LBD12113-08-2
S. 6733 2 A. 9555
after all documentary evidence or information, if any, has been submit-
ted, the court must consider the same for the purpose of ascertaining
whether the motion is determinable without a hearing to resolve ques-
tions of fact.
(B) IN CONJUNCTION WITH THE FILING OR CONSIDERATION OF A MOTION TO
VACATE A JUDGMENT PURSUANT TO SECTION 440.10 OF THIS ARTICLE BY A
DEFENDANT CONVICTED AFTER A TRIAL, IN CASES WHERE THE COURT HAS ORDERED
AN EVIDENTIARY HEARING UPON SUCH MOTION, THE COURT MAY ORDER THAT THE
PEOPLE PRODUCE OR MAKE AVAILABLE FOR INSPECTION PROPERTY, AS DEFINED IN
SUBDIVISION THREE OF SECTION 240.10 OF THIS PART, IN ITS POSSESSION,
CUSTODY, OR CONTROL THAT WAS SECURED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT UPON CREDIBLE ALLEGATIONS BY THE
DEFENDANT AND A FINDING BY THE COURT THAT SUCH PROPERTY, IF OBTAINED,
WOULD BE PROBATIVE TO THE DETERMINATION OF DEFENDANT'S ACTUAL INNOCENCE,
AND THAT THE REQUEST IS REASONABLE. THE COURT SHALL DENY OR LIMIT SUCH A
REQUEST UPON A FINDING THAT SUCH A REQUEST, IF GRANTED, WOULD THREATEN
THE INTEGRITY OR CHAIN OF CUSTODY OF PROPERTY OR THE INTEGRITY OF THE
PROCESSES OR FUNCTIONS OF A LABORATORY CONDUCTING DNA TESTING, POSE A
RISK OF HARM, INTIMIDATION, EMBARRASSMENT, REPRISAL, OR OTHER SUBSTAN-
TIALLY NEGATIVE CONSEQUENCES TO ANY PERSON, UNDERMINE THE PROPER FUNC-
TIONS OF LAW ENFORCEMENT INCLUDING THE CONFIDENTIALITY OF INFORMANTS, OR
ON THE BASIS OF ANY OTHER FACTOR IDENTIFIED BY THE COURT IN THE INTER-
ESTS OF JUSTICE OR PUBLIC SAFETY. THE COURT SHALL FURTHER ENSURE THAT
ANY PROPERTY PRODUCED PURSUANT TO THIS PARAGRAPH IS SUBJECT TO A PROTEC-
TIVE ORDER, WHERE APPROPRIATE. THE COURT SHALL DENY ANY REQUEST MADE
PURSUANT TO THIS PARAGRAPH WHERE:
(I) (1) THE DEFENDANT'S MOTION PURSUANT TO SECTION 440.10 OF THIS
ARTICLE DOES NOT SEEK TO DEMONSTRATE HIS OR HER ACTUAL INNOCENCE OF THE
OFFENSE OR OFFENSES OF WHICH HE OR SHE WAS CONVICTED THAT ARE THE
SUBJECT OF THE MOTION, OR (2) THE DEFENDANT HAS NOT PRESENTED CREDIBLE
ALLEGATIONS AND THE COURT HAS NOT FOUND THAT SUCH PROPERTY, IF OBTAINED,
WOULD BE PROBATIVE TO THE DETERMINATION OF THE DEFENDANT'S ACTUAL INNO-
CENCE AND THAT THE REQUEST IS REASONABLE;
(II) THE DEFENDANT HAS MADE HIS OR HER MOTION AFTER FIVE YEARS FROM
THE DATE OF THE JUDGMENT OF CONVICTION; PROVIDED, HOWEVER, THAT THIS
LIMITATION PERIOD SHALL BE TOLLED FOR FIVE YEARS IF THE DEFENDANT IS IN
CUSTODY IN CONNECTION WITH THE CONVICTION THAT IS THE SUBJECT OF HIS OR
HER MOTION, AND PROVIDED FURTHER THAT, NOTWITHSTANDING SUCH LIMITATION
PERIODS, THE COURT MAY CONSIDER THE MOTION IF THE DEFENDANT HAS SHOWN:
(A) THAT HE OR SHE HAS BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND
THAT SOME EXTRAORDINARY CIRCUMSTANCE PREVENTED THE TIMELY FILING OF THE
MOTION; (B) THAT THE FACTS UPON WHICH THE MOTION IS PREDICATED WERE
UNKNOWN TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE BEEN
ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION OF
THE STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF THE
CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
IMPACT OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
TY OR RELATED RELIEF, THE INTERESTS OF JUSTICE WOULD BE SERVED BY
CONSIDERING THE MOTION;
(III) THE DEFENDANT IS CHALLENGING A JUDGMENT CONVICTING HIM OR HER OF
AN OFFENSE THAT IS NOT A FELONY DEFINED IN SECTION 10.00 OF THE PENAL
LAW; OR
S. 6733 3 A. 9555
(IV) UPON A FINDING BY THE COURT THAT THE PROPERTY REQUESTED IN THIS
MOTION WOULD BE AVAILABLE THROUGH OTHER MEANS THROUGH REASONABLE EFFORTS
BY THE DEFENDANT TO OBTAIN SUCH PROPERTY.
S 2. Subdivision 1-a of section 440.30 of the criminal procedure law,
as amended by chapter 138 of the laws of 2004, is amended to read as
follows:
1-a. (a) (1) Where the defendant's motion requests the performance of
a forensic DNA test on specified evidence, and upon the court's determi-
nation that any evidence containing deoxyribonucleic acid ("DNA") was
secured in connection with the trial resulting in the judgment, the
court shall grant the application for forensic DNA testing of such
evidence upon its determination that if a DNA test had been conducted on
such evidence, and if the results had been admitted in the trial result-
ing in the judgment, there exists a reasonable probability that the
verdict would have been more favorable to the defendant.
(2) WHERE THE DEFENDANT'S MOTION FOR FORENSIC DNA TESTING OF SPECIFIED
EVIDENCE IS MADE FOLLOWING A PLEA OF GUILTY AND ENTRY OF JUDGMENT THERE-
ON CONVICTING HIM OR HER OF: (A) A HOMICIDE OFFENSE DEFINED IN ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, ANY FELONY SEX OFFENSE DEFINED
IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, A VIOLENT FELONY OFFENSE
AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 70.02 OF THE
PENAL LAW, OR (B) ANY OTHER FELONY OFFENSE TO WHICH HE OR SHE PLED GUIL-
TY AFTER BEING CHARGED IN AN INDICTMENT OR INFORMATION IN SUPERIOR COURT
WITH ONE OR MORE OF THE OFFENSES LISTED IN CLAUSE (A) OF THIS SUBPARA-
GRAPH, THEN THE COURT SHALL GRANT SUCH A MOTION UPON ITS DETERMINATION
THAT EVIDENCE CONTAINING DNA WAS SECURED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT, AND IF A DNA TEST HAD BEEN
CONDUCTED ON SUCH EVIDENCE AND THE RESULTS HAD BEEN KNOWN TO THE PARTIES
PRIOR TO THE ENTRY OF THE DEFENDANT'S PLEA AND JUDGMENT THEREON, THERE
EXISTS A SUBSTANTIAL PROBABILITY THAT THE EVIDENCE WOULD HAVE ESTAB-
LISHED THE DEFENDANT'S ACTUAL INNOCENCE OF THE OFFENSE OR OFFENSES THAT
ARE THE SUBJECT OF THE DEFENDANT'S MOTION; PROVIDED, HOWEVER, THAT:
(I) THE COURT SHALL CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY
TO REQUEST SUCH TESTING PRIOR TO ENTERING A GUILTY PLEA, AND, WHERE IT
FINDS THAT THE DEFENDANT HAD SUCH OPPORTUNITY AND UNJUSTIFIABLY FAILED
TO DO SO, THE COURT MAY DENY SUCH MOTION; AND
(II) A COURT SHALL DENY THE DEFENDANT'S MOTION FOR FORENSIC DNA TEST-
ING WHERE THE DEFENDANT HAS MADE HIS OR HER MOTION MORE THAN FIVE YEARS
AFTER ENTRY OF THE JUDGMENT OF CONVICTION; EXCEPT THAT THE LIMITATION
PERIOD MAY BE TOLLED IF THE DEFENDANT HAS SHOWN: (A) THAT HE OR SHE HAS
BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND THAT SOME EXTRAORDINARY
CIRCUMSTANCE PREVENTED THE TIMELY FILING OF THE MOTION FOR FORENSIC DNA
TESTING; (B) THAT THE FACTS UPON WHICH THE MOTION IS PREDICATED WERE
UNKNOWN TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE BEEN
ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION OF
THIS STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF THE
CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
IMPACT OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
TY OR RELATED RELIEF, THE INTERESTS OF JUSTICE WOULD BE SERVED BY TOLL-
ING SUCH LIMITATION PERIOD.
(b) In conjunction with the filing of a motion under this subdivision,
the court may direct the people to provide the defendant with informa-
tion in the possession of the people concerning the current physical
location of the specified evidence and if the specified evidence no
S. 6733 4 A. 9555
longer exists or the physical location of the specified evidence is
unknown, a representation to that effect and information and documentary
evidence in the possession of the people concerning the last known phys-
ical location of such specified evidence. If there is a finding by the
court that the specified evidence no longer exists or the physical
location of such specified evidence is unknown, such information in and
of itself shall not be a factor from which any inference unfavorable to
the people may be drawn by the court in deciding a motion under this
section. The court, on motion of the defendant, may also issue a subpoe-
na duces tecum directing a public or private hospital, laboratory or
other entity to produce such specified evidence in its possession and/or
information and documentary evidence in its possession concerning the
location and status of such specified evidence.
(C) IN RESPONSE TO A MOTION UNDER THIS PARAGRAPH, UPON NOTICE TO THE
PARTIES AND TO THE ENTITY REQUIRED TO PERFORM THE SEARCH THE COURT MAY
ORDER AN ENTITY THAT HAS ACCESS TO THE COMBINED DNA INDEX SYSTEM
("CODIS") OR ITS SUCCESSOR SYSTEM TO COMPARE A DNA PROFILE OBTAINED FROM
PROBATIVE BIOLOGICAL MATERIAL GATHERED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT AGAINST DNA DATABANKS BY KEYBOARD
SEARCHES, OR A SIMILAR METHOD THAT DOES NOT INVOLVE UPLOADING, UPON A
COURT'S DETERMINATION THAT (1) 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 SUCH A
COMPARISON, AND THAT THE DATA MEET STATE DNA INDEX SYSTEM AND/OR
NATIONAL DNA INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW
ENFORCEMENT AGENCIES SEEKING SUCH A COMPARISON AND (2) IF SUCH COMPAR-
ISON 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. FOR PURPOSES OF THIS SUBDIVI-
SION, 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.
S 3. Subdivision 1 of section 240.40 of the criminal procedure law, as
amended by chapter 558 of the laws of 1982, the opening paragraph as
amended by chapter 317 of the laws of 1983, 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; [and] (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
PROPERTY IN THE PEOPLE'S POSSESSION, CUSTODY, OR CONTROL THAT CONSISTS
S. 6733 5 A. 9555
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 REQUIRE-
MENTS, WHICHEVER ARE APPLICABLE AND AS SUCH REQUIREMENTS ARE APPLIED TO
LAW ENFORCEMENT AGENCIES SEEKING A KEYBOARD SEARCH OR SIMILAR COMPAR-
ISON, 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 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 UPLOAD-
ING, UPON NOTICE TO BOTH PARTIES AND THE ENTITY REQUIRED TO PERFORM THE
SEARCH, UPON A SHOWING BY THE DEFENDANT THAT SUCH A COMPARISON IS MATE-
RIAL 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. Upon
granting the motion pursuant to paragraph (c) [hereof] OF THIS SUBDIVI-
SION, 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 character as
that authorized to be inspected by the defendant, which he OR SHE
intends to introduce at the trial.
S 4. Subdivision 1 of section 440.10 of the criminal procedure law is
amended by adding a new paragraph (g-1) to read as follows:
(G-1) FORENSIC DNA TESTING OF EVIDENCE PERFORMED SINCE THE ENTRY OF A
JUDGMENT, (1) IN THE CASE OF A DEFENDANT CONVICTED AFTER A GUILTY PLEA,
THE COURT HAS DETERMINED THAT THE DEFENDANT HAS DEMONSTRATED A SUBSTAN-
TIAL PROBABILITY THAT THE DEFENDANT WAS ACTUALLY INNOCENT OF THE OFFENSE
OF WHICH HE OR SHE WAS CONVICTED, OR (2) IN THE CASE OF A DEFENDANT
CONVICTED AFTER A TRIAL, THE COURT HAS DETERMINED THAT THERE EXISTS A
REASONABLE PROBABILITY THAT THE VERDICT WOULD HAVE BEEN MORE FAVORABLE
TO THE DEFENDANT.
S 5. Subdivision 7 of section 995 of the executive law, as amended by
chapter 2 of the laws of 2006, paragraph (a) as separately amended by
chapter 320 of the laws of 2006 and paragraph (f) as amended by chapter
405 of the laws of 2010, is amended to read as follows:
7. "Designated offender" means a person convicted of [and sentenced
for any one or more of the following provisions of the penal law (a)
sections 120.05, 120.10, and 120.11, relating to assault; sections
125.15 through 125.27 relating to homicide; sections 130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to
sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to
escape and other offenses, where the offender has been convicted within
the previous five years of one of the other felonies specified in this
subdivision; or sections 255.25, 255.26 and 255.27, relating to incest,
a violent felony offense as defined in subdivision one of section 70.02
of the penal law, attempted murder in the first degree, as defined in
section 110.00 and section 125.27 of the penal law, kidnapping in the
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
S. 6733 6 A. 9555
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
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
S. 6733 7 A. 9555
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] ANY FELONY DEFINED IN ANY
CHAPTER OF THE LAWS OF THE STATE OR ANY MISDEMEANOR DEFINED IN THE PENAL
LAW EXCEPT THAT WHERE THE PERSON IS CONVICTED UNDER SECTION 221.10 OF
THE PENAL LAW, ONLY A PERSON CONVICTED UNDER SUBDIVISION TWO OF SUCH
S. 6733 8 A. 9555
SECTION, OR A PERSON CONVICTED UNDER SUBDIVISION ONE OF SUCH SECTION WHO
STANDS PREVIOUSLY CONVICTED OF ANY CRIME AS DEFINED IN SUBDIVISION SIX
OF SECTION 10.00 OF THE PENAL LAW.
S 6. 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) (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, OUTSIDE OF
THE CITY OF NEW YORK, THE COURT SHALL ORDER THAT THE DESIGNATED OFFENDER
REPORT TO AN OFFICE OF THE SHERIFF OF THAT COUNTY, AND WHEN THE DESIG-
NATED OFFENDER DOES SO, SUCH SAMPLE SHALL BE COLLECTED BY THE SHERIFF'S
OFFICE OR A COURT OFFICER. WITHIN THE CITY OF NEW YORK, THE COURT SHALL
ORDER THAT THE SAMPLE BE COLLECTED BY A COURT OFFICER.
(IV) 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, OTHER LAW ENFORCEMENT OFFICIAL, OR DESIG-
NATED PERSONNEL OF THE DIVISION OF CRIMINAL JUSTICE SERVICES WHO HAS
BEEN NOTIFIED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT SUCH
DESIGNATED 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 LAW ENFORCEMENT OFFICIAL, OR
DESIGNATED PERSONNEL OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL
COLLECT THE DNA SAMPLE.
S 7. Nothing in this act shall be construed to create or impose an
affirmative obligation upon laboratories, police departments, district
attorneys, or any other law enforcement agencies or personnel to retain
or preserve property that may contain DNA if such obligation did not
exist prior to the effective date of this act, provided, however, that
nothing in this act shall be construed to affect or remove any such
obligation if it did exist prior to the effective date of this act.
S 8. The actual costs incurred in connection with DNA testing or
keyboard searches performed pursuant to subdivision 1-a of section
440.30 of the criminal procedure law shall be borne by the defendant
requesting such testing or searches, provided, however that the court,
taking into account the defendant's financial resources, as well as any
of the defendant's financial obligations, shall make a determination
whether or not the payment of such cost would impose a hardship upon the
defendant, and in such case, the state shall bear such costs.
S 9. This act shall take effect October 1, 2012; provided, however,
that the amendments to subdivision 7 of section 995 of the executive law
S. 6733 9 A. 9555
made by section five of this act shall apply to conviction of designated
offenses, and subparagraph two of paragraph (a) of subdivision 1-a of
section 440.30 of the criminal procedure law as added by section two of
this act shall apply to a guilty plea entered, on or after such effec-
tive date.