A04582 Summary:

BILL NOA04582
 
SAME ASNo Same As
 
SPONSORLentol
 
COSPNSRAubry, Jaffee, Farrell, Weinstein, Peoples-Stokes, Weprin, Perry, Titone, Titus
 
MLTSPNSRGottfried, 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 NOA04582
 
02/03/2015referred to codes
01/06/2016referred to codes
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A04582 Memo:

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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A04582 Text:



 
                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.
                                                                   LBD02956-01-5

        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    §  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  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    § 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 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    § 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    § 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  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    §  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  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    §  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.
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