L E G I S LAT I V E P R I O R I T I E S
New York State
New York State District
Attorney General of the
State of New York
Criminal Justice Coordinator
of the City of New York
New York State Association
of Chiefs of Police
New York State Sheriffs’
One Hogan Place
New York, NY
.. Citizens Crime Commission
.. f of New York City
TA B L E O F C O N T E N T S
Penalize Unlicensed Drivers Who Cause Non-Accidental Head Injury in Infants and
Serious Injury or Death Young Children
Enhance Penalties for Driving with a Create a Felony Penalty for Reckless Assault
Very High Blood Alcohol Level Include in the Deﬁnition of Serious
Stop Favoring Drivers Who Have Committed Physical Injury
Crimes in Other States NAHI is Already Recognized in New York and
Expand the List of Those Who Can Draw Blood Around the Nation
from Drunk Drivers Protection for Innocent Caretakers
Enforce Existing Laws by Fingerprinting Summary
Preventing Crime and Exonerating the Innocent Businesses Support This Proposal
Identifying Criminals When Business Records Are Needed in the
Protecting Privacy Grand Jury
Saving Resources Records Custodians Often Must Travel Long
Distances to Testify in Person
Economic Burden of Requiring a Live Witness
Simply to Introduce Business Records
The Unique Challenges of Methamphetamine This Proposal Fits Squarely in Current New
The Legislature Must Act Quickly York Law
Punish the Manufacture of Methamphetamine
and Other Controlled Substances as a Felony
Criminalize the Possession of Precursors and
Essential Chemicals with the Intent to
Establish a Felony-Level Penalty for Engaging in
Methamphetamine Manufacturing Activities
The New York State Law Enforcement Council NYSLEC
New York State District
was formed in as a legislative advocate Attorneys Association
Kevin L. Wright
for New York’s law enforcement community. President
The Council’s members represent the leading Attorney General of
the State of New York
Eliot L. Spitzer
law enforcement professionals throughout the
State, including the Attorney General of the Coordinator of the City
of New York
State of New York, the New York State District John Feinblatt
New York State
Attorneys Association, the New York State Association of Chiefs
Association of Chiefs of Police, the New York Richard P. Carey
State Sheriffs’ Association, the New York City John Grebert
Criminal Justice Coordinator, and the Citizens John Poklemba
Crime Commission of New York City. Since New York State
its inception, the Council has been an active Peter Kehoe
voice and participant in improving the quality Christopher O’Brien
Deputy Executive Director
of justice and in the continuing effort to provide Citizens Crime
Commission of New
for a safer New York. York City
Robert M. Morgenthau
New York County
Ofﬁce of the District
Attorney New York County
GET TOUGH ON “ D E A D LY DRIVERS”
New York had , trafﬁc fatalities in . Of these,
% were alcohol-related, with % involving persons
with blood alcohol levels over .%. New Jersey, Rhode
Island, Vermont, New Hampshire, Massachusetts, and
, .. ’
Connecticut all had fewer fatalities per registered vehicle ,
than New York. Additionally, New York had pedes-
trian fatalities in . Only three states, Florida,
California, and Texas, had more pedestrian fatalities.
We must reduce New York’s trafﬁc fatality rate by
keeping dangerous drivers off the road. New York’s
laws fail to sanction drivers appropriately who violate - ().
the law and cause serious physical injury or death. The
almost-daily trafﬁc accidents reported in the newspapers
attest to the fact that trafﬁc safety is a problem in New
York that deserves the Legislature’s attention.
March , :
Van Driver Had DWAI Conviction; Girl Killed
in Skaneateles Crash was “Sensitive, Caring”
March , :
3 Killed in Car Accidents in Brooklyn and Queens
March , :
Driver Avoids a Felony Charge in Boy’s Death
November , :
Two Teenagers Die in L.I. Car Crash; Driver
The Council has chosen to highlight a few of the
many important “deadly driver” proposals that have
March , : been discussed over the past several years.
Heartbreak at High School; Cold Spring Harbor
Students Returning from Vacation Learn Two We seek greater sanctions for the following types
Classmates Died in Accidents of deadly drivers:
December , : • Unlicensed drivers who kill or seriously injure
DWI Charge in Crash That Injures 2 another, and
• Drunk drivers with extremely high blood
December , : We also seek the following common-sense
“Drunk” Leaves Driver Fighting for Life amendments to make our roads safer:
• Drivers with prior out-of-state convictions for
driving while intoxicated must be treated the same
as drivers with prior New York State convictions.
November , : • All licensed medical personnel must be allowed to
Alcohol Blamed in Several Holiday Crashes draw the blood of a drunk driver for the purposes
of testing for blood alcohol.
..................................................... • Drivers convicted of Aggravated Unlicensed
Operation in the Third Degree must be
The Law Enforcement Council is pleased that two of ﬁngerprinted.
its priorities, increasing the penalty for leaving
the scene of an accident involving death, and elimination
of the criminal negligence requirement when drunk Penalize Unlicensed Drivers Who Cause Serious
drivers cause serious injury or death, are poised to Injury or Death
become law this year. With these new laws, the When an unlicensed driver causes an accident and
Legislature has indicated that safe roads are a priority seriously injures or kills someone, the victim’s family is
in New York. The legislation proposed below will send often shocked to ﬁnd that these drivers face the same
the message that deadly drivers will not be tolerated. penalties as a driver who was driving without a license
but caused no injuries. Despite causing a serious
accident, a driver cannot be charged with the felony
crimes of vehicular assault or vehicular manslaughter Leaving the Scene of an Incident without Reporting and, in
unless there is additional evidence of the driver’s crim- relation to the unlicensed driving and accident, the misde-
inal negligence. meanor of Aggravated Unlicensed Operation in the Second
Criminal negligence is difﬁcult to prove in a motor Degree. People v. Mackay, New York County
vehicle collision case because independent witnesses .....................................................
often do not see the actual collision, so no one can
describe exactly how the defendant was driving. Even Enhance Penalties for Driving with a Very High
in those cases where evidence of criminal negligence is Blood Alcohol Content
available, the legal standard of criminal negligence is Drinking alcohol impairs reaction time, peripheral
complex and confusing to juries. vision, coordination, judgment, and the ability to
Thus, some drivers are not held criminally respon- concentrate. Over several decades, scientists have
sible in a way that is commensurate with their blatant collected “overwhelming evidence showing that even
disregard for the law. Instead of facing prison time, as s [Blood Alcohol Content] as low as .% impair
is expected by families whose loved ones are killed or driving skills.” These effects only worsen with higher .. , ,
seriously injured by dangerous drivers, these drivers blood alcohol levels. ’
can only be charged with misdemeanors. New York’s The average male with a blood alcohol content of ,
.% has at least four drinks in his system, an amount
statutes must recognize the enormous danger posed
by unlicensed drivers and provide appropriate that most people would associate with unsafe driving. , ,
sanctions for those who cause serious injury or death. On the other hand, if he had a blood alcohol content
..................................................... of .%, he would have at least eight drinks in his
Driver with 85 Suspensions Kills Pedestrian and Flees the system. Since the body can process one drink per ’
Scene: A New Jersey driver whose license had been hour, a person with a of .% either drank the , ..,
suspended eleven times in New York and 74 times in New eight drinks within the past hour, or had about a dozen
drinks within the last few hours. (Glen Evans ed., Facts
Jersey drove a car rented by his girlfriend into Washington on File d ed. ).
Heights, where he struck and killed a man before ﬂeeing the Since the level of impairment increases signiﬁ-
scene. The 42-year-old victim was ﬂung onto the hood of cantly with a high blood alcohol content, it is not
the car and fractured his head on the windshield. After a surprising that persons with higher blood alcohol Zador, supra note .
long investigation, the defendant was identiﬁed through content levels are more likely to be in accidents, and
forensic evidence linking both him and the victim to the more likely to be in an accident resulting in death. In ’
same car. Despite the victim’s subsequent death, the defen- , New York State witnessed trafﬁc fatalities in , .. ’
dant could not be charged with any crime related to the which at least one of the drivers in the accident had a ,
death of the pedestrian he struck. He was convicted only of blood alcohol level of over .%. This accounts for : ().
content. On the other hand, in New York a person
Driving Abilities Impaired by Blood Alcohol Content Mothers Against Drunk
’ convicted for driving with a of two or three times Driving, Statistics and
(% in chart = Blood Alcohol Content) Resources: High ,
, .. the legal limit faces the same penalty as a person at
’ - driving at the legal limit of .%. New York’s law http://www3.madd.org
, , /laws/law.cfm?Law=
.08% should recognize the elevated risk that these drivers (Apr. , ).
(April ). Impaired: Concentrated attention, speed control pose to themselves and to innocent drivers or pedes-
trians. Driving with a high blood alcohol content
.06% should carry higher penalties.
Impaired: Information processing, judgement
.04% A Person with a Blood Alcohol Content of .15% or
Higher is 88 Times as Likely to Be in a Car Accident
Impaired: Eye movement control, standing steadiness,
.03% emergency responses as a Person with a Blood Alcohol Content of 0.0%
Zador, supra note ,
Impaired: Tracking and steering at . Data is for male
drivers age -.
Risk of Accident Compared
Impaired: Attention, choice reaction time,
.01% visual function
to BAC of 0.0%
half of the trafﬁc fatalities in New York in which at
least one driver had consumed alcohol. 40
A person with a blood alcohol content over .% is 20 (12.74)
severely impaired. Although some alcoholics can
0 .08% – .10% .10% – .15% .15% or Higher
mimic relatively normal speech or balance when
drunk, these drinkers are still impaired when it comes Blood Alcohol Content
to driving. The effects on the nervous system’s control
of factors such as vision and reaction time are involuntary
and cannot be controlled, even by an “experienced”
drinker. In fact, those who appear to walk and talk -
normally after having many drinks are of special Stop Favoring Drivers Who Have Committed Crimes
concern. These people are likely to be alcoholics, and in Other States
their schedule of regular drinking leads inevitably to Under Vehicle and Trafﬁc Law Section , repeat
repeated incidents of drunken driving. drunk or drugged drivers are subject to felony penalties.
Thirty-two states and Washington, D.C. have However, these penalties only apply if the previous
additional penalties for drivers with high blood alcohol convictions were in New York. If the driver’s previous
convictions were in other states, he can only be A conviction for drunk or drugged driving in
charged with a misdemeanor. As a result, and contrary another state should be considered a conviction for the
to other similar provisions of New York State law that corresponding offense in New York. New York citizens
deal with repeat offenders, in-state drivers face stricter have the right to be protected from repeat drunk
penalties than drivers with convictions in other states. drivers, regardless of where the prior offense took
Under New York’s Criminal Procedure Law Article place.
, prior felony convictions in other states are
considered when determining whether to sentence an Expand the List of Those Who Can Draw Blood from
.. . .
offender as a second felony offender, a second violent Drunk Drivers
§ .()(b). felony offender, or a second felony drug offender. When a serious accident occurs, the police may suspect
Likewise, convictions for out-of-state crimes relating that the driver is intoxicated. The ofﬁcer may request,
.. . . to sexual assault, including misdemeanors, are consid- if the driver is being treated for injuries, that the
ered when requiring sex offenders to register in New attending medical professional draw blood for the pur-
.. . .
York. But in the Vehicle and Trafﬁc Law, out-of-state pose of testing for drugs or alcohol. This request may
§§ .()(b), (c). convictions for impaired or intoxicated driving, even if take place at a medical facility or at the scene of an
equivalent to a misdemeanor or felony offense in New accident where emergency medical technicians are
.. . York, are considered to be trafﬁc infractions only, and attending to the injured. Vehicle and Trafﬁc Law
cannot be used to charge a repeat drunk driver with Section () lists the individuals who are permitted
a felony. to take blood for this purpose. Under this rule, only a
New York is bordered by ﬁve other states: New doctor, a physician’s assistant, or a registered nurse may
Jersey, Connecticut, Pennsylvania, Vermont, and take blood to test for alcohol or drugs. Others are
Massachusetts. Many residents from these states work permitted to take blood only under the supervision of
in New York or come to New York for entertainment. a physician.
This entertainment can involve drinking or drugs. Because of the restrictions listed in Vehicle and
These drivers, if repeat offenders in their own jurisdic- Traffic Law Section (), individuals who are
tions, should not face lesser penalties than those with trained to draw blood and do so independently on a
prior convictions in New York. Likewise, New York daily basis, such as emergency medical technicians
residents who work or socialize in neighboring states or phlebotomists, cannot take blood without the
may have previous convictions for there. These supervision of a physician. If a phlebotomist, a profes-
offenders also deserve to face appropriate enhanced sional trained in drawing blood, takes blood while
sanctions for repeat offenses. a physician is not present, this blood cannot be used
to prove that the driver was drunk or drugged. The compelled by the statute to uphold the suppression of the
safety of New Yorkers is put in jeopardy by this evidence. The appellate judges called on the Legislature to
needless restriction that allows drunk drivers to escape amend the statute to remedy what they saw as an unneces-
prosecution. sary restriction in the law.
“The People and am-
..................................................... ..................................................... icus curiae, New York
State Society of
Drunk Driver Faces No Penalty for Killing Former Olympian: Physician Assistants,
Jack Shea, a double Olympic gold medallist and 91-year-old Enforce Existing Laws by Fingerprinting argue that pursuant
to Education Law §
patriarch of a three-generation Olympic family, was killed Unlicensed Drivers (), physician
on January 23, 2002 in a collision with a drunk driver. Drivers routinely disregard the law by continuing to assistants, when prac-
ticing under the super-
Although the driver was indicted for vehicular drive despite multiple license suspensions. In , vision of a physician,
may do everything
manslaughter, criminally negligent homicide, and driving New York City alone saw , arrests for Aggravated that the physician
while intoxicated, ultimately the district attorney could not Unlicensed Operation. could do and, thus,
the physician assistant
present proof of the driver’s blood alcohol content and the case Research indicates that drivers with suspended or ought to be able to
was dismissed. The blood was drawn at a small regional clinic revoked licenses are nearly four times as likely to be direct and supervise
the drawing of blood…
where the victim and the drunk driver were brought for treat- involved in trafﬁc accidents as those with valid licenses. We acknowledge that
this is a compelling
ment after the accident. No doctor was on duty to supervise According to federal data, % of drivers involved in policy argument…
the drawing of the blood, only a physician’s assistant. As Jack fatal crashes in New York possessed an invalid license. To the extent that the
statute, as written,
Shea was the more severely injured of the two men and in Of these, % had previously been involved in crashes, fails to advance these
need of immediate medical attention, both the physician’s as- and % had previous speeding convictions. Getting objectives, the solution
is…for the Legislature
sistant and the registered nurse at the clinic were occupied these drivers off the road could save hundreds of lives. to adopt an appro-
with treating him. When the police ofﬁcer requested that The Legislature has recognized the serious nature thereto.” People v.
blood be drawn from the driver, both the physician’s assistant of repeat offenders who drive with suspended licenses Reynolds, A.D.d
, - (d Dept.
and the nurse directed an emergency medical technician to by enacting enhanced penalties for repeat offenders ).
draw the blood. The driver consented to the blood test, which and for those driving with multiple suspensions.
showed a blood alcohol content of .15%, and the physician’s Unfortunately, these enhanced crimes are virtually D DeYoung, R Peck,
and C Helander,
assistant later testiﬁed that there was no danger to the driver unenforceable, because individuals convicted of a ﬁrst Estimating the Exposure
in drawing the blood. Nonetheless, in October 2002, the offense of Aggravated Unlicensed Operation in the and Fatal Crash Rates
judge in the case ruled that the blood alcohol test was Third Degree are not ﬁngerprinted. As a result, it is and Unlicensed Drivers
illegally administered because it was not supervised by a nearly impossible to identify those with prior convic- in California,
physician, and all charges were dismissed. Although the tions, and almost as difﬁcult to determine the number -
district attorney appealed the ruling, the appellate court felt of suspensions a driver has.
exceptions for laws for which a prior conviction brings
Unlicensed Drivers are More Likely to Be Involved an enhanced penalty. For example, any crime outside
, ’ In Fatal Crashes (Estimated Likelihood of Being in
the Penal Law for which a repeat offense would be a
, a Fatal Crash per 100,000 Residents)
Fatality Analysis felony requires a ﬁngerprint. In addition, a conviction
Web-Based for the violation of loitering for the purpose of prosti-
Encyclopedia, at: 70
tution requires fingerprinting, because a repeat
fars.nhtsa.dot.gov. 60 violation for this crime is enhanced to a B misde-
meanor. In each of these cases, the ﬁngerprinting is
Estimated from required to identify the repeat offenders who fall under § .().
California census data 40
at www.census.gov and the elevated statute. Unfortunately, no similar law
California accident allows fingerprinting of the B misdemeanor of
data at www-
fars.nhtsa.dot.gov, (13) Aggravated Unlicensed Operation in the Third Degree,
and DeYoung, supra 10
even though a repeat offense constitutes the higher A
Licensed Suspended or No License misdemeanor of Aggravated Unlicensed Operation
Drivers Revoked License
in the Second Degree. Those who are repeatedly
Unlike in the criminal justice system, where defen- convicted of unlicensed driving, and who are four
dants are identified by their fingerprints, at the times more likely to be in trafﬁc accidents, pose a
Department of Motor Vehicles, drivers are identiﬁed signiﬁcant risk to public safety. They should not be
by name and address. Drivers with common names, treated more leniently than prostitutes.
many addresses, or multiple entries with minor As long as New York’s laws continue to treat repeat
variations in their names, are all capable of avoiding unlicensed driving as a minor offense, so will New
the current penalties associated with driving with York’s drivers, and unlicensed driving will only
multiple suspensions. It is conceivable that an unli- increase. Without ﬁngerprinting drivers with repeat
censed driver could be involved in two separate crashes suspensions have little to fear from law enforcement.
causing fatalities, and the prosecutor investigating the
second crash would never ﬁnd out about the ﬁrst. This Act Now to Prevent Future Deaths and Injuries
repeat offender who caused two deaths would not be The Law Enforcement Council urges the Legislature to
sentenced as a repeat offender and could be punished act swiftly on these important proposals. The passage
by as little as a ﬁne. of these “deadly driver” priorities will save the citizens
.. . .
§ ()(b). In general, ﬁngerprints are not required upon of this state from countless automobile-related deaths
conviction of a violation or a non-Penal Law misde- and injuries. The problem is clear and the solution is
meanor. However, the Legislature has made certain known: All that is needed is legislative action. New
Yorkers deserve to be protected from deadly drivers.
E X PA N D T H E S TAT E D N A
I D E N T I F I C AT I O N I N D E X
New York’s Identiﬁcation Index has identiﬁed
nearly offenders, while signiﬁcantly reducing the
likelihood of wrongly convicting a suspect. However,
the full potential of cannot be realized until the
Index, New York’s databank of convicted offender
, is expanded to include all crimes.
If New York’s DNA Identiﬁcation Index were expanded
to include all criminal convictions, the number of violent
felonies solved through the DNA Identiﬁcation Index
would increase by 70%.
The Legislature has long recognized the impor-
tance of in solving serious crimes. Upon the data-
bank’s most recent expansion in , Governor Pataki Press Release, Ofﬁce
of Governor George
announced that “requiring more convicted criminals Pataki, Governor,
to submit a sample will allow our law enforcement Majority Leader
professionals to solve more tough cases and catch Announce Agreement
on Bill to Expand
criminals before they commit more crimes.” Senate Databank
Majority Leader Joe Bruno echoed this sentiment, (June , ).
saying, “The expansion of the databank is critically
Press Release, Ofﬁce
important to enhance it as a tool for law enforcement of Assembly Speaker
to catch and prosecute violent criminals and make our Sheldon Silver,
Assembly to Take
communities more safe.” Assembly Speaker Sheldon Up Expansion of
Silver remarked, “ has revolutionized the way crimes Sexual Offender
are investigated and prosecuted in New York State.” (June , ).
Last year, the Legislature expanded the state’s future investigations. The limited scope of New York’s
Identiﬁcation Index to include samples from defen- databank prevents law enforcement from effec-
dants convicted of nearly new crimes, including tively fulﬁlling its primary responsibility – to prevent
Chapter , -
misdemeanors. Nonetheless, hundreds of thousands crime.
Session. of convicted criminals continue to pass through the
criminal justice system each year without having to
provide samples. Because of the state-imposed Less than half of Penal Law offenses require a
limits on taking samples from criminals, every day submission to the databank. Only a handful of
we miss countless opportunities to solve crimes and to misdemeanors require a submission to the databank.
prevent future crimes from occurring.
If New York’s Identification Index were
expanded to include all criminal convictions, the Non-DNA Non-DNA
Felonies DNA Felonies Misdemeanors
number of violent felonies solved through the Index 48%
4 would increase by %. However, the databank only
. , contains samples from offenders convicted of
% of the felonies and % of the misdemeanors listed
in the Penal Law. Under current law, only a “designated
offender,” as deﬁned in Executive Law Section , .....................................................
must donate a sample to the New York State 1997 Rapist Remains Free Despite Thirteen Convictions
(Jan. ). Identiﬁcation Index. It is only this limited group of After the Rape: In June 1997, a 29-year-old woman coming
“designated offenders” whose samples are regularly home from a night out was approached from behind, forced
compared to from unsolved crimes. This is a into her building, and raped on the ﬂoor of her vestibule by
dangerously incomplete system. Kevin White. At that time, White had twelve prior misde-
Because the group of convicted offenders who meanor convictions, mostly for “non-violent” thefts and
must provide samples is limited, many violent marijuana sales, but could not be linked to the rape through
crimes cannot be solved through . Even multiple ﬁngerprints or photographs. Between 1999, when the DNA
recidivists pass through the criminal justice system databank went into effect, and 2000, White was convicted
without having to submit a sample, therefore four times for selling marijuana and once for criminal
impeding law enforcement’s ability to identify them in
mischief. His DNA was not taken for any of these offenses, so When the Legislature created the databank in
he could not be identiﬁed as the rapist through the databank. , the law was targeted at taking the of those
In 2000, a police ofﬁcer witnessed White reaching for a switch- convicted of murder and sexual assault. However, in Chapter ,
blade during an argument on the street. White was convicted , the law was amended to require a specimen - Session
of Criminal Possession of a Weapon in the Third Degree, an of- from persons convicted of any violent felony offense as
fense that at the time did not require the submission of a deﬁned in Penal Law Section ., in addition to
sample to the DNA databank. He was subsequently convicted other “non-violent” crimes. The effect of the
Chapter , -
of resisting arrest in 2001 and another ﬁve times in 2002 of amendment, which expanded the databank to crimes Session.
selling marijuana. His DNA was still not taken, and he was still such as robbery, burglary, larceny, drug sale, assault,
not connected to the rape. In 2003 White was ﬁnally linked to and weapon possession, was dramatic. Had the
the 1997 rape after he was identiﬁed by a new victim as the databank been limited to only murderers and rapists,
man who broke into her home, robbed, and violently sexually as originally proposed, the number of hits would be
assaulted her. This crime, and the twelve others that White closer to rather than .
committed since 1999, could have been prevented if White
had been required to give DNA for his “non-violent” offenses. Increases in Convicted Offender Samples
People v. White, New York County Correspond with Increases in Crimes Solved
..................................................... , ..
4000 1000 , .. ’
An Expanded DNA Databank Will Prevent Crimes ,
Expansion of the databank ensures that criminals 2000 500
(1116) (363) (),
are in the system at the outset of their criminal careers 1999 2002 1999 2002
so that those who choose to re-offend will be identiﬁed FBI Convicted Offender FBI Crimes Solved /lab/labannual02.pdf.
quickly and with greater certainty. In New York, of the Profiles Increased by 460% Increased by 270%
offenders linked to sexual assault cases through a
databank hit, over % were required to be The law was amended again in July to
included in the databank based on a prior conviction include additional felonies, plus all misdemeanors that
for other than a sex-related offense. New York’s expe- require registration on the state Sex Offender Registry.
E-mail from John
Hicks, Director, ... rience proves that databank expansion will lead to In the ﬁrst month after the new provisions went into
(Apr. , )
the earlier apprehension of criminals and the preven- effect, eight rapes (one dating back to ), a homi-
(on ﬁle with ). tion of future crimes. cide, and a robbery were linked to offenders who had
been convicted of the newly -qualifying offense string of burglaries in Queens, but he left behind DNA on
9 of Robbery in the Third Degree. If the databank were scarves at two scenes, shoes at another, a blood stain at
E-mail from John
Hicks, Director, expanded to include all crimes, the results would be another, and ﬂakes of skin left on a knife he used to prop
... Databank open the window of the ﬁfth scene, a church. Medina even-
(Apr. , )
even more dramatic.
(on ﬁle with ). tually was arrested again on January 31, 2004, after he was
Solving Burglaries caught breaking into a parked car. A ﬁngerprint match tied
The databank can be used to solve a wide him to the 2003 drug sale conviction and he ﬁnally was
variety of crimes, not just rapes and homicides. A new required to submit his DNA to the databank in connection
pilot project in Queens County funded by the with that crime. The DNA connected him to the ﬁve burglaries.
National Institute of Justice has shown the high Medina pleaded guilty to ﬁve counts of second-degree
potential for success in identifying suspects in burglary burglary and was sentenced to concurrent sentences of State Database
eight years' imprisonment. People v. Medina, Queens County Laws Qualifying
crimes. Over ten months, police collected samples Offenses as of
of testable evidence from burglary crime scenes. ..................................................... December , at
Of these samples, % matched an offender in the source.com/Table%
database. Eight of the identified offenders were Other States of%State%%
matched to multiple burglaries, one of whom com- Thirty-eight states are now collecting from all %.pdf
convicted felons. Twenty-seven, including New York, (visited Mar. ,
mitted ﬁve burglaries in seven days. In both New York ).
City, where crimes against property account for % of are now collecting from at least some misde-
all crimes reported in the ’s Uniform Crime Index, meanants. Recent experience in these states has shown
and the remainder of the state, where property crimes that collected from non-violent offenders has Collection of Prisoner
account for % of all Uniform Crime Index resulted in the resolution of violent crimes. Virginia, , May , ,
... Division of
crimes, a databank that included samples from which has collected since , has linked at A.
Criminal Justice all convicted felons and misdemeanants would be a from allegedly “non-violent” forgers and drug felons
Services, Index Crimes
Reported: -, crucial tool to reduce these serious crimes. to rapes and murders. According to the Virginia Commonwealth
of Virginia Dep’t of
at Department of Criminal Justice Services, only % of Criminal Justice
state.ny.us/crimnet/ ..................................................... their nearly , hits would have been made if the Databank Statistics
ojsa/indexcrimes/ database was limited to only violent offenders. Only (), at
Serial Burglar Caught Through DNA: Although Robert
(last updated Feb. , Medina was convicted of a drug sale, a DNA Index offense, % of Virginia’s offenders contributing to the databank virginia.gov/forensic/
in January 2003, he absconded before sentencing and were previously convicted of a sexual assault, but % menuLevel=1.
before his DNA could be taken. Meanwhile, he committed a of the crimes solved or assisted were sexual assaults. (visited Apr. , ).
DNA Analysis Will Exonerate the Innocent identiﬁcations. discovered at a crime scene is
The expansion of the databank will protect the analyzed at a forensic laboratory, which develops a
innocent. The more convicted offender samples that “proﬁle.” This proﬁle is then matched to proﬁles of
are in the databank, the more likely it is that innocent known individuals in the Identiﬁcation Index. In
suspects will avoid arrest and conviction. As addition, the police may test the crime scene proﬁle
testing has become faster, a person mistakenly accused against taken from a person who is not in the
can be exonerated in weeks, rather than in the months Index, if that person voluntarily submits to the testing
and years required in the past. or if the police obtain a search warrant. from a
victim may also be used as evidence in a trial, if, for
..................................................... instance, the victim’s is found on an article of
Innocent Suspect Exonerated of B Violent Felony: In 2001, clothing owned by the defendant.
a man broke into an apartment, threatened the residents,
including children, with a knife, and demanded money and Comparing Crime Scene DNA and Convicted
jewelry. A suspect was arrested, identiﬁed by the victim, and Offender DNA
charged with Burglary in the First Degree. However, the Each month, the proﬁles collected from crime
assistant district attorney was unsure about the identiﬁca- scenes around the state are sent to the Police Forensic
tion and requested a DNA conﬁrmation using blood left Investigation Center for comparison to the
by the burglar at the scene. The DNA did not match the Identiﬁcation Index. Here, trained scientists determine
arrested suspect, but instead identiﬁed a multiple violent whether from any crime scene around the state
felon. As a result, the innocent suspect was freed and the matches from a convicted offender. When such a
true burglar pled guilty and was sentenced as a persistent match occurs, it is known as a “hit.” The “hit” is
offender to an indeterminate prison sentence of from communicated to local law enforcement ofﬁcials, who
thirteen years to life. People v. Roberson, New York County independently conﬁrm the results before proceeding
..................................................... further. In the ﬁve years since New York began
entering and searching -proﬁle data, there have
been , convicted offender hits from the state data- ... Division of
How Offenders Are Identiﬁed Using DNA bank. As more convicted offender samples are added Services,
DNA identiﬁcations are just like ﬁngerprint identiﬁca- to the databank, identiﬁcation and exoneration of Databank Statistics, at
tions. When police ﬁnd a ﬁngerprint at a crime scene, suspects will increase. state.ny.us/forensic/
they try to match it to a ﬁngerprint taken from a In addition to solving crimes on the state level, (last updated Apr. ,
known individual. The same procedure is used in proﬁles obtained from crime scenes and convicted ).
offenders are shared with the Federal Bureau of ically picked for their tendency to be unique among
Investigation’s Combined Index System (). individuals. In addition, these small portions of
Through this sharing, collected in New York can were chosen because they are considered “junk”
be matched to other crime scenes or proﬁle informa- that do not determine any known physical traits.
tion collected by the or any of the other states,
Federal Bureau of
Puerto Rico, and the U.S. Army. So far, there have
Investigation, - been convicted offender and forensic hits in New DNA Samples Are Protected by Law and in Practice
Participating States, at
http://www.fbi.gov/ York State from the national Index System. The information obtained from a identiﬁcation
hq/lab/codis/partstates. analysis is only useful for comparing samples to
(visited Mar. , What Is DNA? one another. It cannot be used to tell physical traits of
DNA, deoxyribonucleic acid, is found in every cell of a person or to identify any genetic diseases carried by a
every person. consists of a chain of four different person.
Statistics, supra note . chemical compounds (adenine, guanine, cytosine, and
thiamine) that appear in pairs known as base pairs. A DNA Databank Proﬁle Contains No Information
The order of a person’s base pairs determines his or her About a Person’s Physical Traits
physical traits. Scientists have determined which
segments of are responsible for certain physical Locus D3S158 vWA FGA D8S1179 D21S11
Alleles 11,12 11,13 24,26 12,14 28,30
traits, such as being male or female, or being prone
Locus D18S51 D5S818 D13S317 D7S820 D16S539
to some genetic diseases. However, there are many Alleles 15,16 13 11,13 9,11 11
segments of whose function has not been deter-
Locus TH01 TPOX CSF1PO
mined. In fact, scientists believe that some segments Alleles 8 9,11 11,12
of may actually be “turned off,” or inactive,
contributing nothing to a person’s physical traits. collected by law enforcement is used exclusively to
These segments are sometimes known as “junk” . identify and prosecute criminals. The records kept by the
A single person’s contains approximately three Division of Criminal Justice Services in the
billion base pairs. Scientists using to establish the Identiﬁcation Index are never used for other purposes, nor
identity of an offender take a tiny percentage of a are they shared with other government agencies
person’s and catalogue the order of the base pairs. or companies, except for law enforcement ofﬁcials
Only base pairs, or less than one-millionth of the investigating a related criminal case. The security of the
total, are catalogued in the creation of a proﬁle. Identiﬁcation Index is protected by law. An unautho-
The pieces of used to create a proﬁle were specif- rized disclosure of a record in the Index is an E felony.
DNA Analysis Saves Investigative Resources
Through an expanded state and national data-
bank, law enforcement will save precious time and
resources by utilizing defendant in a wider variety
of cases. The number of hits will increase exponentially
as the databank grows. Police with evidence can
narrowly focus their investigative efforts by quickly
implicating or eliminating potential suspects. The cost
of running down futile leads will be signiﬁcantly
DNA Analysis Has Become More Efﬁcient and
Although an expansion to include all convicted
offenders might quadruple the number of proﬁles to
over , per year, the science of analysis is
becoming less expensive. The exorbitant costs associ-
ated with this science are a thing of the past. The
evolving science of has dramatically lowered the
processing time for a single proﬁle from six weeks to
about one day.
C O M B AT M E T H A M P H E TA M I N E
The Law Enforcement Council urges the passage of
legislation targeting the growing threat of metham-
phetamine manufacture. In particular, the Council
urges immediate legislative action that will:
• Penalize the possession of precursors with the
intent to manufacture methamphetamine.
• Criminalize the manufacture of methamphetamine.
• Create speciﬁc statutes to address the dangers
posed to children in methamphetamine labs.
• Enhance the penalties for the theft of anhydrous
Standing well to the east of a wave of methamphetamine
(“meth”) use that has swept across the rest of the country
has allowed us to understand better the nature of the
threat. We now know that we must act immediately to
prevent the spread of meth in New York. As the State
Commission of Investigation noted in its exhaustive study,
Methamphetamine Use & Manufacture, “Based upon a
comprehensive review of this matter, the Commission
concludes that the use and manufacture of methampheta-
mine is a severe and urgent threat to New York State.”
at v (January ).
Meth Ingredients Can Be Bought Over the Counter
Methamphetamine is a synthetic drug, requiring
unique approaches by law enforcement that do not
apply to more traditional crimes of drug trafﬁcking Meth Use Is Associated with Violence
’ and use. Meth users can make the drug themselves, Methamphetamine users can be particularly violent Director, Oklahoma
, .. Bureau of Narcotics
using a host of chemicals and equipment that they can due to the physical and psychological effects of the and Dangerous Drugs
, , purchase at grocery stores, gas stations or pharmacies. drug. In particular, scientists have seen in some addicts Control, Statement
:, Jun. , before the House
available at A successful law enforcement response to this drug the condition of methamphetamine psychosis, which Committee on
www.drugabuse.gov/ epidemic requires criminalizing this manufacture and may be “pure paranoid psychosis or may mimic schiz- Government Reform,
–Notes/NNVol Subcommittee on
N1/comparing.html. the steps leading up to it. ophrenia.” Because of the value – both from an ad- Criminal Justice,
Drug Policy and
dictive and a ﬁnancial standpoint – of their clandestine Human Resources
David Crary, Gays Meth Is Highly Addictive lab operations, meth cooks often store or carry guns (Nov. , ).
Mobilize Against Meth
Addiction, Methamphetamine use produces physiological and and deploy booby-traps at their labs. The New York
, Apr. 4, . psychological effects that are stronger than most other State Police reported that, as of April , weapons Alan I. Leshner, Ph.
D., Director, National
drugs, including cocaine. As one psychotherapist were found in of labs. Institute on Drug
Press Release, ..................................................... Abuse, Address to the
recently noted, he “has yet to encounter anyone who National
Society, Chemists can use meth recreationally without developing an Paranoid Meth Cook Commits Murder: In 2004, David Lowin, Methamphetamine
Identify Immune Drug Conference
System Mechanism addiction.” Recent research ﬁndings indicate how a meth cook, was convicted of Tioga County's ﬁrst murder (May -, ),
for Methamphetamine meth may trigger the body’s immune system to recog- case in almost four years. He compensated friends with available at:
Binges (Mar. , ), http://www.ncjrs.org/
available at nize the drug and induce the strong tolerance that meth to guard his lab-trailer while he slept following long ondcppubs/
requires ever-higher concentrations of the drug. As periods of use and he “frequently suspected people of
2005-03/acs- one researcher explained, people who abuse meth “may stealing from him.” His paranoia eventually led him to plenary2.html.
be vaccinating themselves against the drug.” execute Leo Camp Jr., whom he suspected of stealing anhy-
The strength of addiction to methamphetamine drous ammonia, in October 2003. Lowin was found guilty of
Jason Socrates Bardi,
A New Wrinkle in explains how, as one law enforcement official twelve charges, including murder, criminal possession of ,
Methamphetamine supra note , at .
explained, meth crimes “are not economic based stolen property and criminal possession of a weapon. In
Tolerance, crimes, but rather addiction based crimes.” As a prac- December 2004, he received a prison sentence of from 25 2/3
: Kara M. Conners,
tical matter, meth manufacturers, or “cooks,” who years to life. People v. Lowin, Tioga County Witness: Lowin
engage in these crimes to support their own addiction ..................................................... Worried About Thieves,
(Sept. , ), at --
http://www.scripps. are more likely to re-offend within a short period of , Sep. , .,
edu/newsandviews/ at B.
time and be driven back to the drug without laws that
html. deter them strongly. Recent newspaper editorials from across the state echo
Kara M. Conners,
the Law Enforcement Council’s concern that legisla- Lowin Sentenced in
tive action be taken quickly to ﬁll the loopholes in Tioga Murder,
New York’s statutes regarding meth manufacture. Dec. , , at C.
“New York may have the opportunity to slow the
spread of meth before the problem reaches the level it
has elsewhere in the country.”
The Daily Star (Oneonta), March , The Law Enforcement Council urges the creation of
felony-level penalties for the manufacture of controlled
“Stiffer penalties for possession of [anhydrous substances. New York is the only state in the nation
ammonia] are warranted… [O]nce viable legal options without this essential law. As a result, effective prosecu-
are identiﬁed, it is time for lawmakers to act by tion of meth cooks can only occur once the drug has
keeping the criminal statutes up to date with evolving actually been produced, a window of time that is supra note , at .
crimes.” almost impossibly narrow because the ﬁnal product is
The Ithaca Journal, September , often instantly consumed by the cook and his clients.
The New York State Department of Health found that
“This proposal [to prohibit meth manufacture on one’s of the clandestine lab events reported between
premises], though, should supersede politics because and , at the time of identiﬁcation, % had chem-
meth, like other deadly drugs, doesn’t care about parti- icals onsite for cooking and % were actually cooking
New York State
The Star-Gazette (Elmira), March , Department of Health,
New York Hazardous
Toxicity of Meth Labs Substances Emergency
“Now the rest is up to the New York and Pennsylvania Methamphetamine manufacture turns houses, hotel Events Surveillance
legislatures, where members – even those not in meth- rooms, and other dwellings into areas of high toxicity.
making areas – ought to be scared stiff about the A ﬁrst-of-its-kind study conducted in Denver in John W. Martyny,
damage this drug can do to their communities.” shed light on just how dangerous meth manufacture Ph.D., et al., Chemical
The Star-Gazette (Elmira), March , can make a residence. The study found that exposure With Clandestine
guidelines at clandestine meth laboratories were met Methamphetamine
“Foot dragging will only be an invitation for meth or exceeded for a host of compounds, including Jewish Medical
and Research Center
manufacturers to keep exploiting and embarrassing phosphine gas, hydrogen chloride, and iodine vapor, (Feb. ).
our state.” all of which can irritate the pulmonary system, eyes,
The Star-Gazette (Elmira), March , and mucous membranes. In addition, methampheta- John W. Martyny,
mine itself was shown to be generated as an aerosol Ph.D., National Jewish
Medical and Research
during the cook and spread throughout the house. In Center, Statement
before the House
some cases, high levels of meth were found even six Committee on Science
months after the house was last used for manufacture. (Mar. , ).
In addition, meth manufacture requires the
use of highly toxic and explosive chemicals, which ,
signiﬁcantly raise the prospect of a ﬁre or explosion.
A recent report by the Centers for Disease Control ,
and Prevention found that, of the events reported The Law Enforcement Council recommends that the
to the Hazardous Substances Emergency Events possession of precursors and essential chemicals be
( ) (August
Surveillance system, “[m]eth events consistently had a prohibited when the offender intends to manufacture ), available at:
higher percentage of persons with injuries (i.e., a controlled substance. Penal Law Section . programs/forensicsci/
victims) than did nonmeth events.” To protect already recognizes the danger posed by offenders who microgram/mg/
against these intrinsic dangers of a meth lab, every possess certain chemicals and intend to employ them Gene Warner and
, .. Dan Herbeck,
other state and the federal government have criminal- in drug manufacture, but the speciﬁc list of precursors
Alleged Ecstasy Lab
, ized the manufacture of methamphetamine. The has become obsolete. A simple revision to this statute Dismantled,
enactment of a similar law in New York is long could allow for its application to methamphetamine June , , at B.
overdue. manufacturers, thereby restoring its use as a valuable Telephone Interview
with Assistant District
tool in the fight against controlled substances. Attorney Kirk Martin,
(a)() Tioga County District
penalizes the Flexible Statute Alternatively, a comprehensive statute targeting
manufacture of a The Law Enforcement Council recommends that any clandestine labs could include provisions outlawing (Apr. , ).
(b)(1)(B)(viii) legislation passed in response to the threat of metham- the possession of such precursors and chemicals.
establishes a mandatory
minimum of ﬁve years
phetamine be ﬂexible enough to allow for prosecution Again, care should be taken to ensure that amend-
in prison for the man- of those who would manufacture other illegal drugs. ments or new laws remain ﬂexible enough that the
ufacture of ﬁve grams
of methamphetamine. Other states have enacted laws that prohibit the next synthetic drug to surge in popularity can be
A small toxic lab can manufacture or preparation for the manufacture of combated as well. The possession of precursors of any
grams of methamphet- “a controlled substance,” rather than singling out controlled substance with an intent to manufacture
amine in a cycle.
methamphetamine by name. One of the lessons of the should be prohibited in New York.
nation's meth epidemic is that law enforcement must
not be prevented from addressing emerging drug -
threats. It is especially worth noting that labs creating
(“Ecstasy”) and 2C-B (“Nexus”) were discovered
in New York State last year. Across the entire country, social service and law
enforcement agencies alike attest to the severe damage
inﬂicted on children who are housed in methamphet-
amine labs, exposed to toxic chemicals and potential putting the boy's life in danger. People v. Breese, et al,
explosions, and neglected by parents whose addiction Telephone Interview
renders them unable to provide adequate care. The ..................................................... with Assistant District
Attorney Kirk Martin,
New York State Department of Health reports that Tioga County District
approximately percent of clandestine labs were Attorney’s Ofﬁce
(Apr. , ).
Gary W. Howard,
found in residential properties. And, as the landmark
Sheriff of Tioga report of the National Jewish Medical and
before the House Research Center found, “If a methamphetamine cook One of the two most common methods of metham-
Committee on Science has been conducted within a building, all children phetamine manufacture requires the addition of anhy-
(Mar. , ).
within that building are likely to have been exposed to drous ammonia, a liquid fertilizer that is stored in
methamphetamine and other chemicals and therefore tanks on farms across parts of New York State. Cayuga
John W. Martyny,
should be considered as exposed and contaminated.” County, home to many of the state’s commercial corn
Ph.D., et al., Chemical While other states have moved quickly to address producers, has suffered a rash of anhydrous ammonia
With Clandestine this problem legislatively, New York continues to thefts. Over one eighteen-month span in -,
Methamphetamine restrain state prosecutors from appropriately punishing more than anhydrous ammonia thefts were
Jewish Medical and meth cooks who put their children at risk. Often, the reported to the Sheriff ’s Ofﬁce there. Even when William Kates, Drug
highest charge that can apply is Endangering the farmers have attempted to lock up their tanks securely Demand Is Fueling
(Feb. ), at . Rash of Fertilizer
Welfare of a Child, an A misdemeanor. The risks and prevent access to the chemical through valves on Thefts,
the tanks, thieves have taken to drilling directly into , Sep. ,
inherent in cooking meth and the resulting dispersal of , at A.
the drug into the atmosphere of a home-lab mandate the tank to siphon off what they need and letting the
that felony-level sentences be available. remainder spill to the ground. As anhydrous ammonia
..................................................... may be fatal if inhaled, this tampering puts the health
Boy With Cerebral Palsy Found Locked in Meth Lab: of farm workers and others at risk.
Investigators raiding a meth lab in the middle of the night Recognizing the critical importance of anhydrous ,
found an eleven-year-old boy with cerebral palsy locked in ammonia to the manufacture of methamphetamine, ,
Congress has outlawed its theft or transportation
his bedroom while his mother's boyfriend and three others
were in the middle of an active cook in the basement. The across state lines, when the offender knows or intends - (),
stench from toxic fumes was powerful and unmistakable, that it will be used in the manufacture of a controlled http://hazmat.dot.gov/
even 75 yards from the house. While all were convicted of substance. A ﬁrst-time federal offender faces up to erg2000/g125.pdf.
felonies because of the amount of meth liquid they had four years’ imprisonment. Twenty-eight states currently
criminalize the unlawful possession, unauthorized ().
created, the defendants could only face A misdemeanors for
transportation, or theft of anhydrous ammonia or of meth cooks coming to New York to avoid
Arnold Hamilton &
other ammonia gases. In sharp contrast, state prose- Pennsylvania’s penalties. Mira Oberman,
..................................................... Oklahoma Meth-Lab
cutors in New York can usually charge only petit Busts Drop,
supra note , at . larceny, a misdemeanor, for the theft of anhydrous Meth Cooks Arrested Stealing Precursors from Chemung
, June , .
ammonia, because its actual monetary value is so low. County Mall: The absence of effective laws in New York was /
highlighted in February 2005 when four Pennsylvania resi- (Fayetteville, AR),
Precursor Laws in Other States Will Push Meth dents were reported to authorities for purchasing large Tough Meth-Fighting
Bill, Nov. , ,
Cooks into New York amounts of cold medicine and lithium batteries from several
Many states have already amended their laws to stores in a mall in Chemung County. Their vehicle http://www.thehome-
penalize the possession of methamphetamine precur- contained all but one of the necessary chemicals and equip- print//detail.
sors with the intent to manufacture methampheta- ment to make several ounces of meth, and police recovered html?use=print.
Steve Painter, Meth
mine. In , Pennsylvania penalized the possession a small amount of the drug from three of the four. In addi- Makers Flock Here
of several precursors with the intent to manufacture tion, ofﬁcers found the makings of pipe bombs. The three
S.B. , Act , meth, including pseudoephedrine, ephedrine, anhy- defendants who actually possessed meth could only be Dec. , .
drous ammonia, red phosphorous, lithium, and charged with A misdemeanors. The fourth defendant was
(eff. Sept. , )
(Pa. ). iodine. Violating these provisions constitutes a felony charged with Aggravated Unlicensed Operation of a Motor Laura Kellams,
Proposal Targets Cold
punishable by up to seven years’ imprisonment and a Vehicle, also a misdemeanor. At the time of their arrest, the Drugs,
Trooper Nik Green, ﬁne up to ,. The fact that our neighboring four were under investigation in Pennsylvania for metham-
Nov. , ,
Rocky Eales and
Matthew Evans Act , state has just enacted tougher laws to combat metham- phetamine manufacture. The Law Enforcement Council available at:
ch. , Regular http://www.nwanews.
phetamine is of specific concern to New York. seeks legislation that would deter these defendants from com/story/adg/.
(). This new law Pennsylvania’s stiffer penalties will cause a rise in coming to New York to manufacture meth or to acquire the Jacque Hilburn,
requires those Berman Wants Tough
purchasing certain purchases and thefts of precursor chemicals in New ingredients to do so. People v. White, et al, Chemung County Law for Meth Cooks,
products containing York State. This is what happened after Oklahoma ,
present valid identiﬁ- enacted tough new restrictions last year on access to Nov. , .
cation and to sign a
log at the register.
medicines containing pseudoephedrine. Oklahoma’s
A monthly limit of neighbors, Kansas, Texas, Missouri and Arkansas, saw Telephone Interview
nine grams of pseu- with Chief Assistant
doephedrine per an upsurge in methamphetamine cooks traveling District Attorney
customer will be across state lines to acquire supplies. In response, Charles Metcalfe,
veriﬁed by a statewide
database that will legislatures in those states are now contemplating or District Attorney’s
Ofﬁce (Apr. , ).
retain the identities
of customers and be
have adopted tougher regulations. New York must
accessible to police. do the same to blunt the full and predictable force
of a Controlled
Substance in the
Seventh Degree, ..
PROTECT YOUNG CHILDREN
The Law Enforcement Council asks the Legislature to
eliminate a gap in the Penal Law that limits the ability
of prosecutors to address adequately the abuse of
young children. Speciﬁcally, the Council sees a lack of
appropriate penalty in cases where brain damage
results from recklessly shaking, slamming, or throwing
a child. Currently, under the Penal Law, if the child
survives such an episode, referred to in the medical
literature as “Non-Accidental Head Injury,” or ,
the only applicable charges fall under either an A
misdemeanor of Assault in the Third Degree or a B ..
felony of Assault in the First Degree. Given the § .
seriousness of the injuries and the violence of the
actions that cause them, an A misdemeanor is an inad- ..
equate penalty, particularly since the child is likely to
develop lifelong disabilities. On the other hand, a B
felony is sometimes too severe, given that the death of
a child due to would typically be charged as the
C felony of Manslaughter in the Second Degree. The
Council asks that the Legislature create a provision
under the D felony of Assault in the Second Degree, to
provide an appropriate-level charge for reckless assault
of a child causing serious physical injury. In addition,
the Council asks that the signs of , retinal
hemorrhage, intracranial hemorrhage, and subdural
hematoma, be included in the deﬁnition of serious
- Children that survive inﬂiction of are likely to
experience mental retardation, seizures, or difﬁculties
Because young children have large heads relative to in motor function. Additional neurologic effects may A-C Duhaime, et al.,
their bodies, weak neck muscles, and developing include cognitive and behavioral disturbances, cerebral Long-Term Outcome
in Infants with the
brains, they are especially susceptible to brain injuries. palsy, blindness, and epilepsy. The syndrome cannot Shaking-Impact
P Shannon, L Becker,
Mechanisms of Brain
Trauma that does not result in a skull fracture may be caused by short falls, seizures, or vaccinations. Syndrome,
Injury in Infantile nonetheless cause serious internal injury to a child. A ().
(). child with a brain injury may not even have bruising Time-Elapsed CT Scans Showing Brain Injury
on the face or head. Typically, this syndrome is most to Infant Victim of NAHI C Bonnier, et al.,
J Caffey, On the common among children three years old or younger, Intraparenchymal
Theory and Practice Lesions Predicts
of Shaking Infants:
although it has been seen in older children as well. CT Scan Immediately CT Scan Three Outcome in Shaken
Its Potential Residual A body of literature has developed describing the After Shaking Months Later Baby Syndrome,
Effects of Permanent (October
Brain Damage and symptoms and causes of non-accidental head injury ) :, .
Mental Retardation, (). The ﬁrst signiﬁcant study of “shaken baby
syndrome,” a prominent type of , was published A-C Duhaime, et al.,
in . Later studies sometimes referred to the Non-Accidental Head
Injury in Infants –
condition as “shaken impact syndrome.” Some scien- the ‘Shaken-Baby
J Brown & R Minns, tists believe that injuries can be caused simply by
Non-Accidental Head shaking, while others hypothesize that the injuries are
Injury, with Particular (June , )
Reference to Whiplash caused by a combination of shaking and slamming :, .
Areas of Bleeding Areas of Brain Loss
Shaking Injury and
against a soft surface such as a bed. However, all agree
that the repeated violent jerking of a child’s head can
(). cause blood vessels in and around the brain to tear, Source: The National Center on Shaken Baby Syndrome (www.dontshake.com)
causing bleeding. Shaken or slammed babies typically
Shannon, supra note , experience bleeding in the brain (intracranial hemor-
rhage), bleeding underneath the outermost membrane
of the brain (subdural hematoma), and/or bleeding in
R Alexander, et al.,
Incidence of Trauma the retina (retinal hemorrhages). Shaking or slamming
with Cranial Injuries may also cause bruises or fractures to the ribs, where The Council proposes that a D felony of Assault in the
Ascribed to Shaking,
the baby was held during the shaking, and damage the Second Degree be created to protect young children
cervical cord and low brainstem. Studies indicate that against . This crime would only be charged when
(). between % and % of these babies will die. an adult acts “recklessly” – he disregards a risk to a
child, acting in a way that he and others would recog- Busby’s actions “permanently and unalterably damaged this
nize as dangerous – and thereby causes a very serious child,” and she was “lucky” not to face felony charges.
E Lynch, Assault on
injury. Reckless behavior that causes serious physical People v. Busby, Dutchess County. Infant Nets Woman
..................................................... Year in Jail,
injury has already been recognized by the Legislature
as a felony-level crime under the aggravating circum- ,
Feb. , .
stance where the perpetrator uses a dangerous instru-
ment or deadly weapon. Targeting a young child as a
§ .() victim of assault should also be an aggravating factor The Council believes that the Penal Law should clearly
leading to a felony penalty. state that symptoms of are “serious physical
..................................................... injuries.” Evidence of intracranial hemorrhage,
Permanently Damaged Child: The loopholes in New York’s subdural hematoma and retinal hemorrhage in a child
Penal Law were exposed clearly in 2003 by the tragic case of under the age of seven by itself indicates a serious life-
Lavon Simpson, an infant in foster care. Lanisha Busby, the threatening injury to the brain. Currently, in order to
twenty-four-year-old daughter of Lavon’s foster mother, prove “serious physical injury,” prosecutors must
when left alone with the crying two-month-old boy, demonstrate the extent of the suffering and impair-
violently shook the baby, then delayed in calling the para- ment caused by the injury. However, unlike most
medics. Though the child had no external bruises, doctors other injuries, an internal head injury cannot be
discovered subdural hematoma and retinal hemorrhages in detected simply by looking at the baby. The long-
Brown, supra note ,
both eyes. Despite initially refusing to disclose what she had term effects may not manifest themselves until years at .
done, and insisting that Lavon had just been “acting weird,” later, when the baby fails to reach age-appropriate
Busby ultimately admitted to shaking him. No provision of developmental milestones. Thus, at the time of the R Alexander, et al.,
the second-degree assault statute applied to this case, and injury, even with excellent medical intervention, Incidence of Impact
Trauma with Cranial
the prosecutor was unable to show that the defendant's long-term effects that are not presently evident may Injuries Ascribed to
materialize in later years. Shaking,
conduct constituted depraved indifference, as required by
the ﬁrst-degree felony assault statute. Instead, Busby was Unlike older children and adult crime victims, in- ()
, -, as cited
convicted of third-degree assault and endangering the wel- fants and small children cannot testify about substan- by H Keenan, et al.,
fare of a child, both class A misdemeanors, and sentenced to tial pain and suffering, or about prolonged impairment A Population-Based
Study of Inﬂicted
one year in jail. While Busby has already completed her sen- of their health. When adults sustain a head injury, the Traumatic Brain Injury
impairment is evident: Speech is impaired, movement in Young Children,
tence, Lavon will spend his third birthday this year under the
(August , )
care of nurses brought to his home. He is blind and suffers is limited, and they can tell you that their head hurts. :, .
from multiple disabilities. As the sentencing judge noted, Infants, on the other hand, cannot testify to or even
exhibit these impairments. Likewise, a doctor cannot reports of . The well-publicized success of this
conclusively testify to the long-term effects that will program in reducing incidences of has been Grieving Their Own
Loss, Parents Help
manifest in any given child. While is associated recognized around the nation. Lawmakers in Prevent Abuse,
with serious developmental disorders, at trial a doctor Minnesota have proposed similar bills and cited New ,
Feb. , .
cannot state for certain which deﬁciencies a particular York’s law as an inspiration. Though no other states Scott Wente, Bill
infant will experience in the future. mandate that hospitals offer a video presentation, Would Provide New
Parents, Others With
In cases where babies recover from , the many do require the creation and distribution of Education on Shaken
recovery is the result of extraordinary medical proce- informational materials warning against to new
dures and lifesaving measures that in the short term parents, including California, Indiana, Pennsylvania, (), Mar. , .
inﬂict enormous pain and suffering on the child. Brain Tennessee, and Washington. Missouri recently passed
surgery, induced comas, insertion of shunts, and pow- a bill requiring educational efforts, and the Texas .
erful medications may minimize long-term effects of legislature is now considering similar legislation. . .
§ ---; 11
the shaking, but these procedures in themselves are On the other hand, New York is behind other . . . .
both painful and risky for the child. Deﬁning the states in addressing shaking under child abuse or §§ , ;
symptoms of as “serious physical injury” would criminal statutes. Arizona, Arkansas, Colorado, Idaho, § --;
recognize the short-term trauma endured by the victim Kansas, Massachusetts, Michigan, Montana, New . REV.
. § ...
as well as the substantial risk of long-term damage. Mexico, Rhode Island, Utah, Wyoming and the
District of Columbia have recognized the serious . . . §
nature of in their criminal codes. Indiana allows ..
sentencing courts to consider as an aggravating factor
New York has already recognized the dangers of whether the injury or death of the victim was “the Melanie Markley,
Bill Would Teach
by requiring operators, directors, and employees of day result of shaken baby syndrome.” Illinois requires its Parents Dangers of
care facilities to undergo training regarding the social service workers to report subdural hematomas, ,
§ -a(). “identiﬁcation, diagnosis and prevention of shaken as evidence of serious injury to a child, to law enforce- Mar. , .
baby syndrome.” In addition, the Legislature passed a ment. In Alaska, a defendant can be charged with
M Dias, et al., bill last session mandating a state-wide education endangering the welfare of a child if he or she leaves . .
Preventing Abusive § ---.(b)().
Head Trauma Among campaign to remind parents, during the mother’s the child with a third party who has previously
Infants and Young maternity stay, of the dangers of shaking infants and presented a risk to a child of subdural hematoma.
. . .
Children: A Hospital-
Based, Parent young children. This legislation was in response to the New York should join these states in appropriately ⁄ .
remarkable success of a program of this kind in western punishing child abusers who inﬂict .
), : -. New York, which experienced a % drop in . §§
accused behaved in a way that he and others would
The Inclusion of NAHI in the Criminal Statutes
recognize as dangerous. Though this proposal catego-
of Other States
rizes certain injuries as serious physical injury, the
Mechanism State existence of these injuries alone is not automatic
Include “subdural hematoma” Arizona, Colorado, Hawaii, grounds for conviction nor for removal of a child from
within deﬁnition of abuse, Idaho, Massachusetts, Michigan,
his parent or guardian. If the child was injured
physical injury, bodily injury, Montana, New Mexico,
or serious impairment. Wyoming
accidentally, and the injuries were not due to crimi-
... § -(F)();
. . . nally reckless behavior by the caretaker, this proposed
§ --()(a)(I); Includes in deﬁnition of serious Rhode Island
bodily injury, “Evidences subdural
statute would not apply.
. . .
§ -()(H); hematoma, intercranial hemorrhage Medical tests, coupled with investigation of the
ch. , § J;
and/or retinal hemorrhages as circumstances surrounding the injury, can determine
§§ signs of ‘shaken baby syndrome’ whether a baby’s brain injury is non-accidental. As one
.b(1)(f ), ()(a), and/or ‘abusive head trauma.’”
(4); § --; team of researchers has observed, “no other medical
.. . .
Includes in deﬁnition of serious Utah condition fully mimics all the features of the shaking-
§ A--(f );
physical injury, “intracranial impact syndrome.” Studies have shown that at least
. . . § -
bleeding, swelling or contusion Duhaime, et al., supra
of the brain, whether caused
% of serious intracranial injuries during the ﬁrst year note , at .
by blows, shaking, or causing the of life, and % of those during the ﬁrst two years, are
§ -j-.(c)() child's head to impact with an the result of abuse. In a small number of cases, the A Libby, et al.,
Costs of Childhood
object or surface.” brain injuries associated with , intracranial Physical Abuse:
. Include intentional or knowing Arkansas, Kansas, hemorrhage, subdural hematoma, and retinal hemor- and Unintentional
“shaking” that causes injury Washington, D.C. rhage, can also arise from car accidents and certain Traumatic Brain
within the deﬁnition of child Injuries,
medical conditions. However, if the injury is caused by (July ) :, .
§ 9-27- abuse.
()(A)(vi)(c); § a serious accident, this information can typically be
-; D.C. veriﬁed by the presence of other injuries or an inde-
. § -.
pendent witness’s account. If the injury is caused by a
medical condition, doctors can identify the cause
through medical tests of the blood or spinal ﬂuid. The
It is important to emphasize that the proposed law is assessment of the injuries, in combination with
not intended to penalize innocent caretakers of medical tests and the description of the circumstances
children who are accidentally injured. As in any assault surrounding the injury, allows doctors to determine
case, the prosecutor must show that the accused caused whether shaking or slamming caused the baby’s
the injury, and in the case of reckless assault, that the injuries.
Given the tragic results of shaking or slamming very
young children, and the long-term disabilities associ-
ated with non-accidental head injuries, an apt penalty
should be available for the inﬂiction of these injuries.
When injury to the brain is caused by the reckless
treatment of a young child, the law should
recognize the significant harm to the victim by
allowing a charge of Assault in the Second Degree.
Likewise, the law should recognize the unique circum-
stances surrounding the demonstration of mental
impairment of an infant who cannot testify nor exhibit
typical signs of mental disability. Adding the hallmark
signs of to the deﬁnition of serious physical
injury will allow more effective prosecutions for what
the American Academy of Pediatrics recognizes as “a
clearly deﬁnable medical condition” and “a serious
American Academy of
form of child maltreatment.”
on Child Abuse and
Neglect, Shaken Baby
Cranial Injuries -
ENHANCE THE PROSECUTION OF
I D E N T I T Y T H E F T, C O N S U M E R F R A U D ,
AND CHILD PORNOGRAPHY AND
DECREASE THE COST
The Law Enforcement Council supports a change to
the Criminal Procedure Law that will eliminate unnec-
essary witness travel to the grand jury when the
witness’s only role is to state the origin of business
records. This would signiﬁcantly improve the prose-
cution of identity theft, consumer fraud, and child
pornography cases. The Council proposes that
business records should be admissible in the grand jury
when accompanied by a sworn statement attesting to
the authenticity of the records. This proposal would
allow local governments to save signiﬁcant resources
without compromising the rights of any defendants.
“We have seen the current law place excessive burdens
on third parties and make effective and efﬁcient law
enforcement investigations more challenging than they
should be.” –Letter from eBay dated May , in support of this proposal.
At a time when government and private industry
are being asked to do more with less, requiring out-of-
state witnesses to testify about routine and uncontested
matters is an unjustiﬁable expense. Problems securing
testimony regarding business records arise daily in
New York prosecutors’ ofﬁces in child pornography
and white-collar crime cases, as well as in newer crimes have expressed support in writing for this proposal to
involving computers and identity theft. This unneces- the Law Enforcement Council. Signiﬁcantly, the ad-
sary burden makes it increasingly difﬁcult to prosecute mission of business records by sworn statement in
serious cases, as defendants learn that they can get criminal proceedings is already allowed in other states,
away with crime when it is simply too expensive to including Alaska, Florida, Hawaii, Idaho, Michigan,
prosecute them. Missouri, and Tennessee. . . ;
The proposed change does not give prosecutors . . .
.(); . .
new powers in the grand jury and will not affect the . §§ (b)(),
rights of any defendants. Defense counsel will (); ... .
(); . . .
continue to have the right to contest, in pre-trial The types of business records covered by this proposal (), (); .
. . § .;
motions, the accuracy and authenticity of any and all include bank records, credit card transactions, Internet .
evidence presented to the grand jury, including the Service Provider (“”) subscriber information, (), ().
business records. The proposed legislation in no way telephone or cell phone subscriber and toll records,
expands the prosecutor’s authority to introduce and customer mail order and Internet purchases.
business records that cannot currently be introduced Though these records may simply list times and dates
into evidence. The sworn statement accompanying the of business transactions, they can establish important
business records would contain precisely the same facts related to illegal activity such as child pornog-
information which, under current law, must be elicited raphy, luring children into sexual encounters,
through the testimony of live witnesses before the corporate corruption, fraud, and identity theft.
grand jury. Although the records themselves are in hand,
Importantly, this proposal does not affect the prosecutors are frequently frustrated by the need to
presentation of business records at trial. If a case obtain a witness, often from out of town, who will
proceeds to trial, a witness would authenticate the establish the technical foundation for the introduction
records in person as required under current law. of the records. The witness would only need to attest
that he is qualiﬁed to testify about the records, the
records were made in the regular course of business,
Local and national companies, including Amazon.com, and the records were made at or near the time of the
Discover Financial Services, eBay, Independence transactions listed in the record. Obviously, the grand
Community Bank, J.P. Morgan Chase & Co., jury need not hear these facts from a live witness.
America, and Time Warner Cable of New York City,
witnesses to testify on the same day. Coordinating the
appearance of these witnesses complicates the work of
With the growth of technology, businesses that provide prosecutors and creates the risk of missing important
local services, such as banks, telephone companies, court dates.
and Internet Service Providers, are increasingly main-
Companies that Recently Submitted Business Records in D.A. Investigations
taining centralized records outside of the state. When
the modern criminal procedure law was adopted in
, records were paper and kept locally. Now
business records typically consist of computerized data
and are often maintained in centralized databases, (Seattle, WA) Staples
which can be situated anywhere across the country. All
of the major Internet Service Providers, who can
Wells Fargo Bank
establish the important facts surrounding the defen- (San Francisco, CA)
dant’s Internet activity, are located outside of New York eBay Sprint (Dulles, VA)
(San Jose, CA) (Kansas City, MO)
state. As a result, a prosecutor must often introduce Yahoo!
business records and secure witnesses from several (Sunnyvale, CA)
different states in a single case. In the growing ﬁeld of
Internet crimes such as illegal drug sales, consumer (Round Rock, TX)
fraud, identity theft, and child luring, this is an
especially troubling problem.
In many cases, business records from multiple
companies are needed to “connect the dots” of a single Bank of Hawaii
case. For example, when charging defendants with
crimes of identity theft, the need to relate stolen credit
cards to unauthorized purchases may require the
appearance of representatives from Internet companies,
retailers, and credit card issuers. To ensure that their .....................................................
testimony and records, which are related, are presented Defendant Absconds While Prosecutors Wait for Business
to the grand jury in a clear and logical way that helps Records Custodians to Appear: A home healthcare aide
the grand jurors to understand the succession of caring for elderly patients was stealing personal identiﬁca-
events, it is often necessary for multiple business record tion information from at least three of her patients. She
opened wireless phone accounts and made fraudulent credit stolen credit card. Given the large number of cases
card charges totaling nearly ten thousand dollars. She used involving business records, the total amount of wasted
her own address as the billing address, preventing her business hours is staggering. Alternatively, businesses
victims from learning about the charges. Prosecutors may choose not to send an employee to testify in the
secured business records demonstrating her crimes from grand jury, leaving the prosecutor with important
Cingular in Georgia, T-Mobile in New Jersey, and Capital records that cannot be used as evidence.
One in Virginia, but had to delay presenting the case to the Local governments also bear an enormous cost
grand jury in order to coordinate the required witness when they pay for the travel and hotel expenses of wit-
appearances. During this period, the last living victim passed nesses testifying to the uncontested authentication of
away. In addition, because the witnesses could not be records. In Manhattan alone, prosecutors have paid
present at the grand jury within six days of the defendant's nearly , per month just to secure the testimony of
arrest, she was released from custody. After appearing in representatives from Sprint. There are thousands of
Section . of the The actual number of
criminal procedure court on one date, she has not returned and a bench felony cases annually throughout the state that require victims is undoubtedly
law requires that a much higher. These
warrant for her arrest is currently in effect. People v. Riles, the introduction of business records. The Federal Trade numbers represent
defendant be released
from custody if he or New York County complaints to the ,
Commission received , complaints of fraud and the closest approxima-
she is not indicted
within six days of
..................................................... identity theft in New York in , almost a % in- tion available in the
arrest. absence of any central
crease from . Fraud and identity theft are only a reporting mandate.
portion of the cases that require business records to
prosecute. Prosecutors’ ofﬁces are often unable to pay -
for witnesses to appear in the grand jury on these cases. ,
The requirement that a witness appear in the grand As a result, often cases are compromised by a lack of
jury solely to attest to accepted facts regarding the necessary evidence, and criminals go unpunished.
origin of the records is unnecessarily burdensome to (Feb. , ).
both businesses and local governments who fund
prosecutions. Large businesses around the country There were , such
complaints in .
who provide communication and banking services in Written Authentication Is Used in the Grand Jury
New York are routinely asked to spare employees for The proposal endorsed by the Council would allow the -
days to travel for unexceptional testimony in the grand witness to swear to the authentication information in ,
jury. Even worse, small local businesses must also suffer writing rather than travel in person to answer the same
the loss of employee work time to testify to a crime questions. This is already authorized for other types of : ‒
captured in their business records, such as the use of a documents. Fingerprint and ballistics reports, valua- (Jan. , ).
tion of property, and a victim’s “permission and As explained above, the Council’s proposal does not
authority statement” can all be admitted to the grand even go as far as extending this rule to the trial level,
.. . .
jury without the testimony of a live witness. The but rather only seeks it for the grand jury. Amending
§ .. sworn written statement would only be used to estab- the Criminal Procedure Law as we recommend here is
lish that the records are authentic and are produced a straightforward extension of the same logic that is
regularly in the course of business. If any contents of applied in the Civil Practice Law and Rules.
the records require explanation, or if the grand jurors
have questions about the authenticity of the records
as asserted in the sworn statement, a witness would
of course appear to provide this explanation.
Grand Jury Rules Have Been Modiﬁed
to Accommodate Technology
This proposed change follows a precedent set by the
Legislature in recognizing that changes in technology
can affect grand jury proceedings. For instance, in
the Legislature authorized the grand jury to hear
examination of child witnesses via closed-circuit televi-
.. . .
sion. In , the Legislature accommodated changes
§ .(). in technology by allowing the electronic transmission
of a document to be presented to the grand jury.
.. . .
Written Authentication Is Allowed in Civil Litigation
Business records unaccompanied by live witnesses are
.. .... .
admitted in civil trials already. In addition, last year
the Legislature expanded the ability to introduce cer-
tain medical test evidence under a physician’s afﬁdavit.
Memorandum in In passing this expansion, the Legislature expressed its
Support, Act of Aug.
, , ch. , recognition of the waste inherent in calling certain
.. Laws (expanding
witnesses to perform the “ministerial function” of
medical test evidence). attesting that a piece of evidence is a business record.