NY State Bill 2011-S693

Senate Bill S693

2011-2012 Legislative Session

Relates to the definition of and mandatory DNA identification of designated offenders; appropriation

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 26, 2012	print number 693a
Jan 26, 2012	amend and recommit to finance
Jan 04, 2012	referred to finance
Jan 05, 2011	referred to finance

Bill Amendments

Original

A (Active)

2011-S693 - Details

Current Committee:: Senate Finance
Law Section:: Appropriations
Laws Affected:: Amd §§995 & 995-c, Exec L; amd §65.10, add §270.40, Pen L
Versions Introduced in 2009-2010 Legislative Session:: S8163

2011-S693 - Summary

Relates to the definition of and mandatory DNA identification of designated offenders; appropriates funds therefor.

2011-S693 - Sponsor Memo

                                BILL NUMBER:S693

TITLE OF BILL:

An act
to amend the executive law, in relation to the definition of and DNA
designation of designated offenders; and to amend the penal law, in
relation to DNA identification of designated offenders; and
making an appropriation therefor

PURPOSE:

This bill would expand the number of offenders who must submit DNA
samples to include all individuals convicted of a Penal Law felony or
misdemeanor, adjudicated a Youthful Offender (YO), or required to
register as sex offenders.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Executive Law § 995(7) to require
that every individual convicted of a Penal Law felony or misdemeanor,
adjudicated a youthful offender for a Penal Law crime or required to
register as a sex offender must provide a DNA sample.

Section 2 of the bill would amend Executive Law § 993-c(3) to clarify
who, from the various criminal justice agencies in the State, is

responsible for the collection of DNA samples from designated
offenders.

Section 3 of the bill would add a new subdivision 4-b to Penal Law
65.10 to mandate that as part of any sentence of probation or
conditional discharge, a court must require submission of a DNA
sample from designated offenders.

Section 4 of the bill would add a new Penal Law § 270.40 to create the
crime of failure to submit a DNA sample, and would designate this
crime as a Class A misdemeanor.

Section 5 of the bill would provide a $400,000 appropriation for the
Divisions of State Police and Criminal Justice Services to implement
the bill.

Section 6 of the bill would provide an effective date of January 1, 2012.

EXISTING LAW:

DNA samples are currently collected from persons convicted of some,
but not all, Penal Law crimes. The list of Penal Law crimes subject
to collection has been expanded on
three separate occasions, but most Penal Law misdemeanor convictions
remain outside the scope of collection. Moreover, there is currently
no DNA collection from persons adjudicated youthful offenders, or
from registered sex offenders whose crimes, at the time of
conviction, did not require that a DNA sample be submitted. In
addition, existing law does not make clear which officials are
responsible for collecting DNA samples in various cases, nor does it


require that defendants provide DNA samples as a condition of
probation or conditional discharge. Moreover, it is not currently an
offense to refuse to provide a DNA sample - even when doing so is
required by law.

STATEMENT IN SUPPORT:

New York's DNA Databank began limited operations in 1996, when
individuals convicted of homicide and certain sex-related crimes were
required to submit DNA samples. Since then, the Databank has become
one of the State's most powerful and accurate crime-fighting tools.
There have been more than 7,900 hits against the Databank to date,
and the Databank has been used to assist in more than 9,900 law
enforcement investigations.

The number of crimes for which a sample must be given was expanded in
1999, 2004, and 2006, but only 35 misdemeanors are currently DNA
eligible and only 46 percent of individuals convicted of a Penal Law
offense in New York are currently required to give a sample. At least
200 misdemeanors, such as certain arsons (fifth degree, attempted
fourth degree), certain conspiracy as a hate crime offenses,
trespassing and menacing as hate crimes, fourth-degree criminal
possession of a weapon, second degree coercion, seventh degree
criminal possession of a controlled substance, second degree
aggravated harassment, second-degree promoting prisoners with
contraband, and unlawfully dealing with a child, are still not DNA
eligible crimes.

Based on New York's prior experiences with expansion of the Databank,
which demonstrated that inclusion of additional DNA samples is a
useful tool In fighting and preventing crime and exonerating the
innocent, this further expansion will assuredly result in more cases
being solved, more crimes being prevented and more opportunities for
convicted offenders to establish their innocence. Evidence has shown
that offenders do not specialize in one type of crime, and that
collection of samples from offenders convicted of relatively minor
offenses can solve very serious crimes. For example:

* Of the 3,058 offenders linked to sexual assault cases through DNA,
89 percent were in the Databank for a non-sex-related crime.

* Of the 3,756 offenders linked to homicide and sexual assault cases,
665 were in the Databank for a drug offense (18 percent); 394 for a
burglary offense (11 percent) and 206 for petit larceny (6 percent).

In case after case, DNA taken for a relatively minor or non-violent
crime has been used to solve a murder and take dangerous criminals
off the street. Here are just a few examples of what can be
accomplished through the power of DNA:

* In 2006, Dennis Sweeney pleaded guilty to stealing wallets and
credit cards.
DNA taken from Sweeney as a result of his fourth-degree grand larceny
conviction linked him to a 2004 murder and attempted murder. He is
now serving a life sentence, convicted after trial of murder and a
laundry list of other felonies.


* In December 2003, a man was murdered during a street robbery in the
Bronx.
Although DNA was taken from the murder scene, the crime remained
unsolved for six years. In December 2008, Miguel Torres pleaded
guilty to assault for menacing a traffic agent, and his DNA was
taken. Torres's DNA matched the DNA from the murder scene, and Tones
was charged with the 2003 murder.

* In June 2009, the manager of a convenience store in Chenango County
discovered that a donation can containing approximately $50 was
missing from the store.
The store's security tapes were reviewed and a man was observed
removing the donation can while purchasing beer; he was identified
from the tape as Joey Bethea and was arrested for petit larceny. It
was determined that Bethea owed a DNA sample due to a minor 2005
conviction for which he had received a conditional discharge.
Bethea's DNA connected him to an unsolved, 20-year-old rape and
homicide in Nassau County and he has now been charged with those crimes.

* From January 2000 through January 2004, the identical DNA was
matched to three violent felonies: the January 2000 rape of an
elderly woman in her home;
the March 2000 rape and murder of another a woman; and the January
2004 beating and murder of a man in his home. In March 2005, Raymon
McGill was convicted of an attempted robbery that required him to
provide a DNA sample for the Databank. His DNA was matched to the DNA
recovered at the scenes from the previous three crimes. McGill had
been arrested and convicted for crimes dating back to 1999, including
petit larceny. However, his conviction for those crimes at that time
did not require him to provide his DNA. Had his DNA been in the
Databank as a result of his 1999 petit larceny conviction, he would
have been identified in the January 2000 rape and the subsequent
murders could have been prevented.

In addition to solving crimes, DNA evidence has become a powerful tool
to exonerate innocent people who have been wrongly convicted. There
have been at least 15 individuals who have been exonerated in New
York State through DNA evidence.
Logically, the more samples there are in the Databank, the more likely
it will be that those who are wrongly convicted and imprisoned will
be able to prove - definitively that they are innocent. Here are three
compelling examples on exonerations:

* In November 1989, the body of a 15-year-old Peekskill High School
sophomore was discovered in a wooded area near Hill Crest Elementary
School in Peekskill.
She had been strangled and suffered blunt force trauma to her head.
Jeffrey
Deskovic, a high school sophomore and classmate of the victim, became
a suspect because he was late to school the day after she
disappeared, and he seemed overly distraught at her death. Mr.
Deskovic confessed to the murder, was convicted after a jury trial
and was sentenced to 15 years to life in prison. Mr. Deskovic served
more than 15 years before his case was re-examined in 2006. DNA from
the rape kit was tested against the State DNA Databank and, in
September 2006, the DNA was matched to convicted murderer Steven
Cunningham, who had provided a DNA sample for a 1993 murder


conviction. Cunningham subsequently confessed to the crime for which
Deskovic was convicted.

* Michael Mercer was exonerated after spending 12 years in prison for
a 1991 rape conviction. A search of the Databank linked evidence of
the rape for which Mr.
Mercer was convicted to Arthur Brown, who was serving a life sentence
for gunpoint robberies and rapes.

* For three decades, Erie County was terrorized by a criminal known as
the "Bike Path Rapist." This man was believed responsible for
numerous rapes, as well as the murders of three women. In 1984,
Anthony Capozzi was convicted of two of these rapes based on
eyewitness identification and he was sentenced to 25 years in prison.
While Mr. Capozzi was in prison, additional rapes and murders took
place. Joan Diver was murdered on a local bike path in 2006 and a
task force was formed to investigate the crime. Investigators paid
special attention to the similarities to prior rapes and murders,
including the two for which Capozzi was imprisoned. The investigation
led the task force to suspect Altemio Sanchez.
Ultimately, Mr. Sanchez's DNA was collected from an abandoned water
glass in a restaurant and, after testing, was found to match the DNA
profile from a drop of sweat found in Joan Diver's car. All of the
evidence in police custody from Mr.
Capozzi's trial had been destroyed after his appeal was denied;
however, forensic DNA tests of the clinical slides still maintained
at the hospital of the two victims for which Capozzi was still
serving his sentence matched the DNA profile of Altemio Sanchez. In
2007, after serving 22 years in prison, Anthony Capozzi was
exonerated and set free based on the new DNA evidence. In August
2007, Altemio Sanchez pleaded guilty to the murder of three women.

The foregoing examples prove that collecting DNA solves crimes,
prevents future crimes and exonerates the innocent. This bill will
further these important goals by expanding the circumstances under
which offenders must provide DNA samples.

This bill will also help ensure that those offenders who are required
to provide DNA samples actually do so, and in a timely manner. It is
best to obtain a DNA sample as soon as possible after conviction. Any
time lost before obtaining a sample could allow an offender to
continue victimizing innocent individuals. Thus, the bill
specifically provides who is responsible for sample collection. For
designated offenders who are sentenced to imprisonment, the
appropriate correction officials are responsible for ensuring sample
collection. For those sentenced to a tem1 of probation, the
offender's DNA sample must be taken by the probation department
supervising the offender, and for
sex offenders, the probation department in the county in which the
offender resides is responsible. Currently, there is not a specific
duty imposed on probation to take such samples and this bill should
increase collections of those on probation from 95% to 100%
statewide. It also will ensure that all those on the Sex Offender
Registry will have a sample on file.

However, the most difficult collections are those involving a
non-incarcerative/non-supervised sentence, such as instances of


conditional discharge, time-served and fines. Often, such offenders
simply leave court without being ordered to appear before a designated
entity and provide a sample. These sentences cause much confusion
with regard to who is responsible for sample collection and 28% of
offenders sentenced to such sentences fail to provide samples because
of this gap in the law. Having a statewide process that requires
courts to order offenders to a sheriffs office and for that office to
collect the sample will remedy this problem. In addition, courts
would be able to issue warrants for those offenders that do not
follow the court's order.

Finally, it is imperative that failure to provide a DNA sample be a
crime.
Offenders often refuse to provide a sample and if they are no longer
under sentence, there is little effective recourse against them.
Offenders should not be able to flout the law and effectively hinder
the State's ability ~o solve other crimes to which the offender may
be connected by simply refusing to provide a mandated DNA sample.

This bill is the most efficient and cost-effective way to expand DNA
testing and make New York State a safer place.

BUDGET IMPLICATIONS:

This bill contains a $400,000 appropriation to cover implementation
costs for the Divisions of State Police and Criminal Justice Services
in Fiscal Year 2011-12. The full actual cost of this legislation is
estimated at $ 1-6 million.

LEGISLATIVE HISTORY:

2010:  S.8163 (Governor's Program Bill)

EFFECTIVE DATE:

This bill would become effective on January 1, 2012; however, the
amendments made in section 1 of this bill would only apply to
designated offenses committed on or after the effective date, and the
amendments made by section 1 relating to persons required to register
as sex offenders would apply to persons registered as sex offenders
prior to, on, and after the effective date.

2011-S693 - Bill Text download pdf

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

                                   693

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the executive law, in relation to the definition of  and
  DNA  designation  of designated offenders; and to amend the penal law,
  in relation to DNA identification of designated offenders; and  making
  an appropriation therefor

  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, 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
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

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

                                                           LBD04260-01-1

S. 693                              2

attempt to commit an offense defined in such article relating to terror-
ism  which  is  a  felony;  or  (b)  criminal possession of a controlled
substance in the first degree, as defined in section 220.21 of the penal
law; criminal possession of a controlled substance in the second degree,
as  defined  in  section  220.18  of  the  penal law; criminal sale of a
controlled substance, as defined in article 220 of  the  penal  law;  or
grand  larceny  in  the fourth degree, as defined in subdivision five of
section 155.30 of the penal  law;  or  (c)  any  misdemeanor  or  felony
defined  as  a sex offense or sexually violent offense pursuant to para-
graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
three of section one hundred sixty-eight-a of the correction law; or (d)
any of the following felonies, or an attempt thereof where such  attempt
is a felony offense:
  aggravated  assault  upon  a  person  less  than  eleven years old, as
defined in section 120.12 of  the  penal  law;  menacing  in  the  first
degree,  as  defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of  the  penal
law;  stalking in the second degree, as defined in section 120.55 of the
penal law; criminally negligent homicide, as defined in  section  125.10
of  the  penal  law;  vehicular  manslaughter  in  the second degree, as
defined in section 125.12 of the penal law;  vehicular  manslaughter  in
the  first  degree,  as  defined  in  section  125.13  of the penal law;
persistent sexual abuse, as defined in section 130.53 of the penal  law;
aggravated  sexual  abuse  in  the  fourth degree, as defined in section
130.65-a of the penal law; female  genital  mutilation,  as  defined  in
section  130.85  of  the  penal  law;  facilitating a sex offense with a
controlled substance, as defined in section 130.90  of  the  penal  law;
unlawful  imprisonment in the first degree, as defined in section 135.10
of the penal law; custodial interference in the first degree, as defined
in section 135.50 of the penal  law;  criminal  trespass  in  the  first
degree,  as defined in section 140.17 of the penal law; criminal tamper-
ing in the first degree, as defined in section 145.20 of the penal  law;
tampering  with  a  consumer  product in the first degree, as defined in
section 145.45 of the penal law; robbery in the third degree as  defined
in section 160.05 of the penal law; identity theft in the second degree,
as  defined  in  section  190.79 of the penal law; identity theft in the
first degree, as defined in section 190.80 of the penal  law;  promoting
prison  contraband  in the first degree, as defined in section 205.25 of
the penal law; tampering with a witness in the third degree, as  defined
in  section  215.11  of  the  penal law; tampering with a witness in the
second degree, as defined in section 215.12 of the penal law;  tampering
with  a witness in the first degree, as defined in section 215.13 of the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions (b), (c) and (d) of section 215.51 of the  penal  law;  aggravated
criminal  contempt,  as defined in section 215.52 of the penal law; bail
jumping in the second degree, as defined in section 215.56 of the  penal
law;  bail  jumping in the first degree, as defined in section 215.57 of
the penal law; patronizing a prostitute in the second degree, as defined
in section 230.05 of the penal law;  patronizing  a  prostitute  in  the
first  degree,  as defined in section 230.06 of the penal law; promoting
prostitution in the second degree, as defined in section 230.30  of  the
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

S. 693                              3

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-
gering  the  welfare  of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] FELONY DEFINED IN THE  PENAL
LAW OR ANY MISDEMEANOR DEFINED IN THE PENAL LAW, OR A PERSON ADJUDICATED
AND  SENTENCED  AS A YOUTHFUL OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED
TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY SUCH MISDEMEANOR OR FELONY,

S. 693                              4

OR A PERSON WHO IS REQUIRED TO REGISTER AS A SEX  OFFENDER  PURSUANT  TO
ARTICLE SIX-C OF THE CORRECTION LAW.
  S  2.  Subdivision 3 of section 995-c of the executive law, as amended
by chapter 576 of the laws of 2004, is amended to read as follows:
  3. (A) Any designated offender [subsequent to conviction and  sentenc-
ing  for  a crime specified in subdivision seven of section nine hundred
ninety-five of this article,] shall be  required  to  provide  a  sample
appropriate  for DNA testing to determine identification characteristics
specific to such person and to be included in a state DNA identification
index pursuant to this article.
  (B) (I) IN THE CASE OF A DESIGNATED OFFENDER WHO  IS  SENTENCED  TO  A
TERM OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERV-
ANT TO WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
  (II)  IN  THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF PROBATION, INCLUDING A SENTENCE OF PROBATION IMPOSED  IN  CONJUNCTION
WITH  A  SENTENCE  OF  IMPRISONMENT  WHEN  A SAMPLE HAS NOT ALREADY BEEN
TAKEN, SUCH SAMPLE SHALL BE COLLECTED BY THE PROBATION DEPARTMENT SUPER-
VISING THE DESIGNATED OFFENDER.
  (III) IN THE CASE OF A DESIGNATED OFFENDER  WHOSE  SENTENCE  DOES  NOT
INCLUDE EITHER A TERM OF IMPRISONMENT OR A TERM OF PROBATION, THE COURT,
OR IN THE CASE OF A PERSON REGISTERED AS A SEX OFFENDER ON OR BEFORE THE
EFFECTIVE  DATE OF THIS SUBPARAGRAPH WHO HAS NOT HAD A DNA SAMPLE TAKEN,
THE DIVISION OF CRIMINAL JUSTICE SERVICES, SHALL ORDER THAT  THE  DESIG-
NATED  OFFENDER  REPORT  TO AN OFFICE OF THE SHERIFF OF THAT COUNTY, AND
WHEN THE DESIGNATED OFFENDER DOES SO, SUCH SAMPLE SHALL BE COLLECTED  BY
THE SHERIFF'S OFFICE.
  (IV)  IN  THE  CASE  OF  A  DESIGNATED SEX OFFENDER WHO IS REQUIRED TO
REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF  THE  CORRECTION
LAW AS A RESULT OF A CONVICTION OBTAINED IN A FOREIGN JURISDICTION ON OR
AFTER  THE  EFFECTIVE  DATE  OF  THIS SUBPARAGRAPH, SUCH SAMPLE SHALL BE
COLLECTED BY THE PROBATION DEPARTMENT OF THE COUNTY IN WHICH THE  DESIG-
NATED OFFENDER RESIDES.
  (V)  NOTHING  IN THIS PARAGRAPH SHALL PROHIBIT THE COLLECTION OF A DNA
SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR  LOCAL
CORRECTION  OFFICIAL  OR  EMPLOYEE,  PROBATION  OFFICER, PAROLE OFFICER,
POLICE OFFICER, PEACE OFFICER, OR OTHER  PUBLIC  SERVANT  WHO  HAS  BEEN
NOTIFIED  BY  THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT SUCH DESIG-
NATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE. UPON NOTIFICATION  BY  THE
DIVISION OF CRIMINAL JUSTICE SERVICES THAT A DESIGNATED OFFENDER HAS NOT
PROVIDED  A  DNA  SAMPLE, SUCH COURT OFFICIAL, STATE OR LOCAL CORRECTION
OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, POLICE OFFICER,
PEACE OFFICER OR OTHER PUBLIC SERVANT SHALL COLLECT THE DNA SAMPLE.
  S 3. Section 65.10 of the penal law is amended by adding a new  subdi-
vision 4-b to read as follows:
  4-B.  MANDATORY  DNA  CONDITION  FOR  DESIGNATED OFFENDERS AND CERTAIN
OTHER OFFENDERS. WHEN IMPOSING A SENTENCE OF  PROBATION  OR  CONDITIONAL
DISCHARGE  UPON  A  PERSON  DEFINED AS A DESIGNATED OFFENDER PURSUANT TO
SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF  THE  EXECUTIVE
LAW,  THE  COURT SHALL REQUIRE AS A MANDATORY CONDITION OF SUCH SENTENCE
THAT SUCH PERSON PROVIDE A  DNA  SAMPLE  AS  REQUIRED  BY  SECTION  NINE
HUNDRED  NINETY-FIVE  OF THE EXECUTIVE LAW.  NOTHING IN THIS SUBDIVISION
SHALL BE CONSTRUED AS PROHIBITING A DNA CONDITION UPON ANY OTHER  OFFEN-
DER WHERE AUTHORIZED BY ARTICLE FORTY-NINE-B OF THE EXECUTIVE LAW.
  S  4.  The penal law is amended by adding a new section 270.40 to read
as follows:
S 270.40 FAILURE TO PROVIDE A DNA SAMPLE.

S. 693                              5

  A PERSON IS GUILTY OF FAILURE TO PROVIDE A DNA SAMPLE WHEN HE  OR  SHE
(A) IS A DESIGNATED OFFENDER, AS DEFINED IN SUBDIVISION SEVEN OF SECTION
NINE  HUNDRED  NINETY-FIVE  OF  THE EXECUTIVE LAW, REQUIRED TO PROVIDE A
SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT TO THE PROVISIONS OF  SUBDI-
VISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW;
(B)  HAS BEEN NOTIFIED BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR
EMPLOYEE, PAROLE OFFICER, PROBATION OFFICER, POLICE OFFICER, PEACE OFFI-
CER OR OTHER PUBLIC SERVANT OF THE OBLIGATION TO PROVIDE SUCH A  SAMPLE;
AND  (C)  UPON  REQUEST  TO PROVIDE SUCH SAMPLE MADE BY A PUBLIC SERVANT
AUTHORIZED TO COLLECT IT, FAILS TO PROVIDE SUCH A SAMPLE.
  FAILURE TO PROVIDE A DNA SAMPLE IS A CLASS A MISDEMEANOR.
  S 5. The sum of four hundred thousand dollars ($400,000), or  so  much
thereof  as  may be necessary, is hereby appropriated to the division of
criminal justice services and the division of state police  out  of  any
monies  of  the  state treasury in the general fund to the credit of the
state purposes account, not otherwise appropriated, for the  purpose  of
carrying out the provisions of this act. Such monies shall be made paya-
ble on the audit and warrant of the comptroller.
  S  6.  This  act shall take effect January 1, 2012; provided, however,
that the amendments to subdivision 7 of section 995 of the executive law
made by section one of this  act  shall  apply  to  designated  offenses
committed  on  or  after such effective date; and provided, further that
the amendments to subdivision 7 of section 995 of the executive law made
by section one of this act relating to  a  person  who  is  required  to
register  as  a sex offender pursuant to article six-C of the correction
law shall apply to a person registered as a sex offender prior  to,  on,
or after such effective date.

2011-S693A (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Appropriations
Laws Affected:: Amd §§995 & 995-c, Exec L; amd §65.10, add §270.40, Pen L
Versions Introduced in 2009-2010 Legislative Session:: S8163

2011-S693A (ACTIVE) - Summary

Relates to the definition of and mandatory DNA identification of designated offenders; appropriates funds therefor.

2011-S693A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S693A

TITLE OF BILL:

An act
to amend the executive law, in relation to the definition of and DNA
designation of designated offenders; and to amend the penal law, in
relation to DNA identification of designated offenders; and
making an appropriation therefor

PURPOSE:

This bill would expand the number of offenders who must submit DNA
samples to include all individuals convicted of a Penal Law felony or
misdemeanor, adjudicated a Youthful Offender (YO), or required to
register as sex offenders.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Executive Law § 995(7) to require
that every individual convicted of a Penal Law felony or misdemeanor,
adjudicated a youthful offender for a Penal Law crime or required to
register as a sex offender must provide a DNA sample.

Section 2 of the bill would amend Executive Law § 993-c(3) to clarify
who, from the various criminal justice agencies in the State, is

responsible for the collection of DNA samples from designated
offenders.

Section 3 of the bill would add a new subdivision 4-b to Penal Law
65.10 to mandate that as part of any sentence of probation or
conditional discharge, a court must require submission of a DNA
sample from designated offenders.

Section 4 of the bill would add a new Penal Law § 270.40 to create the
crime of failure to submit a DNA sample, and would designate this
crime as a Class A misdemeanor.

Section 5 of the bill would provide a $400,000 appropriation for the
Divisions of State Police and Criminal Justice Services to implement
the bill.

Section 6 of the bill would provide an effective date of January 1,
2013.

EXISTING LAW:

DNA samples are currently collected from persons convicted of some,
but not all, Penal Law crimes. The list of Penal Law crimes subject
to collection has been expanded on three separate occasions, but most
Penal Law misdemeanor convictions remain outside the scope of
collection.
Moreover, there is currently no DNA collection from persons
adjudicated youthful offenders, or from registered sex offenders
whose crimes, at the time of conviction, did not require that a DNA
sample be submitted.


In addition, existing law does not make clear which officials are
responsible for collecting DNA samples in various cases, nor does it
require that defendants provide DNA samples as a condition of
probation or conditional discharge. Moreover, it is not currently an
offense to refuse to provide a DNA sample - even when doing so is
required by law.

STATEMENT IN SUPPORT:

New York's DNA Databank began limited operations in 1996, when
individuals convicted of homicide and certain sex-related crimes were
required to submit DNA samples. Since then, the Databank has become
one of the State's most powerful and accurate crime-fighting tools.
There have been more than 7,900 hits against the Databank to date,
and the Databank has been used to assist in more than 9,900 law
enforcement investigations.

The number of crimes for which a sample must be given was expanded in
1999, 2004, and 2006, but only 35 misdemeanors are currently DNA
eligible and only 46 percent of individuals convicted of a Penal Law
offense in New York are currently required to give a sample. At least
200 misdemeanors, such as certain arsons (fifth degree, attempted
fourth degree), certain conspiracy as a hate crime offenses,
trespassing and menacing as hate crimes, fourth-degree criminal
possession of a weapon, second degree coercion, seventh degree
criminal possession of a controlled substance, second degree
aggravated harassment, second-degree promoting prisoners with
contraband, and unlawfully dealing with a child, are still not DNA
eligible crimes.

Based on New York's prior experiences with expansion of the Databank,
which demonstrated that inclusion of additional DNA samples is a
useful tool In fighting and preventing crime and exonerating the
innocent, this further expansion will assuredly result in more cases
being solved, more crimes being prevented and more opportunities for
convicted offenders to establish their innocence. Evidence has shown
that offenders do not specialize in one type of crime, and that
collection of samples from offenders convicted of relatively minor
offenses can solve very serious crimes. For example:

* Of the 3,058 offenders linked to sexual assault cases through DNA,
89 percent were in the Databank for a non-sex-related crime.

* Of the 3,756 offenders linked to homicide and sexual assault cases,
665 were in the Databank for a drug offense (18 percent); 394 for a
burglary offense (11 percent) and 206 for petit larceny (6 percent).

In case after case, DNA taken for a relatively minor or non-violent
crime has been used to solve a murder and take dangerous criminals
off the street. Here are just a few examples of what can be
accomplished through the power of DNA:

* In 2006 Dennis Sweeney pleaded guilty to stealing wallets and credit
cards. DNA taken from Sweeney as a result of his fourth-degree grand
larceny conviction linked him to a 2004 murder and attempted murder.
He is now serving a life sentence, convicted after trial of murder
and a laundry list of other felonies.


* In December 2003 a man was murdered during a street robbery in the
Bronx. Although DNA was taken from the murder scene, the crime
remained unsolved for six years. In December 2008, Miguel Torres
pleaded guilty to assault for menacing a traffic agent, and his DNA
was taken. Torres's DNA matched the DNA from the murder scene, and
Tones was charged with the 2003 murder.

* In June 2009, the manager of a convenience store in Chenango County
discovered that a donation can containing approximately $50 was
missing from the store. The store's security tapes were reviewed and
a man was observed removing the donation can while purchasing beer;
he was identified from the tape as Joey Bethea and was arrested for
petit larceny. It was determined that Bethea owed a DNA sample due to
a minor 2005 conviction for which he had received a conditional
discharge. Bethea's DNA connected him to an unsolved, 20-year-old
rape and homicide in Nassau County and he has now been charged with
those crimes.

* From January 2000 through January 2004, the identical DNA was
matched to three violent felonies: the January 2000 rape of an
elderly woman in her home; the March 2000 rape and murder of another
a woman; and the January 2004 beating and murder of a man in his
home. In March 2005, Raymon McGill was convicted of an attempted
robbery that required him to provide a DNA sample for the Databank.
His DNA was matched to the DNA recovered at the scenes from the
previous three crimes. McGill had been arrested and convicted for
crimes dating back to 1999, including petit larceny. However, his
conviction for those crimes at that time did not require him to
provide his DNA. Had his DNA been in the Databank as a result of his
1999 petit larceny conviction, he would have been identified in the
January 2000 rape and the subsequent murders could have been prevented.

In addition to solving crimes, DNA evidence has become a powerful tool
to exonerate innocent people who have been wrongly convicted. There
have been at least 15 individuals who have been exonerated in New
York state through DNA evidence. Logically, the more samples there
are in the Databank, the more likely it will be that those who are
wrongly convicted and imprisoned will be able to prove - definitively
that they are innocent. Here are three compelling examples on
exonerations:

* In November 1989, the body of a 15-year-old Peekskill High School
sophomore was discovered in a wooded area near Hill Crest Elementary
School in Peekskill. She had been strangled and suffered blunt force
trauma to her head. Jeffrey Deskovic, a high school sophomore and
classmate of the victim, became a suspect because he was late to
school the day after she disappeared, and he seemed overly distraught
at her death. Mr. Deskovic confessed to the murder, was convicted
after a jury trial and was sentenced to 15 years to life in prison.
Mr. Deskovic served more than 15 years before his case was
re-examined in 2006. DNA from the rape kit was tested against the
state DNA Databank and, in September 2006, the DNA was matched to
convicted murderer Steven
Cunningham, who had provided a DNA sample for a 1993 murder conviction.
Cunningham subsequently confessed to the crime for which Deskovic was
convicted.


* Michael Mercer was exonerated after spending 12 years in prison for
a 1991 rape conviction. A search of the Databank linked evidence of
the rape for which Mr. Mercer was convicted to Arthur Brown, who was
serving a life sentence for gunpoint robberies and rapes.

* For three decades, Erie County was terrorized by a criminal known as
the "Bike Path Rapist." This man was believed responsible for
numerous rapes, as well as the murders of three women. In 1984,
Anthony Capozzi was convicted of two of these rapes based on
eyewitness identification and he was sentenced to 25 years in prison.
while Mr. Capozzi was in prison, additional rapes and murders took
place. Joan Diver was murdered on a local bike path in 2006 and a
task force was formed to investigate the crime. Investigators paid
special attention to the similarities to prior rapes and murders,
including the two for which Capozzi was imprisoned. The investigation
led the task force to suspect Altemio Sanchez.
Ultimately, Mr. Sanchez's DNA was collected from an abandoned water
glass in a restaurant and, after testing, was found to match the DNA
profile from a drop of sweat found in Joan Diver's car. All of the
evidence in police custody from Mr. Capozzi's trial had been
destroyed after his appeal was denied; however, forensic DNA tests of
the clinical slides still maintained at the hospital of the two
victims for which Capozzi was still serving his sentence matched the
DNA profile of Altemio Sanchez. In 2007, after serving 22 years in
prison, Anthony Capozzi was exonerated and set free based on the new
DNA evidence. In August 2007, Altemio Sanchez pleaded guilty to the
murder of three women.

The foregoing examples prove that collecting DNA solves crimes,
prevents future crimes and exonerates the innocent. This bill will
further these important goals by expanding the circumstances under
which offenders must provide DNA samples.

This bill will also help ensure that those offenders who are required
to provide DNA samples actually do so, and in a timely manner. It is
best to obtain a DNA sample as soon as possible after conviction. Any
time lost before obtaining a sample could allow an offender to
continue victimizing innocent individuals. Thus, the bill
specifically provides who is responsible for sample collection. For
designated offenders who are sentenced to imprisonment, the
appropriate correction officials are responsible for ensuring sample
collection. For those sentenced to a tem1 of probation, the
offender's DNA sample must be taken by the probation department
supervising the offender, and for sex offenders, the probation
department in the county in which the offender resides is
responsible. currently, there is not a specific duty imposed on
probation to take such samples and this bill should increase
collections of those on probation from 95% to 100% statewide. It also
will ensure that all those on the Sex Offender Registry will have a
sample on file.

However, the most difficult collections are those involving a
nonincarcerative/non-supervised sentence, such as instances of
conditional discharge, time-served and fines. Often, such offenders
simply leave court without being ordered to appear before a
designated entity and provide a sample. These sentences cause much
confusion with regard to who is responsible for sample collection and


28% of offenders sentenced
to such sentences fail to provide samples because of this gap in the
law. Having a statewide process that requires courts to order
offenders to a sheriffs office and for that office to collect the
sample will remedy this problem. In addition, courts would be able to
issue warrants for those offenders that do not follow the court's
order.

Finally, it is imperative that failure to provide a DNA sample be a
crime. Offenders often refuse to provide a sample and if they are no
longer under sentence, there is little effective recourse against them.
Offenders should not be able to flout the law and effectively hinder
the State's ability -0 solve other crimes to which the offender may
be connected by simply refusing to provide a mandated DNA sample.

This bill is the most efficient and cost-effective way to expand DNA
testing and make New York state a safer place.

BUDGET IMPLICATIONS:

This bill contains a $400,000 appropriation to cover implementation
costs for the Divisions of State police and criminal Justice Services
in Fiscal Year 2011-12. The full actual cost of this legislation is
estimated at $ 1-6 million.

LEGISLATIVE HISTORY:

2010: S.8163 (Governor's Program Bill)

EFFECTIVE DATE:

This bill would become effective on January 1, 2013; however, the
amendments made in section 1 of this bill would only apply to
designated offenses committed on or after the effective date, and the
amendments made by section 1 relating to persons required to register
as sex offenders would apply to persons registered as sex offenders
prior to, on, and after the effective date.

2011-S693A (ACTIVE) - Bill Text download pdf

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

                                 693--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance -- recommitted  to
  the  Committee  on Finance in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT to amend the executive law, in relation to the definition of and
  DNA designation of designated offenders; and to amend the  penal  law,
  in  relation to DNA identification of designated offenders; and making
  an appropriation therefor

  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, 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
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

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

                                                           LBD04260-03-2

S. 693--A                           2

law,  attempted  burglary  in  the  third  degree, as defined in section
110.00 and section 140.20 of the penal law, a felony defined in  article
four  hundred  ninety  of  the  penal  law  relating to terrorism or any
attempt to commit an offense defined in such article relating to terror-
ism  which  is  a  felony;  or  (b)  criminal possession of a controlled
substance in the first degree, as defined in section 220.21 of the penal
law; criminal possession of a controlled substance in the second degree,
as defined in section 220.18 of  the  penal  law;  criminal  sale  of  a
controlled  substance,  as  defined  in article 220 of the penal law; or
grand larceny in the fourth degree, as defined in  subdivision  five  of
section  155.30  of  the  penal  law;  or  (c) any misdemeanor or felony
defined as a sex offense or sexually violent offense pursuant  to  para-
graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
three of section one hundred sixty-eight-a of the correction law; or (d)
any  of the following felonies, or an attempt thereof where such attempt
is a felony offense:
  aggravated assault upon a  person  less  than  eleven  years  old,  as
defined  in  section  120.12  of  the  penal  law; menacing in the first
degree, as defined in section 120.13 of the penal law;  reckless  endan-
germent  in  the first degree, as defined in section 120.25 of the penal
law; stalking in the second degree, as defined in section 120.55 of  the
penal  law;  criminally negligent homicide, as defined in section 125.10
of the penal law;  vehicular  manslaughter  in  the  second  degree,  as
defined  in  section  125.12 of the penal law; vehicular manslaughter in
the first degree, as  defined  in  section  125.13  of  the  penal  law;
persistent  sexual abuse, as defined in section 130.53 of the penal law;
aggravated sexual abuse in the fourth  degree,  as  defined  in  section
130.65-a  of  the  penal  law;  female genital mutilation, as defined in
section 130.85 of the penal law;  facilitating  a  sex  offense  with  a
controlled  substance,  as  defined  in section 130.90 of the penal law;
unlawful imprisonment in the first degree, as defined in section  135.10
of the penal law; custodial interference in the first degree, as defined
in  section  135.50  of  the  penal  law; criminal trespass in the first
degree, as defined in section 140.17 of the penal law; criminal  tamper-
ing  in the first degree, as defined in section 145.20 of the penal law;
tampering with a consumer product in the first  degree,  as  defined  in
section  145.45 of the penal law; robbery in the third degree as defined
in section 160.05 of the penal law; identity theft in the second degree,
as defined in section 190.79 of the penal law;  identity  theft  in  the
first  degree,  as defined in section 190.80 of the penal law; promoting
prison contraband in the first degree, as defined in section  205.25  of
the  penal law; tampering with a witness in the third degree, as defined
in section 215.11 of the penal law; tampering  with  a  witness  in  the
second  degree, as defined in section 215.12 of the penal law; tampering
with a witness in the first degree, as defined in section 215.13 of  the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions  (b),  (c)  and (d) of section 215.51 of the penal law; aggravated
criminal contempt, as defined in section 215.52 of the penal  law;  bail
jumping  in the second degree, as defined in section 215.56 of the penal
law; bail jumping in the first degree, as defined in section  215.57  of
the penal law; patronizing a prostitute in the second degree, as defined
in  section  230.05  of  the  penal law; patronizing a prostitute in the
first degree, as defined in section 230.06 of the penal  law;  promoting
prostitution  in  the second degree, as defined in section 230.30 of the
penal law; promoting prostitution in the first  degree,  as  defined  in
section  230.32 of the penal law; compelling prostitution, as defined in

S. 693--A                           3

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-
gering  the  welfare  of an incompetent or physically disabled person as
defined in section 260.25 of the penal law] FELONY DEFINED IN THE  PENAL
LAW OR ANY MISDEMEANOR DEFINED IN THE PENAL LAW, OR A PERSON ADJUDICATED

S. 693--A                           4

AND  SENTENCED  AS A YOUTHFUL OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED
TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY SUCH MISDEMEANOR OR FELONY,
OR A PERSON WHO IS REQUIRED TO REGISTER AS A SEX  OFFENDER  PURSUANT  TO
ARTICLE SIX-C OF THE CORRECTION LAW.
  S  2.  Subdivision 3 of section 995-c of the executive law, as amended
by chapter 576 of the laws of 2004, is amended to read as follows:
  3. (A) Any designated offender [subsequent to conviction and  sentenc-
ing  for  a crime specified in subdivision seven of section nine hundred
ninety-five of this article,] shall be  required  to  provide  a  sample
appropriate  for DNA testing to determine identification characteristics
specific to such person and to be included in a state DNA identification
index pursuant to this article.
  (B) (I) IN THE CASE OF A DESIGNATED OFFENDER WHO  IS  SENTENCED  TO  A
TERM OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERV-
ANT TO WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
  (II)  IN  THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF PROBATION, INCLUDING A SENTENCE OF PROBATION IMPOSED  IN  CONJUNCTION
WITH  A  SENTENCE  OF  IMPRISONMENT  WHEN  A SAMPLE HAS NOT ALREADY BEEN
TAKEN, SUCH SAMPLE SHALL BE COLLECTED BY THE PROBATION DEPARTMENT SUPER-
VISING THE DESIGNATED OFFENDER.
  (III) IN THE CASE OF A DESIGNATED OFFENDER  WHOSE  SENTENCE  DOES  NOT
INCLUDE EITHER A TERM OF IMPRISONMENT OR A TERM OF PROBATION, THE COURT,
OR IN THE CASE OF A PERSON REGISTERED AS A SEX OFFENDER ON OR BEFORE THE
EFFECTIVE  DATE OF THIS SUBPARAGRAPH WHO HAS NOT HAD A DNA SAMPLE TAKEN,
THE DIVISION OF CRIMINAL JUSTICE SERVICES, SHALL ORDER THAT  THE  DESIG-
NATED  OFFENDER  REPORT  TO AN OFFICE OF THE SHERIFF OF THAT COUNTY, AND
WHEN THE DESIGNATED OFFENDER DOES SO, SUCH SAMPLE SHALL BE COLLECTED  BY
THE SHERIFF'S OFFICE.
  (IV)  IN  THE  CASE  OF  A  DESIGNATED SEX OFFENDER WHO IS REQUIRED TO
REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF  THE  CORRECTION
LAW AS A RESULT OF A CONVICTION OBTAINED IN A FOREIGN JURISDICTION ON OR
AFTER  THE  EFFECTIVE  DATE  OF  THIS SUBPARAGRAPH, SUCH SAMPLE SHALL BE
COLLECTED BY THE PROBATION DEPARTMENT OF THE COUNTY IN WHICH THE  DESIG-
NATED OFFENDER RESIDES.
  (V)  NOTHING  IN THIS PARAGRAPH SHALL PROHIBIT THE COLLECTION OF A DNA
SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR  LOCAL
CORRECTION  OFFICIAL  OR  EMPLOYEE,  PROBATION  OFFICER, PAROLE OFFICER,
POLICE OFFICER, PEACE OFFICER, OR OTHER  PUBLIC  SERVANT  WHO  HAS  BEEN
NOTIFIED  BY  THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT SUCH DESIG-
NATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE. UPON NOTIFICATION  BY  THE
DIVISION OF CRIMINAL JUSTICE SERVICES THAT A DESIGNATED OFFENDER HAS NOT
PROVIDED  A  DNA  SAMPLE, SUCH COURT OFFICIAL, STATE OR LOCAL CORRECTION
OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, POLICE OFFICER,
PEACE OFFICER OR OTHER PUBLIC SERVANT SHALL COLLECT THE DNA SAMPLE.
  S 3. Section 65.10 of the penal law is amended by adding a new  subdi-
vision 4-b to read as follows:
  4-B.  MANDATORY  DNA  CONDITION  FOR  DESIGNATED OFFENDERS AND CERTAIN
OTHER OFFENDERS. WHEN IMPOSING A SENTENCE OF  PROBATION  OR  CONDITIONAL
DISCHARGE  UPON  A  PERSON  DEFINED AS A DESIGNATED OFFENDER PURSUANT TO
SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF  THE  EXECUTIVE
LAW,  THE  COURT SHALL REQUIRE AS A MANDATORY CONDITION OF SUCH SENTENCE
THAT SUCH PERSON PROVIDE A  DNA  SAMPLE  AS  REQUIRED  BY  SECTION  NINE
HUNDRED  NINETY-FIVE  OF THE EXECUTIVE LAW.  NOTHING IN THIS SUBDIVISION
SHALL BE CONSTRUED AS PROHIBITING A DNA CONDITION UPON ANY OTHER  OFFEN-
DER WHERE AUTHORIZED BY ARTICLE FORTY-NINE-B OF THE EXECUTIVE LAW.

S. 693--A                           5

  S  4.  The penal law is amended by adding a new section 270.40 to read
as follows:
S 270.40 FAILURE TO PROVIDE A DNA SAMPLE.
  A  PERSON  IS GUILTY OF FAILURE TO PROVIDE A DNA SAMPLE WHEN HE OR SHE
(A) IS A DESIGNATED OFFENDER, AS DEFINED IN SUBDIVISION SEVEN OF SECTION
NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW,  REQUIRED  TO  PROVIDE  A
SAMPLE  APPROPRIATE FOR DNA TESTING PURSUANT TO THE PROVISIONS OF SUBDI-
VISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW;
(B) HAS BEEN NOTIFIED BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL  OR
EMPLOYEE, PAROLE OFFICER, PROBATION OFFICER, POLICE OFFICER, PEACE OFFI-
CER  OR OTHER PUBLIC SERVANT OF THE OBLIGATION TO PROVIDE SUCH A SAMPLE;
AND (C) UPON REQUEST TO PROVIDE SUCH SAMPLE MADE  BY  A  PUBLIC  SERVANT
AUTHORIZED TO COLLECT IT, FAILS TO PROVIDE SUCH A SAMPLE.
  FAILURE TO PROVIDE A DNA SAMPLE IS A CLASS A MISDEMEANOR.
  S  5.  The sum of four hundred thousand dollars ($400,000), or so much
thereof as may be necessary, is hereby appropriated to the  division  of
criminal  justice  services  and the division of state police out of any
monies of the state treasury in the general fund to the  credit  of  the
state  purposes  account, not otherwise appropriated, for the purpose of
carrying out the provisions of this act. Such monies shall be made paya-
ble on the audit and warrant of the comptroller.
  S 6. This act shall take effect January 1,  2013;  provided,  however,
that the amendments to subdivision 7 of section 995 of the executive law
made  by  section  one  of  this  act shall apply to designated offenses
committed on or after such effective date; and  provided,  further  that
the amendments to subdivision 7 of section 995 of the executive law made
by  section  one  of  this  act  relating to a person who is required to
register as a sex offender pursuant to article six-C of  the  correction
law shall apply to a person registered as a sex offender prior to, on or
after such effective date.

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