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

                                  9225

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            November 4, 2009
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN  ACT to amend the executive law, in relation to defining a designated
  offender; to amend the penal law,  in  relation  to  providing  a  DNA
  sample;  to  amend  the executive law, in relation to establishing the
  minimum period of time that forensic samples  should  be  retained  by
  investigating  authorities; in relation to appointments to the commis-
  sion on forensic science; to amend  the  criminal  procedure  law,  in
  relation  to  special fictitious name indictments; to amend the execu-
  tive law, in relation to requests for certain DNA test comparisons; to
  amend the criminal procedure law, in relation to forensic DNA testing;
  and to amend the executive law and  the  criminal  procedure  law,  in
  relation  to  DNA testing, confidentiality, data collection and record
  keeping

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

  Section  1.  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, 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14886-02-9
              

A. 9225                             2

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
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

A. 9225                             3

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
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;  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 regardless 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; endangering the welfare of an incompetent or

A. 9225                             4

physically disabled person as defined in section 260.25]  A  MISDEMEANOR
DEFINED  IN  THE  PENAL  LAW  OR A FELONY DEFINED IN THE PENAL LAW, OR A
PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW.
  S  2.  The penal law is amended by adding a new section 270.40 to read
as follows:
S 270.40 FAILURE TO PROVIDE A DNA SAMPLE.
  A PERSON IS GUILTY OF FAILURE TO PROVIDE A DNA SAMPLE WHEN HE  OR  SHE
(A) IS A DESIGNATED OFFENDER, AS DEFINED IN SUBDIVISION SEVEN OF SECTION
NINE  HUNDRED  NINETY-FIVE  OF  THE EXECUTIVE LAW, REQUIRED TO PROVIDE A
SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT TO THE PROVISIONS OF  SUBDI-
VISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW;
(B)  HAS BEEN NOTIFIED BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR
EMPLOYEE, PAROLE OFFICER, PROBATION OFFICER, POLICE OFFICER, PEACE OFFI-
CER OR OTHER PUBLIC SERVANT OF THE OBLIGATION TO PROVIDE SUCH A  SAMPLE;
AND  (C) UPON REQUEST TO PROVIDE SUCH SAMPLE, MADE IN PERSON BY A PUBLIC
SERVANT AUTHORIZED TO COLLECT IT, FAILS TO PROVIDE SUCH A SAMPLE.
  FAILURE TO PROVIDE A DNA SAMPLE IS A CLASS A MISDEMEANOR.
  S 3. Subparagraph (ix) of paragraph (b) of subdivision  9  of  section
995-b of the executive law, as added by chapter 737 of the laws of 1994,
is amended and a new paragraph (c) is added to read as follows:
  (ix)  such policy shall provide for the mutual exchange, use and stor-
age of DNA records with the system of DNA identification utilized by the
federal bureau of investigation provided that the commission  determines
that  such  exchange, use and storage are consistent with the provisions
of this article and applicable provisions of law[.]; AND
  (C) WITHIN ONE YEAR OF THE EFFECTIVE DATE OF  THIS  PARAGRAPH,  DETER-
MINE,  CONSISTENT  WITH  THIS ARTICLE, THE APPROPRIATE MINIMUM PERIOD OF
TIME THAT FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERI-
AL, OBTAINED IN  CONNECTION  WITH  THE  FORENSIC  EXAMINATION  OF  CRIME
SCENES,  SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME OR
SPECIFIED EVENT OR EVENTS, IF ANY,  AFTER  WHICH,  CONSISTENT  WITH  THE
INTEREST  OF  ALL  PERSONS  AND  LAW  ENFORCEMENT,  SUCH  SAMPLES MAY BE
DESTROYED, AND DETERMINE STANDARDS FOR THE  CATALOGING  AND  MAINTAINING
RECORDS  OF SUCH SAMPLES.  PENDING THE PROMULGATION OF A POLICY ADDRESS-
ING THE ISSUES SET FORTH IN THIS PARAGRAPH, THE COMMISSION MAY ADOPT  AN
INTERIM  POLICY  MANDATING THE PRESERVATION BY INVESTIGATING AUTHORITIES
OF FORENSIC SAMPLES OF  BLOOD,  TISSUE  AND  OTHER  BIOLOGICAL  MATERIAL
OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME SCENES.
  S  4. Subdivision 1 of section 995-a of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
  1. There is hereby created in the executive department, the commission
on forensic science, which shall consist  of  the  following  [fourteen]
SIXTEEN  members:    (a)  the  commissioner  of the division of criminal
justice services who shall be chair of the commission  and  the  commis-
sioner  of  the  department  of health or his or her designee, who shall
serve as an ex-officio member of the commission;
  (b) [twelve] FOURTEEN members appointed by the governor.
  S 5. Paragraph (i) of subdivision 2 of section 995-a of the  executive
law,  as added by chapter 737 of the laws of 1994, is amended, paragraph
(j) is relettered paragraph (k) and a new paragraph (j) is added to read
as follows:
  (i) two members shall  be  members-at-large,  one  of  whom  shall  be
appointed  upon  the  recommendation  of  the temporary president of the
senate, and one of whom shall be appointed upon  the  recommendation  of
the speaker of the assembly; [and]

A. 9225                             5

  (J)  TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL  BE
A  CRIME  VICTIMS  ADVOCATE,  AND  ONE SUCH PERSON SHALL BE AN EXPERT IN
BIOMEDICAL ETHICS; AND
  S 6. Section 1.20 of the criminal procedure law is amended by adding a
new subdivision 44 to read as follows:
  44.  "SPECIAL  FICTITIOUS  NAME  INDICTMENT"  MEANS AN INDICTMENT OF A
PERSON WHOSE NAME IS UNKNOWN BUT WHOSE IDENTITY IS  ESTABLISHED  TO  THE
SATISFACTION  OF  A  GRAND  JURY  PURSUANT TO SUBDIVISION ONE OF SECTION
190.65 OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID  (DNA)
TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
SHALL  INCLUDE  A  FICTITIOUS NAME, SUCH AS "JOHN DOE" OR "JANE DOE", IN
PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
  S 7. Subdivision 3 of section 190.65 of the criminal procedure law  is
amended to read as follows:
  3.  Upon  voting  to  indict  a person, a grand jury must, through its
foreman or acting foreman, file an indictment with the court by which it
was impaneled.  WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT  HIS
OR  HER  IDENTITY  IS  ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC  DEOXY-
RIBONUCLEIC  ACID  (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS  NAME
INDICTMENT.  THE  AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
IN LAW FOR THE FILING OF AN INDICTMENT WHEN  THE  NAME  OF  AN  INDICTED
PERSON IS UNKNOWN.
  S  8.  Section  995-c  of the executive law is amended by adding a new
subdivision 10 to read as follows:
  10. A SUPERIOR COURT, IN RESPONSE TO A MOTION FOR SUCH COMPARISON BY A
DEFENDANT, MAY ORDER THAT DNA INFORMATION FROM A CRIME SCENE  SAMPLE  OR
SAMPLES  AND/OR FINGERPRINTS OBTAINED IN THE COURSE OF THE INVESTIGATION
OF AN ALLEGED CRIME BE CHECKED AGAINST THE DNA RECORDS MAINTAINED BY  OR
AVAILABLE  THROUGH THE STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSU-
ANT TO THIS SECTION AND THE NATIONAL DNA INDEX SYSTEM, AND  AGAINST  THE
FINGERPRINT RECORDS MAINTAINED BY OR AVAILABLE THROUGH THE STATE FINGER-
PRINT  RECORD  DATABASE  ESTABLISHED  PURSUANT  TO  SUBDIVISION SEVEN OF
SECTION EIGHT HUNDRED THIRTY-SEVEN OF  THIS  CHAPTER  AND  THE  NATIONAL
FINGERPRINT IDENTIFICATION SYSTEM, AND THAT THE RESULTS OF SUCH CHECK OR
CHECKS BE DISCLOSED TO SUCH DEFENDANT AND TO THE PROSECUTOR WHOSE JURIS-
DICTION  INCLUDES  THE LOCATION OF THE ALLEGED COMMISSION OF SUCH CRIME,
UPON A SHOWING BY THE DEFENDANT THAT SUCH AN ANALYSIS MAY BE MATERIAL TO
HIS OR HER DEFENSE AND THAT THE REQUEST IS REASONABLE.
  S 9. Paragraph (a) of subdivision 1-a of section 440.30 of the  crimi-
nal  procedure  law,  as  amended by chapter 138 of the laws of 2004, is
amended to read as follows:
  (a) Where the defendant's motion requests the performance of a  foren-
sic  DNA  test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA")  was  secured
in connection with the INVESTIGATION OR 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 AVAILABLE TO  THE  DEFENDANT,
OR THE RESULTS HAD BEEN admitted in the trial resulting in the judgment,
there  exists  a  reasonable probability that the DISPOSITION OR verdict
would have been more favorable to the defendant.

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  S 10. Section 995-b of the executive law is amended by  adding  a  new
subdivision 14 to read as follows:
  14.  THE  COMMISSION SHALL REVIEW THE CONFIDENTIALITY SAFEGUARDS WHICH
ARE MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER  INFORMATION
FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
SHALL  DETERMINE  WHETHER  ANY ADDITIONAL CONFIDENTIALITY SAFEGUARDS ARE
NECESSARY WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO  ISSUE
A  REPORT  TO  THE  MAJORITY LEADER OF THE SENATE AND THE SPEAKER OF THE
ASSEMBLY WHICH DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND  THE  REASONS
FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
SUCH  SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT SHALL
ALSO RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES,  FOLLOWING
THE  ENCODING  OF INFORMATION FROM SUCH SAMPLES INTO THE STATE DNA IDEN-
TIFICATION INDEX, SHOULD BE INITIATED OR  WHETHER,  ALTERNATIVELY,  SUCH
SAMPLES SHALL CONTINUE TO BE MAINTAINED.
  S 11. Subdivision 2 of section 995-c of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
  2.  (A)  Following  the  review  and  approval  of the plan by the DNA
subcommittee and the commission and the filing of  such  plan  with  the
speaker  of  the assembly and the temporary president of the senate, the
commissioner of criminal justice services is hereby authorized to estab-
lish a computerized state  DNA  identification  index  pursuant  to  the
provisions of this article.  NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
LATION  OF  DNA  IDENTIFICATION PROFILES MAY BE MAINTAINED IN THIS STATE
PROVIDED, HOWEVER, THAT THIS PROHIBITION SHALL  NOT  BE  INTERPRETED  TO
PROHIBIT  ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED FROM
CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
  (B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
  S 12.  Paragraph (b) of subdivision 9 of section 995-c of  the  execu-
tive  law,  as  added by chapter 524 of the laws of 2002, is amended and
two new paragraphs (c) and (d) are added to read as follows:
  (b) As prescribed in this paragraph, if an individual,  either  volun-
tarily  or  pursuant  to  a  warrant or order of a court, has provided a
sample for DNA testing in connection with the  investigation  or  prose-
cution  of  a  crime  and  (i) no criminal action against the individual
relating to such crime was commenced  within  the  period  specified  by
section  30.10  of the criminal procedure law, or (ii) a criminal action
was commenced against  the  individual  relating  to  such  crime  which
resulted in a complete acquittal, OR A DISMISSAL AND THE MATTER WILL NOT
BE  TRIED  OR RETRIED, or (iii) a criminal action against the individual
relating to such crime resulted in a conviction  that  was  subsequently
reversed  or  vacated,  or for which the individual was granted a pardon
pursuant to article two-A of this chapter, such individual may apply  to
the  supreme  court or the court in which the judgment of conviction was
originally entered for an order directing the  expungement  of  any  DNA
record and any samples, analyses, or other documents relating to the DNA
testing of such individual in connection with the investigation or pros-
ecution of such crime. A copy of such application shall be served on the
district  attorney  and an order directing expungement may be granted if
the court finds that the individual has satisfied the conditions of  one
of the subparagraphs of this paragraph; that if a judgment of conviction
was  reversed  or  vacated,  all  appeals  relating  thereto  have  been
concluded and the individual will not be retried, or, if a  retrial  has

A. 9225                             7

occurred,  the  trier of fact has rendered a verdict of complete acquit-
tal, and that expungement will not adversely affect the investigation or
prosecution of some other person or persons for the crime.   NOTHING  IN
THIS  PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN  THE  INTERESTS
OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
ing the expungement of any DNA record and any samples, analyses or other
documents relating to the DNA testing of such individual is issued, such
record  and  any  samples,  analyses,  or  other documents shall, at the
discretion of the possessor thereof, be destroyed or  returned  to  such
individual  or  to the attorney who represented him or her in connection
with the application for the order of expungement. THE PERSON DESTROYING
OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND  OTHER  DOCUMENTS  SHALL
MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
RETURN  AND  IDENTIFYING  THE  PERSON OR PERSONS DESTROYING OR RETURNING
SAME.  THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR  TO  THE  ATTORNEY  WHO
REPRESENTED  HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
OF EXPUNGEMENT.
  (C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH  THE
INVESTIGATION  OR  PROSECUTION  OF  A CRIME, OTHER THAN IN RESPONSE TO A
DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND  THREE  OF  THIS
SECTION,  OR  IF  A  SAMPLE  FOR DNA TESTING HAS OTHERWISE COME INTO THE
CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN  AGENT  THEREOF,
AND  THE  DNA  PROFILE  DERIVED  FROM  SUCH  SAMPLE DOES NOT MATCH A DNA
PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN  CONNECTION  WITH
THE  INVESTIGATION  OR  PROSECUTION  OF  A  CRIMINAL  ACT OR ACTS, EVERY
RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA  TESTING
OF  SUCH  SAMPLE  SHALL,  AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE  WITH  RESPECT  TO  THE
INVESTIGATION,  PROSECUTION  AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE  LINKED
TO  SUCH  SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
CRIME HAS CONCLUDED, WHICHEVER  FIRST  OCCURS,  SUCH  RECORDS,  SAMPLES,
ANALYSES  AND  OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR
THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED  IN    A
MANNER  CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPH (II), (IV) OR (V)
OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 160.55  OF  THE  CRIMINAL
PROCEDURE LAW.
  (II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
ANALYSES  OR  OTHER  DOCUMENTS  IN  ACCORDANCE WITH THIS PARAGRAPH SHALL
MAINTAIN A RECORD  CERTIFYING  THE  DATE  AND  MANNER  OF  SUCH  RETURN,
DESTRUCTION  OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
DESTROYING OR SEALING SAME.  THE PERSON RETURNING, DESTROYING OR SEALING
SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON  WHO  SUBMITTED  THE
SAMPLE.
  (III)  THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
APPLY TO DNA RECORDS, SAMPLES, ANALYSES  AND  OTHER  DOCUMENTS  OBTAINED
FROM  THE  FORENSIC  EXAMINATION  OF CRIME SCENE EVIDENCE, WHERE THE DNA

A. 9225                             8

PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE  DNA
PROFILE OF A KNOWN PERSON.
  (D)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED  OR  SEALED,
AND  MAY  BE  INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF  THIS  PARA-
GRAPH,  THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
CLE.  ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED  IN  THE  STATE  DNA
IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
  S  13. Section 995-d of the executive law is amended by adding two new
subdivisions 3 and 4 to read as follows:
  3. IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION, ANY INDIVID-
UAL DNA PROFILE OBTAINED OR MAINTAINED BY A STATE, COUNTY OR  LOCAL  LAW
ENFORCEMENT  AGENCY,  OR  AN  AGENT  THEREOF,  FROM  A BIOLOGICAL SAMPLE
SUBMITTED IN THE MANNER DESCRIBED IN PARAGRAPH (B) OR (C) OF SUBDIVISION
NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  MAY  BE
COMPARED  INDIVIDUALLY  OR  VIA COMPUTERIZED DATABASE TO ONE OR MORE DNA
PROFILES MAINTAINED PURSUANT TO OR IN ACCORDANCE WITH SUBDIVISIONS  ONE,
TWO  AND  THREE  OF  SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE,
AND/OR MAY BE INDIVIDUALLY COMPARED BY SUCH STATE, COUNTY OR  LOCAL  LAW
ENFORCEMENT  AGENCY,  OR  AN  AGENT THEREOF, TO ONE OR MORE DNA PROFILES
DEVELOPED FROM THE FORENSIC EXAMINATION OF CRIME SCENES IN ONE  OR  MORE
CASES UNDER INVESTIGATION.
  (A)  IF  SUCH INDIVIDUAL DNA PROFILE MATCHES THE DNA PROFILE DEVELOPED
FROM THE FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE OR MORE
CASES UNDER INVESTIGATION, AND/OR ONE OR MORE  DNA  PROFILES  MAINTAINED
PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND THREE OF SECTION NINE HUNDRED
NINETY-FIVE-C OF THIS ARTICLE, SUCH  INDIVIDUAL  DNA  PROFILE,  TOGETHER
WITH  THE BIOLOGICAL MATERIAL FROM WHICH SUCH INDIVIDUAL DNA PROFILE WAS
DEVELOPED, MAY, AS APPROPRIATE PURSUANT TO APPLICABLE LAWS AND RULES  OF
EVIDENCE  AND  CONSISTENT  WITH THIS ARTICLE, BE USED IN CONNECTION WITH
THE INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF SUCH PERSON.
  (B) IF SUCH INDIVIDUAL DNA PROFILE DOES  NOT  MATCH  THE  DNA  PROFILE
DEVELOPED  FROM  FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE
OR MORE CASES UNDER INVESTIGATION, AND/OR ONE OR MORE DNA PROFILES MAIN-
TAINED PURSUANT TO SUBDIVISIONS ONE,  TWO  AND  THREE  OF  SECTION  NINE
HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  SUCH INDIVIDUAL DNA PROFILE,
TOGETHER WITH THE BIOLOGICAL MATERIAL FROM  WHICH  SUCH  INDIVIDUAL  DNA
PROFILE  WAS DEVELOPED, SHALL BE DEALT WITH IN ACCORDANCE WITH PARAGRAPH
(C) OF SUBDIVISION NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS
ARTICLE.
  4. (A) EXCEPT WHERE THE DEMAND IS PURSUANT TO A COURT ORDER OR WARRANT
OR  PURSUANT  TO SUBDIVISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C
OF THIS ARTICLE, PRIOR TO REQUESTING A BIOLOGICAL SAMPLE FROM  AN  INDI-
VIDUAL  THAT  WILL  BE  USED FOR DNA TESTING, THE POLICE DEPARTMENT, LAW
ENFORCEMENT AGENCY, OR AGENT THEREOF REQUESTING SUCH SAMPLE SHALL OBTAIN
WRITTEN INFORMED CONSENT FROM  SUCH  INDIVIDUAL  CONSISTING  OF  WRITTEN
AUTHORIZATION IN PLAIN LANGUAGE THAT IS DATED AND SIGNED AND INCLUDES AT
LEAST THE FOLLOWING: (1) A GENERAL DESCRIPTION OF THE TEST; (2) A STATE-
MENT  THAT  THE  DNA  SAMPLE  OF  THE  SUBJECT MAY INITIALLY BE COMPARED
AGAINST ANY CRIME SCENE EVIDENCE OR DATABASE OF CRIME SCENE EVIDENCE AND
A DESCRIPTION OF WHETHER, IN THE EVENT  SUCH  SUBJECT  SAMPLE  DOES  NOT

A. 9225                             9

MATCH  A  DNA  PROFILE  DERIVED FROM ANY SUCH CRIME SCENE EVIDENCE, SUCH
SUBJECT SAMPLE WILL THEREAFTER BE RETURNED, DESTROYED OR RETAINED.    IN
THE  EVENT THE AGENT REQUESTING SUCH SAMPLE MAY RETAIN SUCH SAMPLE, SUCH
STATEMENT  SHALL  DESCRIBE THE CIRCUMSTANCES UNDER WHICH SUCH SAMPLE MAY
THEREAFTER BE LAWFULLY USED; (3) THE NAME  OF  THE  PERSON  OR  SPECIFIC
CATEGORIES  OF  PERSONS OR ORGANIZATIONS TO WHOM THE TEST RESULTS MAY BE
DISCLOSED; (4) A STATEMENT THAT NO TESTS  OTHER  THAN  THOSE  AUTHORIZED
SHALL  BE  PERFORMED  ON THE BIOLOGICAL SAMPLE; AND (5) A SUMMARY OF THE
INFORMATION SET FORTH IN PARAGRAPHS (B) AND (C) OF SUBDIVISION  NINE  OF
SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE.
  (B)  NONCOMPLIANCE WITH ANY PROVISION OF THIS SUBDIVISION SHALL NOT IN
AND OF ITSELF AFFECT THE ADMISSIBILITY OF EVIDENCE OR  OTHERWISE  AFFECT
ANY CONVICTION OR CRIMINAL PROSECUTION.
  S  14.  Section  340.20  of  the  criminal procedure law is amended by
adding a new subdivision 5 to read as follows:
  5. PRIOR TO ACCEPTING A DEFENDANT'S PLEA  OF  GUILTY  TO  A  COUNT  OR
COUNTS OF AN INFORMATION CHARGING A MISDEMEANOR, AS DEFINED IN PARAGRAPH
(A) OF SUBDIVISION TWO OF SECTION 55.10 OF THE PENAL LAW AND INCLUDED IN
THE  DEFINITION  OF DESIGNATED OFFENDER PURSUANT TO SUBDIVISION SEVEN OF
SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE  COURT  SHALL
ADVISE THE DEFENDANT THAT UPON THE CONVICTION FOR SUCH MISDEMEANOR HE OR
SHE WILL BE REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING FOR
INCLUSION  IN  THE  STATE  DNA  IDENTIFICATION INDEX PURSUANT TO ARTICLE
FORTY-NINE-B OF THE EXECUTIVE LAW. THE COURT SHALL AFFIRM ON THE  RECORD
OR  IN  WRITING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE REQUIRED BY
THIS SUBDIVISION. THE FAILURE OF A COURT TO ADVISE THE DEFENDANT  PURSU-
ANT  TO  THIS  SUBDIVISION OR TO OTHERWISE COMPLY WITH THE PROVISIONS OF
THIS SUBDIVISION SHALL NOT BE DEEMED TO AFFECT THE  VOLUNTARINESS  OF  A
PLEA OF GUILTY OR THE VALIDITY OF A CONVICTION.
  S  15. Subdivision 1-a of section 440.30 of the criminal procedure law
is amended by adding a new paragraph (c) to read as follows:
  (C) IN CONJUNCTION WITH THE FILING OF A MOTION UNDER THIS SUBDIVISION,
THE COURT MAY DIRECT THE STATE TO PROVIDE THE MOVANT  WITH  INFORMATION,
INCLUDING  DOCUMENTS,  NOTES,  LOGS OR REPORTS, RELATING TO ANY PHYSICAL
ITEMS COLLECTED IN CONNECTION WITH THE CASE, WHERE IT IS LIKELY ANY SUCH
PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING, WOULD YIELD DNA INFORMATION
THAT MEETS THE STANDARD SET FORTH IN PARAGRAPH (A) OF THIS  SUBDIVISION.
THE COURT MAY DIRECT THE STATE TO PROVIDE OTHER REASONABLE ASSISTANCE TO
THE  MOVANT  IN  LOCATING ANY SUCH RECORDS OR ITEMS OF PHYSICAL EVIDENCE
WHICH MAY HAVE BEEN LOST OR DESTROYED. THE COURT  MAY  ALSO  DIRECT  THE
PEOPLE TO TAKE REASONABLE MEASURES TO ATTEMPT TO LOCATE ANY SUCH RECORDS
OR  PHYSICAL  ITEMS  THAT MAY BE IN GOVERNMENT CUSTODY AND/OR ASSIST THE
MOVANT IN LOCATING ANY SUCH RECORDS OR PHYSICAL ITEMS THAT MAY BE IN THE
CUSTODY OF A PUBLIC OR PRIVATE HOSPITAL, LABORATORY OR  OTHER  FACILITY.
THE  COURT  SHALL DENY A REQUEST FOR ASSISTANCE BROUGHT UNDER THIS PARA-
GRAPH IF THE COURT DETERMINES THAT SUCH REQUEST FOR ASSISTANCE IS FRIVO-
LOUS, ABUSIVE OR INAPPROPRIATE.
  S 16. This act shall take effect immediately; provided, however, that:
  (a) sections eleven, twelve and thirteen of this act shall take effect
on the one hundred twentieth day after it shall have become a law;
  (b) section two of this act shall take effect  on  the  ninetieth  day
after it shall have become a law;
  (c)  the  amendments  to  section 340.20 of the criminal procedure law
made by section fourteen of this act shall apply to pleas of guilty to a
count or counts of an information entered 60  days  or  more  after  the
effective date of this act.