Effective October 1, 2012 any person convicted of certain misdemeanors and all felonies in New York will be required to provide a sample of their DNA. New York is the first state to require DNA samples based on convictions under these guidelines. DNA sampling will be required by any person who is found guilty of a crime after trial or if the person pleads guilty to a crime.
In 2006, New York first enacted Deoxyribonucleic Acid (“DNA”) sampling for persons convicted of a limited number of felonies, attempted felonies and 18 specific misdemeanor offenses. Since passing the sampling law in 2006, New York State charged 1,595 crimes based on “hits” from people convicted of qualifying crimes after submitting DNA. The increased number of arrests prompted legislation to increase the qualifying sampling offenses to include all felonies, attempted or otherwise and all Penal Law misdemeanor convictions. Executive Law § 995(7).
If a qualifying offender is sentenced to jail or prison, a DNA sample will be collected by the government agency which has custody of the individual. Executive Law § 995(7)(3)(B)(I). If the designated offender is sentenced to probation, then the probation department will be required to collect the sample. Executive Law § 995(7)(3)(B)(II). Finally, if a qualifying offender is not sentenced to probation or incarceration then the local Sherriff’s Department is charged with collecting the DNA sample. Executive Law § 995(7)(3)(B)(III).
All collected samples will continue to be stored by the Department of Criminal Justice Services (“DCJS”). The database created by DCJS in 2006, with the passing of the first DNA sampling statute, will expand to include the new qualifying crimes. Persons who successfully overturn a conviction may have their DNA removed from the database. Executive Law §995(9)(a).
Thus, beginning October 1, 2012, any person convicted for any one of the 155 Penal Law misdemeanors, regardless of severity, will be forced under the new law to provide a DNA sample to the State of New York. Significantly, even persons convicted of traditionally petty crimes such as, bouncing a check or attempted petit larceny will be required to submit their DNA. Any person accepting a plea to a qualifying crime should fully understand this new collateral consequence.
A special thanks to Rachel Maier and Kelly Slossar for their contributions to this article.
 The class “B” misdemeanor of Attempted Possession of Marihuana is excluded as a qualifying offense under the new law.
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James L. Riotto is an accomplished criminal defense attorney serving clients in New York. With an extensive background in law enforcement and criminal prosecution, his approach to each case is unique and informed by years of experience with the New York criminal justice system. As a graduate from Albany Law School and before going on to start his own practice, James worked at the Albany County District Attorney's Office, where he helped prosecute many DWI offenses. His inside knowledge of the tactics used to gain convictions provides him with a particular advantage when defending against DUI and other criminal charges.
About Attorney Adam Staier has spent the last seven years practicing criminal defense law throughout upstate New York and the Capital Region. He began his legal career through internships in civil law, indigent legal representation and federal energy law regulation. Finding a passion in criminal law, Mr. Staier held internships handling both prosecution and defense…