Brooklyn Pol Eyes Compromise on DNA Bill

March 15, 2012 Brooklyn Eagle Staff

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NEW YORK (AP) — Compromise legislation to double New York’s DNA database with genetic information from all felony and penal misdemeanor offenders is expected to be approved by the Legislature, according to top lawmakers and the Cuomo administration.

Assemblyman Joseph Lentol, a Brooklyn Democrat who chairs the Codes Committee, said he thinks the deal will happen, though details were being worked out. It would broaden defense access to the database but drop provisions on police interrogations and witness identification, he said.

A senior administration official, who declined to be identified because negotiations were ongoing, said that a broad agreement reached Monday night still needed to be sold to rank-and-file members of the Senate and Assembly.

Sen. Stephen Saland, the Poughkeepsie Republican who sponsored the Senate-passed bill, said Tuesday they have been negotiating and making progress. “In the best of all possible worlds we would hope we would be able to close within the next 24 hours,” he said.

Lentol’s Assembly-backed bill would have also mandated videotaped interrogations and double-blind photo arrays by police. He said it’s possible those measures will be addressed separately, though he doesn’t like that approach. “I’m willing to compromise,” he said.

“I think it’s going to close,” Lentol said. “It’s just the devil’s in the details.”

Early public discussion included the Assembly’s interest in making sure the accused has access to the data during discovery, when parties obtain evidence from each other before the trial.

“We need to see fairness in terms of discovery, in terms of the defendant or a wrongfully convicted person,” said Assembly Speaker Sheldon Silver. “Basically, that’s what we have to have.”

Lentol has pushed for more defense access to DNA data, as well as the police mandates, to help prevent wrongful convictions. The Assembly passed his broader bill last year.

Gov. Andrew Cuomo has endorsed the Republican-controlled Senate’s bill to simply expand the database, but indicated willingness to discuss DNA-related modifications.

Over its 16 years, the database has helped police identify suspects in 12,000 cases, get more than 2,800 convictions and has exonerated 27 people convicted of crimes. Prosecutors now routinely use the information to help solve rapes, murders and even some property crimes by matching offender DNA profiles with blood, semen or other bodily fluids at crime scenes.

Prosecutors want the database expanded, arguing that many small-timers move on to robberies, rapes and murders that could be solved or prevented.

Under current law, the defense has to apply to a judge and show reasonable cause to get access to databank information they believe will exonerate their clients. However, they want that access clarified in the law, noting some judges have been reluctant, especially when prosecutors are opposed.

DNA is collected now from each person convicted of a felony or one of 36 misdemeanors under the penal law. Pending bills would add all remaining penal misdemeanors and non-penal felonies, such as DWI and securities fraud.

The state police lab in Albany has more than 416,000 offender DNA patterns on file. The automated system uploads as many as 4,000 samples a month in a blind process, meaning saliva samples are identified by numbers, not names, and there are no markers for race. They show gender. The 15 numbers measuring genetic patterns are unique to each person, except identical twins.

New York Chief Judge Jonathan Lippman has endorsed giving defendants who plead guilty to serious felonies greater access to genetic evidence from crime scenes, acknowledging there have been some wrongful convictions even then.

The administration official said while post-conviction defense access is part of the broad agreement, an issue remained Tuesday over defense access following a guilty plea.

Legislation to expand the databank passed both houses of the Legislature last year, but it died when lawmakers failed to reconcile the differences. Cuomo has put it on his short list of priorities this year.

The database was established in 1996 and is considered police property. It was expanded four times as specific crimes were added to the list of those requiring DNA samples upon conviction.

The expansion would not apply to the lowest-level violations like simple trespassing, loitering, disorderly conduct or privately possessing a single marijuana cigarette.