Issue: Article 78 by individuals with relatives with DNA profiles in State DNA Databank argued
NYS Commission on Forensic Science lacked the statutory authority to make regulations
surrounding familial DNA searches and violated the separation of powers doctrine under the
State’s Constitution (New York Constitution, article V, § 3).

Whether the Legislature’s grant of rulemaking authority to the Commission was sufficient to
authorize the Commission’s promulgation of the Familial DNA Search Regulations.

DNA Background:

Direct match = alleles in the core loci of an evidence DNA sample match those in a sample
in the Databank.

Partial Match = “near hits”; alleles at the core loci share a high number of matching alleles,
suggesting that the person in the Databank is: (1) a “close blood relative” evidence sample; or
(2) the evidence sample was partially degraded or is a mixture. Unintentional.

Familial DNA search = singling out particular families and actively searching their DNA
profiles; an intentional search for partial matches. DCJS/State lab uses special software to look
for close partial matches and generate a list of candidates based on kinship statistics to establish
potential biologically related individuals. Intentional.

Policy Issues: familial DNA: (1) infringes on citizens’ privacy interests; (2) violates family members’
4th A protections; (3) has a disparate impact on people of color; (4) extends the Databank
beyond convicted offenders; (5) has an alarming rate of false positives, accuracy concerns,
high costs and lacks oversight; (6) few states use it, some prohibit it and the FBI doesn’t use
it. Versus: (1) strong investigative tool.

Statutory Background: 1994 - Legislature enacted the DNA Databank Act (Executive Law § 995 et seq.) which
authorized the creation of (1) the New York State Commission on Forensic Science (§ 995-a
[1]) and the DNA Subcommittee (§ 995-b [13]); and (2) establishment of the DNA
Identification Index (the DNA Databank) (subd [6]).

The Commission was permitted to establish the databank and rules surrounding it (see § 995-
b). Commission created an implementation plan and issued a set of regulations governing the
use of the Databank (9 NYCRR 6192.2), including the definition of a genetic match ( § 6192.1),
policies limiting the disclosure of genetic and identifying information contained in the
Databank (§§ 6192.5-6192.9), and policies authorizing the release of identifying information
to law enforcement ( § 6192.3 [b]-[c], [f]-[g]).

The initial regulations only permitted DCJS to release information contained within the
Databank to law enforcement when a databank search yielded a “direct match.”
2010 -- after four years of deliberation, Commission promulgated a partial match rule but did
not permit familial DNA searches (32 NY Reg 2, 5 [July 21, 2010])

2016 – Queens jogger Karina Vetrano is raped/killed in Howard Beach and DNA is recovered
but does not match anyone in databank. Her family, NYPD and Queens DA urge Committee
to permit familial search. Note: Chanel Lewis was not found via familial DNA.

2017 – based on recommendation of DNA Subcommittee after a series of meetings/public
comment, Commission formally adopted Familial DNA Search (FDS) regs which determined
kinship threshold values for familial searches to return a family match to report to law
enforcement (9 NYCRR 6192.1, 6192.3).

Procedural History:

Sup. Ct. –proper exercise of the Commission’s statutory authority to promulgate the FDS regs

AD1 – Commission exceeded delegated power in promulgating regulations

CoA Standing Issue: majority and dissent agree “injury in fact” and “zone of interests” met.

Majority (Wilson, J., Garcia, Singas and Cannatero; Haligan and Rivera recused): Commission had the
statutory authority to promulgate the FDS Regulations. Databank Act charged Commission with
determining what constitutes a “match” and authorized Commission to promulgate regs that balance
legislative purpose of aiding law enforcement with concerns about misuse/security.

FDS Regulations are a result of permissible administrative rule-making.
Boreali v. Axelrod, 71 N.Y.2d 1 (1987)1 -- leading case used to assess whether an agency is exercising
too much power -- did not apply because this was not an exceedingly broad grant of authority.

Question is solely statutory interpretation: whether the DNA Databank Act authorizes the FDS Regulations.

Duly enacted statutes enjoy a presumption of constitutionality. Here, the Legislature expressly defined
the limited sphere in which the Commission was authorized to promulgate regulations concerning
access to and use of information from the Databank. Regs implement and fully comply with the
statutory mandate.

It does not matter that Databank Act did not expressly mention familial searches because the statute
granted 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.

Dissent: (Lindley, J., Troutman and Lynch)
1 Boreali guidelines: (1) agency did more than balance costs and benefits according to preexisting guidelines, but
instead made value judgments entailing difficult and complex choices between broad policy goals to resolve
social problems; (2) agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its
own comprehensive set of rules without benefit of legislative guidance; (3) the legislature has unsuccessfully
tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the
elected body to resolve; and (4) the agency used special expertise or competence in the field to develop the
challenged regulation.

Legislature did not authorize either the Commission or the DNA Subcommittee to make important
policy-laden decisions of this nature. FDS Regulations are impermissible legislative policy-making.
The Commission’s decision was based on the “binding recommendation” of DNA Subcommittee
pursuant to Executive Law § 995-b (13) (b) to adopt FDS and as to the level of kinship threshold that
should be established (Subcommittee Minutes, 5/17/17) – Wilson says it was not binding.

Dissent claims the majority focuses on whether the Legislature’s grant of authority to the Commission
in the DNA Databank Act is broad enough to include the power to permit familial searching and
ignores other applicable Boreali guidelines which weigh in favor of Petitioners: (1) Commission and
DNA Subcommittee made value judgments on wide spectrum of public policy issues; (2) Legislature
provided no guidance regarding how the Databank should be used except to search for suspects
among designated offenders; (3) Court is reluctant to draw inferences one way or the other from
legislative inaction due to its inherent ambiguity but, Legislature considered bills to allow familial
searching annually from 2014 through 2019 and failed to enact any of them; and (4) Commission
doesn’t have “special expertise or competence in the field” of familial searching or DNA.

Only Legislature could authorize a temporary expansion of the Databank and FDS effectively enlarges
the Databank to include close relatives of criminals whose profiles are already in the DNA database.
Legislature did not enact Databank Act with the intent that the Commission be allowed to determine
in the future how the Databank could be used for as yet unknown investigatory purposes.

CAL Observes: This case is a close call and the case can be made for FDS as being proper
administrative rule-making or improper legislative policy-making. Majority’s rejection of Boreali could
support broader legislative delegation to agencies in other contexts. The unchallenged 2010
passage of partial matching regs seemed key at argument as Petitioner’s counsel conceded when
Wilson asked if the partial matching regs were permitted by the DNA Databank Act. However, the
dissent accurately points out that the fact that no one challenged partial matching regs does not mean
that they were lawfully promulgated and that there are fundamental differences between the two types
of searches.

As a practical matter, FDS had only used 30 times at time of AD1 decision and “matches” were
only disclosed to NYPD in 10 of those cases, with 2 resulting in arrests.

Limits on use of familial searching: under FDS regs, law enforcement officers must first determine
there is not a match or a partial match to an existing sample in the DNA databank, the crime under
investigation must be one of a statutorily enumerated list of crimes or present “a significant public
safety threat”, and show they have conducted “reasonable investigative efforts,” or else that exigent
circumstances exist. There are also regs governing when results can be released and results must be
“for investigatory law enforcement purposes only” and be “treated only as an investigative lead”.
Notably, in the first case involving a person arrested off of familial search, the court rejected
his 4th A challenge finding he lacked standing. People v. Williams, 77 Misc.3d 782, 785 (Sup. Ct.,
Monroe County 2022. He was charged with the 1984 killing a 14-year-old girl (also raped) based
on a familial match to his brother and son who were in Databank. Police surveilled the defendant
(who lived in area at time of murder) and surreptitiously got his DNA which matched the crime
scene DNA.