Amd SS995-b, 995-a, 995-c, 995-d & 995-f, Exec L; amd SS1.20, 190.65, 340.20 & 440.30, CP L; add S97-llll, St
Fin L
Provides for DNA testing, collection and record keeping; indictments by fictitious name in DNA cases; and creating the innocence research project program.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4028
SPONSOR: Lentol (MS) TITLE OF BILL: An act to amend the executive law, the criminal proce-
dure law and the state finance law, in relation to DNA testing, data
collection and record keeping, and to special indictments by fictitious
name in DNA cases; and in relation to creating the innocence research
project program
PURPOSE OR GENERAL IDEA OF BILL:
The bill requires the state to submit a plan to the legislature to
include all penal law misdemeanors on the state DNA database, prohibits
DNA identification databases not authorized by statute, and enacts a
number of critical DNA-related reforms.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends Executive Law section 995-b to require the
State Commission on Forensic Science to submit a plan to the Governor
and the legislature to include all persons convicted of a penal law
misdemeanor in the state DNA identification index of convicted persons.
The plan is to be submitted to the governor and legislature by December
1, 2011.
The plan would have to specify how the state would deal with the backlog
of DNA samples which would be created by adding approximately 100,000
new DNA samples to the database (the estimated number of new samples
which would be required to be processed in an "all crimes" database),
how the state would process such samples and what safeguards would be
put in place to ensure that such samples would be processed accurately.
Section 2 of the bill amends section 995-a of the executive law by
increasing the membership of the commission on forensic science from 14
to 16 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 amends section 995-b of the executive law to
require the commission on forensic science to develop a policy to deter-
mine the appropriate period of time that a DNA sample collected from a
crime scene should be retained by investigating authorities.
Section 5 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 6 of the bill amends section 995-c of the executive law to
prohibit DNA identification indexes other than the state DNA identifica-
tion index authorized by law and maintained by the division of criminal
justice services.
Section 7 of the bill amends section 995-c of the executive law to
require that upon the destruction of a DNA sample, 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 8 of the bill amends section 995-c of the executive law to
require the court to make information regarding the comparison of data-
banked DNA samples and crime scene samples available to a defendant on
motion if such information may be material to such defendant's defense.
Section 9 of the bill amends section 995-d of the executive law allows a
DNA sample collected by law enforcement as part of an investigation to
compare such sample against DNA profiles collected from one or more
crime scenes under investigation. If such sample does not match any DNA
crime scene profiles, such sample shall be dealt with in accordance with
section 995-c of this article. This section also requires that law
enforcement officials obtain written consent from a person before
collecting a voluntary sample from the person for investigative
purposes.
Section 10 of the bill amends section 995-f of the executive law to
increase the penalty for tampering or misusing a DNA sample from a class
E felony to a class D felony.
Section 11 of the bill amends section 1.20 of the criminal procedure law
to allow for special fictitious name indictments.
Section 12 of the bill makes a conforming amendment to section 190.65 of
the criminal procedure law.
Section 13 of the bill amends section 340.20 of the criminal procedure
law to require the court to notify 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 if such misdemeanor
is included in the definition of designated offender pursuant to section
995 of the executive law.
Section 14 of the bill amends section 440.30 of the criminal procedure
law to require the court to provide a person seeking to vacate a judg-
ment of conviction with access to evidence that may yield relevant DNA
information.
Section 15 of the bill amends the state finance law to add a new section
that establishes the DNA evidence fund to assist police and crime labo-
ratories in collecting, testing and analyzing DNA crime scene evidence.
Section 16 of the bill establishes the innocence research project
program.
JUSTIFICATION:
Expansion of the DNA databank must take place in an effective way which
ensures accuracy. Other related reforms in the DNA system must also take
place to ensure that we make the most effective use of DNA and provide
for appropriate privacy safeguards for persons who have never been
convicted of a crime.
A related bill proposes to immediately add all felonies and a number of
specified misdemeanors to the DNA databank. Currently, New York State
does not have the capacity to process all of the DNA samples required to
be immediately added to the database if all penal law felonies and
misdemeanors were included. Including all penal law felonies and misde-
meanors in the database at this time would cause approximately 100,000
new DNA samples to flood the database immediately, with an additional
80,000 samples added to the database in the first year. The state is
currently processing 15,000 to 18,000 samples per year and has the
capacity to process approximately 30,000 samples per year.
The addition of all felonies alone would likely result in approximately
25,000 new samples being entered into the database immediately, leading
to an additional 20,000 samples needing to be included in the database
annually. Adding in samples from certain misdemeanor crimes would
increase that number still further. Therefore, the bill which adds all
felonies and specified misdemeanors would push the current system to its
limits. At the same time, this bill provides for the state to submit a
plan to the legislature designed to facilitate the inclusion of all
penal law misdemeanors into the DNA database.
Specifically, this bill requires that a plan be submitted to the legis-
lature by December 1st to include all penal misdemeanors to the comput-
erized state DNA identification index. The bill requires that a plan be
provided to the legislature which will outline in detail how those
samples of persons convicted of any penal law misdemeanor would be added
to the database in a way which would not compromise the processing of
samples from crime scenes and from convicted violent felons.
The bill would also enact a number of important related reforms. It
would prohibit DNA samples from persons who had never been convicted of
any crime from being kept in ad-hoc, databases which operate in some
jurisdictions without statutory authorization. It would direct the
Commission on Forensic Science to promulgate best practices guidelines
for the preservation and use of forensic evidence. It would establish
funding programs for crime labs and "Innocence Research projects" to
enhance the use of DNA.
When fully implemented, this bill along with the bill that would add all
felonies and a number of specified misdemeanors to the database, would
give New York not only the most extensive database in the nation, but
would enact the nation's most effective system for using forensic DNA
evidence, as well as provide the privacy safeguards that are necessary
to encourage volunteer samples and prevent misuse of this powerful tool.
PRIOR LEGISLATIVE HISTORY: A.11952 of 2006
A3687 of 2007-2008
A.5179 of 2009-2010
A.1315 of 2011-12
FISCAL IMPLICATIONS: Not yet determined.
EFFECTIVE DATE: The bill takes effect immediately provided however
that (a) the amendments made to paragraph (a) of Subdivision 2 of
section 995-c of the executive law shall take effect on the one hundred
twentieth day after it shall become law; and (b) the amendments to
section 340.20 of the criminal procedure law made by section thirteen of
this act shall apply to pleas of guilty to a count or counts of an
information entered 60 days or more after the effective date of this
act.
