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

                                  10133

                          I N  A S S E M B L Y

                              May 12, 2016
                               ___________

Introduced  by  M.  of  A.  SEPULVEDA  --  read once and referred to the
  Committee on Codes

AN ACT to amend the executive law and the  criminal  procedure  law,  in
  relation  to requiring individuals arrested in connection with certain
  felonies to submit a DNA sample

  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 SECTIONS 130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67,  130.70,
130.75,  130.80,  130.95  AND  130.96  OF THE PENAL LAW, RELATING TO SEX
OFFENSES; AND THE VICTIM IS LESS THAN THIRTEEN YEARS OLD.
  S 2. Subdivision 3 of section 995-c of the executive law is amended by
adding four new paragraphs (c), (d), (e) and (f) to read as follows:
  (C) 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.
  (D) 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.
  (E) 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.
  (F)  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

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

                                                           LBD10621-03-6

A. 10133                            2

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
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 (C) 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

A. 10133                            3

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.
  (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 (C) 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.

A. 10133                            4

  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-
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

A. 10133                            5

unnecessary  delay  bring  him or cause him to be brought before a local
criminal court, as provided in section 100.55  and  subdivision  one  of
section 140.20 OF THIS TITLE, and must without unnecessary 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 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 chapter 449 of the
laws of 2015 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, or (ii) a law
enforcement agency upon ex parte motion in any superior court, or in any
district court, city court or the criminal court of the city of New York
provided that such court sealed the record, 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

A. 10133                            6

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 supervision, 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  chap-
ter, in relation to an application 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 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; [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 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph (d) as amended by chapter 449  of  the
laws  of 2015 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, or (ii) a  law  enforcement  agency  upon  ex
parte motion in any superior court, or in any district court, city court
or  the  criminal court of the city of New York provided that such court
sealed the record, 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 super-
vision of the accused when the  arrest  which  is  the  subject  of  the
inquiry  is  one  which occurred while the accused was under such super-
vision, or (vi) a police agency, probation department, sheriff'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 deter-

A. 10133                            7

mined 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.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law.