BILL NUMBER:S3110

TITLE OF BILL:
An act
to amend the real property tax law, in relation to payments of taxes in
installments in certain school districts

PURPOSE:
To allow payment of taxes in installments.

SUMMARY OF PROVISIONS:

Section 1 - amends section 1326-a of the real property tax law.
Current law is every tax in excess of fifty dollars may be paid in
three installments, the first of which shall be at least fifty
percent of the total tax due. This bill would add a provision to read
"or such other amount as may be prescribed by such resolution."

Section 2 - sets forth the enacting clause.

JUSTIFICATION:
Currently if taxes are paid in installments the first installment must
be at least fifty percent of the total tax due. This would allow by
resolution reduced minimum payments which would lift the burden on
many taxpayers in this current economic crisis. Moreover, the
flexibility of the bill would allow tax collectors to accept payments
              

from taxpayers rather than turning them away if the payment was not
high enough.

LEGISLATIVE HISTORY:
2008-10 S.5781-A/A.9042-A

FISCAL IMPLICATIONS:
None

EFFECTIVE DATE:
This act shall take effect immediately.


Section 2 of the bill amends Executive Law §995-c(3) to: (1) specify
the public servants responsible for collection of DNA samples from
designated offenders; (2) allow certain fees to support such
collection; (3) ensure that DNA samples can be collected from
uncooperative offenders; and (4) address the possibility of DNA
profiles being wrongly included in the state identification index.

Section 3 of the bill amends Executive Law §995-f to provide that it
is a violation of a defendant's conditions of probation or parole for
the defendant to fail to provide a DNA sample when required.

Section 4 of the bill amends Executive Law §995-c(4) to provide that
the Division of Criminal Justice Services shall promulgate rules and
regulations governing procedures for obtaining DNA samples from
persons subject to registration as sex offenders.

Section 5 of the bill adds a new subdivision 3-a to Executive Law.
§995-b to require the Commission on Forensic Science to develop


voluntary guidelines reflecting best practices in the collection and
preservation of biological evidence by law enforcement agencies and
forensic laboratories.

Section 6 of the bill adds a new section 837-s to the Executive Law to
create an Office of Wrongful Conviction Review within the Division of
Criminal Justice Services.
The office will review cases in which defendants were exonerated, to
determine the causes of wrongful convictions and consider reforms
that could lessen the likelihood of similar unjust convictions in the
future. The reviews will include participation by prosecutors,
defense attorneys, former judges, and other experts.

Sections 7 and 8 of the bill amend Criminal Procedure Law §§ 160.50(1)
(d) and 190 25(4) to provide that the Office of Wrongful Conviction
Review will have access to otherwise unavailable materials pertaining
to grand jury proceedings and terminations of criminal cases in favor
of the accused.

Section 9 of the bill amends Criminal Procedure Law §3010(4)(a) to
provide that the statute of limitations shall be tolled for up to
five years when a DNA profile identified from crime scene evidence
could not with reasonable diligence be matched to a known individual.

Section 10 of the bill adds a new subdivision 1-a to Criminal
Procedure Law §240.40 to provide a defendant a pre-trial discovery
right, on appropriate showings, to have crime scene DNA evidence
compared with his or her own DNA, or compared against DNA databanks.

Sections 11, 12, 13, and 14 of the bill amend Criminal Procedure Law
§ 440.10 to provide that a defendant shall file any motion for
post-conviction relief within one year after the conviction becomes
final, and shall include all grounds for such relief in a single
motion rather than file successive motions. Noncompliance with these
requirements can warrant denial of the motion, but motions based on
newly discovered evidence of innocence may be made at any time, and
even if the defendant has previously sought and been denied
post-conviction relief.

Section 15 of the bill amends Criminal Procedure Law §440.30(1-a)(a) to
extend access to DNA testing for purposes of post-conviction relief,
on proper showings, to a defendant who pled guilty. It also allows a
defendant to apply for crime scene DNA
evidence to be tested not only against his or her own DNA, but also
against profiles in DNA databanks maintained by law enforcement.

Section 16 of the bill adds a new subdivision 8 to Criminal Procedure
Law §section 440.30 to provide that if the prosecution becomes aware
of evidence exonerating a convicted defendant, it is required to
notify the court, which shall notify the defendant, appoint defense
counsel if appropriate, and may consider releasing the defendant on
bail.

Section 17 of the bill adds a new subdivision 7 to Criminal Procedure
Law §440.40 to provide that the prosecution may move to vacate a
judgment of conviction on the ground of a defendant's actual
innocence. It provides for appointment of defense counsel,


consideration of release on bail, and prompt judicial resolution
through either a summary grant of the motion or an evidentiary hearing.

Section 18 of the bill adds a new subdivision 4-b to Penal Law §65.10
to provide that when a court imposes a sentence that includes
probation or a conditional discharge, it shall require as a mandatory
condition of such sentence that the defendant provide a DNA sample.

Section 19 of the bill amends Court of Claims Act §8-b to provide that
an unjustly convicted defendant may obtain compensation whether or
not the defendant's conviction was overturned on one of the grounds
currently enumerated in the statute, as long as it was overturned for
reasons involving facts and circumstances directly supporting the
defendant's claim of innocence.

Section 20 of the bill provides for an effective date of November 1,
2009. It applies the expansion of DNA collection to any defendant
convicted or adjudicated a youthful offender on or after that date,
and to any person incarcerated or subject to probation or parole
supervision, or to a sex offender registration requirement, on or
after that date. It also provides that the provisions relating to the
Office of Wrongful Conviction Review shall expire on September 1, 2013.

EXISTING LAW:

DNA samples are currently collected from persons convicted of some but
not all crimes. The list of crimes subject to collection has been
expanded three times, but many misdemeanor convictions remain outside
the scope of collection. Currently there is no DNA collection from
persons adjudicated youthful offenders or subject to sex offender
registration. Existing law does not make clear which officials are
responsible for collecting DNA samples in various cases, nor does it
require that defendants provide DNA samples as a condition of
probation or parole.

There is no requirement to develop best practice guidelines for
collection and preservation of biological evidence Nor is there a
requirement to study cases in which defendants have been wrongfully
convicted and subsequently exonerated.

Criminal Procedure Law §30.10(4)(a) provides that the statute
of limitations shall be tolled for up to five years when the
whereabouts of the defendant were continuously unknown and
continuously unascertainable by the exercise of reasonable diligence
This has been interpreted to include defendants whose identity is
unknown.

Criminal Procedure Law §240.40 defines the scope of a defendant's right
of pretrial discovery of existing evidence, but it does not include
the authority to apply for court-ordered DNA testing.

Article 440 of the Criminal Procedure Law currently places no
limitations on when or how many motions for post-conviction relief
may be filed by a defendant Section 440.30(1-a) provides that a
defendant may apply for DNA testing of evidence secured in connection
with the trial, but it does not include application for an order to
have.such evidence compared against DNA databanks maintained by law


enforcement.
Moreover, in PEOPLE V. BYRDSONG, 33 A.D.3d 175
(2d Dept. 2006), the
existing authority was held inapplicable to defendants who pled guilty.
There is currently no mechanism in the Criminal Procedure Law for a
prosecutor to move for a judgment of conviction to be vacated, even
when new evidence would support a claim of innocence Prosecutors do
not currently have an explicit legal or ethical duty to bring such
evidence to the attention of a court.

Section 8-b of the Court of Claims Act allows wrongfully convicted
defendants to seek compensation from the State. However, this
provision is currently restricted by a requirement that the defendant
must show that the conviction was overturned on one of certain
enumerated procedural grounds, even if it was in substance based on
facts supporting a claim of innocence.

STATEMENT IN SUPPORT:

DNA technology is already a valuable tool for both law enforcement
and criminal defendants. This bill significantly expands the value of
this tool for all parties. It will result in more persons who are
guilty of crimes being identified, prosecuted, and convicted. It will
also give defendants facing trial, and those wrongfully convicted,
significantly greater access to DNA testing for purposes of exoneration.

1. EXPANSION OF THE DNA DATABANK

The benefits of DNA comparisons to law enforcement are well documented
and commonly known. When crime scene DNA evidence is matched to a
profile in a DNA databank, it can allow the prompt identification and
prosecution of the guilty party. The benefits of such comparisons to
wrongfully convicted defendants are also well known.
DNA testing has resulted in exoneration of numerous defendants,
including some in New York, who were imprisoned for substantial periods.

The demonstrated effectiveness of these techniques has already led the
Legislature on several occasions to expand the scope of DNA
collections from convicted defendants. Yet, no provisions exist for
collecting samples from persons convicted of various misdemeanors,
from youthful offenders, or from persons subject to registration as
sex offenders Experience has shown that having samples from an
expanded pool of convicted defendants, even if their convictions are
only for low-level crimes, can substantially enhance the utility of
DNA in solving more serious crimes. Solving a crime typically can
result in convicting the guilty, but can also result in exonerating
the innocent.

2. ENSURING PROPER COLLECTION AND PRESERVATION
OF DNA SAMPLES

The bill further enhances the use of DNA technology by ensuring that
defendants required to give samples actually do so. Currently there
are failures to collect samples from a substantial number of
defendants who "fall through the cracks." The bill addresses this
problem by specifying the public officers responsible for collecting
the samples, and by requiring that a defendant under probation or


parole supervision provide a DNA sample as a condition of that
supervision By facilitating the successful collection of a DNA sample
from every person convicted of a crime, adjudicated a youthful
offender, or subject to registration as a sex offender, this bill
will make for more effective law enforcement and more effective
defense of the innocent.

In addition to increasing the size of DNA databanks, the bill will
enhance their integrity as well. The bill requires the Commission on
Forensic Science to develop voluntary guidelines reflecting best
practices in the collection and preservation of biological evidence,
and it requires periodic review to ensure that DNA profiles that
should not be in the state index are removed.

3.
EXTENDING STATUTES OF LIMITATIONS TO PERMIT DNA IDENTIFICATIONS

Currently, a statute of limitations is extended by up to five years if
the whereabouts of the defendant are continuously unknown and
continuously unascertainable by the exercise of reasonable diligence.
When law enforcement has identified a perpetrator's DNA profile from
a crime scene, the same policy considerations apply, and indeed apply
even more strongly given the reliability and durability of DNA
evidence. The most effective technique for ascertaining the identity
of the perpetrator is to enter the profile into DNA databanks where
it can be compared against existing profiles and periodically
re-compared as new profiles come into that databank. There is no
reason to require further diligence through avenues of investigation
likely to be much less effective.

4. EXONERATING THE INNOCENT

While expansion of the DNA databank will be of value to prosecutors
and defendants alike, there are other provisions of the bill that
will significantly increase the value of DNA technology specifically
to the wrongfully accused. While defendants
currently have the right to apply for DNA testing to support
post-conviction relief, this bill removes four significant
limitations on that right.

First, the current right is limited to the post-conviction context.
When DNA technology can establish the innocence of a criminal
defendant, it is obviously far preferable to do so before trial,
rather than after conviction and possibly lengthy imprisonment This
bill extends the availability of DNA testing to defendants as a
matter of pre-trial discovery.

Second, the right to apply for DNA testing has been held inapplicable
to defendants who pled guilty. Actual experience shows that even in
cases of guilty pleas, convicted defendants have occasionally been
exonerated. While there may not be many such defendants, their need
for redress is compelling, and this bill would give them access to
DNA testing on an appropriate showing.

Third, the right to apply for DNA testing is limited to comparison
between crime scene evidence and the defendant's own DNA. Yet it can
also be highly useful for an innocent defendant to obtain comparison


between crime-scene evidence and government databanks that include DNA
profiles of persons convicted of crimes and other crime scene
evidence. A match to a databank profile can lead to further
investigation that can in turn identify another party as the actual
perpetrator and thus exonerate the defendant.
This bill therefore allows such comparisons.

Fourth, merely obtaining exonerative DNA evidence is not enough unless
there are procedures ensuring its proper judicial consideration. This
bill, for the first time, would create an obligation for prosecutors
to bring exonerative evidence, whether or not based on DNA, to the
attention of the court When such evidence is so strong as to lead the
prosecutor to conclude that the defendant is actually innocent, it
creates for the first time a procedural vehicle by which the
prosecutor can move for the judgment of conviction to be vacated. In
either case, there are also provisions that ensure the prompt and
appropriate judicial attention to such evidence, including the
appointment of defense counsel when necessary, the possibility of the
convicted defendant's release on bail, and evidentiary hearings on
the exonerative evidence. Taken together, these innovations will
vastly enhance the value of DNA evidence to the wrongfully accused.

5. STREAMLINING PROCEDURES FOR POST-CONVICTION RELIEF

The bill also includes provisions that will make the procedures for
seeking post conviction relief more streamlined, efficient, and timely.
Defendants are currently allowed to move for such relief whenever
they wish, and as many times as they wish.
Many defendants do indeed file motion after motion, creating serious
and unnecessary burdens on the bench and bar. Common sense
limitations similar to those followed in other jurisdictions would
reduce those burdens while still allowing defendants to assert every
colorable claim for post-conviction relief. In particular, under this
bill, a defendant would have a full year after the conviction becomes
final to assert all such claims in a single motion. Even thereafter,
the bill would preserve the defendant's ability at any time
to make even successive motions in certain cases when there is DNA
testing or other newly discovered evidence to support a claim of
innocence.

6. PROVIDING COMPENSATION TO EXONERATED DEFENDANTS

In addition to facilitating the exoneration of wrongfully convicted
defendants, the bill would ensure their access to appropriate
remedies following such exoneration. While there is already a remedy
in the Court of Claims Act for exonerated defendants to seek damages
from the State, this remedy is limited by an overly restrictive
limitation to claimants whose convictions were overturned on certain
specified procedural bases. The bill removes that limitation to allow
meritorious claims to go forward without regard to procedural
distinctions that are not necessarily related to the claim of actual
innocence.

7. INNOCENCE REVIEW OFFICE

Finally, the bill seeks not only to correct the mistakes of the past
but also to learn from them. It establishes an Office of Wrongful


Conviction Review that will study cases in which defendants have been
wrongfully convicted and subsequently exonerated. This process, by
identifying the flaws in the system that allowed such wrongful
convictions to occur, should shed new light on how to reform the
criminal justice system to minimize the chance that such miscarriages
of justice may recur in the future.

LEGISLATIVE HISTORY:

2009-10: S.3110A Referred to Codes
2007:    S.5848 - Passed Senate 52-9/Assembly Codes
Hostile Amendment was defeated.  The bill was debated.
2008:    Senate Rules

FISCAL IMPLICATIONS:

Databank expansion would carry a fiscal impact, but the greatest
expense - the capital cost of increasing testing capacity - has
already been incurred in response to previous increases in the scope
of collection. It is estimated that further expansion of collection
to all crimes, including persons on probation, would require
outsourced testing of about 50,000 samples, but because of the
existing testing backlog, none of these costs will be incurred in the
current fiscal year. After testing of the initial surge, it should be
possible for the ongoing work on the expanded flow of cases to be
handled within existing levels of lab expenditures. It is estimated
that the new Office of Wrongful Conviction Review may cost up to $1
million per year. The other provisions of the bill are estimated to
have minimal fiscal impact.

EFFECTIVE DATE

This bill becomes effective on November 1, 2010, except that sections
six through eight of the bill become effective April 1, 2011, and
expire on September 1, 2014. The expanded scope of DNA collection
would apply to any person who, on or after the effective date, is
convicted of a crime, adjudicated a youthful offender, or is
incarcerated or subject to requirements of probation or parole
supervision or sex offender registration.