S T A T E O F N E W Y O R K
________________________________________________________________________
7371
2017-2018 Regular Sessions
I N A S S E M B L Y
April 25, 2017
___________
Introduced by M. of A. TITONE -- read once and referred to the Committee
on Codes
AN ACT to amend the executive law, in relation to DNA databanks' treat-
ment of volunteer DNA samples
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, as added by chapter 737
of the laws of 1994, subdivision 7 as amended by chapter 19 of the laws
of 2012, is amended to read as follows:
§ 995. Definitions. When used in this article, the following words and
terms shall have the meanings ascribed to them in this section:
1. For purposes of general forensic analysis the term "forensic labo-
ratory" shall mean any laboratory operated by the state or unit of local
government that performs forensic testing on evidence in a criminal
investigation or proceeding or for purposes of identification provided,
however, that the examination of latent fingerprints by a police agency
shall not be subject to the provisions of this article.
2. For purposes of forensic DNA analysis, the term "forensic DNA labo-
ratory" shall mean any forensic laboratory operated by the state or unit
of local government, that performs forensic DNA testing on crime scenes
or materials derived from the human body for use as evidence in a crimi-
nal proceeding or for purposes of identification and the term "forensic
DNA testing" shall mean any test that employs techniques to examine
deoxyribonucleic acid (DNA) derived from the human body for the purpose
of providing information to resolve issues of identification. Regu-
lation pursuant to this article shall not include DNA testing on materi-
als derived from the human body pursuant to title five of article five
of the public health law for the purpose of determining a person's
genetic disease or medical condition and shall not include a laboratory
operated by the federal government.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10999-01-7
A. 7371 2
3. "DNA testing methodology" means methods and procedures used to
extract and analyze DNA material, as well as the methods, procedures,
assumptions, and studies used to draw statistical inferences from the
test results.
4. "Blind external proficiency testing" means a test sample that is
presented to a forensic laboratory for forensic DNA testing through a
second agency, and which appears to the analysts to involve routine
evidence submitted for forensic DNA testing.
5. "DNA" means deoxyribonucleic acid.
5-A. "DNA PROFILE" MEANS A SET OF DNA IDENTIFICATION CHARACTERISTICS
WHICH MAY PERMIT THE DNA OF ONE PERSON TO BE DISTINGUISHABLE FROM THAT
OF ANOTHER PERSON. FOR SHORT TANDEM REPEAT DNA PROFILES, IT MEANS THE
LIST OF ALLELES CARRIED BY A PARTICULAR INDIVIDUAL AT A SPECIFIC SET OF
GENETIC LOCI.
5-B. "SUBJECT DNA PROFILE" MEANS THE DNA PROFILE GENERATED BY ANALYSIS
OF A BIOLOGICAL SAMPLE COLLECTED FROM A SUBJECT CONVICTED OF A CRIME
WHOSE SPECIMEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA
AGREEMENT; AS A CONDITION OF PARTICIPATION IN A TEMPORARY RELEASE,
COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) OR SHOCK
INCARCERATION PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE
SUPERVISION, PRESUMPTIVE RELEASE OR CONDITIONAL RELEASE ON A DEFINITE OR
INDETERMINATE SENTENCE; OR AS A CONDITION OF PROBATION OR INTERIM
PROBATION SUPERVISION.
5-C. "SUBJECT INDEX" MEANS THE ELECTRONIC DATABASE CONTAINING DNA
PROFILES GENERATED FROM A SUBJECT CONVICTED OF A CRIME WHOSE DNA SPECI-
MEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA AGREEMENT;
AS A CONDITION OF PARTICIPATION IN A TEMPORARY RELEASE, COMPREHENSIVE
ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) OR SHOCK INCARCERATION
PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE SUPERVISION,
PRESUMPTIVE RELEASE OR CONDITIONAL RELEASE ON A DEFINITE OR INDETERMI-
NATE SENTENCE; OR AS A CONDITION OF PROBATION OR INTERIM PROBATION
SUPERVISION.
5-D. "VOLUNTEER INDEX" MEANS THE ELECTRONIC DATABASE CONTAINING DNA
PROFILES GENERATED FROM A VOLUNTEER SAMPLE.
6. "State DNA identification index" means the DNA identification
record system for New York state established pursuant to this article.
6-A. "CODIS" MEANS THE FEDERAL COMBINED DNA INDEX SYSTEM.
6-B. "NDIS" MEANS THE NATIONAL DNA INDEX SYSTEM.
6-C. "FORENSIC DNA INDEX" MEANS THE ELECTRONIC DATABASE IN CODIS THAT
CONTAINS DNA PROFILES GENERATED FROM CASEWORK EVIDENCE BY FORENSIC DNA
LABORATORIES.
7. "Designated offender" means a person convicted of 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 subdivi-
sion two of such 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.
8. "DNA record" means DNA identification information prepared by a
forensic DNA laboratory and stored in the state DNA identification index
for purposes of establishing identification in connection with law
enforcement investigations or supporting statistical interpretation of
the results of DNA analysis. A DNA record is the objective form of the
results of a DNA analysis sample.
A. 7371 3
9. "DNA subcommittee" shall mean the subcommittee on forensic DNA
laboratories and forensic DNA testing established pursuant to subdivi-
sion thirteen of section nine hundred ninety-five-b of this article.
10. "Commission" shall mean the commission on forensic science estab-
lished pursuant to section nine hundred ninety-five-a of this article.
11. "SAMPLE" SHALL MEAN THE IMMEDIATE RESULT OF ANY GENETIC SAMPLING
AND INCLUDES THE MEANS OF SAMPLING ITSELF, SUCH AS A SWAB, AND ANY
GENETIC SAMPLE THAT CAME FROM THE VOLUNTEER AND IS USED FOR SUBSEQUENT
TESTING, ANALYSIS, OR INDEXING, OR THAT IS IN THE CUSTODY OF AN AGENCY.
12. "VOLUNTEER SAMPLE" OR "VOLUNTEER GENETIC SAMPLE" SHALL MEAN ANY
GENETIC SAMPLE OR DNA PROFILE THAT IS KNOWINGLY AND INTELLIGENTLY GIVEN
TO THE STATE BY A PERSON WITHOUT AN ORDER OF THE COURT. THE TERM DOES
NOT INCLUDE SAMPLES TAKEN FROM DESIGNATED OFFENDERS.
13. "DERIVED INFORMATION" SHALL MEAN ANY AND ALL INFORMATION AND
DOCUMENTATION THAT IS EXTRACTED OR CREATED FROM THE SAMPLE AND IS ASSO-
CIATED WITH THE SAMPLE, INCLUDING ANY PARTIAL OR COMPLETE DNA PROFILE,
CODE OR GENETIC TESTING, OR OTHER IDENTIFYING INFORMATION.
§ 2. Sections 995-d, 995-e and 995-f of the executive law are renum-
bered sections 995-f, 995-g and 995-h and two new sections 995-d and
995-e are added to read as follows:
§ 995-D. ATTACHMENT OF A VOLUNTEER SAMPLE TO A SPECIFIC CASE. 1. WHEN
ANY VOLUNTEER GENETIC SAMPLE OR DNA PROFILE IS RECEIVED BY THE STATE, OR
ANY SUBDIVISION THEREOF, IT SHALL BE ATTACHED TO AN ONGOING INVESTI-
GATION AND GIVEN A UNIQUE REFERENCE NUMBER UNDER WHICH ALL DERIVED
INFORMATION MAY BE REFERENCED.
(A) THE SAMPLE AND ALL DERIVED INFORMATION SHALL BE ORGANIZED AND
INDEXED IN THE VOLUNTEER INDEX BY EACH LAW ENFORCEMENT AGENCY OR FOREN-
SIC LAB TO COME IN CONTACT WITH THE MATERIAL.
(B) THE LAW ENFORCEMENT AGENCY SHALL CERTIFY THAT THE INFORMATION WAS
COLLECTED OR CREATED IN REASONABLE AND DIRECT CONNECTION WITH ONE OR
MORE SPECIFIC INVESTIGATIONS.
(C) IF A SAMPLE, DERIVED INFORMATION, OR DNA PROFILE IS SHARED WITH
ANOTHER AGENCY THE FOLLOWING INFORMATION SHALL BE DOCUMENTED IN ASSOCI-
ATION WITH THE UNIQUE REFERENCE NUMBER: THE NAME OF THE REQUESTING AGEN-
CY; THE PURPOSE FOR WHICH THE SAMPLE, INFORMATION OR DNA PROFILE WAS
SOUGHT; AND A DESCRIPTION OF THE INFORMATION SHARED.
2. ANY INFORMATION ATTACHED TO A NEW CASE THAT HAD NOT BEEN INITIATED
AT THE TIME THE UNIQUE IDENTIFICATION NUMBER WAS FIRST ASSIGNED SHALL BE
CONSIDERED ATTACHED TO AN ONGOING INVESTIGATION AND SHALL PRECLUDE
APPROVAL OF A REQUEST FOR EXPUNGEMENT, PROVIDED, HOWEVER, THAT THE
SAMPLE, DERIVED INFORMATION, OF DNA PROFILE MUST HAVE A REASONABLE AND
DIRECT CONNECTION WITH THE NEW INVESTIGATION.
3. VOLUNTEER RECEIPT AND INFORMATION. ANY PERSON WHO PROVIDES A VOLUN-
TEER SAMPLE SHALL BE PROVIDED A RECEIPT BY THE AGENCY RECEIVING THE
SAMPLE WITHIN FORTY-EIGHT HOURS. THE RECEIPT SHALL INDICATE THE FOLLOW-
ING:
(A) THE UNIQUE IDENTIFICATION NUMBER ASSIGNED TO THE VOLUNTEER;
(B) A STATEMENT INFORMING THE VOLUNTEER THAT HE OR SHE MAY APPLY TO
HAVE ALL THE SAMPLES AND DERIVED INFORMATION ASSOCIATED THEREWITH
EXPUNGED FROM THE AGENCIES' RECORDS, AND RETURNED TO THE VOLUNTEER UPON
THE COMPLETION OF THE INVESTIGATION FOR WHICH THE SAMPLE WAS SUBMITTED;
(C) A STATEMENT DESCRIBING THE PROCESS BY WHICH THE VOLUNTEER MAY
APPLY FOR SUCH EXPUNGEMENT; AND
(D) A STATEMENT INFORMING THE VOLUNTEER THAT THE SAMPLE AND ALL
DERIVED INFORMATION MAY BE USED IN FURTHER INVESTIGATIONS UNLESS AND
UNTIL AN EXPUNGEMENT REQUEST IS APPROVED.
A. 7371 4
§ 995-E. VOLUNTEER REQUEST FOR EXPUNGEMENT. 1. ANY PERSON THAT HAS
PROVIDED A VOLUNTEER SAMPLE TO A LAW ENFORCEMENT AGENCY MAY REQUEST THAT
THEIR SAMPLE AND ALL DERIVED INFORMATION BE EXPUNGED FROM THE RECORDS OF
ANY AND ALL AGENCIES THAT HAVE EXAMINED THE SAMPLE OR ANY FORENSIC
INFORMATION DERIVED THEREFROM. WHEN APPLYING FOR SUCH EXPUNGMENT THE
VOLUNTEER SHALL PROVIDE:
(A) PROOF OF IDENTITY;
(B) THE UNIQUE IDENTIFICATION NUMBER ASSOCIATED WITH THEIR SAMPLE; AND
(C) A WRITTEN ATTESTATION THAT THEY WISH TO HAVE THEIR SAMPLE AND ALL
DERIVED INFORMATION EXPUNGED AND RETURNED TO THEM OR EXPUNGED AND
DESTROYED.
2. WHEN AN AGENCY RECEIVES A VOLUNTEER REQUEST FOR EXPUNGEMENT THE
AGENCY SHALL DETERMINE WHETHER THE SAMPLE IS CURRENTLY ASSOCIATED WITH
AN ONGOING INVESTIGATION AND WHETHER THE INFORMATION PROVIDED PURSUANT
TO SUBDIVISION ONE OF THIS SECTION IS SUFFICIENT. IF THE SAMPLE IS
CURRENTLY ASSOCIATED WITH AN ONGOING INVESTIGATION OR THE INFORMATION
PROVIDED IS INSUFFICIENT THE AGENCY SHALL INFORM THE VOLUNTEER THE
REQUEST IS DENIED. WHEN DENYING A VOLUNTEER REQUEST FOR EXPUNGEMENT,
THE AGENCY SHALL PROVIDE AN EXPLANATION OF ITS DECISION. IF THE SAMPLE
IS NOT CURRENTLY ASSOCIATED WITH AN ONGOING INVESTIGATION AND THE INFOR-
MATION REQUIRED UNDER SUBDIVISION ONE OF THIS SECTION IS SUFFICIENT, THE
AGENCY SHALL APPROVE THE REQUEST AND SHALL:
(A) CEASE ALL TESTING AND ANALYSIS OF THE SAMPLE OR ANY DERIVED INFOR-
MATION AND SHALL DELETE ALL RECORDS IDENTIFIED WITH THE VOLUNTEER'S
UNIQUE IDENTIFICATION NUMBER, INCLUDING DNA PROFILES FROM ANY AND ALL
DATABASES OR INDEXES MAINTAINED BY THE AGENCY, AND SHALL MAKE THE
ORIGINAL SAMPLES AVAILABLE FOR DESTRUCTION OR RETURN TO THE VOLUNTEER;
AND
(B) FORWARD THE REQUEST TO ALL OTHER AGENCIES THAT WERE INVOLVED WITH
THE COLLECTION, PROCESSING, OR ANALYSIS OF THAT SAMPLE, INCLUDING ALL
AGENCIES TO WHICH THE AGENCY RECEIVING THE REQUEST PROVIDED THE SAMPLE
OR ANY DERIVED INFORMATION.
§ 3. This act shall take effect immediately.