Opinion
D-07679/19
08-26-2020
In the Matter of John R. A Person Alleged to be a Juvenile Delinquent, Respondent.
James E. Johnson, Esq. Corporation Counsel of the City of New York 60 Lafayette Street, Room 7A3 New York, NY 10013 Gabrielle E. Martin, Esq., Of Counsel Gonzalez & Oberlander LLP 18 East 41st Street, 6th floor New York, NY 10017 Attorney for Respondent
James E. Johnson, Esq. Corporation Counsel of the City of New York 60 Lafayette Street, Room 7A3 New York, NY 10013 Gabrielle E. Martin, Esq., Of Counsel Gonzalez & Oberlander LLP 18 East 41st Street, 6th floor New York, NY 10017 Attorney for Respondent Carol Goldstein, J.
Pursuant to Executive Law §995-c (9)(b)(iii), as interpreted by Matter of Samy F. v Fabrizio (176 AD3d 44 [1st Dept. 2019]), the court holds that it has discretion to expunge a delinquency respondent's DNA profile, which has been uploaded into the database of the Office of the Chief Medical Examiner ("OCME"). The court exercises this discretion and orders expungement in the instant case where: 1) the police gave respondent a can of soda at the precinct and respondent's genetic material was surreptitiously taken from the soda can; and 2) respondent successfully completed a supervised adjournment in contemplation of dismissal ("ACD"), resulting in the dismissal and sealing of his delinquency matter.
Procedural Background
On June 24, 2019, the presentment agency filed a petition against then fourteen-year-old respondent John R. alleging that he committed acts constituting attempted criminal sexual act in the first degree (Penal Law ["PL"] §110/130.50) and related offenses. The case involves a May 17, 2019, incident of unlawful conduct perpetrated by respondent against a female classmate in the girl's bathroom at school. On July 3, 2019, the presentment agency served a voluntary disclosure form ("VDF") on respondent and filed a copy with the court. The VDF indicated that a soda can "used by" the respondent at the precinct was vouchered. When the court questioned the presentment agency about the soda can at a court appearance on August 5, 2019, the assistant corporation counsel ("ACC") indicated that it did not intend to use the soda can "for any purpose." When the court inquired if the soda can could be returned to respondent, the ACC stated that the soda can was in the possession of the New York City Police Department ("NYPD"). The ACC could not tell the court the purpose of the can being held by the NYPD, stating, "It was just vouchered as a part of processing." Upon inquiry from the court regarding the possibility that the soda can had been tested for respondent's DNA and his DNA profile uploaded into the database of the OCME, the ACC stated that he was "not aware" of any testing that had been performed by the OCME. The court indicated its intention to order that the soda can not be tested, and if testing was already done, to order that any DNA data obtained from the soda can not be uploaded into any database. The ACC stated that it had no objection to these orders. The matter was adjourned until September 3, 2019.
In the transcript, the soda can is called the "coke can."
On August 19, 2019, prior to the adjourned date, the presentment agency filed an order to show cause seeking an order for respondent to submit an oral buccal swab for comparison of his DNA with the DNA taken from a shirt worn by the complainant at the time of the incident. In its papers, the presentment agency stated that it had been in communication with the OCME on June 24, 2019, July 11, 2019 and July 6, 2019 and, on August 6, 2019, left a message with the criminologist assigned to the case. On August 9, 2019, the presentment agency received a report from the OCME that genetic material suitable for comparison was obtained from complainant's shirt. On September 3, 2019, a different ACC appeared for the presentment agency. After advising the court that the matter would be resolved with a plea, the presentment agency withdrew its request for a buccal swab. The court then inquired of the ACC what had transpired with respect to the soda can. The ACC informed the court that even though her office never asked that the soda can be tested, the police sent the soda can to the OCME and it was in fact tested. When the court noted that on August 5, 2019, it made an order that the can may not be tested, the ACC stated, "they already tested it by the time we were informed of [the court order] because it goes through different processes." When the court asked if the DNA profile obtained from the soda can could be expunged, the ACC requested that any motion for expungement be made on papers with notice to the NYPD and the OCME. That same day, respondent made admissions to acts constituting forcible touching (PL §130.52[1]), an A misdemeanor, and attempted criminal obstruction of breathing or blood circulation (PL §110/121.11]), a B misdemeanor. The matter was adjourned for disposition and a probation report was ordered. The probation report submitted on October 17, 2019, the next court date, indicated that this is respondent's only brush with the law and that respondent expressed remorse for his actions. The report further stated the following: Respondent comes from a close-knit, intact family. His parents were distressed by this incident and promptly enrolled him in therapy. No problems were reported at respondent's home, and respondent does his chores and keeps his curfew, which is 6 P.M. After the incident, respondent was enrolled in an all-boys high school and has perfect attendance. He is also a good athlete and is on the school's baseball team. A risk assessment tool—the Youth Level of Service/Case Management Inventory ("YLS/CMI") —submitted with the probation report indicates that respondent's Risk/Need Level is 1, on a scale of 0 to 40, with 0 being the lowest possible score. The matter was adjourned for the court to monitor respondent's compliance with the Mustard Seed program, a counseling program for adolescents and youth who admit to or have been found to have committed a sexual offense. On January 29, 2020, the court received an updated report from the probation department indicating that respondent was completely compliant with the Mustard Seed counseling program, had kept his curfew 100% of the time, and attended every session of the after-school program run by Choices, an alternative to detention program. At the conclusion of the dispositional hearing, the court found that the least restrictive alternative that was consistent with respondent's needs and best interests, as well as the need for protection of the community was an ACD under Family Court Act ("FCA") §315.3, supervised by the probation department. The terms of the ACD required that respondent comply with several conditions, including attendance at the Mustard Seed counseling program until its completion. The matter was adjourned to July 28, 2020 for a probation report and, if respondent successfully complied with the terms of the ACD, dismissal of the petition.
On July 28, 2020, the court received a final probation report indicating that respondent had fully complied with the terms of his ACD. Respondent obeyed all home rules, regularly attended high school, and, on June 6, 2020, completed the Mustard Seed program. Respondent had no new arrests and complied with a temporary order of protection in favor of the complainant, which had been in effect during the pendency of the case. An annexed report prepared by William C. Ford, LCSW, employed by the Mustard Seed program, indicated that respondent successfully completed treatment and that he "represents a low risk for relapse." The Mustard Seed report further stated that respondent "assumes full responsibility for his behavior," and that the program is "pleased with the effort that he has made to sustain non-relapse behavior as well as [his] improved social skills."
Since respondent had complied with all the conditions of the ACD and received an excellent report from probation, the court dismissed the delinquency petition in the furtherance of justice. Sealing was stayed for sixty days for the decision on respondent's motion, described below, to expunge his DNA profile from the OCME database.
Motion for Expungement of DNA Profile
While respondent's disposition was pending, on September 23, 2019, respondent filed the instant motion for the expungement of "any and all profiles and records possessed by the NYPD and/or the OCME regarding possible DNA identification of the respondent." Respondent stated that while at the precinct, the police gave him a soda and the soda can was subsequently vouchered by the police. The soda can was then tested by the OCME for respondent's DNA and the results were uploaded into its database. Respondent asserted that he never expressly or impliedly consented to the upload of his DNA profile to the OCME database.
In his motion, respondent relied on the recently decided Appellate Division, First Department, case, Matter of Samy F., which, according to respondent, held that the DNA profile of a youthful offender ("YO") must be expunged from the OCME database. Respondent argued that Sami F. mandates that respondent's DNA profile, records and personal information likewise be expunged from the OCME database because, like a youthful offender adjudication, a delinquency adjudication is not a criminal conviction. In addition to service on the presentment agency, respondent's motion was served upon the NYPD and the OCME. Neither the NYPD nor the OCME submitted a response.
Actually, the Samy F. court held that the trial court had discretion to order expungement of the DNA profile of the youthful offender. It did not hold that the DNA profile must be expunged (id. 56).
On October 7, 2019, the presentment agency filed a response, and on November 29, 2019, filed a supplemental response. In presentment agency's filings, which contained copies of the OCME reports, the timeline for the testing of the complainant's shirt, the soda can, and the comparison of the DNA was clarified. As stated above, on August 5, 2019, the court ordered that the soda can not be tested or, if already tested, the results not be uploaded to any database. Four days later, on August 9, 2019, the shirt was tested, and the OCME report indicated that the "individual contributors to the mixture could not be determined, however, the results are suitable for comparison." The report gives respondent's name as a "suspect."
Sometime between August 9 and August 21, 2019, the OCME tested the DNA sample obtained from the soda can and, on August 21, 2019, compared it to the DNA mixture found on the stain from the shirt. The OCME report found that the "DNA donor to the can submitted for John R. is included as a contributor" to the stain. The report further stated that the "DNA profile of the DNA donor to the can submitted for John R. is suitable for entry into the OCME local DNA databank." The OCME report identified John R. by name and gave an Arrest Number, Complaint Number, Report ID Number, Lab Number, and FB (Forensic Biology) Number.
In its opposition papers, the presentment agency took no position with respect to the expungement of respondent's DNA profiles and records possessed by the NYPD and/or the OCME. However, the presentment agency strenuously argued that the family court, as a court of limited jurisdiction, has no jurisdiction to direct this expungement. In support of its position, the presentment agency cited two unreported family court decisions, which predated Samy F. These decisions held that the family court lacks jurisdiction to expunge DNA exemplars from the OCME database (Matter of Darius O., Fam Ct, Kings County 2/13/19, White, FCJ and Matter of Dewayne W., Fam Ct, Bronx County 4/5/19, Passidomo, FCJ). Despite having been asked by the court on the record on October 17, 2019 to identify which court it believed would have jurisdiction to expunge respondent's DNA profile, the presentment agency never answered this question.
The presentment agency further argued that expungement should not be ordered because the DNA sample taken from the soda can is a "pseudo exemplar," an exemplar taken without undisputed documentation as to its owner, rather than a "true exemplar", taken with a donor's consent or through a court order, for which there is documentation that the sample comes from a particular person.
In a supplemental submission on December 27, 2019, respondent cited to Matter of Jahsim R. (66 Misc 3d 426 [Fam Ct, Bronx County 2019]) wherein a Family Court judge found, based on Samy F., that the family court does have jurisdiction to expunge a respondent's DNA profile from the OCME database The Jahsim R. court found that Samy F. was applicable since a juvenile delinquency adjudication, like a youthful offender adjudication, is not a conviction for a crime.
Legal Discussion and Decision on Motion
An analysis of the instant motion starts with the First Department decision in Samy F., a matter of first impression. In Samy F., the court considered a case where, during the investigatory phase of a case, the defendant consented to providing a DNA sample. The defendant's DNA profile was subsequently uploaded into the OCME database. Thereafter, the defendant received a youthful offender adjudication, rather than a criminal conviction. Following this adjudication, the defendant sought to have his DNA profile expunged from the OCME database. In analyzing the case, the Samy F. court considered a number of provisions in Executive Law §995-c.
Executive Law §995-c, subdivision 3, provides that a conviction for certain crimes requires the taking of a DNA sample for inclusion in a State DNA Index System ("SDIS"). Subdivision 9 (a) provides, inter alia, that where the conviction is reversed or vacated, the DNA record taken after conviction will be expunged from the NY state database. Subdivision 9(b)(iii) further provides that where the conviction is vacated or reversed, the accused may also apply to the trial court for the expungement of "any DNA records and any samples, analyses or other documents related to DNA testing of such individual in connection with the investigation or prosecution" of the case. This expungement would be at the discretion of the trial court (Samy F., 53).
The Samy F. court found that the Executive Law §995-c provisions are applicable to DNA profiles contained not only in the state database, but also in the database of the OCME, a local database ("LDIS"). This is because the OCME, as a LDIS, "operates in accordance with guidelines and accreditation credentialing required under the Executive Law" and because the DNA profiles that the OCME generate "flow upward to populate the SDIS." (Id., 51). The court in Samy F., further found that, even though Executive Law §995-c does not make any reference to youthful offender adjudications, the discretionary expungement in subdivision 9(b)(iii) is applicable. This is because pursuant to Criminal Procedure Law ("CPL") §720.35, when an eligible youth receives youthful offender treatment, the criminal conviction is "deemed vacated and is replaced by a youthful offender adjudication" (id., 54, see also CPL §720.20[3]). Significantly, a youthful offender adjudication is not a criminal conviction (CPL §720.35[1]; People v Francis, 30 NY3d 737, 740-741 [2018]).
The analysis in Samy F., which found Executive Law §995-c (9)(b)(iii) to be applicable to a youth who is granted youth offender treatment because his conviction was deemed vacated, also applies to respondent's case and gives the family court discretion to expunge his DNA profile. This is because after respondent successfully completed the ACD, his delinquency petition was dismissed in the furtherance of justice. As a consequence of the dismissal of the petition, the findings that respondent committed acts constituting two misdemeanors were, of necessity, vacated.
The provisions in Executive Law §995-c(9[b][ii] regarding the discretionary expungement of a DNA profile where there is a complete acquittal are inapplicable here because the dismissal of respondent's case was in the interests of justice, rather than on the merits.
The court opines that the reasoning of Samy F. should also be extended to a youth who is adjudicated a juvenile delinquent thus giving the family court the discretion to expunge his or her DNA profiles from the OCME database. This is because a youthful offender adjudication and a juvenile delinquency adjudication are similar in the critical respect that neither is a criminal conviction.
CPL §720.35[1] provides that a youthful offender adjudication "is not a judgment or conviction for a crime or any other offense and does not operate as a disqualification of any person so adjudged to hold public office or public employment or to receive any license granted by any public authority." Similarly, FCA §380.1, subdivision 1, provides that a juvenile delinquency adjudication is not "denominated a conviction" and "no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication." Subdivision 2 further provides that no juvenile delinquent adjudication "shall operate as a forfeiture of any right or privilege to disqualify any person from holding any public office or receiving any license granted by public authority . . . or operate as a disqualification of any person to pursue or engage in any lawful activity, occupation, profession or calling."
In light of this critical similarity, the court wholeheartedly agrees with the Jahsim R. court that regarding the discretionary expungement of DNA profiles from the OCME database, "[a] juvenile delinquent is not and should not be afforded fewer adjudication protections than a YO or an adult in equivalent circumstances" (id., 426). In the instant case, the presentment agency does not contend that there was a lawful basis to test the soda can and upload respondent's DNA profile in a database inasmuch as respondent's genetic material was not provided voluntarily or pursuant to a court order (see Samy F., 53). Moreover, the presentment agency does not dispute that it had consented to the court issuing an order that the soda can shall not be tested for DNA and that any profile obtained from the soda can shall not be uploaded to a database.
Although the ACC hypothesized in court on October 17, 2019, that the soda can might have been abandoned by respondent, which would arguably have given law enforcement the right to test it for genetic material without consent or court order, in its response papers, the presentment agency did not pursue this argument.
Nonetheless, the presentment agency takes the position that because the family court is a court of limited jurisdiction, it lacks jurisdiction to order expungement of respondent's DNA profile from the OCME database. The court disagrees and finds, as the court did in Jahsim R., that the family court has jurisdiction to order the expungement of a respondent's DNA profile from the OCME database. FCA §302.1 declares: "The family court has exclusive original jurisdiction over any proceeding to determine whether a person is a juvenile delinquent." This court finds that even without specific authorization, the scope of the family court jurisdiction over all aspects of delinquency cases is sufficiently broad to encompass an order for the OCME to remove a respondent's DNA profile from its database.
In a recent decision, a Family Court judge took a contrary position, finding that the family court lacked jurisdiction to order that a respondent's DNA profile be expunged from the OCME database (Matter of Logan C., NYLJ 8/24/20; 2020 WL 4928656 [Fam Ct, Kings County]. The Logan C. court did not propose an alternative forum in which a respondent could seek expungement.
First, the family court has authority over the retention, sealing, and destruction of identifying information obtained from a youth by the police during the arrest process. Pursuant to FCA §354.1, if the young person is not adjudicated a juvenile delinquent for a felony, the clerk of the court must notify police and other law enforcement that fingerprints, palm prints or photographs taken of the young person are to be destroyed "without unnecessary delay." FCA §375.1(1) provides that where a delinquency proceeding terminates favorably to the accused, the clerk of the family court shall notify the police and law enforcement agency that the records related to the arrest, which were not destroyed pursuant to FCA §354.1, shall be sealed. FCA §375.2(1) provides that even after a delinquency adjudication, the court may, upon motion, order that the police and court records be sealed in the interests of justice. The DNA profile of a youth is the same type of identifying information as fingerprints, palm prints and photographs. Indeed, a DNA profile is often referred to as a DNA or genetic "fingerprint."
While the OCME, as a local database, is not a law enforcement agency, it acts as an agent of law enforcement in analyzing crime scene DNA samples routinely provided to it by the police, as was done in the instant case. Significantly, law enforcement can search the OCME database when investigating crimes (see Executive Law §995-c [6]).
Second, the family court has authority over genetic material in that it may authorize the taking of DNA samples from youth charged with delinquent acts. Under FCA §331.3(2)(v), the family court may make an order that the respondent "permit the taking of samples of blood, hair or other materials from his body." These samples will likely be analyzed by the OCME.
Third, pursuant to FCA §331.5(1), the family court may issue an order "limiting, conditioning, delaying or regulating discovery for good cause." Thus, the family court may issue an order limiting the use of genetic marker material (cf. People v Flores, 61 Misc 3d1219 [A] [Crim Ct, NY County 2018]; People v Halle, 57 Misc 3d 335, 342 [Sup Ct, Kings County 2017] [protective order issued limiting use of DNA material obtained during investigative portion of case]).
Fourth, Executive Law §995-c [9][b] gives the discretion to the trial level court to consider an application to expunge DNA records that were obtained during the criminal investigation (see Samy F., 53 ["the defendant has the right to apply to the court in which the original judgment of conviction was granted for the discretionary expungement of any additional related DNA records, including samples and analyses"]). Since the family court is the trial level court in all delinquency matters, any applications for expungement are properly brought before the family court.
Finally, if expungement is not permitted by order of the family court, the court knows of no other way that this data may be expunged. Significantly, the presentment agency offered no alternative method of expungement.
The court rejects presentment agency's argument that the result in this case should be different because the DNA sample taken from the soda can is a "pseudo exemplar," rather than a "true exemplar." The court does not view this as a critical distinction. The exemplar in the instant case, although a "pseudo exemplar," was found suitable for upload into the OCME database and it was entered into that database with respondent's name and other identifying information. Respondent's DNA profile can be compared with crime scene samples from other investigations and if a match is found, the match may be confirmed by obtaining a true exemplar through consent or court order. Thus, respondent is equally (or almost equally) disadvantaged by having a pseudo exemplar in the OCME database as he would be for having a true exemplar in the database.
Having determined that this court, as the trial court, has discretion to order that respondent's DNA profile be expunged, this court is now exercising that discretion and ordering its expungement. Indeed, the circumstances surrounding the instant case make the argument for expungement particularly compelling.
On January 29, 2020, respondent was granted an ACD and on July 28, 2020, the matter was dismissed in the furtherance of justice. While not minimizing the seriousness of the offense, respondent was only fourteen years old at the time of the incident and this is respondent's only brush with the law. Moreover, respondent plead to misdemeanors, not felonies. Notably, during the fourteen-month period that respondent has been before the court, he has kept his curfew, attended school regularly, and has obeyed all the rules at home. Furthermore, and probably most important, he has accepted full responsibility for his actions and has faithfully attended and successfully completed the Mustard Seed program, which provides counseling for young people charged with sexual offenses. The licensed social worker from the Mustard Seed program who prepared the court report opined that respondent was at low risk for relapse.
Additionally, the DNA sample in the instant case was taken surreptitiously from a soda can given to respondent by the police, without respondent's consent or a court order. Remarkably, the testing of the DNA material by the OCME and the uploading of respondent's DNA profile into the OCME database was done after the court issued a consent order on August 5, 2019, directing that respondent's DNA not be tested and if testing had already been performed, any results not be uploaded into a database. The presentment agency failed to convey the court's order to the OCME, despite having regular communication with the OCME and having left a message with the OCME criminologist the day after the court issued its order. The presentment agency provided no satisfactory explanation for its failure to do so.
The court directs that the OCME expunge respondent's DNA profile from its database and delete respondent's name as the suspect on the report regarding the DNA mixture on the stain on complainant's shirt. Furthermore, the court directs that any remaining DNA material belonging to respondent be destroyed. Within thirty days from the date of this order, the presentment agency is to submit a certification from the OCME that respondent's DNA profile is no longer in its database and that respondent's name is no longer associated with any reports in its records or database. The presentment agency is also to provide a certification from the OCME and the NYPD that all of respondent's DNA material in their possession have been destroyed.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ENTER: Dated: New York, NY August 26, 2020 __________ CAROL GOLDSTEIN, FCJ