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.
