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

                                  10269

                          I N  A S S E M B L Y

                              May 16, 2012
                               ___________

Introduced  by  M. of A. LAVINE, LENTOL -- read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  the  compar-
  ison of fingerprints

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

  Section 1. Subdivision 1 of section 240.40 of the  criminal  procedure
law, as amended by chapter 19 of the laws of 2012, is amended to read as
follows:
  1.  Upon  motion  of  a defendant against whom an indictment, superior
court information, prosecutor's information, information, or  simplified
information  charging  a misdemeanor is pending, the court in which such
accusatory instrument is pending:
  (a) must order discovery as to  any  material  not  disclosed  upon  a
demand  pursuant  to  section  240.20, if it finds that the prosecutor's
refusal to disclose such material is not justified; (b) must, unless  it
is  satisfied  that  the  people have shown good cause why such an order
should not be issued, order discovery or any other order  authorized  by
subdivision  one of section 240.70 as to any material not disclosed upon
demand pursuant to section 240.20 where the  prosecutor  has  failed  to
serve a timely written refusal pursuant to section 240.35; (c) may order
discovery with respect to any other property, which the people intend to
introduce  at  the trial, upon a showing by the defendant that discovery
with respect to such property is material to the preparation of  his  or
her defense, and that the request is reasonable; [and] (d) where proper-
ty  in  the  people's possession, custody, or control that consists of a
deoxyribonucleic acid ("DNA") profile obtained from probative biological
material gathered in connection with the investigation or prosecution of
the defendant and the defendant establishes that such  profile  complies
with  federal  bureau  of investigation or state requirements, whichever
are applicable and as such requirements are applied to  law  enforcement
agencies  seeking  a keyboard search or similar comparison, and that the
data meets state DNA index system or national DNA index system  criteria
as  such criteria are applied to law enforcement agencies seeking such a

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

                                                           LBD15885-02-2

A. 10269                            2

keyboard search or similar comparison, the court  may  order  an  entity
that has access to the combined DNA index system or its successor system
to  compare such DNA profile against DNA databanks by keyboard searches,
or a similar method that does not involve uploading, upon notice to both
parties and the entity required to perform the search, upon a showing by
the  defendant that such a comparison is material to the presentation of
his or her defense and that the request is reasonable. For  purposes  of
this paragraph, a "keyboard search" shall mean a search of a DNA profile
against  the  databank  in  which  the  profile  that is searched is not
uploaded to or maintained in the databank; AND (E) MAY ORDER  THE  DIVI-
SION  OF  CRIMINAL JUSTICE SERVICES TO COMPARE A FINGERPRINT OBTAINED IN
CONNECTION WITH  THE  INVESTIGATION  OR  PROSECUTION  OF  THE  DEFENDANT
AGAINST  THE  STATEWIDE  AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM, OR
ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTOMATED  FINGERPRINT
IDENTIFICATION  SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON THE COURT'S DETER-
MINATION THAT SUCH FINGERPRINT COMPLIES WITH FEDERAL BUREAU OF  INVESTI-
GATION  OR  STATE  REQUIREMENTS,  WHICHEVER  ARE  APPLICABLE AND AS SUCH
REQUIREMENTS ARE APPLIED TO LAW  ENFORCEMENT  AGENCIES  SEEKING  SUCH  A
COMPARISON  AND  UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS
MATERIAL TO THE PREPARATION OF HIS OR HER DEFENSE, AND THAT THE  REQUEST
IS  REASONABLE.    Upon granting the motion pursuant to paragraph (c) of
this subdivision, the court shall, upon motion  of  the  people  showing
such  to  be  material  to  the  preparation  of their case and that the
request is reasonable, condition  its  order  of  discovery  by  further
directing discovery by the people of property, of the same kind or char-
acter  as  that authorized to be inspected by the defendant, which he or
she intends to introduce at the trial.
  S 2. Section 440.30 of the criminal procedure law is amended by adding
a new subdivision 1-b to read as follows:
  1-B. IN RESPONSE TO A MOTION UNDER THIS SECTION, THE COURT  MAY  ORDER
THE  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  TO COMPARE A FINGERPRINT
OBTAINED IN CONNECTION WITH THE  INVESTIGATION  OR  PROSECUTION  OF  THE
DEFENDANT  AGAINST  THE  STATEWIDE  AUTOMATED FINGERPRINT IDENTIFICATION
SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL  INTEGRATED  AUTOMATED
FINGERPRINT  IDENTIFICATION  SYSTEM,  OR  ITS SUCCESSOR SYSTEM, UPON THE
COURT'S DETERMINATION THAT (1) SUCH FINGERPRINT  COMPLIES  WITH  FEDERAL
BUREAU  OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND (2) IF SUCH COMPARISON HAD BEEN CONDUCTED, AND  IF
THE  RESULTS HAD BEEN ADMITTED IN THE TRIAL RESULTING IN THE JUDGMENT, A
REASONABLE PROBABILITY EXISTS THAT THE  VERDICT  WOULD  HAVE  BEEN  MORE
FAVORABLE  TO THE DEFENDANT, OR IN A CASE INVOLVING A PLEA OF GUILTY, IF
THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT PRIOR  TO  THE  PLEA,  A
REASONABLE  PROBABILITY  EXISTS  THAT  THE  CONVICTION  WOULD  NOT  HAVE
RESULTED.
  S 3. This act shall take effect on the same date as chapter 19 of  the
laws of 2012, as amended, takes effect.