Bill Text: NY A10133 | 2015-2016 | General Assembly | Introduced

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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

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                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.
                                                                   LBD10621-03-6
        A. 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 was
    44  subsequently reversed or vacated, or for which the individual was grant-
    45  ed a pardon pursuant to article two-A of this chapter,  such  individual
    46  may  apply  to  the  supreme court or the court in which the judgment of
    47  conviction was originally entered for an order directing the expungement
    48  of any DNA record and any samples, analyses, or other documents relating
    49  to the DNA testing of such individual in connection  with  the  investi-
    50  gation or prosecution of such crime. A copy of such application shall be
    51  served  on  the district attorney and an order directing expungement may
    52  be granted if the court finds that  the  individual  has  satisfied  the
    53  conditions  of  one  of  the  subparagraphs of this paragraph; that if a
    54  judgment of conviction was reversed or  vacated,  all  appeals  relating
    55  thereto  have been concluded and the individual will not be retried, or,
    56  if a retrial has occurred, the trier of fact has rendered a  verdict  of
        A. 10133                            3

     1  complete  acquittal,  and that expungement will not adversely affect the
     2  investigation or prosecution of some other person  or  persons  for  the
     3  crime.  If  an order directing the expungement of any DNA record and any
     4  samples, analyses or other documents relating to the DNA testing of such
     5  individual  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  for
    34  the 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 without
        A. 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 New
        A. 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.