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The law requiring felony offenders to provide blood samples for a DNA data bank is constitutional, even as applied to persons who committed crimes and were convicted before the statute’s effective date, a Manhattan Supreme Court justice has ruled. In a case of first impression, Justice Richard F. Braun upheld a 1999 revision of the original DNA data bank law, which included offenders who committed their offenses before Jan. 1, 1996, when the original data bank statute took effect. Braun said that because the revision creates no additional punishment for the offense, it did not amount to an ex post facto law, which is forbidden by the U.S. Constitution. Kellogg v. Travis, 111547/00, involves a man arrested in December 1992 for felonious assault and convicted of assault and weapons charges in August 1994. He would not have been required to provide a blood sample under the original DNA data bank statute, Executive Law §995(7), which took effect on Jan. 1, 1996. But a 1999 measure said that persons who committed their crimes before that date would be required to submit a blood sample before their release from prison. Kellogg was released in September 1999 and placed on parole until January 2002. He was notified on March 1 of last year that he would be required to report for withdrawal of blood, and that if he refused, he would be committing a parole violation. He eventually supplied the sample, but filed a complaint to have the statute declared invalid. The plaintiff argued that the 1999 amendment was unconstitutional because it created an ex post facto law; he also maintained that it authorized an unreasonable search under the Fourth Amendment of the U.S. Constitution. But the court disagreed, saying that unlike a true ex post facto law, the expansion of blood testing for convicts did not change the definition of criminal conduct and did not add a punishment for past wrongdoing. “The intent of the amendment was not to punish persons such as Plaintiff for past behavior but to expand the definition of persons who must submit tissue samples to the State DNA bank so as to assist law enforcement officials in accurately solving crimes committed by persons already convicted of serious crimes and thus promoting public safety,” Braun wrote. The court also pointed out that the DNA bank would serve to absolve innocent persons of unjustified accusations. NO DOUBLE JEOPARDY Justice Braun also set aside objections that the statute created double jeopardy, since the “exit requirement” of a blood sample is not added punishment. Finally, he noted that while parolees such as Kellogg retain the right to be free of unreasonable searches, the DNA data bank statute did not mandate an unreasonable search. Since the sample is not taken to investigate whether the plaintiff committed a particular crime but for the administrative purpose of creating a statewide DNA identification index, it is not unreasonable for the state to demand the blood sample. In dicta, Braun added that blood testing may be replaced by other less intrusive methods of obtaining DNA samples, such as swabbing the inside of a person’s cheek. Kellogg was represented by Allan Sturim, of Sturim & Nizin in Kew Gardens, N.Y. New York Assistant Attorney General Edward Rodriguez defended the statute for the state.

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