Bill Text: NY A04137 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the executive law and the penal law, in relation to DNA testing
Spectrum: Partisan Bill (Republican 10-0)
Status: (Introduced - Dead) 2010-01-06 - referred to codes [A04137 Detail]
Download: New_York-2009-A04137-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4137
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
___________
Introduced by M. of A. AMEDORE, McKEVITT, KOLB, WALKER, ALFANO, TOBACCO,
SAYWARD, McDONOUGH -- Multi-Sponsored by -- M. of A. CROUCH, ERRIGO --
read once and referred to the Committee on Codes
AN ACT to amend the executive law and the penal law, in relation to DNA
testing
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 7 of section 995 of the executive law, as
2 amended by chapter 2 of the laws of 2006, paragraph (a) as separately
3 amended by chapter 320 of the laws of 2006, is amended to read as
4 follows:
5 7. "Designated offender" means a person convicted of and sentenced for
6 [any one or more of the following provisions of the penal law (a)
7 sections 120.05, 120.10, and 120.11, relating to assault; sections
8 125.15 through 125.27 relating to homicide; sections 130.25, 130.30,
9 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to
10 sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to
11 escape and other offenses, where the offender has been convicted within
12 the previous five years of one of the other felonies specified in this
13 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest,
14 a violent felony offense as defined in subdivision one of section 70.02
15 of the penal law, attempted murder in the first degree, as defined in
16 section 110.00 and section 125.27 of the penal law, kidnapping in the
17 first degree, as defined in section 135.25 of the penal law, arson in
18 the first degree, as defined in section 150.20 of the penal law,
19 burglary in the third degree, as defined in section 140.20 of the penal
20 law, attempted burglary in the third degree, as defined in section
21 110.00 and section 140.20 of the penal law, a felony defined in article
22 four hundred ninety of the penal law relating to terrorism or any
23 attempt to commit an offense defined in such article relating to terror-
24 ism which is a felony; or (b) criminal possession of a controlled
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04786-01-9
A. 4137 2
1 substance in the first degree, as defined in section 220.21 of the penal
2 law; criminal possession of a controlled substance in the second degree,
3 as defined in section 220.18 of the penal law; criminal sale of a
4 controlled substance, as defined in article 220 of the penal law; or
5 grand larceny in the fourth degree, as defined in subdivision five of
6 section 155.30 of the penal law; or (c) any misdemeanor or felony
7 defined as a sex offense or sexually violent offense pursuant to para-
8 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
9 three of section one hundred sixty-eight-a of the correction law; or (d)
10 any of the following felonies, or an attempt thereof where such attempt
11 is a felony offense:
12 aggravated assault upon a person less than eleven years old, as
13 defined in section 120.12 of the penal law; menacing in the first
14 degree, as defined in section 120.13 of the penal law; reckless endan-
15 germent in the first degree, as defined in section 120.25 of the penal
16 law; stalking in the second degree, as defined in section 120.55 of the
17 penal law; criminally negligent homicide, as defined in section 125.10
18 of the penal law; vehicular manslaughter in the second degree, as
19 defined in section 125.12 of the penal law; vehicular manslaughter in
20 the first degree, as defined in section 125.13 of the penal law;
21 persistent sexual abuse, as defined in section 130.53 of the penal law;
22 aggravated sexual abuse in the fourth degree, as defined in section
23 130.65-a of the penal law; female genital mutilation, as defined in
24 section 130.85 of the penal law; facilitating a sex offense with a
25 controlled substance, as defined in section 130.90 of the penal law;
26 unlawful imprisonment in the first degree, as defined in section 135.10
27 of the penal law; custodial interference in the first degree, as defined
28 in section 135.50 of the penal law; criminal trespass in the first
29 degree, as defined in section 140.17 of the penal law; criminal tamper-
30 ing in the first degree, as defined in section 145.20 of the penal law;
31 tampering with a consumer product in the first degree, as defined in
32 section 145.45 of the penal law; robbery in the third degree as defined
33 in section 160.05 of the penal law; identity theft in the second degree,
34 as defined in section 190.79 of the penal law; identity theft in the
35 first degree, as defined in section 190.80 of the penal law; promoting
36 prison contraband in the first degree, as defined in section 205.25 of
37 the penal law; tampering with a witness in the third degree, as defined
38 in section 215.11 of the penal law; tampering with a witness in the
39 second degree, as defined in section 215.12 of the penal law; tampering
40 with a witness in the first degree, as defined in section 215.13 of the
41 penal law; criminal contempt in the first degree, as defined in subdivi-
42 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
43 criminal contempt, as defined in section 215.52 of the penal law; bail
44 jumping in the second degree, as defined in section 215.56 of the penal
45 law; bail jumping in the first degree, as defined in section 215.57 of
46 the penal law; patronizing a prostitute in the second degree, as defined
47 in section 230.05 of the penal law; patronizing a prostitute in the
48 first degree, as defined in section 230.06 of the penal law; promoting
49 prostitution in the second degree, as defined in section 230.30 of the
50 penal law; promoting prostitution in the first degree, as defined in
51 section 230.32 of the penal law; compelling prostitution, as defined in
52 section 230.33 of the penal law; disseminating indecent materials to
53 minors in the second degree, as defined in section 235.21 of the penal
54 law; disseminating indecent materials to minors in the first degree, as
55 defined in section 235.22 of the penal law; riot in the first degree, as
56 defined in section 240.06 of the penal law; criminal anarchy, as defined
A. 4137 3
1 in section 240.15 of the penal law; aggravated harassment of an employee
2 by an inmate, as defined in section 240.32 of the penal law; unlawful
3 surveillance in the second degree, as defined in section 250.45 of the
4 penal law; unlawful surveillance in the first degree, as defined in
5 section 250.50 of the penal law; endangering the welfare of a vulnerable
6 elderly person in the second degree, as defined in section 260.32 of the
7 penal law; endangering the welfare of a vulnerable elderly person in the
8 first degree, as defined in section 260.34 of the penal law; use of a
9 child in a sexual performance, as defined in section 263.05 of the penal
10 law; promoting an obscene sexual performance by a child, as defined in
11 section 263.10 of the penal law; possessing an obscene sexual perform-
12 ance by a child, as defined in section 263.11 of the penal law; promot-
13 ing a sexual performance by a child, as defined in section 263.15 of the
14 penal law; possessing a sexual performance by a child, as defined in
15 section 263.16 of the penal law; criminal possession of a weapon in the
16 third degree, as defined in section 265.02 of the penal law; criminal
17 sale of a firearm in the third degree, as defined in section 265.11 of
18 the penal law; criminal sale of a firearm to a minor, as defined in
19 section 265.16 of the penal law; unlawful wearing of a body vest, as
20 defined in section 270.20 of the penal law; hate crimes as defined in
21 section 485.05 of the penal law; and crime of terrorism, as defined in
22 section 490.25 of the penal law; or (e) a felony defined in the penal
23 law or an attempt thereof where such attempt is a felony; or (f) any of
24 the following misdemeanors: assault in the third degree as defined in
25 section 120.00 of the penal law; attempted aggravated assault upon a
26 person less than eleven years old, as defined in section 110.00 and
27 section 120.12 of the penal law; attempted menacing in the first degree,
28 as defined in section 110.00 and section 120.13 of the penal law; menac-
29 ing in the second degree as defined in section 120.14 of the penal law;
30 menacing in the third degree as defined in section 120.15 of the penal
31 law; reckless endangerment in the second degree as defined in section
32 120.20 of the penal law; stalking in the fourth degree as defined in
33 section 120.45 of the penal law; stalking in the third degree as defined
34 in section 120.50 of the penal law; attempted stalking in the second
35 degree, as defined in section 110.00 and section 120.55 of the penal
36 law; forcible touching as defined in section 130.52 of the penal law
37 regardless of the age of the victim; sexual abuse in the third degree as
38 defined in section 130.55 of the penal law regardless of the age of the
39 victim; unlawful imprisonment in the second degree as defined in section
40 135.05 of the penal law regardless of the age of the victim; attempted
41 unlawful imprisonment in the first degree, as defined in section 110.00
42 and section 135.10 of the penal law regardless of the age of the victim;
43 criminal trespass in the second degree as defined in section 140.15 of
44 the penal law; possession of burglar's tools as defined in section
45 140.35 of the penal law; petit larceny as defined in section 155.25 of
46 the penal law; endangering the welfare of a child as defined in section
47 260.10 of the penal law; endangering the welfare of an incompetent or
48 physically disabled person as defined in section 260.25] A MISDEMEANOR
49 DEFINED IN THE PENAL LAW OR A FELONY DEFINED IN THE PENAL LAW, OR A
50 PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL OFFENDER PURSUANT TO
51 ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY SUCH
52 MISDEMEANOR OR FELONY, OR A PERSON WHO IS REQUIRED TO REGISTER AS A SEX
53 OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
54 S 2. Section 995-f of the executive law, as amended by chapter 560 of
55 the laws of 1999, is amended to read as follows:
A. 4137 4
1 S 995-f. Penalties. 1. Any person who (a) intentionally discloses a
2 DNA record, or the results of a forensic DNA test or analysis, to an
3 individual or agency other than one authorized to have access to such
4 records pursuant to this article or (b) intentionally uses or receives
5 DNA records, or the results of a forensic DNA test or analysis, for
6 purposes other than those authorized pursuant to this article or (c) any
7 person who knowingly tampers or attempts to tamper with any DNA sample
8 or the collection container without lawful authority shall be guilty of
9 a class E felony.
10 2. ANY DESIGNATED OFFENDER REQUIRED TO PROVIDE A SAMPLE APPROPRIATE
11 FOR DNA TESTING PURSUANT TO THE PROVISIONS OF THIS ARTICLE WHO KNOWINGLY
12 FAILS TO PROVIDE SUCH SAMPLE WITHIN THIRTY DAYS OF BEING NOTIFIED BY A
13 COURT, STATE OR LOCAL CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFI-
14 CER, PAROLE OFFICER OR OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT
15 OF HIS OR HER OBLIGATION TO PROVIDE SUCH A SAMPLE SHALL BE GUILTY OF A
16 CLASS E FELONY. ANY SUCH KNOWING FAILURE TO PROVIDE A SAMPLE APPROPRIATE
17 FOR DNA TESTING SHALL ALSO BE DEEMED TO VIOLATE THE CONDITIONS OF
18 PROBATION OR PAROLE AND SHALL BE A BASIS FOR THE REVOCATION OF PROBATION
19 OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE CRIMINAL
20 PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAPTER. FOR
21 PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED TO
22 INCLUDE POST-RELEASE SUPERVISION.
23 S 3. Subdivision 4 of section 995-c of the executive law, as added by
24 chapter 737 of the laws of 1994, is amended to read as follows:
25 4. The commissioner of the division of criminal justice services, in
26 consultation with the commission, the commissioner of health, the divi-
27 sions of parole and of probation and correctional alternatives and the
28 department of correctional services, shall promulgate rules and regu-
29 lations governing the procedures for notifying designated offenders of
30 the requirements of this section. THE COMMISSIONER OF THE DIVISION OF
31 CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND REGULATIONS
32 GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPROPRIATE FOR DNA
33 TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER
34 PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
35 S 4. Subdivision 3 of section 995-c of the executive law, as amended
36 by chapter 576 of the laws of 2004, is amended to read as follows:
37 3. (A) Any designated offender [subsequent to conviction and sentenc-
38 ing for a crime specified in subdivision seven of section nine hundred
39 ninety-five of this article,] shall be required to provide a sample
40 appropriate for DNA testing to determine identification characteristics
41 specific to such person and to be included in a state DNA identification
42 index pursuant to this article UNLESS SUCH DESIGNATED OFFENDER HAS
43 PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDENTIFI-
44 CATION INDEX.
45 (B) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS
46 NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE
47 PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR
48 ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
49 (C) THE DETENTION, ARREST, INDICTMENT, OR CONVICTION OF A PERSON BASED
50 UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL
51 NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
52 NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR
53 PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
54 S 5. Section 65.10 of the penal law is amended by adding a new subdi-
55 vision 4-b to read as follows:
A. 4137 5
1 4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
2 SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
3 OF AN OFFENSE DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
4 TY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATORY
5 CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS
6 REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW.
7 S 6. This act shall take effect on the first of November next succeed-
8 ing the date on which it shall have become a law; provided, however,
9 that the amendments to subdivision 7 of section 995 of the executive law
10 made by section one of this act and the amendments to paragraph (a) of
11 subdivision 3 of section 995-c of the executive law made by section four
12 of this act shall apply to any person who is convicted of a crime, or
13 adjudicated a youthful offender, or is incarcerated or subject to
14 probation or parole supervision, or is subject to a requirement to
15 register as a sex offender, on or after such effective date.
