A04582 Summary:

BILL NO    A04582 

SAME AS    No same as 

SPONSOR    Lentol (MS)

COSPNSR    Silver, Aubry, Jaffee, Farrell, Weinstein, Clark, Peoples-Stokes,
           Weprin, Perry, Titone, Titus

MLTSPNSR   Gottfried, Zebrowski

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.
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A04582 Actions:

BILL NO    A04582 

02/03/2015 referred to codes
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A04582 Votes:

There are no votes for this bill in this legislative session.
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A04582 Memo:

BILL NUMBER:A4582

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
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  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  establishing the innocence research project program;
and to amend the criminal procedure law,  in  relation  to  electronic
recordings of interrogations

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  establishes 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
commission  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
challenge,  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 subpoena 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 processes 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
unidentified 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
indictments.

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
regulate 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
voluntary.

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
preservation 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 Legislature 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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A04582 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         4582

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                   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.
                                                                  LBD02956-01-5
       A. 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    S  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    S 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    S 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    S  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    S  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    S 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    S  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  THIS
       A. 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    S 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    S 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    S 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    S  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 accusatory
   46  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  IN
       A. 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 accusatory
   24  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    S 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 AND
       A. 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    S 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    S 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  INTERESTS
       A. 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    S  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    S 12. The state finance law is amended by adding a new section 97-llll
   26  to read as follows:
   27    S  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    S  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  person
       A. 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    S  14.  The  criminal procedure law is amended by adding a new section
   26  60.47 to read as follows:
   27  S 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    S 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.
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