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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Jan 09, 2012 |
recommit, enacting clause stricken |
| Jan 04, 2012 |
referred to finance |
| Jun 24, 2011 |
committed to rules |
| Jun 01, 2011 |
amended on third reading 2857b |
| May 23, 2011 |
amended on third reading 2857a |
| May 16, 2011 |
advanced to third reading |
| May 11, 2011 |
2nd report cal. |
| May 10, 2011 |
1st report cal.581 |
| Feb 02, 2011 |
referred to finance |
Senate Bill S2857
2011-2012 Legislative Session
Relates to the collection of DNA samples of designated offenders, the preservation of biological evidence and establishes the commission of exoneration review
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status - Stricken
- 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
Votes
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-
May 10, 2011 - Finance Committee Vote
S285722Aye2Nay10Aye with Reservations0Absent1Excused0Abstained
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Bill Amendments
co-Sponsors
(R, C) 53rd Senate District
(R, C) Senate District
(R, C, IP) Senate District
2011-S2857 - Details
2011-S2857 - Sponsor Memo
BILL NUMBER:S2857
TITLE OF BILL:
An act
to amend the executive law and the criminal procedure
law, in relation to collection of DNA samples
from designated offenders; to amend the executive law, in
relation to
collection and preservation of biological evidence;
to establish a commission for exoneration review;
to amend the
criminal procedure law, in relation to
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 to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment;
and providing for the repeal of certain provisions upon expiration
thereof
PURPOSE:
To allow for the collection of DNA samples upon an
individual's arrest for certain crimes. This legislation also
establishes the Commission for Exoneration Review.
SUMMARY OF PROVISIONS:
Section 1 -- Amends Executive Law section 995(7) and changes the definition of "designated offender." States that a "designated offender" is now anyone who is arrested of an offense where fingerprints are required to be taken (pursuant to section 160.10 of the Criminal Procedure Law), adjudicated as a youthful offender (pursuant to Article 720 of the Criminal Procedure Law), or compelled to register as a sex offender (pursuant to Article 6-C of the Correction Law). Section 2 -- Amends Executive Law section 995-c(3) to establish the procedures for collecting DNA samples from "designated offenders" (as defined by section 1 of this act). Permits court officials, state or local correction officials or employees, and other employees to collect a DNA sample as well as permitting a public servant to use reasonable force to collect such DNA from a designated offender in his or her custody. Section 3 -- Amends Executive Law section 995-f by adding a paragraph (2), Paragraph (2) establishes penalties for "designated offenders" who fail to provide a DNA sample. Section 4 -- Amends Executive Law section 995-c(4) to require the Commissioner of the Division of Criminal Justice Services to establish rules and procedures for obtaining DNA samples-from those required to register as sex offenders (pursuant to Article 6-C of the Correction Law). Sections 5 -- Amends Executive Law section 995-b by adding a new subdivision 3-a creating new duties and guidelines for the Commission on Forensic Science. Section 6-10 -- Amends various provisions of the Criminal Procedure Law dealing with the requirement of taking fingerprints in accordance with 160.10 to also include a requirement for taking a DNA sample appropriate for DNA testing. Section 11 -- Amends section 160.10 of the Criminal Procedure Law to require a DNA sample to be taken when a fingerprint is required or permitted to be taken. Section 12 -- Amends section 160.20 of the Criminal Procedure Law to require a DNA analysis sample to be forwarded to a forensic DNA laboratory for testing and analysis and to also include such sample in the state DNA identification index. Section 13 -- Amends section 160.55 of the Criminal Procedure Law to require a DNA analysis sample and records to be taken in addition such requirement for fingerprints. Section 14 -- Establishes the Commission for Exoneration Review. The Commission will review recent cases where convicted defendants were subsequently exonerated by DNA evidence. The section establishes the membership and structure of this Commission. This section also outlines the standards and procedures the Commission shall use when reviewing cases. Finally, this section requires the Commission to release periodic reports to certain state officials. Section 15 -- Amends Criminal Procedure Law section 160.50(1)(d) to establish that the Commission for Exoneration Review will have access to certain records. Section 16 -- Amends Criminal Procedure Law section 190.25(4) by adding a new paragraph (c) to allow the Commission for Exoneration Review to have access to grand jury testimony, evidence and other items related to a Commission inquiry. Section 17 -- Amends Criminal Procedure Law section 240.40 by adding a new subdivision 1-a to establish procedures for using DNA evidence in court. Section 18 -- Amends Criminal Procedure Law section 440.30(1-a)(a) to outline procedures for a defendant to request a DNA test or comparison. Section 19 -- Amends Penal Law section 65.10 by adding a new subdivision 4-b. States that a court shall require, as a condition for certain sentences, that the convicted individual provide a DNA sample. Section 20 -- Amends Court of Claims Act section 8-b to alter what a defendant claiming unjust conviction is able to prove and must prove, by documentary evidence, to a court. Section 21 -- Effective date. EXISTING LAW: Currently, the Executive Law enumerates the offenses for which a person qualifies as a "designated offender" and is thus required to submit a DNA sample for testing and inclusion in the state DNA identification index. This enumeration, while lengthy, is limited to those offenses that are listed. This list includes offenses related to homicide, assault, violent felonies, kidnapping, sexual offenses, endangering the welfare of a child, and other crimes. Criminal Procedure Law, through section 160.10, requires that fingerprints be taken for a felony, misdemeanor, and loitering. Additionally, a police officer may take fingerprints under this section to ascertain a person's identity or to determine whether the person's identification is accurate, Also, a police officer may take fingerprints when he or she reasonably suspects the individual is being sought for the commission of another offense. JUSTIFICATION: In April 2004, Glen Shoop was arrested on charges of third degree assault, second degree unlawful imprisonment, and third degree menacing. Mr. Shoop plead guilty in March 2005 to third degree assault. This crime was not an offense for which DNA was required to be taken. In 2006, Mr. Shoop was arrested for rape, criminal sexual act, and unlawful imprisonment. Upon conviction, he was ordered to provide a DNA sample. The existing law at that time did not require DNA to be taken upon arrest. Mr. Shoop plead guilty to first degree unlawful imprisonment on April 10, 2007. Two days before he was sentenced, Mr. Shoop sexually assaulted and murdered Carol Nelson in a heavily wooded area of a Syracuse suburb. Before Ms. Nelson's murder, but after Mr. Shoop provided a DNA sample to authorities, law enforcement was able to determine that Mr. Shoop's DNA matched DNA connected with an unsolved rape that occurred in East Syracuse in 2000. Because Mr. Shoop was not required to provide a DNA sample for third degree assault in 2004, law enforcement was unable to connect him to the 2000 unsolved rape. Therefore, he was free to perpetrate another crime in 2006 as well as the murder of Ms. Nelson. In 2006, had Mr. Shoop been required to provide DNA upon arrest, rather than conviction, law enforcement would have connected him to the 2000 unsolved rape and he would not have been free to commit the murder of Carol Nelson. The crimes subsequent to the 2004 arrest, including the murder of Carol Nelson, could have been prevented had two flaws not existed: 1) the limited number of offenses for which DNA would be taken, and 2) the requirement that a DNA sample be provided upon conviction, rather than upon arrest, as is done with fingerprints. The proposed legislation addresses both of these flaws directly by expanding the number of offenses for which DNA must be taken and by requiring law enforcement to take a DNA sample upon arrest, rather than upon a later conviction. LEGISLATIVE HISTORY: 2007-08: S.6726A/A.9974-A; 2009-10: S.4308/A.6186 FISCAL IMPLICATIONS: This legislation was projected to cost $55-65 million for the 2008-09 year. EFFECTIVE DATE: This act shall take effect on November 1, 2011, with provisions.
2011-S2857 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
2857
2011-2012 Regular Sessions
I N S E N A T E
February 2, 2011
___________
Introduced by Sens. DeFRANCISCO, GRIFFO, LARKIN -- read twice and
ordered printed, and when printed to be committed to the Committee on
Finance
AN ACT to amend the executive law and the criminal procedure law, in
relation to collection of DNA samples from designated offenders; to
amend the executive law, in relation to collection and preservation of
biological evidence; to establish a commission for exoneration review;
to amend the criminal procedure law, in relation to access by defend-
ants to DNA evidence, and procedures for consideration of post-convic-
tion relief; to amend the penal law, in relation to conditions of
probation and conditional discharge; and to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment; and
providing for the repeal of certain provisions upon expiration thereof
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 and paragraph (f) as amended
by chapter 405 of the laws of 2010, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03787-01-1
S. 2857 2
first degree, as defined in section 135.25 of the penal law, arson in
the first degree, as defined in section 150.20 of the penal law,
burglary in the third degree, as defined in section 140.20 of the penal
law, attempted burglary in the third degree, as defined in section
110.00 and section 140.20 of the penal law, a felony defined in article
four hundred ninety of the penal law relating to terrorism or any
attempt to commit an offense defined in such article relating to terror-
ism which is a felony; or (b) criminal possession of a controlled
substance in the first degree, as defined in section 220.21 of the penal
law; criminal possession of a controlled substance in the second degree,
as defined in section 220.18 of the penal law; criminal sale of a
controlled substance, as defined in article 220 of the penal law; or
grand larceny in the fourth degree, as defined in subdivision five of
section 155.30 of the penal law; or (c) any misdemeanor or felony
defined as a sex offense or sexually violent offense pursuant to para-
graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
three of section one hundred sixty-eight-a of the correction law; or (d)
any of the following felonies, or an attempt thereof where such attempt
is a felony offense:
aggravated assault upon a person less than eleven years old, as
defined in section 120.12 of the penal law; menacing in the first
degree, as defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of the penal
law; stalking in the second degree, as defined in section 120.55 of the
penal law; criminally negligent homicide, as defined in section 125.10
of the penal law; vehicular manslaughter in the second degree, as
defined in section 125.12 of the penal law; vehicular manslaughter in
the first degree, as defined in section 125.13 of the penal law;
persistent sexual abuse, as defined in section 130.53 of the penal law;
aggravated sexual abuse in the fourth degree, as defined in section
130.65-a of the penal law; female genital mutilation, as defined in
section 130.85 of the penal law; facilitating a sex offense with a
controlled substance, as defined in section 130.90 of the penal law;
unlawful imprisonment in the first degree, as defined in section 135.10
of the penal law; custodial interference in the first degree, as defined
in section 135.50 of the penal law; criminal trespass in the first
degree, as defined in section 140.17 of the penal law; criminal tamper-
ing in the first degree, as defined in section 145.20 of the penal law;
tampering with a consumer product in the first degree, as defined in
section 145.45 of the penal law; robbery in the third degree as defined
in section 160.05 of the penal law; identity theft in the second degree,
as defined in section 190.79 of the penal law; identity theft in the
first degree, as defined in section 190.80 of the penal law; promoting
prison contraband in the first degree, as defined in section 205.25 of
the penal law; tampering with a witness in the third degree, as defined
in section 215.11 of the penal law; tampering with a witness in the
second degree, as defined in section 215.12 of the penal law; tampering
with a witness in the first degree, as defined in section 215.13 of the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
criminal contempt, as defined in section 215.52 of the penal law; bail
jumping in the second degree, as defined in section 215.56 of the penal
law; bail jumping in the first degree, as defined in section 215.57 of
the penal law; patronizing a prostitute in the second degree, as defined
in section 230.05 of the penal law; patronizing a prostitute in the
first degree, as defined in section 230.06 of the penal law; promoting
S. 2857 3
prostitution in the second degree, as defined in section 230.30 of the
penal law; promoting prostitution in the first degree, as defined in
section 230.32 of the penal law; compelling prostitution, as defined in
section 230.33 of the penal law; disseminating indecent materials to
minors in the second degree, as defined in section 235.21 of the penal
law; disseminating indecent materials to minors in the first degree, as
defined in section 235.22 of the penal law; riot in the first degree, as
defined in section 240.06 of the penal law; criminal anarchy, as defined
in section 240.15 of the penal law; aggravated harassment of an employee
by an inmate, as defined in section 240.32 of the penal law; unlawful
surveillance in the second degree, as defined in section 250.45 of the
penal law; unlawful surveillance in the first degree, as defined in
section 250.50 of the penal law; endangering the welfare of a vulnerable
elderly person in the second degree, as defined in section 260.32 of the
penal law; endangering the welfare of a vulnerable elderly person in the
first degree, as defined in section 260.34 of the penal law; use of a
child in a sexual performance, as defined in section 263.05 of the penal
law; promoting an obscene sexual performance by a child, as defined in
section 263.10 of the penal law; possessing an obscene sexual perform-
ance by a child, as defined in section 263.11 of the penal law; promot-
ing a sexual performance by a child, as defined in section 263.15 of the
penal law; possessing a sexual performance by a child, as defined in
section 263.16 of the penal law; criminal possession of a weapon in the
third degree, as defined in section 265.02 of the penal law; criminal
sale of a firearm in the third degree, as defined in section 265.11 of
the penal law; criminal sale of a firearm to a minor, as defined in
section 265.16 of the penal law; unlawful wearing of a body vest, as
defined in section 270.20 of the penal law; hate crimes as defined in
section 485.05 of the penal law; and crime of terrorism, as defined in
section 490.25 of the penal law; or (e) a felony defined in the penal
law or an attempt thereof where such attempt is a felony; or (f) any of
the following misdemeanors: assault in the third degree as defined in
section 120.00 of the penal law; attempted aggravated assault upon a
person less than eleven years old, as defined in section 110.00 and
section 120.12 of the penal law; attempted menacing in the first degree,
as defined in section 110.00 and section 120.13 of the penal law; menac-
ing in the second degree as defined in section 120.14 of the penal law;
menacing in the third degree as defined in section 120.15 of the penal
law; reckless endangerment in the second degree as defined in section
120.20 of the penal law; stalking in the fourth degree as defined in
section 120.45 of the penal law; stalking in the third degree as defined
in section 120.50 of the penal law; attempted stalking in the second
degree, as defined in section 110.00 and section 120.55 of the penal
law; criminal obstruction of breathing or blood circulation as defined
in section 121.11 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 regard-
less 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; endan-
S. 2857 4
gering the welfare of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR
WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED
OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL
PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL
OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE-
DURE LAW FOR ANY SUCH OFFENSE, 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, UNLESS SUCH DESIGNATED OFFENDER HAS
PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX.
(B) 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.
(C) 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.
(D) 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.
(E) 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 3. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
S 995-f. Penalties. 1. Any person who (a) intentionally discloses a
DNA record, or the results of a forensic DNA test or analysis, to an
individual or agency other than one authorized to have access to such
records pursuant to this article or (b) intentionally uses or receives
DNA records, or the results of a forensic DNA test or analysis, for
purposes other than those authorized pursuant to this article or (c) any
person who knowingly tampers or attempts to tamper with any DNA sample
or the collection container without lawful authority shall be guilty of
a class E felony.
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
S. 2857 5
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.
S 4. Subdivision 4 of section 995-c of the executive law, as amended
by section 65 of part A of chapter 56 of the laws of 2010, is amended to
read as follows:
4. The commissioner of the division of criminal justice services, in
consultation with the commission, the commissioner of health, the divi-
sion of parole, the director of the office of probation and correctional
alternatives and the department of correctional services, shall promul-
gate rules and regulations governing the procedures for notifying desig-
nated offenders of the requirements of this section. THE COMMISSIONER
OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES
AND REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPRO-
PRIATE FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A
SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
S 5. 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
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 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 OR HER arrest in another county for an
offense specified in subdivision one of section 160.10, is released by a
local criminal court of such other county on his OR HER own recognizance
or on bail for his OR HER appearance on a specified date before the
S. 2857 6
local criminal court before which the warrant is returnable, the latter
court must, upon arraignment of the defendant before it, direct that he
OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate officer or agency, and that he OR SHE 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, direct
that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
DNA TESTING TAKEN by the appropriate police officer or agency, 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, 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, direct that the defend-
ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate police officer or agency and that he OR SHE
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 defendant, to be finger-
printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the
appropriate police officer or agency and the court must also direct that
the defendant appear at an appropriate designated time and place for
such purpose, if the defendant is convicted of any offense specified in
subdivision one of section 160.10.
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, cause such person to be
fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 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 HER or cause him OR HER to be brought before a local
criminal court, as provided in section 100.55 and subdivision one of
section 140.20, and must without unnecessary delay file or cause to be
S. 2857 7
filed therewith an appropriate accusatory instrument. If the offense
which is the subject of the arrest is one of those specified in subdivi-
sion one of section 160.10, the arrested person must be fingerprinted
[and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
as therein provided. In order to execute the required post-arrest func-
tions, such arresting peace officer may perform such functions himself
OR HERSELF, or he OR SHE may enlist the aid of a police officer for the
performance thereof in the manner provided in subdivision one of section
140.20.
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, the
court must, if an offense charged in the accusatory instrument is one
specified in subdivision one of section 160.10, direct that the defend-
ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
by the appropriate police officer or agency, and that he OR SHE appear
at an appropriate designated time and place for such purpose.
S 11. The section heading of section 160.10 of the criminal procedure
law, as amended by chapter 762 of the laws of 1971, is amended and a new
subdivision 5 is added to read as follows:
Fingerprinting AND DNA ANALYSIS; duties of police with respect there-
to.
5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO
SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO
SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR
DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED.
(B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN
THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB-
LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES.
(C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE
HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
S 12. 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,
the appropriate police officer or agency must without unnecessary delay
forward two copies of such fingerprints to the division of criminal
justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A
FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND
INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH
SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE
LAW.
S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph (a) as amended by chapter 476 of the
laws of 2009 and paragraph (b) 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
S. 2857 8
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;
(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 14. (a) The commission for exoneration review is hereby established
on a temporary basis as an independent agency of the state to study and
review recent cases in which convicted defendants were subsequently
exonerated, whether by DNA evidence or otherwise, to determine why the
process failed in each individual case, and to determine whether these
cases are indicative of systemic flaws that have led to the conviction
and sentencing of innocent people.
(b) The governor shall appoint the chair and ten other members of such
commission, including one appointed on the recommendation of the chief
judge of the court of appeals, one appointed on the recommendation of
the speaker of the assembly, one appointed on the recommendation of the
temporary president of the senate, one appointed on the recommendation
of the minority leader of the senate, and one appointed on the recommen-
dation of the minority leader of the assembly. If any vacancy occurs it
shall be filled in the manner provided for the original appointment to
the vacated seat.
(c) No member of the commission shall be disqualified from holding any
public office or employment, nor shall he or she forfeit any such office
or employment, by reason of his or her appointment pursuant to this
section.
(d) The commission shall meet as often as its chair, or at least five
of its members, shall determine to be necessary. Six members shall
constitute a quorum, and except as otherwise provided in this section,
affirmative decisions of the commission shall require the concurrence of
seven members.
(e) The members of the commission shall serve without salary or other
compensation, but shall be entitled to receive actual and necessary
expenses incurred in the discharge of their duties pursuant to this
section.
S. 2857 9
(f) The commission shall review criminal or juvenile cases in which
the defendant or respondent was sentenced but subsequently exonerated.
The purpose of such review is to consider whether experience in such
cases provides useful information about possible reforms that could
enhance safeguards, make improvements in the way that law enforcement
agencies and the criminal justice system function, and protect against
future convictions of innocent persons. Such possible reforms may
include but are not limited to the areas of:
(1) investigative techniques that led to the arrest, identification,
and conviction of the innocent persons;
(2) issues relating to false confessions, including whether the
recording of interrogations should be mandated;
(3) trial processes and procedures that may have contributed to
convictions of innocent persons;
(4) any conduct of prosecutors, defense counsels, or courts that may
have contributed to convictions of innocent persons;
(5) issues relating to the provision of counsel to indigent defend-
ants, including whether counsel are adequately trained, compensated, and
provided with appropriate resources for investigations; and
(6) failures in the appellate or post-conviction process that resulted
in wrongful convictions not being discovered or corrected at an earlier
time.
(g) The commissioner of criminal justice services shall identify cases
in which convictions were set aside and it appears reasonably likely
that the person convicted was innocent of the crimes charged, and it
shall submit summaries of such cases to the commission. The commissioner
of criminal justice services shall seek to submit at least all such
cases in which exoneration resulted from DNA evidence, and all such
cases in which there was an exoneration within five years prior to the
effective date of this act. The commission of exoneration review shall
conduct an initial review of each case submitted by the commissioner of
criminal justice services, and may also choose to conduct initial
reviews of other cases. As to each case, the commission shall decide
whether such case warrants detailed review in that (1) it appears highly
likely that the person convicted was actually innocent of the crimes
charged, and (2) there appear to be features of the case that may
provide useful information without possible reforms.
(h) When the commission for exoneration review decides that a case
warrants detailed review, the commissioner of criminal justice services
shall compile records and other information relating to that case, and
may solicit comments or analyses by experts in relevant fields.
Notwithstanding any other provision of law, the commissioner of criminal
justice services may request and shall receive from any court, depart-
ment, division, board, bureau, commission or other agency of the state
or political subdivision thereof, or any public authority, such assist-
ance, records and data as will enable it effectively to carry out its
duties. The commissioner of criminal justice services shall submit such
records, information, comments, and analyses to the commission of exon-
eration review. Confidential and sensitive material, such as certain
information relating to victims and confidential informants, may be
redacted as appropriate. The commission for exoneration review may
conduct its detailed review on the basis of the materials submitted, or
it may request the commissioner of criminal justice services to compile
and submit further specified kinds of information about the case.
(i) The commission for exoneration review shall make available an
annual report detailing, at a minimum, the number of cases submitted by
S. 2857 10
the commissioner of criminal justice services, the number of cases
chosen for detailed review, and the number of detailed reviews
completed. The report shall include any findings of fact and recommenda-
tions for reform that may have been adopted by the commission since its
last report. Recommendations that are not adopted by the commission but
obtain the concurrence of at least four members shall be included in the
annual report as proposals for consideration. In addition to the annual
report, the commission may decide to issue other reports containing
findings of fact and/or recommendations for reform. All reports issued
by the commission shall be made available to the public and delivered to
the governor, the chief judge of the court of appeals, the temporary
president of the senate, and the speaker of the assembly.
S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
procedure law, as amended by chapter 169 of the laws of 1994, is amended
to read as follows:
(d) such records shall be made available to the person accused or to
such person's designated agent, and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
enforcement agency upon ex parte motion in any superior court, if such
agency demonstrates to the satisfaction of the court that justice
requires that such records be made available to it, or (iii) any state
or local officer or agency with responsibility for the issuance of
licenses to possess guns, when the accused has made application for such
a license, or (iv) the New York state division of parole when the
accused is on parole supervision as a result of conditional release or a
parole release granted by the New York state board of parole, and the
arrest which is the subject of the inquiry is one which occurred while
the accused was under such supervision, or (v) any prospective employer
of a police officer or peace officer as those terms are defined in
subdivisions thirty-three and thirty-four of section 1.20 of this chap-
ter, in relation to an application for employment as a police officer or
peace officer; provided, however, that every person who is an applicant
for the position of police officer or peace officer shall be furnished
with a copy of all records obtained under this paragraph and afforded an
opportunity to make an explanation thereto, or (vi) the probation
department responsible for supervision of the accused when the arrest
which is the subject of the inquiry is one which occurred while the
accused was under such supervision, OR (VII) THE COMMISSION FOR EXONERA-
TION REVIEW; and
S 16. Subdivision 4 of section 190.25 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI-
MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND
JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION
REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS-
SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
S 17. 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
S. 2857 11
PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. 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 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal procedure law, as amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
(a) Where the defendant's motion requests the performance of a foren-
sic DNA test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA") was secured
in connection with the [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, and if the results had been admitted in the trial result-
ing 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 DETERMINATION THAT IF THE RESULTS HAD BEEN
AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT
THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG
OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE
DEFENDANT'S PLEA OF GUILTY.
(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 MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE
DERIVED FROM SPECIFIED 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 CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE
MOTION FOR SUCH A COMPARISON, IT 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 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
S. 2857 12
DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A
DNA SAMPLE FROM ANY OTHER PERSON.
S 19. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
TY-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.
S 20. 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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) 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 (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
APPLICATION TO CLAIMANT'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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) 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 (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
S. 2857 13
APPLICATION TO CLAIMANT'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 21. This act shall take effect November 1, 2011; provided that:
(a) the amendments to article 49-B of the executive law, made by
sections one and two of this act, and the amendments to the criminal
procedure law, made by sections six, seven, eight, nine, ten, eleven,
twelve and thirteen of this act, shall apply to designated offenses
committed on or after the effective date of this act; and to designated
offenses committed prior to such effective date where either the crimi-
nal proceeding arising out of the commission of such offense is pending
on the effective date of this act or the service of the sentence imposed
upon conviction of the designated offense has not been completed prior
to such effective date; and to any person adjudicated a youthful offen-
der for the commission of a designated offense committed prior to the
effective date of this act where service of the sentence imposed upon
adjudication as a youthful offender has not been completed prior to such
effective date; and to any person required to register as a sex offender
pursuant to article 6-C of the correction law on or after the effective
date of this act; and
(b) sections fourteen, fifteen and sixteen of this act shall take
effect April 1, 2012, and shall expire and be deemed repealed September
1, 2015.
co-Sponsors
(R, C) 53rd Senate District
(R, C) Senate District
(R, C, IP) Senate District
2011-S2857A - Details
2011-S2857A - Sponsor Memo
BILL NUMBER:S2857A
TITLE OF BILL:
An act
to amend the executive law and the criminal procedure
law, in relation to collection of DNA samples
from designated offenders; to amend the executive law, in
relation to
collection and preservation of biological evidence;
to establish a commission for exoneration review;
to amend the
criminal procedure law, in relation to
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 to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment;
and providing for the repeal of certain provisions upon expiration
thereof
PURPOSE:
To allow for the collection of DNA samples upon an
individual's arrest for certain crimes and return thereof upon
exoneration. This legislation also establishes the Commission for
Exoneration Review.
SUMMARY OF PROVISIONS: Section 1 -- Amends Executive Law section 995(7) and changes the definition of "designated offender." States that a "designated offender" is now anyone who is arrested of an offense where fingerprints are required to be taken (pursuant to section 160.10 of the Criminal Procedure Law), adjudicated as a youthful offender (pursuant to Article 720 of the Criminal Procedure Law), or compelled to register as a sex offender (pursuant to Article 6-C of the Correction Law). Section 2 -- Amends Executive Law section 995-c(3) to establish the procedures for collecting DNA samples from "designated offenders" (as defined by section 1 of this act). Permits court officials, state or local correction officials or employees. and other employees to collect a DNA sample as well as permitting a public servant to use reasonable force to collect such DNA from a designated offender in his or her custody. Section 3 -- Amends Executive Law section 995-f by adding a paragraph (2), Paragraph (2) establishes penalties for "designated offenders" who fail to provide a DNA sample. Section 4 -- Amends Executive Law section 995-c(4) to require the Commissioner of the Division of Criminal Justice Services to establish rules and procedures for obtaining DNA samples-from those required to register as sex offenders (pursuant to Article 6-C of the Correction Law) and establishes a procedure for the return of DNA if the charges are resolved by dismissal, pre-prosecution diversion program or conditional discharge or conviction that does not require DNA collection. Sections 5 -- Amends Executive Law section 995-b by adding a new subdivision 3-a creating new duties and guidelines for the Commission on Forensic Science. Section 6-10 -- Amends various provisions of the Criminal Procedure Law dealing with the requirement of taking fingerprints in accordance with 160.10 to also include a requirement for taking a DNA sample appropriate for DNA testing. Section 11 -- Amends section 160.10 of the Criminal Procedure Law to require a DNA sample to be taken when a fingerprint is required or permitted to be taken. Section 12 -- Amends section 160.20 of the Criminal Procedure Law to require a DNA analysis sample to be forwarded to a forensic DNA laboratory for testing and analysis and to also include such sample in the state DNA identification index. Section 13 -- Amends section 160.55 of the Criminal Procedure Law to require a DNA analysis sample and records to be taken in addition such requirement for fingerprints. Section 14 -- Establishes the Commission for Exoneration Review. The Commission will review recent cases where convicted defendants were subsequently exonerated by DNA evidence. The section establishes the membership and structure of this Commission. This section also outlines the standards and procedures the Commission shall use when reviewing cases. Finally, this section requires the Commission to release periodic reports to certain state officials. Section 15 -- Amends Criminal Procedure Law section 160.50(1)( d) to establish that the Commission for Exoneration Review will have access to certain records. Section 16 -- Amends Criminal Procedure Law section 190.25(4) by adding a new paragraph (c) to allow the Commission for Exoneration Review to have access to grand jury testimony, evidence and other items related to a Commission inquiry. Section 17 -- Amends Criminal Procedure Law section 240.40 by adding a new subdivision 1 ~a to establish procedures for using DNA evidence in court. Section 18 -- Amends Criminal Procedure Law section 440.30(1-a)(a) to outline procedures for a defendant to request a DNA test or comparison. Section 19 -- Amends Penal Law section 65.10 by adding a new subdivision 4-b. States that a court shall require, as a condition for certain sentences, that the convicted individual provide a DNA sample. Section 20 -- Amends Court of Claims Act section 8-b to alter what a defendant claiming unjust conviction is able to prove and must prove, by documentary evidence, to a court. Section 21 -- Effective date. EXISTING LAW: Currently, the Executive Law enumerates the offenses for which a person qualifies as a "designated offender" and is thus required to submit a DNA sample for testing and inclusion in the state DNA identification index. This enumeration, while lengthy, is limited to those offenses that are listed. This list includes offenses related to homicide, assault, violent felonies, kidnapping, sexual offenses, endangering the welfare of a child, and other crimes. Criminal Procedure Law, through section 160.10, requires that fingerprints be taken for a felony, misdemeanor, and loitering. Additionally, a police officer may take fingerprints under this section to ascertain a person's identity or to determine whether the person's identification is accurate, Also, a police officer may take fingerprints when he or she reasonably suspects the individual is being sought for the commission of another offense. JUSTIFICATION: In April 2004, Glen Shoop was arrested on charges of third degree assault, second degree unlawful imprisonment, and third degree menacing. Mr. Shoop plead guilty in March 2005 to third degree assault. This crime was not an offense for which DNA was required to be taken. In 2006, Mr. Shoop was arrested for rape, criminal sexual act, and unlawful imprisonment. Upon conviction, he was ordered to provide a DNA sample. The existing law at that time did not require DNA to be taken upon arrest. Mr. Shoop plead guilty to first degree unlawful imprisonment on April 10, 2007. Two days before he was sentenced, Mr. Shoop sexually assaulted and murdered Carol Nelson in a heavily wooded area of a Syracuse suburb. Before Ms. Nelson's murder, but after Mr. Shoop provided a DNA sample to authorities, law enforcement was able to determine that Mr. Shoop's DNA matched DNA connected with an unsolved rape that occurred in East Syracuse in 2000. Because Mr. Shoop was not required to provide a DNA sample for third degree assault in 2004, law enforcement was unable to connect him to the 2000 unsolved rape. Therefore, he was free to perpetrate another crime in 2006 as well as the murder of Ms. Nelson. In 2006, had Mr. Shoop been required to provide DNA upon arrest, rather than conviction, law enforcement would have connected him to the 2000 unsolved rape and he would not have been free to commit the murder of Carol Nelson. The crimes subsequent to the 2004 arrest, including the murder of Carol Nelson, could have been prevented had two flaws not existed: 1) the limited number of offenses for which DNA would be taken, and 2) the requirement that a DNA sample be provided upon conviction, rather than upon arrest, as is done with fingerprints. The proposed legislation addresses both of these flaws directly by expanding the number of offenses for which DNA must be taken and by requiring law enforcement to take a DNA sample upon arrest, rather than upon a later conviction. LEGISLATIVE HISTORY: 2007-08: S.6726A/A.9974-A FISCAL IMPLICATIONS: This legislation was projected to cost $55-65 million for the 2008-09 year. EFFECTIVE DATE: This act shall take effect on November 1, 2009; provided that: (a) the amendments to article 49-B of the Executive Law, made by sections one and two of this act, and
2011-S2857A - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
2857--A
Cal. No. 581
2011-2012 Regular Sessions
I N S E N A T E
February 2, 2011
___________
Introduced by Sens. DeFRANCISCO, GRIFFO, LARKIN, YOUNG -- read twice and
ordered printed, and when printed to be committed to the Committee on
Finance -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the executive law and the criminal procedure law, in
relation to collection of DNA samples from designated offenders; to
amend the executive law, in relation to collection and preservation of
biological evidence; to establish a commission for exoneration review;
to amend the criminal procedure law, in relation to access by defend-
ants to DNA evidence, and procedures for consideration of post-convic-
tion relief; to amend the penal law, in relation to conditions of
probation and conditional discharge; and to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment; and
providing for the repeal of certain provisions upon expiration thereof
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 and paragraph (f) as amended
by chapter 405 of the laws of 2010, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03787-02-1
S. 2857--A 2
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
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
S. 2857--A 3
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
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; criminal obstruction of breathing or blood circulation as defined
in section 121.11 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 regard-
less 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
S. 2857--A 4
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; endan-
gering the welfare of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR
WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED
OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL
PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL
OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE-
DURE LAW FOR ANY SUCH OFFENSE, 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, UNLESS SUCH DESIGNATED OFFENDER HAS
PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX.
(B) 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.
(C) 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.
(D) 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.
(E) 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 3. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
S 995-f. Penalties. 1. Any person who (a) intentionally discloses a
DNA record, or the results of a forensic DNA test or analysis, to an
individual or agency other than one authorized to have access to such
records pursuant to this article or (b) intentionally uses or receives
DNA records, or the results of a forensic DNA test or analysis, for
purposes other than those authorized pursuant to this article or (c) any
person who knowingly tampers or attempts to tamper with any DNA sample
or the collection container without lawful authority shall be guilty of
a class E felony.
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
S. 2857--A 5
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.
S 4. Subdivision 4 of section 995-c of the executive law, as amended
by section 104 of subpart B of part C of chapter 62 of the laws of 2011,
is amended to read as follows:
4. The commissioner of the division of criminal justice services, in
consultation with the commission, the commissioner of health, the direc-
tor of the office of probation and correctional alternatives and the
department of corrections and community supervision, shall promulgate
rules and regulations governing the procedures for notifying designated
offenders of the requirements of this section. THE COMMISSIONER OF THE
DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND
REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPROPRIATE
FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX
OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
S 4-a. 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
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 PARAGRAPH (B) OF SUBDIVISION THREE OF THIS SECTION,
or pursuant to a warrant or order of a court, has provided a sample for
DNA testing in connection with the investigation, ARREST or prosecution
S. 2857--A 6
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 WAS COMMENCED against the
individual relating to such crime [resulted in a conviction that was
subsequently reversed or vacated, or for which the individual was grant-
ed a pardon pursuant to article two-A of this chapter, such individual
may apply to the supreme court or the court in which the judgment of
conviction was originally entered for an order directing the expungement
of any DNA record and any samples, analyses, or other documents relating
to the DNA testing of such individual in connection with the investi-
gation or prosecution of such crime. A copy of such application shall be
served on the district attorney and an order directing expungement may
be granted if the court finds that the individual has satisfied the
conditions of one of the subparagraphs of this paragraph; that if a
judgment of conviction was reversed or vacated, all appeals relating
thereto have been concluded and the individual will not be retried, or,
if a retrial has 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 expungement of any DNA record and any
samples, analyses or other documents relating to the DNA testing of such
individual is issued] WHICH WAS RESOLVED BY A DISMISSAL, SUCCESSFUL
COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM OR CONDITIONAL
DISCHARGE OR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION PURSUANT TO
SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTICLE,
THE DNA RECORD SHALL BE EXPUNGED FROM THE STATE DNA IDENTIFICATION
INDEX. AN INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD AND ANY
SAMPLES, ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH
INDIVIDUAL BY PROVIDING THE FOLLOWING MATERIALS TO THE DIVISION OF CRIM-
INAL JUSTICE SERVICES:
(1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
AND
(2) A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A
PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE OR NON-QUA-
LIFYING CONVICTION OR ACQUITTAL.
(C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF
THIS SUBDIVISION, such record and any samples, analyses, or other docu-
ments shall, at the discretion of the possessor thereof, be destroyed or
returned to such individual or to the attorney who represented him or
her IN THE CRIMINAL ACTION OR in connection with the [application for
the order of] REQUEST FOR expungement.
(D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING 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. 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
S. 2857--A 7
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
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 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 OR HER arrest in another county for an
offense specified in subdivision one of section 160.10, is released by a
local criminal court of such other county on his OR HER own recognizance
or on bail for his OR HER 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
OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate officer or agency, and that he OR SHE 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, direct
that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
DNA TESTING TAKEN by the appropriate police officer or agency, 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, 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, direct that the defend-
ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate police officer or agency and that he OR SHE
S. 2857--A 8
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 defendant, to be finger-
printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the
appropriate police officer or agency and the court must also direct that
the defendant appear at an appropriate designated time and place for
such purpose, if the defendant is convicted of any offense specified in
subdivision one of section 160.10.
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, cause such person to be
fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 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 HER or cause him OR HER to be brought before a local
criminal court, as provided in section 100.55 and subdivision one of
section 140.20, 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 subdivi-
sion one of section 160.10, the arrested person must be fingerprinted
[and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
as therein provided. In order to execute the required post-arrest func-
tions, such arresting peace officer may perform such functions himself
OR HERSELF, or he OR SHE may enlist the aid of a police officer for the
performance thereof in the manner provided in subdivision one of section
140.20.
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, the
court must, if an offense charged in the accusatory instrument is one
specified in subdivision one of section 160.10, direct that the defend-
ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
by the appropriate police officer or agency, and that he OR SHE appear
at an appropriate designated time and place for such purpose.
S 11. The section heading of section 160.10 of the criminal procedure
law, as amended by chapter 762 of the laws of 1971, is amended and a new
subdivision 5 is added to read as follows:
Fingerprinting AND DNA ANALYSIS; duties of police with respect there-
to.
5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO
SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO
S. 2857--A 9
SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR
DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED.
(B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN
THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB-
LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES.
(C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE
HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
S 12. 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,
the appropriate police officer or agency must without unnecessary delay
forward two copies of such fingerprints to the division of criminal
justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A
FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND
INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH
SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE
LAW.
S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph (a) as amended by chapter 476 of the
laws of 2009 and paragraph (b) 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, 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;
(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. 2857--A 10
S 14. (a) The commission for exoneration review is hereby established
on a temporary basis as an independent agency of the state to study and
review recent cases in which convicted defendants were subsequently
exonerated, whether by DNA evidence or otherwise, to determine why the
process failed in each individual case, and to determine whether these
cases are indicative of systemic flaws that have led to the conviction
and sentencing of innocent people.
(b) The governor shall appoint the chair and ten other members of such
commission, including one appointed on the recommendation of the chief
judge of the court of appeals, one appointed on the recommendation of
the speaker of the assembly, one appointed on the recommendation of the
temporary president of the senate, one appointed on the recommendation
of the minority leader of the senate, and one appointed on the recommen-
dation of the minority leader of the assembly. If any vacancy occurs it
shall be filled in the manner provided for the original appointment to
the vacated seat.
(c) No member of the commission shall be disqualified from holding any
public office or employment, nor shall he or she forfeit any such office
or employment, by reason of his or her appointment pursuant to this
section.
(d) The commission shall meet as often as its chair, or at least five
of its members, shall determine to be necessary. Six members shall
constitute a quorum, and except as otherwise provided in this section,
affirmative decisions of the commission shall require the concurrence of
seven members.
(e) The members of the commission shall serve without salary or other
compensation, but shall be entitled to receive actual and necessary
expenses incurred in the discharge of their duties pursuant to this
section.
(f) The commission shall review criminal or juvenile cases in which
the defendant or respondent was sentenced but subsequently exonerated.
The purpose of such review is to consider whether experience in such
cases provides useful information about possible reforms that could
enhance safeguards, make improvements in the way that law enforcement
agencies and the criminal justice system function, and protect against
future convictions of innocent persons. Such possible reforms may
include but are not limited to the areas of:
(1) investigative techniques that led to the arrest, identification,
and conviction of the innocent persons;
(2) issues relating to false confessions, including whether the
recording of interrogations should be mandated;
(3) trial processes and procedures that may have contributed to
convictions of innocent persons;
(4) any conduct of prosecutors, defense counsels, or courts that may
have contributed to convictions of innocent persons;
(5) issues relating to the provision of counsel to indigent defend-
ants, including whether counsel are adequately trained, compensated, and
provided with appropriate resources for investigations; and
(6) failures in the appellate or post-conviction process that resulted
in wrongful convictions not being discovered or corrected at an earlier
time.
(g) The commissioner of criminal justice services shall identify cases
in which convictions were set aside and it appears reasonably likely
that the person convicted was innocent of the crimes charged, and it
shall submit summaries of such cases to the commission. The commissioner
of criminal justice services shall seek to submit at least all such
S. 2857--A 11
cases in which exoneration resulted from DNA evidence, and all such
cases in which there was an exoneration within five years prior to the
effective date of this act. The commission of exoneration review shall
conduct an initial review of each case submitted by the commissioner of
criminal justice services, and may also choose to conduct initial
reviews of other cases. As to each case, the commission shall decide
whether such case warrants detailed review in that (1) it appears highly
likely that the person convicted was actually innocent of the crimes
charged, and (2) there appear to be features of the case that may
provide useful information without possible reforms.
(h) When the commission for exoneration review decides that a case
warrants detailed review, the commissioner of criminal justice services
shall compile records and other information relating to that case, and
may solicit comments or analyses by experts in relevant fields.
Notwithstanding any other provision of law, the commissioner of criminal
justice services may request and shall receive from any court, depart-
ment, division, board, bureau, commission or other agency of the state
or political subdivision thereof, or any public authority, such assist-
ance, records and data as will enable it effectively to carry out its
duties. The commissioner of criminal justice services shall submit such
records, information, comments, and analyses to the commission of exon-
eration review. Confidential and sensitive material, such as certain
information relating to victims and confidential informants, may be
redacted as appropriate. The commission for exoneration review may
conduct its detailed review on the basis of the materials submitted, or
it may request the commissioner of criminal justice services to compile
and submit further specified kinds of information about the case.
(i) The commission for exoneration review shall make available an
annual report detailing, at a minimum, the number of cases submitted by
the commissioner of criminal justice services, the number of cases
chosen for detailed review, and the number of detailed reviews
completed. The report shall include any findings of fact and recommenda-
tions for reform that may have been adopted by the commission since its
last report. Recommendations that are not adopted by the commission but
obtain the concurrence of at least four members shall be included in the
annual report as proposals for consideration. In addition to the annual
report, the commission may decide to issue other reports containing
findings of fact and/or recommendations for reform. All reports issued
by the commission shall be made available to the public and delivered to
the governor, the chief judge of the court of appeals, the temporary
president of the senate, and the speaker of the assembly.
S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
procedure law, as amended by section 73 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
(d) such records shall be made available to the person accused or to
such person's designated agent, and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
enforcement agency upon ex parte motion in any superior court, if such
agency demonstrates to the satisfaction of the court that justice
requires that such records be made available to it, or (iii) any state
or local officer or agency with responsibility for the issuance of
licenses to possess guns, when the accused has made application for such
a license, or (iv) the New York state department of corrections and
community supervision when the accused is on parole supervision as a
result of conditional release or a parole release granted by the New
S. 2857--A 12
York state board of parole, and the arrest which is the subject of the
inquiry is one which occurred while the accused was under such super-
vision or (v) any prospective employer of a police officer or peace
officer as those terms are defined in subdivisions thirty-three and
thirty-four of section 1.20 of this chapter, in relation to an applica-
tion for employment as a police officer or peace officer; provided,
however, that every person who is an applicant for the position of
police officer or peace officer shall be furnished with a copy of all
records obtained under this paragraph and afforded an opportunity to
make an explanation thereto, or (vi) the probation department responsi-
ble for supervision of the accused when the arrest which is the subject
of the inquiry is one which occurred while the accused was under such
supervision, OR (VII) THE COMMISSION FOR EXONERATION REVIEW; and
S 16. Subdivision 4 of section 190.25 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI-
MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND
JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION
REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS-
SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
S 17. 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. 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 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal procedure law, as amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
(a) Where the defendant's motion requests the performance of a foren-
sic DNA test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA") was secured
in connection with the [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, and if the results had been admitted in the trial result-
ing in the judgment, there exists a reasonable probability that the
S. 2857--A 13
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 DETERMINATION THAT IF THE RESULTS HAD BEEN
AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT
THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG
OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE
DEFENDANT'S PLEA OF GUILTY.
(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 MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE
DERIVED FROM SPECIFIED 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 CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE
MOTION FOR SUCH A COMPARISON, IT 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 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 19. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
TY-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.
S 20. 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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) the statute, or application thereof, on which the accusatory
S. 2857--A 14
instrument was based violated the constitution of the United States or
the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
APPLICATION TO CLAIMANT'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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) 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 (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
APPLICATION TO CLAIMANT'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 21. This act shall take effect November 1, 2011; provided that:
(a) the amendments to article 49-B of the executive law, made by
sections one and two of this act, and the amendments to the criminal
procedure law, made by sections six, seven, eight, nine, ten, eleven,
twelve and thirteen of this act, shall apply to designated offenses
committed on or after the effective date of this act; and to designated
offenses committed prior to such effective date where either the crimi-
nal proceeding arising out of the commission of such offense is pending
on the effective date of this act or the service of the sentence imposed
upon conviction of the designated offense has not been completed prior
to such effective date; and to any person adjudicated a youthful offen-
der for the commission of a designated offense committed prior to the
effective date of this act where service of the sentence imposed upon
adjudication as a youthful offender has not been completed prior to such
effective date; and to any person required to register as a sex offender
pursuant to article 6-C of the correction law on or after the effective
date of this act; and
(b) sections fourteen, fifteen and sixteen of this act shall take
effect April 1, 2012, and shall expire and be deemed repealed September
1, 2015.
co-Sponsors
(R, C) 53rd Senate District
(R, C) Senate District
(R, C, IP) Senate District
2011-S2857B (ACTIVE) - Details
2011-S2857B (ACTIVE) - Sponsor Memo
BILL NUMBER:S2857B
TITLE OF BILL:
An act
to amend the executive law and the criminal procedure
law, in relation to collection of DNA samples
from designated offenders; to amend the executive law, in
relation to
collection and preservation of biological evidence;
to establish a commission for exoneration review;
to amend the
criminal procedure law, in relation to
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 to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment;
and providing for the repeal of certain provisions upon expiration
thereof
PURPOSE:
To allow for the collection of DNA samples upon an
individual's arrest for certain crimes and return thereof upon
exoneration. This legislation also establishes the Commission for
Exoneration Review.
SUMMARY OF PROVISIONS: Section 1 -- Amends Executive Law section 995(7) and changes the definition of "designated offender." States that a "designated offender" is now anyone who is arrested of an offense where fingerprints are required to be taken (pursuant to section 160.10 of the Criminal Procedure Law), adjudicated as a youthful offender (pursuant to Article 720 of the Criminal Procedure Law), or compelled to register as a sex offender (pursuant to Article 6-C of the Correction Law). Section 2 -- Amends Executive Law section 995-c(3) to establish the procedures for collecting DNA samples from "designated offenders" (as defined by section 1 of this act). Permits court officials, state or local correction officials or employees, and other employees to collect a DNA sample as well as permitting a public servant to use reasonable force to collect such DNA from a designated offender in his or her custody. Section 3 -- Amends Executive Law section 995-f by adding a paragraph (2), Paragraph (2) establishes penalties for "designated offenders" who fail to provide a DNA sample. Section 4 -- Amends Executive Law section 995-c(4) to require the Commissioner of the Division of Criminal Justice Services to establish rules and procedures for obtaining DNA samples-from those required to register as sex offenders (pursuant to Article 6-C of the Correction Law) and establishes a procedure for the return of DNA if the charges are resolved by dismissal, pre-prosecution diversion program or conditional discharge or conviction that does not require DNA collection. Sections 5 -- Amends Executive Law section 995-b by adding a new subdivision 3-a creating new duties and guidelines for the Commission on Forensic Science. Section 6-10 -- Amends various provisions of the Criminal Procedure Law dealing with the requirement of taking fingerprints in accordance with 160.10 to also include a requirement for taking a DNA sample appropriate for DNA testing. Section 11 -- Amends section 160.10 of the Criminal Procedure Law to require a DNA sample to be taken when a fingerprint is required or permitted to be taken. Section 12 -- Amends section 160.20 of the Criminal Procedure Law to require a DNA analysis sample to be forwarded to a forensic DNA laboratory for testing and analysis and to also include such sample in the state DNA identification index. Section 13 -- Amends section 160.55 of the Criminal Procedure Law to require a DNA analysis sample and records to be taken in addition such requirement for fingerprints. Section 14 -- Establishes the Commission for Exoneration Review. The Commission will review recent cases where convicted defendants were subsequently exonerated by DNA evidence. The section establishes the membership and structure of this Commission. This section also outlines the standards and procedures the Commission shall use when reviewing cases. Finally, this section requires the Commission to release periodic reports to certain state officials. Section 15 -- Amends Criminal Procedure Law section 160.50(1)(d) to establish that the Commission for Exoneration Review will have access to certain records. Section 16 -- Amends Criminal Procedure Law section 190.25(4) by adding a new paragraph (c) to allow the Commission for Exoneration Review to have access to grand jury testimony, evidence and other items related to a Commission inquiry. Section 17 -- Amends Criminal Procedure Law section 240.40 by adding a new subdivision 1-a to establish procedures for using DNA evidence in court. Section 18 -- Amends Criminal Procedure Law section 440.30(l-a)(a) to outline procedures for a defendant to request a DNA test or comparison. Section 19 -- Amends Penal Law section 65.10 by adding a new subdivision 4-b. States that a court shall require, as a condition for certain sentences, that the convicted individual provide a DNA sample. Section 20 -- Amends Court of Claims Act section 8-b to alter what a defendant claiming unjust conviction is able to prove and must prove, by documentary evidence, to a court. Section 21 -- Effective date. EXISTING LAW: Currently, the Executive Law enumerates the offenses for which a person qualifies as a "designated offender" and is thus required to submit a DNA sample for testing and inclusion in the state DNA identification index. This enumeration, while lengthy, is limited to those offenses that are listed. This list includes offenses related to homicide, assault, violent felonies, kidnapping, sexual offenses, endangering the welfare of a child, and other crimes. Criminal Procedure Law, through section 160.10, requires that fingerprints be taken for a felony, misdemeanor, and loitering. Additionally, a police officer may take fingerprints under this section to ascertain a person's identity or to determine whether the person's identification is accurate, Also, a police officer may take fingerprints when he or she reasonably suspects the individual is being sought for the commission of another offense. JUSTIFICATION: In April 2004, Glen Shoop was arrested on charges of third degree assault, second degree unlawful imprisonment, and third degree menacing. Mr. Shoop plead guilty in March 2005 to third degree assault. This crime was not an offense for which DNA was required to be taken. In 2006, Mr. Shoop was arrested for rape, criminal sexual act, and unlawful imprisonment. Upon conviction, he was ordered to provide a DNA sample. The existing law at that time did not require DNA to be taken upon arrest. Mr. Shoop plead guilty to first degree unlawful imprisonment on April 10, 2007. Two days before he was sentenced, Mr. Shoop sexually assaulted and murdered Carol Nelson in a heavily wooded area of a Syracuse suburb. Before Ms. Nelson's murder, but after Mr. Shoop provided a DNA sample to authorities, law enforcement was able to determine that Mr. Shoop's DNA matched DNA connected with an unsolved rape that occurred in East Syracuse in 2000. Because Mr. Shoop was not required to provide a DNA sample for third degree assault in 2004, law enforcement was unable to connect him to the 2000 unsolved rape. Therefore, he was free to perpetrate another crime in 2006 as well as the murder of Ms. Nelson. In 2006, had Mr. Shoop been required to provide DNA upon arrest, rather than conviction, law enforcement would have connected him to the 2000 unsolved rape and he would not have been free to commit the murder of Carol Nelson. The crimes subsequent to the 2004 arrest, including the murder of Carol Nelson, could have been prevented had two flaws not existed: 1) the limited number of offenses for which DNA would be taken, and 2) the requirement that a DNA sample be provided upon conviction, rather than upon arrest, as is done with fingerprints. The proposed legislation addresses both of these flaws directly by expanding the number of offenses for which DNA must be taken and by requiring law enforcement to take a DNA sample upon arrest, rather than upon a later conviction. LEGISLATIVE HISTORY: 2007-08: S.6726A/A.9974-A FISCAL IMPLICATIONS: This legislation was projected to cost $55-65 million for the 2008-09 year. EFFECTIVE DATE: This act shall take effect on November 1, 2011; with provisions.
2011-S2857B (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
2857--B
Cal. No. 581
2011-2012 Regular Sessions
I N S E N A T E
February 2, 2011
___________
Introduced by Sens. DeFRANCISCO, GRIFFO, LARKIN, YOUNG -- read twice and
ordered printed, and when printed to be committed to the Committee on
Finance -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading -- again
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the executive law and the criminal procedure law, in
relation to collection of DNA samples from designated offenders; to
amend the executive law, in relation to collection and preservation of
biological evidence; to establish a commission for exoneration review;
to amend the criminal procedure law, in relation to access by defend-
ants to DNA evidence, and procedures for consideration of post-convic-
tion relief; to amend the penal law, in relation to conditions of
probation and conditional discharge; and to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment; and
providing for the repeal of certain provisions upon expiration thereof
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 and paragraph (f) as amended
by chapter 405 of the laws of 2010, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03787-04-1
S. 2857--B 2
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
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
S. 2857--B 3
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
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; criminal obstruction of breathing or blood circulation as defined
in section 121.11 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 regard-
less 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
S. 2857--B 4
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; endan-
gering the welfare of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR
WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED
OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL
PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL
OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE-
DURE LAW FOR ANY SUCH OFFENSE, 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, UNLESS SUCH DESIGNATED OFFENDER HAS
PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX.
(B) 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.
(C) 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.
(D) 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.
(E) 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 3. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
S 995-f. Penalties. 1. Any person who (a) intentionally discloses a
DNA record, or the results of a forensic DNA test or analysis, to an
individual or agency other than one authorized to have access to such
records pursuant to this article or (b) intentionally uses or receives
DNA records, or the results of a forensic DNA test or analysis, for
purposes other than those authorized pursuant to this article or (c) any
person who knowingly tampers or attempts to tamper with any DNA sample
or the collection container without lawful authority shall be guilty of
a class E felony.
2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION
WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT
S. 2857--B 5
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.
S 4. Subdivision 4 of section 995-c of the executive law, as amended
by section 104 of subpart B of part C of chapter 62 of the laws of 2011,
is amended to read as follows:
4. The commissioner of the division of criminal justice services, in
consultation with the commission, the commissioner of health, the direc-
tor of the office of probation and correctional alternatives and the
department of corrections and community supervision, shall promulgate
rules and regulations governing the procedures for notifying designated
offenders of the requirements of this section. THE COMMISSIONER OF THE
DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND
REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPROPRIATE
FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX
OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
S 4-a. 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
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 PARAGRAPH (B) OF SUBDIVISION THREE OF THIS SECTION,
S. 2857--B 6
or pursuant to a warrant or order of a court, has provided a sample for
DNA testing in connection with the investigation, ARREST 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 WAS COMMENCED against the
individual relating to such crime [resulted in a conviction that was
subsequently reversed or vacated, or for which the individual was grant-
ed a pardon pursuant to article two-A of this chapter, such individual
may apply to the supreme court or the court in which the judgment of
conviction was originally entered for an order directing the expungement
of any DNA record and any samples, analyses, or other documents relating
to the DNA testing of such individual in connection with the investi-
gation or prosecution of such crime. A copy of such application shall be
served on the district attorney and an order directing expungement may
be granted if the court finds that the individual has satisfied the
conditions of one of the subparagraphs of this paragraph; that if a
judgment of conviction was reversed or vacated, all appeals relating
thereto have been concluded and the individual will not be retried, or,
if a retrial has 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 expungement of any DNA record and any
samples, analyses or other documents relating to the DNA testing of such
individual is issued] WHICH WAS RESOLVED BY A DISMISSAL, SUCCESSFUL
COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM OR CONDITIONAL
DISCHARGE OR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION PURSUANT TO
SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTICLE,
THE DNA RECORD SHALL BE EXPUNGED FROM THE STATE DNA IDENTIFICATION
INDEX. AN INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD AND ANY
SAMPLES, ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH
INDIVIDUAL BY PROVIDING THE FOLLOWING MATERIALS TO THE DIVISION OF CRIM-
INAL JUSTICE SERVICES:
(1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
(2) A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A
PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE OR NON-QUA-
LIFYING CONVICTION OR ACQUITTAL; AND
(3) A SWORN STATEMENT 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, NON-QUALIFYING CONVICTION
EXCLUDED FROM DNA COLLECTION PURSUANT TO SECTION NINE HUNDRED
NINETY-FIVE OF THIS ARTICLE OR ACQUITTAL OCCURRED; NO QUALIFYING 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 THAT EXPUNGEMENT WILL
NOT ADVERSELY AFFECT THE INVESTIGATION OR PROSECUTION OF SOME OTHER
PERSON OR PERSONS FOR THE CRIME.
(C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF
THIS SUBDIVISION, such record and any samples, analyses, or other docu-
ments shall, at the discretion of the possessor thereof, be destroyed or
returned to such individual or to the attorney who represented him or
her IN THE CRIMINAL ACTION OR in connection with the [application for
the order of] REQUEST FOR expungement.
(D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING CHARGE FOR WHICH
S. 2857--B 7
COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION.
S 5. 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
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 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 OR HER arrest in another county for an
offense specified in subdivision one of section 160.10, is released by a
local criminal court of such other county on his OR HER own recognizance
or on bail for his OR HER 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
OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate officer or agency, and that he OR SHE 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, direct
that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
DNA TESTING TAKEN by the appropriate police officer or agency, and that
S. 2857--B 8
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, 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, direct that the defend-
ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN by the appropriate police officer or agency and that he OR SHE
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 defendant, to be finger-
printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the
appropriate police officer or agency and the court must also direct that
the defendant appear at an appropriate designated time and place for
such purpose, if the defendant is convicted of any offense specified in
subdivision one of section 160.10.
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, cause such person to be
fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 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 HER or cause him OR HER to be brought before a local
criminal court, as provided in section 100.55 and subdivision one of
section 140.20, 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 subdivi-
sion one of section 160.10, the arrested person must be fingerprinted
[and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
as therein provided. In order to execute the required post-arrest func-
tions, such arresting peace officer may perform such functions himself
OR HERSELF, or he OR SHE may enlist the aid of a police officer for the
performance thereof in the manner provided in subdivision one of section
140.20.
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, the
court must, if an offense charged in the accusatory instrument is one
S. 2857--B 9
specified in subdivision one of section 160.10, direct that the defend-
ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
by the appropriate police officer or agency, and that he OR SHE appear
at an appropriate designated time and place for such purpose.
S 11. The section heading of section 160.10 of the criminal procedure
law, as amended by chapter 762 of the laws of 1971, is amended and a new
subdivision 5 is added to read as follows:
Fingerprinting AND DNA ANALYSIS; duties of police with respect there-
to.
5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO
SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO
SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR
DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED.
(B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN
THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB-
LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES.
(C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE
HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
S 12. 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,
the appropriate police officer or agency must without unnecessary delay
forward two copies of such fingerprints to the division of criminal
justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A
FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND
INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH
SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE
LAW.
S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph (a) as amended by chapter 476 of the
laws of 2009 and paragraph (b) 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, 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. 2857--B 10
(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 14. (a) The commission for exoneration review is hereby established
on a temporary basis as an independent agency of the state to study and
review recent cases in which convicted defendants were subsequently
exonerated, whether by DNA evidence or otherwise, to determine why the
process failed in each individual case, and to determine whether these
cases are indicative of systemic flaws that have led to the conviction
and sentencing of innocent people.
(b) The governor shall appoint the chair and ten other members of such
commission, including one appointed on the recommendation of the chief
judge of the court of appeals, one appointed on the recommendation of
the speaker of the assembly, one appointed on the recommendation of the
temporary president of the senate, one appointed on the recommendation
of the minority leader of the senate, and one appointed on the recommen-
dation of the minority leader of the assembly. If any vacancy occurs it
shall be filled in the manner provided for the original appointment to
the vacated seat.
(c) No member of the commission shall be disqualified from holding any
public office or employment, nor shall he or she forfeit any such office
or employment, by reason of his or her appointment pursuant to this
section.
(d) The commission shall meet as often as its chair, or at least five
of its members, shall determine to be necessary. Six members shall
constitute a quorum, and except as otherwise provided in this section,
affirmative decisions of the commission shall require the concurrence of
seven members.
(e) The members of the commission shall serve without salary or other
compensation, but shall be entitled to receive actual and necessary
expenses incurred in the discharge of their duties pursuant to this
section.
(f) The commission shall review criminal or juvenile cases in which
the defendant or respondent was sentenced but subsequently exonerated.
The purpose of such review is to consider whether experience in such
cases provides useful information about possible reforms that could
enhance safeguards, make improvements in the way that law enforcement
agencies and the criminal justice system function, and protect against
future convictions of innocent persons. Such possible reforms may
include but are not limited to the areas of:
(1) investigative techniques that led to the arrest, identification,
and conviction of the innocent persons;
(2) issues relating to false confessions, including whether the
recording of interrogations should be mandated;
(3) trial processes and procedures that may have contributed to
convictions of innocent persons;
(4) any conduct of prosecutors, defense counsels, or courts that may
have contributed to convictions of innocent persons;
S. 2857--B 11
(5) issues relating to the provision of counsel to indigent defend-
ants, including whether counsel are adequately trained, compensated, and
provided with appropriate resources for investigations; and
(6) failures in the appellate or post-conviction process that resulted
in wrongful convictions not being discovered or corrected at an earlier
time.
(g) The commissioner of criminal justice services shall identify cases
in which convictions were set aside and it appears reasonably likely
that the person convicted was innocent of the crimes charged, and it
shall submit summaries of such cases to the commission. The commissioner
of criminal justice services shall seek to submit at least all such
cases in which exoneration resulted from DNA evidence, and all such
cases in which there was an exoneration within five years prior to the
effective date of this act. The commission of exoneration review shall
conduct an initial review of each case submitted by the commissioner of
criminal justice services, and may also choose to conduct initial
reviews of other cases. As to each case, the commission shall decide
whether such case warrants detailed review in that (1) it appears highly
likely that the person convicted was actually innocent of the crimes
charged, and (2) there appear to be features of the case that may
provide useful information without possible reforms.
(h) When the commission for exoneration review decides that a case
warrants detailed review, the commissioner of criminal justice services
shall compile records and other information relating to that case, and
may solicit comments or analyses by experts in relevant fields.
Notwithstanding any other provision of law, the commissioner of criminal
justice services may request and shall receive from any court, depart-
ment, division, board, bureau, commission or other agency of the state
or political subdivision thereof, or any public authority, such assist-
ance, records and data as will enable it effectively to carry out its
duties. The commissioner of criminal justice services shall submit such
records, information, comments, and analyses to the commission of exon-
eration review. Confidential and sensitive material, such as certain
information relating to victims and confidential informants, may be
redacted as appropriate. The commission for exoneration review may
conduct its detailed review on the basis of the materials submitted, or
it may request the commissioner of criminal justice services to compile
and submit further specified kinds of information about the case.
(i) The commission for exoneration review shall make available an
annual report detailing, at a minimum, the number of cases submitted by
the commissioner of criminal justice services, the number of cases
chosen for detailed review, and the number of detailed reviews
completed. The report shall include any findings of fact and recommenda-
tions for reform that may have been adopted by the commission since its
last report. Recommendations that are not adopted by the commission but
obtain the concurrence of at least four members shall be included in the
annual report as proposals for consideration. In addition to the annual
report, the commission may decide to issue other reports containing
findings of fact and/or recommendations for reform. All reports issued
by the commission shall be made available to the public and delivered to
the governor, the chief judge of the court of appeals, the temporary
president of the senate, and the speaker of the assembly.
S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
procedure law, as amended by section 73 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
S. 2857--B 12
(d) such records shall be made available to the person accused or to
such person's designated agent, and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
enforcement agency upon ex parte motion in any superior court, if such
agency demonstrates to the satisfaction of the court that justice
requires that such records be made available to it, or (iii) any state
or local officer or agency with responsibility for the issuance of
licenses to possess guns, when the accused has made application for such
a license, or (iv) the New York state department of corrections and
community supervision when the accused is on parole supervision as a
result of conditional release or a parole release granted by the New
York state board of parole, and the arrest which is the subject of the
inquiry is one which occurred while the accused was under such super-
vision or (v) any prospective employer of a police officer or peace
officer as those terms are defined in subdivisions thirty-three and
thirty-four of section 1.20 of this chapter, in relation to an applica-
tion for employment as a police officer or peace officer; provided,
however, that every person who is an applicant for the position of
police officer or peace officer shall be furnished with a copy of all
records obtained under this paragraph and afforded an opportunity to
make an explanation thereto, or (vi) the probation department responsi-
ble for supervision of the accused when the arrest which is the subject
of the inquiry is one which occurred while the accused was under such
supervision, OR (VII) THE COMMISSION FOR EXONERATION REVIEW; and
S 16. Subdivision 4 of section 190.25 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI-
MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND
JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION
REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS-
SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
S 17. 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. 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
S. 2857--B 13
THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER
REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON.
S 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal procedure law, as amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
(a) Where the defendant's motion requests the performance of a foren-
sic DNA test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA") was secured
in connection with the [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, and if the results had been admitted in the trial result-
ing 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 DETERMINATION THAT IF THE RESULTS HAD BEEN
AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT
THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG
OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE
DEFENDANT'S PLEA OF GUILTY.
(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 MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE
DERIVED FROM SPECIFIED 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 CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE
MOTION FOR SUCH A COMPARISON, IT 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 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 19. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
TY-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.
S 20. 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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
S. 2857--B 14
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) 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 (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
APPLICATION TO CLAIMANT'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 has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement 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 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) 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 (E) THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
APPLICATION TO CLAIMANT'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 21. This act shall take effect November 1, 2011; provided that:
(a) the amendments to article 49-B of the executive law, made by
sections one and two of this act, and the amendments to the criminal
procedure law, made by sections six, seven, eight, nine, ten, eleven,
twelve and thirteen of this act, shall apply to designated offenses
committed on or after the effective date of this act; and to designated
offenses committed prior to such effective date where either the crimi-
nal proceeding arising out of the commission of such offense is pending
S. 2857--B 15
on the effective date of this act or the service of the sentence imposed
upon conviction of the designated offense has not been completed prior
to such effective date; and to any person adjudicated a youthful offen-
der for the commission of a designated offense committed prior to the
effective date of this act where service of the sentence imposed upon
adjudication as a youthful offender has not been completed prior to such
effective date; and to any person required to register as a sex offender
pursuant to article 6-C of the correction law on or after the effective
date of this act; and
(b) sections fourteen, fifteen and sixteen of this act shall take
effect April 1, 2012, and shall expire and be deemed repealed September
1, 2015.
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