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

                                  4668

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- 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 establishing the mini-
  mum period of time that forensic samples should be retained by  inves-
  tigating authorities; in relation to appointments to the commission on
  forensic  science; to amend the judiciary law, in relation to creating
  the state commission for the integrity of the criminal justice system,
  as an independent agency, and providing for such  commission's  powers
  and  duties;  to  amend  the  criminal  procedure  law, in relation to
  special fictitious name indictments; to amend the  executive  law,  in
  relation  to  requests  for certain DNA test comparisons; to amend the
  criminal procedure law, in relation to forensic DNA testing; to  amend
  the  court  of claims act, in relation to claims for unjust conviction
  and imprisonment; to amend the executive law and the  criminal  proce-
  dure law, in relation to DNA testing, confidentiality, data collection
  and  record  keeping;  to  amend the state finance law, in relation to
  establishing the DNA evidence fund; in relation  to  establishing  the
  innocence  research  project  program; to amend the criminal procedure
  law, in relation to electronic recordings of  interrogations;  and  to
  amend the executive law, in relation to defining a designated offender

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

  Section 1. Subparagraph (ix) of paragraph  (b)  of  subdivision  9  of
section  995-b of the executive law, as added by chapter 737 of the laws
of 1994, is amended and a new paragraph (c) is added to read as follows:
  (ix) such policy shall provide for the mutual exchange, use and  stor-
age of DNA records with the system of DNA identification utilized by the
federal  bureau of investigation provided that the commission determines
that such exchange, use and storage are consistent with  the  provisions
of this article and applicable provisions of law[.]; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08948-02-9

              

S. 4668                             2

  (C)  WITHIN  ONE  YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH, DETER-
MINE, CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE  MINIMUM  PERIOD  OF
TIME THAT FORENSIC SAMPLES OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERI-
AL,  OBTAINED  IN  CONNECTION  WITH  THE  FORENSIC  EXAMINATION OF CRIME
SCENES,  SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME OR
SPECIFIED EVENT OR EVENTS, IF ANY,  AFTER  WHICH,  CONSISTENT  WITH  THE
INTEREST  OF  ALL  PERSONS  AND  LAW  ENFORCEMENT,  SUCH  SAMPLES MAY BE
DESTROYED, AND DETERMINE STANDARDS FOR THE  CATALOGING  AND  MAINTAINING
RECORDS  OF SUCH SAMPLES.  PENDING THE PROMULGATION OF A POLICY ADDRESS-
ING THE ISSUES SET FORTH IN THIS PARAGRAPH, THE COMMISSION MAY ADOPT  AN
INTERIM  POLICY  MANDATING THE PRESERVATION BY INVESTIGATING AUTHORITIES
OF FORENSIC SAMPLES OF  BLOOD,  TISSUE  AND  OTHER  BIOLOGICAL  MATERIAL
OBTAINED IN CONNECTION WITH THE FORENSIC EXAMINATION OF CRIME SCENES.
  S  2. Subdivision 1 of section 995-a of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
  1. There is hereby created in the executive department, the commission
on forensic science, which shall consist  of  the  following  [fourteen]
SIXTEEN  members:    (a)  the  commissioner  of the division of criminal
justice services who shall be chair of the commission  and  the  commis-
sioner  of  the  department  of health or his or her designee, who shall
serve as an ex-officio member of the commission;
  (b) [twelve] FOURTEEN members appointed by the governor.
  S 3. Paragraph (i) of subdivision 2 of section 995-a of the  executive
law,  as added by chapter 737 of the laws of 1994, is amended, paragraph
(j) is relettered paragraph (k) and a new paragraph (j) is added to read
as follows:
  (i) two members shall  be  members-at-large,  one  of  whom  shall  be
appointed  upon  the  recommendation  of  the temporary president of the
senate, and one of whom shall be appointed upon  the  recommendation  of
the speaker of the assembly; [and]
  (J)  TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL  BE
A  CRIME  VICTIMS  ADVOCATE,  AND  ONE SUCH PERSON SHALL BE AN EXPERT IN
BIOMEDICAL ETHICS; AND
  S 4. Article 23 and sections 860 and 861  of  the  judiciary  law,  as
renumbered by chapter 840 of the laws of 1983, are renumbered article 24
and  sections  1000  and  1001  and a new article 23 is added to read as
follows:
                                ARTICLE 23
                   STATE COMMISSION FOR THE INTEGRITY
                     OF THE CRIMINAL JUSTICE SYSTEM
SECTION 900. DEFINITION.
        901. STATE COMMISSION FOR THE INTEGRITY OF THE CRIMINAL  JUSTICE
               SYSTEM.
        902. PURPOSE AND CONDUCT OF THE COMMISSION.
        903. POWERS AND DUTIES.
        904. USE OF REPORTS.
  S  900.  DEFINITION.  AS USED IN THIS ARTICLE, "COMMISSION" SHALL MEAN
THE STATE COMMISSION FOR THE INTEGRITY OF THE  CRIMINAL  JUSTICE  SYSTEM
ESTABLISHED PURSUANT TO SECTION NINE HUNDRED ONE OF THIS ARTICLE.
  S  901.  STATE  COMMISSION  FOR  THE INTEGRITY OF THE CRIMINAL JUSTICE
SYSTEM. 1. THE STATE  COMMISSION  FOR  THE  INTEGRITY  OF  THE  CRIMINAL
JUSTICE  SYSTEM  IS  HEREBY  ESTABLISHED AS AN INDEPENDENT AGENCY OF THE
STATE. THE COMMISSION SHALL CONSIST OF TEN MEMBERS AS FOLLOWS:
  (A) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES;
  (B) FOUR MEMBERS APPOINTED BY THE GOVERNOR, OF WHOM:

S. 4668                             3

  (I) ONE SHALL BE A REPRESENTATIVE OF A LAW ENFORCEMENT AGENCY,
  (II)  ONE SHALL BE A REPRESENTATIVE OF THE PUBLIC CRIMINAL DEFENSE BAR
OR PRIVATE CRIMINAL DEFENSE BAR WHO SHALL BE APPOINTED UPON  THE  RECOM-
MENDATION  OF  AN  ORGANIZATION  WITH MORE THAN SEVEN HUNDRED FIFTY DUES
PAYING MEMBERS REPRESENTING SUCH PUBLIC OR PRIVATE DEFENSE SERVICES,
  (III) ONE SHALL BE A REPRESENTATIVE  OF  VICTIMS  RIGHTS  ADVOCACY  OR
SERVICES ORGANIZATIONS, AND
  (IV) ONE SHALL BE A REPRESENTATIVE OF THE FORENSIC SCIENCE FIELD;
  (C)  A  MEMBER APPOINTED BY THE ATTORNEY GENERAL WHO SHALL BE A REPRE-
SENTATIVE OF PROSECUTION SERVICES;
  (D) TWO MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF  APPEALS,
OF WHOM:
  (I)  ONE SHALL BE A RETIRED JUDGE OR JUSTICE OF A NEW YORK STATE COURT
OF RECORD, AND
  (II) ONE SHALL BE A PROFESSOR OF LAW OR A RETIRED FULL TIME  PROFESSOR
OF  LAW  WHO  HAS  TAUGHT  LAW  SCHOOL COURSES IN CRIMINAL LAW, CRIMINAL
PROCEDURE, CONSTITUTIONAL LAW, OR EVIDENCE AT AN ACCREDITED  POST-GRADU-
ATE COLLEGE IN NEW YORK STATE;
  (E) ONE MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE, WHO
SHALL BE A MEMBER OF THE PUBLIC-AT-LARGE; AND
  (F)  ONE MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY, WHO SHALL BE
A MEMBER OF THE PUBLIC-AT-LARGE.
  2. THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL SERVE AN INDEF-
INITE TERM. THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE A TERM  OF
FOUR  YEARS.  THE  RETIRED JUDGE OR JUSTICE APPOINTED BY THE CHIEF JUDGE
SHALL SERVE A TERM OF THREE YEARS.  THE  PROFESSOR  OF  LAW  OR  RETIRED
PROFESSOR  OF LAW APPOINTED BY THE CHIEF JUDGE SHALL SERVE A TERM OF TWO
YEARS. THE MEMBERS APPOINTED BY  THE  ATTORNEY  GENERAL,  THE  TEMPORARY
PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY SHALL EACH SERVE
A  TERM OF TWO YEARS.  EACH OF THE MEMBERS OF THE COMMISSION, EXCEPT THE
COMMISSIONER OF CRIMINAL JUSTICE SERVICES,  APPOINTED  THEREAFTER  SHALL
SERVE  A TERM OF FIVE YEARS.  EVERY VACANCY OCCURRING PRIOR TO THE EXPI-
RATION OF A MEMBER'S TERM SHALL BE FILLED FOR THE REMAINDER OF SUCH TERM
IN THE MANNER PROVIDED FOR THE ORIGINAL APPOINTMENT TO SUCH  TERM.  UPON
THE  EXPIRATION  OF  THE TERM OF A MEMBER OF THE COMMISSION, SUCH MEMBER
SHALL CONTINUE TO SERVE UNTIL HIS OR HER SUCCESSOR IS APPOINTED.
  3. THE COMMISSION SHALL ELECT A CHAIR FROM AMONGST ITS  MEMBERS  BY  A
MAJORITY VOTE OF THE MEMBERS THEREOF.
  4.  NO MEMBER OF THE COMMISSION SHALL BE DISQUALIFIED FROM HOLDING ANY
PUBLIC OFFICE OR EMPLOYMENT, NOR SHALL HE OR SHE FORFEIT ANY SUCH OFFICE
OR EMPLOYMENT, BY REASON OF HIS OR  HER  APPOINTMENT  PURSUANT  TO  THIS
SECTION, AND THE MEMBERS OF THE COMMISSION SHALL BE REQUIRED TO TAKE AND
FILE OATHS OF OFFICE BEFORE SERVING ON THE COMMISSION.
  5.  THE  COMMISSION SHALL MEET AT LEAST FOUR TIMES EACH YEAR AT PREDE-
TERMINED TIMES AND LOCATIONS ANNOUNCED IN ADVANCE,  AND  AT  SUCH  OTHER
TIMES  AS  THE  CHAIR  OF  THE  COMMISSION OR FOUR OR MORE MEMBERS SHALL
DETERMINE TO BE NECESSARY.
  6. FOR ANY ACTION AUTHORIZED BY THIS  ARTICLE,  FIVE  MEMBERS  OF  THE
COMMISSION  SHALL  CONSTITUTE A QUORUM AND, EXCEPT AS OTHERWISE PROVIDED
IN SUBDIVISIONS THREE AND FIVE OF THIS SECTION, THE CONCURRENCE  OF  SIX
MEMBERS OF THE COMMISSION SHALL BE NECESSARY.
  7.  THE  MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
COMPENSATION, BUT SHALL BE ENTITLED  TO  RECEIVE  ACTUAL  AND  NECESSARY
EXPENSES  INCURRED  IN  THE  DISCHARGE  OF THEIR DUTIES PURSUANT TO THIS
ARTICLE.

S. 4668                             4

  S 902. PURPOSE AND CONDUCT OF THE COMMISSION.   THE  COMMISSION  SHALL
REVIEW ANY CRIMINAL OR JUVENILE CASE INVOLVING A WRONGFUL CONVICTION AND
RECOMMEND  REFORMS  TO  LESSEN  THE  LIKELIHOOD  OF  A  SIMILAR WRONGFUL
CONVICTION OCCURRING IN THE FUTURE.
  WHENEVER  A  PERSON WHO HAS BEEN CONVICTED OF A CRIME OR ADJUDICATED A
YOUTHFUL OFFENDER IS SUBSEQUENTLY DETERMINED  TO  BE  INNOCENT  OF  SUCH
CRIME  OR OFFENSE AND EXONERATED, THE COMMISSION SHALL CONDUCT AN INVES-
TIGATION, HOLD HEARINGS ON AND  MAKE  FINDINGS  OF  FACT  REGARDING  THE
WRONGFUL  CONVICTION  IN  ORDER  TO DETERMINE THE CAUSE OR CAUSES OF THE
WRONGFUL CONVICTION.
  UPON THE COMPLETION OF SUCH  PROCESS,  THE  COMMISSION,  WITHIN  SIXTY
DAYS,  SHALL  ISSUE A PRELIMINARY WRITTEN REPORT OF ITS FINDINGS OF FACT
AND CONCLUSIONS, AND ANY RECOMMENDATIONS TO PREVENT WRONGFUL CONVICTIONS
FROM OCCURRING UNDER SIMILAR CIRCUMSTANCES IN THE FUTURE.    WITHIN  ONE
HUNDRED  TWENTY  DAYS AFTER ISSUING SUCH PRELIMINARY REPORT, THE COMMIS-
SION SHALL ISSUE ITS REPORT AND RECOMMENDATIONS CONCERNING  THE  MATTER.
SUCH  REPORT  AND RECOMMENDATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC,
AND SHALL BE DELIVERED TO THE GOVERNOR, ATTORNEY GENERAL, CHIEF JUDGE OF
THE COURT OF APPEALS, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF  THE
ASSEMBLY,  AND  TO  ANY  GOVERNMENTAL UNIT OR AGENCY THAT THE COMMISSION
FINDS MAY HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDICATION OF THE
WRONGFUL CONVICTION. THE COMMISSION SHALL ALSO MAKE AVAILABLE AN  ANNUAL
REPORT  DETAILING, AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR FORMAL
AND INFORMAL INVESTIGATION, THE NUMBER OF COMPLETED  INVESTIGATIONS  AND
THE STATUS OF ON-GOING OR PENDING INVESTIGATIONS.
  S  903.  POWERS  AND  DUTIES. THE COMMISSION SHALL HAVE THE POWERS AND
DUTIES TO:
  1. ESTABLISH ITS OWN REASONABLE RULES AND  PROCEDURES  CONCERNING  THE
CONDUCT  OF  ITS  MEETINGS AND OTHER AFFAIRS RELATED TO IMPLEMENTING THE
PROVISIONS OF THIS ARTICLE;
  2. EMPLOY AND REMOVE SUCH OFFICERS, INVESTIGATORS AND EMPLOYEES AS  IT
MAY DEEM NECESSARY FOR THE PERFORMANCE OF ITS POWERS AND DUTIES PURSUANT
TO  THIS  ARTICLE,  AND  FIX  THEIR COMPENSATION WITHIN THE AMOUNTS MADE
AVAILABLE THEREFOR;
  3. CONDUCT INVESTIGATIONS AND HEARINGS, ADMINISTER OATHS  OR  AFFIRMA-
TIONS,  SUBPOENA  WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
OATH OR AFFIRMATION, REQUIRE PRODUCTION OF ANY BOOKS, RECORDS, DOCUMENTS
OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO  AN  INVESTI-
GATION,  AND MAY DESIGNATE ANY OF ITS MEMBERS, OFFICERS OR INVESTIGATORS
TO EXERCISE ANY SUCH POWERS; PROVIDED, HOWEVER, NOTHING IN THIS SUBDIVI-
SION SHALL AUTHORIZE THE ISSUANCE OF A SUBPOENA OR COMPELLED QUESTIONING
OF THE TRIAL COURT JUDGE OR ANY APPELLATE  COURT  JUDGE  CONCERNING  THE
JUDGE'S MENTAL PROCESSES IN ARRIVING AT ANY DECISION IN A CASE;
  4.  REQUEST  AND  RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE OR A POLITICAL  SUBDIVI-
SION  THEREOF  OR  ANY  PUBLIC  AUTHORITY  SUCH ASSISTANCE, INFORMATION,
RECORDS AND DATA AS WILL ENABLE IT TO PROPERLY CARRY OUT ITS POWERS  AND
DUTIES;
  5.  ISSUE  PRELIMINARY REPORTS ON ANY INVESTIGATION CONDUCTED PURSUANT
TO THIS ARTICLE, WHICH PRELIMINARY REPORTS  SHALL  INCLUDE  FINDINGS  OF
FACT  AND RECOMMENDATIONS, AND INVITE ANY PARTY DIRECTLY INVOLVED IN THE
WRONGFUL CONVICTION, WHICH IS THE SUBJECT OF THE  REPORT,  TO  SUBMIT  A
REPLY  WITHIN  SIXTY  DAYS  TO THE COMMISSION CONCERNING THE FINDINGS OF
FACT AND RECOMMENDATIONS IN THE REPORT. ANY SUCH  REPLY  SHALL  BE  MADE
AVAILABLE  BY  THE COMMISSION, TOGETHER WITH ANY RESPONSE BY THE COMMIS-
SION THERETO, TO THE PARTIES LISTED IN SECTION NINE HUNDRED TWO OF  THIS

S. 4668                             5

ARTICLE  AS PART OF THE COMMISSION'S REPORT AND RECOMMENDATIONS CONCERN-
ING THE MATTER; AND
  6.  DO  ALL  OTHER  THINGS  NECESSARY  AND CONVENIENT TO CARRY OUT THE
PROVISIONS OF THIS ARTICLE.
  S 904. USE OF REPORTS. NO PRELIMINARY REPORT, REPORT OR PORTION THERE-
OF ISSUED PURSUANT TO THIS ARTICLE SHALL BE ADMITTED  INTO  EVIDENCE  OR
USED IN ANY CIVIL OR CRIMINAL CAUSE OF ACTION RELATING TO A MATTER WHICH
IS THE SUBJECT OF SUCH REPORT.
  S 5. Section 1.20 of the criminal procedure law is amended by adding a
new subdivision 44 to read as follows:
  44.  "SPECIAL  FICTITIOUS  NAME  INDICTMENT"  MEANS AN INDICTMENT OF A
PERSON WHOSE NAME IS UNKNOWN BUT WHOSE IDENTITY IS  ESTABLISHED  TO  THE
SATISFACTION  OF  A  GRAND  JURY  PURSUANT TO SUBDIVISION ONE OF SECTION
190.65 OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID  (DNA)
TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
SHALL  INCLUDE  A  FICTITIOUS NAME, SUCH AS "JOHN DOE" OR "JANE DOE", IN
PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
  S 6. Subdivision 3 of section 190.65 of the criminal procedure law  is
amended to read as follows:
  3.  Upon  voting  to  indict  a person, a grand jury must, through its
foreman or acting foreman, file an indictment with the court by which it
was impaneled.  WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT  HIS
OR  HER  IDENTITY  IS  ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC  DEOXY-
RIBONUCLEIC  ACID  (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS  NAME
INDICTMENT.  THE  AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
IN LAW FOR THE FILING OF AN INDICTMENT WHEN  THE  NAME  OF  AN  INDICTED
PERSON IS UNKNOWN.
  S  7.  Section  995-c  of the executive law is amended by adding a new
subdivision 10 to read as follows:
  10. A SUPERIOR COURT, IN RESPONSE TO A MOTION FOR SUCH COMPARISON BY A
DEFENDANT, MAY ORDER THAT DNA INFORMATION FROM A CRIME SCENE  SAMPLE  OR
SAMPLES  AND/OR FINGERPRINTS OBTAINED IN THE COURSE OF THE INVESTIGATION
OF AN ALLEGED CRIME BE CHECKED AGAINST THE DNA RECORDS MAINTAINED BY  OR
AVAILABLE  THROUGH THE STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSU-
ANT TO THIS SECTION AND THE NATIONAL DNA INDEX SYSTEM, AND  AGAINST  THE
FINGERPRINT RECORDS MAINTAINED BY OR AVAILABLE THROUGH THE STATE FINGER-
PRINT  RECORD  DATABASE  ESTABLISHED  PURSUANT  TO  SUBDIVISION SEVEN OF
SECTION EIGHT HUNDRED THIRTY-SEVEN OF  THIS  CHAPTER  AND  THE  NATIONAL
FINGERPRINT IDENTIFICATION SYSTEM, AND THAT THE RESULTS OF SUCH CHECK OR
CHECKS BE DISCLOSED TO SUCH DEFENDANT AND TO THE PROSECUTOR WHOSE JURIS-
DICTION  INCLUDES  THE LOCATION OF THE ALLEGED COMMISSION OF SUCH CRIME,
UPON A SHOWING BY THE DEFENDANT THAT SUCH AN ANALYSIS MAY BE MATERIAL TO
HIS OR HER DEFENSE AND THAT THE REQUEST IS REASONABLE.
  S 8. 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 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 INVESTIGATION OR trial 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 AVAILABLE TO  THE  DEFENDANT,

S. 4668                             6

OR THE RESULTS HAD BEEN admitted in the trial resulting in the judgment,
there  exists  a  reasonable probability that the DISPOSITION OR verdict
would have been more favorable to the defendant.
  S  9. Section 8-b of the court of claims act, as added by chapter 1009
of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws
of 2007, is amended to read as follows:
  S 8-b. Claims for unjust conviction and imprisonment. 1. The  legisla-
ture  finds  and  declares  that  innocent persons who have been wrongly
convicted of crimes and subsequently imprisoned have been frustrated  in
seeking  legal  redress  due  to  a variety of substantive and technical
obstacles in the law and that such  persons  should  have  an  available
avenue  of  redress  over  and  above the existing tort remedies to seek
compensation for damages. The legislature intends by  enactment  of  the
provisions  of  this  section that those innocent persons who can demon-
strate  by  clear  and  convincing  evidence  that  they  were  unjustly
convicted  and  imprisoned be able to recover damages against the state.
In light of the substantial burden of proof that must be carried by such
persons, it is the intent of the legislature that the court, in exercis-
ing its discretion as permitted by law regarding the weight and admissi-
bility of evidence submitted pursuant to this  section,  shall,  in  the
interest  of  justice,  give  due consideration to difficulties of proof
caused by the passage of time, the death or unavailability of witnesses,
the destruction of evidence or other factors not caused by such  persons
or those acting on their behalf.
  2.  Any  person  convicted and subsequently imprisoned for one or more
felonies or misdemeanors against the state which he did not commit  may,
under  the  conditions hereinafter provided, present a claim for damages
against the state. In scheduling court appearances and filing deadlines,
the court shall give docket priority at each stage of the proceeding  to
such  claims  for  damages  under  this  subdivision  where the claimant
asserts proof of innocence through DNA evidence. Any adjournments grant-
ed in the course of such a proceeding should be for as short a  time  as
is practicable.
  3.  In  order to present the claim for unjust conviction and imprison-
ment, claimant must establish by documentary evidence that:
  (a) he has been convicted of one  or  more  felonies  or  misdemeanors
against  the state and subsequently sentenced to a term of imprisonment,
and has served all or any part of the sentence; 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), (F) or (g) of subdivision one of section 440.10 of the crimi-
nal 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) the statute, or application thereof, on which the accusatory
instrument was based violated the constitution of the United  States  or
the  state  of  New York; OR (E)   THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN ITEMS (A), (B),  (C)  AND

S. 4668                             7

(D) OF THIS SUBPARAGRAPH, 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 ITEMS (A), (B), (C) AND (D) OF THIS  SUBPARAGRAPH,
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
ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH; and
  (c)  his  claim  is  not  time-barred by the provisions of subdivision
seven of this section.
  4. The claim shall state facts in  sufficient  detail  to  permit  the
court  to  find  that  claimant is likely to succeed at trial in proving
that (a) he did not commit any of the acts  charged  in  the  accusatory
instrument or his acts or omissions charged in the accusatory instrument
did not constitute a felony or misdemeanor against the state, and (b) he
did  not  by  his  own  conduct cause or bring about his conviction. The
claim shall be verified by the claimant. If the court finds after  read-
ing  the claim that claimant is not likely to succeed at trial, it shall
dismiss the claim, either on its own motion or  on  the  motion  of  the
state.
  5.  In order to obtain a judgment in his favor, claimant must prove by
clear and convincing evidence that:
  (a) he has been convicted of one  or  more  felonies  or  misdemeanors
against  the state and subsequently sentenced to a term of imprisonment,
and has served all or any part of the sentence; 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), (F) or (g) of subdivision one of section 440.10 of the crimi-
nal 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) the statute, or application thereof, on which the accusatory
instrument was based violated the constitution of the United  States  or
the  state  of  New York; OR (E)   THE CLAIMANT'S CONVICTION WAS VACATED
UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN ITEMS (A), (B),  (C)  AND
(D) OF THIS SUBPARAGRAPH, 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 ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH,
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
ITEMS (A), (B), (C) AND (D) OF THIS SUBPARAGRAPH; and
  (c) he did not commit any  of  the  acts  charged  in  the  accusatory
instrument or his acts or omissions charged in the accusatory instrument
did  not  constitute a felony or misdemeanor against the state, PROVIDED
THAT, WHERE ONE INDICTMENT CONTAINS MULTIPLE COUNTS ARISING  FROM  SEPA-
RATE COMPLAINTS OR INCIDENTS, THE COURT SHALL CONSIDER ANY CLAIM RELATED

S. 4668                             8

TO  SPECIFIED  COUNTS  IN  THE INDICTMENT ARISING OUT OF ONLY ONE OF THE
COMPLAINTS OR INCIDENTS; and
  (d) he did not by his own conduct cause or bring about his conviction.
  6.  If the court finds that the claimant is entitled to a judgment, it
shall award damages in such sum of money as the  court  determines  will
fairly and reasonably compensate him.
  7.  Any  person  claiming  compensation  under this section based on a
pardon that was granted before the effective date of this section or the
dismissal of an accusatory instrument that occurred before the effective
date of this section shall file his claim within  two  years  after  the
effective  date  of this section. Any person claiming compensation under
this section based on a pardon that was granted on or after  the  effec-
tive  date  of this section or the dismissal of an accusatory instrument
that occurred on or after the effective date of this section shall  file
his claim within two years after the pardon or dismissal.
  S  10.  Section  995-b of the executive law is amended by adding a new
subdivision 14 to read as follows:
  14. THE COMMISSION SHALL REVIEW THE CONFIDENTIALITY  SAFEGUARDS  WHICH
ARE  MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER INFORMATION
FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
SHALL DETERMINE WHETHER ANY ADDITIONAL  CONFIDENTIALITY  SAFEGUARDS  ARE
NECESSARY  WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO ISSUE
A REPORT TO THE MAJORITY LEADER OF THE SENATE AND  THE  SPEAKER  OF  THE
ASSEMBLY  WHICH  DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND THE REASONS
FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
SUCH SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT  SHALL
ALSO  RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES, FOLLOWING
THE ENCODING OF INFORMATION FROM SUCH SAMPLES INTO THE STATE  DNA  IDEN-
TIFICATION  INDEX,  SHOULD  BE INITIATED OR WHETHER, ALTERNATIVELY, SUCH
SAMPLES SHALL CONTINUE TO BE MAINTAINED.
  S 11. Subdivision 2 of section 995-c of the executive law, as added by
chapter 737 of the laws of 1994, is amended to read as follows:
  2. (A) Following the review and  approval  of  the  plan  by  the  DNA
subcommittee  and  the  commission  and the filing of such plan with the
speaker of the assembly and the temporary president of the  senate,  the
commissioner of criminal justice services is hereby authorized to estab-
lish  a  computerized  state  DNA  identification  index pursuant to the
provisions of this article.  NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
LATION OF DNA IDENTIFICATION PROFILES MAY BE MAINTAINED  IN  THIS  STATE
PROVIDED,  HOWEVER,  THAT  THIS  PROHIBITION SHALL NOT BE INTERPRETED TO
PROHIBIT ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED  FROM
CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
  (B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
  S  12.   Paragraph (b) of subdivision 9 of section 995-c of the execu-
tive law, as added by chapter 524 of the laws of 2002,  is  amended  and
two new paragraphs (c) and (d) are added to read as follows:
  (b)  As  prescribed in this paragraph, if an individual, either volun-
tarily or pursuant to a warrant or order of  a  court,  has  provided  a
sample  for  DNA  testing in connection with the investigation or prose-
cution of a crime and (i) no  criminal  action  against  the  individual
relating  to  such  crime  was  commenced within the period specified by
section 30.10 of the criminal procedure law, or (ii) a  criminal  action
was  commenced  against  the  individual  relating  to  such crime which

S. 4668                             9

resulted in a complete acquittal, OR A DISMISSAL AND THE MATTER WILL NOT
BE TRIED OR RETRIED, or (iii) a criminal action against  the  individual
relating  to  such  crime resulted in a conviction that was subsequently
reversed  or  vacated,  or for which the individual was granted a pardon
pursuant to article two-A of this chapter, such individual may apply  to
the  supreme  court or the court in which the judgment of conviction was
originally entered for an order directing the  expungement  of  any  DNA
record and any samples, analyses, or other documents relating to the DNA
testing of such individual in connection with the investigation or pros-
ecution of such crime. A copy of such application shall be served on the
district  attorney  and an order directing expungement may be granted if
the court finds that the individual has satisfied the conditions of  one
of the subparagraphs of this paragraph; that if a judgment of conviction
was  reversed  or  vacated,  all  appeals  relating  thereto  have  been
concluded and the individual will not be retried, or, if a  retrial  has
occurred,  the  trier of fact has rendered a verdict of complete acquit-
tal, and that expungement will not adversely affect the investigation or
prosecution of some other person or persons for the crime.   NOTHING  IN
THIS  PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN  THE  INTERESTS
OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
ing the expungement of any DNA record and any samples, analyses or other
documents relating to the DNA testing of such individual is issued, such
record  and  any  samples,  analyses,  or  other documents shall, at the
discretion of the possessor thereof, be destroyed or  returned  to  such
individual  or  to the attorney who represented him or her in connection
with the application for the order of expungement. THE PERSON DESTROYING
OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND  OTHER  DOCUMENTS  SHALL
MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
RETURN  AND  IDENTIFYING  THE  PERSON OR PERSONS DESTROYING OR RETURNING
SAME.  THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR  TO  THE  ATTORNEY  WHO
REPRESENTED  HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
OF EXPUNGEMENT.
  (C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH  THE
INVESTIGATION  OR  PROSECUTION  OF  A CRIME, OTHER THAN IN RESPONSE TO A
DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND  THREE  OF  THIS
SECTION,  OR  IF  A  SAMPLE  FOR DNA TESTING HAS OTHERWISE COME INTO THE
CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN  AGENT  THEREOF,
AND  THE  DNA  PROFILE  DERIVED  FROM  SUCH  SAMPLE DOES NOT MATCH A DNA
PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN  CONNECTION  WITH
THE  INVESTIGATION  OR  PROSECUTION  OF  A  CRIMINAL  ACT OR ACTS, EVERY
RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA  TESTING
OF  SUCH  SAMPLE  SHALL,  AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE  WITH  RESPECT  TO  THE
INVESTIGATION,  PROSECUTION  AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE  LINKED
TO  SUCH  SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
CRIME HAS CONCLUDED, WHICHEVER  FIRST  OCCURS,  SUCH  RECORDS,  SAMPLES,
ANALYSES  AND  OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR

S. 4668                            10

THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED  IN    A
MANNER  CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPH (II), (IV) OR (V)
OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 160.55  OF  THE  CRIMINAL
PROCEDURE LAW.
  (II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
ANALYSES  OR  OTHER  DOCUMENTS  IN  ACCORDANCE WITH THIS PARAGRAPH SHALL
MAINTAIN A RECORD  CERTIFYING  THE  DATE  AND  MANNER  OF  SUCH  RETURN,
DESTRUCTION  OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
DESTROYING OR SEALING SAME.  THE PERSON RETURNING, DESTROYING OR SEALING
SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON  WHO  SUBMITTED  THE
SAMPLE.
  (III)  THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
APPLY TO DNA RECORDS, SAMPLES, ANALYSES  AND  OTHER  DOCUMENTS  OBTAINED
FROM  THE  FORENSIC  EXAMINATION  OF CRIME SCENE EVIDENCE, WHERE THE DNA
PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE  DNA
PROFILE OF A KNOWN PERSON.
  (D)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED  OR  SEALED,
AND  MAY  BE  INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF  THIS  PARA-
GRAPH,  THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
CLE.  ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED  IN  THE  STATE  DNA
IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
  S  13. Section 995-d of the executive law is amended by adding two new
subdivisions 3 and 4 to read as follows:
  3. IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION, ANY INDIVID-
UAL DNA PROFILE OBTAINED OR MAINTAINED BY A STATE, COUNTY OR  LOCAL  LAW
ENFORCEMENT  AGENCY,  OR  AN  AGENT  THEREOF,  FROM  A BIOLOGICAL SAMPLE
SUBMITTED IN THE MANNER DESCRIBED IN PARAGRAPH (B) OR (C) OF SUBDIVISION
NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  MAY  BE
COMPARED  INDIVIDUALLY  OR  VIA COMPUTERIZED DATABASE TO ONE OR MORE DNA
PROFILES MAINTAINED PURSUANT TO OR IN ACCORDANCE WITH SUBDIVISIONS  ONE,
TWO  AND  THREE  OF  SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE,
AND/OR MAY BE INDIVIDUALLY COMPARED BY SUCH STATE, COUNTY OR  LOCAL  LAW
ENFORCEMENT  AGENCY,  OR  AN  AGENT THEREOF, TO ONE OR MORE DNA PROFILES
DEVELOPED FROM THE FORENSIC EXAMINATION OF CRIME SCENES IN ONE  OR  MORE
CASES UNDER INVESTIGATION.
  (A)  IF  SUCH INDIVIDUAL DNA PROFILE MATCHES THE DNA PROFILE DEVELOPED
FROM THE FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE OR MORE
CASES UNDER INVESTIGATION, AND/OR ONE OR MORE  DNA  PROFILES  MAINTAINED
PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND THREE OF SECTION NINE HUNDRED
NINETY-FIVE-C OF THIS ARTICLE, SUCH  INDIVIDUAL  DNA  PROFILE,  TOGETHER
WITH  THE BIOLOGICAL MATERIAL FROM WHICH SUCH INDIVIDUAL DNA PROFILE WAS
DEVELOPED, MAY, AS APPROPRIATE PURSUANT TO APPLICABLE LAWS AND RULES  OF
EVIDENCE  AND  CONSISTENT  WITH THIS ARTICLE, BE USED IN CONNECTION WITH
THE INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF SUCH PERSON.
  (B) IF SUCH INDIVIDUAL DNA PROFILE DOES  NOT  MATCH  THE  DNA  PROFILE
DEVELOPED  FROM  FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE
OR MORE CASES UNDER INVESTIGATION, AND/OR ONE OR MORE DNA PROFILES MAIN-
TAINED PURSUANT TO SUBDIVISIONS ONE,  TWO  AND  THREE  OF  SECTION  NINE
HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  SUCH INDIVIDUAL DNA PROFILE,

S. 4668                            11

TOGETHER WITH THE BIOLOGICAL MATERIAL FROM  WHICH  SUCH  INDIVIDUAL  DNA
PROFILE  WAS DEVELOPED, SHALL BE DEALT WITH IN ACCORDANCE WITH PARAGRAPH
(C) OF SUBDIVISION NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS
ARTICLE.
  4. (A) EXCEPT WHERE THE DEMAND IS PURSUANT TO A COURT ORDER OR WARRANT
OR  PURSUANT  TO SUBDIVISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C
OF THIS ARTICLE, PRIOR TO REQUESTING A BIOLOGICAL SAMPLE FROM  AN  INDI-
VIDUAL  THAT  WILL  BE  USED FOR DNA TESTING, THE POLICE DEPARTMENT, LAW
ENFORCEMENT AGENCY, OR AGENT THEREOF REQUESTING SUCH SAMPLE SHALL OBTAIN
WRITTEN INFORMED CONSENT FROM  SUCH  INDIVIDUAL  CONSISTING  OF  WRITTEN
AUTHORIZATION IN PLAIN LANGUAGE THAT IS DATED AND SIGNED AND INCLUDES AT
LEAST THE FOLLOWING: (1) A GENERAL DESCRIPTION OF THE TEST; (2) A STATE-
MENT  THAT  THE  DNA  SAMPLE  OF  THE  SUBJECT MAY INITIALLY BE COMPARED
AGAINST ANY CRIME SCENE EVIDENCE OR DATABASE OF CRIME SCENE EVIDENCE AND
A DESCRIPTION OF WHETHER, IN THE EVENT  SUCH  SUBJECT  SAMPLE  DOES  NOT
MATCH  A  DNA  PROFILE  DERIVED FROM ANY SUCH CRIME SCENE EVIDENCE, SUCH
SUBJECT SAMPLE WILL THEREAFTER BE RETURNED, DESTROYED OR RETAINED.    IN
THE  EVENT THE AGENT REQUESTING SUCH SAMPLE MAY RETAIN SUCH SAMPLE, SUCH
STATEMENT SHALL DESCRIBE THE CIRCUMSTANCES UNDER WHICH SUCH  SAMPLE  MAY
THEREAFTER  BE  LAWFULLY  USED;  (3)  THE NAME OF THE PERSON OR SPECIFIC
CATEGORIES OF PERSONS OR ORGANIZATIONS TO WHOM THE TEST RESULTS  MAY  BE
DISCLOSED;  (4)  A  STATEMENT  THAT NO TESTS OTHER THAN THOSE AUTHORIZED
SHALL BE PERFORMED ON THE BIOLOGICAL SAMPLE; AND (5) A  SUMMARY  OF  THE
INFORMATION  SET  FORTH IN PARAGRAPHS (B) AND (C) OF SUBDIVISION NINE OF
SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE.
  (B) NONCOMPLIANCE WITH ANY PROVISION OF THIS SUBDIVISION SHALL NOT  IN
AND  OF  ITSELF AFFECT THE ADMISSIBILITY OF EVIDENCE OR OTHERWISE AFFECT
ANY CONVICTION OR CRIMINAL PROSECUTION.
  S 14. Section 340.20 of the  criminal  procedure  law  is  amended  by
adding a new subdivision 5 to read as follows:
  5.  PRIOR  TO  ACCEPTING  A  DEFENDANT'S  PLEA OF GUILTY TO A COUNT OR
COUNTS OF AN INFORMATION CHARGING A MISDEMEANOR, AS DEFINED IN PARAGRAPH
(A) OF SUBDIVISION TWO OF SECTION 55.10 OF THE PENAL LAW AND INCLUDED IN
THE DEFINITION OF DESIGNATED OFFENDER PURSUANT TO SUBDIVISION  SEVEN  OF
SECTION  NINE  HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL
ADVISE THE DEFENDANT THAT UPON THE CONVICTION FOR SUCH MISDEMEANOR HE OR
SHE WILL BE REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING FOR
INCLUSION IN THE STATE DNA  IDENTIFICATION  INDEX  PURSUANT  TO  ARTICLE
FORTY-NINE-B  OF THE EXECUTIVE LAW. THE COURT SHALL AFFIRM ON THE RECORD
OR IN WRITING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE  REQUIRED  BY
THIS  SUBDIVISION. THE FAILURE OF A COURT TO ADVISE THE DEFENDANT PURSU-
ANT TO THIS SUBDIVISION OR TO OTHERWISE COMPLY WITH  THE  PROVISIONS  OF
THIS  SUBDIVISION  SHALL  NOT BE DEEMED TO AFFECT THE VOLUNTARINESS OF A
PLEA OF GUILTY OR THE VALIDITY OF A CONVICTION.
  S 15. Subdivision 1-a of section 440.30 of the criminal procedure  law
is amended by adding a new paragraph (c) to read as follows:
  (C) IN CONJUNCTION WITH THE FILING OF A MOTION UNDER THIS SUBDIVISION,
THE  COURT  MAY DIRECT THE STATE TO PROVIDE THE MOVANT WITH INFORMATION,
INCLUDING DOCUMENTS, NOTES, LOGS OR REPORTS, RELATING  TO  ANY  PHYSICAL
ITEMS COLLECTED IN CONNECTION WITH THE CASE, WHERE IT IS LIKELY ANY SUCH
PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING, WOULD YIELD DNA INFORMATION
THAT  MEETS THE STANDARD SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION.
THE COURT MAY DIRECT THE STATE TO PROVIDE OTHER REASONABLE ASSISTANCE TO
THE MOVANT IN LOCATING ANY SUCH RECORDS OR ITEMS  OF  PHYSICAL  EVIDENCE
WHICH  MAY  HAVE  BEEN  LOST OR DESTROYED. THE COURT MAY ALSO DIRECT THE
PEOPLE TO TAKE REASONABLE MEASURES TO ATTEMPT TO LOCATE ANY SUCH RECORDS

S. 4668                            12

OR PHYSICAL ITEMS THAT MAY BE IN GOVERNMENT CUSTODY  AND/OR  ASSIST  THE
MOVANT IN LOCATING ANY SUCH RECORDS OR PHYSICAL ITEMS THAT MAY BE IN THE
CUSTODY  OF  A PUBLIC OR PRIVATE HOSPITAL, LABORATORY OR OTHER FACILITY.
THE  COURT  SHALL DENY A REQUEST FOR ASSISTANCE BROUGHT UNDER THIS PARA-
GRAPH IF THE COURT DETERMINES THAT SUCH REQUEST FOR ASSISTANCE IS FRIVO-
LOUS, ABUSIVE OR INAPPROPRIATE.
  S 16. The state finance law is amended by adding a new section 97-jjjj
to read as follows:
  S 97-JJJJ. ASSISTANCE TO POLICE AND CRIME LABORATORIES:  DNA  EVIDENCE
FUND.    1.  THERE  IS  HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-
TROLLER A SPECIAL FUND TO BE KNOWN AS  THE  "ASSISTANCE  TO  POLICE  AND
CRIME LABORATORIES: DNA EVIDENCE FUND".
  2.  SUCH FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR THE PURPOSE
OF SUCH FUND, ALL OTHER MONIES CREDITED  OR  TRANSFERRED  TO  SUCH  FUND
PURSUANT  TO  LAW, ALL MONIES REQUIRED BY THE PROVISIONS OF THIS SECTION
OR ANY OTHER LAW TO BE PAID INTO OR CREDITED TO SUCH  ACCOUNT,  AND  ALL
MONIES RECEIVED BY THE ACCOUNT OR DONATED TO IT.
  3.  MONIES OF SUCH FUND SHALL BE AVAILABLE FOR APPROPRIATION AND ALLO-
CATION TO THE DIVISION OF STATE POLICE, TO LOCAL POLICE AGENCIES, AND TO
FORENSIC DNA LABORATORIES IN THIS STATE, AS DEFINED IN  SUBDIVISION  TWO
OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, TO ASSIST SUCH
ENTITIES  IN  EFFECTIVELY COLLECTING, TESTING AND ANALYZING FORENSIC DNA
CRIME SCENE EVIDENCE PURSUANT TO ARTICLE FORTY-NINE-B OF  THE  EXECUTIVE
LAW.  FIFTY  PERCENT OF SUCH FUNDS SHALL BE MADE AVAILABLE FOR APPROPRI-
ATION OR ALLOCATION BY THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES FOR
THE PURPOSE OF FUNDING AN INNOCENCE RESEARCH  PROJECT  PROGRAM  IN  THIS
STATE.
  4.  MONIES  OF SUCH FUND SHALL BE PAID OUT ON THE AUDIT AND WARRANT OF
THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER OF
CRIMINAL JUSTICE SERVICES.
  S 17. Innocence research project program. 1. There  is  hereby  estab-
lished  in  this  state  an  innocence research project program. Funding
shall be made available for the purposes of such program to up to  three
not-for-profit  organizations  by  the  commissioner of criminal justice
services pursuant to subdivisions 3 and 4  of  section  97-jjjj  of  the
state finance law.
  2. The innocence research project program shall review and study cases
in  which  there  appears  to  be a reasonable possibility that a person
charged with or convicted of a crime in this state may  be  innocent  of
the  crime  or  crimes charged. Such program may provide legal and other
expert assistance, and may also provide relevant training, including but
not limited to training in the use of DNA evidence  for  forensic  iden-
tification  purposes,  to  attorneys  engaged in the defense of criminal
cases.
  3. Each not-for-profit organization receiving funding for such program
shall file an annual report with the commissioner  of  criminal  justice
services  summarizing  the activities of the program during the previous
year. Such report shall be filed within one year after such organization
first receives funding under such program, and annually  thereafter  for
so long as the program receives such funding.
  4.  Before providing assistance to any individual believed to be actu-
ally innocent of the crime or  crimes  charged,  the  organization-based
coordinator  of  such program shall determine whether such individual is
financially able to pay for the proposed services or  assistance  to  be
provided.  If  such  individual is able to financially afford to pay for
such services or assistance, such coordinator shall request and  receive

S. 4668                            13

such  payment or payments on behalf of the program from such individual.
All monies received from individuals pursuant to this subdivision  shall
be  promptly forwarded by such coordinator to the state comptroller, for
deposit  into  the  "assistance  to  police  and crime laboratories: DNA
evidence fund" established pursuant to  section  97-jjjj  of  the  state
finance law.
  S  18.  The  criminal procedure law is amended by adding a new section
60.47 to read as follows:
S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
           ANTS.
  1. DEFINITIONS. AS USED IN THIS SECTION:
  (A) "ELECTRONIC RECORDING" MEANS A  CONTEMPORANEOUS  VIDEO  AND  AUDIO
RECORDING,  OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
AUDIO RECORDING.
  (B)  "CUSTODIAL  INTERROGATION"  MEANS  ANY  INTERROGATION  WHICH   IS
CONDUCTED  IN  A PLACE OF DETENTION AND DURING WHICH A REASONABLE PERSON
IN THE SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR  HERSELF  TO  BE  IN
CUSTODY.
  (C)  "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
TY, HOLDING FACILITY FOR PRISONERS, OR OTHER GOVERNMENT  FACILITY  WHERE
PERSONS  ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES WHICH
HAVE BEEN OR MAY BE FILED AGAINST THEM.
  2. DURING THE PROSECUTION OF A  FELONY,  AN  ORAL,  WRITTEN,  OR  SIGN
LANGUAGE  STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE  AGAINST  A  DEFENDANT  IN  A
CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
DIAL  INTERROGATION  IN  ITS ENTIRETY AND THE RECORDING IS SUBSTANTIALLY
ACCURATE AND NOT INTENTIONALLY ALTERED.
  3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED  TO A CUSTODIAL
INTERROGATION IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN  ANY
STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
EVEN  IF  OTHERWISE  IN  COMPLIANCE WITH THIS SECTION, ARE ALSO PRESUMED
INADMISSIBLE.
  4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND  RELI-
ABLE AND:
  (A)  EXIGENT  CIRCUMSTANCES  EXISTED  NECESSITATING INTERROGATION AT A
PLACE IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL  FACILITY,
OR  HOLDING  FACILITY  FOR  PRISONERS  AND WHERE THE REQUISITE RECORDING
EQUIPMENT WAS NOT READILY AVAILABLE;
  (B) THE ACCUSED REFUSED TO HAVE HIS  OR  HER  INTERROGATION  ELECTRON-
ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
  (C)  THE  FAILURE TO ELECTRONICALLY RECORD AN ENTIRE INTERROGATION WAS
THE RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT  WAS
NOT FEASIBLE.
  5. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
  (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
  (B)  A  SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
GATION;
  (C) A STATEMENT MADE AFTER QUESTIONING THAT IS ROUTINELY ASKED  DURING
THE PROCESSING OF THE ARREST OF THE SUSPECT;
  (D)  A  STATEMENT  MADE  DURING  A  CUSTODIAL  INTERROGATION  THAT  IS
CONDUCTED OUT-OF-STATE;
  (E) A STATEMENT OBTAINED BY A FEDERAL LAW  ENFORCEMENT  OFFICER  IN  A
FEDERAL PLACE OF DETENTION;

S. 4668                            14

  (F)  A  STATEMENT  GIVEN  AT A TIME WHEN THE INTERROGATORS ARE UNAWARE
THAT A FELONY HAS IN FACT OCCURRED; OR
  (G)  A  STATEMENT,  OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
  6. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
OF  A  CUSTODIAL  INTERROGATION  UNTIL  SUCH  TIME  AS  THE  DEFENDANT'S
CONVICTION  FOR  ANY  OFFENSE RELATING TO THE INTERROGATION IS FINAL AND
ALL DIRECT AND HABEAS CORPUS APPEALS ARE EXHAUSTED, OR  THE  PROSECUTION
OF THAT OFFENSE IS BARRED BY LAW.
  S 19. Subdivision 7 of section 995 of the executive law, as amended by
chapter  2  of  the laws of 2006, paragraph (a) as separately amended by
chapter 320 of the laws of 2006, is amended to read as follows:
  7. "Designated offender" means a person convicted of and sentenced for
[any one or more of the  following  provisions  of  the  penal  law  (a)
sections  120.05,  120.10,  and  120.11,  relating  to assault; sections
125.15 through 125.27 relating to  homicide;  sections  130.25,  130.30,
130.35,  130.40,  130.45, 130.50, 130.65, 130.67 and 130.70, relating to
sex offenses; sections 205.10, 205.15, 205.17 and  205.19,  relating  to
escape  and other offenses, where the offender has been convicted within
the previous five years of one of the other felonies specified  in  this
subdivision;  or sections 255.25, 255.26 and 255.27, relating to incest,
a violent felony offense as defined in subdivision one of section  70.02
of  the  penal  law, attempted murder in the first degree, as defined in
section 110.00 and section 125.27 of the penal law,  kidnapping  in  the
first  degree,  as  defined in section 135.25 of the penal law, arson in
the first degree, as  defined  in  section  150.20  of  the  penal  law,
burglary  in the third degree, as defined in section 140.20 of the penal
law, attempted burglary in the  third  degree,  as  defined  in  section
110.00  and section 140.20 of the penal law, a felony defined in article
four hundred ninety of the  penal  law  relating  to  terrorism  or  any
attempt to commit an offense defined in such article relating to terror-
ism  which  is  a  felony;  or  (b)  criminal possession of a controlled
substance in the first degree, as defined in section 220.21 of the penal
law; criminal possession of a controlled substance in the second degree,
as defined in section 220.18 of  the  penal  law;  criminal  sale  of  a
controlled  substance,  as  defined  in article 220 of the penal law; or
grand larceny in the fourth degree, as defined in  subdivision  five  of
section  155.30  of  the  penal  law;  or  (c) any misdemeanor or felony
defined as a sex offense or sexually violent offense pursuant  to  para-
graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
three of section one hundred sixty-eight-a of the correction law; or (d)
any  of the following felonies, or an attempt thereof where such attempt
is a felony offense:
  aggravated assault upon a  person  less  than  eleven  years  old,  as
defined  in  section  120.12  of  the  penal  law; menacing in the first
degree, as defined in section 120.13 of the penal law;  reckless  endan-
germent  in  the first degree, as defined in section 120.25 of the penal
law; stalking in the second degree, as defined in section 120.55 of  the
penal  law;  criminally negligent homicide, as defined in section 125.10
of the penal law;  vehicular  manslaughter  in  the  second  degree,  as
defined  in  section  125.12 of the penal law; vehicular manslaughter in
the first degree, as  defined  in  section  125.13  of  the  penal  law;
persistent  sexual abuse, as defined in section 130.53 of the penal law;
aggravated sexual abuse in the fourth  degree,  as  defined  in  section
130.65-a  of  the  penal  law;  female genital mutilation, as defined in
section 130.85 of the penal law;  facilitating  a  sex  offense  with  a

S. 4668                            15

controlled  substance,  as  defined  in section 130.90 of the penal law;
unlawful imprisonment in the first degree, as defined in section  135.10
of the penal law; custodial interference in the first degree, as defined
in  section  135.50  of  the  penal  law; criminal trespass in the first
degree, as defined in section 140.17 of the penal law; criminal  tamper-
ing  in the first degree, as defined in section 145.20 of the penal law;
tampering with a consumer product in the first  degree,  as  defined  in
section  145.45 of the penal law; robbery in the third degree as defined
in section 160.05 of the penal law; identity theft in the second degree,
as defined in section 190.79 of the penal law;  identity  theft  in  the
first  degree,  as defined in section 190.80 of the penal law; promoting
prison contraband in the first degree, as defined in section  205.25  of
the  penal law; tampering with a witness in the third degree, as defined
in section 215.11 of the penal law; tampering  with  a  witness  in  the
second  degree, as defined in section 215.12 of the penal law; tampering
with a witness in the first degree, as defined in section 215.13 of  the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions  (b),  (c)  and (d) of section 215.51 of the penal law; aggravated
criminal contempt, as defined in section 215.52 of the penal  law;  bail
jumping  in the second degree, as defined in section 215.56 of the penal
law; bail jumping in the first degree, as defined in section  215.57  of
the penal law; patronizing a prostitute in the second degree, as defined
in  section  230.05  of  the  penal law; patronizing a prostitute in the
first degree, as defined in section 230.06 of the penal  law;  promoting
prostitution  in  the second degree, as defined in section 230.30 of the
penal law; promoting prostitution in the first  degree,  as  defined  in
section  230.32 of the penal law; compelling prostitution, as defined in
section 230.33 of the penal law;  disseminating  indecent  materials  to
minors  in  the second degree, as defined in section 235.21 of the penal
law; disseminating indecent materials to minors in the first degree,  as
defined in section 235.22 of the penal law; riot in the first degree, as
defined in section 240.06 of the penal law; criminal anarchy, as defined
in section 240.15 of the penal law; aggravated harassment of an employee
by  an  inmate,  as defined in section 240.32 of the penal law; unlawful
surveillance in the second degree, as defined in section 250.45  of  the
penal  law;  unlawful  surveillance  in  the first degree, as defined in
section 250.50 of the penal law; endangering the welfare of a vulnerable
elderly person in the second degree, as defined in section 260.32 of the
penal law; endangering the welfare of a vulnerable elderly person in the
first degree, as defined in section 260.34 of the penal law;  use  of  a
child in a sexual performance, as defined in section 263.05 of the penal
law;  promoting  an obscene sexual performance by a child, as defined in
section 263.10 of the penal law; possessing an obscene  sexual  perform-
ance  by a child, as defined in section 263.11 of the penal law; promot-
ing a sexual performance by a child, as defined in section 263.15 of the
penal law; possessing a sexual performance by a  child,  as  defined  in
section  263.16 of the penal law; criminal possession of a weapon in the
third degree, as defined in section 265.02 of the  penal  law;  criminal
sale  of  a firearm in the third degree, as defined in section 265.11 of
the penal law; criminal sale of a firearm to  a  minor,  as  defined  in
section  265.16  of  the  penal law; unlawful wearing of a body vest, as
defined in section 270.20 of the penal law; hate crimes  as  defined  in
section  485.05  of the penal law; and crime of terrorism, as defined in
section 490.25 of the penal law; or (e) a felony defined  in  the  penal
law  or an attempt thereof where such attempt is a felony; or (f) any of
the following misdemeanors: assault in the third degree  as  defined  in

S. 4668                            16

section  120.00  of  the  penal law; attempted aggravated assault upon a
person less than eleven years old, as  defined  in  section  110.00  and
section 120.12 of the penal law; attempted menacing in the first degree,
as defined in section 110.00 and section 120.13 of the penal law; menac-
ing  in the second degree as defined in section 120.14 of the penal law;
menacing in the third degree as defined in section 120.15 of  the  penal
law;  reckless  endangerment  in the second degree as defined in section
120.20 of the penal law; stalking in the fourth  degree  as  defined  in
section 120.45 of the penal law; stalking in the third degree as defined
in  section  120.50  of  the penal law; attempted stalking in the second
degree, as defined in section 110.00 and section  120.55  of  the  penal
law;  forcible  touching  as  defined in section 130.52 of the penal law
regardless of the age of the victim; sexual abuse in the third degree as
defined in section 130.55 of the penal law regardless of the age of  the
victim; unlawful imprisonment in the second degree as defined in section
135.05  of  the penal law regardless of the age of the victim; attempted
unlawful imprisonment in the first degree, as defined in section  110.00
and section 135.10 of the penal law regardless of the age of the victim;
criminal  trespass  in the second degree as defined in section 140.15 of
the penal law; possession of  burglar's  tools  as  defined  in  section
140.35  of  the penal law; petit larceny as defined in section 155.25 of
the penal law; endangering the welfare of a child as defined in  section
260.10  of  the  penal law; endangering the welfare of an incompetent or
physically disabled person as defined in section 260.25]  A  MISDEMEANOR
DEFINED  IN  THE  PENAL  LAW  OR A FELONY DEFINED IN THE PENAL LAW, OR A
PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW.
  S 20. This act shall take effect immediately; provided, however, that:
  (a) sections eleven, twelve and thirteen of this act shall take effect
on the one hundred twentieth day after it shall have become a law;
  (b) the amendments to section 340.20 of  the  criminal  procedure  law
made by section fourteen of this act shall apply to pleas of guilty to a
count  or  counts  of  an  information entered 60 days or more after the
effective date of this act; and
  (c) section eighteen of this act shall take effect  on  the  ninetieth
day  after  it  shall have become a law, and shall apply to any criminal
proceeding commenced on and after such date.