|SAME AS||No Same As|
|COSPNSR||Aubry, Jaffee, Farrell, Weinstein, Peoples-Stokes, Weprin, Perry, Titone, Titus|
|Amd SS995-b, 995-a & 995-c, Exec L; ren Art 23 SS860 & 861 to be Art 24 SS1000 & 1001, add Art 23 SS900 - 904, Judy L; amd SS1.20, 190.65 & 340.20, add S60.47, CP L; amd S8-b, Ct Claims Act; add S97-llll, St Fin L|
|Establishes the minimum period of time that forensic samples should be retained by investigating authorities; creates the state commission for the integrity of the criminal justice system, as an independent agency, and provides for such commission's powers and duties; relates to special fictitious name indictments; relates to requests for certain DNA test comparisons; relates to forensic DNA testing; relates to claims for unjust conviction and imprisonment; relates to DNA testing, data collection and record keeping; and relates to DNA testing in felony cases.|
|02/03/2015||referred to codes|
|01/06/2016||referred to codes|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4582 SPONSOR: Lentol (MS)
TITLE OF BILL: An act to amend the executive law, in relation to establishing the minimum period of time that forensic samples should be retained by investigating authorities; in relation to appointments to the commission on forensic science; to amend the judiciary law, in relation to creating the state commission for the integrity of the crim- inal justice system, as an independent agency, and providing for such commission's powers and duties; to amend the criminal procedure law, in relation to special fictitious name indictments; to amend the executive law, in relation to requests for certain DNA test comparisons; to amend the criminal procedure law, in relation to forensic DNA testing; to amend the court of claims act, in relation to claims for unjust conviction and imprisonment; to amend the executive law and the criminal procedure law, in relation to DNA testing, confidentiality, data collection and record keeping; to amend the state finance law, in relation to establishing the DNA evidence fund; in relation to estab- lishing the innocence research project program; and to amend the crimi- nal procedure law, in relation to electronic recordings of interro- gations   PURPOSE OR GENERAL IDEA OF BILL: The bill enacts various provisions of law to help protect against the conviction of innocent persons, and to assure that the perpetrators of crimes are caught and convicted. It requires the state Forensic Science Commission to consider and establish standards regarding the testing, preservation and cataloguing of certain evidence. The bill also estab- lishes a State Commission for the Integrity of the Criminal Justice System, designed to study instances of wrongful conviction in this state and make recommendations to help prevent wrongful convictions from occurring in the future.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill amends section 995-b of the executive law to require the state commission on forensic science to develop a policy to determine the appropriate period of time that DNA samples collected from a crime scenes should be retained, and, procedures for the cataloguing of such evidence by investigating authorities. Section 2 of the bill amends section 995-a of the executive law by increasing the membership of the. state commission on forensic science from 14 to 15 members. Section 3 of the bill requires that two members appointed to the commis- sion be appointed jointly by the temporary president of the senate and the speaker of the assembly, one of whom shall have experience as a crime victim advocate and the other shall be an expert in biomedical ethics. Section 4 of the bill provides for a ten member State Commission for the Integrity of the Criminal Justice System. Members of the commission will serve without salary. Four of the five commission members shall be appointed by the Governor; the fifth member shall be the commissioner of the New York State Division of Criminal Justice. Services. The sixth member of the commission shall be.appointed by the Attorney General of the State of New York. The Chief _Judge of New York's highest court, the Court of Appeals, shall appoint the seventh and eighth members, Finally, the Temporary President of the State Senate and Speaker of the State "Assembly shall each appoint one of the commission's ten members. The commission's mission is to examine instances of wrongful felony convictions in this state, but only in cases where the person has been determined to be innocent of the crime and exonerated. No person may compel a commission investigation as a part of an appeal or court chal- lenge, nor will the commission serve as a. court or tribunal that may overturn a conviction. The commission will not be-required to evaluate a specific number or particular types of cases. The commission may subpoe- na certain records and conduct hearings, although evidentiary privileges available under law may be invoked in any such proceeding. No judge may be compelled to offer testimony or evidence concerning the mental proc- esses involved in arriving at any decision in the case. The commission from time to time will issue reports concerning its investigations, including findings of fact and any relevant recommendations. The bill specifically provides that no report of the commission or portion of a report may be offered in evidence in any court proceeding relating to a matter which is the subject of such a report. Section 5 of the bill amends section 1.20 of the criminal procedure law to allow for special fictitious name indictments. These "John Doe" indictments may be used in DNA cases to stop the clock on the running of statute of limitations where DNA evidence ties an unknown or unidenti- fied person to the commission of the crime. Section 6 of the bill makes a conforming amendment to section 190.65 of the Criminal Procedure Law with respect to such fictitious name indict- ments. Section 7 of the bill amends section 8-b of the court of Claims Act to eliminate certain procedural restrictions that have unfairly prevented persons exonerated and freed after a wrongful conviction from filing suit seeking compensation in the State Court of Claims. Section 8 of the bill amends section 995-b of the executive law to require the commission on forensic science to review the confidentiality safeguards with respect to DNA samples and to issue a report to the legislature in this regard. Section 9 of the bill amends section 995-c of the executive law to regu- late DNA identification indexes that may exist in addition to the state DNA identification index authorized by law and maintained by the state Division of Criminal Justice Services. Section 10 of the bill amends section 995-c of the executive law to require that, upon the destruction of a DNA sample, other than a sample submitted after conviction to the state DNA Identification Index, the person who submitted the sample, or such person's attorney, shall receive a copy of the record of destruction, Further, the bill, provides that DNA samples provided voluntarily to law enforcement shall be destroyed, sealed or returned to the person who provided the sample either at the conclusion of the investigation or five years after such sample was obtained, whichever occurs earlier. Law enforcement agencies in possession of such samples would make the determination as to whether such samples would be returned, destroyed or sealed. Section 11 of the bill amends section 340.20 of the criminal procedure law to provide that the court shall advise a person pleading guilty to a Penal Law misdemeanor that such person will be required to submit a DNA sample for inclusion in the state DNA identification index. Section 12 of the bill amends the state finance law to establish a DNA evidence fund, to assist police and crime laboratories in collecting, testing and analyzing DNA-crime scene evidence. Section 13 of the bill establishes the innocence research project program. Section 14 this bill adds section 60.47 to the criminal procedure law to require the electronic recording of custodial interrogations at places of detention. Numerous exceptions to recording apply, and while the failure to record the statement may result in inadmissibility, the statement may nonetheless be considered if the court determines that certain circumstances existed and the statement was reliable and volun- tary. Section 15 is the effective date.   JUSTIFICATION: This bill maximizes the use of the recent DNA databank expansion by providing for the establishment of statewide standards for the preserva- tion and cataloguing of DNA evidence, to ensure that such evidence will be available when needed for criminal justice purposes. The bill also removes unnecessary procedural barriers that, in several cases, have barred wrongly convicted persons from seeking compensation in the Court of Claims after their exoneration. The bill also takes a significant step toward reducing wrongful convictions by requiring the videotaping of custodial interrogations occurring in police stations in felony cases. Many jurisdictions have implemented such mandatory videotaping policies. This requirement would ensure that statements made by persons in custody are preserved and accurately recorded for use in pre-trial and trial proceedings. It also will help reduce instances of involuntary or inaccurately reported statements, thus aiding the truth-finding process and resulting in more accurate adjudications. The bill also establishes a Commission on the integrity of the Criminal Justice System, to study the errors made in wrongful conviction cases and recommend hew the justice system can be improved to reduce such errors. The new Commission would study instances of wrongful convictions after the criminal courts have acted. Studies made by the Commission would include recommendations to the Governor, the courts and the Legis- lature for improvements in the investigative and adjudicative process. The bill provides specific authority for comparisons between volunteered DNA samples and crime scene. DNA evidence, but regulates the practice so that only crime-related DNA evidence and DNA profiles obtained from persons convicted of crimes may be stored in perpetuity in a government database. Taken together, these measures will expand the use of DNA to convict the guilty, make greater use of DNA. evidence to exonerate the innocent, reduce the incidence of wrongful convictions in this state and improve the operations of the criminal justice system.   PRIOR LEGISLATIVE HISTORY: A.8893A of 2007-08 A.8228 of 2009-10 A.5886 of 2011-12 A.4394-A of 2013-14   FISCAL IMPLICATIONS: Unknown   EFFECTIVE DATE: The bill takes effect immediately, with some exceptions.
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STATE OF NEW YORK ________________________________________________________________________ 4582 2015-2016 Regular Sessions IN ASSEMBLY February 3, 2015 ___________ Introduced by M. of A. LENTOL, SILVER, AUBRY, JAFFEE, FARRELL, WEIN- STEIN, CLARK, PEOPLES-STOKES, WEPRIN, PERRY, TITONE, TITUS -- Multi- Sponsored by -- M. of A. GOTTFRIED, ZEBROWSKI -- read once and referred to the Committee on Codes AN ACT to amend the executive law, in relation to establishing the mini- mum period of time that forensic samples should be retained by inves- tigating authorities; in relation to appointments to the commission on forensic science; to amend the judiciary law, in relation to creating the state commission for the integrity of the criminal justice system, as an independent agency, and providing for such commission's powers and duties; to amend the criminal procedure law, in relation to special fictitious name indictments; to amend the executive law, in relation to requests for certain DNA test comparisons; to amend the criminal procedure law, in relation to forensic DNA testing; to amend the court of claims act, in relation to claims for unjust conviction and imprisonment; to amend the executive law and the criminal proce- dure law, in relation to DNA testing, confidentiality, data collection and record keeping; to amend the state finance law, in relation to establishing the DNA evidence fund; in relation to establishing the innocence research project program; and to amend the criminal proce- dure law, in relation to electronic recordings of interrogations The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subparagraph (ix) of paragraph (b) of subdivision 9 of 2 section 995-b of the executive law, as added by chapter 737 of the laws 3 of 1994, is amended and a new paragraph (c) is added to read as follows: 4 (ix) such policy shall provide for the mutual exchange, use and stor- 5 age of DNA records with the system of DNA identification utilized by the 6 federal bureau of investigation provided that the commission determines 7 that such exchange, use and storage are consistent with the provisions 8 of this article and applicable provisions of law[ .]; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02956-01-5A. 4582 2 1 (c) within one year of the effective date of this paragraph, deter- 2 mine, consistent with this article, the appropriate minimum period of 3 time that forensic samples of blood, tissue and other biological materi- 4 al, obtained in connection with the forensic examination of crime 5 scenes, should be retained by investigating authorities and the time or 6 specified event or events, if any, after which, consistent with the 7 interest of all persons and law enforcement, such samples may be 8 destroyed, and determine standards for the cataloging and maintaining 9 records of such samples. Pending the promulgation of a policy address- 10 ing the issues set forth in this paragraph, the commission may adopt an 11 interim policy mandating the preservation by investigating authorities 12 of forensic samples of blood, tissue and other biological material 13 obtained in connection with the forensic examination of crime scenes. 14 § 2. Subdivision 1 of section 995-a of the executive law, as added by 15 chapter 737 of the laws of 1994, is amended to read as follows: 16 1. There is hereby created in the executive department, the commission 17 on forensic science, which shall consist of the following [ fourteen] 18 sixteen members: (a) the commissioner of the division of criminal 19 justice services who shall be chair of the commission and the commis- 20 sioner of the department of health or his or her designee, who shall 21 serve as an ex-officio member of the commission; 22 (b) [ twelve] fourteen members appointed by the governor. 23 § 3. Paragraph (i) of subdivision 2 of section 995-a of the executive 24 law, as added by chapter 737 of the laws of 1994, is amended, paragraph 25 (j) is relettered paragraph (k) and a new paragraph (j) is added to read 26 as follows: 27 (i) two members shall be members-at-large, one of whom shall be 28 appointed upon the recommendation of the temporary president of the 29 senate, and one of whom shall be appointed upon the recommendation of 30 the speaker of the assembly; [ and] 31 (j) two members shall be jointly appointed by the temporary president 32 of the senate and the speaker of the assembly: one such person shall be 33 a crime victims advocate, and one such person shall be an expert in 34 biomedical ethics; and 35 § 4. Article 23 and sections 860 and 861 of the judiciary law, as 36 renumbered by chapter 840 of the laws of 1983, are renumbered article 24 37 and sections 1000 and 1001 and a new article 23 is added to read as 38 follows: 39 ARTICLE 23 40 STATE COMMISSION FOR THE INTEGRITY 41 OF THE CRIMINAL JUSTICE SYSTEM 42 Section 900. Definition. 43 901. State commission for the integrity of the criminal justice 44 system. 45 902. Purpose and conduct of the commission. 46 903. Powers and duties. 47 904. Use of reports. 48 § 900. Definition. As used in this article, "commission" shall mean 49 the state commission for the integrity of the criminal justice system 50 established pursuant to section nine hundred one of this article. 51 § 901. State commission for the integrity of the criminal justice 52 system. 1. The state commission for the integrity of the criminal 53 justice system is hereby established as an independent agency of the 54 state. The commission shall consist of ten members as follows: 55 (a) the commissioner of criminal justice services; 56 (b) four members appointed by the governor, of whom:A. 4582 3 1 (i) one shall be a representative of a law enforcement agency, 2 (ii) one shall be a representative of the public criminal defense bar 3 or private criminal defense bar who shall be appointed upon the recom- 4 mendation of an organization with more than seven hundred fifty dues 5 paying members representing such public or private defense services, 6 (iii) one shall be a representative of victims rights advocacy or 7 services organizations, and 8 (iv) one shall be a representative of the forensic science field; 9 (c) a member appointed by the attorney general who shall be a repre- 10 sentative of prosecution services; 11 (d) two members appointed by the chief judge of the court of appeals, 12 of whom: 13 (i) one shall be a retired judge or justice of a New York state court 14 of record, and 15 (ii) one shall be a professor of law or a retired full time professor 16 of law who has taught law school courses in criminal law, criminal 17 procedure, constitutional law, or evidence at an accredited post-gradu- 18 ate college in New York state; 19 (e) one member appointed by the temporary president of the senate, who 20 shall be a member of the public-at-large; and 21 (f) one member appointed by the speaker of the assembly, who shall be 22 a member of the public-at-large. 23 2. The commissioner of criminal justice services shall serve an indef- 24 inite term. The members appointed by the governor shall serve a term of 25 four years. The retired judge or justice appointed by the chief judge 26 shall serve a term of three years. The professor of law or retired 27 professor of law appointed by the chief judge shall serve a term of two 28 years. The members appointed by the attorney general, the temporary 29 president of the senate and the speaker of the assembly shall each serve 30 a term of two years. Each of the members of the commission, except the 31 commissioner of criminal justice services, appointed thereafter shall 32 serve a term of five years. Every vacancy occurring prior to the expi- 33 ration of a member's term shall be filled for the remainder of such term 34 in the manner provided for the original appointment to such term. Upon 35 the expiration of the term of a member of the commission, such member 36 shall continue to serve until his or her successor is appointed. 37 3. The commission shall elect a chair from amongst its members by a 38 majority vote of the members thereof. 39 4. No member of the commission shall be disqualified from holding any 40 public office or employment, nor shall he or she forfeit any such office 41 or employment, by reason of his or her appointment pursuant to this 42 section, and the members of the commission shall be required to take and 43 file oaths of office before serving on the commission. 44 5. The commission shall meet at least four times each year at prede- 45 termined times and locations announced in advance, and at such other 46 times as the chair of the commission or four or more members shall 47 determine to be necessary. 48 6. For any action authorized by this article, five members of the 49 commission shall constitute a quorum and, except as otherwise provided 50 in subdivisions three and five of this section, the concurrence of six 51 members of the commission shall be necessary. 52 7. The members of the commission shall serve without salary or other 53 compensation, but shall be entitled to receive actual and necessary 54 expenses incurred in the discharge of their duties pursuant to this 55 article.A. 4582 4 1 § 902. Purpose and conduct of the commission. The commission shall 2 review any criminal or juvenile case involving a wrongful conviction and 3 recommend reforms to lessen the likelihood of a similar wrongful 4 conviction occurring in the future. 5 Whenever a person who has been convicted of a crime or adjudicated a 6 youthful offender or juvenile delinquent is subsequently determined to 7 be innocent of such crime or offense and exonerated, the commission 8 shall conduct an investigation, hold hearings on and make findings of 9 fact regarding the wrongful conviction in order to determine the cause 10 or causes of the wrongful conviction. 11 Upon the completion of such process, the commission, within sixty 12 days, shall issue a preliminary written report of its findings of fact 13 and conclusions, and any recommendations to prevent wrongful convictions 14 from occurring under similar circumstances in the future. Within one 15 hundred twenty days after issuing such preliminary report, the commis- 16 sion shall issue its report and recommendations concerning the matter. 17 Such report and recommendations shall be made available to the public, 18 and shall be delivered to the governor, attorney general, chief judge of 19 the court of appeals, temporary president of the senate, speaker of the 20 assembly, and to any governmental unit or agency that the commission 21 finds may have been involved in the investigation or adjudication of the 22 wrongful conviction. The commission shall also make available an annual 23 report detailing, at a minimum, the number of cases accepted for formal 24 and informal investigation, the number of completed investigations and 25 the status of on-going or pending investigations. 26 § 903. Powers and duties. The commission shall have the powers and 27 duties to: 28 1. establish its own reasonable rules and procedures concerning the 29 conduct of its meetings and other affairs related to implementing the 30 provisions of this article; 31 2. employ and remove such officers, investigators and employees as it 32 may deem necessary for the performance of its powers and duties pursuant 33 to this article, and fix their compensation within the amounts made 34 available therefor; 35 3. conduct investigations and hearings, administer oaths or affirma- 36 tions, subpoena witnesses, compel their attendance, examine them under 37 oath or affirmation, require production of any books, records, documents 38 or other evidence that it may deem relevant or material to an investi- 39 gation, and may designate any of its members, officers or investigators 40 to exercise any such powers; provided, however, nothing in this subdivi- 41 sion shall authorize the issuance of a subpoena or compelled questioning 42 of the trial court judge or any appellate court judge concerning the 43 judge's mental processes in arriving at any decision in a case; 44 4. request and receive from any court, department, division, board, 45 bureau, commission or other agency of the state or a political subdivi- 46 sion thereof or any public authority such assistance, information, 47 records and data as will enable it to properly carry out its powers and 48 duties; 49 5. issue preliminary reports on any investigation conducted pursuant 50 to this article, which preliminary reports shall include findings of 51 fact and recommendations, and invite any party directly involved in the 52 wrongful conviction, which is the subject of the report, to submit a 53 reply within sixty days to the commission concerning the findings of 54 fact and recommendations in the report. Any such reply shall be made 55 available by the commission, together with any response by the commis- 56 sion thereto, to the parties listed in section nine hundred two of thisA. 4582 5 1 article as part of the commission's report and recommendations concern- 2 ing the matter; and 3 6. do all other things necessary and convenient to carry out the 4 provisions of this article. 5 § 904. Use of reports. No preliminary report, report or portion there- 6 of issued pursuant to this article shall be admitted into evidence or 7 used in any civil or criminal cause of action relating to a matter which 8 is the subject of such report. 9 § 5. Section 1.20 of the criminal procedure law is amended by adding a 10 new subdivision 44 to read as follows: 11 44. "Special fictitious name indictment" means an indictment of a 12 person whose name is unknown but whose identity is established to the 13 satisfaction of a grand jury pursuant to subdivision one of section 14 190.65 of this chapter by means of forensic deoxyribonucleic acid (DNA) 15 testing of evidence. The caption of a special fictitious name indictment 16 shall include a fictitious name, such as "John Doe" or "Jane Doe", in 17 place of the name of the defendant whose true name is unknown. 18 § 6. Subdivision 3 of section 190.65 of the criminal procedure law is 19 amended to read as follows: 20 3. Upon voting to indict a person, a grand jury must, through its 21 foreman or acting foreman, file an indictment with the court by which it 22 was impaneled. When the name of the indicted person is unknown but his 23 or her identity is established to the satisfaction of the grand jury 24 pursuant to subdivision one of this section by means of forensic deoxy- 25 ribonucleic acid (DNA) testing of evidence, then such indictment shall 26 be filed by the grand jury with such court as a special fictitious name 27 indictment. The authority to file a special fictitious name indictment 28 pursuant to this subdivision shall be in addition to any other authority 29 in law for the filing of an indictment when the name of an indicted 30 person is unknown. 31 § 7. Subdivisions 3 and 5 of section 8-b of the court of claims act, 32 as added by chapter 1009 of the laws of 1984, are amended to read as 33 follows: 34 3. In order to present the claim for unjust conviction and imprison- 35 ment, claimant must establish by documentary evidence that: 36 (a) he has been convicted of one or more felonies or misdemeanors 37 against the state and subsequently sentenced to a term of imprisonment, 38 and has served all or any part of the sentence; 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] 45 judgment of conviction was reversed or vacated[ , and the accusatory46 instrument was dismissed,] on any of the following grounds: (A) para- 47 graph (a), (b), (c), (e), (f) or (g) of subdivision one of section 48 440.10 of the criminal procedure law; or (B) subdivision one (where 49 based upon grounds set forth in item (A) [ hereof] of this subparagraph), 50 two, three (where the count dismissed was the sole basis for the impri- 51 sonment complained of) or five of section 470.20 of the criminal proce- 52 dure law; or (C) comparable provisions of the former code of criminal 53 procedure or subsequent law; or (D) the statute, or application thereof, 54 on which the accusatory instrument was based violated the constitution 55 of the United States or the state of New York; or (E) the claimant's 56 conviction was vacated under another section of law not enumerated inA. 4582 6 1 items (A), (B), (C) and (D) of this subparagraph, but whose application 2 to claimant's conviction involved facts and circumstances that directly 3 support claimant's assertion of innocence; and provided that, in cases 4 where the conviction may have been vacated on more than one ground, 5 including one of the grounds enumerated in items (A), (B), (C) and (D) 6 of this subparagraph, the court of claims shall not be bound by a deci- 7 sion of the criminal court vacating the conviction based only on a 8 ground not enumerated in items (A), (B), (C) and (D) of this subpara- 9 graph; and 10 (c) his claim is not time-barred by the provisions of subdivision 11 seven of this section. 12 5. In order to obtain a judgment in his favor, claimant must prove by 13 clear and convincing evidence that: 14 (a) he has been convicted of one or more felonies or misdemeanors 15 against the state and subsequently sentenced to a term of imprisonment, 16 and has served all or any part of the sentence; and 17 (b) (i) he has been pardoned upon the ground of innocence of the crime 18 or crimes for which he was sentenced and which are the grounds for the 19 complaint; or (ii) his judgment of conviction was reversed or vacated, 20 and the accusatory instrument dismissed or, if a new trial was ordered, 21 either he was found not guilty at the new trial or he was not retried 22 and the accusatory instrument dismissed; provided that the [ judgement] 23 judgment of conviction was reversed or vacated[ , and the accusatory24 instrument was dismissed,] on any of the following grounds: (A) para- 25 graph (a), (b), (c), (e), (f) [ or], (g) or (g-1) of subdivision one of 26 section 440.10 of the criminal procedure law; or (B) subdivision one 27 (where based upon grounds set forth in item (A) [ hereof] of this subpar- 28 agraph), two, three (where the count dismissed was the sole basis for 29 the imprisonment complained of) or five of section 470.20 of the crimi- 30 nal procedure law; or (C) comparable provisions of the former code of 31 criminal procedure or subsequent law; or (D) the statute, or application 32 thereof, on which the accusatory instrument was based violated the 33 constitution of the United States or the state of New York; or (E) the 34 claimant's conviction was vacated under another section of law not 35 enumerated in items (A), (B), (C) and (D) of this subparagraph, but 36 whose application to claimant's conviction involved facts and circum- 37 stances that directly support claimant's assertion of innocence; and 38 provided that, in cases where the conviction may have been vacated on 39 more than one ground, including one of the grounds enumerated in items 40 (A), (B), (C) and (D) of this subparagraph, the court of claims shall 41 not be bound by a decision of the criminal court vacating the conviction 42 based only on a ground not enumerated in items (A), (B), (C) and (D) of 43 this subparagraph; and 44 (c) he did not commit any of the acts charged in the accusatory 45 instrument or his acts or omissions charged in the accusatory instrument 46 did not constitute a felony or misdemeanor against the state, provided 47 that, where one indictment contains multiple counts arising from sepa- 48 rate complaints or incidents, the court shall consider any claim related 49 to specified counts in the indictment arising out of only one of the 50 complaints or incidents; and 51 (d) he did not by his own conduct cause or bring about his conviction. 52 § 8. Section 995-b of the executive law is amended by adding a new 53 subdivision 14 to read as follows: 54 14. The commission shall review the confidentiality safeguards which 55 are maintained with respect to DNA samples before and after information 56 from such samples is encoded into the state DNA identification index andA. 4582 7 1 shall determine whether any additional confidentiality safeguards are 2 necessary with respect to such samples. The commission shall also issue 3 a report to the majority leader of the senate and the speaker of the 4 assembly which describes how such samples are retained and the reasons 5 for maintaining such samples, following the encoding of information from 6 such samples into the state DNA identification index. Such report shall 7 also recommend whether a program to destroy any such samples, following 8 the encoding of information from such samples into the state DNA iden- 9 tification index, should be initiated or whether, alternatively, such 10 samples shall continue to be maintained. 11 § 9. Subdivision 2 of section 995-c of the executive law, as added by 12 chapter 737 of the laws of 1994, is amended to read as follows: 13 2. (a) Following the review and approval of the plan by the DNA 14 subcommittee and the commission and the filing of such plan with the 15 speaker of the assembly and the temporary president of the senate, the 16 commissioner of criminal justice services is hereby authorized to estab- 17 lish a computerized state DNA identification index pursuant to the 18 provisions of this article. No other DNA identification index or compi- 19 lation of DNA identification profiles may be maintained in this state 20 provided, however, that this prohibition shall not be interpreted to 21 prohibit any such index or compilation of DNA information obtained from 22 crime scene samples or concerning missing persons. 23 (b) In accordance with subdivision one of this section and this subdi- 24 vision, and in a manner consistent with this article, the commission may 25 authorize the inclusion of DNA records derived from forensic examination 26 of crime scenes in the state DNA identification index. 27 § 10. Paragraph (b) of subdivision 9 of section 995-c of the execu- 28 tive law, as added by chapter 524 of the laws of 2002, is amended and 29 two new paragraphs (c) and (d) are added to read as follows: 30 (b) As prescribed in this paragraph, if an individual, either volun- 31 tarily or pursuant to a warrant or order of a court, has provided a 32 sample for DNA testing in connection with the investigation or prose- 33 cution of a crime and (i) no criminal action against the individual 34 relating to such crime was commenced within the period specified by 35 section 30.10 of the criminal procedure law, or (ii) a criminal action 36 was commenced against the individual relating to such crime which 37 resulted in a complete acquittal, or a dismissal and the matter will not 38 be tried or retried, or (iii) a criminal action against the individual 39 relating to such crime resulted in a conviction that was subsequently 40 reversed or vacated, or for which the individual was granted a pardon 41 pursuant to article two-A of this chapter, such individual may apply to 42 the supreme court or the court in which the judgment of conviction was 43 originally entered for an order directing the expungement of any DNA 44 record and any samples, analyses, or other documents relating to the DNA 45 testing of such individual in connection with the investigation or pros- 46 ecution of such crime. A copy of such application shall be served on the 47 district attorney and an order directing expungement may be granted if 48 the court finds that the individual has satisfied the conditions of one 49 of the subparagraphs of this paragraph; that if a judgment of conviction 50 was reversed or vacated, all appeals relating thereto have been 51 concluded and the individual will not be retried, or, if a retrial has 52 occurred, the trier of fact has rendered a verdict of complete acquit- 53 tal, and that expungement will not adversely affect the investigation or 54 prosecution of some other person or persons for the crime. Nothing in 55 this paragraph shall prevent a court, at an earlier time, from ordering 56 expungement in the manner specified in this paragraph in the interestsA. 4582 8 1 of justice, in response to an application made on notice to the district 2 attorney by the person who provided such DNA sample. If an order direct- 3 ing the expungement of any DNA record and any samples, analyses or other 4 documents relating to the DNA testing of such individual is issued, such 5 record and any samples, analyses, or other documents shall, at the 6 discretion of the possessor thereof, be destroyed or returned to such 7 individual or to the attorney who represented him or her in connection 8 with the application for the order of expungement. The person destroying 9 or returning such record, samples, analyses and other documents shall 10 maintain a record certifying the date, time and manner of destruction or 11 return and identifying the person or persons destroying or returning 12 same. The person destroying or returning same shall send a copy of this 13 record to the person who submitted the sample or to the attorney who 14 represented him or her in connection with the application for the order 15 of expungement. 16 (c) (i) Except as provided in paragraph (d) of this subdivision, if an 17 individual has provided a sample for DNA testing in connection with the 18 investigation or prosecution of a crime, other than in response to a 19 demand authorized pursuant to subdivisions one, two and three of this 20 section, or if a sample for DNA testing has otherwise come into the 21 custody or possession of a law enforcement agency or an agent thereof, 22 and the DNA profile derived from such sample does not match a DNA 23 profile derived from crime scene evidence developed in connection with 24 the investigation or prosecution of a criminal act or acts, every 25 record, sample, analysis and other document relating to the DNA testing 26 of such sample shall, at the discretion of the possessor thereof, be 27 either returned to the individual who provided such sample, destroyed or 28 maintained for the duration of the investigation, prosecution or adjudi- 29 cation of such criminal acts exclusively for use with respect to the 30 investigation, prosecution and/or adjudication of the criminal charges 31 for which such sample was obtained or with respect to any other criminal 32 acts which the investigating agency has reason to believe may be linked 33 to such sample; provided, however, that no later than five years after 34 such sample is obtained or when the investigation or prosecution of such 35 crime has concluded, whichever first occurs, such records, samples, 36 analyses and other documents shall, at the discretion of the possessor 37 thereof, be returned to such individual or destroyed, or sealed in a 38 manner consistent with paragraph (c) and subparagraph (ii), (iv) or (v) 39 of paragraph (d) of subdivision one of section 160.55 of the criminal 40 procedure law. 41 (ii) The person returning, destroying or sealing such record, samples, 42 analyses or other documents in accordance with this paragraph shall 43 maintain a record certifying the date and manner of such return, 44 destruction or sealing and identifying the person or persons returning, 45 destroying or sealing same. The person returning, destroying or sealing 46 same shall send a copy of this record to the person who submitted the 47 sample. 48 (iii) This paragraph shall supplement and not supplant any applicable 49 provision of paragraph (b) of this subdivision. This paragraph shall not 50 apply to DNA records, samples, analyses and other documents obtained 51 from the forensic examination of crime scene evidence, where the DNA 52 profile developed from such crime scene evidence does not match the DNA 53 profile of a known person. 54 (d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of 55 this subdivision, a DNA record which was obtained from a sample provided 56 pursuant to paragraph (a) or (b) of this subdivision prior to the effec-A. 4582 9 1 tive date of this paragraph need not be destroyed, returned or sealed, 2 and may be included in the state DNA identification index established 3 pursuant to this article, when, as of the effective date of this para- 4 graph, the person who provided such sample stands convicted of a felony 5 or misdemeanor defined in section nine hundred ninety-five of this arti- 6 cle. All laws governing DNA records included in the state DNA identifi- 7 cation index shall apply to any DNA record included in the state DNA 8 identification index pursuant to this paragraph. 9 § 11. Section 340.20 of the criminal procedure law is amended by 10 adding a new subdivision 5 to read as follows: 11 5. Prior to accepting a defendant's plea of guilty to a count or 12 counts of an information charging a misdemeanor, as defined in paragraph 13 (a) of subdivision two of section 55.10 of the penal law and included in 14 the definition of designated offender pursuant to subdivision seven of 15 section nine hundred ninety-five of the executive law, the court shall 16 advise the defendant that upon the conviction for such misdemeanor he or 17 she will be required to provide a sample appropriate for DNA testing for 18 inclusion in the state DNA identification index pursuant to article 19 forty-nine-B of the executive law. The court shall affirm on the record 20 or in writing that the defendant has been given the notice required by 21 this subdivision. The failure of a court to advise the defendant pursu- 22 ant to this subdivision or to otherwise comply with the provisions of 23 this subdivision shall not be deemed to affect the voluntariness of a 24 plea of guilty or the validity of a conviction. 25 § 12. The state finance law is amended by adding a new section 97-llll 26 to read as follows: 27 § 97-llll. Assistance to police and crime laboratories: DNA evidence 28 fund. 1. There is hereby created in the custody of the state comp- 29 troller a special fund to be known as the "assistance to police and 30 crime laboratories: DNA evidence fund". 31 2. Such fund shall consist of all monies appropriated for the purpose 32 of such fund, all other monies credited or transferred to such fund 33 pursuant to law, all monies required by the provisions of this section 34 or any other law to be paid into or credited to such account, and all 35 monies received by the account or donated to it. 36 3. Monies of such fund shall be available for appropriation and allo- 37 cation to the division of state police, to local police agencies, and to 38 forensic DNA laboratories in this state, as defined in subdivision two 39 of section nine hundred ninety-five of the executive law, to assist such 40 entities in effectively collecting, testing and analyzing forensic DNA 41 crime scene evidence pursuant to article forty-nine-B of the executive 42 law. Fifty percent of such funds shall be made available for appropri- 43 ation or allocation by the commissioner of criminal justice services for 44 the purpose of funding an innocence research project program in this 45 state. 46 4. Monies of such fund shall be paid out on the audit and warrant of 47 the comptroller on vouchers certified or approved by the commissioner of 48 criminal justice services. 49 § 13. Innocence research project program. 1. There is hereby estab- 50 lished in this state an innocence research project program. Funding 51 shall be made available for the purposes of such program to up to three 52 not-for-profit organizations by the commissioner of criminal justice 53 services pursuant to subdivisions 3 and 4 of section 97-llll of the 54 state finance law. 55 2. The innocence research project program shall review and study cases 56 in which there appears to be a reasonable possibility that a personA. 4582 10 1 charged with or convicted of a crime in this state may be innocent of 2 the crime or crimes charged. Such program may provide legal and other 3 expert assistance, and may also provide relevant training, including but 4 not limited to training in the use of DNA evidence for forensic iden- 5 tification purposes, to attorneys engaged in the defense of criminal 6 cases. 7 3. Each not-for-profit organization receiving funding for such program 8 shall file an annual report with the commissioner of criminal justice 9 services summarizing the activities of the program during the previous 10 year. Such report shall be filed within one year after such organization 11 first receives funding under such program, and annually thereafter for 12 so long as the program receives such funding. 13 4. Before providing assistance to any individual believed to be actu- 14 ally innocent of the crime or crimes charged, the organization-based 15 coordinator of such program shall determine whether such individual is 16 financially able to pay for the proposed services or assistance to be 17 provided. If such individual is able to financially afford to pay for 18 such services or assistance, such coordinator shall request and receive 19 such payment or payments on behalf of the program from such individual. 20 All monies received from individuals pursuant to this subdivision shall 21 be promptly forwarded by such coordinator to the state comptroller, for 22 deposit into the "assistance to police and crime laboratories: DNA 23 evidence fund" established pursuant to section 97-llll of the state 24 finance law. 25 § 14. The criminal procedure law is amended by adding a new section 26 60.47 to read as follows: 27 § 60.47 Rules of evidence; electronic recording of statements of defend- 28 ants. 29 1. Definitions. As used in this section: 30 (a) "Electronic recording" means a contemporaneous video and audio 31 recording, or where video recording is impracticable, a contemporaneous 32 audio recording. 33 (b) "Custodial interrogation" means any interrogation which is 34 conducted in a place of detention and during which a reasonable person 35 in the subject's position would consider himself or herself to be in 36 custody. 37 (c) "Place of detention" means a police station, correctional facili- 38 ty, holding facility for prisoners, or other government facility where 39 persons are held in detention in connection with criminal charges which 40 have been or may be filed against them. 41 2. During the prosecution of a felony, an oral, written, or sign 42 language statement of a defendant made during a custodial interrogation 43 shall be presumed inadmissible as evidence against a defendant in a 44 criminal proceeding unless an electronic recording is made of the custo- 45 dial interrogation in its entirety and the recording is substantially 46 accurate and not intentionally altered. 47 3. If the court finds that the defendant was subjected to a custodial 48 interrogation in violation of subdivision two of this section, then any 49 statements made by the defendant following that custodial interrogation, 50 even if otherwise in compliance with this section, are also presumed 51 inadmissible. 52 4. The people may rebut a presumption of inadmissibility through clear 53 and convincing evidence that the statement was both voluntary and reli- 54 able and: 55 (a) exigent circumstances existed necessitating interrogation at a 56 place in a location other than a police station, correctional facility,A. 4582 11 1 or holding facility for prisoners and where the requisite recording 2 equipment was not readily available; 3 (b) the accused refused to have his or her interrogation electron- 4 ically recorded, and the refusal itself was electronically recorded; or 5 (c) the failure to electronically record an entire interrogation was 6 the result of equipment failure and obtaining replacement equipment was 7 not feasible. 8 5. Nothing in this section precludes the admission of: 9 (a) a statement made by the accused in open court at his or her trial, 10 before grand jury, or at a preliminary hearing; 11 (b) a spontaneous statement that is not made in response to interro- 12 gation; 13 (c) a statement made after questioning that is routinely asked during 14 the processing of the arrest of the suspect; 15 (d) a statement made during a custodial interrogation that is 16 conducted out-of-state; 17 (e) a statement obtained by a federal law enforcement officer in a 18 federal place of detention; 19 (f) a statement given at a time when the interrogators are unaware 20 that a felony has in fact occurred; or 21 (g) a statement, otherwise inadmissible under this section, that is 22 used only for impeachment and not as substantive evidence. 23 6. The people shall not destroy or alter any electronic recording made 24 of a custodial interrogation until such time as the defendant's 25 conviction for any offense relating to the interrogation is final and 26 all direct and habeas corpus appeals are exhausted, or the prosecution 27 of that offense is barred by law. 28 § 15. This act shall take effect immediately; provided, however, that: 29 (a) sections nine and ten of this act shall take effect on the one 30 hundred twentieth day after it shall have become a law; 31 (b) the amendments to section 340.20 of the criminal procedure law 32 made by section eleven of this act shall apply to pleas of guilty to a 33 count or counts of an information entered 60 days or more after the 34 effective date of this act; and 35 (c) section fourteen of this act shall take effect on the ninetieth 36 day after it shall have become a law, and shall apply to any criminal 37 proceeding commenced on and after such date.