Require DNA From Sex Offense Arrests

Section 1. Section 995 of the executive law is amended by adding a new subdivision 7-a to read as follows:

7-a. "Felony arrestee" means a person arrested and charged with any one or more of the following felonies, or an attempt thereof where such attempt is a felony offense, as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law, relating to sex offenses; and the victim is less than thirteen years old.

§ 2. Subdivision 3 of section 995-c of the executive law is amended by adding four new paragraphs (c), (d), (e) and (f) to read as follows:

(c) A felony arrestee shall be required to provide a sample appropriate for DNA testing upon his or her arrest, unless such felony arrestee has previously provided a sample that is included in the state DNA identification index.

(d) A public servant to whose custody a designated offender or felony arrestee who has not yet provided a DNA sample has been committed shall seek an order of the court to collect such sample if the offender, after written or oral request, refuses to provide such sample.

(e) The detention, arrest, indictment or conviction of a person based upon DNA records contained in the state DNA identification index shall not be invalidated if it is later determined that the division of criminal justice services inadvertently, but in good faith, collected or placed the person's DNA sample in the index.

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

[ ] is old law to be omitted.

LBD05448-01-7

S. 616 2

(f) The commissioner of criminal justice services shall promulgate rules and regulations governing the periodic review of the DNA identification index to determine whether or not the index contains DNA profiles that should not be in the index, including the steps necessary to expunge any profiles which the division of criminal justice services determines should not be in the index.

§ 3. Subdivision 9 of section 995-c of the executive law, as amended by chapter 524 of the laws of 2002, is amended to read as follows:

9. (a) Upon receipt of notification of a reversal or a vacatur of a conviction, or of the granting of a pardon pursuant to article two-A of this chapter, of an individual whose DNA record has been stored in the state DNA identification index in accordance with this article by the division of criminal justice services, the DNA record shall be expunged from the state DNA identification index, and such individual may apply to 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 the crime which resulted in the conviction that was reversed or vacated or for which the pardon was granted. 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 all appeals relating to the conviction have been concluded; that such 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. The division shall, by rule or regulation, prescribe procedures to ensure that the DNA record in the state DNA identification index, and any samples, analyses, or other documents relating to such record, whether in the possession of the division, or any law enforcement or police agency, or any forensic DNA laboratory, including any duplicates or copies thereof, at the discretion of the possessor thereof, are either destroyed or returned to such individual, or to the attorney who represented him or her at the time such reversal, vacatur or pardon, was granted. The commissioner shall also adopt by rule and regulation a procedure for the expungement in other appropriate circumstances of DNA records contained in the index.

(b) As prescribed in this paragraph, if an individual, either voluntarily, pursuant to paragraph (c) of subdivision three of this section, or pursuant to a warrant or order of a court, has provided a sample for DNA testing in connection with the investigation, arrest 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 (iii) a criminal action was commenced against the individual 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

S. 616 3

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. 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] which was resolved by a dismissal, successful completion of a pre-prosecution diversion program, or conditional discharge or misdemeanor conviction that did not require DNA collection pursuant to section nine hundred ninety-five of this article, the DNA record shall be expunged from the state DNA identification index. An individual may request expungement of any DNA record and any samples, analyses or other documents relating to the DNA testing of such individual by providing the following materials to the division of criminal justice services:

(1) a written request for expungement of the sample and DNA records; and

(2) a certified copy of the dismissal, successful completion of a pre-prosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; and

(3) a sworn statement from the district attorney's office with jurisdiction over the matter that: the case was dismissed; a pre-prosecution diversion program or conditional discharge, misdemeanor conviction excluded from DNA collection pursuant to section nine hundred ninetyfive of this article or acquittal occurred; no felony charges arose out of the arrest; or 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; and that expungement will not adversely affect the investigation or prosecution of some other person or persons for the crime.

(c) If expungement is warranted pursuant to paragraph (a) or (b) of this subdivision, 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 the criminal action or in connection with the [application for the order of] request for expungement.

(d) No expungement shall be granted where an individual has a prior conviction requiring a DNA sample, or a pending felony charge for which collection of a sample is authorized pursuant to the provisions of paragraph (c) of subdivision three of this section.

§ 4. Subdivision 6 of section 120.90 of the criminal procedure law, as amended by chapter 424 of the laws of 1998, is amended to read as follows:

6. Before bringing a defendant arrested pursuant to a warrant before the local criminal court in which such warrant is returnable, a police officer must without unnecessary delay perform all fingerprinting and other preliminary police duties required in the particular case. In any case in which the defendant is not brought by a police officer before such court but, following his arrest in another county for an offense specified in subdivision one of section 160.10 of this title, is released by a local criminal court of such other county on his own recognizance or on bail for his appearance on a specified date before the local criminal court before which the warrant is returnable, the latter court must, upon arraignment of the defendant before it, direct

S. 616 4

that he be fingerprinted and have a sample appropriate for DNA testing taken, if required pursuant to section nine hundred ninety-five-c of the executive law, by the appropriate officer or agency, and that he appear at an appropriate designated time and place for such purpose.

§ 5. Section 130.60 of the criminal procedure law, as amended by chapter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of the laws of 1993, is amended to read as follows: § 130.60 Summons; fingerprinting of defendant.

1. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons, based upon an indictment, a prosecutor's information or upon an information, felony complaint or misdemeanor complaint filed by a complainant who is a police officer, the court must, if an offense charged in the accusatory instrument is one specified in subdivision one of section 160.10 of this title, direct that the defendant be fingerprinted by the appropriate police officer or agency, and that he or she appear at an appropriate designated time and place for such purpose. If an offense charged in the accusatory instrument is one specified in subdivision seven-a of section nine hundred ninety-five of the executive law, the court must direct that a sample appropriate for DNA testing be taken, and that he or she appear at an appropriate designated time and place for such purpose.

2. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, and who has not previously been fingerprinted or from whom a DNA sample has not previously been taken and was required pursuant to section nine hundred ninety-five-c of the executive law, the court may, if it finds reasonable cause to believe that the defendant has committed an offense specified in subdivision one of section 160.10 of this title, direct that the defendant be fingerprinted and/or have a sample appropriate for DNA testing taken, if required by section nine hundred ninety-five-c of the executive law, by the appropriate police officer or agency and that he appear at an appropriate designated time and place for such purpose. A defendant whose court appearance has been secured by the issuance and service of a criminal summons based upon a misdemeanor complaint or information filed by a complainant who is not a police officer, must be directed by the court, upon conviction of the defendant, to be fingerprinted and have a sample appropriate for DNA testing taken, if required by section nine hundred ninety-five-c of the executive law, by the appropriate police officer or agency and the court must also direct that the defendant appear at an appropriate designated time and place for such purpose, if the defendant is convicted of any offense specified in subdivision one of section 160.10 of this title.

§ 6. Subdivision 5 of section 140.20 of the criminal procedure law, as amended by chapter 762 of the laws of 1971, is amended to read as follows:

5. Before service of an appearance ticket upon an arrested person pursuant to subdivision two or three of this section, the issuing police officer must, if the offense designated in such appearance ticket is one of those specified in subdivision one of section 160.10 of this title, cause such person to be fingerprinted and have a sample appropriate for DNA testing taken, if required by section nine hundred ninety-five-c of the executive law, in the same manner as would be required were no appearance ticket to be issued or served.

S. 616 5

§ 7. Subdivision 2 of section 140.27 of the criminal procedure law, as amended by chapter 843 of the laws of 1980, is amended to read as follows: