S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4964
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 13, 2013
                                      ___________
       Introduced  by  M.  of  A.  MORELLE,  WEISENBERG, ORTIZ, ROBINSON, COOK,
         CUSICK, CASTRO, GUNTHER, GALEF, TITONE, GABRYSZAK, CYMBROWITZ, MAGNAR-
         ELLI, KOLB -- Multi-Sponsored by -- M. of A. ARROYO, LAVINE,  LUPARDO,
         MAGEE,  MARKEY,  McDONOUGH,  MILLER,  PERRY,  THIELE  -- read once and
         referred to the Committee on Codes
       AN ACT to amend the executive law and the  criminal  procedure  law,  in
         relation to requiring individuals arrested in connection with a felony
         to submit a DNA sample
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 995 of the executive law is amended by adding a new
    2  subdivision 7-a to read as follows:
    3    7-A. "FELONY ARRESTEE" MEANS A PERSON ARRESTED AND  CHARGED  WITH  ANY
    4  ONE  OR MORE OF THE FOLLOWING FELONIES, OR AN ATTEMPT THEREOF WHERE SUCH
    5  ATTEMPT IS A FELONY OFFENSE, AS  DEFINED  IN  THE  PENAL  LAW:  SECTIONS
    6  120.05,  120.06, 120.07, 120.10, 120.11 AND 120.12, RELATING TO ASSAULT;
    7  SECTIONS 120.55 AND 120.60, RELATING TO STALKING; SECTION 120.70, RELAT-
    8  ING TO LURING A CHILD; SECTIONS 125.15, 125.20, 125.21, 125.22,  125.25,
    9  125.26  AND  125.27,  RELATING  TO  HOMICIDE;  SECTIONS  130.25, 130.30,
   10  130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.67, 130.70,  130.75,
   11  130.80,  130.95  AND  130.96, RELATING TO SEX OFFENSES; SECTIONS 135.10,
   12  135.20, 135.25 AND 135.35, RELATING TO KIDNAPPING AND LABOR TRAFFICKING;
   13  SECTIONS 140.17,  140.20,  140.25  AND  140.30,  RELATING  TO  BURGLARY;
   14  SECTIONS  150.05, 150.10, 150.15 AND 150.20, RELATING TO ARSON; SECTIONS
   15  155.30, 155.35, 155.40 AND 155.42, RELATING TO GRAND  LARCENY;  SECTIONS
   16  160.05,  160.10 AND 160.15, RELATING TO ROBBERY; SECTION 230.34 RELATING
   17  TO SEX TRAFFICKING; SECTIONS 235.21  AND  235.22,  RELATING  TO  DISSEM-
   18  INATION  OF  INDECENT  MATERIAL  TO  MINORS; SECTIONS 250.45 AND 250.50,
   19  RELATING TO UNLAWFUL SURVEILLANCE; SECTIONS 255.25, 255.26, AND  255.27,
   20  RELATING TO INCEST; SECTIONS 263.05, 263.10, 263.11, 263.15, 263.16, AND
   21  263.30,  RELATING  TO SEXUAL PERFORMANCE BY A CHILD; OR SECTIONS 265.02,
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08276-01-3
       A. 4964                             2
    1  265.03, 265.04, 265.08,  265.09,  265.11,  265.12,  265.13,  265.14  AND
    2  265.16, RELATING TO FIREARMS AND OTHER DANGEROUS WEAPONS.
    3    S 2. Subdivision 3 of section 995-c of the executive law is amended by
    4  adding four new paragraphs (c), (d), (e) and (f) to read as follows:
    5    (C)  A FELONY ARRESTEE SHALL BE REQUIRED TO PROVIDE A SAMPLE APPROPRI-
    6  ATE FOR DNA TESTING UPON HIS OR HER ARREST, UNLESS SUCH FELONY  ARRESTEE
    7  HAS PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDEN-
    8  TIFICATION INDEX.
    9    (D)  A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER OR FELONY
   10  ARRESTEE WHO HAS NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED  SHALL
   11  SEEK AN ORDER OF THE COURT TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER
   12  WRITTEN OR ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
   13    (E)  THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED
   14  UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION  INDEX  SHALL
   15  NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
   16  NAL  JUSTICE  SERVICES  INADVERTENTLY,  BUT  IN GOOD FAITH, COLLECTED OR
   17  PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
   18    (F) THE COMMISSIONER OF CRIMINAL  JUSTICE  SERVICES  SHALL  PROMULGATE
   19  RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
   20  CATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX CONTAINS DNA PROFILES
   21  THAT  SHOULD  NOT  BE  IN  THE  INDEX,  INCLUDING THE STEPS NECESSARY TO
   22  EXPUNGE ANY PROFILES WHICH THE DIVISION  OF  CRIMINAL  JUSTICE  SERVICES
   23  DETERMINES SHOULD NOT BE IN THE INDEX.
   24    S  3.  Subdivision 9 of section 995-c of the executive law, as amended
   25  by chapter 524 of the laws of 2002, is amended to read as follows:
   26    9. (a) Upon receipt of notification of a reversal or a  vacatur  of  a
   27  conviction,  or of the granting of a pardon pursuant to article two-A of
   28  this chapter, of an individual whose DNA record has been stored  in  the
   29  state  DNA  identification  index in accordance with this article by the
   30  division of criminal justice services, the DNA record shall be  expunged
   31  from  the  state DNA identification index, and such individual may apply
   32  to the court in which the judgment of conviction was originally  entered
   33  for  an  order  directing  the  expungement  of  any  DNA record and any
   34  samples, analyses, or other documents relating to  the  DNA  testing  of
   35  such  individual  in connection with the investigation or prosecution of
   36  the crime which resulted in the conviction that was reversed or  vacated
   37  or for which the pardon was granted. A copy of such application shall be
   38  served  on  the district attorney and an order directing expungement may
   39  be granted  if  the  court  finds  that  all  appeals  relating  to  the
   40  conviction  have  been  concluded;  that  such  individual  will  not be
   41  retried, or, if a retrial has occurred, the trier of fact has rendered a
   42  verdict of complete acquittal, and that expungement will  not  adversely
   43  affect  the investigation or prosecution of some other person or persons
   44  for the crime. The division shall,  by  rule  or  regulation,  prescribe
   45  procedures to ensure that the DNA record in the state DNA identification
   46  index,  and  any  samples, analyses, or other documents relating to such
   47  record, whether in the possession of the division, or any  law  enforce-
   48  ment  or  police  agency,  or any forensic DNA laboratory, including any
   49  duplicates or copies thereof, at the discretion of the possessor  there-
   50  of,  are  either  destroyed  or  returned  to such individual, or to the
   51  attorney who represented him or her at the time such  reversal,  vacatur
   52  or  pardon,  was  granted. The commissioner shall also adopt by rule and
   53  regulation a procedure for the expungement in other appropriate  circum-
   54  stances of DNA records contained in the index.
   55    (b)  As  prescribed in this paragraph, if an individual, either volun-
   56  tarily, PURSUANT TO PARAGRAPH (C) OF SUBDIVISION THREE OF THIS  SECTION,
       A. 4964                             3
    1  or  pursuant to a warrant or order of a court, has provided a sample for
    2  DNA testing in connection with the investigation, ARREST or  prosecution
    3  of a crime and (i) no criminal action against the individual relating to
    4  such crime was commenced within the period specified by section 30.10 of
    5  the  criminal  procedure  law,  or  (ii) a criminal action was commenced
    6  against the individual relating  to  such  crime  which  resulted  in  a
    7  complete acquittal, or (iii) a criminal action WAS COMMENCED against the
    8  individual  relating  to  such  crime [resulted in a conviction that was
    9  subsequently reversed or vacated, or for which the individual was grant-
   10  ed a pardon pursuant to article two-A of this chapter,  such  individual
   11  may  apply  to  the  supreme court or the court in which the judgment of
   12  conviction was originally entered for an order directing the expungement
   13  of any DNA record and any samples, analyses, or other documents relating
   14  to the DNA testing of such individual in connection  with  the  investi-
   15  gation or prosecution of such crime. A copy of such application shall be
   16  served  on  the district attorney and an order directing expungement may
   17  be granted if the court finds that  the  individual  has  satisfied  the
   18  conditions  of  one  of  the  subparagraphs of this paragraph; that if a
   19  judgment of conviction was reversed or  vacated,  all  appeals  relating
   20  thereto  have been concluded and the individual will not be retried, or,
   21  if a retrial has occurred, the trier of fact has rendered a  verdict  of
   22  complete  acquittal,  and that expungement will not adversely affect the
   23  investigation or prosecution of some other person  or  persons  for  the
   24  crime.  If  an order directing the expungement of any DNA record and any
   25  samples, analyses or other documents relating to the DNA testing of such
   26  individual is issued] WHICH WAS  RESOLVED  BY  A  DISMISSAL,  SUCCESSFUL
   27  COMPLETION  OF  A  PRE-PROSECUTION  DIVERSION  PROGRAM,  OR  CONDITIONAL
   28  DISCHARGE OR MISDEMEANOR CONVICTION THAT DID NOT REQUIRE DNA  COLLECTION
   29  PURSUANT  TO  SECTION  NINE HUNDRED NINETY-FIVE OF THIS ARTICLE, THE DNA
   30  RECORD SHALL BE EXPUNGED FROM THE STATE  DNA  IDENTIFICATION  INDEX.  AN
   31  INDIVIDUAL  MAY  REQUEST  EXPUNGEMENT OF ANY DNA RECORD AND ANY SAMPLES,
   32  ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH INDIVID-
   33  UAL BY PROVIDING THE FOLLOWING MATERIALS TO  THE  DIVISION  OF  CRIMINAL
   34  JUSTICE SERVICES:
   35    (1)  A  WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND DNA RECORDS;
   36  AND
   37    (2) A CERTIFIED COPY OF THE  DISMISSAL,  SUCCESSFUL  COMPLETION  OF  A
   38  PRE-PROSECUTION  DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE, MISDEMEA-
   39  NOR CONVICTION OR ACQUITTAL; AND
   40    (3) A SWORN STATEMENT FROM THE DISTRICT ATTORNEY'S OFFICE WITH  JURIS-
   41  DICTION  OVER THE MATTER THAT: THE CASE WAS DISMISSED; A PRE-PROSECUTION
   42  DIVERSION  PROGRAM  OR  CONDITIONAL  DISCHARGE,  MISDEMEANOR  CONVICTION
   43  EXCLUDED   FROM   DNA   COLLECTION  PURSUANT  TO  SECTION  NINE  HUNDRED
   44  NINETY-FIVE OF THIS ARTICLE OR ACQUITTAL  OCCURRED;  NO  FELONY  CHARGES
   45  AROSE  OUT  OF  THE ARREST; OR NO CRIMINAL ACTION AGAINST THE INDIVIDUAL
   46  RELATING TO SUCH CRIME WAS COMMENCED  WITHIN  THE  PERIOD  SPECIFIED  BY
   47  SECTION  30.10  OF THE CRIMINAL PROCEDURE LAW; AND THAT EXPUNGEMENT WILL
   48  NOT ADVERSELY AFFECT THE INVESTIGATION  OR  PROSECUTION  OF  SOME  OTHER
   49  PERSON OR PERSONS FOR THE CRIME.
   50    (C)  IF  EXPUNGEMENT  IS WARRANTED PURSUANT TO PARAGRAPH (A) OR (B) OF
   51  THIS SUBDIVISION, such record and any samples, analyses, or other  docu-
   52  ments shall, at the discretion of the possessor thereof, be destroyed or
   53  returned  to  such  individual or to the attorney who represented him or
   54  her IN THE CRIMINAL ACTION OR in connection with  the  [application  for
   55  the order of] REQUEST FOR expungement.
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    1    (D)  NO  EXPUNGEMENT  SHALL BE GRANTED WHERE AN INDIVIDUAL HAS A PRIOR
    2  CONVICTION REQUIRING A DNA SAMPLE, OR A PENDING FELONY CHARGE FOR  WHICH
    3  COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
    4  GRAPH (C) OF SUBDIVISION THREE OF THIS SECTION.
    5    S 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
    6  amended  by  chapter  424  of  the  laws  of 1998, is amended to read as
    7  follows:
    8    6.  Before bringing a defendant arrested pursuant to a warrant  before
    9  the  local  criminal court in which such warrant is returnable, a police
   10  officer must without unnecessary delay perform  all  fingerprinting  and
   11  other preliminary police duties required in the particular case.  In any
   12  case  in  which  the defendant is not brought by a police officer before
   13  such court but, following his arrest in another county  for  an  offense
   14  specified  in  subdivision  one  of  section  160.10  OF  THIS TITLE, is
   15  released by a local criminal court of  such  other  county  on  his  own
   16  recognizance  or  on  bail for his appearance on a specified date before
   17  the local criminal court before which the  warrant  is  returnable,  the
   18  latter  court  must, upon arraignment of the defendant before it, direct
   19  that he be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR  DNA  TESTING
   20  TAKEN, IF REQUIRED PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE
   21  EXECUTIVE  LAW, by the appropriate officer or agency, and that he appear
   22  at an appropriate designated time and place for such purpose.
   23    S 5. Section 130.60 of the criminal procedure law, as amended by chap-
   24  ter 95 of the laws of 1991, subdivision 1 as amended by chapter  446  of
   25  the laws of 1993, is amended to read as follows:
   26  S 130.60 Summons; fingerprinting of defendant.
   27    1. Upon the arraignment of a defendant whose court attendance has been
   28  secured  by the issuance and service of a summons, based upon an indict-
   29  ment,  a  prosecutor's  information  or  upon  an  information,   felony
   30  complaint  or  misdemeanor  complaint  filed  by  a complainant who is a
   31  police officer, the court must, if an offense charged in the  accusatory
   32  instrument is one specified in subdivision one of section 160.10 OF THIS
   33  TITLE,  direct  that  the  defendant be fingerprinted by the appropriate
   34  police officer or agency, and that he or she appear  at  an  appropriate
   35  designated  time  and  place for such purpose.  IF AN OFFENSE CHARGED IN
   36  THE ACCUSATORY INSTRUMENT IS ONE SPECIFIED  IN  SUBDIVISION  SEVEN-A  OF
   37  SECTION  NINE  HUNDRED  NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT MUST
   38  DIRECT THAT A SAMPLE APPROPRIATE FOR DNA TESTING BE TAKEN, AND  THAT  HE
   39  OR  SHE  APPEAR  AT  AN  APPROPRIATE  DESIGNATED TIME AND PLACE FOR SUCH
   40  PURPOSE.
   41    2. Upon the arraignment of a defendant whose court attendance has been
   42  secured by the issuance and service of a summons based upon an  informa-
   43  tion or misdemeanor complaint filed by a complainant who is not a police
   44  officer,  and  who  has not previously been fingerprinted OR FROM WHOM A
   45  DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN AND WAS  REQUIRED  PURSUANT  TO
   46  SECTION  NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, the court may,
   47  if it finds reasonable cause to believe that the defendant has committed
   48  an offense specified in subdivision one of section 160.10 OF THIS TITLE,
   49  direct that the defendant be fingerprinted AND/OR HAVE A  SAMPLE  APPRO-
   50  PRIATE  FOR DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINE-
   51  TY-FIVE-C OF THE EXECUTIVE LAW, by the  appropriate  police  officer  or
   52  agency  and  that  he appear at an appropriate designated time and place
   53  for such purpose. A defendant whose court appearance has been secured by
   54  the issuance and service of a criminal summons based upon a  misdemeanor
   55  complaint  or  information  filed  by  a complainant who is not a police
   56  officer, must be directed by the court, upon conviction of  the  defend-
       A. 4964                             5
    1  ant,  to  be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
    2  TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF  THE  EXECU-
    3  TIVE LAW, by the appropriate police officer or agency and the court must
    4  also  direct that the defendant appear at an appropriate designated time
    5  and place for such purpose, if the defendant is convicted of any offense
    6  specified in subdivision one of section 160.10 OF THIS TITLE.
    7    S 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
    8  amended by chapter 762 of the laws  of  1971,  is  amended  to  read  as
    9  follows:
   10    5.  Before  service  of  an  appearance ticket upon an arrested person
   11  pursuant to subdivision two or three OF THIS SECTION, the issuing police
   12  officer must, if the offense designated in such appearance ticket is one
   13  of those specified in subdivision one of section 160.10 OF  THIS  TITLE,
   14  cause  such person to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
   15  DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C  OF
   16  THE  EXECUTIVE  LAW,  in  the  same  manner as would be required were no
   17  appearance ticket to be issued or served.
   18    S 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
   19  amended by chapter 843 of the laws  of  1980,  is  amended  to  read  as
   20  follows:
   21    2.  Upon arresting a person without a warrant, a peace officer, except
   22  as otherwise provided in subdivision three OF THIS SECTION, must without
   23  unnecessary  delay  bring  him or cause him to be brought before a local
   24  criminal court, as provided in section 100.55  and  subdivision  one  of
   25  section 140.20 OF THIS TITLE, and must without unnecessary delay file or
   26  cause  to  be  filed therewith an appropriate accusatory instrument.  If
   27  the offense which is the subject of the arrest is one of those specified
   28  in subdivision one of section 160.10 OF THIS TITLE, the arrested  person
   29  must  be  fingerprinted  and photographed, AND HAVE A SAMPLE APPROPRIATE
   30  FOR DNA TESTING TAKEN IF REQUIRED BY SECTION NINE HUNDRED  NINETY-FIVE-C
   31  OF  THE  EXECUTIVE  LAW,  as therein provided.   In order to execute the
   32  required post-arrest functions, such arresting peace officer may perform
   33  such functions himself or he may enlist the aid of a police officer  for
   34  the  performance  thereof  in  the manner provided in subdivision one of
   35  section 140.20 OF THIS ARTICLE.
   36    S 8. Section 150.70 of the criminal procedure law, as amended by chap-
   37  ter 762 of the laws of 1971, is amended to read as follows:
   38  S 150.70  Appearance ticket; fingerprinting AND DNA ANALYSIS  SAMPLE  of
   39               defendant.
   40    Upon  the  arraignment  of  a  defendant who has not been arrested and
   41  whose court attendance has been secured by the issuance and  service  of
   42  an  appearance  ticket  pursuant to subdivision one of section 150.20 OF
   43  THIS ARTICLE, the court must, if an offense charged  in  the  accusatory
   44  instrument is one specified in subdivision one of section 160.10 OF THIS
   45  TITLE,  direct  that  the defendant be fingerprinted   AND HAVE A SAMPLE
   46  APPROPRIATE FOR DNA TESTING TAKEN WHEN REQUIRED BY SECTION NINE  HUNDRED
   47  NINETY-FIVE-C  OF THE EXECUTIVE LAW by the appropriate police officer or
   48  agency, and that he appear at an appropriate designated time  and  place
   49  for such purpose.
   50    S 9. Section 160.20 of the criminal procedure law, as amended by chap-
   51  ter 108 of the laws of 1973, is amended to read as follows:
   52  S  160.20  Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger-
   53               prints AND DNA ANALYSIS SAMPLE.
   54    1. Upon the taking of fingerprints of an arrested person or  defendant
   55  as  prescribed in section 160.10 OF THIS ARTICLE, the appropriate police
       A. 4964                             6
    1  officer or agency must without unnecessary delay forward two  copies  of
    2  such fingerprints to the division of criminal justice services.
    3    2.   UPON TAKING A SAMPLE APPROPRIATE FOR DNA TESTING, THE APPROPRIATE
    4  POLICE OFFICE OR AGENCY MUST WITHOUT UNNECESSARY DELAY STORE AND FORWARD
    5  SUCH DNA SAMPLE TO A FORENSIC DNA LABORATORY FOR  FORENSIC  DNA  TESTING
    6  AND  ANALYSES,  AND  INCLUSION  IN THE STATE DNA IDENTIFICATION INDEX IN
    7  ACCORDANCE WITH SUBDIVISION FIVE OF SECTION NINE  HUNDRED  NINETY-FIVE-C
    8  OF THE EXECUTIVE LAW.
    9    S 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
   10  criminal  procedure  law,  paragraph  (d)  as  amended  by section 73 of
   11  subpart B of part C of chapter 62 of the laws of 2011 and paragraph  (e)
   12  as  amended  by  chapter  169 of the laws of 1994, are amended and a new
   13  paragraph (f) is added to read as follows:
   14    (d) such records shall be made available to the person accused  or  to
   15  such  person's  designated  agent,  and shall be made available to (i) a
   16  prosecutor in any proceeding in which the accused has moved for an order
   17  pursuant to section 170.56 or 210.46 of this  chapter,  or  (ii)  a  law
   18  enforcement  agency  upon ex parte motion in any superior court, if such
   19  agency demonstrates to  the  satisfaction  of  the  court  that  justice
   20  requires  that  such records be made available to it, or (iii) any state
   21  or local officer or agency  with  responsibility  for  the  issuance  of
   22  licenses to possess guns, when the accused has made application for such
   23  a  license,  or  (iv) the [New York state] department of corrections and
   24  community supervision when the accused is on  parole  supervision  as  a
   25  result  of  conditional  release or a parole release granted by the [New
   26  York] state board of parole, and the arrest which is the subject of  the
   27  inquiry  is  one  which occurred while the accused was under such super-
   28  vision or (v) any prospective employer of  a  police  officer  or  peace
   29  officer  as  those  terms  are  defined in subdivisions thirty-three and
   30  thirty-four of section 1.20 of this chapter, in relation to an  applica-
   31  tion  for  employment  as  a  police officer or peace officer; provided,
   32  however, that every person who is  an  applicant  for  the  position  of
   33  police  officer  or  peace officer shall be furnished with a copy of all
   34  records obtained under this paragraph and  afforded  an  opportunity  to
   35  make  an explanation thereto, or (vi) the probation department responsi-
   36  ble for supervision of the accused when the arrest which is the  subject
   37  of  the  inquiry  is one which occurred while the accused was under such
   38  supervision; [and]
   39    (e) where fingerprints subject to the provisions of this section  have
   40  been received by the division of criminal justice services and have been
   41  filed  by  the  division as digital images, such images may be retained,
   42  provided that a fingerprint card of the individual is on file  with  the
   43  division which was not sealed pursuant to this section or section 160.55
   44  of this article[.]; AND
   45    (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
   46  ANT  TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, AND ANY
   47  DNA RECORD RELATING TO SUCH SAMPLE, AND ANY ANALYSES OR OTHER  DOCUMENTS
   48  RELATING  TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
   49  ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
   50    S 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
   51  criminal procedure law, paragraph  (d)  as  amended  by  section  74  of
   52  subpart  B of part C of chapter 62 of the laws of 2011 and paragraph (e)
   53  as amended by chapter 169 of the laws of 1994, are  amended  and  a  new
   54  paragraph (f) is added to read as follows:
   55    (d) the records referred to in paragraph (c) of this subdivision shall
   56  be  made  available to the person accused or to such person's designated
       A. 4964                             7
    1  agent, and shall be made available to (i) a prosecutor in any proceeding
    2  in which the accused has moved for an order pursuant to  section  170.56
    3  or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
    4  parte  motion  in any superior court, if such agency demonstrates to the
    5  satisfaction of the court that justice requires  that  such  records  be
    6  made available to it, or (iii) any state or local officer or agency with
    7  responsibility  for  the  issuance of licenses to possess guns, when the
    8  accused has made application for such a license, or (iv) the  [New  York
    9  state]  department  of  corrections  and  community supervision when the
   10  accused is under parole supervision as a result of  conditional  release
   11  or  parole  release  granted by the [New York] state board of parole and
   12  the arrest which is the subject of the inquiry  is  one  which  occurred
   13  while  the  accused  was  under  such  supervision, or (v) the probation
   14  department responsible for supervision of the accused  when  the  arrest
   15  which  is  the  subject  of  the inquiry is one which occurred while the
   16  accused was under such supervision, or (vi) a police  agency,  probation
   17  department,  sheriff's office, district attorney's office, department of
   18  correction of any municipality and parole department, for  law  enforce-
   19  ment  purposes,  upon arrest in instances in which the individual stands
   20  convicted of harassment in the second  degree,  as  defined  in  section
   21  240.26  of  the penal law, committed against a member of the same family
   22  or household as the defendant, as defined in subdivision one of  section
   23  530.11  of  this chapter, and determined pursuant to subdivision eight-a
   24  of section 170.10 of this title; [and]
   25    (e) where fingerprints subject to the provisions of this section  have
   26  been received by the division of criminal justice services and have been
   27  filed  by  the  division as digital images, such images may be retained,
   28  provided that a fingerprint card of the individual is on file  with  the
   29  division which was not sealed pursuant to this section or section 160.50
   30  of this article[.]; AND
   31    (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
   32  ANT  TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, ANY DNA
   33  RECORD RELATING TO SUCH SAMPLE, AND  ANY  ANALYSES  OR  OTHER  DOCUMENTS
   34  RELATING  TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
   35  ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
   36    S 12. This act shall take effect on  the  one  hundred  eightieth  day
   37  after it shall have become a law.