STATE OF NEW YORK ________________________________________________________________________ 1274 2025-2026 Regular Sessions IN SENATE January 9, 2025 ___________ Introduced by Sens. GIANARIS, HOYLMAN-SIGAL -- read twice and ordered printed, and when printed to be committed to the Committee on Internet and Technology AN ACT to amend the executive law, in relation to reforming the commis- sion on forensic science; and to amend the executive law and the administrative code of the city of New York, in relation to making conforming changes; and to repeal certain provisions of the executive law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1, 2, 4 and 8 of section 995 of the executive 2 law, as added by chapter 737 of the laws of 1994 and subdivision 1 as 3 amended by chapter 209 of the laws of 2021, are amended to read as 4 follows: 5 1. [For purposes of general forensic analysis the term "forensic] 6 "Forensic laboratory" shall mean any agency, section of any agency, or 7 laboratory operated by [the state or unit of local government], or 8 contracted with, a state or local law enforcement unit, inclusive of but 9 not limited to sheriffs' offices, police departments, district attor- 10 ney's offices and probation departments, that performs forensic testing 11 on evidence in a criminal investigation or proceeding or for purposes of 12 identification. 13 2. [For purposes of forensic DNA analysis, the term "forensic DNA 14 laboratory" shall mean any forensic laboratory operated by the state or 15 unit of local government, that performs forensic DNA testing on crime 16 scenes or materials derived from the human body for use as evidence in a 17 criminal proceeding or for purposes of identification and the term 18 "forensic DNA] "Forensic testing" shall mean any test or examination 19 that employs techniques to examine [deoxyribonucleic acid (DNA) derived 20 from the human body] physical, chemical, digital, or biometric proper- 21 ties of evidence or data for the purpose of [providing information to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01337-01-5
S. 1274 2 1 resolve issues of identification] determining the connection of evidence 2 or data to a criminal action or to resolve issues of identity pertaining 3 to criminal investigations or surveillance, provided, however that the 4 use of mobile forensic digital tools to extract data from cellphones and 5 computers by a police agency shall not be subject to the provisions of 6 this article. Regulation pursuant to this article shall not include 7 [DNA] deoxyribonucleic acid (DNA) testing on materials derived from the 8 human body pursuant to title five of article five of the public health 9 law for the purpose of determining a person's genetic disease or medical 10 condition and shall not include a laboratory operated by the federal 11 government. 12 4. "Blind external proficiency testing" means a test [sample] that [is 13 presented] appears to [a] the forensic [laboratory for forensic DNA 14 testing through a second agency, and which appears to the analysts to 15 involve routine evidence submitted for forensic DNA testing] analysts to 16 involve routine evidence. The purpose of such a test is to evaluate the 17 forensic analysts performance against pre-existing criteria. 18 8. "DNA record" means DNA identification information prepared by a 19 forensic [DNA] laboratory and stored in the state DNA identification 20 index for purposes of establishing identification in connection with law 21 enforcement investigations or supporting statistical interpretation of 22 the results of DNA analysis. A DNA record is [the objective form of] the 23 results of a DNA analysis sample. 24 § 2. Subdivision 9 of section 995 of the executive law is REPEALED and 25 subdivision 10 is renumbered subdivision 9. 26 § 3. Section 995 of the executive law is amended by adding seven new 27 subdivisions 10, 11, 12, 13, 14, 15 and 16 to read as follows: 28 10. "Forensic analyst" means a person who on behalf of a forensic 29 laboratory technically reviews or performs a forensic analysis or draws 30 conclusions from or interprets a forensic report or forensic test. 31 11. "High-risk system" means a system or device deployed by a forensic 32 laboratory whose failure could lead to serious adverse consequences 33 including incarceration, deprivation of liberty, or loss of life. 34 12. "Scientific advisory committee" means the committee established 35 pursuant to paragraph (a) of subdivision twelve of section nine hundred 36 ninety-five-a of this article. 37 13. "Social justice, ethics, and equity assessment committee" means 38 the committee established pursuant to paragraph (b) of subdivision 39 twelve of section nine hundred ninety-five-a of this article. 40 14. "Forensic analyst license advisory committee" means the committee 41 established pursuant to paragraph (c) of subdivision twelve of section 42 nine hundred ninety-five-a of this article. 43 15. "Technologist" means a person with experience performing independ- 44 ent, third-party verification and validation of a high-risk system and 45 publishing the results of that independent testing. 46 16. "Executive session" shall mean that portion of a meeting not open 47 to the general public, in accordance with section one hundred two of the 48 public officers law. 49 § 4. Section 995-a of the executive law is REPEALED and a new section 50 995-a is added to read as follows: 51 § 995-a. Commission on forensic science. 1. There is hereby created 52 in the executive department, the commission on forensic science, as an 53 independent agency of the state. The commission shall consist of the 54 following nine members: 55 (a) one member who has expertise in the field of forensic science and 56 works outside of New York whom the governor selects by application. The
S. 1274 3 1 member shall have a degree in a field relevant to forensic science. 2 Expertise in forensic science shall be evidenced by, but not limited to, 3 participation in national forensic science conferences, forensic science 4 publications, lecturing, or receipt of awards in the field of forensic 5 science; 6 (b) one member shall be a prosecuting attorney that the majority lead- 7 er of the senate selects from a list of five names submitted by the 8 district attorney's association of New York; 9 (c) one member shall be a criminal defense attorney that the speaker 10 of the assembly selects from a list of five names jointly submitted by 11 the New York state association of criminal defense lawyers and New York 12 state defenders association; 13 (d) one member shall be a faculty member or staff member of public or 14 private university who is a technologist as defined under subdivision 15 fifteen of section nine hundred ninety-five of this article that the New 16 York state chief privacy officer or their designee from the New York 17 office of information technology services selects by application; 18 (e) one member shall be a faculty member or staff member of a public 19 or private university who specializes in clinical laboratory science 20 that the attorney general or their designee selects by application; 21 (f) one member shall be a faculty member or staff member of a public 22 or private university who specializes in statistics that the chancellor 23 of the city university of New York selects from a list of names submit- 24 ted by application; 25 (g) one member shall be a faculty member or staff member of a public 26 or private university who analyzes or researches the ethical, legal, 27 social, and justice implications of scientific methods and technologies 28 that the chancellor of the state university of New York selects by 29 application. The member's input should be guided by previous experience 30 with research on science and technology from ethical, empirical, or 31 technical perspectives that consider privacy, civil liberties, and 32 social disparities; 33 (h) one member shall be a faculty member or staff member of a public 34 or private university who specializes in racial justice that the chan- 35 cellor of the city university of New York selects by application; and 36 (i) one member shall be a faculty member or staff member of a public 37 or private university who researches in cognitive bias that the chancel- 38 lor of the state university of New York selects by application. 39 2. No member appointed pursuant to paragraph (a), (d), (e), (f), (g), 40 (h), or (i) of subdivision one of this section shall have nor previously 41 have had primary duties in investigation, apprehension, detention or 42 prosecution of individuals suspected of criminal offenses. 43 3. Each member shall be appointed to serve a three-year term. The 44 terms expire on December thirty-first of: 45 (a) two thousand twenty-six and every three years thereafter, for a 46 member appointed under paragraph (a), (d), or (g) of subdivision one of 47 this section; and 48 (b) two thousand twenty-seven and every three years thereafter, for a 49 member appointed under paragraph (b), (e), or (h) of subdivision one of 50 this section; and 51 (c) two thousand twenty-eight and every three years thereafter, for a 52 member appointed under paragraph (c), (f), or (i) of subdivision one of 53 this section. 54 4. Any member chosen to fill a vacancy created otherwise than by expi- 55 ration of term shall be appointed pursuant to subdivision one of this 56 section for the unexpired term of the member such person is to succeed.
S. 1274 4 1 Any such vacancy shall be filled within ninety days in the same manner 2 as the original appointment. 3 5. The commission by majority vote shall elect a chairperson from 4 among its members for a term of three years. The term of the chair of 5 the commission may not exceed the chair's term limit as a member of the 6 commission. Any vacancy shall be filled within thirty days in the same 7 manner. 8 6. The commission shall meet at least six times each year in public 9 session and may establish its own rules and procedures concerning the 10 conduct of its meetings and other affairs. Those rules and procedures, 11 however, must prioritize public access to information and transparency. 12 7. The nine members of the commission shall be the only voting 13 members. A majority of the whole number of members shall constitute a 14 quorum and not less than a majority of the whole number may perform and 15 exercise the power, authority, or duties of the commission. 16 8. Every meeting of the commission or its committees shall be open to 17 the general public, except that an executive session of such body may be 18 called and business transacted solely for the purposes enumerated in 19 article seven of the public officers law. Notwithstanding the provisions 20 of article seven of the public officers law, a supermajority vote of six 21 of the nine members, taken in an open meeting pursuant to a motion iden- 22 tifying the general area or areas of the subject or subjects to be 23 considered, is required to conduct an executive session. A motion for 24 entry into an executive session must provide sufficient detail to enable 25 the public to know whether an executive session is appropriate. The 26 provision allowing a public body to meet in an executive session to 27 discuss personnel matters is intended to protect the privacy of a 28 particular person or person, not to shield policy or systemic issues 29 from public discussion. 30 9. All the records and underlying documents of the commission, except 31 for those records and documents specifically designated by a supermajor- 32 ity vote of the commission as subject to executive session as provided 33 in subdivision eight of this section, and all non-conformity reports and 34 non-conformity records, with forensic analysts' names redacted, shall be 35 prominently displayed on the homepage of the commission's website or be 36 made available to any member of the public who files a simple request in 37 writing or by email to the commission. Unredacted non-conformity 38 reports and records containing the names of the forensic analysts 39 involved shall also be made available to any member of the public who 40 files a simple request in writing or by email to the commission. 41 10. No member of the commission shall have a financial or ownership 42 interest in any form of enterprise that profits from the use, continued 43 use, or general acceptance of a forensic testing method that is subject 44 to the commission's duties and powers. Unless employment results in such 45 financial or ownership interest or results in disqualification pursuant 46 to subdivision two of this section, no member of the commission shall be 47 disqualified from holding any public office or employment, nor shall any 48 member forfeit any such office or employment, by reason of such persons 49 appointment under this section, and members of the commission shall not 50 be required to take and file oaths of office before serving on the 51 commission. In the event that a member of the commission does not meet 52 these requirements, the member shall resign their role on the commission 53 or a majority of the members of the commission may vote to remove a 54 member from the commission.
S. 1274 5 1 11. Members of the commission shall receive no compensation for their 2 services but shall be allowed their actual and necessary expenses 3 incurred in the performance of their functions under this section. 4 12. There shall be three permanent advisory committees to the commis- 5 sion, as follows: 6 (a) A scientific advisory committee, which will be made up of nine 7 members, including its chair, and shall consist of four research scien- 8 tists from a scientific discipline outside of the field of forensics; 9 one legal scholar; and two forensic science researchers or two forensic 10 analysts. At least one member shall be a scientist having experience in 11 the areas of laboratory standards or quality assurance regulation and 12 monitoring and at least one member shall have expertise in forensic 13 biology, one in forensic chemistry, one in forensic toxicology, and one 14 in a pattern-matching discipline. 15 (i) (1) The first person to chair the committee shall be selected by 16 the members of the commission from a list of five nominees or applicants 17 submitted by the commissioners. The subsequent person to chair shall be 18 selected from the membership of the scientific advisory committee and, 19 as necessary, the commission may select a new committee chairperson in 20 the same manner as the original appointment. 21 (2) The chairperson shall serve in the role for a three-year term. Any 22 chairperson chosen to fill a vacancy created otherwise than by expira- 23 tion of term shall be selected by membership for the unexpired term of 24 the member they are to succeed. A member may serve no more than two 25 terms as chair. 26 (ii) (1) The first chairperson of the committee shall appoint eight 27 members, selected by application, five of whom must be a faculty member 28 or staff member of a public or private university. The chairperson's 29 membership selections shall require confirmation by a majority vote of 30 the commission members. The subsequent members shall be selected by the 31 then-serving chairperson and confirmed by a majority vote of the commis- 32 sion members. 33 (2) Members of the committee shall serve three-year terms, which will 34 have staggered terms of office such that one-third of the memberships' 35 terms will expire each year and the succeeding members will have a term 36 of three years and be subject to the conditions of service specified in 37 subdivisions ten and eleven of this section. A committee member may not 38 serve more than two terms. 39 (b) A social justice, ethics and equity assessment committee, which 40 will be made up of nine members, including its chairperson, and shall 41 consist of members with expertise in equity and equity impact assess- 42 ments, civil rights, implicit bias, police accountability or legitimacy, 43 and racial justice and history. At least one member must have expertise 44 in algorithm bias detection and mitigation. At least two members must be 45 from organizations or community groups representing people impacted by 46 the criminal justice system. 47 (i) The chairperson of the social justice, ethics and equity assess- 48 ment committee shall be the commissioner selected pursuant to paragraph 49 (h) of subdivision one of this section. 50 (ii) (1) The chairperson of the committee shall appoint eight members, 51 selected by application. In selecting members of the committee, the 52 chair shall take into consideration the statewide geographic diversity 53 of the membership. The chairperson's membership selections shall require 54 confirmation by a majority vote of the commission members. 55 (2) Members of the committee shall serve for three-year terms, which 56 will have staggered terms of office such that one-third of the member-
S. 1274 6 1 ships' terms will expire each year and the succeeding members will have 2 a term of three years and be subject to the conditions of service speci- 3 fied in subdivisions ten and eleven of this section, except that members 4 of the committee, excluding the chairperson of the committee, shall 5 receive a fixed yearly stipend for their time. A committee member may 6 not serve more than two terms. A vacancy on the advisory committee is 7 filled by appointing a member in the same manner as the original 8 appointment to serve for the unexpired portion of the term. 9 (c) A forensic analyst license advisory committee, whose membership 10 shall consist of nine members as follows: one prosecuting attorney 11 selected by the District Attorneys Association of New York; one defense 12 attorney jointly selected by the New York State Association of Criminal 13 Defense Lawyers and New York State Defenders Association; and seven 14 members selected by the scientific advisory committee. 15 (i) (1) The first person to serve as the presiding officer will be 16 selected by the members of the commission from a list of five nominees 17 or applicants submitted by the scientific advisory committee. The subse- 18 quent person to serve as the presiding officer shall be selected from 19 the membership of the forensic analyst license advisory committee and, 20 as necessary, the commission may select a new committee presiding offi- 21 cer in the same manner as the original appointment. 22 (2) The presiding officer shall serve in that role for a three-year 23 term. Any presiding officer chosen to fill a vacancy created otherwise 24 than by expiration of term shall be selected by membership for the unex- 25 pired term of the member they are to succeed. A member may serve no more 26 than two terms as presiding officer. 27 (ii) (1) All membership selections must be confirmed by a majority 28 vote of the commission members. In selecting the license advisory 29 committee members, the commission and scientific advisory committee 30 shall consider experience and expertise in forensic biology, toxicology, 31 forensic chemistry, firearms and toolmarks, trace, fingerprints, digital 32 forensics, statistics, cognitive bias, and ethics. 33 (2) The members shall serve three-year terms that begin with the first 34 committee meeting. Members' terms of office will be staggered such that 35 one-third of the memberships' terms will expire each year and the 36 succeeding members will have a term of three years. A member may not 37 serve more than two consecutive terms and will be subject to the condi- 38 tions of service specified in subdivisions ten and eleven of this 39 section. A vacancy on the committee shall be filled by appointing a 40 member in the same manner as the original appointment to serve for the 41 unexpired portion of the term. 42 13. The commission on forensic science shall have ultimate, final 43 decision-making authority with respect to recommendations from the 44 committees established pursuant to this section. In exercising this 45 authority, the commission shall have the right to accept or reject in 46 whole or in part any and all recommendations or issue a different deci- 47 sion from that which a committee recommends. Acceptance of a committee 48 recommendation shall require a majority vote of the commission members. 49 Rejection in whole or in part of a committee's recommendation or issu- 50 ance of a different decision from that which a committee recommends 51 shall require a two-thirds vote of the commission members. The commis- 52 sion's reasons for either accepting or rejecting a committee recommenda- 53 tion or issuing a different decision from that which a committee recom- 54 mends shall be publicly reported in writing on the commission's website. 55 § 5. The executive law is amended by adding a new section 995-aa to 56 read as follows:
S. 1274 7 1 § 995-aa. Permanent advisory committees to the commission. 1. (a) The 2 scientific advisory committee established pursuant to section nine 3 hundred ninety-five-a of this article shall meet six times per year at 4 minimum and serve as advisors to the commission. 5 (b) Upon the vote of a majority of the members of the commission, the 6 committee shall have the authority to review a forensic laboratory 7 accreditation pursuant to this article and make recommendations to the 8 commission to grant, deny, or modify accreditation of forensic laborato- 9 ries as defined in subdivision one of section nine hundred ninety-five 10 of this article. Upon the vote of a majority of the members of the 11 commission, the committee shall have the authority to establish and 12 oversee a blind external proficiency testing program for forensic labo- 13 ratories, including receiving and analyzing the data from such a 14 program. The committee shall also recommend the adoption and implementa- 15 tion of internal and external proficiency testing programs and provide 16 the commission with a list of accredited proficiency testers. 17 (c) The committee may lend their expertise to, issue reports, and 18 provide written recommendations to the commission or another committee 19 at any time upon three votes of the commission, a majority vote of the 20 social justice, ethics, and equity committee, or a majority vote of the 21 forensic analyst licensing advisory committee, provided they disclose a 22 record to the public of all recommendations to the commission. Recommen- 23 dations may address, but are not limited to, minimum scientific stand- 24 ards to be utilized in conducting forensic testing, including but not 25 limited to examination of specimens, population studies and methods 26 employed to determine probabilities and interpret test results, licens- 27 ing requirements, training requirements, assessment and evaluation of 28 all methodologies proposed to be used for forensic testing, implementa- 29 tion of scientific control and quality assurance procedures and 30 adoptions of standards for the performance of forensic testing, or any 31 other matters referred to it by the commission. The committee may 32 require a demonstration by a forensic laboratory of any proposed foren- 33 sic testing methodology proposed to be used by a forensic laboratory. 34 2. (a) The purpose of the social justice, ethics and equity assessment 35 committee established pursuant to section nine hundred ninety-five-a of 36 this article is to advance social justice, ethics and equity in the use 37 of forensic methods and make recommendations to the commission to reduce 38 racial disparities. 39 (b) The committee shall have the power to: 40 (i) conduct equity assessments of current and emerging technologies 41 and methods; 42 (ii) assess built-in biases in algorithms and the disparate impact of 43 technologies; 44 (iii) establish recommendations for best practices to guard against 45 racial disparities and advance social justice for implementation of 46 forensic science and technology; 47 (iv) hold hearings and meetings to gather feedback from the public and 48 to use public feedback to inform their work; and 49 (v) hold public meetings and briefings to educate the public and the 50 commission on forensic science, technologies, and methods. 51 (c) The committee shall meet as the commission requests or a minimum 52 of four times per year. 53 (d) The committee may lend their expertise to, issue reports, and 54 provide written recommendations to the commission or another committee, 55 provided they disclose a record of all recommendations to the commission 56 and to the public. The committee may make recommendations or issue
S. 1274 8 1 reports to the commission at any time upon a vote of three members of 2 the commission, a majority vote of the scientific advisory committee, or 3 a majority vote of the license advisory committee. 4 3. (a) The forensic analyst license advisory committee established by 5 section nine hundred ninety-five-a of this article shall advise the 6 commission, with specific advisory responsibility to the commission on 7 its rule-making pursuant to paragraphs (b), (c), (d), and (e) of subdi- 8 vision seven of section nine hundred ninety-five-b of this article, and 9 make recommendations related to the licensing of a forensic analyst 10 defined under subdivision fourteen of section nine hundred ninety-five 11 of this article. 12 (b) The committee shall conduct an annual needs assessment for all 13 laboratories with licensed forensic analysts in New York state and issue 14 a yearly needs report that includes recommendations for the expenditure 15 of licensing fees to the commission. 16 (c) The committee shall meet at the call of the presiding officer of 17 the committee or the commission. 18 (d) The commission may delegate its rule-making powers for forensic 19 analyst licensing to the committee, but any proposed rule must be rati- 20 fied for adoption by a majority vote of the commission members. 21 § 6. Section 995-b of the executive law, as added by chapter 737 of 22 the laws of 1994, paragraph (a) of subdivision 13 as amended by chapter 23 560 of the laws of 1999, is amended to read as follows: 24 § 995-b. Powers and duties of the commission. 1. (a) Not later than 25 June thirtieth of each year, the commission shall prepare and publish a 26 report that covers the following areas of interest from the previous 27 year, including: 28 (i) commission activity, which shall include: 29 (1) a description of each disclosure or complaint filed with the 30 commission during the preceding twelve-month period, the disposition of 31 each complaint, and the status of any complaint still pending on March 32 first; 33 (2) a description of any specific forensic method or technology the 34 commission designates as part of the accreditation process for crime 35 laboratories established by this section; 36 (3) recommendations for best practices for each forensic method or 37 technology; 38 (4) developments in forensic science or technology made or used in 39 other state or federal investigations and the activities of the commis- 40 sion, if any, with respect to those developments; and 41 (5) other information that is relevant to investigations involving 42 forensic science, as determined by a majority vote of the commission 43 members; and 44 (ii) significant non-conformities, which shall include: 45 (1) the commission's definition of the term "significant non-conformi- 46 ties" based on the type of standard violated, its severity, risk of 47 recurrence, and impact on the criminal legal system; and 48 (2) for each forensic science service provider overseen by the commis- 49 sion: 50 (A) the number of significant nonconformities identified and profes- 51 sional negligence or professional misconduct disclosed to the commis- 52 sion; 53 (B) a description of the nature of the nonconformity, professional 54 negligence, or professional misconduct and how it was detected; and
S. 1274 9 1 (C) a description of all corrective actions implemented to address the 2 nonconformity, professional negligence, or professional misconduct, and 3 the effectiveness of the corrective actions taken; and 4 (iii) operational statistics, which shall include: 5 (1) for each forensic science service provider overseen by the commis- 6 sion: 7 (A) the volume of forensic services of each facility; 8 (B) the volume of forensic services required for each county; and 9 (C) the costs and length of time from submission for testing and the 10 return of results from such facilities. 11 (b) The annual report will be posted to the commission website upon 12 publication on June thirtieth and distributed directly to the following 13 institutional stakeholders: 14 (i) the New York State Defenders Association; 15 (ii) the New York State Association of Criminal Defense Lawyers; 16 (iii) the District Attorneys' Association of the State of New York; 17 (iv) all county attorneys in New York state; 18 (v) all public defense organizations in New York state; 19 (vi) all New York crime laboratory directors; 20 (vii) the New York state office of court administration; 21 (viii) all New York state supreme court justices; and 22 (ix) any other local government body or nonprofit organization that 23 requests to be included on the annual report distribution list. 24 2. (a) The commission shall adopt a code of professional responsibil- 25 ity by rule to regulate the conduct of persons, laboratories, facili- 26 ties, and other entities regulated under this article. 27 (b) The commission shall publish on its website the code of profes- 28 sional responsibility adopted under paragraph (a) of this subdivision 29 and provide a copy to every forensic laboratory as defined under subdi- 30 vision one of section nine hundred ninety-five of this article. Every 31 forensic laboratory shall be responsible for providing a copy of the 32 code of professional responsibility to each of its employees. Each such 33 employee shall acknowledge receipt of the code of professional responsi- 34 bility in writing on the first of each calendar year and file such 35 receipt with the laboratory's compliance officer or equivalent person- 36 nel. 37 (c) The commission shall adopt rules establishing sanctions for code 38 violations. 39 (d) The commission shall update the code of professional responsibil- 40 ity as necessary to reflect changes in science, technology, or other 41 factors affecting persons, laboratories, facilities, and other entities 42 regulated under this article. 43 3. (a) The commission shall: 44 (i) develop and implement a uniform reporting system through which a 45 forensic laboratory, individual, or other entity may report professional 46 negligence or professional misconduct; 47 (ii) require a forensic laboratory to report professional negligence 48 or professional misconduct to the commission; and 49 (iii) investigate, in a timely manner, any allegation of professional 50 negligence or professional misconduct that would: 51 (1) substantially affect the integrity of: 52 (A) the results of forensic testing conducted by a forensic laborato- 53 ry; 54 (B) an examination or test that is conducted by a forensic laboratory 55 and that is a forensic examination or test not subject to accreditation; 56 or
S. 1274 10 1 (C) testimony related to an analysis, examination, or test described 2 by item (A) or (B) of this clause; or 3 (2) constitute professional misconduct requiring disciplinary action 4 pursuant to paragraph (f) of subdivision seven of this section. The 5 results of this investigation shall include a determination of whether 6 there is substantial evidence of professional misconduct or whether 7 further proceedings are warranted. 8 (b) The commission may also initiate an investigation of a forensic 9 testing method or a specific forensic analysis not subject to accredi- 10 tation, without receiving a complaint submitted through the reporting 11 system implemented under subparagraph (i) of paragraph (a) of this 12 subdivision if the commission determines by a majority vote of a quorum 13 of the members of the commission that an investigation of the forensic 14 method, test, examination, or specific analysis would advance the scien- 15 tific integrity and reliability of forensic science in this state. 16 (c) If the commission initiates an investigation under subparagraph 17 (i) of paragraph (a) of this subdivision, the commission shall: 18 (i) provide written notice and a description of the complaint to the 19 affected forensic laboratory or individual; 20 (ii) provide the affected forensic laboratory or individual thirty 21 days to respond to the allegation or provide information about how the 22 forensic laboratory or individual has remediated the problem or issue; 23 and 24 (iii) provide the forensic laboratory or individual with the opportu- 25 nity to respond at a public hearing prior to the commission's vote to 26 undertake an investigation. 27 (d) If the commission conducts an investigation under subparagraph (i) 28 of paragraph (a) of this subdivision of a forensic laboratory: 29 (i) that is accredited under this article pursuant to an allegation of 30 professional negligence or professional misconduct involving an accred- 31 ited field of forensic testing, the investigation: 32 (1) shall include the preparation of a written report that identifies 33 and also describes the methods and procedures used to identify: 34 (A) the alleged negligence or misconduct; 35 (B) whether negligence or misconduct occurred; 36 (C) any corrective action required of the forensic laboratory; 37 (D) observations of the commission regarding the integrity and reli- 38 ability of the forensic testing conducted; 39 (E) best practices identified by the commission during the course of 40 the investigation; and 41 (F) other recommendations that are relevant, as determined by the 42 commission; and 43 (2) may include one or more of the following: 44 (A) retrospective reexaminations of other forensic testing conducted 45 by the forensic laboratory that may involve the same kind of negligence 46 or misconduct; and 47 (B) follow-up evaluations of the forensic laboratory to review includ- 48 ing: 49 i. the implementation of any corrective action required under item (C) 50 of clause one of this subparagraph; or 51 ii. the conclusion of any retrospective reexamination under item (A) 52 of this clause. 53 (ii) that is not accredited under this article or the investigation 54 involves a forensic test not subject to accreditation, the investigation 55 must include the preparation of a written report, which may contain:
S. 1274 11 1 (1) observations of the commission regarding the integrity and reli- 2 ability of the applicable analysis, examination, or test conducted; 3 (2) best practices identified by the commission during the course of 4 the investigation; or 5 (3) other recommendations that are relevant, as determined by the 6 commission. 7 (e) If the commission conducts an investigation of a forensic testing 8 method or specific forensic analysis under paragraph (b) of subdivision 9 three of this section, the investigation must include the preparation of 10 a written report that contains: 11 (i) observations of the commission regarding the integrity and reli- 12 ability of the forensic analysis conducted; 13 (ii) best practices identified by the commission during the course of 14 the investigation; and 15 (iii) other recommendations that are relevant, as determined by the 16 commission. 17 (f) The commission by contract may delegate the duties described by 18 subparagraphs (i) and (iii) of paragraph (a) of this subdivision, para- 19 graph (b) of this subdivision, and paragraph (a) of subdivision five of 20 this section to any person the commission determines to be qualified to 21 assume those duties, however, the commission retains the authority for 22 determining the standards by which those activities are conducted. 23 (g) The commission may require that a forensic laboratory investigated 24 under this section pay any costs incurred to ensure compliance with 25 paragraphs (c), (d), or (e) of this subdivision as part of its accredi- 26 tation responsibilities. 27 (h) The commission shall make all investigation reports completed 28 under paragraphs (d) or (e) of this subdivision available to the public. 29 A report completed under paragraphs (d) or (e) of this subdivision, in a 30 subsequent civil or criminal proceeding, is not prima facie evidence of 31 the information or findings contained in the report, nor is it prima 32 facie evidence of general acceptance by the relevant scientific communi- 33 ty. 34 (i) The commission may not issue a finding related to the guilt or 35 innocence of a party in an underlying civil or criminal trial involving 36 conduct investigated by the commission under this article. 37 (j) The commission shall develop and implement a defendant notifica- 38 tion procedure for investigations conducted under this section that 39 includes all of the following: 40 (i) notification to New York state defenders association, New York 41 state association of criminal defense lawyers, all county attorneys in 42 New York state, and all public defense organizations in New York state, 43 the district attorney's office, the defendant in any affected criminal 44 case and that defendant's attorney, if applicable, of the disposition, 45 if that disposition includes a finding that an act of professional 46 negligence, misconduct, nonconformance, or a change in science affected 47 the integrity of the results of a forensic analysis; 48 (ii) a description of the technical issue and a written summary of the 49 facts; 50 (iii) a referral to relevant resources, including, but not limited 51 to, public defenders; and 52 (iv) a protocol for the commission to provide potentially affected 53 defendants with information regarding relevant resources. 54 4. (a) For purposes of this section:
S. 1274 12 1 (i) "Forensic method" shall mean any forensic science technique, 2 instruments, software program, or analysis used in a criminal matter or 3 investigation or proposed for use in a criminal matter; and 4 (ii) "Method accreditation" shall mean meeting or exceeding applicable 5 quality standards and supplemental forensic standards; 6 (iii) "IEEE 1012" shall mean the Institute of Electrical and Electron- 7 ics Engineers (IEEE) standard 1012 that provides general requirements 8 for system, software, and hardware verification and validation. 9 (iv) "Supplemental forensic standards" shall mean additional standards 10 established or published by a governmental agency, a nationally or 11 internationally recognized organization for design, development, or 12 impartial review of laboratories or technology, which are relevant to 13 forensic methodologies. 14 (b) The commission shall initiate an investigation into any current or 15 new forensic method upon: 16 (i) application by a person alleging that a forensic method may not be 17 scientifically valid if two or more of the members of the commission 18 confirm that an investigation is warranted; or 19 (ii) a determination by two or more members of the commission that an 20 investigation of a forensic method would advance the integrity and reli- 21 ability of forensic science in the state. 22 (c) If the commission conducts an investigation under this subdivi- 23 sion, the investigation must include the preparation of a written public 24 report that contains: 25 (i) observations of the commission regarding the integrity and reli- 26 ability of the forensic method, including identifying the scientific 27 foundations that support the forensic method and evaluating the empir- 28 ical evidence for the reliability of the forensic method; 29 (ii) best practices identified by the commission during the course of 30 the investigation; 31 (iii) a review of relevant scientific literature, including any black- 32 box studies that assess the accuracy of an examiner's conclusions with- 33 out considering how the conclusions were reached, to determine whether 34 modification of any of the relevant manuals and procedures is desirable; 35 (iv) where the method involves any system, software or hardware 36 covered by IEEE 1012, documentation of the degree to which the require- 37 ments of IEEE 1012 have been met including a discussion of the integrity 38 level assigned to the system, software or hardware; 39 (v) a discussion of the limitations of the method, the limits of 40 detection, statistical validation, and how the laboratory could improve 41 the method; 42 (vi) performance of a racial equity impact assessment; and 43 (vii) other recommendations that are relevant, as determined by the 44 commission. 45 (d) The commission may, upon a majority vote, establish supplemental 46 forensic standards. 47 (e) Reports and recommendations issued pursuant to this section shall 48 not limit admissibility challenges to the introduction of any evidence 49 utilizing the new method before a court. 50 (f) To use a method in a criminal investigation or report the results 51 of such a method to a court of this state, a forensic laboratory of this 52 state or a forensic laboratory outside the borders of New York state as 53 defined pursuant to subdivision one of section nine hundred ninety-five 54 of this article shall first report use of the method to the commission. 55 When a forensic laboratory is a non-public laboratory, that laboratory 56 must disclose their department of health application materials and
S. 1274 13 1 permit to the commission. Upon disclosure of use of the method to the 2 commission, or upon request by the commission, the forensic laboratory 3 shall provide a copy of the following for validation, verification, and 4 instrumental performance checks: summaries, protocols, written policies, 5 source code, if requested; scope document describing sources and disci- 6 plines of accreditation; and all underlying data. The commission may 7 rely upon a third party, selected by a majority vote, to assess the 8 source code. In such a case, the commission shall disclose the name of 9 the third party and a summary of their findings to the public. 10 (g) If a modification to an approved method could or does impact the 11 interpretation of evidence or reported results in any way, then it must 12 be reported to the commission. 13 (h) For purposes of investigation and reporting under this subdivi- 14 sion, the commission may rely on the scientific advisory committee or a 15 working group. 16 (i) The commission shall develop minimum standards for forensic labo- 17 ratories to evaluate the case-specific reliability of systems and meth- 18 ods using validation data. These standards will include but not be 19 limited to guidance on implementing protocols that incorporate the limi- 20 tations of interpretation methods and defining what constitutes inter- 21 pretable data versus data that are unsuitable for comparison or uninter- 22 pretable. 23 5. (a) The commission shall develop minimum standards and a program of 24 accreditation for all forensic laboratories in New York state, including 25 establishing minimum qualifications for forensic laboratory directors, 26 technical leaders, and quality control managers and such other personnel 27 as the commission may determine to be necessary and appropriate, and 28 approval of forensic laboratories for the performance of specific foren- 29 sic methodologies. Nothing in this article shall be deemed to preclude 30 forensic laboratories from performing research and validation studies on 31 new methodologies and technologies which may not yet be approved by the 32 commission at that time. 33 (b) The commission shall evaluate and update the system of accredi- 34 tation every five years to reflect changes in science, technology, or 35 other factors affecting minimum standards, forensic laboratory manage- 36 ment and oversight. In designing a system of accreditation pursuant to 37 this article, the commission shall evaluate other systems of accredi- 38 tation every five years. 39 [2.] (c) The minimum standards and program of accreditation shall be 40 designed and updated as required in paragraph (b) of this subdivision to 41 accomplish the following objectives: 42 [(a)] (i) increase and maintain the transparency, effectiveness, effi- 43 ciency, reliability, and accuracy of forensic laboratories[, including 44 forensic DNA laboratories]; 45 [(b)] (ii) ensure that forensic [analyses, including forensic DNA 46 testing, are] testing is performed in accordance with the highest scien- 47 tific standards [practicable], including cognitive bias protections, and 48 is based on demonstrated foundationally valid methods and research; 49 [(c)] (iii) promote increased cooperation and coordination among 50 forensic laboratories and other agencies in the criminal justice system; 51 [(d)] (iv) ensure compatibility, to the extent consistent with the 52 provisions of this article and any other applicable provision of law 53 pertaining to privacy or restricting disclosure or redisclosure of 54 information, with other state and federal forensic laboratories to the 55 extent necessary to share and exchange information, data and results of 56 forensic analyses and tests; [and
S. 1274 14 1 (e)] (v) set forth minimum requirements for the quality and mainte- 2 nance of equipment; and 3 (vi) set forth minimum requirements for the quality, validation test- 4 ing, equity, privacy, and ethics of the deployment of methodologies and 5 technologies. 6 [2-a. Any program of forensic laboratory accreditation with respect to 7 a DNA laboratory pursuant to this section shall be under the direction 8 of the DNA subcommittee established pursuant to subdivision thirteen of 9 this section. Such subcommittee shall have the sole authority to grant, 10 deny, review or modify a DNA forensic laboratory accreditation pursuant 11 to this article, provided that such authority shall be effectuated 12 through binding recommendations made by the DNA subcommittee to the 13 commission. In the event the commission disagrees with any of the bind- 14 ing recommendations of the DNA subcommittee made pursuant to this arti- 15 cle, the commission may so notify such subcommittee and request such 16 subcommittee to reasonably review such binding recommendations. The DNA 17 subcommittee shall conduct such review and either forward revised bind- 18 ing recommendations to the commission or indicate, with the reasons 19 therefor, that following such review such subcommittee has determined 20 that such binding recommendations shall not be revised. 21 3.] (d) The program of forensic laboratory accreditation shall 22 include, at a minimum, the following requirements: 23 [(a)] (i) an initial laboratory inspection, and routine inspections, 24 as necessary, to ensure compliance with accreditation requirements. The 25 results of the annual inspection, and underlying documents, shall be 26 published on the laboratory's website; 27 [(b)] (ii) routine internal and external proficiency testing of all 28 laboratory personnel involved in forensic [analysis] testing, including 29 blind external proficiency testing [if the commission, or the DNA 30 subcommittee as the case may be, determines such a blind proficiency 31 testing program to be practicable and appropriate. In determining wheth- 32 er a blind proficiency testing program is practicable and appropriate, 33 the commission, or the DNA subcommittee as the case may be, shall 34 consider such factors as accuracy and reliability of laboratory results, 35 cost-effectiveness, time, allocation of resources, and availability] . 36 The program of proficiency testing includes initial competency testing. 37 The results of the proficiency testing program, including the substance 38 of the testing, the name of the forensic analyst, as well as active 39 individual forensic analyst's results, shall be published by the labora- 40 tory; 41 [(c)] (iii) published quality control and quality assurance protocols, 42 a published method validation procedure and a corrective action and 43 remedial program; 44 [(d)] (iv) annual certification to the commission by the forensic 45 laboratories of their continued compliance with the requirements of the 46 accreditation program [which certification, in the case of a forensic 47 DNA laboratory, shall be forwarded to the DNA subcommittee]; 48 [(e)] (v) the accreditation of a forensic laboratory may be revoked, 49 suspended or otherwise limited, upon a determination by the commission 50 [or, in the case of a forensic DNA laboratory, upon the binding recom- 51 mendation of the DNA subcommittee,] that the laboratory or one or more 52 persons in its employ: 53 [(i)] (1) is guilty of misrepresentation in obtaining a forensic labo- 54 ratory accreditation;
S. 1274 15 1 [(ii)] (2) rendered a report on laboratory work actually performed in 2 another forensic laboratory without disclosing the fact that the exam- 3 ination or procedure was performed by such other forensic laboratory; 4 [(iii)] (3) showed a pattern of excessive errors in the performance of 5 forensic laboratory examination procedures; 6 [(iv)] (4) failed to file any report required to be submitted pursuant 7 to this article or the rules and regulations promulgated pursuant there- 8 to; 9 (5) is guilty of misrepresenting in rending a report on laboratory 10 work, testifying in any criminal or civil proceeding, or failing to 11 document and disclose changes to conclusions or results; or 12 [(v)] (6) violated in a material respect any provision of this article 13 or the rules and regulations promulgated pursuant thereto; and 14 [(f)] (vi) no forensic laboratory accreditation shall be revoked, 15 suspended, or otherwise limited without a hearing. The commission shall 16 serve written notice of the alleged violation, together with written 17 notice of the time and place of the hearing, which notice shall be 18 mailed by certified mail to the holder of the forensic laboratory 19 accreditation at the address of such holder at least twenty-one days 20 prior to the date fixed for such hearing. An accredited laboratory may 21 file a written answer to the charges with the commission, not less than 22 five days prior to the hearing. 23 [4. A] (e) The commission shall develop and implement standardized 24 forms for reporting non-conformities and analysis of non-conformities 25 and analysis of non-conformities which shall be used by all forensic 26 laboratories under the jurisdiction of the commission. 27 6. To effectuate its powers and duties, the commission may compel the 28 attendance of witnesses and the production of documents by the issuance 29 of subpoenas. 30 7. (a) A person may not act or offer to act as a forensic analyst 31 unless the person holds a forensic analyst license or a limited permit 32 as defined in paragraph (e) of this subdivision. The commission by rule 33 may establish classifications of forensic analyst licenses if the 34 commission determines that it is necessary to ensure the availability of 35 properly trained and qualified forensic analysts to perform activities 36 regulated by the commission. 37 (b) The commission by rule shall: 38 (i) establish the qualifications for a license that include: 39 (1) successful completion of education requirements which shall be 40 established for each discipline by the commission; 41 (2) specific course work and experience, which shall be established 42 for each discipline by the commission and which shall include instruc- 43 tion in Brady v. Maryland obligations, the duty to be candid with the 44 court, and ethics in a crime laboratory; 45 (3) successful completion of an examination, which shall be required 46 or recognized by the commission; and 47 (4) successful completion of competency and proficiency testing to the 48 extent required for crime laboratory accreditation as defined by the 49 commission pursuant to subparagraph (ii) of paragraph (d) of subdivision 50 five of this section; 51 (ii) set fees for the issuance and renewal of a license; and 52 (iii) establish the term of a forensic analyst license. 53 (c) The commission by rule may recognize a certification issued by a 54 national organization in an accredited field of forensic science as 55 satisfying the requirements established under clause three of subpara- 56 graph (i) of paragraph (b) of this subdivision to the extent the commis-
S. 1274 16 1 sion determines the content required to receive the certification is 2 substantially equivalent to the content of the requirements under that 3 subparagraph. 4 (d) The commission shall issue a license to an applicant who: 5 (i) submits an application on a form prescribed by the commission; 6 (ii) meets the qualifications established by commission rule; and 7 (iii) pays the required fee. 8 (e) (i) The license advisory committee and the commission may issue a 9 limited permit to practice as a forensic analyst to an applicant who has 10 met all requirements for licensure as a forensic analyst, except those 11 relating to the examination and proficiency test and provided that the 12 individual is under the general supervision of the director of a foren- 13 sic laboratory, as determined by the commission. This limited permit 14 shall be valid for a period of not more than one year and may be 15 extended for one additional year for good cause as determined by the 16 commission. 17 (ii) Each limited permit shall be subject to the disciplinary 18 provisions applicable to licensees pursuant to paragraph (f) of this 19 subdivision. 20 (iii) The commission is authorized to adopt such rules and regu- 21 lations as may be necessary to implement the provisions of this section. 22 (f) (i) On a determination by the commission that there is substantial 23 evidence that a license holder has committed professional negligence or 24 professional misconduct under this article or violated this article or a 25 rule or order of the commission under this article, the commission may 26 institute disciplinary proceedings. 27 (ii) The commission will designate a professional conduct officer in 28 connection with professional licensing and misconduct proceedings and 29 criminal matters, such officer to be empowered to issue subpoenas and 30 administer oaths in connection with such proceedings. 31 (iii) The professional conduct officer shall prepare charges. The 32 charges shall state the alleged professional negligence or professional 33 misconduct or violation and shall state concisely the material facts but 34 not the evidence by which the charges are to be proved. 35 (iv) In order to commence disciplinary proceedings under this article, 36 service of a copy of the charges and notice of hearing must be completed 37 twenty days before the date of the hearing if by personal delivery and 38 must be completed twenty-five days before the date of the hearing if by 39 any other method. An administrative copy of the charges must also be 40 sent to the forensic laboratory which employs the license holder. 41 (1) Personal service of the charges and hearing notice shall be made 42 by either of the following methods: 43 (A) delivery within the state to the person to be served; or 44 (B) delivery by certified mail, return service requested, to the 45 forensic laboratory with which the license holder registered their 46 employment to the commission. 47 (2) Service of charges and notice of hearing may be made upon a 48 license holder within or outside of the state. 49 (v) (1) Violations of a minor or technical nature, not impacting the 50 integrity of the licensing scheme or forensic testing more broadly, may 51 be resolved by the professional conduct officer's direct referral of the 52 matter to the commission for the imposition of an administrative warn- 53 ing, written reprimand, written censure, and/or a fine not to exceed 54 five hundred dollars for each specification of a minor, or technical 55 misconduct.
S. 1274 17 1 (2) Discipline based solely on conviction of crimes or administrative 2 violation under New York state law or federal law or the law of another 3 jurisdiction which, if committed within this state, would have consti- 4 tuted a crime under New York state law, may be resolved by the profes- 5 sional conduct officer's direct referral to the commission for its 6 review and recommendation as to the measure of discipline to be imposed. 7 (3) Discipline based solely on the license holder having been found 8 guilty of improper professional practice or professional misconduct by a 9 duly authorized professional disciplinary agency of another state where 10 the conduct upon which the finding was based would, if committed in New 11 York state, constitute professional misconduct under the laws of New 12 York state, may be resolved by the professional conduct officer's direct 13 referral to the commission for its review and recommendation as to the 14 measure of discipline to be imposed. 15 (vi) Contested disciplinary proceedings and other disciplinary 16 proceedings not resolved pursuant to subparagraph (v) of this paragraph 17 shall be tried before a hearing panel of the commission as provided in 18 this subparagraph. 19 (1) The commission shall set the time and place of the hearing and 20 shall prepare the notice of hearing. The notice of hearing shall state 21 the time and place of the hearing, that the licensee may file a written 22 answer to the charges prior to the hearing, that the licensee may appear 23 personally at the hearing and may be represented by counsel, that the 24 licensee shall have the right to produce witnesses and evidence in their 25 behalf, to cross-examine witnesses and examine evidence produced against 26 them, and to issue subpoenas in accordance with the provisions of the 27 civil practice law and rules, that a stenographic record of the hearing 28 will be made, and such other information as may be considered appropri- 29 ate by the commission. 30 (2) (A) A hearing shall be conducted by a panel of three or more 31 members of the commission. The chair of the commission shall appoint the 32 panel and shall designate its executive secretary. 33 (B) If the charges involve a question of technical expertise, then the 34 chair may appoint up to two members of any of the three permanent advi- 35 sory committees established in paragraph (a), (b), or (c) of subdivision 36 twelve of section nine hundred ninety-five-a of this article who have 37 the relevant technical expertise to the hearing panel. 38 (C) In any event, the hearing panel will always consist of an odd 39 number of total members. 40 (D) In addition to said panel members, the chair shall designate an 41 administrative officer, admitted to practice as an attorney in the state 42 of New York, who shall have the authority to rule on all motions, proce- 43 dures and other legal objections and shall draft a written report and 44 decision for the hearing panel which shall be subject to the approval of 45 and signature by the panel executive secretary on behalf of the panel. 46 The administrative officer shall not be entitled to a vote. 47 (E) A hearing which has been initiated shall not be discontinued 48 because of the death or incapacity to serve of one member of the hearing 49 panel. However, after the commencement of a hearing, no panel member 50 shall be replaced. A determination by the administrative officer of a 51 need to disqualify or remove any panel member will result in the 52 disqualification or removal of the panel and cause a new panel to be 53 appointed. 54 (3) The evidence in support of the charges shall be presented by the 55 professional conduct officer. The licensee shall have the rights 56 required to be stated in the notice of hearing. The panel shall not be
S. 1274 18 1 bound by the rules of evidence, but its affirmance of professional 2 misconduct or professional negligence shall be based on a preponderance 3 of the evidence. 4 (4) The hearing panel shall render a written report and decision which 5 shall include findings of fact, a determination of guilty or not guil- 6 ty on each charge, and, in the event of an affirmance of professional 7 misconduct or professional negligence, a recommendation of the penalty 8 to be imposed. For the panel to make such affirmance, a minimum of two 9 of the voting members of the panel must vote for such a determination. A 10 copy of the report of the hearing panel shall be transmitted to the 11 licensee. 12 (vii) (1) The commission shall receive the professional conduct offi- 13 cer's recommendations pursuant to the expedited procedures defined in 14 subparagraph (v) of this paragraph or the hearing panel's written report 15 and decision pursuant to an adversarial hearing as defined in subpara- 16 graph (vi) of this paragraph. 17 (2) Additionally, any member of the commission may request that the 18 commission receive and review any documentary evidence collected, any 19 answer, affidavits or briefs submitted by the license-holder, and any 20 evidence or sworn testimony presented by the license-holder or the 21 professional conduct officer at the adversarial hearing. 22 (3) The commission shall consider the materials submitted pursuant to 23 clauses one and two of this subparagraph and shall issue an order adopt- 24 ing or rejecting the professional conduct officer or the hearing panel's 25 recommended findings and discipline or remitting the matter for further 26 fact-finding, consideration, and/or reconsideration to the professional 27 conduct officer, the original hearing panel, or a new hearing panel. 28 (viii) The hearing panel may recommend, and the commission may impose 29 any of the following discipline: 30 (1) revocation of a license holder's license; 31 (2) suspension of a license holder's license; 32 (3) placement on probation of a person whose license is suspended. If 33 a license suspension is probated, the commission may require the license 34 holder to: i. report regularly to the commission on matters that are the 35 basis of the probation; or ii. continue or review continuing profes- 36 sional education until the license holder attains a degree of skill 37 satisfactory to the commission in those areas that are the basis of the 38 probation; and/or 39 (4) issuance of a written censure, administrative warning, or written 40 reprimand. 41 (g) The disciplinary decisions of the commission may be reviewed 42 pursuant to the proceedings under article seventy-eight of the civil 43 practice law and rules. Such proceedings shall be returnable before the 44 appellate division of the third judicial department, and such decisions 45 shall not be stayed or enjoined except upon application to such appel- 46 late division after notice to the commission and to the attorney general 47 and upon a showing that the petitioner has a substantial likelihood of 48 success. 49 (h) Notwithstanding any other provision of law, persons who assist the 50 department as consultants or expert witnesses in the investigation or 51 prosecution of alleged professional negligence, professional misconduct, 52 licensure matters, restoration proceedings, or criminal prosecutions 53 based on professional misconduct, shall not be liable for damages in any 54 civil action or proceeding as a result of such assistance, except upon 55 proof of actual malice. The attorney general shall defend such persons
S. 1274 19 1 in any such action or proceeding, in accordance with section seventeen 2 of the public officers law. 3 (i) All adjudicated discipline shall be posted on the commission's 4 website. The full record of the underlying disciplinary proceedings 5 shall be available upon written request to the commission. In all disci- 6 plinary proceedings brought pursuant to this subsection or in any volun- 7 tary settlement of a complaint between the licensee and the commission, 8 the commission shall notify the licensee in writing that the record and 9 reports of such disciplinary proceeding or of such voluntary settlement 10 shall be considered matters of public information. 11 (j) If the commission finds a laboratory director [who] has knowingly 12 [operates] operated a laboratory without obtaining the accreditation 13 required by this article, or [who,] with the intent to mislead or 14 deceive, [misrepresents] has misrepresented a material fact to the 15 commission [or DNA subcommittee, shall be subject], its accrediting 16 bodies, or its committees, the commission may subject the laboratory 17 director to a civil penalty not to exceed [seventy-five hundred] twen- 18 ty-five thousand dollars and such other penalties as are prescribed by 19 the law. 20 [5.] 8. The commission and [the DNA subcommittee established pursuant 21 to subdivision thirteen of this section] its committees may: 22 (a) require and receive from any court, department, division, board, 23 bureau, commission or other agency of the state or any political subdi- 24 vision thereof [such assistance and data as may be necessary to enable 25 the commission or DNA subcommittee to administer the provisions of this 26 article. The commission or DNA subcommittee may enter into such cooper- 27 ative arrangements with the division of criminal justice services, the 28 department of health, and any other state agency, each of which is 29 authorized to enter into such cooperative arrangements as shall be 30 necessary or appropriate. Upon request of the commission or DNA subcom- 31 mittee], or any public authority such assistance, information, records 32 or data as will enable the commission or its committees to properly 33 carry out its powers and duties; 34 (b) request that and receive from any state agency [may] transfer to 35 the commission such officers and employees as the commission [or DNA 36 subcommittee] may deem necessary from time to time to assist the commis- 37 sion [or DNA subcommittee] in carrying out its functions and duties. 38 Officers and employees so transferred shall not lose their civil service 39 status or rights, and shall remain in the negotiating unit, if any, 40 established prior to such transfer; and 41 (c) employ and remove such officers, investigators and employees as it 42 may deem necessary for the performance of its powers and duties pursuant 43 to this article, and fix their compensation within the amounts made 44 available therefore. 45 [6.] 9. All of the commission's records, reports, assessments, and 46 evaluation with respect to accreditation, implementation of quality 47 assurance standards (including proficiency testing) and monitoring ther- 48 eof, shall be archived by the commission and made available to the 49 public upon a simple written request, except insofar as the redaction of 50 personally identifying information is required by this statute or other 51 applicable law. The names of forensic analysts who have been found to 52 have committed an act of negligence, misconduct, or incompetence; who 53 have been suspended; or who have failed proficiency examinations and the 54 forensic laboratory where they are or were employed shall not be redact- 55 ed.
S. 1274 20 1 [7.] 10. The commission and [DNA subcommittee] its committees may 2 establish, appoint, and set terms of members to as many advisory coun- 3 cils as it deems necessary to provide specialized expertise to the 4 commission with respect to new forensic technologies including computer 5 science, data science, technology and DNA testing methodologies. 6 [8.] 11. The commission [or DNA subcommittee] shall designate one or 7 more entities for the performance of proficiency tests required pursuant 8 to the provisions of this article. In making such designation, the 9 commission shall publicly consider the difficulty, breath, and depth of 10 the proficiency testing projects offered by the designated entities. 11 [9.] 12. After reviewing recommendations from the division of criminal 12 justice services, the commission, in consultation with [the DNA subcom- 13 mittee] its scientific advisory committee, shall promulgate a policy for 14 the establishment and operation of a DNA identification index consistent 15 with the operational requirements and capabilities of the division of 16 criminal justice services. Such policy shall address the following 17 issues: 18 (a) the forensic DNA methodology or methodologies to be utilized in 19 compiling the index; 20 (b) procedures for assuring that the state DNA identification index 21 contains the following safeguards: 22 (i) that any records maintained as part of such an index are accurate 23 and complete; 24 (ii) that effective software and hardware designs are instituted with 25 security features to prevent unauthorized access to such records; 26 (iii) that periodic audits will be conducted to ensure that no illegal 27 disclosures of such records have taken place; 28 (iv) that access to record information system facilities, systems 29 operating environments, data file contents whether while in use or when 30 stored in a media library is restricted to authorized personnel only; 31 (v) that operation programs are used that will prohibit inquiry, 32 record updates, or destruction of records from any source other than an 33 authorized source of inquiry, update, or destruction of records; 34 (vi) that operational programs are used to detect and store for the 35 output of authorized employees only all unauthorized attempts to pene- 36 trate the state DNA identification index; 37 (vii) that adequate and timely procedures exist to insure that any 38 subject of the state DNA identification index has the right of access to 39 and review of records relating to such individual contained in such 40 index for the purpose of ascertaining their accuracy and completeness, 41 including procedures for review of information maintained about such 42 individuals and administrative review (including procedures for adminis- 43 trative appeal) and the necessary documentation to demonstrate that the 44 information is inaccurate or incomplete; 45 (viii) that access to the index will be granted to an agency author- 46 ized by this article to have such access only pursuant to a written use 47 and dissemination agreement, a copy of which is filed with the commis- 48 sion, which agreement sets forth the specific procedures by which such 49 agency shall implement the provisions of subparagraphs (i) through (vii) 50 of this paragraph, as applicable, and which agreement specifically 51 prohibits the redisclosure by such agency of any information obtained 52 from the DNA identification index; and 53 (ix) such policy shall provide for the mutual exchange, use and stor- 54 age of DNA records with the system of DNA identification utilized by the 55 federal bureau of investigation provided that the commission determines
S. 1274 21 1 that such exchange, use and storage are consistent with the provisions 2 of this article and applicable provisions of law. 3 [10.] 13. Review, and if necessary, recommend modifications to, a plan 4 for implementation of the DNA identification index submitted by the 5 commissioner of criminal justice services pursuant to section nine 6 hundred ninety-five-c of this article. 7 [11. Upon the recommendation of the DNA subcommittee established 8 pursuant to subdivision thirteen of this section, the commission shall 9 designate one or more approved methodologies for the performance of 10 forensic DNA testing, and shall review and act upon applications by 11 forensic DNA laboratories for approval to perform forensic DNA testing. 12 12.] 14. Promulgate standards for a determination of a match between 13 the DNA records contained in the state DNA identification index and a 14 DNA record of a person submitted for comparison therewith. 15 [13. (a) The commission shall establish a subcommittee on forensic 16 DNA laboratories and forensic DNA testing. The chair of the subcommittee 17 shall be appointed by the chair of the commission. The chair of the 18 subcommittee shall appoint six other members to the subcommittee, one of 19 whom shall represent the discipline of molecular biology and be 20 appointed upon the recommendation of the commissioner of the department 21 of health, one of whom shall represent the discipline of population 22 genetics and be appointed upon the recommendation of the commissioner of 23 the department of health, one of whom shall be representative of the 24 discipline of laboratory standards and quality assurance regulation and 25 monitoring and be appointed upon the recommendation of the commissioner 26 of the department of health, one of whom shall be a forensic scientist 27 and be appointed upon the recommendation of the commissioner of the 28 department of health, one of whom shall be representative of the disci- 29 pline of population genetics and be appointed upon the recommendation of 30 the commissioner of criminal justice services and one of whom shall be 31 representative of the discipline of forensic science and be appointed 32 upon the recommendation of the commissioner of criminal justice 33 services. Members of the DNA subcommittee shall serve for three year 34 terms and be subject to the conditions of service specified in section 35 nine hundred ninety-five-a of this article. 36 (b) The DNA subcommittee shall assess and evaluate all DNA methodol- 37 ogies proposed to be used for forensic analysis, and make reports and 38 recommendations to the commission as it deems necessary. The DNA subcom- 39 mittee shall make binding recommendations for adoption by the commission 40 addressing minimum scientific standards to be utilized in conducting 41 forensic DNA analysis including, but not limited to, examination of 42 specimens, population studies and methods employed to determine proba- 43 bilities and interpret test results. The DNA subcommittee may require a 44 demonstration by an independent laboratory of any proposed forensic DNA 45 testing methodology proposed to be used by a forensic laboratory. 46 (c) The DNA subcommittee shall make binding recommendations for 47 adoption by the commission with regard to an accreditation program for 48 laboratories performing forensic DNA testing in accordance with the 49 provisions of the state administrative procedure act. Such recommenda- 50 tions shall include the adoption and implementation of internal and 51 external proficiency testing programs, including, if possible, a blind 52 external proficiency testing program for forensic laboratories perform- 53 ing forensic DNA testing. The DNA subcommittee shall also provide the 54 commission with a list of accepted proficiency testers. 55 (d) The DNA subcommittee shall be authorized to advise the commission 56 on any other matters regarding the implementation of scientific controls
S. 1274 22 1 and quality assurance procedures for the performance of forensic DNA 2 testing, or on any other matters referred to it by the commission.] 3 15. All forensic laboratories shall publish on a website accessible to 4 the public all forensic testing methods the lab utilizes, the names of 5 the tests, and the protocols they utilize. In the event that a forensic 6 laboratory does not publish the aforementioned materials on its own 7 website, the laboratory shall forward the same to the commission not 8 later than March thirtieth of each year, and the commission shall 9 publish the same on a website accessible to the public within thirty 10 days. In the event that a forensic laboratory changes its forensic test- 11 ing methods, procedures, or protocols, the laboratory shall publish the 12 aforementioned materials on its website within thirty days of such 13 change or shall notify the commission within ten days of such a change 14 and the commission shall have thirty days to publish the same. 15 16. All forensic analyst reports should clearly state: the purpose of 16 the examination or testing; the method and materials used; a description 17 or summary of the data or results; any conclusions derived from those 18 data or results; any discordant results or conclusions; the estimated 19 uncertainty and variability if applicable; and possible sources of error 20 and limitations in the method, data, and conclusions. Reports shall also 21 disclose bench notes relevant to the examination or test. The laboratory 22 compliance officer shall maintain written records of discordant results 23 or conclusions. Public laboratory compliance officers shall disclose 24 such records to the public upon a simple written request. 25 17. (a) Upon a majority vote, the commission may send a proposal 26 regarding the expansion of its jurisdiction to its committees. 27 (b) The scientific advisory committee and racial equity committee 28 shall review proposals from the commission regarding the expansion of 29 its jurisdiction and provide the commission with its recommendations in 30 writing. 31 (c) Upon a majority vote, the commission may but need not hold public 32 hearings and receive public comments regarding the expansion of its 33 jurisdiction. 34 (d) After considering the recommendations of the scientific advisory 35 committee, the recommendations of the racial equity committee, and 36 public comments if applicable, the commission may vote to send a recom- 37 mendation to the legislature to expand its jurisdiction. Upon a majority 38 vote, the commission shall send notice to the senate, the assembly, the 39 governor, and any agencies that provide the commission with resources or 40 staff. 41 § 7. Section 995-e of the executive law, as added by chapter 737 of 42 the laws of 1994, is amended to read as follows: 43 § 995-e. Applicability. This article shall not apply to a forensic 44 [DNA] laboratory operated by any agency of the federal government, or to 45 any forensic [DNA] test performed by any such federal laboratory, or 46 contracted by a non-law enforcement agency. 47 § 8. Paragraph 2 of subdivision a of section 17-208 of the administra- 48 tive code of the city of New York, as added by local law number 86 of 49 the city of New York for the year 2013, is amended to read as follows: 50 2. "Proficiency test" shall mean such testing as is required by the 51 New York state commission on forensic science [and the New York state 52 subcommittee on forensic DNA laboratories and forensic DNA testing 53 pursuant to paragraph b of subdivision three of] section nine hundred 54 ninety-five-b of article forty-nine-b of the New York state executive 55 law, or any successor provision thereto.
S. 1274 23 1 § 9. Subdivision 1 of section 995-c of the executive law, as added by 2 chapter 737 of the laws of 1994, is amended to read as follows: 3 1. Following the promulgation of a policy by the commission pursuant 4 to subdivision [nine] twelve of section nine hundred ninety-five-b of 5 this article, the commissioner of criminal justice services is author- 6 ized to promulgate a plan for the establishment of a computerized state 7 DNA identification index within the division of criminal justice 8 services. 9 § 10. This act shall take effect on the one hundred eightieth day 10 after it shall have become a law.