DNA Memorandum

The Office of Chief Medical Examiner (OCME) created a local DNA index under ambiguous
law. OCME then uses its local index to permanently store DNA, even when its owner has never
been convicted, and perpetually compare their DNA against current investigations in violation of
State Executive Law (Article 49-B, Section 995 – 995F) and State Regulations (Title 9, Subtitle
U, Chapter VIII). OCME also collects and stores DNA that has been collected by the NYPD
using surreptitious practices. The database operates virtually unchecked, and despite promises
from the City to reduce its size, the database has continued to grow.
The result is the perpetual criminalization of thousands of New Yorkers and disproportionate
impact on Black and brown who are affected by institutional racism in arrest rates.1

I. State Executive Law (Article 49-B, Section 995 – 995F) and State Regulations (Title
9, Subtitle U, Chapter VIII) were established to prevent anti-democratic tools.

In 1994, under the Federal DNA Identification Act, the Director of the Federal Bureau of
Investigation (FBI) established the DNA Index System (CODIS), a national identification index
of DNA records. (42 USC § 141312). To participate in CODIS, each state or local forensic DNA
laboratory must sign a Memorandum of Understanding with the FBI Laboratory, agreeing to
abide by the DNA Identification ACT requirements. In New York State, Article 49-B of the
Executive Law, entitled Commission on Forensic Science and Establishment of DNA
Identification Index, 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]). The statute was the impetus for the
creation of the New York State DNA Databank in 1996.
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 CFS creates policies addressing
methodologies to compile the state DNA index, procedures to ensure the accuracy of DNA
records, authorizes, and revokes accreditation, and provides a mechanism to have DNA profiles
expunged from DNA indexes. Id. The legislature further provides that the committee will ensure
adequate security features and periodic audits in compliance with Executive Law and the Federal
DNA Identification Act. (Executive Law § 995–b[9]). The commission is given the authority to
revoke, suspend, and limit a laboratory’s accreditation if the laboratory or any of its employees,
among other things, show a “pattern of excessive errors in the performance of forensic laboratory
examination procedures,” or violate “in a material respect, any provision of this article or the
rules and regulations promulgated pursuant thereto.” Id. To remain accredited, labs must undergo
routine proficiency testing, adhere to quality control standards, and annually certify to the
commission that they continue to comply with accreditation requirements. Id.
Executive Law § 995 was the impetus for the creation of the New York State DNA Databank
in 1996. The Office of Forensic Services “administratively manages the New York State’s DNA
Databank and administers rigorous verification procedures to ensure only designated-offender

1
https://www.criminaljustice.ny.gov/crimnet/ojsa/adult-arrest-demographics/2022/index.html, New York City, Adult Arrest
Demographics by County and Region: 2022
DNA samples that meet eligibility criteria under state law, regulation and/or FBI guidelines are
maintained in the state’s Databank.”2 The Office of Forensic Services further “administers the
state’s DNA Databank in cooperation with the New York State Police Crime Laboratory;
Provides staff support to the state Commission on Forensic Science and its DNA Subcommittee;
Monitors public forensic laboratory compliance with state accreditation standards; Facilitates
technical training and other activities that enhance the efficiency, effectiveness and reliability of
forensic testing services in the state; Promotes coordination and information sharing among the
public laboratories; and Works with public forensic laboratories, law enforcement and other
criminal justice agencies to improve the quality and delivery of forensic services.” 3
The commission on forensic science’s policy are codified in the New York Codes, Rules, and
Regulations. (Title 9, Subtitle U, Chapter VIII §§§§ 6190-3). The regulations provide
accreditation requirements, notification to designated offenders, policy for the establishment and
operation of a DNA identification index, and use, dissemination, access, and expungement of
DNA samples. Id. Under State law, all laboratories must comply with these regulations.

II. OCME’s local laboratory and index operate unlawfully.

a. OCME’s LDIS was created and operates under ambiguous law, and pending
legislation would clarify that LDIS is not authorized by law.

While units of local government are authorized to maintain their own local DNA
identification indexes under Executive Law, the statute does not prescribe any requirements to
those units of local governments operating local DNA identification indexes. Under Executive
Law § 995 (2), “the term ‘forensic DNA laboratory’ shall mean any forensic 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.” The statutory use of ‘unit of local government’ implies that law
makers intended entities like, OCME, to create their own laboratories to perform forensic DNA
testing. Executive Law § 995-b proceeds to describe the requirements set forth by legislature for
the state DNA identification index to operate, but the statute never outlines requirements for
local DNA identification indexes. Under Executive Law § 995-e, “this article shall not apply to a
forensic DNA laboratory operated by any agency of the federal government, or to any forensic
DNA test performed by any such federal laboratory” but does not expressly or necessarily
exclude its applicability to units of local government.
Under the New York Codes, Rules and Regulations § 6192.1(r), Policy for Establishment
and Operation of a DNA Identification Index, “the term LDIS refers to that level of the CODIS
program in which a public DNA laboratory maintains its DNA records for searching and
uploading to higher level indices such as SDIS and NDIS.” (9 NY ADC 6192.3). The statute
seemingly closes a gap left open by Executive Law – LDIS is only authorized to maintain DNA
records to search and upload to higher level indices. The NYCRR otherwise provides little
guidance for the operation of local DNA identification indexes.
Despite operating under ambiguous law, OCME also maintains its own internal
procedures that are untethered to any state or local regulations, 4 and pending legislation aims to

2
https://www.criminaljustice.ny.gov/forensic/dnadatabank.htm
3
https://www.criminaljustice.ny.gov/forensic/aboutofs.htm
4
http://www.nycourts.gov/reporter/webdocs/OCMETechManuals.PDF
resolve this inconsistency.5 Legislative bill A.1877/S.998 would clarify that only a single DNA
index is authorized by law – expressly prohibiting any municipality from establishing or
maintaining a municipal DNA identification index. The bill also would clarify that no one other
than designated offenders are eligible for permanent DNA indexing. It would further add
pathways for DNA expungement for non-convicted people whose DNA is currently stored, and
broaden the jurisdiction over expungement to Family Court, for juveniles who had DNA taken
by police. The bill is supported by the New York City Bar Association, Downstate Coalition for
Crime Victims, Innocence Project and even the OCME lab workers and creator of the database,
himself. However, until legislation resolves the issue, and given the ambiguity of the law,
OMCE should not operate LDIS.

b. Courts agree that Executive Law applies to the OCME LDIS.

Courts overwhelmingly support the conclusion that New York City OCME’s responsibilities
are subject to the State Executive Law, Article 49-B. In People v. White (2018), the Bronx
County Supreme Court held that Executive Law appears to acknowledge the existence of local
DNA databases. (People v White, 60 Misc. 3d 304, citing § 995–c[9]). The court further held
that there is “nothing unlawful in OCME’s development and maintenance of its local DNA
databank, and its inclusion in that database of DNA records of persons not yet convicted of a
crime.” (Id. at 309).
In Samy F. v. Fabrizio (2019), the First Department held that Executive Law is purposely
broad to encompass all forensic laboratories including those at the local level. (Samy F. v.
Fabrizio, 176 A.D.3d 44). Furthermore, the court holds that OCME’s responsibilities fall
squarely within the “Executive Law umbrella” and, therefore, “must yield to that of the State in
regulating tat field.” (Id. at 52). Lastly, the court holds that if the statute intended to exclude local
identification indices, then the law would expressly provide that “it shall not apply” the same
way it does to federally operated DNA laboratories. (Id. at 51).
In People v. Belliard (2020), the New York County Supreme Court cited the First
Department’s decision in Samy F. v. Fabrizio (2019) to refute the defendant’s argument that the
LDIS is not authorized by Executive Law §§ 995 et seq. (People v. Belliard, 70 Misc. 3d 965,
citing Samy F. v. Fabrizio, 176 A.D.3d 44). In fact, the First Department held that the Executive
Law applied to OCME’s LDIS, and thus, applies provisions of Executive Law §§ 995 et seq. to
OCME’s LDIS. (Id. at 969). In People v. Lora (2020), the New York County Supreme Court also
agrees with Samy F. that Executive Law applies to the OCME, however, the court holds that it is
for the limited purposes of testing procedures and regulation of those procedures. (People v.
Lora, 72 Misc. 3d 1223(A), citing Samy F. v. Fabrizio, 176 A.D.3d 44). Lastly, in the Matter of
Francis O. (2022), the First Department relies on the decision in Samy F. to apply Executive Law
relating to OCME’s testing of a DNA sample pursuant to Executive Law § 995–c(9)(b). (Matter
of Francis O., 170 N.Y.S.3d 71, citing Samy F. v. Fabrizio, 176 A.D.3d 44).

c. OCME operates its LDIS unlawfully in violation of Executive Law.

Courts agree that OCME’s LDIS is subject to Executive Law, yet OCME still maintains and
operates its own DNA identification index outside the scope of binding law. In 2015, the New
York Court of Appeals held that “when the State has created a comprehensive and detailed
5
NY State Senate Bill 2023-S998 (nysenate.gov)
regulatory scheme with regard to the subject matter that the local law attempts to regulate, the
local interest must yield to that of the State in regulating that field.” ( People v. Diack, 24 N.Y.3d
674). In addition, in Stevens v. New York state Division of Criminal Justice Services (DCJS)
(2019), the First Department held that an agency exceeded its delegated power in promulgating
regulations to expand the use of state DNA database for familial DNA searches in criminal
investigations. (Stevens v. New York State Division of Criminal Justice Services, 206 A.D.3d
88). Applied here, OCME must fall within the scope of applicable State law, including State
Executive Law (Article 49-B, Section 995 – 995F) and State Regulations (Title 9, Subtitle U,
Chapter VIII).
Under Executive Law, a DNA identification index should only include samples of
“designated offenders” who are individuals that have been convicted and sentenced to crime, yet
LDIS has created a “Suspect Index”, which illegally maintains DNA samples of individuals who
have never been convicted of a crime. (Executive Law § 995-c[3]). Executive Law further states
that upon reversal or vacatur of a conviction, the DNA record may be expunged from the state
DNA identification index upon application to the court. (Executive Law § 995-c[9]). The OCME
index is comprised almost entirely of DNA samples of individual who have not been convicted,
and sometimes not even charged.6 The index currently includes juveniles, 7 individuals who have
been acquitted or had their cases dismissed, 8 and individuals whose DNA is surreptitiously
collected by NYPD during interrogation 9 – more than 30,000 individuals in total. 10 The DNA
stored consists of DNA taken from individuals without court order or individual consent. Still,
OCME stores and perpetually compares the DNA collected.
State law does not authorize local laboratories to perform “indexing” functions that allow for
virtual genetic lineups in perpetuity. (People v. K.M., 54 Misc.3d 825, citing Exec. L. §§ 995-
c[9][a], 995-c[9][b]). In People v. K.M. (2016), the court held that while the legislature may have
never contemplated the creation of a local DNA identification index, OCME’s LDIS contravenes
the statutory intent of article 49-B of the Executive Law. (Id. at 831). The court proceeds to
argue that “the widespread availability of a defendant’s DNA profile for matching would run
afoul of Executive Law § 995-c, which allows inclusion of a DNA profile into a wide-ranging
database only after conviction.” (Id. at 830). Furthermore, Executive Law expressly denies
uploading a “presumptively innocent” individual’s DNA into a database. (Id. at 831, citing
Executive Law § 995-c). In other words, a local laboratory may not compare a suspect in a
particular case to all unsolved crimes in perpetuity, but still, OCME performs outside of the
scope of state law.

III. The NYPD violates the rights of individuals through a surreptitious practice of DNA
collection, which is later uploaded into LDIS.

a. NYPD are acting beyond the scope of legislation when they collect DNA samples
without the consent or knowledge of the individuals.

6
How Juveniles Get Caught Up In The NYPD's Vast DNA Dragnet - Gothamist
7
Id.
8
Id.
9
NYPD detectives demanded DNA swabs from hundreds of black and Latino men while hunting killer of Howard Beach jogger
– New York Daily News (nydailynews.com)
10
Local DNA Index System (LDIS) Statistics (nyc.gov)
In New York State, a DNA sample may not be collected from a person without that person’s
consent, unless authorized by a search warrant or judicial order. 11 Under some circumstances, a
judicial order should be issued only upon notice and after an opportunity for a hearing at which
the person has a right to counsel, including the right to appointed counsel if the person is
indigent.12 If the sample belongs to a person suspected of committing a crime, an order must
demonstrate – “(A) probable cause that a serious crime has been committed, and (B) if the
sample is to be collected from a person is: (1) a sample collected by a physically noninvasive
means, reasonable suspicion that the person committed the crime charged; and (2) a sample
collected by physically invasive means, probable cause that the person committed the crime
charged; and (C) that the sample will assist in determining whether the person committed the
crime.”13 However, the NYPD regularly circumvents these justice system requirements by
obtaining DNA evidence through abandonment samples, and if a full DNA sample is extracted, it
is then uploaded and stored in OCME, where the sample can be illegally compared in perpetuity.
Thus, detectives are left with the discretion to obtain DNA, without a warrant or court order,
from any person suspected of commenting a crime. 14 Even when someone explicitly refuses to
consent to providing a DNA sample, NYPD detectives circumvent their refusal by simply taking
the person’s DNA without their knowledge. For example, NYPD will offer a suspect a cup of
water or cigarette, and when the item is discarded, NYPD will collect and submit the item for
DNA testing. NYPD detectives even circumvent refusals to take the DNA of children. OCME
officials are fully aware of NYPD’s surreptitious practices, and still, maintains a partnership to
collect and perpetually store and compare arrestees’ DNA. Even when an individual is acquitted
or their charges are dismissed, these samples remain in OCME’s index in violation of the Fourth
Amendment and Article 49-B, which precludes localities from maintaining a DNA index
comprised of arrestees and mere suspects, as opposed to those convicted of felonies or
misdemeanors.
Courts hold undisputed that the collection and subsequent analysis of a DNA sample is a
“search and seizure” under the Fourth Amendment. In Maryland v. King (2013), the Court held
that a cheek swab of an arrestee’s DNA is comparable to fingerprinting, and therefore, a legal
police booking procedure that is reasonable under the Fourth Amendment. 15 DNA must be
collected only upon court order under CPL §245.40 once a prosecutor has established (1)
probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant
material evidence will be found, and (3) the method used to secure it is safe and reliable. OCME
policy and procedures not only implicate Article 49-B of the Executive Law, but also the Fourth
Amendment “search and seizure” clause. Still, OCME populates their index with the secretly
obtain DNA from discarded items, without the knowledge or consent of an arrestee. The sample
is then placed in the unregulated LDIS index called the “Suspect Index,” where DNA can then be
perpetually stored and compared.
The NYPD’s surreptitious collection of DNA also implicates Civil Rights Law 79-L’s
privacy protections, which prohibit genetic testing, such as DNA profile analysis, without the
person’s written, informed consent, unless permitted by court order or under state law provisions
authorizing such testing for people convicted of crimes. (New York Consolidated Laws, Civil
11
ABA Standards for Criminal Justice: DNA Evidence, 3d ed. (2007).
12
Id.
13
Id.
14
Shakira Leslie and Shamill Burgos v. City of New York, et.al., Case 1:22-cv-02305 (United States District Court Southern
District Of New York, 2022) at *1.
15
Id., 569 U.S. at 466.
Rights Law - CVR § 79-l). The Legislature presumably included these limited exceptions to the
civil rights law to balance the rights of the individual with the legitimate interests of our criminal
justice system.16

b. OCME knowingly stores DNA that has been obtained through the NYPD
surreptitious practice.

In People v. Halle (2017), the defendants sought a protective order of their DNA evidence, to
prevent comparison to profiles in LDIS.17 Although the court acknowledged that the Executive
Law did not “expressly prohibit the maintenance of a local database,” it stated that “only
‘forensic’ profiles—those developed from crime scene evidence—may be uploaded for
comparison to ‘convicted offender’ profiles in the state and national databases. 18 The court
continued, “in this court's view, however, it is not consistent with the provisions of Executive
Law article 49-B, which govern the use and dissemination of DNA profiles.” 19 Thus, the Court
concluded that there is “no authority under New York State Law for uploading a presumptively
innocent defendant’s DNA profile into a database, albeit only a local one,” and granted the
protective order.20
If OCME legally operates within the bounds of Article 49-B of the Executive Law, then
LDIS should only contain DNA profiles from crime scenes, missing persons, relatives of missing
persons, and designated offenders (these are also uploaded into SDIS and then NDIS) on a
perpetual basis. If the NYPD has a suspect in a specific case, they must request a court order
before collecting the DNA and uploading it to be compared to the respective crime scene DNA.
If no match is found, the DNA should be eradicated from the system so that it is not compared in
perpetuity. However, OCME permanently stores the DNA of non-designated offenders, whose
DNA may have been surreptitiously collected by the NYPD without the consent, or sometimes
even knowledge, of the suspect. And where consent is not present, a DNA sample must be
authorized by a search warrant or by a judicial order.
Some judges agree that, given the broad ruling pre-conviction DNA cannot be stored in
the local DNA index.21 Other judges, however, find that because Samy F. noted that DNA may
be “stored” in a local database and because the case is not squarely on point to all DNA
indexing, pre-conviction indexing is allowed. 22 Judges taking this position note that, “until [there
is a] legislative amendment, there will continue to be inconsistency in these rulings.” 23
In People v. Belliard (2020), the court problematically found that CPL 245 contains no
language limiting prosecutors’ use of evidence once they have established (1) probable cause to
believe the suspect has committed the crime, (2) a clear indication that relevant material
evidence will be found, and (3) the method used to secure it is safe and reliable. 24 The court
therefore reasoned that where a defendant submitted a motion for a protective order to prohibit
the indexing of his DNA sample to the OCME LDIS that, “applying the Executive Law,” there
16
Leslie v. City of New York, 2022 WL 17540459 (S.D.N.Y.) Civil Rights Law 79-L.
17
People v. Halle, 57 Misc.3d 335 (Sup. Ct. Kings Co. 2017).
18
Id. at 345.
19
Id.
20
Id. at 348.
21
People v. Matthew Nunez, Ind. No. 181/2019 (Sup. Ct. Bronx Co. Aug. 5, 2019)
22
Samy F., 176 A.D.3d at 51. [See, e.g., People v. DaJohn Gamble, Ind. No. 1256/18 (Sup. Ct .Bronx Co. Oct. 3, 2019)
23
Id., at * 3, quoting People v. Flores, 61 Misc. 3d 1219(A) (Crim. Ct. Bronx Co. 2018).
24
Id., 70 Misc. 3d 967 [citing Matter of Abe A., 56 N.Y.2d 288 (1982)].
was “no impediment to the inclusion of a voluntary or court-ordered DNA profile in OCME’s
LDIS.25 The court first relied on the flawed reasoning that the defendant is a designated offender.
As a designated offender, the defendant’s DNA would be stored and indexed upon conviction.
Though the case is still pending litigation, DNA should not be stored indefinitely, and compared
against other DNA in the index in perpetuity, in the meantime. Lastly, the court relied on a case
in which a defendant’s DNA sample had already been obtained. Here, the defendant still retained
an expectation of privacy. Thus, the finding that law does not limit prosecutors’ use of a DNA
sample is flawed and unsubstantiated.
OCME may not legally store the DNA of a designated offender, perennially. Under
Article 49-B of the Executive Law (Exec. L. §995, et seq.), a “designated offender” is a person
convicted of a New York penal law misdemeanor, or any felony offense (with few exceptions). 26
However, OCME maintains the DNA of suspects who were ultimately acquitted or given non-
criminal dispositions, despite Executive Law only permitting the permanent storage of DNA of
individuals who have been convicted of a crime. The Suspect Index, thus, operates like a genetic
lineup that continuously compares the DNA profiles of thousands of New Yorkers, effectively
making everyone with a profile in LDIS a suspect in any unsolved case. State law does not,
however, authorize these laboratories to perform “indexing” functions that allow for virtual
genetic lineups in perpetuity.27 In other words, while a local laboratory may compare a putative
perpetrator in a specific case to evidence recovered in that case, it may not compare that same
suspect to all unsolved crimes for all time.
Similarly, in People v. K.M. (2016), Judge Newbauer noted the plain language of §995–d
“prohibits the disclosure or redisclosure of DNA information obtained as a result of DNA testing
performed on any person to any person or public agency, except to the prosecution, defense and
court in a criminal proceeding.28 Judge Newbauer asserted DNA samples may be disclosed in a
criminal proceeding to the court, the prosecution, and the defense pursuant to a court order, but
OCME continues to redisclose those DNA samples in violation of an individual’s confidentiality
rights.29 Furthermore, after an arrestee’s DNA profile has been uploaded in the “linkage
database,” OCME employee will have unlimited and indefinite access to that DNA, even if they
are not working on that individual’s criminal proceeding. 30 OCME will continue to operate
illegally as long as it is unregulated by any independent body.31
Although NYPD has recently begun to audit their database for DNA samples of non-
convicted individuals, OCME contains no safeguards to prevent the indefinite retention of an
individual’s DNA profile.32 The OCME’s current practice of taking DNA samples and indexing
them operates with no legal oversight or important due process protections. 33 The New York
State Commission on Forensic Science was established under Article 49-B to develop minimum
standards for all forensic laboratories in New York, but the Commission currently has no
25
Id. at 970.
26
Exec. L. § 995(7).
27
People v. K.M., 54 Misc.3d 825 (Sup. Ct. Bronx Co. 2016); compare Exec. L. 995-c(9)(a) (provisions for expungement from
the State DNA index) with Exec. L. 995-c(9)(b) (provisions for expungement from stored – but not indexed – DNA in local
laboratories).
28
Id., 54 Misc.3d at 829
29
Id.
30
Id.
31
Shakira Leslie and Shamill Burgos v. City of New York, et.al., Case 1:22-cv-02305 (United States District Court Southern
District Of New York, 2022) at *4.
32
Id. at *35.
33
Id. at *35.
authority over OCME’s creation and operation of the Suspect Index. Thus, unlike New York’s
SDIS, the Suspect Index operates without any independent oversight.34
Still, prosecutors often argue to deny protective orders, even when an individual has not
been convicted. By denying a protective order to the defendant awaiting trial, prosecutors
essentially support the operation of a shadow state DNA index that operates in violation of
Executive Law §995. Such widespread availability of a defendant’s DNA profile for matching
would run afoul of Executive Law 995-c, which allows inclusion of a DNA profile into a wide-
ranging database only after conviction. For this reason, although the Legislature indeed may
never have contemplated the establishment of a local database, prosecutors should not support
OCME’s creation of their LDIS database. 35
Due to the history of institutional racism in arrest rates in New York City, Black and
Latinx people are vastly impacted by the City’s DNA indexing practice. 36 Even their families
can be ensnared in future investigations.37 The City’s secret DNA collection practice also targets
children as young as 12, who can never be included in a DNA database authorized under state
law, and even includes DNA from children that was secretly taken after parents refused to
consent to giving the DNA.38 Thus, thousands of New Yorkers, many of whom have never been
convicted of any crime, are illegally in the City’s rogue DNA database, which treats people as
suspects in every crime involving DNA.39 According to Legal Aid’s Class Action, “this database
operates virtually unchecked, and despite promises from the City to reduce its size, the database
has continued to grow at the expense of communities of color… We simply cannot trust the
NYPD to police itself, and we look forward to judicial review of these destructive practices to
bring our clients the justice they deserve.”
In one emblematic case, a suspect was asked to give a DNA sample, based almost
entirely on a police officer’s “hunch.” The suspect was charged with murder after his profile
matched DNA found on the victim’s body and cellphone, but in the meantime, over 360 black
men who had been previously arrested or questioned in parts of Queens and Brooklyn were
implicated in this process. 40 Though the DNA of those men did not match evidence found on the
crime scene, it was still entered into OCME’s suspect index, where it will be stored and
compared indefinitely against evidence found at other crime scenes throughout the city. 41 In
another case, NYPD detectives questioning a 12-year old boy facing a felony charge offered him
a soda, and tested the straw for DNA when the boy left.42 Although the DNA sample did not
34
Id. at *35.
35
K.M., 54 Misc.3d at 831 [Judge Newbauwer disagreeing the court’s conclusion in People v. Debraux, 50 Misc.3d 247 (2015)].
36
Legal Aid Society, LAS Sues t End City’s Illegal DNA Collection and Storage Practices, The Legal Aid Society,
https://legalaidnyc.org/news/lawsuit-end-nyc-illegal-dna-collection-storage-practices/ (2022).
37
Id.
38
Jan Ransom and Ashley Southall, N.Y.P.D. Detectives Gave a Boy, 12, a Soda. He Landed in a DNA Database, New York
Times, https://www.nytimes.com/2019/08/15/nyregion/nypd-dna-database.html (2019).
39
M. of A. Zinerman and Sen. Hoylman, Report On Legislation By The Criminal Courts Committee, The Criminal Justice
Operations Committee And The Mass Incarceration Task Force,
https://s3.amazonaws.com/documents.nycbar.org/files/2020629-DNAIndexingNYC.pdf (2021).
40
Jan Ransom and Ashley Southall, N.Y.P.D. Detectives Gave a Boy, 12, a Soda. He Landed in a DNA Database, New York
Times, https://www.nytimes.com/2019/08/15/nyregion/nypd-dna-database.html (2019).
41
In October 2019, OCME maintained a database of approximately 82,473 people (grown by nearly 29 percent since 2017).
About 31,400 of the DNA profiles in the city’s database came from people who were arrested or merely questioned in connection
with a crime, but may not have been convicted, according to the Legal Aid Society. Still, the DNA database, known as the Local
DNA Index System, has grown with the addition of DNA from cigarettes, coffee cups, water bottles and other objects touched by
people during interviews, even if they are never arrested or the charges are later dismissed. Id.
42
Id.
match evidence found at a crime scene, his DNA was entered and stored into the LDIS genetic
database.43 To have it removed, the child’s family had to petition a court and file an appeal, a
44
process that took more than a year.

Beyond the harm of being treated as permanent suspects, the civil rights and individual
privacy of thousands of people of color in NYC are largely implicated by these surreptitious
practices.

* * *
Current NYPD and OCME practices not only implicate the Constitution, and Executive
and Civil Rights Laws, but also have real-life discriminatory impacts on marginalized
communities. In New York City, there are thousands of Black and Latinx individuals, sometimes
minors, whose DNA is taken without their consent through unmonitored, surreptitious practices.
Furthermore, many DNA samples which are at some point uploaded into OCME’s database,
either surreptitiously collected or via court order, are permanently stored and perpetually
compared, despite never having been convicted of a crime. While OCME is mandated to audit
their databases on an annual basis, there is no independent oversight to ensure their compliance.
(Codes, Rules and Regulations of the State of New York, Title 9, Subtitle U, Chapter VIII, Part
6192, Section 6).
While pending legislation will ensure that the DNA of non-convicted individuals is not
permanently stored and perpetually compared in local DNA databases, the issue still implicates a
failure of democracy. The criminal justice system still utilizes tools and resources that
consistently place excessive punishments on many Black and Latinx people simply for the color
of their skin.

43
Id.
44
Id.