Relates to the collection of DNA samples from designated offenders and the release of certain criminal records

Section 2 of the bill amends Executive Law §995-c(3) to specify the public servants responsible for collection of DNA samples from designated offenders.

Section 3 of the bill amends Criminal Procedure Law §60.25 to provide that under certain circumstances, evidence of photographic identifications may be admitted at trial in the absence of an in-court identification.

Section 4 of the bill amends Criminal Procedure Law §60.30 to provide that under certain circumstances, evidence of photographic identifications may be admitted at trial in addition to an in-court identification.

Section 5 of the bill adds a new Criminal Procedure Law §60.32 to establish certain guidelines for reliable eyewitness investigations, and to allow juries to consider compliance or noncompliance with the guidelines in assessing the reliability of identifications.

Section 6 of the bill adds a new Executive Law §845-c to provide that reports of criminal history records shall generally omit references to cases without reported dispositions.

Section 7 of the bill adds a new subdivision 1-a to Criminal Procedure Law §240.40 to provide a defendant a pre-trial discovery right, on appropriate showings, to have crime scene DNA evidence compared with his or her own DNA, or compared against DNA databanks.

Section 8 of the bill amends Criminal Procedure Law §440.30(1-a)(a) to enhance a defendant's access to DNA testing for purposes of post-conviction relief, on proper showings, in the following ways:

* It makes clear that when a court assesses the need for such testing, it should consider the relevance that the results would have if they do not match the DNA of the defendant.

* It allows defendants who pled guilty to seek post-conviction DNA testing.

* It enhances the defendant's ability to have relevant samples located for testing by enhancing the court's ability to order discovery of documents and law-enforcement efforts to locate such samples.

* It allows a defendant to apply for crime scene DNA evidence to be tested not only against his or her own DNA, but also against profiles in DNA databanks maintained by law enforcement.

Section 9 of the bill adds a new subdivision 8 to Criminal Procedure Law §440.30 to provide that if the prosecution becomes aware of evidence exonerative of a convicted defendant, it is required to notify the court, which shall notify the defendant and appoint defense counsel if appropriate, and may consider releasing the defendant on bail.

Section 10 of the bill adds a new subdivision 7 to Criminal Procedure Law §440.40 to provide that the prosecution may move to vacate a judgment of conviction on the ground of a defendant's actual innocence. It provides for appointment of defense counsel, consideration of release on bail, and prompt judicial resolution through either a summary grant of the motion or an evidentiary hearing.

Section 11 of the bill adds a new subdivision 4-b to Penal Law §65.10 to provide that when a court imposes a sentence that includes probation or a conditional discharge, it shall require as a mandatory condition of such sentence that the defendant provide a DNA sample.

Section 12 of the bill adds a new Penal Law §270.40 to make it a misdemeanor for a person to fail to provide a DNA sample when required to do so by law.

Section 13 of the bill amends Court of Claims Act §8-b to provide that an unjustly convicted defendant may obtain compensation whether or not the defendant's conviction was overturned on one of the grounds currently enumerated in the statute, as long as it was overturned for reasons involving facts and circumstances directly supporting the defendant's claim of innocence.

Section 14 of the bill authorizes the Forensic Science Commission to study the use of all forms of forensic evidence in the criminal justice system, and issue nonbinding standards and best practices in those areas. It allows the use of advisory councils to provide technical and logistical expertise in areas beyond the Commission's current mandates.

Section 15 of the bill provides that in case portions of the act are invalidated, the balance shall continue in full force and effect, except that sections 3, 4 and 5 shall cease to be of any effect if any part of those three sections is invalidated by the Court of Appeals.

Section 16 of the bill provides for an immediate effective date, except that the amendments to the Criminal Procedure Act concerning identifications, in sections 3, 4 and 5 of the bill, will take effect 90 days after enactment; the amendments in section 6 pertaining to criminal history records will take effect 180 days after enactment; and section 12, defining the new crime of failure to provide a DNA sample, will take effect on the first November 1 following enactment.

Existing law

DNA samples are currently collected from persons convicted of some but not all crimes. The list of crimes subject to collection has been expanded three times, but many misdemeanor convictions remain outside the scope of collection. Currently, DNA collection is not required from persons adjudicated youthful offenders or subject to sex offender registration. Existing law does not make clear which officials are responsible for collecting DNA samples in various cases, nor does it require that defendants provide DNA samples as a condition of probation or parole. Moreover, it is not currently an offense to refuse to provide a DNA sample even when to give such a sample is required by law.

Evidence of eyewitness identifications may be suppressed when it results from procedures that violate a defendant's constitutional rights, but no laws establish best practices or guidelines to encourage that identification procedures are conducted at a level of reliability higher than the minimum required by the constitution. Moreover, while current law allows admission of evidence of out-of-court corporeal identifications, it does not allow admission of photographic identifications.

No provision of existing law requires or permits the Division of Criminal Justice Services to cleanse criminal history records of criminal charges with unreported dispositions, no matter how long they appear to have been pending.

Criminal Procedure Law §240.40 defines the scope of a defendant's right of pretrial discovery of existing evidence, but it does not include the authority to apply for court ordered DNA testing.

The post-conviction relief currently authorized by Criminal Procedure Law § 440.30(1-a) allows for a defendant's application for DNA testing of evidence secured in connection with the trial, but it does not permit application for an order to have such evidence compared against DNA databanks maintained by law enforcement. Moreover, in People v. Bvrdsong, 33 A.D.3d 175 (2d Dept. 2006), the existing authority was held inapplicable to defendants who pled guilty.

There is currently no mechanism in the Criminal Procedure Law for a prosecutor to move for a judgment of conviction, to be vacated, even when new evidence would support a claim of innocence. Prosecutors do not currently have an explicit legal or ethical duty to bring such evidence to the attention of a court.

Court of Claims Act §8-b allows wrongfully convicted defendants to seek compensation from the State. However, this provision is currently restricted by a requirement that the defendant must show that the conviction was overturned on one of certain enumerated procedural grounds, even if it was in substance based on facts supporting a claim of innocence.

The Commission on Forensic Science currently has oversight responsibilities related to forensic laboratories and the DNA identification index.

Statement in support

DNA technology is already a valuable tool for both law enforcement and criminal defendants, and this bill significantly expands the value of this tool for all parties. It will result in more persons who are guilty of crimes being identified, prosecuted, and convicted. It will also give defendants facing trial, and those wrongfully convicted, significantly greater access to DNA testing for purposes of exoneration.

The bill will also help reduce the chance of wrongful convictions by establishing this State's first statutory guidelines for reliable eyewitness identification procedures. Finally, it creates a mechanism for the creation of standards governing forensic evidence in general.

1. EXPANSION OF THE DNA DATABANK

The benefits of DNA comparisons to law enforcement are well documented and commonly known. When crime scene DNA evidence is matched to a profile in a DNA databank, it can allow the prompt identification and prosecution of the guilty party. The benefits of such comparisons to wrongfully convicted defendants are also well known. DNA testing has resulted in exoneration of numerous defendants, including some in New York, who were imprisoned for substantial periods.

The demonstrated effectiveness of these techniques has already led the Legislature on several occasions to expand the scope of DNA collections from convicted defendants. Yet, no provisions exist for collecting samples from persons convicted of various misdemeanors, from youthful offenders, or from persons subject to registration as sex offenders. Experience has shown that having samples from an expanded pool of convicted defendants, even if their convictions are only for low-level crimes, can substantially enhance the utility of DNA in solving more serious crimes. Solving a crime not only results in conviction of the guilty; it can also exonerate the innocent.

2. ENSURING PROPER COLLECTION AND PRESERVATION OF DNA SAMPLES

This bill further enhances the use of DNA technology by ensuring that defendants required to give samples actually do so. Currently there are failures to collect samples from a substantial number of defendants who "fall through the cracks." The bill addresses this problem by specifying public officers responsible for collecting the samples, by requiring that a defendant under probation or parole supervision provide a DNA sample as a condition of that supervision, and by making it an offense for a person to fail to give a DNA sample when required by law to do so. By facilitating the successful collection of a DNA sample from every person convicted of a crime, adjudicated a youthful offender, or subject to registration as a sex offender, this bill will make for more effective law enforcement and more effective defense of the innocent.

3. ESTABLISHING GUIDELINES TO PROMOTE RELIABILITY OF EYEWITNESS IDENTIFICATIONS

Various reviews of exonerations have identified certain recurrent causes of wrongful convictions. Some studies have identified unreliable eyewitness identifications as being among the more frequent causes of such miscarriages of justice. There are known safeguards that can reduce the chances of misidentifications. Many police agencies have voluntarily adopted such safeguards, but it would be better if the use of such protections could be made even more widespread.

The only legal standards now in place for identification procedures are the minimum requirements of the New York and United States constitutions. This bill would, for the first time, establish in New York law a set of best practices to promote reliable identification techniques. The new guidelines would have two benefits. More police agencies would make sure to follow best practices, so that identifications would be more consistently reliable. Second, when there are shortcomings in identification procedures, mandated instructions will help juries distinguish between more and less reliable identifications, and thereby help reduce the chance of wrongful convictions.

4. EXONERATING THE INNOCENT

While expansion of the DNA databank will be of value to prosecutors and defendants alike, there are other provisions of the bill that will significantly increase the value of DNA technology specifically to the wrongfully accused. While defendants currently have the right to apply for DNA testing to support post-conviction relief, this bill removes five significant limitations on that right.

First, the current right is limited to the post-conviction context. When DNA technology can establish the innocence of a criminal defendant, it is obviously far preferable to do so before trial, rather than after conviction and possibly lengthy imprisonment. This bill extends the availability of DNA testing to defendants as a matter of pre-trial discovery.

Second, the right to apply for DNA testing has been held inapplicable to defendants who have pled guilty. Even in cases involving guilty pleas, however, convicted defendants have occasionally been exonerated. While there may not be many such defendants, their need for redress is compelling, and this bill would give them access to DNA testing on an appropriate showing.

Third, the right to apply for DNA testing is limited to comparison between crime scene evidence and the defendant's own DNA. Yet it can also be highly useful for an innocent defendant to obtain comparison between crime-scene evidence and government databanks that include DNA profiles of persons convicted of crimes and other crime scene evidence. A match to a databank profile can lead to further investigation that can, in turn, identify another party as the actual perpetrator and thus exonerate the defendant. This bill therefore allows such comparisons.

Fourth, the bill clarifies the standard for ordering post-conviction DNA testing. Some courts, in applying the existing standard, have sought to factor in their own perception of the chance that a DNA comparison would produce results favorable to the defendant. The bill prescribes a more appropriate test, assessing the materiality of potential findings that recovered DNA evidence would not match that of the defendant.

Fifth, allowing defendants to obtain exonerative DNA evidence is not enough, unless there are procedures for ensuring its proper judicial consideration. This bill, for the first time, would create an obligation for prosecutors to bring exonerative evidence, whether or not based on DNA, to the attention of the court. When such evidence is so strong as to lead the prosecutor to conclude that the defendant is actually innocent, it creates for the first time a procedural vehicle by which the prosecutor can move for the judgment of conviction to be vacated. In either case, the bill also provides for prompt and appropriate judicial attention to such evidence, including the appointment of defense counsel when necessary, the possibility of the convicted defendant's release on bail, and evidentiary hearings on the exonerative evidence. Taken together, these innovations will vastly enhance the value of DNA evidence to the wrongfully accused.

5. PROVIDING COMPENSATION TO EXONERATED DEFENDANTS

In addition to facilitating the exoneration of wrongfully convicted defendants, this bill would ensure their access to appropriate remedies following such exoneration. While there is already a remedy in the Court of Claims Act for exonerated defendants to seek damages from the State, this remedy is limited to claimants whose convictions were overturned on certain specified procedural bases. This bill removes that limitation to allow meritorious claims to go forward without regard to procedural distinctions that are not necessarily related to the claim of actual innocence.

Budget implications

Databank expansion would have a limited fiscal impact on the State, but the greatest expense - the capital cost of increasing testing capacity - has already been incurred in response to previous increases in the scope of collection. The State Police laboratory now has the capacity to process approximately 8,500 samples per month. That is the approximate projected number of samples that would have to be tested in the short term following expansion of collections as proposed. In the longer term, the number may decrease somewhat, as the databank will already include profiles from defendants who have previously been before the court.

Despite the likely sufficiency of current testing capacity, increased tests will incur some increased cost in the form of consumables. It is projected that annual State expenses will increase by $192,000 for collection kits and $1.2 million for laboratory materials.

Expanding the ability of wrongfully convicted defendants to assert claims for compensation can result in judgments adverse to the State, but the number of such cases is not expected to be great. While the bill facilitates increased DNA collection rates, it does so in a way that should impose few if any new local costs. Other provisions of the bill are projected to have minimal fiscal impact.

Effective date

This bill becomes effective immediately, with the following exceptions: * The amendments to the Criminal Procedure Act concerning identifications, in sections 3, 4 and 5 of the bill, will take effect 90 days following enactment. * The amendments in section 6 pertaining to criminal history records will take effect 180 days following enactment. * Section 12, defining the new crime of failure to provide a DNA sample, will take effect on the first November 1 following enactment.