Bill Text: NY S02857 | 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 the preservation of biological evidence, and the establishment of the commission for exoneration review.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2012-01-09 - RECOMMIT, ENACTING CLAUSE STRICKEN [S02857 Detail]
Download: New_York-2011-S02857-Amended.html
Bill Title: Relates to the collection of DNA samples of designated offenders, retention and confidentiality of DNA samples, collection and the preservation of biological evidence, and the establishment of the commission for exoneration review.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2012-01-09 - RECOMMIT, ENACTING CLAUSE STRICKEN [S02857 Detail]
Download: New_York-2011-S02857-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2857--B Cal. No. 581 2011-2012 Regular Sessions I N S E N A T E February 2, 2011 ___________ Introduced by Sens. DeFRANCISCO, GRIFFO, LARKIN, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- again amended and ordered reprinted, retaining its place in the order of third reading 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 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03787-04-1 S. 2857--B 2 1 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest, 2 a violent felony offense as defined in subdivision one of section 70.02 3 of the penal law, attempted murder in the first degree, as defined in 4 section 110.00 and section 125.27 of the penal law, kidnapping in the 5 first degree, as defined in section 135.25 of the penal law, arson in 6 the first degree, as defined in section 150.20 of the penal law, 7 burglary in the third degree, as defined in section 140.20 of the penal 8 law, attempted burglary in the third degree, as defined in section 9 110.00 and section 140.20 of the penal law, a felony defined in article 10 four hundred ninety of the penal law relating to terrorism or any 11 attempt to commit an offense defined in such article relating to terror- 12 ism which is a felony; or (b) criminal possession of a controlled 13 substance in the first degree, as defined in section 220.21 of the penal 14 law; criminal possession of a controlled substance in the second degree, 15 as defined in section 220.18 of the penal law; criminal sale of a 16 controlled substance, as defined in article 220 of the penal law; or 17 grand larceny in the fourth degree, as defined in subdivision five of 18 section 155.30 of the penal law; or (c) any misdemeanor or felony 19 defined as a sex offense or sexually violent offense pursuant to para- 20 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision 21 three of section one hundred sixty-eight-a of the correction law; or (d) 22 any of the following felonies, or an attempt thereof where such attempt 23 is a felony offense: 24 aggravated assault upon a person less than eleven years old, as 25 defined in section 120.12 of the penal law; menacing in the first 26 degree, as defined in section 120.13 of the penal law; reckless endan- 27 germent in the first degree, as defined in section 120.25 of the penal 28 law; stalking in the second degree, as defined in section 120.55 of the 29 penal law; criminally negligent homicide, as defined in section 125.10 30 of the penal law; vehicular manslaughter in the second degree, as 31 defined in section 125.12 of the penal law; vehicular manslaughter in 32 the first degree, as defined in section 125.13 of the penal law; 33 persistent sexual abuse, as defined in section 130.53 of the penal law; 34 aggravated sexual abuse in the fourth degree, as defined in section 35 130.65-a of the penal law; female genital mutilation, as defined in 36 section 130.85 of the penal law; facilitating a sex offense with a 37 controlled substance, as defined in section 130.90 of the penal law; 38 unlawful imprisonment in the first degree, as defined in section 135.10 39 of the penal law; custodial interference in the first degree, as defined 40 in section 135.50 of the penal law; criminal trespass in the first 41 degree, as defined in section 140.17 of the penal law; criminal tamper- 42 ing in the first degree, as defined in section 145.20 of the penal law; 43 tampering with a consumer product in the first degree, as defined in 44 section 145.45 of the penal law; robbery in the third degree as defined 45 in section 160.05 of the penal law; identity theft in the second degree, 46 as defined in section 190.79 of the penal law; identity theft in the 47 first degree, as defined in section 190.80 of the penal law; promoting 48 prison contraband in the first degree, as defined in section 205.25 of 49 the penal law; tampering with a witness in the third degree, as defined 50 in section 215.11 of the penal law; tampering with a witness in the 51 second degree, as defined in section 215.12 of the penal law; tampering 52 with a witness in the first degree, as defined in section 215.13 of the 53 penal law; criminal contempt in the first degree, as defined in subdivi- 54 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated 55 criminal contempt, as defined in section 215.52 of the penal law; bail 56 jumping in the second degree, as defined in section 215.56 of the penal S. 2857--B 3 1 law; bail jumping in the first degree, as defined in section 215.57 of 2 the penal law; patronizing a prostitute in the second degree, as defined 3 in section 230.05 of the penal law; patronizing a prostitute in the 4 first degree, as defined in section 230.06 of the penal law; promoting 5 prostitution in the second degree, as defined in section 230.30 of the 6 penal law; promoting prostitution in the first degree, as defined in 7 section 230.32 of the penal law; compelling prostitution, as defined in 8 section 230.33 of the penal law; disseminating indecent materials to 9 minors in the second degree, as defined in section 235.21 of the penal 10 law; disseminating indecent materials to minors in the first degree, as 11 defined in section 235.22 of the penal law; riot in the first degree, as 12 defined in section 240.06 of the penal law; criminal anarchy, as defined 13 in section 240.15 of the penal law; aggravated harassment of an employee 14 by an inmate, as defined in section 240.32 of the penal law; unlawful 15 surveillance in the second degree, as defined in section 250.45 of the 16 penal law; unlawful surveillance in the first degree, as defined in 17 section 250.50 of the penal law; endangering the welfare of a vulnerable 18 elderly person in the second degree, as defined in section 260.32 of the 19 penal law; endangering the welfare of a vulnerable elderly person in the 20 first degree, as defined in section 260.34 of the penal law; use of a 21 child in a sexual performance, as defined in section 263.05 of the penal 22 law; promoting an obscene sexual performance by a child, as defined in 23 section 263.10 of the penal law; possessing an obscene sexual perform- 24 ance by a child, as defined in section 263.11 of the penal law; promot- 25 ing a sexual performance by a child, as defined in section 263.15 of the 26 penal law; possessing a sexual performance by a child, as defined in 27 section 263.16 of the penal law; criminal possession of a weapon in the 28 third degree, as defined in section 265.02 of the penal law; criminal 29 sale of a firearm in the third degree, as defined in section 265.11 of 30 the penal law; criminal sale of a firearm to a minor, as defined in 31 section 265.16 of the penal law; unlawful wearing of a body vest, as 32 defined in section 270.20 of the penal law; hate crimes as defined in 33 section 485.05 of the penal law; and crime of terrorism, as defined in 34 section 490.25 of the penal law; or (e) a felony defined in the penal 35 law or an attempt thereof where such attempt is a felony; or (f) any of 36 the following misdemeanors: assault in the third degree as defined in 37 section 120.00 of the penal law; attempted aggravated assault upon a 38 person less than eleven years old, as defined in section 110.00 and 39 section 120.12 of the penal law; attempted menacing in the first degree, 40 as defined in section 110.00 and section 120.13 of the penal law; menac- 41 ing in the second degree as defined in section 120.14 of the penal law; 42 menacing in the third degree as defined in section 120.15 of the penal 43 law; reckless endangerment in the second degree as defined in section 44 120.20 of the penal law; stalking in the fourth degree as defined in 45 section 120.45 of the penal law; stalking in the third degree as defined 46 in section 120.50 of the penal law; attempted stalking in the second 47 degree, as defined in section 110.00 and section 120.55 of the penal 48 law; criminal obstruction of breathing or blood circulation as defined 49 in section 121.11 of the penal law; forcible touching as defined in 50 section 130.52 of the penal law regardless of the age of the victim; 51 sexual abuse in the third degree as defined in section 130.55 of the 52 penal law regardless of the age of the victim; unlawful imprisonment in 53 the second degree as defined in section 135.05 of the penal law regard- 54 less of the age of the victim; attempted unlawful imprisonment in the 55 first degree, as defined in section 110.00 and section 135.10 of the 56 penal law regardless of the age of the victim; criminal trespass in the S. 2857--B 4 1 second degree as defined in section 140.15 of the penal law; possession 2 of burglar's tools as defined in section 140.35 of the penal law; petit 3 larceny as defined in section 155.25 of the penal law; endangering the 4 welfare of a child as defined in section 260.10 of the penal law; endan- 5 gering the welfare of an incompetent or physically disabled person as 6 defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR 7 WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED 8 OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL 9 PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL 10 OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE- 11 DURE LAW FOR ANY SUCH OFFENSE, OR A PERSON WHO IS REQUIRED TO REGISTER 12 AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. 13 S 2. Subdivision 3 of section 995-c of the executive law, as amended 14 by chapter 576 of the laws of 2004, is amended to read as follows: 15 3. (A) Any designated offender [subsequent to conviction and sentenc- 16 ing for a crime specified in subdivision seven of section nine hundred 17 ninety-five of this article,] shall be required to provide a sample 18 appropriate for DNA testing to determine identification characteristics 19 specific to such person and to be included in a state DNA identification 20 index pursuant to this article, UNLESS SUCH DESIGNATED OFFENDER HAS 21 PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI- 22 CATION INDEX. 23 (B) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT THE COLLECTION OF A DNA 24 SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR LOCAL 25 CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR 26 OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT WHO HAS BEEN NOTIFIED 27 BY THE DIVISION THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA 28 SAMPLE. 29 (C) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS 30 NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE 31 PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR 32 ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE. 33 (D) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED 34 UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL 35 NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI- 36 NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR 37 PLACED THE PERSON'S DNA SAMPLE IN THE INDEX. 38 (E) THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES 39 SHALL PROMULGATE RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF 40 THE DNA IDENTIFICATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX 41 CONTAINS DNA PROFILES THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE 42 STEPS NECESSARY TO EXPUNGE ANY PROFILES WHICH THE DIVISION DETERMINES 43 SHOULD NOT BE IN THE INDEX. 44 S 3. Section 995-f of the executive law, as amended by chapter 560 of 45 the laws of 1999, is amended to read as follows: 46 S 995-f. Penalties. 1. Any person who (a) intentionally discloses a 47 DNA record, or the results of a forensic DNA test or analysis, to an 48 individual or agency other than one authorized to have access to such 49 records pursuant to this article or (b) intentionally uses or receives 50 DNA records, or the results of a forensic DNA test or analysis, for 51 purposes other than those authorized pursuant to this article or (c) any 52 person who knowingly tampers or attempts to tamper with any DNA sample 53 or the collection container without lawful authority shall be guilty of 54 a class E felony. 55 2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION 56 WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT S. 2857--B 5 1 TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH SAMPLE 2 UPON NOTIFICATION BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR 3 EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT 4 OFFICIAL OR PUBLIC SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A 5 SAMPLE, SHALL BE DEEMED TO VIOLATE THE CONDITIONS OF PROBATION OR 6 PAROLE, AND SUCH VIOLATION SHALL BE A BASIS FOR THE REVOCATION OF 7 PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE 8 CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP- 9 TER. FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED 10 TO INCLUDE POST-RELEASE SUPERVISION. 11 S 4. Subdivision 4 of section 995-c of the executive law, as amended 12 by section 104 of subpart B of part C of chapter 62 of the laws of 2011, 13 is amended to read as follows: 14 4. The commissioner of the division of criminal justice services, in 15 consultation with the commission, the commissioner of health, the direc- 16 tor of the office of probation and correctional alternatives and the 17 department of corrections and community supervision, shall promulgate 18 rules and regulations governing the procedures for notifying designated 19 offenders of the requirements of this section. THE COMMISSIONER OF THE 20 DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND 21 REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPROPRIATE 22 FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX 23 OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. 24 S 4-a. Subdivision 9 of section 995-c of the executive law, as amended 25 by chapter 524 of the laws of 2002, is amended to read as follows: 26 9. (a) Upon receipt of notification of a reversal or a vacatur of a 27 conviction, or of the granting of a pardon pursuant to article two-A of 28 this chapter, of an individual whose DNA record has been stored in the 29 state DNA identification index in accordance with this article by the 30 division of criminal justice services, the DNA record shall be expunged 31 from the state DNA identification index, and such individual may apply 32 to the court in which the judgment of conviction was originally entered 33 for an order directing the expungement of any DNA record and any 34 samples, analyses, or other documents relating to the DNA testing of 35 such individual in connection with the investigation or prosecution of 36 the crime which resulted in the conviction that was reversed or vacated 37 or for which the pardon was granted. A copy of such application shall be 38 served on the district attorney and an order directing expungement may 39 be granted if the court finds that all appeals relating to the 40 conviction have been concluded; that such individual will not be 41 retried, or, if a retrial has occurred, the trier of fact has rendered a 42 verdict of complete acquittal, and that expungement will not adversely 43 affect the investigation or prosecution of some other person or persons 44 for the crime. The division shall, by rule or regulation, prescribe 45 procedures to ensure that the DNA record in the state DNA identification 46 index, and any samples, analyses, or other documents relating to such 47 record, whether in the possession of the division, or any law enforce- 48 ment or police agency, or any forensic DNA laboratory, including any 49 duplicates or copies thereof, at the discretion of the possessor there- 50 of, are either destroyed or returned to such individual, or to the 51 attorney who represented him or her at the time such reversal, vacatur 52 or pardon, was granted. The commissioner shall also adopt by rule and 53 regulation a procedure for the expungement in other appropriate circum- 54 stances of DNA records contained in the index. 55 (b) As prescribed in this paragraph, if an individual, either volun- 56 tarily, PURSUANT TO PARAGRAPH (B) OF SUBDIVISION THREE OF THIS SECTION, S. 2857--B 6 1 or pursuant to a warrant or order of a court, has provided a sample for 2 DNA testing in connection with the investigation, ARREST or prosecution 3 of a crime and (i) no criminal action against the individual relating to 4 such crime was commenced within the period specified by section 30.10 of 5 the criminal procedure law, or (ii) a criminal action was commenced 6 against the individual relating to such crime which resulted in a 7 complete acquittal, or (iii) a criminal action WAS COMMENCED against the 8 individual relating to such crime [resulted in a conviction that was 9 subsequently reversed or vacated, or for which the individual was grant- 10 ed a pardon pursuant to article two-A of this chapter, such individual 11 may apply to the supreme court or the court in which the judgment of 12 conviction was originally entered for an order directing the expungement 13 of any DNA record and any samples, analyses, or other documents relating 14 to the DNA testing of such individual in connection with the investi- 15 gation or prosecution of such crime. A copy of such application shall be 16 served on the district attorney and an order directing expungement may 17 be granted if the court finds that the individual has satisfied the 18 conditions of one of the subparagraphs of this paragraph; that if a 19 judgment of conviction was reversed or vacated, all appeals relating 20 thereto have been concluded and the individual will not be retried, or, 21 if a retrial has occurred, the trier of fact has rendered a verdict of 22 complete acquittal, and that expungement will not adversely affect the 23 investigation or prosecution of some other person or persons for the 24 crime. If an order directing the expungement of any DNA record and any 25 samples, analyses or other documents relating to the DNA testing of such 26 individual is issued] WHICH WAS RESOLVED BY A DISMISSAL, SUCCESSFUL 27 COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM OR CONDITIONAL 28 DISCHARGE OR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION PURSUANT TO 29 SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTICLE, 30 THE DNA RECORD SHALL BE EXPUNGED FROM THE STATE DNA IDENTIFICATION 31 INDEX. AN INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD AND ANY 32 SAMPLES, ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH 33 INDIVIDUAL BY PROVIDING THE FOLLOWING MATERIALS TO THE DIVISION OF CRIM- 34 INAL JUSTICE SERVICES: 35 (1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS; 36 (2) A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A 37 PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE OR NON-QUA- 38 LIFYING CONVICTION OR ACQUITTAL; AND 39 (3) A SWORN STATEMENT FROM THE DISTRICT ATTORNEY'S OFFICE WITH JURIS- 40 DICTION OVER THE MATTER THAT: THE CASE WAS DISMISSED; A PRE-PROSECUTION 41 DIVERSION PROGRAM OR CONDITIONAL DISCHARGE, NON-QUALIFYING CONVICTION 42 EXCLUDED FROM DNA COLLECTION PURSUANT TO SECTION NINE HUNDRED 43 NINETY-FIVE OF THIS ARTICLE OR ACQUITTAL OCCURRED; NO QUALIFYING CHARGES 44 AROSE OUT OF THE ARREST; OR NO CRIMINAL ACTION AGAINST THE INDIVIDUAL 45 RELATING TO SUCH CRIME WAS COMMENCED WITHIN THE PERIOD SPECIFIED BY 46 SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW; AND THAT EXPUNGEMENT WILL 47 NOT ADVERSELY AFFECT THE INVESTIGATION OR PROSECUTION OF SOME OTHER 48 PERSON OR PERSONS FOR THE CRIME. 49 (C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF 50 THIS SUBDIVISION, such record and any samples, analyses, or other docu- 51 ments shall, at the discretion of the possessor thereof, be destroyed or 52 returned to such individual or to the attorney who represented him or 53 her IN THE CRIMINAL ACTION OR in connection with the [application for 54 the order of] REQUEST FOR expungement. 55 (D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR 56 CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING CHARGE FOR WHICH S. 2857--B 7 1 COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA- 2 GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION. 3 S 5. Section 995-b of the executive law is amended by adding a new 4 subdivision 3-a to read as follows: 5 3-A. THE COMMISSION, IN CONSULTATION WITH THE SUBCOMMITTEE ON BIOLOG- 6 ICAL EVIDENCE PRESERVATION, SHALL DEVELOP GUIDELINES RELATING TO THE 7 COLLECTION, PRESERVATION, STORAGE, AND INDEXING OF BIOLOGICAL EVIDENCE 8 BY LAW ENFORCEMENT AGENCIES AND FORENSIC LABORATORIES. SUCH GUIDELINES 9 SHALL INCLUDE, BUT NOT BE LIMITED TO, THE MINIMUM PERIOD OF TIME THAT 10 BIOLOGICAL EVIDENCE OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS 11 USED IN THIS SUBDIVISION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN 12 SEMEN, BLOOD, SALIVA, HAIR, SKIN, TISSUE, OR OTHER IDENTIFIED BIOLOGICAL 13 MATERIAL, AND SHALL INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT. 14 INITIALLY, THE COMMISSION SHALL DEVELOP SUCH GUIDELINES AS VOLUNTARY 15 BEST PRACTICES. NONCOMPLIANCE WITH SUCH GUIDELINES SHALL NOT BE GROUNDS 16 FOR DISMISSAL OF CHARGES, EXCLUSION OF EVIDENCE, OR ANY OTHER LEGAL 17 RELIEF. THEREAFTER, AND TAKING INTO ACCOUNT THE EXPERIENCE UNDER THE 18 INITIAL GUIDELINES, THE COMMISSION SHALL CONSIDER WHAT MANDATORY RULES 19 SHOULD BE ADOPTED AS TO THE COLLECTION, PRESERVATION, STORAGE, AND 20 INDEXING OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND FORENSIC 21 LABORATORIES. THE COMMISSION MAY ADOPT SUCH RULES WITHIN ITS EXISTING 22 REGULATORY AUTHORITY; IT MAY RECOMMEND THAT IT OR ANOTHER BODY BE GIVEN 23 EXPANDED REGULATORY AUTHORITY; AND IT MAY MAKE RECOMMENDATIONS FOR STAT- 24 UTORY ADOPTION OF PARTICULAR RULES. IN DEVELOPING SUCH GUIDELINES, RULES 25 AND RECOMMENDATIONS, THE COMMISSION SHALL CONSIDER THE VARYING NEEDS AND 26 RESOURCES OF LAW ENFORCEMENT AGENCIES AND JURISDICTIONS WITHIN THE 27 STATE. 28 S 6. Subdivision 6 of section 120.90 of the criminal procedure law, as 29 amended by chapter 424 of the laws of 1998, is amended to read as 30 follows: 31 6. Before bringing a defendant arrested pursuant to a warrant before 32 the local criminal court in which such warrant is returnable, a police 33 officer must without unnecessary delay perform all fingerprinting and 34 other preliminary police duties required in the particular case. In any 35 case in which the defendant is not brought by a police officer before 36 such court but, following his OR HER arrest in another county for an 37 offense specified in subdivision one of section 160.10, is released by a 38 local criminal court of such other county on his OR HER own recognizance 39 or on bail for his OR HER appearance on a specified date before the 40 local criminal court before which the warrant is returnable, the latter 41 court must, upon arraignment of the defendant before it, direct that he 42 OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING 43 TAKEN by the appropriate officer or agency, and that he OR SHE appear at 44 an appropriate designated time and place for such purpose. 45 S 7. Section 130.60 of the criminal procedure law, as amended by chap- 46 ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of 47 the laws of 1993, is amended to read as follows: 48 S 130.60 Summons; fingerprinting of defendant. 49 1. Upon the arraignment of a defendant whose court attendance has been 50 secured by the issuance and service of a summons, based upon an indict- 51 ment, a prosecutor's information or upon an information, felony 52 complaint or misdemeanor complaint filed by a complainant who is a 53 police officer, the court must, if an offense charged in the accusatory 54 instrument is one specified in subdivision one of section 160.10, direct 55 that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR 56 DNA TESTING TAKEN by the appropriate police officer or agency, and that S. 2857--B 8 1 he or she appear at an appropriate designated time and place for such 2 purpose. 3 2. Upon the arraignment of a defendant whose court attendance has been 4 secured by the issuance and service of a summons based upon an informa- 5 tion or misdemeanor complaint filed by a complainant who is not a police 6 officer, and who has not previously been fingerprinted OR FROM WHOM A 7 DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN, the court may, if it finds 8 reasonable cause to believe that the defendant has committed an offense 9 specified in subdivision one of section 160.10, direct that the defend- 10 ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING 11 TAKEN by the appropriate police officer or agency and that he OR SHE 12 appear at an appropriate designated time and place for such purpose. A 13 defendant whose court appearance has been secured by the issuance and 14 service of a criminal summons based upon a misdemeanor complaint or 15 information filed by a complainant who is not a police officer, must be 16 directed by the court, upon conviction of the defendant, to be finger- 17 printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the 18 appropriate police officer or agency and the court must also direct that 19 the defendant appear at an appropriate designated time and place for 20 such purpose, if the defendant is convicted of any offense specified in 21 subdivision one of section 160.10. 22 S 8. Subdivision 5 of section 140.20 of the criminal procedure law, as 23 amended by chapter 762 of the laws of 1971, is amended to read as 24 follows: 25 5. Before service of an appearance ticket upon an arrested person 26 pursuant to subdivision two or three, the issuing police officer must, 27 if the offense designated in such appearance ticket is one of those 28 specified in subdivision one of section 160.10, cause such person to be 29 fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN in the 30 same manner as would be required were no appearance ticket to be issued 31 or served. 32 S 9. Subdivision 2 of section 140.27 of the criminal procedure law, as 33 amended by chapter 843 of the laws of 1980, is amended to read as 34 follows: 35 2. Upon arresting a person without a warrant, a peace officer, except 36 as otherwise provided in subdivision three, must without unnecessary 37 delay bring him OR HER or cause him OR HER to be brought before a local 38 criminal court, as provided in section 100.55 and subdivision one of 39 section 140.20, and must without unnecessary delay file or cause to be 40 filed therewith an appropriate accusatory instrument. If the offense 41 which is the subject of the arrest is one of those specified in subdivi- 42 sion one of section 160.10, the arrested person must be fingerprinted 43 [and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 44 as therein provided. In order to execute the required post-arrest func- 45 tions, such arresting peace officer may perform such functions himself 46 OR HERSELF, or he OR SHE may enlist the aid of a police officer for the 47 performance thereof in the manner provided in subdivision one of section 48 140.20. 49 S 10. Section 150.70 of the criminal procedure law, as amended by 50 chapter 762 of the laws of 1971, is amended to read as follows: 51 S 150.70 Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of 52 defendant. 53 Upon the arraignment of a defendant who has not been arrested and 54 whose court attendance has been secured by the issuance and service of 55 an appearance ticket pursuant to subdivision one of section 150.20, the 56 court must, if an offense charged in the accusatory instrument is one S. 2857--B 9 1 specified in subdivision one of section 160.10, direct that the defend- 2 ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 3 by the appropriate police officer or agency, and that he OR SHE appear 4 at an appropriate designated time and place for such purpose. 5 S 11. The section heading of section 160.10 of the criminal procedure 6 law, as amended by chapter 762 of the laws of 1971, is amended and a new 7 subdivision 5 is added to read as follows: 8 Fingerprinting AND DNA ANALYSIS; duties of police with respect there- 9 to. 10 5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO 11 SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO 12 SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR 13 DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED. 14 (B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN 15 THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB- 16 LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF 17 CRIMINAL JUSTICE SERVICES. 18 (C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE 19 HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW. 20 S 12. Section 160.20 of the criminal procedure law, as amended by 21 chapter 108 of the laws of 1973, is amended to read as follows: 22 S 160.20 Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger- 23 prints AND DNA ANALYSIS SAMPLE. 24 Upon the taking of fingerprints AND A SAMPLE APPROPRIATE FOR DNA TEST- 25 ING of an arrested person or defendant as prescribed in section 160.10, 26 the appropriate police officer or agency must without unnecessary delay 27 forward two copies of such fingerprints to the division of criminal 28 justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A 29 FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND 30 INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH 31 SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE 32 LAW. 33 S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the 34 criminal procedure law, paragraph (a) as amended by chapter 476 of the 35 laws of 2009 and paragraph (b) as amended by chapter 169 of the laws of 36 1994, are amended to read as follows: 37 (a) every photograph of such person and photographic plate or proof, 38 [and] all palmprints and fingerprints taken or made of such person, AND 39 ALL DNA ANALYSIS SAMPLES AND DNA RECORDS TAKEN pursuant to the 40 provisions of this article in regard to the action or proceeding termi- 41 nated, [and] all duplicates and copies thereof, except a digital finger- 42 print image where authorized pursuant to paragraph (e) of this subdivi- 43 sion, except for the palmprints and fingerprints concerning a 44 disposition of harassment in the second degree as defined in section 45 240.26 of the penal law, committed against a member of the same family 46 or household as the defendant, as defined in subdivision one of section 47 530.11 of this chapter, and determined pursuant to subdivision eight-a 48 of section 170.10 of this title, shall forthwith be, at the discretion 49 of the recipient agency, either destroyed or returned to such person, or 50 to the attorney who represented such person at the time of the termi- 51 nation of the action or proceeding, at the address given by such person 52 or attorney during the action or proceeding, by the division of criminal 53 justice services and by any police department or law enforcement agency 54 having any such photograph, photographic plate or proof, palmprints 55 [or], fingerprints, AND DNA ANALYSIS SAMPLE AND DNA RECORD in its 56 possession or under its control; S. 2857--B 10 1 (b) any police department or law enforcement agency, including the 2 division of criminal justice services, which transmitted or otherwise 3 forwarded to any agency of the United States or of any other state or of 4 any other jurisdiction outside the state of New York copies of any such 5 photographs, photographic plates or proofs, palmprints [and], finger- 6 prints, AND DNA ANALYSIS SAMPLE AND DNA RECORD, shall forthwith formally 7 request in writing that all such copies be destroyed or returned to the 8 police department or law enforcement agency which transmitted or 9 forwarded them, and upon such return such department or agency shall, at 10 its discretion, either destroy or return them as provided herein; 11 S 14. (a) The commission for exoneration review is hereby established 12 on a temporary basis as an independent agency of the state to study and 13 review recent cases in which convicted defendants were subsequently 14 exonerated, whether by DNA evidence or otherwise, to determine why the 15 process failed in each individual case, and to determine whether these 16 cases are indicative of systemic flaws that have led to the conviction 17 and sentencing of innocent people. 18 (b) The governor shall appoint the chair and ten other members of such 19 commission, including one appointed on the recommendation of the chief 20 judge of the court of appeals, one appointed on the recommendation of 21 the speaker of the assembly, one appointed on the recommendation of the 22 temporary president of the senate, one appointed on the recommendation 23 of the minority leader of the senate, and one appointed on the recommen- 24 dation of the minority leader of the assembly. If any vacancy occurs it 25 shall be filled in the manner provided for the original appointment to 26 the vacated seat. 27 (c) No member of the commission shall be disqualified from holding any 28 public office or employment, nor shall he or she forfeit any such office 29 or employment, by reason of his or her appointment pursuant to this 30 section. 31 (d) The commission shall meet as often as its chair, or at least five 32 of its members, shall determine to be necessary. Six members shall 33 constitute a quorum, and except as otherwise provided in this section, 34 affirmative decisions of the commission shall require the concurrence of 35 seven members. 36 (e) The members of the commission shall serve without salary or other 37 compensation, but shall be entitled to receive actual and necessary 38 expenses incurred in the discharge of their duties pursuant to this 39 section. 40 (f) The commission shall review criminal or juvenile cases in which 41 the defendant or respondent was sentenced but subsequently exonerated. 42 The purpose of such review is to consider whether experience in such 43 cases provides useful information about possible reforms that could 44 enhance safeguards, make improvements in the way that law enforcement 45 agencies and the criminal justice system function, and protect against 46 future convictions of innocent persons. Such possible reforms may 47 include but are not limited to the areas of: 48 (1) investigative techniques that led to the arrest, identification, 49 and conviction of the innocent persons; 50 (2) issues relating to false confessions, including whether the 51 recording of interrogations should be mandated; 52 (3) trial processes and procedures that may have contributed to 53 convictions of innocent persons; 54 (4) any conduct of prosecutors, defense counsels, or courts that may 55 have contributed to convictions of innocent persons; S. 2857--B 11 1 (5) issues relating to the provision of counsel to indigent defend- 2 ants, including whether counsel are adequately trained, compensated, and 3 provided with appropriate resources for investigations; and 4 (6) failures in the appellate or post-conviction process that resulted 5 in wrongful convictions not being discovered or corrected at an earlier 6 time. 7 (g) The commissioner of criminal justice services shall identify cases 8 in which convictions were set aside and it appears reasonably likely 9 that the person convicted was innocent of the crimes charged, and it 10 shall submit summaries of such cases to the commission. The commissioner 11 of criminal justice services shall seek to submit at least all such 12 cases in which exoneration resulted from DNA evidence, and all such 13 cases in which there was an exoneration within five years prior to the 14 effective date of this act. The commission of exoneration review shall 15 conduct an initial review of each case submitted by the commissioner of 16 criminal justice services, and may also choose to conduct initial 17 reviews of other cases. As to each case, the commission shall decide 18 whether such case warrants detailed review in that (1) it appears highly 19 likely that the person convicted was actually innocent of the crimes 20 charged, and (2) there appear to be features of the case that may 21 provide useful information without possible reforms. 22 (h) When the commission for exoneration review decides that a case 23 warrants detailed review, the commissioner of criminal justice services 24 shall compile records and other information relating to that case, and 25 may solicit comments or analyses by experts in relevant fields. 26 Notwithstanding any other provision of law, the commissioner of criminal 27 justice services may request and shall receive from any court, depart- 28 ment, division, board, bureau, commission or other agency of the state 29 or political subdivision thereof, or any public authority, such assist- 30 ance, records and data as will enable it effectively to carry out its 31 duties. The commissioner of criminal justice services shall submit such 32 records, information, comments, and analyses to the commission of exon- 33 eration review. Confidential and sensitive material, such as certain 34 information relating to victims and confidential informants, may be 35 redacted as appropriate. The commission for exoneration review may 36 conduct its detailed review on the basis of the materials submitted, or 37 it may request the commissioner of criminal justice services to compile 38 and submit further specified kinds of information about the case. 39 (i) The commission for exoneration review shall make available an 40 annual report detailing, at a minimum, the number of cases submitted by 41 the commissioner of criminal justice services, the number of cases 42 chosen for detailed review, and the number of detailed reviews 43 completed. The report shall include any findings of fact and recommenda- 44 tions for reform that may have been adopted by the commission since its 45 last report. Recommendations that are not adopted by the commission but 46 obtain the concurrence of at least four members shall be included in the 47 annual report as proposals for consideration. In addition to the annual 48 report, the commission may decide to issue other reports containing 49 findings of fact and/or recommendations for reform. All reports issued 50 by the commission shall be made available to the public and delivered to 51 the governor, the chief judge of the court of appeals, the temporary 52 president of the senate, and the speaker of the assembly. 53 S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal 54 procedure law, as amended by section 73 of subpart B of part C of chap- 55 ter 62 of the laws of 2011, is amended to read as follows: S. 2857--B 12 1 (d) such records shall be made available to the person accused or to 2 such person's designated agent, and shall be made available to (i) a 3 prosecutor in any proceeding in which the accused has moved for an order 4 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law 5 enforcement agency upon ex parte motion in any superior court, if such 6 agency demonstrates to the satisfaction of the court that justice 7 requires that such records be made available to it, or (iii) any state 8 or local officer or agency with responsibility for the issuance of 9 licenses to possess guns, when the accused has made application for such 10 a license, or (iv) the New York state department of corrections and 11 community supervision when the accused is on parole supervision as a 12 result of conditional release or a parole release granted by the New 13 York state board of parole, and the arrest which is the subject of the 14 inquiry is one which occurred while the accused was under such super- 15 vision or (v) any prospective employer of a police officer or peace 16 officer as those terms are defined in subdivisions thirty-three and 17 thirty-four of section 1.20 of this chapter, in relation to an applica- 18 tion for employment as a police officer or peace officer; provided, 19 however, that every person who is an applicant for the position of 20 police officer or peace officer shall be furnished with a copy of all 21 records obtained under this paragraph and afforded an opportunity to 22 make an explanation thereto, or (vi) the probation department responsi- 23 ble for supervision of the accused when the arrest which is the subject 24 of the inquiry is one which occurred while the accused was under such 25 supervision, OR (VII) THE COMMISSION FOR EXONERATION REVIEW; and 26 S 16. Subdivision 4 of section 190.25 of the criminal procedure law is 27 amended by adding a new paragraph (c) to read as follows: 28 (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI- 29 MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND 30 JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION 31 REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS- 32 SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING. 33 S 17. Section 240.40 of the criminal procedure law is amended by 34 adding a new subdivision 1-a to read as follows: 35 1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR 36 COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU- 37 MENT IS PENDING MAY ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM 38 EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA 39 DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI- 40 AL TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE, 41 PROVIDED THAT THE COURT SHALL NOT DO SO IF IT IS SATISFIED THAT THE 42 PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF 43 THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED 44 FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY DIRECT A STATE OR 45 LOCAL PUBLIC FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE 46 ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATA- 47 BANKS TO THE EXTENT, AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE 48 LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS 49 TO HOW PROFILES FOR FORENSIC DNA ANALYSIS MUST BE GENERATED, AND 50 REQUIREMENTS FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION. IF 51 SUCH A DATABANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOV- 52 ERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT 53 SHALL BE NOTIFIED OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH 54 PROFILE, AND THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO 55 ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN S. 2857--B 13 1 THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER 2 REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON. 3 S 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi- 4 nal procedure law, as amended by chapter 138 of the laws of 2004, is 5 amended and a new paragraph (c) is added to read as follows: 6 (a) Where the defendant's motion requests the performance of a foren- 7 sic DNA test on specified evidence, and upon the court's determination 8 that any evidence containing deoxyribonucleic acid ("DNA") was secured 9 in connection with the [trial] PROCEEDINGS resulting in the judgment, 10 the court shall grant the application for forensic DNA testing of such 11 evidence upon its determination that if a DNA test had been conducted on 12 such evidence, and if the results had been admitted in the trial result- 13 ing in the judgment, there exists a reasonable probability that the 14 verdict would have been more favorable to the defendant. IN THE CASE OF 15 A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL GRANT THE 16 APPLICATION ONLY UPON ITS DETERMINATION THAT IF THE RESULTS HAD BEEN 17 AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT 18 THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER- 19 WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG 20 OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE 21 DEFENDANT'S PLEA OF GUILTY. 22 (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC DNA TEST 23 OF SPECIFIED EVIDENCE, AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI- 24 SION, THE DEFENDANT MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE 25 DERIVED FROM SPECIFIED EVIDENCE RECOVERED BY LAW ENFORCEMENT TO A DNA 26 DATABANK. IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON, 27 THE COURT MAY CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE 28 FOR SUCH A COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF 29 THIS CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE 30 MOTION FOR SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC 31 FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE ENTERED INTO AND 32 SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATABANKS TO THE EXTENT, 33 AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS 34 GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR 35 FORENSIC DNA ANALYSIS MUST BE GENERATED, AND REQUIREMENTS FOR SEARCHING 36 AND STORAGE IN THE DATABANK IN QUESTION. IF SUCH A DATABANK SEARCH 37 REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT 38 MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF 39 THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT 40 SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE 41 APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE 42 DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A 43 DNA SAMPLE FROM ANY OTHER PERSON. 44 S 19. Section 65.10 of the penal law is amended by adding a new subdi- 45 vision 4-b to read as follows: 46 4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A 47 SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED 48 OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE- 49 TY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATORY 50 CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS 51 REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW. 52 S 20. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision 53 5 of section 8-b of the court of claims act, as added by chapter 1009 of 54 the laws of 1984, are amended to read as follows: 55 (b) (i) he has been pardoned upon the ground of innocence of the crime 56 or crimes for which he was sentenced and which are the grounds for the S. 2857--B 14 1 complaint; or (ii) his judgment of conviction was reversed or vacated, 2 and the accusatory instrument dismissed or, if a new trial was ordered, 3 either he was found not guilty at the new trial or he was not retried 4 and the accusatory instrument dismissed; provided that the judgement of 5 conviction was reversed or vacated, and the accusatory instrument was 6 dismissed, on any of the following grounds: (A) paragraph [(a),] (b), 7 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal 8 procedure law; or (B) subdivision one (where based upon grounds set 9 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the 10 count dismissed was the sole basis for the imprisonment complained of) 11 or five of section 470.20 of the criminal procedure law; or (C) compara- 12 ble provisions of the former code of criminal procedure or subsequent 13 law; or (D) the statute, or application thereof, on which the accusatory 14 instrument was based violated the constitution of the United States or 15 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED 16 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE 17 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES 18 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED 19 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN 20 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, 21 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL 22 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN 23 THIS PARAGRAPH; and 24 (b) (i) he has been pardoned upon the ground of innocence of the crime 25 or crimes for which he was sentenced and which are the grounds for the 26 complaint; or (ii) his judgment of conviction was reversed or vacated, 27 and the accusatory instrument dismissed or, if a new trial was ordered, 28 either he was found not guilty at the new trial or he was not retried 29 and the accusatory instrument dismissed; provided that the judgement of 30 conviction was reversed or vacated, and the accusatory instrument was 31 dismissed, on any of the following grounds: (A) paragraph [(a),] (b), 32 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal 33 procedure law; or (B) subdivision one (where based upon grounds set 34 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the 35 count dismissed was the sole basis for the imprisonment complained of) 36 or five of section 470.20 of the criminal procedure law; or (C) compara- 37 ble provisions of the former code of criminal procedure or subsequent 38 law; or (D) the statute, or application thereof, on which the accusatory 39 instrument was based violated the constitution of the United States or 40 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED 41 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE 42 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES 43 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED 44 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN 45 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, 46 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL 47 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN 48 THIS PARAGRAPH; and 49 S 21. This act shall take effect November 1, 2011; provided that: 50 (a) the amendments to article 49-B of the executive law, made by 51 sections one and two of this act, and the amendments to the criminal 52 procedure law, made by sections six, seven, eight, nine, ten, eleven, 53 twelve and thirteen of this act, shall apply to designated offenses 54 committed on or after the effective date of this act; and to designated 55 offenses committed prior to such effective date where either the crimi- 56 nal proceeding arising out of the commission of such offense is pending S. 2857--B 15 1 on the effective date of this act or the service of the sentence imposed 2 upon conviction of the designated offense has not been completed prior 3 to such effective date; and to any person adjudicated a youthful offen- 4 der for the commission of a designated offense committed prior to the 5 effective date of this act where service of the sentence imposed upon 6 adjudication as a youthful offender has not been completed prior to such 7 effective date; and to any person required to register as a sex offender 8 pursuant to article 6-C of the correction law on or after the effective 9 date of this act; and 10 (b) sections fourteen, fifteen and sixteen of this act shall take 11 effect April 1, 2012, and shall expire and be deemed repealed September 12 1, 2015.