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

                                  5894

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 18, 2009
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- (at request of the Governor) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Rules

AN  ACT  to  amend  the  executive law, in relation to collection of DNA
  samples from designated offenders, the  release  of  certain  criminal
  records and the authority of the forensic science commission; to amend
  the  criminal procedure law, in relation to identification procedures,
  access by defendants to DNA evidence and procedures for  consideration
  of  post-conviction  relief;  to  amend  the penal law, in relation to
  conditions of probation  and  conditional  discharge  and  refusal  to
  provide  a  DNA  sample;  and  to  amend  the  court of claims act, in
  relation to claims for unjust conviction and imprisonment

  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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12042-07-9
              

S. 5894                             2

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
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

S. 5894                             3

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
physically disabled person as defined in section 260.25] FELONY  DEFINED
IN  THE  PENAL  LAW  OR  ANY  MISDEMEANOR DEFINED IN THE PENAL LAW, OR A

S. 5894                             4

PERSON ADJUDICATED AND SENTENCED AS  A  YOUTHFUL  OFFENDER  PURSUANT  TO
ARTICLE  SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY SUCH
MISDEMEANOR OR FELONY, OR A PERSON WHO IS REQUIRED TO REGISTER AS A  SEX
OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  S  2.  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  sentenc-
ing  for  a crime specified in subdivision seven of section nine hundred
ninety-five of this article,] shall be  required  to  provide  a  sample
appropriate  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 SERVANT 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) 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,  OR  OTHER PUBLIC SERVANT WHO HAS BEEN
NOTIFIED BY THE DIVISION THAT SUCH DESIGNATED OFFENDER HAS NOT  PROVIDED
A DNA SAMPLE.
  S 3. Section 60.25 of the criminal procedure law, subparagraph (ii) of
paragraph  (a) of subdivision 1 as amended by chapter 479 of the laws of
1977, is amended to read as follows:
S 60.25  Rules of evidence; identification by means of previous recogni-
          tion, in absence of present identification.
  1.  In any criminal proceeding in which the defendant's commission  of
an  offense is in issue, testimony as provided in subdivision two may be
given by a witness when:
  (a)  Such witness testifies that:
  (i)  He observed the person claimed by the people to be the  defendant
either  at  the  time and place of the commission of the offense or upon
some other occasion relevant to the case; and
  (ii)   On a  subsequent  occasion  he  observed,  under  circumstances
consistent  with  such  rights as an accused person may derive under the
constitution of this state or of the  United  States,  a  person,  OR  A
PHOTOGRAPH  OR  OTHER  RECORDED IMAGE OF A PERSON, whom he recognized as
the same person whom he had observed on the first or incriminating occa-
sion; and
  (iii)  He is unable at the proceeding to state, on the basis of  pres-
ent  recollection,  whether  or not the defendant is the person in ques-
tion; and
  (b)  It is established that the defendant is in fact the person  whom,
OR  WHOSE IMAGE, the witness observed and recognized on the second occa-
sion.  Such fact may be established by testimony of  another  person  or
persons  to  whom  the witness promptly declared his recognition on such
occasion.
  2.  Under circumstances prescribed in subdivision  one,  such  witness
may  testify  at  the criminal proceeding that the person whom, OR WHOSE
IMAGE, he observed and recognized on the second  occasion  is  the  same
person  whom  he  observed on the first or incriminating occasion.  Such

S. 5894                             5

testimony, together with the evidence that the defendant is in fact  the
person  whom the witness observed and recognized on the second occasion,
constitutes evidence in chief.
  S  4. Section 60.30 of the criminal procedure law, as amended by chap-
ter 479 of the laws of 1977, is amended to read as follows:
S 60.30  Rules of evidence; identification by means of previous recogni-
          tion, in addition to present identification.
  In any criminal proceeding in which the defendant's commission  of  an
offense  is  in  issue, a witness who testifies that (a) he observed the
person claimed by the people to be the defendant either at the time  and
place of the commission of the offense or upon some other occasion rele-
vant  to  the  case,  and  (b) on the basis of present recollection, the
defendant is the person in question and (c) on a subsequent occasion  he
observed  the  defendant, OR A PHOTOGRAPH OR OTHER RECORDED IMAGE OF THE
DEFENDANT, under circumstances consistent with such rights as an accused
person may derive under the constitution of this state or of the  United
States,  and  then  also  recognized  him as the same person whom he had
observed on the first or incriminating occasion,  may,  in  addition  to
making  an identification of the defendant at the criminal proceeding on
the basis of present recollection as the person whom he observed on  the
first  or incriminating occasion, also describe his previous recognition
of the defendant, OR THE IMAGE OF THE DEFENDANT, and  testify  that  the
person  whom, OR WHOSE IMAGE, he observed on such second occasion is the
same person whom he had observed on the first or incriminating occasion.
Such testimony constitutes evidence in chief.
  S 5. The criminal procedure law is amended by  adding  a  new  section
60.32 to read as follows:
S 60.32 RULES OF EVIDENCE; IDENTIFICATION PROCEDURES AND GUIDELINES.
  1.  THERE  ARE  HEREBY  ESTABLISHED THE FOLLOWING GUIDELINES FOR TRIAL
EVIDENCE OF CERTAIN IDENTIFICATION PROCEDURES:
  A. A LAW ENFORCEMENT AGENCY  CONDUCTING  AN  IDENTIFICATION  PROCEDURE
SHALL, TO THE EXTENT FEASIBLE, SEEK TO EMPLOY THE FOLLOWING PRACTICES TO
ENHANCE RELIABILITY OF IDENTIFICATIONS.
  B.  WHEN  A LAW ENFORCEMENT AGENCY CONDUCTS A CORPOREAL IDENTIFICATION
PROCEDURE IN WHICH MORE THAN ONE PERSON IS VIEWED:
  I. THE WITNESS SHOULD BE INFORMED THAT THE PERPETRATOR MAY OR MAY  NOT
BE AMONG THE PERSONS BEING VIEWED;
  II.  ONLY ONE SUSPECT SHOULD BE INCLUDED AMONG THE PERSONS VIEWED IN A
PARTICULAR GROUP;
  III. AT LEAST FOUR PERSONS  IN  ADDITION  TO  THE  SUSPECT  SHOULD  BE
VIEWED;
  IV.  IF  PRACTICABLE, THE PERSON QUESTIONING THE WITNESS SHOULD NOT BE
MADE AWARE OF THE POSITION OF THE SUSPECT AMONG THOSE BEING VIEWED;
  V. WHAT THE WITNESS SAYS IN MAKING OR FAILING TO MAKE ANY  IDENTIFICA-
TION SHOULD BE WRITTEN DOWN OR OTHERWISE RECORDED.
  C.  WHEN  A LAW ENFORCEMENT AGENCY CONDUCTS A CORPOREAL IDENTIFICATION
PROCEDURE IN WHICH ONLY ONE PERSON IS VIEWED:
  I. THE WITNESS SHOULD BE INFORMED THAT THE PERPETRATOR MAY OR MAY  NOT
BE THE PERSON BEING VIEWED; AND
  II. WHAT THE WITNESS SAYS IN MAKING OR FAILING TO MAKE ANY IDENTIFICA-
TION SHOULD BE WRITTEN DOWN OR OTHERWISE RECORDED.
  D.  WHEN A LAW ENFORCEMENT AGENCY CONDUCTS AN IDENTIFICATION PROCEDURE
USING AN ARRAY OF PHOTOGRAPHS OR OTHER RECORDED IMAGES:
  I. THE WITNESS SHOULD BE INFORMED THAT THE PERPETRATOR MAY OR MAY  NOT
BE AMONG THE PERSONS WHOSE IMAGES ARE BEING VIEWED;

S. 5894                             6

  II.  ONLY  ONE SUSPECT SHOULD BE INCLUDED AMONG THE IMAGES VIEWED IN A
PARTICULAR ARRAY;
  III.  IMAGES  OF  AT  LEAST  FIVE  PERSONS  IN ADDITION TO THAT OF THE
SUSPECT SHOULD BE VIEWED;
  IV. IF PRACTICABLE, THE PERSON QUESTIONING THE WITNESS SHOULD  NOT  BE
MADE AWARE OF THE POSITION OF THE SUSPECT AMONG THE IMAGES BEING VIEWED;
  V.  WHAT THE WITNESS SAYS IN MAKING OR FAILING TO MAKE ANY IDENTIFICA-
TION SHOULD BE WRITTEN DOWN OR OTHERWISE RECORDED.
  E. A DEVIATION FROM THE FOREGOING  PRACTICES  DOES  NOT  CONSTITUTE  A
VIOLATION  OF THESE GUIDELINES WHEN IT IS NOT READILY POSSIBLE TO EMPLOY
THE PRACTICE IN QUESTION, OR WHEN IT OCCURS BY ACCIDENT OR OTHER REASON-
ABLY EXCUSABLE CAUSE.
  2. WHEN THE PEOPLE INTRODUCE EVIDENCE OF A CORPOREAL  OR  IMAGE  IDEN-
TIFICATION OF A DEFENDANT AT TRIAL, PURSUANT TO SECTION 60.25 OR SECTION
60.30  OF  THIS  ARTICLE,  THE COURT SHALL CHARGE THE JURY IN ACCORDANCE
WITH THE PROVISIONS OF THIS SECTION.
  3. THE COURT SHALL INSTRUCT THE JURY:
  A. THAT NEW YORK LAW ESTABLISHES CERTAIN GUIDELINES FOR THE CONDUCT OF
IDENTIFICATION PROCEDURES;
  B. AS TO THE CONTENT OF THOSE GUIDELINES BY READING SUBDIVISION ONE OF
THIS SECTION, EXCEPT THAT PARAGRAPHS B, C AND D SHOULD BE READ ONLY WHEN
APPLICABLE;
  C. THAT THOSE GUIDELINES ARE MEANT TO ENHANCE THE RELIABILITY OF IDEN-
TIFICATION PROCEDURES AND TO REDUCE THE RISK OF MISIDENTIFICATION;
  D. THAT WHETHER OR NOT THE GUIDELINES WERE FOLLOWED, THE JURY IS ENTI-
TLED TO CONSIDER EVIDENCE OF THE IDENTIFICATION  IN  QUESTION,  AND  MAY
GIVE THAT EVIDENCE SUCH WEIGHT AS IT SEES FIT; BUT
  E.  THAT  IN  ASSESSING THE RELIABILITY OF THE IDENTIFICATION IN QUES-
TION, THE JURY MAY CONSIDER WHETHER AND TO WHAT  EXTENT  THE  GUIDELINES
WERE  OR  WERE  NOT  FOLLOWED  AND  THE  CAUSES  AND SIGNIFICANCE OF ANY
VIOLATIONS OF THE GUIDELINES.
  4. THIS SECTION APPLIES ONLY TO THE USE AT TRIAL OF  EVIDENCE  OF  THE
USE  BY  LAW ENFORCEMENT AGENCIES OF IDENTIFICATION PROCEDURES DESCRIBED
IN THIS SECTION. IT DOES NOT APPLY TO CONFIRMATORY PROCEDURES,  SUCH  AS
THE VIEWING OF A PERSON ALREADY KNOWN TO THE WITNESS, OR A SINGLE PHOTO-
GRAPH  OR  OTHER  RECORDED  IMAGE  OF SUCH PERSON, OR TO IDENTIFICATIONS
RESULTING FROM CIRCUMSTANCES NOT ARRANGED BY A LAW  ENFORCEMENT  AGENCY.
THE  GUIDELINES  IN  THIS  SECTION DO NOT APPLY TO USE OF IDENTIFICATION
EVIDENCE IN INVESTIGATIONS, IN BAIL HEARINGS, BEFORE  GRAND  JURIES,  IN
PRE-TRIAL  OR CIVIL PROCEEDINGS, OR IN ANY CONTEXT OTHER THAN A CRIMINAL
TRIAL.
  S 6. The executive law is amended by adding a  new  section  845-c  to
read as follows:
  S 845-C. CRIMINAL HISTORY RECORD SEARCHES; UNDISPOSED CASES. 1.  WHEN,
PURSUANT  TO  STATUTE  OR  THE REGULATIONS OF THE DIVISION, THE DIVISION
CONDUCTS A SEARCH OF ITS CRIMINAL HISTORY RECORDS AND RETURNS  A  REPORT
THEREON,  ALL  REFERENCES TO UNDISPOSED CASES CONTAINED IN SUCH CRIMINAL
HISTORY RECORD SHALL BE EXCLUDED FROM SUCH REPORT.
  2. FOR PURPOSES OF THIS SECTION, "UNDISPOSED CASE" SHALL MEAN A CRIMI-
NAL ACTION OR PROCEEDING IDENTIFIED IN THE DIVISION'S  CRIMINAL  HISTORY
RECORDS FOR WHICH NO CONVICTION OR IMPOSITION OF SENTENCE OR OTHER FINAL
DISPOSITION, OTHER THAN THE ISSUANCE OF AN UNEXECUTED BENCH WARRANT, HAS
BEEN  RECORDED  AND  WITH RESPECT TO WHICH NO ENTRY HAS BEEN MADE IN THE
DIVISION'S CRIMINAL HISTORY RECORDS FOR A PERIOD OF AT LEAST TWENTY-FOUR
MONTHS PRECEDING THE ISSUANCE OF SUCH REPORT.

S. 5894                             7

  3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL  NOT  APPLY
TO CRIMINAL HISTORY RECORD INFORMATION PROVIDED BY THE DIVISION TO QUAL-
IFIED  AGENCIES  PURSUANT  TO  SUBDIVISION  SIX OF SECTION EIGHT HUNDRED
THIRTY-SEVEN OF THIS ARTICLE.
  S 7. Section 240.40 of the criminal procedure law is amended by adding
a new subdivision 1-a to read as follows:
  1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR
COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU-
MENT  IS  PENDING  MAY  ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM
EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA
DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI-
AL TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS  REASONABLE,
PROVIDED  THAT  THE  COURT  SHALL  NOT DO SO IF IT IS SATISFIED THAT THE
PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER  SHOULD  NOT  BE  ISSUED.
WHERE  MORE  THAN  ONE  SAMPLE HAS BEEN RECEIVED BY LAW ENFORCEMENT, THE
COURT MAY ORDER A COMPARISON TO SOME BUT NOT ALL SUCH SAMPLES.   IF  THE
MOTION  OF  THE  DEFENDANT  IS FOR COMPARISON OF A GIVEN PROFILE DERIVED
FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY  DIRECT  A  STATE  OR
LOCAL  PUBLIC  FORENSIC  LABORATORY  TO  ARRANGE  FOR SUCH PROFILE TO BE
ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE, AND  FEDERAL  DNA  DATA-
BANKS  TO THE EXTENT, AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE
LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS
TO HOW PROFILES  FOR  FORENSIC  DNA  ANALYSIS  MUST  BE  GENERATED,  AND
REQUIREMENTS  FOR  SEARCHING AND STORAGE IN THE DATABANK IN QUESTION. IF
SUCH A DATABANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOV-
ERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT
SHALL BE NOTIFIED OF THE FACT THAT THERE WAS  A  MATCH  WITH  SOME  SUCH
PROFILE,  AND  THE  COURT  SHALL  GRANT REASONABLE ADJOURNMENTS SO AS TO
ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS.  NOTHING  IN
THIS  ARTICLE  SHALL  BE  DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER
REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON.
  S 8. 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) 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] PROCEEDINGS 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, LEADING TO A CONCLUSION THAT THE RESULTING
DNA PROFILE DID NOT MATCH THAT OF THE DEFENDANT, and if the results  had
been  admitted  in  the  trial resulting in the judgment, there exists a
reasonable probability that the verdict would have been  more  favorable
to  the defendant.   IN THE CASE OF A DEFENDANT CONVICTED UPON A PLEA OF
GUILTY, THE COURT SHALL GRANT THE APPLICATION  ONLY  UPON  ITS  DETERMI-
NATION  THAT  IF  A DNA TEST HAD BEEN CONDUCTED ON SUCH EVIDENCE, AND IF
THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT, THERE EXISTS A  REASON-
ABLE  PROBABILITY  THAT THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY A
PLEA OF GUILTY OR OTHERWISE, AND IN MAKING THAT DETERMINATION, THE COURT
MAY CONSIDER, AMONG  OTHER  RELEVANT  INFORMATION,  THE  PROCEEDINGS  IN
CONNECTION WITH THE DEFENDANT'S PLEA OF GUILTY.
  (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, INCLUDING DOCUMENTS, NOTES, LOGS OR

S. 5894                             8

REPORTS, and if the specified evidence no 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 physical location of such specified
evidence. THE COURT MAY DIRECT THE PEOPLE TO TAKE REASONABLE MEASURES TO
ATTEMPT TO LOCATE ANY RELEVANT RECORDS OR PHYSICAL ITEMS THAT MAY BE  IN
THE  POSSESSION  OF  THE PEOPLE. 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 subpoena 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  ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC DNA TEST
OF SPECIFIED EVIDENCE, AS SET FORTH IN PARAGRAPH (A)  OF  THIS  SUBDIVI-
SION,  THE  DEFENDANT  ALSO  MAY  MOVE FOR A COMPARISON OF A DNA PROFILE
DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT TO A DNA DATABANK. IN
DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON,  THE  COURT  MAY
CONSIDER  WHETHER  THE  DEFENDANT HAD THE OPPORTUNITY TO MOVE FOR SUCH A
COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF THIS PART,
BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS  THE  MOTION  FOR
SUCH  A  COMPARISON,  IT MAY DIRECT A STATE OR LOCAL FORENSIC LABORATORY
WITHIN THE STATE TO ARRANGE FOR SUCH PROFILE  TO  BE  ENTERED  INTO  AND
SEARCHED  AGAINST LOCAL, STATE, AND FEDERAL DNA DATABANKS TO THE EXTENT,
AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE LAWS AND  REGULATIONS
GOVERNING  SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR
FORENSIC DNA ANALYSIS MUST BE GENERATED, AND REQUIREMENTS FOR  SEARCHING
AND  STORAGE  IN  THE  DATABANK  IN  QUESTION. IF SUCH A DATABANK SEARCH
REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW  ENFORCEMENT
MATCHES  A  PROFILE  IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF
THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE,  AND  THE  COURT
SHALL  GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE
APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE DEEMED
TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION  OF  A  DNA
SAMPLE FROM ANY OTHER PERSON.
  S 9. Section 440.30 of the criminal procedure law is amended by adding
a new subdivision 8 to read as follows:
  8.  AT  ANY  TIME  AFTER THE ENTRY OF A JUDGMENT, IF THE PEOPLE BECOME
AWARE OF EVIDENCE SO EXCULPATORY  THAT  IT  MAY  EXONERATE  A  CONVICTED
DEFENDANT  AND WAS NOT PREVIOUSLY KNOWN TO THE DEFENSE, THE PEOPLE SHALL
NOTIFY THE COURT OF THE EXISTENCE OF SUCH EVIDENCE. UPON RECEIPT OF SUCH
NOTIFICATION, THE COURT SHALL NOTIFY THE DEFENDANT TO  THE  SAME  EFFECT
AND,  IF  APPROPRIATE, APPOINT DEFENSE COUNSEL SO THAT THE DEFENDANT MAY
SEEK ANY APPROPRIATE REMEDY UNDER THIS  ARTICLE.  THE  PEOPLE  MAY  MAKE
NOTIFICATION  TO A COURT PURSUANT TO THIS SUBDIVISION WITHOUT TAKING THE
POSITION THAT THE DEFENDANT WAS IN FACT INNOCENT, AND IF  THE  DEFENDANT
MOVES  FOR  RELIEF UNDER THIS ARTICLE, THE PEOPLE MAY TAKE ANY POSITION,
INCLUDING CONSENT OR OPPOSITION,  AS  TO  SUCH  MOTION.  THE  COURT  MAY
CONSIDER,  BUT  NEED  NOT GRANT, THE DEFENDANT'S RELEASE ON BAIL PENDING
THE DETERMINATION OF A MOTION MADE FOLLOWING SUCH A NOTIFICATION.
  S 10. The section heading of section 440.40 of the criminal  procedure
law is amended and a new subdivision 7 is added to read as follows:
  Motion to set aside sentence OR TO VACATE JUDGMENT; by people.

S. 5894                             9

  7.  AT ANY TIME AFTER THE ENTRY OF A JUDGMENT, THE PEOPLE MAY, IN LIEU
OF THE NOTIFICATION PROCEDURES SET FORTH IN SUBDIVISION EIGHT OF SECTION
440.30 OF THIS  ARTICLE,  MOVE  TO  VACATE  A  DEFENDANT'S  JUDGMENT  OF
CONVICTION  UPON  THE  GROUND THAT THE DEFENDANT IS ACTUALLY INNOCENT OF
THE  CHARGES UNDERLYING THE JUDGMENT. IN SUCH A MOTION, THE PEOPLE SHALL
SET FORTH EVIDENTIARY FACTS AND  INFERENCES  SUPPORTING  THE  CONTENTION
THAT THE DEFENDANT IS INNOCENT. UPON RECEIPT OF SUCH A MOTION, THE COURT
MUST  ORDER  THAT  THE  DEFENDANT  BE  PRODUCED BEFORE THE COURT WITHOUT
DELAY. AT SUCH A COURT APPEARANCE, THE COURT  MAY  SUMMARILY  GRANT  THE
MOTION  BASED  ON  THE  ALLEGATIONS  IN  THE  PEOPLE'S MOTION AND IN ANY
RESPONSIVE PAPERS FILED ON THE DEFENDANT'S BEHALF, AND BASED ON ANY ORAL
ARGUMENTS MADE ON THE MOTION. IF THE COURT DOES NOT SUMMARILY GRANT  THE
MOTION:  (A)  IT MUST APPOINT COUNSEL FOR THE DEFENDANT IF THE DEFENDANT
IS NOT ALREADY REPRESENTED BY COUNSEL; (B) IT MUST  CONSIDER,  BUT  NEED
NOT  GRANT,  A  DEFENDANT'S RELEASE ON BAIL PENDING THE DETERMINATION OF
THE MOTION; AND (C) IT MUST HOLD A  PROMPT  EVIDENTIARY  HEARING  BEFORE
RENDERING  ITS DECISION TO GRANT OR DENY THE MOTION. IF THE COURT DENIES
THE MOTION, IT MUST SET FORTH FINDINGS OF FACTS AND CONCLUSIONS  OF  LAW
SUPPORTING ITS DECISION.
  S 11. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
  4-B.  MANDATORY  DNA  CONDITION  FOR  DESIGNATED OFFENDERS AND CERTAIN
OTHER OFFENDERS. WHEN IMPOSING A SENTENCE OF  PROBATION  OR  CONDITIONAL
DISCHARGE  UPON  A  PERSON  DEFINED AS A DESIGNATED OFFENDER PURSUANT TO
SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF  THE  EXECUTIVE
LAW,  THE  COURT SHALL REQUIRE AS A MANDATORY CONDITION OF SUCH SENTENCE
THAT SUCH PERSON PROVIDE A  DNA  SAMPLE  AS  REQUIRED  BY  SECTION  NINE
HUNDRED  NINETY-FIVE  OF  THE EXECUTIVE LAW. NOTHING IN THIS SUBDIVISION
SHALL BE CONSTRUED AS PROHIBITING A MANDATORY  DNA  CONDITION  UPON  ANY
OTHER  OFFENDER  WHERE AUTHORIZED BY ARTICLE FORTY-NINE OF THE EXECUTIVE
LAW.
  S 12. 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:
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
AND FAILS TO PROVIDE SUCH SAMPLE AFTER BEING NOTIFIED BY A COURT,  STATE
OR  LOCAL  CORRECTION  OFFICIAL  OR  EMPLOYEE, PAROLE OFFICER, PROBATION
OFFICER, POLICE OFFICER, PEACE OFFICER OR OTHER PUBLIC SERVANT  OF  SUCH
OFFENDER'S OBLIGATION TO PROVIDE SUCH SAMPLE.
  FAILURE TO PROVIDE A DNA SAMPLE IS A CLASS A MISDEMEANOR.
  S  13. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision
5 of section 8-b of the court of claims act, as added by chapter 1009 of
the laws of 1984, are amended to read as follows:
  (b) (i) he OR SHE has been pardoned upon the ground  of  innocence  of
the  crime or crimes for which he OR SHE was sentenced and which are the
grounds for the complaint; or (ii) his OR HER judgment of conviction was
reversed or vacated, and the accusatory instrument dismissed  or,  if  a
new  trial was ordered, either he OR SHE was found not guilty at the new
trial or he OR  SHE  was  not  retried  and  the  accusatory  instrument
dismissed;  provided  that  the  [judgement]  JUDGMENT of conviction was
reversed or vacated, and the accusatory instrument was dismissed, on any
of the following grounds: (A) paragraph [(a),] (b), (c), [(e)] or (g) of

S. 5894                            10

subdivision one of section 440.10 of the criminal procedure law; or  (B)
subdivision one (where based upon grounds set forth in item (A) [hereof]
OF  THIS  SUBPARAGRAPH),  two,  three (where the count dismissed was the
sole basis for the imprisonment complained of) or five of section 470.20
of  the  criminal  procedure  law;  or  (C) comparable provisions of the
former code of criminal procedure or subsequent law; or (D)  SUBDIVISION
SEVEN  OF SECTION 440.40 OF THE CRIMINAL PROCEDURE LAW; OR (E) the stat-
ute, or application thereof, on  which  the  accusatory  instrument  was
based violated the constitution of the United States or the state of New
York; OR (F) THE CLAIMANT'S CONVICTION WAS VACATED UNDER ANOTHER SECTION
OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE APPLICATION TO CLAIM-
ANT'S  CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY SUPPORT
CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES WHERE THE
CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND, INCLUDING  ONE
OF  THE  GROUNDS ENUMERATED IN THIS PARAGRAPH, THE COURT OF CLAIMS SHALL
NOT BE BOUND BY A DECISION OF THE CRIMINAL COURT VACATING THE CONVICTION
BASED ONLY ON A GROUND NOT ENUMERATED IN THIS PARAGRAPH; and
  (b) (i) he OR SHE has been pardoned upon the ground  of  innocence  of
the  crime or crimes for which he OR SHE was sentenced and which are the
grounds for the complaint; or (ii) his OR HER judgment of conviction was
reversed or vacated, and the accusatory instrument dismissed  or,  if  a
new  trial was ordered, either he OR SHE was found not guilty at the new
trial or he OR  SHE  was  not  retried  and  the  accusatory  instrument
dismissed;  provided  that  the  [judgement]  JUDGMENT of conviction was
reversed or vacated, and the accusatory instrument was dismissed, on any
of the following grounds: (A) paragraph [(a),] (b), (c)[, (e)] or (g) of
subdivision one of section 440.10 of the criminal procedure law; or  (B)
subdivision one (where based upon grounds set forth in item (A) [hereof]
OF  THIS  PARAGRAPH), two, three (where the count dismissed was the sole
basis for the imprisonment complained of) or five of section  470.20  of
the  criminal  procedure law; or (C) comparable provisions of the former
code of criminal procedure or subsequent law; or (D)  SUBDIVISION  SEVEN
OF  SECTION 440.40 OF THE CRIMINAL PROCEDURE LAW; OR (E) the statute, or
application thereof,  on  which  the  accusatory  instrument  was  based
violated the constitution of the United States or the state of New York;
OR  (F)  THE  CLAIMANT'S CONVICTION WAS VACATED UNDER ANOTHER SECTION OF
LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE  APPLICATION  TO  CLAIM-
ANT'S  CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY SUPPORT
CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES WHERE THE
CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND, INCLUDING  ONE
OF  THE  GROUNDS ENUMERATED IN THIS PARAGRAPH, THE COURT OF CLAIMS SHALL
NOT BE BOUND BY A DECISION OF THE CRIMINAL COURT VACATING THE CONVICTION
BASED ONLY ON A GROUND NOT ENUMERATED IN THIS PARAGRAPH; and
  S 14.  Subdivision 7 of section 995-b of the executive law,  as  added
by chapter 737 of the laws of 1994, is amended and a new subdivision 1-a
is added to read as follows:
  1-A.  THE  COMMISSION  IS  AUTHORIZED  TO  STUDY  THE  USE OF FORENSIC
EVIDENCE IN THE CRIMINAL JUSTICE SYSTEM, AND TO IDENTIFY AREAS IN  WHICH
PROCEDURES  SHOULD  BE IMPROVED TO FURTHER THE GOALS OF EFFECTIVE, EFFI-
CIENT AND RELIABLE USE OF SUCH EVIDENCE.  THE  COMMISSION  MAY  CONSIDER
WHETHER PROCEDURES SHOULD BE IMPROVED IN AREAS INCLUDING BUT NOT LIMITED
TO  THE  COLLECTION,  INDEXING, STORAGE, ANALYSIS, AND USE OF BIOLOGICAL
AND  OTHER  FORENSIC  EVIDENCE;  EDUCATION  AND  TRAINING;  PROFESSIONAL
CERTIFICATION;  FACILITY ACCREDITATION; SCIENTIFIC ANALYSIS OF EVIDENCE;
THE USE OF SUCH ANALYSIS IN JUDICIAL PROCEEDINGS;  AND  QUALITY  CONTROL
AND  QUALITY  ASSURANCE  PROCEDURES. AS TO ANY SUCH AREAS THE COMMISSION

S. 5894                            11

MAY PROMULGATE NONBINDING STANDARDS AND BEST PRACTICES. THE  FAILURE  OF
ANY  CRIMINAL  JUSTICE  AGENCY TO ADHERE TO SUCH STANDARDS OR BEST PRAC-
TICES SHALL NOT CAUSE OTHERWISE ADMISSIBLE EVIDENCE TO  BE  INADMISSIBLE
IN  A  CRIMINAL  PROCEEDING  OR  CREATE ENTITLEMENT TO ANY OTHER RELIEF.
HOWEVER, THE COMMISSION MAY ALSO MAKE RECOMMENDATIONS FOR SUCH STANDARDS
TO BE MADE BINDING THROUGH LEGISLATIVE OR ADMINISTRATIVE ACTION.
  7. The commission and DNA subcommittee may establish, appoint, and set
terms of members to as many advisory councils as it deems  necessary  to
provide specialized expertise to the commission with respect to EXISTING
AND  new  forensic technologies including DNA testing methodologies, AND
PROCEDURES FOR THE COLLECTION, HANDLING AND USE OF FORENSIC EVIDENCE.
  S 15.   If any  section,  subdivision,  paragraph,  clause,  sentence,
phrase  or other portion of this act is, for any reason, declared uncon-
stitutional or invalid, in whole or in part, by any court  of  competent
jurisdiction,  such  portion shall be deemed severable, and such adjudi-
cated unconstitutionality or invalidity shall not affect the validity of
the remaining portions of  this  act,  which  remaining  portions  shall
continue  in  full  force  and  effect;  provided,  however, that if any
portion of section three, four, or five of this act is, for any  reason,
declared  unconstitutional or invalid, in whole or in part, by the court
of appeals, then sections three, four, and five of this act shall not be
deemed severable from each other, and sections three, four, and five  of
this  act  shall  all cease to be of any effect whatsoever, it being the
intent of the legislature that the provisions in sections  three,  four,
and five of this act would not have been enacted except together.
  S  16. This act shall take effect immediately; provided, however, that
the amendments to subdivision 7 of section 995 of the executive law made
by section one of this act shall apply to designated offenses  committed
on or after such effective date; provided, further, that sections three,
four  and  five of this act shall take effect on the ninetieth day after
it shall have become a law, and that section five  shall  apply  to  all
identification  procedures  conducted  on  or after such effective date;
provided, further, that section six of this act shall take effect on the
one hundred eightieth day after it shall have become  a  law,  provided,
however,  that  prior  to  such effective date, the division of criminal
justice services, in cooperation with the  state  administrator  of  the
unified  court  system  as  well  as any other public or private agency,
shall undertake such measures as may be  necessary  and  appropriate  to
update  its  criminal history records with respect to criminal cases for
which no final disposition has been  reported;  and  provided,  further,
that section twelve of this act shall take effect on the first of Novem-
ber next succeeding the date on which it shall have become a law.