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S00825 Summary:

BILL NOS00825
 
SAME ASNo Same As
 
SPONSORBOYLE
 
COSPNSRCOMRIE
 
MLTSPNSR
 
Amd 995 & 995-c, Exec L; amd 120.90, 130.60, 140.20, 140.27, 150.70, 160.20, 160.50 & 160.55, CP L
 
Provides that people arrested in connection with certain felonies must submit a DNA sample.
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S00825 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           825
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                     January 9, 2019
                                       ___________
 
        Introduced by Sens. BOYLE, COMRIE -- read twice and ordered printed, and
          when printed to be committed to the Committee on Finance
 
        AN  ACT  to  amend  the executive law and the criminal procedure law, in
          relation to requiring individuals arrested in connection with  certain
          felonies to submit a DNA sample

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 995 of the executive law is amended by adding a new
     2  subdivision 7-a to read as follows:
     3    7-a. "Felony arrestee" means a person arrested and  charged  with  any
     4  one  or more of the following felonies, or an attempt thereof where such
     5  attempt is a felony offense, as  defined  in  sections  130.25,  130.30,
     6  130.35,  130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67, 130.70,
     7  130.75, 130.80, 130.95 and 130.96 of the  penal  law,  relating  to  sex
     8  offenses; and the victim is less than thirteen years old.
     9    § 2. Subdivision 3 of section 995-c of the executive law is amended by
    10  adding four new paragraphs (c), (d), (e) and (f) to read as follows:
    11    (c)  A felony arrestee shall be required to provide a sample appropri-
    12  ate for DNA testing upon his or her arrest, unless such felony  arrestee
    13  has previously provided a sample that is included in the state DNA iden-
    14  tification index.
    15    (d)  A public servant to whose custody a designated offender or felony
    16  arrestee who has not yet provided a DNA sample has been committed  shall
    17  seek an order of the court to collect such sample if the offender, after
    18  written or oral request, refuses to provide such sample.
    19    (e)  The detention, arrest, indictment or conviction of a person based
    20  upon DNA records contained in the state DNA identification  index  shall
    21  not be invalidated if it is later determined that the division of crimi-
    22  nal  justice  services  inadvertently,  but  in good faith, collected or
    23  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.
                                                                   LBD06043-01-9

        S. 825                              2
 
     1    (f) The commissioner of criminal  justice  services  shall  promulgate
     2  rules and regulations governing the periodic review of the DNA identifi-
     3  cation index to determine whether or not the index contains DNA profiles
     4  that  should  not  be  in  the  index,  including the steps necessary to
     5  expunge  any  profiles  which  the division of criminal justice services
     6  determines should not be in the index.
     7    § 3. Subdivision 9 of section 995-c of the executive law,  as  amended
     8  by chapter 524 of the laws of 2002, is amended to read as follows:
     9    9.  (a)  Upon  receipt of notification of a reversal or a vacatur of a
    10  conviction, or of the granting of a pardon pursuant to article two-A  of
    11  this  chapter,  of an individual whose DNA record has been stored in the
    12  state DNA identification index in accordance with this  article  by  the
    13  division  of criminal justice services, the DNA record shall be expunged
    14  from the state DNA identification index, and such individual  may  apply
    15  to  the court in which the judgment of conviction was originally entered
    16  for an order directing  the  expungement  of  any  DNA  record  and  any
    17  samples,  analyses,  or  other  documents relating to the DNA testing of
    18  such individual in connection with the investigation or  prosecution  of
    19  the  crime which resulted in the conviction that was reversed or vacated
    20  or for which the pardon was granted. A copy of such application shall be
    21  served on the district attorney and an order directing  expungement  may
    22  be  granted  if  the  court  finds  that  all  appeals  relating  to the
    23  conviction have  been  concluded;  that  such  individual  will  not  be
    24  retried, or, if a retrial has occurred, the trier of fact has rendered a
    25  verdict  of  complete acquittal, and that expungement will not adversely
    26  affect the investigation or prosecution of some other person or  persons
    27  for  the  crime.  The  division  shall, by rule or regulation, prescribe
    28  procedures to ensure that the DNA record in the state DNA identification
    29  index, and any samples, analyses, or other documents  relating  to  such
    30  record,  whether  in the possession of the division, or any law enforce-
    31  ment or police agency, or any forensic  DNA  laboratory,  including  any
    32  duplicates  or copies thereof, at the discretion of the possessor there-
    33  of, are either destroyed or returned  to  such  individual,  or  to  the
    34  attorney  who  represented him or her at the time such reversal, vacatur
    35  or pardon, was granted. The commissioner shall also adopt  by  rule  and
    36  regulation  a procedure for the expungement in other appropriate circum-
    37  stances of DNA records contained in the index.
    38    (b) As prescribed in this paragraph, if an individual,  either  volun-
    39  tarily,  pursuant to paragraph (c) of subdivision three of this section,
    40  or pursuant to a warrant or order of a court, has provided a sample  for
    41  DNA  testing in connection with the investigation, arrest or prosecution
    42  of a crime and (i) no criminal action against the individual relating to
    43  such crime was commenced within the period specified by section 30.10 of
    44  the criminal procedure law, or (ii)  a  criminal  action  was  commenced
    45  against  the  individual  relating  to  such  crime  which resulted in a
    46  complete acquittal, or (iii) a criminal action was commenced against the
    47  individual relating to such crime [resulted in  a  conviction  that  was
    48  subsequently reversed or vacated, or for which the individual was grant-
    49  ed  a  pardon pursuant to article two-A of this chapter, such individual
    50  may apply to the supreme court or the court in  which  the  judgment  of
    51  conviction was originally entered for an order directing the expungement
    52  of any DNA record and any samples, analyses, or other documents relating
    53  to  the  DNA  testing of such individual in connection with the investi-
    54  gation or prosecution of such crime. A copy of such application shall be
    55  served on the district attorney and an order directing  expungement  may
    56  be  granted  if  the  court  finds that the individual has satisfied the

        S. 825                              3

     1  conditions of one of the subparagraphs of  this  paragraph;  that  if  a
     2  judgment  of  conviction  was  reversed or vacated, all appeals relating
     3  thereto have been concluded and the individual will not be retried,  or,
     4  if  a  retrial has occurred, the trier of fact has rendered a verdict of
     5  complete acquittal, and that expungement will not adversely  affect  the
     6  investigation  or  prosecution  of  some other person or persons for the
     7  crime. If an order directing the expungement of any DNA record  and  any
     8  samples, analyses or other documents relating to the DNA testing of such
     9  individual  is  issued]  which  was  resolved by a dismissal, successful
    10  completion  of  a  pre-prosecution  diversion  program,  or  conditional
    11  discharge  or misdemeanor conviction that did not require DNA collection
    12  pursuant to section nine hundred ninety-five of this  article,  the  DNA
    13  record  shall  be  expunged  from the state DNA identification index. An
    14  individual may request expungement of any DNA record  and  any  samples,
    15  analyses or other documents relating to the DNA testing of such individ-
    16  ual  by  providing  the  following materials to the division of criminal
    17  justice services:
    18    (1) a written request for expungement of the sample and  DNA  records;
    19  and
    20    (2)  a  certified  copy  of  the dismissal, successful completion of a
    21  pre-prosecution diversion program or a conditional discharge,  misdemea-
    22  nor conviction or acquittal; and
    23    (3)  a sworn statement from the district attorney's office with juris-
    24  diction over the matter that: the case was dismissed; a  pre-prosecution
    25  diversion  program  or  conditional  discharge,  misdemeanor  conviction
    26  excluded from DNA collection pursuant to section  nine  hundred  ninety-
    27  five  of this article or acquittal occurred; no felony charges arose out
    28  of the arrest; or no criminal action against the individual relating  to
    29  such crime was commenced within the period specified by section 30.10 of
    30  the  criminal  procedure  law;  and  that expungement will not adversely
    31  affect the investigation or prosecution of some other person or  persons
    32  for the crime.
    33    (c)  If  expungement  is warranted pursuant to paragraph (a) or (b) of
    34  this subdivision, such record and any samples, analyses, or other  docu-
    35  ments shall, at the discretion of the possessor thereof, be destroyed or
    36  returned  to  such  individual or to the attorney who represented him or
    37  her in the criminal action or in connection with  the  [application  for
    38  the order of] request for expungement.
    39    (d)  No  expungement  shall be granted where an individual has a prior
    40  conviction requiring a DNA sample, or a pending felony charge for  which
    41  collection of a sample is authorized pursuant to the provisions of para-
    42  graph (c) of subdivision three of this section.
    43    § 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
    44  amended  by section 16 of part WWW of chapter 59 of the laws of 2017, is
    45  amended to read as follows:
    46    6. Before bringing a defendant arrested pursuant to a  warrant  before
    47  the local criminal court or youth part of a superior court in which such
    48  warrant  is  returnable, a police officer must without unnecessary delay
    49  perform all fingerprinting and other preliminary police duties  required
    50  in  the  particular  case.  In  any  case  in which the defendant is not
    51  brought by a police officer before such court but, following his  arrest
    52  in another county for an offense specified in subdivision one of section
    53  160.10  of  this  title,  is  released by a local criminal court of such
    54  other county on his own recognizance or on bail for his appearance on  a
    55  specified  date before the local criminal court before which the warrant
    56  is returnable, the latter court must, upon arraignment of the  defendant

        S. 825                              4
 
     1  before it, direct that he be fingerprinted and have a sample appropriate
     2  for  DNA  testing  taken,  if  required pursuant to section nine hundred
     3  ninety-five-c of the executive law, by the appropriate officer or  agen-
     4  cy,  and  that he appear at an appropriate designated time and place for
     5  such purpose.
     6    § 5. Section 130.60 of the criminal procedure law, as amended by chap-
     7  ter 95 of the laws of 1991, subdivision 1 as amended by chapter  446  of
     8  the laws of 1993, is amended to read as follows:
     9  § 130.60 Summons; fingerprinting of defendant.
    10    1. Upon the arraignment of a defendant whose court attendance has been
    11  secured  by the issuance and service of a summons, based upon an indict-
    12  ment,  a  prosecutor's  information  or  upon  an  information,   felony
    13  complaint  or  misdemeanor  complaint  filed  by  a complainant who is a
    14  police officer, the court must, if an offense charged in the  accusatory
    15  instrument is one specified in subdivision one of section 160.10 of this
    16  title,  direct  that  the  defendant be fingerprinted by the appropriate
    17  police officer or agency, and that he or she appear  at  an  appropriate
    18  designated  time  and  place for such purpose.  If an offense charged in
    19  the accusatory instrument is one specified  in  subdivision  seven-a  of
    20  section  nine  hundred  ninety-five of the executive law, the court must
    21  direct that a sample appropriate for DNA testing be taken, and  that  he
    22  or  she  appear  at  an  appropriate  designated time and place for such
    23  purpose.
    24    2. Upon the arraignment of a defendant whose court attendance has been
    25  secured by the issuance and service of a summons based upon an  informa-
    26  tion or misdemeanor complaint filed by a complainant who is not a police
    27  officer,  and  who  has not previously been fingerprinted or from whom a
    28  DNA sample has not previously been taken and was  required  pursuant  to
    29  section  nine hundred ninety-five-c of the executive law, the court may,
    30  if it finds reasonable cause to believe that the defendant has committed
    31  an offense specified in subdivision one of section 160.10 of this title,
    32  direct that the defendant be fingerprinted and/or have a  sample  appro-
    33  priate  for DNA testing taken, if required by section nine hundred nine-
    34  ty-five-c of the executive law, by the  appropriate  police  officer  or
    35  agency  and  that  he appear at an appropriate designated time and place
    36  for such purpose. A defendant whose court appearance has been secured by
    37  the issuance and service of a criminal summons based upon a  misdemeanor
    38  complaint  or  information  filed  by  a complainant who is not a police
    39  officer, must be directed by the court, upon conviction of  the  defend-
    40  ant,  to  be fingerprinted and have a sample appropriate for DNA testing
    41  taken, if required by section nine hundred ninety-five-c of  the  execu-
    42  tive law, by the appropriate police officer or agency and the court must
    43  also  direct that the defendant appear at an appropriate designated time
    44  and place for such purpose, if the defendant is convicted of any offense
    45  specified in subdivision one of section 160.10 of this title.
    46    § 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
    47  amended by chapter 762 of the laws  of  1971,  is  amended  to  read  as
    48  follows:
    49    5.  Before  service  of  an  appearance ticket upon an arrested person
    50  pursuant to subdivision two or three of this section, the issuing police
    51  officer must, if the offense designated in such appearance ticket is one
    52  of those specified in subdivision one of section 160.10 of  this  title,
    53  cause  such person to be fingerprinted and have a sample appropriate for
    54  DNA testing taken, if required by section nine hundred ninety-five-c  of
    55  the  executive  law,  in  the  same  manner as would be required were no
    56  appearance ticket to be issued or served.

        S. 825                              5
 
     1    § 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
     2  amended by section 21 of part WWW of chapter 59 of the laws of 2017,  is
     3  amended to read as follows:
     4    2.  Upon arresting a person without a warrant, a peace officer, except
     5  as otherwise provided in subdivision three or three-a of  this  section,
     6  must  without  unnecessary  delay  bring  him or cause him to be brought
     7  before a local criminal court, as provided in section 100.55 and  subdi-
     8  vision one of section 140.20 of this title, and must without unnecessary
     9  delay  file  or  cause  to  be filed therewith an appropriate accusatory
    10  instrument. If the offense which is the subject of the arrest is one  of
    11  those  specified in subdivision one of section 160.10 of this title, the
    12  arrested person must be  fingerprinted  and  photographed,  and  have  a
    13  sample  appropriate  for  DNA  testing taken if required by section nine
    14  hundred ninety-five-c of the executive  law,  as  therein  provided.  In
    15  order  to  execute  the  required  post-arrest functions, such arresting
    16  peace officer may perform such functions himself or he  may  enlist  the
    17  aid  of  a  police  officer  for  the  performance thereof in the manner
    18  provided in subdivision one of section 140.20 of this article.
    19    § 8. Section 150.70 of the criminal procedure law, as amended by chap-
    20  ter 762 of the laws of 1971, is amended to read as follows:
    21  § 150.70  Appearance ticket; fingerprinting and DNA analysis  sample  of
    22               defendant.
    23    Upon  the  arraignment  of  a  defendant who has not been arrested and
    24  whose court attendance has been secured by the issuance and  service  of
    25  an  appearance  ticket  pursuant to subdivision one of section 150.20 of
    26  this article, the court must, if an offense charged  in  the  accusatory
    27  instrument is one specified in subdivision one of section 160.10 of this
    28  title,  direct  that  the defendant be fingerprinted   and have a sample
    29  appropriate for DNA testing taken when required by section nine  hundred
    30  ninety-five-c  of the executive law by the appropriate police officer or
    31  agency, and that he appear at an appropriate designated time  and  place
    32  for such purpose.
    33    § 9. Section 160.20 of the criminal procedure law, as amended by chap-
    34  ter 108 of the laws of 1973, is amended to read as follows:
    35  §  160.20  Fingerprinting and DNA analysis sample; forwarding of finger-
    36               prints and DNA analysis sample.
    37    1. Upon the taking of fingerprints of an arrested person or  defendant
    38  as  prescribed in section 160.10 of this article, the appropriate police
    39  officer or agency must without unnecessary delay forward two  copies  of
    40  such fingerprints to the division of criminal justice services.
    41    2.   Upon taking a sample appropriate for DNA testing, the appropriate
    42  police office or agency must without unnecessary delay store and forward
    43  such DNA sample to a forensic DNA laboratory for  forensic  DNA  testing
    44  and  analyses,  and  inclusion  in the state DNA identification index in
    45  accordance with subdivision five of section nine  hundred  ninety-five-c
    46  of the executive law.
    47    § 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
    48  criminal  procedure  law, paragraph (d) as amended by chapter 449 of the
    49  laws of 2015 and paragraph (e) as amended by chapter 169 of the laws  of
    50  1994, are amended and a new paragraph (f) is added to read as follows:
    51    (d)  such  records shall be made available to the person accused or to
    52  such person's designated agent, and shall be made  available  to  (i)  a
    53  prosecutor in any proceeding in which the accused has moved for an order
    54  pursuant  to  section  170.56  or  210.46 of this chapter, or (ii) a law
    55  enforcement agency upon ex parte motion in any superior court, or in any
    56  district court, city court or the criminal court of the city of New York

        S. 825                              6
 
     1  provided that such court sealed the record, if such agency  demonstrates
     2  to the satisfaction of the court that justice requires that such records
     3  be  made  available to it, or (iii) any state or local officer or agency
     4  with  responsibility  for the issuance of licenses to possess guns, when
     5  the accused has made application for such a license,  or  (iv)  the  New
     6  York  state department of corrections and community supervision when the
     7  accused is on parole supervision as a result of conditional release or a
     8  parole release granted by the New York state board of  parole,  and  the
     9  arrest  which  is the subject of the inquiry is one which occurred while
    10  the accused was under such supervision, or (v) any prospective  employer
    11  of  a  police  officer  or  peace  officer as those terms are defined in
    12  subdivisions thirty-three and thirty-four of section 1.20 of this  chap-
    13  ter, in relation to an application for employment as a police officer or
    14  peace  officer; provided, however, that every person who is an applicant
    15  for the position of police officer or peace officer shall  be  furnished
    16  with a copy of all records obtained under this paragraph and afforded an
    17  opportunity  to  make  an  explanation  thereto,  or  (vi) the probation
    18  department responsible for supervision of the accused  when  the  arrest
    19  which  is  the  subject  of  the inquiry is one which occurred while the
    20  accused was under such supervision; [and]
    21    (e) where fingerprints subject to the provisions of this section  have
    22  been received by the division of criminal justice services and have been
    23  filed  by  the  division as digital images, such images may be retained,
    24  provided that a fingerprint card of the individual is on file  with  the
    25  division which was not sealed pursuant to this section or section 160.55
    26  of this article[.]; and
    27    (f) a sample appropriate for DNA testing taken from such person pursu-
    28  ant  to section nine hundred ninety-five-c of the executive law, and any
    29  DNA record relating to such sample, and any analyses or other  documents
    30  relating  to such DNA sample shall be expunged, destroyed or returned in
    31  accordance with subdivision nine of such section of the executive law.
    32    § 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
    33  criminal procedure law, paragraph (d) as amended by chapter 449  of  the
    34  laws  of 2015 and paragraph (e) as amended by chapter 169 of the laws of
    35  1994, are amended and a new paragraph (f) is added to read as follows:
    36    (d) the records referred to in paragraph (c) of this subdivision shall
    37  be made available to the person accused or to such  person's  designated
    38  agent, and shall be made available to (i) a prosecutor in any proceeding
    39  in  which  the accused has moved for an order pursuant to section 170.56
    40  or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
    41  parte motion in any superior court, or in any district court, city court
    42  or  the  criminal court of the city of New York provided that such court
    43  sealed the record, if such agency demonstrates to  the  satisfaction  of
    44  the  court  that justice requires that such records be made available to
    45  it, or (iii) any state or local officer or  agency  with  responsibility
    46  for  the issuance of licenses to possess guns, when the accused has made
    47  application for such a license, or (iv) the New York state department of
    48  corrections and community supervision when the accused is  under  parole
    49  supervision as a result of conditional release or parole release granted
    50  by  the  New  York  state  board  of  parole and the arrest which is the
    51  subject of the inquiry is one which occurred while the accused was under
    52  such supervision, or (v) the probation department responsible for super-
    53  vision of the accused when the  arrest  which  is  the  subject  of  the
    54  inquiry  is  one  which occurred while the accused was under such super-
    55  vision, or (vi) a police agency, probation department, sheriff's office,
    56  district attorney's office, department of correction of any municipality

        S. 825                              7
 
     1  and parole department, for law  enforcement  purposes,  upon  arrest  in
     2  instances  in which the individual stands convicted of harassment in the
     3  second degree, as defined in section 240.26 of the penal law,  committed
     4  against  a  member  of the same family or household as the defendant, as
     5  defined in subdivision one of section 530.11 of this chapter, and deter-
     6  mined pursuant to subdivision eight-a of section 170.10 of  this  title;
     7  [and]
     8    (e)  where fingerprints subject to the provisions of this section have
     9  been received by the division of criminal justice services and have been
    10  filed by the division as digital images, such images  may  be  retained,
    11  provided  that  a fingerprint card of the individual is on file with the
    12  division which was not sealed pursuant to this section or section 160.50
    13  of this article[.]; and
    14    (f) a sample appropriate for DNA testing taken from such person pursu-
    15  ant to section nine hundred ninety-five-c of the executive law, any  DNA
    16  record  relating  to  such  sample,  and any analyses or other documents
    17  relating to such DNA sample shall be expunged, destroyed or returned  in
    18  accordance with subdivision nine of such section of the executive law.
    19    §  12.  This  act  shall  take effect on the one hundred eightieth day
    20  after it shall have become a law.
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