NY State Senate Bill 2009-S3110

Senate Bill S3110

2009-2010 Legislative Session

Provides for the collection of DNA samples from all persons convicted of a crime and establishes the office of wrongful evidence review; repealer

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 25, 2010	committee discharged and committed to codes print number 3110a
Mar 25, 2010	amend and recommit to finance
Jan 06, 2010	referred to finance
Mar 11, 2009	referred to finance

Bill Amendments

Original

A (Active)

co-Sponsors

2009-S3110 - Details

Current Committee:: Senate Codes
Law Section:: Executive Law
Laws Affected:: Rpld & add §995 sub 7, amd §§995-c, 995-f & 995-b, add §837-s, Exec L; amd §§160.50, 190.25, 30.10, 240.40, 440.10, 440.30 & 440.40, CP L; amd §65.10, Pen L; amd §8-b, Ct Claims Act
Versions Introduced in 2011-2012 Legislative Session:: S2003

2009-S3110 - Summary

Provides for the collection of DNA samples from all persons convicted of a crime; establishes the office of wrongful evidence review within the division of criminal justice services; provides for access to certain DNA evidence in cases where a defendant may have been wrongfully convicted; extends the statute of limitations in certain cases where there is DNA evidence.

2009-S3110 - Sponsor Memo

                                 BILL NUMBER:  S3110

 TITLE OF BILL :

An act to amend the executive law, in relation to collection of DNA
samples from designated offenders, collection and preservation of
biological evidence, and establishment of the office of wrongful
conviction review; to amend the criminal procedure law, in relation to
the statute of limitations in certain cases, access by defendants to
DNA evidence, and procedures for consideration of post-conviction
relief; to amend the penal law, in relation to conditions of probation
and conditional discharge; and to amend the court of claims act, in
relation to claims for unjust conviction and imprisonment; and
providing for the repeal of certain provisions upon expiration thereof


 PURPOSE :

This bill: (1) requires collection of DNA samples from everyone
convicted of a crime, and ensures proper collection of such samples;
(2) extends statutes of limitations to permit prosecutions based on
DNA evidence; (3) expands the access of defendants to potentially
exculpatory DNA evidence; (4) requires prosecutors to alert courts to
exculpatory evidence and authorizes prosecutors to move for
convictions to be vacated; (5) eliminates overly restrictive limits on
compensation for wrongful convictions; and (6) provides for review of

exonerations in an effort to identify and correct flaws in the
criminal justice system that increase the chance of a wrongful
conviction.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends Executive Law §995 to require that a DNA
sample be collected from every person convicted of a crime,
adjudicated a youthful offender, or subject to registration as a sex
offender.

Section 2 of the bill amends Executive Law §995-c(3) to: (1) specify
the public servants responsible for collection of DNA samples from
designated offenders; (2) allow certain fees to support such
collection; (3) ensure that DNA samples can be collected from
uncooperative offenders; and (4) address the possibility of DNA
profiles being wrongly included in the state identification index.

Section 3 of the bill amends Executive Law §995-f to provide that it
is a violation of a defendant's conditions of probation or parole for
the defendant to fail to provide a DNA sample when required.

Section 4 of the bill amends Executive Law §995-c(4) to provide that
the Division of Criminal Justice Services shall promulgate rules and
regulations governing procedures for obtaining DNA samples from
persons subject to registration as sex offenders.

Section 5 of the bill adds a new subdivision 3-a to Executive Law.
§995-b to require the Commission on Forensic Science to develop
voluntary guidelines reflecting best practices in the collection and
preservation of biological evidence by law enforcement agencies and
forensic laboratories.

Section 6 of the bill adds a new section 837-s to the Executive Law to
create an Office of Wrongful Conviction Review within the Division of
Criminal Justice Services.  The office will review cases in which
defendants were exonerated, to determine the causes of wrongful
convictions and consider reforms that could lessen the likelihood of
similar unjust convictions in the future. The reviews will include

participation by prosecutors, defense attorneys, former judges, and
other experts.

Sections 7 and 8 of the bill amend Criminal Procedure Law §§ 160.50(1)
(d) and 190 25(4) to provide that the Office of Wrongful Conviction
Review will have access to otherwise unavailable materials pertaining
to grand jury proceedings and terminations of criminal cases in favor
of the accused.

Section 9 of the bill amends Criminal Procedure Law §3010(4)(a) to
provide that the statute of limitations shall be tolled for up to five
years when a DNA profile identified from crime scene evidence could
not with reasonable diligence be matched to a known individual.

Section 10 of the bill adds a new subdivision 1-a to Criminal
Procedure Law §240.40 to provide a defendant a pre-trial discovery
right, on appropriate showings, to have crime scene DNA evidence
compared with his or her own DNA, or compared against DNA databanks.

Sections 11, 12, 13, and 14 of the bill amend Criminal Procedure Law §
440.10 to provide that a defendant shall file any motion for
post-conviction relief within one year after the conviction becomes
final, and shall include all grounds for such relief in a single
motion rather than file successive motions. Noncompliance with these
requirements can warrant denial of the motion, but motions based on
newly discovered evidence of innocence may be made at any time, and
even if the defendant has previously sought and been denied
post-conviction relief.

Section 15 of the bill amends Criminal Procedure Law §440.30(1-a)(a)
to extend access to DNA testing for purposes of post-conviction
relief, on proper showings, to a defendant who pled guilty. It also
allows a defendant to apply for crime scene DNA evidence to be tested
not only against his or her own DNA, but also against profiles in DNA
databanks maintained by law enforcement.

Section 16 of the bill adds a new subdivision 8 to Criminal Procedure
Law §section 440.30 to provide that if the prosecution becomes aware
of evidence exonerating a convicted defendant, it is required to
notify the court, which shall notify the defendant, appoint defense
counsel if appropriate, and may consider releasing the defendant on
bail.

Section 17 of the bill adds a new subdivision 7 to Criminal Procedure
Law §440.40 to provide that the prosecution may move to vacate a
judgment of conviction on the ground of a defendant's actual
innocence. It provides for appointment of defense counsel,
consideration of release on bail, and prompt judicial resolution
through either a summary grant of the motion or an evidentiary
hearing.

Section 18 of the bill adds a new subdivision 4-b to Penal Law §65.10
to provide that when a court imposes a sentence that includes
probation or a conditional discharge, it shall require as a mandatory
condition of such sentence that the defendant provide a DNA sample.

Section 19 of the bill amends Court of Claims Act §8-b to provide that
an unjustly convicted defendant may obtain compensation whether or not
the defendant's conviction was overturned on one of the grounds
currently enumerated in the statute, as long as it was overturned for
reasons involving facts and circumstances directly supporting the
defendant's claim of innocence.

Section 20 of the bill provides for an effective date of November 1,
2009. It applies the expansion of DNA collection to any defendant
convicted or adjudicated a youthful offender on or after that date,
and to any person incarcerated or subject to probation or parole
supervision, or to a sex offender registration requirement, on or
after that date. It also provides that the provisions relating to the
Office of Wrongful Conviction Review shall expire on September 1,
2013.

 EXISTING LAW :

DNA samples are currently collected from persons convicted of some but
not all crimes. The list of crimes subject to collection has been
expanded three times, but many misdemeanor convictions remain outside
the scope of collection. Currently there is no DNA collection from
persons adjudicated youthful offenders or subject to sex offender
registration. Existing law does not make clear which officials are
responsible for collecting DNA samples in various cases, nor does it
require that defendants provide DNA samples as a condition of
probation or parole.

There is no requirement to develop best practice guidelines for
collection and preservation of biological evidence Nor is there a
requirement to study cases in which defendants have been wrongfully
convicted and subsequently exonerated.

Criminal Procedure Law §30.10(4)(a) provides that the statute of
limitations shall be tolled for up to five years when the whereabouts
of the defendant were continuously unknown and continuously
unascertainable by the exercise of reasonable diligence This has been
interpreted to include defendants whose identity is unknown.

Criminal Procedure Law §240.40 defines the scope of a defendant's
right of pretrial discovery of existing evidence, but it does not
include the authority to apply for court-ordered DNA testing.

Article 440 of the Criminal Procedure Law currently places no
limitations on when or how many motions for post-conviction relief may
be filed by a defendant Section 440.30(1-a) provides that a defendant
may apply for DNA testing of evidence secured in connection with the
trial, but it does not include application for an order to have.such
evidence compared against DNA databanks maintained by law enforcement.
Moreover, in  PEOPLE V. BYRDSONG , 33 A.D.3d 175 (2d Dept. 2006), the
existing authority was held inapplicable to defendants who pled
guilty.  There is currently no mechanism in the Criminal Procedure Law
for a prosecutor to move for a judgment of conviction to be vacated,
even when new evidence would support a claim of innocence Prosecutors
do not currently have an explicit legal or ethical duty to bring such
evidence to the attention of a court.

Section 8-b of the Court of Claims Act allows wrongfully convicted
defendants to seek compensation from the State. However, this
provision is currently restricted by a requirement that the defendant
must show that the conviction was overturned on one of certain
enumerated procedural grounds, even if it was in substance based on
facts supporting a claim of innocence.

 STATEMENT IN SUPPORT :

DNA technology is already a valuable tool for both law enforcement and
criminal defendants. This bill significantly expands the value of this
tool for all parties. It will result in more persons who are guilty of
crimes being identified, prosecuted, and convicted. It will also give
defendants facing trial, and those wrongfully convicted, significantly
greater access to DNA testing for purposes of exoneration.

1.  EXPANSION OF THE DNA DATABANK


The benefits of DNA comparisons to law enforcement are well documented
and commonly known. When crime scene DNA evidence is matched to a
profile in a DNA databank, it can allow the prompt identification and
prosecution of the guilty party. The benefits of such comparisons to
wrongfully convicted defendants are also well known.  DNA testing has
resulted in exoneration of numerous defendants, including some in New
York, who were imprisoned for substantial periods.

The demonstrated effectiveness of these techniques has already led the
Legislature on several occasions to expand the scope of DNA
collections from convicted defendants. Yet, no provisions exist for
collecting samples from persons convicted of various misdemeanors,
from youthful offenders, or from persons subject to registration as
sex offenders Experience has shown that having samples from an
expanded pool of convicted defendants, even if their convictions are
only for low-level crimes, can substantially enhance the utility of
DNA in solving more serious crimes. Solving a crime typically can
result in convicting the guilty, but can also result in exonerating
the innocent.

2.  ENSURING PROPER COLLECTION AND PRESERVATION OF DNA SAMPLES

The bill further enhances the use of DNA technology by ensuring that
defendants required to give samples actually do so. Currently there
are failures to collect samples from a substantial number of
defendants who "fall through the cracks." The bill addresses this
problem by specifying the public officers responsible for collecting
the samples, and by requiring that a defendant under probation or
parole supervision provide a DNA sample as a condition of that
supervision By facilitating the successful collection of a DNA sample
from every person convicted of a crime, adjudicated a youthful
offender, or subject to registration as a sex offender, this bill will
make for more effective law enforcement and more effective defense of
the innocent.

In addition to increasing the size of DNA databanks, the bill will
enhance their integrity as well. The bill requires the Commission on
Forensic Science to develop voluntary guidelines reflecting best
practices in the collection and preservation of biological evidence,
and it requires periodic review to ensure that DNA profiles that
should not be in the state index are removed.

3.   EXTENDING STATUTES OF LIMITATIONS TO PERMIT DNA IDENTIFICATIONS

Currently, a statute of limitations is extended by up to five years if
the whereabouts of the defendant are continuously unknown and
continuously unascertainable by the exercise of reasonable diligence.
When law enforcement has identified a perpetrator's DNA profile from a
crime scene, the same policy considerations apply, and indeed apply
even more strongly given the reliability and durability of DNA
evidence. The most effective technique for ascertaining the identity
of the perpetrator is to enter the profile into DNA databanks where it
can be compared against existing profiles and periodically re-compared
as new profiles come into that databank. There is no reason to require
further diligence through avenues of investigation likely to be much
less effective.

4.  EXONERATING THE INNOCENT

While expansion of the DNA databank will be of value to prosecutors
and defendants alike, there are other provisions of the bill that will
significantly increase the value of DNA technology specifically to the
wrongfully accused. While defendants currently have the right to apply
for DNA testing to support post-conviction relief, this bill removes
four significant limitations on that right.

First, the current right is limited to the post-conviction context.
When DNA technology can establish the innocence of a criminal
defendant, it is obviously far preferable to do so before trial,
rather than after conviction and possibly lengthy imprisonment This
bill extends the availability of DNA testing to defendants as a matter
of pre-trial discovery.

Second, the right to apply for DNA testing has been held inapplicable
to defendants who pled guilty. Actual experience shows that even in
cases of guilty pleas, convicted defendants have occasionally been
exonerated. While there may not be many such defendants, their need
for redress is compelling, and this bill would give them access to DNA
testing on an appropriate showing.

Third, the right to apply for DNA testing is limited to comparison
between crime scene evidence and the defendant's own DNA. Yet it can
also be highly useful for an innocent defendant to obtain comparison
between crime-scene evidence and government databanks that include DNA
profiles of persons convicted of crimes and other crime scene
evidence. A match to a databank profile can lead to further
investigation that can in turn identify another party as the actual
perpetrator and thus exonerate the defendant.  This bill therefore
allows such comparisons.

Fourth, merely obtaining exonerative DNA evidence is not enough unless
there are procedures ensuring its proper judicial consideration. This
bill, for the first time, would create an obligation for prosecutors
to bring exonerative evidence, whether or not based on DNA, to the
attention of the court When such evidence is so strong as to lead the
prosecutor to conclude that the defendant is actually innocent, it
creates for the first time a procedural vehicle by which the
prosecutor can move for the judgment of conviction to be vacated. In
either case, there are also provisions that ensure the prompt and
appropriate judicial attention to such evidence, including the
appointment of defense counsel when necessary, the possibility of the
convicted defendant's release on bail, and evidentiary hearings on the
exonerative evidence. Taken together, these innovations will vastly
enhance the value of DNA evidence to the wrongfully accused.

5.  STREAMLINING PROCEDURES FOR POST-CONVICTION RELIEF

The bill also includes provisions that will make the procedures for
seeking post conviction relief more streamlined, efficient, and
timely.  Defendants are currently allowed to move for such relief
whenever they wish, and as many times as they wish.  Many defendants
do indeed file motion after motion, creating serious and unnecessary
burdens on the bench and bar. Common sense limitations similar to
those followed in other jurisdictions would reduce those burdens while
still allowing defendants to assert every colorable claim for
post-conviction relief. In particular, under this bill, a defendant
would have a full year after the conviction becomes final to assert
all such claims in a single motion. Even thereafter, the bill would
preserve the defendant's ability at any time to make even successive
motions in certain cases when there is DNA testing or other newly
discovered evidence to support a claim of innocence.

6.  PROVIDING COMPENSATION TO EXONERATED DEFENDANTS

In addition to facilitating the exoneration of wrongfully convicted
defendants, the bill would ensure their access to appropriate remedies
following such exoneration. While there is already a remedy in the
Court of Claims Act for exonerated defendants to seek damages from the
State, this remedy is limited by an overly restrictive limitation to
claimants whose convictions were overturned on certain specified
procedural bases. The bill removes that limitation to allow
meritorious claims to go forward without regard to procedural
distinctions that are not necessarily related to the claim of actual
innocence.

7.  INNOCENCE REVIEW OFFICE

Finally, the bill seeks not only to correct the mistakes of the past
but also to learn from them. It establishes an Office of Wrongful
Conviction Review that will study cases in which defendants have been
wrongfully convicted and subsequently exonerated. This process, by
identifying the flaws in the system that allowed such wrongful
convictions to occur, should shed new light on how to reform the
criminal justice system to minimize the chance that such miscarriages
of justice may recur in the future.

 LEGISLATIVE HISTORY :

2007 - S.5848 - Passed Senate 52-9/Assembly Codes
Hostile Amendment was defeated.  The bill was debated.
2008 - Senate Rules

 FISCAL IMPLICATIONS :

Databank expansion would carry a fiscal impact, but the greatest
expense - the capital cost of increasing testing capacity - has
already been incurred in response to previous increases in the scope
of collection. It is estimated that further expansion of collection to
all crimes, including persons on probation, would require outsourced
testing of about 50,000 samples, but because of the existing testing
backlog, none of these costs will be incurred in the current fiscal
year. After testing of the initial surge, it should be possible for
the ongoing work on the expanded flow of cases to be handled within
existing levels of lab expenditures. It is estimated that the new
Office of Wrongful Conviction Review may cost up to $1 million per
year. The other provisions of the bill are estimated to have minimal
fiscal impact.

 EFFECTIVE DATE
This bill becomes effective on November 1, 2009, except that sections
six through eight of the bill become effective April 1, 2010, and
expire on September 1, 2013. The expanded scope of DNA collection
would apply to any person who, on or after the effective date, is
convicted of a crime, adjudicated a youthful offender, or is
incarcerated or subject to requirements of probation or parole
supervision or sex offender registration.

2009-S3110 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3110

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 11, 2009
                               ___________

Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the executive law, in relation to the collection of  DNA
  samples  from  designated  offenders,  collection  and preservation of
  biological  evidence,  and  establishing  the   office   of   wrongful
  conviction review; to amend the criminal procedure law, in relation to
  the statute of limitations for criminal offenses, access by defendants
  to  DNA  evidence, and procedures for consideration of post-conviction
  relief; to amend the penal law,  in  relation  to  the  conditions  of
  probation and conditional discharge; to amend the court of claims act,
  in  relation  to  claims  for  unjust  conviction and imprisonment; to
  repeal subdivision 7 of section 995 of the executive law  relating  to
  the  definition of "designated offender" for purposes of the DNA iden-
  tification index; and providing for the repeal of  certain  provisions
  upon expiration thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 7 of  section  995  of  the  executive  law  is
REPEALED and a new subdivision 7 is added to read as follows:
  7. "DESIGNATED OFFENDER" MEANS A PERSON CONVICTED OF AND SENTENCED FOR
A  MISDEMEANOR DEFINED IN THE PENAL LAW OR A FELONY DEFINED IN THE PENAL
LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL OFFENDER PURSU-
ANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL  PROCEDURE  LAW  FOR
ANY  SUCH MISDEMEANOR OR FELONY, OR A PERSON WHO IS REQUIRED TO REGISTER
AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  S 2. Subdivision 3 of section 995-c of the executive law,  as  amended
by chapter 576 of the laws of 2004, is amended to read as follows:
  3.  (A) Any designated offender [subsequent to conviction and sentenc-
ing for a crime specified in subdivision seven of section  nine  hundred
ninety-five  of  this  article,]  shall  be required to provide a sample
appropriate for DNA testing to determine identification  characteristics

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10238-01-9

S. 3110                             2

specific to such person and to be included in a state DNA identification
index pursuant to this article.
  (B)(I) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERVANT TO
WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
  (II)  IN  THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF PROBATION, SUCH SAMPLE SHALL BE  COLLECTED  BY  THE  LOCAL  PROBATION
DEPARTMENT SUPERVISING THE DESIGNATED OFFENDER.
  (III) IN THE CASE OF A DESIGNATED OFFENDER WHO IS NEITHER SENTENCED TO
A  TERM OF IMPRISONMENT NOR PROBATION, SUCH SAMPLE SHALL BE COLLECTED BY
THE PROBATION DEPARTMENT OF THE COUNTY IN WHICH SENTENCING TAKES  PLACE,
UNLESS AN ALTERNATE COLLECTION PROCEDURE HAS BEEN IMPLEMENTED.
  (IV)  PROVIDED, HOWEVER, THAT NOTHING IN THIS PARAGRAPH SHALL PROHIBIT
THE COLLECTION OF A DNA SAMPLE FROM A DESIGNATED OFFENDER BY  ANY  COURT
OFFICIAL,  STATE  OR  LOCAL  CORRECTION  OFFICIAL OR EMPLOYEE, PROBATION
OFFICER, PAROLE OFFICER, OR OTHER LAW  ENFORCEMENT  OFFICIAL  OR  PUBLIC
SERVANT  WHO  HAS  BEEN  NOTIFIED  BY  THE  DIVISION OF CRIMINAL JUSTICE
SERVICES THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE.
  (C) NOTWITHSTANDING THE PROVISIONS OF ANY LAW TO THE CONTRARY, A  CITY
WITH  A  POPULATION  OF ONE MILLION OR MORE OR ANY COUNTY ACTING THROUGH
ITS LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT, AMEND
OR REPEAL A LOCAL LAW TO IMPOSE A DNA COLLECTION FEE NOT TO EXCEED FIFTY
DOLLARS ON DESIGNATED OFFENDERS FROM WHOM ITS  PROBATION  DEPARTMENT  IS
REQUIRED  BY  SUBPARAGRAPH (III) OF PARAGRAPH (B) OF THIS SUBDIVISION TO
COLLECT A DNA SAMPLE; PROVIDED, HOWEVER, THAT THE FAILURE  OF  A  DESIG-
NATED  OFFENDER  TO  PAY SUCH DNA COLLECTION FEE, IF REQUIRED, SHALL NOT
PREVENT THE COLLECTION OF THE OFFENDER'S DNA SAMPLE.
  (D) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED  OFFENDER  WHO  HAS
NOT  YET  PROVIDED  A  DNA  SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE
PHYSICAL FORCE 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 CRIMI-
NAL  JUSTICE  SERVICES  INADVERTENTLY,  BUT  IN GOOD FAITH, COLLECTED OR
PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
  (F) THE COMMISSIONER OF CRIMINAL  JUSTICE  SERVICES  SHALL  PROMULGATE
RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
CATION 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 DETERMINES SHOULD NOT BE IN  THE
INDEX.
  S  3.  The  opening paragraph of section 995-f of the executive law is
designated subdivision 1 and a new subdivision 2 is  added  to  read  as
follows:
  2.  ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION
WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT
TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH  SAMPLE
UPON  NOTIFICATION  BY  A  COURT,  STATE OR LOCAL CORRECTION OFFICIAL OR
EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR  OTHER  LAW  ENFORCEMENT
OFFICIAL  OR  PUBLIC  SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A
SAMPLE, SHALL BE DEEMED  TO  VIOLATE  THE  CONDITIONS  OF  PROBATION  OR
PAROLE,  AND  SUCH  VIOLATION  SHALL  BE  A  BASIS FOR THE REVOCATION OF
PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN  OF  THE
CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-

S. 3110                             3

TER.  FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED
TO INCLUDE POST-RELEASE SUPERVISION.
  S  4. Subdivision 4 of section 995-c of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
  4. The commissioner of [the division of] criminal justice services, in
consultation with the commission, the commissioner of health, the  divi-
sions  of parole and of probation and correctional alternatives, and the
department of correctional services, shall promulgate  rules  and  regu-
lations  governing  the procedures for notifying designated offenders of
the requirements of this section.    FURTHERMORE,  THE  COMMISSIONER  OF
CRIMINAL  JUSTICE  SERVICES  SHALL ALSO PROMULGATE RULES AND REGULATIONS
GOVERNING THE PROCEDURES FOR OBTAINING  A  SAMPLE  APPROPRIATE  FOR  DNA
TESTING  FROM  A  PERSON  WHO  IS REQUIRED TO REGISTER AS A SEX OFFENDER
PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  S 5. Section 995-b of the executive law is amended  by  adding  a  new
subdivision 3-a to read as follows:
  3-A.  THE COMMISSION, IN CONSULTATION WITH THE DNA SUBCOMMITTEE, SHALL
DEVELOP, WITHIN ONE YEAR OF THE  EFFECTIVE  DATE  OF  THIS  SUBDIVISION,
VOLUNTARY  GUIDELINES REFLECTING BEST PRACTICES REGARDING THE COLLECTION
AND PRESERVATION OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES  AND
FORENSIC  LABORATORIES. SUCH VOLUNTARY GUIDELINES SHALL INCLUDE, BUT NOT
BE LIMITED TO, THE MINIMUM  PERIOD  OF  TIME  THAT  BIOLOGICAL  EVIDENCE
OBTAINED  FROM CRIME SCENES SHOULD BE RETAINED. AS USED IN THIS SUBDIVI-
SION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN  SEMEN,  BLOOD,  SALIVA,
HAIR,  SKIN,  TISSUE  OR OTHER IDENTIFIED BIOLOGICAL MATERIAL, AND SHALL
INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT.
  S 6. The executive law is amended by adding a  new  section  837-s  to
read as follows:
  S  837-S. OFFICE OF WRONGFUL CONVICTION REVIEW.  THERE SHALL BE ESTAB-
LISHED WITHIN THE DIVISION OF CRIMINAL JUSTICE  SERVICES  AN  OFFICE  OF
WRONGFUL  CONVICTION  REVIEW, HEREINAFTER REFERRED TO IN THIS SECTION AS
THE "OFFICE". THE OFFICE SHALL CONDUCT REVIEWS OF CRIMINAL AND  JUVENILE
CASES  IN THIS STATE INVOLVING WRONGFUL CONVICTIONS AND CONSIDER WHETHER
THERE MAY BE POSSIBLE REFORMS THAT COULD PROTECT AGAINST SIMILAR  WRONG-
FUL  CONVICTIONS  OCCURRING  IN THE FUTURE.   SUCH REVIEWS SHALL INCLUDE
PARTICIPATION BY PROSECUTORS, DEFENSE ATTORNEYS, FORMER JUDGES AND OTHER
EXPERTS IN RELEVANT FIELDS.  WHENEVER A PERSON WHO HAS BEEN CONVICTED OF
A CRIME OR ADJUDICATED A YOUTHFUL OFFENDER IS SUBSEQUENTLY DETERMINED TO
BE INNOCENT OF SUCH OFFENSE AND EXONERATED, THE OFFICE SHALL REVIEW  THE
CIRCUMSTANCES  OF  SUCH  CASE  TO  DETERMINE THE CAUSE OR CAUSES OF SUCH
WRONGFUL CONVICTION. THE OFFICE SHALL CONDUCT SUCH REVIEWS OF PAST CASES
INCLUDING, AT A MINIMUM, ALL CASES IN WHICH  EXONERATION  RESULTED  FROM
DNA EVIDENCE, AND ON AN ONGOING BASIS, ALL CASES IN WHICH A DEFENDANT IS
EXONERATED.  THE OFFICE SHALL MAKE AVAILABLE AN ANNUAL REPORT DETAILING,
AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR INVESTIGATION, THE NUMBER
OF  COMPLETED  INVESTIGATIONS  AND THE STATUS OF PENDING INVESTIGATIONS.
THE REPORT SHALL INCLUDE THE OFFICE'S FINDINGS AND CONCLUSIONS AS TO THE
CAUSE OR CAUSES OF WRONGFUL CONVICTIONS IN INVESTIGATIONS  THAT  IT  HAS
COMPLETED. THE REPORT SHALL BE PROVIDED TO THE GOVERNOR, ATTORNEY GENER-
AL,  CHIEF  JUDGE  OF  THE  COURT OF APPEALS, TEMPORARY PRESIDENT OF THE
SENATE, SPEAKER OF THE ASSEMBLY AND TO GOVERNMENTAL  UNITS  OR  AGENCIES
THAT  IT  FINDS  MAY  HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDI-
CATION OF WRONGFUL CONVICTIONS. NOTWITHSTANDING ANY OTHER  PROVISION  OF
LAW,  THE  OFFICE  MAY REQUEST AND SHALL RECEIVE FROM ANY COURT, DEPART-
MENT, DIVISION, BOARD, BUREAU, COMMISSION OR OTHER AGENCY OF  THE  STATE
OR  POLITICAL  SUBDIVISION THEREOF, OR ANY PUBLIC AUTHORITY SUCH ASSIST-

S. 3110                             4

ANCE, INFORMATION, RECORDS AND DATA AS WILL  ENABLE  IT  EFFECTIVELY  TO
CARRY OUT ITS POWERS AND DUTIES.
  S  7. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
procedure law, as amended by chapter 169 of the laws of 1994, is amended
to read as follows:
  (d) such records shall be made available to the person accused  or  to
such  person's  designated  agent,  and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this [chapter] PART, or  (ii)  a
law  enforcement  agency  upon ex parte motion in any superior court, if
such agency demonstrates to the satisfaction of the court  that  justice
requires  that  such records be made available to it, or (iii) any state
or local officer or agency  with  responsibility  for  the  issuance  of
licenses to possess guns, when the accused has made application for such
a  license,  or  (iv)  the  [New York state] division of parole when the
accused is on parole supervision as a result of conditional release or a
parole release granted by the [New York] state board of parole, and  the
arrest  which  is the subject of the inquiry is one which occurred while
the accused was under such supervision, or (v) any prospective  employer
of  a  police  officer  or  peace officer [as those terms are defined in
subdivisions thirty-three and thirty-four of section 1.20 of this  chap-
ter],  in  relation to an application for employment as a police officer
or peace officer; provided, however, that every person who is an  appli-
cant  for  the  position  of  police  officer  or peace officer shall be
furnished with a copy of all records obtained under this  paragraph  and
afforded  an  opportunity  to  make  an explanation thereto, or (vi) the
probation department responsible for supervision of the accused when the
arrest which is the subject of the inquiry is one which  occurred  while
the  accused was under such supervision, OR (VII) THE DIVISION OF CRIMI-
NAL JUSTICE SERVICES IN CONNECTION  WITH  INQUIRIES  BY  THE  OFFICE  OF
WRONGFUL  CONVICTION REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED THIRTY-
SEVEN-S OF THE EXECUTIVE LAW; and
  S 8. Subdivision 4 of section 190.25 of the criminal procedure law  is
amended by adding a new paragraph (c) to read as follows:
  (C)  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI-
MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING  A  GRAND
JURY  PROCEEDING SHALL BE DISCLOSED TO THE OFFICE OF WRONGFUL CONVICTION
REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED THIRTY-SEVEN-S OF THE EXECU-
TIVE LAW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH OFFICE
INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
  S 9. Paragraph (a) of subdivision 4 of section 30.10 of  the  criminal
procedure law is amended to read as follows:
  (a)  Any  period  following the commission of the offense during which
(i) the defendant was continuously outside this state or (ii) the where-
abouts of the defendant were continuously unknown and continuously unas-
certainable by the exercise of reasonable diligence OR (III) THE IDENTI-
TY OF THE DEFENDANT WAS CONTINUOUSLY UNKNOWN AND A DEOXYRIBONUCLEIC ACID
(DNA) RECORD OF THE DEFENDANT'S GENETIC CODE, OBTAINED BY  FORENSIC  DNA
TESTING  OF  EVIDENCE LOCATED AT A TIME OR PLACE RELEVANT TO THE COMMIS-
SION OF THE OFFENSE, COULD NOT BE MATCHED TO AN INDIVIDUAL IDENTIFIED BY
DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX BY THE EXER-
CISE OF REASONABLE DILIGENCE. However, in no event shall the  period  of
limitation  be extended by more than five years beyond the period other-
wise applicable under subdivision two OF THIS SECTION.
  S 10. Section 240.40 of the  criminal  procedure  law  is  amended  by
adding a new subdivision 1-a to read as follows:

S. 3110                             5

  1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR
COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU-
MENT  IS  PENDING  MAY  ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM
EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA
DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI-
AL  TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE,
PROVIDED THAT THE COURT SHALL NOT DO SO IF  IT  IS  SATISFIED  THAT  THE
PEOPLE  HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF
THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED
FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY  DIRECT  A  STATE  OR
LOCAL  PUBLIC  FORENSIC  LABORATORY  TO  ARRANGE  FOR SUCH PROFILE TO BE
ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS
TO THE EXTENT AND IN A MANNER CONSISTENT WITH FEDERAL AND STATE LAWS AND
REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS  TO  HOW
PROFILES  FOR  FORENSIC  DNA ANALYSIS MUST BE GENERATED AND REQUIREMENTS
FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION.  IF SUCH A  DATA-
BANK  SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW
ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE  DEFENDANT  SHALL  BE
NOTIFIED  OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND
THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE  PEOPLE
TO  PURSUE  APPROPRIATE  INVESTIGATIVE  STEPS.   NOTHING IN THIS ARTICLE
SHALL BE DEEMED TO ALLOW  A  DEFENDANT  TO  OBTAIN  AN  ORDER  REQUIRING
COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON.
  S  11. The opening paragraph of subdivision 1 of section 440.10 of the
criminal procedure law is amended to read as follows:
  [At any time after the entry of a judgment, the] THE  court  in  which
[it]  A JUDGEMENT OF CONVICTION was entered may, upon A TIMELY motion of
the defendant, vacate such judgment upon the ground that:
  S 12. Paragraph (d) of subdivision 2 of section 440.10 of the criminal
procedure law is amended and two new paragraphs (e) and (f) are added to
read as follows:
  (d)  The ground or issue raised relates solely to the validity of  the
sentence and not to the validity of the conviction[.]; OR
  (E)  THE  DEFENDANT  PREVIOUSLY  BROUGHT  A MOTION TO VACATE JUDGMENT,
WHICH WAS DENIED BY THE COURT, AND THE DEFENDANT IS CURRENTLY SEEKING TO
VACATE THE JUDGMENT ON A GROUND OTHER  THAN  NEWLY  DISCOVERED  EVIDENCE
UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION; OR
  (F)  THE  DEFENDANT'S  MOTION DOES NOT COMPLY WITH THE TIME LIMITS SET
FORTH IN SUBDIVISION EIGHT OF THIS SECTION.
  S 13. The opening paragraph of  paragraph  (c)  of  subdivision  3  of
section  440.10  of  the  criminal  procedure  law is amended to read as
follows:
  Upon a previous motion made pursuant to this  section,  the  defendant
was  in  a  position adequately to raise the [ground or issue underlying
the present motion] CLAIM OF NEWLY DISCOVERED EVIDENCE  UNDER  PARAGRAPH
(G) OF SUBDIVISION ONE OF THIS SECTION but did not do so.
  S  14.  Section  440.10  of  the  criminal procedure law is amended by
adding a new subdivision 8 to read as follows:
  8. ANY MOTION TO VACATE JUDGMENT BY A DEFENDANT MUST BE  FILED  WITHIN
ONE  YEAR OF THE DATE ON WHICH A JUDGMENT OF CONVICTION BECOMES FINAL BY
THE CONCLUSION OF DIRECT REVIEW OR THE EXPIRATION OF THE TIME FOR  SEEK-
ING  SUCH REVIEW; PROVIDED, HOWEVER, THAT A MOTION BY A DEFENDANT CLAIM-
ING NEWLY DISCOVERED EVIDENCE UNDER PARAGRAPH (G) OF SUBDIVISION ONE  OF
THIS  SECTION MAY BE MADE AT ANY TIME FOLLOWING THE DISCOVERY OF THE NEW
EVIDENCE SUPPORTING THE DEFENDANT'S CLAIM OF INNOCENCE. NOTHING IN  THIS
SUBDIVISION  SHALL RELIEVE THE DEFENDANT OF THE OBLIGATION, SET FORTH IN

S. 3110                             6

PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION, TO SHOW THAT HE OR SHE
HAS MADE THE MOTION TO VACATE JUDGMENT  WITH  DUE  DILIGENCE  AFTER  THE
DISCOVERY OF THE ALLEGED NEW EVIDENCE.
  S 15. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal  procedure  law,  as  amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
  (a) Where the defendant's motion requests the performance of a  foren-
sic  DNA  test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA")  was  secured
in  connection  with  the [trial] PROCEEDINGS resulting in the judgment,
the court shall grant the application for forensic DNA testing  of  such
evidence upon its determination that if a DNA test had been conducted on
such evidence, and if the results had been admitted in the trial result-
ing  in  the  judgment,  there  exists a reasonable probability that the
verdict would have been more favorable to the defendant.  IN THE CASE OF
A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL  GRANT  THE
APPLICATION  ONLY  UPON  ITS  DETERMINATION THAT IF THE RESULTS HAD BEEN
AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE  PROBABILITY  THAT
THE  DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
WISE, AND IN MAKING THAT DETERMINATION, THE COURT  MAY  CONSIDER,  AMONG
OTHER  RELEVANT  INFORMATION,  THE  PROCEEDINGS  IN  CONNECTION WITH THE
DEFENDANT'S PLEA OF GUILTY.
  (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC  DNA  TEST
OF  SPECIFIED  EVIDENCE,  AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI-
SION, THE DEFENDANT MAY ALSO MOVE FOR A  COMPARISON  OF  A  DNA  PROFILE
DERIVED  FROM  EVIDENCE  RECOVERED BY LAW ENFORCEMENT TO A DNA DATABANK.
IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON, THE COURT MAY
CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE  FOR  SUCH  A
COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF THIS PART,
BUT  UNJUSTIFIABLY  FAILED  TO DO SO. IF THE COURT GRANTS THE MOTION FOR
SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC FORENSIC  LABO-
RATORY  TO  ARRANGE  FOR  SUCH  PROFILE  TO BE ENTERED INTO AND SEARCHED
AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS TO THE EXTENT  AND  IN  A
MANNER  CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS GOVERNING
SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES  FOR  FORENSIC
DNA  ANALYSIS MUST BE GENERATED AND REQUIREMENTS FOR SEARCHING AND STOR-
AGE IN THE DATABANK IN QUESTION.  IF SUCH A DATABANK SEARCH REVEALS THAT
THE DNA DERIVED FROM EVIDENCE RECOVERED BY  LAW  ENFORCEMENT  MATCHES  A
PROFILE  IN  THE  DATABANK,  THE DEFENDANT SHALL BE NOTIFIED OF THE FACT
THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT SHALL GRANT
REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE  APPROPRIATE
INVESTIGATIVE STEPS.  NOTHING IN THIS ARTICLE SHALL BE DEEMED TO ALLOW A
DEFENDANT  TO  OBTAIN AN ORDER REQUIRING COLLECTION OF A DNA SAMPLE FROM
ANY OTHER PERSON.
  S 16. Section 440.30 of the  criminal  procedure  law  is  amended  by
adding a new subdivision 8 to read as follows:
  8.  AT  ANY  TIME  AFTER THE ENTRY OF A JUDGMENT, IF THE PEOPLE BECOME
AWARE OF EVIDENCE THAT SUBSTANTIALLY  TENDS  TO  EXONERATE  A  CONVICTED
DEFENDANT  AND WAS NOT PREVIOUSLY KNOWN TO THE DEFENSE, THE PEOPLE SHALL
NOTIFY THE COURT OF THE EXISTENCE OF SUCH EVIDENCE. UPON RECEIPT OF SUCH
NOTIFICATION, THE COURT SHALL NOTIFY THE DEFENDANT TO  THE  SAME  EFFECT
AND,  IF  APPROPRIATE, APPOINT DEFENSE COUNSEL SO THAT THE DEFENDANT MAY
SEEK ANY APPROPRIATE REMEDY UNDER THIS  ARTICLE.  THE  PEOPLE  MAY  MAKE
NOTIFICATION  TO A COURT PURSUANT TO THIS SUBDIVISION WITHOUT TAKING THE
POSITION THAT THE DEFENDANT WAS IN FACT INNOCENT AND, IF  THE  DEFENDANT
MOVES  FOR  RELIEF UNDER THIS ARTICLE, THE PEOPLE MAY TAKE ANY POSITION,

S. 3110                             7

INCLUDING CONSENT OR OPPOSITION,  AS  TO  SUCH  MOTION.  THE  COURT  MAY
CONSIDER,  BUT  NEED  NOT GRANT, THE DEFENDANT'S RELEASE ON BAIL PENDING
THE DETERMINATION OF A MOTION MADE FOLLOWING SUCH A NOTIFICATION.
  S  17. The section heading of section 440.40 of the criminal procedure
law is amended and a new subdivision 7 is added to read as follows:
  Motion to set aside sentence OR TO VACATE JUDGMENT; by people.
  7. AT ANY TIME AFTER THE ENTRY OF A JUDGMENT, THE PEOPLE MAY, IN  LIEU
OF THE NOTIFICATION PROCEDURES SET FORTH IN SUBDIVISION EIGHT OF SECTION
440.30  OF  THIS  ARTICLE,  MOVE  TO  VACATE  A  DEFENDANT'S JUDGMENT OF
CONVICTION UPON THE GROUND THAT THE DEFENDANT IS  ACTUALLY  INNOCENT  OF
THE  CHARGES UNDERLYING THE JUDGMENT. IN SUCH A MOTION, THE PEOPLE SHALL
SET FORTH EVIDENTIARY FACTS AND  INFERENCES  SUPPORTING  THE  CONTENTION
THAT THE DEFENDANT IS INNOCENT. UPON RECEIPT OF SUCH A MOTION, THE COURT
SHALL  ORDER  THAT  THE  DEFENDANT  BE PRODUCED BEFORE THE COURT WITHOUT
DELAY. AT SUCH A COURT APPEARANCE, THE COURT  MAY  SUMMARILY  GRANT  THE
MOTION  BASED  ON  THE  ALLEGATIONS  IN  THE  PEOPLE'S MOTION AND IN ANY
RESPONSIVE PAPERS FILED ON THE DEFENDANT'S BEHALF, AND BASED ON ANY ORAL
ARGUMENTS MADE ON THE MOTION. IF THE COURT DOES NOT SUMMARILY GRANT  THE
MOTION:  (A)  IT MUST APPOINT COUNSEL FOR THE DEFENDANT IF THE DEFENDANT
IS NOT ALREADY REPRESENTED BY COUNSEL, (B) IT MUST  CONSIDER,  BUT  NEED
NOT  GRANT,  A  DEFENDANT'S RELEASE ON BAIL PENDING THE DETERMINATION OF
THE MOTION, AND (C) IT MUST GRANT A PROMPT HEARING, AT WHICH THE PARTIES
MAY CALL WITNESSES AND OFFER DOCUMENTARY EVIDENCE, BEFORE RENDERING  ITS
DECISION TO GRANT OR DENY THE MOTION. IF THE COURT DENIES THE MOTION, IT
SHALL  SET FORTH FINDINGS OF FACTS AND CONCLUSIONS OF LAW SUPPORTING ITS
DECISION.
  S 18. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
  4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A  PERSON  CONVICTED
OF  AN  OFFENSE  SPECIFIED  IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED
NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATO-
RY CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE  AS
REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW.
  S  19. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision
5 of section 8-b of the court of claims act, as added by chapter 1009 of
the laws of 1984, are amended to read as follows:
  (b) (i) he has been pardoned upon the ground of innocence of the crime
or crimes for which he was sentenced and which are the grounds  for  the
complaint;  or  (ii) his judgment of conviction was reversed or vacated,
and the accusatory instrument dismissed or, if a new trial was  ordered,
either  he  was  found not guilty at the new trial or he was not retried
and the accusatory instrument dismissed; provided that the judgement  of
conviction  was  reversed  or vacated, and the accusatory instrument was
dismissed, on any of the following grounds: (A)  paragraph  [(a),]  (b),
(c),  [(e)]  or (g) of subdivision one of section 440.10 of the criminal
procedure law; or (B) subdivision one  (where  based  upon  grounds  set
forth  in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the
count dismissed was the sole basis for the imprisonment  complained  of)
or five of section 470.20 of the criminal procedure law; or (C) compara-
ble  provisions  of  the former code of criminal procedure or subsequent
law; or (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE  CRIMINAL  PROCE-
DURE LAW; OR (E) the statute, or application thereof, on which the accu-
satory  instrument  was  based  violated  the constitution of the United
States or the state of New York; OR (F) THE  CLAIMANT'S  CONVICTION  WAS
VACATED  UNDER  ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH,

S. 3110                             8

BUT WHOSE  APPLICATION  TO  CLAIMANT'S  CONVICTION  INVOLVED  FACTS  AND
CIRCUMSTANCES  THAT  DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE;
AND PROVIDED THAT, IN CASES WHERE THE CONVICTION MAY HAVE  BEEN  VACATED
ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS
PARAGRAPH,  THE  COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE
CRIMINAL COURT VACATING THE  CONVICTION  BASED  ONLY  ON  A  GROUND  NOT
ENUMERATED IN THIS PARAGRAPH; and
  (b) (i) he has been pardoned upon the ground of innocence of the crime
or  crimes  for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed  or  vacated,
and  the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he  was  not  retried
and  the accusatory instrument dismissed; provided that the judgement of
conviction was reversed or vacated, and the  accusatory  instrument  was
dismissed,  on  any  of the following grounds: (A) paragraph [(a),] (b),
(c), [(e)] or (g) of subdivision one of section 440.10 of  the  criminal
procedure  law;  or  (B)  subdivision  one (where based upon grounds set
forth in item (A) [hereof] OF THIS PARAGRAPH),  two,  three  (where  the
count  dismissed  was the sole basis for the imprisonment complained of)
or five of section 470.20 of the criminal procedure law; or (C) compara-
ble provisions of the former code of criminal  procedure  or  subsequent
law;  or  (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE CRIMINAL PROCE-
DURE LAW; OR (E) the statute, or application thereof, on which the accu-
satory instrument was based violated  the  constitution  of  the  United
States  or  the  state of New York; OR (F) THE CLAIMANT'S CONVICTION WAS
VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN  THIS  PARAGRAPH,
BUT  WHOSE  APPLICATION  TO  CLAIMANT'S  CONVICTION  INVOLVED  FACTS AND
CIRCUMSTANCES THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION  OF  INNOCENCE;
AND  PROVIDED  THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED
ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS
PARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION  OF  THE
CRIMINAL  COURT  VACATING  THE  CONVICTION  BASED  ONLY  ON A GROUND NOT
ENUMERATED IN THIS PARAGRAPH; and
  S 20. This act shall take effect November 1, 2009; provided,  however,
that  the  amendments to paragraph (a) of subdivision 3 of section 995-c
of the executive law, made by section two of this act,  shall  apply  to
any person who is convicted of a crime, adjudicated a youthful offender,
incarcerated  or  subject to probation or parole supervision, or subject
to a requirement to register as a sex offender, on or after such  effec-
tive  date;  provided,  further, that the amendments to paragraph (a) of
subdivision 4 of section 30.10 of the criminal procedure  law,  made  by
section  nine  of this act, shall apply to offenses where the applicable
period of limitation, including any extension of such period of  limita-
tion  pursuant  to  law  in  effect  before such effective date, has not
expired on such effective date; and provided,  further,  that,  sections
six,  seven  and  eight of this act shall take effect April 1, 2010, and
shall expire and be deemed repealed September 1, 2013.

co-Sponsors

2009-S3110A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Executive Law
Laws Affected:: Rpld & add §995 sub 7, amd §§995-c, 995-f & 995-b, add §837-s, Exec L; amd §§160.50, 190.25, 30.10, 240.40, 440.10, 440.30 & 440.40, CP L; amd §65.10, Pen L; amd §8-b, Ct Claims Act
Versions Introduced in 2011-2012 Legislative Session:: S2003

2009-S3110A (ACTIVE) - Summary

2009-S3110A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3110

 TITLE OF BILL :

An act to amend the executive law, in relation to the collection of
DNA samples from designated offenders, collection and preservation of
biological evidence, and establishing the office of wrongful
conviction review; to amend the criminal procedure law, in relation to
the statute of limitations for criminal offenses, access by defendants
to DNA evidence, and procedures for consideration of post-conviction
relief; to amend the penal law, in relation to the conditions of
probation and conditional discharge; to amend the court of claims act,
in relation to claims for unjust conviction and imprisonment; to
repeal subdivision 7 of section 995 of the executive law relating to
the definition of "designated offender" for purposes of the DNA
identification index; and providing for the repeal of certain
provisions upon expiration thereof

 PURPOSE :

This bill: (1) requires collection of DNA samples from everyone
convicted of a crime, and ensures proper collection of such samples;
(2) extends statutes of limitations to permit prosecutions based on
DNA evidence; (3) expands the access of defendants to potentially
exculpatory DNA evidence; (4) requires prosecutors to alert courts to
exculpatory evidence and authorizes prosecutors to move for

convictions to be vacated; (5) eliminates overly restrictive limits on
compensation for wrongful convictions; and (6) provides for review of
exonerations in an effort to identify and correct flaws in the
criminal justice system that increase the chance of a wrongful
conviction.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends Executive Law §995 to require that a DNA
sample be collected from every person convicted of a crime,
adjudicated a youthful offender, or subject to registration as a sex
offender.

Section 2 of the bill amends Executive Law §995-c(3) to: (1) specify
the public servants responsible for collection of DNA samples from
designated offenders; (2) allow certain fees to support such
collection; (3) ensure that DNA samples can be collected from
uncooperative offenders; and (4) address the possibility of DNA
profiles being wrongly included in the state identification index.

Section 3 of the bill amends Executive Law §995-f to provide that it
is a violation of a defendant's conditions of probation or parole for
the defendant to fail to provide a DNA sample when required.

Section 4 of the bill amends Executive Law §995-c(4) to provide that
the Division of Criminal Justice Services shall promulgate rules and
regulations governing procedures for obtaining DNA samples from
persons subject to registration as sex offenders.

Section 5 of the bill adds a new subdivision 3-a to Executive Law.
§995-b to require the Commission on Forensic Science to develop
voluntary guidelines reflecting best practices in the collection and
preservation of biological evidence by law enforcement agencies and
forensic laboratories.

Section 6 of the bill adds a new section 837-s to the Executive Law to
create an Office of Wrongful Conviction Review within the Division of
Criminal Justice Services.  The office will review cases in which
defendants were exonerated, to determine the causes of wrongful
convictions and consider reforms that could lessen the likelihood of
similar unjust convictions in the future. The reviews will include
participation by prosecutors, defense attorneys, former judges, and
other experts.

Sections 7 and 8 of the bill amend Criminal Procedure Law §§ 160.50(1)
(d) and 190 25(4) to provide that the Office of Wrongful Conviction
Review will have access to otherwise unavailable materials pertaining
to grand jury proceedings and terminations of criminal cases in favor
of the accused.

Section 9 of the bill amends Criminal Procedure Law §3010(4)(a) to
provide that the statute of limitations shall be tolled for up to five
years when a DNA profile identified from crime scene evidence could
not with reasonable diligence be matched to a known individual.

Section 10 of the bill adds a new subdivision 1-a to Criminal
Procedure Law §240.40 to provide a defendant a pre-trial discovery
right, on appropriate showings, to have crime scene DNA evidence
compared with his or her own DNA, or compared against DNA databanks.

Sections 11, 12, 13, and 14 of the bill amend Criminal Procedure Law §
440.10 to provide that a defendant shall file any motion for
post-conviction relief within one year after the conviction becomes
final, and shall include all grounds for such relief in a single
motion rather than file successive motions. Noncompliance with these
requirements can warrant denial of the motion, but motions based on
newly discovered evidence of innocence may be made at any time, and
even if the defendant has previously sought and been denied
post-conviction relief.

Section 15 of the bill amends Criminal Procedure Law §440.30(1-a)(a)
to extend access to DNA testing for purposes of post-conviction
relief, on proper showings, to a defendant who pled guilty. It also
allows a defendant to apply for crime scene DNA evidence to be tested
not only against his or her own DNA, but also against profiles in DNA
databanks maintained by law enforcement.

Section 16 of the bill adds a new subdivision 8 to Criminal Procedure
Law §section 440.30 to provide that if the prosecution becomes aware
of evidence exonerating a convicted defendant, it is required to
notify the court, which shall notify the defendant, appoint defense
counsel if appropriate, and may consider releasing the defendant on
bail.

Section 17 of the bill adds a new subdivision 7 to Criminal Procedure
Law §440.40 to provide that the prosecution may move to vacate a
judgment of conviction on the ground of a defendant's actual
innocence. It provides for appointment of defense counsel,
consideration of release on bail, and prompt judicial resolution
through either a summary grant of the motion or an evidentiary
hearing.

Section 18 of the bill adds a new subdivision 4-b to Penal Law §65.10
to provide that when a court imposes a sentence that includes
probation or a conditional discharge, it shall require as a mandatory
condition of such sentence that the defendant provide a DNA sample.

Section 19 of the bill amends Court of Claims Act §8-b to provide that
an unjustly convicted defendant may obtain compensation whether or not
the defendant's conviction was overturned on one of the grounds
currently enumerated in the statute, as long as it was overturned for
reasons involving facts and circumstances directly supporting the
defendant's claim of innocence.

Section 20 of the bill provides for an effective date of November 1,
2009. It applies the expansion of DNA collection to any defendant
convicted or adjudicated a youthful offender on or after that date,
and to any person incarcerated or subject to probation or parole
supervision, or to a sex offender registration requirement, on or
after that date. It also provides that the provisions relating to the
Office of Wrongful Conviction Review shall expire on September 1,
2013.

 EXISTING LAW :

DNA samples are currently collected from persons convicted of some but
not all crimes. The list of crimes subject to collection has been
expanded three times, but many misdemeanor convictions remain outside
the scope of collection. Currently there is no DNA collection from
persons adjudicated youthful offenders or subject to sex offender
registration. Existing law does not make clear which officials are
responsible for collecting DNA samples in various cases, nor does it
require that defendants provide DNA samples as a condition of
probation or parole.

There is no requirement to develop best practice guidelines for
collection and preservation of biological evidence Nor is there a
requirement to study cases in which defendants have been wrongfully
convicted and subsequently exonerated.

Criminal Procedure Law §30.10(4)(a) provides that the statute of
limitations shall be tolled for up to five years when the whereabouts
of the defendant were continuously unknown and continuously
unascertainable by the exercise of reasonable diligence This has been
interpreted to include defendants whose identity is unknown.

Criminal Procedure Law §240.40 defines the scope of a defendant's
right of pretrial discovery of existing evidence, but it does not
include the authority to apply for court-ordered DNA testing.

Article 440 of the Criminal Procedure Law currently places no
limitations on when or how many motions for post-conviction relief may
be filed by a defendant Section 440.30(1-a) provides that a defendant
may apply for DNA testing of evidence secured in connection with the
trial, but it does not include application for an order to have.such
evidence compared against DNA databanks maintained by law enforcement.
Moreover, in  PEOPLE V. BYRDSONG , 33 A.D.3d 175 (2d Dept. 2006), the
existing authority was held inapplicable to defendants who pled
guilty.  There is currently no mechanism in the Criminal Procedure Law
for a prosecutor to move for a judgment of conviction to be vacated,
even when new evidence would support a claim of innocence Prosecutors
do not currently have an explicit legal or ethical duty to bring such
evidence to the attention of a court.

Section 8-b of the Court of Claims Act allows wrongfully convicted
defendants to seek compensation from the State. However, this
provision is currently restricted by a requirement that the defendant
must show that the conviction was overturned on one of certain
enumerated procedural grounds, even if it was in substance based on
facts supporting a claim of innocence.

 STATEMENT IN SUPPORT :

DNA technology is already a valuable tool for both law enforcement and
criminal defendants. This bill significantly expands the value of this
tool for all parties. It will result in more persons who are guilty of
crimes being identified, prosecuted, and convicted. It will also give
defendants facing trial, and those wrongfully convicted, significantly
greater access to DNA testing for purposes of exoneration.

1.  EXPANSION OF THE DNA DATABANK

The benefits of DNA comparisons to law enforcement are well documented
and commonly known. When crime scene DNA evidence is matched to a
profile in a DNA databank, it can allow the prompt identification and
prosecution of the guilty party. The benefits of such comparisons to
wrongfully convicted defendants are also well known.  DNA testing has
resulted in exoneration of numerous defendants, including some in New
York, who were imprisoned for substantial periods.

The demonstrated effectiveness of these techniques has already led the
Legislature on several occasions to expand the scope of DNA
collections from convicted defendants. Yet, no provisions exist for
collecting samples from persons convicted of various misdemeanors,
from youthful offenders, or from persons subject to registration as
sex offenders Experience has shown that having samples from an
expanded pool of convicted defendants, even if their convictions are
only for low-level crimes, can substantially enhance the utility of
DNA in solving more serious crimes. Solving a crime typically can
result in convicting the guilty, but can also result in exonerating
the innocent.

2.  ENSURING PROPER COLLECTION AND PRESERVATION OF DNA SAMPLES

The bill further enhances the use of DNA technology by ensuring that
defendants required to give samples actually do so. Currently there
are failures to collect samples from a substantial number of
defendants who "fall through the cracks." The bill addresses this
problem by specifying the public officers responsible for collecting
the samples, and by requiring that a defendant under probation or
parole supervision provide a DNA sample as a condition of that
supervision By facilitating the successful collection of a DNA sample
from every person convicted of a crime, adjudicated a youthful
offender, or subject to registration as a sex offender, this bill will
make for more effective law enforcement and more effective defense of
the innocent.

In addition to increasing the size of DNA databanks, the bill will
enhance their integrity as well. The bill requires the Commission on
Forensic Science to develop voluntary guidelines reflecting best
practices in the collection and preservation of biological evidence,
and it requires periodic review to ensure that DNA profiles that
should not be in the state index are removed.

3.   EXTENDING STATUTES OF LIMITATIONS TO PERMIT DNA IDENTIFICATIONS

Currently, a statute of limitations is extended by up to five years if
the whereabouts of the defendant are continuously unknown and
continuously unascertainable by the exercise of reasonable diligence.
When law enforcement has identified a perpetrator's DNA profile from a
crime scene, the same policy considerations apply, and indeed apply
even more strongly given the reliability and durability of DNA
evidence. The most effective technique for ascertaining the identity
of the perpetrator is to enter the profile into DNA databanks where it
can be compared against existing profiles and periodically re-compared
as new profiles come into that databank. There is no reason to require
further diligence through avenues of investigation likely to be much
less effective.

4.  EXONERATING THE INNOCENT

While expansion of the DNA databank will be of value to prosecutors
and defendants alike, there are other provisions of the bill that will
significantly increase the value of DNA technology specifically to the
wrongfully accused. While defendants currently have the right to apply
for DNA testing to support post-conviction relief, this bill removes
four significant limitations on that right.

First, the current right is limited to the post-conviction context.
When DNA technology can establish the innocence of a criminal
defendant, it is obviously far preferable to do so before trial,
rather than after conviction and possibly lengthy imprisonment This
bill extends the availability of DNA testing to defendants as a matter
of pre-trial discovery.

Second, the right to apply for DNA testing has been held inapplicable
to defendants who pled guilty. Actual experience shows that even in
cases of guilty pleas, convicted defendants have occasionally been
exonerated. While there may not be many such defendants, their need
for redress is compelling, and this bill would give them access to DNA
testing on an appropriate showing.

Third, the right to apply for DNA testing is limited to comparison
between crime scene evidence and the defendant's own DNA. Yet it can
also be highly useful for an innocent defendant to obtain comparison
between crime-scene evidence and government databanks that include DNA
profiles of persons convicted of crimes and other crime scene
evidence. A match to a databank profile can lead to further
investigation that can in turn identify another party as the actual
perpetrator and thus exonerate the defendant.  This bill therefore
allows such comparisons.

Fourth, merely obtaining exonerative DNA evidence is not enough unless
there are procedures ensuring its proper judicial consideration. This
bill, for the first time, would create an obligation for prosecutors
to bring exonerative evidence, whether or not based on DNA, to the
attention of the court When such evidence is so strong as to lead the
prosecutor to conclude that the defendant is actually innocent, it
creates for the first time a procedural vehicle by which the
prosecutor can move for the judgment of conviction to be vacated. In
either case, there are also provisions that ensure the prompt and
appropriate judicial attention to such evidence, including the
appointment of defense counsel when necessary, the possibility of the
convicted defendant's release on bail, and evidentiary hearings on the
exonerative evidence. Taken together, these innovations will vastly
enhance the value of DNA evidence to the wrongfully accused.

5.  STREAMLINING PROCEDURES FOR POST-CONVICTION RELIEF

The bill also includes provisions that will make the procedures for
seeking post conviction relief more streamlined, efficient, and
timely.  Defendants are currently allowed to move for such relief
whenever they wish, and as many times as they wish.  Many defendants
do indeed file motion after motion, creating serious and unnecessary
burdens on the bench and bar. Common sense limitations similar to
those followed in other jurisdictions would reduce those burdens while
still allowing defendants to assert every colorable claim for
post-conviction relief. In particular, under this bill, a defendant
would have a full year after the conviction becomes final to assert
all such claims in a single motion. Even thereafter, the bill would
preserve the defendant's ability at any time to make even successive
motions in certain cases when there is DNA testing or other newly
discovered evidence to support a claim of innocence.

6.  PROVIDING COMPENSATION TO EXONERATED DEFENDANTS

In addition to facilitating the exoneration of wrongfully convicted
defendants, the bill would ensure their access to appropriate remedies
following such exoneration. While there is already a remedy in the
Court of Claims Act for exonerated defendants to seek damages from the
State, this remedy is limited by an overly restrictive limitation to
claimants whose convictions were overturned on certain specified
procedural bases. The bill removes that limitation to allow
meritorious claims to go forward without regard to procedural
distinctions that are not necessarily related to the claim of actual
innocence.

7.  INNOCENCE REVIEW OFFICE

Finally, the bill seeks not only to correct the mistakes of the past
but also to learn from them. It establishes an Office of Wrongful
Conviction Review that will study cases in which defendants have been
wrongfully convicted and subsequently exonerated. This process, by
identifying the flaws in the system that allowed such wrongful
convictions to occur, should shed new light on how to reform the
criminal justice system to minimize the chance that such miscarriages
of justice may recur in the future.

 LEGISLATIVE HISTORY :

2007 - S.5848 - Passed Senate 52-9/Assembly Codes Hostile Amendment
was defeated.  The bill was debated.
2008 - Senate Rules

 FISCAL IMPLICATIONS :

Databank expansion would carry a fiscal impact, but the greatest
expense - the capital cost of increasing testing capacity - has
already been incurred in response to previous increases in the scope
of collection. It is estimated that further expansion of collection to
all crimes, including persons on probation, would require outsourced
testing of about 50,000 samples, but because of the existing testing
backlog, none of these costs will be incurred in the current fiscal
year. After testing of the initial surge, it should be possible for
the ongoing work on the expanded flow of cases to be handled within
existing levels of lab expenditures. It is estimated that the new
Office of Wrongful Conviction Review may cost up to $1 million per
year. The other provisions of the bill are estimated to have minimal
fiscal impact.

 EFFECTIVE DATE
This bill becomes effective on November 1, 2010, except that sections
six through eight of the bill become effective April 1, 2011, and
expire on September 1, 2014. The expanded scope of DNA collection
would apply to any person who, on or after the effective date, is
convicted of a crime, adjudicated a youthful offender, or is
incarcerated or subject to requirements of probation or parole
supervision or sex offender registration.

2009-S3110A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3110--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 11, 2009
                               ___________

Introduced by Sens. SKELOS, DeFRANCISCO -- read twice and ordered print-
  ed,  and  when  printed to be committed to the Committee on Finance --
  recommitted to the Committee on Finance in accordance with Senate Rule
  6, sec. 8 -- committee discharged, bill amended, ordered reprinted  as
  amended and recommitted to said committee

AN  ACT to amend the executive law, in relation to the collection of DNA
  samples from designated  offenders,  collection  and  preservation  of
  biological   evidence,   and   establishing  the  office  of  wrongful
  conviction review; to amend the criminal procedure law, in relation to
  the statute of limitations for criminal offenses, access by defendants
  to DNA evidence, and procedures for consideration  of  post-conviction
  relief;  to  amend  the  penal  law,  in relation to the conditions of
  probation and conditional discharge; to amend the court of claims act,
  in relation to claims  for  unjust  conviction  and  imprisonment;  to
  repeal  subdivision  7 of section 995 of the executive law relating to
  the definition of "designated offender" for purposes of the DNA  iden-
  tification  index;  and providing for the repeal of certain provisions
  upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  7  of  section  995  of the executive law is
REPEALED and a new subdivision 7 is added to read as follows:
  7. "DESIGNATED OFFENDER" MEANS A PERSON CONVICTED OF AND SENTENCED FOR
A MISDEMEANOR DEFINED IN THE PENAL LAW OR A FELONY DEFINED IN THE  PENAL
LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL OFFENDER PURSU-
ANT  TO  ARTICLE  SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW FOR
ANY SUCH MISDEMEANOR OR FELONY, OR A PERSON WHO IS REQUIRED TO  REGISTER
AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  S  2.  Subdivision 3 of section 995-c of the executive law, as amended
by chapter 576 of the laws of 2004, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10238-02-0

S. 3110--A                          2

  3. (A) Any designated offender [subsequent to conviction and  sentenc-
ing  for  a crime specified in subdivision seven of section nine hundred
ninety-five of this article,] shall be  required  to  provide  a  sample
appropriate  for DNA testing to determine identification characteristics
specific to such person and to be included in a state DNA identification
index pursuant to this article.
  (B)(I) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERVANT TO
WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
  (II)  IN  THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
OF PROBATION, SUCH SAMPLE SHALL BE  COLLECTED  BY  THE  LOCAL  PROBATION
DEPARTMENT SUPERVISING THE DESIGNATED OFFENDER.
  (III) IN THE CASE OF A DESIGNATED OFFENDER WHO IS NEITHER SENTENCED TO
A  TERM OF IMPRISONMENT NOR PROBATION, SUCH SAMPLE SHALL BE COLLECTED BY
THE PROBATION DEPARTMENT OF THE COUNTY IN WHICH SENTENCING TAKES  PLACE,
UNLESS AN ALTERNATE COLLECTION PROCEDURE HAS BEEN IMPLEMENTED.
  (IV)  PROVIDED, HOWEVER, THAT NOTHING IN THIS PARAGRAPH SHALL PROHIBIT
THE COLLECTION OF A DNA SAMPLE FROM A DESIGNATED OFFENDER BY  ANY  COURT
OFFICIAL,  STATE  OR  LOCAL  CORRECTION  OFFICIAL OR EMPLOYEE, PROBATION
OFFICER, PAROLE OFFICER, OR OTHER LAW  ENFORCEMENT  OFFICIAL  OR  PUBLIC
SERVANT  WHO  HAS  BEEN  NOTIFIED  BY  THE  DIVISION OF CRIMINAL JUSTICE
SERVICES THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE.
  (C) NOTWITHSTANDING THE PROVISIONS OF ANY LAW TO THE CONTRARY, A  CITY
WITH  A  POPULATION  OF ONE MILLION OR MORE OR ANY COUNTY ACTING THROUGH
ITS LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT, AMEND
OR REPEAL A LOCAL LAW TO IMPOSE A DNA COLLECTION FEE NOT TO EXCEED FIFTY
DOLLARS ON DESIGNATED OFFENDERS FROM WHOM ITS  PROBATION  DEPARTMENT  IS
REQUIRED  BY  SUBPARAGRAPH (III) OF PARAGRAPH (B) OF THIS SUBDIVISION TO
COLLECT A DNA SAMPLE; PROVIDED, HOWEVER, THAT THE FAILURE  OF  A  DESIG-
NATED  OFFENDER  TO  PAY SUCH DNA COLLECTION FEE, IF REQUIRED, SHALL NOT
PREVENT THE COLLECTION OF THE OFFENDER'S DNA SAMPLE.
  (D) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED  OFFENDER  WHO  HAS
NOT  YET  PROVIDED  A  DNA  SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE
PHYSICAL FORCE 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 CRIMI-
NAL  JUSTICE  SERVICES  INADVERTENTLY,  BUT  IN GOOD FAITH, COLLECTED OR
PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
  (F) THE COMMISSIONER OF CRIMINAL  JUSTICE  SERVICES  SHALL  PROMULGATE
RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
CATION 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 DETERMINES SHOULD NOT BE IN  THE
INDEX.
  S  3.  The  opening paragraph of section 995-f of the executive law is
designated subdivision 1 and a new subdivision 2 is  added  to  read  as
follows:
  2.  ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION
WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT
TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH  SAMPLE
UPON  NOTIFICATION  BY  A  COURT,  STATE OR LOCAL CORRECTION OFFICIAL OR
EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR  OTHER  LAW  ENFORCEMENT
OFFICIAL  OR  PUBLIC  SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A
SAMPLE, SHALL BE DEEMED  TO  VIOLATE  THE  CONDITIONS  OF  PROBATION  OR

S. 3110--A                          3

PAROLE,  AND  SUCH  VIOLATION  SHALL  BE  A  BASIS FOR THE REVOCATION OF
PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN  OF  THE
CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
TER.  FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED
TO INCLUDE POST-RELEASE SUPERVISION.
  S 4. Subdivision 4 of section 995-c of the executive law, as added  by
chapter 737 of the laws of 1994, is amended to read as follows:
  4. The commissioner of [the division of] criminal justice services, in
consultation  with the commission, the commissioner of health, the divi-
sions of parole and of probation and correctional alternatives, and  the
department  of  correctional  services, shall promulgate rules and regu-
lations governing the procedures for notifying designated  offenders  of
the  requirements  of  this  section.   FURTHERMORE, THE COMMISSIONER OF
CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE  RULES  AND  REGULATIONS
GOVERNING  THE  PROCEDURES  FOR  OBTAINING  A SAMPLE APPROPRIATE FOR DNA
TESTING FROM A PERSON WHO IS REQUIRED TO  REGISTER  AS  A  SEX  OFFENDER
PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  S  5.  Section  995-b  of the executive law is amended by adding a new
subdivision 3-a to read as follows:
  3-A. THE COMMISSION, IN CONSULTATION WITH THE DNA SUBCOMMITTEE,  SHALL
DEVELOP,  WITHIN  ONE  YEAR  OF  THE EFFECTIVE DATE OF THIS SUBDIVISION,
VOLUNTARY GUIDELINES REFLECTING BEST PRACTICES REGARDING THE  COLLECTION
AND  PRESERVATION OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND
FORENSIC LABORATORIES. SUCH VOLUNTARY GUIDELINES SHALL INCLUDE, BUT  NOT
BE  LIMITED  TO,  THE  MINIMUM  PERIOD  OF TIME THAT BIOLOGICAL EVIDENCE
OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS USED IN THIS  SUBDIVI-
SION,  THE  TERM  "BIOLOGICAL EVIDENCE" SHALL MEAN SEMEN, BLOOD, SALIVA,
HAIR, SKIN, TISSUE OR OTHER IDENTIFIED BIOLOGICAL  MATERIAL,  AND  SHALL
INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT.
  S  6.  The  executive  law is amended by adding a new section 837-s to
read as follows:
  S 837-S. OFFICE OF WRONGFUL CONVICTION REVIEW.  THERE SHALL BE  ESTAB-
LISHED  WITHIN  THE  DIVISION  OF CRIMINAL JUSTICE SERVICES AN OFFICE OF
WRONGFUL CONVICTION REVIEW, HEREINAFTER REFERRED TO IN THIS  SECTION  AS
THE  "OFFICE". THE OFFICE SHALL CONDUCT REVIEWS OF CRIMINAL AND JUVENILE
CASES IN THIS STATE INVOLVING WRONGFUL CONVICTIONS AND CONSIDER  WHETHER
THERE  MAY BE POSSIBLE REFORMS THAT COULD PROTECT AGAINST SIMILAR WRONG-
FUL CONVICTIONS OCCURRING IN THE FUTURE.   SUCH  REVIEWS  SHALL  INCLUDE
PARTICIPATION BY PROSECUTORS, DEFENSE ATTORNEYS, FORMER JUDGES AND OTHER
EXPERTS IN RELEVANT FIELDS.  WHENEVER A PERSON WHO HAS BEEN CONVICTED OF
A CRIME OR ADJUDICATED A YOUTHFUL OFFENDER IS SUBSEQUENTLY DETERMINED TO
BE  INNOCENT OF SUCH OFFENSE AND EXONERATED, THE OFFICE SHALL REVIEW THE
CIRCUMSTANCES OF SUCH CASE TO DETERMINE THE  CAUSE  OR  CAUSES  OF  SUCH
WRONGFUL CONVICTION. THE OFFICE SHALL CONDUCT SUCH REVIEWS OF PAST CASES
INCLUDING,  AT  A  MINIMUM, ALL CASES IN WHICH EXONERATION RESULTED FROM
DNA EVIDENCE, AND ON AN ONGOING BASIS, ALL CASES IN WHICH A DEFENDANT IS
EXONERATED.  THE OFFICE SHALL MAKE AVAILABLE AN ANNUAL REPORT DETAILING,
AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR INVESTIGATION, THE NUMBER
OF COMPLETED INVESTIGATIONS AND THE STATUS  OF  PENDING  INVESTIGATIONS.
THE REPORT SHALL INCLUDE THE OFFICE'S FINDINGS AND CONCLUSIONS AS TO THE
CAUSE  OR  CAUSES  OF WRONGFUL CONVICTIONS IN INVESTIGATIONS THAT IT HAS
COMPLETED. THE REPORT SHALL BE PROVIDED TO THE GOVERNOR, ATTORNEY GENER-
AL, CHIEF JUDGE OF THE COURT OF  APPEALS,  TEMPORARY  PRESIDENT  OF  THE
SENATE,  SPEAKER  OF  THE ASSEMBLY AND TO GOVERNMENTAL UNITS OR AGENCIES
THAT IT FINDS MAY HAVE BEEN INVOLVED IN  THE  INVESTIGATION  OR  ADJUDI-
CATION  OF  WRONGFUL CONVICTIONS. NOTWITHSTANDING ANY OTHER PROVISION OF

S. 3110--A                          4

LAW, THE OFFICE MAY REQUEST AND SHALL RECEIVE FROM  ANY  COURT,  DEPART-
MENT,  DIVISION,  BOARD, BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE
OR POLITICAL SUBDIVISION THEREOF, OR ANY PUBLIC AUTHORITY  SUCH  ASSIST-
ANCE,  INFORMATION,  RECORDS  AND  DATA AS WILL ENABLE IT EFFECTIVELY TO
CARRY OUT ITS POWERS AND DUTIES.
  S 7. Paragraph (d) of subdivision 1 of section 160.50 of the  criminal
procedure law, as amended by chapter 169 of the laws of 1994, is amended
to read as follows:
  (d)  such  records shall be made available to the person accused or to
such person's designated agent, and shall be made  available  to  (i)  a
prosecutor in any proceeding in which the accused has moved for an order
pursuant  to  section 170.56 or 210.46 of this [chapter] PART, or (ii) a
law enforcement agency upon ex parte motion in any  superior  court,  if
such  agency  demonstrates to the satisfaction of the court that justice
requires that such records be made available to it, or (iii)  any  state
or  local  officer  or  agency  with  responsibility for the issuance of
licenses to possess guns, when the accused has made application for such
a license, or (iv) the [New York state]  division  of  parole  when  the
accused is on parole supervision as a result of conditional release or a
parole  release granted by the [New York] state board of parole, and the
arrest which is the subject of the inquiry is one which  occurred  while
the  accused was under such supervision, or (v) any prospective employer
of a police officer or peace officer [as  those  terms  are  defined  in
subdivisions  thirty-three and thirty-four of section 1.20 of this chap-
ter], in relation to an application for employment as a  police  officer
or  peace officer; provided, however, that every person who is an appli-
cant for the position of  police  officer  or  peace  officer  shall  be
furnished  with  a copy of all records obtained under this paragraph and
afforded an opportunity to make an  explanation  thereto,  or  (vi)  the
probation department responsible for supervision of the accused when the
arrest  which  is the subject of the inquiry is one which occurred while
the accused was under such supervision, OR (VII) THE DIVISION OF  CRIMI-
NAL  JUSTICE  SERVICES  IN  CONNECTION  WITH  INQUIRIES BY THE OFFICE OF
WRONGFUL CONVICTION REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED  THIRTY-
SEVEN-S OF THE EXECUTIVE LAW; and
  S  8. Subdivision 4 of section 190.25 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY  TESTI-
MONY,  EVIDENCE,  DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND
JURY PROCEEDING SHALL BE DISCLOSED TO THE OFFICE OF WRONGFUL  CONVICTION
REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED THIRTY-SEVEN-S OF THE EXECU-
TIVE LAW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH OFFICE
INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING.
  S  9.  Paragraph (a) of subdivision 4 of section 30.10 of the criminal
procedure law is amended to read as follows:
  (a) Any period following the commission of the  offense  during  which
(i) the defendant was continuously outside this state or (ii) the where-
abouts of the defendant were continuously unknown and continuously unas-
certainable by the exercise of reasonable diligence OR (III) THE IDENTI-
TY OF THE DEFENDANT WAS CONTINUOUSLY UNKNOWN AND A DEOXYRIBONUCLEIC ACID
(DNA)  RECORD  OF THE DEFENDANT'S GENETIC CODE, OBTAINED BY FORENSIC DNA
TESTING OF EVIDENCE LOCATED AT A TIME OR PLACE RELEVANT TO  THE  COMMIS-
SION OF THE OFFENSE, COULD NOT BE MATCHED TO AN INDIVIDUAL IDENTIFIED BY
DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX BY THE EXER-
CISE  OF  REASONABLE DILIGENCE. However, in no event shall the period of

S. 3110--A                          5

limitation be extended by more than five years beyond the period  other-
wise applicable under subdivision two OF THIS SECTION.
  S  10.  Section  240.40  of  the  criminal procedure law is amended by
adding a new subdivision 1-a to read as follows:
  1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR
COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU-
MENT IS PENDING MAY ORDER A COMPARISON OF A  DNA  PROFILE  DERIVED  FROM
EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA
DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI-
AL  TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE,
PROVIDED THAT THE COURT SHALL NOT DO SO IF  IT  IS  SATISFIED  THAT  THE
PEOPLE  HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF
THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED
FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY  DIRECT  A  STATE  OR
LOCAL  PUBLIC  FORENSIC  LABORATORY  TO  ARRANGE  FOR SUCH PROFILE TO BE
ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS
TO THE EXTENT AND IN A MANNER CONSISTENT WITH FEDERAL AND STATE LAWS AND
REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS  TO  HOW
PROFILES  FOR  FORENSIC  DNA ANALYSIS MUST BE GENERATED AND REQUIREMENTS
FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION.  IF SUCH A  DATA-
BANK  SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW
ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE  DEFENDANT  SHALL  BE
NOTIFIED  OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND
THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE  PEOPLE
TO  PURSUE  APPROPRIATE  INVESTIGATIVE  STEPS.   NOTHING IN THIS ARTICLE
SHALL BE DEEMED TO ALLOW  A  DEFENDANT  TO  OBTAIN  AN  ORDER  REQUIRING
COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON.
  S  11. The opening paragraph of subdivision 1 of section 440.10 of the
criminal procedure law is amended to read as follows:
  [At any time after the entry of a judgment, the] THE  court  in  which
[it]  A JUDGEMENT OF CONVICTION was entered may, upon A TIMELY motion of
the defendant, vacate such judgment upon the ground that:
  S 12. Paragraph (d) of subdivision 2 of section 440.10 of the criminal
procedure law is amended and two new paragraphs (e) and (f) are added to
read as follows:
  (d)  The ground or issue raised relates solely to the validity of  the
sentence and not to the validity of the conviction[.]; OR
  (E)  THE  DEFENDANT  PREVIOUSLY  BROUGHT  A MOTION TO VACATE JUDGMENT,
WHICH WAS DENIED BY THE COURT, AND THE DEFENDANT IS CURRENTLY SEEKING TO
VACATE THE JUDGMENT ON A GROUND OTHER  THAN  NEWLY  DISCOVERED  EVIDENCE
UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION; OR
  (F)  THE  DEFENDANT'S  MOTION DOES NOT COMPLY WITH THE TIME LIMITS SET
FORTH IN SUBDIVISION EIGHT OF THIS SECTION.
  S 13. The opening paragraph of  paragraph  (c)  of  subdivision  3  of
section  440.10  of  the  criminal  procedure  law is amended to read as
follows:
  Upon a previous motion made pursuant to this  section,  the  defendant
was  in  a  position adequately to raise the [ground or issue underlying
the present motion] CLAIM OF NEWLY DISCOVERED EVIDENCE  UNDER  PARAGRAPH
(G) OF SUBDIVISION ONE OF THIS SECTION but did not do so.
  S  14.  Section  440.10  of  the  criminal procedure law is amended by
adding a new subdivision 8 to read as follows:
  8. ANY MOTION TO VACATE JUDGMENT BY A DEFENDANT MUST BE  FILED  WITHIN
ONE  YEAR OF THE DATE ON WHICH A JUDGMENT OF CONVICTION BECOMES FINAL BY
THE CONCLUSION OF DIRECT REVIEW OR THE EXPIRATION OF THE TIME FOR  SEEK-
ING  SUCH REVIEW; PROVIDED, HOWEVER, THAT A MOTION BY A DEFENDANT CLAIM-

S. 3110--A                          6

ING NEWLY DISCOVERED EVIDENCE UNDER PARAGRAPH (G) OF SUBDIVISION ONE  OF
THIS  SECTION MAY BE MADE AT ANY TIME FOLLOWING THE DISCOVERY OF THE NEW
EVIDENCE SUPPORTING THE DEFENDANT'S CLAIM OF INNOCENCE. NOTHING IN  THIS
SUBDIVISION  SHALL RELIEVE THE DEFENDANT OF THE OBLIGATION, SET FORTH IN
PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION, TO SHOW THAT HE OR SHE
HAS MADE THE MOTION TO VACATE JUDGMENT  WITH  DUE  DILIGENCE  AFTER  THE
DISCOVERY OF THE ALLEGED NEW EVIDENCE.
  S 15. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal  procedure  law,  as  amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
  (a) Where the defendant's motion requests the performance of a  foren-
sic  DNA  test on specified evidence, and upon the court's determination
that any evidence containing deoxyribonucleic acid ("DNA")  was  secured
in  connection  with  the [trial] PROCEEDINGS resulting in the judgment,
the court shall grant the application for forensic DNA testing  of  such
evidence upon its determination that if a DNA test had been conducted on
such evidence, and if the results had been admitted in the trial result-
ing  in  the  judgment,  there  exists a reasonable probability that the
verdict would have been more favorable to the defendant.  IN THE CASE OF
A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL  GRANT  THE
APPLICATION  ONLY  UPON  ITS  DETERMINATION THAT IF THE RESULTS HAD BEEN
AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE  PROBABILITY  THAT
THE  DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER-
WISE, AND IN MAKING THAT DETERMINATION, THE COURT  MAY  CONSIDER,  AMONG
OTHER  RELEVANT  INFORMATION,  THE  PROCEEDINGS  IN  CONNECTION WITH THE
DEFENDANT'S PLEA OF GUILTY.
  (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC  DNA  TEST
OF  SPECIFIED  EVIDENCE,  AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI-
SION, THE DEFENDANT MAY ALSO MOVE FOR A  COMPARISON  OF  A  DNA  PROFILE
DERIVED  FROM  EVIDENCE  RECOVERED BY LAW ENFORCEMENT TO A DNA DATABANK.
IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON, THE COURT MAY
CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE  FOR  SUCH  A
COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF THIS PART,
BUT  UNJUSTIFIABLY  FAILED  TO DO SO. IF THE COURT GRANTS THE MOTION FOR
SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC FORENSIC  LABO-
RATORY  TO  ARRANGE  FOR  SUCH  PROFILE  TO BE ENTERED INTO AND SEARCHED
AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS TO THE EXTENT  AND  IN  A
MANNER  CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS GOVERNING
SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES  FOR  FORENSIC
DNA  ANALYSIS MUST BE GENERATED AND REQUIREMENTS FOR SEARCHING AND STOR-
AGE IN THE DATABANK IN QUESTION.  IF SUCH A DATABANK SEARCH REVEALS THAT
THE DNA DERIVED FROM EVIDENCE RECOVERED BY  LAW  ENFORCEMENT  MATCHES  A
PROFILE  IN  THE  DATABANK,  THE DEFENDANT SHALL BE NOTIFIED OF THE FACT
THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT SHALL GRANT
REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE  APPROPRIATE
INVESTIGATIVE STEPS.  NOTHING IN THIS ARTICLE SHALL BE DEEMED TO ALLOW A
DEFENDANT  TO  OBTAIN AN ORDER REQUIRING COLLECTION OF A DNA SAMPLE FROM
ANY OTHER PERSON.
  S 16. Section 440.30 of the  criminal  procedure  law  is  amended  by
adding a new subdivision 8 to read as follows:
  8.  AT  ANY  TIME  AFTER THE ENTRY OF A JUDGMENT, IF THE PEOPLE BECOME
AWARE OF EVIDENCE THAT SUBSTANTIALLY  TENDS  TO  EXONERATE  A  CONVICTED
DEFENDANT  AND WAS NOT PREVIOUSLY KNOWN TO THE DEFENSE, THE PEOPLE SHALL
NOTIFY THE COURT OF THE EXISTENCE OF SUCH EVIDENCE. UPON RECEIPT OF SUCH
NOTIFICATION, THE COURT SHALL NOTIFY THE DEFENDANT TO  THE  SAME  EFFECT
AND,  IF  APPROPRIATE, APPOINT DEFENSE COUNSEL SO THAT THE DEFENDANT MAY

S. 3110--A                          7

SEEK ANY APPROPRIATE REMEDY UNDER THIS  ARTICLE.  THE  PEOPLE  MAY  MAKE
NOTIFICATION  TO A COURT PURSUANT TO THIS SUBDIVISION WITHOUT TAKING THE
POSITION THAT THE DEFENDANT WAS IN FACT INNOCENT AND, IF  THE  DEFENDANT
MOVES  FOR  RELIEF UNDER THIS ARTICLE, THE PEOPLE MAY TAKE ANY POSITION,
INCLUDING CONSENT OR OPPOSITION,  AS  TO  SUCH  MOTION.  THE  COURT  MAY
CONSIDER,  BUT  NEED  NOT GRANT, THE DEFENDANT'S RELEASE ON BAIL PENDING
THE DETERMINATION OF A MOTION MADE FOLLOWING SUCH A NOTIFICATION.
  S 17. The section heading of section 440.40 of the criminal  procedure
law is amended and a new subdivision 7 is added to read as follows:
  Motion to set aside sentence OR TO VACATE JUDGMENT; by people.
  7.  AT ANY TIME AFTER THE ENTRY OF A JUDGMENT, THE PEOPLE MAY, IN LIEU
OF THE NOTIFICATION PROCEDURES SET FORTH IN SUBDIVISION EIGHT OF SECTION
440.30 OF THIS  ARTICLE,  MOVE  TO  VACATE  A  DEFENDANT'S  JUDGMENT  OF
CONVICTION  UPON  THE  GROUND THAT THE DEFENDANT IS ACTUALLY INNOCENT OF
THE CHARGES UNDERLYING THE JUDGMENT. IN SUCH A MOTION, THE PEOPLE  SHALL
SET  FORTH  EVIDENTIARY  FACTS  AND INFERENCES SUPPORTING THE CONTENTION
THAT THE DEFENDANT IS INNOCENT. UPON RECEIPT OF SUCH A MOTION, THE COURT
SHALL ORDER THAT THE DEFENDANT BE  PRODUCED  BEFORE  THE  COURT  WITHOUT
DELAY.  AT  SUCH  A  COURT APPEARANCE, THE COURT MAY SUMMARILY GRANT THE
MOTION BASED ON THE ALLEGATIONS  IN  THE  PEOPLE'S  MOTION  AND  IN  ANY
RESPONSIVE PAPERS FILED ON THE DEFENDANT'S BEHALF, AND BASED ON ANY ORAL
ARGUMENTS  MADE ON THE MOTION. IF THE COURT DOES NOT SUMMARILY GRANT THE
MOTION: (A) IT MUST APPOINT COUNSEL FOR THE DEFENDANT IF  THE  DEFENDANT
IS  NOT  ALREADY  REPRESENTED BY COUNSEL, (B) IT MUST CONSIDER, BUT NEED
NOT GRANT, A DEFENDANT'S RELEASE ON BAIL PENDING  THE  DETERMINATION  OF
THE MOTION, AND (C) IT MUST GRANT A PROMPT HEARING, AT WHICH THE PARTIES
MAY  CALL WITNESSES AND OFFER DOCUMENTARY EVIDENCE, BEFORE RENDERING ITS
DECISION TO GRANT OR DENY THE MOTION. IF THE COURT DENIES THE MOTION, IT
SHALL SET FORTH FINDINGS OF FACTS AND CONCLUSIONS OF LAW SUPPORTING  ITS
DECISION.
  S 18. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
  4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A
SENTENCE  OF  PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED
OF AN OFFENSE SPECIFIED IN SUBDIVISION SEVEN  OF  SECTION  NINE  HUNDRED
NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATO-
RY  CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS
REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW.
  S 19. Paragraph (b) of subdivision 3 and paragraph (b) of  subdivision
5 of section 8-b of the court of claims act, as added by chapter 1009 of
the laws of 1984, are amended to read as follows:
  (b) (i) he has been pardoned upon the ground of innocence of the crime
or  crimes  for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed  or  vacated,
and  the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he  was  not  retried
and  the accusatory instrument dismissed; provided that the judgement of
conviction was reversed or vacated, and the  accusatory  instrument  was
dismissed,  on  any  of the following grounds: (A) paragraph [(a),] (b),
(c), [(e)] or (g) of subdivision one of section 440.10 of  the  criminal
procedure  law;  or  (B)  subdivision  one (where based upon grounds set
forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where  the
count  dismissed  was the sole basis for the imprisonment complained of)
or five of section 470.20 of the criminal procedure law; or (C) compara-
ble provisions of the former code of criminal  procedure  or  subsequent
law;  or  (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE CRIMINAL PROCE-

S. 3110--A                          8

DURE LAW; OR (E) the statute, or application thereof, on which the accu-
satory instrument was based violated  the  constitution  of  the  United
States  or  the  state of New York; OR (F) THE CLAIMANT'S CONVICTION WAS
VACATED  UNDER  ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH,
BUT WHOSE  APPLICATION  TO  CLAIMANT'S  CONVICTION  INVOLVED  FACTS  AND
CIRCUMSTANCES  THAT  DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE;
AND PROVIDED THAT, IN CASES WHERE THE CONVICTION MAY HAVE  BEEN  VACATED
ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS
PARAGRAPH,  THE  COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE
CRIMINAL COURT VACATING THE  CONVICTION  BASED  ONLY  ON  A  GROUND  NOT
ENUMERATED IN THIS PARAGRAPH; and
  (b) (i) he has been pardoned upon the ground of innocence of the crime
or  crimes  for which he was sentenced and which are the grounds for the
complaint; or (ii) his judgment of conviction was reversed  or  vacated,
and  the accusatory instrument dismissed or, if a new trial was ordered,
either he was found not guilty at the new trial or he  was  not  retried
and  the accusatory instrument dismissed; provided that the judgement of
conviction was reversed or vacated, and the  accusatory  instrument  was
dismissed,  on  any  of the following grounds: (A) paragraph [(a),] (b),
(c), [(e)] or (g) of subdivision one of section 440.10 of  the  criminal
procedure  law;  or  (B)  subdivision  one (where based upon grounds set
forth in item (A) [hereof] OF THIS PARAGRAPH),  two,  three  (where  the
count  dismissed  was the sole basis for the imprisonment complained of)
or five of section 470.20 of the criminal procedure law; or (C) compara-
ble provisions of the former code of criminal  procedure  or  subsequent
law;  or  (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE CRIMINAL PROCE-
DURE LAW; OR (E) the statute, or application thereof, on which the accu-
satory instrument was based violated  the  constitution  of  the  United
States  or  the  state of New York; OR (F) THE CLAIMANT'S CONVICTION WAS
VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN  THIS  PARAGRAPH,
BUT  WHOSE  APPLICATION  TO  CLAIMANT'S  CONVICTION  INVOLVED  FACTS AND
CIRCUMSTANCES THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION  OF  INNOCENCE;
AND  PROVIDED  THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED
ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS
PARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION  OF  THE
CRIMINAL  COURT  VACATING  THE  CONVICTION  BASED  ONLY  ON A GROUND NOT
ENUMERATED IN THIS PARAGRAPH; and
  S 20. This act shall take effect November 1, 2010; provided,  however,
that  the  amendments to paragraph (a) of subdivision 3 of section 995-c
of the executive law, made by section two of this act,  shall  apply  to
any person who is convicted of a crime, adjudicated a youthful offender,
incarcerated  or  subject to probation or parole supervision, or subject
to a requirement to register as a sex offender, on or after such  effec-
tive  date;  provided,  further, that the amendments to paragraph (a) of
subdivision 4 of section 30.10 of the criminal procedure  law,  made  by
section  nine  of this act, shall apply to offenses where the applicable
period of limitation, including any extension of such period of  limita-
tion  pursuant  to  law  in  effect  before such effective date, has not
expired on such effective date; and provided,  further,  that,  sections
six,  seven  and  eight of this act shall take effect April 1, 2011, and
shall expire and be deemed repealed September 1, 2014.

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Senate Bill S3110

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Sponsored By

Dean G. Skelos

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

John A. DeFrancisco

2009-S3110 - Details

2009-S3110 - Summary

2009-S3110 - Sponsor Memo

2009-S3110 - Bill Text download pdf

co-Sponsors

John A. DeFrancisco

2009-S3110A (ACTIVE) - Details

2009-S3110A (ACTIVE) - Summary

2009-S3110A (ACTIVE) - Sponsor Memo

2009-S3110A (ACTIVE) - Bill Text download pdf

Comments