Amd §§995-b, 995-a, 995-c, 995-d & 995-f, Exec L; amd §§1.20, 190.65, 340.20 & 440.30, CP L; add §97-pppp, 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.
STATE OF NEW YORK
________________________________________________________________________
3570
2017-2018 Regular Sessions
IN ASSEMBLY
January 27, 2017
___________
Introduced by M. of A. LENTOL, BENEDETTO, COOK, DINOWITZ, ENGLEBRIGHT,
GALEF, LAVINE, LIFTON -- Multi-Sponsored by -- M. of A. MAGNARELLI,
PRETLOW, RAMOS, TITUS, ZEBROWSKI -- read once and referred to the
Committee on Codes
AN ACT to amend the executive law, the criminal procedure 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
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 995-b of the executive law is amended by adding a
2 new subdivision 15 to read as follows:
3 15. (a) The commission, in consultation with the DNA subcommittee,
4 shall promulgate a plan to include all persons convicted of a penal law
5 misdemeanor in the state DNA identification index. Such plan shall be
6 submitted to the governor, the speaker of the assembly, and the tempo-
7 rary president of the senate no later than December first, two thousand
8 seventeen.
9 (b) The plan required by this section shall include, but not be limit-
10 ed to, the following:
11 (i) the capacity of the New York state police forensic investigation
12 center to process DNA samples collected from designated offenders;
13 (ii) the anticipated increase in the number of DNA samples collected
14 per year due to the inclusion of all persons convicted of a penal law
15 misdemeanor in the state DNA identification index;
16 (iii) the anticipated number of DNA samples that will be collected
17 from persons in custody or under supervision for the conviction of a
18 penal law misdemeanor as of the date of such plan;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03816-01-7
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1 (iv) the anticipated backlog of unanalyzed DNA samples that will be
2 created by expanding the state DNA identification index to include all
3 persons convicted of a penal law misdemeanor;
4 (v) the manner in which a backlog of the unanalyzed DNA samples will
5 be processed, and specifically, whether the state will be required to
6 outsource the analysis of backlogged samples to private laboratories;
7 (vi) the estimated amount of time it will take to analyze all back-
8 logged DNA samples;
9 (vii) the anticipated cost to collect and analyze DNA samples taken
10 from persons convicted of a penal law misdemeanor each year and the cost
11 to collect and analyze DNA samples taken from persons in custody or
12 under supervision for the conviction of a penal law misdemeanor;
13 (viii) the annual number of arrests, indictments, and convictions that
14 have resulted from comparing DNA records of designated offenders stored
15 in the state DNA identification index with DNA records from unknown
16 suspects derived from the forensic examination of crime scenes;
17 (ix) the anticipated effect on the prompt and accurate processing of
18 DNA samples collected from the forensic examination of crime scenes due
19 to the influx of DNA samples collected from persons convicted of a penal
20 law misdemeanor.
21 (c) The plan required by this section shall also recommend:
22 (i) the amount of funding necessary to collect and analyze DNA samples
23 collected from all persons convicted of a penal law misdemeanor;
24 (ii) the most effective way to process the increased number of DNA
25 samples collected from persons convicted of a penal law misdemeanor to
26 reduce any resulting backlog in an efficient manner; and
27 (iii) whether additional quality assurance measures should be imple-
28 mented in conjunction with such expansion and what such measures should
29 be.
30 § 2. The opening paragraph of subdivision 1 of section 995-a of the
31 executive law, as added by chapter 737 of the laws of 1994, is amended
32 to read as follows:
33 There is hereby created in the executive department, the commission on
34 forensic science, which shall consist of the following [fourteen]
35 sixteen members:
36 § 3. Paragraph (i) of subdivision 2 of section 995-a of the executive
37 law, as added by chapter 737 of the laws of 1994, is amended, paragraph
38 (j) is relettered (k) and a new paragraph (j) is added to read as
39 follows:
40 (i) two members shall be members-at-large, one of whom shall be
41 appointed upon the recommendation of the temporary president of the
42 senate, and one of whom shall be appointed upon the recommendation of
43 the speaker of the assembly; [and]
44 (j) two members shall be jointly appointed by the temporary president
45 of the senate and the speaker of the assembly: one such person shall be
46 a crime victims advocate, and one such person shall be an expert in
47 biomedical ethics; and
48 § 4. Subparagraph (ix) of paragraph (b) of subdivision 9 of section
49 995-b of the executive law, as added by chapter 737 of the laws of 1994,
50 is amended and a new subparagraph (x) is added to read as follows:
51 (ix) such policy shall provide for the mutual exchange, use and stor-
52 age of DNA records with the system of DNA identification utilized by the
53 federal bureau of investigation provided that the commission determines
54 that such exchange, use and storage are consistent with the provisions
55 of this article and applicable provisions of law[.]; and
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1 (x) such policy, which shall be developed and promulgated within one
2 year of the effective date of this subparagraph, shall determine,
3 consistent with this article, the appropriate minimum period of time
4 that forensic samples of blood, tissue and other biological material,
5 obtained in connection with the forensic examination of crime scenes,
6 should be retained by investigating authorities and the time or speci-
7 fied event or events, if any, after which, consistent with the interest
8 of all persons and law enforcement, such samples may be destroyed. Pend-
9 ing the promulgation of a policy addressing the issues set forth in this
10 subparagraph, the commission may adopt an interim policy mandating the
11 preservation by investigating authorities of forensic samples of blood,
12 tissue and other biological material obtained in connection with the
13 forensic examination of crime scenes.
14 § 5. Section 995-b of the executive law is amended by adding a new
15 subdivision 14 to read as follows:
16 14. The commission shall review the confidentiality safeguards which
17 are maintained with respect to DNA samples before and after information
18 from such samples is encoded into the state DNA identification index and
19 shall determine whether any additional confidentiality safeguards are
20 necessary with respect to such samples. The commission shall also issue
21 a report to the temporary president of the senate and the speaker of the
22 assembly which describes how such samples are retained and the reasons
23 for maintaining such samples, following the encoding of information from
24 such samples into the state DNA identification index. Such report shall
25 also recommend whether a program to destroy any such samples, following
26 the encoding of information from such samples into the state DNA iden-
27 tification index, should be initiated or whether, alternatively, such
28 samples shall continue to be maintained.
29 § 6. Subdivision 2 of section 995-c of the executive law, as added by
30 chapter 737 of the laws of 1994, is amended to read as follows:
31 2. (a) Following the review and approval of the plan by the DNA
32 subcommittee and the commission and the filing of such plan with the
33 speaker of the assembly and the temporary president of the senate, the
34 commissioner of criminal justice services is hereby authorized to estab-
35 lish a computerized state DNA identification index pursuant to the
36 provisions of this article. No other DNA identification index or compi-
37 lation of DNA identification profiles may be maintained in this state
38 provided, however, that this prohibition shall not be interpreted to
39 prohibit any such index or compilation of DNA information obtained from
40 crime scene samples or concerning missing persons.
41 (b) In accordance with subdivision one of this section and this subdi-
42 vision, and in a manner consistent with this article, the commission may
43 authorize the inclusion of DNA records derived from forensic examination
44 of crime scenes in the state DNA identification index.
45 § 7. Paragraph (b) of subdivision 9 of section 995-c of the executive
46 law, as added by chapter 524 of the laws of 2002, is amended and two new
47 paragraphs (c) and (d) are added to read as follows:
48 (b) As prescribed in this paragraph, if an individual, either volun-
49 tarily or pursuant to a warrant or order of a court, has provided a
50 sample for DNA testing in connection with the investigation or prose-
51 cution of a crime and (i) no criminal action against the individual
52 relating to such crime was commenced within the period specified by
53 section 30.10 of the criminal procedure law, or (ii) a criminal action
54 was commenced against the individual relating to such crime which
55 resulted in a complete acquittal, or a dismissal and the matter will not
56 be tried or retried, or (iii) a criminal action against the individual
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1 relating to such crime resulted in a conviction that was subsequently
2 reversed or vacated, or for which the individual was granted a pardon
3 pursuant to article two-A of this chapter, such individual may apply to
4 the supreme court or the court in which the judgment of conviction was
5 originally entered for an order directing the expungement of any DNA
6 record and any samples, analyses, or other documents relating to the DNA
7 testing of such individual in connection with the investigation or pros-
8 ecution of such crime. A copy of such application shall be served on the
9 district attorney and an order directing expungement may be granted if
10 the court finds that the individual has satisfied the conditions of one
11 of the subparagraphs of this paragraph; that if a judgment of conviction
12 was reversed or vacated, all appeals relating thereto have been
13 concluded and the individual will not be retried, or, if a retrial has
14 occurred, the trier of fact has rendered a verdict of complete acquit-
15 tal, and that expungement will not adversely affect the investigation or
16 prosecution of some other person or persons for the crime. Nothing in
17 this paragraph shall prevent a court, at an earlier time, from ordering
18 expungement in the manner specified in this paragraph in the interests
19 of justice, in response to an application made on notice to the district
20 attorney by the person who provided such DNA sample. If an order direct-
21 ing the expungement of any DNA record and any samples, analyses or other
22 documents relating to the DNA testing of such individual is issued, such
23 record and any samples, analyses, or other documents shall, at the
24 discretion of the possessor thereof, be destroyed or returned to such
25 individual or to the attorney who represented him or her in connection
26 with the application for the order of expungement. The person destroying
27 or returning such record, samples, analyses and other documents shall
28 maintain a record certifying the date, time and manner of destruction or
29 return and identifying the person or persons destroying or returning
30 same. The person destroying or returning same shall send a copy of this
31 record to the person who submitted the sample or to the attorney who
32 represented him or her in connection with the application for the order
33 of expungement.
34 (c) (i) Except as provided in paragraph (d) of this subdivision, if an
35 individual has provided a sample for DNA testing in connection with the
36 investigation or prosecution of a crime, other than in response to a
37 demand authorized pursuant to subdivisions one, two and three of this
38 section, or if a sample for DNA testing has otherwise come into the
39 custody or possession of a law enforcement agency or an agent thereof,
40 and the DNA profile derived from such sample does not match a DNA
41 profile derived from crime scene evidence developed in connection with
42 the investigation or prosecution of a criminal act or acts, every
43 record, sample, analysis and other document relating to the DNA testing
44 of such sample shall, at the discretion of the possessor thereof, be
45 either returned to the individual who provided such sample, destroyed or
46 maintained for the duration of the investigation, prosecution or adjudi-
47 cation of such criminal acts exclusively for use with respect to the
48 investigation, prosecution and/or adjudication of the criminal charges
49 for which such sample was obtained or with respect to any other criminal
50 acts which the investigating agency has reason to believe may be linked
51 to such sample; provided, however, that no later than five years after
52 such sample is obtained or when the investigation or prosecution of such
53 crime has concluded, whichever first occurs, such records, samples,
54 analyses and other documents shall, at the discretion of the possessor
55 thereof, be returned to such individual or destroyed, or sealed in a
56 manner consistent with paragraph (c) and subparagraphs (ii), (iv) or (v)
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1 of paragraph (d) of subdivision one of section 160.55 of the criminal
2 procedure law.
3 (ii) The person returning, destroying or sealing such record, samples,
4 analyses or other documents in accordance with this paragraph shall
5 maintain a record certifying the date and manner of such return,
6 destruction or sealing and identifying the person or persons returning,
7 destroying or sealing same. The person returning, destroying or sealing
8 same shall send a copy of this record to the person who submitted the
9 sample.
10 (iii) This paragraph shall supplement and not supplant any applicable
11 provision of paragraph (b) of this subdivision. This paragraph shall not
12 apply to DNA records, samples, analyses and other documents obtained
13 from the forensic examination of crime scene evidence, where the DNA
14 profile developed from such crime scene evidence does not match the DNA
15 profile of a known person.
16 (d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of
17 this subdivision, a DNA record which was obtained from a sample provided
18 pursuant to paragraph (a) or (b) of this subdivision prior to the effec-
19 tive date of this paragraph need not be destroyed, returned or sealed,
20 and may be included in the state DNA identification index established
21 pursuant to this article, when, as of the effective date of this para-
22 graph, the person who provided such sample stands convicted of a felony
23 or misdemeanor defined in section nine hundred ninety-five of this arti-
24 cle. All laws governing DNA records included in the state DNA identifi-
25 cation index shall apply to any DNA record included in the state DNA
26 identification index pursuant to this paragraph.
27 § 8. Section 995-c of the executive law is amended by adding a new
28 subdivision 10 to read as follows:
29 10. A superior court, in response to a motion for such comparison by a
30 defendant, may order that DNA information from a crime scene sample or
31 samples obtained in the course of the investigation of an alleged crime
32 be checked against the DNA records maintained by or available through
33 the state DNA identification index established pursuant to this section
34 and the national DNA index system, and that the results of such check or
35 checks be disclosed to such defendant and to the prosecutor whose juris-
36 diction includes the location of the alleged commission of such crime,
37 upon a showing by the defendant that such an analysis may be material to
38 his or her defense and that the request is reasonable.
39 § 9. Section 995-d of the executive law is amended by adding two new
40 subdivisions 3 and 4 to read as follows:
41 3. In accordance with the provisions of this subdivision, any individ-
42 ual DNA profile obtained or maintained by a state, county or local law
43 enforcement agency, or an agent thereof, from a biological sample
44 submitted in the manner described in paragraph (b) or (c) of subdivision
45 nine of section nine hundred ninety-five-c of this article, may be
46 compared individually or via computerized database to one or more DNA
47 profiles maintained pursuant to or in accordance with subdivisions one,
48 two and three of section nine hundred ninety-five-c of this article,
49 and/or may be individually compared by such state, county or local law
50 enforcement agency, or an agent thereof, to one or more DNA profiles
51 developed from the forensic examination of crime scenes in one or more
52 cases under investigation.
53 (a) If such individual DNA profile matches the DNA profile developed
54 from the forensic examination of one or more crime scenes in one or more
55 cases under investigation, and/or one or more DNA profiles maintained
56 pursuant to subdivisions one, two and three of section nine hundred
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1 ninety-five-c of this article, such individual DNA profile, together
2 with the biological material from which such individual DNA profile was
3 developed, may, as appropriate pursuant to applicable laws and rules of
4 evidence and consistent with this article, be used in connection with
5 the investigation, prosecution and/or adjudication of such person.
6 (b) If such individual DNA profile does not match the DNA profile
7 developed from forensic examination of one or more crime scenes in one
8 or more cases under investigation, and/or one or more DNA profiles main-
9 tained pursuant to subdivisions one, two and three of section nine
10 hundred ninety-five-c of this article, such individual DNA profile,
11 together with the biological material from which such individual DNA
12 profile was developed, shall be dealt with in accordance with paragraph
13 (c) of subdivision nine of section nine hundred ninety-five-c of this
14 article.
15 4. (a) Except where the demand is pursuant to a court order or warrant
16 or pursuant to subdivision three of section nine hundred ninety-five-c
17 of this article, prior to requesting a biological sample from an indi-
18 vidual that will be used for DNA testing, the police department, law
19 enforcement agency, or agent thereof requesting such sample shall obtain
20 written informed consent from such individual consisting of written
21 authorization in plain language that is dated and signed and includes at
22 least the following: (1) a general description of the test; (2) a state-
23 ment that the DNA sample of the subject may initially be compared
24 against any crime scene evidence or database of crime scene evidence and
25 a description of whether, in the event such subject sample does not
26 match a DNA profile derived from any such crime scene evidence, such
27 subject sample will thereafter be returned, destroyed or retained. In
28 the event the agent requesting such sample may retain such sample, such
29 statement shall describe the circumstances under which such sample may
30 thereafter be lawfully used; (3) the name of the person or specific
31 categories of persons or organizations to whom the test results may be
32 disclosed; (4) a statement that no tests other than those authorized
33 shall be performed on the biological sample; and (5) a summary of the
34 information set forth in paragraphs (b) and (c) of subdivision nine of
35 section nine hundred ninety-five-c of this article.
36 (b) Noncompliance with any provision of this subdivision shall not in
37 and of itself affect the admissibility of evidence or otherwise affect
38 any conviction or criminal prosecution.
39 § 10. Section 995-f of the executive law, as amended by chapter 560
40 of the laws of 1999, is amended to read as follows:
41 § 995-f. Penalties. Any person who (a) intentionally discloses a DNA
42 record, or the results of a forensic DNA test or analysis, to an indi-
43 vidual or agency other than one authorized to have access to such
44 records pursuant to this article or (b) intentionally uses or receives
45 DNA records, or the results of a forensic DNA test or analysis, for
46 purposes other than those authorized pursuant to this article or (c) any
47 person who knowingly tampers or attempts to tamper with any DNA sample
48 or the collection container without lawful authority or (d) inten-
49 tionally subjects to or submits for testing or analysis not authorized
50 by this article an individual's DNA record or sample, shall be guilty of
51 a class [E] D felony.
52 § 11. Section 1.20 of the criminal procedure law is amended by adding
53 a new subdivision 44 to read as follows:
54 44. "Special fictitious name indictment" means an indictment of a
55 person whose name is unknown but whose identity is established to the
56 satisfaction of a grand jury pursuant to subdivision one of section
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1 190.65 of this chapter by means of forensic deoxyribonucleic acid (DNA)
2 testing of evidence. The caption of a special fictitious name indictment
3 shall include a fictitious name, such as "John Doe" or "Jane Doe", in
4 place of the name of the defendant whose true name is unknown.
5 § 12. Subdivision 3 of section 190.65 of the criminal procedure law is
6 amended to read as follows:
7 3. Upon voting to indict a person, a grand jury must, through its
8 foreman or acting foreman, file an indictment with the court by which it
9 was impaneled. When the name of the indicted person is unknown but his
10 or her identity is established to the satisfaction of the grand jury
11 pursuant to subdivision one of this section by means of forensic deoxy-
12 ribonucleic acid (DNA) testing of evidence, then such indictment shall
13 be filed by the grand jury with such court as a special fictitious name
14 indictment. The authority to file a special fictitious name indictment
15 pursuant to this subdivision shall be in addition to any other authority
16 in law for the filing of an indictment when the name of an indicted
17 person is unknown.
18 § 13. Section 340.20 of the criminal procedure law is amended by
19 adding a new subdivision 5 to read as follows:
20 5. Prior to accepting a defendant's plea of guilty to a count or
21 counts of an information charging a misdemeanor, as defined in paragraph
22 (a) of subdivision two of section 55.10 of the penal law and included in
23 the definition of designated offender pursuant to subdivision seven of
24 section nine hundred ninety-five of the executive law, the court shall
25 advise the defendant that upon the conviction for such misdemeanor he or
26 she will be required to provide a sample appropriate for DNA testing for
27 inclusion in the state DNA identification index pursuant to article
28 forty-nine-B of the executive law. The court shall affirm on the record
29 or in writing that the defendant has been given the notice required by
30 this subdivision. The failure of a court to advise the defendant pursu-
31 ant to this subdivision or to otherwise comply with the provisions of
32 this subdivision shall not be deemed to affect the voluntariness of a
33 plea of guilty or the validity of a conviction.
34 § 14. Subdivision 1-a of section 440.30 of the criminal procedure law
35 is amended by adding a new paragraph (d) to read as follows:
36 (d) In conjunction with the filing of a motion under this subdivision,
37 the court may direct the state to provide the movant with information,
38 including documents, notes, logs or reports, relating to any physical
39 items collected in connection with the case, where it is likely any such
40 physical items, if subjected to DNA testing, would yield DNA information
41 that meets the standard set forth in paragraph (a) of this subdivision.
42 The court may direct the state to provide other reasonable assistance to
43 the movant in locating any such records or items of physical evidence
44 which may have been lost or destroyed. The court may also direct the
45 people to take reasonable measures to attempt to locate any such records
46 or physical items that may be in government custody and/or assist the
47 movant in locating any such records or physical items that may be in the
48 custody of a public or private hospital, laboratory or other facility.
49 The court shall deny a request for assistance brought under this para-
50 graph if the court determines that such request for assistance is frivo-
51 lous, abusive or inappropriate.
52 § 15. The state finance law is amended by adding a new section 97-pppp
53 to read as follows:
54 § 97-pppp. Assistance to police and crime laboratories; DNA evidence
55 fund. 1. There is hereby created in the custody of the state comp-
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1 troller a special fund to be known as the "assistance to police and
2 crime laboratories: DNA evidence fund".
3 2. Such fund shall consist of all monies appropriated for the purpose
4 of such fund, all other monies credited or transferred to such fund
5 pursuant to law, all monies required by the provisions of this section
6 or any other law to be paid into or credited to such account, and all
7 monies received by the account or donated to it.
8 3. Monies of such fund shall be available for appropriation and allo-
9 cation to the division of state police, to local police agencies, and to
10 forensic DNA laboratories in this state, as defined in subdivision two
11 of section nine hundred ninety-five of the executive law, to assist such
12 entities in effectively collecting, testing and analyzing forensic DNA
13 crime scene evidence pursuant to article forty-nine-B of the executive
14 law. Fifty percent of such funds shall be made available for appropri-
15 ation or allocation by the commissioner of criminal justice services for
16 the purpose of funding an innocence research project program in this
17 state.
18 4. Monies of such fund shall be paid out on the audit and warrant of
19 the comptroller on vouchers certified or approved by the commissioner of
20 criminal justice services.
21 § 16. Innocence research project program. 1. There is hereby estab-
22 lished in this state an innocence research project program. Funding
23 shall be made available for the purposes of such program to up to three
24 not-for-profit organizations by the commissioner of criminal justice
25 services pursuant to subdivisions 3 and 4 of section 97-pppp of the
26 state finance law.
27 2. The innocence research project program shall review and study cases
28 in which there appears to be a reasonable possibility that a person
29 charged with or convicted of a crime in this state may be innocent of
30 the crime or crimes charged. Such program may provide legal and other
31 expert assistance, and may also provide relevant training, including but
32 not limited to training in the use of DNA evidence for forensic iden-
33 tification purposes, to attorneys engaged in the defense of criminal
34 cases.
35 3. Each not-for-profit organization receiving funding for such program
36 shall file an annual report with the commissioner of criminal justice
37 services summarizing the activities of the program during the previous
38 year. Such report shall be filed within one year after such organization
39 first receives funding under such program, and annually thereafter for
40 so long as the program receives such funding.
41 4. Before providing assistance to any individual believed to be actu-
42 ally innocent of the crime or crimes charged, the organization-based
43 coordinator of such program shall determine whether such individual is
44 financially able to pay for the proposed services or assistance to be
45 provided. If such individual is able to financially afford to pay for
46 such services or assistance, such coordinator shall request and receive
47 such payment or payments on behalf of the program from such individual.
48 All monies received from individuals pursuant to this subdivision shall
49 be promptly forwarded by such coordinator to the state comptroller, for
50 deposit into the "assistance to police and crime laboratories: DNA
51 evidence fund" established pursuant to section 97-pppp of the state
52 finance law.
53 § 17. This act shall take effect immediately; provided, however, that:
54 (a) the amendments to paragraph (a) of subdivision 2 of section 995-c
55 of the executive law made by section six of this act shall take effect
56 on the one hundred twentieth day after it shall have become a law; and
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1 (b) the amendments to section 340.20 of the criminal procedure law
2 made by section thirteen of this act shall apply to pleas of guilty to a
3 count or counts of an information entered 60 days or more after the
4 effective date of this act.
