S T A T E   O F   N E W   Y O R K
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                                  4028

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2013
                               ___________

Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. BENEDET-
  TO, CLARK, COOK, DINOWITZ, ENGLEBRIGHT, GALEF, LAVINE, LIFTON, MAGNAR-
  ELLI,  MAISEL,  PRETLOW, RAMOS, SCARBOROUGH, SWEENEY, TITUS, ZEBROWSKI
  -- read once and referred to the Committee on Codes

AN ACT to amend the executive law, the criminal procedure  law  and  the
  state  finance  law,  in  relation to DNA testing, data collection and
  record keeping, and to special indictments by fictitious name  in  DNA
  cases;  and  in  relation  to  creating the innocence research project
  program

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

  Section  1.  Section 995-b of the executive law is amended by adding a
new subdivision 15 to read as follows:
  15. (A) THE COMMISSION, IN CONSULTATION  WITH  THE  DNA  SUBCOMMITTEE,
SHALL  PROMULGATE A PLAN TO INCLUDE ALL PERSONS CONVICTED OF A PENAL LAW
MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX. SUCH  PLAN  SHALL  BE
SUBMITTED  TO  THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, AND THE TEMPO-
RARY PRESIDENT OF THE SENATE NO LATER THAN DECEMBER FIRST, TWO  THOUSAND
THIRTEEN.
  (B) THE PLAN REQUIRED BY THIS SECTION SHALL INCLUDE, BUT NOT BE LIMIT-
ED TO, THE FOLLOWING:
  (I)  THE  CAPACITY OF THE NEW YORK STATE POLICE FORENSIC INVESTIGATION
CENTER TO PROCESS DNA SAMPLES COLLECTED FROM DESIGNATED OFFENDERS;
  (II) THE ANTICIPATED INCREASE IN THE NUMBER OF DNA  SAMPLES  COLLECTED
PER  YEAR  DUE  TO THE INCLUSION OF ALL PERSONS CONVICTED OF A PENAL LAW
MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX;
  (III) THE ANTICIPATED NUMBER OF DNA SAMPLES  THAT  WILL  BE  COLLECTED
FROM  PERSONS  IN  CUSTODY  OR UNDER SUPERVISION FOR THE CONVICTION OF A
PENAL LAW MISDEMEANOR AS OF THE DATE OF SUCH PLAN;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04473-01-3

A. 4028                             2
              

  (IV) THE ANTICIPATED BACKLOG OF UNANALYZED DNA SAMPLES  THAT  WILL  BE
CREATED  BY  EXPANDING THE STATE DNA IDENTIFICATION INDEX TO INCLUDE ALL
PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
  (V)  THE  MANNER IN WHICH A BACKLOG OF THE UNANALYZED DNA SAMPLES WILL
BE PROCESSED, AND SPECIFICALLY, WHETHER THE STATE WILL  BE  REQUIRED  TO
OUTSOURCE THE ANALYSIS OF BACKLOGGED SAMPLES TO PRIVATE LABORATORIES;
  (VI)  THE  ESTIMATED  AMOUNT OF TIME IT WILL TAKE TO ANALYZE ALL BACK-
LOGGED DNA SAMPLES;
  (VII) THE ANTICIPATED COST TO COLLECT AND ANALYZE  DNA  SAMPLES  TAKEN
FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR EACH YEAR AND THE COST
TO  COLLECT  AND  ANALYZE  DNA  SAMPLES TAKEN FROM PERSONS IN CUSTODY OR
UNDER SUPERVISION FOR THE CONVICTION OF A PENAL LAW MISDEMEANOR;
  (VIII) THE ANNUAL NUMBER OF ARRESTS, INDICTMENTS, AND CONVICTIONS THAT
HAVE RESULTED FROM COMPARING DNA RECORDS OF DESIGNATED OFFENDERS  STORED
IN  THE  STATE  DNA  IDENTIFICATION  INDEX WITH DNA RECORDS FROM UNKNOWN
SUSPECTS DERIVED FROM THE FORENSIC EXAMINATION OF CRIME SCENES;
  (IX) THE ANTICIPATED EFFECT ON THE PROMPT AND ACCURATE  PROCESSING  OF
DNA  SAMPLES COLLECTED FROM THE FORENSIC EXAMINATION OF CRIME SCENES DUE
TO THE INFLUX OF DNA SAMPLES COLLECTED FROM PERSONS CONVICTED OF A PENAL
LAW MISDEMEANOR.
  (C) THE PLAN REQUIRED BY THIS SECTION SHALL ALSO RECOMMEND:
  (I) THE AMOUNT OF FUNDING NECESSARY TO COLLECT AND ANALYZE DNA SAMPLES
COLLECTED FROM ALL PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
  (II) THE MOST EFFECTIVE WAY TO PROCESS THE  INCREASED  NUMBER  OF  DNA
SAMPLES  COLLECTED  FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR TO
REDUCE ANY RESULTING BACKLOG IN AN EFFICIENT MANNER; AND
  (III) WHETHER ADDITIONAL QUALITY ASSURANCE MEASURES SHOULD  BE  IMPLE-
MENTED  IN CONJUNCTION WITH SUCH EXPANSION AND WHAT SUCH MEASURES SHOULD
BE.
  S 2. The opening paragraph of 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:
  There is hereby created in the executive department, the commission on
forensic science,  which  shall  consist  of  the  following  [fourteen]
SIXTEEN members:
  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  (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.  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 subparagraph (x) 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

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  (X) SUCH POLICY, WHICH SHALL BE DEVELOPED AND PROMULGATED  WITHIN  ONE
YEAR  OF  THE  EFFECTIVE  DATE  OF  THIS  SUBPARAGRAPH, SHALL DETERMINE,
CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE  MINIMUM  PERIOD  OF  TIME
THAT  FORENSIC  SAMPLES  OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL,
OBTAINED  IN  CONNECTION  WITH THE FORENSIC EXAMINATION OF CRIME SCENES,
SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME  OR  SPECI-
FIED  EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE INTEREST
OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE DESTROYED. PEND-
ING THE PROMULGATION OF A POLICY ADDRESSING THE ISSUES SET FORTH IN THIS
SUBPARAGRAPH, 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  5.  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 TEMPORARY PRESIDENT 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  6. 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 7.  Paragraph (b) of subdivision 9 of section 995-c of the executive
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
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

A. 4028                             4

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
THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED  IN    A
MANNER CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPHS (II), (IV) OR (V)

A. 4028                             5

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  8.    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  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 PURSUANT TO THIS SECTION
AND THE NATIONAL DNA INDEX 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  9.  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

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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,
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 10.  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, to  an  indi-
vidual  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, 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  without  lawful  authority OR (D) INTEN-
TIONALLY SUBJECTS TO OR SUBMITS FOR TESTING OR ANALYSIS  NOT  AUTHORIZED
BY THIS ARTICLE AN INDIVIDUAL'S DNA RECORD OR SAMPLE, shall be guilty of
a class [E] D felony.
  S  11. 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

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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 12. 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  13.  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  14. Subdivision 1-a of section 440.30 of the criminal procedure law
is amended by adding a new paragraph (d) to read as follows:
  (D) 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
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 15. The state finance law is amended by adding a new section 97-llll
to read as follows:
  S 97-LLLL. ASSISTANCE TO POLICE AND CRIME LABORATORIES;  DNA  EVIDENCE
FUND.    1.  THERE  IS  HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-

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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 16. 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-llll  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
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-llll of the state
finance law.
  S 17. This act shall take effect immediately; provided, however, that:
  (a) the amendments to paragraph (a) of subdivision 2 of section  995-c
of  the  executive law made by section six of this act shall take effect
on the one hundred twentieth day after it shall have become a law; and

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  (b) the amendments to section 340.20 of  the  criminal  procedure  law
made by section thirteen 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.