S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2958
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 20, 2015
                                      ___________
       Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. BENEDET-
         TO, CLARK, COOK, DINOWITZ, ENGLEBRIGHT, GALEF, LAVINE, LIFTON, MAGNAR-
         ELLI,  PRETLOW,  RAMOS, SCARBOROUGH, TITUS, ZEBROWSKI -- read once and
         referred to the Committee on Codes
       AN ACT to amend the executive law, the criminal procedure  law  and  the
         state  finance  law,  in  relation to DNA testing, data collection and
         record keeping, and to special indictments by fictitious name  in  DNA
         cases;  and  in  relation  to  creating the innocence research project
         program
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section 995-b of the executive law is amended by adding a
    2  new subdivision 15 to read as follows:
    3    15. (A) THE COMMISSION, IN CONSULTATION  WITH  THE  DNA  SUBCOMMITTEE,
    4  SHALL  PROMULGATE A PLAN TO INCLUDE ALL PERSONS CONVICTED OF A PENAL LAW
    5  MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX. SUCH  PLAN  SHALL  BE
    6  SUBMITTED  TO  THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, AND THE TEMPO-
    7  RARY PRESIDENT OF THE SENATE NO LATER THAN DECEMBER FIRST, TWO  THOUSAND
    8  FIFTEEN.
    9    (B) THE PLAN REQUIRED BY THIS SECTION SHALL INCLUDE, BUT NOT BE LIMIT-
   10  ED TO, THE FOLLOWING:
   11    (I)  THE  CAPACITY OF THE NEW YORK STATE POLICE FORENSIC INVESTIGATION
   12  CENTER TO PROCESS DNA SAMPLES COLLECTED FROM DESIGNATED OFFENDERS;
   13    (II) THE ANTICIPATED INCREASE IN THE NUMBER OF DNA  SAMPLES  COLLECTED
   14  PER  YEAR  DUE  TO THE INCLUSION OF ALL PERSONS CONVICTED OF A PENAL LAW
   15  MISDEMEANOR IN THE STATE DNA IDENTIFICATION INDEX;
   16    (III) THE ANTICIPATED NUMBER OF DNA SAMPLES  THAT  WILL  BE  COLLECTED
   17  FROM  PERSONS  IN  CUSTODY  OR UNDER SUPERVISION FOR THE CONVICTION OF A
   18  PENAL LAW MISDEMEANOR AS OF THE DATE OF SUCH PLAN;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02954-01-5
       A. 2958                             2
    1    (IV) THE ANTICIPATED BACKLOG OF UNANALYZED DNA SAMPLES  THAT  WILL  BE
    2  CREATED  BY  EXPANDING THE STATE DNA IDENTIFICATION INDEX TO INCLUDE ALL
    3  PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
    4    (V)  THE  MANNER IN WHICH A BACKLOG OF THE UNANALYZED DNA SAMPLES WILL
    5  BE PROCESSED, AND SPECIFICALLY, WHETHER THE STATE WILL  BE  REQUIRED  TO
    6  OUTSOURCE THE ANALYSIS OF BACKLOGGED SAMPLES TO PRIVATE LABORATORIES;
    7    (VI)  THE  ESTIMATED  AMOUNT OF TIME IT WILL TAKE TO ANALYZE ALL BACK-
    8  LOGGED DNA SAMPLES;
    9    (VII) THE ANTICIPATED COST TO COLLECT AND ANALYZE  DNA  SAMPLES  TAKEN
   10  FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR EACH YEAR AND THE COST
   11  TO  COLLECT  AND  ANALYZE  DNA  SAMPLES TAKEN FROM PERSONS IN CUSTODY OR
   12  UNDER SUPERVISION FOR THE CONVICTION OF A PENAL LAW MISDEMEANOR;
   13    (VIII) THE ANNUAL NUMBER OF ARRESTS, INDICTMENTS, AND CONVICTIONS THAT
   14  HAVE RESULTED FROM COMPARING DNA RECORDS OF DESIGNATED OFFENDERS  STORED
   15  IN  THE  STATE  DNA  IDENTIFICATION  INDEX WITH DNA RECORDS FROM UNKNOWN
   16  SUSPECTS DERIVED FROM THE FORENSIC EXAMINATION OF CRIME SCENES;
   17    (IX) THE ANTICIPATED EFFECT ON THE PROMPT AND ACCURATE  PROCESSING  OF
   18  DNA  SAMPLES COLLECTED FROM THE FORENSIC EXAMINATION OF CRIME SCENES DUE
   19  TO THE INFLUX OF DNA SAMPLES COLLECTED FROM PERSONS CONVICTED OF A PENAL
   20  LAW MISDEMEANOR.
   21    (C) THE PLAN REQUIRED BY THIS SECTION SHALL ALSO RECOMMEND:
   22    (I) THE AMOUNT OF FUNDING NECESSARY TO COLLECT AND ANALYZE DNA SAMPLES
   23  COLLECTED FROM ALL PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR;
   24    (II) THE MOST EFFECTIVE WAY TO PROCESS THE  INCREASED  NUMBER  OF  DNA
   25  SAMPLES  COLLECTED  FROM PERSONS CONVICTED OF A PENAL LAW MISDEMEANOR TO
   26  REDUCE ANY RESULTING BACKLOG IN AN EFFICIENT MANNER; AND
   27    (III) WHETHER ADDITIONAL QUALITY ASSURANCE MEASURES SHOULD  BE  IMPLE-
   28  MENTED  IN CONJUNCTION WITH SUCH EXPANSION AND WHAT SUCH MEASURES SHOULD
   29  BE.
   30    S 2. The opening paragraph of subdivision 1 of section  995-a  of  the
   31  executive  law,  as added by chapter 737 of the laws of 1994, is amended
   32  to read as follows:
   33    There is hereby created in the executive department, the commission on
   34  forensic science,  which  shall  consist  of  the  following  [fourteen]
   35  SIXTEEN members:
   36    S  3. Paragraph (i) of subdivision 2 of section 995-a of the executive
   37  law, as added by chapter 737 of the laws of 1994, is amended,  paragraph
   38  (j)  is  relettered  (k)  and  a  new  paragraph (j) is added to read as
   39  follows:
   40    (i) two members shall  be  members-at-large,  one  of  whom  shall  be
   41  appointed  upon  the  recommendation  of  the temporary president of the
   42  senate, and one of whom shall be appointed upon  the  recommendation  of
   43  the speaker of the assembly; [and]
   44    (J)  TWO MEMBERS SHALL BE JOINTLY APPOINTED BY THE TEMPORARY PRESIDENT
   45  OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY: ONE SUCH PERSON SHALL  BE
   46  A  CRIME  VICTIMS  ADVOCATE,  AND  ONE SUCH PERSON SHALL BE AN EXPERT IN
   47  BIOMEDICAL ETHICS; AND
   48    S 4.  Subparagraph (ix) of paragraph (b) of subdivision 9  of  section
   49  995-b of the executive law, as added by chapter 737 of the laws of 1994,
   50  is amended and a new subparagraph (x) is added to read as follows:
   51    (ix)  such policy shall provide for the mutual exchange, use and stor-
   52  age of DNA records with the system of DNA identification utilized by the
   53  federal bureau of investigation provided that the commission  determines
   54  that  such  exchange, use and storage are consistent with the provisions
   55  of this article and applicable provisions of law[.]; AND
       A. 2958                             3
    1    (X) SUCH POLICY, WHICH SHALL BE DEVELOPED AND PROMULGATED  WITHIN  ONE
    2  YEAR  OF  THE  EFFECTIVE  DATE  OF  THIS  SUBPARAGRAPH, SHALL DETERMINE,
    3  CONSISTENT WITH THIS ARTICLE, THE APPROPRIATE  MINIMUM  PERIOD  OF  TIME
    4  THAT  FORENSIC  SAMPLES  OF BLOOD, TISSUE AND OTHER BIOLOGICAL MATERIAL,
    5  OBTAINED  IN  CONNECTION  WITH THE FORENSIC EXAMINATION OF CRIME SCENES,
    6  SHOULD BE RETAINED BY INVESTIGATING AUTHORITIES AND THE TIME  OR  SPECI-
    7  FIED  EVENT OR EVENTS, IF ANY, AFTER WHICH, CONSISTENT WITH THE INTEREST
    8  OF ALL PERSONS AND LAW ENFORCEMENT, SUCH SAMPLES MAY BE DESTROYED. PEND-
    9  ING THE PROMULGATION OF A POLICY ADDRESSING THE ISSUES SET FORTH IN THIS
   10  SUBPARAGRAPH, THE COMMISSION MAY ADOPT AN INTERIM POLICY  MANDATING  THE
   11  PRESERVATION  BY INVESTIGATING AUTHORITIES OF FORENSIC SAMPLES OF BLOOD,
   12  TISSUE AND OTHER BIOLOGICAL MATERIAL OBTAINED  IN  CONNECTION  WITH  THE
   13  FORENSIC EXAMINATION OF CRIME SCENES.
   14    S  5.  Section  995-b  of the executive law is amended by adding a new
   15  subdivision 14 to read as follows:
   16    14. THE COMMISSION SHALL REVIEW THE CONFIDENTIALITY  SAFEGUARDS  WHICH
   17  ARE  MAINTAINED WITH RESPECT TO DNA SAMPLES BEFORE AND AFTER INFORMATION
   18  FROM SUCH SAMPLES IS ENCODED INTO THE STATE DNA IDENTIFICATION INDEX AND
   19  SHALL DETERMINE WHETHER ANY ADDITIONAL  CONFIDENTIALITY  SAFEGUARDS  ARE
   20  NECESSARY  WITH RESPECT TO SUCH SAMPLES. THE COMMISSION SHALL ALSO ISSUE
   21  A REPORT TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE
   22  ASSEMBLY WHICH DESCRIBES HOW SUCH SAMPLES ARE RETAINED AND  THE  REASONS
   23  FOR MAINTAINING SUCH SAMPLES, FOLLOWING THE ENCODING OF INFORMATION FROM
   24  SUCH  SAMPLES INTO THE STATE DNA IDENTIFICATION INDEX. SUCH REPORT SHALL
   25  ALSO RECOMMEND WHETHER A PROGRAM TO DESTROY ANY SUCH SAMPLES,  FOLLOWING
   26  THE  ENCODING  OF INFORMATION FROM SUCH SAMPLES INTO THE STATE DNA IDEN-
   27  TIFICATION INDEX, SHOULD BE INITIATED OR  WHETHER,  ALTERNATIVELY,  SUCH
   28  SAMPLES SHALL CONTINUE TO BE MAINTAINED.
   29    S  6. Subdivision 2 of section 995-c of the executive law, as added by
   30  chapter 737 of the laws of 1994, is amended to read as follows:
   31    2. (A) Following the review and  approval  of  the  plan  by  the  DNA
   32  subcommittee  and  the  commission  and the filing of such plan with the
   33  speaker of the assembly and the temporary president of the  senate,  the
   34  commissioner of criminal justice services is hereby authorized to estab-
   35  lish  a  computerized  state  DNA  identification  index pursuant to the
   36  provisions of this article.  NO OTHER DNA IDENTIFICATION INDEX OR COMPI-
   37  LATION OF DNA IDENTIFICATION PROFILES MAY BE MAINTAINED  IN  THIS  STATE
   38  PROVIDED,  HOWEVER,  THAT  THIS  PROHIBITION SHALL NOT BE INTERPRETED TO
   39  PROHIBIT ANY SUCH INDEX OR COMPILATION OF DNA INFORMATION OBTAINED  FROM
   40  CRIME SCENE SAMPLES OR CONCERNING MISSING PERSONS.
   41    (B) IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION AND THIS SUBDI-
   42  VISION, AND IN A MANNER CONSISTENT WITH THIS ARTICLE, THE COMMISSION MAY
   43  AUTHORIZE THE INCLUSION OF DNA RECORDS DERIVED FROM FORENSIC EXAMINATION
   44  OF CRIME SCENES IN THE STATE DNA IDENTIFICATION INDEX.
   45    S 7.  Paragraph (b) of subdivision 9 of section 995-c of the executive
   46  law, as added by chapter 524 of the laws of 2002, is amended and two new
   47  paragraphs (c) and (d) are added to read as follows:
   48    (b)  As  prescribed in this paragraph, if an individual, either volun-
   49  tarily or pursuant to a warrant or order of  a  court,  has  provided  a
   50  sample  for  DNA  testing in connection with the investigation or prose-
   51  cution of a crime and (i) no  criminal  action  against  the  individual
   52  relating  to  such  crime  was  commenced within the period specified by
   53  section 30.10 of the criminal procedure law, or (ii) a  criminal  action
   54  was  commenced  against  the  individual  relating  to  such crime which
   55  resulted in a complete acquittal, OR A DISMISSAL AND THE MATTER WILL NOT
   56  BE TRIED OR RETRIED, or (iii) a criminal action against  the  individual
       A. 2958                             4
    1  relating  to  such  crime resulted in a conviction that was subsequently
    2  reversed or vacated, or for which the individual was  granted  a  pardon
    3  pursuant  to article two-A of this chapter, such individual may apply to
    4  the  supreme  court or the court in which the judgment of conviction was
    5  originally entered for an order directing the  expungement  of  any  DNA
    6  record and any samples, analyses, or other documents relating to the DNA
    7  testing of such individual in connection with the investigation or pros-
    8  ecution of such crime. A copy of such application shall be served on the
    9  district  attorney  and an order directing expungement may be granted if
   10  the court finds that the individual has satisfied the conditions of  one
   11  of the subparagraphs of this paragraph; that if a judgment of conviction
   12  was  reversed  or  vacated,  all  appeals  relating  thereto  have  been
   13  concluded and the individual will not be retried, or, if a  retrial  has
   14  occurred,  the  trier of fact has rendered a verdict of complete acquit-
   15  tal, and that expungement will not adversely affect the investigation or
   16  prosecution of some other person or persons for the crime.   NOTHING  IN
   17  THIS  PARAGRAPH SHALL PREVENT A COURT, AT AN EARLIER TIME, FROM ORDERING
   18  EXPUNGEMENT IN THE MANNER SPECIFIED IN THIS PARAGRAPH IN  THE  INTERESTS
   19  OF JUSTICE, IN RESPONSE TO AN APPLICATION MADE ON NOTICE TO THE DISTRICT
   20  ATTORNEY BY THE PERSON WHO PROVIDED SUCH DNA SAMPLE. If an order direct-
   21  ing the expungement of any DNA record and any samples, analyses or other
   22  documents relating to the DNA testing of such individual is issued, such
   23  record  and  any  samples,  analyses,  or  other documents shall, at the
   24  discretion of the possessor thereof, be destroyed or  returned  to  such
   25  individual  or  to the attorney who represented him or her in connection
   26  with the application for the order of expungement. THE PERSON DESTROYING
   27  OR RETURNING SUCH RECORD, SAMPLES, ANALYSES AND  OTHER  DOCUMENTS  SHALL
   28  MAINTAIN A RECORD CERTIFYING THE DATE, TIME AND MANNER OF DESTRUCTION OR
   29  RETURN  AND  IDENTIFYING  THE  PERSON OR PERSONS DESTROYING OR RETURNING
   30  SAME.  THE PERSON DESTROYING OR RETURNING SAME SHALL SEND A COPY OF THIS
   31  RECORD TO THE PERSON WHO SUBMITTED THE SAMPLE OR  TO  THE  ATTORNEY  WHO
   32  REPRESENTED  HIM OR HER IN CONNECTION WITH THE APPLICATION FOR THE ORDER
   33  OF EXPUNGEMENT.
   34    (C) (I) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, IF AN
   35  INDIVIDUAL HAS PROVIDED A SAMPLE FOR DNA TESTING IN CONNECTION WITH  THE
   36  INVESTIGATION  OR  PROSECUTION  OF  A CRIME, OTHER THAN IN RESPONSE TO A
   37  DEMAND AUTHORIZED PURSUANT TO SUBDIVISIONS ONE, TWO AND  THREE  OF  THIS
   38  SECTION,  OR  IF  A  SAMPLE  FOR DNA TESTING HAS OTHERWISE COME INTO THE
   39  CUSTODY OR POSSESSION OF A LAW ENFORCEMENT AGENCY OR AN  AGENT  THEREOF,
   40  AND  THE  DNA  PROFILE  DERIVED  FROM  SUCH  SAMPLE DOES NOT MATCH A DNA
   41  PROFILE DERIVED FROM CRIME SCENE EVIDENCE DEVELOPED IN  CONNECTION  WITH
   42  THE  INVESTIGATION  OR  PROSECUTION  OF  A  CRIMINAL  ACT OR ACTS, EVERY
   43  RECORD, SAMPLE, ANALYSIS AND OTHER DOCUMENT RELATING TO THE DNA  TESTING
   44  OF  SUCH  SAMPLE  SHALL,  AT THE DISCRETION OF THE POSSESSOR THEREOF, BE
   45  EITHER RETURNED TO THE INDIVIDUAL WHO PROVIDED SUCH SAMPLE, DESTROYED OR
   46  MAINTAINED FOR THE DURATION OF THE INVESTIGATION, PROSECUTION OR ADJUDI-
   47  CATION OF SUCH CRIMINAL ACTS EXCLUSIVELY FOR USE  WITH  RESPECT  TO  THE
   48  INVESTIGATION,  PROSECUTION  AND/OR ADJUDICATION OF THE CRIMINAL CHARGES
   49  FOR WHICH SUCH SAMPLE WAS OBTAINED OR WITH RESPECT TO ANY OTHER CRIMINAL
   50  ACTS WHICH THE INVESTIGATING AGENCY HAS REASON TO BELIEVE MAY BE  LINKED
   51  TO  SUCH  SAMPLE; PROVIDED, HOWEVER, THAT NO LATER THAN FIVE YEARS AFTER
   52  SUCH SAMPLE IS OBTAINED OR WHEN THE INVESTIGATION OR PROSECUTION OF SUCH
   53  CRIME HAS CONCLUDED, WHICHEVER  FIRST  OCCURS,  SUCH  RECORDS,  SAMPLES,
   54  ANALYSES  AND  OTHER DOCUMENTS SHALL, AT THE DISCRETION OF THE POSSESSOR
   55  THEREOF, BE RETURNED TO SUCH INDIVIDUAL OR DESTROYED, OR SEALED  IN    A
   56  MANNER CONSISTENT WITH PARAGRAPH (C) AND SUBPARAGRAPHS (II), (IV) OR (V)
       A. 2958                             5
    1  OF  PARAGRAPH  (D)  OF SUBDIVISION ONE OF SECTION 160.55 OF THE CRIMINAL
    2  PROCEDURE LAW.
    3    (II) THE PERSON RETURNING, DESTROYING OR SEALING SUCH RECORD, SAMPLES,
    4  ANALYSES  OR  OTHER  DOCUMENTS  IN  ACCORDANCE WITH THIS PARAGRAPH SHALL
    5  MAINTAIN A RECORD  CERTIFYING  THE  DATE  AND  MANNER  OF  SUCH  RETURN,
    6  DESTRUCTION  OR SEALING AND IDENTIFYING THE PERSON OR PERSONS RETURNING,
    7  DESTROYING OR SEALING SAME.  THE PERSON RETURNING, DESTROYING OR SEALING
    8  SAME SHALL SEND A COPY OF THIS RECORD TO THE PERSON  WHO  SUBMITTED  THE
    9  SAMPLE.
   10    (III)  THIS PARAGRAPH SHALL SUPPLEMENT AND NOT SUPPLANT ANY APPLICABLE
   11  PROVISION OF PARAGRAPH (B) OF THIS SUBDIVISION. THIS PARAGRAPH SHALL NOT
   12  APPLY TO DNA RECORDS, SAMPLES, ANALYSES  AND  OTHER  DOCUMENTS  OBTAINED
   13  FROM  THE  FORENSIC  EXAMINATION  OF CRIME SCENE EVIDENCE, WHERE THE DNA
   14  PROFILE DEVELOPED FROM SUCH CRIME SCENE EVIDENCE DOES NOT MATCH THE  DNA
   15  PROFILE OF A KNOWN PERSON.
   16    (D)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPHS (A), (B) AND (C) OF
   17  THIS SUBDIVISION, A DNA RECORD WHICH WAS OBTAINED FROM A SAMPLE PROVIDED
   18  PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION PRIOR TO THE EFFEC-
   19  TIVE DATE OF THIS PARAGRAPH NEED NOT BE DESTROYED, RETURNED  OR  SEALED,
   20  AND  MAY  BE  INCLUDED IN THE STATE DNA IDENTIFICATION INDEX ESTABLISHED
   21  PURSUANT TO THIS ARTICLE, WHEN, AS OF THE EFFECTIVE DATE OF  THIS  PARA-
   22  GRAPH,  THE PERSON WHO PROVIDED SUCH SAMPLE STANDS CONVICTED OF A FELONY
   23  OR MISDEMEANOR DEFINED IN SECTION NINE HUNDRED NINETY-FIVE OF THIS ARTI-
   24  CLE.  ALL LAWS GOVERNING DNA RECORDS INCLUDED IN THE STATE DNA IDENTIFI-
   25  CATION INDEX SHALL APPLY TO ANY DNA RECORD INCLUDED  IN  THE  STATE  DNA
   26  IDENTIFICATION INDEX PURSUANT TO THIS PARAGRAPH.
   27    S  8.    Section 995-c of the executive law is amended by adding a new
   28  subdivision 10 to read as follows:
   29    10. A SUPERIOR COURT, IN RESPONSE TO A MOTION FOR SUCH COMPARISON BY A
   30  DEFENDANT, MAY ORDER THAT DNA INFORMATION FROM A CRIME SCENE  SAMPLE  OR
   31  SAMPLES  OBTAINED IN THE COURSE OF THE INVESTIGATION OF AN ALLEGED CRIME
   32  BE CHECKED AGAINST THE DNA RECORDS MAINTAINED BY  OR  AVAILABLE  THROUGH
   33  THE  STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSUANT TO THIS SECTION
   34  AND THE NATIONAL DNA INDEX SYSTEM, AND THAT THE RESULTS OF SUCH CHECK OR
   35  CHECKS BE DISCLOSED TO SUCH DEFENDANT AND TO THE PROSECUTOR WHOSE JURIS-
   36  DICTION INCLUDES THE LOCATION OF THE ALLEGED COMMISSION OF  SUCH  CRIME,
   37  UPON A SHOWING BY THE DEFENDANT THAT SUCH AN ANALYSIS MAY BE MATERIAL TO
   38  HIS OR HER DEFENSE AND THAT THE REQUEST IS REASONABLE.
   39    S  9.  Section 995-d of the executive law is amended by adding two new
   40  subdivisions 3 and 4 to read as follows:
   41    3. IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION, ANY INDIVID-
   42  UAL DNA PROFILE OBTAINED OR MAINTAINED BY A STATE, COUNTY OR  LOCAL  LAW
   43  ENFORCEMENT  AGENCY,  OR  AN  AGENT  THEREOF,  FROM  A BIOLOGICAL SAMPLE
   44  SUBMITTED IN THE MANNER DESCRIBED IN PARAGRAPH (B) OR (C) OF SUBDIVISION
   45  NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  MAY  BE
   46  COMPARED  INDIVIDUALLY  OR  VIA COMPUTERIZED DATABASE TO ONE OR MORE DNA
   47  PROFILES MAINTAINED PURSUANT TO OR IN ACCORDANCE WITH SUBDIVISIONS  ONE,
   48  TWO  AND  THREE  OF  SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE,
   49  AND/OR MAY BE INDIVIDUALLY COMPARED BY SUCH STATE, COUNTY OR  LOCAL  LAW
   50  ENFORCEMENT  AGENCY,  OR  AN  AGENT THEREOF, TO ONE OR MORE DNA PROFILES
   51  DEVELOPED FROM THE FORENSIC EXAMINATION OF CRIME SCENES IN ONE  OR  MORE
   52  CASES UNDER INVESTIGATION.
   53    (A)  IF  SUCH INDIVIDUAL DNA PROFILE MATCHES THE DNA PROFILE DEVELOPED
   54  FROM THE FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE OR MORE
   55  CASES UNDER INVESTIGATION, AND/OR ONE OR MORE  DNA  PROFILES  MAINTAINED
   56  PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND THREE OF SECTION NINE HUNDRED
       A. 2958                             6
    1  NINETY-FIVE-C OF THIS ARTICLE, SUCH  INDIVIDUAL  DNA  PROFILE,  TOGETHER
    2  WITH  THE BIOLOGICAL MATERIAL FROM WHICH SUCH INDIVIDUAL DNA PROFILE WAS
    3  DEVELOPED, MAY, AS APPROPRIATE PURSUANT TO APPLICABLE LAWS AND RULES  OF
    4  EVIDENCE  AND  CONSISTENT  WITH THIS ARTICLE, BE USED IN CONNECTION WITH
    5  THE INVESTIGATION, PROSECUTION AND/OR ADJUDICATION OF SUCH PERSON.
    6    (B) IF SUCH INDIVIDUAL DNA PROFILE DOES  NOT  MATCH  THE  DNA  PROFILE
    7  DEVELOPED  FROM  FORENSIC EXAMINATION OF ONE OR MORE CRIME SCENES IN ONE
    8  OR MORE CASES UNDER INVESTIGATION, AND/OR ONE OR MORE DNA PROFILES MAIN-
    9  TAINED PURSUANT TO SUBDIVISIONS ONE,  TWO  AND  THREE  OF  SECTION  NINE
   10  HUNDRED  NINETY-FIVE-C  OF  THIS  ARTICLE,  SUCH INDIVIDUAL DNA PROFILE,
   11  TOGETHER WITH THE BIOLOGICAL MATERIAL FROM  WHICH  SUCH  INDIVIDUAL  DNA
   12  PROFILE  WAS DEVELOPED, SHALL BE DEALT WITH IN ACCORDANCE WITH PARAGRAPH
   13  (C) OF SUBDIVISION NINE OF SECTION NINE HUNDRED  NINETY-FIVE-C  OF  THIS
   14  ARTICLE.
   15    4. (A) EXCEPT WHERE THE DEMAND IS PURSUANT TO A COURT ORDER OR WARRANT
   16  OR  PURSUANT  TO SUBDIVISION THREE OF SECTION NINE HUNDRED NINETY-FIVE-C
   17  OF THIS ARTICLE, PRIOR TO REQUESTING A BIOLOGICAL SAMPLE FROM  AN  INDI-
   18  VIDUAL  THAT  WILL  BE  USED FOR DNA TESTING, THE POLICE DEPARTMENT, LAW
   19  ENFORCEMENT AGENCY, OR AGENT THEREOF REQUESTING SUCH SAMPLE SHALL OBTAIN
   20  WRITTEN INFORMED CONSENT FROM  SUCH  INDIVIDUAL  CONSISTING  OF  WRITTEN
   21  AUTHORIZATION IN PLAIN LANGUAGE THAT IS DATED AND SIGNED AND INCLUDES AT
   22  LEAST THE FOLLOWING: (1) A GENERAL DESCRIPTION OF THE TEST; (2) A STATE-
   23  MENT  THAT  THE  DNA  SAMPLE  OF  THE  SUBJECT MAY INITIALLY BE COMPARED
   24  AGAINST ANY CRIME SCENE EVIDENCE OR DATABASE OF CRIME SCENE EVIDENCE AND
   25  A DESCRIPTION OF WHETHER, IN THE EVENT  SUCH  SUBJECT  SAMPLE  DOES  NOT
   26  MATCH  A  DNA  PROFILE  DERIVED FROM ANY SUCH CRIME SCENE EVIDENCE, SUCH
   27  SUBJECT SAMPLE WILL THEREAFTER BE RETURNED, DESTROYED OR RETAINED.    IN
   28  THE  EVENT THE AGENT REQUESTING SUCH SAMPLE MAY RETAIN SUCH SAMPLE, SUCH
   29  STATEMENT SHALL DESCRIBE THE CIRCUMSTANCES UNDER WHICH SUCH  SAMPLE  MAY
   30  THEREAFTER  BE  LAWFULLY  USED;  (3)  THE NAME OF THE PERSON OR SPECIFIC
   31  CATEGORIES OF PERSONS OR ORGANIZATIONS TO WHOM THE TEST RESULTS  MAY  BE
   32  DISCLOSED;  (4)  A  STATEMENT  THAT NO TESTS OTHER THAN THOSE AUTHORIZED
   33  SHALL BE PERFORMED ON THE BIOLOGICAL SAMPLE; AND (5) A  SUMMARY  OF  THE
   34  INFORMATION  SET  FORTH IN PARAGRAPHS (B) AND (C) OF SUBDIVISION NINE OF
   35  SECTION NINE HUNDRED NINETY-FIVE-C OF THIS ARTICLE.
   36    (B) NONCOMPLIANCE WITH ANY PROVISION OF THIS SUBDIVISION SHALL NOT  IN
   37  AND  OF  ITSELF AFFECT THE ADMISSIBILITY OF EVIDENCE OR OTHERWISE AFFECT
   38  ANY CONVICTION OR CRIMINAL PROSECUTION.
   39    S 10.  Section 995-f of the executive law, as amended by  chapter  560
   40  of the laws of 1999, is amended to read as follows:
   41    S 995-f. Penalties.  Any  person who (a) intentionally discloses a DNA
   42  record, or the results of a forensic DNA test or analysis, to  an  indi-
   43  vidual  or  agency  other  than  one  authorized  to have access to such
   44  records pursuant to this article or (b) intentionally uses  or  receives
   45  DNA  records,  or  the  results  of a forensic DNA test or analysis, for
   46  purposes other than those authorized pursuant to this article or (c) any
   47  person who knowingly tampers or attempts to tamper with any  DNA  sample
   48  or  the  collection  container  without  lawful  authority OR (D) INTEN-
   49  TIONALLY SUBJECTS TO OR SUBMITS FOR TESTING OR ANALYSIS  NOT  AUTHORIZED
   50  BY THIS ARTICLE AN INDIVIDUAL'S DNA RECORD OR SAMPLE, shall be guilty of
   51  a class [E] D felony.
   52    S  11. Section 1.20 of the criminal procedure law is amended by adding
   53  a new subdivision 44 to read as follows:
   54    44. "SPECIAL FICTITIOUS NAME INDICTMENT"  MEANS  AN  INDICTMENT  OF  A
   55  PERSON  WHOSE  NAME  IS UNKNOWN BUT WHOSE IDENTITY IS ESTABLISHED TO THE
   56  SATISFACTION OF A GRAND JURY PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION
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    1  190.65  OF THIS CHAPTER BY MEANS OF FORENSIC DEOXYRIBONUCLEIC ACID (DNA)
    2  TESTING OF EVIDENCE. THE CAPTION OF A SPECIAL FICTITIOUS NAME INDICTMENT
    3  SHALL INCLUDE A FICTITIOUS NAME, SUCH AS "JOHN DOE" OR  "JANE  DOE",  IN
    4  PLACE OF THE NAME OF THE DEFENDANT WHOSE TRUE NAME IS UNKNOWN.
    5    S 12. Subdivision 3 of section 190.65 of the criminal procedure law is
    6  amended to read as follows:
    7    3.  Upon  voting  to  indict  a person, a grand jury must, through its
    8  foreman or acting foreman, file an indictment with the court by which it
    9  was impaneled.  WHEN THE NAME OF THE INDICTED PERSON IS UNKNOWN BUT  HIS
   10  OR  HER  IDENTITY  IS  ESTABLISHED TO THE SATISFACTION OF THE GRAND JURY
   11  PURSUANT TO SUBDIVISION ONE OF THIS SECTION BY MEANS OF FORENSIC  DEOXY-
   12  RIBONUCLEIC  ACID  (DNA) TESTING OF EVIDENCE, THEN SUCH INDICTMENT SHALL
   13  BE FILED BY THE GRAND JURY WITH SUCH COURT AS A SPECIAL FICTITIOUS  NAME
   14  INDICTMENT.  THE  AUTHORITY TO FILE A SPECIAL FICTITIOUS NAME INDICTMENT
   15  PURSUANT TO THIS SUBDIVISION SHALL BE IN ADDITION TO ANY OTHER AUTHORITY
   16  IN LAW FOR THE FILING OF AN INDICTMENT WHEN  THE  NAME  OF  AN  INDICTED
   17  PERSON IS UNKNOWN.
   18    S  13.  Section  340.20  of  the  criminal procedure law is amended by
   19  adding a new subdivision 5 to read as follows:
   20    5. PRIOR TO ACCEPTING A DEFENDANT'S PLEA  OF  GUILTY  TO  A  COUNT  OR
   21  COUNTS OF AN INFORMATION CHARGING A MISDEMEANOR, AS DEFINED IN PARAGRAPH
   22  (A) OF SUBDIVISION TWO OF SECTION 55.10 OF THE PENAL LAW AND INCLUDED IN
   23  THE  DEFINITION  OF DESIGNATED OFFENDER PURSUANT TO SUBDIVISION SEVEN OF
   24  SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE  COURT  SHALL
   25  ADVISE THE DEFENDANT THAT UPON THE CONVICTION FOR SUCH MISDEMEANOR HE OR
   26  SHE WILL BE REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING FOR
   27  INCLUSION  IN  THE  STATE  DNA  IDENTIFICATION INDEX PURSUANT TO ARTICLE
   28  FORTY-NINE-B OF THE EXECUTIVE LAW. THE COURT SHALL AFFIRM ON THE  RECORD
   29  OR  IN  WRITING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE REQUIRED BY
   30  THIS SUBDIVISION. THE FAILURE OF A COURT TO ADVISE THE DEFENDANT  PURSU-
   31  ANT  TO  THIS  SUBDIVISION OR TO OTHERWISE COMPLY WITH THE PROVISIONS OF
   32  THIS SUBDIVISION SHALL NOT BE DEEMED TO AFFECT THE  VOLUNTARINESS  OF  A
   33  PLEA OF GUILTY OR THE VALIDITY OF A CONVICTION.
   34    S  14. Subdivision 1-a of section 440.30 of the criminal procedure law
   35  is amended by adding a new paragraph (d) to read as follows:
   36    (D) IN CONJUNCTION WITH THE FILING OF A MOTION UNDER THIS SUBDIVISION,
   37  THE COURT MAY DIRECT THE STATE TO PROVIDE THE MOVANT  WITH  INFORMATION,
   38  INCLUDING  DOCUMENTS,  NOTES,  LOGS OR REPORTS, RELATING TO ANY PHYSICAL
   39  ITEMS COLLECTED IN CONNECTION WITH THE CASE, WHERE IT IS LIKELY ANY SUCH
   40  PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING, WOULD YIELD DNA INFORMATION
   41  THAT MEETS THE STANDARD SET FORTH IN PARAGRAPH (A) OF THIS  SUBDIVISION.
   42  THE COURT MAY DIRECT THE STATE TO PROVIDE OTHER REASONABLE ASSISTANCE TO
   43  THE  MOVANT  IN  LOCATING ANY SUCH RECORDS OR ITEMS OF PHYSICAL EVIDENCE
   44  WHICH MAY HAVE BEEN LOST OR DESTROYED. THE COURT  MAY  ALSO  DIRECT  THE
   45  PEOPLE TO TAKE REASONABLE MEASURES TO ATTEMPT TO LOCATE ANY SUCH RECORDS
   46  OR  PHYSICAL  ITEMS  THAT MAY BE IN GOVERNMENT CUSTODY AND/OR ASSIST THE
   47  MOVANT IN LOCATING ANY SUCH RECORDS OR PHYSICAL ITEMS THAT MAY BE IN THE
   48  CUSTODY OF A PUBLIC OR PRIVATE HOSPITAL, LABORATORY OR  OTHER  FACILITY.
   49  THE  COURT  SHALL DENY A REQUEST FOR ASSISTANCE BROUGHT UNDER THIS PARA-
   50  GRAPH IF THE COURT DETERMINES THAT SUCH REQUEST FOR ASSISTANCE IS FRIVO-
   51  LOUS, ABUSIVE OR INAPPROPRIATE.
   52    S 15. The state finance law is amended by adding a new section 97-llll
   53  to read as follows:
   54    S 97-LLLL. ASSISTANCE TO POLICE AND CRIME LABORATORIES;  DNA  EVIDENCE
   55  FUND.    1.  THERE  IS  HEREBY CREATED IN THE CUSTODY OF THE STATE COMP-
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    1  TROLLER A SPECIAL FUND TO BE KNOWN AS  THE  "ASSISTANCE  TO  POLICE  AND
    2  CRIME LABORATORIES: DNA EVIDENCE FUND".
    3    2.  SUCH FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR THE PURPOSE
    4  OF SUCH FUND, ALL OTHER MONIES CREDITED  OR  TRANSFERRED  TO  SUCH  FUND
    5  PURSUANT  TO  LAW, ALL MONIES REQUIRED BY THE PROVISIONS OF THIS SECTION
    6  OR ANY OTHER LAW TO BE PAID INTO OR CREDITED TO SUCH  ACCOUNT,  AND  ALL
    7  MONIES RECEIVED BY THE ACCOUNT OR DONATED TO IT.
    8    3.  MONIES OF SUCH FUND SHALL BE AVAILABLE FOR APPROPRIATION AND ALLO-
    9  CATION TO THE DIVISION OF STATE POLICE, TO LOCAL POLICE AGENCIES, AND TO
   10  FORENSIC DNA LABORATORIES IN THIS STATE, AS DEFINED IN  SUBDIVISION  TWO
   11  OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, TO ASSIST SUCH
   12  ENTITIES  IN  EFFECTIVELY COLLECTING, TESTING AND ANALYZING FORENSIC DNA
   13  CRIME SCENE EVIDENCE PURSUANT TO ARTICLE FORTY-NINE-B OF  THE  EXECUTIVE
   14  LAW.  FIFTY  PERCENT OF SUCH FUNDS SHALL BE MADE AVAILABLE FOR APPROPRI-
   15  ATION OR ALLOCATION BY THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES FOR
   16  THE PURPOSE OF FUNDING AN INNOCENCE RESEARCH  PROJECT  PROGRAM  IN  THIS
   17  STATE.
   18    4.  MONIES  OF SUCH FUND SHALL BE PAID OUT ON THE AUDIT AND WARRANT OF
   19  THE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE COMMISSIONER OF
   20  CRIMINAL JUSTICE SERVICES.
   21    S 16. Innocence research project program. 1. There  is  hereby  estab-
   22  lished  in  this  state  an  innocence research project program. Funding
   23  shall be made available for the purposes of such program to up to  three
   24  not-for-profit  organizations  by  the  commissioner of criminal justice
   25  services pursuant to subdivisions 3 and 4  of  section  97-llll  of  the
   26  state finance law.
   27    2. The innocence research project program shall review and study cases
   28  in  which  there  appears  to  be a reasonable possibility that a person
   29  charged with or convicted of a crime in this state may  be  innocent  of
   30  the  crime  or  crimes charged. Such program may provide legal and other
   31  expert assistance, and may also provide relevant training, including but
   32  not limited to training in the use of DNA evidence  for  forensic  iden-
   33  tification  purposes,  to  attorneys  engaged in the defense of criminal
   34  cases.
   35    3. Each not-for-profit organization receiving funding for such program
   36  shall file an annual report with the commissioner  of  criminal  justice
   37  services  summarizing  the activities of the program during the previous
   38  year. Such report shall be filed within one year after such organization
   39  first receives funding under such program, and annually  thereafter  for
   40  so long as the program receives such funding.
   41    4.  Before providing assistance to any individual believed to be actu-
   42  ally innocent of the crime or  crimes  charged,  the  organization-based
   43  coordinator  of  such program shall determine whether such individual is
   44  financially able to pay for the proposed services or  assistance  to  be
   45  provided.  If  such  individual is able to financially afford to pay for
   46  such services or assistance, such coordinator shall request and  receive
   47  such  payment or payments on behalf of the program from such individual.
   48  All monies received from individuals pursuant to this subdivision  shall
   49  be  promptly forwarded by such coordinator to the state comptroller, for
   50  deposit into the "assistance  to  police  and  crime  laboratories:  DNA
   51  evidence  fund"  established  pursuant  to  section 97-llll of the state
   52  finance law.
   53    S 17. This act shall take effect immediately; provided, however, that:
   54    (a) the amendments to paragraph (a) of subdivision 2 of section  995-c
   55  of  the  executive law made by section six of this act shall take effect
   56  on the one hundred twentieth day after it shall have become a law; and
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    1    (b) the amendments to section 340.20 of  the  criminal  procedure  law
    2  made by section thirteen of this act shall apply to pleas of guilty to a
    3  count  or  counts  of  an  information entered 60 days or more after the
    4  effective date of this act.