criminal-law new-york-state
Do I have to submit DNA again after first sample failed?
<p><strong>Question</strong> (short version):</p>

<p>My probation has been transferred to my home state via Interstate Compact.  Can the sending state still compel me to resubmit a new DNA sample?</p>

<hr>

<p><strong>Background:</strong></p>

<ul>
<li><p>I was convicted of a crime in New York State (New York City), but I live in New Jersey.</p></li>
<li><p>As part of my plea agreement, I received probation.</p></li>
<li><p>Once convicted, I submitted the mandatory DNA swab (pursuant to NY State law and the conditions of my probation).</p></li>
<li><p>I reside in New Jersey, so my probation was immediately transferred to NJ via Interstate Compact. (As far I know, this means that I have no further legal connection to NY.)</p></li>
<li><p>I still travel to NY regularly, and stay overnight, as I have family there. Before each overnight trip, I request (and am granted) a travel permit from my NJ probation officer.</p></li>
<li><p>4 months after my conviction and subsequent transfer to NJ, my former <em>NYC</em> Probation Officer contacted me, stating that the initial DNA sample that she'd taken was unable to be processed by their lab, and that I should come in (to NYC) ASAP to submit a new sample. She also sent a letter to my NJ Probation Officer, making the same request.</p></li>
</ul>

<hr>

<p><strong>Question</strong> (detailed version):</p>

<p><strong>Am I obligated to return to NY for another DNA collection? Does NY have any jurisdiction over me now that I've been transferred to NJ?</strong></p>

<p>I acknowledge that I was required to submit the sample initially, which I did. Did my obligation end there, or am I required to resubmit until NY State is satisfied (bearing in mind that I neither reside in or am supervised by NY State)?</p>

<p>Thank you!</p>

<hr>

<p>Update in response to questions: Let me state that (1) I've already discussed this with my NJ PO (she asked me to go to NY and submit a new sample, though I'm not sure whether she really cares whether I do), and (2) I'm looking for legal facts about my situation (e.g. what I'm legally <em>required or not required</em> to do), not advice on what I <em>should</em> do.</p>

<p>Collecting a DNA sample is <a href="https://casetext.com/statute/consolidated-laws-of-new-york/exc-executive/article-49-b-995-995-f-commission-on-forensic-science-and-establishment-of-dna-identification-index/995-c-state-dna-identification-index" rel="nofollow noreferrer">required by law</a>. <a href="https://casetext.com/case/people-v-husband-8" rel="nofollow noreferrer">People v. Husband</a> 954 N.Y.S.2d 856, elaborated on what that means. The law says</p>

<blockquote>
  <p>[a]ny designated offender ... shall be required to provide a sample
  appropriate for DNA testing to determine identification
  characteristics specific to such person and to be included in [the]
  state DNA identification index.</p>
</blockquote>

<p>and in NYC</p>

<blockquote>
  <p>the court shall order that the sample be collected by a court officer</p>
</blockquote>

<p>In this case, the defendant had already been sampled because of prior offenses, and the court declined to order a court officer to obtain an additional sample. The court found that it was necessary to "examine the purpose of the statute and determine the intention of the Legislature", which is, basically, to populate a DNA database. The court recites the complex chain of custody procedure, and conclude that it would be absurd to require a sample from an individual after every conviction. Then they state:</p>

<blockquote>
  <p>Accordingly, DCJS has construed the statute as requiring only a single
  DNA sample to be obtained from each eligible offender, no matter how
  many additional eligible offenses the offender commits</p>
</blockquote>

<p>The first part of this could be misinterpreted as meaning that only a single sample is required from each offender, period. The problem with that wording is that it doesn't distinguish between a usable sample and an unusable sample, but it is clear from context that this presupposes that there <em>is</em> already a sample on record. The court is explaining why DCJS construed the statute they way they do (no duplicate samples). It is unknown whether they is also some memo from DCJS addressing re-taking a "failed" sample. The upshot is that you could resist the request for a second sample on the grounds that you have complied with the law, but it is extremely likely that the court would order a second sample anyhow, since the point is not to punish you by forcing you get swabbed, it is to actually obtain a sample that can be used in the database.</p>

<p>As for returning to NYC, the law says </p>

<blockquote>
  <p>In the case of a designated offender who is sentenced to a term of
  probation, including a sentence of probation imposed in conjunction
  with a sentence of imprisonment when a sample has not already been
  taken, such sample shall be collected by the probation department
  supervising the designated offender.</p>
</blockquote>

<p>and</p>

<blockquote>
  <p>Nothing in this paragraph shall prohibit the collection of a DNA
  sample from a designated offender by any court official, state or
  local correction official or employee [etc.]</p>
</blockquote>

<p>There is no provision for a person whose probation has been transferred to another state, but it seems clear from what the law says, the sample "<strong>shall</strong> be collected by the probation department supervising the designated offender", who appears to be in NJ. A NJ parole officer is not bound by New York State law, so she can't be forced to take the sample (and possibly cannot do so given the complex chain of custody requirements associated with handling the sample).</p>

<p>The statute does not provide any penalty for a subject who does not comply, because it is assume that they are either in custody and cannot fail to comply, or they will be subject to a court order (as in the case of a person on probation). Your attorney might argue that the court has to order your NJ supervising officer to take the sample. IMO this is not a totally mundane case, but I'm not advocating that you resist to see how it gets resolved in court. </p>
