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

                                  6082

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 24, 2009
                               ___________

Introduced  by  M.  of  A. P. RIVERA, SCHROEDER, FIELDS, ORTIZ -- Multi-
  Sponsored by -- M. of A.  ALFANO, BARRA -- 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06510-01-9
              

A. 6082                             2

such  individual  in connection with the investigation or prosecution of
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

A. 6082                             3

person, INCLUDING THOSE IN THE POSSESSION OF A FORENSIC DNA  LABORATORY,
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

A. 6082                             4

IF  A JUDGMENT OF CONVICTION WAS REVERSED OR VACATED, ALL APPEALS RELAT-
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.