S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3597
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2017
                                ___________
 
 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.
   §  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:

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

                                                            LBD08510-01-7

 A. 3597                             2
 
   (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;
   §  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.

 A. 3597                             3
 
   (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
 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.
   § 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:
   § 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.
   §  5.  Section  995-e of the executive law, as added by chapter 737 of
 the laws of 1994, is amended to read as follows:
   § 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.
   § 6. Section 995-f of the executive law, as amended by chapter 560  of
 the laws of 1999, is amended to read as follows:
   § 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

 A. 3597                             4

 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
 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.
   §  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

 A. 3597                             5

 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-
 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.
   § 8. This act shall take effect September 1, 2018.