Bill Text: NY A05886 | 2011-2012 | General Assembly | Amended
Bill Title: Establishes the minimum period of time that forensic samples should be retained by investigating authorities; creates the state commission for the integrity of the criminal justice system, as an independent agency, and provides for such commission's powers and duties; relates to special fictitious name indictments; relates to requests for certain DNA test comparisons; relates to forensic DNA testing; relates to claims for unjust conviction and imprisonment; relates to DNA testing, data collection and record keeping; and relates to DNA testing in felony cases.
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Engrossed - Dead) 2012-06-04 - REFERRED TO CODES [A05886 Detail]
Download: New_York-2011-A05886-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5886--A
2011-2012 Regular Sessions
I N A S S E M B L Y
March 2, 2011
___________
Introduced by M. of A. LENTOL, SILVER, AUBRY, JAFFEE, FARRELL, WEINSTEIN
-- Multi-Sponsored by -- M. of A. KELLNER, ZEBROWSKI -- read once and
referred to the Committee on Codes -- reported and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to establishing the mini-
mum period of time that forensic samples should be retained by inves-
tigating authorities; in relation to appointments to the commission on
forensic science; to amend the judiciary law, in relation to creating
the state commission for the integrity of the criminal justice system,
as an independent agency, and providing for such commission's powers
and duties; to amend the criminal procedure law, in relation to
special fictitious name indictments; to amend the executive law, in
relation to requests for certain DNA test comparisons; to amend the
criminal procedure law, in relation to forensic DNA testing; to amend
the court of claims act, in relation to claims for unjust conviction
and imprisonment; to amend the executive law and the criminal proce-
dure law, in relation to DNA testing, confidentiality, data collection
and record keeping; to amend the state finance law, in relation to
establishing the DNA evidence fund; in relation to establishing the
innocence research project program; to amend the criminal procedure
law, in relation to electronic recordings of interrogations; and to
amend the executive law, in relation to defining a designated offender
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subparagraph (ix) of paragraph (b) of subdivision 9 of
2 section 995-b of the executive law, as added by chapter 737 of the laws
3 of 1994, is amended and a new paragraph (c) is added to read as follows:
4 (ix) such policy shall provide for the mutual exchange, use and stor-
5 age of DNA records with the system of DNA identification utilized by the
6 federal bureau of investigation provided that the commission determines
7 that such exchange, use and storage are consistent with the provisions
8 of this article and applicable provisions of law[.]; AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03719-03-1
A. 5886--A 2
1 (C) WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH, DETER-
2 MINE, CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE MINIMUM PERIOD OF
3 TIME THAT FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERI-
4 AL, OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME
5 SCENES, SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME OR
6 SPECIFIED EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE
7 INTEREST OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE
8 DESTROYED, AND DETERMINE STANDARDS FOR THE CATALOGING AND MAINTAINING
9 RECORDS OF SUCH SAMPLES. PENDING THE PROMULGATION OF A POLICY ADDRESS-
10 ING THE ISSUES SET FORTH IN THIS PARAGRAPH, THE COMMISSION MAY ADOPT AN
11 INTERIM POLICY MANDATING THE PRESERVATION BY INVESTIGATING AUTHORITIES
12 OF FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL
13 OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME SCENES.
14 S 2. Subdivision 1 of section 995-a of the executive law, as added by
15 chapter 737 of the laws of 1994, is amended to read as follows:
16 1. There is hereby created in the executive department, the commission
17 on forensic science, which shall consist of the following [fourteen]
18 SIXTEEN members: (a) the commissioner of the division of criminal
19 justice services who shall be chair of the commission and the commis-
20 sioner of the department of health or his or her designee, who shall
21 serve as an ex-officio member of the commission;
22 (b) [twelve] FOURTEEN members appointed by the governor.
23 S 3. Paragraph (i) of subdivision 2 of section 995-a of the executive
24 law, as added by chapter 737 of the laws of 1994, is amended, paragraph
25 (j) is relettered paragraph (k) and a new paragraph (j) is added to read
26 as follows:
27 (i) two members shall be members-at-large, one of whom shall be
28 appointed upon the recommendation of the temporary president of the
29 senate, and one of whom shall be appointed upon the recommendation of
30 the speaker of the assembly; [and]
31 (J) TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
32 OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL BE
33 A CRIME VICTIMS ADVOCATE, AND ONE SUCH PERSON SHALL BE AN EXPERT IN
34 BIOMEDICAL ETHICS; AND
35 S 4. Article 23 and sections 860 and 861 of the judiciary law, as
36 renumbered by chapter 840 of the laws of 1983, are renumbered article 24
37 and sections 1000 and 1001 and a new article 23 is added to read as
38 follows:
39 ARTICLE 23
40 STATE COMMISSION FOR THE INTEGRITY
41 OF THE CRIMINAL JUSTICE SYSTEM
42 SECTION 900. DEFINITION.
43 901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
44 SYSTEM.
45 902. PURPOSE AND CONDUCT OF THE COMMISSION.
46 903. POWERS AND DUTIES.
47 904. USE OF REPORTS.
48 S 900. DEFINITION. AS USED IN THIS ARTICLE, "COMMISSION" SHALL MEAN
49 THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM
50 ESTABLISHED PURSUANT TO SECTION NINE HUNDRED ONE OF THIS ARTICLE.
51 S 901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
52 SYSTEM. 1. THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL
53 JUSTICE SYSTEM IS HEREBY ESTABLISHED AS AN INDEPENDENT AGENCY OF THE
54 STATE. THE COMMISSION SHALL CONSIST OF TEN MEMBERS AS FOLLOWS:
55 (A) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES;
56 (B) FOUR MEMBERS APPOINTED BY THE GOVERNOR, OF WHOM:
A. 5886--A 3
1 (I) ONE SHALL BE A REPRESENTATIVE OF A LAW ENFORCEMENT AGENCY,
2 (II) ONE SHALL BE A REPRESENTATIVE OF THE PUBLIC CRIMINAL DEFENSE BAR
3 OR PRIVATE CRIMINAL DEFENSE BAR WHO SHALL BE APPOINTED UPON THE RECOM-
4 MENDATION OF AN ORGANIZATION WITH MORE THAN SEVEN HUNDRED FIFTY DUES
5 PAYING MEMBERS REPRESENTING SUCH PUBLIC OR PRIVATE DEFENSE SERVICES,
6 (III) ONE SHALL BE A REPRESENTATIVE OF VICTIMS RIGHTS ADVOCACY OR
7 SERVICES ORGANIZATIONS, AND
8 (IV) ONE SHALL BE A REPRESENTATIVE OF THE FORENSIC SCIENCE FIELD;
9 (C) A MEMBER APPOINTED BY THE ATTORNEY GENERAL WHO SHALL BE A REPRE-
10 SENTATIVE OF PROSECUTION SERVICES;
11 (D) TWO MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS,
12 OF WHOM:
13 (I) ONE SHALL BE A RETIRED JUDGE OR JUSTICE OF A NEW YORK STATE COURT
14 OF RECORD, AND
15 (II) ONE SHALL BE A PROFESSOR OF LAW OR A RETIRED FULL TIME PROFESSOR
16 OF LAW WHO HAS TAUGHT LAW SCHOOL COURSES IN CRIMINAL LAW, CRIMINAL
17 PROCEDURE, CONSTITUTIONAL LAW, OR EVIDENCE AT AN ACCREDITED POST-GRADU-
18 ATE COLLEGE IN NEW YORK STATE;
19 (E) ONE MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE, WHO
20 SHALL BE A MEMBER OF THE PUBLIC-AT-LARGE; AND
21 (F) ONE MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY, WHO SHALL BE
22 A MEMBER OF THE PUBLIC-AT-LARGE.
23 2. THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL SERVE AN INDEF-
24 INITE TERM. THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE A TERM OF
25 FOUR YEARS. THE RETIRED JUDGE OR JUSTICE APPOINTED BY THE CHIEF JUDGE
26 SHALL SERVE A TERM OF THREE YEARS. THE PROFESSOR OF LAW OR RETIRED
27 PROFESSOR OF LAW APPOINTED BY THE CHIEF JUDGE SHALL SERVE A TERM OF TWO
28 YEARS. THE MEMBERS APPOINTED BY THE ATTORNEY GENERAL, THE TEMPORARY
29 PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY SHALL EACH SERVE
30 A TERM OF TWO YEARS. EACH OF THE MEMBERS OF THE COMMISSION, EXCEPT THE
31 COMMISSIONER OF CRIMINAL JUSTICE SERVICES, APPOINTED THEREAFTER SHALL
32 SERVE A TERM OF FIVE YEARS. EVERY VACANCY OCCURRING PRIOR TO THE EXPI-
33 RATION OF A MEMBER'S TERM SHALL BE FILLED FOR THE REMAINDER OF SUCH TERM
34 IN THE MANNER PROVIDED FOR THE ORIGINAL APPOINTMENT TO SUCH TERM. UPON
35 THE EXPIRATION OF THE TERM OF A MEMBER OF THE COMMISSION, SUCH MEMBER
36 SHALL CONTINUE TO SERVE UNTIL HIS OR HER SUCCESSOR IS APPOINTED.
37 3. THE COMMISSION SHALL ELECT A CHAIR FROM AMONGST ITS MEMBERS BY A
38 MAJORITY VOTE OF THE MEMBERS THEREOF.
39 4. NO MEMBER OF THE COMMISSION SHALL BE DISQUALIFIED FROM HOLDING ANY
40 PUBLIC OFFICE OR EMPLOYMENT, NOR SHALL HE OR SHE FORFEIT ANY SUCH OFFICE
41 OR EMPLOYMENT, BY REASON OF HIS OR HER APPOINTMENT PURSUANT TO THIS
42 SECTION, AND THE MEMBERS OF THE COMMISSION SHALL BE REQUIRED TO TAKE AND
43 FILE OATHS OF OFFICE BEFORE SERVING ON THE COMMISSION.
44 5. THE COMMISSION SHALL MEET AT LEAST FOUR TIMES EACH YEAR AT PREDE-
45 TERMINED TIMES AND LOCATIONS ANNOUNCED IN ADVANCE, AND AT SUCH OTHER
46 TIMES AS THE CHAIR OF THE COMMISSION OR FOUR OR MORE MEMBERS SHALL
47 DETERMINE TO BE NECESSARY.
48 6. FOR ANY ACTION AUTHORIZED BY THIS ARTICLE, FIVE MEMBERS OF THE
49 COMMISSION SHALL CONSTITUTE A QUORUM AND, EXCEPT AS OTHERWISE PROVIDED
50 IN SUBDIVISIONS THREE AND FIVE OF THIS SECTION, THE CONCURRENCE OF SIX
51 MEMBERS OF THE COMMISSION SHALL BE NECESSARY.
52 7. THE MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
53 COMPENSATION, BUT SHALL BE ENTITLED TO RECEIVE ACTUAL AND NECESSARY
54 EXPENSES INCURRED IN THE DISCHARGE OF THEIR DUTIES PURSUANT TO THIS
55 ARTICLE.
A. 5886--A 4
1 S 902. PURPOSE AND CONDUCT OF THE COMMISSION. THE COMMISSION SHALL
2 REVIEW ANY CRIMINAL OR JUVENILE CASE INVOLVING A WRONGFUL CONVICTION AND
3 RECOMMEND REFORMS TO LESSEN THE LIKELIHOOD OF A SIMILAR WRONGFUL
4 CONVICTION OCCURRING IN THE FUTURE.
5 WHENEVER A PERSON WHO HAS BEEN CONVICTED OF A CRIME OR ADJUDICATED A
6 YOUTHFUL OFFENDER OR JUVENILE DELINQUENT IS SUBSEQUENTLY DETERMINED TO
7 BE INNOCENT OF SUCH CRIME OR OFFENSE AND EXONERATED, THE COMMISSION
8 SHALL CONDUCT AN INVESTIGATION, HOLD HEARINGS ON AND MAKE FINDINGS OF
9 FACT REGARDING THE WRONGFUL CONVICTION IN ORDER TO DETERMINE THE CAUSE
10 OR CAUSES OF THE WRONGFUL CONVICTION.
11 UPON THE COMPLETION OF SUCH PROCESS, THE COMMISSION, WITHIN SIXTY
12 DAYS, SHALL ISSUE A PRELIMINARY WRITTEN REPORT OF ITS FINDINGS OF FACT
13 AND CONCLUSIONS, AND ANY RECOMMENDATIONS TO PREVENT WRONGFUL CONVICTIONS
14 FROM OCCURRING UNDER SIMILAR CIRCUMSTANCES IN THE FUTURE. WITHIN ONE
15 HUNDRED TWENTY DAYS AFTER ISSUING SUCH PRELIMINARY REPORT, THE COMMIS-
16 SION SHALL ISSUE ITS REPORT AND RECOMMENDATIONS CONCERNING THE MATTER.
17 SUCH REPORT AND RECOMMENDATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC,
18 AND SHALL BE DELIVERED TO THE GOVERNOR, ATTORNEY GENERAL, CHIEF JUDGE OF
19 THE COURT OF APPEALS, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF THE
20 ASSEMBLY, AND TO ANY GOVERNMENTAL UNIT OR AGENCY THAT THE COMMISSION
21 FINDS MAY HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDICATION OF THE
22 WRONGFUL CONVICTION. THE COMMISSION SHALL ALSO MAKE AVAILABLE AN ANNUAL
23 REPORT DETAILING, AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR FORMAL
24 AND INFORMAL INVESTIGATION, THE NUMBER OF COMPLETED INVESTIGATIONS AND
25 THE STATUS OF ON-GOING OR PENDING INVESTIGATIONS.
26 S 903. POWERS AND DUTIES. THE COMMISSION SHALL HAVE THE POWERS AND
27 DUTIES TO:
28 1. ESTABLISH ITS OWN REASONABLE RULES AND PROCEDURES CONCERNING THE
29 CONDUCT OF ITS MEETINGS AND OTHER AFFAIRS RELATED TO IMPLEMENTING THE
30 PROVISIONS OF THIS ARTICLE;
31 2. EMPLOY AND REMOVE SUCH OFFICERS, INVESTIGATORS AND EMPLOYEES AS IT
32 MAY DEEM NECESSARY FOR THE PERFORMANCE OF ITS POWERS AND DUTIES PURSUANT
33 TO THIS ARTICLE, AND FIX THEIR COMPENSATION WITHIN THE AMOUNTS MADE
34 AVAILABLE THEREFOR;
35 3. CONDUCT INVESTIGATIONS AND HEARINGS, ADMINISTER OATHS OR AFFIRMA-
36 TIONS, SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
37 OATH OR AFFIRMATION, REQUIRE PRODUCTION OF ANY BOOKS, RECORDS, DOCUMENTS
38 OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO AN INVESTI-
39 GATION, AND MAY DESIGNATE ANY OF ITS MEMBERS, OFFICERS OR INVESTIGATORS
40 TO EXERCISE ANY SUCH POWERS; PROVIDED, HOWEVER, NOTHING IN THIS SUBDIVI-
41 SION SHALL AUTHORIZE THE ISSUANCE OF A SUBPOENA OR COMPELLED QUESTIONING
42 OF THE TRIAL COURT JUDGE OR ANY APPELLATE COURT JUDGE CONCERNING THE
43 JUDGE'S MENTAL PROCESSES IN ARRIVING AT ANY DECISION IN A CASE;
44 4. REQUEST AND RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
45 BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE OR A POLITICAL SUBDIVI-
46 SION THEREOF OR ANY PUBLIC AUTHORITY SUCH ASSISTANCE, INFORMATION,
47 RECORDS AND DATA AS WILL ENABLE IT TO PROPERLY CARRY OUT ITS POWERS AND
48 DUTIES;
49 5. ISSUE PRELIMINARY REPORTS ON ANY INVESTIGATION CONDUCTED PURSUANT
50 TO THIS ARTICLE, WHICH PRELIMINARY REPORTS SHALL INCLUDE FINDINGS OF
51 FACT AND RECOMMENDATIONS, AND INVITE ANY PARTY DIRECTLY INVOLVED IN THE
52 WRONGFUL CONVICTION, WHICH IS THE SUBJECT OF THE REPORT, TO SUBMIT A
53 REPLY WITHIN SIXTY DAYS TO THE COMMISSION CONCERNING THE FINDINGS OF
54 FACT AND RECOMMENDATIONS IN THE REPORT. ANY SUCH REPLY SHALL BE MADE
55 AVAILABLE BY THE COMMISSION, TOGETHER WITH ANY RESPONSE BY THE COMMIS-
56 SION THERETO, TO THE PARTIES LISTED IN SECTION NINE HUNDRED TWO OF THIS
A. 5886--A 5
1 ARTICLE AS PART OF THE COMMISSION'S REPORT AND RECOMMENDATIONS CONCERN-
2 ING THE MATTER; AND
3 6. DO ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT THE
4 PROVISIONS OF THIS ARTICLE.
5 S 904. USE OF REPORTS. NO PRELIMINARY REPORT, REPORT OR PORTION THERE-
6 OF ISSUED PURSUANT TO THIS ARTICLE SHALL BE ADMITTED INTO EVIDENCE OR
7 USED IN ANY CIVIL OR CRIMINAL CAUSE OF ACTION RELATING TO A MATTER WHICH
8 IS THE SUBJECT OF SUCH REPORT.
9 S 5. Section 1.20 of the criminal procedure law is amended by adding a
10 new subdivision 44 to read as follows:
11 44. "SPECIAL FICTITIOUS NAME INDICTMENT" MEANS AN INDICTMENT OF A
12 PERSON WHOSE NAME IS UNKNOWN BUT WHOSE IDENTITY IS ESTABLISHED TO THE
13 SATISFACTION OF A GRAND JURY PURSUANT TO SUBDIVISION ONE OF SECTION
14 190.65 OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID (DNA)
15 TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
16 SHALL INCLUDE A FICTITIOUS NAME, SUCH AS "JOHN DOE" OR "JANE DOE", IN
17 PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
18 S 6. Subdivision 3 of section 190.65 of the criminal procedure law is
19 amended to read as follows:
20 3. Upon voting to indict a person, a grand jury must, through its
21 foreman or acting foreman, file an indictment with the court by which it
22 was impaneled. WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT HIS
23 OR HER IDENTITY IS ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
24 PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC DEOXY-
25 RIBONUCLEIC ACID (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
26 BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS NAME
27 INDICTMENT. THE AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
28 PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
29 IN LAW FOR THE FILING OF AN INDICTMENT WHEN THE NAME OF AN INDICTED
30 PERSON IS UNKNOWN.
31 S 7. Section 995-c of the executive law is amended by adding a new
32 subdivision 10 to read as follows:
33 10. A SUPERIOR COURT, IN RESPONSE TO A MOTION FOR SUCH COMPARISON BY A
34 DEFENDANT, MAY ORDER THAT DNA INFORMATION FROM A CRIME SCENE SAMPLE OR
35 SAMPLES AND/OR FINGERPRINTS OR DNA INFORMATION OBTAINED IN THE COURSE OF
36 THE INVESTIGATION OF AN ALLEGED CRIME BE CHECKED AGAINST THE DNA RECORDS
37 MAINTAINED BY OR AVAILABLE THROUGH THE STATE DNA IDENTIFICATION INDEX
38 ESTABLISHED PURSUANT TO THIS SECTION AND THE NATIONAL DNA INDEX SYSTEM,
39 AND AGAINST THE FINGERPRINT RECORDS MAINTAINED BY OR AVAILABLE THROUGH
40 THE STATE FINGERPRINT RECORD DATABASE ESTABLISHED PURSUANT TO SUBDIVI-
41 SION SEVEN OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THIS CHAPTER AND THE
42 NATIONAL FINGERPRINT IDENTIFICATION SYSTEM, AND THAT THE RESULTS OF SUCH
43 CHECK OR CHECKS BE DISCLOSED TO SUCH DEFENDANT AND TO THE PROSECUTOR
44 WHOSE JURISDICTION INCLUDES THE LOCATION OF THE ALLEGED COMMISSION OF
45 SUCH CRIME, UPON A SHOWING BY THE DEFENDANT THAT SUCH AN ANALYSIS MAY BE
46 MATERIAL TO HIS OR HER DEFENSE AND THAT THE REQUEST IS REASONABLE.
47 S 8. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
48 nal procedure law, as amended by chapter 138 of the laws of 2004, is
49 amended to read as follows:
50 (a) Where the defendant's motion requests the performance of a foren-
51 sic DNA test on specified evidence, and upon the court's determination
52 that any evidence containing deoxyribonucleic acid ("DNA") was secured
53 in connection with the INVESTIGATION OR trial resulting in the judgment,
54 the court shall grant the application for forensic DNA testing of such
55 evidence upon its determination that if a DNA test had been conducted on
56 such evidence, and if the results had been AVAILABLE TO THE DEFENDANT,
A. 5886--A 6
1 OR THE RESULTS HAD BEEN admitted in the trial resulting in the judgment,
2 there exists a reasonable probability that the DISPOSITION OR verdict
3 would have been more favorable to the defendant.
4 S 9. Subdivisions 3 and 5 of section 8-b of the court of claims act,
5 as added by chapter 1009 of the laws of 1984, are amended to read as
6 follows:
7 3. In order to present the claim for unjust conviction and imprison-
8 ment, claimant must establish by documentary evidence that:
9 (a) he has been convicted of one or more felonies or misdemeanors
10 against the state and subsequently sentenced to a term of imprisonment,
11 and has served all or any part of the sentence; and
12 (b) (i) he has been pardoned upon the ground of innocence of the crime
13 or crimes for which he was sentenced and which are the grounds for the
14 complaint; or (ii) his judgment of conviction was reversed or vacated,
15 and the accusatory instrument dismissed or, if a new trial was ordered,
16 either he was found not guilty at the new trial or he was not retried
17 and the accusatory instrument dismissed; provided that the [judgement]
18 JUDGMENT of conviction was reversed or vacated[, and the accusatory
19 instrument was dismissed,] on any of the following grounds: (A) para-
20 graph (a), (b), (c), (e), (F) or (g) of subdivision one of section
21 440.10 of the criminal procedure law; or (B) subdivision one (where
22 based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
23 two, three (where the count dismissed was the sole basis for the impri-
24 sonment complained of) or five of section 470.20 of the criminal proce-
25 dure law; or (C) comparable provisions of the former code of criminal
26 procedure or subsequent law; or (D) the statute, or application thereof,
27 on which the accusatory instrument was based violated the constitution
28 of the United States or the state of New York; OR (E) THE CLAIMANT'S
29 CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN
30 ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT WHOSE APPLICATION
31 TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY
32 SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES
33 WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND,
34 INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS (A), (B), (C) AND (D)
35 OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECI-
36 SION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A
37 GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
38 GRAPH; and
39 (c) his claim is not time-barred by the provisions of subdivision
40 seven of this section.
41 5. In order to obtain a judgment in his favor, claimant must prove by
42 clear and convincing evidence that:
43 (a) he has been convicted of one or more felonies or misdemeanors
44 against the state and subsequently sentenced to a term of imprisonment,
45 and has served all or any part of the sentence; and
46 (b) (i) he has been pardoned upon the ground of innocence of the crime
47 or crimes for which he was sentenced and which are the grounds for the
48 complaint; or (ii) his judgment of conviction was reversed or vacated,
49 and the accusatory instrument dismissed or, if a new trial was ordered,
50 either he was found not guilty at the new trial or he was not retried
51 and the accusatory instrument dismissed; provided that the [judgement]
52 JUDGMENT of conviction was reversed or vacated[, and the accusatory
53 instrument was dismissed,] on any of the following grounds: (A) para-
54 graph (a), (b), (c), (e), (F) or (g) of subdivision one of section
55 440.10 of the criminal procedure law; or (B) subdivision one (where
56 based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
A. 5886--A 7
1 two, three (where the count dismissed was the sole basis for the impri-
2 sonment complained of) or five of section 470.20 of the criminal proce-
3 dure law; or (C) comparable provisions of the former code of criminal
4 procedure or subsequent law; or (D) the statute, or application thereof,
5 on which the accusatory instrument was based violated the constitution
6 of the United States or the state of New York; OR (E) THE CLAIMANT'S
7 CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN
8 ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT WHOSE APPLICATION
9 TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY
10 SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES
11 WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND,
12 INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS (A), (B), (C) AND (D)
13 OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECI-
14 SION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A
15 GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
16 GRAPH; and
17 (c) he did not commit any of the acts charged in the accusatory
18 instrument or his acts or omissions charged in the accusatory instrument
19 did not constitute a felony or misdemeanor against the state, PROVIDED
20 THAT, WHERE ONE INDICTMENT CONTAINS MULTIPLE COUNTS ARISING FROM SEPA-
21 RATE COMPLAINTS OR INCIDENTS, THE COURT SHALL CONSIDER ANY CLAIM RELATED
22 TO SPECIFIED COUNTS IN THE INDICTMENT ARISING OUT OF ONLY ONE OF THE
23 COMPLAINTS OR INCIDENTS; and
24 (d) he did not by his own conduct cause or bring about his conviction.
25 S 10. Section 995-b of the executive law is amended by adding a new
26 subdivision 14 to read as follows:
27 14. THE COMMISSION SHALL REVIEW THE CONFIDENTIALITY SAFEGUARDS WHICH
28 ARE MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER INFORMATION
29 FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
30 SHALL DETERMINE WHETHER ANY ADDITIONAL CONFIDENTIALITY SAFEGUARDS ARE
31 NECESSARY WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO ISSUE
32 A REPORT TO THE MAJORITY LEADER OF THE SENATE AND THE SPEAKER OF THE
33 ASSEMBLY WHICH DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND THE REASONS
34 FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
35 SUCH SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT SHALL
36 ALSO RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES, FOLLOWING
37 THE ENCODING OF INFORMATION FROM SUCH SAMPLES INTO THE STATE DNA IDEN-
38 TIFICATION INDEX, SHOULD BE INITIATED OR WHETHER, ALTERNATIVELY, SUCH
39 SAMPLES SHALL CONTINUE TO BE MAINTAINED.
40 S 11. Subdivision 2 of section 995-c of the executive law, as added by
41 chapter 737 of the laws of 1994, is amended to read as follows:
42 2. (A) Following the review and approval of the plan by the DNA
43 subcommittee and the commission and the filing of such plan with the
44 speaker of the assembly and the temporary president of the senate, the
45 commissioner of criminal justice services is hereby authorized to estab-
46 lish a computerized state DNA identification index pursuant to the
47 provisions of this article. NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
48 LATION OF DNA IDENTIFICATION PROFILES MAY BE MAINTAINED IN THIS STATE
49 PROVIDED, HOWEVER, THAT THIS PROHIBITION SHALL NOT BE INTERPRETED TO
50 PROHIBIT ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED FROM
51 CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
52 (B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
53 VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
54 AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
55 OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
A. 5886--A 8
1 S 12. Paragraph (b) of subdivision 9 of section 995-c of the execu-
2 tive law, as added by chapter 524 of the laws of 2002, is amended and
3 two new paragraphs (c) and (d) are added to read as follows:
4 (b) As prescribed in this paragraph, if an individual, either volun-
5 tarily or pursuant to a warrant or order of a court, has provided a
6 sample for DNA testing in connection with the investigation or prose-
7 cution of a crime and (i) no criminal action against the individual
8 relating to such crime was commenced within the period specified by
9 section 30.10 of the criminal procedure law, or (ii) a criminal action
10 was commenced against the individual relating to such crime which
11 resulted in a complete acquittal, OR A DISMISSAL AND THE MATTER WILL NOT
12 BE TRIED OR RETRIED, or (iii) a criminal action against the individual
13 relating to such crime resulted in a conviction that was subsequently
14 reversed or vacated, or for which the individual was granted a pardon
15 pursuant to article two-A of this chapter, such individual may apply to
16 the supreme court or the court in which the judgment of conviction was
17 originally entered for an order directing the expungement of any DNA
18 record and any samples, analyses, or other documents relating to the DNA
19 testing of such individual in connection with the investigation or pros-
20 ecution of such crime. A copy of such application shall be served on the
21 district attorney and an order directing expungement may be granted if
22 the court finds that the individual has satisfied the conditions of one
23 of the subparagraphs of this paragraph; that if a judgment of conviction
24 was reversed or vacated, all appeals relating thereto have been
25 concluded and the individual will not be retried, or, if a retrial has
26 occurred, the trier of fact has rendered a verdict of complete acquit-
27 tal, and that expungement will not adversely affect the investigation or
28 prosecution of some other person or persons for the crime. NOTHING IN
29 THIS PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
30 EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN THE INTERESTS
31 OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
32 ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
33 ing the expungement of any DNA record and any samples, analyses or other
34 documents relating to the DNA testing of such individual is issued, such
35 record and any samples, analyses, or other documents shall, at the
36 discretion of the possessor thereof, be destroyed or returned to such
37 individual or to the attorney who represented him or her in connection
38 with the application for the order of expungement. THE PERSON DESTROYING
39 OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND OTHER DOCUMENTS SHALL
40 MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
41 RETURN AND IDENTIFYING THE PERSON OR PERSONS DESTROYING OR RETURNING
42 SAME. THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
43 RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR TO THE ATTORNEY WHO
44 REPRESENTED HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
45 OF EXPUNGEMENT.
46 (C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
47 INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH THE
48 INVESTIGATION OR PROSECUTION OF A CRIME, OTHER THAN IN RESPONSE TO A
49 DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND THREE OF THIS
50 SECTION, OR IF A SAMPLE FOR DNA TESTING HAS OTHERWISE COME INTO THE
51 CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN AGENT THEREOF,
52 AND THE DNA PROFILE DERIVED FROM SUCH SAMPLE DOES NOT MATCH A DNA
53 PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN CONNECTION WITH
54 THE INVESTIGATION OR PROSECUTION OF A CRIMINAL ACT OR ACTS, EVERY
55 RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA TESTING
56 OF SUCH SAMPLE SHALL, AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
A. 5886--A 9
1 EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
2 MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
3 CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE WITH RESPECT TO THE
4 INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
5 FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
6 ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE LINKED
7 TO SUCH SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
8 SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
9 CRIME HAS CONCLUDED, WHICHEVER FIRST OCCURS, SUCH RECORDS, SAMPLES,
10 ANALYSES AND OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR
11 THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED IN A
12 MANNER CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPH (II), (IV) OR (V)
13 OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 160.55 OF THE CRIMINAL
14 PROCEDURE LAW.
15 (II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
16 ANALYSES OR OTHER DOCUMENTS IN ACCORDANCE WITH THIS PARAGRAPH SHALL
17 MAINTAIN A RECORD CERTIFYING THE DATE AND MANNER OF SUCH RETURN,
18 DESTRUCTION OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
19 DESTROYING OR SEALING SAME. THE PERSON RETURNING, DESTROYING OR SEALING
20 SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON WHO SUBMITTED THE
21 SAMPLE.
22 (III) THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
23 PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
24 APPLY TO DNA RECORDS, SAMPLES, ANALYSES AND OTHER DOCUMENTS OBTAINED
25 FROM THE FORENSIC EXAMINATION OF CRIME SCENE EVIDENCE, WHERE THE DNA
26 PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE DNA
27 PROFILE OF A KNOWN PERSON.
28 (D) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
29 THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
30 PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
31 TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED OR SEALED,
32 AND MAY BE INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
33 PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF THIS PARA-
34 GRAPH, THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
35 OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
36 CLE. ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
37 CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED IN THE STATE DNA
38 IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
39 S 13. 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
A. 5886--A 10
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 S 14. Section 340.20 of the criminal procedure law is amended by
40 adding a new subdivision 5 to read as follows:
41 5. PRIOR TO ACCEPTING A DEFENDANT'S PLEA OF GUILTY TO A COUNT OR
42 COUNTS OF AN INFORMATION CHARGING A MISDEMEANOR, AS DEFINED IN PARAGRAPH
43 (A) OF SUBDIVISION TWO OF SECTION 55.10 OF THE PENAL LAW AND INCLUDED IN
44 THE DEFINITION OF DESIGNATED OFFENDER PURSUANT TO SUBDIVISION SEVEN OF
45 SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL
46 ADVISE THE DEFENDANT THAT UPON THE CONVICTION FOR SUCH MISDEMEANOR HE OR
47 SHE WILL BE REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING FOR
48 INCLUSION IN THE STATE DNA IDENTIFICATION INDEX PURSUANT TO ARTICLE
49 FORTY-NINE-B OF THE EXECUTIVE LAW. THE COURT SHALL AFFIRM ON THE RECORD
50 OR IN WRITING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE REQUIRED BY
51 THIS SUBDIVISION. THE FAILURE OF A COURT TO ADVISE THE DEFENDANT PURSU-
52 ANT TO THIS SUBDIVISION OR TO OTHERWISE COMPLY WITH THE PROVISIONS OF
53 THIS SUBDIVISION SHALL NOT BE DEEMED TO AFFECT THE VOLUNTARINESS OF A
54 PLEA OF GUILTY OR THE VALIDITY OF A CONVICTION.
55 S 15. Subdivision 1-a of section 440.30 of the criminal procedure law
56 is amended by adding a new paragraph (c) to read as follows:
A. 5886--A 11
1 (C) IN CONJUNCTION WITH THE FILING OF A MOTION UNDER THIS SUBDIVISION,
2 THE COURT MAY DIRECT THE STATE TO PROVIDE THE MOVANT WITH INFORMATION,
3 INCLUDING DOCUMENTS, NOTES, LOGS OR REPORTS, RELATING TO ANY PHYSICAL
4 ITEMS COLLECTED IN CONNECTION WITH THE CASE, WHERE IT IS LIKELY ANY SUCH
5 PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING, WOULD YIELD DNA INFORMATION
6 THAT MEETS THE STANDARD SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION.
7 THE COURT MAY DIRECT THE STATE TO PROVIDE OTHER REASONABLE ASSISTANCE TO
8 THE MOVANT IN LOCATING ANY SUCH RECORDS OR ITEMS OF PHYSICAL EVIDENCE
9 WHICH MAY HAVE BEEN LOST OR DESTROYED. THE COURT MAY ALSO DIRECT THE
10 PEOPLE TO TAKE REASONABLE MEASURES TO ATTEMPT TO LOCATE ANY SUCH RECORDS
11 OR PHYSICAL ITEMS THAT MAY BE IN GOVERNMENT CUSTODY AND/OR ASSIST THE
12 MOVANT IN LOCATING ANY SUCH RECORDS OR PHYSICAL ITEMS THAT MAY BE IN THE
13 CUSTODY OF A PUBLIC OR PRIVATE HOSPITAL, LABORATORY OR OTHER FACILITY.
14 THE COURT SHALL DENY A REQUEST FOR ASSISTANCE BROUGHT UNDER THIS PARA-
15 GRAPH IF THE COURT DETERMINES THAT SUCH REQUEST FOR ASSISTANCE IS FRIVO-
16 LOUS, ABUSIVE OR INAPPROPRIATE.
17 S 16. The state finance law is amended by adding a new section 97-kkkk
18 to read as follows:
19 S 97-KKKK. ASSISTANCE TO POLICE AND CRIME LABORATORIES: DNA EVIDENCE
20 FUND. 1. THERE IS HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-
21 TROLLER A SPECIAL FUND TO BE KNOWN AS THE "ASSISTANCE TO POLICE AND
22 CRIME LABORATORIES: DNA EVIDENCE FUND".
23 2. SUCH FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR THE PURPOSE
24 OF SUCH FUND, ALL OTHER MONIES CREDITED OR TRANSFERRED TO SUCH FUND
25 PURSUANT TO LAW, ALL MONIES REQUIRED BY THE PROVISIONS OF THIS SECTION
26 OR ANY OTHER LAW TO BE PAID INTO OR CREDITED TO SUCH ACCOUNT, AND ALL
27 MONIES RECEIVED BY THE ACCOUNT OR DONATED TO IT.
28 3. MONIES OF SUCH FUND SHALL BE AVAILABLE FOR APPROPRIATION AND ALLO-
29 CATION TO THE DIVISION OF STATE POLICE, TO LOCAL POLICE AGENCIES, AND TO
30 FORENSIC DNA LABORATORIES IN THIS STATE, AS DEFINED IN SUBDIVISION TWO
31 OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, TO ASSIST SUCH
32 ENTITIES IN EFFECTIVELY COLLECTING, TESTING AND ANALYZING FORENSIC DNA
33 CRIME SCENE EVIDENCE PURSUANT TO ARTICLE FORTY-NINE-B OF THE EXECUTIVE
34 LAW. FIFTY PERCENT OF SUCH FUNDS SHALL BE MADE AVAILABLE FOR APPROPRI-
35 ATION OR ALLOCATION BY THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES FOR
36 THE PURPOSE OF FUNDING AN INNOCENCE RESEARCH PROJECT PROGRAM IN THIS
37 STATE.
38 4. MONIES OF SUCH FUND SHALL BE PAID OUT ON THE AUDIT AND WARRANT OF
39 THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER OF
40 CRIMINAL JUSTICE SERVICES.
41 S 17. Innocence research project program. 1. There is hereby estab-
42 lished in this state an innocence research project program. Funding
43 shall be made available for the purposes of such program to up to three
44 not-for-profit organizations by the commissioner of criminal justice
45 services pursuant to subdivisions 3 and 4 of section 97-kkkk of the
46 state finance law.
47 2. The innocence research project program shall review and study cases
48 in which there appears to be a reasonable possibility that a person
49 charged with or convicted of a crime in this state may be innocent of
50 the crime or crimes charged. Such program may provide legal and other
51 expert assistance, and may also provide relevant training, including but
52 not limited to training in the use of DNA evidence for forensic iden-
53 tification purposes, to attorneys engaged in the defense of criminal
54 cases.
55 3. Each not-for-profit organization receiving funding for such program
56 shall file an annual report with the commissioner of criminal justice
A. 5886--A 12
1 services summarizing the activities of the program during the previous
2 year. Such report shall be filed within one year after such organization
3 first receives funding under such program, and annually thereafter for
4 so long as the program receives such funding.
5 4. Before providing assistance to any individual believed to be actu-
6 ally innocent of the crime or crimes charged, the organization-based
7 coordinator of such program shall determine whether such individual is
8 financially able to pay for the proposed services or assistance to be
9 provided. If such individual is able to financially afford to pay for
10 such services or assistance, such coordinator shall request and receive
11 such payment or payments on behalf of the program from such individual.
12 All monies received from individuals pursuant to this subdivision shall
13 be promptly forwarded by such coordinator to the state comptroller, for
14 deposit into the "assistance to police and crime laboratories: DNA
15 evidence fund" established pursuant to section 97-kkkk of the state
16 finance law.
17 S 18. The criminal procedure law is amended by adding a new section
18 60.47 to read as follows:
19 S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
20 ANTS.
21 1. DEFINITIONS. AS USED IN THIS SECTION:
22 (A) "ELECTRONIC RECORDING" MEANS A CONTEMPORANEOUS VIDEO AND AUDIO
23 RECORDING, OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
24 AUDIO RECORDING.
25 (B) "CUSTODIAL INTERROGATION" MEANS ANY INTERROGATION WHICH IS
26 CONDUCTED IN A PLACE OF DETENTION AND DURING WHICH A REASONABLE PERSON
27 IN THE SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN
28 CUSTODY.
29 (C) "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
30 TY, HOLDING FACILITY FOR PRISONERS, OR OTHER GOVERNMENT FACILITY WHERE
31 PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES WHICH
32 HAVE BEEN OR MAY BE FILED AGAINST THEM.
33 2. DURING THE PROSECUTION OF A FELONY, AN ORAL, WRITTEN, OR SIGN
34 LANGUAGE STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
35 SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE AGAINST A DEFENDANT IN A
36 CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
37 DIAL INTERROGATION IN ITS ENTIRETY AND THE RECORDING IS SUBSTANTIALLY
38 ACCURATE AND NOT INTENTIONALLY ALTERED.
39 3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED TO A CUSTODIAL
40 INTERROGATION IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY
41 STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
42 EVEN IF OTHERWISE IN COMPLIANCE WITH THIS SECTION, ARE ALSO PRESUMED
43 INADMISSIBLE.
44 4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
45 AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND RELI-
46 ABLE AND:
47 (A) EXIGENT CIRCUMSTANCES EXISTED NECESSITATING INTERROGATION AT A
48 PLACE IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
49 OR HOLDING FACILITY FOR PRISONERS AND WHERE THE REQUISITE RECORDING
50 EQUIPMENT WAS NOT READILY AVAILABLE;
51 (B) THE ACCUSED REFUSED TO HAVE HIS OR HER INTERROGATION ELECTRON-
52 ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
53 (C) THE FAILURE TO ELECTRONICALLY RECORD AN ENTIRE INTERROGATION WAS
54 THE RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT WAS
55 NOT FEASIBLE.
56 5. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
A. 5886--A 13
1 (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
2 BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
3 (B) A SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
4 GATION;
5 (C) A STATEMENT MADE AFTER QUESTIONING THAT IS ROUTINELY ASKED DURING
6 THE PROCESSING OF THE ARREST OF THE SUSPECT;
7 (D) A STATEMENT MADE DURING A CUSTODIAL INTERROGATION THAT IS
8 CONDUCTED OUT-OF-STATE;
9 (E) A STATEMENT OBTAINED BY A FEDERAL LAW ENFORCEMENT OFFICER IN A
10 FEDERAL PLACE OF DETENTION;
11 (F) A STATEMENT GIVEN AT A TIME WHEN THE INTERROGATORS ARE UNAWARE
12 THAT A FELONY HAS IN FACT OCCURRED; OR
13 (G) A STATEMENT, OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
14 USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
15 6. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
16 OF A CUSTODIAL INTERROGATION UNTIL SUCH TIME AS THE DEFENDANT'S
17 CONVICTION FOR ANY OFFENSE RELATING TO THE INTERROGATION IS FINAL AND
18 ALL DIRECT AND HABEAS CORPUS APPEALS ARE EXHAUSTED, OR THE PROSECUTION
19 OF THAT OFFENSE IS BARRED BY LAW.
20 S 19. Subdivision 7 of section 995 of the executive law, as amended by
21 chapter 2 of the laws of 2006, paragraph (a) as separately amended by
22 chapter 320 of the laws of 2006 and paragraph (f) as amended by chapter
23 405 of the laws of 2010, is amended to read as follows:
24 7. "Designated offender" means a person convicted of and sentenced for
25 [any one or more of the following provisions of the penal law (a)
26 sections 120.05, 120.10, and 120.11, relating to assault; sections
27 125.15 through 125.27 relating to homicide; sections 130.25, 130.30,
28 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to
29 sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to
30 escape and other offenses, where the offender has been convicted within
31 the previous five years of one of the other felonies specified in this
32 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest,
33 a violent felony offense as defined in subdivision one of section 70.02
34 of the penal law, attempted murder in the first degree, as defined in
35 section 110.00 and section 125.27 of the penal law, kidnapping in the
36 first degree, as defined in section 135.25 of the penal law, arson in
37 the first degree, as defined in section 150.20 of the penal law,
38 burglary in the third degree, as defined in section 140.20 of the penal
39 law, attempted burglary in the third degree, as defined in section
40 110.00 and section 140.20 of the penal law, a felony defined in article
41 four hundred ninety of the penal law relating to terrorism or any
42 attempt to commit an offense defined in such article relating to terror-
43 ism which is a felony; or (b) criminal possession of a controlled
44 substance in the first degree, as defined in section 220.21 of the penal
45 law; criminal possession of a controlled substance in the second degree,
46 as defined in section 220.18 of the penal law; criminal sale of a
47 controlled substance, as defined in article 220 of the penal law; or
48 grand larceny in the fourth degree, as defined in subdivision five of
49 section 155.30 of the penal law; or (c) any misdemeanor or felony
50 defined as a sex offense or sexually violent offense pursuant to para-
51 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
52 three of section one hundred sixty-eight-a of the correction law; or (d)
53 any of the following felonies, or an attempt thereof where such attempt
54 is a felony offense:
55 aggravated assault upon a person less than eleven years old, as
56 defined in section 120.12 of the penal law; menacing in the first
A. 5886--A 14
1 degree, as defined in section 120.13 of the penal law; reckless endan-
2 germent in the first degree, as defined in section 120.25 of the penal
3 law; stalking in the second degree, as defined in section 120.55 of the
4 penal law; criminally negligent homicide, as defined in section 125.10
5 of the penal law; vehicular manslaughter in the second degree, as
6 defined in section 125.12 of the penal law; vehicular manslaughter in
7 the first degree, as defined in section 125.13 of the penal law;
8 persistent sexual abuse, as defined in section 130.53 of the penal law;
9 aggravated sexual abuse in the fourth degree, as defined in section
10 130.65-a of the penal law; female genital mutilation, as defined in
11 section 130.85 of the penal law; facilitating a sex offense with a
12 controlled substance, as defined in section 130.90 of the penal law;
13 unlawful imprisonment in the first degree, as defined in section 135.10
14 of the penal law; custodial interference in the first degree, as defined
15 in section 135.50 of the penal law; criminal trespass in the first
16 degree, as defined in section 140.17 of the penal law; criminal tamper-
17 ing in the first degree, as defined in section 145.20 of the penal law;
18 tampering with a consumer product in the first degree, as defined in
19 section 145.45 of the penal law; robbery in the third degree as defined
20 in section 160.05 of the penal law; identity theft in the second degree,
21 as defined in section 190.79 of the penal law; identity theft in the
22 first degree, as defined in section 190.80 of the penal law; promoting
23 prison contraband in the first degree, as defined in section 205.25 of
24 the penal law; tampering with a witness in the third degree, as defined
25 in section 215.11 of the penal law; tampering with a witness in the
26 second degree, as defined in section 215.12 of the penal law; tampering
27 with a witness in the first degree, as defined in section 215.13 of the
28 penal law; criminal contempt in the first degree, as defined in subdivi-
29 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
30 criminal contempt, as defined in section 215.52 of the penal law; bail
31 jumping in the second degree, as defined in section 215.56 of the penal
32 law; bail jumping in the first degree, as defined in section 215.57 of
33 the penal law; patronizing a prostitute in the second degree, as defined
34 in section 230.05 of the penal law; patronizing a prostitute in the
35 first degree, as defined in section 230.06 of the penal law; promoting
36 prostitution in the second degree, as defined in section 230.30 of the
37 penal law; promoting prostitution in the first degree, as defined in
38 section 230.32 of the penal law; compelling prostitution, as defined in
39 section 230.33 of the penal law; disseminating indecent materials to
40 minors in the second degree, as defined in section 235.21 of the penal
41 law; disseminating indecent materials to minors in the first degree, as
42 defined in section 235.22 of the penal law; riot in the first degree, as
43 defined in section 240.06 of the penal law; criminal anarchy, as defined
44 in section 240.15 of the penal law; aggravated harassment of an employee
45 by an inmate, as defined in section 240.32 of the penal law; unlawful
46 surveillance in the second degree, as defined in section 250.45 of the
47 penal law; unlawful surveillance in the first degree, as defined in
48 section 250.50 of the penal law; endangering the welfare of a vulnerable
49 elderly person in the second degree, as defined in section 260.32 of the
50 penal law; endangering the welfare of a vulnerable elderly person in the
51 first degree, as defined in section 260.34 of the penal law; use of a
52 child in a sexual performance, as defined in section 263.05 of the penal
53 law; promoting an obscene sexual performance by a child, as defined in
54 section 263.10 of the penal law; possessing an obscene sexual perform-
55 ance by a child, as defined in section 263.11 of the penal law; promot-
56 ing a sexual performance by a child, as defined in section 263.15 of the
A. 5886--A 15
1 penal law; possessing a sexual performance by a child, as defined in
2 section 263.16 of the penal law; criminal possession of a weapon in the
3 third degree, as defined in section 265.02 of the penal law; criminal
4 sale of a firearm in the third degree, as defined in section 265.11 of
5 the penal law; criminal sale of a firearm to a minor, as defined in
6 section 265.16 of the penal law; unlawful wearing of a body vest, as
7 defined in section 270.20 of the penal law; hate crimes as defined in
8 section 485.05 of the penal law; and crime of terrorism, as defined in
9 section 490.25 of the penal law; or (e) a felony defined in the penal
10 law or an attempt thereof where such attempt is a felony; or (f) any of
11 the following misdemeanors: assault in the third degree as defined in
12 section 120.00 of the penal law; attempted aggravated assault upon a
13 person less than eleven years old, as defined in section 110.00 and
14 section 120.12 of the penal law; attempted menacing in the first degree,
15 as defined in section 110.00 and section 120.13 of the penal law; menac-
16 ing in the second degree as defined in section 120.14 of the penal law;
17 menacing in the third degree as defined in section 120.15 of the penal
18 law; reckless endangerment in the second degree as defined in section
19 120.20 of the penal law; stalking in the fourth degree as defined in
20 section 120.45 of the penal law; stalking in the third degree as defined
21 in section 120.50 of the penal law; attempted stalking in the second
22 degree, as defined in section 110.00 and section 120.55 of the penal
23 law; criminal obstruction of breathing or blood circulation as defined
24 in section 121.11 of the penal law; forcible touching as defined in
25 section 130.52 of the penal law regardless of the age of the victim;
26 sexual abuse in the third degree as defined in section 130.55 of the
27 penal law regardless of the age of the victim; unlawful imprisonment in
28 the second degree as defined in section 135.05 of the penal law regard-
29 less of the age of the victim; attempted unlawful imprisonment in the
30 first degree, as defined in section 110.00 and section 135.10 of the
31 penal law regardless of the age of the victim; criminal trespass in the
32 second degree as defined in section 140.15 of the penal law; possession
33 of burglar's tools as defined in section 140.35 of the penal law; petit
34 larceny as defined in section 155.25 of the penal law; endangering the
35 welfare of a child as defined in section 260.10 of the penal law; endan-
36 gering the welfare of an incompetent or physically disabled person as
37 defined in section 260.25 of the penal law] A MISDEMEANOR DEFINED IN THE
38 PENAL LAW OR A FELONY DEFINED IN THE PENAL LAW, OR A PERSON WHO IS
39 REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE
40 CORRECTION LAW.
41 S 20. This act shall take effect immediately; provided, however, that:
42 (a) sections eleven, twelve and thirteen of this act shall take effect
43 on the one hundred twentieth day after it shall have become a law;
44 (b) the amendments to section 340.20 of the criminal procedure law
45 made by section fourteen of this act shall apply to pleas of guilty to a
46 count or counts of an information entered 60 days or more after the
47 effective date of this act;
48 (c) section eighteen of this act shall take effect on the ninetieth
49 day after it shall have become a law, and shall apply to any criminal
50 proceeding commenced on and after such date; and
51 (d) section nineteen of this act shall apply to designated offenses
52 committed on or after the effective date of this act, as well as to
53 designated offenses committed prior to such effective date, where
54 service of the sentence imposed upon conviction of such designated
55 offense has not been completed prior to such effective date.
