Bill Text: NY A10133 | 2015-2016 | General Assembly | Introduced
Bill Title: Provides that people arrested in connection with certain felonies must submit a DNA sample.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2016-05-12 - referred to codes [A10133 Detail]
Download: New_York-2015-A10133-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10133 IN ASSEMBLY May 12, 2016 ___________ Introduced by M. of A. SEPULVEDA -- read once and referred to the Committee on Codes AN ACT to amend the executive law and the criminal procedure law, in relation to requiring individuals arrested in connection with certain felonies to submit a DNA sample The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 995 of the executive law is amended by adding a new 2 subdivision 7-a to read as follows: 3 7-a. "Felony arrestee" means a person arrested and charged with any 4 one or more of the following felonies, or an attempt thereof where such 5 attempt is a felony offense, as defined in sections 130.25, 130.30, 6 130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67, 130.70, 7 130.75, 130.80, 130.95 and 130.96 of the penal law, relating to sex 8 offenses; and the victim is less than thirteen years old. 9 § 2. Subdivision 3 of section 995-c of the executive law is amended by 10 adding four new paragraphs (c), (d), (e) and (f) to read as follows: 11 (c) A felony arrestee shall be required to provide a sample appropri- 12 ate for DNA testing upon his or her arrest, unless such felony arrestee 13 has previously provided a sample that is included in the state DNA iden- 14 tification index. 15 (d) A public servant to whose custody a designated offender or felony 16 arrestee who has not yet provided a DNA sample has been committed shall 17 seek an order of the court to collect such sample if the offender, after 18 written or oral request, refuses to provide such sample. 19 (e) The detention, arrest, indictment or conviction of a person based 20 upon DNA records contained in the state DNA identification index shall 21 not be invalidated if it is later determined that the division of crimi- 22 nal justice services inadvertently, but in good faith, collected or 23 placed the person's DNA sample in the index. 24 (f) The commissioner of criminal justice services shall promulgate 25 rules and regulations governing the periodic review of the DNA identifi- 26 cation index to determine whether or not the index contains DNA profiles 27 that should not be in the index, including the steps necessary to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10621-03-6A. 10133 2 1 expunge any profiles which the division of criminal justice services 2 determines should not be in the index. 3 § 3. Subdivision 9 of section 995-c of the executive law, as amended 4 by chapter 524 of the laws of 2002, is amended to read as follows: 5 9. (a) Upon receipt of notification of a reversal or a vacatur of a 6 conviction, or of the granting of a pardon pursuant to article two-A of 7 this chapter, of an individual whose DNA record has been stored in the 8 state DNA identification index in accordance with this article by the 9 division of criminal justice services, the DNA record shall be expunged 10 from the state DNA identification index, and such individual may apply 11 to the court in which the judgment of conviction was originally entered 12 for an order directing the expungement of any DNA record and any 13 samples, analyses, or other documents relating to the DNA testing of 14 such individual in connection with the investigation or prosecution of 15 the crime which resulted in the conviction that was reversed or vacated 16 or for which the pardon was granted. A copy of such application shall be 17 served on the district attorney and an order directing expungement may 18 be granted if the court finds that all appeals relating to the 19 conviction have been concluded; that such individual will not be 20 retried, or, if a retrial has occurred, the trier of fact has rendered a 21 verdict of complete acquittal, and that expungement will not adversely 22 affect the investigation or prosecution of some other person or persons 23 for the crime. The division shall, by rule or regulation, prescribe 24 procedures to ensure that the DNA record in the state DNA identification 25 index, and any samples, analyses, or other documents relating to such 26 record, whether in the possession of the division, or any law enforce- 27 ment or police agency, or any forensic DNA laboratory, including any 28 duplicates or copies thereof, at the discretion of the possessor there- 29 of, are either destroyed or returned to such individual, or to the 30 attorney who represented him or her at the time such reversal, vacatur 31 or pardon, was granted. The commissioner shall also adopt by rule and 32 regulation a procedure for the expungement in other appropriate circum- 33 stances of DNA records contained in the index. 34 (b) As prescribed in this paragraph, if an individual, either volun- 35 tarily, pursuant to paragraph (c) of subdivision three of this section, 36 or pursuant to a warrant or order of a court, has provided a sample for 37 DNA testing in connection with the investigation, arrest or prosecution 38 of a crime and (i) no criminal action against the individual relating to 39 such crime was commenced within the period specified by section 30.10 of 40 the criminal procedure law, or (ii) a criminal action was commenced 41 against the individual relating to such crime which resulted in a 42 complete acquittal, or (iii) a criminal action was commenced against the 43 individual relating to such crime [resulted in a conviction that was44subsequently reversed or vacated, or for which the individual was grant-45ed a pardon pursuant to article two-A of this chapter, such individual46may apply to the supreme court or the court in which the judgment of47conviction was originally entered for an order directing the expungement48of any DNA record and any samples, analyses, or other documents relating49to the DNA testing of such individual in connection with the investi-50gation or prosecution of such crime. A copy of such application shall be51served on the district attorney and an order directing expungement may52be granted if the court finds that the individual has satisfied the53conditions of one of the subparagraphs of this paragraph; that if a54judgment of conviction was reversed or vacated, all appeals relating55thereto have been concluded and the individual will not be retried, or,56if a retrial has occurred, the trier of fact has rendered a verdict ofA. 10133 3 1complete acquittal, and that expungement will not adversely affect the2investigation or prosecution of some other person or persons for the3crime. If an order directing the expungement of any DNA record and any4samples, analyses or other documents relating to the DNA testing of such5individual is issued] which was resolved by a dismissal, successful 6 completion of a pre-prosecution diversion program, or conditional 7 discharge or misdemeanor conviction that did not require DNA collection 8 pursuant to section nine hundred ninety-five of this article, the DNA 9 record shall be expunged from the state DNA identification index. An 10 individual may request expungement of any DNA record and any samples, 11 analyses or other documents relating to the DNA testing of such individ- 12 ual by providing the following materials to the division of criminal 13 justice services: 14 (1) a written request for expungement of the sample and DNA records; 15 and 16 (2) a certified copy of the dismissal, successful completion of a 17 pre-prosecution diversion program or a conditional discharge, misdemea- 18 nor conviction or acquittal; and 19 (3) a sworn statement from the district attorney's office with juris- 20 diction over the matter that: the case was dismissed; a pre-prosecution 21 diversion program or conditional discharge, misdemeanor conviction 22 excluded from DNA collection pursuant to section nine hundred ninety- 23 five of this article or acquittal occurred; no felony charges arose out 24 of the arrest; or no criminal action against the individual relating to 25 such crime was commenced within the period specified by section 30.10 of 26 the criminal procedure law; and that expungement will not adversely 27 affect the investigation or prosecution of some other person or persons 28 for the crime. 29 (c) If expungement is warranted pursuant to paragraph (a) or (b) of 30 this subdivision, such record and any samples, analyses, or other docu- 31 ments shall, at the discretion of the possessor thereof, be destroyed or 32 returned to such individual or to the attorney who represented him or 33 her in the criminal action or in connection with the [application for34the order of] request for expungement. 35 (d) No expungement shall be granted where an individual has a prior 36 conviction requiring a DNA sample, or a pending felony charge for which 37 collection of a sample is authorized pursuant to the provisions of para- 38 graph (c) of subdivision three of this section. 39 § 4. Subdivision 6 of section 120.90 of the criminal procedure law, as 40 amended by chapter 424 of the laws of 1998, is amended to read as 41 follows: 42 6. Before bringing a defendant arrested pursuant to a warrant before 43 the local criminal court in which such warrant is returnable, a police 44 officer must without unnecessary delay perform all fingerprinting and 45 other preliminary police duties required in the particular case. In any 46 case in which the defendant is not brought by a police officer before 47 such court but, following his arrest in another county for an offense 48 specified in subdivision one of section 160.10 of this title, is 49 released by a local criminal court of such other county on his own 50 recognizance or on bail for his appearance on a specified date before 51 the local criminal court before which the warrant is returnable, the 52 latter court must, upon arraignment of the defendant before it, direct 53 that he be fingerprinted and have a sample appropriate for DNA testing 54 taken, if required pursuant to section nine hundred ninety-five-c of the 55 executive law, by the appropriate officer or agency, and that he appear 56 at an appropriate designated time and place for such purpose.A. 10133 4 1 § 5. Section 130.60 of the criminal procedure law, as amended by chap- 2 ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of 3 the laws of 1993, is amended to read as follows: 4 § 130.60 Summons; fingerprinting of defendant. 5 1. Upon the arraignment of a defendant whose court attendance has been 6 secured by the issuance and service of a summons, based upon an indict- 7 ment, a prosecutor's information or upon an information, felony 8 complaint or misdemeanor complaint filed by a complainant who is a 9 police officer, the court must, if an offense charged in the accusatory 10 instrument is one specified in subdivision one of section 160.10 of this 11 title, direct that the defendant be fingerprinted by the appropriate 12 police officer or agency, and that he or she appear at an appropriate 13 designated time and place for such purpose. If an offense charged in 14 the accusatory instrument is one specified in subdivision seven-a of 15 section nine hundred ninety-five of the executive law, the court must 16 direct that a sample appropriate for DNA testing be taken, and that he 17 or she appear at an appropriate designated time and place for such 18 purpose. 19 2. Upon the arraignment of a defendant whose court attendance has been 20 secured by the issuance and service of a summons based upon an informa- 21 tion or misdemeanor complaint filed by a complainant who is not a police 22 officer, and who has not previously been fingerprinted or from whom a 23 DNA sample has not previously been taken and was required pursuant to 24 section nine hundred ninety-five-c of the executive law, the court may, 25 if it finds reasonable cause to believe that the defendant has committed 26 an offense specified in subdivision one of section 160.10 of this title, 27 direct that the defendant be fingerprinted and/or have a sample appro- 28 priate for DNA testing taken, if required by section nine hundred nine- 29 ty-five-c of the executive law, by the appropriate police officer or 30 agency and that he appear at an appropriate designated time and place 31 for such purpose. A defendant whose court appearance has been secured by 32 the issuance and service of a criminal summons based upon a misdemeanor 33 complaint or information filed by a complainant who is not a police 34 officer, must be directed by the court, upon conviction of the defend- 35 ant, to be fingerprinted and have a sample appropriate for DNA testing 36 taken, if required by section nine hundred ninety-five-c of the execu- 37 tive law, by the appropriate police officer or agency and the court must 38 also direct that the defendant appear at an appropriate designated time 39 and place for such purpose, if the defendant is convicted of any offense 40 specified in subdivision one of section 160.10 of this title. 41 § 6. Subdivision 5 of section 140.20 of the criminal procedure law, as 42 amended by chapter 762 of the laws of 1971, is amended to read as 43 follows: 44 5. Before service of an appearance ticket upon an arrested person 45 pursuant to subdivision two or three of this section, the issuing police 46 officer must, if the offense designated in such appearance ticket is one 47 of those specified in subdivision one of section 160.10 of this title, 48 cause such person to be fingerprinted and have a sample appropriate for 49 DNA testing taken, if required by section nine hundred ninety-five-c of 50 the executive law, in the same manner as would be required were no 51 appearance ticket to be issued or served. 52 § 7. Subdivision 2 of section 140.27 of the criminal procedure law, as 53 amended by chapter 843 of the laws of 1980, is amended to read as 54 follows: 55 2. Upon arresting a person without a warrant, a peace officer, except 56 as otherwise provided in subdivision three of this section, must withoutA. 10133 5 1 unnecessary delay bring him or cause him to be brought before a local 2 criminal court, as provided in section 100.55 and subdivision one of 3 section 140.20 of this title, and must without unnecessary delay file or 4 cause to be filed therewith an appropriate accusatory instrument. If 5 the offense which is the subject of the arrest is one of those specified 6 in subdivision one of section 160.10 of this title, the arrested person 7 must be fingerprinted and photographed, and have a sample appropriate 8 for DNA testing taken if required by section nine hundred ninety-five-c 9 of the executive law, as therein provided. In order to execute the 10 required post-arrest functions, such arresting peace officer may perform 11 such functions himself or he may enlist the aid of a police officer for 12 the performance thereof in the manner provided in subdivision one of 13 section 140.20 of this article. 14 § 8. Section 150.70 of the criminal procedure law, as amended by chap- 15 ter 762 of the laws of 1971, is amended to read as follows: 16 § 150.70 Appearance ticket; fingerprinting and DNA analysis sample of 17 defendant. 18 Upon the arraignment of a defendant who has not been arrested and 19 whose court attendance has been secured by the issuance and service of 20 an appearance ticket pursuant to subdivision one of section 150.20 of 21 this article, the court must, if an offense charged in the accusatory 22 instrument is one specified in subdivision one of section 160.10 of this 23 title, direct that the defendant be fingerprinted and have a sample 24 appropriate for DNA testing taken when required by section nine hundred 25 ninety-five-c of the executive law by the appropriate police officer or 26 agency, and that he appear at an appropriate designated time and place 27 for such purpose. 28 § 9. Section 160.20 of the criminal procedure law, as amended by chap- 29 ter 108 of the laws of 1973, is amended to read as follows: 30 § 160.20 Fingerprinting and DNA analysis sample; forwarding of finger- 31 prints and DNA analysis sample. 32 1. Upon the taking of fingerprints of an arrested person or defendant 33 as prescribed in section 160.10 of this article, the appropriate police 34 officer or agency must without unnecessary delay forward two copies of 35 such fingerprints to the division of criminal justice services. 36 2. Upon taking a sample appropriate for DNA testing, the appropriate 37 police office or agency must without unnecessary delay store and forward 38 such DNA sample to a forensic DNA laboratory for forensic DNA testing 39 and analyses, and inclusion in the state DNA identification index in 40 accordance with subdivision five of section nine hundred ninety-five-c 41 of the executive law. 42 § 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the 43 criminal procedure law, paragraph (d) as amended by chapter 449 of the 44 laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of 45 1994, are amended and a new paragraph (f) is added to read as follows: 46 (d) such records shall be made available to the person accused or to 47 such person's designated agent, and shall be made available to (i) a 48 prosecutor in any proceeding in which the accused has moved for an order 49 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law 50 enforcement agency upon ex parte motion in any superior court, or in any 51 district court, city court or the criminal court of the city of New York 52 provided that such court sealed the record, if such agency demonstrates 53 to the satisfaction of the court that justice requires that such records 54 be made available to it, or (iii) any state or local officer or agency 55 with responsibility for the issuance of licenses to possess guns, when 56 the accused has made application for such a license, or (iv) the NewA. 10133 6 1 York state department of corrections and community supervision when the 2 accused is on parole supervision as a result of conditional release or a 3 parole release granted by the New York state board of parole, and the 4 arrest which is the subject of the inquiry is one which occurred while 5 the accused was under such supervision, or (v) any prospective employer 6 of a police officer or peace officer as those terms are defined in 7 subdivisions thirty-three and thirty-four of section 1.20 of this chap- 8 ter, in relation to an application for employment as a police officer or 9 peace officer; provided, however, that every person who is an applicant 10 for the position of police officer or peace officer shall be furnished 11 with a copy of all records obtained under this paragraph and afforded an 12 opportunity to make an explanation thereto, or (vi) the probation 13 department responsible for supervision of the accused when the arrest 14 which is the subject of the inquiry is one which occurred while the 15 accused was under such supervision; [and] 16 (e) where fingerprints subject to the provisions of this section have 17 been received by the division of criminal justice services and have been 18 filed by the division as digital images, such images may be retained, 19 provided that a fingerprint card of the individual is on file with the 20 division which was not sealed pursuant to this section or section 160.55 21 of this article[.]; and 22 (f) a sample appropriate for DNA testing taken from such person pursu- 23 ant to section nine hundred ninety-five-c of the executive law, and any 24 DNA record relating to such sample, and any analyses or other documents 25 relating to such DNA sample shall be expunged, destroyed or returned in 26 accordance with subdivision nine of such section of the executive law. 27 § 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the 28 criminal procedure law, paragraph (d) as amended by chapter 449 of the 29 laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of 30 1994, are amended and a new paragraph (f) is added to read as follows: 31 (d) the records referred to in paragraph (c) of this subdivision shall 32 be made available to the person accused or to such person's designated 33 agent, and shall be made available to (i) a prosecutor in any proceeding 34 in which the accused has moved for an order pursuant to section 170.56 35 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex 36 parte motion in any superior court, or in any district court, city court 37 or the criminal court of the city of New York provided that such court 38 sealed the record, if such agency demonstrates to the satisfaction of 39 the court that justice requires that such records be made available to 40 it, or (iii) any state or local officer or agency with responsibility 41 for the issuance of licenses to possess guns, when the accused has made 42 application for such a license, or (iv) the New York state department of 43 corrections and community supervision when the accused is under parole 44 supervision as a result of conditional release or parole release granted 45 by the New York state board of parole and the arrest which is the 46 subject of the inquiry is one which occurred while the accused was under 47 such supervision, or (v) the probation department responsible for super- 48 vision of the accused when the arrest which is the subject of the 49 inquiry is one which occurred while the accused was under such super- 50 vision, or (vi) a police agency, probation department, sheriff's office, 51 district attorney's office, department of correction of any municipality 52 and parole department, for law enforcement purposes, upon arrest in 53 instances in which the individual stands convicted of harassment in the 54 second degree, as defined in section 240.26 of the penal law, committed 55 against a member of the same family or household as the defendant, as 56 defined in subdivision one of section 530.11 of this chapter, and deter-A. 10133 7 1 mined pursuant to subdivision eight-a of section 170.10 of this title; 2 [and] 3 (e) where fingerprints subject to the provisions of this section have 4 been received by the division of criminal justice services and have been 5 filed by the division as digital images, such images may be retained, 6 provided that a fingerprint card of the individual is on file with the 7 division which was not sealed pursuant to this section or section 160.50 8 of this article[.]; and 9 (f) a sample appropriate for DNA testing taken from such person pursu- 10 ant to section nine hundred ninety-five-c of the executive law, any DNA 11 record relating to such sample, and any analyses or other documents 12 relating to such DNA sample shall be expunged, destroyed or returned in 13 accordance with subdivision nine of such section of the executive law. 14 § 12. This act shall take effect on the one hundred eightieth day 15 after it shall have become a law.