S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1794
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2019
                                ___________
 
 Introduced  by  M.  of  A.  MAGNARELLI  -- read once and referred to the
   Committee on Governmental Operations
 
 AN ACT to amend the executive law, in relation to establishing standards
   of regulation to permit familial searching and partial DNA matches  as
   an investigative tool in certain unsolved crimes

   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.
              

                                                            LBD01869-01-9

 A. 1794                             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.
   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.
   6-D. "UNIDENTIFIED HUMAN REMAINS INDEX" MEANS THE ELECTRONIC  DATABASE
 IN  CODIS  THAT  CONTAINS  DNA  PROFILES GENERATED FROM HUMAN REMAINS OF
 UNKNOWN ORIGIN.
   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.

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   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. "DIVISION" SHALL MEAN THE NEW  YORK  STATE  DIVISION  OF  CRIMINAL
 JUSTICE SERVICES.
   12.  "ALLELE"  SHALL  MEAN  ONE OF THE ALTERNATE FORMS OF THE DNA AT A
 PARTICULAR GENETIC LOCUS.
   13. "LOCI" SHALL MEAN THE SPECIFIC CHROMOSOMAL LOCATIONS OF  GENES  OR
 OTHER DNA ELEMENTS SUCH AS SHORT TANDEM REPEATS.
   14. "STR" SHALL MEAN SHORT TANDEM REPEAT.
   15.  "STR  ANALYSIS"  SHALL  MEAN A FORM OF TESTING WHICH PROVIDES DNA
 PROFILES FOR LOCI WHICH CONTAIN SIMPLE DNA UNIT REPEATS. STR LOCI ON THE
 Y-CHROMOSOME ARE REFERRED TO AS "Y-STRS".
   16. "MITOCHONDRIAL DNA TESTING" OR "MTDNA TESTING" REFERS TO  ANALYSIS
 OF GENETIC POLYMORPHISMS THAT OCCUR IN THE DNA OF MITOCHONDRIA.
   17.  "CASEWORK  EVIDENCE DNA PROFILE" SHALL MEAN A DNA PROFILE THAT IS
 DERIVED FROM BIOLOGICAL EVIDENCE ORIGINATING FROM  AND  ASSOCIATED  WITH
 THE COMMISSION OF A CRIME.
   18.  "CONVICTED  OFFENDER  DNA  PROFILE"  SHALL  MEAN THAT DNA PROFILE
 GENERATED BY TESTING OF A BIOLOGICAL SAMPLE COLLECTED FROM A  DESIGNATED
 OFFENDER AS DEFINED IN SUBDIVISION SEVEN OF THIS SECTION.
   19.  "CONVICTED  OFFENDER  INDEX"  SHALL MEAN THAT ELECTRONIC DATABASE
 CONTAINING DNA PROFILES GENERATED FROM DESIGNATED OFFENDERS  AS  DEFINED
 BY SUBDIVISION SEVEN OF THIS SECTION AND STORED IN CODIS.
   20.  "FORENSIC  DNA  PROFILE"  REFERS TO A DNA PROFILE THAT IS DERIVED
 FROM BIOLOGICAL  EVIDENCE  ORIGINATING  FROM  AND  ASSOCIATED  WITH  THE
 COMMISSION OF A CRIME.
   21.  "INDIRECT  ASSOCIATION"  SHALL  MEAN THE DETERMINATION DURING THE
 CODIS CANDIDATE MATCH CONFIRMATION PROCESS THAT  A  FORENSIC  INDEX  DNA
 PROFILE  IS  SIMILAR TO A DNA PROFILE IN THE CONVICTED OFFENDER INDEX OR
 SUBJECT INDEX AND A COMPARISON REVEALS THAT THE OFFENDER OR  SUBJECT  IS
 NOT THE SOURCE OF THE DNA PROFILE BUT MAY BE A RELATIVE OF THE SOURCE OF
 THE FORENSIC INDEX PROFILE. AN INDIRECT ASSOCIATION MAY ALSO BE REFERRED
 TO AS A "PARTIAL MATCH".
   22. "FAMILIAL SEARCHING" REFERS TO THE PROCESS OF PURPOSEFULLY SEARCH-
 ING  A DNA DATABANK FOR PARTIAL MATCHES OR INDIRECT ASSOCIATIONS BETWEEN
 A NEW YORK STATE CONVICTED OFFENDER'S DNA  PROFILE  AND  A  DNA  PROFILE
 DEVELOPED FROM CRIME SCENE EVIDENCE.
   23.  "LDIS" REFERS TO THE LEVEL OF THE CODIS PROGRAM IN WHICH A PUBLIC
 DNA LABORATORY MAINTAINS ITS DNA RECORDS FOR SEARCHING AND UPLOADING  TO
 HIGHER LEVEL INDICES SUCH AS SDIS AND NDIS.
   §  2.  Section  995-b  of the executive law is amended by adding a new
 subdivision 12-a to read as follows:
   12-A. IN CASES LIMITED  TO  VIOLENT  FELONY  OFFENSES,  HOMICIDES  AND
 BURGLARY  IN  THE THIRD DEGREE, AS DEFINED BY ARTICLES ONE HUNDRED TWEN-
 TY-FIVE AND ONE HUNDRED  FORTY  OF  THE  PENAL  LAW,  RESPECTIVELY,  THE
 COMMISSION SHALL PROMULGATE STANDARDS THAT PERMIT FAMILIAL SEARCHING AND
 THE  RELEASE  OF  PARTIAL MATCHES TO INVESTIGATING LAW ENFORCEMENT OFFI-
 CIALS AND THE APPROPRIATE PROSECUTOR OR PROSECUTORS.
   (A) SUCH STANDARDS SHALL PERMIT THE USE OF  FAMILIAL  SEARCHING.  SUCH
 STANDARDS  SHALL  ALSO REQUIRE THE RELEASE OF THE RESULTS OF SUCH SEARCH
 TO THE INVESTIGATING  LAW  ENFORCEMENT  OFFICIALS  AND  THE  APPROPRIATE
 PROSECUTOR  OR  PROSECUTORS  IF, UPON APPLICATION OF A POLICE OFFICER, A
 DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT ACTING IN THE  COURSE  OF  HIS

 A. 1794                             4

 OFFICIAL  DUTIES,  A  LOCAL  COURT  DETERMINES THAT ALL OF THE FOLLOWING
 CONDITIONS ARE SATISFIED:
   (I)  THERE IS REASONABLE CAUSE TO BELIEVE THAT A FAMILIAL SEARCH USING
 THE CRIME SCENE DNA PROFILE MAY RESULT IN A PARTIAL DNA MATCH;
   (II) THE CRIME SCENE DNA PROFILE DERIVES  FROM  A  SINGLE  SOURCE  AND
 CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
   (III)  THE  CRIME  IS UNSOLVED AND ALL PRACTICABLE INVESTIGATIVE LEADS
 HAVE BEEN EXHAUSTED;
   (IV) THE DNA LABORATORY HAS RUN AN EXACT MATCH ON THE CRIME SCENE  DNA
 PROFILE WITH NEGATIVE RESULTS;
   (V) THE INVESTIGATING LAW ENFORCEMENT AGENCY OR THE PROSECUTOR MAKES A
 WRITTEN REQUEST THAT THE DNA LABORATORY CONDUCT A FAMILIAL SEARCH ON THE
 CRIME SCENE DNA PROFILE; AND
   (VI)  THE  INVESTIGATING  LAW  ENFORCEMENT  AGENCY  AND THE PROSECUTOR
 COMMIT TO FURTHER INVESTIGATION OF THE CASE IF THE NAME  OF  THE  POTEN-
 TIALLY  RELATED  OFFENDER  IS  RELEASED  AND THE NAME OF THE POTENTIALLY
 RELATED OFFENDER WILL BE TREATED AS A CONFIDENTIAL, NON-PUBLIC  INVESTI-
 GATIVE LEAD.
   (B)  ONCE  A  LABORATORY HAS RECEIVED A PARTIAL MATCH AS A RESULT OF A
 FAMILIAL SEARCH OR A STANDARD SEARCH OF THE DNA  INDEX,  THE  LABORATORY
 SUBMITTING  THE  CRIME  SCENE  DNA  PROFILE  TO  THE CODIS PROGRAM SHALL
 COMPLETE AN APPLICATION TO THE DIVISION  REQUESTING  THE  NAMES  OF  THE
 INVOLVED OFFENDERS AND, AS PART OF THE APPLICATION, CONFIRM THAT:
   (I) AN LDIS SEARCH HAS BEEN PERFORMED USING THE CRIME SCENE PROFILE IN
 THE FORENSIC UNKNOWN INDEX;
   (II)  THE  CRIME  SCENE  DNA  PROFILE DERIVES FROM A SINGLE SOURCE AND
 CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
   (III) THE  SUBMITTING  AGENCY  AND  THE  APPROPRIATE  PROSECUTOR  HAVE
 COMMITTED  TO  PURSUE  FURTHER  INVESTIGATION OF THE CASE IF THE NAME IS
 RELEASED; AND
   (IV) THE SUBMITTING LABORATORY HAS CONFIRMED THAT RELEASE OF THE  NAME
 WILL  BE FOLLOWED BY A REPORT TO THE INVESTIGATING LAW ENFORCEMENT AGEN-
 CY. THE REPORT WILL INDICATE THAT THE MATCH IS INDIRECT  AND  WILL  ALSO
 INDICATE THAT THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF THE EVIDEN-
 TIARY DNA PATTERN IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER.
   (C)  IN  THE EVENT THAT A LABORATORY FINDS A PARTIAL MATCH AS A RESULT
 OF A STANDARD SEARCH OF A DNA INDEX,  BUT  DOES  NOT  RECEIVE  AN  EXACT
 MATCH,  THE LABORATORY SHALL FIRST CONTACT THE SUBMITTING AGENCY AND THE
 APPROPRIATE PROSECUTOR TO CONFIRM THAT  THEY  ARE  COMMITTED  TO  PURSUE
 FURTHER INVESTIGATION OF THE CASE IF THE NAME IS RELEASED. AFTER RECEIV-
 ING  WRITTEN CONFIRMATION FROM THE SUBMITTING AGENCY AND THE APPROPRIATE
 PROSECUTOR, THE LABORATORY SHALL FOLLOW THE STEPS OUTLINED IN  PARAGRAPH
 (B) OF THIS SUBDIVISION.
   (D)  THE REPORT GENERATED FROM THE SUBMITTING LABORATORY TO THE INVES-
 TIGATING LAW ENFORCEMENT AGENCY SHALL INDICATE THAT:
   (I) THE MATCH IS A RESULT OF FAMILIAL SEARCHING OR IS A PARTIAL  MATCH
 RESULTING FROM A STANDARD SEARCH OF A DNA INDEX;
   (II)  THE  INFORMATION PROVIDED IS A CONFIDENTIAL, NON-PUBLIC INVESTI-
 GATIVE LEAD; AND
   (III) THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF  THE  EVIDENTIARY
 DNA  PATTERN  IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER BUT IS
 NOT CONCLUSIVE EVIDENCE OF THE SAME.
   (E) THE DIVISION WILL PROVIDE THE MATCH INFORMATION TO THE  STATE  DNA
 DATABANK WHICH, IN TURN, WILL CALCULATE AND REPORT WHETHER THE APPROPRI-
 ATE STATISTICAL THRESHOLD APPROVED BY THE DNA SUBCOMMITTEE HAS BEEN MET.

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   (F)  UPON RECEIVING A COMPLETED APPLICATION FROM THE LOCAL PARTICIPAT-
 ING CODIS LABORATORY AND CONFIRMATION FROM THE DATABANK THAT THE  APPRO-
 PRIATE  STATISTICAL  THRESHOLD  HAS BEEN MET, THE DIVISION SHALL RELEASE
 THE NAME OF THE OFFENDER TO THE SUBMITTED LABORATORY WHO SHALL, IN TURN,
 RELEASE  THE  INFORMATION  TO  THE  INVESTIGATING LAW ENFORCEMENT AGENCY
 AFTER A LOCAL CRIMINAL COURT HAS DETERMINED THAT ALL OF THE REQUIREMENTS
 IN PARAGRAPH (A) OF THIS SUBDIVISION HAVE BEEN SATISFIED.  IF THE APPRO-
 PRIATE STATISTICAL THRESHOLD VALUE IS NOT  SUPPORTED  BY  THE  AVAILABLE
 DATA,  THEN  TESTING  OF  ADDITIONAL  LOCI OF THE OFFENDER SAMPLE MAY BE
 REQUIRED AND MAY INCLUDE Y-STR AND/OR MTDNA ANALYSIS. IF THE  SUBSEQUENT
 TESTING DOES NOT MEET THE APPROPRIATE THRESHOLD, THE DATABANK WILL NOTI-
 FY THE DIVISION AND THE OFFENDER'S NAME WILL NOT BE RELEASED.
   (G)  THIS  POLICY  WILL  BE  SUBJECT TO REVIEW BY THE DNA SUBCOMMITTEE
 EVERY TWO YEARS.
   (H) THE SAME STANDARDS AND PROCEDURES DEFINED IN THIS SECTION APPLY TO
 REQUESTS FOR PARTIAL MATCH AND FAMILIAL SEARCHING INFORMATION FROM CRIM-
 INAL JUSTICE AGENCIES FROM OUTSIDE OF THE STATE.
   § 3. 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.   (A)  Any  person  who  [(a)]  (I)  intentionally
 discloses a DNA record, or the results of a forensic DNA test or  analy-
 sis, to an individual or agency other than one authorized to have access
 to  such  records  pursuant  to this article or [(b)] (II) 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)] (III) any person who knowingly tampers or  attempts  to
 tamper  with  any  DNA sample or the collection container without lawful
 authority shall be guilty of a class E felony.
   (B) ANY PERSON WHO (I) INTENTIONALLY DISCLOSES A DNA  RECORD,  OR  THE
 RESULTS  OF  A FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF FAMI-
 LIAL SEARCHING OR A PARTIAL MATCH, TO AN INDIVIDUAL OR AGENCY OTHER THAN
 ONE AUTHORIZED TO HAVE ACCESS TO SUCH RECORDS PURSUANT TO  THIS  ARTICLE
 OR  (II) INTENTIONALLY USES OR RECEIVES DNA RECORDS, OR THE RESULTS OF A
 FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF  FAMILIAL  SEARCHING
 OR A PARTIAL MATCH, FOR PURPOSES OTHER THAN THOSE AUTHORIZED PURSUANT TO
 THIS  ARTICLE  SHALL  BE GUILTY OF A CLASS E FELONY, AND UPON CONVICTION
 THEREOF, SHALL BE SUBJECT TO A  FINE  OF  NOT  MORE  THAN  TEN  THOUSAND
 DOLLARS AND ANY SUCH OTHER PENALTIES AS PROVIDED.
   § 4. This act shall take effect immediately.