S T A T E O F N E W Y O R K
________________________________________________________________________
5323--A
2015-2016 Regular Sessions
I N S E N A T E
May 13, 2015
___________
Introduced by Sens. BOYLE, COMRIE, LATIMER -- read twice and ordered
printed, and when printed to be committed to the Committee on Finance
-- recommitted to the Committee on Finance in accordance with Senate
Rule 6, sec. 8 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the executive law and the criminal procedure law, in
relation to requiring individuals arrested in connection with certain
felonies to submit a DNA sample
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 is amended by adding a new
subdivision 7-a to read as follows:
7-A. "FELONY ARRESTEE" MEANS A PERSON ARRESTED AND CHARGED WITH ANY
ONE OR MORE OF THE FOLLOWING FELONIES, OR AN ATTEMPT THEREOF WHERE SUCH
ATTEMPT IS A FELONY OFFENSE, AS DEFINED IN SECTIONS 130.25, 130.30,
130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.66, 130.67, 130.70,
130.75, 130.80, 130.95 AND 130.96 OF THE PENAL LAW, RELATING TO SEX
OFFENSES; AND THE VICTIM IS LESS THAN THIRTEEN YEARS OLD.
S 2. Subdivision 3 of section 995-c of the executive law is amended by
adding four new paragraphs (c), (d), (e) and (f) to read as follows:
(C) A FELONY ARRESTEE SHALL BE REQUIRED TO PROVIDE A SAMPLE APPROPRI-
ATE FOR DNA TESTING UPON HIS OR HER ARREST, UNLESS SUCH FELONY ARRESTEE
HAS PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDEN-
TIFICATION INDEX.
(D) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER OR FELONY
ARRESTEE WHO HAS NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED SHALL
SEEK AN ORDER OF THE COURT TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER
WRITTEN OR ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
(E) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED
UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL
NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10621-02-6
S. 5323--A 2
NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR
PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
(F) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL PROMULGATE
RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
CATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX CONTAINS DNA PROFILES
THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE STEPS NECESSARY TO
EXPUNGE ANY PROFILES WHICH THE DIVISION OF CRIMINAL JUSTICE SERVICES
DETERMINES SHOULD NOT BE IN THE INDEX.
S 3. Subdivision 9 of section 995-c of the executive law, as amended
by chapter 524 of the laws of 2002, is amended to read as follows:
9. (a) Upon receipt of notification of a reversal or a vacatur of a
conviction, or of the granting of a pardon pursuant to article two-A of
this chapter, of an individual whose DNA record has been stored in the
state DNA identification index in accordance with this article by the
division of criminal justice services, the DNA record shall be expunged
from the state DNA identification index, and such individual may apply
to 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 prosecution of
the crime which resulted in the conviction that was reversed or vacated
or for which the pardon was granted. 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 all appeals relating to the
conviction have been concluded; that such individual will not be
retried, or, if a retrial has occurred, the trier of fact has rendered a
verdict of complete acquittal, and that expungement will not adversely
affect the investigation or prosecution of some other person or persons
for the crime. The division shall, by rule or regulation, prescribe
procedures to ensure that the DNA record in the state DNA identification
index, and any samples, analyses, or other documents relating to such
record, whether in the possession of the division, or any law enforce-
ment or police agency, or any forensic DNA laboratory, including any
duplicates or copies thereof, at the discretion of the possessor there-
of, are either destroyed or returned to such individual, or to the
attorney who represented him or her at the time such reversal, vacatur
or pardon, was granted. The commissioner shall also adopt by rule and
regulation a procedure for the expungement in other appropriate circum-
stances of DNA records contained in the index.
(b) As prescribed in this paragraph, if an individual, either volun-
tarily, PURSUANT TO PARAGRAPH (C) OF SUBDIVISION THREE OF THIS SECTION,
or pursuant to a warrant or order of a court, has provided a sample for
DNA testing in connection with the investigation, ARREST or prosecution
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 (iii) a criminal action WAS COMMENCED against the
individual relating to such crime [resulted in a conviction that was
subsequently reversed or vacated, or for which the individual was grant-
ed 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 investi-
gation or prosecution of such crime. A copy of such application shall be
S. 5323--A 3
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 acquittal, and that expungement will not adversely affect the
investigation or prosecution of some other person or persons for the
crime. If an order directing the expungement of any DNA record and any
samples, analyses or other documents relating to the DNA testing of such
individual is issued] WHICH WAS RESOLVED BY A DISMISSAL, SUCCESSFUL
COMPLETION OF A PRE-PROSECUTION DIVERSION PROGRAM, OR CONDITIONAL
DISCHARGE OR MISDEMEANOR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION
PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTICLE, THE DNA
RECORD SHALL BE EXPUNGED FROM THE STATE DNA IDENTIFICATION INDEX. AN
INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD AND ANY SAMPLES,
ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH INDIVID-
UAL BY PROVIDING THE FOLLOWING MATERIALS TO THE DIVISION OF CRIMINAL
JUSTICE SERVICES:
(1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
AND
(2) A CERTIFIED COPY OF THE DISMISSAL, SUCCESSFUL COMPLETION OF A
PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE, MISDEMEA-
NOR CONVICTION OR ACQUITTAL; AND
(3) A SWORN STATEMENT FROM THE DISTRICT ATTORNEY'S OFFICE WITH JURIS-
DICTION OVER THE MATTER THAT: THE CASE WAS DISMISSED; A PRE-PROSECUTION
DIVERSION PROGRAM OR CONDITIONAL DISCHARGE, MISDEMEANOR CONVICTION
EXCLUDED FROM DNA COLLECTION PURSUANT TO SECTION NINE HUNDRED
NINETY-FIVE OF THIS ARTICLE OR ACQUITTAL OCCURRED; NO FELONY CHARGES
AROSE OUT OF THE ARREST; OR 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; AND THAT EXPUNGEMENT WILL
NOT ADVERSELY AFFECT THE INVESTIGATION OR PROSECUTION OF SOME OTHER
PERSON OR PERSONS FOR THE CRIME.
(C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF
THIS SUBDIVISION, such record and any samples, analyses, or other docu-
ments 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 THE CRIMINAL ACTION OR in connection with the [application for
the order of] REQUEST FOR expungement.
(D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING FELONY CHARGE FOR WHICH
COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
GRAPH (C) OF SUBDIVISION THREE OF THIS SECTION.
S 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
amended by chapter 424 of the laws of 1998, is amended to read as
follows:
6. Before bringing a defendant arrested pursuant to a warrant before
the local criminal court in which such warrant is returnable, a police
officer must without unnecessary delay perform all fingerprinting and
other preliminary police duties required in the particular case. In any
case in which the defendant is not brought by a police officer before
such court but, following his arrest in another county for an offense
specified in subdivision one of section 160.10 OF THIS TITLE, is
released by a local criminal court of such other county on his own
recognizance or on bail for his appearance on a specified date before
S. 5323--A 4
the local criminal court before which the warrant is returnable, the
latter court must, upon arraignment of the defendant before it, direct
that he be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE
EXECUTIVE LAW, by the appropriate officer or agency, and that he appear
at an appropriate designated time and place for such purpose.
S 5. Section 130.60 of the criminal procedure law, as amended by chap-
ter 95 of the laws of 1991, subdivision 1 as amended by chapter 446 of
the laws of 1993, is amended to read as follows:
S 130.60 Summons; fingerprinting of defendant.
1. Upon the arraignment of a defendant whose court attendance has been
secured by the issuance and service of a summons, based upon an indict-
ment, a prosecutor's information or upon an information, felony
complaint or misdemeanor complaint filed by a complainant who is a
police officer, the court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be fingerprinted by the appropriate
police officer or agency, and that he or she appear at an appropriate
designated time and place for such purpose. IF AN OFFENSE CHARGED IN
THE ACCUSATORY INSTRUMENT IS ONE SPECIFIED IN SUBDIVISION SEVEN-A OF
SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT MUST
DIRECT THAT A SAMPLE APPROPRIATE FOR DNA TESTING BE TAKEN, AND THAT HE
OR SHE APPEAR AT AN APPROPRIATE DESIGNATED TIME AND PLACE FOR SUCH
PURPOSE.
2. Upon the arraignment of a defendant whose court attendance has been
secured by the issuance and service of a summons based upon an informa-
tion or misdemeanor complaint filed by a complainant who is not a police
officer, and who has not previously been fingerprinted OR FROM WHOM A
DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN AND WAS REQUIRED PURSUANT TO
SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, the court may,
if it finds reasonable cause to believe that the defendant has committed
an offense specified in subdivision one of section 160.10 OF THIS TITLE,
direct that the defendant be fingerprinted AND/OR HAVE A SAMPLE APPRO-
PRIATE FOR DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINE-
TY-FIVE-C OF THE EXECUTIVE LAW, by the appropriate police officer or
agency and that he appear at an appropriate designated time and place
for such purpose. A defendant whose court appearance has been secured by
the issuance and service of a criminal summons based upon a misdemeanor
complaint or information filed by a complainant who is not a police
officer, must be directed by the court, upon conviction of the defend-
ant, to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECU-
TIVE LAW, by the appropriate police officer or agency and the court must
also direct that the defendant appear at an appropriate designated time
and place for such purpose, if the defendant is convicted of any offense
specified in subdivision one of section 160.10 OF THIS TITLE.
S 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
amended by chapter 762 of the laws of 1971, is amended to read as
follows:
5. Before service of an appearance ticket upon an arrested person
pursuant to subdivision two or three OF THIS SECTION, the issuing police
officer must, if the offense designated in such appearance ticket is one
of those specified in subdivision one of section 160.10 OF THIS TITLE,
cause such person to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF
S. 5323--A 5
THE EXECUTIVE LAW, in the same manner as would be required were no
appearance ticket to be issued or served.
S 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
amended by chapter 843 of the laws of 1980, is amended to read as
follows:
2. Upon arresting a person without a warrant, a peace officer, except
as otherwise provided in subdivision three OF THIS SECTION, must without
unnecessary delay bring him or cause him to be brought before a local
criminal court, as provided in section 100.55 and subdivision one of
section 140.20 OF THIS TITLE, and must without unnecessary delay file or
cause to be filed therewith an appropriate accusatory instrument. If
the offense which is the subject of the arrest is one of those specified
in subdivision one of section 160.10 OF THIS TITLE, the arrested person
must be fingerprinted and photographed, AND HAVE A SAMPLE APPROPRIATE
FOR DNA TESTING TAKEN IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C
OF THE EXECUTIVE LAW, as therein provided. In order to execute the
required post-arrest functions, such arresting peace officer may perform
such functions himself or he may enlist the aid of a police officer for
the performance thereof in the manner provided in subdivision one of
section 140.20 OF THIS ARTICLE.
S 8. Section 150.70 of the criminal procedure law, as amended by chap-
ter 762 of the laws of 1971, is amended to read as follows:
S 150.70 Appearance ticket; fingerprinting AND DNA ANALYSIS SAMPLE of
defendant.
Upon the arraignment of a defendant who has not been arrested and
whose court attendance has been secured by the issuance and service of
an appearance ticket pursuant to subdivision one of section 150.20 OF
THIS ARTICLE, the court must, if an offense charged in the accusatory
instrument is one specified in subdivision one of section 160.10 OF THIS
TITLE, direct that the defendant be fingerprinted AND HAVE A SAMPLE
APPROPRIATE FOR DNA TESTING TAKEN WHEN REQUIRED BY SECTION NINE HUNDRED
NINETY-FIVE-C OF THE EXECUTIVE LAW by the appropriate police officer or
agency, and that he appear at an appropriate designated time and place
for such purpose.
S 9. Section 160.20 of the criminal procedure law, as amended by chap-
ter 108 of the laws of 1973, is amended to read as follows:
S 160.20 Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger-
prints AND DNA ANALYSIS SAMPLE.
1. Upon the taking of fingerprints of an arrested person or defendant
as prescribed in section 160.10 OF THIS ARTICLE, the appropriate police
officer or agency must without unnecessary delay forward two copies of
such fingerprints to the division of criminal justice services.
2. UPON TAKING A SAMPLE APPROPRIATE FOR DNA TESTING, THE APPROPRIATE
POLICE OFFICE OR AGENCY MUST WITHOUT UNNECESSARY DELAY STORE AND FORWARD
SUCH DNA SAMPLE TO A FORENSIC DNA LABORATORY FOR FORENSIC DNA TESTING
AND ANALYSES, AND INCLUSION IN THE STATE DNA IDENTIFICATION INDEX IN
ACCORDANCE WITH SUBDIVISION FIVE OF SECTION NINE HUNDRED NINETY-FIVE-C
OF THE EXECUTIVE LAW.
S 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
criminal procedure law, paragraph (d) as amended by chapter 449 of the
laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of
1994, are amended and a new paragraph (f) is added to read as follows:
(d) such records shall be made available to the person accused or to
such person's designated agent, and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
S. 5323--A 6
enforcement agency upon ex parte motion in any superior court, or in any
district court, city court or the criminal court of the city of New York
provided that such court sealed the record, if such agency demonstrates
to the satisfaction of the court that justice requires that such records
be made available to it, or (iii) any state or local officer or agency
with responsibility for the issuance of licenses to possess guns, when
the accused has made application for such a license, or (iv) the New
York state department of corrections and community supervision when the
accused is on parole supervision as a result of conditional release or a
parole release granted by the New York state board of parole, and the
arrest which is the subject of the inquiry is one which occurred while
the accused was under such supervision, or (v) any prospective employer
of a police officer or peace officer as those terms are defined in
subdivisions thirty-three and thirty-four of section 1.20 of this chap-
ter, in relation to an application for employment as a police officer or
peace officer; provided, however, that every person who is an applicant
for the position of police officer or peace officer shall be furnished
with a copy of all records obtained under this paragraph and afforded an
opportunity to make an explanation thereto, or (vi) the probation
department responsible for supervision of the accused when the arrest
which is the subject of the inquiry is one which occurred while the
accused was under such supervision; [and]
(e) where fingerprints subject to the provisions of this section have
been received by the division of criminal justice services and have been
filed by the division as digital images, such images may be retained,
provided that a fingerprint card of the individual is on file with the
division which was not sealed pursuant to this section or section 160.55
of this article[.]; AND
(F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
ANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, AND ANY
DNA RECORD RELATING TO SUCH SAMPLE, AND ANY ANALYSES OR OTHER DOCUMENTS
RELATING TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
S 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
criminal procedure law, paragraph (d) as amended by chapter 449 of the
laws of 2015 and paragraph (e) as amended by chapter 169 of the laws of
1994, are amended and a new paragraph (f) is added to read as follows:
(d) the records referred to in paragraph (c) of this subdivision shall
be made available to the person accused or to such person's designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in which the accused has moved for an order pursuant to section 170.56
or 210.46 of this chapter, or (ii) a law enforcement agency upon ex
parte motion in any superior court, or in any district court, city court
or the criminal court of the city of New York provided that such court
sealed the record, if such agency demonstrates to the satisfaction of
the court that justice requires that such records be made available to
it, or (iii) any state or local officer or agency with responsibility
for the issuance of licenses to possess guns, when the accused has made
application for such a license, or (iv) the New York state department of
corrections and community supervision when the accused is under parole
supervision as a result of conditional release or parole release granted
by the New York state board of parole and the arrest which is the
subject of the inquiry is one which occurred while the accused was under
such supervision, or (v) the probation department responsible for super-
vision of the accused when the arrest which is the subject of the
inquiry is one which occurred while the accused was under such super-
S. 5323--A 7
vision, or (vi) a police agency, probation department, sheriff's office,
district attorney's office, department of correction of any municipality
and parole department, for law enforcement purposes, upon arrest in
instances in which the individual stands convicted of harassment in the
second degree, as defined in section 240.26 of the penal law, committed
against a member of the same family or household as the defendant, as
defined in subdivision one of section 530.11 of this chapter, and deter-
mined pursuant to subdivision eight-a of section 170.10 of this title;
[and]
(e) where fingerprints subject to the provisions of this section have
been received by the division of criminal justice services and have been
filed by the division as digital images, such images may be retained,
provided that a fingerprint card of the individual is on file with the
division which was not sealed pursuant to this section or section 160.50
of this article[.]; AND
(F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
ANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, ANY DNA
RECORD RELATING TO SUCH SAMPLE, AND ANY ANALYSES OR OTHER DOCUMENTS
RELATING TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
S 12. This act shall take effect on the one hundred eightieth day
after it shall have become a law.
