S T A T E O F N E W Y O R K ________________________________________________________________________ 2857 2011-2012 Regular Sessions I N S E N A T E February 2, 2011 ___________ Introduced by Sens. DeFRANCISCO, GRIFFO, LARKIN -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law and the criminal procedure law, in relation to collection of DNA samples from designated offenders; to amend the executive law, in relation to collection and preservation of biological evidence; to establish a commission for exoneration review; to amend the criminal procedure law, in relation to access by defend- ants to DNA evidence, and procedures for consideration of post-convic- tion relief; to amend the penal law, in relation to conditions of probation and conditional discharge; and to amend the court of claims act, in relation to claims for unjust conviction and imprisonment; and providing for the repeal of certain provisions upon expiration thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 7 of section 995 of the executive law, as 2 amended by chapter 2 of the laws of 2006, paragraph (a) as separately 3 amended by chapter 320 of the laws of 2006 and paragraph (f) as amended 4 by chapter 405 of the laws of 2010, is amended to read as follows: 5 7. "Designated offender" means a person [convicted of and sentenced 6 for any one or more of the following provisions of the penal law (a) 7 sections 120.05, 120.10, and 120.11, relating to assault; sections 8 125.15 through 125.27 relating to homicide; sections 130.25, 130.30, 9 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to 10 sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to 11 escape and other offenses, where the offender has been convicted within 12 the previous five years of one of the other felonies specified in this 13 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest, 14 a violent felony offense as defined in subdivision one of section 70.02 15 of the penal law, attempted murder in the first degree, as defined in 16 section 110.00 and section 125.27 of the penal law, kidnapping in the EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03787-01-1 S. 2857 2 1 first degree, as defined in section 135.25 of the penal law, arson in 2 the first degree, as defined in section 150.20 of the penal law, 3 burglary in the third degree, as defined in section 140.20 of the penal 4 law, attempted burglary in the third degree, as defined in section 5 110.00 and section 140.20 of the penal law, a felony defined in article 6 four hundred ninety of the penal law relating to terrorism or any 7 attempt to commit an offense defined in such article relating to terror- 8 ism which is a felony; or (b) criminal possession of a controlled 9 substance in the first degree, as defined in section 220.21 of the penal 10 law; criminal possession of a controlled substance in the second degree, 11 as defined in section 220.18 of the penal law; criminal sale of a 12 controlled substance, as defined in article 220 of the penal law; or 13 grand larceny in the fourth degree, as defined in subdivision five of 14 section 155.30 of the penal law; or (c) any misdemeanor or felony 15 defined as a sex offense or sexually violent offense pursuant to para- 16 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision 17 three of section one hundred sixty-eight-a of the correction law; or (d) 18 any of the following felonies, or an attempt thereof where such attempt 19 is a felony offense: 20 aggravated assault upon a person less than eleven years old, as 21 defined in section 120.12 of the penal law; menacing in the first 22 degree, as defined in section 120.13 of the penal law; reckless endan- 23 germent in the first degree, as defined in section 120.25 of the penal 24 law; stalking in the second degree, as defined in section 120.55 of the 25 penal law; criminally negligent homicide, as defined in section 125.10 26 of the penal law; vehicular manslaughter in the second degree, as 27 defined in section 125.12 of the penal law; vehicular manslaughter in 28 the first degree, as defined in section 125.13 of the penal law; 29 persistent sexual abuse, as defined in section 130.53 of the penal law; 30 aggravated sexual abuse in the fourth degree, as defined in section 31 130.65-a of the penal law; female genital mutilation, as defined in 32 section 130.85 of the penal law; facilitating a sex offense with a 33 controlled substance, as defined in section 130.90 of the penal law; 34 unlawful imprisonment in the first degree, as defined in section 135.10 35 of the penal law; custodial interference in the first degree, as defined 36 in section 135.50 of the penal law; criminal trespass in the first 37 degree, as defined in section 140.17 of the penal law; criminal tamper- 38 ing in the first degree, as defined in section 145.20 of the penal law; 39 tampering with a consumer product in the first degree, as defined in 40 section 145.45 of the penal law; robbery in the third degree as defined 41 in section 160.05 of the penal law; identity theft in the second degree, 42 as defined in section 190.79 of the penal law; identity theft in the 43 first degree, as defined in section 190.80 of the penal law; promoting 44 prison contraband in the first degree, as defined in section 205.25 of 45 the penal law; tampering with a witness in the third degree, as defined 46 in section 215.11 of the penal law; tampering with a witness in the 47 second degree, as defined in section 215.12 of the penal law; tampering 48 with a witness in the first degree, as defined in section 215.13 of the 49 penal law; criminal contempt in the first degree, as defined in subdivi- 50 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated 51 criminal contempt, as defined in section 215.52 of the penal law; bail 52 jumping in the second degree, as defined in section 215.56 of the penal 53 law; bail jumping in the first degree, as defined in section 215.57 of 54 the penal law; patronizing a prostitute in the second degree, as defined 55 in section 230.05 of the penal law; patronizing a prostitute in the 56 first degree, as defined in section 230.06 of the penal law; promoting S. 2857 3 1 prostitution in the second degree, as defined in section 230.30 of the 2 penal law; promoting prostitution in the first degree, as defined in 3 section 230.32 of the penal law; compelling prostitution, as defined in 4 section 230.33 of the penal law; disseminating indecent materials to 5 minors in the second degree, as defined in section 235.21 of the penal 6 law; disseminating indecent materials to minors in the first degree, as 7 defined in section 235.22 of the penal law; riot in the first degree, as 8 defined in section 240.06 of the penal law; criminal anarchy, as defined 9 in section 240.15 of the penal law; aggravated harassment of an employee 10 by an inmate, as defined in section 240.32 of the penal law; unlawful 11 surveillance in the second degree, as defined in section 250.45 of the 12 penal law; unlawful surveillance in the first degree, as defined in 13 section 250.50 of the penal law; endangering the welfare of a vulnerable 14 elderly person in the second degree, as defined in section 260.32 of the 15 penal law; endangering the welfare of a vulnerable elderly person in the 16 first degree, as defined in section 260.34 of the penal law; use of a 17 child in a sexual performance, as defined in section 263.05 of the penal 18 law; promoting an obscene sexual performance by a child, as defined in 19 section 263.10 of the penal law; possessing an obscene sexual perform- 20 ance by a child, as defined in section 263.11 of the penal law; promot- 21 ing a sexual performance by a child, as defined in section 263.15 of the 22 penal law; possessing a sexual performance by a child, as defined in 23 section 263.16 of the penal law; criminal possession of a weapon in the 24 third degree, as defined in section 265.02 of the penal law; criminal 25 sale of a firearm in the third degree, as defined in section 265.11 of 26 the penal law; criminal sale of a firearm to a minor, as defined in 27 section 265.16 of the penal law; unlawful wearing of a body vest, as 28 defined in section 270.20 of the penal law; hate crimes as defined in 29 section 485.05 of the penal law; and crime of terrorism, as defined in 30 section 490.25 of the penal law; or (e) a felony defined in the penal 31 law or an attempt thereof where such attempt is a felony; or (f) any of 32 the following misdemeanors: assault in the third degree as defined in 33 section 120.00 of the penal law; attempted aggravated assault upon a 34 person less than eleven years old, as defined in section 110.00 and 35 section 120.12 of the penal law; attempted menacing in the first degree, 36 as defined in section 110.00 and section 120.13 of the penal law; menac- 37 ing in the second degree as defined in section 120.14 of the penal law; 38 menacing in the third degree as defined in section 120.15 of the penal 39 law; reckless endangerment in the second degree as defined in section 40 120.20 of the penal law; stalking in the fourth degree as defined in 41 section 120.45 of the penal law; stalking in the third degree as defined 42 in section 120.50 of the penal law; attempted stalking in the second 43 degree, as defined in section 110.00 and section 120.55 of the penal 44 law; criminal obstruction of breathing or blood circulation as defined 45 in section 121.11 of the penal law; forcible touching as defined in 46 section 130.52 of the penal law regardless of the age of the victim; 47 sexual abuse in the third degree as defined in section 130.55 of the 48 penal law regardless of the age of the victim; unlawful imprisonment in 49 the second degree as defined in section 135.05 of the penal law regard- 50 less of the age of the victim; attempted unlawful imprisonment in the 51 first degree, as defined in section 110.00 and section 135.10 of the 52 penal law regardless of the age of the victim; criminal trespass in the 53 second degree as defined in section 140.15 of the penal law; possession 54 of burglar's tools as defined in section 140.35 of the penal law; petit 55 larceny as defined in section 155.25 of the penal law; endangering the 56 welfare of a child as defined in section 260.10 of the penal law; endan- S. 2857 4 1 gering the welfare of an incompetent or physically disabled person as 2 defined in section 260.25 of the penal law] ARRESTED FOR ANY OFFENSE FOR 3 WHICH THE FINGERPRINTS OF THE DEFENDANT OR ARRESTED PERSON ARE REQUIRED 4 OR PERMITTED TO BE TAKEN PURSUANT TO SECTION 160.10 OF THE CRIMINAL 5 PROCEDURE LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL 6 OFFENDER PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCE- 7 DURE LAW FOR ANY SUCH OFFENSE, OR A PERSON WHO IS REQUIRED TO REGISTER 8 AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. 9 S 2. Subdivision 3 of section 995-c of the executive law, as amended 10 by chapter 576 of the laws of 2004, is amended to read as follows: 11 3. (A) Any designated offender [subsequent to conviction and sentenc- 12 ing for a crime specified in subdivision seven of section nine hundred 13 ninety-five of this article,] shall be required to provide a sample 14 appropriate for DNA testing to determine identification characteristics 15 specific to such person and to be included in a state DNA identification 16 index pursuant to this article, UNLESS SUCH DESIGNATED OFFENDER HAS 17 PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI- 18 CATION INDEX. 19 (B) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT THE COLLECTION OF A DNA 20 SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR LOCAL 21 CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR 22 OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT WHO HAS BEEN NOTIFIED 23 BY THE DIVISION THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA 24 SAMPLE. 25 (C) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS 26 NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE 27 PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR 28 ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE. 29 (D) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED 30 UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL 31 NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI- 32 NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR 33 PLACED THE PERSON'S DNA SAMPLE IN THE INDEX. 34 (E) THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES 35 SHALL PROMULGATE RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF 36 THE DNA IDENTIFICATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX 37 CONTAINS DNA PROFILES THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE 38 STEPS NECESSARY TO EXPUNGE ANY PROFILES WHICH THE DIVISION DETERMINES 39 SHOULD NOT BE IN THE INDEX. 40 S 3. Section 995-f of the executive law, as amended by chapter 560 of 41 the laws of 1999, is amended to read as follows: 42 S 995-f. Penalties. 1. Any person who (a) intentionally discloses a 43 DNA record, or the results of a forensic DNA test or analysis, to an 44 individual or agency other than one authorized to have access to such 45 records pursuant to this article or (b) intentionally uses or receives 46 DNA records, or the results of a forensic DNA test or analysis, for 47 purposes other than those authorized pursuant to this article or (c) any 48 person who knowingly tampers or attempts to tamper with any DNA sample 49 or the collection container without lawful authority shall be guilty of 50 a class E felony. 51 2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION 52 WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT 53 TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH SAMPLE 54 UPON NOTIFICATION BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR 55 EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT 56 OFFICIAL OR PUBLIC SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A S. 2857 5 1 SAMPLE, SHALL BE DEEMED TO VIOLATE THE CONDITIONS OF PROBATION OR 2 PAROLE, AND SUCH VIOLATION SHALL BE A BASIS FOR THE REVOCATION OF 3 PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE 4 CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP- 5 TER. FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED 6 TO INCLUDE POST-RELEASE SUPERVISION. 7 S 4. Subdivision 4 of section 995-c of the executive law, as amended 8 by section 65 of part A of chapter 56 of the laws of 2010, is amended to 9 read as follows: 10 4. The commissioner of the division of criminal justice services, in 11 consultation with the commission, the commissioner of health, the divi- 12 sion of parole, the director of the office of probation and correctional 13 alternatives and the department of correctional services, shall promul- 14 gate rules and regulations governing the procedures for notifying desig- 15 nated offenders of the requirements of this section. THE COMMISSIONER 16 OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES 17 AND REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPRO- 18 PRIATE FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A 19 SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. 20 S 5. Section 995-b of the executive law is amended by adding a new 21 subdivision 3-a to read as follows: 22 3-A. THE COMMISSION, IN CONSULTATION WITH THE SUBCOMMITTEE ON BIOLOG- 23 ICAL EVIDENCE PRESERVATION, SHALL DEVELOP GUIDELINES RELATING TO THE 24 COLLECTION, PRESERVATION, STORAGE, AND INDEXING OF BIOLOGICAL EVIDENCE 25 BY LAW ENFORCEMENT AGENCIES AND FORENSIC LABORATORIES. SUCH GUIDELINES 26 SHALL INCLUDE, BUT NOT BE LIMITED TO, THE MINIMUM PERIOD OF TIME THAT 27 BIOLOGICAL EVIDENCE OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS 28 USED IN THIS SUBDIVISION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN 29 SEMEN, BLOOD, SALIVA, HAIR, SKIN, TISSUE, OR OTHER IDENTIFIED BIOLOGICAL 30 MATERIAL, AND SHALL INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT. 31 INITIALLY, THE COMMISSION SHALL DEVELOP SUCH GUIDELINES AS VOLUNTARY 32 BEST PRACTICES. NONCOMPLIANCE WITH SUCH GUIDELINES SHALL NOT BE GROUNDS 33 FOR DISMISSAL OF CHARGES, EXCLUSION OF EVIDENCE, OR ANY OTHER LEGAL 34 RELIEF. THEREAFTER, AND TAKING INTO ACCOUNT THE EXPERIENCE UNDER THE 35 INITIAL GUIDELINES, THE COMMISSION SHALL CONSIDER WHAT MANDATORY RULES 36 SHOULD BE ADOPTED AS TO THE COLLECTION, PRESERVATION, STORAGE, AND 37 INDEXING OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND FORENSIC 38 LABORATORIES. THE COMMISSION MAY ADOPT SUCH RULES WITHIN ITS EXISTING 39 REGULATORY AUTHORITY; IT MAY RECOMMEND THAT IT OR ANOTHER BODY BE GIVEN 40 EXPANDED REGULATORY AUTHORITY; AND IT MAY MAKE RECOMMENDATIONS FOR STAT- 41 UTORY ADOPTION OF PARTICULAR RULES. IN DEVELOPING SUCH GUIDELINES, RULES 42 AND RECOMMENDATIONS, THE COMMISSION SHALL CONSIDER THE VARYING NEEDS AND 43 RESOURCES OF LAW ENFORCEMENT AGENCIES AND JURISDICTIONS WITHIN THE 44 STATE. 45 S 6. Subdivision 6 of section 120.90 of the criminal procedure law, as 46 amended by chapter 424 of the laws of 1998, is amended to read as 47 follows: 48 6. Before bringing a defendant arrested pursuant to a warrant before 49 the local criminal court in which such warrant is returnable, a police 50 officer must without unnecessary delay perform all fingerprinting and 51 other preliminary police duties required in the particular case. In any 52 case in which the defendant is not brought by a police officer before 53 such court but, following his OR HER arrest in another county for an 54 offense specified in subdivision one of section 160.10, is released by a 55 local criminal court of such other county on his OR HER own recognizance 56 or on bail for his OR HER appearance on a specified date before the S. 2857 6 1 local criminal court before which the warrant is returnable, the latter 2 court must, upon arraignment of the defendant before it, direct that he 3 OR SHE be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING 4 TAKEN by the appropriate officer or agency, and that he OR SHE appear at 5 an appropriate designated time and place for such purpose. 6 S 7. Section 130.60 of the criminal procedure law, as amended by chap- 7 ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of 8 the laws of 1993, is amended to read as follows: 9 S 130.60 Summons; fingerprinting of defendant. 10 1. Upon the arraignment of a defendant whose court attendance has been 11 secured by the issuance and service of a summons, based upon an indict- 12 ment, a prosecutor's information or upon an information, felony 13 complaint or misdemeanor complaint filed by a complainant who is a 14 police officer, the court must, if an offense charged in the accusatory 15 instrument is one specified in subdivision one of section 160.10, direct 16 that the defendant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR 17 DNA TESTING TAKEN by the appropriate police officer or agency, and that 18 he or she appear at an appropriate designated time and place for such 19 purpose. 20 2. Upon the arraignment of a defendant whose court attendance has been 21 secured by the issuance and service of a summons based upon an informa- 22 tion or misdemeanor complaint filed by a complainant who is not a police 23 officer, and who has not previously been fingerprinted OR FROM WHOM A 24 DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN, the court may, if it finds 25 reasonable cause to believe that the defendant has committed an offense 26 specified in subdivision one of section 160.10, direct that the defend- 27 ant be fingerprinted AND/OR HAVE A SAMPLE APPROPRIATE FOR DNA TESTING 28 TAKEN by the appropriate police officer or agency and that he OR SHE 29 appear at an appropriate designated time and place for such purpose. A 30 defendant whose court appearance has been secured by the issuance and 31 service of a criminal summons based upon a misdemeanor complaint or 32 information filed by a complainant who is not a police officer, must be 33 directed by the court, upon conviction of the defendant, to be finger- 34 printed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN by the 35 appropriate police officer or agency and the court must also direct that 36 the defendant appear at an appropriate designated time and place for 37 such purpose, if the defendant is convicted of any offense specified in 38 subdivision one of section 160.10. 39 S 8. Subdivision 5 of section 140.20 of the criminal procedure law, as 40 amended by chapter 762 of the laws of 1971, is amended to read as 41 follows: 42 5. Before service of an appearance ticket upon an arrested person 43 pursuant to subdivision two or three, the issuing police officer must, 44 if the offense designated in such appearance ticket is one of those 45 specified in subdivision one of section 160.10, cause such person to be 46 fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN in the 47 same manner as would be required were no appearance ticket to be issued 48 or served. 49 S 9. Subdivision 2 of section 140.27 of the criminal procedure law, as 50 amended by chapter 843 of the laws of 1980, is amended to read as 51 follows: 52 2. Upon arresting a person without a warrant, a peace officer, except 53 as otherwise provided in subdivision three, must without unnecessary 54 delay bring him OR HER or cause him OR HER to be brought before a local 55 criminal court, as provided in section 100.55 and subdivision one of 56 section 140.20, and must without unnecessary delay file or cause to be S. 2857 7 1 filed therewith an appropriate accusatory instrument. If the offense 2 which is the subject of the arrest is one of those specified in subdivi- 3 sion one of section 160.10, the arrested person must be fingerprinted 4 [and], photographed AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 5 as therein provided. In order to execute the required post-arrest func- 6 tions, such arresting peace officer may perform such functions himself 7 OR HERSELF, or he OR SHE may enlist the aid of a police officer for the 8 performance thereof in the manner provided in subdivision one of section 9 140.20. 10 S 10. Section 150.70 of the criminal procedure law, as amended by 11 chapter 762 of the laws of 1971, is amended to read as follows: 12 S 150.70 Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of 13 defendant. 14 Upon the arraignment of a defendant who has not been arrested and 15 whose court attendance has been secured by the issuance and service of 16 an appearance ticket pursuant to subdivision one of section 150.20, the 17 court must, if an offense charged in the accusatory instrument is one 18 specified in subdivision one of section 160.10, direct that the defend- 19 ant be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN 20 by the appropriate police officer or agency, and that he OR SHE appear 21 at an appropriate designated time and place for such purpose. 22 S 11. The section heading of section 160.10 of the criminal procedure 23 law, as amended by chapter 762 of the laws of 1971, is amended and a new 24 subdivision 5 is added to read as follows: 25 Fingerprinting AND DNA ANALYSIS; duties of police with respect there- 26 to. 27 5. (A) WHENEVER FINGERPRINTS ARE REQUIRED TO BE TAKEN PURSUANT TO 28 SUBDIVISION ONE OF THIS SECTION OR PERMITTED TO BE TAKEN PURSUANT TO 29 SUBDIVISION TWO OF THIS SECTION, THE TAKING OF A SAMPLE APPROPRIATE FOR 30 DNA TESTING SHALL BE SIMILARLY REQUIRED OR PERMITTED. 31 (B) THE TAKING OF SAMPLES APPROPRIATE FOR DNA TESTING AS PRESCRIBED IN 32 THIS SECTION SHALL BE IN ACCORDANCE WITH STANDARDS THAT MAY BE ESTAB- 33 LISHED BY RULES AND REGULATIONS OF THE COMMISSIONER OF THE DIVISION OF 34 CRIMINAL JUSTICE SERVICES. 35 (C) "DNA" AS USED IN THIS ARTICLE MEANS DNA AS DEFINED IN SECTION NINE 36 HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW. 37 S 12. Section 160.20 of the criminal procedure law, as amended by 38 chapter 108 of the laws of 1973, is amended to read as follows: 39 S 160.20 Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger- 40 prints AND DNA ANALYSIS SAMPLE. 41 Upon the taking of fingerprints AND A SAMPLE APPROPRIATE FOR DNA TEST- 42 ING of an arrested person or defendant as prescribed in section 160.10, 43 the appropriate police officer or agency must without unnecessary delay 44 forward two copies of such fingerprints to the division of criminal 45 justice services, AND SHALL STORE AND FORWARD SUCH DNA SAMPLE TO A 46 FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING AND ANALYSIS, AND 47 INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH 48 SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE 49 LAW. 50 S 13. Paragraphs (a) and (b) of subdivision 1 of section 160.55 of the 51 criminal procedure law, paragraph (a) as amended by chapter 476 of the 52 laws of 2009 and paragraph (b) as amended by chapter 169 of the laws of 53 1994, are amended to read as follows: 54 (a) every photograph of such person and photographic plate or proof, 55 [and] all palmprints and fingerprints taken or made of such person, AND 56 ALL DNA ANALYSIS SAMPLES AND DNA RECORDS TAKEN pursuant to the S. 2857 8 1 provisions of this article in regard to the action or proceeding termi- 2 nated, [and] all duplicates and copies thereof, except a digital finger- 3 print image where authorized pursuant to paragraph (e) of this subdivi- 4 sion, except for the palmprints and fingerprints concerning a 5 disposition of harassment in the second degree as defined in section 6 240.26 of the penal law, committed against a member of the same family 7 or household as the defendant, as defined in subdivision one of section 8 530.11 of this chapter, and determined pursuant to subdivision eight-a 9 of section 170.10 of this title, shall forthwith be, at the discretion 10 of the recipient agency, either destroyed or returned to such person, or 11 to the attorney who represented such person at the time of the termi- 12 nation of the action or proceeding, at the address given by such person 13 or attorney during the action or proceeding, by the division of criminal 14 justice services and by any police department or law enforcement agency 15 having any such photograph, photographic plate or proof, palmprints 16 [or], fingerprints, AND DNA ANALYSIS SAMPLE AND DNA RECORD in its 17 possession or under its control; 18 (b) any police department or law enforcement agency, including the 19 division of criminal justice services, which transmitted or otherwise 20 forwarded to any agency of the United States or of any other state or of 21 any other jurisdiction outside the state of New York copies of any such 22 photographs, photographic plates or proofs, palmprints [and], finger- 23 prints, AND DNA ANALYSIS SAMPLE AND DNA RECORD, shall forthwith formally 24 request in writing that all such copies be destroyed or returned to the 25 police department or law enforcement agency which transmitted or 26 forwarded them, and upon such return such department or agency shall, at 27 its discretion, either destroy or return them as provided herein; 28 S 14. (a) The commission for exoneration review is hereby established 29 on a temporary basis as an independent agency of the state to study and 30 review recent cases in which convicted defendants were subsequently 31 exonerated, whether by DNA evidence or otherwise, to determine why the 32 process failed in each individual case, and to determine whether these 33 cases are indicative of systemic flaws that have led to the conviction 34 and sentencing of innocent people. 35 (b) The governor shall appoint the chair and ten other members of such 36 commission, including one appointed on the recommendation of the chief 37 judge of the court of appeals, one appointed on the recommendation of 38 the speaker of the assembly, one appointed on the recommendation of the 39 temporary president of the senate, one appointed on the recommendation 40 of the minority leader of the senate, and one appointed on the recommen- 41 dation of the minority leader of the assembly. If any vacancy occurs it 42 shall be filled in the manner provided for the original appointment to 43 the vacated seat. 44 (c) No member of the commission shall be disqualified from holding any 45 public office or employment, nor shall he or she forfeit any such office 46 or employment, by reason of his or her appointment pursuant to this 47 section. 48 (d) The commission shall meet as often as its chair, or at least five 49 of its members, shall determine to be necessary. Six members shall 50 constitute a quorum, and except as otherwise provided in this section, 51 affirmative decisions of the commission shall require the concurrence of 52 seven members. 53 (e) The members of the commission shall serve without salary or other 54 compensation, but shall be entitled to receive actual and necessary 55 expenses incurred in the discharge of their duties pursuant to this 56 section. S. 2857 9 1 (f) The commission shall review criminal or juvenile cases in which 2 the defendant or respondent was sentenced but subsequently exonerated. 3 The purpose of such review is to consider whether experience in such 4 cases provides useful information about possible reforms that could 5 enhance safeguards, make improvements in the way that law enforcement 6 agencies and the criminal justice system function, and protect against 7 future convictions of innocent persons. Such possible reforms may 8 include but are not limited to the areas of: 9 (1) investigative techniques that led to the arrest, identification, 10 and conviction of the innocent persons; 11 (2) issues relating to false confessions, including whether the 12 recording of interrogations should be mandated; 13 (3) trial processes and procedures that may have contributed to 14 convictions of innocent persons; 15 (4) any conduct of prosecutors, defense counsels, or courts that may 16 have contributed to convictions of innocent persons; 17 (5) issues relating to the provision of counsel to indigent defend- 18 ants, including whether counsel are adequately trained, compensated, and 19 provided with appropriate resources for investigations; and 20 (6) failures in the appellate or post-conviction process that resulted 21 in wrongful convictions not being discovered or corrected at an earlier 22 time. 23 (g) The commissioner of criminal justice services shall identify cases 24 in which convictions were set aside and it appears reasonably likely 25 that the person convicted was innocent of the crimes charged, and it 26 shall submit summaries of such cases to the commission. The commissioner 27 of criminal justice services shall seek to submit at least all such 28 cases in which exoneration resulted from DNA evidence, and all such 29 cases in which there was an exoneration within five years prior to the 30 effective date of this act. The commission of exoneration review shall 31 conduct an initial review of each case submitted by the commissioner of 32 criminal justice services, and may also choose to conduct initial 33 reviews of other cases. As to each case, the commission shall decide 34 whether such case warrants detailed review in that (1) it appears highly 35 likely that the person convicted was actually innocent of the crimes 36 charged, and (2) there appear to be features of the case that may 37 provide useful information without possible reforms. 38 (h) When the commission for exoneration review decides that a case 39 warrants detailed review, the commissioner of criminal justice services 40 shall compile records and other information relating to that case, and 41 may solicit comments or analyses by experts in relevant fields. 42 Notwithstanding any other provision of law, the commissioner of criminal 43 justice services may request and shall receive from any court, depart- 44 ment, division, board, bureau, commission or other agency of the state 45 or political subdivision thereof, or any public authority, such assist- 46 ance, records and data as will enable it effectively to carry out its 47 duties. The commissioner of criminal justice services shall submit such 48 records, information, comments, and analyses to the commission of exon- 49 eration review. Confidential and sensitive material, such as certain 50 information relating to victims and confidential informants, may be 51 redacted as appropriate. The commission for exoneration review may 52 conduct its detailed review on the basis of the materials submitted, or 53 it may request the commissioner of criminal justice services to compile 54 and submit further specified kinds of information about the case. 55 (i) The commission for exoneration review shall make available an 56 annual report detailing, at a minimum, the number of cases submitted by S. 2857 10 1 the commissioner of criminal justice services, the number of cases 2 chosen for detailed review, and the number of detailed reviews 3 completed. The report shall include any findings of fact and recommenda- 4 tions for reform that may have been adopted by the commission since its 5 last report. Recommendations that are not adopted by the commission but 6 obtain the concurrence of at least four members shall be included in the 7 annual report as proposals for consideration. In addition to the annual 8 report, the commission may decide to issue other reports containing 9 findings of fact and/or recommendations for reform. All reports issued 10 by the commission shall be made available to the public and delivered to 11 the governor, the chief judge of the court of appeals, the temporary 12 president of the senate, and the speaker of the assembly. 13 S 15. Paragraph (d) of subdivision 1 of section 160.50 of the criminal 14 procedure law, as amended by chapter 169 of the laws of 1994, is amended 15 to read as follows: 16 (d) such records shall be made available to the person accused or to 17 such person's designated agent, and shall be made available to (i) a 18 prosecutor in any proceeding in which the accused has moved for an order 19 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law 20 enforcement agency upon ex parte motion in any superior court, if such 21 agency demonstrates to the satisfaction of the court that justice 22 requires that such records be made available to it, or (iii) any state 23 or local officer or agency with responsibility for the issuance of 24 licenses to possess guns, when the accused has made application for such 25 a license, or (iv) the New York state division of parole when the 26 accused is on parole supervision as a result of conditional release or a 27 parole release granted by the New York state board of parole, and the 28 arrest which is the subject of the inquiry is one which occurred while 29 the accused was under such supervision, or (v) any prospective employer 30 of a police officer or peace officer as those terms are defined in 31 subdivisions thirty-three and thirty-four of section 1.20 of this chap- 32 ter, in relation to an application for employment as a police officer or 33 peace officer; provided, however, that every person who is an applicant 34 for the position of police officer or peace officer shall be furnished 35 with a copy of all records obtained under this paragraph and afforded an 36 opportunity to make an explanation thereto, or (vi) the probation 37 department responsible for supervision of the accused when the arrest 38 which is the subject of the inquiry is one which occurred while the 39 accused was under such supervision, OR (VII) THE COMMISSION FOR EXONERA- 40 TION REVIEW; and 41 S 16. Subdivision 4 of section 190.25 of the criminal procedure law is 42 amended by adding a new paragraph (c) to read as follows: 43 (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI- 44 MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND 45 JURY PROCEEDING SHALL BE DISCLOSED TO THE COMMISSION FOR EXONERATION 46 REVIEW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH COMMIS- 47 SION INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING. 48 S 17. Section 240.40 of the criminal procedure law is amended by 49 adding a new subdivision 1-a to read as follows: 50 1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR 51 COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU- 52 MENT IS PENDING MAY ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM 53 EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA 54 DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI- 55 AL TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE, 56 PROVIDED THAT THE COURT SHALL NOT DO SO IF IT IS SATISFIED THAT THE S. 2857 11 1 PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF 2 THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED 3 FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY DIRECT A STATE OR 4 LOCAL PUBLIC FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE 5 ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATA- 6 BANKS TO THE EXTENT, AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE 7 LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS 8 TO HOW PROFILES FOR FORENSIC DNA ANALYSIS MUST BE GENERATED, AND 9 REQUIREMENTS FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION. IF 10 SUCH A DATABANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOV- 11 ERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT 12 SHALL BE NOTIFIED OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH 13 PROFILE, AND THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO 14 ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN 15 THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER 16 REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON. 17 S 18. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi- 18 nal procedure law, as amended by chapter 138 of the laws of 2004, is 19 amended and a new paragraph (c) is added to read as follows: 20 (a) Where the defendant's motion requests the performance of a foren- 21 sic DNA test on specified evidence, and upon the court's determination 22 that any evidence containing deoxyribonucleic acid ("DNA") was secured 23 in connection with the [trial] PROCEEDINGS resulting in the judgment, 24 the court shall grant the application for forensic DNA testing of such 25 evidence upon its determination that if a DNA test had been conducted on 26 such evidence, and if the results had been admitted in the trial result- 27 ing in the judgment, there exists a reasonable probability that the 28 verdict would have been more favorable to the defendant. IN THE CASE OF 29 A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL GRANT THE 30 APPLICATION ONLY UPON ITS DETERMINATION THAT IF THE RESULTS HAD BEEN 31 AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT 32 THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER- 33 WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG 34 OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE 35 DEFENDANT'S PLEA OF GUILTY. 36 (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC DNA TEST 37 OF SPECIFIED EVIDENCE, AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI- 38 SION, THE DEFENDANT MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE 39 DERIVED FROM SPECIFIED EVIDENCE RECOVERED BY LAW ENFORCEMENT TO A DNA 40 DATABANK. IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON, 41 THE COURT MAY CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE 42 FOR SUCH A COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF 43 THIS CHAPTER, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE 44 MOTION FOR SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC 45 FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE ENTERED INTO AND 46 SEARCHED AGAINST LOCAL, STATE, AND FEDERAL DNA DATABANKS TO THE EXTENT, 47 AND IN A MANNER, CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS 48 GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR 49 FORENSIC DNA ANALYSIS MUST BE GENERATED, AND REQUIREMENTS FOR SEARCHING 50 AND STORAGE IN THE DATABANK IN QUESTION. IF SUCH A DATABANK SEARCH 51 REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT 52 MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF 53 THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT 54 SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE 55 APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE S. 2857 12 1 DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A 2 DNA SAMPLE FROM ANY OTHER PERSON. 3 S 19. Section 65.10 of the penal law is amended by adding a new subdi- 4 vision 4-b to read as follows: 5 4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A 6 SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED 7 OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE- 8 TY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATORY 9 CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS 10 REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW. 11 S 20. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision 12 5 of section 8-b of the court of claims act, as added by chapter 1009 of 13 the laws of 1984, are amended to read as follows: 14 (b) (i) he has been pardoned upon the ground of innocence of the crime 15 or crimes for which he was sentenced and which are the grounds for the 16 complaint; or (ii) his judgment of conviction was reversed or vacated, 17 and the accusatory instrument dismissed or, if a new trial was ordered, 18 either he was found not guilty at the new trial or he was not retried 19 and the accusatory instrument dismissed; provided that the judgement of 20 conviction was reversed or vacated, and the accusatory instrument was 21 dismissed, on any of the following grounds: (A) paragraph [(a),] (b), 22 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal 23 procedure law; or (B) subdivision one (where based upon grounds set 24 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the 25 count dismissed was the sole basis for the imprisonment complained of) 26 or five of section 470.20 of the criminal procedure law; or (C) compara- 27 ble provisions of the former code of criminal procedure or subsequent 28 law; or (D) the statute, or application thereof, on which the accusatory 29 instrument was based violated the constitution of the United States or 30 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED 31 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE 32 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES 33 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED 34 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN 35 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, 36 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL 37 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN 38 THIS PARAGRAPH; and 39 (b) (i) he has been pardoned upon the ground of innocence of the crime 40 or crimes for which he was sentenced and which are the grounds for the 41 complaint; or (ii) his judgment of conviction was reversed or vacated, 42 and the accusatory instrument dismissed or, if a new trial was ordered, 43 either he was found not guilty at the new trial or he was not retried 44 and the accusatory instrument dismissed; provided that the judgement of 45 conviction was reversed or vacated, and the accusatory instrument was 46 dismissed, on any of the following grounds: (A) paragraph [(a),] (b), 47 (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal 48 procedure law; or (B) subdivision one (where based upon grounds set 49 forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the 50 count dismissed was the sole basis for the imprisonment complained of) 51 or five of section 470.20 of the criminal procedure law; or (C) compara- 52 ble provisions of the former code of criminal procedure or subsequent 53 law; or (D) the statute, or application thereof, on which the accusatory 54 instrument was based violated the constitution of the United States or 55 the state of New York; OR (E) THE CLAIMANT'S CONVICTION WAS VACATED 56 UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE S. 2857 13 1 APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES 2 THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED 3 THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN 4 ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, 5 THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL 6 COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN 7 THIS PARAGRAPH; and 8 S 21. This act shall take effect November 1, 2011; provided that: 9 (a) the amendments to article 49-B of the executive law, made by 10 sections one and two of this act, and the amendments to the criminal 11 procedure law, made by sections six, seven, eight, nine, ten, eleven, 12 twelve and thirteen of this act, shall apply to designated offenses 13 committed on or after the effective date of this act; and to designated 14 offenses committed prior to such effective date where either the crimi- 15 nal proceeding arising out of the commission of such offense is pending 16 on the effective date of this act or the service of the sentence imposed 17 upon conviction of the designated offense has not been completed prior 18 to such effective date; and to any person adjudicated a youthful offen- 19 der for the commission of a designated offense committed prior to the 20 effective date of this act where service of the sentence imposed upon 21 adjudication as a youthful offender has not been completed prior to such 22 effective date; and to any person required to register as a sex offender 23 pursuant to article 6-C of the correction law on or after the effective 24 date of this act; and 25 (b) sections fourteen, fifteen and sixteen of this act shall take 26 effect April 1, 2012, and shall expire and be deemed repealed September 27 1, 2015.