STATE OF NEW YORK

5894
2009-2010 Regular Sessions
IN SENATE
June 18, 2009

 

Introduced by Sen. HASSELL-THOMPSON -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules

AN ACT to amend the executive law, in relation to collection of DNA samples from designated offenders, the release of certain criminal records and the authority of the forensic science commission; to amend the criminal procedure law, in relation to identification procedures, access by defendants to DNA evidence and procedures for consideration of post-conviction relief; to amend the penal law, in relation to conditions of probation and conditional discharge and refusal to provide a DNA sample; and to amend the court of claims act, in     relation to claims for unjust conviction and imprisonment

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subdivision 7 of section 995 of the executive law, as amended by chapter 2 of the laws of 2006, paragraph (a) as separately amended by chapter 320 of the laws of 2006, is amended to read as follows:

    7. "Designated offender" means a person convicted of and sentenced for any [one or more of the following provisions of the penal law (a) sections 120.05, 120.10, and 120.11, relating to assault; sections 125.15 through 125.27 relating to homicide; sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, relating to sex offenses; sections 205.10, 205.15, 205.17 and 205.19, relating to escape and other offenses, where the offender has been convicted within the previous five years of one of the other felonies specified in this subdivision; or sections 255.25, 255.26 and 255.27, relating to incest, a violent felony offense as defined in subdivision one of section 70.02 of the penal law, attempted murder in the first degree, as defined in section 110.00 and section 125.27 of the penal law, kidnapping in the first degree, as defined in section 135.25 of the penal law, arson in the first degree, as defined in section 150.20 of the penal law, burglary in the third degree, as defined in section 140.20 of the penal law, attempted burglary in the third degree, as defined in section 110.00 and section 140.20 of the penal law, a felony defined in article four hundred ninety of the penal law relating to terrorism or any attempt to commit an offense defined in such article relating to terrorism which is a felony; or (b) criminal possession of a controlled substance in the first degree, as defined in section 220.21 of the penal law; criminal possession of a controlled substance in the second degree, as defined in section 220.18 of the penal law; criminal sale of a controlled substance, as defined in article 220 of the penal law; or grand larceny in the fourth degree, as defined in subdivision five of section 155.30 of the penal law; or (c) any misdemeanor or felony defined as a sex offense or sexually violent offense pursuant to paragraph (a), (b) or (c) of subdivision two or paragraph (a) of subdivision three of section one hundred sixty-eight-a of the correction law; or (d) any of the following felonies, or an attempt thereof where such attempt is a felony offense:

    aggravated assault upon a person less than eleven years old, as defined in section 120.12 of the penal law; menacing in the first degree, as defined in section 120.13 of the penal law; reckless endangerment in the first degree, as defined in section 120.25 of the penal law; stalking in the second degree, as defined in section 120.55 of the penal law; criminally negligent homicide, as defined in section 125.10 of the penal law; vehicular manslaughter in the second degree, as defined in section 125.12 of the penal law; vehicular manslaughter in the first degree, as defined in section 125.13 of the penal law; persistent sexual abuse, as defined in section 130.53 of the penal law; aggravated sexual abuse in the fourth degree, as defined in section 130.65-a of the penal law; female genital mutilation, as defined in section 130.85 of the penal law; facilitating a sex offense with a controlled substance, as defined in section 130.90 of the penal law; unlawful imprisonment in the first degree, as defined in section 135.10 of the penal law; custodial interference in the first degree, as defined in section 135.50 of the penal law; criminal trespass in the first degree, as defined in section 140.17 of the penal law; criminal tampering in the first degree, as defined in section 145.20 of the penal law; tampering with a consumer product in the first degree, as defined in section 145.45 of the penal law; robbery in the third degree as defined in section 160.05 of the penal law; identity theft in the second degree, as defined in section 190.79 of the penal law; identity theft in the first degree, as defined in section 190.80 of the penal law; promoting prison contraband in the first degree, as defined in section 205.25 of the penal law; tampering with a witness in the third degree, as defined in section 215.11 of the penal law; tampering with a witness in the second degree, as defined in section 215.12 of the penal law; tampering with a witness in the first degree, as defined in section 215.13 of the penal law; criminal contempt in the first degree, as defined in subdivisions (b), (c) and (d) of section 215.51 of the penal law; aggravated criminal contempt, as defined in section 215.52 of the penal law; bail jumping in the second degree, as defined in section 215.56 of the penal law; bail jumping in the first degree, as defined in section 215.57 of the penal law; patronizing a prostitute in the second degree, as defined in section 230.05 of the penal law; patronizing a prostitute in the first degree, as defined in section 230.06 of the penal law; promoting prostitution in the second degree, as defined in section 230.30 of the penal law; promoting prostitution in the first degree, as defined in section 230.32 of the penal law; compelling prostitution, as defined in section 230.33 of the penal law; disseminating indecent materials to minors in the second degree, as defined in section 235.21 of the penal law; disseminating indecent materials to minors in the first degree, as defined in section 235.22 of the penal law; riot in the first degree, as defined in section 240.06 of the penal law; criminal anarchy, as defined in section 240.15 of the penal law; aggravated harassment of an employee by an inmate, as defined in section 240.32 of the penal law; unlawful surveillance in the second degree, as defined in section 250.45 of the penal law; unlawful surveillance in the first degree, as defined in section 250.50 of the penal law; endangering the welfare of a vulnerable elderly person in the second degree, as defined in section 260.32 of the penal law; endangering the welfare of a vulnerable elderly person in the first degree, as defined in section 260.34 of the penal law; use of a child in a sexual performance, as defined in section 263.05 of the penal law; promoting an obscene sexual performance by a child, as defined in section 263.10 of the penal law; possessing an obscene sexual performance by a child, as defined in section 263.11 of the penal law; promoting a sexual performance by a child, as defined in section 263.15 of the penal law; possessing a sexual performance by a child, as defined in section 263.16 of the penal law; criminal possession of a weapon in the third degree, as defined in section 265.02 of the penal law; criminal sale of a firearm in the third degree, as defined in section 265.11 of the penal law; criminal sale of a firearm to a minor, as defined in section 265.16 of the penal law; unlawful wearing of a body vest, as defined in section 270.20 of the penal law; hate crimes as defined in section 485.05 of the penal law; and crime of terrorism, as defined in section 490.25 of the penal law; or (e) a felony defined in the penal law or an attempt thereof where such attempt is a felony; or (f) any of the following misdemeanors: assault in the third degree as defined in section 120.00 of the penal law; attempted aggravated assault upon a person less than eleven years old, as defined in section 110.00 and section 120.12 of the penal law; attempted menacing in the first degree, as defined in section 110.00 and section 120.13 of the penal law; menacing in the second degree as defined in section 120.14 of the penal law; menacing in the third degree as defined in section 120.15 of the penal law; reckless endangerment in the second degree as defined in section 120.20 of the penal law; stalking in the fourth degree as defined in section 120.45 of the penal law; stalking in the third degree as defined in section 120.50 of the penal law; attempted stalking in the second degree, as defined in section 110.00 and section 120.55 of the penal law; forcible touching as defined in section 130.52 of the penal law regardless of the age of the victim; sexual abuse in the third degree as defined in section 130.55 of the penal law regardless of the age of the victim; unlawful imprisonment in the second degree as defined in section 135.05 of the penal law regardless of the age of the victim; attempted unlawful imprisonment in the first degree, as defined in section 110.00 and section 135.10 of the penal law regardless of the age of the victim; criminal trespass in the second degree as defined in section 140.15 of the penal law; possession of burglar's tools as defined in section 140.35 of the penal law; petit larceny as defined in section 155.25 of the penal law; endangering the welfare of a child as defined in section 260.10 of the penal law; endangering the welfare of an incompetent or physically disabled person as defined in section 260.25] felony defined in the penal law or any misdemeanor defined in the penal law, or a person adjudicated and sentenced as a youthful offender pursuant to article seven hundred twenty of the criminal procedure law for any such misdemeanor or felony, or a person who is required to register as a sex offender pursuant to article six-C of the correction law.

    § 2. Subdivision 3 of section 995-c of the executive law, as amended by chapter 576 of the laws of 2004, is amended to read as follows:

    3. (a) Any designated offender [subsequent to conviction and sentencing for a crime specified in subdivision seven of section nine hundred ninety-five of this article,] shall be required to provide a sample appropriate 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.

    (b)( i) In the case of a designated offender who is sentenced to a term of imprisonment, such sample shall be collected by the public servant to whose custody the designated offender has been committed.

    (ii) In the case of a designated offender who is sentenced to a term of probation, including a sentence of probation imposed in conjunction with a sentence of imprisonment when a sample has not already been taken, such sample shall be collected by the probation department supervising the designated offender.

    (iii) Nothing in this paragraph shall prohibit the collection of a DNA sample from a designated offender by any court official, state or local correction official or employee, probation officer, parole officer, police officer, peace officer, or other public servant who has been notified by the division that such designated offender has not provided a DNA sample.

    § 3. Section 60.25 of the criminal procedure law, subparagraph (ii) of paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.25 Rules of evidence; identification by means of previous

    recognition, in absence of present identification.

    1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:

    (a) Such witness testifies that:

    ( i) He observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and

    (ii) On a subsequent occasion he observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person, or a photograph or other recorded image of a person, whom he recognized as the same person whom he had observed on the first or incriminating occasion; and

    (iii) He is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and

    (b) It is established that the defendant is in fact the person whom, or whose image, the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his recognition on such occasion.

    2. Under circumstances prescribed in subdivision one, such witness may testify at the criminal proceeding that the person whom, or whose image, he observed and recognized on the second occasion is the same person whom he observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized on the second occasion, constitutes evidence in chief.

    § 4. Section 60.30 of the criminal procedure law, as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.30 Rules of evidence; identification by means of previous

    recognition, in addition to present identification.

    In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he observed the defendant, or a photograph or other recorded image of the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him as the same person whom he had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he observed on the first or incriminating occasion, also describe his previous recognition of the defendant, or the image of the defendant, and testify that the person whom, or whose image, he observed on such second occasion is the same person whom he had observed on the first or incriminating occasion. Such testimony constitutes evidence in chief.

    § 5. The criminal procedure law is amended by adding a new section 60.32 to read as follows: § 60.32 Rules of evidence; identification procedures and guidelines.

    1. There are hereby established the following guidelines for trial evidence of certain identification procedures:

    a. A law enforcement agency conducting an identification procedure shall, to the extent feasible, seek to employ the following practices to enhance reliability of identifications.

    b. When a law enforcement agency conducts a corporeal identification procedure in which more than one person is viewed:

    i. the witness should be informed that the perpetrator may or may not be among the persons being viewed;

    ii. only one suspect should be included among the persons viewed in a particular group;

    iii. at least four persons in addition to the suspect should be viewed;

    iv. if practicable, the person questioning the witness should not be made aware of the position of the suspect among those being viewed;

    v. what the witness says in making or failing to make any identification should be written down or otherwise recorded.

    c. When a law enforcement agency conducts a corporeal identification procedure in which only one person is viewed:

    i. the witness should be informed that the perpetrator may or may not be the person being viewed; and

    ii. what the witness says in making or failing to make any identification should be written down or otherwise recorded.

    d. When a law enforcement agency conducts an identification procedure using an array of photographs or other recorded images:

    i. the witness should be informed that the perpetrator may or may not be among the persons whose images are being viewed;

    ii. only one suspect should be included among the images viewed in a particular array;

    iii. images of at least five persons in addition to that of the suspect should be viewed;

    iv. if practicable, the person questioning the witness should not be made aware of the position of the suspect among the images being viewed;

    v. what the witness says in making or failing to make any identification should be written down or otherwise recorded.

    e. A deviation from the foregoing practices does not constitute a violation of these guidelines when it is not readily possible to employ the practice in question, or when it occurs by accident or other reasonably excusable cause.

    2. When the people introduce evidence of a corporeal or image identification of a defendant at trial, pursuant to section 60.25 or section 60.30 of this article, the court shall charge the jury in accordance with the provisions of this section.

    3. The court shall instruct the jury:

    a. that New York law establishes certain guidelines for the conduct of identification procedures;

    b. as to the content of those guidelines by reading subdivision one of this section, except that paragraphs b, c and d should be read only when applicable;

    c. that those guidelines are meant to enhance the reliability of identification procedures and to reduce the risk of misidentification;

    d. that whether or not the guidelines were followed, the jury is entitled to consider evidence of the identification in question, and may give that evidence such weight as it sees fit; but

    e. that in assessing the reliability of the identification in question, the jury may consider whether and to what extent the guidelines were or were not followed and the causes and significance of any violations of the guidelines.

    4. This section applies only to the use at trial of evidence of the use by law enforcement agencies of identification procedures described in this section. It does not apply to confirmatory procedures, such as the viewing of a person already known to the witness, or a single photograph or other recorded image of such person, or to identifications resulting from circumstances not arranged by a law enforcement agency. The guidelines in this section do not apply to use of identification evidence in investigations, in bail hearings, before grand juries, in pre-trial or civil proceedings, or in any context other than a criminal trial.

    § 6. The executive law is amended by adding a new section 845-c to read as follows:

    § 845-c. Criminal history record searches; undisposed cases. 1. When, pursuant to statute or the regulations of the division, the division conducts a search of its criminal history records and returns a report thereon, all references to undisposed cases contained in such criminal history record shall be excluded from such report.

    2. For purposes of this section, " undisposed case" shall mean a criminal action or proceeding identified in the division's criminal history records for which no conviction or imposition of sentence or other final disposition, other than the issuance of an unexecuted bench warrant, has been recorded and with respect to which no entry has been made in the division's criminal history records for a period of at least twenty-four months preceding the issuance of such report.

    3. The provisions of subdivision one of this section shall not apply to criminal history record information provided by the division to qualified agencies pursuant to subdivision six of section eight hundred thirty-seven of this article.

    § 7. Section 240.40 of the criminal procedure law is amended by adding a new subdivision 1- a to read as follows:

    1-a. Upon motion of a defendant against whom an indictment or superior court information is pending, the court in which such accusatory instrument is pending may order a comparison of a DNA profile derived from evidence recovered by law enforcement to the defendant's DNA or to a DNA databank upon a showing by the defendant that such comparison is material to the preparation of a defense, and that the request is reasonable, provided that the court shall not do so if it is satisfied that the people have shown good cause why such an order should not be issued. Where more than one sample has been received by law enforcement, the court may order a comparison to some but not all such samples. If the motion of the defendant is for comparison of a given profile derived from DNA evidence to a DNA databank, the court may direct a state or local public forensic laboratory to arrange for such profile to be entered into and searched against local, state, and federal DNA databanks to the extent, and in a manner, consistent with federal and state laws and regulations governing such databanks, including requirements as to how profiles for forensic DNA analysis must be generated, and requirements for searching and storage in the databank in question. If such a databank search reveals that the DNA derived from evidence recovered by law enforcement matches a profile in the databank, the defendant shall be notified of the fact that there was a match with some such profile, and the court shall grant reasonable adjournments so as to allow the people to pursue appropriate investigative steps. Nothing in this article shall be deemed to allow a defendant to obtain an order requiring collection of a DNA sample from any other person.

    § 8. Subdivision 1- a of section 440.30 of the criminal procedure law, as amended by chapter 138 of the laws of 2004, is amended to read as follows:

    1-a. (a) Where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the [trial] proceedings resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, leading to a conclusion that the resulting DNA profile did not match that of the defendant, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant. In the case of a defendant convicted upon a plea of guilty, the court shall grant the application only upon its determination that if a DNA test had been conducted on such evidence, and if the results had been available to the defendant, there exists a reasonable probability that the defendant would not have been convicted by a plea of guilty or otherwise, and in making that determination, the court may consider, among other relevant information, the proceedings in connection with the defendant's plea of guilty.

    (b) In conjunction with the filing of a motion under this subdivision, the court may direct the people to provide the defendant with information in the possession of the people concerning the current physical location of the specified evidence, including documents, notes, logs or reports, and if the specified evidence no longer exists or the physical location of the specified evidence is unknown, a representation to that effect and information and documentary evidence in the possession of the people concerning the last known physical location of such specified evidence. The court may direct the people to take reasonable measures to attempt to locate any relevant records or physical items that may be in the possession of the people. If there is a finding by the court that the specified evidence no longer exists or the physical location of such specified evidence is unknown, such information in and of itself shall not be a factor from which any inference unfavorable to the people may be drawn by the court in deciding a motion under this section. The court, on motion of the defendant, may also issue a subpoena duces tecum directing a public or private hospital, laboratory or other entity to produce such specified evidence in its possession and/or information and documentary evidence in its possession concerning the location and status of such specified evidence.

    (c) In addition to requesting the performance of a forensic DNA test of specified evidence, as set forth in paragraph (a) of this subdivision, the defendant also may move for a comparison of a DNA profile derived from evidence recovered by law enforcement to a DNA databank. In deciding whether to grant a motion for such comparison, the court may consider whether the defendant had the opportunity to move for such a comparison pursuant to subdivision one-a of section 240.40 of this part, but unjustifiably failed to do so. If the court grants the motion for such a comparison, it may direct a state or local forensic laboratory within the state to arrange for such profile to be entered into and searched against local, state, and federal DNA databanks to the extent, and in a manner, consistent with federal and state laws and regulations governing such databanks, including requirements as to how profiles for forensic DNA analysis must be generated, and requirements for searching and storage in the databank in question. If such a databank search reveals that the DNA derived from evidence recovered by law enforcement matches a profile in the databank, the defendant shall be notified of the fact that there was a match with some such profile, and the court shall grant reasonable adjournments so as to allow the people to pursue appropriate investigative steps. Nothing in this article shall be deemed to allow a defendant to obtain an order requiring collection of a DNA sample from any other person.

    § 9. Section 440.30 of the criminal procedure law is amended by adding a new subdivision 8 to read as follows:

    8. At any time after the entry of a judgment, if the people become aware of evidence so exculpatory that it may exonerate a convicted defendant and was not previously known to the defense, the people shall notify the court of the existence of such evidence. Upon receipt of such notification, the court shall notify the defendant to the same effect and, if appropriate, appoint defense counsel so that the defendant may seek any appropriate remedy under this article. The people may make notification to a court pursuant to this subdivision without taking the position that the defendant was in fact innocent, and if the defendant moves for relief under this article, the people may take any position, including consent or opposition, as to such motion. The court may consider, but need not grant, the defendant's release on bail pending the determination of a motion made following such a notification.

    § 10. The section heading of section 440.40 of the criminal procedure law is amended and a new subdivision 7 is added to read as follows:

    Motion to set aside sentence or to vacate judgment; by people.

    7. At any time after the entry of a judgment, the people may, in lieu of the notification procedures set forth in subdivision eight of section 440.30 of this article, move to vacate a defendant's judgment of conviction upon the ground that the defendant is actually innocent of the charges underlying the judgment. In such a motion, the people shall set forth evidentiary facts and inferences supporting the contention that the defendant is innocent. Upon receipt of such a motion, the court must order that the defendant be produced before the court without delay. At such a court appearance, the court may summarily grant the motion based on the allegations in the people's motion and in any responsive papers filed on the defendant's behalf, and based on any oral arguments made on the motion. If the court does not summarily grant the motion: (a) it must appoint counsel for the defendant if the defendant is not already represented by counsel; (b) it must consider, but need not grant, a defendant's release on bail pending the determination of the motion; and (c) it must hold a prompt evidentiary hearing before rendering its decision to grant or deny the motion. If the court denies the motion, it must set forth findings of facts and conclusions of law supporting its decision.

    § 11. Section 65.10 of the penal law is amended by adding a new subdivision 4-b to read as follows:

    4-b. Mandatory DNA condition for designated offenders and certain other offenders. When imposing a sentence of probation or conditional discharge upon a person defined as a designated offender pursuant to subdivision seven of section nine hundred ninety-five of the executive law, the court shall require as a mandatory condition of such sentence that such person provide a DNA sample as required by section nine hundred ninety-five of the executive law. Nothing in this subdivision shall be construed as prohibiting a mandatory DNA condition upon any other offender where authorized by article forty-nine of the executive law.

    § 12. The penal law is amended by adding a new section 270.40 to read as follows: § 270.40 Failure to provide a DNA sample.

    A person is guilty of failure to provide a DNA sample when he or she: is a designated offender, as defined in subdivision seven of section nine hundred ninety-five of the executive law, required to provide a sample appropriate for DNA testing pursuant to the provisions of subdivision three of section nine hundred ninety-five-c of the executive law and fails to provide such sample after being notified by a court, state or local correction official or employee, parole officer, probation officer, police officer, peace officer or other public servant of such offender's obligation to provide such sample.

    Failure to provide a DNA sample is a class A misdemeanor.

    § 13. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision 5 of section 8-b of the court of claims act, as added by chapter 1009 of the laws of 1984, are amended to read as follows:

    (b) ( i) he or she has been pardoned upon the ground of innocence of the crime or crimes for which he or she was sentenced and which are the grounds for the complaint; or (ii) his or her judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he or she was found not guilty at the new trial or he or she was not retried and the accusatory instrument dismissed; provided that the [ judgement] judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph [(a),] (b), (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) [hereof] of this subparagraph), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) subdivision seven of section 440.40 of the criminal procedure law; or (E) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York; or (F) the claimant's conviction was vacated under another section of law not enumerated in this paragraph, but whose application to claimant's conviction involved facts and circumstances that directly support claimant's assertion of innocence; and provided that, in cases where the conviction may have been vacated on more than one ground, including one of the grounds enumerated in this paragraph, the court of claims shall not be bound by a decision of the criminal court vacating the conviction based only on a ground not enumerated in this paragraph; and

    (b) ( i) he or she has been pardoned upon the ground of innocence of the crime or crimes for which he or she was sentenced and which are the grounds for the complaint; or (ii) his or her judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he or she was found not guilty at the new trial or he or she was not retried and the accusatory instrument dismissed; provided that the [ judgement] judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph [(a),] (b), (c)[, (e)] or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) [hereof] of this paragraph), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) subdivision seven of section 440.40 of the criminal procedure law; or (E) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York; or (F) the claimant's conviction was vacated under another section of law not enumerated in this paragraph, but whose application to claimant's conviction involved facts and circumstances that directly support claimant's assertion of innocence; and provided that, in cases where the conviction may have been vacated on more than one ground, including one of the grounds enumerated in this paragraph, the court of claims shall not be bound by a decision of the criminal court vacating the conviction based only on a ground not enumerated in this paragraph; and

    § 14. Subdivision 7 of section 995-b of the executive law, as added by chapter 737 of the laws of 1994, is amended and a new subdivision 1- a is added to read as follows:

    1-a. The commission is authorized to study the use of forensic evidence in the criminal justice system, and to identify areas in which procedures should be improved to further the goals of effective, efficient and reliable use of such evidence. The commission may consider whether procedures should be improved in areas including but not limited to the collection, indexing, storage, analysis, and use of biological and other forensic evidence; education and training; professional certification; facility accreditation; scientific analysis of evidence; the use of such analysis in judicial proceedings; and quality control and quality assurance procedures. As to any such areas the commission may promulgate nonbinding standards and best practices. The failure of any criminal justice agency to adhere to such standards or best practices shall not cause otherwise admissible evidence to be inadmissible in a criminal proceeding or create entitlement to any other relief. However, the commission may also make recommendations for such standards to be made binding through legislative or administrative action.

    7. The commission and DNA subcommittee may establish, appoint, and set terms of members to as many advisory councils as it deems necessary to provide specialized expertise to the commission with respect to existing and new forensic technologies including DNA testing methodologies, and procedures for the collection, handling and use of forensic evidence.

    § 15. If any section, subdivision, paragraph, clause, sentence, phrase or other portion of this act is, for any reason, declared unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed severable, and such adjudicated unconstitutionality or invalidity shall not affect the validity of the remaining portions of this act, which remaining portions shall continue in full force and effect; provided, however, that if any portion of section three, four, or five of this act is, for any reason, declared unconstitutional or invalid, in whole or in part, by the court of appeals, then sections three, four, and five of this act shall not be deemed severable from each other, and sections three, four, and five of this act shall all cease to be of any effect whatsoever, it being the intent of the legislature that the provisions in sections three, four, and five of this act would not have been enacted except together.

    § 16. This act shall take effect immediately; provided, however, that the amendments to subdivision 7 of section 995 of the executive law made by section one of this act shall apply to designated offenses committed on or after such effective date; provided, further, that sections three, four and five of this act shall take effect on the ninetieth day after it shall have become a law, and that section five shall apply to all identification procedures conducted on or after such effective date; provided, further, that section six of this act shall take effect on the one hundred eightieth day after it shall have become a law, provided, however, that prior to such effective date, the division of criminal justice services, in cooperation with the state administrator of the unified court system as well as any other public or private agency, shall undertake such measures as may be necessary and appropriate to update its criminal history records with respect to criminal cases for which no final disposition has been reported; and provided, further, that section twelve of this act shall take effect on the first of November next succeeding the date on which it shall have become a law.