Senate Bill S5214

2011-2012 Legislative Session

Requires defendants arrested for a felony to submit a DNA sample and authorizes motion to vacate judgment upon proof of defendant's innocence

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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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to finance
May 03, 2011	referred to finance

2011-S5214 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §§995 & 995-c, Exec L; amd CP L, generally

2011-S5214 (ACTIVE) - Summary

Requires defendants arrested for a felony to submit a DNA sample; authorizes the granting of a motion to vacate judgment upon proof that the defendant is innocent of the crime of which he or she was convicted.

2011-S5214 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5214

TITLE OF BILL:
An act
to amend the executive law and the criminal procedure law,
in relation
to requiring individuals arrested in connection with a felony to submit
a DNA sample;
and to amend the criminal procedure law, in relation to authorizing the
granting of a motion to vacate judgment upon proof of a defendant's
innocence

PURPOSE:
To allow for the collection of DNA samples upon an individual's arrest
for certain felony crimes and to permit the Court in which a judgment
of conviction was entered to grant a post-conviction motion to vacate
a judgment based on actual innocence.

SUMMARY OF PROVISIONS:
Section 1 gives a title to the Act (still being determined what that
title should be - currently "actual innocence justice act of
2011...title needs to incorporate dna portion)

Section 2 amends the executive law section 995 by adding a new
definition of "felony arrestee", which is defined as a person
arrested and charged with certain designated felonies.

Section 3 amends the executive law section 995-c to require that
felony arrestees provide a DNA sample to jailor detention facility
personnel upon booking following arrest.

Section 4 amends the executive law section 995-c to clarify the
procedure in which an arrestee who is not convicted of an offense for
which DNA is collected may get his or her DNA expunged.

Sections 5-12 amend various provisions of the criminal procedure law
dealing with the requirement of taking fingerprints in accordance
with 160.10 to also include a requirement fox taking a DNA sample
appropriate for DNA testing.

Section 13 adds a new paragraph (j) to subdivision one of
section 440.10 of the Criminal Procedure Law to provide that actual
innocence shall be a ground upon which a defendant may base his or
her post-conviction motion.

Section 14 of the bill amends subdivision (4) of section 440.10 of
the Criminal Procedure Law to require in certain circumstances that
the court dismiss the accusatory instrument.

Section 15 of the bill adds a new paragraph (9) of section 440.10 to
require in certain circumstances the court address the merits of any
claim for relief.

Section 16 of the bill establishes the effective date.

EXISTING LAW:
DNA upon arrest is not currently permissible in New York. Under


current law, a DNA sample is collected upon conviction of any felony
or specified misdemeanors.

The database, known as the Databank, began operations in 1996, when
individuals convicted of homicide and certain sex-related crimes were
required to submit a DNA sample. The Databank was expanded in 1999
and again in 2004, but still only required samples from 14 percent of
convictions in the state until 2006 when a new law was passed in New
York requiring the collection of DNA from all felony and some
misdemeanor convictions.

From 1996 to the end of 2007, the database had 4,142 offender hits to
crime scene DNA samples. Nearly a third of those came in 2007, the
first year after the new 2006 law went into effect expanding the
database.

While DNA is often used to find and convict offenders, DNA serves the
additional purpose of eliminating suspects or overturning convictions
of those wrongly convicted of crimes.

Due to procedural limitations of the criminal procedure law, many
convictions are not being considered for

JUSTIFICATION:
Carol Nelson was 65 years old on the morning of July 1, 2007. She had
two sons, two daughters, and eight grandchildren. She had recently
retired as a nurse at St. Joseph's Hospital in Syracuse, New York,
where she had been employed for 25 years. While walking during the
early morning hours in a suburban Syracuse neighborhood to her
granddaughter's house, Carol was hit in the head multiple times,
sexually assaulted, strangled and left for dead by Glen Shoop, who
had been arrested and charged with rape, sexual assault and unlawful
imprisonment of another victim a year earlier. When he murdered
Carol, Shoop was awaiting sentencing in the 2006 crime, in which he
pleaded guilty to first degree unlawful imprisonment, a felony.
Because DNA was not collectible for Shoop's 2006 arrest for rape, as
this bill proposes, his DNA was not taken prior to Carol's murder.
Had it been, he would have been linked to a forensic profile in New
York's DNA database relating to an unsolved 2000 rape at Colonial
Laundromat in East Syracuse. With an investigative lead like that, it
is almost certain that Shoop would not have been released to murder
Carol Nelson pending his sentencing. When Shoop's DNA was finally
taken and entered into the DNA database due to
the unlawful imprisonment conviction, he was linked to both Carol's
murder and the 2000 rape. He received 40 years to life for the
combined cases.

This proposed legislation seeks to address the flaw that cost Carol
her life by requiring law enforcement to take DNA upon the arrest of
individuals for certain felony crimes that have resulted in the
largest number of hits against the database in the past.

Since the database's inception, there have been a total of 7,980 hits.
In 2008, there were 1,673 hits, a 30 percent increase from 1,285 hits
during 2007. Fifty-one percent of all hits since Databank inception
occurred during the last two years, subsequent to the passage of
legislation that expanded the database to include all felony and some


misdemeanor convictions. Obtaining DNA upon arrest for certain
felonies would undoubtedly result in more and earlier hits, thereby
solving more crimes and preventing future ones.

New York needs to join 21 other states and the federal government
which have already passed laws collecting DNA upon arrest. As of
August 2009, the DNA Databank in New York contained DNA samples
collected from 330,411 offenders ("offender profile"). There are
28,858 forensic samples in the database, which are DNA samples taken
from crime scenes in New York. Nationally, New York's offender
profiles represent 4.55 percent of all DNA profiles in the United
States while New York's unsolved crimes constitute 10.4 percent of
all unsolved crimes in the United States. Requiring the collection of
DNA upon arrest for crimes specified in this bill is the way to
responsibly increase the DNA Databank and solve some of the hundreds
of thousands of crimes with crime scene forensic profiles that go
unsolved in this country every day.

Increasing the DNA database has a further purpose of ensuring that
people are not wrongfully convicted. Over the past twenty years, 254
DNA exonerations of convicted innocents in the United States have
drawn the attention of citizens and legislatures around the country
to the phenomenon of wrongful convictions of the innocent. According
to the data provided by the Innocence Project,
twenty-six, orof those 254 exonerations were in the State of New York.

However, DNA alone is not responsible for the overturning of
convictions. The New York State Bar Association's Task Force on
Wrongful Convictions recently identified and studied fifty-three
"judicial/formal exonerations" over the last twenty-odd years,
thirty-one of them non-DNA exonerations. Thirty-nine additional
non-DNA exonerations have been identified in preparing this
legislation, mainly by examining the results of compensation actions
pursuant to Court of Claims Act8-b. Thus, at least ninety-five men
and women have been clearly identified in New York as having spent
years, sometimes decades, in prison for murders, rapes, and other
serious crimes they did not commit. A significant number of other
reversals and vacaturs have occurred where there was strong evidence
of innocence, but for one reason or another cannot be included in a
set of clear-cut "exonerations." Thus wrongful convictions are not a
trivial problem in New York. As Judge Lippman recently wrote in
Hurrell-Harring v. State: "Wrongful conviction, the ultimate sign of
a criminal justice system's breakdown and failure, has been
documented in too many cases." 2010 WL 1791000 (N.Y. May 6, 2010).

Many exonerations in New York were achieved through the litigation of
CPL §440.10 motions, demonstrating that New York's post-conviction
statute is an excellent avenue of collateral relief for many innocent
individuals - a good model, in fact, for other states to follow. Yet
it has become clear that some state court judges are not providing
justice in such cases, often because of their interpretation of the
procedural limitations of the current law.

In the case of Marty Tankleff, the lower court denied Tankleff's
motion to vacate judgment based on 440.10(1)(g) and 440.10(1)(h).
Tankleff's direct appeal of the verdict to the appellate division and
a federal habeas appeal had also been previously denied. In denying


the motion based on 440.10(1) (g), the trial Court found the
defendant did not exercise due diligence in moving for a new trial.
The 440.10(1) (h) motion was denied based on the court's finding that
there exists no constitutional right to relief based on actual
innocence. If it had not been for the appellate division remitting
the case to the county court for a new trial, Tankleff's wrongful
conviction would most likely never have been heard due to the limited
nature of the few remedies available to him. It is intolerable that
any person in New York whose trial has been shown to have led to a
manifest injustice should remain in prison on a technicality under
state law.

For individuals like Marty Tankleff, the Criminal Procedure Law
currently offers only limited hope for collateral relief by
establishing a series of post-conviction procedural roadblocks that,
taken together, can deprive an innocent person from having his or her
innocence claim fully and fairly aired. The tragic result as
graphically demonstrated
in hundreds of wrongful conviction cases throughout the country -- is
that an innocent person can spend years or even decades behind bars
while the real perpetrator remains free to commit more crimes and
terrorize additional victims. This bill is intended to renew and
strengthen the authorization of state court judges, despite any and
all procedural or other technical obstacles, to re-visit and give a
fair hearing to any case that presents to the reasonable mind a
serious doubt about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various
jurisdictions around the country by way of a "freestanding" claim of
actual innocence on constitutional grounds. The Supreme Court has not
yet explicitly held that such a claim can be brought under the United
States Constitution. As Justice Roberts wrote for a 5-4 majority in
DA's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a
federal right to be released upon proof of actual innocence exists is
an open question." But several state courts have held that such a
claim exists under their state constitutions (including Illinois,
California, Connecticut, Missouri, New Mexico, and Texas). The New
York Court of Appeals has yet to consider the issue directly,
although a handful of trial courts have begun to do so and found
compelling grounds to recognize a convicted person's right to
post-conviction relief based on proof of actual innocence under state
law. In 2003, a New York state judge held for the first time that
Article I6 of the New York State Constitution
prohibits the execution or incarceration of an innocent person and
that a free-standing claim of actual innocence is therefore
cognizable under
440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N.Y.S. 2d 477 (Sup.
Ct., Kings Cty. 2003). In 2009 two other trial court judges held
similarly and granted relief on the ground of actual innocence on
constitutional grounds under CPL 440.10(1) (h), the movants having
shown they were innocent by clear and convincing evidence. People v.
Bermudez, 2009 N.Y. Slip Op. 52302U, 25 Misc. 3d 1226A (Sup. Ct.,
N.Y. Cty., Nov. 9, 2009) i People v. Wheeler-Whichard, 2009 N.Y. Slip
Op. 51647(U), (Sup. Ct., Kings Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is
now an appropriate basis for New York courts to overturn a criminal


conviction under a newly added paragraph (i) of CPL § 440.10(1). The
judge is directed to grant relief where it is "established by clear
and convincing evidence that no trier of fact would have convicted
the defendant under a reasonable doubt standard and in light of all
available evidence." Thus, the judge is to consider all relevant
evidence without regard to trial rules of admissibility. Paragraph
(1)(4) is amended to clarify that, as held in Cole, Bermudez, and
Wheeler-Whichard, the proper remedy for such a finding is vacatur of
the conviction and dismissal of the indictment.

In addition, anew paragraph (8) clarifies that convicted people who
can demonstrate a reasonable probability that they are innocent will
have the right to challenge their convictions under the statute,
notwithstanding any other procedural and other technical provisions
of the statute that would have prevented them from doing so. Several
states have taken for granted that due process requires them to
forgive these "procedural defaults" where a likelihood of innocence
is present. See, e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn.
2001) Reedy v. Wright, 60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002); State
v. Pope, 80 P.3d 1232, 318 Mont. 383 (2003); Clay v. Dormire, 37
S.W.3d 214, 217 (Mo. 2000). This paragraph is intended to provide
relief from procedural defaults or other technical requirements in
addition to, and independently of, any judicial finding that such
relief is required under the Due Process Clause of either the Federal
or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants
with an opportunity to fully vindicate their rights and to provide a
post-conviction court with an opportunity to correct miscarriages of
justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of
justice with the greatest call on the Court's conscience is a long
prison sentence or execution of a person who is entirely innocent of
the crime for which he is being punished. These amendments are
intended to require judges to treat claims of actual innocence with
the seriousness they warrant, and to permit them to adjudicate
reasonable claims of innocence without becoming entangled in legal
uncertainties and technicalities.

The grounds upon which a defendant can make a motion to vacate
judgment must be expanded. It is presumably a rare instance where one
previously convicted is able to later conclusively satisfy the court
that he or she in fact did not commit the criminal acts that form the
basis of that conviction. In these rare and exceptional cases, the
administration of justice would be deeply flawed if a set of
procedural restrictions could permanently foreclose any option of
overturning a wrongful conviction and offering a new trial to an
innocent defendant. This bill is intended to address these rare
instances by creating an express provision, within the existing CPL
post-conviction framework, for "actual innocence" to be adjudicated
and true justice achieved.

LEGISLATIVE HISTORY:
The combination of DNA upon Arrest and Actual Innocence Act form a new
bill.

FISCAL IMPLICATIONS: To be determined.


EFFECTIVE DATE:
This act shall take effect on the 180th day after it shall have become
law.

2011-S5214 (ACTIVE) - Bill Text download pdf

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

                                  5214

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 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 and the  criminal  procedure  law,  in
  relation to requiring individuals arrested in connection with a felony
  to  submit  a  DNA sample; and to amend the criminal procedure law, in
  relation to authorizing the granting of a motion  to  vacate  judgment
  upon proof of a defendant's innocence

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 995 of the executive law is amended by adding a new
subdivision 7-a to read as follows:
  7-A. "FELONY ARRESTEE" MEANS A PERSON ARRESTED AND  CHARGED  WITH  ANY
ONE  OR MORE OF THE FOLLOWING FELONIES, OR AN ATTEMPT THEREOF WHERE SUCH
ATTEMPT IS A FELONY OFFENSE, AS  DEFINED  IN  THE  PENAL  LAW:  SECTIONS
120.05,  120.06, 120.07, 120.10, 120.11 AND 120.12, RELATING TO ASSAULT;
SECTIONS 120.55 AND 120.60, RELATING TO STALKING; SECTION 120.70, RELAT-
ING TO LURING A CHILD; SECTIONS 125.15, 125.20, 125.21, 125.22,  125.25,
125.26  AND  125.27,  RELATING  TO  HOMICIDE;  SECTIONS  130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.67, 130.70,  130.75,
130.80,  130.95  AND  130.96, RELATING TO SEX OFFENSES; SECTIONS 135.10,
135.20, 135.25 AND 135.35, RELATING TO KIDNAPPING AND LABOR TRAFFICKING;
SECTIONS 140.17,  140.20,  140.25  AND  140.30,  RELATING  TO  BURGLARY;
SECTIONS  150.05, 150.10, 150.15 AND 150.20, RELATING TO ARSON; SECTIONS
155.30, 155.35, 155.40 AND 155.42, RELATING TO GRAND  LARCENY;  SECTIONS
160.05,  160.10 AND 160.15, RELATING TO ROBBERY; SECTION 230.34 RELATING
TO SEX TRAFFICKING; SECTIONS 235.21  AND  235.22,  RELATING  TO  DISSEM-
INATION  OF  INDECENT  MATERIAL  TO  MINORS; SECTIONS 250.45 AND 250.50,
RELATING TO UNLAWFUL SURVEILLANCE; SECTIONS 255.25, 255.26, AND  255.27,
RELATING TO INCEST; SECTIONS 263.05, 263.10, 263.11, 263.15, 263.16, AND
263.30,  RELATING  TO SEXUAL PERFORMANCE BY A CHILD; OR SECTIONS 265.02,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04908-03-1

S. 5214                             2

265.03, 265.04, 265.08,  265.09,  265.11,  265.12,  265.13,  265.14  AND
265.16, RELATING TO FIREARMS AND OTHER DANGEROUS WEAPONS.
  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 sentencing
for a crime specified in subdivision seven of section nine hundred nine-
ty-five of this article, shall be required to provide a sample appropri-
ate for DNA testing to determine identification characteristics specific
to such person and to be included in a state  DNA  identification  index
pursuant to this article.
  (B)  A FELONY ARRESTEE SHALL BE REQUIRED TO PROVIDE A SAMPLE APPROPRI-
ATE FOR DNA TESTING UPON HIS OR HER ARREST, UNLESS SUCH FELONY  ARRESTEE
HAS PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDEN-
TIFICATION INDEX.
  (C)  A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER OR FELONY
ARRESTEE WHO HAS NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED  SHALL
SEEK AN ORDER OF THE COURT 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 CRIMINAL  JUSTICE  SERVICES  SHALL  PROMULGATE
RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
CATION 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  OF  CRIMINAL  JUSTICE  SERVICES
DETERMINES SHOULD NOT BE IN THE INDEX.
  S  3.  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

S. 5214                             3

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
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 MISDEMEANOR CONVICTION THAT DID NOT REQUIRE DNA  COLLECTION
PURSUANT  TO  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 INDIVID-
UAL BY PROVIDING THE FOLLOWING MATERIALS TO  THE  DIVISION  OF  CRIMINAL
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, MISDEMEA-
NOR 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,  MISDEMEANOR  CONVICTION
EXCLUDED   FROM   DNA   COLLECTION  PURSUANT  TO  SECTION  NINE  HUNDRED
NINETY-FIVE OF THIS ARTICLE OR ACQUITTAL  OCCURRED;  NO  FELONY  CHARGES
AROSE  OUT  OF  THE ARREST; OR NO CRIMINAL ACTION AGAINST THE INDIVIDUAL
RELATING TO SUCH CRIME WAS COMMENCED  WITHIN  THE  PERIOD  SPECIFIED  BY
SECTION  30.10  OF THE CRIMINAL PROCEDURE LAW; AND THAT EXPUNGEMENT WILL
NOT ADVERSELY AFFECT THE INVESTIGATION  OR  PROSECUTION  OF  SOME  OTHER
PERSON OR PERSONS FOR THE CRIME.

S. 5214                             4

  (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 FELONY CHARGE FOR WHICH
COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION.
  S 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
amended by chapter 424 of the laws  of  1998,  is  amended  to  read  as
follows:
  6.   Before bringing a defendant arrested pursuant to a warrant before
the local criminal court in which such warrant is returnable,  a  police
officer  must  without  unnecessary delay perform all fingerprinting and
other preliminary police duties required in the particular case.  In any
case in which the defendant is not brought by a  police  officer  before
such  court  but,  following his arrest in another county for an offense
specified in subdivision  one  of  section  160.10  OF  THIS  TITLE,  is
released  by  a  local  criminal  court  of such other county on his own
recognizance or on bail for his appearance on a  specified  date  before
the  local  criminal  court  before which the warrant is returnable, the
latter court must, upon arraignment of the defendant before  it,  direct
that  he  be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE
EXECUTIVE LAW, by the appropriate officer or agency, and that he  appear
at an appropriate designated time and place for such purpose.
  S 5. Section 130.60 of the criminal procedure law, as amended by chap-
ter  95  of the laws of 1991, subdivision 1 as amended by chapter 446 of
the laws of 1993, is amended to read as follows:
S 130.60 Summons; fingerprinting of defendant.
  1. Upon the arraignment of a defendant whose court attendance has been
secured by the issuance and service of a summons, based upon an  indict-
ment,   a  prosecutor's  information  or  upon  an  information,  felony
complaint or misdemeanor complaint filed  by  a  complainant  who  is  a
police  officer, the court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be  fingerprinted  by  the  appropriate
police  officer  or  agency, and that he or she appear at an appropriate
designated time and place for such purpose.   IF AN OFFENSE  CHARGED  IN
THE  ACCUSATORY  INSTRUMENT  IS  ONE SPECIFIED IN SUBDIVISION SEVEN-A OF
SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW,  THE  COURT  MUST
DIRECT  THAT  A SAMPLE APPROPRIATE FOR DNA TESTING BE TAKEN, AND THAT HE
OR SHE APPEAR AT AN APPROPRIATE  DESIGNATED  TIME  AND  PLACE  FOR  SUCH
PURPOSE.
  2. Upon the arraignment of a defendant whose court attendance has been
secured  by the issuance and service of a summons based upon an informa-
tion or misdemeanor complaint filed by a complainant who is not a police
officer, and who has not previously been fingerprinted OR  FROM  WHOM  A
DNA  SAMPLE  HAS  NOT PREVIOUSLY BEEN TAKEN AND WAS REQUIRED PURSUANT TO
SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, the court  may,
if it finds reasonable cause to believe that the defendant has committed
an offense specified in subdivision one of section 160.10 OF THIS TITLE,
direct  that  the defendant be fingerprinted AND/OR HAVE A SAMPLE APPRO-
PRIATE FOR DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED  NINE-

S. 5214                             5

TY-FIVE-C  OF  THE  EXECUTIVE  LAW, by the appropriate police officer or
agency and that he appear at an appropriate designated  time  and  place
for such purpose. A defendant whose court appearance has been secured by
the  issuance and service of a criminal summons based upon a misdemeanor
complaint or information filed by a complainant  who  is  not  a  police
officer,  must  be directed by the court, upon conviction of the defend-
ant, to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR  DNA  TESTING
TAKEN,  IF  REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECU-
TIVE LAW, by the appropriate police officer or agency and the court must
also direct that the defendant appear at an appropriate designated  time
and place for such purpose, if the defendant is convicted of any offense
specified in subdivision one of section 160.10 OF THIS TITLE.
  S 6. 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 OF THIS SECTION, the issuing police
officer must, if the offense designated in such appearance ticket is one
of  those  specified in subdivision one of section 160.10 OF THIS TITLE,
cause such person to be fingerprinted AND HAVE A SAMPLE APPROPRIATE  FOR
DNA  TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF
THE EXECUTIVE LAW, in the same manner  as  would  be  required  were  no
appearance ticket to be issued or served.
  S 7. 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 OF THIS SECTION, must without
unnecessary delay bring him or cause him to be brought  before  a  local
criminal court, as provided in section 100.55 OF THIS CHAPTER and subdi-
vision  one of section 140.20 OF THIS ARTICLE, and must without unneces-
sary delay file or cause to be filed therewith an appropriate accusatory
instrument.  If the offense which is the subject of the arrest is one of
those specified in subdivision one of section 160.10 OF THIS TITLE,  the
arrested  person  must  be  fingerprinted  and  photographed, AND HAVE A
SAMPLE APPROPRIATE FOR DNA TESTING TAKEN IF  REQUIRED  BY  SECTION  NINE
HUNDRED  NINETY-FIVE-C  OF  THE  EXECUTIVE LAW, as therein provided.  In
order to execute the  required  post-arrest  functions,  such  arresting
peace  officer  may  perform such functions himself or he may enlist the
aid of a police officer  for  the  performance  thereof  in  the  manner
provided in subdivision one of section 140.20 OF THIS ARTICLE.
  S 8. Section 150.70 of the criminal procedure law, as amended by chap-
ter 762 of the laws of 1971, is amended to read as follows:
S  150.70   Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of
             defendant.
  Upon the arraignment of a defendant who  has  not  been  arrested  and
whose  court  attendance has been secured by the issuance and service of
an appearance ticket pursuant to subdivision one of  section  150.20  OF
THIS  ARTICLE,  the  court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be fingerprinted   AND  HAVE  A  SAMPLE
APPROPRIATE  FOR DNA TESTING TAKEN WHEN REQUIRED BY SECTION NINE HUNDRED
NINETY-FIVE-C OF THE EXECUTIVE LAW by the appropriate police officer  or
agency,  and  that he appear at an appropriate designated time and place
for such purpose.

S. 5214                             6

  S 9. Section 160.20 of the criminal procedure law, as amended by chap-
ter 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.
  1. Upon the taking of fingerprints of an arrested person or  defendant
as  prescribed in section 160.10 OF THIS ARTICLE, the appropriate police
officer or agency must without unnecessary delay forward two  copies  of
such fingerprints to the division of criminal justice services.
  2.   UPON TAKING A SAMPLE APPROPRIATE FOR DNA TESTING, THE APPROPRIATE
POLICE OFFICE OR AGENCY MUST WITHOUT UNNECESSARY DELAY STORE AND FORWARD
SUCH DNA SAMPLE TO A FORENSIC DNA LABORATORY FOR  FORENSIC  DNA  TESTING
AND  ANALYSES,  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 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
criminal  procedure  law,  paragraph  (d)  as  amended  by section 73 of
subpart B of part C of chapter 62 of the laws of 2011 and paragraph  (e)
as  amended  by  chapter  169 of the laws of 1994, are amended and a new
paragraph (f) is added 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] PART, 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; [and]
  (e) where fingerprints subject to the provisions of this section  have
been received by the division of criminal justice services and have been
filed  by  the  division as digital images, such images may be retained,
provided that a fingerprint card of the individual is on file  with  the
division which was not sealed pursuant to this section or section 160.55
of this article[.]; AND
  (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
ANT  TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, AND ANY
DNA RECORD RELATING TO SUCH SAMPLE, AND ANY ANALYSES OR OTHER  DOCUMENTS
RELATING  TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.

S. 5214                             7

  S 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph  (d)  as  amended  by  section  74  of
subpart  B of part C of chapter 62 of the laws of 2011 and paragraph (e)
as amended by chapter 169 of the laws of 1994, are  amended  and  a  new
paragraph (f) is added to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision 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] PART, 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 under parole supervision as a result of  conditional  release
or  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) 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 (vi) a police agency, probation department, sher-
iff's office, district attorney's office, department  of  correction  of
any  municipality  and  parole department, for law enforcement purposes,
upon arrest in instances in which the  individual  stands  convicted  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; [and]
  (e) where fingerprints subject to the provisions of this section  have
been received by the division of criminal justice services and have been
filed  by  the  division as digital images, such images may be retained,
provided that a fingerprint card of the individual is on file  with  the
division which was not sealed pursuant to this section or section 160.50
of this article[.]; AND
  (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
ANT  TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, ANY DNA
RECORD RELATING TO SUCH SAMPLE, AND  ANY  ANALYSES  OR  OTHER  DOCUMENTS
RELATING  TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
  S 12. Subparagraph (ii) of paragraph (i) of subdivision 1  of  section
440.10  of  the  criminal  procedure law, as added by chapter 332 of the
laws of 2010, is amended and a new paragraph (j) is  added  to  read  as
follows:
  (ii)  official  documentation of the defendant's status as a victim of
sex trafficking or trafficking in persons at the  time  of  the  offense
from a federal, state or local government agency shall create a presump-
tion  that  the defendant's participation in the offense was a result of
having been a victim of sex trafficking or trafficking in  persons,  but
shall not be required for granting a motion under this paragraph[.]; OR
  (J) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
HE  OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS
ACTUALLY INNOCENT WHERE  IT  IS  ESTABLISHED  BY  CLEAR  AND  CONVINCING

S. 5214                             8

EVIDENCE  THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT UNDER
A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
  S  13.  Subdivision 4 of section 440.10 of the criminal procedure law,
as amended by chapter 332 of the laws of 2010, is  amended  to  read  as
follows:
  4.  If  the  court  grants  the motion, it must, except as provided in
subdivision five or six of this section, vacate the judgment,  and  must
dismiss  the  accusatory  instrument, or order a new trial, or take such
other action as is appropriate in the circumstances.   IF THE  DEFENDANT
HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU-
ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND-
ANT  OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND IN
LIGHT OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE  ACCUSATORY
INSTRUMENT.
  S  14.  Section  440.10  of  the  criminal procedure law is amended by
adding a new subdivision 9 to read as follows:
  9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT  CAN  SHOW,
IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
  S 15. This act shall take effect immediately, except that sections one
through  eleven  of this act shall take effect on the one hundred eight-
ieth day after it shall have become a law.

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Senate Bill S5214

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Sponsored By

Jeffrey D. Klein

Archive: Last Bill Status - In Senate Committee Finance Committee

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