S T A T E   O F   N E W   Y O R K
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                                  5284

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 22, 2013
                               ___________

Introduced  by  M.  of  A.  ROSENTHAL  --  read once and referred to the
  Committee on Governmental Operations

AN ACT to amend the executive law, in  relation  to  the  disclosure  of
  DNA-related information in criminal investigations and proceedings and
  the expungement of such information

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (a) of subdivision 6  of  section  995-c  of  the
executive  law,  as added by chapter 737 of the laws of 1994, is amended
to read as follows:
  (a) to a federal law enforcement agency, or to a state  or  local  law
enforcement  agency or district attorney's office OR TO ANY OTHER PUBLIC
AGENCY for law enforcement identification purposes [upon submission of a
DNA record] in connection with the investigation of  the  commission  of
one  or  more  crimes  or to assist in the recovery or identification of
specified human remains, including identification of  missing  persons[,
provided  that there exists between the division and such agency a writ-
ten agreement governing the use and dissemination of such DNA records in
accordance with the provisions of this article];
  S 2. Subdivision 9 of section 995-c of the executive law,  as  amended
by chapter 524 of the laws of 2002, is amended to read as follows:
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04475-01-3
              

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the  crime which resulted in the conviction that was reversed or vacated
or for which the pardon was granted. A copy of such application shall be
served on the district attorney and an order directing  expungement  may
be  granted  if  the  court  finds  that  all  appeals  relating  to the
conviction have  been  concluded;  that  such  individual  will  not  be
retried, or, if a retrial has occurred, the trier of fact has rendered a
verdict  of  complete acquittal, and that expungement will not adversely
affect the investigation or prosecution of some other person or  persons
for  the  crime.  The  division  shall, by rule or regulation, prescribe
procedures to ensure that the DNA record in the state DNA identification
index, and any samples, analyses, or other documents  relating  to  such
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 a
sample for DNA testing in connection with the  investigation  or  prose-
cution  of  a  crime  and  (i) no criminal action against the individual
relating to such crime was commenced  within  the  period  specified  by
section  30.10  of the criminal procedure law, or (ii) a criminal action
was commenced against  the  individual  relating  to  such  crime  which
resulted in a complete acquittal, or (iii) 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 grant-
ed a pardon pursuant to article two-A of this chapter,  such  individual
may  apply  to  the  supreme court 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  investi-
gation or prosecution of such crime. 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  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.]
  S 3. Section 995-d of the executive law, as added by  chapter  737  of
the laws of 1994, subdivision 2 as amended by chapter 560 of the laws of
1999, is amended to read as follows:
  S 995-d. Confidentiality  AND  APPLICATIONS  FOR EXPUNGEMENT.   1. All
records, findings, reports, and results of DNA testing performed on  any
person,  INCLUDING THOSE IN THE POSSESSION OF A FORENSIC DNA LABORATORY,

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shall be confidential and may not be disclosed  or  redisclosed  without
the  consent of the subject of such DNA testing. Such records, findings,
reports and results  shall  not  be  released  to  insurance  companies,
employers or potential employers, health providers, employment screening
or  personnel  companies,  agencies,  or services, private investigation
services, and may not be disclosed in response to a  subpoena  or  other
compulsory  legal  process  or  warrant, or upon request or order of any
agency, authority, division, office, corporation,  partnership,  or  any
other  private or public entity or person, except that nothing contained
herein shall prohibit disclosure in response to  a  subpoena  issued  on
behalf  of the subject of such [DNA] record or on behalf of a party in a
civil proceeding where the subject of such [DNA]  record  has  put  such
record in issue.
  2.  Notwithstanding the provisions of subdivision one of this section,
records, findings, reports, and results of DNA testing[,  other  than  a
DNA record maintained in the state DNA identification index,] MAINTAINED
BY  A  FORENSIC  DNA  LABORATORY may be disclosed BY SUCH LABORATORY AND
REDISCLOSED BY ANY PUBLIC AGENCY FOR THE FOLLOWING PURPOSES:
  (A) TO A FEDERAL LAW ENFORCEMENT AGENCY, OR TO A STATE  OR  LOCAL  LAW
ENFORCEMENT  AGENCY OR DISTRICT ATTORNEY'S OFFICE OR TO ANY OTHER PUBLIC
AGENCY FOR LAW ENFORCEMENT IDENTIFICATION PURPOSES  IN  CONNECTION  WITH
THE  INVESTIGATION  OF THE COMMISSION OF ONE OR MORE CRIMES OR TO ASSIST
IN THE RECOVERY OR IDENTIFICATION OF HUMAN REMAINS, INCLUDING  IDENTIFI-
CATION OF MISSING PERSONS;
  (B)  in  a  criminal proceeding to the court, the prosecution, and the
defense pursuant to a written request  [on  a  form  prescribed  by  the
commissioner  of  the  division of criminal justice services.] BY ONE OF
THESE ENTITIES TO THE POSSESSOR OF SUCH RECORDS, FINDINGS,  REPORTS,  OR
RESULTS OF DNA TESTING; OR
  (C)  AFTER PERSONALLY IDENTIFIABLE INFORMATION HAS BEEN REMOVED BY THE
FORENSIC DNA LABORATORY, TO AN ENTITY AUTHORIZED  BY  THE  FORENSIC  DNA
LABORATORY  FOR  THE  PURPOSE  OF  CREATING  OR MAINTAINING A POPULATION
STATISTICS DATABASE OR FOR IDENTIFICATION RESEARCH AND PROTOCOL DEVELOP-
MENT FOR FORENSIC DNA ANALYSIS OR QUALITY CONTROL PURPOSES.
  3. AS PRESCRIBED IN THIS SUBDIVISION, IF AN INDIVIDUAL  NOT  OTHERWISE
COVERED  BY  SUBDIVISION  NINE  OF SECTION NINE HUNDRED NINETY-FIVE-C OF
THIS ARTICLE, EITHER VOLUNTARILY OR PURSUANT TO A WARRANT OR ORDER OF  A
COURT,  HAS  PROVIDED  A  SAMPLE  FOR DNA TESTING IN CONNECTION WITH THE
INVESTIGATION OR PROSECUTION OF A  CRIME  AND  (A)  NO  CRIMINAL  ACTION
AGAINST  THE  INDIVIDUAL  RELATING  TO  SUCH  CRIME  WAS COMMENCED OR IS
INTENDED TO BE COMMENCED WITHIN THE PERIOD SPECIFIED BY SECTION 30.10 OF
THE CRIMINAL PROCEDURE LAW, OR  (B)  A  CRIMINAL  ACTION  WAS  COMMENCED
AGAINST  THE  INDIVIDUAL  RELATING  TO  SUCH  CRIME  WHICH RESULTED IN A
COMPLETE ACQUITTAL, OR (C) 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 OR THE COURT IN WHICH THE JUDGMENT OF  CONVICTION  WAS
ORIGINALLY  ENTERED  FOR  AN  ORDER DIRECTING THE EXPUNGEMENT OF ANY DNA
IDENTIFICATION INFORMATION AND ANY SAMPLES, ANALYSES, OR OTHER DOCUMENTS
RELATING TO THE DNA TESTING OF SUCH INDIVIDUAL IN  CONNECTION  WITH  THE
INVESTIGATION  OR PROSECUTION OF SUCH CRIME.  A COPY OF SUCH APPLICATION
SHALL BE SERVED ON THE DISTRICT ATTORNEY AND AN ORDER DIRECTING EXPUNGE-
MENT SHALL BE GRANTED IF THE COURT FINDS THAT THE INDIVIDUAL HAS  SATIS-
FIED  THE  CONDITIONS OF ONE OF THE PARAGRAPHS OF THIS SUBDIVISION; THAT
IF A JUDGMENT OF CONVICTION WAS REVERSED OR VACATED, ALL APPEALS  RELAT-

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ING  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 IDENTIFICATION
INFORMATION AND ANY SAMPLES, ANALYSES OR OTHER DOCUMENTS RELATING TO THE
DNA TESTING OF SUCH INDIVIDUAL IS ISSUED, SUCH  IDENTIFICATION  INFORMA-
TION  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 REPRESENTED HIM OR HER IN CONNECTION
WITH THE APPLICATION FOR THE ORDER OF EXPUNGEMENT.
  4. Notwithstanding the provisions of subdivision one of this  section,
a  DNA  record  maintained  in the state DNA identification index may be
disclosed pursuant to section nine hundred ninety-five-c of  this  arti-
cle.
  S 4. This act shall take effect immediately.