Authorizes disclosure of DNA information in the state DNA identification index or maintained by a forensic DNA laboratory to any public agency in connection with a criminal investigation; provides that DNA information shall be confidential; such information may also be disclosed for research and statistical purposes after identifying information has been removed; provides for expungement of DNA information on an individual upon issuance of a court order.
STATE OF NEW YORK
________________________________________________________________________
6082
2009-2010 Regular Sessions
IN ASSEMBLY
February 24, 2009
___________
Introduced by M. of A. P. RIVERA, SCHROEDER, FIELDS, ORTIZ -- Multi-
Sponsored by -- M. of A. ALFANO, BARRA -- read once and referred to
the Committee on Governmental Operations
AN ACT to amend the executive law, in relation to the disclosure of
DNA-related information in criminal investigations and proceedings and
the expungement of such information
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 6 of section 995-c of the
2 executive law, as added by chapter 737 of the laws of 1994, is amended
3 to read as follows:
4 (a) to a federal law enforcement agency, or to a state or local law
5 enforcement agency or district attorney's office or to any other public
6 agency for law enforcement identification purposes [upon submission of a
7 DNA record] in connection with the investigation of the commission of
8 one or more crimes or to assist in the recovery or identification of
9 specified human remains, including identification of missing persons[,
10 provided that there exists between the division and such agency a writ-
11 ten agreement governing the use and dissemination of such DNA records in
12 accordance with the provisions of this article];
13 § 2. Subdivision 9 of section 995-c of the executive law, as amended
14 by chapter 524 of the laws of 2002, is amended to read as follows:
15 9. [(a)] Upon receipt of notification of a reversal or a vacatur of a
16 conviction, or of the granting of a pardon pursuant to article two-A of
17 this chapter, of an individual whose DNA record has been stored in the
18 state DNA identification index in accordance with this article by the
19 division of criminal justice services, the DNA record shall be expunged
20 from the state DNA identification index, and such individual may apply
21 to the court in which the judgment of conviction was originally entered
22 for an order directing the expungement of any DNA record and any
23 samples, analyses, or other documents relating to the DNA testing of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06510-01-9
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1 such individual in connection with the investigation or prosecution of
2 the crime which resulted in the conviction that was reversed or vacated
3 or for which the pardon was granted. A copy of such application shall be
4 served on the district attorney and an order directing expungement may
5 be granted if the court finds that all appeals relating to the
6 conviction have been concluded; that such individual will not be
7 retried, or, if a retrial has occurred, the trier of fact has rendered a
8 verdict of complete acquittal, and that expungement will not adversely
9 affect the investigation or prosecution of some other person or persons
10 for the crime. The division shall, by rule or regulation, prescribe
11 procedures to ensure that the DNA record in the state DNA identification
12 index, and any samples, analyses, or other documents relating to such
13 record, whether in the possession of the division, or any law enforce-
14 ment or police agency, or any forensic DNA laboratory, including any
15 duplicates or copies thereof, at the discretion of the possessor there-
16 of, are either destroyed or returned to such individual, or to the
17 attorney who represented him or her at the time such reversal, vacatur
18 or pardon, was granted. The commissioner shall also adopt by rule and
19 regulation a procedure for the expungement in other appropriate circum-
20 stances of DNA records contained in the index.
21 [(b) As prescribed in this paragraph, if an individual, either volun-
22 tarily or pursuant to a warrant or order of a court, has provided a
23 sample for DNA testing in connection with the investigation or prose-
24 cution of a crime and (i) no criminal action against the individual
25 relating to such crime was commenced within the period specified by
26 section 30.10 of the criminal procedure law, or (ii) a criminal action
27 was commenced against the individual relating to such crime which
28 resulted in a complete acquittal, or (iii) a criminal action against the
29 individual relating to such crime resulted in a conviction that was
30 subsequently reversed or vacated, or for which the individual was grant-
31 ed a pardon pursuant to article two-A of this chapter, such individual
32 may apply to the supreme court or the court in which the judgment of
33 conviction was originally entered for an order directing the expungement
34 of any DNA record and any samples, analyses, or other documents relating
35 to the DNA testing of such individual in connection with the investi-
36 gation or prosecution of such crime. A copy of such application shall be
37 served on the district attorney and an order directing expungement may
38 be granted if the court finds that the individual has satisfied the
39 conditions of one of the subparagraphs of this paragraph; that if a
40 judgment of conviction was reversed or vacated, all appeals relating
41 thereto have been concluded and the individual will not be retried, or,
42 if a retrial has occurred, the trier of fact has rendered a verdict of
43 complete acquittal, and that expungement will not adversely affect the
44 investigation or prosecution of some other person or persons for the
45 crime. If an order directing the expungement of any DNA record and any
46 samples, analyses or other documents relating to the DNA testing of such
47 individual is issued, such record and any samples, analyses, or other
48 documents shall, at the discretion of the possessor thereof, be
49 destroyed or returned to such individual or to the attorney who repres-
50 ented him or her in connection with the application for the order of
51 expungement.]
52 § 3. Section 995-d of the executive law, as added by chapter 737 of
53 the laws of 1994, subdivision 2 as amended by chapter 560 of the laws of
54 1999, is amended to read as follows:
55 § 995-d. Confidentiality and applications for expungement. 1. All
56 records, findings, reports, and results of DNA testing performed on any
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1 person, including those in the possession of a forensic DNA laboratory,
2 shall be confidential and may not be disclosed or redisclosed without
3 the consent of the subject of such DNA testing. Such records, findings,
4 reports and results shall not be released to insurance companies,
5 employers or potential employers, health providers, employment screening
6 or personnel companies, agencies, or services, private investigation
7 services, and may not be disclosed in response to a subpoena or other
8 compulsory legal process or warrant, or upon request or order of any
9 agency, authority, division, office, corporation, partnership, or any
10 other private or public entity or person, except that nothing contained
11 herein shall prohibit disclosure in response to a subpoena issued on
12 behalf of the subject of such [DNA] record or on behalf of a party in a
13 civil proceeding where the subject of such [DNA] record has put such
14 record in issue.
15 2. Notwithstanding the provisions of subdivision one of this section,
16 records, findings, reports, and results of DNA testing[, other than a
17 DNA record maintained in the state DNA identification index,] maintained
18 by a forensic DNA laboratory may be disclosed by such laboratory and
19 redisclosed by any public agency for the following purposes:
20 (a) to a federal law enforcement agency, or to a state or local law
21 enforcement agency or district attorney's office or to any other public
22 agency for law enforcement identification purposes in connection with
23 the investigation of the commission of one or more crimes or to assist
24 in the recovery or identification of human remains, including identifi-
25 cation of missing persons;
26 (b) in a criminal proceeding to the court, the prosecution, and the
27 defense pursuant to a written request [on a form prescribed by the
28 commissioner of the division of criminal justice services.] by one of
29 these entities to the possessor of such records, findings, reports, or
30 results of DNA testing; or
31 (c) after personally identifiable information has been removed by the
32 forensic DNA laboratory, to an entity authorized by the forensic DNA
33 laboratory for the purpose of creating or maintaining a population
34 statistics database or for identification research and protocol develop-
35 ment for forensic DNA analysis or quality control purposes.
36 3. As prescribed in this subdivision, if an individual not otherwise
37 covered by subdivision nine of section nine hundred ninety-five-c of
38 this article, either voluntarily or pursuant to a warrant or order of a
39 court, has provided a sample for DNA testing in connection with the
40 investigation or prosecution of a crime and (a) no criminal action
41 against the individual relating to such crime was commenced or is
42 intended to be commenced within the period specified by section 30.10 of
43 the criminal procedure law, or (b) a criminal action was commenced
44 against the individual relating to such crime which resulted in a
45 complete acquittal, or (c) a criminal action against the individual
46 relating to such crime resulted in a conviction that was subsequently
47 reversed or vacated, or for which the individual was granted a pardon
48 pursuant to article two-A of this chapter, such individual may apply to
49 the supreme court or the court in which the judgment of conviction was
50 originally entered for an order directing the expungement of any DNA
51 identification information and any samples, analyses, or other documents
52 relating to the DNA testing of such individual in connection with the
53 investigation or prosecution of such crime. A copy of such application
54 shall be served on the district attorney and an order directing expunge-
55 ment shall be granted if the court finds that the individual has satis-
56 fied the conditions of one of the paragraphs of this subdivision; that
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1 if a judgment of conviction was reversed or vacated, all appeals relat-
2 ing thereto have been concluded and the individual will not be retried,
3 or, if a retrial has occurred, the trier of fact has rendered a verdict
4 of complete acquittal, and that expungement will not adversely affect
5 the investigation or prosecution of some other person or persons for the
6 crime. If an order directing the expungement of any DNA identification
7 information and any samples, analyses or other documents relating to the
8 DNA testing of such individual is issued, such identification informa-
9 tion and any samples, analyses, or other documents shall, at the
10 discretion of the possessor thereof, be destroyed or returned to such
11 individual or to the attorney who represented him or her in connection
12 with the application for the order of expungement.
13 4. Notwithstanding the provisions of subdivision one of this section,
14 a DNA record maintained in the state DNA identification index may be
15 disclosed pursuant to section nine hundred ninety-five-c of this arti-
16 cle.
17 § 4. This act shall take effect immediately.
