New York Could Become First State to Collect DNA on All Penal Crimes
By Michael Virtanen
NEW YORK — The addition of petit larceny to a list of crimes requiring DNA samples from convicted offenders has helped solve 51 murders, 222 sexual assaults, 117 robberies and 407 burglaries over the past 5 1/2 years, New York authorities say.
Now the Cuomo administration wants to expand the statewide DNA databank to include all misdemeanor convictions under the penal code, plus all felony convictions under other statutes such as traffic and business laws. That would mean DNA samples for DWI convictions and securities fraud, for example.
Gov. Andrew Cuomo last week called for putting New York “on the cutting edge of criminal justice” by becoming the first state to collect DNA on all crimes under the state’s penal laws, noting that since 1996 the database provided leads to 2,700 convictions while helping free 27 people who were wrongly accused.
Brooklyn state Assemblyman Joseph Lentol is the bill’s sponsor and Codes Committee chairman. He said, “There’s very little in any DNA legislation to protect the innocent substantively because people wrongly convicted don’t have equal access to the DNA like the prosecution does.”
He said the bill would protect the public. “If somebody is wrongfully convicted, you don’t have the real perpetrator, the real person behind bars,” he said.
The databank currently has genetic profiles from more than 386,000 criminals convicted of penal law felonies and 36 misdemeanors, plus samples from nearly 38,000 crime scenes. It links to the FBI’s national system with more than 10 million offender profiles and some 400,000 samples of crime scene material.
“We are missing an important opportunity to prevent needless suffering of crime victims,” Cuomo said. “We are also failing to use the most powerful tool we have to exonerate the innocent.”
Legislation to expand the databank passed both houses of the Legislature last year, but it died when lawmakers failed to reconcile the differences.
The expansion would not apply to the lowest-level violations like simple trespassing, loitering, disorderly conduct or privately possessing a single marijuana cigarette.
The Assembly bill had added provisions that would have required better access to DNA evidence for defense lawyers; prohibited other DNA identification indexes; increased the penalty for tampering or misusing DNA samples; and required police to get written consent before collecting a voluntary sample from someone for an investigation. It would require a state commission to review and report on confidentiality safeguards.
“Last year, when the bills crossed, we didn’t have the governor’s attention because of other matters like the $10 billion deficit,” Lentol said. “I hope that this year we will have the governor’s attention and help in passing the bill. But I’d like to see it done the right way.”
The DNA database began in 1996 with the genetic material from convicted killers and sex predators. It has been expanded three times, in 2006 adding all remaining penal law felonies and three dozen misdemeanors.
Sen. Stephen Saland, a Poughkeepsie Republican and chairman of the Senate Codes Committee, introduced a bill to expand DNA testing to those convicted of any felony and any penal law misdemeanor, which he plans to re-introduce shortly. He said he doesn’t want to embrace any ancillary issues but hasn’t yet seen the details of Cuomo’s proposal.
“DNA is a sword that cuts both ways,” he said, helping both to prosecute criminals and exonerate the innocent.
The state District Attorneys Association and the victim assistance organization Safe Horizon say Cuomo’s proposal would help convict the guilty and prevent future crimes.
But Robert Perry, legislative director of the New York Civil Liberties Union, said unanswered questions remain regarding testing accuracy and sample contamination, the potential for fraud and abuse by authorities of supposedly incontrovertible evidence and the “fundamental fairness” of providing the accused with equal access to DNA information to try to establish innocence.
“In light of the scale of the increase in the number of samples that will be collected and archived in the databank, there must be an equally robust enhancement of oversight and quality assurance procedures,” Perry said.
He noted the 2006 article by University of California law professor William Thompson recounting testing errors documented at DNA labs in that state and in Minnesota, Nevada, North Carolina, Pennsylvania, Texas and Washington, mainly because of inadvertent human errors from cross-contamination or sample mix-ups. Thompson wrote that defense lawyers should fight relentlessly for full disclosure of underlying laboratory records for DNA evidence and for court appointment of an independent expert to review them.
According to the New York Division of Criminal Justice Services, they have never had an incident where their DNA databank was compromised. All profiles are done at the state police laboratory, about 3,000 a month with a capacity for about 10,000, while eight other labs regionally help process crime scene samples.
While Cuomo administration officials were reluctant this week to talk about settling legislative differences, they said statistics make a compelling argument and show how frequently offenders convicted of currently non-DNA qualifying offenses are later charged with violent felonies.