senate Bill S6733

Signed by Governor

Relates to DNA testing of certain offenders convicted of a crime

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 14 / Mar / 2012
    • REFERRED TO RULES
  • 14 / Mar / 2012
    • ORDERED TO THIRD READING CAL.366
  • 14 / Mar / 2012
    • MESSAGE OF NECESSITY - 3 DAY MESSAGE
  • 14 / Mar / 2012
    • PASSED SENATE
  • 14 / Mar / 2012
    • DELIVERED TO ASSEMBLY
  • 15 / Mar / 2012
    • REFERRED TO CODES
  • 15 / Mar / 2012
    • SUBSTITUTED FOR A9555
  • 15 / Mar / 2012
    • ORDERED TO THIRD READING RULES CAL.18
  • 15 / Mar / 2012
    • MESSAGE OF NECESSITY - 3 DAY MESSAGE
  • 15 / Mar / 2012
    • PASSED ASSEMBLY
  • 15 / Mar / 2012
    • RETURNED TO SENATE
  • 15 / Mar / 2012
    • DELIVERED TO GOVERNOR
  • 19 / Mar / 2012
    • SIGNED CHAP.19

Summary

Relates to DNA testing of certain offenders convicted of a crime.

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Bill Details

See Assembly Version of this Bill:
A9555
Versions:
S6733
Legislative Cycle:
2011-2012
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§440.30, 240.40 & 440.10, CP L; amd §§995 & 995-c, Exec L

Sponsor Memo

BILL NUMBER:S6733

TITLE OF BILL:

An act
to amend the criminal procedure law and the executive
law, in relation to DNA
testing of certain offenders convicted of a crime

PURPOSE:

This legislation would amend the Criminal Procedure Law ("CPL") and
Executive Law ("EL") to expand the collection of DNA samples from
defendants convicted of crimes in New York State to include, for the
first time in this state and across the country, all felonies and all
penal law misdemeanors. The bill would also enhance the protections
afforded defendants to demonstrate their actual innocence by
providing access in certain circumstances to DNA testing in post-plea
contexts. In addition, the bill would provide a mechanism for
defendants convicted after a trial who have obtained a hearing on a
post-conviction motion seeking to demonstrate actual innocence for
certain discovery from the people to facilitate such a hearing.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend subdivision 1 of CPL § 440.30 to
provide for discovery of property in the possession, custody and
control of the prosecution in certain circumstances where a defendant
filing a post-conviction motion after trial has asserted his or her
actual innocence and has obtained an evidentiary hearing. There is a
statute of limitations for bringing such a motion depending on
whether a defendant is incarcerated or not. This provision would
ensure maximum protection of victims and the integrity of the
criminal justice process, as well.

Section 2 of the bill would amend subdivision 1-a of CPL § 440.30 to
provide for DNA testing under certain circumstances to defendants
convicted after entering a guilty plea in conjunction with a
post-conviction motion to vacate the judgment, and to provide for DNA
"keyboard searches" to be performed upon a court's order.

Section 3 of the bill would amend subdivision 1 of CPL § 240.40 to
provide for DNA "keyboard searches" to be performed under certain
circumstances upon a court's order before trial.

Section 4 of the bill would amend subdivision 1 of CPL § 440.10 to set
the standard for post-conviction motions seeking to vacate a judgment
based upon the results
of DNA testing by providing that the defendant must demonstrate a
substantial probability that he or she is actually innocent of the
offense of which he or she was convicted or that there is a

reasonable probability that the verdict would have been more
favorable to the defendant.

Section 5 of the bill would amend subdivision 7 of EL § 995 to mandate
that DNA samples be collected from all offenders convicted of any
felony defined in any chapter of the laws of the state or any
misdemeanor defined in the penal law. Where an individual is
convicted of the class B misdemeanor of possessing marihuana or
smoking marihuana in plain view but has never been convicted of any
crime before, DNA is not collected from that defendant; if the
defendant has been convicted of any crime, then DNA is collected from
him or her.

Section 6 of the bill would amend subdivision 3 of EL §995-c to
provide for the administration of the collection of DNA samples from
convicted offenders.

Section 7 clarifies that nothing in the act should be construed to
create, impose, affect, or remove any existing obligation on
laboratories, police departments, district attorneys, or any other
law enforcement agencies to retain or preserve property that may
contain DNA.

Section 8 provides that the actual costs incurred for DNA testing or
"keyboard searches" performed pursuant to subdivision 1-a of CPL
§440.30 be borne by the defendant, provided, however, that the State
would bear such costs upon a court's finding that, taking into
account a defendant's financial resources and financial obligations,
the payment of such costs would impose a hardship.

Section 9 provides the effective dates of the provisions of the bill.
The portions of the bill relating to post-plea DNA testing would
apply only to pleas entered on or after the effective date and the
collection of DNA would occur for crimes committed on or after the
effective date.

EXISTING LAW:

The existing provisions govern DNA: (1) DNA testing and
post-conviction motions are in CPL § 440; (2) pre-trial discovery
are in CPL § 240; (3) DNA collection for the state DNA identification
system are in EL § 995; and (4) the Commission on Forensic Science
are in EL §995.

STATEMENT IN SUPPORT:

The DNA identification index ("Databank") is a powerful tool both for
preventing and solving crimes and for establishing a defendant's
innocence. Since its inception in 1996, there have been more than
10,000 hits against the Databank resulting in over 2,900 convictions.
Currently, convicted offenders who are in the Databank have, on
average,

been convicted of three crimes -- and in some cases as many as 30
crimes -- for which no DNA has been collected before they were
convicted of the DNA-eligible
offense. Because individuals who commit serious crimes also commit
less serious crimes, collecting DNA from individuals convicted of any
Penal Law misdemeanor and all felonies will help to prevent and solve
murders, rapes, and other crimes. The last expansion of the Databank
that included petit larceny provides concrete evidence of the promise
that this expansion holds; when petit larceny was added to list of
DNA eligible crimes in 2006, it resulted in solving almost 1000
crimes, including 223 rapes and 53 homicides.

The Databank also plays a significant role in helping to determine who
did not commit a crime. There have been 27 individuals exonerated in
New York through DNA evidence, as well as countless suspects who
have been excluded and cleared most often at the earliest stages of
an investigation. This legislation provides for expanded access to
defendants, both before trial and after plea or conviction, to DNA
testing and other discovery to demonstrate their innocence.

BUDGET IMPLICATIONS:

This legislation is not expected to have a significant impact on the
State's budget.

EFFECTIVE DATE:

This act shall take effect October 1, 2012.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 6733                                                  A. 9555

                      S E N A T E - A S S E M B L Y

                             March 14, 2012
                               ___________

IN  SENATE  -- Introduced by Sens. SALAND, GOLDEN, SKELOS -- (at request
  of the Governor) -- read twice and ordered printed, and  when  printed
  to be committed to the Committee on Rules

IN  ASSEMBLY  --  Introduced  by  M.  of  A.  LENTOL, SILVER, WEINSTEIN,
  FARRELL, LAVINE, O'DONNELL, CLARK, PAULIN -- Multi-Sponsored by --  M.
  of  A. BRINDISI, BRONSON, CUSICK, GABRYSZAK, GOLDFEDER, HEVESI, LUPAR-
  DO, MORELLE, QUART, RAMOS, WEISENBERG, ZEBROWSKI -- (at request of the
  Governor) -- read once and referred to the Committee on Codes

AN ACT to amend the criminal procedure law and  the  executive  law,  in
  relation to DNA testing of certain offenders convicted of a crime

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 1 of section 440.30 of the  criminal  procedure
law is amended to read as follows:
  1.  (A)  A  motion  to vacate a judgment pursuant to section 440.10 OF
THIS ARTICLE and a motion to set aside a sentence  pursuant  to  section
440.20  OF  THIS  ARTICLE  must  be  made in writing and upon reasonable
notice to the people. Upon the motion, a defendant who is in a  position
adequately  to raise more than one ground should raise every such ground
upon which he OR SHE intends to challenge the judgment or  sentence.  If
the  motion  is  based  upon  the  existence or occurrence of facts, the
motion papers must contain sworn allegations  thereof,  whether  by  the
defendant or by another person or persons. Such sworn allegations may be
based  upon  personal  knowledge  of the affiant or upon information and
belief, provided that in the latter event the  affiant  must  state  the
sources  of such information and the grounds of such belief. The defend-
ant may further submit documentary evidence or information supporting or
tending to support the allegations of the moving papers. The people  may
file with the court, and in such case must serve a copy thereof upon the
defendant  or his OR HER counsel, if any, an answer denying or admitting
any or all of the allegations of the  motion  papers,  and  may  further
submit documentary evidence or information refuting or tending to refute
such  allegations. After all papers of both parties have been filed, and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12113-08-2

S. 6733                             2                            A. 9555

after all documentary evidence or information, if any, has been  submit-
ted,  the  court  must consider the same for the purpose of ascertaining
whether the motion is determinable without a hearing  to  resolve  ques-
tions of fact.
  (B)  IN  CONJUNCTION  WITH  THE FILING OR CONSIDERATION OF A MOTION TO
VACATE A JUDGMENT PURSUANT TO  SECTION  440.10  OF  THIS  ARTICLE  BY  A
DEFENDANT  CONVICTED AFTER A TRIAL, IN CASES WHERE THE COURT HAS ORDERED
AN EVIDENTIARY HEARING UPON SUCH MOTION, THE COURT MAY  ORDER  THAT  THE
PEOPLE  PRODUCE OR MAKE AVAILABLE FOR INSPECTION PROPERTY, AS DEFINED IN
SUBDIVISION THREE OF SECTION 240.10 OF THIS  PART,  IN  ITS  POSSESSION,
CUSTODY,  OR  CONTROL  THAT  WAS SECURED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT UPON CREDIBLE ALLEGATIONS BY  THE
DEFENDANT  AND  A  FINDING BY THE COURT THAT SUCH PROPERTY, IF OBTAINED,
WOULD BE PROBATIVE TO THE DETERMINATION OF DEFENDANT'S ACTUAL INNOCENCE,
AND THAT THE REQUEST IS REASONABLE. THE COURT SHALL DENY OR LIMIT SUCH A
REQUEST UPON A FINDING THAT SUCH A REQUEST, IF GRANTED,  WOULD  THREATEN
THE  INTEGRITY  OR  CHAIN OF CUSTODY OF PROPERTY OR THE INTEGRITY OF THE
PROCESSES OR FUNCTIONS OF A LABORATORY CONDUCTING DNA  TESTING,  POSE  A
RISK  OF  HARM, INTIMIDATION, EMBARRASSMENT, REPRISAL, OR OTHER SUBSTAN-
TIALLY NEGATIVE CONSEQUENCES TO ANY PERSON, UNDERMINE THE  PROPER  FUNC-
TIONS OF LAW ENFORCEMENT INCLUDING THE CONFIDENTIALITY OF INFORMANTS, OR
ON  THE  BASIS OF ANY OTHER FACTOR IDENTIFIED BY THE COURT IN THE INTER-
ESTS OF JUSTICE OR PUBLIC SAFETY. THE COURT SHALL  FURTHER  ENSURE  THAT
ANY PROPERTY PRODUCED PURSUANT TO THIS PARAGRAPH IS SUBJECT TO A PROTEC-
TIVE  ORDER,  WHERE  APPROPRIATE.  THE COURT SHALL DENY ANY REQUEST MADE
PURSUANT TO THIS PARAGRAPH WHERE:
  (I) (1) THE DEFENDANT'S MOTION PURSUANT  TO  SECTION  440.10  OF  THIS
ARTICLE  DOES NOT SEEK TO DEMONSTRATE HIS OR HER ACTUAL INNOCENCE OF THE
OFFENSE OR OFFENSES OF WHICH HE  OR  SHE  WAS  CONVICTED  THAT  ARE  THE
SUBJECT  OF  THE MOTION, OR (2) THE DEFENDANT HAS NOT PRESENTED CREDIBLE
ALLEGATIONS AND THE COURT HAS NOT FOUND THAT SUCH PROPERTY, IF OBTAINED,
WOULD BE PROBATIVE TO THE DETERMINATION OF THE DEFENDANT'S ACTUAL  INNO-
CENCE AND THAT THE REQUEST IS REASONABLE;
  (II)  THE  DEFENDANT  HAS MADE HIS OR HER MOTION AFTER FIVE YEARS FROM
THE DATE OF THE JUDGMENT OF CONVICTION;  PROVIDED,  HOWEVER,  THAT  THIS
LIMITATION  PERIOD SHALL BE TOLLED FOR FIVE YEARS IF THE DEFENDANT IS IN
CUSTODY IN CONNECTION WITH THE CONVICTION THAT IS THE SUBJECT OF HIS  OR
HER  MOTION,  AND PROVIDED FURTHER THAT, NOTWITHSTANDING SUCH LIMITATION
PERIODS, THE COURT MAY CONSIDER THE MOTION IF THE DEFENDANT  HAS  SHOWN:
(A)  THAT  HE  OR SHE HAS BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND
THAT SOME EXTRAORDINARY CIRCUMSTANCE PREVENTED THE TIMELY FILING OF  THE
MOTION;  (B)  THAT  THE  FACTS  UPON WHICH THE MOTION IS PREDICATED WERE
UNKNOWN TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE  BEEN
ASCERTAINED  BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION OF
THE STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF  THE
CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
IMPACT  OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
TY OR RELATED RELIEF, THE  INTERESTS  OF  JUSTICE  WOULD  BE  SERVED  BY
CONSIDERING THE MOTION;
  (III) THE DEFENDANT IS CHALLENGING A JUDGMENT CONVICTING HIM OR HER OF
AN  OFFENSE  THAT  IS NOT A FELONY DEFINED IN SECTION 10.00 OF THE PENAL
LAW; OR

S. 6733                             3                            A. 9555

  (IV) UPON A FINDING BY THE COURT THAT THE PROPERTY REQUESTED  IN  THIS
MOTION WOULD BE AVAILABLE THROUGH OTHER MEANS THROUGH REASONABLE EFFORTS
BY THE DEFENDANT TO OBTAIN SUCH PROPERTY.
  S  2. Subdivision 1-a of section 440.30 of the criminal procedure law,
as amended by chapter 138 of the laws of 2004, is  amended  to  read  as
follows:
  1-a.  (a) (1) Where the defendant's motion requests the performance of
a forensic DNA test on specified evidence, and upon the court's determi-
nation that any evidence containing deoxyribonucleic  acid  ("DNA")  was
secured  in  connection  with  the  trial resulting in the judgment, the
court shall grant the application  for  forensic  DNA  testing  of  such
evidence upon its determination that if a DNA test had been conducted on
such evidence, and if the results had been admitted in the trial result-
ing  in  the  judgment,  there  exists a reasonable probability that the
verdict would have been more favorable to the defendant.
  (2) WHERE THE DEFENDANT'S MOTION FOR FORENSIC DNA TESTING OF SPECIFIED
EVIDENCE IS MADE FOLLOWING A PLEA OF GUILTY AND ENTRY OF JUDGMENT THERE-
ON CONVICTING HIM OR HER OF: (A) A HOMICIDE OFFENSE DEFINED  IN  ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, ANY FELONY SEX OFFENSE DEFINED
IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, A VIOLENT FELONY OFFENSE
AS  DEFINED  IN PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 70.02 OF THE
PENAL LAW, OR (B) ANY OTHER FELONY OFFENSE TO WHICH HE OR SHE PLED GUIL-
TY AFTER BEING CHARGED IN AN INDICTMENT OR INFORMATION IN SUPERIOR COURT
WITH ONE OR MORE OF THE OFFENSES LISTED IN CLAUSE (A) OF  THIS  SUBPARA-
GRAPH,  THEN  THE COURT SHALL GRANT SUCH A MOTION UPON ITS DETERMINATION
THAT EVIDENCE CONTAINING DNA WAS SECURED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT, AND  IF  A  DNA  TEST  HAD  BEEN
CONDUCTED ON SUCH EVIDENCE AND THE RESULTS HAD BEEN KNOWN TO THE PARTIES
PRIOR  TO  THE ENTRY OF THE DEFENDANT'S PLEA AND JUDGMENT THEREON, THERE
EXISTS A SUBSTANTIAL PROBABILITY THAT THE  EVIDENCE  WOULD  HAVE  ESTAB-
LISHED  THE DEFENDANT'S ACTUAL INNOCENCE OF THE OFFENSE OR OFFENSES THAT
ARE THE SUBJECT OF THE DEFENDANT'S MOTION; PROVIDED, HOWEVER, THAT:
  (I) THE COURT SHALL CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY
TO REQUEST SUCH TESTING PRIOR TO ENTERING A GUILTY PLEA, AND,  WHERE  IT
FINDS  THAT  THE DEFENDANT HAD SUCH OPPORTUNITY AND UNJUSTIFIABLY FAILED
TO DO SO, THE COURT MAY DENY SUCH MOTION; AND
  (II) A COURT SHALL DENY THE DEFENDANT'S MOTION FOR FORENSIC DNA  TEST-
ING  WHERE THE DEFENDANT HAS MADE HIS OR HER MOTION MORE THAN FIVE YEARS
AFTER ENTRY OF THE JUDGMENT OF CONVICTION; EXCEPT  THAT  THE  LIMITATION
PERIOD  MAY BE TOLLED IF THE DEFENDANT HAS SHOWN: (A) THAT HE OR SHE HAS
BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND THAT  SOME  EXTRAORDINARY
CIRCUMSTANCE  PREVENTED THE TIMELY FILING OF THE MOTION FOR FORENSIC DNA
TESTING; (B) THAT THE FACTS UPON WHICH THE  MOTION  IS  PREDICATED  WERE
UNKNOWN  TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE BEEN
ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION  OF
THIS STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF THE
CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
IMPACT  OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
TY OR RELATED RELIEF, THE INTERESTS OF JUSTICE WOULD BE SERVED BY  TOLL-
ING SUCH LIMITATION PERIOD.
  (b) In conjunction with the filing of a motion under this subdivision,
the  court  may direct the people to provide the defendant with informa-
tion in the possession of the people  concerning  the  current  physical
location  of  the  specified  evidence  and if the specified evidence no

S. 6733                             4                            A. 9555

longer exists or the physical location  of  the  specified  evidence  is
unknown, a representation to that effect and information and documentary
evidence in the possession of the people concerning the last known phys-
ical  location  of such specified evidence. If there is a finding by the
court that the specified evidence  no  longer  exists  or  the  physical
location  of such specified evidence is unknown, such information in and
of itself shall not be a factor from which any inference unfavorable  to
the  people  may  be  drawn by the court in deciding a motion under this
section. The court, on motion of the defendant, may also issue a subpoe-
na duces tecum directing a public or  private  hospital,  laboratory  or
other entity to produce such specified evidence in its possession and/or
information  and  documentary  evidence in its possession concerning the
location and status of such specified evidence.
  (C) IN RESPONSE TO A MOTION UNDER THIS PARAGRAPH, UPON NOTICE  TO  THE
PARTIES  AND  TO THE ENTITY REQUIRED TO PERFORM THE SEARCH THE COURT MAY
ORDER AN ENTITY THAT  HAS  ACCESS  TO  THE  COMBINED  DNA  INDEX  SYSTEM
("CODIS") OR ITS SUCCESSOR SYSTEM TO COMPARE A DNA PROFILE OBTAINED FROM
PROBATIVE  BIOLOGICAL  MATERIAL GATHERED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT AGAINST DNA DATABANKS BY KEYBOARD
SEARCHES, OR A SIMILAR METHOD THAT DOES NOT INVOLVE  UPLOADING,  UPON  A
COURT'S DETERMINATION THAT (1) SUCH PROFILE COMPLIES WITH FEDERAL BUREAU
OF  INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE AND AS
SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING SUCH A
COMPARISON, AND THAT  THE  DATA  MEET  STATE  DNA  INDEX  SYSTEM  AND/OR
NATIONAL  DNA  INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW
ENFORCEMENT AGENCIES SEEKING SUCH A COMPARISON AND (2) IF  SUCH  COMPAR-
ISON  HAD  BEEN  CONDUCTED,  AND IF THE RESULTS HAD BEEN ADMITTED IN THE
TRIAL RESULTING IN THE JUDGMENT, A REASONABLE  PROBABILITY  EXISTS  THAT
THE  VERDICT  WOULD  HAVE  BEEN MORE FAVORABLE TO THE DEFENDANT, OR IN A
CASE INVOLVING A PLEA OF GUILTY, IF THE RESULTS HAD  BEEN  AVAILABLE  TO
THE  DEFENDANT  PRIOR  TO THE PLEA, A REASONABLE PROBABILITY EXISTS THAT
THE CONVICTION WOULD NOT HAVE RESULTED. FOR PURPOSES  OF  THIS  SUBDIVI-
SION,  A  "KEYBOARD SEARCH" SHALL MEAN A SEARCH OF A DNA PROFILE AGAINST
THE DATABANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT UPLOADED TO OR
MAINTAINED IN THE DATABANK.
  S 3. Subdivision 1 of section 240.40 of the criminal procedure law, as
amended by chapter 558 of the laws of 1982,  the  opening  paragraph  as
amended  by  chapter  317  of  the  laws  of 1983, is amended to read as
follows:
  1. Upon motion of a defendant against  whom  an  indictment,  superior
court  information, prosecutor's information, information, or simplified
information charging a misdemeanor is pending, the court in  which  such
accusatory instrument is pending:
  (a)  must  order  discovery  as  to  any material not disclosed upon a
demand pursuant to section 240.20, if it  finds  that  the  prosecutor's
refusal  to disclose such material is not justified; (b) must, unless it
is satisfied that the people have shown good cause  why  such  an  order
should  not  be issued, order discovery or any other order authorized by
subdivision one of section 240.70 as to any material not disclosed  upon
demand  pursuant  to  section  240.20 where the prosecutor has failed to
serve a timely written refusal pursuant to section 240.35; [and] (c) may
order discovery with respect to any other  property,  which  the  people
intend  to  introduce at the trial, upon a showing by the defendant that
discovery with respect to such property is material to  the  preparation
of his OR HER defense, and that the request is reasonable; AND (D) WHERE
PROPERTY  IN  THE PEOPLE'S POSSESSION, CUSTODY, OR CONTROL THAT CONSISTS

S. 6733                             5                            A. 9555

OF A DEOXYRIBONUCLEIC  ACID  ("DNA")  PROFILE  OBTAINED  FROM  PROBATIVE
BIOLOGICAL  MATERIAL  GATHERED  IN  CONNECTION WITH THE INVESTIGATION OR
PROSECUTION OF THE DEFENDANT AND THE  DEFENDANT  ESTABLISHES  THAT  SUCH
PROFILE  COMPLIES WITH FEDERAL BUREAU OF INVESTIGATION OR STATE REQUIRE-
MENTS, WHICHEVER ARE APPLICABLE AND AS SUCH REQUIREMENTS ARE APPLIED  TO
LAW  ENFORCEMENT  AGENCIES  SEEKING A KEYBOARD SEARCH OR SIMILAR COMPAR-
ISON, AND THAT THE DATA MEETS STATE DNA INDEX  SYSTEM  OR  NATIONAL  DNA
INDEX  SYSTEM  CRITERIA  AS SUCH CRITERIA ARE APPLIED TO LAW ENFORCEMENT
AGENCIES SEEKING SUCH A KEYBOARD SEARCH OR SIMILAR COMPARISON, THE COURT
MAY ORDER AN ENTITY THAT HAS ACCESS TO THE COMBINED DNA INDEX SYSTEM  OR
ITS  SUCCESSOR  SYSTEM TO COMPARE SUCH DNA PROFILE AGAINST DNA DATABANKS
BY KEYBOARD SEARCHES, OR A SIMILAR METHOD THAT DOES NOT INVOLVE  UPLOAD-
ING,  UPON NOTICE TO BOTH PARTIES AND THE ENTITY REQUIRED TO PERFORM THE
SEARCH, UPON A SHOWING BY THE DEFENDANT THAT SUCH A COMPARISON IS  MATE-
RIAL  TO  THE PRESENTATION OF HIS OR HER DEFENSE AND THAT THE REQUEST IS
REASONABLE. FOR PURPOSES OF THIS PARAGRAPH, A  "KEYBOARD  SEARCH"  SHALL
MEAN A SEARCH OF A DNA PROFILE AGAINST THE DATABANK IN WHICH THE PROFILE
THAT  IS SEARCHED IS NOT UPLOADED TO OR MAINTAINED IN THE DATABANK. Upon
granting the motion pursuant to paragraph (c) [hereof] OF THIS  SUBDIVI-
SION,  the  court  shall,  upon  motion of the people showing such to be
material to the preparation of  their  case  and  that  the  request  is
reasonable,  condition  its  order  of  discovery  by  further directing
discovery by the people of property, of the same kind  or  character  as
that  authorized  to  be  inspected  by  the  defendant, which he OR SHE
intends to introduce at the trial.
  S 4. Subdivision 1 of section 440.10 of the criminal procedure law  is
amended by adding a new paragraph (g-1) to read as follows:
  (G-1)  FORENSIC DNA TESTING OF EVIDENCE PERFORMED SINCE THE ENTRY OF A
JUDGMENT, (1) IN THE CASE OF A DEFENDANT CONVICTED AFTER A GUILTY  PLEA,
THE  COURT HAS DETERMINED THAT THE DEFENDANT HAS DEMONSTRATED A SUBSTAN-
TIAL PROBABILITY THAT THE DEFENDANT WAS ACTUALLY INNOCENT OF THE OFFENSE
OF WHICH HE OR SHE WAS CONVICTED, OR (2) IN  THE  CASE  OF  A  DEFENDANT
CONVICTED  AFTER  A  TRIAL, THE COURT HAS DETERMINED THAT THERE EXISTS A
REASONABLE PROBABILITY THAT THE VERDICT WOULD HAVE BEEN  MORE  FAVORABLE
TO THE DEFENDANT.
  S  5. Subdivision 7 of section 995 of the executive law, as amended by
chapter 2 of the laws of 2006, paragraph (a) as  separately  amended  by
chapter  320 of the laws of 2006 and paragraph (f) as amended by chapter
405 of the laws of 2010, is amended to read as follows:
  7. "Designated offender" means a person convicted  of  [and  sentenced
for  any  one  or  more of the following provisions of the penal law (a)
sections 120.05, 120.10,  and  120.11,  relating  to  assault;  sections
125.15  through  125.27  relating  to homicide; sections 130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70,  relating  to
sex  offenses;  sections  205.10, 205.15, 205.17 and 205.19, relating to
escape and other offenses, where the offender has been convicted  within
the  previous  five years of one of the other felonies specified in this
subdivision; or sections 255.25, 255.26 and 255.27, relating to  incest,
a  violent felony offense as defined in subdivision one of section 70.02
of the penal law, attempted murder in the first degree,  as  defined  in
section  110.00  and  section 125.27 of the penal law, kidnapping in the
first degree, as defined in section 135.25 of the penal  law,  arson  in
the  first  degree,  as  defined  in  section  150.20  of the penal law,
burglary in the third degree, as defined in section 140.20 of the  penal
law,  attempted  burglary  in  the  third  degree, as defined in section
110.00 and section 140.20 of the penal law, a felony defined in  article

S. 6733                             6                            A. 9555

four  hundred  ninety  of  the  penal  law  relating to terrorism or any
attempt to commit an offense defined in such article relating to terror-
ism which is a felony;  or  (b)  criminal  possession  of  a  controlled
substance in the first degree, as defined in section 220.21 of the penal
law; criminal possession of a controlled substance in the second degree,
as  defined  in  section  220.18  of  the  penal law; criminal sale of a
controlled substance, as defined in article 220 of  the  penal  law;  or
grand  larceny  in  the fourth degree, as defined in subdivision five of
section 155.30 of the penal  law;  or  (c)  any  misdemeanor  or  felony
defined  as  a sex offense or sexually violent offense pursuant to para-
graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
three of section one hundred sixty-eight-a of the correction law; or (d)
any of the following felonies, or an attempt thereof where such  attempt
is a felony offense:
  aggravated  assault  upon  a  person  less  than  eleven years old, as
defined in section 120.12 of  the  penal  law;  menacing  in  the  first
degree,  as  defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of  the  penal
law;  stalking in the second degree, as defined in section 120.55 of the
penal law; criminally negligent homicide, as defined in  section  125.10
of  the  penal  law;  vehicular  manslaughter  in  the second degree, as
defined in section 125.12 of the penal law;  vehicular  manslaughter  in
the  first  degree,  as  defined  in  section  125.13  of the penal law;
persistent sexual abuse, as defined in section 130.53 of the penal  law;
aggravated  sexual  abuse  in  the  fourth degree, as defined in section
130.65-a of the penal law; female  genital  mutilation,  as  defined  in
section  130.85  of  the  penal  law;  facilitating a sex offense with a
controlled substance, as defined in section 130.90  of  the  penal  law;
unlawful  imprisonment in the first degree, as defined in section 135.10
of the penal law; custodial interference in the first degree, as defined
in section 135.50 of the penal  law;  criminal  trespass  in  the  first
degree,  as defined in section 140.17 of the penal law; criminal tamper-
ing in the first degree, as defined in section 145.20 of the penal  law;
tampering  with  a  consumer  product in the first degree, as defined in
section 145.45 of the penal law; robbery in the third degree as  defined
in section 160.05 of the penal law; identity theft in the second degree,
as  defined  in  section  190.79 of the penal law; identity theft in the
first degree, as defined in section 190.80 of the penal  law;  promoting
prison  contraband  in the first degree, as defined in section 205.25 of
the penal law; tampering with a witness in the third degree, as  defined
in  section  215.11  of  the  penal law; tampering with a witness in the
second degree, as defined in section 215.12 of the penal law;  tampering
with  a witness in the first degree, as defined in section 215.13 of the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions (b), (c) and (d) of section 215.51 of the  penal  law;  aggravated
criminal  contempt,  as defined in section 215.52 of the penal law; bail
jumping in the second degree, as defined in section 215.56 of the  penal
law;  bail  jumping in the first degree, as defined in section 215.57 of
the penal law; patronizing a prostitute in the second degree, as defined
in section 230.05 of the penal law;  patronizing  a  prostitute  in  the
first  degree,  as defined in section 230.06 of the penal law; promoting
prostitution in the second degree, as defined in section 230.30  of  the
penal  law;  promoting  prostitution  in the first degree, as defined in
section 230.32 of the penal law; compelling prostitution, as defined  in
section  230.33  of  the  penal law; disseminating indecent materials to
minors in the second degree, as defined in section 235.21 of  the  penal

S. 6733                             7                            A. 9555

law;  disseminating indecent materials to minors in the first degree, as
defined in section 235.22 of the penal law; riot in the first degree, as
defined in section 240.06 of the penal law; criminal anarchy, as defined
in section 240.15 of the penal law; aggravated harassment of an employee
by  an  inmate,  as defined in section 240.32 of the penal law; unlawful
surveillance in the second degree, as defined in section 250.45  of  the
penal  law;  unlawful  surveillance  in  the first degree, as defined in
section 250.50 of the penal law; endangering the welfare of a vulnerable
elderly person in the second degree, as defined in section 260.32 of the
penal law; endangering the welfare of a vulnerable elderly person in the
first degree, as defined in section 260.34 of the penal law;  use  of  a
child in a sexual performance, as defined in section 263.05 of the penal
law;  promoting  an obscene sexual performance by a child, as defined in
section 263.10 of the penal law; possessing an obscene  sexual  perform-
ance  by a child, as defined in section 263.11 of the penal law; promot-
ing a sexual performance by a child, as defined in section 263.15 of the
penal law; possessing a sexual performance by a  child,  as  defined  in
section  263.16 of the penal law; criminal possession of a weapon in the
third degree, as defined in section 265.02 of the  penal  law;  criminal
sale  of  a firearm in the third degree, as defined in section 265.11 of
the penal law; criminal sale of a firearm to  a  minor,  as  defined  in
section  265.16  of  the  penal law; unlawful wearing of a body vest, as
defined in section 270.20 of the penal law; hate crimes  as  defined  in
section  485.05  of the penal law; and crime of terrorism, as defined in
section 490.25 of the penal law; or (e) a felony defined  in  the  penal
law  or an attempt thereof where such attempt is a felony; or (f) any of
the following misdemeanors: assault in the third degree  as  defined  in
section  120.00  of  the  penal law; attempted aggravated assault upon a
person less than eleven years old, as  defined  in  section  110.00  and
section 120.12 of the penal law; attempted menacing in the first degree,
as defined in section 110.00 and section 120.13 of the penal law; menac-
ing  in the second degree as defined in section 120.14 of the penal law;
menacing in the third degree as defined in section 120.15 of  the  penal
law;  reckless  endangerment  in the second degree as defined in section
120.20 of the penal law; stalking in the fourth  degree  as  defined  in
section 120.45 of the penal law; stalking in the third degree as defined
in  section  120.50  of  the penal law; attempted stalking in the second
degree, as defined in section 110.00 and section  120.55  of  the  penal
law;  criminal  obstruction of breathing or blood circulation as defined
in section 121.11 of the penal law;  forcible  touching  as  defined  in
section  130.52  of  the  penal law regardless of the age of the victim;
sexual abuse in the third degree as defined in  section  130.55  of  the
penal  law regardless of the age of the victim; unlawful imprisonment in
the second degree as defined in section 135.05 of the penal law  regard-
less  of  the  age of the victim; attempted unlawful imprisonment in the
first degree, as defined in section 110.00 and  section  135.10  of  the
penal  law regardless of the age of the victim; criminal trespass in the
second degree as defined in section 140.15 of the penal law;  possession
of  burglar's tools as defined in section 140.35 of the penal law; petit
larceny as defined in section 155.25 of the penal law;  endangering  the
welfare of a child as defined in section 260.10 of the penal law; endan-
gering  the  welfare  of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] ANY FELONY  DEFINED  IN  ANY
CHAPTER OF THE LAWS OF THE STATE OR ANY MISDEMEANOR DEFINED IN THE PENAL
LAW  EXCEPT  THAT  WHERE THE PERSON IS CONVICTED UNDER SECTION 221.10 OF
THE PENAL LAW, ONLY A PERSON CONVICTED UNDER  SUBDIVISION  TWO  OF  SUCH

S. 6733                             8                            A. 9555

SECTION, OR A PERSON CONVICTED UNDER SUBDIVISION ONE OF SUCH SECTION WHO
STANDS  PREVIOUSLY  CONVICTED OF ANY CRIME AS DEFINED IN SUBDIVISION SIX
OF SECTION 10.00 OF THE PENAL LAW.
  S  6.  Subdivision 3 of section 995-c of the executive law, as amended
by chapter 576 of the laws of 2004, is amended to read as follows:
  3. (A) Any designated offender subsequent to conviction and sentencing
for a crime specified in subdivision seven of section nine hundred nine-
ty-five of this article, shall be required to provide a sample appropri-
ate for DNA testing to determine identification characteristics specific
to such person and to be included in a state  DNA  identification  index
pursuant to this article.
  (B)  (I)  IN  THE  CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A
TERM OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERV-
ANT TO WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
  (II) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO  A  TERM
OF  PROBATION,  INCLUDING A SENTENCE OF PROBATION IMPOSED IN CONJUNCTION
WITH A SENTENCE OF IMPRISONMENT WHEN  A  SAMPLE  HAS  NOT  ALREADY  BEEN
TAKEN, SUCH SAMPLE SHALL BE COLLECTED BY THE PROBATION DEPARTMENT SUPER-
VISING THE DESIGNATED OFFENDER.
  (III)  IN  THE  CASE  OF A DESIGNATED OFFENDER WHOSE SENTENCE DOES NOT
INCLUDE EITHER A TERM OF IMPRISONMENT OR A TERM OF PROBATION, OUTSIDE OF
THE CITY OF NEW YORK, THE COURT SHALL ORDER THAT THE DESIGNATED OFFENDER
REPORT TO AN OFFICE OF THE SHERIFF OF THAT COUNTY, AND WHEN  THE  DESIG-
NATED  OFFENDER DOES SO, SUCH SAMPLE SHALL BE COLLECTED BY THE SHERIFF'S
OFFICE OR A COURT OFFICER. WITHIN THE CITY OF NEW YORK, THE COURT  SHALL
ORDER THAT THE SAMPLE BE COLLECTED BY A COURT OFFICER.
  (IV)  NOTHING IN THIS PARAGRAPH SHALL PROHIBIT THE COLLECTION OF A DNA
SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR  LOCAL
CORRECTION  OFFICIAL  OR  EMPLOYEE,  PROBATION  OFFICER, PAROLE OFFICER,
POLICE OFFICER, PEACE OFFICER, OTHER LAW ENFORCEMENT OFFICIAL, OR DESIG-
NATED PERSONNEL OF THE DIVISION OF CRIMINAL  JUSTICE  SERVICES  WHO  HAS
BEEN  NOTIFIED  BY  THE  DIVISION OF CRIMINAL JUSTICE SERVICES THAT SUCH
DESIGNATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE. UPON NOTIFICATION  BY
THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT A DESIGNATED OFFENDER HAS
NOT  PROVIDED  A  DNA  SAMPLE,  SUCH  COURT  OFFICIAL,  STATE  OR  LOCAL
CORRECTION OFFICIAL OR  EMPLOYEE,  PROBATION  OFFICER,  PAROLE  OFFICER,
POLICE  OFFICER,  PEACE  OFFICER  OR  OTHER LAW ENFORCEMENT OFFICIAL, OR
DESIGNATED PERSONNEL OF THE DIVISION OF CRIMINAL JUSTICE SERVICES  SHALL
COLLECT THE DNA SAMPLE.
  S  7.  Nothing  in  this act shall be construed to create or impose an
affirmative obligation upon laboratories, police  departments,  district
attorneys,  or any other law enforcement agencies or personnel to retain
or preserve property that may contain DNA if  such  obligation  did  not
exist  prior  to the effective date of this act, provided, however, that
nothing in this act shall be construed to  affect  or  remove  any  such
obligation if it did exist prior to the effective date of this act.
  S  8.  The  actual  costs  incurred  in connection with DNA testing or
keyboard searches performed  pursuant  to  subdivision  1-a  of  section
440.30  of  the  criminal  procedure law shall be borne by the defendant
requesting such testing or searches, provided, however that  the  court,
taking  into account the defendant's financial resources, as well as any
of the defendant's financial obligations,  shall  make  a  determination
whether or not the payment of such cost would impose a hardship upon the
defendant, and in such case, the state shall bear such costs.
  S  9.  This  act shall take effect October 1, 2012; provided, however,
that the amendments to subdivision 7 of section 995 of the executive law

S. 6733                             9                            A. 9555

made by section five of this act shall apply to conviction of designated
offenses, and subparagraph two of paragraph (a) of  subdivision  1-a  of
section  440.30 of the criminal procedure law as added by section two of
this  act  shall apply to a guilty plea entered, on or after such effec-
tive date.

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