A. 4394--A 2
federal bureau of investigation provided that the commission determines
that such exchange, use and storage are consistent with the provisions
of this article and applicable provisions of law[.]; AND
(C) WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH, DETER-
MINE, CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE MINIMUM PERIOD OF
TIME THAT FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERI-
AL, OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME
SCENES, SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME OR
SPECIFIED EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE
INTEREST OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE
DESTROYED, AND DETERMINE STANDARDS FOR THE CATALOGING AND MAINTAINING
RECORDS OF SUCH SAMPLES. PENDING THE PROMULGATION OF A POLICY ADDRESS-
ING THE ISSUES SET FORTH IN THIS PARAGRAPH, THE COMMISSION MAY ADOPT AN
INTERIM POLICY MANDATING THE PRESERVATION BY INVESTIGATING AUTHORITIES
OF FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL
OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME SCENES.
S 2. Subdivision 1 of section 995-a of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
1. There is hereby created in the executive department, the commission
on forensic science, which shall consist of the following [fourteen]
SIXTEEN members: (a) the commissioner of the division of criminal
justice services who shall be chair of the commission and the commis-
sioner of the department of health or his or her designee, who shall
serve as an ex-officio member of the commission;
(b) [twelve] FOURTEEN members appointed by the governor.
S 3. Paragraph (i) of subdivision 2 of section 995-a of the executive
law, as added by chapter 737 of the laws of 1994, is amended, paragraph
(j) is relettered paragraph (k) and a new paragraph (j) is added to read
as follows:
(i) two members shall be members-at-large, one of whom shall be
appointed upon the recommendation of the temporary president of the
senate, and one of whom shall be appointed upon the recommendation of
the speaker of the assembly; [and]
(J) TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL BE
A CRIME VICTIMS ADVOCATE, AND ONE SUCH PERSON SHALL BE AN EXPERT IN
BIOMEDICAL ETHICS; AND
S 4. Article 23 and sections 860 and 861 of the judiciary law, as
renumbered by chapter 840 of the laws of 1983, are renumbered article 24
and sections 1000 and 1001 and a new article 23 is added to read as
follows:
ARTICLE 23
STATE COMMISSION FOR THE INTEGRITY
OF THE CRIMINAL JUSTICE SYSTEM
SECTION 900. DEFINITION.
901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
SYSTEM.
902. PURPOSE AND CONDUCT OF THE COMMISSION.
903. POWERS AND DUTIES.
904. USE OF REPORTS.
S 900. DEFINITION. AS USED IN THIS ARTICLE, "COMMISSION" SHALL MEAN
THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM
ESTABLISHED PURSUANT TO SECTION NINE HUNDRED ONE OF THIS ARTICLE.
S 901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
SYSTEM. 1. THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL
A. 4394--A 3
JUSTICE SYSTEM IS HEREBY ESTABLISHED AS AN INDEPENDENT AGENCY OF THE
STATE. THE COMMISSION SHALL CONSIST OF TEN MEMBERS AS FOLLOWS:
(A) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES;
(B) FOUR MEMBERS APPOINTED BY THE GOVERNOR, OF WHOM:
(I) ONE SHALL BE A REPRESENTATIVE OF A LAW ENFORCEMENT AGENCY,
(II) ONE SHALL BE A REPRESENTATIVE OF THE PUBLIC CRIMINAL DEFENSE BAR
OR PRIVATE CRIMINAL DEFENSE BAR WHO SHALL BE APPOINTED UPON THE RECOM-
MENDATION OF AN ORGANIZATION WITH MORE THAN SEVEN HUNDRED FIFTY DUES
PAYING MEMBERS REPRESENTING SUCH PUBLIC OR PRIVATE DEFENSE SERVICES,
(III) ONE SHALL BE A REPRESENTATIVE OF VICTIMS RIGHTS ADVOCACY OR
SERVICES ORGANIZATIONS, AND
(IV) ONE SHALL BE A REPRESENTATIVE OF THE FORENSIC SCIENCE FIELD;
(C) A MEMBER APPOINTED BY THE ATTORNEY GENERAL WHO SHALL BE A REPRE-
SENTATIVE OF PROSECUTION SERVICES;
(D) TWO MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS,
OF WHOM:
(I) ONE SHALL BE A RETIRED JUDGE OR JUSTICE OF A NEW YORK STATE COURT
OF RECORD, AND
(II) ONE SHALL BE A PROFESSOR OF LAW OR A RETIRED FULL TIME PROFESSOR
OF LAW WHO HAS TAUGHT LAW SCHOOL COURSES IN CRIMINAL LAW, CRIMINAL
PROCEDURE, CONSTITUTIONAL LAW, OR EVIDENCE AT AN ACCREDITED POST-GRADU-
ATE COLLEGE IN NEW YORK STATE;
(E) ONE MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE, WHO
SHALL BE A MEMBER OF THE PUBLIC-AT-LARGE; AND
(F) ONE MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY, WHO SHALL BE
A MEMBER OF THE PUBLIC-AT-LARGE.
2. THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL SERVE AN INDEF-
INITE TERM. THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE A TERM OF
FOUR YEARS. THE RETIRED JUDGE OR JUSTICE APPOINTED BY THE CHIEF JUDGE
SHALL SERVE A TERM OF THREE YEARS. THE PROFESSOR OF LAW OR RETIRED
PROFESSOR OF LAW APPOINTED BY THE CHIEF JUDGE SHALL SERVE A TERM OF TWO
YEARS. THE MEMBERS APPOINTED BY THE ATTORNEY GENERAL, THE TEMPORARY
PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY SHALL EACH SERVE
A TERM OF TWO YEARS. EACH OF THE MEMBERS OF THE COMMISSION, EXCEPT THE
COMMISSIONER OF CRIMINAL JUSTICE SERVICES, APPOINTED THEREAFTER SHALL
SERVE A TERM OF FIVE YEARS. EVERY VACANCY OCCURRING PRIOR TO THE EXPI-
RATION OF A MEMBER'S TERM SHALL BE FILLED FOR THE REMAINDER OF SUCH TERM
IN THE MANNER PROVIDED FOR THE ORIGINAL APPOINTMENT TO SUCH TERM. UPON
THE EXPIRATION OF THE TERM OF A MEMBER OF THE COMMISSION, SUCH MEMBER
SHALL CONTINUE TO SERVE UNTIL HIS OR HER SUCCESSOR IS APPOINTED.
3. THE COMMISSION SHALL ELECT A CHAIR FROM AMONGST ITS MEMBERS BY A
MAJORITY VOTE OF THE MEMBERS THEREOF.
4. NO MEMBER OF THE COMMISSION SHALL BE DISQUALIFIED FROM HOLDING ANY
PUBLIC OFFICE OR EMPLOYMENT, NOR SHALL HE OR SHE FORFEIT ANY SUCH OFFICE
OR EMPLOYMENT, BY REASON OF HIS OR HER APPOINTMENT PURSUANT TO THIS
SECTION, AND THE MEMBERS OF THE COMMISSION SHALL BE REQUIRED TO TAKE AND
FILE OATHS OF OFFICE BEFORE SERVING ON THE COMMISSION.
5. THE COMMISSION SHALL MEET AT LEAST FOUR TIMES EACH YEAR AT PREDE-
TERMINED TIMES AND LOCATIONS ANNOUNCED IN ADVANCE, AND AT SUCH OTHER
TIMES AS THE CHAIR OF THE COMMISSION OR FOUR OR MORE MEMBERS SHALL
DETERMINE TO BE NECESSARY.
6. FOR ANY ACTION AUTHORIZED BY THIS ARTICLE, FIVE MEMBERS OF THE
COMMISSION SHALL CONSTITUTE A QUORUM AND, EXCEPT AS OTHERWISE PROVIDED
IN SUBDIVISIONS THREE AND FIVE OF THIS SECTION, THE CONCURRENCE OF SIX
MEMBERS OF THE COMMISSION SHALL BE NECESSARY.
A. 4394--A 4
7. THE MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
COMPENSATION, BUT SHALL BE ENTITLED TO RECEIVE ACTUAL AND NECESSARY
EXPENSES INCURRED IN THE DISCHARGE OF THEIR DUTIES PURSUANT TO THIS
ARTICLE.
S 902. PURPOSE AND CONDUCT OF THE COMMISSION. THE COMMISSION SHALL
REVIEW ANY CRIMINAL OR JUVENILE CASE INVOLVING A WRONGFUL CONVICTION AND
RECOMMEND REFORMS TO LESSEN THE LIKELIHOOD OF A SIMILAR WRONGFUL
CONVICTION OCCURRING IN THE FUTURE.
WHENEVER A PERSON WHO HAS BEEN CONVICTED OF A CRIME OR ADJUDICATED A
YOUTHFUL OFFENDER OR JUVENILE DELINQUENT IS SUBSEQUENTLY DETERMINED TO
BE INNOCENT OF SUCH CRIME OR OFFENSE AND EXONERATED, THE COMMISSION
SHALL CONDUCT AN INVESTIGATION, HOLD HEARINGS ON AND MAKE FINDINGS OF
FACT REGARDING THE WRONGFUL CONVICTION IN ORDER TO DETERMINE THE CAUSE
OR CAUSES OF THE WRONGFUL CONVICTION.
UPON THE COMPLETION OF SUCH PROCESS, THE COMMISSION, WITHIN SIXTY
DAYS, SHALL ISSUE A PRELIMINARY WRITTEN REPORT OF ITS FINDINGS OF FACT
AND CONCLUSIONS, AND ANY RECOMMENDATIONS TO PREVENT WRONGFUL CONVICTIONS
FROM OCCURRING UNDER SIMILAR CIRCUMSTANCES IN THE FUTURE. WITHIN ONE
HUNDRED TWENTY DAYS AFTER ISSUING SUCH PRELIMINARY REPORT, THE COMMIS-
SION SHALL ISSUE ITS REPORT AND RECOMMENDATIONS CONCERNING THE MATTER.
SUCH REPORT AND RECOMMENDATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC,
AND SHALL BE DELIVERED TO THE GOVERNOR, ATTORNEY GENERAL, CHIEF JUDGE OF
THE COURT OF APPEALS, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF THE
ASSEMBLY, AND TO ANY GOVERNMENTAL UNIT OR AGENCY THAT THE COMMISSION
FINDS MAY HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDICATION OF THE
WRONGFUL CONVICTION. THE COMMISSION SHALL ALSO MAKE AVAILABLE AN ANNUAL
REPORT DETAILING, AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR FORMAL
AND INFORMAL INVESTIGATION, THE NUMBER OF COMPLETED INVESTIGATIONS AND
THE STATUS OF ON-GOING OR PENDING INVESTIGATIONS.
S 903. POWERS AND DUTIES. THE COMMISSION SHALL HAVE THE POWERS AND
DUTIES TO:
1. ESTABLISH ITS OWN REASONABLE RULES AND PROCEDURES CONCERNING THE
CONDUCT OF ITS MEETINGS AND OTHER AFFAIRS RELATED TO IMPLEMENTING THE
PROVISIONS OF THIS ARTICLE;
2. EMPLOY AND REMOVE SUCH OFFICERS, INVESTIGATORS AND EMPLOYEES AS IT
MAY DEEM NECESSARY FOR THE PERFORMANCE OF ITS POWERS AND DUTIES PURSUANT
TO THIS ARTICLE, AND FIX THEIR COMPENSATION WITHIN THE AMOUNTS MADE
AVAILABLE THEREFOR;
3. CONDUCT INVESTIGATIONS AND HEARINGS, ADMINISTER OATHS OR AFFIRMA-
TIONS, SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
OATH OR AFFIRMATION, REQUIRE PRODUCTION OF ANY BOOKS, RECORDS, DOCUMENTS
OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO AN INVESTI-
GATION, AND MAY DESIGNATE ANY OF ITS MEMBERS, OFFICERS OR INVESTIGATORS
TO EXERCISE ANY SUCH POWERS; PROVIDED, HOWEVER, NOTHING IN THIS SUBDIVI-
SION SHALL AUTHORIZE THE ISSUANCE OF A SUBPOENA OR COMPELLED QUESTIONING
OF THE TRIAL COURT JUDGE OR ANY APPELLATE COURT JUDGE CONCERNING THE
JUDGE'S MENTAL PROCESSES IN ARRIVING AT ANY DECISION IN A CASE;
4. REQUEST AND RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE OR A POLITICAL SUBDIVI-
SION THEREOF OR ANY PUBLIC AUTHORITY SUCH ASSISTANCE, INFORMATION,
RECORDS AND DATA AS WILL ENABLE IT TO PROPERLY CARRY OUT ITS POWERS AND
DUTIES;
5. ISSUE PRELIMINARY REPORTS ON ANY INVESTIGATION CONDUCTED PURSUANT
TO THIS ARTICLE, WHICH PRELIMINARY REPORTS SHALL INCLUDE FINDINGS OF
FACT AND RECOMMENDATIONS, AND INVITE ANY PARTY DIRECTLY INVOLVED IN THE
WRONGFUL CONVICTION, WHICH IS THE SUBJECT OF THE REPORT, TO SUBMIT A
A. 4394--A 5
REPLY WITHIN SIXTY DAYS TO THE COMMISSION CONCERNING THE FINDINGS OF
FACT AND RECOMMENDATIONS IN THE REPORT. ANY SUCH REPLY SHALL BE MADE
AVAILABLE BY THE COMMISSION, TOGETHER WITH ANY RESPONSE BY THE COMMIS-
SION THERETO, TO THE PARTIES LISTED IN SECTION NINE HUNDRED TWO OF THIS
ARTICLE AS PART OF THE COMMISSION'S REPORT AND RECOMMENDATIONS CONCERN-
ING THE MATTER; AND
6. DO ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT THE
PROVISIONS OF THIS ARTICLE.
S 904. USE OF REPORTS. NO PRELIMINARY REPORT, REPORT OR PORTION THERE-
OF ISSUED PURSUANT TO THIS ARTICLE SHALL BE ADMITTED INTO EVIDENCE OR
USED IN ANY CIVIL OR CRIMINAL CAUSE OF ACTION RELATING TO A MATTER WHICH
IS THE SUBJECT OF SUCH REPORT.
S 5. Section 1.20 of the criminal procedure law is amended by adding a
new subdivision 44 to read as follows:
44. "SPECIAL FICTITIOUS NAME INDICTMENT" MEANS AN INDICTMENT OF A
PERSON WHOSE NAME IS UNKNOWN BUT WHOSE IDENTITY IS ESTABLISHED TO THE
SATISFACTION OF A GRAND JURY PURSUANT TO SUBDIVISION ONE OF SECTION
190.65 OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID (DNA)
TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
SHALL INCLUDE A FICTITIOUS NAME, SUCH AS "JOHN DOE" OR "JANE DOE", IN
PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
S 6. Subdivision 3 of section 190.65 of the criminal procedure law is
amended to read as follows:
3. Upon voting to indict a person, a grand jury must, through its
foreman or acting foreman, file an indictment with the court by which it
was impaneled. WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT HIS
OR HER IDENTITY IS ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC DEOXY-
RIBONUCLEIC ACID (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS NAME
INDICTMENT. THE AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
IN LAW FOR THE FILING OF AN INDICTMENT WHEN THE NAME OF AN INDICTED
PERSON IS UNKNOWN.
S 7. Subdivisions 3 and 5 of section 8-b of the court of claims act,
as added by chapter 1009 of the laws of 1984, are amended to read as
follows:
3. In order to present the claim for unjust conviction and imprison-
ment, claimant must establish by documentary evidence that:
(a) he has been convicted of one or more felonies or misdemeanors
against the state and subsequently sentenced to a term of imprisonment,
and has served all or any part of the sentence; and
(b) (i) he has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the [judgement]
JUDGMENT of conviction was reversed or vacated[, and the accusatory
instrument was dismissed,] on any of the following grounds: (A) para-
graph (a), (b), (c), (e), (F) or (g) of subdivision one of section
440.10 of the criminal procedure law; or (B) subdivision one (where
based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
two, three (where the count dismissed was the sole basis for the impri-
sonment complained of) or five of section 470.20 of the criminal proce-
dure law; or (C) comparable provisions of the former code of criminal
A. 4394--A 6
procedure or subsequent law; or (D) the statute, or application thereof,
on which the accusatory instrument was based violated the constitution
of the United States or the state of New York; OR (E) THE CLAIMANT'S
CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN
ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT WHOSE APPLICATION
TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY
SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES
WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND,
INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS (A), (B), (C) AND (D)
OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECI-
SION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A
GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
GRAPH; and
(c) his claim is not time-barred by the provisions of subdivision
seven of this section.
5. In order to obtain a judgment in his favor, claimant must prove by
clear and convincing evidence that:
(a) he has been convicted of one or more felonies or misdemeanors
against the state and subsequently sentenced to a term of imprisonment,
and has served all or any part of the sentence; and
(b) (i) he has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the [judgement]
JUDGMENT of conviction was reversed or vacated[, and the accusatory
instrument was dismissed,] on any of the following grounds: (A) para-
graph (a), (b), (c), (e), (F) [or], (g) OR (G-1) of subdivision one of
section 440.10 of the criminal procedure law; or (B) subdivision one
(where based upon grounds set forth in item (A) [hereof] OF THIS SUBPAR-
AGRAPH), two, three (where the count dismissed was the sole basis for
the imprisonment complained of) or five of section 470.20 of the crimi-
nal procedure law; or (C) comparable provisions of the former code of
criminal procedure or subsequent law; or (D) the statute, or application
thereof, on which the accusatory instrument was based violated the
constitution of the United States or the state of New York; OR (E) THE
CLAIMANT'S CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT
ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT
WHOSE APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUM-
STANCES THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND
PROVIDED THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON
MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS
(A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL
NOT BE BOUND BY A DECISION OF THE CRIMINAL COURT VACATING THE CONVICTION
BASED ONLY ON A GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF
THIS SUBPARAGRAPH; and
(c) he did not commit any of the acts charged in the accusatory
instrument or his acts or omissions charged in the accusatory instrument
did not constitute a felony or misdemeanor against the state, PROVIDED
THAT, WHERE ONE INDICTMENT CONTAINS MULTIPLE COUNTS ARISING FROM SEPA-
RATE COMPLAINTS OR INCIDENTS, THE COURT SHALL CONSIDER ANY CLAIM RELATED
TO SPECIFIED COUNTS IN THE INDICTMENT ARISING OUT OF ONLY ONE OF THE
COMPLAINTS OR INCIDENTS; and
(d) he did not by his own conduct cause or bring about his conviction.
A. 4394--A 7
S 8. Section 995-b of the executive law is amended by adding a new
subdivision 14 to read as follows:
14. THE COMMISSION SHALL REVIEW THE CONFIDENTIALITY SAFEGUARDS WHICH
ARE MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER INFORMATION
FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
SHALL DETERMINE WHETHER ANY ADDITIONAL CONFIDENTIALITY SAFEGUARDS ARE
NECESSARY WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO ISSUE
A REPORT TO THE MAJORITY LEADER OF THE SENATE AND THE SPEAKER OF THE
ASSEMBLY WHICH DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND THE REASONS
FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
SUCH SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT SHALL
ALSO RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES, FOLLOWING
THE ENCODING OF INFORMATION FROM SUCH SAMPLES INTO THE STATE DNA IDEN-
TIFICATION INDEX, SHOULD BE INITIATED OR WHETHER, ALTERNATIVELY, SUCH
SAMPLES SHALL CONTINUE TO BE MAINTAINED.
S 9. Subdivision 2 of section 995-c of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
2. (A) Following the review and approval of the plan by the DNA
subcommittee and the commission and the filing of such plan with the
speaker of the assembly and the temporary president of the senate, the
commissioner of criminal justice services is hereby authorized to estab-
lish a computerized state DNA identification index pursuant to the
provisions of this article. NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
LATION OF DNA IDENTIFICATION PROFILES MAY BE MAINTAINED IN THIS STATE
PROVIDED, HOWEVER, THAT THIS PROHIBITION SHALL NOT BE INTERPRETED TO
PROHIBIT ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED FROM
CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
(B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
S 10. Paragraph (b) of subdivision 9 of section 995-c of the execu-
tive law, as added by chapter 524 of the laws of 2002, is amended and
two new paragraphs (c) and (d) are added to read as follows:
(b) As prescribed in this paragraph, if an individual, either volun-
tarily or pursuant to a warrant or order of a court, has provided a
sample for DNA testing in connection with the investigation or prose-
cution 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 A DISMISSAL AND THE MATTER WILL NOT
BE TRIED OR RETRIED, or (iii) a criminal action against the individual
relating to such crime resulted in a conviction that was subsequently
reversed or vacated, or for which the individual was granted 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 investigation or pros-
ecution 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
A. 4394--A 8
occurred, the trier of fact has rendered a verdict of complete acquit-
tal, and that expungement will not adversely affect the investigation or
prosecution of some other person or persons for the crime. NOTHING IN
THIS PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN THE INTERESTS
OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
ing the expungement of any DNA record and any samples, analyses or other
documents relating to the DNA testing of such individual is issued, such
record and any samples, analyses, or other documents 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 connection
with the application for the order of expungement. THE PERSON DESTROYING
OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND OTHER DOCUMENTS SHALL
MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
RETURN AND IDENTIFYING THE PERSON OR PERSONS DESTROYING OR RETURNING
SAME. THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR TO THE ATTORNEY WHO
REPRESENTED HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
OF EXPUNGEMENT.
(C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH THE
INVESTIGATION OR PROSECUTION OF A CRIME, OTHER THAN IN RESPONSE TO A
DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND THREE OF THIS
SECTION, OR IF A SAMPLE FOR DNA TESTING HAS OTHERWISE COME INTO THE
CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN AGENT THEREOF,
AND THE DNA PROFILE DERIVED FROM SUCH SAMPLE DOES NOT MATCH A DNA
PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN CONNECTION WITH
THE INVESTIGATION OR PROSECUTION OF A CRIMINAL ACT OR ACTS, EVERY
RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA TESTING
OF SUCH SAMPLE SHALL, AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE WITH RESPECT TO THE
INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE LINKED
TO SUCH SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
CRIME HAS CONCLUDED, WHICHEVER FIRST OCCURS, SUCH RECORDS, SAMPLES,
ANALYSES AND OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR
THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED IN A
MANNER CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPH (II), (IV) OR (V)
OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 160.55 OF THE CRIMINAL
PROCEDURE LAW.
(II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
ANALYSES OR OTHER DOCUMENTS IN ACCORDANCE WITH THIS PARAGRAPH SHALL
MAINTAIN A RECORD CERTIFYING THE DATE AND MANNER OF SUCH RETURN,
DESTRUCTION OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
DESTROYING OR SEALING SAME. THE PERSON RETURNING, DESTROYING OR SEALING
SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON WHO SUBMITTED THE
SAMPLE.
(III) THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
APPLY TO DNA RECORDS, SAMPLES, ANALYSES AND OTHER DOCUMENTS OBTAINED
FROM THE FORENSIC EXAMINATION OF CRIME SCENE EVIDENCE, WHERE THE DNA
A. 4394--A 9
PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE DNA
PROFILE OF A KNOWN PERSON.
(D) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED OR SEALED,
AND MAY BE INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF THIS PARA-
GRAPH, THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
CLE. ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED IN THE STATE DNA
IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
S 11. Section 340.20 of the criminal procedure law is amended by
adding a new subdivision 5 to read as follows:
5. PRIOR TO ACCEPTING A DEFENDANT'S PLEA OF GUILTY TO A COUNT OR
COUNTS OF AN INFORMATION CHARGING A MISDEMEANOR, AS DEFINED IN PARAGRAPH
(A) OF SUBDIVISION TWO OF SECTION 55.10 OF THE PENAL LAW AND INCLUDED IN
THE DEFINITION OF DESIGNATED OFFENDER PURSUANT TO SUBDIVISION SEVEN OF
SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL
ADVISE THE DEFENDANT THAT UPON THE CONVICTION FOR SUCH MISDEMEANOR HE OR
SHE WILL BE REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING FOR
INCLUSION IN THE STATE DNA IDENTIFICATION INDEX PURSUANT TO ARTICLE
FORTY-NINE-B OF THE EXECUTIVE LAW. THE COURT SHALL AFFIRM ON THE RECORD
OR IN WRITING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE REQUIRED BY
THIS SUBDIVISION. THE FAILURE OF A COURT TO ADVISE THE DEFENDANT PURSU-
ANT TO THIS SUBDIVISION OR TO OTHERWISE COMPLY WITH THE PROVISIONS OF
THIS SUBDIVISION SHALL NOT BE DEEMED TO AFFECT THE VOLUNTARINESS OF A
PLEA OF GUILTY OR THE VALIDITY OF A CONVICTION.
S 12. The state finance law is amended by adding a new section 97-llll
to read as follows:
S 97-LLLL. ASSISTANCE TO POLICE AND CRIME LABORATORIES: DNA EVIDENCE
FUND. 1. THERE IS HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-
TROLLER A SPECIAL FUND TO BE KNOWN AS THE "ASSISTANCE TO POLICE AND
CRIME LABORATORIES: DNA EVIDENCE FUND".
2. SUCH FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR THE PURPOSE
OF SUCH FUND, ALL OTHER MONIES CREDITED OR TRANSFERRED TO SUCH FUND
PURSUANT TO LAW, ALL MONIES REQUIRED BY THE PROVISIONS OF THIS SECTION
OR ANY OTHER LAW TO BE PAID INTO OR CREDITED TO SUCH ACCOUNT, AND ALL
MONIES RECEIVED BY THE ACCOUNT OR DONATED TO IT.
3. MONIES OF SUCH FUND SHALL BE AVAILABLE FOR APPROPRIATION AND ALLO-
CATION TO THE DIVISION OF STATE POLICE, TO LOCAL POLICE AGENCIES, AND TO
FORENSIC DNA LABORATORIES IN THIS STATE, AS DEFINED IN SUBDIVISION TWO
OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, TO ASSIST SUCH
ENTITIES IN EFFECTIVELY COLLECTING, TESTING AND ANALYZING FORENSIC DNA
CRIME SCENE EVIDENCE PURSUANT TO ARTICLE FORTY-NINE-B OF THE EXECUTIVE
LAW. FIFTY PERCENT OF SUCH FUNDS SHALL BE MADE AVAILABLE FOR APPROPRI-
ATION OR ALLOCATION BY THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES FOR
THE PURPOSE OF FUNDING AN INNOCENCE RESEARCH PROJECT PROGRAM IN THIS
STATE.
4. MONIES OF SUCH FUND SHALL BE PAID OUT ON THE AUDIT AND WARRANT OF
THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER OF
CRIMINAL JUSTICE SERVICES.
S 13. Innocence research project program. 1. There is hereby estab-
lished in this state an innocence research project program. Funding
shall be made available for the purposes of such program to up to three
A. 4394--A 10
not-for-profit organizations by the commissioner of criminal justice
services pursuant to subdivisions 3 and 4 of section 97-llll of the
state finance law.
2. The innocence research project program shall review and study cases
in which there appears to be a reasonable possibility that a person
charged with or convicted of a crime in this state may be innocent of
the crime or crimes charged. Such program may provide legal and other
expert assistance, and may also provide relevant training, including but
not limited to training in the use of DNA evidence for forensic iden-
tification purposes, to attorneys engaged in the defense of criminal
cases.
3. Each not-for-profit organization receiving funding for such program
shall file an annual report with the commissioner of criminal justice
services summarizing the activities of the program during the previous
year. Such report shall be filed within one year after such organization
first receives funding under such program, and annually thereafter for
so long as the program receives such funding.
4. Before providing assistance to any individual believed to be actu-
ally innocent of the crime or crimes charged, the organization-based
coordinator of such program shall determine whether such individual is
financially able to pay for the proposed services or assistance to be
provided. If such individual is able to financially afford to pay for
such services or assistance, such coordinator shall request and receive
such payment or payments on behalf of the program from such individual.
All monies received from individuals pursuant to this subdivision shall
be promptly forwarded by such coordinator to the state comptroller, for
deposit into the "assistance to police and crime laboratories: DNA
evidence fund" established pursuant to section 97-llll of the state
finance law.
S 14. The criminal procedure law is amended by adding a new section
60.47 to read as follows:
S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
ANTS.
1. DEFINITIONS. AS USED IN THIS SECTION:
(A) "ELECTRONIC RECORDING" MEANS A CONTEMPORANEOUS VIDEO AND AUDIO
RECORDING, OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
AUDIO RECORDING.
(B) "CUSTODIAL INTERROGATION" MEANS ANY INTERROGATION WHICH IS
CONDUCTED IN A PLACE OF DETENTION AND DURING WHICH A REASONABLE PERSON
IN THE SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN
CUSTODY.
(C) "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
TY, HOLDING FACILITY FOR PRISONERS, OR OTHER GOVERNMENT FACILITY WHERE
PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES WHICH
HAVE BEEN OR MAY BE FILED AGAINST THEM.
2. DURING THE PROSECUTION OF A FELONY, AN ORAL, WRITTEN, OR SIGN
LANGUAGE STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE AGAINST A DEFENDANT IN A
CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
DIAL INTERROGATION IN ITS ENTIRETY AND THE RECORDING IS SUBSTANTIALLY
ACCURATE AND NOT INTENTIONALLY ALTERED.
3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED TO A CUSTODIAL
INTERROGATION IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY
STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
EVEN IF OTHERWISE IN COMPLIANCE WITH THIS SECTION, ARE ALSO PRESUMED
INADMISSIBLE.
A. 4394--A 11
4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND RELI-
ABLE AND:
(A) EXIGENT CIRCUMSTANCES EXISTED NECESSITATING INTERROGATION AT A
PLACE IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
OR HOLDING FACILITY FOR PRISONERS AND WHERE THE REQUISITE RECORDING
EQUIPMENT WAS NOT READILY AVAILABLE;
(B) THE ACCUSED REFUSED TO HAVE HIS OR HER INTERROGATION ELECTRON-
ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
(C) THE FAILURE TO ELECTRONICALLY RECORD AN ENTIRE INTERROGATION WAS
THE RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT WAS
NOT FEASIBLE.
5. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
(A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
(B) A SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
GATION;
(C) A STATEMENT MADE AFTER QUESTIONING THAT IS ROUTINELY ASKED DURING
THE PROCESSING OF THE ARREST OF THE SUSPECT;
(D) A STATEMENT MADE DURING A CUSTODIAL INTERROGATION THAT IS
CONDUCTED OUT-OF-STATE;
(E) A STATEMENT OBTAINED BY A FEDERAL LAW ENFORCEMENT OFFICER IN A
FEDERAL PLACE OF DETENTION;
(F) A STATEMENT GIVEN AT A TIME WHEN THE INTERROGATORS ARE UNAWARE
THAT A FELONY HAS IN FACT OCCURRED; OR
(G) A STATEMENT, OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
6. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
OF A CUSTODIAL INTERROGATION UNTIL SUCH TIME AS THE DEFENDANT'S
CONVICTION FOR ANY OFFENSE RELATING TO THE INTERROGATION IS FINAL AND
ALL DIRECT AND HABEAS CORPUS APPEALS ARE EXHAUSTED, OR THE PROSECUTION
OF THAT OFFENSE IS BARRED BY LAW.
S 15. This act shall take effect immediately; provided, however, that:
(a) sections nine and ten of this act shall take effect on the one
hundred twentieth day after it shall have become a law;
(b) the amendments to section 340.20 of the criminal procedure law
made by section eleven of this act shall apply to pleas of guilty to a
count or counts of an information entered 60 days or more after the
effective date of this act; and
(c) section fourteen of this act shall take effect on the ninetieth
day after it shall have become a law, and shall apply to any criminal
proceeding commenced on and after such date.