S T A T E O F N E W Y O R K
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10269
I N A S S E M B L Y
May 16, 2012
___________
Introduced by M. of A. LAVINE, LENTOL -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to the compar-
ison of fingerprints
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 240.40 of the criminal procedure
law, as amended by chapter 19 of the laws of 2012, is amended to read as
follows:
1. Upon motion of a defendant against whom an indictment, superior
court information, prosecutor's information, information, or simplified
information charging a misdemeanor is pending, the court in which such
accusatory instrument is pending:
(a) must order discovery as to any material not disclosed upon a
demand pursuant to section 240.20, if it finds that the prosecutor's
refusal to disclose such material is not justified; (b) must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, order discovery or any other order authorized by
subdivision one of section 240.70 as to any material not disclosed upon
demand pursuant to section 240.20 where the prosecutor has failed to
serve a timely written refusal pursuant to section 240.35; (c) may order
discovery with respect to any other property, which the people intend to
introduce at the trial, upon a showing by the defendant that discovery
with respect to such property is material to the preparation of his or
her defense, and that the request is reasonable; [and] (d) where proper-
ty in the people's possession, custody, or control that consists of a
deoxyribonucleic acid ("DNA") profile obtained from probative biological
material gathered in connection with the investigation or prosecution of
the defendant and the defendant establishes that such profile complies
with federal bureau of investigation or state requirements, whichever
are applicable and as such requirements are applied to law enforcement
agencies seeking a keyboard search or similar comparison, and that the
data meets state DNA index system or national DNA index system criteria
as such criteria are applied to law enforcement agencies seeking such a
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15885-02-2
A. 10269 2
keyboard search or similar comparison, the court may order an entity
that has access to the combined DNA index system or its successor system
to compare such DNA profile against DNA databanks by keyboard searches,
or a similar method that does not involve uploading, upon notice to both
parties and the entity required to perform the search, upon a showing by
the defendant that such a comparison is material to the presentation of
his or her defense and that the request is reasonable. For purposes of
this paragraph, a "keyboard search" shall mean a search of a DNA profile
against the databank in which the profile that is searched is not
uploaded to or maintained in the databank; AND (E) MAY ORDER THE DIVI-
SION OF CRIMINAL JUSTICE SERVICES TO COMPARE A FINGERPRINT OBTAINED IN
CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF THE DEFENDANT
AGAINST THE STATEWIDE AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM, OR
ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTOMATED FINGERPRINT
IDENTIFICATION SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON THE COURT'S DETER-
MINATION THAT SUCH FINGERPRINT COMPLIES WITH FEDERAL BUREAU OF INVESTI-
GATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE AND AS SUCH
REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING SUCH A
COMPARISON AND UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS
MATERIAL TO THE PREPARATION OF HIS OR HER DEFENSE, AND THAT THE REQUEST
IS REASONABLE. Upon granting the motion pursuant to paragraph (c) of
this subdivision, the court shall, upon motion of the people showing
such to be material to the preparation of their case and that the
request is reasonable, condition its order of discovery by further
directing discovery by the people of property, of the same kind or char-
acter as that authorized to be inspected by the defendant, which he or
she intends to introduce at the trial.
S 2. Section 440.30 of the criminal procedure law is amended by adding
a new subdivision 1-b to read as follows:
1-B. IN RESPONSE TO A MOTION UNDER THIS SECTION, THE COURT MAY ORDER
THE DIVISION OF CRIMINAL JUSTICE SERVICES TO COMPARE A FINGERPRINT
OBTAINED IN CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF THE
DEFENDANT AGAINST THE STATEWIDE AUTOMATED FINGERPRINT IDENTIFICATION
SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTOMATED
FINGERPRINT IDENTIFICATION SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON THE
COURT'S DETERMINATION THAT (1) SUCH FINGERPRINT COMPLIES WITH FEDERAL
BUREAU OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND (2) IF SUCH COMPARISON HAD BEEN CONDUCTED, AND IF
THE RESULTS HAD BEEN ADMITTED IN THE TRIAL RESULTING IN THE JUDGMENT, A
REASONABLE PROBABILITY EXISTS THAT THE VERDICT WOULD HAVE BEEN MORE
FAVORABLE TO THE DEFENDANT, OR IN A CASE INVOLVING A PLEA OF GUILTY, IF
THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT PRIOR TO THE PLEA, A
REASONABLE PROBABILITY EXISTS THAT THE CONVICTION WOULD NOT HAVE
RESULTED.
S 3. This act shall take effect on the same date as chapter 19 of the
laws of 2012, as amended, takes effect.