54 Misc. 3d 825
N.Y. Sup. Ct.2016Background
- Katina Murray was indicted for second‑degree weapons possession relating to firearms recovered from an apartment; swabs from the firearms were submitted to OCME and produced mixed DNA profiles suitable for comparison.
- The People moved under CPL 240.40(2)(b)(v) for a buccal (saliva) swab to obtain Murray’s DNA for comparison to the firearm-derived profiles; the court found the motion timely and met Matter of Abe A. standards and granted the swab order.
- Murray separately sought a protective order limiting use of her DNA sample: (1) barring comparisons to other cases, (2) prohibiting inclusion in OCME’s local "Linkage" database, (3) restricting use to this case’s forensic biology file, and (4) requiring destruction/expungement if there is no match.
- The court analyzed New York’s Executive Law article 49‑B (state DNA statutory scheme), which conditions upload into the state DNA index on conviction and governs confidentiality and laboratory accreditation.
- OCME operated a local "Linkage" database that permits comparing profiles from pending cases; the court found this practice in tension with the state statutory scheme and concluded that allowing local uploads would effectively create a preempted, shadow index covering a large share of state crime investigations.
- The court granted Murray’s requested protective order: ordering the DNA sample be used only to compare to the firearm profiles in this case and prohibiting addition to OCME’s database pending conviction and sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may compel buccal swab under CPL 240.40 | Swab is lawful; prosecution met timely‑motion and Abe A. standards (probable cause, relevancy, safe method). | Challenged merits partly but did not extensively dispute Abe A. factors; sought delays and omnibus relief. | Granted: court found probable cause, relevance, and safe, reliable method; ordered buccal swab. |
| Whether court should issue protective order limiting DNA use and database upload | People argued OCME practices permit local comparisons and courts have sometimes declined protective orders. | Murray argued state law (Exec. Law art. 49‑B) mandates confidentiality and upload only upon conviction; OCME local uploads violate state scheme and prejudice presumptively innocent defendants. | Granted: court issued protective order restricting use to this case’s firearm comparisons and barring OCME upload pending conviction. |
| Whether OCME local "Linkage" database is consistent with state law | People relied on cases upholding OCME practice or treating it as local administrative function. | Murray argued local upload circumvents Executive Law §995‑c and creates a de facto state index before conviction. | Held against OCME practice: court found local database contravenes state scheme and could not be sanctioned by refusing protective relief. |
| Relevance of U.S. Supreme Court decision in Maryland v. King | People implied constitutional precedents may permit pretrial collection and database inclusion. | Murray emphasized New York statutory framework differs and controls result re: upload/confidentiality. | Maryland v. King did not control: court held King resolves Fourth Amendment question under a statute permitting pretrial upload but does not override NY Executive Law that forbids pre‑conviction index inclusion. |
Key Cases Cited
- Matter of Abe A., 56 N.Y.2d 288 (N.Y. 1982) (established standards for ordering bodily samples: probable cause, relevancy, and safe/reliable method)
- People v. Shields, 155 A.D.2d 978 (App. Div.) (DNA comparisons from physical evidence are relevant and material to identity)
- People v. John, 27 N.Y.3d 294 (N.Y. 2016) (OCME is an accredited forensic DNA laboratory subject to State Commission on Forensic Science oversight)
- Maryland v. King, 569 U.S. 435 (U.S. 2013) (upheld constitutionality of pretrial DNA collection under a state statute permitting database inclusion; does not control where state law forbids pre‑conviction upload)
- People v. King, 232 A.D.2d 111 (App. Div.) (prior decision addressing constitutionality of DNA collection predating Executive Law article 49‑B)