GLOVERSVILLE - The Fulton County district attorney and city police chief say the state court system is ignoring its responsibility to collect DNA samples from convicted criminals, pointing to a "loophole" that has been contributing to meager compliance rates, particularly in Gloversville.
The state's DNA database was expanded last year by Gov. Andrew Cuomo, whose executive law now requires anyone convicted of a misdemeanor or felony to contribute a sample of their DNA with a mouth swab. The expansion nearly tripled the number of samples to be collected in Fulton County.
But District Attorney Louise Sira and Police Chief Donald VanDeusen say the state Office of Court Administration isn't abiding by a part of the law that says the court "shall order that a court officer take a sample," essentially putting some city offenders on the honor system, even though City Court is secured by officers from the state who have the training and facilities to take DNA samples on the spot.
"There are two exit doors between court and the Police Department," VanDeusen said. "If you've committed a crime and you think you left your DNA or fingerprints at a crime scene, are you going to give a DNA sample that could prove your guilt?"
"He and I both discussed the fact that to close the loophole, the best practice would be to have the sample taken at the court, by court officers," Sira said.
Under the executive law, criminals who are imprisoned have their samples taken by corrections officials, and the Probation Department takes samples of offenders sentenced to probation. The so-called loophole comes into play when a judge's sentence doesn't involve jail or probation, such as a fine or time served. In those cases, suspects are directed to provide a sample at the agency that arrested them.
Out of compliance
Since 2010, 37 convicted criminals in Fulton County have ignored state law that requires them to submit a sample of their DNA to the state databank.
Gloversville City Court - 10.
Johnstown Town Court - 9.
Johnstown City Court - 5.
Fulton County Court - 3.
Broadalbin Town Court - 2.
Broadalbin Village Court - 2.
Mayfield Town Court - 2.
Northampton, Perth and Oppenheim town courts and Fulton County Supreme Court, which administers the county's drug court, each have one offender in noncompliance.
Source: Office of Court Administration
But in Gloversville, where 11 offenders were directed to give a sample to the Police Department over a 12-month period ending last February, only six complied, according to Office of Court Administration documents provided by VanDeusen. Another document provided by Sira indicated the city has 30 criminals in noncompliance over the last decade.
"If you're taken to a secure area where a court officer can take your DNA, there is no loophole and you'll have 100 percent compliance," VanDeusen said. He and Sira noted that state court officers are willing to take the samples but lack the authority from their superiors. VanDeusen said trying to get answers from court administration has been frustrating.
"Although they sympathize with my concerns, although they agree with my concerns, although they agree what I'm proposing is the best method of DNA collection and DNA compliance, I was basically told they're not going to comply with it because they don't have to," he said.
A state court spokesman said the Office of Court Administration hasn't told its court officers to take samples because it's following a section of the executive law that says offenders can have a sample taken at the Sheriff's Department.
"Obviously, we're concerned about compliance, but the reality is the sheriff is willing to perform the function, and that seems to be the one who has the resources," spokesman David Bookstaver said. "It would be wrong to assert that we don't care about compliance. I think the reality is, who has the resources to perform the function?"
Sira told supervisors on the Public Safety Committee last month that Fulton County Sheriff Thomas Lorey received a memorandum of agreement from the Office of Court Administration. Lorey could not be reached for comment on this story, but Sira said he hasn't signed it, and she doesn't support requiring Lorey's office to take samples.
"Our people in Gloversville don't have $2 in gas money," Sira said. "The people this is affecting don't have the means to get to the Sheriff's Office, and its puts the Sheriff's Office in the position of having to stop what they're doing to get samples for people they haven't dealt with."
"If they can't give a sample two doors down, do we really think they're going to go all the way over to the other end of town to give one," VanDeusen said.
Fulton County has more than 100 criminals owing samples, including one who was convicted 10 years ago. Since 2010, Gloversville City Court has had the largest number of offenders not in compliance - 10 - followed by Johnstown Town Court with nine and Johnstown City Court with five, according to Office of Court Administration documents provided by Sira.
The Office of Court Administration secures only the full-time courts in the county - Fulton County Court in Johnstown and Gloversville City Court. Johnstown Police, who handle responsibilities in their City Court, have been taking swabs of offenders convicted in their city. Sira and her assistant district attorneys are collecting samples from criminals when they are in town courts and recently began swabbing Gloversville offenders, hoping to slow noncompliance.
"We recognize that sending them back to the arresting agency was just creating for them the opportunity to be noncompliant," Sira said. "If I were a person victimized in a way DNA could solve my crime, I'd want to know the DA's office where I lived stepped up to the plate."
Sira said she's spoken with other district attorneys in the Capital Region who understand her frustration, but it's not necessarily shared by Montgomery County District Attorney James Conboy.
"We haven't had any problems that I've been aware of," he said. The county's busiest court, in the city of Amsterdam, had an 85 percent compliance rate in a 12-month period ending last March, compared to Gloversville's 55 percent rate according to Office of Court Administration documents provided by VanDeusen.
The district attorney's office and Police Department are, by themselves, powerless to go after offenders, Sira and VanDeusen said, since noncompliant criminals are violating a court order, not penal law.
Sira said her office is taking steps with the courts "to make sure the people who aren't in compliance get there," but she wouldn't say how vigorously they'd pursue punishing violators.
"The bottom line is getting their DNA," she said. "DNA solves crimes, and I believe in this law."