S T A T E O F N E W Y O R K
________________________________________________________________________
S. 6733 A. 9555
S E N A T E - A S S E M B L Y
March 14, 2012
___________
IN SENATE -- Introduced by Sens. SALAND, GOLDEN, SKELOS -- (at request
of the Governor) -- read twice and ordered printed, and when printed
to be committed to the Committee on Rules
IN ASSEMBLY -- Introduced by M. of A. LENTOL, SILVER, WEINSTEIN,
FARRELL, LAVINE, O'DONNELL, CLARK, PAULIN -- Multi-Sponsored by -- M.
of A. BRINDISI, BRONSON, CUSICK, GABRYSZAK, GOLDFEDER, HEVESI, LUPAR-
DO, MORELLE, QUART, RAMOS, WEISENBERG, ZEBROWSKI -- (at request of the
Governor) -- read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to DNA testing of certain offenders convicted of a crime
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 1 of section 440.30 of the criminal procedure
2 law is amended to read as follows:
3 1. (A) A motion to vacate a judgment pursuant to section 440.10 OF
4 THIS ARTICLE and a motion to set aside a sentence pursuant to section
5 440.20 OF THIS ARTICLE must be made in writing and upon reasonable
6 notice to the people. Upon the motion, a defendant who is in a position
7 adequately to raise more than one ground should raise every such ground
8 upon which he OR SHE intends to challenge the judgment or sentence. If
9 the motion is based upon the existence or occurrence of facts, the
10 motion papers must contain sworn allegations thereof, whether by the
11 defendant or by another person or persons. Such sworn allegations may be
12 based upon personal knowledge of the affiant or upon information and
13 belief, provided that in the latter event the affiant must state the
14 sources of such information and the grounds of such belief. The defend-
15 ant may further submit documentary evidence or information supporting or
16 tending to support the allegations of the moving papers. The people may
17 file with the court, and in such case must serve a copy thereof upon the
18 defendant or his OR HER counsel, if any, an answer denying or admitting
19 any or all of the allegations of the motion papers, and may further
20 submit documentary evidence or information refuting or tending to refute
21 such allegations. After all papers of both parties have been filed, and
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12113-08-2
S. 6733 2 A. 9555
1 after all documentary evidence or information, if any, has been submit-
2 ted, the court must consider the same for the purpose of ascertaining
3 whether the motion is determinable without a hearing to resolve ques-
4 tions of fact.
5 (B) IN CONJUNCTION WITH THE FILING OR CONSIDERATION OF A MOTION TO
6 VACATE A JUDGMENT PURSUANT TO SECTION 440.10 OF THIS ARTICLE BY A
7 DEFENDANT CONVICTED AFTER A TRIAL, IN CASES WHERE THE COURT HAS ORDERED
8 AN EVIDENTIARY HEARING UPON SUCH MOTION, THE COURT MAY ORDER THAT THE
9 PEOPLE PRODUCE OR MAKE AVAILABLE FOR INSPECTION PROPERTY, AS DEFINED IN
10 SUBDIVISION THREE OF SECTION 240.10 OF THIS PART, IN ITS POSSESSION,
11 CUSTODY, OR CONTROL THAT WAS SECURED IN CONNECTION WITH THE INVESTI-
12 GATION OR PROSECUTION OF THE DEFENDANT UPON CREDIBLE ALLEGATIONS BY THE
13 DEFENDANT AND A FINDING BY THE COURT THAT SUCH PROPERTY, IF OBTAINED,
14 WOULD BE PROBATIVE TO THE DETERMINATION OF DEFENDANT'S ACTUAL INNOCENCE,
15 AND THAT THE REQUEST IS REASONABLE. THE COURT SHALL DENY OR LIMIT SUCH A
16 REQUEST UPON A FINDING THAT SUCH A REQUEST, IF GRANTED, WOULD THREATEN
17 THE INTEGRITY OR CHAIN OF CUSTODY OF PROPERTY OR THE INTEGRITY OF THE
18 PROCESSES OR FUNCTIONS OF A LABORATORY CONDUCTING DNA TESTING, POSE A
19 RISK OF HARM, INTIMIDATION, EMBARRASSMENT, REPRISAL, OR OTHER SUBSTAN-
20 TIALLY NEGATIVE CONSEQUENCES TO ANY PERSON, UNDERMINE THE PROPER FUNC-
21 TIONS OF LAW ENFORCEMENT INCLUDING THE CONFIDENTIALITY OF INFORMANTS, OR
22 ON THE BASIS OF ANY OTHER FACTOR IDENTIFIED BY THE COURT IN THE INTER-
23 ESTS OF JUSTICE OR PUBLIC SAFETY. THE COURT SHALL FURTHER ENSURE THAT
24 ANY PROPERTY PRODUCED PURSUANT TO THIS PARAGRAPH IS SUBJECT TO A PROTEC-
25 TIVE ORDER, WHERE APPROPRIATE. THE COURT SHALL DENY ANY REQUEST MADE
26 PURSUANT TO THIS PARAGRAPH WHERE:
27 (I) (1) THE DEFENDANT'S MOTION PURSUANT TO SECTION 440.10 OF THIS
28 ARTICLE DOES NOT SEEK TO DEMONSTRATE HIS OR HER ACTUAL INNOCENCE OF THE
29 OFFENSE OR OFFENSES OF WHICH HE OR SHE WAS CONVICTED THAT ARE THE
30 SUBJECT OF THE MOTION, OR (2) THE DEFENDANT HAS NOT PRESENTED CREDIBLE
31 ALLEGATIONS AND THE COURT HAS NOT FOUND THAT SUCH PROPERTY, IF OBTAINED,
32 WOULD BE PROBATIVE TO THE DETERMINATION OF THE DEFENDANT'S ACTUAL INNO-
33 CENCE AND THAT THE REQUEST IS REASONABLE;
34 (II) THE DEFENDANT HAS MADE HIS OR HER MOTION AFTER FIVE YEARS FROM
35 THE DATE OF THE JUDGMENT OF CONVICTION; PROVIDED, HOWEVER, THAT THIS
36 LIMITATION PERIOD SHALL BE TOLLED FOR FIVE YEARS IF THE DEFENDANT IS IN
37 CUSTODY IN CONNECTION WITH THE CONVICTION THAT IS THE SUBJECT OF HIS OR
38 HER MOTION, AND PROVIDED FURTHER THAT, NOTWITHSTANDING SUCH LIMITATION
39 PERIODS, THE COURT MAY CONSIDER THE MOTION IF THE DEFENDANT HAS SHOWN:
40 (A) THAT HE OR SHE HAS BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND
41 THAT SOME EXTRAORDINARY CIRCUMSTANCE PREVENTED THE TIMELY FILING OF THE
42 MOTION; (B) THAT THE FACTS UPON WHICH THE MOTION IS PREDICATED WERE
43 UNKNOWN TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE BEEN
44 ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION OF
45 THE STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF THE
46 CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
47 IMPACT OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
48 CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
49 AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
50 TY OR RELATED RELIEF, THE INTERESTS OF JUSTICE WOULD BE SERVED BY
51 CONSIDERING THE MOTION;
52 (III) THE DEFENDANT IS CHALLENGING A JUDGMENT CONVICTING HIM OR HER OF
53 AN OFFENSE THAT IS NOT A FELONY DEFINED IN SECTION 10.00 OF THE PENAL
54 LAW; OR
S. 6733 3 A. 9555
1 (IV) UPON A FINDING BY THE COURT THAT THE PROPERTY REQUESTED IN THIS
2 MOTION WOULD BE AVAILABLE THROUGH OTHER MEANS THROUGH REASONABLE EFFORTS
3 BY THE DEFENDANT TO OBTAIN SUCH PROPERTY.
4 S 2. Subdivision 1-a of section 440.30 of the criminal procedure law,
5 as amended by chapter 138 of the laws of 2004, is amended to read as
6 follows:
7 1-a. (a) (1) Where the defendant's motion requests the performance of
8 a forensic DNA test on specified evidence, and upon the court's determi-
9 nation that any evidence containing deoxyribonucleic acid ("DNA") was
10 secured in connection with the trial resulting in the judgment, the
11 court shall grant the application for forensic DNA testing of such
12 evidence upon its determination that if a DNA test had been conducted on
13 such evidence, and if the results had been admitted in the trial result-
14 ing in the judgment, there exists a reasonable probability that the
15 verdict would have been more favorable to the defendant.
16 (2) WHERE THE DEFENDANT'S MOTION FOR FORENSIC DNA TESTING OF SPECIFIED
17 EVIDENCE IS MADE FOLLOWING A PLEA OF GUILTY AND ENTRY OF JUDGMENT THERE-
18 ON CONVICTING HIM OR HER OF: (A) A HOMICIDE OFFENSE DEFINED IN ARTICLE
19 ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, ANY FELONY SEX OFFENSE DEFINED
20 IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, A VIOLENT FELONY OFFENSE
21 AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 70.02 OF THE
22 PENAL LAW, OR (B) ANY OTHER FELONY OFFENSE TO WHICH HE OR SHE PLED GUIL-
23 TY AFTER BEING CHARGED IN AN INDICTMENT OR INFORMATION IN SUPERIOR COURT
24 WITH ONE OR MORE OF THE OFFENSES LISTED IN CLAUSE (A) OF THIS SUBPARA-
25 GRAPH, THEN THE COURT SHALL GRANT SUCH A MOTION UPON ITS DETERMINATION
26 THAT EVIDENCE CONTAINING DNA WAS SECURED IN CONNECTION WITH THE INVESTI-
27 GATION OR PROSECUTION OF THE DEFENDANT, AND IF A DNA TEST HAD BEEN
28 CONDUCTED ON SUCH EVIDENCE AND THE RESULTS HAD BEEN KNOWN TO THE PARTIES
29 PRIOR TO THE ENTRY OF THE DEFENDANT'S PLEA AND JUDGMENT THEREON, THERE
30 EXISTS A SUBSTANTIAL PROBABILITY THAT THE EVIDENCE WOULD HAVE ESTAB-
31 LISHED THE DEFENDANT'S ACTUAL INNOCENCE OF THE OFFENSE OR OFFENSES THAT
32 ARE THE SUBJECT OF THE DEFENDANT'S MOTION; PROVIDED, HOWEVER, THAT:
33 (I) THE COURT SHALL CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY
34 TO REQUEST SUCH TESTING PRIOR TO ENTERING A GUILTY PLEA, AND, WHERE IT
35 FINDS THAT THE DEFENDANT HAD SUCH OPPORTUNITY AND UNJUSTIFIABLY FAILED
36 TO DO SO, THE COURT MAY DENY SUCH MOTION; AND
37 (II) A COURT SHALL DENY THE DEFENDANT'S MOTION FOR FORENSIC DNA TEST-
38 ING WHERE THE DEFENDANT HAS MADE HIS OR HER MOTION MORE THAN FIVE YEARS
39 AFTER ENTRY OF THE JUDGMENT OF CONVICTION; EXCEPT THAT THE LIMITATION
40 PERIOD MAY BE TOLLED IF THE DEFENDANT HAS SHOWN: (A) THAT HE OR SHE HAS
41 BEEN PURSUING HIS OR HER RIGHTS DILIGENTLY AND THAT SOME EXTRAORDINARY
42 CIRCUMSTANCE PREVENTED THE TIMELY FILING OF THE MOTION FOR FORENSIC DNA
43 TESTING; (B) THAT THE FACTS UPON WHICH THE MOTION IS PREDICATED WERE
44 UNKNOWN TO THE DEFENDANT OR HIS OR HER ATTORNEY AND COULD NOT HAVE BEEN
45 ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE EXPIRATION OF
46 THIS STATUTE OF LIMITATIONS; OR (C) CONSIDERING ALL CIRCUMSTANCES OF THE
47 CASE INCLUDING BUT NOT LIMITED TO EVIDENCE OF THE DEFENDANT'S GUILT, THE
48 IMPACT OF GRANTING OR DENYING SUCH MOTION UPON PUBLIC CONFIDENCE IN THE
49 CRIMINAL JUSTICE SYSTEM, OR UPON THE SAFETY OR WELFARE OF THE COMMUNITY,
50 AND THE DEFENDANT'S DILIGENCE IN SEEKING TO OBTAIN THE REQUESTED PROPER-
51 TY OR RELATED RELIEF, THE INTERESTS OF JUSTICE WOULD BE SERVED BY TOLL-
52 ING SUCH LIMITATION PERIOD.
53 (b) In conjunction with the filing of a motion under this subdivision,
54 the court may direct the people to provide the defendant with informa-
55 tion in the possession of the people concerning the current physical
56 location of the specified evidence and if the specified evidence no
S. 6733 4 A. 9555
1 longer exists or the physical location of the specified evidence is
2 unknown, a representation to that effect and information and documentary
3 evidence in the possession of the people concerning the last known phys-
4 ical location of such specified evidence. If there is a finding by the
5 court that the specified evidence no longer exists or the physical
6 location of such specified evidence is unknown, such information in and
7 of itself shall not be a factor from which any inference unfavorable to
8 the people may be drawn by the court in deciding a motion under this
9 section. The court, on motion of the defendant, may also issue a subpoe-
10 na duces tecum directing a public or private hospital, laboratory or
11 other entity to produce such specified evidence in its possession and/or
12 information and documentary evidence in its possession concerning the
13 location and status of such specified evidence.
14 (C) IN RESPONSE TO A MOTION UNDER THIS PARAGRAPH, UPON NOTICE TO THE
15 PARTIES AND TO THE ENTITY REQUIRED TO PERFORM THE SEARCH THE COURT MAY
16 ORDER AN ENTITY THAT HAS ACCESS TO THE COMBINED DNA INDEX SYSTEM
17 ("CODIS") OR ITS SUCCESSOR SYSTEM TO COMPARE A DNA PROFILE OBTAINED FROM
18 PROBATIVE BIOLOGICAL MATERIAL GATHERED IN CONNECTION WITH THE INVESTI-
19 GATION OR PROSECUTION OF THE DEFENDANT AGAINST DNA DATABANKS BY KEYBOARD
20 SEARCHES, OR A SIMILAR METHOD THAT DOES NOT INVOLVE UPLOADING, UPON A
21 COURT'S DETERMINATION THAT (1) SUCH PROFILE COMPLIES WITH FEDERAL BUREAU
22 OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE AND AS
23 SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING SUCH A
24 COMPARISON, AND THAT THE DATA MEET STATE DNA INDEX SYSTEM AND/OR
25 NATIONAL DNA INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW
26 ENFORCEMENT AGENCIES SEEKING SUCH A COMPARISON AND (2) IF SUCH COMPAR-
27 ISON HAD BEEN CONDUCTED, AND IF THE RESULTS HAD BEEN ADMITTED IN THE
28 TRIAL RESULTING IN THE JUDGMENT, A REASONABLE PROBABILITY EXISTS THAT
29 THE VERDICT WOULD HAVE BEEN MORE FAVORABLE TO THE DEFENDANT, OR IN A
30 CASE INVOLVING A PLEA OF GUILTY, IF THE RESULTS HAD BEEN AVAILABLE TO
31 THE DEFENDANT PRIOR TO THE PLEA, A REASONABLE PROBABILITY EXISTS THAT
32 THE CONVICTION WOULD NOT HAVE RESULTED. FOR PURPOSES OF THIS SUBDIVI-
33 SION, A "KEYBOARD SEARCH" SHALL MEAN A SEARCH OF A DNA PROFILE AGAINST
34 THE DATABANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT UPLOADED TO OR
35 MAINTAINED IN THE DATABANK.
36 S 3. Subdivision 1 of section 240.40 of the criminal procedure law, as
37 amended by chapter 558 of the laws of 1982, the opening paragraph as
38 amended by chapter 317 of the laws of 1983, is amended to read as
39 follows:
40 1. Upon motion of a defendant against whom an indictment, superior
41 court information, prosecutor's information, information, or simplified
42 information charging a misdemeanor is pending, the court in which such
43 accusatory instrument is pending:
44 (a) must order discovery as to any material not disclosed upon a
45 demand pursuant to section 240.20, if it finds that the prosecutor's
46 refusal to disclose such material is not justified; (b) must, unless it
47 is satisfied that the people have shown good cause why such an order
48 should not be issued, order discovery or any other order authorized by
49 subdivision one of section 240.70 as to any material not disclosed upon
50 demand pursuant to section 240.20 where the prosecutor has failed to
51 serve a timely written refusal pursuant to section 240.35; [and] (c) may
52 order discovery with respect to any other property, which the people
53 intend to introduce at the trial, upon a showing by the defendant that
54 discovery with respect to such property is material to the preparation
55 of his OR HER defense, and that the request is reasonable; AND (D) WHERE
56 PROPERTY IN THE PEOPLE'S POSSESSION, CUSTODY, OR CONTROL THAT CONSISTS
S. 6733 5 A. 9555
1 OF A DEOXYRIBONUCLEIC ACID ("DNA") PROFILE OBTAINED FROM PROBATIVE
2 BIOLOGICAL MATERIAL GATHERED IN CONNECTION WITH THE INVESTIGATION OR
3 PROSECUTION OF THE DEFENDANT AND THE DEFENDANT ESTABLISHES THAT SUCH
4 PROFILE COMPLIES WITH FEDERAL BUREAU OF INVESTIGATION OR STATE REQUIRE-
5 MENTS, WHICHEVER ARE APPLICABLE AND AS SUCH REQUIREMENTS ARE APPLIED TO
6 LAW ENFORCEMENT AGENCIES SEEKING A KEYBOARD SEARCH OR SIMILAR COMPAR-
7 ISON, AND THAT THE DATA MEETS STATE DNA INDEX SYSTEM OR NATIONAL DNA
8 INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW ENFORCEMENT
9 AGENCIES SEEKING SUCH A KEYBOARD SEARCH OR SIMILAR COMPARISON, THE COURT
10 MAY ORDER AN ENTITY THAT HAS ACCESS TO THE COMBINED DNA INDEX SYSTEM OR
11 ITS SUCCESSOR SYSTEM TO COMPARE SUCH DNA PROFILE AGAINST DNA DATABANKS
12 BY KEYBOARD SEARCHES, OR A SIMILAR METHOD THAT DOES NOT INVOLVE UPLOAD-
13 ING, UPON NOTICE TO BOTH PARTIES AND THE ENTITY REQUIRED TO PERFORM THE
14 SEARCH, UPON A SHOWING BY THE DEFENDANT THAT SUCH A COMPARISON IS MATE-
15 RIAL TO THE PRESENTATION OF HIS OR HER DEFENSE AND THAT THE REQUEST IS
16 REASONABLE. FOR PURPOSES OF THIS PARAGRAPH, A "KEYBOARD SEARCH" SHALL
17 MEAN A SEARCH OF A DNA PROFILE AGAINST THE DATABANK IN WHICH THE PROFILE
18 THAT IS SEARCHED IS NOT UPLOADED TO OR MAINTAINED IN THE DATABANK. Upon
19 granting the motion pursuant to paragraph (c) [hereof] OF THIS SUBDIVI-
20 SION, the court shall, upon motion of the people showing such to be
21 material to the preparation of their case and that the request is
22 reasonable, condition its order of discovery by further directing
23 discovery by the people of property, of the same kind or character as
24 that authorized to be inspected by the defendant, which he OR SHE
25 intends to introduce at the trial.
26 S 4. Subdivision 1 of section 440.10 of the criminal procedure law is
27 amended by adding a new paragraph (g-1) to read as follows:
28 (G-1) FORENSIC DNA TESTING OF EVIDENCE PERFORMED SINCE THE ENTRY OF A
29 JUDGMENT, (1) IN THE CASE OF A DEFENDANT CONVICTED AFTER A GUILTY PLEA,
30 THE COURT HAS DETERMINED THAT THE DEFENDANT HAS DEMONSTRATED A SUBSTAN-
31 TIAL PROBABILITY THAT THE DEFENDANT WAS ACTUALLY INNOCENT OF THE OFFENSE
32 OF WHICH HE OR SHE WAS CONVICTED, OR (2) IN THE CASE OF A DEFENDANT
33 CONVICTED AFTER A TRIAL, THE COURT HAS DETERMINED THAT THERE EXISTS A
34 REASONABLE PROBABILITY THAT THE VERDICT WOULD HAVE BEEN MORE FAVORABLE
35 TO THE DEFENDANT.
36 S 5. Subdivision 7 of section 995 of the executive law, as amended by
37 chapter 2 of the laws of 2006, paragraph (a) as separately amended by
38 chapter 320 of the laws of 2006 and paragraph (f) as amended by chapter
39 405 of the laws of 2010, is amended to read as follows:
40 7. "Designated offender" means a person convicted of [and sentenced
41 for any one or more of the following provisions of the penal law (a)
42 sections 120.05, 120.10, and 120.11, relating to assault; sections
43 125.15 through 125.27 relating to homicide; sections 130.25, 130.30,
44 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to
45 sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to
46 escape and other offenses, where the offender has been convicted within
47 the previous five years of one of the other felonies specified in this
48 subdivision; or sections 255.25, 255.26 and 255.27, relating to incest,
49 a violent felony offense as defined in subdivision one of section 70.02
50 of the penal law, attempted murder in the first degree, as defined in
51 section 110.00 and section 125.27 of the penal law, kidnapping in the
52 first degree, as defined in section 135.25 of the penal law, arson in
53 the first degree, as defined in section 150.20 of the penal law,
54 burglary in the third degree, as defined in section 140.20 of the penal
55 law, attempted burglary in the third degree, as defined in section
56 110.00 and section 140.20 of the penal law, a felony defined in article
S. 6733 6 A. 9555
1 four hundred ninety of the penal law relating to terrorism or any
2 attempt to commit an offense defined in such article relating to terror-
3 ism which is a felony; or (b) criminal possession of a controlled
4 substance in the first degree, as defined in section 220.21 of the penal
5 law; criminal possession of a controlled substance in the second degree,
6 as defined in section 220.18 of the penal law; criminal sale of a
7 controlled substance, as defined in article 220 of the penal law; or
8 grand larceny in the fourth degree, as defined in subdivision five of
9 section 155.30 of the penal law; or (c) any misdemeanor or felony
10 defined as a sex offense or sexually violent offense pursuant to para-
11 graph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision
12 three of section one hundred sixty-eight-a of the correction law; or (d)
13 any of the following felonies, or an attempt thereof where such attempt
14 is a felony offense:
15 aggravated assault upon a person less than eleven years old, as
16 defined in section 120.12 of the penal law; menacing in the first
17 degree, as defined in section 120.13 of the penal law; reckless endan-
18 germent in the first degree, as defined in section 120.25 of the penal
19 law; stalking in the second degree, as defined in section 120.55 of the
20 penal law; criminally negligent homicide, as defined in section 125.10
21 of the penal law; vehicular manslaughter in the second degree, as
22 defined in section 125.12 of the penal law; vehicular manslaughter in
23 the first degree, as defined in section 125.13 of the penal law;
24 persistent sexual abuse, as defined in section 130.53 of the penal law;
25 aggravated sexual abuse in the fourth degree, as defined in section
26 130.65-a of the penal law; female genital mutilation, as defined in
27 section 130.85 of the penal law; facilitating a sex offense with a
28 controlled substance, as defined in section 130.90 of the penal law;
29 unlawful imprisonment in the first degree, as defined in section 135.10
30 of the penal law; custodial interference in the first degree, as defined
31 in section 135.50 of the penal law; criminal trespass in the first
32 degree, as defined in section 140.17 of the penal law; criminal tamper-
33 ing in the first degree, as defined in section 145.20 of the penal law;
34 tampering with a consumer product in the first degree, as defined in
35 section 145.45 of the penal law; robbery in the third degree as defined
36 in section 160.05 of the penal law; identity theft in the second degree,
37 as defined in section 190.79 of the penal law; identity theft in the
38 first degree, as defined in section 190.80 of the penal law; promoting
39 prison contraband in the first degree, as defined in section 205.25 of
40 the penal law; tampering with a witness in the third degree, as defined
41 in section 215.11 of the penal law; tampering with a witness in the
42 second degree, as defined in section 215.12 of the penal law; tampering
43 with a witness in the first degree, as defined in section 215.13 of the
44 penal law; criminal contempt in the first degree, as defined in subdivi-
45 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
46 criminal contempt, as defined in section 215.52 of the penal law; bail
47 jumping in the second degree, as defined in section 215.56 of the penal
48 law; bail jumping in the first degree, as defined in section 215.57 of
49 the penal law; patronizing a prostitute in the second degree, as defined
50 in section 230.05 of the penal law; patronizing a prostitute in the
51 first degree, as defined in section 230.06 of the penal law; promoting
52 prostitution in the second degree, as defined in section 230.30 of the
53 penal law; promoting prostitution in the first degree, as defined in
54 section 230.32 of the penal law; compelling prostitution, as defined in
55 section 230.33 of the penal law; disseminating indecent materials to
56 minors in the second degree, as defined in section 235.21 of the penal
S. 6733 7 A. 9555
1 law; disseminating indecent materials to minors in the first degree, as
2 defined in section 235.22 of the penal law; riot in the first degree, as
3 defined in section 240.06 of the penal law; criminal anarchy, as defined
4 in section 240.15 of the penal law; aggravated harassment of an employee
5 by an inmate, as defined in section 240.32 of the penal law; unlawful
6 surveillance in the second degree, as defined in section 250.45 of the
7 penal law; unlawful surveillance in the first degree, as defined in
8 section 250.50 of the penal law; endangering the welfare of a vulnerable
9 elderly person in the second degree, as defined in section 260.32 of the
10 penal law; endangering the welfare of a vulnerable elderly person in the
11 first degree, as defined in section 260.34 of the penal law; use of a
12 child in a sexual performance, as defined in section 263.05 of the penal
13 law; promoting an obscene sexual performance by a child, as defined in
14 section 263.10 of the penal law; possessing an obscene sexual perform-
15 ance by a child, as defined in section 263.11 of the penal law; promot-
16 ing a sexual performance by a child, as defined in section 263.15 of the
17 penal law; possessing a sexual performance by a child, as defined in
18 section 263.16 of the penal law; criminal possession of a weapon in the
19 third degree, as defined in section 265.02 of the penal law; criminal
20 sale of a firearm in the third degree, as defined in section 265.11 of
21 the penal law; criminal sale of a firearm to a minor, as defined in
22 section 265.16 of the penal law; unlawful wearing of a body vest, as
23 defined in section 270.20 of the penal law; hate crimes as defined in
24 section 485.05 of the penal law; and crime of terrorism, as defined in
25 section 490.25 of the penal law; or (e) a felony defined in the penal
26 law or an attempt thereof where such attempt is a felony; or (f) any of
27 the following misdemeanors: assault in the third degree as defined in
28 section 120.00 of the penal law; attempted aggravated assault upon a
29 person less than eleven years old, as defined in section 110.00 and
30 section 120.12 of the penal law; attempted menacing in the first degree,
31 as defined in section 110.00 and section 120.13 of the penal law; menac-
32 ing in the second degree as defined in section 120.14 of the penal law;
33 menacing in the third degree as defined in section 120.15 of the penal
34 law; reckless endangerment in the second degree as defined in section
35 120.20 of the penal law; stalking in the fourth degree as defined in
36 section 120.45 of the penal law; stalking in the third degree as defined
37 in section 120.50 of the penal law; attempted stalking in the second
38 degree, as defined in section 110.00 and section 120.55 of the penal
39 law; criminal obstruction of breathing or blood circulation as defined
40 in section 121.11 of the penal law; forcible touching as defined in
41 section 130.52 of the penal law regardless of the age of the victim;
42 sexual abuse in the third degree as defined in section 130.55 of the
43 penal law regardless of the age of the victim; unlawful imprisonment in
44 the second degree as defined in section 135.05 of the penal law regard-
45 less of the age of the victim; attempted unlawful imprisonment in the
46 first degree, as defined in section 110.00 and section 135.10 of the
47 penal law regardless of the age of the victim; criminal trespass in the
48 second degree as defined in section 140.15 of the penal law; possession
49 of burglar's tools as defined in section 140.35 of the penal law; petit
50 larceny as defined in section 155.25 of the penal law; endangering the
51 welfare of a child as defined in section 260.10 of the penal law; endan-
52 gering the welfare of an incompetent or physically disabled person as
53 defined in section 260.25 of the penal law] ANY FELONY DEFINED IN ANY
54 CHAPTER OF THE LAWS OF THE STATE OR ANY MISDEMEANOR DEFINED IN THE PENAL
55 LAW EXCEPT THAT WHERE THE PERSON IS CONVICTED UNDER SECTION 221.10 OF
56 THE PENAL LAW, ONLY A PERSON CONVICTED UNDER SUBDIVISION TWO OF SUCH
S. 6733 8 A. 9555
1 SECTION, OR A PERSON CONVICTED UNDER SUBDIVISION ONE OF SUCH SECTION WHO
2 STANDS PREVIOUSLY CONVICTED OF ANY CRIME AS DEFINED IN SUBDIVISION SIX
3 OF SECTION 10.00 OF THE PENAL LAW.
4 S 6. Subdivision 3 of section 995-c of the executive law, as amended
5 by chapter 576 of the laws of 2004, is amended to read as follows:
6 3. (A) Any designated offender subsequent to conviction and sentencing
7 for a crime specified in subdivision seven of section nine hundred nine-
8 ty-five of this article, shall be required to provide a sample appropri-
9 ate for DNA testing to determine identification characteristics specific
10 to such person and to be included in a state DNA identification index
11 pursuant to this article.
12 (B) (I) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A
13 TERM OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERV-
14 ANT TO WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED.
15 (II) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM
16 OF PROBATION, INCLUDING A SENTENCE OF PROBATION IMPOSED IN CONJUNCTION
17 WITH A SENTENCE OF IMPRISONMENT WHEN A SAMPLE HAS NOT ALREADY BEEN
18 TAKEN, SUCH SAMPLE SHALL BE COLLECTED BY THE PROBATION DEPARTMENT SUPER-
19 VISING THE DESIGNATED OFFENDER.
20 (III) IN THE CASE OF A DESIGNATED OFFENDER WHOSE SENTENCE DOES NOT
21 INCLUDE EITHER A TERM OF IMPRISONMENT OR A TERM OF PROBATION, OUTSIDE OF
22 THE CITY OF NEW YORK, THE COURT SHALL ORDER THAT THE DESIGNATED OFFENDER
23 REPORT TO AN OFFICE OF THE SHERIFF OF THAT COUNTY, AND WHEN THE DESIG-
24 NATED OFFENDER DOES SO, SUCH SAMPLE SHALL BE COLLECTED BY THE SHERIFF'S
25 OFFICE OR A COURT OFFICER. WITHIN THE CITY OF NEW YORK, THE COURT SHALL
26 ORDER THAT THE SAMPLE BE COLLECTED BY A COURT OFFICER.
27 (IV) NOTHING IN THIS PARAGRAPH SHALL PROHIBIT THE COLLECTION OF A DNA
28 SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR LOCAL
29 CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER,
30 POLICE OFFICER, PEACE OFFICER, OTHER LAW ENFORCEMENT OFFICIAL, OR DESIG-
31 NATED PERSONNEL OF THE DIVISION OF CRIMINAL JUSTICE SERVICES WHO HAS
32 BEEN NOTIFIED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT SUCH
33 DESIGNATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE. UPON NOTIFICATION BY
34 THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT A DESIGNATED OFFENDER HAS
35 NOT PROVIDED A DNA SAMPLE, SUCH COURT OFFICIAL, STATE OR LOCAL
36 CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER,
37 POLICE OFFICER, PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICIAL, OR
38 DESIGNATED PERSONNEL OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL
39 COLLECT THE DNA SAMPLE.
40 S 7. Nothing in this act shall be construed to create or impose an
41 affirmative obligation upon laboratories, police departments, district
42 attorneys, or any other law enforcement agencies or personnel to retain
43 or preserve property that may contain DNA if such obligation did not
44 exist prior to the effective date of this act, provided, however, that
45 nothing in this act shall be construed to affect or remove any such
46 obligation if it did exist prior to the effective date of this act.
47 S 8. The actual costs incurred in connection with DNA testing or
48 keyboard searches performed pursuant to subdivision 1-a of section
49 440.30 of the criminal procedure law shall be borne by the defendant
50 requesting such testing or searches, provided, however that the court,
51 taking into account the defendant's financial resources, as well as any
52 of the defendant's financial obligations, shall make a determination
53 whether or not the payment of such cost would impose a hardship upon the
54 defendant, and in such case, the state shall bear such costs.
55 S 9. This act shall take effect October 1, 2012; provided, however,
56 that the amendments to subdivision 7 of section 995 of the executive law
S. 6733 9 A. 9555
1 made by section five of this act shall apply to conviction of designated
2 offenses, and subparagraph two of paragraph (a) of subdivision 1-a of
3 section 440.30 of the criminal procedure law as added by section two of
4 this act shall apply to a guilty plea entered, on or after such effec-
5 tive date.