Bill Text: NY S00071 | 2023-2024 | General Assembly | Introduced

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Bill Title: Requires individuals arrested in connection with a felony to submit a DNA sample; makes related provisions and technical corrections.

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced) 2024-01-03 - REFERRED TO INTERNET AND TECHNOLOGY [S00071 Detail]

Download: New_York-2023-S00071-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                           71

                               2023-2024 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 4, 2023
                                       ___________

        Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Internet and Technology

        AN ACT to amend the executive law and the  criminal  procedure  law,  in
          relation to requiring individuals arrested in connection with a felony
          to submit a DNA sample

          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 is amended by adding a new
     2  subdivision 7-a to read as follows:
     3    7-a. "Felony arrestee" means a person arrested and  charged  with  any
     4  one  or more of the following felonies, or an attempt thereof where such
     5  attempt is a felony offense, as  defined  in  the  penal  law:  sections
     6  120.05,  120.06, 120.07, 120.10, 120.11 and 120.12, relating to assault;
     7  sections 120.55 and 120.60, relating to stalking; section 120.70, relat-
     8  ing to luring a child; sections 125.15, 125.20, 125.21, 125.22,  125.25,
     9  125.26  and  125.27,  relating  to  homicide;  sections  130.25, 130.30,
    10  130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.67, 130.70,  130.75,
    11  130.80,  130.95  and  130.96, relating to sex offenses; sections 135.10,
    12  135.20, 135.25 and 135.35, relating to kidnapping and labor trafficking;
    13  sections 140.17,  140.20,  140.25  and  140.30,  relating  to  burglary;
    14  sections  150.05, 150.10, 150.15 and 150.20, relating to arson; sections
    15  155.30, 155.35, 155.40 and 155.42, relating to grand  larceny;  sections
    16  160.05,  160.10 and 160.15, relating to robbery; section 230.34 relating
    17  to sex trafficking; sections 235.21  and  235.22,  relating  to  dissem-
    18  ination  of  indecent  material  to  minors; sections 250.45 and 250.50,
    19  relating to unlawful surveillance; sections 255.25, 255.26, and  255.27,
    20  relating to incest; sections 263.05, 263.10, 263.11, 263.15, 263.16, and
    21  263.30,  relating  to sexual performance by a child; or sections 265.02,
    22  265.03, 265.04, 265.08,  265.09,  265.11,  265.12,  265.13,  265.14  and
    23  265.16, relating to firearms and other dangerous weapons.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00569-01-3
        S. 71                               2

     1    § 2. Subdivision 3 of section 995-c of the executive law is amended by
     2  adding four new paragraphs (c), (d), (e) and (f) to read as follows:
     3    (c)  A felony arrestee shall be required to provide a sample appropri-
     4  ate for DNA testing upon his or her arrest, unless such felony  arrestee
     5  has previously provided a sample that is included in the state DNA iden-
     6  tification index.
     7    (d)  A public servant to whose custody a designated offender or felony
     8  arrestee who has not yet provided a DNA sample has been committed  shall
     9  seek an order of the court to collect such sample if the offender, after
    10  written or oral request, refuses to provide such sample.
    11    (e)  The detention, arrest, indictment or conviction of a person based
    12  upon DNA records contained in the state DNA identification  index  shall
    13  not be invalidated if it is later determined that the division of crimi-
    14  nal  justice  services  inadvertently,  but  in good faith, collected or
    15  placed the person's DNA sample in the index.
    16    (f) The commissioner of criminal  justice  services  shall  promulgate
    17  rules and regulations governing the periodic review of the DNA identifi-
    18  cation index to determine whether or not the index contains DNA profiles
    19  that  should  not  be  in  the  index,  including the steps necessary to
    20  expunge any profiles which the division  of  criminal  justice  services
    21  determines should not be in the index.
    22    §  3.  Subdivision 9 of section 995-c of the executive law, as amended
    23  by chapter 524 of the laws of 2002, is amended to read as follows:
    24    9. (a) Upon receipt of notification of a reversal or a  vacatur  of  a
    25  conviction,  or of the granting of a pardon pursuant to article two-A of
    26  this chapter, of an individual whose DNA record has been stored  in  the
    27  state  DNA  identification  index in accordance with this article by the
    28  division of criminal justice services, the DNA record shall be  expunged
    29  from  the  state DNA identification index, and such individual may apply
    30  to the court in which the judgment of conviction was originally  entered
    31  for  an  order  directing  the  expungement  of  any  DNA record and any
    32  samples, analyses, or other documents relating to  the  DNA  testing  of
    33  such  individual  in connection with the investigation or prosecution of
    34  the crime which resulted in the conviction that was reversed or  vacated
    35  or for which the pardon was granted. A copy of such application shall be
    36  served  on  the district attorney and an order directing expungement may
    37  be granted  if  the  court  finds  that  all  appeals  relating  to  the
    38  conviction  have  been  concluded;  that  such  individual  will  not be
    39  retried, or, if a retrial has occurred, the trier of fact has rendered a
    40  verdict of complete acquittal, and that expungement will  not  adversely
    41  affect  the investigation or prosecution of some other person or persons
    42  for the crime. The division shall,  by  rule  or  regulation,  prescribe
    43  procedures to ensure that the DNA record in the state DNA identification
    44  index,  and  any  samples, analyses, or other documents relating to such
    45  record, whether in the possession of the division, or any  law  enforce-
    46  ment  or  police  agency,  or any forensic DNA laboratory, including any
    47  duplicates or copies thereof, at the discretion of the possessor  there-
    48  of,  are  either  destroyed  or  returned  to such individual, or to the
    49  attorney who represented him or her at the time such  reversal,  vacatur
    50  or  pardon,  was  granted. The commissioner shall also adopt by rule and
    51  regulation a procedure for the expungement in other appropriate  circum-
    52  stances of DNA records contained in the index.
    53    (b)  As  prescribed in this paragraph, if an individual, either volun-
    54  tarily, pursuant to paragraph (c) of subdivision three of this  section,
    55  or  pursuant to a warrant or order of a court, has provided a sample for
    56  DNA testing in connection with the investigation, arrest or  prosecution
        S. 71                               3

     1  of a crime and (i) no criminal action against the individual relating to
     2  such crime was commenced within the period specified by section 30.10 of
     3  the  criminal  procedure  law,  or  (ii) a criminal action was commenced
     4  against  the  individual  relating  to  such  crime  which resulted in a
     5  complete acquittal, or (iii) a criminal action was commenced against the
     6  individual relating to such crime [resulted in  a  conviction  that  was
     7  subsequently reversed or vacated, or for which the individual was grant-
     8  ed  a  pardon pursuant to article two-A of this chapter, such individual
     9  may apply to the supreme court or the court in  which  the  judgment  of
    10  conviction was originally entered for an order directing the expungement
    11  of any DNA record and any samples, analyses, or other documents relating
    12  to  the  DNA  testing of such individual in connection with the investi-
    13  gation or prosecution of such crime. A copy of such application shall be
    14  served on the district attorney and an order directing  expungement  may
    15  be  granted  if  the  court  finds that the individual has satisfied the
    16  conditions of one of the subparagraphs of  this  paragraph;  that  if  a
    17  judgment  of  conviction  was  reversed or vacated, all appeals relating
    18  thereto have been concluded and the individual will not be retried,  or,
    19  if  a  retrial has occurred, the trier of fact has rendered a verdict of
    20  complete acquittal, and that expungement will not adversely  affect  the
    21  investigation  or  prosecution  of  some other person or persons for the
    22  crime. If an order directing the expungement of any DNA record  and  any
    23  samples, analyses or other documents relating to the DNA testing of such
    24  individual  is  issued]  which  was  resolved by a dismissal, successful
    25  completion  of  a  pre-prosecution  diversion  program,  or  conditional
    26  discharge  or misdemeanor conviction that did not require DNA collection
    27  pursuant to section nine hundred ninety-five of this  article,  the  DNA
    28  record  shall  be  expunged  from the state DNA identification index. An
    29  individual may request expungement of any DNA record  and  any  samples,
    30  analyses or other documents relating to the DNA testing of such individ-
    31  ual  by  providing  the  following materials to the division of criminal
    32  justice services:
    33    (1) a written request for expungement of the sample and  DNA  records;
    34  and
    35    (2)  a  certified  copy  of  the dismissal, successful completion of a
    36  pre-prosecution diversion program or a conditional discharge,  misdemea-
    37  nor conviction or acquittal; and
    38    (3)  a sworn statement from the district attorney's office with juris-
    39  diction over the matter that: the case was dismissed; a  pre-prosecution
    40  diversion  program  or  conditional  discharge,  misdemeanor  conviction
    41  excluded from DNA collection pursuant to section  nine  hundred  ninety-
    42  five  of this article or acquittal occurred; no felony charges arose out
    43  of the arrest; or no criminal action against the individual relating  to
    44  such crime was commenced within the period specified by section 30.10 of
    45  the  criminal  procedure  law;  and  that expungement will not adversely
    46  affect the investigation or prosecution of some other person or  persons
    47  for the crime.
    48    (c)  If  expungement  is warranted pursuant to paragraph (a) or (b) of
    49  this subdivision, such record and any samples, analyses, or other  docu-
    50  ments shall, at the discretion of the possessor thereof, be destroyed or
    51  returned  to  such  individual or to the attorney who represented him or
    52  her in the criminal action or in connection with  the  [application  for
    53  the order of] request for expungement.
    54    (d)  No  expungement  shall be granted where an individual has a prior
    55  conviction requiring a DNA sample, or a pending felony charge for  which
        S. 71                               4

     1  collection of a sample is authorized pursuant to the provisions of para-
     2  graph (c) of subdivision three of this section.
     3    § 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
     4  amended  by section 16 of part WWW of chapter 59 of the laws of 2017, is
     5  amended to read as follows:
     6    6. Before bringing a defendant arrested pursuant to a  warrant  before
     7  the local criminal court or youth part of a superior court in which such
     8  warrant  is  returnable, a police officer must without unnecessary delay
     9  perform all fingerprinting and other preliminary police duties  required
    10  in  the  particular  case.  In  any  case  in which the defendant is not
    11  brought by a police officer before such court but, following his or  her
    12  arrest  in another county for an offense specified in subdivision one of
    13  section 160.10 of this title, is released by a local criminal  court  of
    14  such  other  county on his or her own recognizance or on bail for his or
    15  her appearance on a specified  date  before  the  local  criminal  court
    16  before  which  the  warrant  is  returnable, the latter court must, upon
    17  arraignment of the defendant before it, direct that he or she be finger-
    18  printed and have a sample appropriate for DNA testing taken, if required
    19  pursuant to section nine hundred ninety-five-c of the executive law,  by
    20  the  appropriate  officer  or  agency,  and  that he or she appear at an
    21  appropriate designated time and place for such purpose.
    22    § 5. Section 130.60 of the criminal procedure law, as amended by chap-
    23  ter 95 of the laws of 1991, subdivision 1 as amended by chapter  446  of
    24  the laws of 1993, is amended to read as follows:
    25  § 130.60 Summons; fingerprinting of defendant.
    26    1. Upon the arraignment of a defendant whose court attendance has been
    27  secured  by the issuance and service of a summons, based upon an indict-
    28  ment,  a  prosecutor's  information  or  upon  an  information,   felony
    29  complaint  or  misdemeanor  complaint  filed  by  a complainant who is a
    30  police officer, the court must, if an offense charged in the  accusatory
    31  instrument is one specified in subdivision one of section 160.10 of this
    32  title,  direct  that  the  defendant be fingerprinted by the appropriate
    33  police officer or agency, and that he or she appear  at  an  appropriate
    34  designated  time  and  place for such purpose.  If an offense charged in
    35  the accusatory instrument is one specified  in  subdivision  seven-a  of
    36  section  nine  hundred  ninety-five of the executive law, the court must
    37  direct that a sample appropriate for DNA testing be taken, and  that  he
    38  or  she  appear  at  an  appropriate  designated time and place for such
    39  purpose.
    40    2. Upon the arraignment of a defendant whose court attendance has been
    41  secured by the issuance and service of a summons based upon an  informa-
    42  tion or misdemeanor complaint filed by a complainant who is not a police
    43  officer,  and  who  has not previously been fingerprinted or from whom a
    44  DNA sample has not previously been taken and was  required  pursuant  to
    45  section  nine hundred ninety-five-c of the executive law, the court may,
    46  if it finds reasonable cause to believe that the defendant has committed
    47  an offense specified in subdivision one of section 160.10 of this title,
    48  direct that the defendant be fingerprinted and/or have a  sample  appro-
    49  priate  for DNA testing taken, if required by section nine hundred nine-
    50  ty-five-c of the executive law, by the  appropriate  police  officer  or
    51  agency  and  that he or she appear at an appropriate designated time and
    52  place for such purpose. A defendant  whose  court  appearance  has  been
    53  secured  by  the issuance and service of a criminal summons based upon a
    54  misdemeanor complaint or information filed by a complainant who is not a
    55  police officer, must be directed by the court, upon  conviction  of  the
    56  defendant,  to  be  fingerprinted  and have a sample appropriate for DNA
        S. 71                               5

     1  testing taken, if required by section nine hundred ninety-five-c of  the
     2  executive law, by the appropriate police officer or agency and the court
     3  must  also direct that the defendant appear at an appropriate designated
     4  time  and  place  for such purpose, if the defendant is convicted of any
     5  offense specified in subdivision one of section 160.10 of this title.
     6    § 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
     7  amended by chapter 762 of the laws  of  1971,  is  amended  to  read  as
     8  follows:
     9    5.  Before  service  of  an  appearance ticket upon an arrested person
    10  pursuant to subdivision two or three of this section, the issuing police
    11  officer must, if the offense designated in such appearance ticket is one
    12  of those specified in subdivision one of section 160.10 of  this  title,
    13  cause  such person to be fingerprinted and have a sample appropriate for
    14  DNA testing taken, if required by section nine hundred ninety-five-c  of
    15  the  executive  law,  in  the  same  manner as would be required were no
    16  appearance ticket to be issued or served.
    17    § 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
    18  amended by section 21 of part WWW of chapter 59 of the laws of 2017,  is
    19  amended to read as follows:
    20    2.  Upon arresting a person without a warrant, a peace officer, except
    21  as otherwise provided in subdivision three or three-a of  this  section,
    22  must  without  unnecessary delay bring [him] such person or cause him or
    23  her to be brought before a local criminal court, as provided in  section
    24  100.55 of this title and subdivision one of section 140.20 of this arti-
    25  cle, and must without unnecessary delay file or cause to be filed there-
    26  with  an  appropriate accusatory instrument. If the offense which is the
    27  subject of the arrest is one of those specified in  subdivision  one  of
    28  section  160.10 of this title, the arrested person must be fingerprinted
    29  and photographed, and have a sample appropriate for DNA testing taken if
    30  required by section nine hundred ninety-five-c of the executive law,  as
    31  therein  provided.  In  order  to execute the required post-arrest func-
    32  tions, such arresting peace officer may perform such  functions  himself
    33  or  herself  or he or she may enlist the aid of a police officer for the
    34  performance thereof in the manner provided in subdivision one of section
    35  140.20 of this article.
    36    § 8. Section 150.70 of the criminal procedure law, as amended by chap-
    37  ter 762 of the laws of 1971, is amended to read as follows:
    38  § 150.70  Appearance ticket; fingerprinting and DNA analysis  sample  of
    39               defendant.
    40    Upon  the  arraignment  of  a  defendant who has not been arrested and
    41  whose court attendance has been secured by the issuance and  service  of
    42  an  appearance  ticket  pursuant to subdivision one of section 150.20 of
    43  this article, the court must, if an offense charged  in  the  accusatory
    44  instrument is one specified in subdivision one of section 160.10 of this
    45  title,  direct  that  the defendant be fingerprinted   and have a sample
    46  appropriate for DNA testing taken when required by section nine  hundred
    47  ninety-five-c  of the executive law by the appropriate police officer or
    48  agency, and that he or she appear at an appropriate designated time  and
    49  place for such purpose.
    50    § 9. Section 160.20 of the criminal procedure law, as amended by chap-
    51  ter 108 of the laws of 1973, is amended to read as follows:
    52  §  160.20  Fingerprinting and DNA analysis sample; forwarding of finger-
    53               prints and DNA analysis sample.
    54    1. Upon the taking of fingerprints of an arrested person or  defendant
    55  as  prescribed in section 160.10 of this article, the appropriate police
        S. 71                               6

     1  officer or agency must without unnecessary delay forward two  copies  of
     2  such fingerprints to the division of criminal justice services.
     3    2.   Upon taking a sample appropriate for DNA testing, the appropriate
     4  police office or agency must without unnecessary delay store and forward
     5  such DNA sample to a forensic DNA laboratory for  forensic  DNA  testing
     6  and  analyses,  and  inclusion  in the state DNA identification index in
     7  accordance with subdivision five of section nine  hundred  ninety-five-c
     8  of the executive law.
     9    § 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
    10  criminal  procedure  law, paragraph (d) as amended by chapter 449 of the
    11  laws of 2015 and paragraph (e) as amended by chapter 169 of the laws  of
    12  1994, are amended and a new paragraph (f) is added to read as follows:
    13    (d)  such  records shall be made available to the person accused or to
    14  such person's designated agent, and shall be made  available  to  (i)  a
    15  prosecutor in any proceeding in which the accused has moved for an order
    16  pursuant  to  section 170.56 or 210.46 of this [chapter] part, or (ii) a
    17  law enforcement agency upon ex parte motion in any superior court, or in
    18  any district court, city court or the criminal court of the city of  New
    19  York  provided  that such court sealed the record, if such agency demon-
    20  strates to the satisfaction of the court that justice requires that such
    21  records be made available to it, or (iii) any state or local officer  or
    22  agency with responsibility for the issuance of licenses to possess guns,
    23  when  the  accused  has made application for such a license, or (iv) the
    24  New York state department of corrections and community supervision  when
    25  the  accused is on parole supervision as a result of conditional release
    26  or a parole release granted by the New York state board of  parole,  and
    27  the  arrest  which  is  the subject of the inquiry is one which occurred
    28  while the accused was under such supervision,  or  (v)  any  prospective
    29  employer of a police officer or peace officer as those terms are defined
    30  in  subdivisions  thirty-three  and  thirty-four of section 1.20 of this
    31  chapter, in relation to an application for employment as a police  offi-
    32  cer  or  peace  officer;  provided, however, that every person who is an
    33  applicant for the position of police officer or peace officer  shall  be
    34  furnished  with  a copy of all records obtained under this paragraph and
    35  afforded an opportunity to make an  explanation  thereto,  or  (vi)  the
    36  probation department responsible for supervision of the accused when the
    37  arrest  which  is the subject of the inquiry is one which occurred while
    38  the accused was under such supervision; [and]
    39    (e) where fingerprints subject to the provisions of this section  have
    40  been received by the division of criminal justice services and have been
    41  filed  by  the  division as digital images, such images may be retained,
    42  provided that a fingerprint card of the individual is on file  with  the
    43  division which was not sealed pursuant to this section or section 160.55
    44  of this article[.]; and
    45    (f) a sample appropriate for DNA testing taken from such person pursu-
    46  ant  to section nine hundred ninety-five-c of the executive law, and any
    47  DNA record relating to such sample, and any analyses or other  documents
    48  relating  to such DNA sample shall be expunged, destroyed or returned in
    49  accordance with subdivision nine of such section of the executive law.
    50    § 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
    51  criminal procedure law, paragraph (d) as amended by chapter 449  of  the
    52  laws  of 2015 and paragraph (e) as amended by chapter 169 of the laws of
    53  1994, are amended and a new paragraph (f) is added to read as follows:
    54    (d) the records referred to in paragraph (c) of this subdivision shall
    55  be made available to the person accused or to such  person's  designated
    56  agent, and shall be made available to (i) a prosecutor in any proceeding
        S. 71                               7

     1  in  which  the accused has moved for an order pursuant to section 170.56
     2  or 210.46 of this [chapter] part, or (ii) a law enforcement agency  upon
     3  ex  parte  motion  in any superior court, or in any district court, city
     4  court  or  the criminal court of the city of New York provided that such
     5  court sealed the record, if such agency demonstrates to the satisfaction
     6  of the court that justice requires that such records be  made  available
     7  to it, or (iii) any state or local officer or agency with responsibility
     8  for  the issuance of licenses to possess guns, when the accused has made
     9  application for such a license, or (iv) the New York state department of
    10  corrections and community supervision when the accused is  under  parole
    11  supervision as a result of conditional release or parole release granted
    12  by  the  New  York  state  board  of  parole and the arrest which is the
    13  subject of the inquiry is one which occurred while the accused was under
    14  such supervision, or (v) the probation department responsible for super-
    15  vision of the accused when the  arrest  which  is  the  subject  of  the
    16  inquiry  is  one  which occurred while the accused was under such super-
    17  vision, or (vi) a police agency, probation department, sheriff's office,
    18  district attorney's office, department of correction of any municipality
    19  and parole department, for law  enforcement  purposes,  upon  arrest  in
    20  instances  in which the individual stands convicted of harassment in the
    21  second degree, as defined in section 240.26 of the penal law,  committed
    22  against  a  member  of the same family or household as the defendant, as
    23  defined in subdivision one of section 530.11 of this chapter, and deter-
    24  mined pursuant to subdivision eight-a of section 170.10 of  this  title;
    25  [and]
    26    (e)  where fingerprints subject to the provisions of this section have
    27  been received by the division of criminal justice services and have been
    28  filed by the division as digital images, such images  may  be  retained,
    29  provided  that  a fingerprint card of the individual is on file with the
    30  division which was not sealed pursuant to this section or section 160.50
    31  of this article[.]; and
    32    (f) a sample appropriate for DNA testing taken from such person pursu-
    33  ant to section nine hundred ninety-five-c of the executive law, any  DNA
    34  record  relating  to  such  sample,  and any analyses or other documents
    35  relating to such DNA sample shall be expunged, destroyed or returned  in
    36  accordance with subdivision nine of such section of the executive law.
    37    §  12.  This  act  shall  take effect on the one hundred eightieth day
    38  after it shall have become a law.