Expand DNA Testing and Records

Section 1. Section 995-b of the executive law is amended by adding a new subdivision 15 to read as follows:

15. (a) The commission, in consultation with the DNA subcommittee, shall promulgate a plan to include all persons convicted of a penal law misdemeanor in the state DNA identification index. Such plan shall be submitted to the governor, the speaker of the assembly, and the temporary president of the senate no later than December first, two thousand seventeen.

(b) The plan required by this section shall include, but not be limited to, the following:

(i) the capacity of the New York state police forensic investigation center to process DNA samples collected from designated offenders;

(ii) the anticipated increase in the number of DNA samples collected per year due to the inclusion of all persons convicted of a penal law misdemeanor in the state DNA identification index;

(iii) the anticipated number of DNA samples that will be collected from persons in custody or under supervision for the conviction of a penal law misdemeanor as of the date of such plan;

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03816-01-7

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(iv) the anticipated backlog of unanalyzed DNA samples that will be created by expanding the state DNA identification index to include all persons convicted of a penal law misdemeanor;

(v) the manner in which a backlog of the unanalyzed DNA samples will be processed, and specifically, whether the state will be required to outsource the analysis of backlogged samples to private laboratories;

(vi) the estimated amount of time it will take to analyze all backlogged DNA samples;

(vii) the anticipated cost to collect and analyze DNA samples taken from persons convicted of a penal law misdemeanor each year and the cost to collect and analyze DNA samples taken from persons in custody or under supervision for the conviction of a penal law misdemeanor;

(viii) the annual number of arrests, indictments, and convictions that have resulted from comparing DNA records of designated offenders stored in the state DNA identification index with DNA records from unknown suspects derived from the forensic examination of crime scenes;

(ix) the anticipated effect on the prompt and accurate processing of DNA samples collected from the forensic examination of crime scenes due to the influx of DNA samples collected from persons convicted of a penal law misdemeanor.

(c) The plan required by this section shall also recommend:

(i) the amount of funding necessary to collect and analyze DNA samples collected from all persons convicted of a penal law misdemeanor;

(ii) the most effective way to process the increased number of DNA samples collected from persons convicted of a penal law misdemeanor to reduce any resulting backlog in an efficient manner; and

(iii) whether additional quality assurance measures should be implemented in conjunction with such expansion and what such measures should be.

§ 2. The opening paragraph of subdivision 1 of section 995-a of the executive law, as added by chapter 737 of the laws of 1994, is amended to read as follows:

There is hereby created in the executive department, the commission on forensic science, which shall consist of the following [fourteen] sixteen members:

§ 3. Paragraph (i) of subdivision 2 of section 995-a of the executive law, as added by chapter 737 of the laws of 1994, is amended, paragraph (j) is relettered (k) and a new paragraph (j) is added to read as follows:

(i) two members shall be members-at-large, one of whom shall be appointed upon the recommendation of the temporary president of the senate, and one of whom shall be appointed upon the recommendation of the speaker of the assembly; [and]

(j) two members shall be jointly appointed by the temporary president of the senate and the speaker of the assembly: one such person shall be a crime victims advocate, and one such person shall be an expert in biomedical ethics; and

§ 4. Subparagraph (ix) of paragraph (b) of subdivision 9 of section 995-b of the executive law, as added by chapter 737 of the laws of 1994, is amended and a new subparagraph (x) is added to read as follows:

(ix) such policy shall provide for the mutual exchange, use and storage of DNA records with the system of DNA identification utilized by the federal bureau of investigation provided that the commission determines that such exchange, use and storage are consistent with the provisions of this article and applicable provisions of law[.]; and

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(x) such policy, which shall be developed and promulgated within one year of the effective date of this subparagraph, shall determine, consistent with this article, the appropriate minimum period of time that forensic samples of blood, tissue and other biological material, obtained in connection with the forensic examination of crime scenes, should be retained by investigating authorities and the time or specified event or events, if any, after which, consistent with the interest of all persons and law enforcement, such samples may be destroyed. Pending the promulgation of a policy addressing the issues set forth in this subparagraph, the commission may adopt an interim policy mandating the preservation by investigating authorities of forensic samples of blood, tissue and other biological material obtained in connection with the forensic examination of crime scenes.

§ 5. Section 995-b of the executive law is amended by adding a new subdivision 14 to read as follows:

14. The commission shall review the confidentiality safeguards which are maintained with respect to DNA samples before and after information from such samples is encoded into the state DNA identification index and shall determine whether any additional confidentiality safeguards are necessary with respect to such samples. The commission shall also issue a report to the temporary president of the senate and the speaker of the assembly which describes how such samples are retained and the reasons for maintaining such samples, following the encoding of information from such samples into the state DNA identification index. Such report shall also recommend whether a program to destroy any such samples, following the encoding of information from such samples into the state DNA identification index, should be initiated or whether, alternatively, such samples shall continue to be maintained.

§ 6. Subdivision 2 of section 995-c of the executive law, as added by chapter 737 of the laws of 1994, is amended to read as follows:

2. (a) Following the review and approval of the plan by the DNA subcommittee and the commission and the filing of such plan with the speaker of the assembly and the temporary president of the senate, the commissioner of criminal justice services is hereby authorized to establish a computerized state DNA identification index pursuant to the provisions of this article. No other DNA identification index or compilation of DNA identification profiles may be maintained in this state provided, however, that this prohibition shall not be interpreted to prohibit any such index or compilation of DNA information obtained from crime scene samples or concerning missing persons.

(b) In accordance with subdivision one of this section and this subdivision, and in a manner consistent with this article, the commission may authorize the inclusion of DNA records derived from forensic examination of crime scenes in the state DNA identification index.

§ 7. Paragraph (b) of subdivision 9 of section 995-c of the executive law, as added by chapter 524 of the laws of 2002, is amended and two new paragraphs (c) and (d) are added to read as follows:

(b) As prescribed in this paragraph, if an individual, either voluntarily or pursuant to a warrant or order of a court, has provided a sample for DNA testing in connection with the investigation or prosecution of a crime and (i) no criminal action against the individual relating to such crime was commenced within the period specified by section 30.10 of the criminal procedure law, or (ii) a criminal action was commenced against the individual relating to such crime which resulted in a complete acquittal, or a dismissal and the matter will not be tried or retried, or (iii) a criminal action against the individual

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relating to such crime resulted in a conviction that was subsequently reversed or vacated, or for which the individual was granted a pardon pursuant to article two-A of this chapter, such individual may apply to the supreme court or the court in which the judgment of conviction was originally entered for an order directing the expungement of any DNA record and any samples, analyses, or other documents relating to the DNA testing of such individual in connection with the investigation or prosecution of such crime. A copy of such application shall be served on the district attorney and an order directing expungement may be granted if the court finds that the individual has satisfied the conditions of one of the subparagraphs of this paragraph; that if a judgment of conviction was reversed or vacated, all appeals relating thereto have been concluded and the individual will not be retried, or, if a retrial has occurred, the trier of fact has rendered a verdict of complete acquittal, and that expungement will not adversely affect the investigation or prosecution of some other person or persons for the crime. Nothing in this paragraph shall prevent a court, at an earlier time, from ordering expungement in the manner specified in this paragraph in the interests of justice, in response to an application made on notice to the district attorney by the person who provided such DNA sample. If an order directing the expungement of any DNA record and any samples, analyses or other documents relating to the DNA testing of such individual is issued, such record and any samples, analyses, or other documents shall, at the discretion of the possessor thereof, be destroyed or returned to such individual or to the attorney who represented him or her in connection with the application for the order of expungement. The person destroying or returning such record, samples, analyses and other documents shall maintain a record certifying the date, time and manner of destruction or return and identifying the person or persons destroying or returning same. The person destroying or returning same shall send a copy of this record to the person who submitted the sample or to the attorney who represented him or her in connection with the application for the order of expungement.

(c) (i) Except as provided in paragraph (d) of this subdivision, if an individual has provided a sample for DNA testing in connection with the investigation or prosecution of a crime, other than in response to a demand authorized pursuant to subdivisions one, two and three of this section, or if a sample for DNA testing has otherwise come into the custody or possession of a law enforcement agency or an agent thereof, and the DNA profile derived from such sample does not match a DNA profile derived from crime scene evidence developed in connection with the investigation or prosecution of a criminal act or acts, every record, sample, analysis and other document relating to the DNA testing of such sample shall, at the discretion of the possessor thereof, be either returned to the individual who provided such sample, destroyed or maintained for the duration of the investigation, prosecution or adjudication of such criminal acts exclusively for use with respect to the investigation, prosecution and/or adjudication of the criminal charges for which such sample was obtained or with respect to any other criminal acts which the investigating agency has reason to believe may be linked to such sample; provided, however, that no later than five years after such sample is obtained or when the investigation or prosecution of such crime has concluded, whichever first occurs, such records, samples, analyses and other documents shall, at the discretion of the possessor thereof, be returned to such individual or destroyed, or sealed in a manner consistent with paragraph (c) and subparagraphs (ii), (iv) or (v)

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of paragraph (d) of subdivision one of section 160.55 of the criminal procedure law.

(ii) The person returning, destroying or sealing such record, samples, analyses or other documents in accordance with this paragraph shall maintain a record certifying the date and manner of such return, destruction or sealing and identifying the person or persons returning, destroying or sealing same. The person returning, destroying or sealing same shall send a copy of this record to the person who submitted the sample.

(iii) This paragraph shall supplement and not supplant any applicable provision of paragraph (b) of this subdivision. This paragraph shall not apply to DNA records, samples, analyses and other documents obtained from the forensic examination of crime scene evidence, where the DNA profile developed from such crime scene evidence does not match the DNA profile of a known person.