The recent ruling by the United States Supreme Court in a case from Maryland that a person's DNA may be taken when they are arrested, and prior to a conviction, supports the position of state's having the say about when DNA may be collected. In New York, the law states DNA samples may be taken only upon conviction of certain crimes.
According to the state's Department of Criminal Justice Services website, the state's DNA Databank began limited operations in 1996 with DNA samples being collected from individuals convicted of homicide and certain sex-related offenses. The law has been amended five times to expand the number of crimes requiring DNA samples upon conviction, the latest last August. Offenses now include all felonies in any state law and Penal Law misdemeanors and applies to any defendant convicted on or after Aug. 1, 2012.
The law does not apply to children involved in Family Court matters, to youthful offenders or to first-time offenders convicted of a specific subsection of fifth-degree marijuana possession in Penal Law Section 221.10, subsection 1.
Dunkirk Police Chief David Ortolano said the department has been taking samples from people convicted of certain crimes "for quite some time."
"That's one of the breaks in the case that reopened the Dunkirk Radiator homicide from 1992, way, way back, with Kevin Burlingame. He was arrested on a separate charge, he opened up a fire hydrant in Cassadaga and drained the water. He was convicted of the crime and once they took his DNA and entered it into the system it registered a hit on the evidence we had put in in 1992," Ortolano explained.
"It is a valuable tool, there's no question about it. I'm glad the Supreme Court has upheld that as far as having the established DNA data bank and being able to cross reference for crimes that have been previously committed. To be able to come up with that, for me from a law enforcement standpoint, I think that's a good thing."
Ortolano agreed with those Justices whose opinion was that the use of DNA was just an expansion of fingerprinting.
"It's basically the same thing as a fingerprinting when you're arrested for a crime and we fingerprint you. Your fingerprints go in the data bank and then let's say there was a burglary somewhere a few years before and we had a fingerprint that we lifted and we put it in the data bank, it will match. Basically, this is the same thing with the DNA; it basically works along the same lines as fingerprinting," he explained. "The swabs that we take or anything that we take for evidence is sent to the state lab and they're all entered into a data bank."
Depending on where an individual is when a judge issues an order to take DNA generally determines which agency in the system will take the DNA sample.
Fredonia Police Chief Brad Meyers said his department has done six to a dozen swabs in the past six months.
"I would anticipate that that number is going to increase because they've expanded," he added. "So many crimes are now DNA collectible upon conviction."
Although all DNA samples collected may not be useable due to contamination of some sort or other, the DNA samples may lead to more crimes being solved, according to Meyers.
"We've had a couple of crime scenes where the individual has left DNA behind, maybe they broke a window and cut their hand. We've collected that DNA, sent it in, and while it came back as no hit at this time it's in the system," he explained. "If at some later date that individual gets arrested, gets convicted of an offense that requires DNA collection, then we'll get a notification that we've now identified that to 'Joe Smith.' We can then pick up that case and move forward."
A 29-year veteran of the Dunkirk Police Department, Ortolano was asked about the change in technology.
"When I started we ink-rolled people on fingerprints. We rolled fingerprints and we had to mail them into the DCJS. Now, we have this livescan machine," he replied. ""DNA? Nobody ever heard of DNA back then. It's amazing with the technology to be able to pinpoint, especially with DNA. When we get positive hits back they'll tell us the chances of this being positive. ... They can pin it right down. ... The chances of this not being you are one in 3 million."
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