| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jan 06, 2010 |
referred to finance |
| Jun 18, 2009 |
referred to rules |
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Senate Bill S5894
2009-2010 Legislative Session
Relates to the collection of DNA samples from designated offenders and the release of certain criminal records
download bill text pdfSponsored By
(D, WF) Senate District
Archive: Last Bill Status - In Senate Committee Finance Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
2009-S5894 (ACTIVE) - Details
- Current Committee:
- Senate Finance
- Law Section:
- Executive Law
- Laws Affected:
- Amd §§995, 995-c & 995-b, add §845-c, Exec L; amd §§60.25, 60.30, 240.40, 440.30 & 440.40, add §60.32, CP L; amd §65.10, add §270.40, Pen L; amd §8-b, Ct Claims Act
2009-S5894 (ACTIVE) - Summary
Relates to the collection of DNA samples from designated offenders and the release of certain criminal records; further relates to the sealing of certain criminal convictions, access by defendants to DNA evidence and procedures for consideration of post-conviction relief; relates to claims for unjust conviction and imprisonment.
2009-S5894 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5894
TITLE OF BILL :
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
PURPOSE :
This bill: (1) requires collection of DNA samples from everyone
convicted of a crime, adjudicated a youthful offender, or required to
register as a sex offender, and ensures proper collection of such
samples; (2) establishes guidelines to promote reliability of
identification procedures; (3) provides for "rap sheets" to be
cleansed of cases without reported dispositions; (4) expands the
access of defendants to potentially exculpatory DNA evidence; (5)
requires prosecutors to alert courts to exculpatory evidence and
authorizes prosecutors to move for convictions to be vacated; (6)
eliminates overly restrictive limits on compensation for wrongful convictions; and (7) expands the jurisdiction of the Forensic Science Commission to include non-binding standards for use of forensic evidence. SUMMARY OF PROVISIONS : Section 1 of the bill amends Executive Law .995 to require that a DNA sample be collected from every person convicted of a crime, adjudicated a youthful offender, or subject to registration as a sex offender. Section 2 of the bill amends Executive Law §995-c(3) to specify the public servants responsible for collection of DNA samples from designated offenders. Section 3 of the bill amends Criminal Procedure Law §60.25 to provide that under certain circumstances, evidence of photographic identifications may be admitted at trial in the absence of an in-court identification. Section 4 of the bill amends Criminal Procedure Law §60.30 to provide that under certain circumstances, evidence of photographic identifications may be admitted at trial in addition to an in-court identification. Section 5 of the bill adds a new Criminal Procedure Law §60.32 to establish certain guidelines for reliable eyewitness investigations, and to allow juries to consider compliance or noncompliance with the guidelines in assessing the reliability of identifications. Section 6 of the bill adds a new Executive Law §845-c to provide that reports of criminal history records shall generally omit references to cases without reported dispositions. Section 7 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. Section 8 of the bill amends Criminal Procedure Law §440.30(1-a)(a) to enhance a defendant's access to DNA testing for purposes of post-conviction relief, on proper showings, in the following ways: * It makes clear that when a court assesses the need for such testing, it should consider the relevance that the results would have if they do not match the DNA of the defendant. * It allows defendants who pled guilty to seek post-conviction DNA testing. * It enhances the defendant's ability to have relevant samples located for testing by enhancing the court's ability to order discovery of documents and law-enforcement efforts to locate such samples. * It 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 9 of the bill adds a new subdivision 8 to Criminal Procedure Law §440.30 to provide that if the prosecution becomes aware of evidence exonerative of a convicted defendant, it is required to notify the court, which shall notify the defendant and appoint defense counsel if appropriate, and may consider releasing the defendant on bail. Section 10 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 11 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 12 of the bill adds a new Penal Law §270.40 to make it a misdemeanor for a person to fail to provide a DNA sample when required to do so by law. Section 13 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 14 of the bill authorizes the Forensic Science Commission to study the use of all forms of forensic evidence in the criminal justice system, and issue nonbinding standards and best practices in those areas. It allows the use of advisory councils to provide technical and logistical expertise in areas beyond the Commission's current mandates. Section 15 of the bill provides that in case portions of the act are invalidated, the balance shall continue in full force and effect, except that sections 3, 4 and 5 shall cease to be of any effect if any part of those three sections is invalidated by the Court of Appeals. Section 16 of the bill provides for an immediate effective date, except that the amendments to the Criminal Procedure Act concerning identifications, in sections 3, 4 and 5 of the bill, will take effect 90 days after enactment; the amendments in section 6 pertaining to criminal history records will take effect 180 days after enactment; and section 12, defining the new crime of failure to provide a DNA sample, will take effect on the first November 1 following enactment. 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, DNA collection is not required 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. Moreover, it is not currently an offense to refuse to provide a DNA sample even when to give such a sample is required by law. Evidence of eyewitness identifications may be suppressed when it results from procedures that violate a defendant's constitutional rights, but no laws establish best practices or guidelines to encourage that identification procedures are conducted at a level of reliability higher than the minimum required by the constitution. Moreover, while current law allows admission of evidence of out-of-court corporeal identifications, it does not allow admission of photographic identifications. No provision of existing law requires or permits the Division of Criminal Justice Services to cleanse criminal history records of criminal charges with unreported dispositions, no matter how long they appear to have been pending. 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. The post-conviction relief currently authorized by Criminal Procedure Law § 440.30(1-a) allows for a defendant's application for DNA testing of evidence secured in connection with the trial, but it does not permit application for an order to have such evidence compared against DNA databanks maintained by law enforcement. Moreover, in People v. Bvrdsong, 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. Court of Claims Act §8-b 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. The Commission on Forensic Science currently has oversight responsibilities related to forensic laboratories and the DNA identification index. STATEMENT IN SUPPORT : DNA technology is already a valuable tool for both law enforcement and criminal defendants, and 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. The bill will also help reduce the chance of wrongful convictions by establishing this State's first statutory guidelines for reliable eyewitness identification procedures. Finally, it creates a mechanism for the creation of standards governing forensic evidence in general. 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 not only results in conviction of the guilty; it can also exonerate the innocent. 2. ENSURING PROPER COLLECTION AND PRESERVATION OF DNA SAMPLES This 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 public officers responsible for collecting the samples, by requiring that a defendant under probation or parole supervision provide a DNA sample as a condition of that supervision, and by making it an offense for a person to fail to give a DNA sample when required by law to do so. 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. 3. ESTABLISHING GUIDELINES TO PROMOTE RELIABILITY OF EYEWITNESS IDENTIFICATIONS Various reviews of exonerations have identified certain recurrent causes of wrongful convictions. Some studies have identified unreliable eyewitness identifications as being among the more frequent causes of such miscarriages of justice. There are known safeguards that can reduce the chances of misidentifications. Many police agencies have voluntarily adopted such safeguards, but it would be better if the use of such protections could be made even more widespread. The only legal standards now in place for identification procedures are the minimum requirements of the New York and United States constitutions. This bill would, for the first time, establish in New York law a set of best practices to promote reliable identification techniques. The new guidelines would have two benefits. More police agencies would make sure to follow best practices, so that identifications would be more consistently reliable. Second, when there are shortcomings in identification procedures, mandated instructions will help juries distinguish between more and less reliable identifications, and thereby help reduce the chance of wrongful convictions. 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 five 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 have pled guilty. Even in cases involving guilty pleas, however, 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, the bill clarifies the standard for ordering post-conviction DNA testing. Some courts, in applying the existing standard, have sought to factor in their own perception of the chance that a DNA comparison would produce results favorable to the defendant. The bill prescribes a more appropriate test, assessing the materiality of potential findings that recovered DNA evidence would not match that of the defendant. Fifth, allowing defendants to obtain exonerative DNA evidence is not enough, unless there are procedures for 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, the bill also provides for 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. PROVIDING COMPENSATION TO EXONERATED DEFENDANTS In addition to facilitating the exoneration of wrongfully convicted defendants, this 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 to claimants whose convictions were overturned on certain specified procedural bases. This 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. BUDGET IMPLICATIONS : Databank expansion would have a limited fiscal impact on the State, 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. The State Police laboratory now has the capacity to process approximately 8,500 samples per month. That is the approximate projected number of samples that would have to be tested in the short term following expansion of collections as proposed. In the longer term, the number may decrease somewhat, as the databank will already include profiles from defendants who have previously been before the court. Despite the likely sufficiency of current testing capacity, increased tests will incur some increased cost in the form of consumables. It is projected that annual State expenses will increase by $192,000 for collection kits and $1.2 million for laboratory materials. Expanding the ability of wrongfully convicted defendants to assert claims for compensation can result in judgments adverse to the State, but the number of such cases is not expected to be great. While the bill facilitates increased DNA collection rates, it does so in a way that should impose few if any new local costs. Other provisions of the bill are projected to have minimal fiscal impact. EFFECTIVE DATE : This bill becomes effective immediately, with the following exceptions: * The amendments to the Criminal Procedure Act concerning identifications, in sections 3, 4 and 5 of the bill, will take effect 90 days following enactment. * The amendments in section 6 pertaining to criminal history records will take effect 180 days following enactment. * Section 12, defining the new crime of failure to provide a DNA sample, will take effect on the first November 1 following enactment.
2009-S5894 (ACTIVE) - Bill Text download pdf
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.
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