S T A T E O F N E W Y O R K
________________________________________________________________________
6124
2021-2022 Regular Sessions
I N A S S E M B L Y
March 10, 2021
___________
Introduced by M. of A. ZINERMAN -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the executive law, in relation to the establishment of a
single computerized state DNA identification index and requiring muni-
cipalities to expunge any DNA record stored in a municipal DNA iden-
tification index
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 1, 2, 3 and 9 of section 995-c of the execu-
tive law, subdivisions 1 and 2 as added by chapter 737 of the laws of
1994, subdivision 3 as amended by chapter 19 of the laws of 2012,
subparagraph (iii) of paragraph (b) of subdivision 3 as amended by
section 1 of part A of chapter 55 of the laws of 2012 and subdivision 9
as amended by chapter 524 of the laws of 2002, are amended to read as
follows:
1. Following the promulgation of a policy by the commission pursuant
to subdivision nine of section nine hundred ninety-five-b of this arti-
cle, the commissioner of criminal justice services is authorized to
promulgate a plan for the establishment of a SINGLE computerized state
DNA identification index within the division of criminal justice
services. NO COUNTY, CITY, TOWN, VILLAGE, OR MUNICIPALITY, OR ANY ENTITY
THEREOF, MAY ESTABLISH OR MAINTAIN A COMPUTERIZED DNA IDENTIFICATION
INDEX.
2. Following the review and approval of the plan by the DNA subcommit-
tee and the commission and the filing of such plan with the speaker of
the assembly and the temporary president of the senate, the commissioner
of criminal justice services is hereby authorized to establish a SINGLE
computerized state DNA identification index pursuant to the provisions
of this article.
3. (a) Any designated offender subsequent to conviction and sentencing
for a crime specified in subdivision seven of section nine hundred nine-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02638-01-1
A. 6124 2
ty-five of this article, shall be required to provide a sample appropri-
ate for DNA testing to determine identification characteristics specific
to such person and to be included in [a] THE state DNA identification
index pursuant to this article.
(b) (i) In the case of a designated offender who is sentenced to a
term of imprisonment, such sample shall be collected by the public serv-
ant to whose custody the designated offender has been committed.
(ii) In the case of a designated offender who is sentenced to a term
of probation, including a sentence of probation imposed in conjunction
with a sentence of imprisonment when a sample has not already been
taken, such sample shall be collected by the probation department super-
vising the designated offender.
(iii) In the case of a designated offender whose sentence does not
include either a term of imprisonment or a term of probation, outside of
the city of New York, the court shall order that a court officer take a
sample or that the designated offender report to an office of the sher-
iff of that county, and when the designated offender does so, such
sample shall be collected by the sheriff's office. Within the city of
New York, the court shall order that the sample be collected by a court
officer.
(iv) Nothing in this paragraph shall prohibit the collection of a DNA
sample from a designated offender by any court official, state or local
correction official or employee, probation officer, parole officer,
police officer, peace officer, other law enforcement official, or desig-
nated personnel of the division of criminal justice services who has
been notified by the division of criminal justice services that such
designated offender has not provided a DNA sample. Upon notification by
the division of criminal justice services that a designated offender has
not provided a DNA sample, such court official, state or local
correction official or employee, probation officer, parole officer,
police officer, peace officer or other law enforcement official, or
designated personnel of the division of criminal justice services shall
collect the DNA sample.
(C) NO PERSONS OTHER THAN DESIGNATED OFFENDERS SHALL BE REQUIRED TO
PROVIDE A DNA SAMPLE FOR INCLUSION IN THE DNA IDENTIFICATION INDEX.
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
A. 6124 3
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 or pursuant to a warrant or order of a court,] has provided, OR
LAW ENFORCEMENT HAS OBTAINED, a sample for DNA testing in connection
with the investigation or prosecution of a crime and (i) no criminal
action against the individual relating to such crime was commenced with-
in the period specified by section 30.10 of the criminal procedure law,
or (ii) IN THE CASE OF A JUVENILE DELINQUENCY ARREST, NO PROCEEDING
UNDER ARTICLE THREE OF THE FAMILY COURT ACT WAS COMMENCED WITHIN THE
PERIOD SPECIFIED BY SECTION 302.2 OF THE FAMILY COURT ACT; OR (III) a
criminal action OR A PROCEEDING UNDER ARTICLE THREE OF THE FAMILY COURT
ACT was commenced against the individual relating to such crime which
resulted in a complete acquittal, DISMISSAL, OR ADJUDICATION OR
CONVICTION OF A NON-CRIMINAL OFFENSE, or [(iii)] (IV) a criminal action
against the individual relating to such crime resulted in a conviction
that was subsequently reversed or vacated, or for which the individual
was granted a pardon pursuant to article two-A of this chapter, such
individual may apply to the supreme court, THE COURT THAT HAD JURISDIC-
TION OVER THE MATTER 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 investigation or pros-
ecution of such crime. A copy of such application shall be served on the
district attorney OR PRESENTMENT AGENCY and an order directing expunge-
ment [may] SHALL 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, such record and any samples, analyses, or
other documents shall, at the discretion of the possessor thereof, be
destroyed or returned to such individual or to the attorney who repres-
ented him or her in connection with the application for the order of
expungement. NOTHING IN THIS SUBDIVISION AUTHORIZES ANY COUNTY, CITY,
TOWN, VILLAGE, OR MUNICIPALITY, OR ANY ENTITY THEREOF, TO ESTABLISH OR
MAINTAIN A COMPUTERIZED DNA IDENTIFICATION INDEX.
(C) ANY DNA RECORD STORED IN A DNA IDENTIFICATION INDEX BY ANY COUNTY,
CITY, TOWN, VILLAGE, OR MUNICIPALITY, OR ENTITY THEREOF, MUST BE
EXPUNGED WITHIN NINETY DAYS OF THE EFFECTIVE DATE OF THIS PARAGRAPH.
§ 2. This act shall take effect immediately.