New York State's top court OKs use of familial searches in criminal DNA database

 ALBANY — New York’s top court cleared the way for expanded use of family DNA searches in criminal cases, in a 4-3 ruling handed down Thursday.

The Court of Appeals said a state agency didn’t overstep its authority when it enacted rules to expand the use of the state's criminal DNA databank through "familial" searching. This technique allows law enforcement to determine whether someone who left DNA at a crime scene is likely to be a close relative of someone whose profile is in the state’s criminal DNA databank.

Two men who have brothers in the criminal databank had sued to bar these types of searches, claiming the state Division of Criminal Justice Services implemented them without consent of the State Legislature. 

But the court ruled the legislature had delegated regulatory authority to DCJS in what was called the “Databank Act.”

Notably, Chief Judge Rowan Wilson, one of the court’s most liberal jurists, joined the court’s conservative block to form a majority ruling in the decision.

Wilson, writing for the majority, said DCJS, through its Commission on Forensic Sciences, didn’t overreach when developing regulations guiding and expanding the use of DNA familial searches.

“Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure,” Wilson wrote. “To achieve those ends, it directed the commission to promulgate rules and administer that program …”

Wilson continued: “That the statute does not expressly mention familial searches is not pertinent; the statutory provisions cited above grant the commission the power to determine what constitutes a ‘match’ and to establish rules regarding use, dissemination, and confidentiality of information based on matches of DNA samples submitted by law enforcement.”

The state’s DNA criminal databank has existed for nearly three decades. Anyone convicted of a felony or misdemeanor has had to submit DNA to the databank.

With the advancement of DNA technology, DCJS in 2017 adopted regulations to expand its use to allow kinship searches.

Terrance Stevens and Benjamin Joseph, whose brothers were convicted in New York, filed suit to stop the practice. In one scenario raised by the lawsuit, DNA is found at a crime scene not matching someone in the databank but indicating a close relative who otherwise isn't in the database. 

Stevens and Joseph contended the regulations subject them to a “heightened risk of being targeted for investigation solely because they share family genetics with” a convict. They won at the mid-level Appellate Division, which essentially said “familial searches” should be stopped.

Their attorney didn’t comment immediately Tuesday.

In arguments before the Court of Appeals in September, a state lawyer countered the risk to people like Stevens and Joseph was “vanishingly small” because the state conducts fewer than 10 familial searches a year.

DCJS applauded the ruling. In an email, spokeswoman Janine Kava said: “The state’s familial search regulations provide law enforcement with another tool to solve violent crimes that have gone cold, eliminate individuals from suspicion, exonerate the wrongfully convicted and help provide closure when unidentified human remains are discovered.”

By Yancey Roy

yancey.roy@newsday.com@yanceyroy