Relates to forensic DNA testing and to requests for certain DNA test comparisons

Summary of specific provisions

Section 1 of the bill amends section 995-b of the executive law to require the state commission on forensic science to develop a policy to determine the appropriate period of time that DNA samples collected from a crime scenes should be retained, and, procedures for the cataloguing of such evidence by investigating-authorities.

Section 2 of the bill amends section 995-a of the executive law by increasing the membership of the state commission on forensic science from 14 to 15 members.

Section 3 of the bill requires that two members appointed to the commis- sion be appointed jointly by the temporary president of the senate and the speaker of the assembly, one of whom shall have experience as a

crime victim advocate and the other shall be an expert in biomedical ethics.

Section 4 of the bill provides for a ten member State Commission for the Integrity of the Criminal Justice System. Members of the commission will serve without salary. Pour of the five commission members shall be appointed by the Governor; the fifth member shall be the commissioner of the New York State Division of Criminal Justice. Services. The sixth member of the commission shall be appointed by the Attorney General of the State of New York. The Chief Judge of New York's highest court, the Court of Appeals, shall appoint the seventh and eighth members, Finally, the Temporary President of the State Senate and Speaker of the State Assembly shall each appoint one of the commission's ten members.

The commission's mission is to examine instances of wrongful felony convictions in this state, but only in cases where the person has been determined to be innocent of the crime and exonerated. No person may compel a commission investigation as a part of an appeal or court chal- lenge, nor will the commission serve as a. court or tribunal that may overturn a conviction. The commission will not be required to evaluate a specific number or particular types of cases. The commission may subpoe- na certain records and conduct hearings, although evidentiary privileges available under law may be invoked in any such proceeding. No judge may be compelled to offer testimony or evidence concerning the mental proc- esses involved in arriving at any decision in the case,

The commission from time to time will issue reports concerning its investigations, including findings of fact and any relevant recommenda- tions. The bill specifically provides that no report of the commission or portion of a report may be offered in evidence in any court proceed- ing relating to a matter which is the subject of such a report.

Section 5 of the bill amends section 1.20 of the criminal procedure law to allow for special fictitious name indictments. These "John Doe" indictments may be used in DNA cases to stop the clock on the running of statute of limitations where DNA evidence ties an unknown or unidenti- fied person to the commission of the crime.

Section 6 of the bill makes a conforming amendment to section 190.65 of the Criminal Procedure Law with respect to such fictitious name indict- ments.

Section 7 of the bill amends section 995-c of the executive law to authorize courts to make information regarding the comparison of data- banked DNA samples and crime scene samples and/or fingerprint informa- tion available to a defendant on motion if such information may be mate- rial to his or her defense and the request is reasonable. section 8 of the bill amends paragraph (a) of subdivision 1-a of section 440.30 of the criminal procedure law and serves to clarify that post-conviction testing of crime scene material or other specified evidence for DNA identification information may be ordered whether the case was resolved by jury trial or otherwise.

Section 9 of the bill amends section 8-b of the court of Claims Act to eliminate certain procedural restrictions that have unfairly prevented persons exonerated and freed after a wrongful conviction from filing suit seeking compensation in the State Court of Claims.

Section 10 of the bill amends section 995-b of the executive law to require the commission on forensic science to review the confidentiality safeguards with respect to DNA samples and to issue a report to the legislature in this regard.

Section 11 of the bill amends section 995-c of the executive law to regulate DNA identification indexes that may exist in addition to the state DNA identification index authorized by law and maintained by the state Division of Criminal Justice Services.

Section 12 of the bill amends section 995-c of the executive law to require that, upon the destruction of a DNA sample, other than a sample submitted after conviction to the state DNA Identification Index, the person who submitted the sample, or such person's attorney, shall receive a copy of the record of destruction, Further, the bill provides that DNA samples provided voluntarily to law enforcement shall be destroyed, sealed or returned to the person who provided the sample either at the conclusion of the investigation or five years after such sample was obtained, whichever occurs earlier. Law enforcement agencies in possession of such samples would make the determination as to whether such samples would be returned, destroyed or sealed.

Section 13 of the bill amends section 995-d of the executive law allows a DNA sample collected by law enforcement as part of an investigation to compare Such sample against DNA Profiles collected from one or more crime scenes under investigation. If such sample does not match any DNA crime scene profiles, such sample shall he dealt with in accordance with section 995-c of the Executive Law. This section also Provides that law enforcement officials shall offer written notice and obtain consent of a person when collecting a voluntary DNA sample for investigative purposes.

Section 14 of the bill amends section 340.20 of the criminal procedure law to provide that the court shall advise a person Pleading guilty to a Penal Law misdemeanor that such person will be required to submit a DNA sample for inclusion in the state DNA identification index.

Section 15 of the bill amends section 440.30 of the criminal procedure law to provide procedures for the court, in response to an appropriate motion, to order and regulate access to information and evidence that may yield relevant DNA information.

Section 16 of the bill amends the state finance law to establish a DNA evidence fund, to assist police and crime laboratories in collecting, testing and analyzing DNA crime scene evidence.

Section 17 of the bill establishes the innocence research project program.

Section 18 this bill adds section 60.47 to the criminal procedure law to require the electronic recording of custodial interrogations at places of detention. Numerous exceptions to recording apply, and while the failure to record the statement may result in inadmissibility, the statement may nonetheless be considered if the court determines that certain circumstances existed and the statement was reliable and volun- tary.

Section 19 of the bill amends executive law section 995 to require that a DNA sample be collected from every person convicted of a crime or subject to registration as a sex offender.

Section 20 is the effective date.

Justification

This legislation, would realize the great promise of DNA evidence by maximizing the use of DNA both to convict the guilty and exonerate the innocent. The bill provides for the establishment of statewide standards for the preservation and cataloguing of DNA evidence, to ensure that such evidence will be available when needed for criminal justice purposes. It establishes formal procedures by which a person who may be innocent of a crime may obtain a comparison between his or her DNA profile and DNA evidence obtained at the scene of the crime. The :CM also removes unnecessary procedural barriers that, in several cases, have barred wrongly convicted persons from seeking compensation in the Court of Claims after their exoneration.

The bill also takes a significant step toward reducing wrongful convictions by requiring the videotaping of custodial interrogations occurring in police stations in felony cases. Many jurisdictions have implemented such mandatory videotaping policies. This requirement would ensure that statements made by persons in custody are preserved and accurately recorded for use in pre-trial and trial proceedings. It also will help reduce instances of involuntary or inaccurately reported statements, thus aiding the truth-finding process and resulting in more accurate adjudications.

The bill also establishes a Commission on the integrity of the Criminal Justice System, to study the errors made in wrongful conviction cases and recommend hew the justice system can be improved to reduce such errors. The new Commission would study instances of wrongful convictions after the criminal courts have acted. Studies made by the Commission would include recommendations to the Governor, the courts and the Legis- lature for improvements in the investigative and adjudicative process. The bill provides specific authority for comparisons between volunteered DNA samples and crime scene DNA evidence, but regulates the practice so that only crime-related DNA evidence and DNA profiles obtained from persons convicted of crimes may be stored in perpetuity in a government database.

Taken together, these measures will expand the use of DNA to convict the guilty, make greater use of DNA evidence to exonerate the innocent, reduce the incidence of wrongful convictions in this state and improve the operations of the criminal justice system.

Prior legislative history

A.8693A of 2007-08 A.6228 of 2009-10

Fiscal implications

The bill would result in increased costs to the state, primarily through the significant expansion of the state DNA identification index.

Effective date

The bill takes effect immediately, with some exceptions.