LAWS OF NEW YORK, 2004
CHAPTER 138

EXPLANATION—Matter in italics is new; matter in brackets [ ]
is old law to be omitted.

AN ACT to amend the executive law and the criminal procedure law, in relation to expanding the existing DNA identification index

Became a law July 6, 2004, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
Section 1. Subdivision 7 of section 995 of the executive law, as
amended by chapter 560 of the laws of 1999, paragraph (b) as amended by
chapter 8 of the laws of 2000, is amended to read as follows:
7. "Designated offender" means a person convicted of and sentenced for
any one or more of the following felonies as defined in 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, 130.67 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 section 255.25, 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 or attempted
burglary in the third degree, as defined in section 110.00 and section
140.20 of the penal law; 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 para-
graph (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 endan-
germent 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 tamper-
ing 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 subdivi-
sions (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; 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; unlawful surveillance in the second
degree, as defined in section 250.45 of the penal law; unlawful surveil-
lance 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; endanger-
ing 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 perform-
ance by a child, as defined in section 263.15 of the penal law; possess-
ing 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; 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.
§ 2. Subdivision 1-a of section 440.30 of the criminal procedure law,
as added by chapter 737 of the laws of 1994, is amended to read as
follows:
1-a. [In cases of convictions occurring before January first, nineteen
hundred ninety-six, where] (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 resulting in the judg-
ment, 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, 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.
(b) In conjunction with the filing of a motion under this subdivision,
the court may direct the people to provide the defendant with informa-
tion in the possession of the people concerning the current physical
location of the specified evidence 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 phys-
ical location of such specified evidence. 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.
§ 3. This act shall take effect immediately; provided, however, that
paragraphs (c) and (d) of subdivision 7 of section 995 of the executive
law, as added by section one of this act, shall apply to designated
offenses committed on or after the effective date of this act, as well
as to designated offenses committed prior to the effective date of this
act where service of the sentence imposed upon conviction of the desig-
nated offense has not been completed prior to the effective date of this
act.
The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

JOSEPH L. BRUNO
Temporary President of the Senate

SHELDON SILVER
Speaker of the Assembly