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New York’s expansion of its DNA collection program last year to include thousands of prisoners and parolees convicted of violent felonies is constitutional and does not represent an ex post facto punishment, a New York state judge has ruled. Justice Bruce Allen in Yusov v. Martinez, 400530/99, filed last week in Supreme Court, New York County, IA Part 50B, denied the Article 78 petition filed by Yuri Yusov, a parolee convicted of attempted assault who was seeking to stay the Division of Parole’s collection of his DNA, the identifying molecules found in cells. Allen cited rulings from other states that have similarly upheld the constitutionality of DNA identification statutes. An amendment to New York’s DNA identification index statute, Executive Law �995-c, was signed last October, expanding the list of “designated offenders” to include those convicted of a violent felony offense, adding thousands of inmates and parolees to those required in the original 1996 legislation to produce blood or other specimens for extraction of genetic materials used to match against crime scene evidence. Allen noted that Yusov alleged that withdrawal of his blood violated his religious beliefs. However, the judge said, since the Division of Parole agreed to refrain from taking a DNA sample until alternate means, such as testing saliva, was available, several of his constitutional claims were moot. No reported cases in New York had ruled on the constitutionality, Allen said, but litigation in other states where similar laws had been passed all resulted in upholding the constitutionality of the statutes. “Because DNA collection does not infringe upon any fundamental right, petitioner’s claims regarding due process and equal protection are subject only to a ‘rational basis’ level of scrutiny,” the judge wrote. “The unacceptably high rate of recidivism of violent felons and the applicability of DNA evidence to such crimes supplies that rational basis.” “[S]ince the DNA ID Index Law has a legitimate, non-punitive purpose, it does not represent ex post facto punishment for petitioner’s crime,” he added. The judge noted that only categories of crime in which DNA evidence was likely to be relevant were included in the amended statute, and that the use of the information was limited to criminal investigation. Furthermore, the law does not allow any discretion regarding which individuals would be subject to the DNA search, he said. Yusov appeared pro se on his petition. Edward Rodriguez appeared for New York’s Division of Parole.

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