Relates to the definition of and mandatory DNA identification of designated offenders; appropriation

Summary of provisions

Section 1 of the bill would amend Executive Law § 995(7) to require that every individual convicted of a Penal Law felony or misdemeanor, adjudicated a youthful offender for a Penal Law crime or required to register as a sex offender must provide a DNA sample.

Section 2 of the bill would amend Executive Law § 993-c(3) to clarify who, from the various criminal justice agencies in the State, is responsible for the collection of DNA samples from designated offenders.

Section 3 of the bill would add a new subdivision 4-b to Penal Law 65.10 to mandate that as part of any sentence of probation or conditional discharge, a court must require submission of a DNA sample from designated offenders.

Section 4 of the bill would add a new Penal Law § 270.40 to create the crime of failure to submit a DNA sample, and would designate this crime as a Class A misdemeanor.

Section 5 of the bill would provide a $400,000 appropriation for the Divisions of State Police and Criminal Justice Services to implement the bill.

Section 6 of the bill would provide an effective date of January 1, 2013.

Existing law

DNA samples are currently collected from persons convicted of some, but not all, Penal Law crimes. The list of Penal Law crimes subject to collection has been expanded on three separate occasions, but most Penal Law misdemeanor convictions remain outside the scope of collection. Moreover, there is currently no DNA collection from persons adjudicated youthful offenders, or from registered sex offenders whose crimes, at the time of conviction, did not require that a DNA sample be submitted.

In addition, 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 conditional discharge. Moreover, it is not currently an offense to refuse to provide a DNA sample - even when doing so is required by law.

Statement in support

New York's DNA Databank began limited operations in 1996, when individuals convicted of homicide and certain sex-related crimes were required to submit DNA samples. Since then, the Databank has become one of the State's most powerful and accurate crime-fighting tools. There have been more than 7,900 hits against the Databank to date, and the Databank has been used to assist in more than 9,900 law enforcement investigations.

The number of crimes for which a sample must be given was expanded in 1999, 2004, and 2006, but only 35 misdemeanors are currently DNA eligible and only 46 percent of individuals convicted of a Penal Law offense in New York are currently required to give a sample. At least 200 misdemeanors, such as certain arsons (fifth degree, attempted fourth degree), certain conspiracy as a hate crime offenses, trespassing and menacing as hate crimes, fourth-degree criminal possession of a weapon, second degree coercion, seventh degree criminal possession of a controlled substance, second degree aggravated harassment, second-degree promoting prisoners with contraband, and unlawfully dealing with a child, are still not DNA eligible crimes.

Based on New York's prior experiences with expansion of the Databank, which demonstrated that inclusion of additional DNA samples is a useful tool In fighting and preventing crime and exonerating the innocent, this further expansion will assuredly result in more cases being solved, more crimes being prevented and more opportunities for convicted offenders to establish their innocence. Evidence has shown that offenders do not specialize in one type of crime, and that collection of samples from offenders convicted of relatively minor offenses can solve very serious crimes. For example:

* Of the 3,058 offenders linked to sexual assault cases through DNA, 89 percent were in the Databank for a non-sex-related crime.

* Of the 3,756 offenders linked to homicide and sexual assault cases, 665 were in the Databank for a drug offense (18 percent); 394 for a burglary offense (11 percent) and 206 for petit larceny (6 percent).

In case after case, DNA taken for a relatively minor or non-violent crime has been used to solve a murder and take dangerous criminals off the street. Here are just a few examples of what can be accomplished through the power of DNA:

* In 2006 Dennis Sweeney pleaded guilty to stealing wallets and credit cards. DNA taken from Sweeney as a result of his fourth-degree grand larceny conviction linked him to a 2004 murder and attempted murder. He is now serving a life sentence, convicted after trial of murder and a laundry list of other felonies.

* In December 2003 a man was murdered during a street robbery in the Bronx. Although DNA was taken from the murder scene, the crime remained unsolved for six years. In December 2008, Miguel Torres pleaded guilty to assault for menacing a traffic agent, and his DNA was taken. Torres's DNA matched the DNA from the murder scene, and Tones was charged with the 2003 murder.

* In June 2009, the manager of a convenience store in Chenango County discovered that a donation can containing approximately $50 was missing from the store. The store's security tapes were reviewed and a man was observed removing the donation can while purchasing beer; he was identified from the tape as Joey Bethea and was arrested for petit larceny. It was determined that Bethea owed a DNA sample due to a minor 2005 conviction for which he had received a conditional discharge. Bethea's DNA connected him to an unsolved, 20-year-old rape and homicide in Nassau County and he has now been charged with those crimes.

* From January 2000 through January 2004, the identical DNA was matched to three violent felonies: the January 2000 rape of an elderly woman in her home; the March 2000 rape and murder of another a woman; and the January 2004 beating and murder of a man in his home. In March 2005, Raymon McGill was convicted of an attempted robbery that required him to provide a DNA sample for the Databank. His DNA was matched to the DNA recovered at the scenes from the previous three crimes. McGill had been arrested and convicted for crimes dating back to 1999, including petit larceny. However, his conviction for those crimes at that time did not require him to provide his DNA. Had his DNA been in the Databank as a result of his 1999 petit larceny conviction, he would have been identified in the January 2000 rape and the subsequent murders could have been prevented.

In addition to solving crimes, DNA evidence has become a powerful tool to exonerate innocent people who have been wrongly convicted. There have been at least 15 individuals who have been exonerated in New York state through DNA evidence. Logically, the more samples there are in the Databank, the more likely it will be that those who are wrongly convicted and imprisoned will be able to prove - definitively that they are innocent. Here are three compelling examples on exonerations:

* In November 1989, the body of a 15-year-old Peekskill High School sophomore was discovered in a wooded area near Hill Crest Elementary School in Peekskill. She had been strangled and suffered blunt force trauma to her head. Jeffrey Deskovic, a high school sophomore and classmate of the victim, became a suspect because he was late to school the day after she disappeared, and he seemed overly distraught at her death. Mr. Deskovic confessed to the murder, was convicted after a jury trial and was sentenced to 15 years to life in prison. Mr. Deskovic served more than 15 years before his case was re-examined in 2006. DNA from the rape kit was tested against the state DNA Databank and, in September 2006, the DNA was matched to convicted murderer Steven Cunningham, who had provided a DNA sample for a 1993 murder conviction. Cunningham subsequently confessed to the crime for which Deskovic was convicted.

* Michael Mercer was exonerated after spending 12 years in prison for a 1991 rape conviction. A search of the Databank linked evidence of the rape for which Mr. Mercer was convicted to Arthur Brown, who was serving a life sentence for gunpoint robberies and rapes.

* For three decades, Erie County was terrorized by a criminal known as the "Bike Path Rapist." This man was believed responsible for numerous rapes, as well as the murders of three women. In 1984, Anthony Capozzi was convicted of two of these rapes based on eyewitness identification and he was sentenced to 25 years in prison. while Mr. Capozzi was in prison, additional rapes and murders took place. Joan Diver was murdered on a local bike path in 2006 and a task force was formed to investigate the crime. Investigators paid special attention to the similarities to prior rapes and murders, including the two for which Capozzi was imprisoned. The investigation led the task force to suspect Altemio Sanchez. Ultimately, Mr. Sanchez's DNA was collected from an abandoned water glass in a restaurant and, after testing, was found to match the DNA profile from a drop of sweat found in Joan Diver's car. All of the evidence in police custody from Mr. Capozzi's trial had been destroyed after his appeal was denied; however, forensic DNA tests of the clinical slides still maintained at the hospital of the two victims for which Capozzi was still serving his sentence matched the DNA profile of Altemio Sanchez. In 2007, after serving 22 years in prison, Anthony Capozzi was exonerated and set free based on the new DNA evidence. In August 2007, Altemio Sanchez pleaded guilty to the murder of three women.

The foregoing examples prove that collecting DNA solves crimes, prevents future crimes and exonerates the innocent. This bill will further these important goals by expanding the circumstances under which offenders must provide DNA samples.

This bill will also help ensure that those offenders who are required to provide DNA samples actually do so, and in a timely manner. It is best to obtain a DNA sample as soon as possible after conviction. Any time lost before obtaining a sample could allow an offender to continue victimizing innocent individuals. Thus, the bill specifically provides who is responsible for sample collection. For designated offenders who are sentenced to imprisonment, the appropriate correction officials are responsible for ensuring sample collection. For those sentenced to a tem1 of probation, the offender's DNA sample must be taken by the probation department supervising the offender, and for sex offenders, the probation department in the county in which the offender resides is responsible. currently, there is not a specific duty imposed on probation to take such samples and this bill should increase collections of those on probation from 95% to 100% statewide. It also will ensure that all those on the Sex Offender Registry will have a sample on file.

However, the most difficult collections are those involving a nonincarcerative/non-supervised sentence, such as instances of conditional discharge, time-served and fines. Often, such offenders simply leave court without being ordered to appear before a designated entity and provide a sample. These sentences cause much confusion with regard to who is responsible for sample collection and

28% of offenders sentenced to such sentences fail to provide samples because of this gap in the law. Having a statewide process that requires courts to order offenders to a sheriffs office and for that office to collect the sample will remedy this problem. In addition, courts would be able to issue warrants for those offenders that do not follow the court's order.

Finally, it is imperative that failure to provide a DNA sample be a crime. Offenders often refuse to provide a sample and if they are no longer under sentence, there is little effective recourse against them. Offenders should not be able to flout the law and effectively hinder the State's ability -0 solve other crimes to which the offender may be connected by simply refusing to provide a mandated DNA sample.

This bill is the most efficient and cost-effective way to expand DNA testing and make New York state a safer place.

Budget implications

This bill contains a $400,000 appropriation to cover implementation costs for the Divisions of State police and criminal Justice Services in Fiscal Year 2011-12. The full actual cost of this legislation is estimated at $ 1-6 million.

Legislative history

2010: S.8163 (Governor's Program Bill)

Effective date

This bill would become effective on January 1, 2013; however, the amendments made in section 1 of this bill would only apply to designated offenses committed on or after the effective date, and the amendments made by section 1 relating to persons required to register as sex offenders would apply to persons registered as sex offenders prior to, on, and after the effective date.