S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3570
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2017
                                ___________
 
 Introduced  by  M. of A. LENTOL, BENEDETTO, COOK, DINOWITZ, ENGLEBRIGHT,
   GALEF, LAVINE, LIFTON -- Multi-Sponsored by -- M.  of  A.  MAGNARELLI,
   PRETLOW,  RAMOS,  TITUS,  ZEBROWSKI  --  read once and referred to the
   Committee on Codes
 
 AN ACT to amend the executive law, the criminal procedure  law  and  the
   state  finance  law,  in  relation to DNA testing, data collection and
   record keeping, and to special indictments by fictitious name  in  DNA
   cases;  and  in  relation  to  creating the innocence research project
   program
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 995-b of the executive law is amended by adding a
 new subdivision 15 to read as follows:
   15. (A) THE COMMISSION, IN CONSULTATION  WITH  THE  DNA  SUBCOMMITTEE,
 SHALL  PROMULGATE A PLAN TO INCLUDE ALL PERSONS CONVICTED OF A PENAL LAW
 MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX. SUCH  PLAN  SHALL  BE
 SUBMITTED  TO  THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, AND THE TEMPO-
 RARY PRESIDENT OF THE SENATE NO LATER THAN DECEMBER FIRST, TWO  THOUSAND
 SEVENTEEN.
   (B) THE PLAN REQUIRED BY THIS SECTION SHALL INCLUDE, BUT NOT BE LIMIT-
 ED TO, THE FOLLOWING:
   (I)  THE  CAPACITY OF THE NEW YORK STATE POLICE FORENSIC INVESTIGATION
 CENTER TO PROCESS DNA SAMPLES COLLECTED FROM DESIGNATED OFFENDERS;
   (II) THE ANTICIPATED INCREASE IN THE NUMBER OF DNA  SAMPLES  COLLECTED
 PER  YEAR  DUE  TO THE INCLUSION OF ALL PERSONS CONVICTED OF A PENAL LAW
 MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX;
   (III) THE ANTICIPATED NUMBER OF DNA SAMPLES  THAT  WILL  BE  COLLECTED
 FROM  PERSONS  IN  CUSTODY  OR UNDER SUPERVISION FOR THE CONVICTION OF A
 PENAL LAW MISDEMEANOR AS OF THE DATE OF SUCH PLAN;

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03816-01-7

              

 A. 3570                             2
 
   (IV) THE ANTICIPATED BACKLOG OF UNANALYZED DNA SAMPLES  THAT  WILL  BE
 CREATED  BY  EXPANDING THE STATE DNA IDENTIFICATION INDEX TO INCLUDE ALL
 PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
   (V)  THE  MANNER IN WHICH A BACKLOG OF THE UNANALYZED DNA SAMPLES WILL
 BE PROCESSED, AND SPECIFICALLY, WHETHER THE STATE WILL  BE  REQUIRED  TO
 OUTSOURCE THE ANALYSIS OF BACKLOGGED SAMPLES TO PRIVATE LABORATORIES;
   (VI)  THE  ESTIMATED  AMOUNT OF TIME IT WILL TAKE TO ANALYZE ALL BACK-
 LOGGED DNA SAMPLES;
   (VII) THE ANTICIPATED COST TO COLLECT AND ANALYZE  DNA  SAMPLES  TAKEN
 FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR EACH YEAR AND THE COST
 TO  COLLECT  AND  ANALYZE  DNA  SAMPLES TAKEN FROM PERSONS IN CUSTODY OR
 UNDER SUPERVISION FOR THE CONVICTION OF A PENAL LAW MISDEMEANOR;
   (VIII) THE ANNUAL NUMBER OF ARRESTS, INDICTMENTS, AND CONVICTIONS THAT
 HAVE RESULTED FROM COMPARING DNA RECORDS OF DESIGNATED OFFENDERS  STORED
 IN  THE  STATE  DNA  IDENTIFICATION  INDEX WITH DNA RECORDS FROM UNKNOWN
 SUSPECTS DERIVED FROM THE FORENSIC EXAMINATION OF CRIME SCENES;
   (IX) THE ANTICIPATED EFFECT ON THE PROMPT AND ACCURATE  PROCESSING  OF
 DNA  SAMPLES COLLECTED FROM THE FORENSIC EXAMINATION OF CRIME SCENES DUE
 TO THE INFLUX OF DNA SAMPLES COLLECTED FROM PERSONS CONVICTED OF A PENAL
 LAW MISDEMEANOR.
   (C) THE PLAN REQUIRED BY THIS SECTION SHALL ALSO RECOMMEND:
   (I) THE AMOUNT OF FUNDING NECESSARY TO COLLECT AND ANALYZE DNA SAMPLES
 COLLECTED FROM ALL PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
   (II) THE MOST EFFECTIVE WAY TO PROCESS THE  INCREASED  NUMBER  OF  DNA
 SAMPLES  COLLECTED  FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR TO
 REDUCE ANY RESULTING BACKLOG IN AN EFFICIENT MANNER; AND
   (III) WHETHER ADDITIONAL QUALITY ASSURANCE MEASURES SHOULD  BE  IMPLE-
 MENTED  IN CONJUNCTION WITH SUCH EXPANSION AND WHAT SUCH MEASURES SHOULD
 BE.
   § 2. The opening paragraph of 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:
   There is hereby created in the executive department, the commission on
 forensic science,  which  shall  consist  of  the  following  [fourteen]
 SIXTEEN members:
   §  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  (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
   § 4.  Subparagraph (ix) of paragraph (b) of subdivision 9  of  section
 995-b of the executive law, as added by chapter 737 of the laws of 1994,
 is amended and a new subparagraph (x) is added to read as follows:
   (ix)  such policy shall provide for the mutual exchange, use and stor-
 age of DNA records with the system of DNA identification utilized by the
 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

 A. 3570                             3

   (X) SUCH POLICY, WHICH SHALL BE DEVELOPED AND PROMULGATED  WITHIN  ONE
 YEAR  OF  THE  EFFECTIVE  DATE  OF  THIS  SUBPARAGRAPH, SHALL DETERMINE,
 CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE  MINIMUM  PERIOD  OF  TIME
 THAT  FORENSIC  SAMPLES  OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL,
 OBTAINED  IN  CONNECTION  WITH THE FORENSIC EXAMINATION OF CRIME SCENES,
 SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME  OR  SPECI-
 FIED  EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE INTEREST
 OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE DESTROYED. PEND-
 ING THE PROMULGATION OF A POLICY ADDRESSING THE ISSUES SET FORTH IN THIS
 SUBPARAGRAPH, 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.
   §  5.  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 TEMPORARY PRESIDENT 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.
   §  6. 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.
   § 7.  Paragraph (b) of subdivision 9 of section 995-c of the executive
 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

 A. 3570                             4
 
 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
 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 SUBPARAGRAPHS (II), (IV) OR (V)

 A. 3570                             5
 
 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
 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.
   §  8.    Section 995-c of the executive law is amended by adding a new
 subdivision 10 to read as follows:
   10. A SUPERIOR COURT, IN RESPONSE TO A MOTION FOR SUCH COMPARISON BY A
 DEFENDANT, MAY ORDER THAT DNA INFORMATION FROM A CRIME SCENE  SAMPLE  OR
 SAMPLES  OBTAINED IN THE COURSE OF THE INVESTIGATION OF AN ALLEGED CRIME
 BE CHECKED AGAINST THE DNA RECORDS MAINTAINED BY  OR  AVAILABLE  THROUGH
 THE  STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSUANT TO THIS SECTION
 AND THE NATIONAL DNA INDEX SYSTEM, AND THAT THE RESULTS OF SUCH CHECK OR
 CHECKS BE DISCLOSED TO SUCH DEFENDANT AND TO THE PROSECUTOR WHOSE JURIS-
 DICTION INCLUDES THE LOCATION OF THE ALLEGED COMMISSION OF  SUCH  CRIME,
 UPON A SHOWING BY THE DEFENDANT THAT SUCH AN ANALYSIS MAY BE MATERIAL TO
 HIS OR HER DEFENSE AND THAT THE REQUEST IS REASONABLE.
   §  9.  Section 995-d of the executive law is amended by adding two new
 subdivisions 3 and 4 to read as follows:
   3. IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION, ANY INDIVID-
 UAL DNA PROFILE OBTAINED OR MAINTAINED BY A STATE, COUNTY OR  LOCAL  LAW
 ENFORCEMENT  AGENCY,  OR  AN  AGENT  THEREOF,  FROM  A BIOLOGICAL SAMPLE
 SUBMITTED IN THE MANNER DESCRIBED IN PARAGRAPH (B) OR (C) OF SUBDIVISION
 NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  MAY  BE
 COMPARED  INDIVIDUALLY  OR  VIA COMPUTERIZED DATABASE TO ONE OR MORE DNA
 PROFILES MAINTAINED PURSUANT TO OR IN ACCORDANCE WITH SUBDIVISIONS  ONE,
 TWO  AND  THREE  OF  SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE,
 AND/OR MAY BE INDIVIDUALLY COMPARED BY SUCH STATE, COUNTY OR  LOCAL  LAW
 ENFORCEMENT  AGENCY,  OR  AN  AGENT THEREOF, TO ONE OR MORE DNA PROFILES
 DEVELOPED FROM THE FORENSIC EXAMINATION OF CRIME SCENES IN ONE  OR  MORE
 CASES UNDER INVESTIGATION.
   (A)  IF  SUCH INDIVIDUAL DNA PROFILE MATCHES THE DNA PROFILE DEVELOPED
 FROM THE FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE OR MORE
 CASES UNDER INVESTIGATION, AND/OR ONE OR MORE  DNA  PROFILES  MAINTAINED
 PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND THREE OF SECTION NINE HUNDRED

 A. 3570                             6
 
 NINETY-FIVE-C OF THIS ARTICLE, SUCH  INDIVIDUAL  DNA  PROFILE,  TOGETHER
 WITH  THE BIOLOGICAL MATERIAL FROM WHICH SUCH INDIVIDUAL DNA PROFILE WAS
 DEVELOPED, MAY, AS APPROPRIATE PURSUANT TO APPLICABLE LAWS AND RULES  OF
 EVIDENCE  AND  CONSISTENT  WITH THIS ARTICLE, BE USED IN CONNECTION WITH
 THE INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF SUCH PERSON.
   (B) IF SUCH INDIVIDUAL DNA PROFILE DOES  NOT  MATCH  THE  DNA  PROFILE
 DEVELOPED  FROM  FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE
 OR MORE CASES UNDER INVESTIGATION, AND/OR ONE OR MORE DNA PROFILES MAIN-
 TAINED PURSUANT TO SUBDIVISIONS ONE,  TWO  AND  THREE  OF  SECTION  NINE
 HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  SUCH INDIVIDUAL DNA PROFILE,
 TOGETHER WITH THE BIOLOGICAL MATERIAL FROM  WHICH  SUCH  INDIVIDUAL  DNA
 PROFILE  WAS DEVELOPED, SHALL BE DEALT WITH IN ACCORDANCE WITH PARAGRAPH
 (C) OF SUBDIVISION NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS
 ARTICLE.
   4. (A) EXCEPT WHERE THE DEMAND IS PURSUANT TO A COURT ORDER OR WARRANT
 OR  PURSUANT  TO SUBDIVISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C
 OF THIS ARTICLE, PRIOR TO REQUESTING A BIOLOGICAL SAMPLE FROM  AN  INDI-
 VIDUAL  THAT  WILL  BE  USED FOR DNA TESTING, THE POLICE DEPARTMENT, LAW
 ENFORCEMENT AGENCY, OR AGENT THEREOF REQUESTING SUCH SAMPLE SHALL OBTAIN
 WRITTEN INFORMED CONSENT FROM  SUCH  INDIVIDUAL  CONSISTING  OF  WRITTEN
 AUTHORIZATION IN PLAIN LANGUAGE THAT IS DATED AND SIGNED AND INCLUDES AT
 LEAST THE FOLLOWING: (1) A GENERAL DESCRIPTION OF THE TEST; (2) A STATE-
 MENT  THAT  THE  DNA  SAMPLE  OF  THE  SUBJECT MAY INITIALLY BE COMPARED
 AGAINST ANY CRIME SCENE EVIDENCE OR DATABASE OF CRIME SCENE EVIDENCE AND
 A DESCRIPTION OF WHETHER, IN THE EVENT  SUCH  SUBJECT  SAMPLE  DOES  NOT
 MATCH  A  DNA  PROFILE  DERIVED FROM ANY SUCH CRIME SCENE EVIDENCE, SUCH
 SUBJECT SAMPLE WILL THEREAFTER BE RETURNED, DESTROYED OR RETAINED.    IN
 THE  EVENT THE AGENT REQUESTING SUCH SAMPLE MAY RETAIN SUCH SAMPLE, SUCH
 STATEMENT SHALL DESCRIBE THE CIRCUMSTANCES UNDER WHICH SUCH  SAMPLE  MAY
 THEREAFTER  BE  LAWFULLY  USED;  (3)  THE NAME OF THE PERSON OR SPECIFIC
 CATEGORIES OF PERSONS OR ORGANIZATIONS TO WHOM THE TEST RESULTS  MAY  BE
 DISCLOSED;  (4)  A  STATEMENT  THAT NO TESTS OTHER THAN THOSE AUTHORIZED
 SHALL BE PERFORMED ON THE BIOLOGICAL SAMPLE; AND (5) A  SUMMARY  OF  THE
 INFORMATION  SET  FORTH IN PARAGRAPHS (B) AND (C) OF SUBDIVISION NINE OF
 SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE.
   (B) NONCOMPLIANCE WITH ANY PROVISION OF THIS SUBDIVISION SHALL NOT  IN
 AND  OF  ITSELF AFFECT THE ADMISSIBILITY OF EVIDENCE OR OTHERWISE AFFECT
 ANY CONVICTION OR CRIMINAL PROSECUTION.
   § 10.  Section 995-f of the executive law, as amended by  chapter  560
 of the laws of 1999, is amended to read as follows:
   § 995-f. Penalties.  Any  person who (a) intentionally discloses a DNA
 record, or the results of a forensic DNA test or analysis, to  an  indi-
 vidual  or  agency  other  than  one  authorized  to have access to such
 records pursuant to this article or (b) intentionally uses  or  receives
 DNA  records,  or  the  results  of a forensic DNA test or analysis, for
 purposes other than those authorized pursuant to this article or (c) any
 person who knowingly tampers or attempts to tamper with any  DNA  sample
 or  the  collection  container  without  lawful  authority OR (D) INTEN-
 TIONALLY SUBJECTS TO OR SUBMITS FOR TESTING OR ANALYSIS  NOT  AUTHORIZED
 BY THIS ARTICLE AN INDIVIDUAL'S DNA RECORD OR SAMPLE, shall be guilty of
 a class [E] D felony.
   §  11. 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

 A. 3570                             7
 
 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.
   § 12. 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.
   §  13.  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.
   §  14. Subdivision 1-a of section 440.30 of the criminal procedure law
 is amended by adding a new paragraph (d) to read as follows:
   (D) IN CONJUNCTION WITH THE FILING OF A MOTION UNDER THIS SUBDIVISION,
 THE COURT MAY DIRECT THE STATE TO PROVIDE THE MOVANT  WITH  INFORMATION,
 INCLUDING  DOCUMENTS,  NOTES,  LOGS OR REPORTS, RELATING TO ANY PHYSICAL
 ITEMS COLLECTED IN CONNECTION WITH THE CASE, WHERE IT IS LIKELY ANY SUCH
 PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING, WOULD YIELD DNA INFORMATION
 THAT MEETS THE STANDARD SET FORTH IN PARAGRAPH (A) OF THIS  SUBDIVISION.
 THE COURT MAY DIRECT THE STATE TO PROVIDE OTHER REASONABLE ASSISTANCE TO
 THE  MOVANT  IN  LOCATING ANY SUCH RECORDS OR ITEMS OF PHYSICAL EVIDENCE
 WHICH MAY HAVE BEEN LOST OR DESTROYED. THE COURT  MAY  ALSO  DIRECT  THE
 PEOPLE TO TAKE REASONABLE MEASURES TO ATTEMPT TO LOCATE ANY SUCH RECORDS
 OR  PHYSICAL  ITEMS  THAT MAY BE IN GOVERNMENT CUSTODY AND/OR ASSIST THE
 MOVANT IN LOCATING ANY SUCH RECORDS OR PHYSICAL ITEMS THAT MAY BE IN THE
 CUSTODY OF A PUBLIC OR PRIVATE HOSPITAL, LABORATORY OR  OTHER  FACILITY.
 THE  COURT  SHALL DENY A REQUEST FOR ASSISTANCE BROUGHT UNDER THIS PARA-
 GRAPH IF THE COURT DETERMINES THAT SUCH REQUEST FOR ASSISTANCE IS FRIVO-
 LOUS, ABUSIVE OR INAPPROPRIATE.
   § 15. The state finance law is amended by adding a new section 97-pppp
 to read as follows:
   § 97-PPPP. ASSISTANCE TO POLICE AND CRIME LABORATORIES;  DNA  EVIDENCE
 FUND.    1.  THERE  IS  HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-

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 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.
   § 16. 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
 not-for-profit  organizations  by  the  commissioner of criminal justice
 services pursuant to subdivisions 3 and 4  of  section  97-pppp  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-pppp of the state
 finance law.
   § 17. This act shall take effect immediately; provided, however, that:
   (a) the amendments to paragraph (a) of subdivision 2 of section  995-c
 of  the  executive law made by section six of this act shall take effect
 on the one hundred twentieth day after it shall have become a law; and

 A. 3570                             9
 
   (b) the amendments to section 340.20 of  the  criminal  procedure  law
 made by section thirteen 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.