BILL NUMBER:  S7069

 TITLE OF BILL :  An act to amend the executive law and the criminal
procedure law, in relation to the definition of designated offender

 PURPOSE :

To exempt victims of sex trafficking from the requirement to provide a
DNA sample for inclusion in the state DNA identification index

 SUMMARY OF PROVISIONS :

Section one amends subdivision 7 of section 995 of the Executive Law,
as amended by Chapter 19 of the Laws of 2012, to provide that the
definition of designated offender shall not include (i) a person
convicted of loitering for the purpose of engaging in prostitution
under subdivision two of section 240.37 of the penal law, (ii) a
person convicted of prostitution under section 230.00 of the penal
law, or (iii) a person whose participation in the offense is
determined by a court was to have been a result of having been a
victim of sex trafficking under section 230.34 of the penal law or
trafficking in persons under the Trafficking Victims Protection Act
(United States Code, title 22, chapter 78).  Section two amends
subdivision two of section 420.35 of the criminal procedure law, as
amended by Chapter 426 of the Laws of 2015, to make technical
amendments as necessitated by the amendment to such section by Chapter
              

368 of the Laws of 2015.

Section three provides the effective date.

 JUSTIFICATION :

Pursuant to section 995-c (3)(a) of the Executive Law, a designated
offender convicted and sentenced for a crime is required to provide a
sample appropriate for DNA testing to determine identification
characteristics specific to such person and to be included in the
state's DNA identification index. Section 995(7) of the Executive Law
defines a designated offender to be any person convicted of a felony
or any misdemeanor defined in the penal law other than a person who,
as a first time offense, knowingly and unlawfully possesses marijuana
in a public place and the marijuana is burning or open to public view.

New York has been a leader in enacting laws that recognize that
sexually exploited persons should be treated as victims and not as
criminals, including most recently by passing and having signed into
law the comprehensive Trafficking Victims Protection and Justice Act
(Chapter 368 of the Laws of 2015) and legislation to require courts to
waive payment by sex trafficking victims of a mandatory surcharge,
crime victim assistance fee and DNA databank fee where the victim is
convicted of a misdemeanor or a violation (Ch. 385 of the Laws of 2014
and Ch. 426 of the Laws of 2015).

As we have learned, a young woman may be forced to engage in
prostitution by her sex trafficker. Although she faces conviction, she
may not be prepared, for a variety of reasons, to seek or receive
services, primarily because she is still under the control of her
exploiter and does not believe she can escape her situation.
Accordingly, she may decide, for example, to plead guilty to a
misdemeanor offense of loitering for the purpose of engaging in
prostitution to be able to return to the streets.

This legislation will exclude from the definition of a designated
offender a person convicted of prostitution or loitering for the
purpose of engaging in prostitution or a person whose participation in
the offense the court determines was a result of having been a sex
trafficking victim under federal or New York state trafficking law.
By stating that these victims are not designated offenders, these
victims will not be required to provide DNA samples to be included in
the state DNA identification database.

We have been steadfast in our commitment to the principle that a
person who is commercially sexually exploited is a victim, and must
not be treated as a criminal. However, by continuing to require sex
trafficking victims to provide DNA samples following conviction, we
run afoul of that commitment and we treat these victims as criminals.
These victims have entered our criminal justice system by virtue of
their enslavement at the hands of their traffickers. The basic human
rights of sex trafficking victims have already been violated by their
traffickers; we should not compound the further violation of their
rights by requiring a DNA sample.

 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.