SUBJECT:

PURPOSE:

Police departments, sheriff's offices and other law enforcement agencies throughout New York State collect thousands of items of evidence in the course of criminal investigations each year. Although statutes address certain aspects of the evidence retention process, such as the return of stolen property to its rightful owner, specific laws do not address other aspects of the evidence retention and storage process, including the retention, storage and accessibility of biological evidence that could yield DNA identification information.

This issue gained attention recently with the release from prison of a Bronx man, Alan Newton. According to published reports, Newton maintained for more than two decades that he did not commit the rape and associated crimes for which he was convicted. Beginning in 1994, it has been reported, he repeatedly sought DNA testing of biological material recovered from the victim in the case, but police officials said they could not find this physical evidence. More than ten years after he first requested such testing, a senior Bronx prosecutor urged police officials to search for it again. The police then found the missing evidence --- allegedly in its original storage bin from 1984, in the same warehouse that the authorities searched at least three times before. DNA tests were conducted. The results reportedly excluded Newton as the perpetrator, and on July 7, 2006 the Bronx Supreme Court ordered him released from prison.

As DNA technology has advanced, so too has the usefulness of DNA evidence to help determine claims of innocence. Legislation enacted in 1994 authorizes the courts to consider a motion for forensic DNA testing of biological evidence; a 2000 amendment allows courts to direct officials to assist in locating such evidence in the possession of government agencies and/or assist in identifying the last known location of such evidence.

The purpose of this hearing is to consider practices in New York City and elsewhere in the state concerning the retention, storage and accessibility of biological evidence which could yield DNA identification information. Obviously, no one benefits from a wrongful prosecution and conviction. A wrongful conviction causes much suffering to the innocent accused, but also allows the true perpetrator of the crime to evade punishment and thereby potentially prey on additional victims. The Committee is interested to determine whether additional laws or policies are needed to assure that investigative information, including potential biological evidence, is securely stored and available when needed to help convict the guilty and exonerate the innocent.

Please see below a list of subjects to which witnesses may direct their testimony.

Persons wishing to present pertinent testimony to the Committee at the above hearing should complete and return the reply form as soon as possible. It is important that the reply form be fully completed and returned so that persons may be notified in the event of emergency postponement or cancellation.

Oral testimony will be limited to ten minutes in length. In preparing the order of witnesses, the Committee will attempt to accommodate individual requests to speak at particular times in view of special circumstances. These requests should be made on the reply form or communicated to Committee staff as early as possible. In the absence of a request, witnesses will be scheduled in the order in which reply forms are postmarked.

Twenty copies of any prepared testimony should be submitted at the hearing registration desk. The Committee would appreciate advance receipt of prepared statements.

In order to further publicize these hearings, please inform interested parties and organizations of the Committee's interest in hearing testimony from all sources.

In order to meet the needs of those who may have a disability, the Assembly, in accordance with its policy of non-discrimination on the basis of disability, as well as the 1990 Americans with Disabilities Act (ADA), has made its facilities and services available to all individuals with disabilities. For individuals with disabilities, accommodations will be provided, upon reasonable request, to afford such individuals access and admission to Assembly facilities and activities.

SELECTED ISSUES TO WHICH WITNESSES MAY DIRECT THEIR TESTIMONY:

1. How are the materials collected by police and other law enforcement agencies as a part of the criminal investigation process stored in this state? What records are maintained concerning such materials?

2. What are the conditions under which these materials are maintained? Are these conditions appropriate to help assure the preservation and continued usefulness of this evidence? What security measures are in place to assure the integrity and continued availability of these materials?

3. Are there standards or policies in place with respect to the period of time for which investigative materials are retained? Do these standards or policies differ with respect to the type of item involved (e.g., may contain biological material versus does not contain biological material), or the seriousness of the crime? Regardless of whether such standards or policies exist, what are the actual storage and retention practices in New York with respect to these materials?

4. What records are created and maintained concerning such material? In what manner are these records kept, and for what time period?

5. A 2000 amendment to Section 440.30 of the Criminal Procedure Law authorized courts, in certain circumstances, to direct government officials to provide assistance in locating biological materials and records concerning such materials. What has been the effect of this provision, if any, and are changes to this law recommended?

6. This year, the Legislature approved legislation (A. 12012) eliminating the statute of limitations and thereby allowing prosecution at any time for the first degree crimes of rape, criminal sexual act, aggravated sexual abuse and course of sexual conduct against a child. What has been the effect, if any, of statutes of limitation on evidence retention policies and practices in this state? Do these policies and practices need to be reconsidered in light of this legislation eliminating the statute of limitations for class B felony sex offenses?

7. Legislation passed by the Assembly (A. 7607) and legislation recently approved by the Assembly Codes Committee (A. 11952) would require the State Commission on Forensic Science to develop policies governing the period of time biological material obtained from crime scenes should be retained, as well as voluntary guidelines for the manner in which biological crime scene evidence should be collected, tested and stored. Should such standards be established and, if so, what should they be? Are other laws or statutory changes needed concerning the collection, storage or retention of crime scene materials which may yield DNA evidence?

PUBLIC HEARING REPLY FORM

Persons wishing to present testimony at the public hearing on Storage and Accessibility of DNA Crime Scene Evidence in Criminal Investigations are requested to complete this reply form as soon as possible and mail or fax it to:

Shannel Arrington
Senior Legislative Analyst
Assembly Committee on Codes
State Capitol, Room 513
Albany, New York 12248
Email: arrings@assembly.state.ny.us
Phone: (518) 455-4313
Fax: (518) 455-4682

I will address my remarks to the following subjects:

I will require assistance and/or handicapped accessibility information. Please specify the type of assistance required: