S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6319
                                   I N  S E N A T E
                                   January 14, 2014
                                      ___________
       Introduced  by  Sen. O'BRIEN -- read twice and ordered printed, and when
         printed to be committed to the Committee on Finance
       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,
   22  265.03, 265.04, 265.08,  265.09,  265.11,  265.12,  265.13,  265.14  AND
   23  265.16, RELATING TO FIREARMS AND OTHER DANGEROUS WEAPONS.
   24    S 2. Subdivision 3 of section 995-c of the executive law is amended by
   25  adding four new paragraphs (c), (d), (e) and (f) to read as follows:
   26    (C)  A FELONY ARRESTEE SHALL BE REQUIRED TO PROVIDE A SAMPLE APPROPRI-
   27  ATE FOR DNA TESTING UPON HIS OR HER ARREST, UNLESS SUCH FELONY  ARRESTEE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08276-01-3
       S. 6319                             2
    1  HAS PREVIOUSLY PROVIDED A SAMPLE THAT IS INCLUDED IN THE STATE DNA IDEN-
    2  TIFICATION INDEX.
    3    (D)  A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER OR FELONY
    4  ARRESTEE WHO HAS NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED  SHALL
    5  SEEK AN ORDER OF THE COURT TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER
    6  WRITTEN OR ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE.
    7    (E)  THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED
    8  UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION  INDEX  SHALL
    9  NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI-
   10  NAL  JUSTICE  SERVICES  INADVERTENTLY,  BUT  IN GOOD FAITH, COLLECTED OR
   11  PLACED THE PERSON'S DNA SAMPLE IN THE INDEX.
   12    (F) THE COMMISSIONER OF CRIMINAL  JUSTICE  SERVICES  SHALL  PROMULGATE
   13  RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI-
   14  CATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX CONTAINS DNA PROFILES
   15  THAT  SHOULD  NOT  BE  IN  THE  INDEX,  INCLUDING THE STEPS NECESSARY TO
   16  EXPUNGE ANY PROFILES WHICH THE DIVISION  OF  CRIMINAL  JUSTICE  SERVICES
   17  DETERMINES SHOULD NOT BE IN THE INDEX.
   18    S  3.  Subdivision 9 of section 995-c of the executive law, as amended
   19  by chapter 524 of the laws of 2002, is amended to read as follows:
   20    9. (a) Upon receipt of notification of a reversal or a  vacatur  of  a
   21  conviction,  or of the granting of a pardon pursuant to article two-A of
   22  this chapter, of an individual whose DNA record has been stored  in  the
   23  state  DNA  identification  index in accordance with this article by the
   24  division of criminal justice services, the DNA record shall be  expunged
   25  from  the  state DNA identification index, and such individual may apply
   26  to the court in which the judgment of conviction was originally  entered
   27  for  an  order  directing  the  expungement  of  any  DNA record and any
   28  samples, analyses, or other documents relating to  the  DNA  testing  of
   29  such  individual  in connection with the investigation or prosecution of
   30  the crime which resulted in the conviction that was reversed or  vacated
   31  or for which the pardon was granted. A copy of such application shall be
   32  served  on  the district attorney and an order directing expungement may
   33  be granted  if  the  court  finds  that  all  appeals  relating  to  the
   34  conviction  have  been  concluded;  that  such  individual  will  not be
   35  retried, or, if a retrial has occurred, the trier of fact has rendered a
   36  verdict of complete acquittal, and that expungement will  not  adversely
   37  affect  the investigation or prosecution of some other person or persons
   38  for the crime. The division shall,  by  rule  or  regulation,  prescribe
   39  procedures to ensure that the DNA record in the state DNA identification
   40  index,  and  any  samples, analyses, or other documents relating to such
   41  record, whether in the possession of the division, or any  law  enforce-
   42  ment  or  police  agency,  or any forensic DNA laboratory, including any
   43  duplicates or copies thereof, at the discretion of the possessor  there-
   44  of,  are  either  destroyed  or  returned  to such individual, or to the
   45  attorney who represented him or her at the time such  reversal,  vacatur
   46  or  pardon,  was  granted. The commissioner shall also adopt by rule and
   47  regulation a procedure for the expungement in other appropriate  circum-
   48  stances of DNA records contained in the index.
   49    (b)  As  prescribed in this paragraph, if an individual, either volun-
   50  tarily, PURSUANT TO PARAGRAPH (C) OF SUBDIVISION THREE OF THIS  SECTION,
   51  or  pursuant to a warrant or order of a court, has provided a sample for
   52  DNA testing in connection with the investigation, ARREST or  prosecution
   53  of a crime and (i) no criminal action against the individual relating to
   54  such crime was commenced within the period specified by section 30.10 of
   55  the  criminal  procedure  law,  or  (ii) a criminal action was commenced
   56  against the individual relating  to  such  crime  which  resulted  in  a
       S. 6319                             3
    1  complete acquittal, or (iii) a criminal action WAS COMMENCED against the
    2  individual  relating  to  such  crime [resulted in a conviction that was
    3  subsequently reversed or vacated, or for which the individual was grant-
    4  ed  a  pardon pursuant to article two-A of this chapter, such individual
    5  may apply to the supreme court or the court in  which  the  judgment  of
    6  conviction was originally entered for an order directing the expungement
    7  of any DNA record and any samples, analyses, or other documents relating
    8  to  the  DNA  testing of such individual in connection with the investi-
    9  gation or prosecution of such crime. A copy of such application shall be
   10  served on the district attorney and an order directing  expungement  may
   11  be  granted  if  the  court  finds that the individual has satisfied the
   12  conditions of one of the subparagraphs of  this  paragraph;  that  if  a
   13  judgment  of  conviction  was  reversed or vacated, all appeals relating
   14  thereto have been concluded and the individual will not be retried,  or,
   15  if  a  retrial has occurred, the trier of fact has rendered a verdict of
   16  complete acquittal, and that expungement will not adversely  affect  the
   17  investigation  or  prosecution  of  some other person or persons for the
   18  crime. If an order directing the expungement of any DNA record  and  any
   19  samples, analyses or other documents relating to the DNA testing of such
   20  individual  is  issued]  WHICH  WAS  RESOLVED BY A DISMISSAL, SUCCESSFUL
   21  COMPLETION  OF  A  PRE-PROSECUTION  DIVERSION  PROGRAM,  OR  CONDITIONAL
   22  DISCHARGE  OR MISDEMEANOR CONVICTION THAT DID NOT REQUIRE DNA COLLECTION
   23  PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE OF THIS  ARTICLE,  THE  DNA
   24  RECORD  SHALL  BE  EXPUNGED  FROM THE STATE DNA IDENTIFICATION INDEX. AN
   25  INDIVIDUAL MAY REQUEST EXPUNGEMENT OF ANY DNA RECORD  AND  ANY  SAMPLES,
   26  ANALYSES OR OTHER DOCUMENTS RELATING TO THE DNA TESTING OF SUCH INDIVID-
   27  UAL  BY  PROVIDING  THE  FOLLOWING MATERIALS TO THE DIVISION OF CRIMINAL
   28  JUSTICE SERVICES:
   29    (1) A WRITTEN REQUEST FOR EXPUNGEMENT OF THE SAMPLE AND  DNA  RECORDS;
   30  AND
   31    (2)  A  CERTIFIED  COPY  OF  THE DISMISSAL, SUCCESSFUL COMPLETION OF A
   32  PRE-PROSECUTION DIVERSION PROGRAM OR A CONDITIONAL DISCHARGE,  MISDEMEA-
   33  NOR CONVICTION OR ACQUITTAL; AND
   34    (3)  A SWORN STATEMENT FROM THE DISTRICT ATTORNEY'S OFFICE WITH JURIS-
   35  DICTION OVER THE MATTER THAT: THE CASE WAS DISMISSED; A  PRE-PROSECUTION
   36  DIVERSION  PROGRAM  OR  CONDITIONAL  DISCHARGE,  MISDEMEANOR  CONVICTION
   37  EXCLUDED  FROM  DNA  COLLECTION  PURSUANT  TO   SECTION   NINE   HUNDRED
   38  NINETY-FIVE  OF  THIS  ARTICLE  OR ACQUITTAL OCCURRED; NO FELONY CHARGES
   39  AROSE OUT OF THE ARREST; OR NO CRIMINAL ACTION  AGAINST  THE  INDIVIDUAL
   40  RELATING  TO  SUCH  CRIME  WAS  COMMENCED WITHIN THE PERIOD SPECIFIED BY
   41  SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW; AND THAT  EXPUNGEMENT  WILL
   42  NOT  ADVERSELY  AFFECT  THE  INVESTIGATION  OR PROSECUTION OF SOME OTHER
   43  PERSON OR PERSONS FOR THE CRIME.
   44    (C) IF EXPUNGEMENT IS WARRANTED PURSUANT TO PARAGRAPH (A)  OR  (B)  OF
   45  THIS  SUBDIVISION, such record and any samples, analyses, or other docu-
   46  ments shall, at the discretion of the possessor thereof, be destroyed or
   47  returned to such individual or to the attorney who  represented  him  or
   48  her  IN  THE  CRIMINAL ACTION OR in connection with the [application for
   49  the order of] REQUEST FOR expungement.
   50    (D) NO EXPUNGEMENT SHALL BE GRANTED WHERE AN INDIVIDUAL  HAS  A  PRIOR
   51  CONVICTION  REQUIRING A DNA SAMPLE, OR A PENDING FELONY CHARGE FOR WHICH
   52  COLLECTION OF A SAMPLE IS AUTHORIZED PURSUANT TO THE PROVISIONS OF PARA-
   53  GRAPH (C) OF SUBDIVISION THREE OF THIS SECTION.
   54    S 4. Subdivision 6 of section 120.90 of the criminal procedure law, as
   55  amended by chapter 424 of the laws  of  1998,  is  amended  to  read  as
   56  follows:
       S. 6319                             4
    1    6.   Before bringing a defendant arrested pursuant to a warrant before
    2  the local criminal court in which such warrant is returnable,  a  police
    3  officer  must  without  unnecessary delay perform all fingerprinting and
    4  other preliminary police duties required in the particular case.  In any
    5  case  in  which  the defendant is not brought by a police officer before
    6  such court but, following his arrest in another county  for  an  offense
    7  specified  in  subdivision  one  of  section  160.10  OF  THIS TITLE, is
    8  released by a local criminal court of  such  other  county  on  his  own
    9  recognizance  or  on  bail for his appearance on a specified date before
   10  the local criminal court before which the  warrant  is  returnable,  the
   11  latter  court  must, upon arraignment of the defendant before it, direct
   12  that he be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR  DNA  TESTING
   13  TAKEN, IF REQUIRED PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE
   14  EXECUTIVE  LAW, by the appropriate officer or agency, and that he appear
   15  at an appropriate designated time and place for such purpose.
   16    S 5. Section 130.60 of the criminal procedure law, as amended by chap-
   17  ter 95 of the laws of 1991, subdivision 1 as amended by chapter  446  of
   18  the laws of 1993, is amended to read as follows:
   19  S 130.60 Summons; fingerprinting of defendant.
   20    1. Upon the arraignment of a defendant whose court attendance has been
   21  secured  by the issuance and service of a summons, based upon an indict-
   22  ment,  a  prosecutor's  information  or  upon  an  information,   felony
   23  complaint  or  misdemeanor  complaint  filed  by  a complainant who is a
   24  police officer, the court must, if an offense charged in the  accusatory
   25  instrument is one specified in subdivision one of section 160.10 OF THIS
   26  TITLE,  direct  that  the  defendant be fingerprinted by the appropriate
   27  police officer or agency, and that he or she appear  at  an  appropriate
   28  designated  time  and  place for such purpose.  IF AN OFFENSE CHARGED IN
   29  THE ACCUSATORY INSTRUMENT IS ONE SPECIFIED  IN  SUBDIVISION  SEVEN-A  OF
   30  SECTION  NINE  HUNDRED  NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT MUST
   31  DIRECT THAT A SAMPLE APPROPRIATE FOR DNA TESTING BE TAKEN, AND  THAT  HE
   32  OR  SHE  APPEAR  AT  AN  APPROPRIATE  DESIGNATED TIME AND PLACE FOR SUCH
   33  PURPOSE.
   34    2. Upon the arraignment of a defendant whose court attendance has been
   35  secured by the issuance and service of a summons based upon an  informa-
   36  tion or misdemeanor complaint filed by a complainant who is not a police
   37  officer,  and  who  has not previously been fingerprinted OR FROM WHOM A
   38  DNA SAMPLE HAS NOT PREVIOUSLY BEEN TAKEN AND WAS  REQUIRED  PURSUANT  TO
   39  SECTION  NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, the court may,
   40  if it finds reasonable cause to believe that the defendant has committed
   41  an offense specified in subdivision one of section 160.10 OF THIS TITLE,
   42  direct that the defendant be fingerprinted AND/OR HAVE A  SAMPLE  APPRO-
   43  PRIATE  FOR DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINE-
   44  TY-FIVE-C OF THE EXECUTIVE LAW, by the  appropriate  police  officer  or
   45  agency  and  that  he appear at an appropriate designated time and place
   46  for such purpose. A defendant whose court appearance has been secured by
   47  the issuance and service of a criminal summons based upon a  misdemeanor
   48  complaint  or  information  filed  by  a complainant who is not a police
   49  officer, must be directed by the court, upon conviction of  the  defend-
   50  ant,  to  be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR DNA TESTING
   51  TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF  THE  EXECU-
   52  TIVE LAW, by the appropriate police officer or agency and the court must
   53  also  direct that the defendant appear at an appropriate designated time
   54  and place for such purpose, if the defendant is convicted of any offense
   55  specified in subdivision one of section 160.10 OF THIS TITLE.
       S. 6319                             5
    1    S 6. Subdivision 5 of section 140.20 of the criminal procedure law, as
    2  amended by chapter 762 of the laws  of  1971,  is  amended  to  read  as
    3  follows:
    4    5.  Before  service  of  an  appearance ticket upon an arrested person
    5  pursuant to subdivision two or three OF THIS SECTION, the issuing police
    6  officer must, if the offense designated in such appearance ticket is one
    7  of those specified in subdivision one of section 160.10 OF  THIS  TITLE,
    8  cause  such person to be fingerprinted AND HAVE A SAMPLE APPROPRIATE FOR
    9  DNA TESTING TAKEN, IF REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C  OF
   10  THE  EXECUTIVE  LAW,  in  the  same  manner as would be required were no
   11  appearance ticket to be issued or served.
   12    S 7. Subdivision 2 of section 140.27 of the criminal procedure law, as
   13  amended by chapter 843 of the laws  of  1980,  is  amended  to  read  as
   14  follows:
   15    2.  Upon arresting a person without a warrant, a peace officer, except
   16  as otherwise provided in subdivision three OF THIS SECTION, must without
   17  unnecessary  delay  bring  him or cause him to be brought before a local
   18  criminal court, as provided in section 100.55  and  subdivision  one  of
   19  section 140.20 OF THIS TITLE, and must without unnecessary delay file or
   20  cause  to  be  filed therewith an appropriate accusatory instrument.  If
   21  the offense which is the subject of the arrest is one of those specified
   22  in subdivision one of section 160.10 OF THIS TITLE, the arrested  person
   23  must  be  fingerprinted  and photographed, AND HAVE A SAMPLE APPROPRIATE
   24  FOR DNA TESTING TAKEN IF REQUIRED BY SECTION NINE HUNDRED  NINETY-FIVE-C
   25  OF  THE  EXECUTIVE  LAW,  as therein provided.   In order to execute the
   26  required post-arrest functions, such arresting peace officer may perform
   27  such functions himself or he may enlist the aid of a police officer  for
   28  the  performance  thereof  in  the manner provided in subdivision one of
   29  section 140.20 OF THIS ARTICLE.
   30    S 8. Section 150.70 of the criminal procedure law, as amended by chap-
   31  ter 762 of the laws of 1971, is amended to read as follows:
   32  S 150.70  Appearance ticket; fingerprinting AND DNA ANALYSIS  SAMPLE  of
   33               defendant.
   34    Upon  the  arraignment  of  a  defendant who has not been arrested and
   35  whose court attendance has been secured by the issuance and  service  of
   36  an  appearance  ticket  pursuant to subdivision one of section 150.20 OF
   37  THIS ARTICLE, the court must, if an offense charged  in  the  accusatory
   38  instrument is one specified in subdivision one of section 160.10 OF THIS
   39  TITLE,  direct  that  the defendant be fingerprinted   AND HAVE A SAMPLE
   40  APPROPRIATE FOR DNA TESTING TAKEN WHEN REQUIRED BY SECTION NINE  HUNDRED
   41  NINETY-FIVE-C  OF THE EXECUTIVE LAW by the appropriate police officer or
   42  agency, and that he appear at an appropriate designated time  and  place
   43  for such purpose.
   44    S 9. Section 160.20 of the criminal procedure law, as amended by chap-
   45  ter 108 of the laws of 1973, is amended to read as follows:
   46  S  160.20  Fingerprinting AND DNA ANALYSIS SAMPLE; forwarding of finger-
   47               prints AND DNA ANALYSIS SAMPLE.
   48    1. Upon the taking of fingerprints of an arrested person or  defendant
   49  as  prescribed in section 160.10 OF THIS ARTICLE, the appropriate police
   50  officer or agency must without unnecessary delay forward two  copies  of
   51  such fingerprints to the division of criminal justice services.
   52    2.   UPON TAKING A SAMPLE APPROPRIATE FOR DNA TESTING, THE APPROPRIATE
   53  POLICE OFFICE OR AGENCY MUST WITHOUT UNNECESSARY DELAY STORE AND FORWARD
   54  SUCH DNA SAMPLE TO A FORENSIC DNA LABORATORY FOR  FORENSIC  DNA  TESTING
   55  AND  ANALYSES,  AND  INCLUSION  IN THE STATE DNA IDENTIFICATION INDEX IN
       S. 6319                             6
    1  ACCORDANCE WITH SUBDIVISION FIVE OF SECTION NINE  HUNDRED  NINETY-FIVE-C
    2  OF THE EXECUTIVE LAW.
    3    S 10. Paragraphs (d) and (e) of subdivision 1 of section 160.50 of the
    4  criminal  procedure  law,  paragraph  (d)  as  amended  by section 73 of
    5  subpart B of part C of chapter 62 of the laws of 2011 and paragraph  (e)
    6  as  amended  by  chapter  169 of the laws of 1994, are amended and a new
    7  paragraph (f) is added to read as follows:
    8    (d) such records shall be made available to the person accused  or  to
    9  such  person's  designated  agent,  and shall be made available to (i) a
   10  prosecutor in any proceeding in which the accused has moved for an order
   11  pursuant to section 170.56 or 210.46 of this  chapter,  or  (ii)  a  law
   12  enforcement  agency  upon ex parte motion in any superior court, if such
   13  agency demonstrates to  the  satisfaction  of  the  court  that  justice
   14  requires  that  such records be made available to it, or (iii) any state
   15  or local officer or agency  with  responsibility  for  the  issuance  of
   16  licenses to possess guns, when the accused has made application for such
   17  a  license,  or  (iv) the [New York state] department of corrections and
   18  community supervision when the accused is on  parole  supervision  as  a
   19  result  of  conditional  release or a parole release granted by the [New
   20  York] state board of parole, and the arrest which is the subject of  the
   21  inquiry  is  one  which occurred while the accused was under such super-
   22  vision or (v) any prospective employer of  a  police  officer  or  peace
   23  officer  as  those  terms  are  defined in subdivisions thirty-three and
   24  thirty-four of section 1.20 of this chapter, in relation to an  applica-
   25  tion  for  employment  as  a  police officer or peace officer; provided,
   26  however, that every person who is  an  applicant  for  the  position  of
   27  police  officer  or  peace officer shall be furnished with a copy of all
   28  records obtained under this paragraph and  afforded  an  opportunity  to
   29  make  an explanation thereto, or (vi) the probation department responsi-
   30  ble for supervision of the accused when the arrest which is the  subject
   31  of  the  inquiry  is one which occurred while the accused was under such
   32  supervision; [and]
   33    (e) where fingerprints subject to the provisions of this section  have
   34  been received by the division of criminal justice services and have been
   35  filed  by  the  division as digital images, such images may be retained,
   36  provided that a fingerprint card of the individual is on file  with  the
   37  division which was not sealed pursuant to this section or section 160.55
   38  of this article[.]; AND
   39    (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
   40  ANT  TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, AND ANY
   41  DNA RECORD RELATING TO SUCH SAMPLE, AND ANY ANALYSES OR OTHER  DOCUMENTS
   42  RELATING  TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED IN
   43  ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
   44    S 11. Paragraphs (d) and (e) of subdivision 1 of section 160.55 of the
   45  criminal procedure law, paragraph  (d)  as  amended  by  section  74  of
   46  subpart  B of part C of chapter 62 of the laws of 2011 and paragraph (e)
   47  as amended by chapter 169 of the laws of 1994, are  amended  and  a  new
   48  paragraph (f) is added to read as follows:
   49    (d) the records referred to in paragraph (c) of this subdivision shall
   50  be  made  available to the person accused or to such person's designated
   51  agent, and shall be made available to (i) a prosecutor in any proceeding
   52  in which the accused has moved for an order pursuant to  section  170.56
   53  or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
   54  parte motion in any superior court, if such agency demonstrates  to  the
   55  satisfaction  of  the  court  that justice requires that such records be
   56  made available to it, or (iii) any state or local officer or agency with
       S. 6319                             7
    1  responsibility for the issuance of licenses to possess  guns,  when  the
    2  accused  has  made application for such a license, or (iv) the [New York
    3  state] department of corrections  and  community  supervision  when  the
    4  accused  is  under parole supervision as a result of conditional release
    5  or parole release granted by the [New York] state board  of  parole  and
    6  the  arrest  which  is  the subject of the inquiry is one which occurred
    7  while the accused was under  such  supervision,  or  (v)  the  probation
    8  department  responsible  for  supervision of the accused when the arrest
    9  which is the subject of the inquiry is  one  which  occurred  while  the
   10  accused  was  under such supervision, or (vi) a police agency, probation
   11  department, sheriff's office, district attorney's office, department  of
   12  correction  of  any municipality and parole department, for law enforce-
   13  ment purposes, upon arrest in instances in which the  individual  stands
   14  convicted  of  harassment  in  the  second degree, as defined in section
   15  240.26 of the penal law, committed against a member of the  same  family
   16  or  household as the defendant, as defined in subdivision one of section
   17  530.11 of this chapter, and determined pursuant to  subdivision  eight-a
   18  of section 170.10 of this title; [and]
   19    (e)  where fingerprints subject to the provisions of this section have
   20  been received by the division of criminal justice services and have been
   21  filed by the division as digital images, such images  may  be  retained,
   22  provided  that  a fingerprint card of the individual is on file with the
   23  division which was not sealed pursuant to this section or section 160.50
   24  of this article[.]; AND
   25    (F) A SAMPLE APPROPRIATE FOR DNA TESTING TAKEN FROM SUCH PERSON PURSU-
   26  ANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW, ANY  DNA
   27  RECORD  RELATING  TO  SUCH  SAMPLE,  AND ANY ANALYSES OR OTHER DOCUMENTS
   28  RELATING TO SUCH DNA SAMPLE SHALL BE EXPUNGED, DESTROYED OR RETURNED  IN
   29  ACCORDANCE WITH SUBDIVISION NINE OF SUCH SECTION OF THE EXECUTIVE LAW.
   30    S  12.  This  act  shall  take effect on the one hundred eightieth day
   31  after it shall have become a law.