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In a key challenge to New York’s 1999 expansion of the DNA criminalregistry, the state’s Court of Appeals held Tuesday that the law can be appliedretroactively since its objective centers on future crime investigations andnot on punishing past behavior. The Court of Appeals, in Paul Kellogg v. Brion D. Travis, rejected aparoled convict’s claim that the DNA requirement amounted to anunconstitutional ex post facto law. Judge Albert M. Rosenblatt, writing forthe court, said ex post facto applies only to penal statutes that seek toimpose punishment. That, he said, is not the case here. “Because the purpose of the DNA identification index is to aid ininvestigation, and not to punish, the retroactive application of theamendment comports with the Ex Post Facto Clause,” Rosenblatt wrote. The appeal involves a man, Paul Kellogg, who was convicted in 1994 ofassault and weapons charges. While on parole in 2000, Kellogg’s paroleofficer advised him that an amendment to the DNA registry law required himto submit a DNA sample. Kellogg, a violent felony offender, compliedunder protest and then challenged the constitutionality of the law. Judge Rosenblatt said the clause is designed to prevent statesfrom criminalizing what had been innocent conduct and then punishing peopleafter the fact. “Here, the DNA information index is to be used in future investigations, notas punishment for past crimes,” Rosenblatt wrote. The ruling affirmed a holding of the Appellate Division, 1st Department.Appearing were Allan Sturim of Queens for Kellogg, and AssistantAttorney General Deon J. Nossel for the state. Also Tuesday, the court reversed the 1st Department in a dispute overpricing in a stock purchase agreement. Matter of Westmoreland Coal Company v. Entech Inc., is rooted in a stockpurchase agreement in which Westmoreland Coal agreed to purchase Entech’scoal mining interests for $138 million. That price was based on financialstatements that Entech provided and claimed were supported by GenerallyAccepted Accounting Principles. The financial statements showed a net assetvalue of $97.1 million. The appeal focuses on how to resolve a dispute over the purchase price. TheSupreme Court and the 1st Department determined that Westmoreland’sobjections to Entech’s stated closing values are subject to alternativedispute resolution. The Court of Appeals, through Judge Susan P. Read,unanimously reversed and directed the Supreme Court to evaluate Westmoreland’sobjections. “[W]e conclude that Westmoreland’s objections directed at an asset value’saccounting treatment allege breaches of representation or warranty for whichthe exclusive remedy was an action at law,” Judge Read said. Michael L. Hirschfeld of Milbank, Tweed, Hadley & McCloy in Manhattan arguedfor Entech. John G. Hutchinson of Sidley Austin Brown & Wood in Manhattanrepresented Westmoreland.

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