Bill Text: NY S06238 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to the processing of evidence related to sexual offenses and the inclusion of such results in the state DNA identification index.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO FINANCE [S06238 Detail]
Download: New_York-2017-S06238-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6238 2017-2018 Regular Sessions IN SENATE May 11, 2017 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law, in relation to the processing of evidence related to sexual offenses and the inclusion of such results in the state DNA identification index The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 2 and 9 of section 995 of the executive law, 2 as added by chapter 737 of the laws of 1994, are amended to read as 3 follows: 4 2. For purposes of forensic DNA analysis, the term "forensic DNA labo- 5 ratory" shall mean any forensic laboratory operated by the state or unit 6 of local government, that performs forensic DNA testing on crime scenes, 7 forensic testing on evidence of sexual offenses or materials derived 8 from the human body for use as evidence in a criminal proceeding or for 9 purposes of identification and the term "forensic DNA testing" shall 10 mean any test that employs techniques to examine deoxyribonucleic acid 11 (DNA) derived from the human body for the purpose of providing informa- 12 tion to resolve issues of identification. Regulation pursuant to this 13 article shall not include DNA testing on materials derived from the 14 human body pursuant to title five of article five of the public health 15 law for the purpose of determining a person's genetic disease or medical 16 condition and shall not include a laboratory operated by the federal 17 government. 18 9. "DNA subcommittee" shall mean the subcommittee on forensic DNA 19 laboratories and forensic DNA and sexual offense forensic evidence test- 20 ing established pursuant to subdivision thirteen of section nine hundred 21 ninety-five-b of this article. 22 § 2. Paragraph (b) of subdivision 2 of section 995-b of the executive 23 law, as added by chapter 737 of the laws of 1994, is amended to read as 24 follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08510-01-7S. 6238 2 1 (b) ensure that forensic analyses, including forensic DNA testing and 2 sexual offense forensic evidence testing, are performed in accordance 3 with the highest scientific standards practicable; 4 § 3. Subdivisions 7, 11, 12 and 13 of section 995-b of the executive 5 law, as added by chapter 737 of the laws of 1994 and paragraph (a) of 6 subdivision 13 as amended by chapter 560 of the laws of 1999, are 7 amended to read as follows: 8 7. The commission and DNA subcommittee may establish, appoint, and set 9 terms of members to as many advisory councils as it deems necessary to 10 provide specialized expertise to the commission with respect to new 11 forensic technologies including DNA testing methodologies and sexual 12 offense forensic evidence testing methodologies. 13 11. Upon the recommendation of the DNA subcommittee established pursu- 14 ant to subdivision thirteen of this section, the commission shall desig- 15 nate one or more approved methodologies for the performance of forensic 16 DNA testing and sexual assault forensic evidence, and shall review and 17 act upon applications by forensic DNA laboratories for approval to 18 perform forensic DNA testing. 19 12. Promulgate standards for a determination of a match between the 20 DNA records contained in the state DNA identification index and a DNA 21 record of a person or sexual offense forensic evidence submitted for 22 comparison therewith. 23 13. (a) The commission shall establish a subcommittee on forensic DNA 24 laboratories and forensic DNA and sexual offense forensic evidence test- 25 ing. The chair of the subcommittee shall be appointed by the chair of 26 the commission. The chair of the subcommittee shall appoint six other 27 members to the subcommittee, one of whom shall represent the discipline 28 of molecular biology and be appointed upon the recommendation of the 29 commissioner of the department of health, one of whom shall represent 30 the discipline of population genetics and be appointed upon the recom- 31 mendation of the commissioner of the department of health, one of whom 32 shall be representative of the discipline of laboratory standards and 33 quality assurance regulation and monitoring and be appointed upon the 34 recommendation of the commissioner of the department of health, one of 35 whom shall be a forensic scientist and be appointed upon the recommenda- 36 tion of the commissioner of the department of health, one of whom shall 37 be representative of the discipline of population genetics and be 38 appointed upon the recommendation of the commissioner of criminal 39 justice services and one of whom shall be representative of the disci- 40 pline of forensic science and be appointed upon the recommendation of 41 the commissioner of criminal justice services. Members of the DNA 42 subcommittee shall serve for three year terms and be subject to the 43 conditions of service specified in section nine hundred ninety-five-a of 44 this article. 45 (b) The DNA subcommittee shall assess and evaluate all DNA and sexual 46 offense forensic evidence methodologies proposed to be used for forensic 47 analysis, and make reports and recommendations to the commission as it 48 deems necessary. The DNA subcommittee shall make binding recommendations 49 for adoption by the commission addressing minimum scientific standards 50 to be utilized in conducting forensic DNA and sexual offense forensic 51 evidence analysis including, but not limited to, examination of speci- 52 mens, population studies and methods employed to determine probabilities 53 and interpret test results. The DNA subcommittee may require a demon- 54 stration by an independent laboratory of any proposed forensic DNA or 55 sexual offense forensic evidence testing methodology proposed to be used 56 by a forensic laboratory.S. 6238 3 1 (c) The DNA subcommittee shall make binding recommendations for 2 adoption by the commission with regard to an accreditation program for 3 laboratories performing forensic DNA and sexual offense forensic 4 evidence testing in accordance with the provisions of the state adminis- 5 trative procedure act. Such recommendations shall include the adoption 6 and implementation of internal and external proficiency testing 7 programs, including, if possible, a blind external proficiency testing 8 program for forensic laboratories performing forensic DNA and sexual 9 offense forensic evidence testing. The DNA subcommittee shall also 10 provide the commission with a list of accepted proficiency testers. 11 (d) The DNA subcommittee shall be authorized to advise the commission 12 on any other matters regarding the implementation of scientific controls 13 and quality assurance procedures for the performance of forensic DNA and 14 sexual offense forensic evidence testing, or on any other matters 15 referred to it by the commission. 16 § 4. Section 995-d of the executive law, as added by chapter 737 of 17 the laws of 1994 and subdivision 2 as amended by chapter 560 of the laws 18 of 1999, is amended to read as follows: 19 § 995-d. Confidentiality. 1. All records, findings, reports, and 20 results of DNA and sexual offense forensic evidence testing performed on 21 any person shall be confidential and may not be disclosed or redisclosed 22 without the consent of the subject of such DNA or sexual offense foren- 23 sic evidence testing. Such records, findings, reports and results shall 24 not be released to insurance companies, employers or potential employ- 25 ers, health providers, employment screening or personnel companies, 26 agencies, or services, private investigation services, and may not be 27 disclosed in response to a subpoena or other compulsory legal process or 28 warrant, or upon request or order of any agency, authority, division, 29 office, corporation, partnership, or any other private or public entity 30 or person, except that nothing contained herein shall prohibit disclo- 31 sure in response to a subpoena issued on behalf of the subject of such 32 DNA or sexual offense forensic evidence record or on behalf of a party 33 in a civil proceeding where the subject of such DNA or sexual offense 34 forensic evidence record has put such record in issue. 35 2. Notwithstanding the provisions of subdivision one of this section, 36 records, findings, reports, and results of DNA testing, other than a DNA 37 record maintained in the state DNA identification index, may be 38 disclosed in a criminal proceeding to the court, the prosecution, and 39 the defense pursuant to a written request on a form prescribed by the 40 commissioner of the division of criminal justice services. Notwith- 41 standing the provisions of subdivision one of this section, a DNA or 42 sexual offense forensic evidence record maintained in the state DNA 43 identification index may be disclosed pursuant to section nine hundred 44 ninety-five-c of this article. 45 § 5. Section 995-e of the executive law, as added by chapter 737 of 46 the laws of 1994, is amended to read as follows: 47 § 995-e. Applicability. This article shall not apply to a forensic DNA 48 laboratory operated by any agency of the federal government, or to any 49 forensic DNA test or sexual offense forensic evidence test performed by 50 any such federal laboratory. 51 § 6. Section 995-f of the executive law, as amended by chapter 560 of 52 the laws of 1999, is amended to read as follows: 53 § 995-f. Penalties. Any person who (a) intentionally discloses a DNA 54 record, [or] the results of a forensic DNA test or analysis, or the 55 result of a sexual offense forensic evidence test of analysis, to an 56 individual or agency other than one authorized to have access to suchS. 6238 4 1 records pursuant to this article or (b) intentionally uses or receives 2 DNA records, [or] the results of a forensic DNA test or analysis, or the 3 results of a sexual offense forensic evidence test of analysis, for 4 purposes other than those authorized pursuant to this article or (c) any 5 person who knowingly tampers or attempts to tamper with any DNA sample 6 [or], the collection container or sexual offense forensic evidence 7 sample without lawful authority shall be guilty of a class E felony. 8 § 7. Subdivisions 6 and 7 of section 995-c of the executive law, as 9 added by chapter 737 of the laws of 1994, are amended and a new subdivi- 10 sion 10 is added to read as follows: 11 6. DNA and sexual offense forensic evidence records contained in the 12 state DNA identification index shall be released only for the following 13 purposes: 14 (a) to a federal law enforcement agency, or to a state or local law 15 enforcement agency or district attorney's office for law enforcement 16 identification purposes upon submission of a DNA record in connection 17 with the investigation of the commission of one or more crimes or to 18 assist in the recovery or identification of specified human remains, 19 including identification of missing persons, provided that there exists 20 between the division and such agency a written agreement governing the 21 use and dissemination of such DNA records in accordance with the 22 provisions of this article; 23 (b) for criminal defense purposes, to a defendant or his or her repre- 24 sentative, who shall also have access to samples and analyses performed 25 in connection with the case in which such defendant is charged; 26 (c) after personally identifiable information has been removed by the 27 division, to an entity authorized by the division for the purpose of 28 creating or maintaining a population statistics database or for iden- 29 tification research and protocol development for forensic DNA analysis 30 or quality control purposes; and 31 (d) in the case of a victim of a sexual offense, such victim shall 32 have access to information regarding: 33 (i) whether a sexual offense forensic evidence test is performed by 34 any forensic DNA laboratory; 35 (ii) whether the result of a sexual offense forensic evidence test of 36 analysis was entered into the state DNA identification index; and 37 (iii) whether there is a match between the result of a sexual offense 38 evidence test of analysis and the state DNA identification index. 39 7. Requests for DNA and sexual offense forensic evidence records must 40 be in writing, or in a form prescribed by the division authorized by the 41 requesting party, and, other than a request pursuant to paragraph (b) of 42 subdivision six of this section, maintained on file at the state DNA 43 identification index in accordance with rules and regulations promulgat- 44 ed by the commissioner of the division of criminal justice services. 45 10. (a) The commissioner of criminal justice services, in consultation 46 with the DNA subcommittee and the commission, is hereby authorized to 47 establish a plan for the timely testing of sexual offense forensic 48 evidence and the inclusion of the results of such testing in the DNA 49 identification index pursuant to the provisions of this article. 50 (b) Any forensic evidence collected or obtained in connection with the 51 investigation of a crime or offense contained in article one hundred 52 thirty of the penal law shall be included in the state DNA identifica- 53 tion index pursuant to this article. This subdivision does not require a 54 forensic DNA laboratory to test all items of forensic evidence obtained 55 in a sexual offense forensic evidence examination or a sexual offense 56 investigation. For the purpose of timely processing of sexual offenseS. 6238 5 1 forensic evidence, this subdivision intends to ensure that the best 2 evidence is selected and analyzed as soon as practicable among the 3 representative sample of forensic evidence, based on the medical exam- 4 ination or the sexual offense investigation, the collection and preser- 5 vation of that evidence, and the transfer of the evidence from the 6 medical facility or the law enforcement agency to the forensic DNA labo- 7 ratory. 8 (c) (i) No later than ten business days after being booked into 9 evidence, a law enforcement agency that receives sexual offense forensic 10 evidence shall forward such evidence to any forensic DNA laboratory 11 which has been authorized by the commission to perform sexual offense 12 forensic evidence testing and analysis for inclusion in the state DNA 13 identification index. 14 (ii) Such laboratory shall perform the requisite testing and analysis 15 within three months of its receipt of the sexual offense forensic 16 evidence if sufficient staffing and resources are available. An analysis 17 shall include an examination of DNA evidence, development of a potential 18 suspect profile, and the forwarding of the resulting DNA record to the 19 state DNA identification index in accordance with the regulations of the 20 division of criminal justice services. 21 (d) The failure of a law enforcement agency to submit sexual offense 22 forensic evidence within the period required by this subdivision shall 23 not affect the authority of (i) the agency to submit the evidence to a 24 forensic DNA laboratory for analysis or (ii) of a forensic DNA laborato- 25 ry to analyze the evidence or provide the results of the analysis to the 26 appropriate agencies and the state DNA identification index. 27 (e) A law enforcement agency in possession of sexual offense forensic 28 evidence that has not been forwarded to a forensic DNA laboratory within 29 the time frame required by this subdivision shall: (i) by September 30 first of each year submit to the division of criminal justice services a 31 list of the agency's active criminal cases for which sexual offense 32 forensic evidence has not yet been forwarded to a forensic DNA laborato- 33 ry; and (ii) submit to the division of criminal justice services or a 34 forensic DNA laboratory, as appropriate and subject to the availability 35 of storage space, all sexual offense forensic evidence pertaining to 36 those active criminal cases that has not yet been submitted for lab 37 analysis within two years after the effective date of this subdivision. 38 (f) No later than one year after the effective date of this subdivi- 39 sion, the division of criminal justice services shall submit to the 40 governor and the appropriate legislative committees of the senate and 41 the assembly a request for any necessary funding to accomplish analyses 42 of sexual offense forensic evidence required by this subdivision. 43 (g) The division of criminal justice services may solicit appropriate 44 grants and funding opportunities in furtherance of the activities 45 required by this subdivision from foundations, other governmental agen- 46 cies and individuals, under such terms and conditions as the division 47 shall deem appropriate. 48 § 8. This act shall take effect September 1, 2018.
