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A defendant in a Brooklyn, N.Y., rape case has won a court order barring the medical examiner’s office from putting the results of his DNA test in a citywide database for comparison with other test results. In People v. Carlos Rodriguez, 3177/02, Justice John M. Leventhal granted the prosecution’s motion for an order directing that blood be taken from Carlos Rodriguez for genetic testing, and then granted Rodriguez’s motion for a protective order prohibiting the use of the results for any purpose other than the prosecution of the case. The decision, issued Tuesday, was filed in Kings County, N.Y., Supreme Court, Criminal Term, Domestic Violence Part. New York state maintains a computer database of DNA results from people convicted of certain felonies for use in solving other crimes, but a defendant’s DNA data is not put into the state’s files until conviction. In opposing Rodriguez’s motion, prosecutors for Brooklyn District Attorney Charles J. Hynes said the DNA testing would be done by the New York City’s Medical Examiner’s Office, and the results would be placed in a local database and would not be forwarded to the state unless there was a conviction. Rodriguez was indicted for first-degree rape and other crimes arising from a May 8, 2002, incident with his girlfriend. He claimed that any sexual encounters with the complainant were consensual. While not opposing the DNA testing, Rodriguez argued that the genetic test results, which could be matched with blood, semen or other bodily specimens found on the complainant or at the crime scene, should be used only for purposes of the indictment. Any other use, he contended, would be a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Justice Leventhal said determination of the constitutional argument was unnecessary because New York’s Executive Law � 995-d clearly prohibits the disclosure of DNA test results without the consent of the subject of the DNA testing. The judge agreed with prosecutors that a 1997 ruling by the Appellate Division, 2nd Department, People v. King, 232 AD2d 111, allowed lawfully obtained DNA information to be used in any other case without violating the Fourth Amendment. Nevertheless, the judge observed that the testing in the King decision was performed several years before Executive Law � 995-d was enacted in 1994. PLAIN MEANING OF STATUTE Under the statute, it is a crime for any person or agency to reveal or “redisclose” the findings of a DNA test without the test subject’s consent, Leventhal said. “The plain meaning of this statute would prohibit the medical examiner from placing the results of the defendant’s DNA test in the [local database], since this would be disclosing a DNA finding without the defendant’s consent to a public entity,” the judge wrote. He went on to say in a footnote that he wondered whether the existence of the medical examiner’s database was a class-E felony as specified in Executive Law � 995-f for a violation of the confidentiality provided in � 995-d. A spokeswoman for Chief Medical Examiner Charles S. Hirsch said Thursday the judge’s ruling was being reviewed by counsel. After examining three exceptions to the confidentiality requirements of � 995-d and concluding that none applied to Rodriguez’s pretrial status, Leventhal granted the motion for a protective order. Rodriguez was represented by Jose Rios. Assistant District Attorney Stacey Salinsky appeared for Hynes.

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