S T A T E   O F   N E W   Y O R K
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                                  1515

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 12, 2015
                               ___________

Introduced  by  M.  of  A.  MAGNARELLI  -- read once and referred to the
  Committee on Governmental Operations

AN ACT to amend the executive law, in relation to establishing standards
  of regulation to permit familial searching and partial DNA matches  as
  an investigative tool in certain unsolved crimes

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

  Section 1. Section 995 of the executive law, as added by  chapter  737
of  the laws of 1994, subdivision 7 as amended by chapter 19 of the laws
of 2012, is amended to read as follows:
  S 995. Definitions. When used in this article, the following words and
terms shall have the meanings ascribed to them in this section:
  1. For purposes of general forensic analysis the term "forensic  labo-
ratory" shall mean any laboratory operated by the state or unit of local
government  that  performs  forensic  testing  on evidence in a criminal
investigation or proceeding or for purposes of identification  provided,
however,  that the examination of latent fingerprints by a police agency
shall not be subject to the provisions of this article.
  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
or materials derived from the human body for use as evidence in a crimi-
nal  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 information to resolve issues  of  identification.    Regu-
lation pursuant to this article shall not include DNA testing on materi-
als  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01770-01-5
              

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  3. "DNA testing methodology" means  methods  and  procedures  used  to
extract  and  analyze  DNA material, as well as the methods, procedures,
assumptions, and studies used to draw statistical  inferences  from  the
test results.
  4.  "Blind  external  proficiency testing" means a test sample that is
presented to a forensic laboratory for forensic DNA  testing  through  a
second  agency,  and  which  appears  to the analysts to involve routine
evidence submitted for forensic DNA testing.
  5. "DNA" means deoxyribonucleic acid.
  5-A. "DNA PROFILE" MEANS A SET OF DNA  IDENTIFICATION  CHARACTERISTICS
WHICH  MAY  PERMIT THE DNA OF ONE PERSON TO BE DISTINGUISHABLE FROM THAT
OF ANOTHER PERSON. FOR SHORT TANDEM REPEAT DNA PROFILES,  IT  MEANS  THE
LIST  OF ALLELES CARRIED BY A PARTICULAR INDIVIDUAL AT A SPECIFIC SET OF
GENETIC LOCI.
  5-B. "SUBJECT DNA PROFILE" MEANS THE DNA PROFILE GENERATED BY ANALYSIS
OF A BIOLOGICAL SAMPLE COLLECTED FROM A SUBJECT  CONVICTED  OF  A  CRIME
WHOSE SPECIMEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA
AGREEMENT;  AS  A  CONDITION  OF  PARTICIPATION  IN A TEMPORARY RELEASE,
COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE  TREATMENT  (CASAT)  OR  SHOCK
INCARCERATION PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE
SUPERVISION, PRESUMPTIVE RELEASE OR CONDITIONAL RELEASE ON A DEFINITE OR
INDETERMINATE  SENTENCE;  OR  AS  A  CONDITION  OF  PROBATION OR INTERIM
PROBATION SUPERVISION.
  5-C. "SUBJECT INDEX" MEANS  THE  ELECTRONIC  DATABASE  CONTAINING  DNA
PROFILES  GENERATED FROM A SUBJECT CONVICTED OF A CRIME WHOSE DNA SPECI-
MEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA AGREEMENT;
AS A CONDITION OF PARTICIPATION IN A  TEMPORARY  RELEASE,  COMPREHENSIVE
ALCOHOL  AND  SUBSTANCE  ABUSE  TREATMENT (CASAT) OR SHOCK INCARCERATION
PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE  SUPERVISION,
PRESUMPTIVE  RELEASE  OR CONDITIONAL RELEASE ON A DEFINITE OR INDETERMI-
NATE SENTENCE; OR AS A  CONDITION  OF  PROBATION  OR  INTERIM  PROBATION
SUPERVISION.
  6.  "State  DNA  identification  index"  means  the DNA identification
record system for New York state established pursuant to this article.
  6-A. "CODIS" MEANS THE FEDERAL COMBINED DNA INDEX SYSTEM.
  6-B. "NDIS" MEANS THE NATIONAL DNA INDEX SYSTEM.
  6-C. "FORENSIC DNA INDEX" MEANS THE ELECTRONIC DATABASE IN CODIS  THAT
CONTAINS  DNA  PROFILES GENERATED FROM CASEWORK EVIDENCE BY FORENSIC DNA
LABORATORIES.
  6-D. "UNIDENTIFIED HUMAN REMAINS INDEX" MEANS THE ELECTRONIC  DATABASE
IN  CODIS  THAT  CONTAINS  DNA  PROFILES GENERATED FROM HUMAN REMAINS OF
UNKNOWN ORIGIN.
  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.
  8. "DNA record" means DNA identification  information  prepared  by  a
forensic DNA laboratory and stored in the state DNA identification index
for  purposes  of  establishing  identification  in  connection with law
enforcement investigations or supporting statistical  interpretation  of
the  results  of DNA analysis. A DNA record is the objective form of the
results of a DNA analysis sample.

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  9. "DNA subcommittee" shall mean  the  subcommittee  on  forensic  DNA
laboratories  and  forensic DNA testing established pursuant to subdivi-
sion thirteen of section nine hundred ninety-five-b of this article.
  10.  "Commission" shall mean the commission on forensic science estab-
lished pursuant to section nine hundred ninety-five-a of this article.
  11. "DIVISION" SHALL MEAN THE NEW  YORK  STATE  DIVISION  OF  CRIMINAL
JUSTICE SERVICES.
  12.  "ALLELE"  SHALL  MEAN  ONE OF THE ALTERNATE FORMS OF THE DNA AT A
PARTICULAR GENETIC LOCUS.
  13. "LOCI" SHALL MEAN THE SPECIFIC CHROMOSOMAL LOCATIONS OF  GENES  OR
OTHER DNA ELEMENTS SUCH AS SHORT TANDEM REPEATS.
  14. "STR" SHALL MEAN SHORT TANDEM REPEAT.
  15.  "STR  ANALYSIS"  SHALL  MEAN A FORM OF TESTING WHICH PROVIDES DNA
PROFILES FOR LOCI WHICH CONTAIN SIMPLE DNA UNIT REPEATS. STR LOCI ON THE
Y-CHROMOSOME ARE REFERRED TO AS "Y-STRS".
  16. "MITOCHONDRIAL DNA TESTING" OR "MTDNA TESTING" REFERS TO  ANALYSIS
OF GENETIC POLYMORPHISMS THAT OCCUR IN THE DNA OF MITOCHONDRIA.
  17.  "CASEWORK  EVIDENCE DNA PROFILE" SHALL MEAN A DNA PROFILE THAT IS
DERIVED FROM BIOLOGICAL EVIDENCE ORIGINATING FROM  AND  ASSOCIATED  WITH
THE COMMISSION OF A CRIME.
  18.  "CONVICTED  OFFENDER  DNA  PROFILE"  SHALL  MEAN THAT DNA PROFILE
GENERATED BY TESTING OF A BIOLOGICAL SAMPLE COLLECTED FROM A  DESIGNATED
OFFENDER AS DEFINED IN SUBDIVISION SEVEN OF THIS SECTION.
  19.  "CONVICTED  OFFENDER  INDEX"  SHALL MEAN THAT ELECTRONIC DATABASE
CONTAINING DNA PROFILES GENERATED FROM DESIGNATED OFFENDERS  AS  DEFINED
BY SUBDIVISION SEVEN OF THIS SECTION AND STORED IN CODIS.
  20.  "FORENSIC  DNA  PROFILE"  REFERS TO A DNA PROFILE THAT IS DERIVED
FROM BIOLOGICAL  EVIDENCE  ORIGINATING  FROM  AND  ASSOCIATED  WITH  THE
COMMISSION OF A CRIME.
  21.  "INDIRECT  ASSOCIATION"  SHALL  MEAN THE DETERMINATION DURING THE
CODIS CANDIDATE MATCH CONFIRMATION PROCESS THAT  A  FORENSIC  INDEX  DNA
PROFILE  IS  SIMILAR TO A DNA PROFILE IN THE CONVICTED OFFENDER INDEX OR
SUBJECT INDEX AND A COMPARISON REVEALS THAT THE OFFENDER OR  SUBJECT  IS
NOT THE SOURCE OF THE DNA PROFILE BUT MAY BE A RELATIVE OF THE SOURCE OF
THE FORENSIC INDEX PROFILE. AN INDIRECT ASSOCIATION MAY ALSO BE REFERRED
TO AS A "PARTIAL MATCH".
  22. "FAMILIAL SEARCHING" REFERS TO THE PROCESS OF PURPOSEFULLY SEARCH-
ING  A DNA DATABANK FOR PARTIAL MATCHES OR INDIRECT ASSOCIATIONS BETWEEN
A NEW YORK STATE CONVICTED OFFENDER'S DNA  PROFILE  AND  A  DNA  PROFILE
DEVELOPED FROM CRIME SCENE EVIDENCE.
  23.  "LDIS" REFERS TO THE LEVEL OF THE CODIS PROGRAM IN WHICH A PUBLIC
DNA LABORATORY MAINTAINS ITS DNA RECORDS FOR SEARCHING AND UPLOADING  TO
HIGHER LEVEL INDICES SUCH AS SDIS AND NDIS.
  S  2.  Section  995-b  of the executive law is amended by adding a new
subdivision 12-a to read as follows:
  12-A. IN CASES LIMITED  TO  VIOLENT  FELONY  OFFENSES,  HOMICIDES  AND
BURGLARY  IN  THE THIRD DEGREE, AS DEFINED BY ARTICLES ONE HUNDRED TWEN-
TY-FIVE AND ONE HUNDRED  FORTY  OF  THE  PENAL  LAW,  RESPECTIVELY,  THE
COMMISSION SHALL PROMULGATE STANDARDS THAT PERMIT FAMILIAL SEARCHING AND
THE  RELEASE  OF  PARTIAL MATCHES TO INVESTIGATING LAW ENFORCEMENT OFFI-
CIALS AND THE APPROPRIATE PROSECUTOR OR PROSECUTORS.
  (A) SUCH STANDARDS SHALL PERMIT THE USE OF  FAMILIAL  SEARCHING.  SUCH
STANDARDS  SHALL  ALSO REQUIRE THE RELEASE OF THE RESULTS OF SUCH SEARCH
TO THE INVESTIGATING  LAW  ENFORCEMENT  OFFICIALS  AND  THE  APPROPRIATE
PROSECUTOR  OR  PROSECUTORS  IF, UPON APPLICATION OF A POLICE OFFICER, A
DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT ACTING IN THE  COURSE  OF  HIS

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OFFICIAL  DUTIES,  A  LOCAL  COURT  DETERMINES THAT ALL OF THE FOLLOWING
CONDITIONS ARE SATISFIED:
  (I)  THERE IS REASONABLE CAUSE TO BELIEVE THAT A FAMILIAL SEARCH USING
THE CRIME SCENE DNA PROFILE MAY RESULT IN A PARTIAL DNA MATCH;
  (II) THE CRIME SCENE DNA PROFILE DERIVES  FROM  A  SINGLE  SOURCE  AND
CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
  (III)  THE  CRIME  IS UNSOLVED AND ALL PRACTICABLE INVESTIGATIVE LEADS
HAVE BEEN EXHAUSTED;
  (IV) THE DNA LABORATORY HAS RUN AN EXACT MATCH ON THE CRIME SCENE  DNA
PROFILE WITH NEGATIVE RESULTS;
  (V) THE INVESTIGATING LAW ENFORCEMENT AGENCY OR THE PROSECUTOR MAKES A
WRITTEN REQUEST THAT THE DNA LABORATORY CONDUCT A FAMILIAL SEARCH ON THE
CRIME SCENE DNA PROFILE; AND
  (VI)  THE  INVESTIGATING  LAW  ENFORCEMENT  AGENCY  AND THE PROSECUTOR
COMMIT TO FURTHER INVESTIGATION OF THE CASE IF THE NAME  OF  THE  POTEN-
TIALLY  RELATED  OFFENDER  IS  RELEASED  AND THE NAME OF THE POTENTIALLY
RELATED OFFENDER WILL BE TREATED AS A CONFIDENTIAL, NON-PUBLIC  INVESTI-
GATIVE LEAD.
  (B)  ONCE  A  LABORATORY HAS RECEIVED A PARTIAL MATCH AS A RESULT OF A
FAMILIAL SEARCH OR A STANDARD SEARCH OF THE DNA  INDEX,  THE  LABORATORY
SUBMITTING  THE  CRIME  SCENE  DNA  PROFILE  TO  THE CODIS PROGRAM SHALL
COMPLETE AN APPLICATION TO THE DIVISION  REQUESTING  THE  NAMES  OF  THE
INVOLVED OFFENDERS AND, AS PART OF THE APPLICATION, CONFIRM THAT:
  (I) AN LDIS SEARCH HAS BEEN PERFORMED USING THE CRIME SCENE PROFILE IN
THE FORENSIC UNKNOWN INDEX;
  (II)  THE  CRIME  SCENE  DNA  PROFILE DERIVES FROM A SINGLE SOURCE AND
CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
  (III) THE  SUBMITTING  AGENCY  AND  THE  APPROPRIATE  PROSECUTOR  HAVE
COMMITTED  TO  PURSUE  FURTHER  INVESTIGATION OF THE CASE IF THE NAME IS
RELEASED; AND
  (IV) THE SUBMITTING LABORATORY HAS CONFIRMED THAT RELEASE OF THE  NAME
WILL  BE FOLLOWED BY A REPORT TO THE INVESTIGATING LAW ENFORCEMENT AGEN-
CY. THE REPORT WILL INDICATE THAT THE MATCH IS INDIRECT  AND  WILL  ALSO
INDICATE THAT THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF THE EVIDEN-
TIARY DNA PATTERN IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER.
  (C)  IN  THE EVENT THAT A LABORATORY FINDS A PARTIAL MATCH AS A RESULT
OF A STANDARD SEARCH OF A DNA INDEX,  BUT  DOES  NOT  RECEIVE  AN  EXACT
MATCH,  THE LABORATORY SHALL FIRST CONTACT THE SUBMITTING AGENCY AND THE
APPROPRIATE PROSECUTOR TO CONFIRM THAT  THEY  ARE  COMMITTED  TO  PURSUE
FURTHER INVESTIGATION OF THE CASE IF THE NAME IS RELEASED. AFTER RECEIV-
ING  WRITTEN CONFIRMATION FROM THE SUBMITTING AGENCY AND THE APPROPRIATE
PROSECUTOR, THE LABORATORY SHALL FOLLOW THE STEPS OUTLINED IN  PARAGRAPH
(B) OF THIS SUBDIVISION.
  (D)  THE REPORT GENERATED FROM THE SUBMITTING LABORATORY TO THE INVES-
TIGATING LAW ENFORCEMENT AGENCY SHALL INDICATE THAT:
  (I) THE MATCH IS A RESULT OF FAMILIAL SEARCHING OR IS A PARTIAL  MATCH
RESULTING FROM A STANDARD SEARCH OF A DNA INDEX;
  (II)  THE  INFORMATION PROVIDED IS A CONFIDENTIAL, NON-PUBLIC INVESTI-
GATIVE LEAD; AND
  (III) THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF  THE  EVIDENTIARY
DNA  PATTERN  IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER BUT IS
NOT CONCLUSIVE EVIDENCE OF THE SAME.
  (E) THE DIVISION WILL PROVIDE THE MATCH INFORMATION TO THE  STATE  DNA
DATABANK WHICH, IN TURN, WILL CALCULATE AND REPORT WHETHER THE APPROPRI-
ATE STATISTICAL THRESHOLD APPROVED BY THE DNA SUBCOMMITTEE HAS BEEN MET.

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  (F)  UPON RECEIVING A COMPLETED APPLICATION FROM THE LOCAL PARTICIPAT-
ING CODIS LABORATORY AND CONFIRMATION FROM THE DATABANK THAT THE  APPRO-
PRIATE  STATISTICAL  THRESHOLD  HAS BEEN MET, THE DIVISION SHALL RELEASE
THE NAME OF THE OFFENDER TO THE SUBMITTED LABORATORY WHO SHALL, IN TURN,
RELEASE  THE  INFORMATION  TO  THE  INVESTIGATING LAW ENFORCEMENT AGENCY
AFTER A LOCAL CRIMINAL COURT HAS DETERMINED THAT ALL OF THE REQUIREMENTS
IN PARAGRAPH (A) OF THIS SUBDIVISION HAVE BEEN SATISFIED.  IF THE APPRO-
PRIATE STATISTICAL THRESHOLD VALUE IS NOT  SUPPORTED  BY  THE  AVAILABLE
DATA,  THEN  TESTING  OF  ADDITIONAL  LOCI OF THE OFFENDER SAMPLE MAY BE
REQUIRED AND MAY INCLUDE Y-STR AND/OR MTDNA ANALYSIS. IF THE  SUBSEQUENT
TESTING DOES NOT MEET THE APPROPRIATE THRESHOLD, THE DATABANK WILL NOTI-
FY THE DIVISION AND THE OFFENDER'S NAME WILL NOT BE RELEASED.
  (G)  THIS  POLICY  WILL  BE  SUBJECT TO REVIEW BY THE DNA SUBCOMMITTEE
EVERY TWO YEARS.
  (H) THE SAME STANDARDS AND PROCEDURES DEFINED IN THIS SECTION APPLY TO
REQUESTS FOR PARTIAL MATCH AND FAMILIAL SEARCHING INFORMATION FROM CRIM-
INAL JUSTICE AGENCIES FROM OUTSIDE OF THE STATE.
  S 3. 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.   (A)  Any  person  who  [(a)]  (I)  intentionally
discloses a DNA record, or the results of a forensic DNA test or  analy-
sis, to an individual or agency other than one authorized to have access
to  such  records  pursuant  to this article or [(b)] (II) 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)] (III) any person who knowingly tampers or  attempts  to
tamper  with  any  DNA sample or the collection container without lawful
authority shall be guilty of a class E felony.
  (B) ANY PERSON WHO (I) INTENTIONALLY DISCLOSES A DNA  RECORD,  OR  THE
RESULTS  OF  A FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF FAMI-
LIAL SEARCHING OR A PARTIAL MATCH, TO AN INDIVIDUAL OR AGENCY OTHER THAN
ONE AUTHORIZED TO HAVE ACCESS TO SUCH RECORDS PURSUANT TO  THIS  ARTICLE
OR  (II) INTENTIONALLY USES OR RECEIVES DNA RECORDS, OR THE RESULTS OF A
FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF  FAMILIAL  SEARCHING
OR A PARTIAL MATCH, FOR PURPOSES OTHER THAN THOSE AUTHORIZED PURSUANT TO
THIS  ARTICLE  SHALL  BE GUILTY OF A CLASS E FELONY, AND UPON CONVICTION
THEREOF, SHALL BE SUBJECT TO A  FINE  OF  NOT  MORE  THAN  TEN  THOUSAND
DOLLARS AND ANY SUCH OTHER PENALTIES AS PROVIDED.
  S 4. This act shall take effect immediately.