Relates to the taking of DNA samples.
Ayes (62): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (1): Sampson
TITLE OF BILL: An act to amend the executive law, in relation to the taking of DNA samples
This is one in a series of measures being introduced at the request of the Chief Administrative judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.
This measure would amend the Executive Law to expressly exempt from DNA collection any defendant who already has a DNA profile included in the state DNA identification index.
As of August 1, 2012, defendants convicted and sentenced for any felony or Penal Law misdemeanor are required to provide a DNA sample for inclusion in the New York State DNA identification index* (L. 2012, cc. 19 and 55). Unfortunately, the law fails to provide any exception to collection where a defendant has previously given a DNA sample in connection with a prior conviction and already has a DNA profile included in the DNA identification index. Instead, the statute simply provides, in relevant part, "(a)ny designated offender subsequent to conviction and sentencing shall provide a sample appropriate for DNA testing ..." (Executive Law § 995-c (3)(a)). The statute further provides, "the court shall order that a court officer take a sample or that the designated offender report to an office of the sheriff of that county." The DNA sample, however, is not itself placed into the index. Instead, once a sample of a defendant's buccal cells is collected, it is forensically tested for DNA and the results are produced in the form of a digital profile that corresponds to the unique DNA profile of the defendant providing the sample. It is this digital profile that is included in the index. Subsequent collection of DNA samples will merely result in a re-entry into the index of the exact same digital profile.
The Division of Criminal Justice Services, the agency in charge of the DNA identification index, takes the pragmatic position that a sample need not be collected from an offender who has previously provided a sample because any new sample will be wholly duplicative of one already on file. However, in the absence of express statutory language that would authorize courts to forgo collection, many courts currently require collection of redundant samples. Given the vast expansion of the cases for which a DNA sample is now required and the administrative costs associated with collection, ordering a redundant sample is extremely wasteful of the resources of both courts and local law enforcement personnel. While at least one lower court has held that a redundant test is not required (see People v Husband, 954 NYS2d 856 (NYC Grim Ct. 2012)), we recommend that the Executive Law be amended to expressly authorize a court to forego ordering that a duplicative DNA sample be taken from a defendant who already has a DNA profile on file with the New York State identification index.
This act would take effect immediately.
None. New proposal.
*The single exception is for the class B misdemeanor conviction of criminal possession of marijuana in the fifth degree under subdivision one of PL § 221.10 by persons who have never before been convicted of a crime (Executive Law § 995(7))
STATE OF NEW YORK ________________________________________________________________________ 4730 2013-2014 Regular Sessions IN SENATE April 19, 2013 ___________Introduced by Sen. SKELOS -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law, in relation to the taking of DNA samples THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of subdivision 3 of section 995-c of the executive law, as amended by chapter 19 of the laws of 2012, is amended to read as follows: (a) Any designated offender subsequent to conviction and sentencing for a crime specified in subdivision seven of section nine hundred nine- ty-five of this article, shall be required to provide a sample appropri- ate for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index pursuant to this article; PROVIDED, HOWEVER, NO SUCH SAMPLE SHALL BE REQUIRED WHERE SUCH OFFENDER HAS PREVIOUSLY PROVIDED A SAMPLE AND IS CURRENTLY INCLUDED IN THE STATE DNA IDENTIFICATION INDEX. S 2. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09836-01-3