Relates to the collection of DNA samples of designated offenders, the preservation of biological evidence and establishes the commission of exoneration review

Section 2 -- Amends Executive Law section 995-c(3) to establish the procedures for collecting DNA samples from "designated offenders" (as defined by section 1 of this act). Permits court officials, state or local correction officials or employees, and other employees to collect a DNA sample as well as permitting a public servant to use reasonable force to collect such DNA from a designated offender in his or her custody.

Section 3 -- Amends Executive Law section 995-f by adding a paragraph (2), Paragraph (2) establishes penalties for "designated offenders" who fail to provide a DNA sample.

Section 4 -- Amends Executive Law section 995-c(4) to require the Commissioner of the Division of Criminal Justice Services to establish rules and procedures for obtaining DNA samples-from those required to register as sex offenders (pursuant to Article 6-C of the Correction Law).

Sections 5 -- Amends Executive Law section 995-b by adding a new subdivision 3-a creating new duties and guidelines for the Commission on Forensic Science.

Section 6-10 -- Amends various provisions of the Criminal Procedure Law dealing with the requirement of taking fingerprints in accordance with 160.10 to also include a requirement for taking a DNA sample appropriate for DNA testing.

Section 11 -- Amends section 160.10 of the Criminal Procedure Law to require a DNA sample to be taken when a fingerprint is required or permitted to be taken.

Section 12 -- Amends section 160.20 of the Criminal Procedure Law to require a DNA analysis sample to be forwarded to a forensic DNA

laboratory for testing and analysis and to also include such sample in the state DNA identification index.

Section 13 -- Amends section 160.55 of the Criminal Procedure Law to require a DNA analysis sample and records to be taken in addition such requirement for fingerprints.

Section 14 -- Establishes the Commission for Exoneration Review. The Commission will review recent cases where convicted defendants were subsequently exonerated by DNA evidence. The section establishes the membership and structure of this Commission. This section also outlines the standards and procedures the Commission shall use when reviewing cases. Finally, this section requires the Commission to release periodic reports to certain state officials.

Section 15 -- Amends Criminal Procedure Law section 160.50(1)(d) to establish that the Commission for Exoneration Review will have access to certain records.

Section 16 -- Amends Criminal Procedure Law section 190.25(4) by adding a new paragraph (c) to allow the Commission for Exoneration Review to have access to grand jury testimony, evidence and other items related to a Commission inquiry.

Section 17 -- Amends Criminal Procedure Law section 240.40 by adding a new subdivision 1-a to establish procedures for using DNA evidence in court.

Section 18 -- Amends Criminal Procedure Law section 440.30(1-a)(a) to outline procedures for a defendant to request a DNA test or comparison.

Section 19 -- Amends Penal Law section 65.10 by adding a new subdivision 4-b. States that a court shall require, as a condition for certain sentences, that the convicted individual provide a DNA sample.

Section 20 -- Amends Court of Claims Act section 8-b to alter what a defendant claiming unjust conviction is able to prove and must prove, by documentary evidence, to a court.

Section 21 -- Effective date.

Existing law

Currently, the Executive Law enumerates the offenses for which a person qualifies as a "designated offender" and is thus required to submit a DNA sample for testing and inclusion in the state DNA identification index. This enumeration, while lengthy, is limited to those offenses that are listed. This list includes offenses related to homicide, assault, violent felonies, kidnapping, sexual offenses, endangering the welfare of a child, and other crimes. Criminal Procedure Law, through section 160.10, requires that fingerprints be taken for a felony, misdemeanor, and loitering.

Additionally, a police officer may take fingerprints under this section to ascertain a person's identity or to determine whether the person's identification is accurate, Also, a police officer may take fingerprints when he or she reasonably suspects the individual is being sought for the commission of another offense.

Justification

In April 2004, Glen Shoop was arrested on charges of third degree assault, second degree unlawful imprisonment, and third degree menacing. Mr. Shoop plead guilty in March 2005 to third degree assault. This crime was not an offense for which DNA was required to be taken.

In 2006, Mr. Shoop was arrested for rape, criminal sexual act, and unlawful imprisonment. Upon conviction, he was ordered to provide a DNA sample. The existing law at that time did not require DNA to be taken upon arrest. Mr. Shoop plead guilty to first degree unlawful imprisonment on April 10, 2007. Two days before he was sentenced, Mr. Shoop sexually assaulted and murdered Carol Nelson in a heavily wooded area of a Syracuse suburb. Before Ms. Nelson's murder, but after Mr. Shoop provided a DNA sample to authorities, law enforcement was able to determine that Mr. Shoop's DNA matched DNA connected with an unsolved rape that occurred in East Syracuse in 2000.

Because Mr. Shoop was not required to provide a DNA sample for third degree assault in 2004, law enforcement was unable to connect him to the 2000 unsolved rape. Therefore, he was free to perpetrate another crime in 2006 as well as the murder of Ms. Nelson. In 2006, had Mr. Shoop been required to provide DNA upon arrest, rather than conviction, law enforcement would have connected him to the 2000 unsolved rape and he would not have been free to commit the murder of Carol Nelson.

The crimes subsequent to the 2004 arrest, including the murder of Carol Nelson, could have been prevented had two flaws not existed: 1) the limited number of offenses for which DNA would be taken, and 2) the requirement that a DNA sample be provided upon conviction, rather than upon arrest, as is done with fingerprints. The proposed legislation addresses both of these flaws directly by expanding the number of offenses for which DNA must be taken and by requiring law enforcement to take a DNA sample upon arrest, rather than upon a later conviction.

Legislative history

2007-08: S.6726A/A.9974-A

Fiscal implications

This legislation was projected to cost $55-65 million for the 2008-09 year.

Effective date

This act shall take effect on November 1, 2009, with provisions.