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

ALBANY — New York’s top court is weighing how far criminal investigators can expand the use of DNA searches and where to draw the line between crimefighting and privacy rights.

The issue isn’t whether law enforcement can try to match crime-scene evidence to someone in the databank — they already have that power. Anyone who has been convicted of a felony or misdemeanor has had to submit DNA to the databank.

But imagine your brother’s DNA is in the databank. And imagine during an unrelated crime-scene investigation, police collect DNA that doesn't match him but suggests it could be one of his siblings. Like you. 

That’s the scenario presented in a complaint brought by Terrance Stevens and Benjamin Joseph, two men whose brothers have been convicted in New York State. They claim law enforcement's pursuit of "familial searches" through the state's criminal DNA databank was never authorized by the State Legislature.

The Court of Appeals, the state’s top court, heard arguments in the case this month.

On one side, Stevens and Joseph say state regulations, changed in 2017 to expand DNA searches, subjects them to a “heightened risk of being targeted for investigation solely because they share family genetics with” a convict, a “risk not shared by those New Yorkers who do not have close biological relatives who were convicted of felonies.”

They contend they are injured by the law because of the “heightened risk of police encounters, and the attendant stigma, fear and anxiety that come with that.”

Further, they argue that the state Division of Criminal Justice Services overstepped its authority when it expanded the reach of DNA searches and that only the State Legislature could do so.

On the other side, the Division of Criminal Justice Services and the office of Attorney General Letitia James argue Stevens and Joseph have no legal grounds for suing because neither has been the subject of a police investigation sparked by use of the databank. In legal terms, they’ve suffered no “injury” and lack standing to sue.

Also, the state says the legislature delegated authority to the Division of Criminal Justice Services to manage the databank when it passed a law to create the resource in 1994.

Stevens and Joseph won at the mid-level Appellate Division, which essentially said “familial searches” should be stopped — a ruling that surprised some.

That was a mistake that could have “substantial negative consequences for future cases,” wrote Matthew Grieco, an assistant solicitor general in James’ office, to the Court of Appeals.

Further, Grieco said the risk to people such as Stevens and Joseph is “vanishingly small” — because the state, on average, conducts fewer than 10 familial searches each year.

All the arguments were on display at the Court of Appeals during a 50-minute proceeding — rather long by court standards.

The seven judges tried to pick apart the arguments of both sides.

They expressed skepticism about whether Stevens and Joseph had standing to sue, since neither has been the subject of a criminal DNA search or investigation. Potential fear or anxiety alone do not constitute a legal injury.

“Where else in our jurisprudence is fear and anxiety an injury in fact?” said Judge Madeline Singas, the former Nassau County district attorney. “There’s lots of people who are anxious or fearful about having a police encounter.”  

“Their DNA is not the databank,” said Judge Michael Garcia, the most conservative voice on the bench, said at another point about the plaintiffs.

“But they are able to be targeted,” answered Doran Satanove, lawyer for Stevens and Joseph.

Satanove also argued that the Division of Criminal Justice Services overstepped its authority. He said the use of familial searches was an idea authorized by a Commission on Forensic Science that reports to the Division of Criminal Justice Services and the state. He said this group of “unelected scientists made a host of policy decisions” that should by made only by the State Legislature.

“What is clear is the legislature would have never envisioned this unelected committee of scientists would be making binding recommendations, expanding the use of this databank that bring in [to question] the privacy rights of individuals who have never committed a crime,” Satanove told the judges.

Grieco countered that the DNA Databank Act, which created the law, clearly authorized the commission to designate methodologies for “forensic DNA testing.” Further, he said “familial search” was a methodology and not akin to creating a new class of people who could be searched through the databank.

The Court of Appeals typically takes four to eight weeks to decide a case.

By Yancey Roy

yancey.roy@newsday.com@yanceyroy