Bill Text: NY A05886 | 2011-2012 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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--C
Cal. No. 193
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, WEIN-
STEIN, CLARK, JACOBS, PEOPLES-STOKES, WEPRIN, PERRY, TITONE, TITUS --
Multi-Sponsored by -- M. of A. GOTTFRIED, KELLNER, McENENY, 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 -- again amended on third reading, ordered reprinted,
retaining its place on the order of third reading -- advanced to a
third reading, amended and ordered reprinted, retaining its place on
the order of third reading
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; and to amend the criminal proce-
dure law, in relation to electronic recordings of interrogations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03719-07-2
A. 5886--C 2
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
9 (C) WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH, DETER-
10 MINE, CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE MINIMUM PERIOD OF
11 TIME THAT FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERI-
12 AL, OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME
13 SCENES, SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME OR
14 SPECIFIED EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE
15 INTEREST OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE
16 DESTROYED, AND DETERMINE STANDARDS FOR THE CATALOGING AND MAINTAINING
17 RECORDS OF SUCH SAMPLES. PENDING THE PROMULGATION OF A POLICY ADDRESS-
18 ING THE ISSUES SET FORTH IN THIS PARAGRAPH, THE COMMISSION MAY ADOPT AN
19 INTERIM POLICY MANDATING THE PRESERVATION BY INVESTIGATING AUTHORITIES
20 OF FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL
21 OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME SCENES.
22 S 2. Subdivision 1 of section 995-a of the executive law, as added by
23 chapter 737 of the laws of 1994, is amended to read as follows:
24 1. There is hereby created in the executive department, the commission
25 on forensic science, which shall consist of the following [fourteen]
26 SIXTEEN members: (a) the commissioner of the division of criminal
27 justice services who shall be chair of the commission and the commis-
28 sioner of the department of health or his or her designee, who shall
29 serve as an ex-officio member of the commission;
30 (b) [twelve] FOURTEEN members appointed by the governor.
31 S 3. Paragraph (i) of subdivision 2 of section 995-a of the executive
32 law, as added by chapter 737 of the laws of 1994, is amended, paragraph
33 (j) is relettered paragraph (k) and a new paragraph (j) is added to read
34 as follows:
35 (i) two members shall be members-at-large, one of whom shall be
36 appointed upon the recommendation of the temporary president of the
37 senate, and one of whom shall be appointed upon the recommendation of
38 the speaker of the assembly; [and]
39 (J) TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
40 OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL BE
41 A CRIME VICTIMS ADVOCATE, AND ONE SUCH PERSON SHALL BE AN EXPERT IN
42 BIOMEDICAL ETHICS; AND
43 S 4. Article 23 and sections 860 and 861 of the judiciary law, as
44 renumbered by chapter 840 of the laws of 1983, are renumbered article 24
45 and sections 1000 and 1001 and a new article 23 is added to read as
46 follows:
47 ARTICLE 23
48 STATE COMMISSION FOR THE INTEGRITY
49 OF THE CRIMINAL JUSTICE SYSTEM
50 SECTION 900. DEFINITION.
51 901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
52 SYSTEM.
53 902. PURPOSE AND CONDUCT OF THE COMMISSION.
54 903. POWERS AND DUTIES.
55 904. USE OF REPORTS.
A. 5886--C 3
1 S 900. DEFINITION. AS USED IN THIS ARTICLE, "COMMISSION" SHALL MEAN
2 THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM
3 ESTABLISHED PURSUANT TO SECTION NINE HUNDRED ONE OF THIS ARTICLE.
4 S 901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL JUSTICE
5 SYSTEM. 1. THE STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL
6 JUSTICE SYSTEM IS HEREBY ESTABLISHED AS AN INDEPENDENT AGENCY OF THE
7 STATE. THE COMMISSION SHALL CONSIST OF TEN MEMBERS AS FOLLOWS:
8 (A) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES;
9 (B) FOUR MEMBERS APPOINTED BY THE GOVERNOR, OF WHOM:
10 (I) ONE SHALL BE A REPRESENTATIVE OF A LAW ENFORCEMENT AGENCY,
11 (II) ONE SHALL BE A REPRESENTATIVE OF THE PUBLIC CRIMINAL DEFENSE BAR
12 OR PRIVATE CRIMINAL DEFENSE BAR WHO SHALL BE APPOINTED UPON THE RECOM-
13 MENDATION OF AN ORGANIZATION WITH MORE THAN SEVEN HUNDRED FIFTY DUES
14 PAYING MEMBERS REPRESENTING SUCH PUBLIC OR PRIVATE DEFENSE SERVICES,
15 (III) ONE SHALL BE A REPRESENTATIVE OF VICTIMS RIGHTS ADVOCACY OR
16 SERVICES ORGANIZATIONS, AND
17 (IV) ONE SHALL BE A REPRESENTATIVE OF THE FORENSIC SCIENCE FIELD;
18 (C) A MEMBER APPOINTED BY THE ATTORNEY GENERAL WHO SHALL BE A REPRE-
19 SENTATIVE OF PROSECUTION SERVICES;
20 (D) TWO MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS,
21 OF WHOM:
22 (I) ONE SHALL BE A RETIRED JUDGE OR JUSTICE OF A NEW YORK STATE COURT
23 OF RECORD, AND
24 (II) ONE SHALL BE A PROFESSOR OF LAW OR A RETIRED FULL TIME PROFESSOR
25 OF LAW WHO HAS TAUGHT LAW SCHOOL COURSES IN CRIMINAL LAW, CRIMINAL
26 PROCEDURE, CONSTITUTIONAL LAW, OR EVIDENCE AT AN ACCREDITED POST-GRADU-
27 ATE COLLEGE IN NEW YORK STATE;
28 (E) ONE MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE, WHO
29 SHALL BE A MEMBER OF THE PUBLIC-AT-LARGE; AND
30 (F) ONE MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY, WHO SHALL BE
31 A MEMBER OF THE PUBLIC-AT-LARGE.
32 2. THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL SERVE AN INDEF-
33 INITE TERM. THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE A TERM OF
34 FOUR YEARS. THE RETIRED JUDGE OR JUSTICE APPOINTED BY THE CHIEF JUDGE
35 SHALL SERVE A TERM OF THREE YEARS. THE PROFESSOR OF LAW OR RETIRED
36 PROFESSOR OF LAW APPOINTED BY THE CHIEF JUDGE SHALL SERVE A TERM OF TWO
37 YEARS. THE MEMBERS APPOINTED BY THE ATTORNEY GENERAL, THE TEMPORARY
38 PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY SHALL EACH SERVE
39 A TERM OF TWO YEARS. EACH OF THE MEMBERS OF THE COMMISSION, EXCEPT THE
40 COMMISSIONER OF CRIMINAL JUSTICE SERVICES, APPOINTED THEREAFTER SHALL
41 SERVE A TERM OF FIVE YEARS. EVERY VACANCY OCCURRING PRIOR TO THE EXPI-
42 RATION OF A MEMBER'S TERM SHALL BE FILLED FOR THE REMAINDER OF SUCH TERM
43 IN THE MANNER PROVIDED FOR THE ORIGINAL APPOINTMENT TO SUCH TERM. UPON
44 THE EXPIRATION OF THE TERM OF A MEMBER OF THE COMMISSION, SUCH MEMBER
45 SHALL CONTINUE TO SERVE UNTIL HIS OR HER SUCCESSOR IS APPOINTED.
46 3. THE COMMISSION SHALL ELECT A CHAIR FROM AMONGST ITS MEMBERS BY A
47 MAJORITY VOTE OF THE MEMBERS THEREOF.
48 4. NO MEMBER OF THE COMMISSION SHALL BE DISQUALIFIED FROM HOLDING ANY
49 PUBLIC OFFICE OR EMPLOYMENT, NOR SHALL HE OR SHE FORFEIT ANY SUCH OFFICE
50 OR EMPLOYMENT, BY REASON OF HIS OR HER APPOINTMENT PURSUANT TO THIS
51 SECTION, AND THE MEMBERS OF THE COMMISSION SHALL BE REQUIRED TO TAKE AND
52 FILE OATHS OF OFFICE BEFORE SERVING ON THE COMMISSION.
53 5. THE COMMISSION SHALL MEET AT LEAST FOUR TIMES EACH YEAR AT PREDE-
54 TERMINED TIMES AND LOCATIONS ANNOUNCED IN ADVANCE, AND AT SUCH OTHER
55 TIMES AS THE CHAIR OF THE COMMISSION OR FOUR OR MORE MEMBERS SHALL
56 DETERMINE TO BE NECESSARY.
A. 5886--C 4
1 6. FOR ANY ACTION AUTHORIZED BY THIS ARTICLE, FIVE MEMBERS OF THE
2 COMMISSION SHALL CONSTITUTE A QUORUM AND, EXCEPT AS OTHERWISE PROVIDED
3 IN SUBDIVISIONS THREE AND FIVE OF THIS SECTION, THE CONCURRENCE OF SIX
4 MEMBERS OF THE COMMISSION SHALL BE NECESSARY.
5 7. THE MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
6 COMPENSATION, BUT SHALL BE ENTITLED TO RECEIVE ACTUAL AND NECESSARY
7 EXPENSES INCURRED IN THE DISCHARGE OF THEIR DUTIES PURSUANT TO THIS
8 ARTICLE.
9 S 902. PURPOSE AND CONDUCT OF THE COMMISSION. THE COMMISSION SHALL
10 REVIEW ANY CRIMINAL OR JUVENILE CASE INVOLVING A WRONGFUL CONVICTION AND
11 RECOMMEND REFORMS TO LESSEN THE LIKELIHOOD OF A SIMILAR WRONGFUL
12 CONVICTION OCCURRING IN THE FUTURE.
13 WHENEVER A PERSON WHO HAS BEEN CONVICTED OF A CRIME OR ADJUDICATED A
14 YOUTHFUL OFFENDER OR JUVENILE DELINQUENT IS SUBSEQUENTLY DETERMINED TO
15 BE INNOCENT OF SUCH CRIME OR OFFENSE AND EXONERATED, THE COMMISSION
16 SHALL CONDUCT AN INVESTIGATION, HOLD HEARINGS ON AND MAKE FINDINGS OF
17 FACT REGARDING THE WRONGFUL CONVICTION IN ORDER TO DETERMINE THE CAUSE
18 OR CAUSES OF THE WRONGFUL CONVICTION.
19 UPON THE COMPLETION OF SUCH PROCESS, THE COMMISSION, WITHIN SIXTY
20 DAYS, SHALL ISSUE A PRELIMINARY WRITTEN REPORT OF ITS FINDINGS OF FACT
21 AND CONCLUSIONS, AND ANY RECOMMENDATIONS TO PREVENT WRONGFUL CONVICTIONS
22 FROM OCCURRING UNDER SIMILAR CIRCUMSTANCES IN THE FUTURE. WITHIN ONE
23 HUNDRED TWENTY DAYS AFTER ISSUING SUCH PRELIMINARY REPORT, THE COMMIS-
24 SION SHALL ISSUE ITS REPORT AND RECOMMENDATIONS CONCERNING THE MATTER.
25 SUCH REPORT AND RECOMMENDATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC,
26 AND SHALL BE DELIVERED TO THE GOVERNOR, ATTORNEY GENERAL, CHIEF JUDGE OF
27 THE COURT OF APPEALS, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF THE
28 ASSEMBLY, AND TO ANY GOVERNMENTAL UNIT OR AGENCY THAT THE COMMISSION
29 FINDS MAY HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDICATION OF THE
30 WRONGFUL CONVICTION. THE COMMISSION SHALL ALSO MAKE AVAILABLE AN ANNUAL
31 REPORT DETAILING, AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR FORMAL
32 AND INFORMAL INVESTIGATION, THE NUMBER OF COMPLETED INVESTIGATIONS AND
33 THE STATUS OF ON-GOING OR PENDING INVESTIGATIONS.
34 S 903. POWERS AND DUTIES. THE COMMISSION SHALL HAVE THE POWERS AND
35 DUTIES TO:
36 1. ESTABLISH ITS OWN REASONABLE RULES AND PROCEDURES CONCERNING THE
37 CONDUCT OF ITS MEETINGS AND OTHER AFFAIRS RELATED TO IMPLEMENTING THE
38 PROVISIONS OF THIS ARTICLE;
39 2. EMPLOY AND REMOVE SUCH OFFICERS, INVESTIGATORS AND EMPLOYEES AS IT
40 MAY DEEM NECESSARY FOR THE PERFORMANCE OF ITS POWERS AND DUTIES PURSUANT
41 TO THIS ARTICLE, AND FIX THEIR COMPENSATION WITHIN THE AMOUNTS MADE
42 AVAILABLE THEREFOR;
43 3. CONDUCT INVESTIGATIONS AND HEARINGS, ADMINISTER OATHS OR AFFIRMA-
44 TIONS, SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
45 OATH OR AFFIRMATION, REQUIRE PRODUCTION OF ANY BOOKS, RECORDS, DOCUMENTS
46 OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO AN INVESTI-
47 GATION, AND MAY DESIGNATE ANY OF ITS MEMBERS, OFFICERS OR INVESTIGATORS
48 TO EXERCISE ANY SUCH POWERS; PROVIDED, HOWEVER, NOTHING IN THIS SUBDIVI-
49 SION SHALL AUTHORIZE THE ISSUANCE OF A SUBPOENA OR COMPELLED QUESTIONING
50 OF THE TRIAL COURT JUDGE OR ANY APPELLATE COURT JUDGE CONCERNING THE
51 JUDGE'S MENTAL PROCESSES IN ARRIVING AT ANY DECISION IN A CASE;
52 4. REQUEST AND RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
53 BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE OR A POLITICAL SUBDIVI-
54 SION THEREOF OR ANY PUBLIC AUTHORITY SUCH ASSISTANCE, INFORMATION,
55 RECORDS AND DATA AS WILL ENABLE IT TO PROPERLY CARRY OUT ITS POWERS AND
56 DUTIES;
A. 5886--C 5
1 5. ISSUE PRELIMINARY REPORTS ON ANY INVESTIGATION CONDUCTED PURSUANT
2 TO THIS ARTICLE, WHICH PRELIMINARY REPORTS SHALL INCLUDE FINDINGS OF
3 FACT AND RECOMMENDATIONS, AND INVITE ANY PARTY DIRECTLY INVOLVED IN THE
4 WRONGFUL CONVICTION, WHICH IS THE SUBJECT OF THE REPORT, TO SUBMIT A
5 REPLY WITHIN SIXTY DAYS TO THE COMMISSION CONCERNING THE FINDINGS OF
6 FACT AND RECOMMENDATIONS IN THE REPORT. ANY SUCH REPLY SHALL BE MADE
7 AVAILABLE BY THE COMMISSION, TOGETHER WITH ANY RESPONSE BY THE COMMIS-
8 SION THERETO, TO THE PARTIES LISTED IN SECTION NINE HUNDRED TWO OF THIS
9 ARTICLE AS PART OF THE COMMISSION'S REPORT AND RECOMMENDATIONS CONCERN-
10 ING THE MATTER; AND
11 6. DO ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT THE
12 PROVISIONS OF THIS ARTICLE.
13 S 904. USE OF REPORTS. NO PRELIMINARY REPORT, REPORT OR PORTION THERE-
14 OF ISSUED PURSUANT TO THIS ARTICLE SHALL BE ADMITTED INTO EVIDENCE OR
15 USED IN ANY CIVIL OR CRIMINAL CAUSE OF ACTION RELATING TO A MATTER WHICH
16 IS THE SUBJECT OF SUCH REPORT.
17 S 5. Section 1.20 of the criminal procedure law is amended by adding a
18 new subdivision 44 to read as follows:
19 44. "SPECIAL FICTITIOUS NAME INDICTMENT" MEANS AN INDICTMENT OF A
20 PERSON WHOSE NAME IS UNKNOWN BUT WHOSE IDENTITY IS ESTABLISHED TO THE
21 SATISFACTION OF A GRAND JURY PURSUANT TO SUBDIVISION ONE OF SECTION
22 190.65 OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID (DNA)
23 TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
24 SHALL INCLUDE A FICTITIOUS NAME, SUCH AS "JOHN DOE" OR "JANE DOE", IN
25 PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
26 S 6. Subdivision 3 of section 190.65 of the criminal procedure law is
27 amended to read as follows:
28 3. Upon voting to indict a person, a grand jury must, through its
29 foreman or acting foreman, file an indictment with the court by which it
30 was impaneled. WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT HIS
31 OR HER IDENTITY IS ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
32 PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC DEOXY-
33 RIBONUCLEIC ACID (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
34 BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS NAME
35 INDICTMENT. THE AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
36 PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
37 IN LAW FOR THE FILING OF AN INDICTMENT WHEN THE NAME OF AN INDICTED
38 PERSON IS UNKNOWN.
39 S 7. Subdivisions 3 and 5 of section 8-b of the court of claims act,
40 as added by chapter 1009 of the laws of 1984, are amended to read as
41 follows:
42 3. In order to present the claim for unjust conviction and imprison-
43 ment, claimant must establish by documentary evidence that:
44 (a) he has been convicted of one or more felonies or misdemeanors
45 against the state and subsequently sentenced to a term of imprisonment,
46 and has served all or any part of the sentence; and
47 (b) (i) he has been pardoned upon the ground of innocence of the crime
48 or crimes for which he was sentenced and which are the grounds for the
49 complaint; or (ii) his judgment of conviction was reversed or vacated,
50 and the accusatory instrument dismissed or, if a new trial was ordered,
51 either he was found not guilty at the new trial or he was not retried
52 and the accusatory instrument dismissed; provided that the [judgement]
53 JUDGMENT of conviction was reversed or vacated[, and the accusatory
54 instrument was dismissed,] on any of the following grounds: (A) para-
55 graph (a), (b), (c), (e), (F) or (g) of subdivision one of section
56 440.10 of the criminal procedure law; or (B) subdivision one (where
A. 5886--C 6
1 based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
2 two, three (where the count dismissed was the sole basis for the impri-
3 sonment complained of) or five of section 470.20 of the criminal proce-
4 dure law; or (C) comparable provisions of the former code of criminal
5 procedure or subsequent law; or (D) the statute, or application thereof,
6 on which the accusatory instrument was based violated the constitution
7 of the United States or the state of New York; OR (E) THE CLAIMANT'S
8 CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN
9 ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT WHOSE APPLICATION
10 TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY
11 SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES
12 WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND,
13 INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS (A), (B), (C) AND (D)
14 OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECI-
15 SION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A
16 GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
17 GRAPH; and
18 (c) his claim is not time-barred by the provisions of subdivision
19 seven of this section.
20 5. In order to obtain a judgment in his favor, claimant must prove by
21 clear and convincing evidence that:
22 (a) he has been convicted of one or more felonies or misdemeanors
23 against the state and subsequently sentenced to a term of imprisonment,
24 and has served all or any part of the sentence; and
25 (b) (i) he has been pardoned upon the ground of innocence of the crime
26 or crimes for which he was sentenced and which are the grounds for the
27 complaint; or (ii) his judgment of conviction was reversed or vacated,
28 and the accusatory instrument dismissed or, if a new trial was ordered,
29 either he was found not guilty at the new trial or he was not retried
30 and the accusatory instrument dismissed; provided that the [judgement]
31 JUDGMENT of conviction was reversed or vacated[, and the accusatory
32 instrument was dismissed,] on any of the following grounds: (A) para-
33 graph (a), (b), (c), (e), (F) or (g) of subdivision one of section
34 440.10 of the criminal procedure law; or (B) subdivision one (where
35 based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
36 two, three (where the count dismissed was the sole basis for the impri-
37 sonment complained of) or five of section 470.20 of the criminal proce-
38 dure law; or (C) comparable provisions of the former code of criminal
39 procedure or subsequent law; or (D) the statute, or application thereof,
40 on which the accusatory instrument was based violated the constitution
41 of the United States or the state of New York; OR (E) THE CLAIMANT'S
42 CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN
43 ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH, BUT WHOSE APPLICATION
44 TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY
45 SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES
46 WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND,
47 INCLUDING ONE OF THE GROUNDS ENUMERATED IN ITEMS (A), (B), (C) AND (D)
48 OF THIS SUBPARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECI-
49 SION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A
50 GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
51 GRAPH; and
52 (c) he did not commit any of the acts charged in the accusatory
53 instrument or his acts or omissions charged in the accusatory instrument
54 did not constitute a felony or misdemeanor against the state, PROVIDED
55 THAT, WHERE ONE INDICTMENT CONTAINS MULTIPLE COUNTS ARISING FROM SEPA-
56 RATE COMPLAINTS OR INCIDENTS, THE COURT SHALL CONSIDER ANY CLAIM RELATED
A. 5886--C 7
1 TO SPECIFIED COUNTS IN THE INDICTMENT ARISING OUT OF ONLY ONE OF THE
2 COMPLAINTS OR INCIDENTS; and
3 (d) he did not by his own conduct cause or bring about his conviction.
4 S 8. Section 995-b of the executive law is amended by adding a new
5 subdivision 14 to read as follows:
6 14. THE COMMISSION SHALL REVIEW THE CONFIDENTIALITY SAFEGUARDS WHICH
7 ARE MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER INFORMATION
8 FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
9 SHALL DETERMINE WHETHER ANY ADDITIONAL CONFIDENTIALITY SAFEGUARDS ARE
10 NECESSARY WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO ISSUE
11 A REPORT TO THE MAJORITY LEADER OF THE SENATE AND THE SPEAKER OF THE
12 ASSEMBLY WHICH DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND THE REASONS
13 FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
14 SUCH SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT SHALL
15 ALSO RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES, FOLLOWING
16 THE ENCODING OF INFORMATION FROM SUCH SAMPLES INTO THE STATE DNA IDEN-
17 TIFICATION INDEX, SHOULD BE INITIATED OR WHETHER, ALTERNATIVELY, SUCH
18 SAMPLES SHALL CONTINUE TO BE MAINTAINED.
19 S 9. Subdivision 2 of section 995-c of the executive law, as added by
20 chapter 737 of the laws of 1994, is amended to read as follows:
21 2. (A) Following the review and approval of the plan by the DNA
22 subcommittee and the commission and the filing of such plan with the
23 speaker of the assembly and the temporary president of the senate, the
24 commissioner of criminal justice services is hereby authorized to estab-
25 lish a computerized state DNA identification index pursuant to the
26 provisions of this article. NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
27 LATION OF DNA IDENTIFICATION PROFILES MAY BE MAINTAINED IN THIS STATE
28 PROVIDED, HOWEVER, THAT THIS PROHIBITION SHALL NOT BE INTERPRETED TO
29 PROHIBIT ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED FROM
30 CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
31 (B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
32 VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
33 AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
34 OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
35 S 10. Paragraph (b) of subdivision 9 of section 995-c of the execu-
36 tive law, as added by chapter 524 of the laws of 2002, is amended and
37 two new paragraphs (c) and (d) are added to read as follows:
38 (b) As prescribed in this paragraph, if an individual, either volun-
39 tarily or pursuant to a warrant or order of a court, has provided a
40 sample for DNA testing in connection with the investigation or prose-
41 cution of a crime and (i) no criminal action against the individual
42 relating to such crime was commenced within the period specified by
43 section 30.10 of the criminal procedure law, or (ii) a criminal action
44 was commenced against the individual relating to such crime which
45 resulted in a complete acquittal, OR A DISMISSAL AND THE MATTER WILL NOT
46 BE TRIED OR RETRIED, or (iii) a criminal action against the individual
47 relating to such crime resulted in a conviction that was subsequently
48 reversed or vacated, or for which the individual was granted a pardon
49 pursuant to article two-A of this chapter, such individual may apply to
50 the supreme court or the court in which the judgment of conviction was
51 originally entered for an order directing the expungement of any DNA
52 record and any samples, analyses, or other documents relating to the DNA
53 testing of such individual in connection with the investigation or pros-
54 ecution of such crime. A copy of such application shall be served on the
55 district attorney and an order directing expungement may be granted if
56 the court finds that the individual has satisfied the conditions of one
A. 5886--C 8
1 of the subparagraphs of this paragraph; that if a judgment of conviction
2 was reversed or vacated, all appeals relating thereto have been
3 concluded and the individual will not be retried, or, if a retrial has
4 occurred, the trier of fact has rendered a verdict of complete acquit-
5 tal, and that expungement will not adversely affect the investigation or
6 prosecution of some other person or persons for the crime. NOTHING IN
7 THIS PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
8 EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN THE INTERESTS
9 OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
10 ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
11 ing the expungement of any DNA record and any samples, analyses or other
12 documents relating to the DNA testing of such individual is issued, such
13 record and any samples, analyses, or other documents shall, at the
14 discretion of the possessor thereof, be destroyed or returned to such
15 individual or to the attorney who represented him or her in connection
16 with the application for the order of expungement. THE PERSON DESTROYING
17 OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND OTHER DOCUMENTS SHALL
18 MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
19 RETURN AND IDENTIFYING THE PERSON OR PERSONS DESTROYING OR RETURNING
20 SAME. THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
21 RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR TO THE ATTORNEY WHO
22 REPRESENTED HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
23 OF EXPUNGEMENT.
24 (C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
25 INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH THE
26 INVESTIGATION OR PROSECUTION OF A CRIME, OTHER THAN IN RESPONSE TO A
27 DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND THREE OF THIS
28 SECTION, OR IF A SAMPLE FOR DNA TESTING HAS OTHERWISE COME INTO THE
29 CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN AGENT THEREOF,
30 AND THE DNA PROFILE DERIVED FROM SUCH SAMPLE DOES NOT MATCH A DNA
31 PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN CONNECTION WITH
32 THE INVESTIGATION OR PROSECUTION OF A CRIMINAL ACT OR ACTS, EVERY
33 RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA TESTING
34 OF SUCH SAMPLE SHALL, AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
35 EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
36 MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
37 CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE WITH RESPECT TO THE
38 INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
39 FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
40 ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE LINKED
41 TO SUCH SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
42 SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
43 CRIME HAS CONCLUDED, WHICHEVER FIRST OCCURS, SUCH RECORDS, SAMPLES,
44 ANALYSES AND OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR
45 THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED IN A
46 MANNER CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPH (II), (IV) OR (V)
47 OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 160.55 OF THE CRIMINAL
48 PROCEDURE LAW.
49 (II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
50 ANALYSES OR OTHER DOCUMENTS IN ACCORDANCE WITH THIS PARAGRAPH SHALL
51 MAINTAIN A RECORD CERTIFYING THE DATE AND MANNER OF SUCH RETURN,
52 DESTRUCTION OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
53 DESTROYING OR SEALING SAME. THE PERSON RETURNING, DESTROYING OR SEALING
54 SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON WHO SUBMITTED THE
55 SAMPLE.
A. 5886--C 9
1 (III) THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
2 PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
3 APPLY TO DNA RECORDS, SAMPLES, ANALYSES AND OTHER DOCUMENTS OBTAINED
4 FROM THE FORENSIC EXAMINATION OF CRIME SCENE EVIDENCE, WHERE THE DNA
5 PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE DNA
6 PROFILE OF A KNOWN PERSON.
7 (D) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
8 THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
9 PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
10 TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED OR SEALED,
11 AND MAY BE INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
12 PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF THIS PARA-
13 GRAPH, THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
14 OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
15 CLE. ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
16 CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED IN THE STATE DNA
17 IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
18 S 11. 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 S 12. The state finance law is amended by adding a new section 97-llll
35 to read as follows:
36 S 97-LLLL. ASSISTANCE TO POLICE AND CRIME LABORATORIES: DNA EVIDENCE
37 FUND. 1. THERE IS HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-
38 TROLLER A SPECIAL FUND TO BE KNOWN AS THE "ASSISTANCE TO POLICE AND
39 CRIME LABORATORIES: DNA EVIDENCE FUND".
40 2. SUCH FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR THE PURPOSE
41 OF SUCH FUND, ALL OTHER MONIES CREDITED OR TRANSFERRED TO SUCH FUND
42 PURSUANT TO LAW, ALL MONIES REQUIRED BY THE PROVISIONS OF THIS SECTION
43 OR ANY OTHER LAW TO BE PAID INTO OR CREDITED TO SUCH ACCOUNT, AND ALL
44 MONIES RECEIVED BY THE ACCOUNT OR DONATED TO IT.
45 3. MONIES OF SUCH FUND SHALL BE AVAILABLE FOR APPROPRIATION AND ALLO-
46 CATION TO THE DIVISION OF STATE POLICE, TO LOCAL POLICE AGENCIES, AND TO
47 FORENSIC DNA LABORATORIES IN THIS STATE, AS DEFINED IN SUBDIVISION TWO
48 OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, TO ASSIST SUCH
49 ENTITIES IN EFFECTIVELY COLLECTING, TESTING AND ANALYZING FORENSIC DNA
50 CRIME SCENE EVIDENCE PURSUANT TO ARTICLE FORTY-NINE-B OF THE EXECUTIVE
51 LAW. FIFTY PERCENT OF SUCH FUNDS SHALL BE MADE AVAILABLE FOR APPROPRI-
52 ATION OR ALLOCATION BY THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES FOR
53 THE PURPOSE OF FUNDING AN INNOCENCE RESEARCH PROJECT PROGRAM IN THIS
54 STATE.
A. 5886--C 10
1 4. MONIES OF SUCH FUND SHALL BE PAID OUT ON THE AUDIT AND WARRANT OF
2 THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER OF
3 CRIMINAL JUSTICE SERVICES.
4 S 13. Innocence research project program. 1. There is hereby estab-
5 lished in this state an innocence research project program. Funding
6 shall be made available for the purposes of such program to up to three
7 not-for-profit organizations by the commissioner of criminal justice
8 services pursuant to subdivisions 3 and 4 of section 97-llll of the
9 state finance law.
10 2. The innocence research project program shall review and study cases
11 in which there appears to be a reasonable possibility that a person
12 charged with or convicted of a crime in this state may be innocent of
13 the crime or crimes charged. Such program may provide legal and other
14 expert assistance, and may also provide relevant training, including but
15 not limited to training in the use of DNA evidence for forensic iden-
16 tification purposes, to attorneys engaged in the defense of criminal
17 cases.
18 3. Each not-for-profit organization receiving funding for such program
19 shall file an annual report with the commissioner of criminal justice
20 services summarizing the activities of the program during the previous
21 year. Such report shall be filed within one year after such organization
22 first receives funding under such program, and annually thereafter for
23 so long as the program receives such funding.
24 4. Before providing assistance to any individual believed to be actu-
25 ally innocent of the crime or crimes charged, the organization-based
26 coordinator of such program shall determine whether such individual is
27 financially able to pay for the proposed services or assistance to be
28 provided. If such individual is able to financially afford to pay for
29 such services or assistance, such coordinator shall request and receive
30 such payment or payments on behalf of the program from such individual.
31 All monies received from individuals pursuant to this subdivision shall
32 be promptly forwarded by such coordinator to the state comptroller, for
33 deposit into the "assistance to police and crime laboratories: DNA
34 evidence fund" established pursuant to section 97-llll of the state
35 finance law.
36 S 14. The criminal procedure law is amended by adding a new section
37 60.47 to read as follows:
38 S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
39 ANTS.
40 1. DEFINITIONS. AS USED IN THIS SECTION:
41 (A) "ELECTRONIC RECORDING" MEANS A CONTEMPORANEOUS VIDEO AND AUDIO
42 RECORDING, OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
43 AUDIO RECORDING.
44 (B) "CUSTODIAL INTERROGATION" MEANS ANY INTERROGATION WHICH IS
45 CONDUCTED IN A PLACE OF DETENTION AND DURING WHICH A REASONABLE PERSON
46 IN THE SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN
47 CUSTODY.
48 (C) "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
49 TY, HOLDING FACILITY FOR PRISONERS, OR OTHER GOVERNMENT FACILITY WHERE
50 PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES WHICH
51 HAVE BEEN OR MAY BE FILED AGAINST THEM.
52 2. DURING THE PROSECUTION OF A FELONY, AN ORAL, WRITTEN, OR SIGN
53 LANGUAGE STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
54 SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE AGAINST A DEFENDANT IN A
55 CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
A. 5886--C 11
1 DIAL INTERROGATION IN ITS ENTIRETY AND THE RECORDING IS SUBSTANTIALLY
2 ACCURATE AND NOT INTENTIONALLY ALTERED.
3 3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED TO A CUSTODIAL
4 INTERROGATION IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY
5 STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
6 EVEN IF OTHERWISE IN COMPLIANCE WITH THIS SECTION, ARE ALSO PRESUMED
7 INADMISSIBLE.
8 4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
9 AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND RELI-
10 ABLE AND:
11 (A) EXIGENT CIRCUMSTANCES EXISTED NECESSITATING INTERROGATION AT A
12 PLACE IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
13 OR HOLDING FACILITY FOR PRISONERS AND WHERE THE REQUISITE RECORDING
14 EQUIPMENT WAS NOT READILY AVAILABLE;
15 (B) THE ACCUSED REFUSED TO HAVE HIS OR HER INTERROGATION ELECTRON-
16 ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
17 (C) THE FAILURE TO ELECTRONICALLY RECORD AN ENTIRE INTERROGATION WAS
18 THE RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT WAS
19 NOT FEASIBLE.
20 5. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
21 (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
22 BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
23 (B) A SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
24 GATION;
25 (C) A STATEMENT MADE AFTER QUESTIONING THAT IS ROUTINELY ASKED DURING
26 THE PROCESSING OF THE ARREST OF THE SUSPECT;
27 (D) A STATEMENT MADE DURING A CUSTODIAL INTERROGATION THAT IS
28 CONDUCTED OUT-OF-STATE;
29 (E) A STATEMENT OBTAINED BY A FEDERAL LAW ENFORCEMENT OFFICER IN A
30 FEDERAL PLACE OF DETENTION;
31 (F) A STATEMENT GIVEN AT A TIME WHEN THE INTERROGATORS ARE UNAWARE
32 THAT A FELONY HAS IN FACT OCCURRED; OR
33 (G) A STATEMENT, OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
34 USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
35 6. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
36 OF A CUSTODIAL INTERROGATION UNTIL SUCH TIME AS THE DEFENDANT'S
37 CONVICTION FOR ANY OFFENSE RELATING TO THE INTERROGATION IS FINAL AND
38 ALL DIRECT AND HABEAS CORPUS APPEALS ARE EXHAUSTED, OR THE PROSECUTION
39 OF THAT OFFENSE IS BARRED BY LAW.
40 S 15. This act shall take effect immediately; provided, however, that:
41 (a) sections nine and ten of this act shall take effect on the one
42 hundred twentieth day after it shall have become a law;
43 (b) the amendments to section 340.20 of the criminal procedure law
44 made by section eleven of this act shall apply to pleas of guilty to a
45 count or counts of an information entered 60 days or more after the
46 effective date of this act; and
47 (c) section fourteen of this act shall take effect on the ninetieth
48 day after it shall have become a law, and shall apply to any criminal
49 proceeding commenced on and after such date.
