S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1877
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2023
                                ___________
 
 Introduced  by  M.  of  A.  ZINERMAN,  JACKSON, BURGOS, ANDERSON, SIMON,
   EPSTEIN, GONZALEZ-ROJAS -- read once and referred to the Committee  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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01159-01-3
 A. 1877                             2
              

 
   3. (a) Any designated offender subsequent to conviction and sentencing
 for a crime specified in subdivision seven of section nine hundred nine-
 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
 A. 1877                             3
 
 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 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.