S. 1455--A 2
11. "STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX" MEANS THE SEXUAL
OFFENSE FORENSIC EVIDENCE RECORD SYSTEM FOR NEW YORK ESTABLISHED PURSU-
ANT TO THIS ARTICLE.
S 2. Paragraph (b) of subdivision 2 of section 995-b of the executive
law, as added by chapter 737 of the laws of 1994, is amended to read as
follows:
(b) ensure that forensic analyses, including forensic DNA testing AND
SEXUAL OFFENSE FORENSIC EVIDENCE TESTING, are performed in accordance
with the highest scientific standards practicable;
S 3. Subdivisions 7, 9, 10, 11, 12 and 13 of section 995-b of the
executive law, as added by chapter 737 of the laws of 1994 and paragraph
(a) of subdivision 13 as amended by chapter 560 of the laws of 1999, are
amended to read as follows:
7. The commission and DNA subcommittee may establish, appoint, and set
terms of members to as many advisory councils as it deems necessary to
provide specialized expertise to the commission with respect to new
forensic technologies including DNA testing methodologies AND SEXUAL
OFFENSE FORENSIC EVIDENCE TESTING METHODOLOGIES.
9. After reviewing recommendations from the division of criminal
justice services, the commission, in consultation with the DNA subcom-
mittee, shall promulgate a policy for the establishment and operation of
a DNA identification index AND A SEXUAL OFFENSE FORENSIC EVIDENCE INDEX
consistent with the operational requirements and capabilities of the
division of criminal justice services. Such policy shall address the
following issues:
(a) the forensic DNA methodology or methodologies to be utilized in
compiling the [index] INDICES;
(b) procedures for assuring that the state DNA identification index
[contains] AND THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX CONTAIN
the following safeguards:
(i) that any records maintained as part of such [an index] INDICES are
accurate and complete;
(ii) that effective software and hardware designs are instituted with
security features to prevent unauthorized access to such records;
(iii) that periodic audits will be conducted to ensure that no illegal
disclosures of such records have taken place;
(iv) that access to record information system facilities, systems
operating environments, data file contents whether while in use or when
stored in a media library is restricted to authorized personnel only;
(v) that operation programs are used that will prohibit inquiry,
record updates, or destruction of records from any source other than an
authorized source of inquiry, update, or destruction of records;
(vi) that operational programs are used to detect and store for the
output of authorized employees only all unauthorized attempts to pene-
trate the state DNA identification index AND THE STATE SEXUAL OFFENSE
FORENSIC EVIDENCE INDEX;
(vii) that adequate and timely procedures exist to insure that any
subject of the state DNA identification index AND THE STATE SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX has the right of access to and review of
records relating to such individual contained in such [index] INDICES
for the purpose of ascertaining their accuracy and completeness, includ-
ing procedures for review of information maintained about such individ-
uals and administrative review (including procedures for administrative
appeal) and the necessary documentation to demonstrate that the informa-
tion is inaccurate or incomplete;
S. 1455--A 3
(viii) that access to the [index] INDICES will be granted to an agency
authorized by this article to have such access only pursuant to a writ-
ten use and dissemination agreement, a copy of which is filed with the
commission, which agreement sets forth the specific procedures by which
such agency shall implement the provisions of subparagraphs (i) through
(vii) of this paragraph, as applicable, and which agreement specifically
prohibits the redisclosure by such agency of any information obtained
from the DNA identification index AND THE STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX; and
(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.
10. Review, and if necessary, recommend modifications to, a plan for
implementation of the DNA identification index AND THE STATE SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX submitted by the commissioner of crimi-
nal justice services pursuant to section nine hundred ninety-five-c of
this article.
11. Upon the recommendation of the DNA subcommittee established pursu-
ant to subdivision thirteen of this section, the commission shall desig-
nate one or more approved methodologies for the performance of forensic
DNA testing AND SEXUAL ASSAULT FORENSIC EVIDENCE, and shall review and
act upon applications by forensic DNA laboratories for approval to
perform forensic DNA testing.
12. Promulgate standards for a determination of a match between the
DNA records contained in the state DNA identification index AND THE
STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX and a DNA record of a
person submitted for comparison therewith.
13. (a) The commission shall establish a subcommittee on forensic DNA
laboratories and forensic DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE test-
ing. The chair of the subcommittee shall be appointed by the chair of
the commission. The chair of the subcommittee shall appoint six other
members to the subcommittee, one of whom shall represent the discipline
of molecular biology and be appointed upon the recommendation of the
commissioner of the department of health, one of whom shall represent
the discipline of population genetics and be appointed upon the recom-
mendation of the commissioner of the department of health, one of whom
shall be representative of the discipline of laboratory standards and
quality assurance regulation and monitoring and be appointed upon the
recommendation of the commissioner of the department of health, one of
whom shall be a forensic scientist and be appointed upon the recommenda-
tion of the commissioner of the department of health, one of whom shall
be representative of the discipline of population genetics and be
appointed upon the recommendation of the commissioner of criminal
justice services and one of whom shall be representative of the disci-
pline of forensic science and be appointed upon the recommendation of
the commissioner of criminal justice services. Members of the DNA
subcommittee shall serve for three year terms and be subject to the
conditions of service specified in section nine hundred ninety-five-a of
this article.
(b) The DNA subcommittee shall assess and evaluate all DNA AND SEXUAL
OFFENSE FORENSIC EVIDENCE methodologies proposed to be used for forensic
analysis, and make reports and recommendations to the commission as it
deems necessary. The DNA subcommittee shall make binding recommendations
for adoption by the commission addressing minimum scientific standards
S. 1455--A 4
to be utilized in conducting forensic DNA AND SEXUAL OFFENSE FORENSIC
EVIDENCE analysis including, but not limited to, examination of speci-
mens, population studies and methods employed to determine probabilities
and interpret test results. The DNA subcommittee may require a demon-
stration by an independent laboratory of any proposed forensic DNA OR
SEXUAL OFFENSE FORENSIC EVIDENCE testing methodology proposed to be used
by a forensic laboratory.
(c) The DNA subcommittee shall make binding recommendations for
adoption by the commission with regard to an accreditation program for
laboratories performing forensic DNA AND SEXUAL OFFENSE FORENSIC
EVIDENCE testing in accordance with the provisions of the state adminis-
trative procedure act. Such recommendations shall include the adoption
and implementation of internal and external proficiency testing
programs, including, if possible, a blind external proficiency testing
program for forensic laboratories performing forensic DNA AND SEXUAL
OFFENSE FORENSIC EVIDENCE testing. The DNA subcommittee shall also
provide the commission with a list of accepted proficiency testers.
(d) The DNA subcommittee shall be authorized to advise the commission
on any other matters regarding the implementation of scientific controls
and quality assurance procedures for the performance of forensic DNA AND
SEXUAL OFFENSE FORENSIC EVIDENCE testing, or on any other matters
referred to it by the commission.
S 4. Section 995-d of the executive law, as added by chapter 737 of
the laws of 1994 and subdivision 2 as amended by chapter 560 of the laws
of 1999, is amended to read as follows:
S 995-d. Confidentiality. 1. All records, findings, reports, and
results of DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE testing performed on
any person shall be confidential and may not be disclosed or redisclosed
without the consent of the subject of such DNA OR SEXUAL OFFENSE FOREN-
SIC EVIDENCE testing. Such records, findings, reports and results shall
not be released to insurance companies, employers or potential employ-
ers, health providers, employment screening or personnel companies,
agencies, or services, private investigation services, and may not be
disclosed in response to a subpoena or other compulsory legal process or
warrant, or upon request or order of any agency, authority, division,
office, corporation, partnership, or any other private or public entity
or person, except that nothing contained herein shall prohibit disclo-
sure in response to a subpoena issued on behalf of the subject of such
DNA OR SEXUAL OFFENSE FORENSIC EVIDENCE record or on behalf of a party
in a civil proceeding where the subject of such DNA OR SEXUAL OFFENSE
FORENSIC EVIDENCE record has put such record in issue.
2. Notwithstanding the provisions of subdivision one of this section,
records, findings, reports, and results of DNA testing, other than a DNA
record maintained in the state DNA identification index, may be
disclosed in a criminal proceeding to the court, the prosecution, and
the defense pursuant to a written request on a form prescribed by the
commissioner of the division of criminal justice services. Notwith-
standing the provisions of subdivision one of this section, a DNA OR
SEXUAL OFFENSE FORENSIC EVIDENCE record maintained in the state DNA
identification index may be disclosed pursuant to section nine hundred
ninety-five-c of this article.
S 5. Section 995-e of the executive law, as added by chapter 737 of
the laws of 1994, is amended to read as follows:
S 995-e. Applicability. This article shall not apply to a forensic DNA
laboratory operated by any agency of the federal government, or to any
S. 1455--A 5
forensic DNA test OR SEXUAL OFFENSE FORENSIC EVIDENCE TEST performed by
any such federal laboratory.
S 6. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
S 995-f. Penalties. Any person who (a) intentionally discloses a DNA
record, [or] the results of a forensic DNA test or analysis, OR THE
RESULT OF A SEXUAL OFFENSE FORENSIC EVIDENCE TEST OF ANALYSIS, to an
individual 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, OR THE
RESULTS OF A SEXUAL OFFENSE FORENSIC EVIDENCE TEST OF 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 OR SEXUAL OFFENSE FORENSIC EVIDENCE
SAMPLE without lawful authority shall be guilty of a class E felony.
S 7. The executive law is amended by adding a new section 995-g to
read as follows:
S 995-G. STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX. 1. FOLLOWING
THE PROMULGATION OF A POLICY BY THE COMMISSION PURSUANT TO SUBDIVISION
NINE OF SECTION NINE HUNDRED NINETY-FIVE-B OF THIS ARTICLE, THE COMMIS-
SIONER OF CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO PROMULGATE A PLAN
FOR THE ESTABLISHMENT OF A COMPUTERIZED STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX WITHIN THE DIVISION OF CRIMINAL JUSTICE SERVICES.
2. FOLLOWING THE REVIEW AND APPROVAL OF THE PLAN BY THE DNA SUBCOMMIT-
TEE 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 ESTABLISH A COMPUT-
ERIZED STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX PURSUANT TO THE
PROVISIONS OF THIS ARTICLE.
3. ANY FORENSIC EVIDENCE COLLECTED OR OBTAINED IN CONNECTION WITH THE
INVESTIGATION OF A CRIME OR OFFENSE CONTAINED IN ARTICLE ONE HUNDRED
THIRTY OF THE PENAL LAW MUST BE INCLUDED IN THE STATE SEXUAL OFFENSE
FORENSIC EVIDENCE INDEX PURSUANT TO THIS ARTICLE. THIS SUBDIVISION
ABOVE DOES NOT REQUIRE A LAB TO TEST ALL ITEMS OF FORENSIC EVIDENCE
OBTAINED IN A SEXUAL ASSAULT FORENSIC EVIDENCE EXAMINATION OR A SEXUAL
ASSAULT INVESTIGATION. FOR THE PURPOSE OF TIMELY PROCESSING OF SEXUAL
OFFENSE FORENSIC EVIDENCE, THIS SUBDIVISION INTENDS TO ENSURE THAT THE
BEST EVIDENCE IS SELECTED AND ANALYZED AS SOON AS PRACTICABLE AMONG THE
REPRESENTATIVE SAMPLE OF FORENSIC EVIDENCE, BASED ON THE MEDICAL EXAM-
INATION OR THE SEXUAL ASSAULT INVESTIGATION, THE COLLECTION AND PRESER-
VATION OF THAT EVIDENCE, AND THE TRANSFER OF THE EVIDENCE FROM THE
MEDICAL FACILITY OR THE LAW ENFORCEMENT AGENCY TO THE FORENSIC DNA LABO-
RATORY.
4. ON OR AFTER JANUARY FIRST, TWO THOUSAND SEVENTEEN THE SEXUAL
OFFENSE FORENSIC EVIDENCE SHALL BE COLLECTED, STORED AND FORWARDED TO
ANY FORENSIC DNA LABORATORY WHICH HAS BEEN AUTHORIZED BY THE COMMISSION
TO PERFORM SEXUAL OFFENSE FORENSIC EVIDENCE TESTING AND ANALYSIS FOR
INCLUSION IN THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX WITHIN
THIRTY DAYS AFTER IT IS COLLECTED AND BOOKED INTO EVIDENCE IN CONNECTION
WITH A SEXUAL ASSAULT INVESTIGATION. ANY FORENSIC EVIDENCE COLLECTED
DURING A FORENSIC SEXUAL ASSAULT EXAMINATION ON A VICTIM OF A SEXUAL
ASSAULT SHALL BE FORWARDED DIRECTLY FROM THE MEDICAL FACILITY TO THE
AUTHORIZED FORENSIC DNA LABORATORY WITHIN TEN DAYS OF ITS COLLECTION.
SUCH LABORATORY SHALL PERFORM THE REQUISITE TESTING AND ANALYSIS WITHIN
EIGHT MONTHS OF RECEIPT OR TRANSMIT THE SEXUAL OFFENSE FORENSIC EVIDENCE
TO ANOTHER APPROVED FORENSIC DNA LABORATORY AS SOON AS POSSIBLE BUT NO
S. 1455--A 6
LATER THAN THIRTY DAYS AFTER RECEIPT, AND FORWARD THE RESULTING SEXUAL
OFFENSE FORENSIC EVIDENCE RECORD TO THE STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX IN ACCORDANCE WITH THE REGULATIONS OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES WITHIN EIGHT MONTHS OF RECEIPT.
5. SEXUAL OFFENSE FORENSIC EVIDENCE RECORDS CONTAINED IN THE STATE
SEXUAL OFFENSE FORENSIC EVIDENCE INDEX SHALL BE RELEASED ONLY FOR THE
FOLLOWING PURPOSES:
(A) TO A FEDERAL LAW ENFORCEMENT AGENCY, OR TO A STATE OR LOCAL LAW
ENFORCEMENT AGENCY OR DISTRICT ATTORNEY'S OFFICE FOR LAW ENFORCEMENT
IDENTIFICATION PURPOSES IN CONNECTION WITH THE INVESTIGATION OF THE
COMMISSION OF ONE OR MORE CRIMES, PROVIDED THAT THERE EXISTS BETWEEN THE
DIVISION AND SUCH AGENCY A WRITTEN AGREEMENT GOVERNING THE USE AND
DISSEMINATION OF SUCH SEXUAL OFFENSE FORENSIC EVIDENCE RECORDS IN
ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE; OR
(B) FOR CRIMINAL DEFENSE PURPOSES, TO A DEFENDANT OR HIS OR HER REPRE-
SENTATIVE, WHO SHALL ALSO HAVE ACCESS TO SAMPLES AND ANALYSES PERFORMED
IN CONNECTION WITH THE CASE IN WHICH SUCH DEFENDANT IS CHARGED.
6. REQUESTS FOR SEXUAL OFFENSE FORENSIC EVIDENCE RECORDS MUST BE IN
WRITING, OR IN A FORM PRESCRIBED BY THE DIVISION AUTHORIZED BY THE
REQUESTING PARTY, AND, OTHER THAN A REQUEST PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION FIVE OF THIS SECTION, MAINTAINED ON FILE AT THE STATE SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX IN ACCORDANCE WITH RULES AND REGULATIONS
PROMULGATED BY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE
SERVICES.
7. THE VICTIM OF A SEXUAL OFFENSE SHALL HAVE ACCESS TO INFORMATION
REGARDING:
(A) WHETHER A SEXUAL OFFENSE FORENSIC EVIDENCE TEST IS PERFORMED BY
ANY FORENSIC DNA LABORATORY;
(B) WHETHER THE RESULT OF A SEXUAL OFFENSE EVIDENCE TEST OF ANALYSIS
WAS ENTERED INTO THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX; AND
(C) WHETHER THERE IS A MATCH BETWEEN THE RESULT OF A SEXUAL OFFENSE
EVIDENCE TEST OF ANALYSIS AND THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE
INDEX.
S 8. This act shall take effect June 1, 2016.
