– APR 28 2010

INTRO: New York’s DNA databank began limited operations in 1996, when individuals convicted of homicide and certain sex-related crimes were required to submit a DNA sample. The Databank was expanded in 1999 and again in 2004, but still only required samples from 14 percent of convictions in the State until the most recent expansion was approved in June 2006. Today, there are about 356,000 profiles in the New York State DNA Databank. Since its inception, there have been more than 7,800 hits to the DNA databank.  Of the offender hits from the DNA databank, we are aware of convictions that have been secured in 1,755 cases. These convictions include 137 homicides, 453 sexual assaults, 153 robberies and 870 burglaries around the State.

SPAWN: We’re talking with Gina Bianchi, Deputy Commissioner and Counsel at the Division of Criminal Justice Services. Gina, 356,000 profiles sounds like a lot, but obviously we’re only looking at the tip of the iceberg…

BIANCHI:  That’s correct. Currently in New York, only 46 percent of the individuals convicted of Penal Law offenses – and note that I said convicted, not simply arrested -- are required to submit a DNA sample. So, we’re actually collecting DNA from less than half of people convicted of Penal Law crimes.

SPAWN: What kind of crimes are we not collecting DNA samples for?

BIANCHI: Some of the crimes excluded are arson in the fourth degree, certain conspiracy as a hate crime offenses, trespassing and menacing as hate crimes, fourth-degree criminal possession of a weapon, second-degree coercion, second degree aggravated harassment, second degree promoting prisoners with contraband and unlawfully dealing with a child.  There are at least 300 crimes not covered.

SPAWN: How does that compare to other states and the federal government?

BIANCHI: Currently, the federal government and 47 states collect DNA from all convicted felony offenders.  Additionally, the federal government and 12 states collect DNA from everyone arrested for a felony.  For years, New York was a leader on the collection front but, it is definitely losing ground in this regard.

SPAWN: Many times we think of DNA evidence helping to solve crime such as homicides and sexual assaults. Are there any stats on where the samples for case-solving hits come from?

BIANCHI: There is – and we find that criminals don’t specialize! Of the 3,039-plus offenders linked to sexual assault cases, 89 percent were in the databank for a crime other than a sex-related offense.  Homicide cases are another amazing statistic.  Individuals linked to nearly 700 homicides were in the databank for offenses such as drug crimes – that was the most frequent – as well as petit larceny, bail jumping, identity theft, burglary…you name it. The point is, collecting DNA for less serious offenses solves – and PREVENTS – more serious and often violent offenses.

SPAWN: A bill introduced by the Governor would permit “all crimes” DNA collection for all penal law convictions. To talk more about the details of this bill, we’re joined by Sean Byrne, Acting Commissioner of the New York State Division of Criminal Justice Services. Commissioner, how would this bill work?

COMM. BYRNE: It’s very simple and straightforward: The pending legislation (which is in the Governor’s Executive Budget) would mandate collection of DNA from every person convicted of a penal law crime. Nothing more, nothing less.

SPAWN: How would this expansion affect public safety?

COMM. BYRNE: Dramatically. We are absolutely certain – there is no question at all – that expanding the DNA databank will solve crimes that have already been committed and prevent crimes that would have been committed. A DCJS study showed that offenders linked to crimes using the DNA Databank had an average of 11 arrests and five convictions prior to their DNA-qualifying conviction.

But that’s only half the equation. There is no greater failure of the criminal justice system than the conviction of an innocent person. Expanding the databank will help prevent that terrible injustice.

SPAWN: It really does seem that we have limited ourselves in collecting DNA?

COMM. BYRNE: We certainly have. And because our databank is so limited, criminals who would otherwise be incarcerated are free to commit additional crimes and injure or kill additional people – and they are doing just that.

SPAWN: I’d like to talk about a couple of cases that exemplify why this expansion is so necessary. First, the case of Raymon McGill, who is said to be the poster child for the argument in favor of DNA expansion. He was convicted of petit larceny in 1999, and misdemeanor drug possession in 2003. Neither of those crimes required DNA samples. Then, in 2005 he was convicted of attempted armed robbery. So now, we have a DNA qualifying offense. What happens when we finally get his DNA in 2005?

COMM. BYRNE: He was linked to the rape of an 85-year-old woman in January 2000, the murder of a 50-year-old woman in March 2000, and a second murder, of a 68-year-old man in January 2004.

SPAWN: …safe to say that had McGill’s DNA been collected as a result of the petit larceny conviction, his connection to the January 2000 rape could be discovered before the March 2000 murder…

COMM. BYRNE: … and that murder – as well as the second murder and attempted robbery – could have been prevented.

SPAWN: Let’s go back for a moment to McGill’s misdemeanor drug possession conviction in 2003, that crime was not DNA eligible at the time, what about now?

COMM. BYRNE: It is still ineligible.

SPAWN: Let’s talk about one more case – Dennis Sweeney plead guilty in 2006 to stealing wallets and credits cards. That got him a felony conviction for grand larceny fourth degree which was and is a qualifying offense for a DNA sample. Tell me what happened when his DNA profile became part of the Databank.

COMM. BYRNE: That sample linked Sweeney to a murder and attempted murder from two years before. Sweeney later told a newspaper that his decision to plead guilty was “probably one of the worst mistakes of my life.” But that decision brought closure to a family whose patriarch had been fatally shot and his son, injured, two years before. Sweeney is now serving a life sentence, convicted after trial of murder and a laundry list of other felonies.

SPAWN: So, why are we failing to utilize a tool that we know – not think, know – will solve crimes that have been committed, prevent crimes and victimization that would have occurred, exonerate innocent people and shield who-knows-how-many people from the indignity of an unnecessary interrogation?

COMM. BYRNE: Politics.

SPAWN: What do you mean?
COMM. BYRNE: For years, the New York State Legislature has coupled the largely non controversial all-crimes DNA bill with other ancillary and highly controversial issues in the hopes that those matters would slide through on the coattails of the expansion measure. In the meantime, New Yorkers are being victimized by preventable crimes – including rapes and murders. I believe it is time to stop using the lives of New Yorkers as a bargaining chip, enact Governor Paterson’s legislation immediately and let unrelated or marginally related issues rise or fall on their own merit.

SPAWN: Aren’t there other proposals on the table that would expand the databank even more than the governor suggests – for instance, by including everyone arrested and not merely convicted of a crime?

COMM. BYRNE: Yes. But in the current fiscal climate, those are not realistic. Currently, the DNA Databank is current in its processing of DNA samples and could handle the estimated 100,000 samples that would come in annually under the Governor’s proposal with a relatively minimal additional expense. We could do this immediately. Expanding the databank further could cost tens of millions of dollars at a time when we don’t have tens of millions of dollars and would overburden the lab.  Proposals to expand to only certain felony arrests may be a good idea - - but could not be implemented immediately and have significant fiscal implications due to the expungement requirements if the offender is not actually convicted.

SPAWN: DNA is a powerful crime-fighting tool and it is clear that expanding the databank will solve and prevent crimes and exonerate the innocent. Just as a result of the 2006 expansion – which increased collections to a still meager 46 percent -- there have been 2,099 hits, including 175 homicides, 675 burglaries, 745 sexual assaults and 186 robberies.. Unfortunately – and tragically for the victims of preventable crimes and for those who are unfairly and unnecessarily targeted as suspects -- our current law does not permit us to use this proven science in more cases. The New York State Association of Chiefs of Police supports the Governor’s DNA Proposal as a rational step forward in crime prevention. To learn more about DNA in New York, visit the DCJS website at - click on the DNA link.