Bill Text: NY A06124 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to the establishment of a single computerized state DNA identification index and requires municipalities to expunge any DNA record stored in a municipal DNA identification index.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced - Dead) 2022-01-05 - referred to codes [A06124 Detail]
Download: New_York-2021-A06124-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6124 2021-2022 Regular Sessions IN ASSEMBLY March 10, 2021 ___________ Introduced by M. of A. ZINERMAN -- read once and referred to the Commit- tee on Codes AN ACT to amend the executive law, in relation to the establishment of a single computerized state DNA identification index and requiring muni- cipalities to expunge any DNA record stored in a municipal DNA iden- tification index The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1, 2, 3 and 9 of section 995-c of the execu- 2 tive law, subdivisions 1 and 2 as added by chapter 737 of the laws of 3 1994, subdivision 3 as amended by chapter 19 of the laws of 2012, 4 subparagraph (iii) of paragraph (b) of subdivision 3 as amended by 5 section 1 of part A of chapter 55 of the laws of 2012 and subdivision 9 6 as amended by chapter 524 of the laws of 2002, are amended to read as 7 follows: 8 1. Following the promulgation of a policy by the commission pursuant 9 to subdivision nine of section nine hundred ninety-five-b of this arti- 10 cle, the commissioner of criminal justice services is authorized to 11 promulgate a plan for the establishment of a single computerized state 12 DNA identification index within the division of criminal justice 13 services. No county, city, town, village, or municipality, or any entity 14 thereof, may establish or maintain a computerized DNA identification 15 index. 16 2. Following the review and approval of the plan by the DNA subcommit- 17 tee and the commission and the filing of such plan with the speaker of 18 the assembly and the temporary president of the senate, the commissioner 19 of criminal justice services is hereby authorized to establish a single 20 computerized state DNA identification index pursuant to the provisions 21 of this article. 22 3. (a) Any designated offender subsequent to conviction and sentencing 23 for a crime specified in subdivision seven of section nine hundred nine- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02638-01-1A. 6124 2 1 ty-five of this article, shall be required to provide a sample appropri- 2 ate for DNA testing to determine identification characteristics specific 3 to such person and to be included in [a] the state DNA identification 4 index pursuant to this article. 5 (b) (i) In the case of a designated offender who is sentenced to a 6 term of imprisonment, such sample shall be collected by the public serv- 7 ant to whose custody the designated offender has been committed. 8 (ii) In the case of a designated offender who is sentenced to a term 9 of probation, including a sentence of probation imposed in conjunction 10 with a sentence of imprisonment when a sample has not already been 11 taken, such sample shall be collected by the probation department super- 12 vising the designated offender. 13 (iii) In the case of a designated offender whose sentence does not 14 include either a term of imprisonment or a term of probation, outside of 15 the city of New York, the court shall order that a court officer take a 16 sample or that the designated offender report to an office of the sher- 17 iff of that county, and when the designated offender does so, such 18 sample shall be collected by the sheriff's office. Within the city of 19 New York, the court shall order that the sample be collected by a court 20 officer. 21 (iv) Nothing in this paragraph 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, 24 police officer, peace officer, other law enforcement official, or desig- 25 nated personnel of the division of criminal justice services who has 26 been notified by the division of criminal justice services that such 27 designated offender has not provided a DNA sample. Upon notification by 28 the division of criminal justice services that a designated offender has 29 not provided a DNA sample, such court official, state or local 30 correction official or employee, probation officer, parole officer, 31 police officer, peace officer or other law enforcement official, or 32 designated personnel of the division of criminal justice services shall 33 collect the DNA sample. 34 (c) No persons other than designated offenders shall be required to 35 provide a DNA sample for inclusion in the DNA identification index. 36 9. (a) Upon receipt of notification of a reversal or a vacatur of a 37 conviction, or of the granting of a pardon pursuant to article two-A of 38 this chapter, of an individual whose DNA record has been stored in the 39 state DNA identification index in accordance with this article by the 40 division of criminal justice services, the DNA record shall be expunged 41 from the state DNA identification index, and such individual may apply 42 to the court in which the judgment of conviction was originally entered 43 for an order directing the expungement of any DNA record and any 44 samples, analyses, or other documents relating to the DNA testing of 45 such individual in connection with the investigation or prosecution of 46 the crime which resulted in the conviction that was reversed or vacated 47 or for which the pardon was granted. A copy of such application shall be 48 served on the district attorney and an order directing expungement may 49 be granted if the court finds that all appeals relating to the 50 conviction have been concluded; that such individual will not be 51 retried, or, if a retrial has occurred, the trier of fact has rendered a 52 verdict of complete acquittal, and that expungement will not adversely 53 affect the investigation or prosecution of some other person or persons 54 for the crime. The division shall, by rule or regulation, prescribe 55 procedures to ensure that the DNA record in the state DNA identification 56 index, and any samples, analyses, or other documents relating to suchA. 6124 3 1 record, whether in the possession of the division, or any law enforce- 2 ment or police agency, or any forensic DNA laboratory, including any 3 duplicates or copies thereof, at the discretion of the possessor there- 4 of, are either destroyed or returned to such individual, or to the 5 attorney who represented him or her at the time such reversal, vacatur 6 or pardon, was granted. The commissioner shall also adopt by rule and 7 regulation a procedure for the expungement in other appropriate circum- 8 stances of DNA records contained in the index. 9 (b) As prescribed in this paragraph, if an individual[, either volun-10tarily or pursuant to a warrant or order of a court,] has provided, or 11 law enforcement has obtained, a sample for DNA testing in connection 12 with the investigation or prosecution of a crime and (i) no criminal 13 action against the individual relating to such crime was commenced with- 14 in the period specified by section 30.10 of the criminal procedure law, 15 or (ii) in the case of a juvenile delinquency arrest, no proceeding 16 under article three of the family court act was commenced within the 17 period specified by section 302.2 of the family court act; or (iii) a 18 criminal action or a proceeding under article three of the family court 19 act was commenced against the individual relating to such crime which 20 resulted in a complete acquittal, dismissal, or adjudication or 21 conviction of a non-criminal offense, or [(iii)] (iv) a criminal action 22 against the individual relating to such crime resulted in a conviction 23 that was subsequently reversed or vacated, or for which the individual 24 was granted a pardon pursuant to article two-A of this chapter, such 25 individual may apply to the supreme court, the court that had jurisdic- 26 tion over the matter or the court in which the judgment of conviction 27 was originally entered for an order directing the expungement of any DNA 28 record and any samples, analyses, or other documents relating to the DNA 29 testing of such individual in connection with the investigation or pros- 30 ecution of such crime. A copy of such application shall be served on the 31 district attorney or presentment agency and an order directing expunge- 32 ment [may] shall be granted if the court finds that the individual has 33 satisfied the conditions of one of the subparagraphs of this paragraph; 34 that if a judgment of conviction was reversed or vacated, all appeals 35 relating thereto have been concluded and the individual will not be 36 retried, or, if a retrial has occurred, the trier of fact has rendered a 37 verdict of complete acquittal, and that expungement will not adversely 38 affect the investigation or prosecution of some other person or persons 39 for the crime. If an order directing the expungement of any DNA record 40 and any samples, analyses or other documents relating to the DNA testing 41 of such individual is issued, such record and any samples, analyses, or 42 other documents shall, at the discretion of the possessor thereof, be 43 destroyed or returned to such individual or to the attorney who repres- 44 ented him or her in connection with the application for the order of 45 expungement. Nothing in this subdivision authorizes any county, city, 46 town, village, or municipality, or any entity thereof, to establish or 47 maintain a computerized DNA identification index. 48 (c) Any DNA record stored in a DNA identification index by any county, 49 city, town, village, or municipality, or entity thereof, must be 50 expunged within ninety days of the effective date of this paragraph. 51 § 2. This act shall take effect immediately.
