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

                                  3368

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- 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.
                                                           LBD04635-02-3

              

S. 3368                             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. 3368                             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. 3368                             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 OR JUVENILE DELINQUENT IS SUBSEQUENTLY  DETERMINED  TO
BE  INNOCENT  OF  SUCH  CRIME  OR OFFENSE AND EXONERATED, THE COMMISSION
SHALL CONDUCT AN INVESTIGATION, 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. 3368                             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 OR DNA INFORMATION 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  AGAINST  THE FINGERPRINT RECORDS MAINTAINED BY OR AVAILABLE THROUGH
THE STATE FINGERPRINT RECORD DATABASE ESTABLISHED PURSUANT  TO  SUBDIVI-
SION 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 JURISDICTION 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.  Subparagraph  1  of paragraph (a) of subdivision 1-a of section
440.30 of the criminal procedure law, as amended by chapter  19  of  the
laws of 2012, is amended to read as follows:
  (1)  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. 3368                             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.  Subdivisions 3 and 5 of section 8-b of the court of claims act,
as added by chapter 1009 of the laws of 1984, are  amended  to  read  as
follows:
  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]
JUDGMENT  of  conviction  was  reversed  or vacated[, and the accusatory
instrument was dismissed,] on any of the following  grounds:  (A)  para-
graph  (a),  (b),  (c),  (e),  (F)  or (g) of subdivision one of section
440.10 of the criminal procedure law;  or  (B)  subdivision  one  (where
based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),
two,  three (where the count dismissed was the sole basis for the impri-
sonment complained of) or five of section 470.20 of the criminal  proce-
dure  law;  or  (C) comparable 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  DECI-
SION  OF  THE  CRIMINAL  COURT  VACATING  THE CONVICTION BASED ONLY ON A
GROUND NOT ENUMERATED IN ITEMS (A), (B), (C) AND (D)  OF  THIS  SUBPARA-
GRAPH; and
  (c)  his  claim  is  not  time-barred by the provisions of subdivision
seven of this section.
  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]
JUDGMENT of conviction was reversed  or  vacated[,  and  the  accusatory
instrument  was  dismissed,]  on any of the following grounds: (A) para-
graph (a), (b), (c), (e), (F) or  (g)  of  subdivision  one  of  section
440.10  of  the  criminal  procedure  law; or (B) subdivision one (where
based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH),

S. 3368                             7

two, three (where the count dismissed was the sole basis for the  impri-
sonment  complained of) or five of section 470.20 of the criminal proce-
dure law; or (C) comparable 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 DECI-
SION OF THE CRIMINAL COURT VACATING  THE  CONVICTION  BASED  ONLY  ON  A
GROUND  NOT  ENUMERATED  IN ITEMS (A), (B), (C) AND (D) OF THIS SUBPARA-
GRAPH; 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
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.
  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. 3368                             8

  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
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

S. 3368                             9

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 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

S. 3368                            10

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 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 (d) to read as follows:

S. 3368                            11

  (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 16. 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-
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-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

S. 3368                            12

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 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:

S. 3368                            13

  (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;
  (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 19 of the laws of 2012, is amended to read as follows:
  7. "Designated offender" means  a  person  convicted  of  [any  felony
defined  in  any  chapter  of  the  laws of the state or any misdemeanor
defined in the penal law except that where the person is convicted under
section 221.10 of the penal law, only a person convicted under  subdivi-
sion two of such section, or a person convicted under subdivision one of
such  section who stands previously convicted of any crime as defined in
subdivision six of section 10.00 of the penal law] AND SENTENCED  FOR  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;
  (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; and
  (d)  section  nineteen  of this act shall apply to designated offenses
committed on or after the effective date of this  act,  as  well  as  to
designated  offenses  committed  prior  to  such  effective  date, where
service of the sentence  imposed  upon  conviction  of  such  designated
offense has not been completed prior to such effective date.