Bill Text: NY A03267 | 2011-2012 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to the collection of DNA samples of designated offenders, retention and confidentiality of DNA samples, collection and preservation of biological evidence, and the establishment of the commission for exoneration review.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2012-01-18 - enacting clause stricken [A03267 Detail]
Download: New_York-2011-A03267-Amended.html
Bill Title: Relates to the collection of DNA samples of designated offenders, retention and confidentiality of DNA samples, collection and preservation of biological evidence, and the establishment of the commission for exoneration review.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2012-01-18 - enacting clause stricken [A03267 Detail]
Download: New_York-2011-A03267-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3267--A
2011-2012 Regular Sessions
I N A S S E M B L Y
January 24, 2011
___________
Introduced by M. of A. SCHIMMINGER, CUSICK, GABRYSZAK, GALEF, MAGNARELLI
-- Multi-Sponsored by -- M. of A. LATIMER, MAGEE, REILLY, SWEENEY --
read once and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the executive law and the criminal procedure law, in
relation to collection of DNA samples from designated offenders; to
amend the executive law, in relation to collection and preservation of
biological evidence; to establish a commission for exoneration review;
to amend the criminal procedure law, in relation to access by defend-
ants to DNA evidence, and procedures for consideration of post-convic-
tion relief; to amend the penal law, in relation to conditions of
probation and conditional discharge; and to amend the court of claims
act, in relation to claims for unjust conviction and imprisonment; and
providing for the repeal of certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 7 of section 995 of the executive law, as
2 amended by chapter 2 of the laws of 2006, paragraph (a) as separately
3 amended by chapter 320 of the laws of 2006 and paragraph (f) as amended
4 by chapter 405 of the laws of 2010, is amended to read as follows:
5 7. "Designated offender" means a person [convicted of and sentenced
6 for any one or more of the following provisions of the penal law (a)
7 sections 120.05, 120.10, and 120.11, relating to assault; sections
8 125.15 through 125.27 relating to homicide; sections 130.25, 130.30,
9 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to
10 sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to
11 escape and other offenses, where the offender has been convicted within
12 the previous five years of one of the other felonies specified in this
13 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest,
14 a violent felony offense as defined in subdivision one of section 70.02
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03787-03-1
A. 3267--A 2
1 of the penal law, attempted murder in the first degree, as defined in
2 section 110.00 and section 125.27 of the penal law, kidnapping in the
3 first degree, as defined in section 135.25 of the penal law, arson in
4 the first degree, as defined in section 150.20 of the penal law,
5 burglary in the third degree, as defined in section 140.20 of the penal
6 law, attempted burglary in the third degree, as defined in section
7 110.00 and section 140.20 of the penal law, a felony defined in article
8 four hundred ninety of the penal law relating to terrorism or any
9 attempt to commit an offense defined in such article relating to terror-
10 ism which is a felony; or (b) criminal possession of a controlled
11 substance in the first degree, as defined in section 220.21 of the penal
12 law; criminal possession of a controlled substance in the second degree,
13 as defined in section 220.18 of the penal law; criminal sale of a
14 controlled substance, as defined in article 220 of the penal law; or
15 grand larceny in the fourth degree, as defined in subdivision five of
16 section 155.30 of the penal law; or (c) any misdemeanor or felony
17 defined as a sex offense or sexually violent offense pursuant to para-
18 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
19 three of section one hundred sixty-eight-a of the correction law; or (d)
20 any of the following felonies, or an attempt thereof where such attempt
21 is a felony offense:
22 aggravated assault upon a person less than eleven years old, as
23 defined in section 120.12 of the penal law; menacing in the first
24 degree, as defined in section 120.13 of the penal law; reckless endan-
25 germent in the first degree, as defined in section 120.25 of the penal
26 law; stalking in the second degree, as defined in section 120.55 of the
27 penal law; criminally negligent homicide, as defined in section 125.10
28 of the penal law; vehicular manslaughter in the second degree, as
29 defined in section 125.12 of the penal law; vehicular manslaughter in
30 the first degree, as defined in section 125.13 of the penal law;
31 persistent sexual abuse, as defined in section 130.53 of the penal law;
32 aggravated sexual abuse in the fourth degree, as defined in section
33 130.65-a of the penal law; female genital mutilation, as defined in
34 section 130.85 of the penal law; facilitating a sex offense with a
35 controlled substance, as defined in section 130.90 of the penal law;
36 unlawful imprisonment in the first degree, as defined in section 135.10
37 of the penal law; custodial interference in the first degree, as defined
38 in section 135.50 of the penal law; criminal trespass in the first
39 degree, as defined in section 140.17 of the penal law; criminal tamper-
40 ing in the first degree, as defined in section 145.20 of the penal law;
41 tampering with a consumer product in the first degree, as defined in
42 section 145.45 of the penal law; robbery in the third degree as defined
43 in section 160.05 of the penal law; identity theft in the second degree,
44 as defined in section 190.79 of the penal law; identity theft in the
45 first degree, as defined in section 190.80 of the penal law; promoting
46 prison contraband in the first degree, as defined in section 205.25 of
47 the penal law; tampering with a witness in the third degree, as defined
48 in section 215.11 of the penal law; tampering with a witness in the
49 second degree, as defined in section 215.12 of the penal law; tampering
50 with a witness in the first degree, as defined in section 215.13 of the
51 penal law; criminal contempt in the first degree, as defined in subdivi-
52 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
53 criminal contempt, as defined in section 215.52 of the penal law; bail
54 jumping in the second degree, as defined in section 215.56 of the penal
55 law; bail jumping in the first degree, as defined in section 215.57 of
56 the penal law; patronizing a prostitute in the second degree, as defined
A. 3267--A 3
1 in section 230.05 of the penal law; patronizing a prostitute in the
2 first degree, as defined in section 230.06 of the penal law; promoting
3 prostitution in the second degree, as defined in section 230.30 of the
4 penal law; promoting prostitution in the first degree, as defined in
5 section 230.32 of the penal law; compelling prostitution, as defined in
6 section 230.33 of the penal law; disseminating indecent materials to
7 minors in the second degree, as defined in section 235.21 of the penal
8 law; disseminating indecent materials to minors in the first degree, as
9 defined in section 235.22 of the penal law; riot in the first degree, as
10 defined in section 240.06 of the penal law; criminal anarchy, as defined
11 in section 240.15 of the penal law; aggravated harassment of an employee
12 by an inmate, as defined in section 240.32 of the penal law; unlawful
13 surveillance in the second degree, as defined in section 250.45 of the
14 penal law; unlawful surveillance in the first degree, as defined in
15 section 250.50 of the penal law; endangering the welfare of a vulnerable
16 elderly person in the second degree, as defined in section 260.32 of the
17 penal law; endangering the welfare of a vulnerable elderly person in the
18 first degree, as defined in section 260.34 of the penal law; use of a
19 child in a sexual performance, as defined in section 263.05 of the penal
20 law; promoting an obscene sexual performance by a child, as defined in
21 section 263.10 of the penal law; possessing an obscene sexual perform-
22 ance by a child, as defined in section 263.11 of the penal law; promot-
23 ing a sexual performance by a child, as defined in section 263.15 of the
24 penal law; possessing a sexual performance by a child, as defined in
25 section 263.16 of the penal law; criminal possession of a weapon in the
26 third degree, as defined in section 265.02 of the penal law; criminal
27 sale of a firearm in the third degree, as defined in section 265.11 of
28 the penal law; criminal sale of a firearm to a minor, as defined in
29 section 265.16 of the penal law; unlawful wearing of a body vest, as
30 defined in section 270.20 of the penal law; hate crimes as defined in
31 section 485.05 of the penal law; and crime of terrorism, as defined in
32 section 490.25 of the penal law; or (e) a felony defined in the penal
33 law or an attempt thereof where such attempt is a felony; or (f) any of
34 the following misdemeanors: assault in the third degree as defined in
35 section 120.00 of the penal law; attempted aggravated assault upon a
36 person less than eleven years old, as defined in section 110.00 and
37 section 120.12 of the penal law; attempted menacing in the first degree,
38 as defined in section 110.00 and section 120.13 of the penal law; menac-
39 ing in the second degree as defined in section 120.14 of the penal law;
40 menacing in the third degree as defined in section 120.15 of the penal
41 law; reckless endangerment in the second degree as defined in section
42 120.20 of the penal law; stalking in the fourth degree as defined in
43 section 120.45 of the penal law; stalking in the third degree as defined
44 in section 120.50 of the penal law; attempted stalking in the second
45 degree, as defined in section 110.00 and section 120.55 of the penal
46 law; criminal obstruction of breathing or blood circulation as defined
47 in section 121.11 of the penal law; forcible touching as defined in
48 section 130.52 of the penal law regardless of the age of the victim;
49 sexual abuse in the third degree as defined in section 130.55 of the
50 penal law regardless of the age of the victim; unlawful imprisonment in
51 the second degree as defined in section 135.05 of the penal law regard-
52 less of the age of the victim; attempted unlawful imprisonment in the
53 first degree, as defined in section 110.00 and section 135.10 of the
54 penal law regardless of the age of the victim; criminal trespass in the
55 second degree as defined in section 140.15 of the penal law; possession
56 of burglar's tools as defined in section 140.35 of the penal law; petit
A. 3267--A 4
1 larceny as defined in section 155.25 of the penal law; endangering the
2 welfare of a child as defined in section 260.10 of the penal law; endan-
3 gering the welfare of an incompetent or physically disabled person as
4 defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR
5 WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED
6 OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL
7 PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL
8 OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE-
9 DURE LAW FOR ANY SUCH OFFENSE, OR A PERSON WHO IS REQUIRED TO REGISTER
10 AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
11 S 2. Subdivision 3 of section 995-c of the executive law, as amended
12 by chapter 576 of the laws of 2004, is amended to read as follows:
13 3. (A) Any designated offender [subsequent to conviction and sentenc-
14 ing for a crime specified in subdivision seven of section nine hundred
15 ninety-five of this article,] shall be required to provide a sample
16 appropriate for DNA testing to determine identification characteristics
17 specific to such person and to be included in a state DNA identification
18 index pursuant to this article, UNLESS SUCH DESIGNATED OFFENDER HAS
19 PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI-
20 CATION INDEX.
21 (B) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT THE COLLECTION OF A DNA
22 SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR LOCAL
23 CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR
24 OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT WHO HAS BEEN NOTIFIED
25 BY THE DIVISION THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA
26 SAMPLE.
27 (C) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS
28 NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE
29 PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR
30 ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
31 (D) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED
32 UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL
33 NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
34 NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR
35 PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
36 (E) THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES
37 SHALL PROMULGATE RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF
38 THE DNA IDENTIFICATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX
39 CONTAINS DNA PROFILES THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE
40 STEPS NECESSARY TO EXPUNGE ANY PROFILES WHICH THE DIVISION DETERMINES
41 SHOULD NOT BE IN THE INDEX.
42 S 3. Section 995-f of the executive law, as amended by chapter 560 of
43 the laws of 1999, is amended to read as follows:
44 S 995-f. Penalties. 1. Any person who (a) intentionally discloses a
45 DNA record, or the results of a forensic DNA test or analysis, to an
46 individual or agency other than one authorized to have access to such
47 records pursuant to this article or (b) intentionally uses or receives
48 DNA records, or the results of a forensic DNA test or analysis, for
49 purposes other than those authorized pursuant to this article or (c) any
50 person who knowingly tampers or attempts to tamper with any DNA sample
51 or the collection container without lawful authority shall be guilty of
52 a class E felony.
53 2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION
54 WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT
55 TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH SAMPLE
56 UPON NOTIFICATION BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR
A. 3267--A 5
1 EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT
2 OFFICIAL OR PUBLIC SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A
3 SAMPLE, SHALL BE DEEMED TO VIOLATE THE CONDITIONS OF PROBATION OR
4 PAROLE, AND SUCH VIOLATION SHALL BE A BASIS FOR THE REVOCATION OF
5 PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE
6 CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
7 TER. FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED
8 TO INCLUDE POST-RELEASE SUPERVISION.
9 S 4. Subdivision 4 of section 995-c of the executive law, as amended
10 by section 104 of subpart B of part C of chapter 62 of the laws of 2011,
11 is amended to read as follows:
12 4. The commissioner of the division of criminal justice services, in
13 consultation with the commission, the commissioner of health, the direc-
14 tor of the office of probation and correctional alternatives and the
15 department of corrections and community supervision, shall promulgate
16 rules and regulations governing the procedures for notifying designated
17 offenders of the requirements of this section. THE COMMISSIONER OF THE
18 DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND
19 REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPROPRIATE
20 FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX
21 OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
22 S 4-a. Subdivision 9 of section 995-c of the executive law, as amended
23 by chapter 524 of the laws of 2002, is amended to read as follows:
24 9. (a) Upon receipt of notification of a reversal or a vacatur of a
25 conviction, or of the granting of a pardon pursuant to article two-A of
26 this chapter, of an individual whose DNA record has been stored in the
27 state DNA identification index in accordance with this article by the
28 division of criminal justice services, the DNA record shall be expunged
29 from the state DNA identification index, and such individual may apply
30 to the court in which the judgment of conviction was originally entered
31 for an order directing the expungement of any DNA record and any
32 samples, analyses, or other documents relating to the DNA testing of
33 such individual in connection with the investigation or prosecution of
34 the crime which resulted in the conviction that was reversed or vacated
35 or for which the pardon was granted. A copy of such application shall be
36 served on the district attorney and an order directing expungement may
37 be granted if the court finds that all appeals relating to the
38 conviction have been concluded; that such individual will not be
39 retried, or, if a retrial has occurred, the trier of fact has rendered a
40 verdict of complete acquittal, and that expungement will not adversely
41 affect the investigation or prosecution of some other person or persons
42 for the crime. The division shall, by rule or regulation, prescribe
43 procedures to ensure that the DNA record in the state DNA identification
44 index, and any samples, analyses, or other documents relating to such
45 record, whether in the possession of the division, or any law enforce-
46 ment or police agency, or any forensic DNA laboratory, including any
47 duplicates or copies thereof, at the discretion of the possessor there-
48 of, are either destroyed or returned to such individual, or to the
49 attorney who represented him or her at the time such reversal, vacatur
50 or pardon, was granted. The commissioner shall also adopt by rule and
51 regulation a procedure for the expungement in other appropriate circum-
52 stances of DNA records contained in the index.
53 (b) As prescribed in this paragraph, if an individual, either volun-
54 tarily, PURSUANT TO PARAGRAPH (B) OF SUBDIVISION THREE OF THIS SECTION,
55 or pursuant to a warrant or order of a court, has provided a sample for
56 DNA testing in connection with the investigation, ARREST or prosecution
A. 3267--A 6
1 of a crime and (i) no criminal action against the individual relating to
2 such crime was commenced within the period specified by section 30.10 of
3 the criminal procedure law, or (ii) a criminal action was commenced
4 against the individual relating to such crime which resulted in a
5 complete acquittal, or (iii) a criminal action WAS COMMENCED against the
6 individual relating to such crime [resulted in a conviction that was
7 subsequently reversed or vacated, or for which the individual was grant-
8 ed a pardon pursuant to article two-A of this chapter, such individual
9 may apply to the supreme court or the court in which the judgment of
10 conviction was originally entered for an order directing the expungement
11 of any DNA record and any samples, analyses, or other documents relating
12 to the DNA testing of such individual in connection with the investi-
13 gation or prosecution of such crime. A copy of such application shall be
14 served on the district attorney and an order directing expungement may
15 be granted if the court finds that the individual has satisfied the
16 conditions of one of the subparagraphs of this paragraph; that if a
17 judgment of conviction was reversed or vacated, all appeals relating
18 thereto have been concluded and the individual will not be retried, or,
19 if a retrial has occurred, the trier of fact has rendered a verdict of
20 complete acquittal, and that expungement will not adversely affect the
21 investigation or prosecution of some other person or persons for the
22 crime. If an order directing the expungement of any DNA record and any
23 samples, analyses or other documents relating to the DNA testing of such
24 individual is issued] WHICH WAS RESOLVED BY A DISMISSAL, SUCCESSFUL
25 COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM OR CONDITIONAL
26 DISCHARGE OR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION PURSUANT TO
27 SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTICLE,
28 THE DNA RECORD SHALL BE EXPUNGED FROM THE STATE DNA IDENTIFICATION
29 INDEX. AN INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD AND ANY
30 SAMPLES, ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH
31 INDIVIDUAL BY PROVIDING THE FOLLOWING MATERIALS TO THE DIVISION OF CRIM-
32 INAL JUSTICE SERVICES:
33 (1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
34 AND
35 (2) A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A
36 PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE OR NON-QUA-
37 LIFYING CONVICTION OR ACQUITTAL.
38 (C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF
39 THIS SUBDIVISION, such record and any samples, analyses, or other docu-
40 ments shall, at the discretion of the possessor thereof, be destroyed or
41 returned to such individual or to the attorney who represented him or
42 her IN THE CRIMINAL ACTION OR in connection with the [application for
43 the order of] REQUEST FOR expungement.
44 (D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
45 CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING CHARGE FOR WHICH
46 COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
47 GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION.
48 S 5. Section 995-b of the executive law is amended by adding a new
49 subdivision 3-a to read as follows:
50 3-A. THE COMMISSION, IN CONSULTATION WITH THE SUBCOMMITTEE ON BIOLOG-
51 ICAL EVIDENCE PRESERVATION, SHALL DEVELOP GUIDELINES RELATING TO THE
52 COLLECTION, PRESERVATION, STORAGE, AND INDEXING OF BIOLOGICAL EVIDENCE
53 BY LAW ENFORCEMENT AGENCIES AND FORENSIC LABORATORIES. SUCH GUIDELINES
54 SHALL INCLUDE, BUT NOT BE LIMITED TO, THE MINIMUM PERIOD OF TIME THAT
55 BIOLOGICAL EVIDENCE OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS
56 USED IN THIS SUBDIVISION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN
A. 3267--A 7
1 SEMEN, BLOOD, SALIVA, HAIR, SKIN, TISSUE, OR OTHER IDENTIFIED BIOLOGICAL
2 MATERIAL, AND SHALL INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT.
3 INITIALLY, THE COMMISSION SHALL DEVELOP SUCH GUIDELINES AS VOLUNTARY
4 BEST PRACTICES. NONCOMPLIANCE WITH SUCH GUIDELINES SHALL NOT BE GROUNDS
5 FOR DISMISSAL OF CHARGES, EXCLUSION OF EVIDENCE, OR ANY OTHER LEGAL
6 RELIEF. THEREAFTER, AND TAKING INTO ACCOUNT THE EXPERIENCE UNDER THE
7 INITIAL GUIDELINES, THE COMMISSION SHALL CONSIDER WHAT MANDATORY RULES
8 SHOULD BE ADOPTED AS TO THE COLLECTION, PRESERVATION, STORAGE, AND
9 INDEXING OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND FORENSIC
10 LABORATORIES. THE COMMISSION MAY ADOPT SUCH RULES WITHIN ITS EXISTING
11 REGULATORY AUTHORITY; IT MAY RECOMMEND THAT IT OR ANOTHER BODY BE GIVEN
12 EXPANDED REGULATORY AUTHORITY; AND IT MAY MAKE RECOMMENDATIONS FOR STAT-
13 UTORY ADOPTION OF PARTICULAR RULES. IN DEVELOPING SUCH GUIDELINES, RULES
14 AND RECOMMENDATIONS, THE COMMISSION SHALL CONSIDER THE VARYING NEEDS AND
15 RESOURCES OF LAW ENFORCEMENT AGENCIES AND JURISDICTIONS WITHIN THE
16 STATE.
17 S 6. Subdivision 6 of section 120.90 of the criminal procedure law, as
18 amended by chapter 424 of the laws of 1998, is amended to read as
19 follows:
20 6. Before bringing a defendant arrested pursuant to a warrant before
21 the local criminal court in which such warrant is returnable, a police
22 officer must without unnecessary delay perform all fingerprinting and
23 other preliminary police duties required in the particular case. In any
24 case in which the defendant is not brought by a police officer before
25 such court but, following his OR HER arrest in another county for an
26 offense specified in subdivision one of section 160.10, is released by a
27 local criminal court of such other county on his OR HER own recognizance
28 or on bail for his OR HER appearance on a specified date before the
29 local criminal court before which the warrant is returnable, the latter
30 court must, upon arraignment of the defendant before it, direct that he
31 OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
32 TAKEN by the appropriate officer or agency, and that he OR SHE appear at
33 an appropriate designated time and place for such purpose.
34 S 7. Section 130.60 of the criminal procedure law, as amended by chap-
35 ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of
36 the laws of 1993, is amended to read as follows:
37 S 130.60 Summons; fingerprinting of defendant.
38 1. Upon the arraignment of a defendant whose court attendance has been
39 secured by the issuance and service of a summons, based upon an indict-
40 ment, a prosecutor's information or upon an information, felony
41 complaint or misdemeanor complaint filed by a complainant who is a
42 police officer, the court must, if an offense charged in the accusatory
43 instrument is one specified in subdivision one of section 160.10, direct
44 that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
45 DNA TESTING TAKEN by the appropriate police officer or agency, and that
46 he or she appear at an appropriate designated time and place for such
47 purpose.
48 2. Upon the arraignment of a defendant whose court attendance has been
49 secured by the issuance and service of a summons based upon an informa-
50 tion or misdemeanor complaint filed by a complainant who is not a police
51 officer, and who has not previously been fingerprinted OR FROM WHOM A
52 DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN, the court may, if it finds
53 reasonable cause to believe that the defendant has committed an offense
54 specified in subdivision one of section 160.10, direct that the defend-
55 ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
56 TAKEN by the appropriate police officer or agency and that he OR SHE
A. 3267--A 8
1 appear at an appropriate designated time and place for such purpose. A
2 defendant whose court appearance has been secured by the issuance and
3 service of a criminal summons based upon a misdemeanor complaint or
4 information filed by a complainant who is not a police officer, must be
5 directed by the court, upon conviction of the defendant, to be finger-
6 printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the
7 appropriate police officer or agency and the court must also direct that
8 the defendant appear at an appropriate designated time and place for
9 such purpose, if the defendant is convicted of any offense specified in
10 subdivision one of section 160.10.
11 S 8. Subdivision 5 of section 140.20 of the criminal procedure law, as
12 amended by chapter 762 of the laws of 1971, is amended to read as
13 follows:
14 5. Before service of an appearance ticket upon an arrested person
15 pursuant to subdivision two or three, the issuing police officer must,
16 if the offense designated in such appearance ticket is one of those
17 specified in subdivision one of section 160.10, cause such person to be
18 fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN in the
19 same manner as would be required were no appearance ticket to be issued
20 or served.
21 S 9. Subdivision 2 of section 140.27 of the criminal procedure law, as
22 amended by chapter 843 of the laws of 1980, is amended to read as
23 follows:
24 2. Upon arresting a person without a warrant, a peace officer, except
25 as otherwise provided in subdivision three, must without unnecessary
26 delay bring him OR HER or cause him OR HER to be brought before a local
27 criminal court, as provided in section 100.55 and subdivision one of
28 section 140.20, and must without unnecessary delay file or cause to be
29 filed therewith an appropriate accusatory instrument. If the offense
30 which is the subject of the arrest is one of those specified in subdivi-
31 sion one of section 160.10, the arrested person must be fingerprinted
32 [and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
33 as therein provided. In order to execute the required post-arrest func-
34 tions, such arresting peace officer may perform such functions himself
35 OR HERSELF, or he OR SHE may enlist the aid of a police officer for the
36 performance thereof in the manner provided in subdivision one of section
37 140.20.
38 S 10. Section 150.70 of the criminal procedure law, as amended by
39 chapter 762 of the laws of 1971, is amended to read as follows:
40 S 150.70 Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of
41 defendant.
42 Upon the arraignment of a defendant who has not been arrested and
43 whose court attendance has been secured by the issuance and service of
44 an appearance ticket pursuant to subdivision one of section 150.20, the
45 court must, if an offense charged in the accusatory instrument is one
46 specified in subdivision one of section 160.10, direct that the defend-
47 ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN
48 by the appropriate police officer or agency, and that he OR SHE appear
49 at an appropriate designated time and place for such purpose.
50 S 11. The section heading of section 160.10 of the criminal procedure
51 law, as amended by chapter 762 of the laws of 1971, is amended and a new
52 subdivision 5 is added to read as follows:
53 Fingerprinting AND DNA ANALYSIS; duties of police with respect there-
54 to.
55 5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO
56 SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO
A. 3267--A 9
1 SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR
2 DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED.
3 (B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN
4 THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB-
5 LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF
6 CRIMINAL JUSTICE SERVICES.
7 (C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE
8 HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
9 S 12. Section 160.20 of the criminal procedure law, as amended by
10 chapter 108 of the laws of 1973, is amended to read as follows:
11 S 160.20 Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger-
12 prints AND DNA ANALYSIS SAMPLE.
13 Upon the taking of fingerprints AND A SAMPLE APPROPRIATE FOR DNA TEST-
14 ING of an arrested person or defendant as prescribed in section 160.10,
15 the appropriate police officer or agency must without unnecessary delay
16 forward two copies of such fingerprints to the division of criminal
17 justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A
18 FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND
19 INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH
20 SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE
21 LAW.
22 S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the
23 criminal procedure law, paragraph (a) as amended by chapter 476 of the
24 laws of 2009 and paragraph (b) as amended by chapter 169 of the laws of
25 1994, are amended to read as follows:
26 (a) every photograph of such person and photographic plate or proof,
27 [and] all palmprints and fingerprints taken or made of such person, AND
28 ALL DNA ANALYSIS SAMPLES AND DNA RECORDS TAKEN pursuant to the
29 provisions of this article in regard to the action or proceeding termi-
30 nated, [and] all duplicates and copies thereof, except a digital finger-
31 print image where authorized pursuant to paragraph (e) of this subdivi-
32 sion, except for the palmprints and fingerprints concerning a
33 disposition of harassment in the second degree as defined in section
34 240.26 of the penal law, committed against a member of the same family
35 or household as the defendant, as defined in subdivision one of section
36 530.11 of this chapter, and determined pursuant to subdivision eight-a
37 of section 170.10 of this title, shall forthwith be, at the discretion
38 of the recipient agency, either destroyed or returned to such person, or
39 to the attorney who represented such person at the time of the termi-
40 nation of the action or proceeding, at the address given by such person
41 or attorney during the action or proceeding, by the division of criminal
42 justice services and by any police department or law enforcement agency
43 having any such photograph, photographic plate or proof, palmprints
44 [or], fingerprints, AND DNA ANALYSIS SAMPLE AND DNA RECORD in its
45 possession or under its control;
46 (b) any police department or law enforcement agency, including the
47 division of criminal justice services, which transmitted or otherwise
48 forwarded to any agency of the United States or of any other state or of
49 any other jurisdiction outside the state of New York copies of any such
50 photographs, photographic plates or proofs, palmprints [and], finger-
51 prints, AND DNA ANALYSIS SAMPLE AND DNA RECORD, shall forthwith formally
52 request in writing that all such copies be destroyed or returned to the
53 police department or law enforcement agency which transmitted or
54 forwarded them, and upon such return such department or agency shall, at
55 its discretion, either destroy or return them as provided herein;
A. 3267--A 10
1 S 14. (a) The commission for exoneration review is hereby established
2 on a temporary basis as an independent agency of the state to study and
3 review recent cases in which convicted defendants were subsequently
4 exonerated, whether by DNA evidence or otherwise, to determine why the
5 process failed in each individual case, and to determine whether these
6 cases are indicative of systemic flaws that have led to the conviction
7 and sentencing of innocent people.
8 (b) The governor shall appoint the chair and ten other members of such
9 commission, including one appointed on the recommendation of the chief
10 judge of the court of appeals, one appointed on the recommendation of
11 the speaker of the assembly, one appointed on the recommendation of the
12 temporary president of the senate, one appointed on the recommendation
13 of the minority leader of the senate, and one appointed on the recommen-
14 dation of the minority leader of the assembly. If any vacancy occurs it
15 shall be filled in the manner provided for the original appointment to
16 the vacated seat.
17 (c) No member of the commission shall be disqualified from holding any
18 public office or employment, nor shall he or she forfeit any such office
19 or employment, by reason of his or her appointment pursuant to this
20 section.
21 (d) The commission shall meet as often as its chair, or at least five
22 of its members, shall determine to be necessary. Six members shall
23 constitute a quorum, and except as otherwise provided in this section,
24 affirmative decisions of the commission shall require the concurrence of
25 seven members.
26 (e) The members of the commission shall serve without salary or other
27 compensation, but shall be entitled to receive actual and necessary
28 expenses incurred in the discharge of their duties pursuant to this
29 section.
30 (f) The commission shall review criminal or juvenile cases in which
31 the defendant or respondent was sentenced but subsequently exonerated.
32 The purpose of such review is to consider whether experience in such
33 cases provides useful information about possible reforms that could
34 enhance safeguards, make improvements in the way that law enforcement
35 agencies and the criminal justice system function, and protect against
36 future convictions of innocent persons. Such possible reforms may
37 include but are not limited to the areas of:
38 (1) investigative techniques that led to the arrest, identification,
39 and conviction of the innocent persons;
40 (2) issues relating to false confessions, including whether the
41 recording of interrogations should be mandated;
42 (3) trial processes and procedures that may have contributed to
43 convictions of innocent persons;
44 (4) any conduct of prosecutors, defense counsels, or courts that may
45 have contributed to convictions of innocent persons;
46 (5) issues relating to the provision of counsel to indigent defend-
47 ants, including whether counsel are adequately trained, compensated, and
48 provided with appropriate resources for investigations; and
49 (6) failures in the appellate or post-conviction process that resulted
50 in wrongful convictions not being discovered or corrected at an earlier
51 time.
52 (g) The commissioner of criminal justice services shall identify cases
53 in which convictions were set aside and it appears reasonably likely
54 that the person convicted was innocent of the crimes charged, and it
55 shall submit summaries of such cases to the commission. The commissioner
56 of criminal justice services shall seek to submit at least all such
A. 3267--A 11
1 cases in which exoneration resulted from DNA evidence, and all such
2 cases in which there was an exoneration within five years prior to the
3 effective date of this act. The commission of exoneration review shall
4 conduct an initial review of each case submitted by the commissioner of
5 criminal justice services, and may also choose to conduct initial
6 reviews of other cases. As to each case, the commission shall decide
7 whether such case warrants detailed review in that (1) it appears highly
8 likely that the person convicted was actually innocent of the crimes
9 charged, and (2) there appear to be features of the case that may
10 provide useful information without possible reforms.
11 (h) When the commission for exoneration review decides that a case
12 warrants detailed review, the commissioner of criminal justice services
13 shall compile records and other information relating to that case, and
14 may solicit comments or analyses by experts in relevant fields.
15 Notwithstanding any other provision of law, the commissioner of criminal
16 justice services may request and shall receive from any court, depart-
17 ment, division, board, bureau, commission or other agency of the state
18 or political subdivision thereof, or any public authority, such assist-
19 ance, records and data as will enable it effectively to carry out its
20 duties. The commissioner of criminal justice services shall submit such
21 records, information, comments, and analyses to the commission of exon-
22 eration review. Confidential and sensitive material, such as certain
23 information relating to victims and confidential informants, may be
24 redacted as appropriate. The commission for exoneration review may
25 conduct its detailed review on the basis of the materials submitted, or
26 it may request the commissioner of criminal justice services to compile
27 and submit further specified kinds of information about the case.
28 (i) The commission for exoneration review shall make available an
29 annual report detailing, at a minimum, the number of cases submitted by
30 the commissioner of criminal justice services, the number of cases
31 chosen for detailed review, and the number of detailed reviews
32 completed. The report shall include any findings of fact and recommenda-
33 tions for reform that may have been adopted by the commission since its
34 last report. Recommendations that are not adopted by the commission but
35 obtain the concurrence of at least four members shall be included in the
36 annual report as proposals for consideration. In addition to the annual
37 report, the commission may decide to issue other reports containing
38 findings of fact and/or recommendations for reform. All reports issued
39 by the commission shall be made available to the public and delivered to
40 the governor, the chief judge of the court of appeals, the temporary
41 president of the senate, and the speaker of the assembly.
42 S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
43 procedure law, as amended by section 73 of subpart B of part C of chap-
44 ter 62 of the laws of 2011, is amended to read as follows:
45 (d) such records shall be made available to the person accused or to
46 such person's designated agent, and shall be made available to (i) a
47 prosecutor in any proceeding in which the accused has moved for an order
48 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
49 enforcement agency upon ex parte motion in any superior court, if such
50 agency demonstrates to the satisfaction of the court that justice
51 requires that such records be made available to it, or (iii) any state
52 or local officer or agency with responsibility for the issuance of
53 licenses to possess guns, when the accused has made application for such
54 a license, or (iv) the New York state department of corrections and
55 community supervision when the accused is on parole supervision as a
56 result of conditional release or a parole release granted by the New
A. 3267--A 12
1 York state board of parole, and the arrest which is the subject of the
2 inquiry is one which occurred while the accused was under such super-
3 vision or (v) any prospective employer of a police officer or peace
4 officer as those terms are defined in subdivisions thirty-three and
5 thirty-four of section 1.20 of this chapter, in relation to an applica-
6 tion for employment as a police officer or peace officer; provided,
7 however, that every person who is an applicant for the position of
8 police officer or peace officer shall be furnished with a copy of all
9 records obtained under this paragraph and afforded an opportunity to
10 make an explanation thereto, or (vi) the probation department responsi-
11 ble for supervision of the accused when the arrest which is the subject
12 of the inquiry is one which occurred while the accused was under such
13 supervision, OR (VII) THE COMMISSION FOR EXONERATION REVIEW; and
14 S 16. Subdivision 4 of section 190.25 of the criminal procedure law is
15 amended by adding a new paragraph (c) to read as follows:
16 (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI-
17 MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND
18 JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION
19 REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS-
20 SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
21 S 17. Section 240.40 of the criminal procedure law is amended by
22 adding a new subdivision 1-a to read as follows:
23 1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR
24 COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU-
25 MENT IS PENDING MAY ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM
26 EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA
27 DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI-
28 AL TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE,
29 PROVIDED THAT THE COURT SHALL NOT DO SO IF IT IS SATISFIED THAT THE
30 PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF
31 THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED
32 FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY DIRECT A STATE OR
33 LOCAL PUBLIC FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE
34 ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATA-
35 BANKS TO THE EXTENT, AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE
36 LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS
37 TO HOW PROFILES FOR FORENSIC DNA ANALYSIS MUST BE GENERATED, AND
38 REQUIREMENTS FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION. IF
39 SUCH A DATABANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOV-
40 ERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT
41 SHALL BE NOTIFIED OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH
42 PROFILE, AND THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO
43 ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN
44 THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER
45 REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON.
46 S 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
47 nal procedure law, as amended by chapter 138 of the laws of 2004, is
48 amended and a new paragraph (c) is added to read as follows:
49 (a) Where the defendant's motion requests the performance of a foren-
50 sic DNA test on specified evidence, and upon the court's determination
51 that any evidence containing deoxyribonucleic acid ("DNA") was secured
52 in connection with the [trial] PROCEEDINGS resulting in the judgment,
53 the court shall grant the application for forensic DNA testing of such
54 evidence upon its determination that if a DNA test had been conducted on
55 such evidence, and if the results had been admitted in the trial result-
56 ing in the judgment, there exists a reasonable probability that the
A. 3267--A 13
1 verdict would have been more favorable to the defendant. IN THE CASE OF
2 A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL GRANT THE
3 APPLICATION ONLY UPON ITS DETERMINATION THAT IF THE RESULTS HAD BEEN
4 AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT
5 THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
6 WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG
7 OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE
8 DEFENDANT'S PLEA OF GUILTY.
9 (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC DNA TEST
10 OF SPECIFIED EVIDENCE, AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI-
11 SION, THE DEFENDANT MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE
12 DERIVED FROM SPECIFIED EVIDENCE RECOVERED BY LAW ENFORCEMENT TO A DNA
13 DATABANK. IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON,
14 THE COURT MAY CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE
15 FOR SUCH A COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF
16 THIS CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE
17 MOTION FOR SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC
18 FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE ENTERED INTO AND
19 SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATABANKS TO THE EXTENT,
20 AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS
21 GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR
22 FORENSIC DNA ANALYSIS MUST BE GENERATED, AND REQUIREMENTS FOR SEARCHING
23 AND STORAGE IN THE DATABANK IN QUESTION. IF SUCH A DATABANK SEARCH
24 REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT
25 MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF
26 THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT
27 SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE
28 APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE
29 DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A
30 DNA SAMPLE FROM ANY OTHER PERSON.
31 S 19. Section 65.10 of the penal law is amended by adding a new subdi-
32 vision 4-b to read as follows:
33 4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
34 SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
35 OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
36 TY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATORY
37 CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS
38 REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
39 S 20. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision
40 5 of section 8-b of the court of claims act, as added by chapter 1009 of
41 the laws of 1984, are amended to read as follows:
42 (b) (i) he has been pardoned upon the ground of innocence of the crime
43 or crimes for which he was sentenced and which are the grounds for the
44 complaint; or (ii) his judgment of conviction was reversed or vacated,
45 and the accusatory instrument dismissed or, if a new trial was ordered,
46 either he was found not guilty at the new trial or he was not retried
47 and the accusatory instrument dismissed; provided that the judgement of
48 conviction was reversed or vacated, and the accusatory instrument was
49 dismissed, on any of the following grounds: (A) paragraph [(a),] (b),
50 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal
51 procedure law; or (B) subdivision one (where based upon grounds set
52 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the
53 count dismissed was the sole basis for the imprisonment complained of)
54 or five of section 470.20 of the criminal procedure law; or (C) compara-
55 ble provisions of the former code of criminal procedure or subsequent
56 law; or (D) the statute, or application thereof, on which the accusatory
A. 3267--A 14
1 instrument was based violated the constitution of the United States or
2 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED
3 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
4 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES
5 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED
6 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN
7 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH,
8 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL
9 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN
10 THIS PARAGRAPH; and
11 (b) (i) he has been pardoned upon the ground of innocence of the crime
12 or crimes for which he was sentenced and which are the grounds for the
13 complaint; or (ii) his judgment of conviction was reversed or vacated,
14 and the accusatory instrument dismissed or, if a new trial was ordered,
15 either he was found not guilty at the new trial or he was not retried
16 and the accusatory instrument dismissed; provided that the judgement of
17 conviction was reversed or vacated, and the accusatory instrument was
18 dismissed, on any of the following grounds: (A) paragraph [(a),] (b),
19 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal
20 procedure law; or (B) subdivision one (where based upon grounds set
21 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the
22 count dismissed was the sole basis for the imprisonment complained of)
23 or five of section 470.20 of the criminal procedure law; or (C) compara-
24 ble provisions of the former code of criminal procedure or subsequent
25 law; or (D) the statute, or application thereof, on which the accusatory
26 instrument was based violated the constitution of the United States or
27 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED
28 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE
29 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES
30 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED
31 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN
32 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH,
33 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL
34 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN
35 THIS PARAGRAPH; and
36 S 21. This act shall take effect November 1, 2011; provided that:
37 (a) the amendments to article 49-B of the executive law, made by
38 sections one and two of this act, and the amendments to the criminal
39 procedure law, made by sections six, seven, eight, nine, ten, eleven,
40 twelve and thirteen of this act, shall apply to designated offenses
41 committed on or after the effective date of this act; and to designated
42 offenses committed prior to such effective date where either the crimi-
43 nal proceeding arising out of the commission of such offense is pending
44 on the effective date of this act or the service of the sentence imposed
45 upon conviction of the designated offense has not been completed prior
46 to such effective date; and to any person adjudicated a youthful offen-
47 der for the commission of a designated offense committed prior to the
48 effective date of this act where service of the sentence imposed upon
49 adjudication as a youthful offender has not been completed prior to such
50 effective date; and to any person required to register as a sex offender
51 pursuant to article 6-C of the correction law on or after the effective
52 date of this act; and
53 (b) sections fourteen, fifteen and sixteen of this act shall take
54 effect April 1, 2012, and shall expire and be deemed repealed September
55 1, 2015.
