S T A T E O F N E W Y O R K
________________________________________________________________________
6213
2009-2010 Regular Sessions
I N S E N A T E
October 9, 2009
___________
Introduced by Sen. KLEIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the executive law and the criminal procedure law, in
relation to requiring individuals arrested in connection with a felony
to submit a DNA sample
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 995 of the executive law is amended by adding a new
subdivision 7-a to read as follows:
7-A. "FELONY ARRESTEE" MEANS A PERSON ARRESTED AND CHARGED WITH ANY
ONE OR MORE OF THE FOLLOWING FELONIES AS DEFINED IN THE PENAL LAW:
SECTIONS 120.05, 120.10, AND 120.11, RELATING TO ASSAULT; SECTIONS
125.15, 125.20, 125.21, 125.22, 125.25, 125.26 AND 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 160.05,
160.10 AND 160.15, RELATING TO ROBBERY; SECTIONS 150.05, 150.10, 150.15
AND 150.20, RELATING TO ARSON; SECTION 255.25, RELATING TO INCEST; OR
SECTIONS 140.17, 140.20, 140.25 AND 140.30, RELATING TO BURGLARY.
S 2. Section 995-b of the executive law is amended by adding a new
subdivision 3-a to read as follows:
3-A. THE COMMISSION, IN CONSULTATION WITH THE SUBCOMMITTEE ON BIOLOG-
ICAL EVIDENCE PRESERVATION, SHALL DEVELOP GUIDELINES RELATING TO THE
COLLECTION, PRESERVATION, STORAGE, AND INDEXING OF BIOLOGICAL EVIDENCE
BY LAW ENFORCEMENT AGENCIES AND FORENSIC LABORATORIES. SUCH GUIDELINES
SHALL INCLUDE, BUT NOT BE LIMITED TO, THE MINIMUM PERIOD OF TIME THAT
BIOLOGICAL EVIDENCE OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS
USED IN THIS SUBDIVISION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN
SEMEN, BLOOD, SALIVA, HAIR, SKIN, TISSUE, OR OTHER IDENTIFIED BIOLOGICAL
MATERIAL, AND SHALL INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT.
INITIALLY, THE COMMISSION SHALL DEVELOP SUCH GUIDELINES AS VOLUNTARY
BEST PRACTICES. NONCOMPLIANCE WITH SUCH GUIDELINES SHALL NOT BE GROUNDS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14762-07-9
S. 6213 2
FOR DISMISSAL OF CHARGES, EXCLUSION OF EVIDENCE, OR ANY OTHER LEGAL
RELIEF. THEREAFTER, AND TAKING INTO ACCOUNT THE EXPERIENCE UNDER THE
INITIAL GUIDELINES, THE COMMISSION SHALL CONSIDER WHAT MANDATORY RULES
SHOULD BE ADOPTED AS TO THE COLLECTION, PRESERVATION, STORAGE, AND
INDEXING OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND FORENSIC
LABORATORIES. THE COMMISSION MAY ADOPT SUCH RULES WITHIN ITS EXISTING
REGULATORY AUTHORITY; IT MAY RECOMMEND THAT IT OR ANOTHER BODY BE GIVEN
EXPANDED REGULATORY AUTHORITY; AND IT MAY MAKE RECOMMENDATIONS FOR STAT-
UTORY ADOPTION OF PARTICULAR RULES. IN DEVELOPING SUCH GUIDELINES, RULES
AND RECOMMENDATIONS, THE COMMISSION SHALL CONSIDER THE VARYING NEEDS AND
RESOURCES OF LAW ENFORCEMENT AGENCIES AND JURISDICTIONS WITHIN THE
STATE.
S 3. Subdivision 3 of section 995-c of the executive law, as amended
by chapter 576 of the laws of 2004, is amended to read as follows:
3. (A) Any designated offender subsequent to conviction and sentencing
for a crime specified in subdivision seven of section nine hundred nine-
ty-five of this article, shall be required to provide a sample appropri-
ate for DNA testing to determine identification characteristics specific
to such person and to be included in a state DNA identification index
pursuant to this article, UNLESS SUCH DESIGNATED OFFENDER HAS PREVIOUSLY
PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFICATION
INDEX.
(B) ANY FELONY ARRESTEE SHALL PROVIDE A DNA SAMPLE TO JAIL OR
DETENTION FACILITY PERSONNEL UPON BOOKING, UNLESS SUCH FELONY ARRESTEE
HAS PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDEN-
TIFICATION INDEX.
(C) NOTHING IN THIS SUBDIVISION 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, OR
OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT WHO HAS BEEN NOTIFIED
BY THE DIVISION THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA
SAMPLE.
(D) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS
NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE
PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR
ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
(E) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED
UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL
NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR
PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
(F) THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES
SHALL PROMULGATE RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF
THE DNA IDENTIFICATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX
CONTAINS DNA PROFILES THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE
STEPS NECESSARY TO EXPUNGE ANY PROFILES WHICH THE DIVISION DETERMINES
SHOULD NOT BE IN THE INDEX.
S 4. Subdivision 9 of section 995-c of the executive law, as amended
by chapter 524 of the laws of 2002, is amended to read as follows:
9. (a) Upon receipt of notification of a reversal or a vacatur of a
conviction, or of the granting of a pardon pursuant to article two-A of
this chapter, of an individual whose DNA record has been stored in the
state DNA identification index in accordance with this article by the
division of criminal justice services, the DNA record shall be expunged
from the state DNA identification index, and such individual may apply
to the court in which the judgment of conviction was originally entered
S. 6213 3
for an order directing the expungement of any DNA record and any
samples, analyses, or other documents relating to the DNA testing of
such individual in connection with the investigation or prosecution of
the crime which resulted in the conviction that was reversed or vacated
or for which the pardon was granted. A copy of such application shall be
served on the district attorney and an order directing expungement may
be granted if the court finds that all appeals relating to the
conviction have been concluded; that such individual will not be
retried, or, if a retrial has occurred, the trier of fact has rendered a
verdict of complete acquittal, and that expungement will not adversely
affect the investigation or prosecution of some other person or persons
for the crime. The division shall, by rule or regulation, prescribe
procedures to ensure that the DNA record in the state DNA identification
index, and any samples, analyses, or other documents relating to such
record, whether in the possession of the division, or any law enforce-
ment or police agency, or any forensic DNA laboratory, including any
duplicates or copies thereof, at the discretion of the possessor there-
of, are either destroyed or returned to such individual, or to the
attorney who represented him or her at the time such reversal, vacatur
or pardon, was granted. The commissioner shall also adopt by rule and
regulation a procedure for the expungement in other appropriate circum-
stances of DNA records contained in the index.
(b) As prescribed in this paragraph, if an individual, either volun-
tarily, PURSUANT TO THIS SECTION, or pursuant to a warrant or order of a
court, has provided a sample for DNA testing in connection with the
investigation or prosecution of a crime [and (i) no criminal action
against the individual relating to such crime was commenced within the
period specified by section 30.10 of the criminal procedure law, or (ii)
a criminal action was commenced against the individual relating to such
crime which resulted in a complete acquittal, or (iii) a criminal action
against the individual relating to such crime resulted in a conviction
that was subsequently reversed or vacated, or for which the individual
was granted a pardon pursuant to article two-A of this chapter, such],
THE individual may [apply to the supreme court or the court in which the
judgment of conviction was originally entered for an order directing the
expungement of any DNA record and any samples, analyses, or other docu-
ments relating to the DNA testing of such individual in connection with
the investigation or prosecution of such crime. A copy of such applica-
tion shall be served on the district attorney and an order directing
expungement may be granted if the court finds that the individual has
satisfied the conditions of one of the subparagraphs of this paragraph;
that if a judgment of conviction was reversed or vacated, all appeals
relating thereto have been concluded and the individual will not be
retried, or, if a retrial has occurred, the trier of fact has rendered a
verdict of complete acquittal, and that expungement will not adversely
affect the investigation or prosecution of some other person or persons
for the crime. If an order directing the] REQUEST EXPUNGEMENT OF THE
INDIVIDUAL'S SAMPLE AND DNA RECORDS FROM THE STATE DNA IDENTIFICATION
INDEX ON THE FOLLOWING GROUNDS:
(I) THE CONVICTION THAT LED TO THE INCLUSION OF THE SAMPLE HAS BEEN
REVERSED OR VACATED, OR RESULTED IN THE GRANTING OF A PARDON PURSUANT TO
ARTICLE TWO-A OF THIS CHAPTER; OR
(II) THE ARREST THAT LED TO THE INCLUSION OF THE SAMPLE HAS:
A. RESULTED IN A FELONY CHARGE THAT HAS BEEN RESOLVED BY A DISMISSAL,
SUCCESSFUL COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM OR CONDI-
TIONAL DISCHARGE, MISDEMEANOR CONVICTION OR ACQUITTAL; OR
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B. NO CRIMINAL ACTION AGAINST THE INDIVIDUAL RELATING TO SUCH CRIME
WAS COMMENCED WITHIN THE PERIOD SPECIFIED BY SECTION 30.10 OF THE CRIMI-
NAL PROCEDURE LAW.
(C) THE DNA SAMPLE AND RECORDS SHALL BE EXPUNGED WHEN THE INDIVIDUAL
PROVIDES THE FOLLOWING MATERIALS:
(I) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
AND
(II) A CERTIFIED COPY OF A COURT ORDER THAT REVERSES THE CONVICTION
THAT LED TO THE INCLUSION OF THE SAMPLE; OR
(III) FOR SAMPLES INCLUDED PURSUANT TO ARREST:
A. A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A PRE-
PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE, MISDEMEANOR
CONVICTION OR ACQUITTAL; OR
B. A SWORN AFFIDAVIT FROM THE DISTRICT ATTORNEY'S OFFICE WITH JURIS-
DICTION OVER THE MATTER THAT: THE CASE WAS DISMISSED, A PRE-PROSECUTION
DIVERSION PROGRAM OR CONDITIONAL DISCHARGE, MISDEMEANOR CONVICTION OR
ACQUITTAL OCCURRED; OR NO FELONY CHARGES AROSE OUT OF THE ARREST; OR NO
CRIMINAL ACTION AGAINST THE INDIVIDUAL RELATING TO SUCH CRIME WAS
COMMENCED WITHIN THE PERIOD SPECIFIED BY SECTION 30.10 OF THE CRIMINAL
PROCEDURE LAW AND ALL APPEALS RELATING THERETO HAVE BEEN CONCLUDED AND
THE INDIVIDUAL WILL NOT BE RETRIED, OR, IF RETRIAL HAS OCCURRED, THE
TRIER OF FACT HAS RENDERED A VERDICT OF COMPLETE ACQUITTAL, AND THAT
EXPUNGEMENT WILL NOT ADVERSELY AFFECT THE INVESTIGATION OR PROSECUTION
OF SOME OTHER PERSON OR PERSONS FOR THE CRIME.
(D) WHEN expungement of any DNA record and any samples, analyses or
other documents relating to the DNA testing of such individual is
[issued] WARRANTED, such record and any samples, analyses, or other
documents shall, at the discretion of the possessor thereof, be
destroyed or returned to such individual or to the attorney who repres-
ented him or her IN THE CRIMINAL ACTION OR in connection with the
[application for the order of] REQUEST FOR expungement.
(E) WHEN AN INDIVIDUAL'S SAMPLE AND DNA RECORDS ARE EXPUNGED FROM THE
STATE DNA IDENTIFICATION SYSTEM, THE HEAD OF THE ADMINISTRATIVE CENTER
SHALL ENSURE THAT THE INDIVIDUAL'S SAMPLE AND DNA RECORDS ARE EXPUNGED
FROM CODIS.
(F) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING FELONY CHARGE FOR WHICH
COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION.
S 5. The opening paragraph of section 995-f of the executive law is
designated subdivision 1 and a new subdivision 2 is added to read as
follows:
2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION
WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT
TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH SAMPLE
UPON NOTIFICATION BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR
EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT
OFFICIAL OR PUBLIC SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A
SAMPLE, SHALL BE DEEMED TO VIOLATE THE CONDITIONS OF PROBATION OR
PAROLE, AND SUCH VIOLATION SHALL BE A BASIS FOR THE REVOCATION OF
PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE
CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
TER. FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED
TO INCLUDE POST-RELEASE SUPERVISION.
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S 6. Subdivision 6 of section 120.90 of the criminal procedure law, as
amended by chapter 424 of the laws of 1998, is amended to read as
follows:
6. Before bringing a defendant arrested pursuant to a warrant before
the local criminal court in which such warrant is returnable, a police
officer must without unnecessary delay perform all fingerprinting and
other preliminary police duties required in the particular case. In any
case in which the defendant is not brought by a police officer before
such court but, following his arrest in another county for an offense
specified in subdivision one of section 160.10 OF THIS TITLE, is
released by a local criminal court of such other county on his own
recognizance or on bail for his appearance on a specified date before
the local criminal court before which the warrant is returnable, the
latter court must, upon arraignment of the defendant before it, direct
that he be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE
EXECUTIVE LAW, by the appropriate officer or agency, and that he appear
at an appropriate designated time and place for such purpose.
S 7. Section 130.60 of the criminal procedure law, as amended by chap-
ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of
the laws of 1993, is amended to read as follows:
S 130.60 Summons; fingerprinting of defendant.
1. Upon the arraignment of a defendant whose court attendance has been
secured by the issuance and service of a summons, based upon an indict-
ment, a prosecutor's information or upon an information, felony
complaint or misdemeanor complaint filed by a complainant who is a
police officer, the court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be fingerprinted by the appropriate
police officer or agency, and that he or she appear at an appropriate
designated time and place for such purpose. IF AN OFFENSE CHARGED IN
THE ACCUSATORY INSTRUMENT IS ONE SPECIFIED IN SUBDIVISION SEVEN-A OF
SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT MUST
DIRECT THAT THE DEFENDANT HAVE A SAMPLE APPROPRIATE FOR DNA TESTING BE
TAKEN, AND THAT HE OR SHE APPEAR AT AN APPROPRIATE DESIGNATED TIME AND
PLACE FOR SUCH PURPOSE.
2. Upon the arraignment of a defendant whose court attendance has been
secured by the issuance and service of a summons based upon an informa-
tion or misdemeanor complaint filed by a complainant who is not a police
officer, and who has not previously been fingerprinted OR FROM WHOM A
DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN AND WAS REQUIRED PURSUANT TO
SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, the court may,
if it finds reasonable cause to believe that the defendant has committed
an offense specified in subdivision one of section 160.10 OF THIS TITLE,
direct that the defendant be fingerprinted AND/OR HAVE A SAMPLE APPRO-
PRIATE FOR DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINE-
TY-FIVE-C OF THE EXECUTIVE LAW, by the appropriate police officer or
agency and that he appear at an appropriate designated time and place
for such purpose. A defendant whose court appearance has been secured by
the issuance and service of a criminal summons based upon a misdemeanor
complaint or information filed by a complainant who is not a police
officer, must be directed by the court, upon conviction of the defend-
ant, to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECU-
TIVE LAW, by the appropriate police officer or agency and the court must
also direct that the defendant appear at an appropriate designated time
S. 6213 6
and place for such purpose, if the defendant is convicted of any offense
specified in subdivision one of section 160.10 OF THIS TITLE.
S 8. Subdivision 5 of section 140.20 of the criminal procedure law, as
amended by chapter 762 of the laws of 1971, is amended to read as
follows:
5. Before service of an appearance ticket upon an arrested person
pursuant to subdivision two or three, the issuing police officer must,
if the offense designated in such appearance ticket is one of those
specified in subdivision one of section 160.10 OF THIS TITLE, cause such
person to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECU-
TIVE LAW, in the same manner as would be required were no appearance
ticket to be issued or served.
S 9. Subdivision 2 of section 140.27 of the criminal procedure law, as
amended by chapter 843 of the laws of 1980, is amended to read as
follows:
2. Upon arresting a person without a warrant, a peace officer, except
as otherwise provided in subdivision three, must without unnecessary
delay bring him or cause him to be brought before a local criminal
court, as provided in section 100.55 and subdivision one of section
140.20 OF THIS TITLE, and must without unnecessary delay file or cause
to be filed therewith an appropriate accusatory instrument. If the
offense which is the subject of the arrest is one of those specified in
subdivision one of section 160.10 OF THIS TITLE, the arrested person
must be fingerprinted and photographed, AND HAVE A SAMPLE APPROPRIATE
FOR DNA TESTING TAKEN IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C
OF THE EXECUTIVE LAW, as therein provided. In order to execute the
required post-arrest functions, such arresting peace officer may perform
such functions himself or he may enlist the aid of a police officer for
the performance thereof in the manner provided in subdivision one of
section 140.20 OF THIS ARTICLE.
S 10. Section 150.70 of the criminal procedure law, as amended by
chapter 762 of the laws of 1971, is amended to read as follows:
S 150.70 Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of
defendant.
Upon the arraignment of a defendant who has not been arrested and
whose court attendance has been secured by the issuance and service of
an appearance ticket pursuant to subdivision one of section 150.20 OF
THIS ARTICLE, the court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be fingerprinted AND HAVE A SAMPLE
APPROPRIATE FOR DNA TESTING TAKEN WHEN REQUIRED BY SECTION NINE HUNDRED
NINETY-FIVE-C OF THE EXECUTIVE LAW by the appropriate police officer or
agency, and that he appear at an appropriate designated time and place
for such purpose.
S 11. Section 160.20 of the criminal procedure law, as amended by
chapter 108 of the laws of 1973, is amended to read as follows:
S 160.20 Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger-
prints AND DNA ANALYSIS SAMPLE.
Upon the taking of fingerprints AND A SAMPLE APPROPRIATE FOR DNA TEST-
ING of an arrested person or defendant as prescribed in section 160.10
OF THIS ARTICLE, the appropriate police officer or agency must without
unnecessary delay forward two copies of such fingerprints to the divi-
sion of criminal justice services, AND SHALL STORE AND FORWARD SUCH DNA
SAMPLE TO A FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALY-
SIS, AND INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE
S. 6213 7
WITH SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXEC-
UTIVE LAW.
S 12. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the
criminal procedure law, as amended by chapter 169 of the laws of 1994,
are amended to read as follows:
(a) every photograph of such person and photographic plate or proof,
and all palmprints and fingerprints taken or made of such person, AND
ALL DNA ANALYSIS SAMPLES AND DNA RECORDS TAKEN pursuant to the
provisions of this article in regard to the action or proceeding termi-
nated, [and] all duplicates and copies thereof, except a digital finger-
print image where authorized pursuant to paragraph (e) of this subdivi-
sion, shall forthwith be, at the discretion of the recipient agency,
either destroyed or returned to such person, or to the attorney who
represented such person at the time of the termination of the action or
proceeding, at the address given by such person or attorney during the
action or proceeding, by the division of criminal justice services and
by any police department or law enforcement agency having any such
photograph, photographic plate or proof, palmprints [or], fingerprints,
AND DNA ANALYSIS SAMPLE AND DNA RECORD in its possession or under its
control;
(b) any police department or law enforcement agency, including the
division of criminal justice services, which transmitted or otherwise
forwarded to any agency of the United States or of any other state or of
any other jurisdiction outside the state of New York copies of any such
photographs, photographic plates or proofs, palmprints [and], finger-
prints, AND DNA ANALYSIS SAMPLE AND DNA RECORD, shall forthwith formally
request in writing that all such copies be destroyed or returned to the
police department or law enforcement agency which transmitted or
forwarded them, and upon such return such department or agency shall, at
its discretion, either destroy or return them as provided herein;
S 13. Paragraph (a) of subdivision 1 of section 160.55 of the criminal
procedure law, as amended by chapter 476 of the laws of 2009, is amended
to read as follows:
(a) every photograph of such person and photographic plate or proof,
and all palmprints and fingerprints taken or made of such person, AND
ALL DNA ANALYSIS SAMPLES AND DNA RECORDS TAKEN pursuant to the
provisions of this article in regard to the action or proceeding termi-
nated, [and] all duplicates and copies thereof, except a digital finger-
print image where authorized pursuant to paragraph (e) of this subdivi-
sion, except for the palmprints and fingerprints concerning a
disposition of harassment in the second degree as defined in section
240.26 of the penal law, committed against a member of the same family
or household as the defendant, as defined in subdivision one of section
530.11 of this chapter, and determined pursuant to subdivision eight-a
of section 170.10 of this title, shall forthwith be, at the discretion
of the recipient agency, either destroyed or returned to such person, or
to the attorney who represented such person at the time of the termi-
nation of the action or proceeding, at the address given by such person
or attorney during the action or proceeding, by the division of criminal
justice services and by any police department or law enforcement agency
having any such photograph, photographic plate or proof, palmprints
[or], fingerprints, AND DNA ANALYSIS SAMPLE AND DNA RECORD in its
possession or under its control;
S 14. This act shall take effect on the one hundred eightieth day
after it shall have become a law; provided, however, that the amendments
to paragraph (a) of subdivision 1 of section 160.55 of the criminal
S. 6213 8
procedure law made by section twelve of this act shall remain in effect
until section 7 of chapter 476 of the laws of 2009, as amended, takes
effect when upon such date section thirteen of this act shall take
effect.
