On appeal from Superior Court of New Jersey, Law Division, Passaic County, Ind. No. 02-03-0277-I.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and Graves.
After entering a guilty plea to one count of third-degree possession of a controlled dangerous substance (heroin), defendant, John O'Hagen, was sentenced on October 3, 2003, to a three-year term of imprisonment with a nine-month period of parole ineligibility. The sentencing judge ordered defendant "to undergo DNA [deoxyribonucleic acid] testing to keep his genetic markers in the offender population base," and the judgment of conviction required defendant "to provide a DNA sample" and to "pay the costs for testing of the sample provided." At the close of the sentencing hearing, defendant objected to the DNA testing on the basis that his offense occurred prior to the effective date of N.J.S.A. 53:1-20.20(g), which mandates that every person convicted of a crime shall submit a blood or other biological sample for the purpose of DNA testing.*fn1
On appeal, defendant challenges the constitutionality of the "DNA Database and Databank Act of 1994" (the DNA Act), N.J.S.A. 53:1-20.17 to -20.28. Defendant contends that the collection and testing of a blood or other biological sample compelled by the DNA Act violates his right to be free from unreasonable searches and seizures and his right to equal protection of the law under both the State and Federal Constitutions. Although reviewing courts normally do not consider issues that were not properly presented to the trial court, this is a matter "of sufficient public concern," and we will address defendant's contentions. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998) (quoting State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989)). Because we conclude that the DNA Act is not unconstitutional, we affirm the portion of defendant's judgment of conviction that required him to submit a DNA sample.
The DNA Act established a State databank and database containing DNA samples and DNA profiles of certain convicted offenders "for use in connection with subsequent criminal investigations." Assembly Judiciary, Law and Pub. Safety Comm., Statement to Assembly Bill No. 1952 (June 23, 1994), reprinted in N.J.S.A. 53:1-20.17. Under the DNA Act, the Division of State Police is responsible for analyzing and classifying DNA samples, N.J.S.A. 53:1-20.24(a), which are then stored and maintained in the State DNA databank, as well as records of identification characteristics resulting from DNA testing, which are stored and maintained in the State DNA database, N.J.S.A. 53:1-20.21. These records are also forwarded to the Federal Bureau of Investigation (FBI) for inclusion in the Combined DNA Identification System (CODIS), N.J.S.A. 53:1-20.21, -20.24(a), "the FBI's national DNA identification index system that allows the storage and exchange of DNA records submitted by State and local forensic laboratories," N.J.S.A. 53:1-20.19. The stated purpose of this legislation is to deter and detect recidivist acts and "to assist federal, state and local criminal justice and law enforcement agencies in the identification and detection of individuals who are subject to criminal investigations." N.J.S.A. 53:1-20.18.
As enacted in 1994, the DNA Act originally required only adults convicted of certain serious sexual offenses to submit a blood sample for the purpose of DNA testing. N.J.S.A. 53:1-20.20(a). In 1997, the DNA Act was expanded to require juveniles adjudicated delinquent for certain acts, which if committed by an adult, would constitute serious sexual offenses, as well as adults found guilty by reason of insanity of a serious sexual offense, to provide a blood sample. N.J.S.A. 53:1-20.20(b), (c). The scope of the DNA Act was again expanded in 2000 to require DNA testing of every person convicted of (and those found not guilty by reason of insanity for) murder, manslaughter, second-degree aggravated assault, luring or enticing a child, engaging in sexual conduct which would impair or debauch the morals of a child, or any attempt to commit any of these crimes, with a similar provision applying to juveniles. N.J.S.A. 53:1-20.20(d)-(f). The 2000 amendment also authorized those required to undergo DNA testing to either have a blood sample drawn or "other biological sample" collected. N.J.S.A. 53:1-20.20.
Effective September 22, 2003, the following provision, challenged on this appeal, was made a part of the DNA Act:
Every person convicted or found not guilty by reason of insanity of a crime shall have a blood sample drawn or other biological sample collected for purposes of DNA testing. If the person is sentenced to a term of imprisonment or confinement, the person shall have a blood sample drawn or other biological sample collected for purposes of DNA testing upon commencement of the period of imprisonment or confinement.
If the person is not sentenced to a term of imprisonment or confinement, the person shall provide a DNA sample as a condition of the sentence imposed. A person who has been convicted or found not guilty by reason of insanity of a crime prior to the effective date of [L. 2003, c. 183] and who, on the effective date, is serving a sentence of imprisonment, probation, parole or other form of supervision as a result of the crime or is confined following acquittal by reason of insanity shall provide a DNA sample before termination of imprisonment, probation, parole, supervision or confinement, as the case may be. [N.J.S.A. 53:1-20.20(g).]
Because defendant was convicted of a crime and his sentence of imprisonment for that crime commenced after the effective date of this latest amendment he was required to submit a DNA sample. See State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (affirming requirement that the defendant, who was convicted of heroin possession and related crimes, submit a DNA sample because such submission "is required of all individuals convicted of a crime"). Defendant contends, however, that the DNA Act is unconstitutional and, therefore, his DNA sample "should be eliminated from the DNA Databank."
Both the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect people against unreasonable searches and seizures. There is no question that the state-compelled collection and subsequent analysis of a blood or other biological sample constitutes a search. See, e.g., Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618, 109 S.Ct. 1402, 1413, 103 L.Ed. 2d 639, 660 (1989); Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed. 2d 908, 918 (1966); State v. Ravotto, 169 N.J. 227, 236 (2001); In re J.G., 151 N.J. 565, 576 (1997); N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 543 (1997). Nevertheless, not all searches violate constitutional protections, only those that are unreasonable. Skinner, supra, 489 U.S. at 619, 109 S.Ct. at 1414, 103 L.Ed. 2d at 661. Thus, we must decide if the taking of blood or other biological sample for the purpose of DNA testing pursuant to the DNA Act is reasonable.
Determining whether a search is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner, supra, 489 U.S. at 619, 109 S.Ct. at 1414, 103 L.Ed. 2d at 661 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed. 2d 381, 388 (1985)). In other words, "the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes on an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" United States v. Knights, 534 ...