S T A T E   O F   N E W   Y O R K
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                                  9946

                          I N  A S S E M B L Y

                               May 2, 2016
                               ___________

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

AN ACT to amend the executive law, in  relation  to  the  processing  of
  evidence  related to sexual offenses and the inclusion of such results
  in the state DNA identification index

  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  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.
  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;

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

                                                           LBD00563-08-6

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  S  3.  Subdivisions 7, 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.
  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  a  DNA
record  of  a  person  OR SEXUAL OFFENSE FORENSIC EVIDENCE 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
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

A. 9946                             3

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
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

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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.  Subdivisions  6 and 7 of section 995-c of the executive law, as
added by chapter 737 of the laws of 1994, are amended and a new subdivi-
sion 10 is added to read as follows:
  6. DNA AND SEXUAL OFFENSE FORENSIC EVIDENCE records contained  in  the
state  DNA identification index shall be released only for the following
purposes:
  (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 upon submission of a DNA  record  in  connection
with  the  investigation  of  the commission of one or more crimes or to
assist in the recovery or identification  of  specified  human  remains,
including  identification of missing persons, provided that there exists
between the division and such agency a written agreement  governing  the
use  and  dissemination  of  such  DNA  records  in  accordance with the
provisions of this article;
  (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;
  (c)  after personally identifiable information has been removed by the
division, to an entity authorized by the division  for  the  purpose  of
creating  or  maintaining  a population statistics database or for iden-
tification research and protocol development for forensic  DNA  analysis
or quality control purposes; AND
  (D)  IN  THE  CASE  OF A VICTIM OF A SEXUAL OFFENSE, SUCH VICTIM SHALL
HAVE ACCESS TO INFORMATION REGARDING:
  (I) WHETHER A SEXUAL OFFENSE FORENSIC EVIDENCE TEST  IS  PERFORMED  BY
ANY FORENSIC DNA LABORATORY;
  (II)  WHETHER THE RESULT OF A SEXUAL OFFENSE FORENSIC EVIDENCE TEST OF
ANALYSIS WAS ENTERED INTO THE STATE DNA IDENTIFICATION INDEX; AND
  (III) WHETHER THERE IS A MATCH BETWEEN THE RESULT OF A SEXUAL  OFFENSE
EVIDENCE TEST OF ANALYSIS AND THE STATE DNA IDENTIFICATION INDEX.
  7.  Requests for DNA AND 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  DNA
identification index in accordance with rules and regulations promulgat-
ed by the commissioner of the division of criminal justice services.
  10. (A) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES, IN CONSULTATION
WITH  THE  DNA  SUBCOMMITTEE AND THE COMMISSION, IS HEREBY AUTHORIZED TO
ESTABLISH A PLAN FOR THE  TIMELY  TESTING  OF  SEXUAL  OFFENSE  FORENSIC
EVIDENCE  AND  THE  INCLUSION  OF THE RESULTS OF SUCH TESTING IN THE DNA
IDENTIFICATION INDEX PURSUANT TO THE PROVISIONS OF THIS ARTICLE.
  (B) 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 SHALL BE INCLUDED IN THE STATE DNA IDENTIFICA-
TION INDEX PURSUANT TO THIS ARTICLE. THIS SUBDIVISION DOES NOT REQUIRE A
FORENSIC DNA LABORATORY TO TEST ALL ITEMS OF FORENSIC EVIDENCE  OBTAINED
IN  A  SEXUAL  OFFENSE FORENSIC EVIDENCE EXAMINATION OR A SEXUAL OFFENSE
INVESTIGATION. FOR THE PURPOSE OF TIMELY PROCESSING  OF  SEXUAL  OFFENSE
FORENSIC  EVIDENCE,  THIS  SUBDIVISION  INTENDS  TO ENSURE THAT THE BEST
EVIDENCE IS SELECTED AND ANALYZED  AS  SOON  AS  PRACTICABLE  AMONG  THE
REPRESENTATIVE  SAMPLE  OF FORENSIC EVIDENCE, BASED ON THE MEDICAL EXAM-

A. 9946                             5

INATION OR THE SEXUAL OFFENSE INVESTIGATION, THE COLLECTION AND  PRESER-
VATION  OF  THAT  EVIDENCE,  AND  THE  TRANSFER OF THE EVIDENCE FROM THE
MEDICAL FACILITY OR THE LAW ENFORCEMENT AGENCY TO THE FORENSIC DNA LABO-
RATORY.
  (C)  (I)  NO  LATER  THAN  TEN  BUSINESS  DAYS AFTER BEING BOOKED INTO
EVIDENCE, A LAW ENFORCEMENT AGENCY THAT RECEIVES SEXUAL OFFENSE FORENSIC
EVIDENCE SHALL FORWARD SUCH EVIDENCE  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  DNA
IDENTIFICATION INDEX.
  (II)  SUCH LABORATORY SHALL PERFORM THE REQUISITE TESTING AND ANALYSIS
WITHIN THREE MONTHS OF  ITS  RECEIPT  OF  THE  SEXUAL  OFFENSE  FORENSIC
EVIDENCE IF SUFFICIENT STAFFING AND RESOURCES ARE AVAILABLE. AN ANALYSIS
SHALL INCLUDE AN EXAMINATION OF DNA EVIDENCE, DEVELOPMENT OF A POTENTIAL
SUSPECT  PROFILE,  AND THE FORWARDING OF THE RESULTING DNA RECORD TO THE
STATE DNA IDENTIFICATION INDEX IN ACCORDANCE WITH THE REGULATIONS OF THE
DIVISION OF CRIMINAL JUSTICE SERVICES.
  (D) THE FAILURE OF A LAW ENFORCEMENT AGENCY TO SUBMIT  SEXUAL  OFFENSE
FORENSIC  EVIDENCE  WITHIN THE PERIOD REQUIRED BY THIS SUBDIVISION SHALL
NOT AFFECT THE AUTHORITY OF (I) THE AGENCY TO SUBMIT THE EVIDENCE  TO  A
FORENSIC DNA LABORATORY FOR ANALYSIS OR (II) OF A FORENSIC DNA LABORATO-
RY TO ANALYZE THE EVIDENCE OR PROVIDE THE RESULTS OF THE ANALYSIS TO THE
APPROPRIATE AGENCIES AND THE STATE DNA IDENTIFICATION INDEX.
  (E)  A LAW ENFORCEMENT AGENCY IN POSSESSION OF SEXUAL OFFENSE FORENSIC
EVIDENCE THAT HAS NOT BEEN FORWARDED TO A FORENSIC DNA LABORATORY WITHIN
THE TIME FRAME REQUIRED BY THIS  SUBDIVISION  SHALL:  (I)  BY  SEPTEMBER
FIRST OF EACH YEAR SUBMIT TO THE DIVISION OF CRIMINAL JUSTICE SERVICES A
LIST  OF  THE  AGENCY'S  ACTIVE  CRIMINAL CASES FOR WHICH SEXUAL OFFENSE
FORENSIC EVIDENCE HAS NOT YET BEEN FORWARDED TO A FORENSIC DNA LABORATO-
RY; AND (II) SUBMIT TO THE DIVISION OF CRIMINAL JUSTICE  SERVICES  OR  A
FORENSIC  DNA LABORATORY, AS APPROPRIATE AND SUBJECT TO THE AVAILABILITY
OF STORAGE SPACE, ALL SEXUAL OFFENSE  FORENSIC  EVIDENCE  PERTAINING  TO
THOSE  ACTIVE  CRIMINAL  CASES  THAT  HAS NOT YET BEEN SUBMITTED FOR LAB
ANALYSIS WITHIN TWO YEARS AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
  (F) NO LATER THAN ONE YEAR AFTER THE EFFECTIVE DATE OF  THIS  SUBDIVI-
SION,  THE  DIVISION  OF  CRIMINAL  JUSTICE SERVICES SHALL SUBMIT TO THE
GOVERNOR AND THE APPROPRIATE LEGISLATIVE COMMITTEES OF  THE  SENATE  AND
THE  ASSEMBLY A REQUEST FOR ANY NECESSARY FUNDING TO ACCOMPLISH ANALYSES
OF SEXUAL OFFENSE FORENSIC EVIDENCE REQUIRED BY THIS SUBDIVISION.
  (G) THE DIVISION OF CRIMINAL JUSTICE SERVICES MAY SOLICIT  APPROPRIATE
GRANTS  AND  FUNDING  OPPORTUNITIES  IN  FURTHERANCE  OF  THE ACTIVITIES
REQUIRED BY THIS SUBDIVISION FROM FOUNDATIONS, OTHER GOVERNMENTAL  AGEN-
CIES  AND  INDIVIDUALS,  UNDER SUCH TERMS AND CONDITIONS AS THE DIVISION
SHALL DEEM APPROPRIATE.
  S 8. This act shall take effect September 1, 2017.