Note: Sean M. Byrne, acting commissioner of the Division of Criminal Justice Services, will be available to discuss new crime-fighting initiatives today at 1 p.m. via conference call. Please call (877) 621 - 0250 use participant passcode # 95658635 to join the call.

Contact:
John Caher, (518) 457-8415 or (518) 225-5240 (cell)
For immediate release: Aug. 19, 2010

DAs URGED TO REQUIRE DNA SAMPLE IN EVERY PLEA BARGAIN

Acting Commissioner Byrne says Albany gridlock endangering public

Acting Commissioner Sean M. Byrne of the State Division of Criminal Justice Services is urging prosecutors statewide to require submission of a DNA sample as a condition of all misdemeanor plea bargains.

“It is obvious that there is broad support in the Legislature for expanding the DNA Databank – as there should be since doing so will save lives and exonerate innocent people,” Acting Commissioner Byrne said. “It is equally obvious the Legislature’s inability to come to terms on a specific bill is jeopardizing the public safety.”

In a letter sent earlier this week to New York State’s 62 district attorneys, Acting Commissioner Byrne “strongly encourage[d]” prosecutors to require a DNA sample as a condition of all plea bargains. He noted that State law permits such collection, in addition to allowing DNA to be collected as a condition of parole or probation.

Acting Commissioner Byrne said the “stop gap remedy to Albany gridlock” would help close a “gaping and dangerous loophole” that allows 54 percent of the individuals convicted of Penal Law crimes to avoid providing a DNA sample.

Governor David A. Paterson has submitted legislation that would require a DNA specimen from everyone convicted of a Penal Law felony or misdemeanor. But with competing bills that contain unrelated criminal justice initiatives, the Legislature has not taken action on all-crimes DNA, despite the fact that many lawmakers have embraced the concept.

“It is ultimately the role of Legislature to enact a bill to expand the databank and provide New Yorkers with the protection and security they need and deserve, and I respect that role,” Acting Commissioner Byrne said. “Until then, our district attorneys can expand the databank and enhance public safety by simply conditioning every misdemeanor plea bargain on submission of a DNA sample.”

Acting Commissioner Byrne said a case in Manhattan just two days ago illustrates how DNA collected for one offense can solve an unrelated crime.

“On Tuesday, a limousine driver who recently provided a DNA sample after pleading guilty to arson was linked to a rape that occurred a decade earlier,” Acting Commissioner Byrne said. “Fortunately, the suspect in the Manhattan case was required to submit DNA. However, if he had committed any of the hundreds of offenses that do not require a DNA sample, the 2000 rape would still be a ‘cold case.’”

New York’s DNA Databank began limited operations in 1996, when individuals convicted of homicide and certain sex-related crimes were required to submit DNA samples. 

The number of DNA-eligible crimes has been expanded three times since then (1999, 2004 and 2006) but at least 200 crimes, including misdemeanor drug possession, aggravated harassment, unlawfully dealing with a child and an arson count, are still not DNA-eligible. In addition, in at least 100 attempts to commit felonies – such as attempted riot, attempted terrorism, attempted arson – are not currently DNA-eligible offenses.

Under this initiative, prosecutors would require as a condition of a plea bargain a DNA sample whenever someone pleads guilty to any crime that does not currently require submission of DNA. Last year, more than 110,000 misdemeanor offenses that did not require a DNA sample were disposed of by a guilty plea.

Acting Commissioner Byrne said DCJS is aware of numerous cases where a murder, rape or other violent crime would have been solved or prevented if the perpetrator had been required to submit DNA for a relatively minor offense. As examples, he cited the cases of Francisco Acevedo in Yonkers and Raymon McGill in Albany.

Earlier this year, Acevedo was required to provide a DNA sample as a condition of parole for a drunken driving conviction, even though DWI is not a DNA-qualifying offense. That sample linked him to the murders of three women in Yonkers dating back to 1989.

McGill was convicted twice of minor crimes – petit larceny in 1999 and drug possession in 2003 – that did not require collection of DNA. When he was finally convicted of a DNA-qualifying offense, attempted robbery in 2005, he was linked to the rape of an 85-year-old woman in January 2000, the murder of a 50-year-old woman in March 2000, and a second murder, of a 68-year-old man in January 2004.

“Had McGill’s DNA been collected as a result of the petit larceny conviction, his connection to the January 2000 rape could have been discovered before the March 2000 murder, and that crime – as well as the second murder and attempted robbery – could have been prevented,” Acting Commissioner Byrne said. “And today, the misdemeanor drug possession charge – of which McGill was convicted three months before he killed again – remains a DNA ineligible offense.”

Acting Commissioner Byrne first suggested requiring DNA as a plea bargain condition at the annual summer meeting of the District Attorneys Association of the State of New York July. He followed this week with a letter to all 62 district attorneys in the state.

“Violent offenders almost always have a non-violent conviction in their past,” Acting Commissioner Byrne said. “Our statistics show that DNA in the databank as a result of one of the pettiest of petty crimes – petit larceny – has linked individuals statewide to 685 crimes, including 175 sexual assaults, 82 robberies and 36 homicides.”

In addition to the plea bargain initiative, Acting Commissioner Byrne said he is providing every district attorney and other law enforcement officials with a list of “serial misdemeanants” who racked up five or more misdemeanor convictions in a two-year period, and urging prosecutors to seek a jail sentence and demand a DNA sample when those individuals are convicted again.

Acting Commissioner Byrne’s proposals have garnered strong support from law enforcement officials and victim rights advocates.

Derek P. Champagne, Franklin County District Attorney and President of the District Attorneys Association of the State of New York: “Although not all crimes can be solved by modern scientific techniques, we know that DNA is a powerful tool that can often lead to convictions of rapists and murderers, among others. These convictions not only bring some measure of justice to the victims and their families, but also prevent the commission of additional crimes with still more tragic victims. I support all reasonable expansion of the DNA database, including this initiative.  Serial misdemeanants almost always leave behind a trail of victims.  Such offenders care nothing about their victims or about their impact on society. We should concentrate our efforts to remove them, at least temporarily, from the system.”

John P. Melville, Acting Superintendent, New York State Police: “The State Police supports expansion of the DNA database.  The Forensic Investigation Center is capable of handling the increased caseload that would result from District Attorneys’ conditioning plea bargains on the submission of a DNA sample.”

Ariel Zwang, CEO of Safe Horizon, a victim assistance organization: “Safe Horizon appreciates Commissioner Byrne’s tireless efforts to keep New Yorkers safe and secure in their communities. This proposal will give law enforcement a valuable tool to stop violence and abuse, and at the same time help to bring closure to unsolved crimes.  Safe Horizon is grateful to DCJS for understanding the malicious effects crime has on families and communities, and is proud to support this proposal.”

Richard Aborn, President of the Citizens Crime Commission: “We know with certainty that criminals often commit non-violent crimes before they move onto violent offenses. Collecting DNA from all convicted criminals can help deter these future violent acts – and exonerate those who are wrongly convicted or suspected of a crime. DNA is a powerful and proven crime-fighting tool and it is very wise of prosecutors to use their plea bargaining power to collect DNA samples from convicted criminals, thus enhancing public safety.”

Richard A. Brown, Queens District Attorney: “The cost of omitting many crimes from the DNA databank – as is the case under existing law – is that those who commit brutal acts of violence oftentimes escape identification and remain free to leave more victims in their wake.  Earlier this year, for example, a Queens man believed to have been a first-time offender was arrested and pleaded guilty to petit larceny.  A DNA swab taken post-conviction revealed that he was wanted for raping an 11-year-old child and a 19-year-old woman on separate occasions years apart.  There is no question that DNA evidence has become a critical tool in law enforcement investigations.  That is why I join my colleagues in taking this important step which will further assist us in ensuring that justice is served by convicting the guilty and exonerating the innocent.”

R. Michael Tantillo, Ontario County District Attorney: “It has been demonstrated beyond question that the larger the DNA database, the more crimes will be solved. However, even more importantly, more crimes will also be prevented. This initiative will save lives, plain and simple, and I applaud Commissioner Byrne for taking the lead on this extraordinarily important task.”

Robert M. Carney, Schenectady County District Attorney: “Our experience in Schenectady has convinced me that criminals are seldom specialists. Securing DNA samples from non-violent offenders may solve violent crimes and, more importantly, prevent new ones.  My office will implement the Commissioner’s recommendations.”

Nicole M. Duvé, St. Lawrence County District Attorney: “One of the fastest ways to advance the successful investigation and prosecution of crimes is through the use of the DNA Databank when DNA evidence is left at a crime scene.  By obtaining DNA on all misdemeanor plea bargains and targeting repeat offenders for inclusion in the Databank, we can address shortcomings in the current law and enhance the usefulness of this important law enforcement tool.”

John C. Tunney, Steuben County District Attorney: “I'm happy to join Commissioner Byrne and fellow DAs in helping the State of New York increase the efficiency and effectiveness of law enforcement by expanding the DNA profiles available to law enforcement. A tool as effective as this is just too hard to ignore.”
 
Frank D. Phillips II, Orange County District Attorney: “DNA database evidence is critical to public safety. In Orange County, the database has led to convictions in three ‘cold case’ murders.  Without the data base, these crimes would never have been solved.  The expansion of the number of convicted criminals who are required to provide DNA samples will provide law enforcement the opportunity to solve even more crimes and will serve the interests of justice for all of our citizens.”

James Murphy, Saratoga County District Attorney:  “As a district attorney, I hold offenders accountable, but must also do what I can to prevent crimes from occurring in the first place. By collecting DNA on misdemeanors as part of a statewide initiative lead by DCJS, our communities will be safer. We can actually take violent offenders off the street before they prey on another victim. The Legislature must act immediately and pass a statewide DNA bill.  Until the Legislature acts, DAs have no choice but to do what we can to obtain DNA from all those convicted of crimes.  If we can save a woman from being raped or a family the heartache of mourning a loved one’s death, then we will have done what the Legislature has failed to do.”