STATE OF NEW YORK ________________________________________________________________________ 7371 2017-2018 Regular Sessions IN ASSEMBLY April 25, 2017 ___________ Introduced by M. of A. TITONE -- read once and referred to the Committee on Codes AN ACT to amend the executive law, in relation to DNA databanks' treat- ment of volunteer DNA samples The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 995 of the executive law, as added by chapter 737 2 of the laws of 1994, subdivision 7 as amended by chapter 19 of the laws 3 of 2012, is amended to read as follows: 4 § 995. Definitions. When used in this article, the following words and 5 terms shall have the meanings ascribed to them in this section: 6 1. For purposes of general forensic analysis the term "forensic labo- 7 ratory" shall mean any laboratory operated by the state or unit of local 8 government that performs forensic testing on evidence in a criminal 9 investigation or proceeding or for purposes of identification provided, 10 however, that the examination of latent fingerprints by a police agency 11 shall not be subject to the provisions of this article. 12 2. For purposes of forensic DNA analysis, the term "forensic DNA labo- 13 ratory" shall mean any forensic laboratory operated by the state or unit 14 of local government, that performs forensic DNA testing on crime scenes 15 or materials derived from the human body for use as evidence in a crimi- 16 nal proceeding or for purposes of identification and the term "forensic 17 DNA testing" shall mean any test that employs techniques to examine 18 deoxyribonucleic acid (DNA) derived from the human body for the purpose 19 of providing information to resolve issues of identification. Regu- 20 lation pursuant to this article shall not include DNA testing on materi- 21 als derived from the human body pursuant to title five of article five 22 of the public health law for the purpose of determining a person's 23 genetic disease or medical condition and shall not include a laboratory 24 operated by the federal government. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10999-01-7A. 7371 2 1 3. "DNA testing methodology" means methods and procedures used to 2 extract and analyze DNA material, as well as the methods, procedures, 3 assumptions, and studies used to draw statistical inferences from the 4 test results. 5 4. "Blind external proficiency testing" means a test sample that is 6 presented to a forensic laboratory for forensic DNA testing through a 7 second agency, and which appears to the analysts to involve routine 8 evidence submitted for forensic DNA testing. 9 5. "DNA" means deoxyribonucleic acid. 10 5-a. "DNA profile" means a set of DNA identification characteristics 11 which may permit the DNA of one person to be distinguishable from that 12 of another person. For short tandem repeat DNA profiles, it means the 13 list of alleles carried by a particular individual at a specific set of 14 genetic loci. 15 5-b. "Subject DNA profile" means the DNA profile generated by analysis 16 of a biological sample collected from a subject convicted of a crime 17 whose specimen was collected: after a criminal trial; pursuant to a plea 18 agreement; as a condition of participation in a temporary release, 19 comprehensive alcohol and substance abuse treatment (CASAT) or shock 20 incarceration program; as a condition of release on parole, post-release 21 supervision, presumptive release or conditional release on a definite or 22 indeterminate sentence; or as a condition of probation or interim 23 probation supervision. 24 5-c. "Subject index" means the electronic database containing DNA 25 profiles generated from a subject convicted of a crime whose DNA speci- 26 men was collected: after a criminal trial; pursuant to a plea agreement; 27 as a condition of participation in a temporary release, comprehensive 28 alcohol and substance abuse treatment (CASAT) or shock incarceration 29 program; as a condition of release on parole, post-release supervision, 30 presumptive release or conditional release on a definite or indetermi- 31 nate sentence; or as a condition of probation or interim probation 32 supervision. 33 5-d. "Volunteer index" means the electronic database containing DNA 34 profiles generated from a volunteer sample. 35 6. "State DNA identification index" means the DNA identification 36 record system for New York state established pursuant to this article. 37 6-a. "CODIS" means the federal combined DNA index system. 38 6-b. "NDIS" means the national DNA index system. 39 6-c. "Forensic DNA index" means the electronic database in CODIS that 40 contains DNA profiles generated from casework evidence by forensic DNA 41 laboratories. 42 7. "Designated offender" means a person convicted of any felony 43 defined in any chapter of the laws of the state or any misdemeanor 44 defined in the penal law except that where the person is convicted under 45 section 221.10 of the penal law, only a person convicted under subdivi- 46 sion two of such section, or a person convicted under subdivision one of 47 such section who stands previously convicted of any crime as defined in 48 subdivision six of section 10.00 of the penal law. 49 8. "DNA record" means DNA identification information prepared by a 50 forensic DNA laboratory and stored in the state DNA identification index 51 for purposes of establishing identification in connection with law 52 enforcement investigations or supporting statistical interpretation of 53 the results of DNA analysis. A DNA record is the objective form of the 54 results of a DNA analysis sample.A. 7371 3 1 9. "DNA subcommittee" shall mean the subcommittee on forensic DNA 2 laboratories and forensic DNA testing established pursuant to subdivi- 3 sion thirteen of section nine hundred ninety-five-b of this article. 4 10. "Commission" shall mean the commission on forensic science estab- 5 lished pursuant to section nine hundred ninety-five-a of this article. 6 11. "Sample" shall mean the immediate result of any genetic sampling 7 and includes the means of sampling itself, such as a swab, and any 8 genetic sample that came from the volunteer and is used for subsequent 9 testing, analysis, or indexing, or that is in the custody of an agency. 10 12. "Volunteer sample" or "volunteer genetic sample" shall mean any 11 genetic sample or DNA profile that is knowingly and intelligently given 12 to the state by a person without an order of the court. The term does 13 not include samples taken from designated offenders. 14 13. "Derived information" shall mean any and all information and 15 documentation that is extracted or created from the sample and is asso- 16 ciated with the sample, including any partial or complete DNA profile, 17 code or genetic testing, or other identifying information. 18 § 2. Sections 995-d, 995-e and 995-f of the executive law are renum- 19 bered sections 995-f, 995-g and 995-h and two new sections 995-d and 20 995-e are added to read as follows: 21 § 995-d. Attachment of a volunteer sample to a specific case. 1. When 22 any volunteer genetic sample or DNA profile is received by the state, or 23 any subdivision thereof, it shall be attached to an ongoing investi- 24 gation and given a unique reference number under which all derived 25 information may be referenced. 26 (a) The sample and all derived information shall be organized and 27 indexed in the volunteer index by each law enforcement agency or foren- 28 sic lab to come in contact with the material. 29 (b) The law enforcement agency shall certify that the information was 30 collected or created in reasonable and direct connection with one or 31 more specific investigations. 32 (c) If a sample, derived information, or DNA profile is shared with 33 another agency the following information shall be documented in associ- 34 ation with the unique reference number: the name of the requesting agen- 35 cy; the purpose for which the sample, information or DNA profile was 36 sought; and a description of the information shared. 37 2. Any information attached to a new case that had not been initiated 38 at the time the unique identification number was first assigned shall be 39 considered attached to an ongoing investigation and shall preclude 40 approval of a request for expungement, provided, however, that the 41 sample, derived information, of DNA profile must have a reasonable and 42 direct connection with the new investigation. 43 3. Volunteer receipt and information. Any person who provides a volun- 44 teer sample shall be provided a receipt by the agency receiving the 45 sample within forty-eight hours. The receipt shall indicate the follow- 46 ing: 47 (a) the unique identification number assigned to the volunteer; 48 (b) a statement informing the volunteer that he or she may apply to 49 have all the samples and derived information associated therewith 50 expunged from the agencies' records, and returned to the volunteer upon 51 the completion of the investigation for which the sample was submitted; 52 (c) a statement describing the process by which the volunteer may 53 apply for such expungement; and 54 (d) a statement informing the volunteer that the sample and all 55 derived information may be used in further investigations unless and 56 until an expungement request is approved.A. 7371 4 1 § 995-e. Volunteer request for expungement. 1. Any person that has 2 provided a volunteer sample to a law enforcement agency may request that 3 their sample and all derived information be expunged from the records of 4 any and all agencies that have examined the sample or any forensic 5 information derived therefrom. When applying for such expungment the 6 volunteer shall provide: 7 (a) proof of identity; 8 (b) the unique identification number associated with their sample; and 9 (c) a written attestation that they wish to have their sample and all 10 derived information expunged and returned to them or expunged and 11 destroyed. 12 2. When an agency receives a volunteer request for expungement the 13 agency shall determine whether the sample is currently associated with 14 an ongoing investigation and whether the information provided pursuant 15 to subdivision one of this section is sufficient. If the sample is 16 currently associated with an ongoing investigation or the information 17 provided is insufficient the agency shall inform the volunteer the 18 request is denied. When denying a volunteer request for expungement, 19 the agency shall provide an explanation of its decision. If the sample 20 is not currently associated with an ongoing investigation and the infor- 21 mation required under subdivision one of this section is sufficient, the 22 agency shall approve the request and shall: 23 (a) cease all testing and analysis of the sample or any derived infor- 24 mation and shall delete all records identified with the volunteer's 25 unique identification number, including DNA profiles from any and all 26 databases or indexes maintained by the agency, and shall make the 27 original samples available for destruction or return to the volunteer; 28 and 29 (b) forward the request to all other agencies that were involved with 30 the collection, processing, or analysis of that sample, including all 31 agencies to which the agency receiving the request provided the sample 32 or any derived information. 33 § 3. This act shall take effect immediately.