STATE OF NEW YORK
________________________________________________________________________
10057
IN ASSEMBLY
April 29, 2022
___________
Introduced by M. of A. DURSO -- read once and referred to the Committee
on Codes
AN ACT to amend the executive law and the criminal procedure law, in
relation to requiring individuals arrested in connection with certain
felonies to submit a DNA sample
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 995 of the executive law is amended by adding a new
2 subdivision 7-a to read as follows:
3 7-a. "Felony arrestee" means a person arrested and charged with any
4 one or more of the following felonies, or an attempt thereof where such
5 attempt is a felony offense, as defined in sections 130.25, 130.30,
6 130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67, 130.70,
7 130.75, 130.80, 130.95 and 130.96 of the penal law, relating to sex
8 offenses; and the victim is less than thirteen years old.
9 § 2. Subdivision 3 of section 995-c of the executive law is amended by
10 adding four new paragraphs (c), (d), (e) and (f) to read as follows:
11 (c) A felony arrestee shall be required to provide a sample appropri-
12 ate for DNA testing upon his or her arrest, unless such felony arrestee
13 has previously provided a sample that is included in the state DNA iden-
14 tification index.
15 (d) A public servant to whose custody a designated offender or felony
16 arrestee who has not yet provided a DNA sample has been committed shall
17 seek an order of the court to collect such sample if the offender, after
18 written or oral request, refuses to provide such sample.
19 (e) The detention, arrest, indictment or conviction of a person based
20 upon DNA records contained in the state DNA identification index shall
21 not be invalidated if it is later determined that the division of crimi-
22 nal justice services inadvertently, but in good faith, collected or
23 placed the person's DNA sample in the index.
24 (f) The commissioner of criminal justice services shall promulgate
25 rules and regulations governing the periodic review of the DNA identifi-
26 cation index to determine whether or not the index contains DNA profiles
27 that should not be in the index, including the steps necessary to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10632-01-1
A. 10057 2
1 expunge any profiles which the division of criminal justice services
2 determines should not be in the index.
3 § 3. Subdivision 9 of section 995-c of the executive law, as amended
4 by chapter 524 of the laws of 2002, is amended to read as follows:
5 9. (a) Upon receipt of notification of a reversal or a vacatur of a
6 conviction, or of the granting of a pardon pursuant to article two-A of
7 this chapter, of an individual whose DNA record has been stored in the
8 state DNA identification index in accordance with this article by the
9 division of criminal justice services, the DNA record shall be expunged
10 from the state DNA identification index, and such individual may apply
11 to the court in which the judgment of conviction was originally entered
12 for an order directing the expungement of any DNA record and any
13 samples, analyses, or other documents relating to the DNA testing of
14 such individual in connection with the investigation or prosecution of
15 the crime which resulted in the conviction that was reversed or vacated
16 or for which the pardon was granted. A copy of such application shall be
17 served on the district attorney and an order directing expungement may
18 be granted if the court finds that all appeals relating to the
19 conviction have been concluded; that such individual will not be
20 retried, or, if a retrial has occurred, the trier of fact has rendered a
21 verdict of complete acquittal, and that expungement will not adversely
22 affect the investigation or prosecution of some other person or persons
23 for the crime. The division shall, by rule or regulation, prescribe
24 procedures to ensure that the DNA record in the state DNA identification
25 index, and any samples, analyses, or other documents relating to such
26 record, whether in the possession of the division, or any law enforce-
27 ment or police agency, or any forensic DNA laboratory, including any
28 duplicates or copies thereof, at the discretion of the possessor there-
29 of, are either destroyed or returned to such individual, or to the
30 attorney who represented him or her at the time such reversal, vacatur
31 or pardon, was granted. The commissioner shall also adopt by rule and
32 regulation a procedure for the expungement in other appropriate circum-
33 stances of DNA records contained in the index.
34 (b) As prescribed in this paragraph, if an individual, either volun-
35 tarily, pursuant to paragraph (c) of subdivision three of this section,
36 or pursuant to a warrant or order of a court, has provided a sample for
37 DNA testing in connection with the investigation, arrest or prosecution
38 of a crime and (i) no criminal action against the individual relating to
39 such crime was commenced within the period specified by section 30.10 of
40 the criminal procedure law, or (ii) a criminal action was commenced
41 against the individual relating to such crime which resulted in a
42 complete acquittal, or (iii) a criminal action was commenced against the
43 individual relating to such crime [resulted in a conviction that was
44 subsequently reversed or vacated, or for which the individual was grant-
45 ed a pardon pursuant to article two-A of this chapter, such individual
46 may apply to the supreme court or the court in which the judgment of
47 conviction was originally entered for an order directing the expungement
48 of any DNA record and any samples, analyses, or other documents relating
49 to the DNA testing of such individual in connection with the investi-
50 gation or prosecution of such crime. A copy of such application shall be
51 served on the district attorney and an order directing expungement may
52 be granted if the court finds that the individual has satisfied the
53 conditions of one of the subparagraphs of this paragraph; that if a
54 judgment of conviction was reversed or vacated, all appeals relating
55 thereto have been concluded and the individual will not be retried, or,
56 if a retrial has occurred, the trier of fact has rendered a verdict of
A. 10057 3
1 complete acquittal, and that expungement will not adversely affect the
2 investigation or prosecution of some other person or persons for the
3 crime. If an order directing the expungement of any DNA record and any
4 samples, analyses or other documents relating to the DNA testing of such
5 individual is issued] which was resolved by a dismissal, successful
6 completion of a pre-prosecution diversion program, or conditional
7 discharge or misdemeanor conviction that did not require DNA collection
8 pursuant to section nine hundred ninety-five of this article, the DNA
9 record shall be expunged from the state DNA identification index. An
10 individual may request expungement of any DNA record and any samples,
11 analyses or other documents relating to the DNA testing of such individ-
12 ual by providing the following materials to the division of criminal
13 justice services:
14 (1) a written request for expungement of the sample and DNA records;
15 and
16 (2) a certified copy of the dismissal, successful completion of a
17 pre-prosecution diversion program or a conditional discharge, misdemea-
18 nor conviction or acquittal; and
19 (3) a sworn statement from the district attorney's office with juris-
20 diction over the matter that: the case was dismissed; a pre-prosecution
21 diversion program or conditional discharge, misdemeanor conviction
22 excluded from DNA collection pursuant to section nine hundred ninety-
23 five of this article or acquittal occurred; no felony charges arose out
24 of the arrest; or no criminal action against the individual relating to
25 such crime was commenced within the period specified by section 30.10 of
26 the criminal procedure law; and that expungement will not adversely
27 affect the investigation or prosecution of some other person or persons
28 for the crime.
29 (c) If expungement is warranted pursuant to paragraph (a) or (b) of
30 this subdivision, such record and any samples, analyses, or other docu-
31 ments shall, at the discretion of the possessor thereof, be destroyed or
32 returned to such individual or to the attorney who represented him or
33 her in the criminal action or in connection with the [application for
34 the order of] request for expungement.
35 (d) No expungement shall be granted where an individual has a prior
36 conviction requiring a DNA sample, or a pending felony charge for which
37 collection of a sample is authorized pursuant to the provisions of para-
38 graph (c) of subdivision three of this section.
39 § 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
40 amended by section 16 of part WWW of chapter 59 of the laws of 2017, is
41 amended to read as follows:
42 6. Before bringing a defendant arrested pursuant to a warrant before
43 the local criminal court or youth part of a superior court in which such
44 warrant is returnable, a police officer must without unnecessary delay
45 perform all fingerprinting and other preliminary police duties required
46 in the particular case. In any case in which the defendant is not
47 brought by a police officer before such court but, following his arrest
48 in another county for an offense specified in subdivision one of section
49 160.10 of this title, is released by a local criminal court of such
50 other county on his own recognizance or on bail for his appearance on a
51 specified date before the local criminal court before which the warrant
52 is returnable, the latter court must, upon arraignment of the defendant
53 before it, direct that he be fingerprinted and have a sample appropriate
54 for DNA testing taken, if required pursuant to section nine hundred
55 ninety-five-c of the executive law, by the appropriate officer or agen-
A. 10057 4
1 cy, and that he appear at an appropriate designated time and place for
2 such purpose.
3 § 5. Section 130.60 of the criminal procedure law, as amended by chap-
4 ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of
5 the laws of 1993, is amended to read as follows:
6 § 130.60 Summons; fingerprinting of defendant.
7 1. Upon the arraignment of a defendant whose court attendance has been
8 secured by the issuance and service of a summons, based upon an indict-
9 ment, a prosecutor's information or upon an information, felony
10 complaint or misdemeanor complaint filed by a complainant who is a
11 police officer, the court must, if an offense charged in the accusatory
12 instrument is one specified in subdivision one of section 160.10 of this
13 title, direct that the defendant be fingerprinted by the appropriate
14 police officer or agency, and that he or she appear at an appropriate
15 designated time and place for such purpose. If an offense charged in
16 the accusatory instrument is one specified in subdivision seven-a of
17 section nine hundred ninety-five of the executive law, the court must
18 direct that a sample appropriate for DNA testing be taken, and that he
19 or she appear at an appropriate designated time and place for such
20 purpose.
21 2. Upon the arraignment of a defendant whose court attendance has been
22 secured by the issuance and service of a summons based upon an informa-
23 tion or misdemeanor complaint filed by a complainant who is not a police
24 officer, and who has not previously been fingerprinted or from whom a
25 DNA sample has not previously been taken and was required pursuant to
26 section nine hundred ninety-five-c of the executive law, the court may,
27 if it finds reasonable cause to believe that the defendant has committed
28 an offense specified in subdivision one of section 160.10 of this title,
29 direct that the defendant be fingerprinted and/or have a sample appro-
30 priate for DNA testing taken, if required by section nine hundred nine-
31 ty-five-c of the executive law, by the appropriate police officer or
32 agency and that he appear at an appropriate designated time and place
33 for such purpose. A defendant whose court appearance has been secured by
34 the issuance and service of a criminal summons based upon a misdemeanor
35 complaint or information filed by a complainant who is not a police
36 officer, must be directed by the court, upon conviction of the defend-
37 ant, to be fingerprinted and have a sample appropriate for DNA testing
38 taken, if required by section nine hundred ninety-five-c of the execu-
39 tive law, by the appropriate police officer or agency and the court must
40 also direct that the defendant appear at an appropriate designated time
41 and place for such purpose, if the defendant is convicted of any offense
42 specified in subdivision one of section 160.10 of this title.
43 § 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
44 amended by chapter 762 of the laws of 1971, is amended to read as
45 follows:
46 5. Before service of an appearance ticket upon an arrested person
47 pursuant to subdivision two or three of this section, the issuing police
48 officer must, if the offense designated in such appearance ticket is one
49 of those specified in subdivision one of section 160.10 of this title,
50 cause such person to be fingerprinted and have a sample appropriate for
51 DNA testing taken, if required by section nine hundred ninety-five-c of
52 the executive law, in the same manner as would be required were no
53 appearance ticket to be issued or served.
54 § 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
55 amended by section 21 of part WWW of chapter 59 of the laws of 2017, is
56 amended to read as follows:
A. 10057 5
1 2. Upon arresting a person without a warrant, a peace officer, except
2 as otherwise provided in subdivision three or three-a of this section,
3 must without unnecessary delay bring him or cause him to be brought
4 before a local criminal court, as provided in section 100.55 and subdi-
5 vision one of section 140.20 of this title, and must without unnecessary
6 delay file or cause to be filed therewith an appropriate accusatory
7 instrument. If the offense which is the subject of the arrest is one of
8 those specified in subdivision one of section 160.10 of this title, the
9 arrested person must be fingerprinted and photographed, and have a
10 sample appropriate for DNA testing taken if required by section nine
11 hundred ninety-five-c of the executive law, as therein provided. In
12 order to execute the required post-arrest functions, such arresting
13 peace officer may perform such functions himself or he may enlist the
14 aid of a police officer for the performance thereof in the manner
15 provided in subdivision one of section 140.20 of this article.
16 § 8. Section 150.70 of the criminal procedure law, as amended by chap-
17 ter 762 of the laws of 1971, is amended to read as follows:
18 § 150.70 Appearance ticket; fingerprinting and DNA analysis sample of
19 defendant.
20 Upon the arraignment of a defendant who has not been arrested and
21 whose court attendance has been secured by the issuance and service of
22 an appearance ticket pursuant to subdivision one of section 150.20 of
23 this article, the court must, if an offense charged in the accusatory
24 instrument is one specified in subdivision one of section 160.10 of this
25 title, direct that the defendant be fingerprinted and have a sample
26 appropriate for DNA testing taken when required by section nine hundred
27 ninety-five-c of the executive law by the appropriate police officer or
28 agency, and that he appear at an appropriate designated time and place
29 for such purpose.
30 § 9. Section 160.20 of the criminal procedure law, as amended by chap-
31 ter 108 of the laws of 1973, is amended to read as follows:
32 § 160.20 Fingerprinting and DNA analysis sample; forwarding of finger-
33 prints and DNA analysis sample.
34 1. Upon the taking of fingerprints of an arrested person or defendant
35 as prescribed in section 160.10 of this article, the appropriate police
36 officer or agency must without unnecessary delay forward two copies of
37 such fingerprints to the division of criminal justice services.
38 2. Upon taking a sample appropriate for DNA testing, the appropriate
39 police office or agency must without unnecessary delay store and forward
40 such DNA sample to a forensic DNA laboratory for forensic DNA testing
41 and analyses, and inclusion in the state DNA identification index in
42 accordance with subdivision five of section nine hundred ninety-five-c
43 of the executive law.
44 § 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
45 criminal procedure law, paragraph (d) as amended by chapter 449 of the
46 laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of
47 1994, are amended and a new paragraph (f) is added to read as follows:
48 (d) such records shall be made available to the person accused or to
49 such person's designated agent, and shall be made available to (i) a
50 prosecutor in any proceeding in which the accused has moved for an order
51 pursuant to section 170.56 or 210.46 of this [chapter] part, or (ii) a
52 law enforcement agency upon ex parte motion in any superior court, or in
53 any district court, city court or the criminal court of the city of New
54 York provided that such court sealed the record, if such agency demon-
55 strates to the satisfaction of the court that justice requires that such
56 records be made available to it, or (iii) any state or local officer or
A. 10057 6
1 agency with responsibility for the issuance of licenses to possess guns,
2 when the accused has made application for such a license, or (iv) the
3 New York state department of corrections and community supervision when
4 the accused is on parole supervision as a result of conditional release
5 or a parole release granted by the New York state board of parole, and
6 the arrest which is the subject of the inquiry is one which occurred
7 while the accused was under such supervision, or (v) any prospective
8 employer of a police officer or peace officer as those terms are defined
9 in subdivisions thirty-three and thirty-four of section 1.20 of this
10 chapter, in relation to an application for employment as a police offi-
11 cer or peace officer; provided, however, that every person who is an
12 applicant for the position of police officer or peace officer shall be
13 furnished with a copy of all records obtained under this paragraph and
14 afforded an opportunity to make an explanation thereto, or (vi) the
15 probation department responsible for supervision of the accused when the
16 arrest which is the subject of the inquiry is one which occurred while
17 the accused was under such supervision; [and]
18 (e) where fingerprints subject to the provisions of this section have
19 been received by the division of criminal justice services and have been
20 filed by the division as digital images, such images may be retained,
21 provided that a fingerprint card of the individual is on file with the
22 division which was not sealed pursuant to this section or section 160.55
23 of this article[.]; and
24 (f) a sample appropriate for DNA testing taken from such person pursu-
25 ant to section nine hundred ninety-five-c of the executive law, and any
26 DNA record relating to such sample, and any analyses or other documents
27 relating to such DNA sample shall be expunged, destroyed or returned in
28 accordance with subdivision nine of such section of the executive law.
29 § 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
30 criminal procedure law, paragraph (d) as amended by chapter 449 of the
31 laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of
32 1994, are amended and a new paragraph (f) is added to read as follows:
33 (d) the records referred to in paragraph (c) of this subdivision shall
34 be made available to the person accused or to such person's designated
35 agent, and shall be made available to (i) a prosecutor in any proceeding
36 in which the accused has moved for an order pursuant to section 170.56
37 or 210.46 of this [chapter] part, or (ii) a law enforcement agency upon
38 ex parte motion in any superior court, or in any district court, city
39 court or the criminal court of the city of New York provided that such
40 court sealed the record, if such agency demonstrates to the satisfaction
41 of the court that justice requires that such records be made available
42 to it, or (iii) any state or local officer or agency with responsibility
43 for the issuance of licenses to possess guns, when the accused has made
44 application for such a license, or (iv) the New York state department of
45 corrections and community supervision when the accused is under parole
46 supervision as a result of conditional release or parole release granted
47 by the New York state board of parole and the arrest which is the
48 subject of the inquiry is one which occurred while the accused was under
49 such supervision, or (v) the probation department responsible for super-
50 vision of the accused when the arrest which is the subject of the
51 inquiry is one which occurred while the accused was under such super-
52 vision, or (vi) a police agency, probation department, sheriff's office,
53 district attorney's office, department of correction of any municipality
54 and parole department, for law enforcement purposes, upon arrest in
55 instances in which the individual stands convicted of harassment in the
56 second degree, as defined in section 240.26 of the penal law, committed
A. 10057 7
1 against a member of the same family or household as the defendant, as
2 defined in subdivision one of section 530.11 of this chapter, and deter-
3 mined pursuant to subdivision eight-a of section 170.10 of this title;
4 [and]
5 (e) where fingerprints subject to the provisions of this section have
6 been received by the division of criminal justice services and have been
7 filed by the division as digital images, such images may be retained,
8 provided that a fingerprint card of the individual is on file with the
9 division which was not sealed pursuant to this section or section 160.50
10 of this article[.]; and
11 (f) a sample appropriate for DNA testing taken from such person pursu-
12 ant to section nine hundred ninety-five-c of the executive law, any DNA
13 record relating to such sample, and any analyses or other documents
14 relating to such DNA sample shall be expunged, destroyed or returned in
15 accordance with subdivision nine of such section of the executive law.
16 § 12. This act shall take effect on the one hundred eightieth day
17 after it shall have become a law.
