S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2726
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2017
                                ___________
 
 Introduced by M. of A. LAVINE, ABINANTI, COLTON -- Multi-Sponsored by --
   M. of A.  GALEF -- read once and referred to the Committee on Codes
 
 AN  ACT  to amend the criminal procedure law, in relation to the compar-
   ison of fingerprints
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision 1 of section 240.40 of the criminal procedure
 law, as amended by chapter 19 of the laws of 2012, is amended to read as
 follows:
   1. Upon motion of a defendant against  whom  an  indictment,  superior
 court  information, prosecutor's information, information, or simplified
 information charging a misdemeanor is pending, the court in  which  such
 accusatory instrument is pending:
   (a)  must  order  discovery  as  to  any material not disclosed upon a
 demand pursuant to section 240.20, if it  finds  that  the  prosecutor's
 refusal  to disclose such material is not justified; (b) must, unless it
 is satisfied that the people have shown good cause  why  such  an  order
 should  not  be issued, order discovery or any other order authorized by
 subdivision one of section 240.70 as to any material not disclosed  upon
 demand  pursuant  to  section  240.20 where the prosecutor has failed to
 serve a timely written refusal pursuant to section 240.35; (c) may order
 discovery with respect to any other property, which the people intend to
 introduce at the trial, upon a showing by the defendant  that  discovery
 with  respect  to such property is material to the preparation of his or
 her defense, and that the request is reasonable; [and] (d) where proper-
 ty in the people's possession, custody, or control that  consists  of  a
 deoxyribonucleic acid ("DNA") profile obtained from probative biological
 material gathered in connection with the investigation or prosecution of
 the  defendant  and the defendant establishes that such profile complies
 with federal bureau of investigation or  state  requirements,  whichever
 are  applicable  and as such requirements are applied to law enforcement

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

                                                            LBD07879-01-7

 A. 2726                             2
 
 agencies seeking a keyboard search or similar comparison, and  that  the
 data  meets state DNA index system or national DNA index system criteria
 as such criteria are applied to law enforcement agencies seeking such  a
 keyboard  search  or  similar  comparison, the court may order an entity
 that has access to the combined DNA index system or its successor system
 to compare such DNA profile against DNA databanks by keyboard  searches,
 or a similar method that does not involve uploading, upon notice to both
 parties and the entity required to perform the search, upon a showing by
 the  defendant that such a comparison is material to the presentation of
 his or her defense and that the request is reasonable. For  purposes  of
 this paragraph, a "keyboard search" shall mean a search of a DNA profile
 against  the  databank  in  which  the  profile  that is searched is not
 uploaded to or maintained in the databank; AND (E) MAY ORDER  THE  DIVI-
 SION  OF  CRIMINAL JUSTICE SERVICES TO COMPARE A FINGERPRINT OBTAINED IN
 CONNECTION WITH  THE  INVESTIGATION  OR  PROSECUTION  OF  THE  DEFENDANT
 AGAINST  THE  STATEWIDE  AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM, OR
 ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTOMATED  FINGERPRINT
 IDENTIFICATION  SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON THE COURT'S DETER-
 MINATION THAT SUCH FINGERPRINT COMPLIES WITH FEDERAL BUREAU OF  INVESTI-
 GATION  OR  STATE  REQUIREMENTS,  WHICHEVER  ARE  APPLICABLE AND AS SUCH
 REQUIREMENTS ARE APPLIED TO LAW  ENFORCEMENT  AGENCIES  SEEKING  SUCH  A
 COMPARISON  AND  UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS
 MATERIAL TO THE PREPARATION OF HIS OR HER DEFENSE, AND THAT THE  REQUEST
 IS  REASONABLE.    Upon granting the motion pursuant to paragraph (c) of
 this subdivision, the court shall, upon motion  of  the  people  showing
 such  to  be  material  to  the  preparation  of their case and that the
 request is reasonable, condition  its  order  of  discovery  by  further
 directing discovery by the people of property, of the same kind or char-
 acter  as  that authorized to be inspected by the defendant, which he or
 she intends to introduce at the trial.
   § 2. Section 440.30 of the criminal procedure law is amended by adding
 a new subdivision 1-b to read as follows:
   1-B. IN RESPONSE TO A MOTION UNDER THIS SECTION, THE COURT  MAY  ORDER
 THE  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  TO COMPARE A FINGERPRINT
 OBTAINED IN CONNECTION WITH THE  INVESTIGATION  OR  PROSECUTION  OF  THE
 DEFENDANT  AGAINST  THE  STATEWIDE  AUTOMATED FINGERPRINT IDENTIFICATION
 SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL  INTEGRATED  AUTOMATED
 FINGERPRINT  IDENTIFICATION  SYSTEM,  OR  ITS SUCCESSOR SYSTEM, UPON THE
 COURT'S DETERMINATION THAT (1) SUCH FINGERPRINT  COMPLIES  WITH  FEDERAL
 BUREAU  OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
 AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
 SUCH A COMPARISON AND (2) IF SUCH COMPARISON HAD BEEN CONDUCTED, AND  IF
 THE  RESULTS HAD BEEN ADMITTED IN THE TRIAL RESULTING IN THE JUDGMENT, A
 REASONABLE PROBABILITY EXISTS THAT THE  VERDICT  WOULD  HAVE  BEEN  MORE
 FAVORABLE  TO THE DEFENDANT, OR IN A CASE INVOLVING A PLEA OF GUILTY, IF
 THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT PRIOR  TO  THE  PLEA,  A
 REASONABLE  PROBABILITY  EXISTS  THAT  THE  CONVICTION  WOULD  NOT  HAVE
 RESULTED.
   § 3. This act shall take effect immediately.