the use of any buccal swab sample obtained from minor defendant for comparison solely in the instant case. Whereas, People move to compare minor defendant's DNA Fingerprint

87 N.Y.S.3d 865

to crime scene evidence recovered in other unrelated investigations that are stored and maintained in forensic DNA Databases.

PROCEDURAL HISTORY

On or about July 31, 2018 minor defendant was arrested and charged with two counts of Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03[1][a] and Penal Law § 265.03 [3 ] ). On August 1, 2018, minor defendant was arraigned, People served Grand Jury notice, and defense served Cross Grand Jury notice. With his first criminal contact, minor defendant was released on own recognizance on People's consent. On September 25, 2018, Court was adjourned to Part F for Grand Jury Action. Off calendar on September 13, 2018, defense moved by OSC to direct OCME to destroy and expunge any DNA sample or profile that was obtained from minor defendant during his pre-arraignment detention, along with any comparisons of his DNA sample or profile to any crime scene evidence in this instant case; in the alternative, defense moved for a protective order prohibiting OCME from uploading minor defendant's DNA profile into the New York City Local DNA databank and prohibiting any further comparisons apart from this instant case. By letter dated September 20, 2018, which was addressed, served, and filed upon the court, OCME stated the position that although it takes no position on the relief defense requests, its status as LDIS is fully legal. Defense further stated that although minor defendant's buccal saliva swab is currently in possession of OCME, it has not and will not perform any DNA testing until the Court's decision has been rendered.

As of the last court appearance of all parties on September 25, 2018, People stated no grand jury action. Therefore, jurisdiction remains with criminal court Part F until such time that grand jury votes to indict.

ALLEGATIONS

Minor defendant, a 17-year-old male with no prior criminal conduct was arrested along with a co-defendant under the circumstances stated in the NYPD Court Verification/Arraignment Card:

AT TPO DEDENDANT WAS THE PASSENGER OF VEHICLE BEING DRIVEN WITH EXCESSIVE TINTS. UPON FURTHER INVESTIGATION, DEFENDANT WAS FOUND TO BE IN POSSESSION OF A LOADED 9MM SMITH AND WESSON WITH 1 LIVE ROUND IN THE CHAMBER AND 14 LIVE ROUNDS IN THE MAGAZINE.

The felony accusatory instrument, herein sworn by deponent police officer, sets forth the following:

On or about July 31, 2018 at about 10:03 P.M., behind 425 East 105th Street in the County and State of New York, the defendants possessed a machine gun with intent to use it unlawfully against another; the defendants possessed a loaded firearm outside of his home and place of business; the defendant uttered and possessed a forged instrument of a kind specified in section 170.10 of the Penal Law and particularized below with knowledge that the instrument was forged and with intent to defraud, deceive and injure another.

The factual basis for the charges are as follows:

I observed both the defendants inside a car with windows with illegal tints that was driving down the street. When my partner and I signaled to the car to stop by using our lights, I observed that the back door to the car was opening. I then observed both defendants get out of the car and run away. Defendant Jamel Vicks was the driver of the vehicle. My partner

87 N.Y.S.3d 866

and I chased after the defendants and apprehended them.

Inside the car on the back passenger seat, I observed a firearm, which was loaded with a total of 15 rounds of ammunition.

I observed the car had a temporary New Jersey plate, which was affixed to the back of the car. I am informed by New Jersey State Trooper Launess that they ran a check of the temporary plate and that it was forged.

FACTUAL BACKGROUND BY DEFENDANT

As People failed to present any opposing version of facts in its response to OSC, this Court shall accept defense's facts as creditable. The creditable facts appear in OSC, as follows:

3. [K. N.], a seventeen-year-old boy, is charged in this case with two counts of Criminal Possession of a Weapon in the Second Degree (pursuant to P.L. §§ 265.03 [1] [a], 265.03 [3] ).

4. On July 31, 2018 at about 10:00pm, [K. N.] was a passenger in the vehicle of his co-defendant who is 22 years old. According to the criminal complaint filed against [K. N.] and his co-defendant, the vehicle, which allegedly had illegal window tinting, was in the vicinity of 425 East 105th Street, in the County and State of New York. When police officers put on the siren and signaled for the vehicle to pull over, a back door of the vehicle opened, and the vehicle's occupants, including [K. N.], allegedly exited the vehicle and began to run away. Officer Jonathan Perez and his partner chased after [K. N.] and his co-defendant and apprehended them. The officers searched the vehicle and recovered a loaded firearm on the back-passenger seat of the vehicle.

5. [K. N.] ultimately was taken to the 23rd police precinct for questioning. The police took pedigree information from [K. N.] and fingerprinted him. The police confirmed through the pedigree process that [K. N.] was 17 years old and has no prior criminal record.

6. After his pedigree information was taken, [K. N.] was detained at the 23rd precinct for more than 12 hours. At no point did the police contact, nor allow [K. N.] to contact, his Aunt who is his legal guardian. The police officers at the 23rd precinct did, however, make contact with [K. N.]'s biological mother. Anticipating that she would be able to see and speak with her son, [K.N.'s mother] came to the precinct. Despite waiting at the precinct for over two hours, [K.N.'s mother] was never given the opportunity to speak with or see her son.

7. During his detention, [K. N.] was questioned by members of the 23rd precinct and an assistant district attorney. At some point during his detention, [K. N.] was provided with a consent form to provide a DNA sample. Despite his mother's presence at the precinct, [K. N.] was not provided the opportunity to discuss his decision to provide a DNA sample with his mother, legal guardian, or an attorney. Upon information and belief, the police did not ask [K. N.]'s mother, nor any other guardian, for parental consent before inserting a DNA swab into [K. N.]'s mouth and removing a bodily sample for genetic profiling.

8. During his prolonged detention, the police did not tell [K. N.] the basic facts about forensic DNA testing before taking his DNA sample. They did not tell him that even if his DNA were not on the evidence recovered from the firearm or vehicle, his case may not be dismissed. Nor did the police explain that "touch" DNA, like the kind typically found on a weapon, could be transferred innocently through an intermediary, such that [K. N.]'s DNA could wind up on an object that he never even touched.

87 N.Y.S.3d 867

9. Additionally, the police led [K. N.] to believe that his DNA would be compared only to the gun that was recovered at the time of his arrest. Significantly, the police did not inform [K. N.] that after his DNA was collected, it would be uploaded into New York City' local "suspect" DNA database, known as LDIS. LDIS stores all DNA profiles obtained by the police for the purpose of comparison to all forensic DNA evidence samples collected in New York City from any time in the past and any...