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

                                 8150--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             August 30, 2013
                               ___________

Introduced  by  M. of A. CLARK, STEVENSON, SIMOTAS, SCARBOROUGH, JAFFEE,
  SCHIMEL, GABRYSZAK -- Multi-Sponsored by -- M. of A. CERETTO,  HOOPER,
  KATZ, MONTESANO -- read once and referred to the Committee on Codes --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the executive law, in relation to establishing the state
  sexual offense forensic evidence index and the processing of  evidence
  related to sexual offenses

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

  Section 1. Subdivisions 2 and 9 of section 995 of the  executive  law,
as  added  by  chapter  737  of  the laws of 1994, are amended and a new
subdivision 11 is added to read as follows:
  2. For purposes of forensic DNA analysis, the term "forensic DNA labo-
ratory" shall mean any forensic laboratory operated by the state or unit
of local government, that performs forensic DNA testing on crime scenes,
FORENSIC TESTING ON EVIDENCE OF SEXUAL  OFFENSES  or  materials  derived
from  the human body for use as evidence in a criminal proceeding or for
purposes of identification and the term  "forensic  DNA  testing"  shall
mean  any  test that employs techniques to examine deoxyribonucleic acid
(DNA) derived from the human body for the purpose of providing  informa-
tion  to  resolve issues of identification.  Regulation pursuant to this
article shall not include DNA testing  on  materials  derived  from  the
human  body  pursuant to title five of article five of the public health
law for the purpose of determining a person's genetic disease or medical
condition and shall not include a laboratory  operated  by  the  federal
government.
  9.  "DNA  subcommittee"  shall  mean  the subcommittee on forensic DNA
laboratories and forensic DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE test-
ing established pursuant to subdivision thirteen of section nine hundred
ninety-five-b of this article.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11684-02-3
              

A. 8150--A                          2

  11. "STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX"  MEANS  THE  SEXUAL
OFFENSE  FORENSIC EVIDENCE RECORD SYSTEM FOR NEW YORK ESTABLISHED PURSU-
ANT TO THIS ARTICLE.
  S  2. Paragraph (b) of subdivision 2 of section 995-b of the executive
law, as added by chapter 737 of the laws of 1994, is amended to read  as
follows:
  (b)  ensure that forensic analyses, including forensic DNA testing AND
SEXUAL OFFENSE FORENSIC EVIDENCE TESTING, are  performed  in  accordance
with the highest scientific standards practicable;
  S  3.  Subdivisions  7,  9,  10, 11, 12 and 13 of section 995-b of the
executive law, as added by chapter 737 of the laws of 1994 and paragraph
(a) of subdivision 13 as amended by chapter 560 of the laws of 1999, are
amended to read as follows:
  7. The commission and DNA subcommittee may establish, appoint, and set
terms of members to as many advisory councils as it deems  necessary  to
provide  specialized  expertise  to  the  commission with respect to new
forensic technologies including DNA  testing  methodologies  AND  SEXUAL
OFFENSE FORENSIC EVIDENCE TESTING METHODOLOGIES.
  9.  After  reviewing  recommendations  from  the  division of criminal
justice services, the commission, in consultation with the  DNA  subcom-
mittee, shall promulgate a policy for the establishment and operation of
a  DNA identification index AND A SEXUAL OFFENSE FORENSIC EVIDENCE INDEX
consistent with the operational requirements  and  capabilities  of  the
division  of  criminal  justice  services. Such policy shall address the
following issues:
  (a) the forensic DNA methodology or methodologies to  be  utilized  in
compiling the [index] INDICES;
  (b)  procedures  for  assuring that the state DNA identification index
AND THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX [contains]  CONTAIN
the following safeguards:
  (i) that any records maintained as part of such [an index] INDICES are
accurate and complete;
  (ii)  that effective software and hardware designs are instituted with
security features to prevent unauthorized access to such records;
  (iii) that periodic audits will be conducted to ensure that no illegal
disclosures of such records have taken place;
  (iv) that access to  record  information  system  facilities,  systems
operating  environments, data file contents whether while in use or when
stored in a media library is restricted to authorized personnel only;
  (v) that operation programs  are  used  that  will  prohibit  inquiry,
record  updates, or destruction of records from any source other than an
authorized source of inquiry, update, or destruction of records;
  (vi) that operational programs are used to detect and  store  for  the
output  of  authorized employees only all unauthorized attempts to pene-
trate the state DNA identification index AND THE  STATE  SEXUAL  OFFENSE
FORENSIC EVIDENCE INDEX;
  (vii)  that  adequate  and  timely procedures exist to insure that any
subject of the state DNA  identification  index  AND  THE  STATE  SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX has the right of access to and review of
records  relating  to  such individual contained in such [index] INDICES
for the purpose of ascertaining their accuracy and completeness, includ-
ing procedures for review of information maintained about such  individ-
uals  and administrative review (including procedures for administrative
appeal) and the necessary documentation to demonstrate that the informa-
tion is inaccurate or incomplete;

A. 8150--A                          3

  (viii) that access to the [index] INDICES will be granted to an agency
authorized by this article to have such access only pursuant to a  writ-
ten  use  and dissemination agreement, a copy of which is filed with the
commission, which agreement sets forth the specific procedures by  which
such  agency shall implement the provisions of subparagraphs (i) through
(vii) of this paragraph, as applicable, and which agreement specifically
prohibits the redisclosure by such agency of  any  information  obtained
from  the DNA identification index AND THE STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX; and
  (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.
  10.  Review,  and if necessary, recommend modifications to, a plan for
implementation of the DNA identification  index  AND  THE  STATE  SEXUAL
OFFENSE  FORENSIC EVIDENCE INDEX submitted by the commissioner of crimi-
nal justice services pursuant to section nine hundred  ninety-five-c  of
this article.
  11. Upon the recommendation of the DNA subcommittee established pursu-
ant to subdivision thirteen of this section, the commission shall desig-
nate  one or more approved methodologies for the performance of forensic
DNA testing AND SEXUAL ASSAULT FORENSIC EVIDENCE, and shall  review  and
act  upon  applications  by  forensic  DNA  laboratories for approval to
perform forensic DNA testing.
  12. Promulgate standards for a determination of a  match  between  the
DNA  records  contained  in  the  state DNA identification index AND THE
STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX  and  a  DNA  record  of  a
person submitted for comparison therewith.
  13.  (a) The commission shall establish a subcommittee on forensic DNA
laboratories and forensic DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE test-
ing.  The  chair  of the subcommittee shall be appointed by the chair of
the commission. The chair of the subcommittee shall  appoint  six  other
members  to the subcommittee, one of whom shall represent the discipline
of molecular biology and be appointed upon  the  recommendation  of  the
commissioner  of  the  department of health, one of whom shall represent
the discipline of population genetics and be appointed upon  the  recom-
mendation  of  the commissioner of the department of health, one of whom
shall be representative of the discipline of  laboratory  standards  and
quality  assurance  regulation  and monitoring and be appointed upon the
recommendation of the commissioner of the department of health,  one  of
whom shall be a forensic scientist and be appointed upon the recommenda-
tion  of the commissioner of the department of health, one of whom shall
be representative of  the  discipline  of  population  genetics  and  be
appointed  upon  the  recommendation  of  the  commissioner  of criminal
justice services and one of whom shall be representative of  the  disci-
pline  of  forensic  science and be appointed upon the recommendation of
the commissioner of  criminal  justice  services.  Members  of  the  DNA
subcommittee  shall  serve  for  three  year terms and be subject to the
conditions of service specified in section nine hundred ninety-five-a of
this article.
  (b) The DNA subcommittee shall assess and evaluate all DNA AND  SEXUAL
OFFENSE FORENSIC EVIDENCE methodologies proposed to be used for forensic
analysis,  and  make reports and recommendations to the commission as it
deems necessary. The DNA subcommittee shall make binding recommendations
for adoption by the commission addressing minimum  scientific  standards

A. 8150--A                          4

to  be  utilized  in conducting forensic DNA AND SEXUAL OFFENSE FORENSIC
EVIDENCE analysis including, but not limited to, examination  of  speci-
mens, population studies and methods employed to determine probabilities
and  interpret  test  results. The DNA subcommittee may require a demon-
stration by an independent laboratory of any proposed  forensic  DNA  OR
SEXUAL OFFENSE FORENSIC EVIDENCE testing methodology proposed to be used
by a forensic laboratory.
  (c)  The  DNA  subcommittee  shall  make  binding  recommendations for
adoption by the commission with regard to an accreditation  program  for
laboratories   performing  forensic  DNA  AND  SEXUAL  OFFENSE  FORENSIC
EVIDENCE testing in accordance with the provisions of the state adminis-
trative procedure act. Such recommendations shall include  the  adoption
and   implementation   of  internal  and  external  proficiency  testing
programs, including, if possible, a blind external  proficiency  testing
program  for  forensic  laboratories  performing forensic DNA AND SEXUAL
OFFENSE FORENSIC EVIDENCE  testing.  The  DNA  subcommittee  shall  also
provide the commission with a list of accepted proficiency testers.
  (d)  The DNA subcommittee shall be authorized to advise the commission
on any other matters regarding the implementation of scientific controls
and quality assurance procedures for the performance of forensic DNA AND
SEXUAL OFFENSE FORENSIC  EVIDENCE  testing,  or  on  any  other  matters
referred to it by the commission.
  S  4.  Section  995-d of the executive law, as added by chapter 737 of
the laws of 1994 and subdivision 2 as amended by chapter 560 of the laws
of 1999, is amended to read as follows:
  S 995-d. Confidentiality.  1.  All  records,  findings,  reports,  and
results of DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE testing performed on
any person shall be confidential and may not be disclosed or redisclosed
without  the consent of the subject of such DNA OR SEXUAL OFFENSE FOREN-
SIC EVIDENCE testing. Such records, findings, reports and results  shall
not  be  released to insurance companies, employers or potential employ-
ers, health providers,  employment  screening  or  personnel  companies,
agencies,  or  services,  private investigation services, and may not be
disclosed in response to a subpoena or other compulsory legal process or
warrant, or upon request or order of any  agency,  authority,  division,
office,  corporation, partnership, or any other private or public entity
or person, except that nothing contained herein shall  prohibit  disclo-
sure  in  response to a subpoena issued on behalf of the subject of such
DNA OR SEXUAL OFFENSE FORENSIC EVIDENCE record or on behalf of  a  party
in  a  civil  proceeding where the subject of such DNA OR SEXUAL OFFENSE
FORENSIC EVIDENCE record has put such record in issue.
  2. Notwithstanding the provisions of subdivision one of this  section,
records, findings, reports, and results of DNA testing, other than a DNA
record  maintained  in  the  state  DNA  identification  index,  may  be
disclosed in a criminal proceeding to the court,  the  prosecution,  and
the  defense  pursuant  to a written request on a form prescribed by the
commissioner of the division of criminal  justice  services.    Notwith-
standing  the  provisions  of  subdivision one of this section, a DNA OR
SEXUAL OFFENSE FORENSIC EVIDENCE record  maintained  in  the  state  DNA
identification  index  may be disclosed pursuant to section nine hundred
ninety-five-c of this article.
  S 5. Section 995-e of the executive law, as added by  chapter  737  of
the laws of 1994, is amended to read as follows:
  S 995-e. Applicability. This article shall not apply to a forensic DNA
laboratory  operated  by any agency of the federal government, or to any

A. 8150--A                          5

forensic DNA test OR SEXUAL OFFENSE FORENSIC EVIDENCE TEST performed  by
any such federal laboratory.
  S  6. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
  S 995-f. Penalties. Any person who (a) intentionally discloses  a  DNA
record,  [or]  the  results  of  a forensic DNA test or analysis, OR THE
RESULT OF A SEXUAL OFFENSE FORENSIC EVIDENCE TEST  OF  ANALYSIS,  to  an
individual  or  agency  other than one authorized to have access to such
records pursuant to this article or (b) intentionally uses  or  receives
DNA records, [or] the results of a forensic DNA test or analysis, OR THE
RESULTS  OF  A  SEXUAL  OFFENSE  FORENSIC EVIDENCE TEST OF ANALYSIS, for
purposes other than those authorized pursuant to this article or (c) any
person who knowingly tampers or attempts to tamper with any  DNA  sample
[or],  the  collection  container  OR  SEXUAL  OFFENSE FORENSIC EVIDENCE
SAMPLE without lawful authority shall be guilty of a class E felony.
  S 7. The executive law is amended by adding a  new  section  995-g  to
read as follows:
  S  995-G.  STATE  SEXUAL OFFENSE FORENSIC EVIDENCE INDEX. 1. FOLLOWING
THE PROMULGATION OF A POLICY BY THE COMMISSION PURSUANT  TO  SUBDIVISION
NINE  OF SECTION NINE HUNDRED NINETY-FIVE-B OF THIS ARTICLE, THE COMMIS-
SIONER OF CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO PROMULGATE  A  PLAN
FOR  THE  ESTABLISHMENT  OF A COMPUTERIZED STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX WITHIN THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  2. FOLLOWING THE REVIEW AND APPROVAL OF THE PLAN BY THE DNA SUBCOMMIT-
TEE 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 ESTABLISH A COMPUT-
ERIZED  STATE  SEXUAL  OFFENSE  FORENSIC  EVIDENCE INDEX PURSUANT TO THE
PROVISIONS OF THIS ARTICLE.
  3. ANY FORENSIC EVIDENCE COLLECTED OR OBTAINED IN CONNECTION WITH  THE
INVESTIGATION  OF  A  CRIME  OR OFFENSE CONTAINED IN ARTICLE ONE HUNDRED
THIRTY OF THE PENAL LAW MUST BE INCLUDED IN  THE  STATE  SEXUAL  OFFENSE
FORENSIC EVIDENCE INDEX PURSUANT TO THIS ARTICLE.
  4. THE SEXUAL OFFENSE FORENSIC EVIDENCE SHALL BE COLLECTED, STORED AND
FORWARDED  TO  ANY  FORENSIC DNA LABORATORY WHICH HAS BEEN AUTHORIZED BY
THE COMMISSION TO PERFORM SEXUAL OFFENSE FORENSIC EVIDENCE  TESTING  AND
ANALYSIS  FOR  INCLUSION  IN  THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE
INDEX. SUCH LABORATORY SHALL PERFORM THE REQUISITE TESTING AND  ANALYSIS
WITHIN TEN BUSINESS DAYS OF COLLECTION, AND FORWARD THE RESULTING SEXUAL
OFFENSE  FORENSIC  EVIDENCE  RECORD TO THE STATE SEXUAL OFFENSE FORENSIC
EVIDENCE INDEX IN ACCORDANCE WITH THE REGULATIONS  OF  THE  DIVISION  OF
CRIMINAL JUSTICE SERVICES.
  5.  SEXUAL OFFENSE FORENSIC EVIDENCE THAT HAS BEEN BACKLOGGED SHALL BE
FORWARDED TO ANY FORENSIC DNA LABORATORY WHICH HAS  BEEN  AUTHORIZED  BY
THE  COMMISSION  TO PERFORM SEXUAL OFFENSE FORENSIC EVIDENCE TESTING AND
ANALYSIS FOR THE INCLUSION IN THE STATE SEXUAL OFFENSE FORENSIC EVIDENCE
INDEX BY AUGUST FIRST, TWO THOUSAND  FIFTEEN.    SUCH  LABORATORY  SHALL
PERFORM  THE  REQUISITE  TESTING  AND ANALYSIS WITHIN ONE HUNDRED TWENTY
DAYS OF RECEIPT OF THE SEXUAL OFFENSE FORENSIC EVIDENCE AND FORWARD  THE
RESULTING  SEXUAL  OFFENSE  FORENSIC EVIDENCE RECORD TO THE STATE SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX IN ACCORDANCE WITH  THE  REGULATIONS  OF
THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  6.  SEXUAL  OFFENSE  FORENSIC  EVIDENCE RECORDS CONTAINED IN THE STATE
SEXUAL OFFENSE FORENSIC EVIDENCE INDEX SHALL BE RELEASED  ONLY  FOR  THE
FOLLOWING PURPOSES:

A. 8150--A                          6

  (A)  TO  A  FEDERAL LAW ENFORCEMENT AGENCY, OR TO A STATE OR LOCAL LAW
ENFORCEMENT AGENCY OR DISTRICT ATTORNEY'S  OFFICE  FOR  LAW  ENFORCEMENT
IDENTIFICATION  PURPOSES  IN  CONNECTION  WITH  THE INVESTIGATION OF THE
COMMISSION OF ONE OR MORE CRIMES, PROVIDED THAT THERE EXISTS BETWEEN THE
DIVISION  AND  SUCH  AGENCY  A  WRITTEN  AGREEMENT GOVERNING THE USE AND
DISSEMINATION OF  SUCH  SEXUAL  OFFENSE  FORENSIC  EVIDENCE  RECORDS  IN
ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE; OR
  (B) FOR CRIMINAL DEFENSE PURPOSES, TO A DEFENDANT OR HIS OR HER REPRE-
SENTATIVE,  WHO SHALL ALSO HAVE ACCESS TO SAMPLES AND ANALYSES PERFORMED
IN CONNECTION WITH THE CASE IN WHICH SUCH DEFENDANT IS CHARGED.
  7. REQUESTS FOR SEXUAL OFFENSE FORENSIC EVIDENCE RECORDS  MUST  BE  IN
WRITING,  OR  IN  A  FORM  PRESCRIBED  BY THE DIVISION AUTHORIZED BY THE
REQUESTING PARTY, AND, OTHER THAN A REQUEST PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION SIX OF THIS SECTION, MAINTAINED ON FILE AT THE STATE  SEXUAL
OFFENSE FORENSIC EVIDENCE INDEX IN ACCORDANCE WITH RULES AND REGULATIONS
PROMULGATED  BY  THE  COMMISSIONER  OF  THE DIVISION OF CRIMINAL JUSTICE
SERVICES.
  8. THE DEFENDANT, INCLUDING THE REPRESENTATIVE OF A  DEFENDANT,  IN  A
CRIMINAL  ACTION  OR  PROCEEDING SHALL HAVE ACCESS TO INFORMATION IN THE
STATE SEXUAL OFFENSE FORENSIC EVIDENCE INDEX RELATING TO THE  NUMBER  OF
REQUESTS  PREVIOUSLY MADE FOR A COMPARISON SEARCH AND THE NAME AND IDEN-
TITY OF ANY REQUESTING PARTY.
  S 8. This act shall take effect on June 1, 2015.