Samy F. v. Fabrizio

• Decision Date: 28 May 2019
• Docket Number: Ind. 3305/15,8235 [M-5194],OP 161/18
• Parties: In re SAMY F., Petitioner, v. Hon. Ralph FABRIZIO, etc., Respondent. Darcel D. Clark, Nonparty Respondent.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 7

103 N.Y.S.3d 428

In re SAMY F., Petitioner,

v. Hon. Ralph FABRIZIO, etc., Respondent.Darcel D. Clark, Nonparty Respondent.

8235 [M-5194]

Ind. 3305/15

OP 161/18

Supreme Court, Appellate Division, First Department, New York.

ENTERED: May 28, 2019

Petrillo Klein & Boxer LLP, New York (Leonid Sandlar of counsel), for petitioner.

Barbara D. Underwood, Attorney General, New York (Carly Weinreb of counsel), for Hon. Ralph Fabrizio, respondent.

Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for Darcel D. Clark, respondent.

David Friedman, J.P., Judith J. Gische, Barbara R. Kapnick, Ellen Gesmer, Peter H. Moulton, JJ.,

GISCHE, J.

Databanks containing DNA profiles of convicted defendants have proven to be useful and valuable tools in criminal law enforcement. They allow a DNA profile to be used by law enforcement in identifying qualifying DNA matches to unknown forensic material recovered in connection with ongoing and future criminal investigations ( Executive Law §§ 995–c[3][a], [6][a] ; see also 9 NYCRR Part 6192; see e.g. Kellogg v. Travis, 100 N.Y.2d 407, 410, 764 N.Y.S.2d 376, 796 N.E.2d 467 [2003] ). Since 1996, New York has maintained a state DNA index system (SDIS) for the mutual exchange, use and storage of DNA records. The storage and use of such records is subject to the provisions and requirements of Article 49–B of the Executive Law (§ 995 et seq. ).

This petition raises two issues of first impression for this Court. The first is whether the local DNA databank maintained by the Office of the Chief Medical Examiner (OCME) is subject to the State Executive Law. The second is, when DNA is collected during the investigatory phase of a particular crime that ultimately results in a youthful offender (YO) determination, whether the court has the authority to expunge the YO's DNA profile from the SDIS, along with the underlying DNA records. We conclude that both questions should be answered in the affirmative.

The underlying facts are not in dispute. On October 18, 2015, petitioner, then age 16, was arrested on a weapons charge following a shooting. A gun was recovered from a vehicle in which he was a passenger. Petitioner was taken into custody and administered Miranda warnings. He was then asked to voluntarily provide a DNA sample. Petitioner agreed by signing a consent form, and a buccal swab was obtained from him. He was subsequently indicted on a charge of criminal possession of a weapon in the second degree ( Penal Law § 265.03 ). Although in a pretrial suppression motion petitioner contested the voluntariness of his consent to providing DNA, he ultimately agreed to a YO disposition ( CPL 720.10 et seq. ). Because the YO disposition was agreed to before the court made any decision on the pending suppression motion, petitioner forfeited any right to contest the voluntariness of his consent to providing a DNA sample for use in that particular prosecution ( People v. Hecker, 105 A.D.3d 606, 962 N.Y.S.2d 619 [1st Dept. 2013] lv denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ). At some point petitioner's DNA profile was uploaded to the SDIS¹ .

Following the conclusion of his criminal case, petitioner filed a motion in Supreme Court to have his DNA and DNA-related records expunged from OCME's databank. In denying the motion, the Supreme Court held that, as a matter of law, it had no authority to grant the relief requested on three separate bases. The Supreme Court held that Executive Law § 995–c(9)(b), which pertains to expungement of DNA profiles, did not apply to OCME which was a local DNA index. The Court also determined that nothing in the YO statute expressly provided for expungement of lawfully collected DNA from a youthful offender ( CPL § 720.35 ). Finally, the Supreme Court held that although Executive Law §§ 995–c(9)(a), (b), provides for expungement of DNA records in the case of an acquittal, reversal or vacatur of a conviction, a YO adjudication did not qualify under any of those criteria.

Petitioner contends that the Supreme Court has discretion to expunge a YO's DNA records and seeks a writ of mandamus, directing that respondent (a Supreme Court Justice) exercise his discretion to decide whether respondent's DNA profile and records should be expunged under the facts and circumstances of the underlying criminal proceeding.

The Article 78 petition is properly brought

Respondent urges dismissal of this petition based on two procedural threshold issues, which we reject. We do not agree that the District Attorney is a necessary party under either CPLR 7804(i) or CPLR 1001(a). Nor is the DA required under a permissive joinder analysis. There is no relief that the DA can provide, and the DA will not be equitably affected by any disposition of this petition (see e.g. City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399 N.E.2d 538 [1979] ). Additionally, not only was the DA served with the petition, but filed opposition, which was considered by this Court ( Matter of Lovell v. Goodman, 305 A.D.2d 314, 315, 759 N.Y.S.2d 480 [1st Dept 2003] ). Consequently the failure to name the DA as a party is not fatal to this petition.

Respondent also argues that petitioner has an adequate remedy at law, namely a direct appeal from the denial of his underlying expungement motion. No appeal lies from a determination made in a criminal proceeding, however, unless specifically provided for by statute ( People v. Lovett, 25 N.Y.3d 1088, 1090, 13 N.Y.S.3d 341, 34 N.E.3d 851 [2015] ). The limited grounds for appeal set forth in section 450.15 of the Criminal Procedure Law do not apply to the Supreme Court disposition of the expungement motion. Although respondent now argues this is a directly appealable civil matter, neither party, nor the DA, treated the underlying motion as one for civil relief, with a right of direct appeal. In the absence of an available remedy at law (see CPL 450.20 ), the important issues raised on this appeal will escape this Court's review unless this petition proceeds ( Matter of Clark v. Newbauer, 148 A.D.3d 260, 265–266, 47 N.Y.S.3d 314 [1st Dept. 2017] ).² Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice ( CPLR 506[b][1] ; 7804[b]; see Matter of Baba v. Evans, 213 A.D.2d 248, 624 N.Y.S.2d 18 [1st Dept. 1995], cert denied 520 U.S. 1254, 117 S.Ct. 2416, 138 L.Ed.2d 180 [1997] ).

The Executive Law applies to OCME's DNA Laboratory and Databank

There is abundant support for the conclusion that OCME's responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent's arguments that the statutory reference to a "state" DNA identification index in Article 49–B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing.

Since 1996, New York has maintained a "state DNA identification index" to store the DNA profiles of "designated offenders" as expressly defined in the statute ( Executive Law §§ 995[6], 995–c ). Designated offenders are required to provide post conviction 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 then tested and analyzed by authorized forensic DNA laboratories, which create profiles that are indexed and eventually uploaded to the state databank ( Executive Law § 995–c[5] ).

Article 49–B broadly defines a "forensic [DNA] laboratory" as "any laboratory operated by the state or unit of local government that performs forensic DNA testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding or for purposes of identification" ( Executive Law § 995[1] [emphasis added] ). The Commission on Forensic Science (CFS), a body created under the Executive Law, sets the minimum standards and a process by which "all" public forensic laboratories within the state are accredited ( Executive Law §§ 995–a ; 995–b). The Executive Law also ensures that all forensic DNA laboratories comply with any applicable privacy laws, and adhere to restrictions on the disclosure or re-disclosure of DNA records, findings, reports and results ( Executive Law § 995–d[1] ). Pursuant to Executive Law § 995–d, DNA testing records, findings, and reports "shall be confidential," with certain exceptions, one being for use in law enforcement ( Executive Law §§ 995–d[2] ; 995–c[6] ).

OCME, established in 1918, self-identifies as having the largest public DNA crime laboratory in the world (About OCME https://www.nyc.gov/site/ocme/about/about-ocme.page, last accessed May 10, 2019). It is an independent subdivision of the New York City Department of Health and Mental Hygiene. Pursuant to section 557(f)(3) of the New York City Charter, OCME may "to the extent permitted by law, provide forensic and related testing and analysis ... in furtherance of investigations ... not limited to ... (DNA) testing ..."

Notwithstanding OCME's general authorization to act under the New York City Charter, it is also one of New York State's eight local, public forensic laboratories, accredited by the CFS, all fulfilling the Executive Law mandate to test, analyze and maintain the DNA records of designated offenders (https:/www.criminaljustice.ny.gov/forensic/dnabrochure, last last accessed May 10, 2019; see Executive Law §§ 995–b, 995–c[1],[4],[7] ; 9 NYCRR 6190). These local public forensic laboratories each upload their DNA data into a Local DNA Index System, or LDIS. The LDIS and SDIS are part of the Combined DNA Index System, known as CODIS. CODIS is the Federal Bureau of Investigation's (FBI) nation-wide searchable software program that supports criminal justice DNA databases (https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet, last accessed May 10, 2019). The National DNA Index System (NDIS),...