A bill that would let the state take DNA samples from anyone convicted of any crime — including misdemeanors — has stalled in Albany, where the State Senate and the Assembly have butted heads over what the bill should include.
In addition to the DNA provision, the Assembly’s version of the bill includes measures that some lawmakers and advocates say would provide greater protection against wrongful convictions. The Senate, meanwhile, has passed a bill that contains only the DNA provision — the so-called “All Crimes” DNA bill.
The main sticking point seems to be whether the law should include a provision that allows defense lawyers the same access to the DNA database as prosecutors have — the Assembly’s approach.
“Any bill that is passed is going to have to start with equal access to DNA by both sides in order to get me to compromise,” said Assemblyman Joseph R. Lentol, Democrat of Brooklyn, chairman of the Assembly’s codes committee. “The Senate has been unwilling to protect those that have been wrongfully convicted of crimes. The bill that we’ve proposed will do both — convict the guilty and try to protect the innocent.”
But Mr. Lentol’s opponents have said that the Senate bill also would protect the innocent and that Mr. Lentol and his supporters were simply posturing.
“As is typical with the Assembly, public safety has to be horse-traded, which is a disgrace,” said William J. Fitzpatrick, the Onondaga County district attorney.
Currently, the state takes DNA in a little less than 50 percent of convictions — from all felony offenders, but only some misdemeanor offenders, as outlined in legislation passed in 2006. The current bill would expand the state’s DNA database to include samples from people convicted of all misdemeanors.
Supporters of DNA database expansion have highlighted numerous examples in which murders and rapes have gone unsolved, only for the perpetrator to be caught years later after carrying out another serious crime. In some of those cases, the perpetrator had been convicted of other minor crimes in between the major ones; if required to give DNA when convicted of the minor crimes, he would have been caught before committing a serious crime.
Supporters of the Senate bill also have presented examples in which the state’s DNA database has been used to exonerate people.
In a recent case in Troy, N.Y., two men were a week away from trial on murder charges when DNA from a man convicted of another crime matched evidence found at the crime scene. The two defendants were freed and the other man, Michael Mosley, was eventually convicted of the murder.
While the wrongful-conviction measures that the Assembly wants are important, the justice community was still discussing how to implement them, Senate supporters say.
“The one thing that has broad-based support is the notion that all penal crimes, upon conviction, should be a part of the DNA databank,” said Daniel R. Alonso, the chief assistant for Cyrus R. Vance Jr., the Manhattan district attorney, a staunch supporter of the narrower Senate bill.
But advocates for the Assembly bill say that passing an all-crimes DNA legislation without wrongful-conviction protections could be detrimental to the innocent. For years, Assembly leaders have been pushing for measures that would couple expansion of DNA databases with safeguards like improved eyewitness identification procedures and the videotaping of all police interrogations.
Since the mid-1990s, Mr. Lentol said, the Legislature has been expanding the DNA database, “and each time, in dealing with a reluctant Senate or a governor, we’ve been told, ‘Don’t worry about it. We can expand the database; we’ll get to the wrongful conviction protections.’ That has never happened.”
Barry Scheck, the co-founder of the Innocence Project, which focuses on wrongful convictions, said that protecting the innocent was paramount to public safety because when an innocent person is locked up the actual perpetrator remains on the streets.
The political reality, Mr. Scheck said, is that if the wrongful-conviction protections are not coupled with DNA database expansion, those protections will never pass.
Mr. Scheck said it would be more prudent to wait for a justice task force convened by the state’s chief judge to come out with all its recommendations regarding wrongful convictions before proceeding with a bill. The task force already has recommended expanding DNA databases.
Mr. Scheck said that the bill should give defense lawyers the ability to obtain a piece of crime scene evidence, have it tested and then run any DNA recovered against the state’s database to see if it matches someone other than the defendant. Right now, he said, the law does not allow for that to be done easily.
But opponents say that DNA tests are already routinely used to try to either incriminate or exonerate defendants.
“We have hundreds of cases across the state where prosecutors allow for this testing, allow for this access,” said Derek P. Champagne, the Franklin County district attorney and president of the state district attorneys association.
Advocates for the Senate bill also say that the question of defense access to the database is an issue for discovery during the trial process and should not be taken up in this bill.
The Senate has offered some concessions to add to its bill, but Mr. Lentol said he has not found any of them satisfactory so far.
One compromise offered by the Senate was to include in the bill a provision that would essentially decriminalize the public possession of small quantities of marijuana that is not being smoked.
NancyLynn Ferrini, the assistant counsel for the Senate majority, said that the ball was in the Assembly’s court.
“We had discussed other criminal justice issues that the Assembly might be interested in moving forward on,” she said. “We would encourage our members to vote for those if they vote for our DNA expansion, and they chose not to. If they change their minds and want to negotiate further, we are available.”
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