The Matter of Terrence Stevens v. New York State Division of Criminal Justice Services

• Court: New York Court of Appeals
• Decided: October 24, 2023
• Docket: 70
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 70 In the Matter of Terrence Stevens et al., Respondents, v. New York State Division of Criminal Justice Services, et al., Appellants.

Matthew W. Grieco, for appellants. Doran J. Satanove, for respondents. District Attorneys Association of the State of New York, Inc.; Alexander F. Roehrkasse; Parents of Murdered Children, Inc.; New York Civil Liberties Union; Brendan Parent; Erin E. Murphy, amici curiae.

WILSON, Chief Judge:

The issue before us is whether the legislature’s grant of rulemaking authority to the

Commission on Forensic Sciences was sufficient to authorize the Commission’s

promulgation of the Familial DNA Search Regulations, codified at 9 NYCRR 6192.1 and

6192.3. We hold that it was. -1- -2- No. 70

I.

In 1994, cognizant of the promises and perils of the emerging use of DNA

technology in law enforcement, the legislature took a measured but significant step by

enacting the DNA Databank Act (L 1994, ch 737 [codified at Executive Law § 995 et seq.]

[Databank Act]).

The Databank Act served a dual purpose; it authorized the creation of the New York

State Commission on Forensic Science (Commission) (Executive Law § 995-a [1]) and the

DNA Subcommittee (§ 995-b [13]), as well as the establishment of the DNA Identification

Index (DNA Databank or Databank) (subd [6]). The DNA Databank is a statewide “DNA

identification record system” (id.), containing DNA collected from “designated offenders,”

individuals who are required to provide DNA samples after being convicted of certain

statutorily enumerated crimes (subd [7]).

The Commission and DNA Subcommittee are independent oversight agencies with

different functions. The DNA Subcommittee, composed solely of scientists, is granted

certain responsibilities, among them: the “sole authority to grant, deny, review or modify

a DNA forensic laboratory accreditation” (subd [2-a]). The Commission, composed mostly

of nonscientists, is charged with “promulgat[ing] a policy for the establishment and

operation of a DNA identification index consistent with the operational requirements and

capabilities of the division of criminal justice services [DCJS]” (subd [9]), including the

methodologies used in compiling the index; safeguards for accuracy and security; the

promulgation of written agreements specifying the terms of access, use and prohibitions

against redisclosure of any information obtained from the Databank; the designation of one

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or more approved methodologies for the performance of DNA testing; and the

promulgation of standards for determination of a match between DNA records in the

Databank and DNA records submitted for comparison therewith (see § 995-b).

The Databank Act provides strict guidelines on the approved uses of Databank

information (see § 995-c [6] [enumerating exhaustive purposes for which genetic and

identifying information may be released]), and authorizes the Commission to develop and

promulgate regulations concerning the release of genetic and identifying information

stored in the Databank in compliance with those guidelines (§ 995-b [9] [directing the

Commission to develop and promulgate policy concerning the release and disclosure

Databank information]), including when to release the identity of a “match” (§ 995-c [6]

[a] [authorizing the release of Databank information to law enforcement agencies and

district attorneys’ offices “for law enforcement identification purposes upon submission of

a DNA record in connection with the investigation of one or more crimes”]).

After the Databank Act was adopted, the Commission created an implementation

plan and promulgated a set of regulations governing the use of the Databank (9 NYCRR

6192.2), including the definition of a genetic match (§ 6192.1), policies limiting the

disclosure of genetic and identifying information contained in the Databank (§§ 6192.5-

6192.9), and policies authorizing the release of identifying information to law enforcement

(§ 6192.3 [b]-[c], [f]-[g]).

The Commission’s initial regulations permitted the New York State Division of

Criminal Justice Services (DCJS) to release information contained within the Databank to

law enforcement when a databank search yielded a “direct match,” i.e., when the alleles in

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the core loci of a DNA sample recovered from a crime scene are the same as those in a

DNA sample contained in the Databank (see Partial Match Policy for the DNA Databank,

32 NY Reg 2, 5 [July 21, 2010] [Partial Match Policy] [“Currently, when a crime scene

DNA sample is submitted to a New York State forensic laboratory, laboratory officials

report only if the sample matches a particular individual in the state’s DNA databank”]);

direct matches strongly indicate that the two samples are likely from the same individual

(see id.; Federal Bureau of Investigation, Frequently Asked Questions on CODIS and NDIS

¶ 2, available at https://www.fbi.gov/how-we-can-help-you/dna-fingerprint-act-of-2005-

expungement-policy/codis-and-ndis-fact-sheet [last accessed Sept. 22, 2023]).

“Partial matches,” on the other hand, are “near hit[s]” (Partial Match Policy at 5):

matches in which alleles at the core loci in two DNA samples (one retrieved from the

Databank, and one retrieved from a crime scene) are not the same but share a high number

of matching alleles. Such “near hit[s] [may] greatly limit the pool of potential suspects”

(id.), though they can indicate many things. A near hit might suggest that the person in the

Databank is a “close blood relative” of the person whose DNA sample was found at the

crime scene (id.), but it might also indicate that the sample found at the crime scene was

partially degraded or contained a mixture of multiple people’s DNA (see brief for

petitioners-respondents at 12, citing 9 NYCRR 6192.3 [c] [enumerating “sufficient

scientific reasons” to allow for partial match searches, including “the apparent presence of

mixtures, sample degradation or limited sample availability”).

After four years of deliberation, in 2010 the Commission promulgated a partial

match rule which, subject to certain restrictions, authorized the release of partial match

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information to law enforcement (Partial Match Policy at 5). The 2010 partial match

regulations did not permit familial DNA searches (see id. [“The new regulations will not

permit what is often called ‘familial searching,’ or singling out particular families and

actively searching their DNA profiles”]). A familial DNA search is essentially an

intentional search for partial matches, as opposed to the unintentional partial match system

previously created (see NY St Div of Criminal Justice Servs Mem from Gina L. Bianchi,

Deputy Commr & Counsel, to Members of the Commn on Forensic Science, dated Jan. 2,

2008 at 1-2).

To conduct a familial search, the DCJS and the State Combined DNA Index System

(CODIS) laboratory use the Denver Familial Search Software, a specialized computer

program, to look for a close partial match between sampled DNA gathered from a crime

scene, and DNA profiles in the Databank (respondent-appellant’s brief at 17). The search

“generates a list of candidates based on kinship statistics to indicate potential biologically

related individuals” (39 NY Reg 8, 9 [July 26, 2017] [FDS Policy]). The Commission

determined an “established kinship threshold value[s]” for familial searches, meaning how

closely related the individuals must be to return a family match to report to law enforcement

(see 9 NYCRR 6192.3 [j] [2]).

In 2017, the DNA Subcommittee submitted to the Commission a recommendation

to authorize familial DNA searches (FDS Policy at 9). The recommendation authorized

familial DNA searches, subject to stringent restrictions regarding when such searches were

to be permitted and practices on how law enforcement may request them. The Commission

adopted the DNA Subcommittee’s recommendation (id. at 8). After a period of notice and

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comment, on October 18, 2017, the DCJS formally adopted the recommendation as part of

formal Familial DNA Search (FDS) Regulations (codified at 9 NYCRR 6192.1, 6192.3).1

Under the FDS Regulations, law enforcement officers wishing to conduct a familial

search must first determine that, for a DNA sample collected at a crime scene, “there is not

a match or a partial match to a[n] [existing] sample in the DNA databank” (§ 6192.3 [h]).

Law enforcement may not request a familial search unless the crime under investigation is

one of a statutorily enumerated list of crimes or presents “a significant public safety threat”

(subd [h] [1] [iv]). The agency must also demonstrate that before requesting a familial

DNA search, they have conducted “reasonable investigative efforts,” or else that exigent

circumstances exist (para [2] [i]). Before the results of a search are released, the requesting

agency must comply with several conditions, including confirming in writing that the

information is sought “for investigatory law enforcement purposes only” and will be

“treated only as an investigative lead” and completing mandatory training regarding the

1 The twelve states that explicitly allow familial DNA searching account for 49.2% of the population of the United States (see Appx 427; https://www.census.gov/data/tables/time- series/demo/popest/2020s-state-total.html). One report found that, as of 2017, 11 states— including the three most populous (California, Texas, and Florida)—used familial DNA searching (see Michael B. Field & Sara Debus-Sherill, Study of Familial DNA Searching Policies and Practices [June 2017]). Other states besides New York have since used or authorized FDS (see e.g. Mont Code Ann § 44-6-104 [2] [2021 legislation allowing FDS if a court issues a search warrant based on probable cause]; State v Mitcham, — P3d —, 2023 WL 5354942, *1, 2023 Ariz App LEXIS 360, *3 [Aug. 22, 2023, No. 1 CA-CR 23- 0014] [noting FDS use by Arizona law enforcement]). Only Maryland and the District of Columbia expressly ban its use (MD Code Ann, Pub Safety § 2-506 [d]; DC Code Ann § 22-4151 [b]).

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limitations of familial search, “guidance on how to best evaluate leads,” and the

confidentiality requirements (id. § 6192.3 [k]).

There is no provision in the FDS for an identified relative to be notified and/or

challenge the search before law enforcement officials may proceed with an investigation

based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin

Joseph are two Black men living New York who have never been convicted of a crime.

Each has a brother whose genetic information has been collected and stored in the DNA

Databank as the result of a felony conviction, in accordance with Databank Act

requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding

against respondents the DCJS, the Commission, DCJS Executive Deputy Commissioner

and Commission Chairman Michael C. Green, and the DNA Subcommittee alleging,

among other claims, that respondents lacked statutory authority to promulgate the FDS

Regulations and therefore violated the separation of powers doctrine under the New York

Constitution. Respondents denied petitioners’ allegations and asserted that petitioners

lacked standing to challenge the FDS Regulations.

Supreme Court held that petitioners had standing to bring their article 78 petition,

but denied the petition on the merits, determining that it was a proper exercise of the

Commission’s statutory authority to promulgate the FDS Regulations (see 2020 NY Slip

Op 30861[U], *1 [Sup Ct, NY County 2020]). The Appellate Division, with two Justices

dissenting on standing, reversed Supreme Court’s judgment, granted the petition, and

annulled the FDS Regulations (206 AD3d 88 [1st Dept 2022]).

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Respondents appealed as of right (see CPLR 5601 [a]), and we now reverse the

Appellate Division’s order and hold that the Commission had the statutory authority to

promulgate the FDS Regulations.

II.

A petitioner challenging government agency action pursuant to an article 78 petition

has the burden of demonstrating an “injury in fact” and that the alleged injury falls within

the “zone of interests or concerns sought to be promoted or protected by the statutory

provision under which the [government] has acted” in order to have standing to challenge

that action (Matter of Mental Hygiene Legal Servs. v Daniels, 33 NY3d 44, 50 [2019],

quoting New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004];

see also Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 [1976]). “The injury-in-fact

requirement necessitates a showing that the party has an actual legal stake in the matter

being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or

conjectural but is sufficiently concrete and particularized to warrant judicial intervention”

(Daniels, 33 NY3d at 50 [internal quotation marks and citation omitted]; see also Matter

of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation,

23 NY3d 1, 7 [2014]). While “[t]he requirement of injury in fact for standing purposes is

closely aligned with our policy not to render advisory opinions” (Society of Plastics Indus.

v County of Suffolk, 77 NY2d 761, 761 [1991]), we have also cautioned that standing rules

should not be applied “in an overly restrictive manner where the result would be to

completely shield a particular action from judicial review” (Matter of Sierra Club v Village

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of Painted Post, 26 NY3d 301, 311 [2015], quoting Matter of Association for a Better Long

Is., Inc., 23 NY3d at 6).

Although the injury in fact here is unusual, it is cognizable. Because each petitioner

has a brother whose DNA is stored in the Databank, he has a unique risk of being identified

through the Databank and targeted for police scrutiny because of his familial relationship

and shared genetic material (Society of Plastics Indus., 77 NY2d at 774). Under these

particular circumstances, that risk is not “founded on [impermissible] layers of

speculation” (Novello, 2 NY3d at 213).

Similarly, petitioners have demonstrated that their injury falls “within the concerns

the Legislature sought to advance or protect by the statute” (Society of Plastics Indus., 77

NY2d at 774 [zone of interests requirement “assures that groups whose interests are only

marginally related to, or even inconsistent with, the purposes of the statute cannot use the

courts to further their own purposes at the expense of the statutory purposes”]). By limiting

the number of individuals whose DNA could be maintained in the Database, the legislature

demonstrated an intent to concomitantly limit the number of individuals whose information

could be obtained from the Databank.2 Our standing rules “help courts separate the

tangible from the abstract or speculative injury, and the genuinely aggrieved from the

2 Here, the Databank Act seeks to protect the privacy interests implicated by use of the information in the Databank (see Executive Law §§ 995-b [9] [b] [ii]-[vi], [viii]-[ix] [enumerating Committee’s duties to implement safeguards protecting the confidentiality of genetic information stored in the Databank]; 995-d [detailing confidentiality requirements to protect Databank information], 995-f [providing criminal penalties for unauthorized use or disclosure of information stored in the Databank]).

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judicial dilettante or amorphous claimant” (Saratoga County Chamber of Commerce v

Pataki, 100 NY2d 801, 812 [2003]). Here, petitioners have identified a genuine injury.

III.

On the merits, this appeal presents two straightforward questions: (A) does the

legislature have the power to delegate rulemaking authority over familial DNA searches to

the Commission; and (B) did the legislature do so? The Court unanimously agrees that the

legislature has that power; the disagreement is whether the Databank Act granted the

Commission the authority to promulgate the FDS Regulations. We hold that it did so.

Although the Appellate Division examined the factors laid out in Boreali v Axelrod, (71

NY2d 1 [1987]), that case has no application here.3 Interpretation of the Databank Act to

determine whether the regulations fall within the scope of the statute’s grant of regulatory

authority is a pure question of statutory interpretation.

A

New York Constitution, article V, § 3 expressly provides that “the legislature may

from time to time assign by law new powers and functions to . . . commissions.” Although

“the Legislature cannot pass on its law-making functions to other bodies” (Matter of Levine

3 Boreali concerned the exceedingly broad and nonspecific grant contained in section 225 (5) (a) of the Public Health Law, which authorized the Public Health Committee to “deal with any matters affecting . . . the public health.” The Court’s concern was that such a “facially broad . . . legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits” (71 NY2d at 9). No exceedingly broad grant of authority is present here. The question before us is solely one of statutory interpretation: whether the DNA Databank Act authorizes the FDS Regulations. Because it does, Boreali is inapplicable.

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v Whalen, 39 NY2d 510, 515 [1976]), “there is a large field in which the legislature . . .

may certainly delegate to others powers which the legislature may rightfully exercise itself”

(Matter of Trustees of Vil. of Saratoga Springs v Saratoga Gas, Elec. Light & Power Co.,

191 NY 123 [1908] [internal quotation marks omitted]). “The Legislature may

constitutionally confer discretion upon an administrative agency [or a commission] . . . if

it limits the field in which that discretion is to operate and provides standards to govern its

exercise” (Matter of Levine, 39 NY2d at 515). So long as the legislature stays within those

confines, it enjoys great flexibility in delegating rulemaking powers to administrative

agencies in order to meet its policymaking ends. In fact, this flexibility is necessary to the

law-making process.

Duly enacted statutes, including those pertaining to administrative action, enjoy a

presumption of constitutionality (see Matter of County of Chemung v Shah, 28 NY3d 244,

262 [2016]). We note that the Commission has promulgated regulations governing both

full and partial DNA matches and has done so without challenge to the legislature’s power

to delegate rulemaking authority concerning access to, operation of, and restrictions on

dissemination of information derived from the Databank. The Commission’s original

regulations defined “matches” as direct matches, where the sample matched a record in the

Databank with an extremely high degree of certainty (see Partial Match Policy at 5).

Because the Databank Act delegated to the Commission the authority to determine what

constituted a match, a claim that the legislature lacked the power to delegate rulemaking

authority in this area to the Commission cannot turn on the particular definition of “match”

chosen by the Commission.

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B

The only real question on this appeal is whether the legislative grant of authority in

the Databank Act delegated to the Commission the power to issue regulations concerning

access to and use of the information stored in the Databank.

The legislature’s policy determinations and limiting guidelines are evident from the

plain text of the Databank Act and its structure. Although the petitioners characterize the

statutory authorization to promulgate forensic DNA policy as granted to or shared with the

DNA Subcommittee, a small group of mostly out-of-state scientists, and complain that the

legislature could not have intended to delegate to such people the promulgation of rules as

to the purposes for which the Databank could be accessed, the statutory scheme is not as

petitioners describe it.

The DNA Subcommittee has a narrowly prescribed mandate: to provide the

Commission with specialized expertise on the science of DNA forensics. The DNA

Subcommittee’s authority to promulgate “binding” recommendations to the Commission

is limited to specifically enumerated, highly technical areas pertaining to testing standards

and accreditation. Our dissenting colleagues point to Subcommittee (not Commission)

minutes that describe its recommendation to adopt the FDS Regulations as “binding”

(dissenting op at 9). But the Attorney General at oral argument stated that those

recommendations were not treated by the Commission as binding and, in any event,

petitioners have not challenged the adoption of the regulations based on that alleged

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procedural error. Regardless, the Databank Act expressly confines the Subcommittee’s

authority to promulgate a “binding recommendation” to narrowly delineated topics.4

In contrast, the Databank Act authorizes the Commission to “promulgate a policy

for the establishment and operation of a DNA identification index consistent with the

operational requirements and capabilities of the [DCJS]” (Executive Law § 995-b [9]).

Unlike the DNA Subcommittee, the Commission is composed of a diverse array of 14

criminal justice stakeholders (§ 995-a [1]-[2]) including the Commissioner of the DCJS

(subd [1] [a]), the Commissioner of the Department of Health (or her designee) (id.), and

12 additional members appointed by the governor, almost all of whom either are

determined ex officio or must first be nominated by others (subds [1] [b]; [2]). Of the 12

appointed members:

“(a) one member shall be the chair of the New York state crime laboratory advisory committee;

“(b) one member shall be the director of a forensic laboratory located in New York state;

4 Compare Executive Law § 995-b (2-a) (granting DNA Subcommittee sole authority to grant, deny, review or modify a DNA forensic laboratory’s accreditation), (13) (b) (“The DNA subcommittee shall make binding recommendations for adoption by the commission addressing minimum scientific standards to be utilized in conducting forensic DNA analysis including, but not limited to . . . population studies and methods employed to determine probabilities and interpret test results”), with id. (“The DNA subcommittee shall assess and evaluate all DNA methodologies proposed to be used for forensic analysis, and make reports and recommendations to the commission as it deems necessary”); (9) (requiring the Commission to consult with the DNA Subcommittee to promulgate a policy for the establishment and operation of the DNA Databank), (13) (d) (authorizing the DNA Subcommittee to advise the Commission on “any other matters referred to it by the commission”). - 13 - - 14 - No. 70

“(c) one member shall be the director of the office of forensic services within the [DCJS];

“(d) two members shall be a scientist having experience in the areas of laboratory standards or quality assurance regulation and monitoring and shall be appointed upon the recommendation of the commissioner of health;

“(e) one member shall be a representative of a law enforcement agency and shall be appointed upon the recommendation of the commissioner of criminal justice services;

“(f) one member shall be a representative of prosecution services who shall be appointed upon the recommendation of the commissioner of criminal justice services;

“(g) one member shall be a representative of the public criminal defense bar who shall be appointed upon the recommendation of an organization representing public defense services;

“(h) one member shall be a representative of the private criminal defense bar who shall be appointed upon the recommendation of an organization of such bar;

“(i) two members shall be members-at-large, one of whom shall be appointed upon the recommendation of the temporary president of the senate, and one of whom shall be appointed upon the recommendation of the speaker of the assembly; and

“(j) one member, who shall be an attorney or judge with a background in privacy issues and biomedical ethics, shall be appointed upon the recommendation of the chief judge of the court of appeals” (subd [2]).

The composition of the Commission shows that the legislature carefully delineated

between the DNA Subcommittee, which was composed of experts to provide scientific

standards, and the Commission, which was entrusted with the promulgation of

nonscientific regulations concerning when and by whom requests for matches could be

made, what information could be released, what measures would be required to ensure data

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security, and how to balance the need for legitimate uses of the information with privacy

interests. Consistent with the distinction between the Commission and the DNA

Subcommittee, the Commission is also charged with “designat[ing] one or more approved

methodologies for the performance of forensic DNA testing” (§ 995-b [11]). The

Executive Law defines “DNA testing methodology” to include not only “methods and

procedures used to extract and analyze DNA material” but also “the methods, procedures,

assumptions, and studies used to draw statistical inferences from the test results” (§ 995

[3]).5

Most importantly, the Act gives the Commission—not the DNA Subcommittee—

the authority to “[p]romulgate standards for a determination of a match between the DNA

records contained in the state DNA identification index and a DNA record of a person

5 As part of its analysis, the dissent describes the Commission’s mandate as “develop[ing] minimum standards and a program of accreditation for all forensic laboratories in in New York” (dissenting op at 25, quoting Executive Law § 995-b [1]). However, when earlier describing the Commission’s mandate, the dissent correctly acknowledges that the Commission is also charged with “promulgat[ing] a policy for the establishment and operation of a DNA identification index” (dissenting op at 5, quoting Executive Law § 995-b [9]). Although the dissent agrees that the legislature empowered the Commission to promulgate policies for the establishment and operation of a DNA identification index (dissenting op at 23), it nakedly asserts that “familial search is not part of the DNA identification index” (id.) and the “mere[] . . . authority to approve new testing methodologies” does not encompass familial searches (id.). But a “methodology” is “a particular procedure or set of procedures” (Merriam-Webster.com Dictionary, methodology [https://www.merriam-webster.com/dictionary/methodology]), which the familial search rules are. The Databank Act does not say that the index is limited to direct matches, partial matches, familial matches or any other type of match. Instead, it charges the Commission with determining what a “match” is (see Executive Law § 995-b [12]) and authorizes use of the Databank for “law enforcement identification purposes” (§ 995-c [6] [a]). - 15 - - 16 - No. 70

submitted for comparison therewith” (§ 995-b [12]).6 The statute clearly provides that the

definition of “match” is to be determined by the Commission. If questions related to ethics,

privacy, and the practical needs of prosecutors and criminal defense lawyers were not to

figure into the determination of a “match,” but matches were to be constrained to a

scientific determination only, the statute would have been constructed in a completely

different way.7

Crucially, in Executive Law section 995-c (6), the legislature defined the limited

purpose for which information in the Databank could be used:

“DNA records contained in the state DNA identification index shall be released only for the following purposes:

“(a) to a federal law enforcement agency, or to a state or local law enforcement agency or district attorney’s office for law enforcement identification purposes upon submission of a DNA record in connection with the investigation of the

6 The dissent observes that because the Databank Act does not define the term “match,” we must interpret it “according to its ordinary and accepted meaning as it was understood at the time” (dissenting op at 30, quoting Gevorkyan v Judelson, 29 NY3d 452, 459 [2017]). That conclusion fails because the Databank Act expressly charged the Commission with defining the term “match” (see Executive Law § 995-b [12] [directing the Commission to “Promulgate standards for the determination of a match between the DNA records contained in the state DNA identification index and a DNA record of a person submitted for comparison therewith”]). That legislative choice necessarily means that the legislature did not expect that “match” would be used in its dictionary sense, but instead empowered the Commission to develop a specialized definition to be used in the context of DNA searches. 7 When a request for a direct match produces a partial match, it may provide exactly the same information as a familial search, although some familial searches would not be reported as partial matches. Whether familial search requests may use different software or base matches on a reduced set of alleles is not relevant to the statutory interpretation question, however, because the legislature directed the Commission to determine what constitutes a match.

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commission of one or more crimes or to assist in the recovery or identification of specified human remains, including identification of missing persons, provided that there exists between the division and such agency a written agreement governing the use and dissemination of such DNA records in accordance with the provisions of this article”

As the dissent observes, the legislature did not “intend[] for the Databank to be used for

any purpose deemed appropriate by the Commission” (dissenting op at 26). But it did

intend exactly what it stated in section 995-c (6): the Databank is to be used for “law

enforcement identification purposes.” The dissent never claims that familial matching falls

outside of that statutory authorization. Far from a standardless or overly amorphous grant

of lawmaking authority of the sort at issue in Boreali, the legislature expressly defined the

limited sphere in which the Commission was authorized to promulgate regulations

concerning access to and use of information from the Databank.8 The legislature restricted

access to specified law enforcement offices (§ 995-c [6] [a]); only when such offices had a

written agreement with the DCJS, consistent with the provisions of the Databank Act (id.);

8 We are very reluctant to consider subsequent failed legislation to interpret the meaning of a statute (see Matter of Oswald N., 87 NY2d 98, 103 n 1 [1995] [“(l)egislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences”], quoting Clark v Cuomo, 66 NY2d 185, 190-191 [1985]). The various proposed but unsuccessful legislative efforts concerning familial searches does not bear on the interpretation of the Databank Act, and the failures could just as easily indicate the satisfaction of subsequent legislatures with the Commission’s familial search regulations. The FDS Regulations are quite stringent in practice: according to counsel for the Commission, since the Regulations were adopted in October 2017, there have been only 53 requests for familial searches (43 unique applications and 10 reapplications), of which 16 were rejected and only 30 produced matches reported back to the requesting law enforcement agency. In any event, the legislature remains free to expand, constrict, or alter the scope of the regulations, or to expressly remove the Commission’s authority to issue those regulations. - 17 - - 18 - No. 70

only when such offices submitted a DNA sample for comparison; and only for specified

purposes, including the investigation of a crime (id.). The challenged regulations

implement and fully comply with the statutory mandate, including that the information

released from the Databank is done only when the request is in connection with the

investigation of a crime (or the other two statutory purposes not at issue here).

Indeed, as would be expected from the text of the Databank Act evidencing a

legislative concern for the security and privacy of such information, the challenged FDS

Regulations sharply limit the universe of data that might be disclosed. In the absence of

those regulations—left purely to the statutory language—nothing would restrict requests

for familial searches to, for example, instances where a law enforcement agency had not

attempted any other means to identify the perpetrator.

The legislative history of the Databank Act further confirms that the legislature

intended to delegate to the Commission the power to regulate access to and use of

information in the Databank (Assembly Mem in Support, Bill Jacket, L 1994, ch 737 at 5

[“the bill’s unprecedented creation of the Commission on Forensic Science, coupled with

its specific prescriptions governing the state DNA identification index and use of DNA

records, ensures a reasoned approach to the implementation of forensic DNA technology

in New York”]), and carefully considered the decision to task the Commission with the

duty of safeguarding the sensitive genetic information therein (see Budget Report on Bills,

Bill Jacket, L 1994, ch 737 at P8 [the Databank Act “prescribes limited circumstances

under which records contained in the DNA identification index can be released . . . and

provides confidentiality rules, and penalties for inappropriate disclosure of such

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confidential DNA records”]). The legislature contemplated that the Commission would be

authorized to promulgate DNA collection and analysis policies and directed the

Commission to regulate access to the Databank (Mem of Atty Gen, L 1994, ch 737 at 12

[the Databank Act will “ensure that DNA samples are collected and analyzed so as to

enhance law enforcement investigations while not trampling on the rights of innocent

individuals”]).

Given the clarity and specificity of the guidelines provided in the Databank Act,

respondents acted within their delegated authority. The FDS Regulations are a result of

“administrative rule-making,” not “legislative policy-making” (Matter of Independent Ins.

Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 39 NY3d 56, 69

[2022]). Here, the legislature made the policy determination that New York State should

have well-developed DNA testing programs to assist law enforcement, that the use of the

information should be limited, and the data and results secure. To achieve those ends, it

directed the Commission to promulgate rules and administer that program in accordance

with the legislature’s defined policy ends, including the protection of privacy interests (cf.

Delgado v State, 39 NY3d 242, 263-264 [2022]). That the statute does not expressly

mention familial searches is not pertinent; the statutory provisions cited above grant the

Commission the power to determine what constitutes a “match” and to establish rules

regarding use, dissemination, and confidentiality of information based on matches of DNA

samples submitted by law enforcement (see e.g. Garcia v New York City Dept. of Health

& Mental Hygiene, 31 NY3d 601 [2018] [holding that the Board of Health may require

influenza vaccines even though influenza was not expressly listed among the vaccines

- 19 - - 20 - No. 70

required by statute]; Matter of Levine, 39 NY2d at 515 [statutory “standards or guides need

only be prescribed in so detailed a fashion as is reasonably practicable in light of the

complexities of the particular area to be regulated”]; Matter of Sullivan County Harness

Racing Assn. v Glasser, 30 NY2d 269, 276 [1972] [holding that the statutory authority

granted to the Racing Commission to issue licenses only “in the public interest,

convenience or necessity” and the “best interests of racing generally” properly allowed the

Commission to condition a racetrack’s license on the prohibition of televising races]).9

9 The decisions cited by our dissenting colleagues are inapposite – they involved the question of whether regulations promulgated under a facially broad grant of authority usurped the legislative function. In Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene (23 NY3d 681 [2014]), we held that the authority of the New York City Department of Health (DOH) was not so broad as to permit it to limit the size of soda containers, though would have been broad enough to require labels to show caloric content. Considerations of “economic consequences . . . tax implications for small business owners . . . and personal autonomy” as to what beverages people consume strayed far from the DOH’s legislative authorization. Likewise inapposite is the dissent’s observation that considerations of privacy were beyond the mandate of the DOH in Matter of New York Statewide Coalition: there, the DOH’s statutory grant of authority did not mention the protection of privacy interests, whereas the Databank Act contains numerous provisions requiring the Commission to promulgate regulations that protect the privacy interests of individuals (see Executive Law §§ 995-b [2] [d], [9] [b] [ii], [9] [b] [iii], [9] [b] [iv], [9] [b] [v], [9] [b] [vi], [9] [b] [viii]; 995-c [6]; 995-d).

By contrast, in Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv. (27 NY3d 174) [2016], the Public Health Law demonstrated that the legislature had made the policy decision to limit secondhand smoke in certain areas of the state, “and left it to state agencies to act within the confines of that determination” (id. at 183). The Databank Act’s grant of regulatory is, in contrast, narrow and specific: it directed the Commission to weigh multiple specified interests, with technical guidance from the DNA Subcommittee, and promulgate rules that achieve the defined legislative goals. The Commission exists to promulgate standards, accreditation, and protect privacy. In choosing to allow, subject to strict restrictions, the use the familial DNA searches, it has defined matches and taken steps to protected privacy exactly as it was authorized to do.

- 20 - - 21 - No. 70

Regulatory agencies are “clothed with those powers expressly conferred by [their]

authorizing statute[s], as well as those required by necessary implication” (Matter of

Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 221 [2017]). In general,

agencies “can adopt regulations that go beyond the text of [enabling] legislation, provided

they are not inconsistent with the statutory language or its underlying purposes” (Matter of

General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2

NY3d 249, 254 [2004]). Because the Databank Act charges the Commission with

determining what constitutes a “match” and authorizes the Commission to promulgate

regulations that balance the legislative purpose of aiding law enforcement through the use

of the Databank with concerns about misuse and security of the Databank and results

produced from it, we reject petitioners’ challenge to the regulations governing familial

searches.

IV.

Petitioners advance an alternative argument that the FDS Regulations are arbitrary

and capricious and request that we remand this case to the Appellate Division for

consideration of that issue. Petitioners argue that respondents promulgated the FDS

Regulations without appropriate consideration of the potentially disproportionate impact

of familial searches on Black and Hispanic New Yorkers, and whether the investigatory

benefit of using familial searches outweighs that potential disproportionate impact. In

article 78 proceedings, a court may not disturb an administrative action unless it finds no

rational basis for the agency’s action, or that the challenged action was arbitrary and

capricious (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns

- 21 - - 22 - No. 70

of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]). Here, the

record demonstrates that respondents promulgated the FDS Regulations only after

soliciting and receiving public comment and considering relevant issues, in accordance

with their statutory obligations. Moreover, the regulations have, in practice, resulted in an

extremely small number of familial search results provided to law enforcement agencies—

about five per year—which evidences the restrictiveness with which the FDS regulations

were drawn to protect privacy interests. No abuse of discretion appears on this record.

Accordingly, the order of the Appellate Division should be reversed, with costs, and

the petition dismissed.

- 22 - LINDLEY, J. (dissenting):

The decision to permit familial searching of the DNA Databank in New York was

made by the Commission on Forensic Sciences (Commission) based upon the “binding

recommendation” of its DNA Subcommittee pursuant to Executive Law § 995-b (13) (b).

-1- -2- No. 70

In my view, the legislature did not authorize either the Commission or the DNA

Subcommittee to make important policy-laden decisions of this nature, and respondent

agencies, in adopting the familial search regulations, “crossed the hazy ‘line between

administrative rule-making and legislative policy-making’ ” (Greater N.Y. Taxi Assn. v

New York City Taxi & Limousine Commn., 25 NY3d 600, 610 [2015]). I therefore

respectfully dissent.

To understand the purposes behind the relevant authorizing legislation (i.e., the

DNA Databank Act [Executive Law § 995 et seq., L 1994, ch 737]), it may be helpful to

review the events that led to its passage. The first successful use of DNA evidence by a

prosecutor in the United States came in 1987 during a Florida rape trial, where the

defendant was tied to DNA left at the crime scene. The intermediate appellate court upheld

the conviction, finding that the DNA evidence in that case was sufficiently reliable to be

admitted into evidence (see Andrews v State, 533 So 2d 841, 849-851 [Fla. Dist. Ct. App.

1988]). Prosecutors in New York and other states soon began using DNA evidence as well,

with mixed results, at least initially.

In 1989, following a three-month Frye hearing, the trial judge in People v Castro

(144 Misc 2d 956, 979 [Sup Ct, Bronx County 1989]) ruled that, although “DNA forensic

identification techniques and experiments are generally accepted in the scientific

community and can produce reliable results,” certain DNA evidence in that case was

inadmissible because the “testing laboratory failed in several major respects to use the

generally accepted scientific techniques and experiments for obtaining reliable results,

within a reasonable degree of scientific certainty” (id. at 980). The Castro case, and others

like it, demonstrated the need in New York for an oversight body to ensure the scientific

accuracy of DNA testing. In the years that followed, the so-called “DNA Wars” were

fought in courtrooms across the country over the accuracy and reliability of DNA testing

methods and results (see Jay D. Aronson, Genetic Witness: Science, Law and Controversy

and the Making of DNA Profiling [2007], at 120-145).

In March 1994, this Court determined that DNA evidence (specifically, the

“restriction fragment length polymorphism” [RFLP] methodology) was generally accepted

as reliable in the scientific community (People v Wesley, 83 NY2d 417, 426 [1994]). The

determination in Wesley established that the RFLP methodology satisfied the Frye standard

of admissibility, thus opening the door to widespread use of such evidence in criminal

cases, provided, of course, that the laboratory procedures were adequate “to assure the

accuracy and reliability of its testing results” (id.).

Several months later, “[i]n direct response to this Court’s green light in People v

Wesley [] for the introduction of DNA profile evidence” (People v Williams, 35 NY3d 24,

50 n 1 [2020] [DiFiore, J., concurring]), the legislature enacted the DNA Databank Act,

which created the Commission on Forensic Science and “a subcommittee on forensic DNA

laboratories and forensic DNA testing,” i.e., the DNA Subcommittee (Executive Law §

995-b [13] [a]). The Act also authorized the establishment of the DNA Databank for the

collection and storage of DNA from people convicted of certain enumerated felonies

(“designated offenders”).

Pursuant to Executive Law § 995-a, the Commissioner of the Department of

Criminal Justice Services (DCJS) sits as Chair of the Commission, which has oversight

over all forensic evidence, and the Governor appoints 12 of its 14 members.1 The Chair of

the Commission then appoints the Chair of the DNA Subcommittee, who, based on

recommendations from the Commissioner of Health and the DCJS Commissioner, selects

the DNA Subcommittee's other six members, all of whom must have expertise in either

molecular biology, population genetics, forensic science, or “laboratory standards and

quality assurance regulation and monitoring” (§ 995-b [13] [a]).

Executive Law § 995-b (1) directs the Commission to “develop minimum standards

and a program of accreditation for all forensic laboratories in New York State, including

establishing minimum qualifications for forensic laboratory directors and such other

personnel as the [C]ommission may determine to be necessary and appropriate, and

approval of forensic laboratories for the performance of specific forensic methodologies.”

The objectives of the Commission in developing minimum standards and a program of

accreditation are to:

1 In addition to the Commissioner and the 12 members appointed by the Governor, the Commission is further comprised of “the commissioner of the department of health or his or her designee,” who serves as an “ex-officio member of the [C]ommission” (Executive Law § 995-a). -4- -5- No. 70

“(a) increase and maintain the effectiveness, efficiency, reliability, and accuracy of forensic laboratories, including forensic DNA laboratories;

“(b) ensure that forensic analyses, including forensic DNA testing, are performed in accordance with the highest scientific standards practicable;

“(c) promote increased cooperation and coordination among forensic laboratories and other agencies in the criminal justice system;

“(d) ensure compatibility, to the extent consistent with the provisions of this article and any other applicable provision of law pertaining to privacy or restricting disclosure or redisclosure of information, with other state and federal forensic laboratories to the extent necessary to share and exchange information, data and results of forensic analyses and tests; and

“(e) set forth minimum requirements for the quality and maintenance of equipment” (§ 995-b [2]).

The statute further provides that the Commission, “in consultation with the DNA

[S]ubcommittee, shall promulgate a policy for the establishment and operation of a DNA

identification index consistent with the operational requirements and capabilities of the

division of criminal justice services” (Executive Law § 995-b [9]). The “index” is another

term for the Databank, which has been expanded over the years by the legislature to include

DNA from people convicted of all felonies and Penal Law misdemeanors (see e.g. L 2004

ch 136; L 1999, ch 560).

The DNA Subcommittee, for its part, is authorized to “assess and evaluate all DNA

methodologies proposed to be used for forensic analysis, and make reports and

recommendations to the commission as it deems necessary” (Executive Law § 995-b [13]

[b]). Pertinent to this appeal, the Subcommittee shall also “make binding recommendations

for adoption by the [C]ommission addressing minimum scientific standards to be utilized

in conducting forensic DNA analysis including, but not limited to, examination of

specimens, population studies and methods employed to determine probabilities and

interpret test results” (id.).

As can be surmised from its provisions, the DNA Databank Act was designed by

the legislature to address “[o]ne of the major criticisms of the use of DNA evidence in

prosecution” at the time, which was “the lack of minimum standards for laboratories that

did DNA testing” (George H. Barber & Mira Gur-Arie, New York's DNA Databank and

Commission of Forensic Science: An Analysis of Chapter 737 of the Laws of 1994, [1994],

at 5). The legislative history shows that the idea behind the establishment of the DNA

Databank was that convicted felons were likely to reoffend, and having their DNA in the

Databank might help solve future crimes (see New York State Law Enforcement Council,

Letter of Support, Bill Jacket L 1994 ch 737 at 29; State of New York, Department of Law,

Mem of Support, Bill Jacket L 1994, ch 737 at 11; District Attorney, Queens, New York,

Letter of Support, Bill Jacket L 1994 ch 737 at 36). Although the DNA Databank Act

infringed upon the designated offenders’ genetic privacy rights, the designated offenders

were deemed to have a diminished expectation of privacy due to their prior criminal

conduct (see Nicholas v Goord, 430 F3d 652, 669 [2d Cir 2005]).

For the first two decades or so of its existence, the DNA Databank was used for its

intended purpose, i.e., to compare DNA recovered from crime scenes with the genetic

profiles of designated offenders in the Databank to look for matches, which, if found,

would lead the police directly to the perpetrator. In October 2017, however, DCJS

permitted a new use of the Databank when it promulgated the familial search regulations

at issue herein.

Familial searching generally refers to the “deliberate search of a DNA database

conducted for the intended purpose of potentially identifying close biological relatives to

the unknown forensic profile obtained from crime scene evidence” (Allison Murray et al.,

Familial DNA Testing Current Practices and Recommendations for Implementation, 9

INVEST. SCI. J. 1, 2 [2017]). Instead of targeting convicted criminals whose DNA is

already stored in the database, all of whom have been eliminated as suspects following an

unsuccessful search for direct genetic matches, familial searching targets their siblings,

parents and children, many of whom has never committed a crime. And familial searching

can identify multiple people in the Databank who may be related to the perpetrator.

“[F]amilial searches generate only leads, which in turn point to a list of possible suspects,

all but one of whom definitely did not leave the evidence” (Erin Murphy, Relative Doubt:

Familial Searches of DNA Databases, Michigan Law Review, Vol. 109-291, at 313

[2010]). Thus, almost by definition, most suspects investigated by the police as a result of

a familial DNA search are innocent.2

2 As respondents acknowledge, so far only two people investigated by the police as a result of familial searching in New York have been arrested. -7- -8- No. 70

The use of familial searching as an investigatory tool was developed in the United

Kingdom in the early 2000’s, leading to the arrest and conviction of several violent

criminals (Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, 34

J. L. Med & Ethics 248 [2006]). In 2009, California became the first state to expressly

permit familial searching of its DNA database, followed by Colorado the next year. By

2014, after several other states had adopted familial search policies, the legislature in New

York began to consider its use here. Bills to amend the DNA Databank Act to permit

familial searching were proposed and submitted in the Assembly in 2014, 2015, 2016, 2017

and 2018, but none made it out of committee (see e.g., 2014 Assembly Bill 9247, 2015

Assembly Bill 1515). In the Senate, a bill to authorize the use of familial searching was

introduced in December 2016 and then again in early 2017. The Senate approved the bill

in February 2017 by a vote of 49-11 (S-2956A), but the bill, after delivery to the Assembly,

died in committee (A-683).

Meanwhile, over in the executive branch, the Acting Commissioner of DCJS (the

Commissioner) received a letter in December 2016 from the Queens County District

Attorney requesting that the Commission authorize the use of familial searching of the

DNA Databank. The District Attorney referenced the unsolved murder of a Howard Beach

woman who was found to have male DNA under her fingernails, on her neck and on her

cell phone. The genetic profile extracted from that DNA did not match any profiles in the

state Databank, and the District Attorney wanted to know whether the perpetrator might

instead be related to someone in the Databank.3

The DCJS Commissioner referred the request to the DNA Subcommittee, which

held a joint public meeting with the Commission on February 10, 2017 to consider the use

of familial searching of the Databank. Following that joint meeting, members of the

Subcommittee met in small groups (less than a quorum so as not to run afoul of the Open

Meetings Law) and drafted proposed regulations permitting familial searching as well as

an implementation plan. The Subcommittee approved the regulations and plan on March

27, 2017 and forwarded them to the Commission.

On April 12, 2017, the Commission reviewed the proposed regulations and, after

discussing various provisions at length, voted to send the regulations back to the

Subcommittee with several proposed amendments. The Commission requested that the

Subcommittee consider the suggested changes and make a “binding recommendation with

regard to the issue of Familial Search; specifically the policy, regulations and

implementation plan” (Commission Minutes, 4/12/17).

During a public meeting held on May 17, 2017, the DNA Subcommittee voted

unanimously to “make a binding recommendation to the Commission on Forensic Sciences

that New York State adopt the familial searching policy as it was amended, as well as the

regulations and implementation plan that have been similarly revised to reflect the changes

3 The crime was later solved without the use of familial searching. -9- - 10 - No. 70

in policy” (Subcommittee Minutes, 5/17/17). The Subcommittee also made a binding

recommendation to the Commission as to the level of kinship threshold that should be

established when conducting a familial search. At that time, only one of the seven

Subcommittee members resided in New York State.

On June 16, 2017, the Commission approved the Subcommittee's binding

recommendations by a vote of 9-2.4 Notice of the proposed familial search regulations

(FDS regulations), as drafted by the DNA Subcommittee, was published in the state

register, thus commencing the statutory 45-day public comment period. According to the

state register, the “[S]tatutory authority” for the proposed regulations was Executive Law

sections 837 (13), 995-b (9) and 995-b (13). Following receipt of comments from

supporters and opponents of familial searching, the FDS regulations became effective on

October 18, 2017. The notice of adoption set forth in the state register reflected, once

again, that the FDS regulations were promulgated by DCJS pursuant to sections 837 (13),

995-b (9) and 995-b (13) of the Executive Law (39 N.Y. Reg. 3 [10/18/2017]).

I note that, although all states have had DNA databases since 1998, the vast majority

do not allow familial searching. The legislatures in several states declined to approve bills

to authorize familial searching, while Maryland and the District of Columbia have laws

4 The Commission Chair stated that, due to the binding nature of the Subcommittee’s recommendation, the Commission had to either accept the proposed regulations in their entirety or send them back to the Subcommittee. The oxymoronic term “binding recommendation” is not defined in Executive Law article 49-B, so it is unclear whether the Commission had authority to reject the Subcommittee’s binding recommendation. - 10 - - 11 - No. 70

expressly forbidding its use (Md. Code Ann. Pub. Safety § 2-506 [d] [2010]; D.C. Code §

22-4151 [b] [2012]). Only twelve states, including New York (until the Appellate

Division’s ruling), allow familial searching. The FBI does not use familial searching of its

Combined DNA Index System (CODIS), taking the position that it would need

authorization from Congress to do so (see Ellen Nakashima, From DNA of Family, a Tool

to Make Arrests, Wash Post, 4/21/2008). Such authorization has not been forthcoming.

In this proceeding pursuant to CPLR article 78, petitioners sought an order annulling

the familial search regulations, among other forms of relief. The petition alleged that

respondents, in promulgating the regulations, usurped the legislature’s power to enact laws

affecting the rights of New York's citizens and exceeded the powers delegated to them by

the DNA Databank Act. The petition further alleged that the familial search policy is

arbitrary and capricious, primarily because it subjects innocent people, a disproportionate

number of whom are African-American, to the risk of police investigation with little

corresponding benefit to law enforcement.5

In their joint answer, respondents asserted as an objection in point of law that

petitioners lacked standing to challenge the FDS regulations because they have not suffered

an injury-in-fact and are outside the zone of interests sought to be promoted or protected

by the DNA Databank Act (see generally Matter of Mental Hygiene Legal Serv. v Daniels,

5 The petition asserted other causes of action that have since been abandoned on appeal (see generally Webb-Weber v Community Action for Human Servs, Inc., 23 NY3d 448, 451, n2 [2014]). - 11 - - 12 - No. 70

33 NY3d 44, 52 [2019]). According to respondents, petitioners failed to establish an

injury-in-fact because they have not been investigated by the police or otherwise suffered

any actual harm because of the familial search policy, and the risk that they will be harmed

in the future is far too remote and speculative to confer standing.

V.

Although Supreme Court determined that petitioners have standing to sue, it

dismissed the petition on the merits, finding that “the adoption of the Regulations were

within the broad and ‘large scale’ delegation of authority from the Legislature to the

Division in its enabling statute” (2020 NY Slip Op 300861 [U], 5 [Sup Ct NY County

2020]). Using the Boreali factors as a guide (see Boreali v Axelrod, 71 NY2d 1, 11-15

[1987]), the court further determined that respondents, in promulgating the FDS

regulations, did not overstep their permissible rule-making authority and cross over into

the legislature’s policy-making domain. Finally, the court determined that the regulations

have a rational basis and are not arbitrary and capricious.

In a 3-2 decision, the Appellate Division reversed and granted the petition (206

AD3d 88 [1st Dept 2022]). The majority agreed with Supreme Court that petitioners have

standing but concluded that respondents lacked authority to adopt the familial search

policy. Having so concluded, the majority did not address whether the regulations were

arbitrary or capricious. The dissenters would have dismissed the petition on standing

grounds alone, noting that “the regulations will not affect petitioners unless many rare

conditions are all independently satisfied” (id., at 108 [Singh, J. dissenting]).

This appeal ensued.

VI.

As a threshold matter, I agree with the majority that petitioners have standing to

commence this proceeding. I add only that respondents’ argument with respect to

standing—that the risk of petitioners being investigated by the police as a result of the

familial search regulations is too remote and speculative to allow them access to the

courts—would, if accepted, mean that the only people who could possibly have had

standing to sue were those who were actually investigated by the police before the four-

month statute of limitations period expired, which would be no one. That would be

contrary to this Court’s admonition that common-law standing rules should not be applied

“ ‘in an overly restrictive manner where the result would be to completely shield a

particular action from judicial review’ ” (Matter of Sierra Club v Village of Painted Post,

26 NY3d 301, 311 [2015], quoting Matter of Association for a Better Long Is., Inc. v New

York State Dept. of Envtl. Conservation, 23 NY3d 1, 6 [2014]).

Respondents do not dispute that their position on standing would effectively close

the courthouse doors to everyone who seeks to challenge the familial search regulations in

an article 78 proceeding, thereby erecting “an impenetrable barrier to any judicial scrutiny”

of the FDS regulations in that context (Colella v Bd. of Assessors of Cnty. of Nassau, 95

NY2d 401, 410 [2000] [internal quotation marks omitted]; see Saratoga County Chamber

of Commerce v Pataki, 100 NY2d 801, 814 [2003] [“our duty is to open rather than close

the door to the courthouse”], cert denied 540 US 1017 [2003]). Nor do respondents dispute

- 13 - - 14 - No. 70

that petitioners have a heightened risk of being investigated by the police as compared to

the general public.6 Instead, respondents suggest that the legality of their regulatory actions

will not entirely evade judicial review because a person charged criminally as a result of

familial searching could challenge the regulations in a suppression motion.

But respondents assume that criminal defendants have standing to seek suppression

of evidence obtained following disclosure to the police that they are related to someone in

the Databank whose DNA is a partial match with forensic DNA, a position rejected by the

Appellate Division (Stevens, 206 AD3d at 100-101). The only criminal court in New York

to consider the legality of familial searching in the context of a suppression motion

concluded that the defendant—who relied on the Appellate Division’s determination in this

case that the FDS regulations were unlawfully promulgated—lacked “standing to invoke

the exclusionary rule to suppress the statements and the DNA evidence obtained because

of the investigative efforts taken after the familial DNA search” (People v Williams, 77

Misc 3d 782, 785 [Sup Ct, Monroe County 2022]). Regardless, it would be incongruous

if, as respondents assert, the only people who may challenge the legality of the familial

search policy are those who have been charged with committing a heinous crime, while

law-abiding citizens like petitioners have no such right.

VII.

6 Indeed, it would seem that no one would have a higher risk than petitioners, except perhaps someone who has two first-degree relatives in the Databank. - 14 - - 15 - No. 70

To the extent that we may address petitioners’ third cause of action, alleging that

the FDS regulations are arbitrary and capricious, I readily agree with the majority that it

lacks merit.7 As can be seen from recordings of the various public meetings that are

incorporated by reference into the record, members of the Commission and the DNA

Subcommittee carefully balanced competing policy considerations to formulate rational

regulations allowing familial searching under limited circumstances subject to the approval

of the DCJS Commissioner. Inasmuch as I agree with the majority on standing and the

arbitrary and capricious cause of action, this appeal turns on petitioners’ cause of action

alleging that respondents, in allowing familial searching, exceeded the scope of powers

delegated to them by the legislature under the DNA Databank Act.8

It is well settled that “[a] governmental agency exceeds the scope of its delegated

authority in promulgating a regulation when it engages in impermissible ‘legislative policy-

making,’ as opposed to permissible ‘administrative rule-making’ ” (Matter of Independent

Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 39 NY3d 56, 69

[2022], quoting Boreali, 71 NY2d at 11). Because the line between policy-making and

rule-making actions is often difficult to discern, this Court, for the past 35 years, has

7 The Appellate Division did not reach this issue. Petitioners therefore ask that, if we disagree with the Appellate Division on the first cause of action, we remit the matter for resolution of their arbitrary and capricious claim (brief for respondents at 62). 8 Given the dormant status of the nondelegation doctrine (the US Supreme Court has not invalidated a statute on that ground since 1935), I agree with the majority that the legislature could have delegated to respondents the authority to make important policy decisions on the level of allowing familial searching if it had wanted to do so. - 15 - - 16 - No. 70

consistently used the Boreali factors as a guide to resolve challenges to administrative

action (see e.g. Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601,

609 [2018]; Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 222

[2017]; Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation &

Historic Preserv., 27 NY3d 174, 179 [2016]).

The factors to consider under Boreali are “whether (1) the agency did more than

balanc[e] costs and benefits according to preexisting guidelines, but instead made value

judgments entail[ing] difficult and complex choices between broad policy goals to resolve

social problems; (2) the agency merely filled in details of a broad policy or if it wrote on a

clean slate, creating its own comprehensive set of rules without benefit of legislative

guidance; (3) the legislature has unsuccessfully tried to reach agreement on the issue, which

would indicate that the matter is a policy consideration for the elected body to resolve; and

(4) the agency used special expertise or competence in the field to develop the challenged

regulation[]” (NYC C.L.A.S.H., 27 NY3d at 179-180 [internal quotation marks and citations

omitted]; see Boreali, 71 NY2d at 12-14).

“Any Boreali analysis should center on the theme that ‘it is the province of the

people’s elected representatives, rather than appointed administrators, to resolve difficult

social problems by making choices among competing ends’ ” (Matter of New York

Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health

& Mental Hygiene, 23 NY3d 681, 697 [2014], quoting Boreali, 71 NY2d at 13).

Here, Supreme Court found that the Boreali factors weighed in respondents’ favor

and concluded that the Commission did not engage in impermissible policy-making when

adopting the FDS regulations. The Appellate Division disagreed, concluding that the

Boreali factors overwhelmingly favored petitioners and that respondents exceeded their

rule-making authority in allowing familial searching. Respondents contend that the

Appellate Division erred in applying the Boreali factors as a guide to determining whether

they had authority to promulgate the regulations. This is so, respondents reason, because

the DNA Databank Act clearly grants them such authority, which should end the analysis.

As petitioners point out, however, respondents failed to make that argument to the trial

court. Indeed, respondents addressed the Boreali factors and argued that all four of them

weighed in their favor.

The majority agrees with respondents that the Boreali factors do not inform our

analysis, and it would “exile Boreali ” (Matter of LeadingAge N.Y., Inc. v Shah, 32 NY3d

249, 282 [2018] [Wilson, J.,dissenting]) to an island of cases involving “exceedingly broad

and nonspecific” grants of legislative authority (majority op at 10, n 3). The majority

instead focuses its analysis exclusively on whether the legislature’s grant of authority to

the Commission in the DNA Databank Act is broad enough to include the power to permit

familial searching. The Appellate Division addressed that same issue at length during its

consideration of the first Boreali factor, ultimately concluding that the regulations “were

made in excess of respondents’ authority” (Stevens, 203 AD3d at 104), so to an extent the

two analyses overlap. Under the circumstances, I see no compelling reason to ignore the

- 17 - - 18 - No. 70

remaining three Boreali factors, with the understanding that all four factors are mere

guidelines. While Boreali involved a broad grant of statutory authority, far different from

the specific provisions of the Databank Act, the bottom line remains the same: “the scope

of the [agency’s] authority under its enabling statute must be deemed limited by its role as

an administrative, rather than a legislative body” (Boreali, 71 NY2d at 10-11). In any

event, I submit that petitioners should prevail with or without guidance from the Boreali

factors.

With respect to the first Boreali factor, it is clear that members of the Commission

and DNA Subcommittee, in adopting the FDS regulations, made value judgments on a

wide spectrum of public policy issues. The decision to allow familial searching necessitated

a balancing of many factors, including society’s interest in solving serious crimes against

the civil liberty interests of citizens to be free from unreasonable governmental intrusions.

Of course, there is also a racial component to consider because the DNA Databank

comprises a disproportionate number of African-Americans, meaning that a

disproportionate number of African-Americans will likely be investigated by the police as

a result of familial searching.

Moreover, although DNA of suspects investigated by the police will never enter the

state’s Databank unless they are ultimately convicted of a crime (see Executive Law § 995-

c [9] [b]), any “eliminating” DNA samples obtained from them by the police during the

investigation (either by consent or surreptitious collection of abandoned DNA) could well

end up in a local DNA Databank (see Reclaiming “Abandoned” DNA: The Fourth

Amendment and Genetic Privacy, 100 Northwestern L. Rev 857 [2006]). There are 20

local DNA databanks operating in New York, the largest of which, in New York City,

contains more than 31,000 profiles, including those of people who were merely arrested or

questioned by the police and not ultimately convicted of anything. The question of what

will happen to the DNA of innocent persons from whom samples are obtained by the police

is yet another policy issue arising from the use of familial searching. On the other side of

the ledger, there is the potential of familial searching to reduce the incidence of wrongful

conviction and exonerate those who have already been wrongfully convicted, as well as

the assistance it may provide in cases where human remains are unidentified.

The seminal point here is that the Commission, in deciding whether to approve the

DNA Subcommittee’s binding recommendation to adopt the FDS regulations, necessarily

had to make value judgments with respect to the many and varied public policy

considerations. The first factor thus militates heavily in favor of petitioners.

The second Boreali factor also favors petitioners inasmuch as the legislature, when

it passed the DNA Databank Act, provided no guidance regarding how the Databank

should be used except to search for suspects among designated offenders. Indeed, familial

searching did not exist then and, more importantly, was not even on the horizon as an

investigative tool. Thus, the only conceivable use of the Databank at the time it was created

was to search for direct matches. It therefore cannot be said that the legislature provided

general guidance on familial searching and left it to respondents to determine how and

under what circumstances it should be used. Instead, members of the DNA Subcommittee

wrote the FDS regulations on a clean slate, using as guides the familial search regulations

from California and Colorado, among other states.

The third factor—whether the “legislature has unsuccessfully tried to reach

agreement on the issue”—is, at best for respondents, a push considering that we are

reluctant to draw inferences one way or the other from legislative inaction due to its “

‘inherent ambiguity’ ” (Matter of Oswald N., 87 NY2d 98, 103 n. 1 [1995]; see Acevedo,

29 NY3d at 202). But the fact that the legislature considered bills to allow familial

searching annually from 2014 through 2019 and failed to enact any of them into law

certainly does not support respondents’ position, as they contend. With respect to the third

factor, the Boreali Court stated: “The repeated failures by the Legislature to arrive at such

an agreement do not automatically entitle an administrative agency to take it upon itself to

fill the vacuum and impose a solution of its own” (71 NY2d at 13). That general principle

is as valid today as it was back then, and is apropos here.

The remaining factor also supports petitioners inasmuch as the Commission, unlike

the DNA Subcommittee, does not have any “special expertise or competence in the field”

of familial searching or even DNA evidence in general (Greater N.Y. Taxi Assn., 25 NY3d

at 612; see Executive Law § 995-b [13] [b]). That is why the legislature created the DNA

Subcommittee and gave it authority to make binding recommendations on technical matters

to the Commission, which oversees all forensic evidence, not just DNA. In any event, the

decision to allow familial searching of the Databank does not require special expertise in

DNA evidence; instead, it requires the balancing of myriad policy considerations, a task

that legislators are far better equipped to handle than unelected members of the

Commission and DNA Subcommittee, many of whom, although very accomplished in their

respective fields, do not even reside in New York.

In sum, while acknowledging that the Boreali factors should not to be “rigidly

applied in every case” and overlap to some degree (Matter of New York Statewide Coalition

of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene,

23 NY3d 681, 696 [2014]), I conclude that they amply support the Appellate Division’s

finding that respondents did not engage in mere regulatory rule-making when promulgating

the FDS regulations and instead made significant policy decisions reserved for the

legislature.

VIII.

The majority does not seem to dispute that respondents engaged in policy-making

by permitting familial searching of the DNA Databank. In the majority’s view, however,

the legislature delegated to the Commission the authority to do so, and the FDS regulations

were therefore lawfully promulgated. To reach that conclusion, the majority focuses on

the role of the Commission in approving the regulations and relies on various provisions

of Executive Law article 49-B as providing the requisite legislative authority for doing so.

Specifically, the majority cites to language in Executive Law §§ 995-b (9), 995-b (11),

995-b (12) and 995-c (6), only one of which (§ 995-b [9]) was cited in the state register as

statutory authority for DCJS’s promulgation of the regulations. As noted, the state register

identified §§ 837 (13) and 995-b (13) as the other authorizing statutes, and respondents

should not now be heard to argue that they acted pursuant to statutory authority that they

did not actually rely on to adopt the regulations.

For the reasons that follow, I do not think that any of the statutes relied upon by

respondents or the majority authorized the DNA Subcommittee to draft the FDS

regulations and make a binding recommendation to the Commission that they be approved,

nor did they authorize the Commission to approve the binding recommendation or DCJS

to ultimately promulgate them.

I will first address the statutes cited in the state register as authorizing promulgation

of the regulations. Executive Law § 837 (13) merely provides DCJS with the power to

“[a]dopt, amend or rescind such rules and regulations as may be necessary or convenient

to the performance of the functions, powers and duties of the division.” This ability to

promulgate regulations presumes, of course, that the substantive content of the regulations

is within the ambit of DCJS’s authorized powers. If it were otherwise there would be no

limit on the agency’s regulatory authority. Perhaps for that reason respondents do not even

mention section 837 (13) on appeal.

Respondents’ brief does mention section 995-b (13), which was also cited in the

state register as statutory authority for the regulations. Indeed, given the prominent role

played by the DNA Subcommittee in the process, it appears that the Commission, in

approving the regulations, relied primarily on authority set forth in section 995-b (13) (b),

which authorizes the DNA Subcommittee to make recommendations to the Commission

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with respect to “approved methodologies for the performance of forensic DNA testing”

and “make binding recommendations for adoption by the commission addressing minimum

scientific standards to be utilized in conducting forensic DNA analysis” (§ 995-b [13] [b]).

But the legislative authorization required to permit the Commission, after a binding

recommendation by the Subcommittee, to allow familial searching is a significantly

broader authorization than that actually granted by the legislature, which was merely the

authority to approve new testing methodologies. In establishing the Subcommittee, the

legislature clearly intended to create a technical advisory committee, not a policy-making

committee. The Subcommittee, however knowledgeable and experienced its members

may be in matters relating to the science of DNA, is not the type of body that the legislature

would entrust with authority to make significant policy decisions. For that reason, I

conclude that section 995-b (13) (b) did not authorize the DNA Subcommittee to make a

binding recommendation on the use of familial searching.

With respect to the Commission’s authority to approve the regulations, the majority

cites to the Commission's ability to promulgate policies “for the establishment and

operation of a DNA identification index,” which includes “the forensic DNA methodology

or methodologies to be utilized in compiling the index” (Executive Law § 995-b [9] [a]).

Although that power was certainly delegated to the Commission, a familial search is not

part of the DNA identification index. As the Appellate Division succinctly observed, “[t]he

overarching public policy consideration in deciding whether to permit familial DNA testing

in the first instance necessarily involves balancing the civil liberty interests of citizens to

be free from unreasonable governmental interference against the societal interest of law

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enforcement in investigating crimes” (206 AD3d 88, 104 [2022]). As noted above, the

balancing of these competing interests presents a significant social policy question. As

defined, a familial search seeks “to indicate potential biologically related individuals to one

or more sources of evidence” (9 NYCRR 6192.1 [ab]).

With that precept in mind, I agree with the Appellate Division that the decision of

whether or not to allow a familial search does not fall within the Commission’s grant of

regulatory authority and remains with the legislature.

The majority, however, states that “[t]he Commission exists to promulgate

standards, accreditation, and protect privacy” (majority op at 20, n 9). In so stating, the

majority appears to take the position that, because the legislature tasked the Commission

with protecting privacy in certain regards, the legislature authorized the Commission to

expand the purpose of the Databank so that it could be used to intentionally target people

who are outside the Databank and who have never been convicted of a crime. And as far

as the protection of privacy is concerned, the DNA Databank Act addresses it in only two

instances. The first is where the statute requires the Commission to include “one member,

who shall be an attorney or judge with a background in privacy issues and biomedical

ethics” (Executive Law § 995-a [2] [j]). But requiring a single member of a 14-member

Commission to have a background in privacy issues and biomedical ethics is an insufficient

basis to determine that the legislature meant for the Commission to expand the scope of

DNA searching to look for suspects outside of the Databank.

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The other situation in which the DNA statute discusses issues of privacy is in the

context of the Commission’s duty to “develop minimum standards and a program of

accreditation for all forensic laboratories in New York state” (Executive Law § 995-b [1]).

It is in that context that the legislature required that one of the objectives “[t]he minimum

standards and program of accreditation shall be designed to accomplish” is to

“ensure compatibility, to the extent consistent with the provisions of this article and any other applicable provision of law pertaining to privacy or restricting disclosure or redisclosure of information, with other state and federal forensic laboratories to the extent necessary to share and exchange information, data and results of forensic analyses and tests” (§ 995-b [2] [d]).

But that is it. There are no other provisions of the DNA Databank Act where the

legislature delegated to the Commission authority to make policy determinations about

privacy. And although the majority focuses on cases cited in this dissent where the Court

found that a regulation requiring balancing considerations of “ ‘economic consequences . .

. tax implications for small business owners . . . and personal autonomy’ ” was beyond the

policy considerations authorized by the legislature (majority op at 20 n 9, quoting Matter

of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City

Dept. of Health & Mental Hygiene, 23 NY3d 681 [2014]), Boreali itself points to privacy

considerations as also being the type of policy considerations that are beyond the scope of

regulatory authority unless they are specifically delegated to the regulatory body at issue:

“Striking the proper balance among health concerns, cost and privacy interests, however,

is a uniquely legislative function” (Boreali, 71 NY2d at 12). The same holds true in this

case, inasmuch as the legislature never authorized the Commission to strike the balance

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between privacy interests and law enforcement concerns by sanctioning the Commission

to expand the purposes for which the Databank is used.

The other provision that respondents and the majority rely on as demonstrating the

Commission’s authority to approve the FDS regulations is Executive Law § 995-b (9),

which provides that “the commission, in consultation with the DNA subcommittee, shall

promulgate a policy for the establishment and operation of a DNA identification index

consistent with the operational requirements and capabilities of the division of criminal

justice services.” The fact that the legislature authorized the Commission to establish and

operate the Databank does not mean that the legislature intended for the Databank to be

used for any purpose deemed appropriate by the Commission.

Nor is authorization for the FDS regulations found in the Commission’s mandate is

to “develop minimum standards and a program of accreditation for all forensic laboratories

in New York state” (§ 995-b [1]). Familial searching has nothing to do with developing

minimum testing and accreditation standards. In my view, there are no provisions of

Executive Law § 995-b (9) that authorize the Commission to approve an entirely new use

of the Databank for investigatory purposes.

This leads to respondents’ contention that familial searching is not, in fact, a new

use of the Databank and that it is not substantially different from partial matching, which

was authorized by the Commission in 2010 (see 9 NYCRR 6192.3 [g]) and has gone

unchallenged since. According to respondents, the Commission's approval of both familial

searching and partial matching is authorized by Executive Law § 995-b (12), which allows

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the Commission to “[p]romulgate standards for a determination of a match between DNA

records contained in the state DNA identification index and a DNA record of a person

submitted for comparison therewith.” As noted, however, the state register makes clear

that respondents did not act pursuant to § 995-b (12) when approving and promulgating the

FDS regulations. Regardless, the statute does not authorize respondents to allow familial

searching of the Database.

The fact that no one has challenged the partial matching regulations does not mean

that they were lawfully promulgated. But even assuming, for the sake of argument, that

partial matching is authorized under the DNA Databank Act, it does not necessarily follow

that the same is true for familial searching given the fundamental differences between two

types of searches. A partial match is found when, during an unsuccessful search for a direct

match between DNA in the Databank and forensic DNA, the searching apparatus

inadvertently identifies a designated offender whose DNA closely resembles crime scene

DNA, thereby suggesting that the designated offender is closely related to the perpetrator

of the crime. Partial matches often arise because the DNA collected from a crime scene is

partially degraded or contains mixtures, making it difficult to identify direct matches.

In such cases, the Commission allows laboratories to conduct additional testing with

lower stringency standards to determine whether a “near miss” shown by the initial test is

in fact a direct match obscured due to the poor quality of the forensic DNA or, instead,

whether it shows that the designated offender in question is closely related to the person

who left DNA at the crime scene (i.e., a partial match). Until the regulations were amended

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in 2010, information regarding partial matches was not shared with law enforcement. With

partial matching the Databank is used for its intended purpose (searching for suspects

within the indices), and the partial match regulations are essentially just a disclosure policy

With familial searching, in contrast, the Databank is intentionally searched for non-

matches (i.e., people who are not designated offenders). In fact, FDS regulations permit

familial searching only after the search for a direct or partial match fails (see 9 NYCRR

6192.3 [h]), and there is no intent with familial searching to find a direct match. Instead

of targeting designated offenders (as is the case with searches for direct and partial

matches), familial searching targets relatives of designated offenders. Additionally,

familial searching uses fewer genetic markets to compare DNA profiles than do searches

for direct and partial matches. The lower stringency search widens the net of designated

offenders whose DNA is deemed similar enough to the forensic DNA to make suspects out

of their relatives, leading to more false positives than partial matching.

Although section 995-b (12) authorizes the Commission to “[p]romulgate standards

for a determination of a match,” the FDS regulations allow familial searching only when

there is no match or partial match between the forensic DNA and the Databanked DNA. If

there is no meaningful distinction between partial matches and “matches” resulting from

familial searching, as respondents suggest, then familial searching would never be

authorized under the regulations, because there would always be a partial match.

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The significant differences between familial searches and partial match searches are

discussed in the following history of familial searching:

“In a May 2006 Science article entitled ‘Finding criminals through DNA of their relatives,’ the authors propose that if a crime stain does not match anyone in the offender database that there is a chance that a relative might be in the database. Since relatives will have similar DNA to one another, loosening the search stringency to permit partial matches rather than full high-stringency matches (where every allele in an STR profile must match) may return a list of results that could include a brother or other close relative. This list of potential relatives could be narrowed through further testing with Y-chromosome markers, which would require all of the potential relatives plus the crime scene sample to be examined with the additional genetic markers. In theory with this approach, the database is effectively enlarged to include close relatives of criminals whose profiles are already on the DNA database.

“The United Kingdom pioneered this partial matching technique, better known as ‘familial searching,’ and has used it to solve a number of cases—but not without controversy. It is worth noting that during routine searches of a DNA database, partial matches can result from samples that have common STR alleles—particularly with moderate or low stringency searches. Generally speaking, a familial search is a second deliberate search looking for relatives” (John M. Butler, Fundamentals of Forensic DNA Typing 282 [2010]).

Inasmuch as a familial search means that a DNA database “is effectively enlarged

to include close relatives of criminals whose profiles are already in the DNA database”

(id.), even if only temporarily, we should expect that the legislature would have to authorize

that temporary expansion of the database at issue here—i.e., the Databank—just as they

have felt it necessary to authorize permanent expansions of the Databank in the past. But

that is not what was done.

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Finally, I note that the term “match” is not defined in article 49-B, so we must

construe it “according to its ordinary and accepted meaning as it was understood at the

time” (Gevorkyan v Judelson, 29 NY3d 452, 459 [2017] [internal quotation marks

omitted]; see People v Eulo, 63 NY2d 341, 354 [1984]). A “match” in this context is

generally understood as something “that is exactly like another” (The American Heritage

Dictionary of The English Language, 4th Edition), and its meaning has not likely changed

since 1994 when Executive Law § 995-b (12) was enacted. Two things either match or

they do not match. If they closely resemble each other, there is no match. When the

legislature authorized the Commission to promulgate standards for “a match” with respect

to the DNA Databank, it was referring to setting standards for how many genetic markers

two DNA profiles have in common such that it may be concluded that the DNA came from

the same person. The legislature did not enact section 995-b (12) with the intent that the

Commission be allowed to determine in the future how the Databank could be used for as

yet unknown investigatory purposes.

I thus conclude that the Appellate Division properly granted the petition and

annulled the FDS regulations as being promulgated “in violation of lawful procedure”

(CPLR 7803 [3]). The legislature’s grant of authority to respondents is not so broad as to

permit them to adopt a familial search policy, and whether to permit familial searching of

the DNA Databank in New York is a decision that should therefore be made by the people

through their elected representatives, not unelected officials in executive agencies.

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Order reversed, with costs, and petition dismissed. Opinion by Chief Judge Wilson. Judges Garcia, Singas and Cannataro concur. Judge Lindley dissents in an opinion, in which Judges Troutman and Lynch concur. Judges Rivera and Halligan took no part.

Decided October 24, 2023

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