NEBRASKA

NEBRASKA

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4101 (2001)
§ 29-4101. Act, how cited

Sections 29-4101 to 29-4115 shall be known and may be cited as the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 1.

NOTES:
EFFECTIVE DATE: September 13, 1997.

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS
Applicability

APPLICABILITY
The DNA Detection of Sexual and Violent Perpetrators [Offenders] Act does not apply to inmates who are incarcerated and serving time for committing a violent or sexual offense under the previous Criminal Code., i.e. prior to 1979. 1999 Op. Att'y Gen. No. 49.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES.
Constitutional provisions:
Board of Pardons, see Article IV, § 13, Constitution of Nebraska, and § 83-1,126.
Board of Parole, see Article IV, § 13, Constitution of Nebraska, and § 83-188.
Habeas corpus, see Article I, § 8, Constitution of Nebraska.
Rights of accused:
Appear and defend, see Article I, § 11, Constitution of Nebraska
Bail, see Article I, § 9, Constitution of Nebraska.
Compel attendance of witnesses, see Article I, § 11, Constitution of Nebraska.
Copy of accusation, see Article I, § 11, Constitution of Nebraska.
Double jeopardy, see Article I, section 12, Constitution of Nebraska.
Evidence against self, not compelled to give, see Article I, § 12, Constitution of Nebraska.
Forfeiture of estate, forbidden, see Article I, § 15, Constitution of Nebraska.
Impartial jury, see Article I, § 11, Constitution of Nebraska.
Indictment or information, see Article I, § 10, Constitution of Nebraska.
Punishment, not cruel or unusual, see Article I, § 9, Constitution of Nebraska.
Right of appeal, felony cases, see Article I, § 23, Constitution of Nebraska.
Self-incrimination, privilege against, see Article I, section 12, Constitution of Nebraska.
Speedy public trial, see Article I, § 11, Constitution of Nebraska.
Suspension of sentence, capital cases, see Article I, § 23, Constitution of Nebraska.
Treason, requirements to convict, see Article I, § 14, Constitution of Nebraska.
Search and seizure, unreasonable, forbidden, see Article I, § 7, Constitution of Nebraska.
Contempt of court, prosecution, see § 25-2122.
Penal and correctional institutions, see Chapter 83, article 4.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4102 (2001)
§ 29-4102. Legislative findings

The Legislature finds that DNA data banks are an important tool in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions, and in deterring and detecting recidivist acts. Several states have enacted laws requiring persons convicted of certain crimes, especially sex offenses, to provide genetic samples for DNA typing tests. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations. It is in the best interest of this state to establish a State DNA Data Base for DNA records and a State DNA Sample Bank as a repository for DNA samples from individuals convicted of felony sex offenses and other specified offenses.

HISTORY: Laws 1997, LB 278, § 2.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4103 (2001)
§ 29-4103. Terms, defined

For purposes of the DNA Detection of Sexual and Violent Offenders Act:

(1) Combined DNA Index System means the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories;

(2) DNA means deoxyribonucleic acid which is located in the cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification;

(3) DNA record means the DNA identification information stored in the State DNA Data Base or the Combined DNA Index System which is derived from DNA typing test results;

(4) DNA sample means a blood or tissue sample provided by any person with respect to offenses covered by the DNA Detection of Sexual and Violent Offenders Act for analysis or storage, or both;

(5) DNA typing tests means the laboratory procedures which evaluate the characteristics of a DNA sample which are of value in establishing the identity of an individual;

(6) Felony sex offense means a felony offense, or an attempt, conspiracy, or solicitation to commit a felony offense, under any of the following:

(a) Kidnapping of a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this subdivision;

(b) Incest of a minor pursuant to section 28-703;

(c) Sexual assault in the first or second degree pursuant to section 28-319 or 28-320;

(d) Sexual assault of a child pursuant to section 28-320.01;

(e) Sexual assault of a vulnerable adult pursuant to subdivision (1) (c) of section 28-386; and

(f) False imprisonment of a minor in the first degree pursuant to section 28-314, except when the person is the parent of the minor and was not convicted of any other offense in this subdivision;

(7) Law enforcement agency includes a police department, town marshal, county sheriff, and the Nebraska State Patrol;

(8) Other specified offense means an offense, or an attempt, conspiracy, or solicitation to commit an offense, under any of the following:

(a) Murder in the first degree pursuant to section 28-303;

(b) Murder in the second degree pursuant to section 28-304;

(c) Manslaughter pursuant to section 28-305; or

(d) Stalking pursuant to sections 28-311.02 to 28-311.05; and

(9) Released means any release, parole, furlough, work release, prerelease, or release in any other manner from a prison, jail, or any other detention facility or institution.

HISTORY: Laws 1997, LB 278, § 3.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4104 (2001)
§ 29-4104. State DNA Data Base; established; contents; Nebraska State Patrol; duties

The State DNA Data Base is established. The Nebraska State Patrol shall administer the State DNA Data Base and shall provide DNA records to the Federal Bureau of Investigation for storage and maintenance in the Combined DNA Index System. The patrol shall provide for liaison with the Federal Bureau of Investigation and other law enforcement agencies in regard to the state's participation in the Combined DNA Index System. The State DNA Data Base shall store and maintain DNA records related to:

(1) Forensic casework;

(2) Convicted offenders required to provide a DNA sample under the DNA Detection of Sexual and Violent Offenders Act; and

(3) Anonymous DNA records used for research or quality control.

HISTORY: Laws 1997, LB 278, § 4.

NOTES:
EFFECTIVE DATE: September 13, 1997.

RESEARCH REFERENCES

ALR.
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4105 (2001)
§ 29-4105. DNA samples and records; access restrictions

(1) The Nebraska State Patrol shall prescribe procedures to be used in the collection, submission, identification, analysis, storage, and disposition of DNA samples and DNA records under the DNA Detection of Sexual and Violent Offenders Act. These procedures shall include quality assurance guidelines for laboratories which submit DNA records to the State DNA Data Base. The State DNA Data Base shall be compatible with the procedures specified by the Federal Bureau of Investigation, including the use of comparable test procedures, laboratory equipment, supplies, and computer software. The DNA records shall be securely stored in the State DNA Data Base and retained in a manner consistent with the procedures established by the Federal Bureau of Investigation.

(2) The Nebraska State Patrol may contract with the University of Nebraska Medical Center to establish the State DNA Sample Bank at the medical center and for DNA typing tests. The State DNA Sample Bank shall serve as the repository of DNA samples collected under the act. The University of Nebraska Medical Center in contracting under the act is subject to the same restrictions and requirements of the act, insofar as applicable, as the Nebraska State Patrol, as well as any additional restrictions imposed by the patrol.

(3) The DNA samples and DNA records shall only be used by the Nebraska State Patrol to create a separate population data base comprised of DNA records obtained under the act after all personal identification is removed. The patrol may share or disseminate the population data base with other law enforcement agencies or forensic DNA laboratories which assist the patrol with statistical data bases. The population data base may be made available to and searched by other agencies participating in the Combined DNA Index System.

HISTORY: Laws 1997, LB 278, § 5.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4106 (2001)
§ 29-4106. Person subject to DNA sample

(1) A person who is convicted of a felony sex offense or other specified offense on or after September 13, 1997, shall have a DNA sample drawn:

(a) Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced. If the person is already confined at the time of sentencing, the person shall have a DNA sample drawn immediately after the sentencing. Such DNA samples shall be drawn at the place of incarceration or confinement. Such person shall not be released unless and until a DNA sample has been drawn; or

(b) As a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution. Such DNA samples shall be drawn at a detention facility or institution as specified by the court. Such person shall not be released unless and until a DNA sample has been drawn.

(2) A person who has been convicted of a felony sex offense or other specified offense before September 13, 1997, and who is still serving a term of confinement for such offense on September 13, 1997, shall not be released prior to the expiration of his or her maximum term of confinement unless and until a DNA sample has been drawn.

HISTORY: Laws 1997, LB 278, § 6.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4107 (2001)
§ 29-4107. DNA samples; persons authorized to obtain samples; immunity

(1) Only individuals (a) who are physicians or registered nurses, (b) who are trained to withdraw human blood for scientific or medical purposes and are obtaining blood specimens while working under orders of or protocols and procedures approved by a physician, registered nurse, or other independent health care practitioner licensed to practice by the state if the scope of practice of that practitioner permits the practitioner to obtain blood specimens, or (c) who are both employed by a licensed institution or facility and have been trained to withdraw human blood for scientific or medical purposes shall draw a DNA sample under the DNA Detection of Sexual and Violent Offenders Act. In addition to the DNA sample, one thumb print or fingerprint shall be taken from the person from whom the DNA sample is being drawn for the exclusive purpose of verifying the identity of such person. The DNA sample and the thumb print or fingerprint shall be delivered to the Nebraska State Patrol within five working days after drawing the sample.

(2) A person authorized to draw DNA samples under this section is not criminally liable for drawing a DNA sample and transmitting DNA records pursuant to the act if he or she performs these activities in good faith and is not civilly liable for such activities if he or she performed such activities in a reasonable manner according to generally accepted medical and other professional practices.

HISTORY: Laws 1997, LB 278, § 7; Laws 2000, LB 151, § 1.

NOTES:
EFFECT OF AMENDMENTS.
Laws 2000, LB 151, effective Feb. 16, 2000, in (1), substituted "one thumb print or fingerprint" for "a full set of fingerprints," "thumb print or fingerprint" for "set of fingerprints," and "five working days" for "forty-eight hours."

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4108 (2001)
§ 29-4108. DNA samples and DNA records; confidentiality

(1) All DNA samples and DNA records submitted pursuant to the DNA Detection of Sexual and Violent Offenders Act are confidential except as otherwise provided in the act. The Nebraska State Patrol shall make DNA records in the State DNA Data Base available:

(a) To law enforcement agencies and forensic DNA laboratories which serve such agencies; and

(b) Upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

(2) The Nebraska State Patrol shall adopt and promulgate rules and regulations governing the methods of obtaining information from the State DNA Data Base and the Combined DNA Index System and procedures for verification of the identity and authority of the requester.

(3) The Nebraska State Patrol may, for good cause shown, revoke or suspend the right of a forensic DNA laboratory in this state to have access to or submit records to the State DNA Data Base.

(4) For purposes of this subsection, person means a law enforcement agency, the Federal Bureau of Investigation, any forensic DNA laboratory, or person. No records or DNA samples shall be provided to any person unless such person enters into a written agreement with the Nebraska State Patrol to comply with the provisions of section 29-4109 relative to expungement, when notified by the Nebraska State Patrol that expungement has been granted. Every person shall comply with the provisions of section 29-4109 within ten calendar days of receipt of such notice and certify in writing to the Nebraska State Patrol that such compliance has been effectuated. The Nebraska State Patrol shall provide notice of such certification to the person who was granted expungement.

HISTORY: Laws 1997, LB 278, § 8.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4109 (2001)
§ 29-4109. DNA record; expungement; procedure

A person whose DNA record has been included in the State DNA Data Base pursuant to the DNA Detection of Sexual and Violent Offenders Act may request expungement on the grounds that the conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The Nebraska State Patrol shall purge all DNA records and identifiable information in the data base pertaining to the person and destroy all DNA samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the final court order reversing and dismissing the conviction.

Within ten calendar days of granting expungement, the Nebraska State Patrol shall provide written notice of such expungement pursuant to subsection (4) of section 29-4108, to any person to whom DNA records and samples have been made available. The Nebraska State Patrol shall establish procedures for providing notice of certification of expungement to the person who was granted expungement.

HISTORY: Laws 1997, LB 278, § 9.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4110 (2001)
§ 29-4110. Unlawfully obtaining or possessing DNA samples or records; penalty

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records in the State DNA Data Base or in the State DNA Sample Bank shall not disclose such samples or records in any manner to any person or agency not authorized to receive them knowing that such person or agency is not authorized to receive them.

(2) No person shall obtain individually identifiable DNA samples or DNA records from the State DNA Data Base or the State DNA Sample Bank without authorization to do so. Any person who knowingly violates this subsection is guilty of a Class III misdemeanor.

HISTORY: Laws 1997, LB 278, § 10.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4111 (2001)
§ 29-4111. Unlawful disclosure for pecuniary gain; penalty; attorney's fees

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records contained in the State DNA Data Base or in the State DNA Sample Bank and who for pecuniary gain for such person or for any other person discloses such samples and records in any manner to any person or agency not authorized to receive them is guilty of a Class III misdemeanor.

(2) Any person aggrieved by a knowing violation of this section has the substantive right to bring an action for damages for such violation in a court of competent jurisdiction. A person found by the court to have been aggrieved by a knowing violation of this section may receive damages of not less than one hundred dollars for each violation and may recover the reasonable costs of the litigation and attorney's fees.

HISTORY: Laws 1997, LB 278, § 11.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4112 (2001)
§ 29-4112. Injunction

The Nebraska State Patrol or any other aggrieved individual or agency may institute an action in a court of proper jurisdiction against any person, including law enforcement agencies, to enjoin such person or agency from violating the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 12.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4113 (2001)
§ 29-4113. DNA samples; additional offenses; Nebraska State Patrol; duties

The Nebraska State Patrol may recommend to the Legislature that the Legislature enact legislation for the inclusion of additional offenses for which DNA samples shall be taken and otherwise subjected to the DNA Detection of Sexual and Violent Offenders Act. In determining whether to recommend additional offenses, the Nebraska State Patrol shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sexual offenders and violent offenders.

HISTORY: Laws 1997, LB 278, § 13.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4114 (2001)
§ 29-4114. Rules and regulations

The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 14.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

NEBRASKA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2000 by Information for Public Affairs, Inc.

NEBRASKA 96TH LEGISLATURE -- SECOND REGULAR SESSION

LEGISLATIVE BILL 151

1999 Neb. ALS 151; 1999 Neb. Laws 151; 1999 Neb. LB 151
SYNOPSIS: AN ACT relating to the DNA Detection of Sexual and Violent Offenders Act; to amend section 29-4107, Revised Statutes Supplement, 1998; to change provisions relating to DNA samples and fingerprints; to repeal the original section; 5 and to declare an emergency.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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Be it enacted by the people of the State of Nebraska,

[*1] Section 1. Section 29-4107, Revised Statutes Supplement, 1998, is amended to read:

29-4107. (1) Only individuals (a) who are physicians or registered nurses, (b) who are trained to withdraw human blood for scientific or medical purposes and are obtaining blood specimens while working under orders of or protocols and procedures approved by a physician, registered nurse, or other independent health care practitioner licensed to practice by the state if the scope of practice of that practitioner permits the practitioner to obtain blood specimens, or (c) who are both employed by a licensed institution or facility and have been trained to withdraw human blood for scientific or medical purposes shall draw a DNA sample under the DNA Detection of Sexual and Violent Offenders Act. In addition to the DNA sample, [D> a full set of fingerprints <D] [A> ONE THUMB PRINT OR FINGERPRINT <A] shall be taken from the person from whom the DNA sample is being drawn for the exclusive purpose of verifying the identity of such person. The DNA sample and the [D> set of fingerprints <D] [A> THUMB PRINT OR FINGERPRINT <A] shall be delivered to the Nebraska State Patrol within [D> forty-eight hours <D] [A> FIVE WORKING DAYS <A] after drawing the sample. (2) A person authorized to draw DNA samples under this section is not criminally liable for drawing a DNA sample and transmitting DNA records pursuant to the act if he or she performs these activities in good faith and is not civilly liable for such activities if he or she performed such activities in a reasonable manner according to generally accepted medical and other professional practices.

[*2] Sec. 2. Original section 29-4107, Revised Statutes Supplement, 1998, is repealed.

[*3] Sec. 3. Since an emergency exists, this act takes effect when passed and approved according to law.

HISTORY:
Approved by the Governor on February 15, 2000

SPONSOR:
Thompson

NEVADA

TITLE 14. PROCEDURE IN CRIMINAL CASES
CHAPTER 176. JUDGMENT AND EXECUTION
SENTENCE AND JUDGMENT
GENETIC MARKER TESTING

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Nev. Rev. Stat. Ann. § 176.0911 (2001)
§ 176.0911. "CODIS" defined

As used in NRS 176.0911 to 176.0917, inclusive, unless the context otherwise requires, "CODIS" means the Combined DNA Indexing System operated by the Federal Bureau of Investigation.

HISTORY: 1997, ch. 451, § 83.3, p. 1668.

NOTES:
EFFECTIVE DATE. --This section is effective July 1, 1997.

TITLE 14. PROCEDURE IN CRIMINAL CASES
CHAPTER 176. JUDGMENT AND EXECUTION
SENTENCE AND JUDGMENT
GENETIC MARKER TESTING

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Nev. Rev. Stat. Ann. § 176.0913 (2001)
§ 176.0913. Samples of blood taken from defendant; identifying information submitted to central repository; costs

1. If a defendant is convicted of an offense listed in subsection 4, the court, at sentencing, shall order that:

(a) The name, social security number, date of birth and any other information identifying the defendant be submitted to the central repository for Nevada records of criminal history; and

(b) Samples of blood be obtained from the defendant pursuant to the provisions of this section and that the samples be used for an analysis to determine the genetic markers of the blood.

2. If the defendant is committed to the custody of the department of prisons, the department of prisons shall arrange for the samples of blood to be obtained from the defendant. The department of prisons shall provide the samples of blood to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker testing for the county pursuant to NRS 176.0917.

3. If the defendant is not committed to the custody of the department of prisons, the division shall arrange for the samples of blood to be obtained from the defendant. The division shall provide the samples of blood to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker testing for the county pursuant to NRS 176.0917. Any cost that is incurred to obtain the samples of blood from the defendant pursuant to this subsection is a charge against the county in which the defendant was convicted and must be paid as provided in NRS 176.0915.

4. The provisions of subsection 1 apply to a defendant who is convicted of any of the following offenses:

(a) A crime against a child as defined in NRS 179D.210.

(b) A sexual offense as defined in NRS 179D.410.

(c) Murder, manslaughter or any other unlawful killing pursuant to NRS 200.010 to 200.260, inclusive.

(d) Mayhem pursuant to NRS 200.280.

(e) Administering poison or another noxious or destructive substance or liquid with intent to cause death pursuant to NRS 200.390.

(f) Battery with intent to commit a crime pursuant to NRS 200.400.

(g) Battery which is committed with the use of a deadly weapon or which results in substantial bodily harm pursuant to NRS 200.481.

(h) Abuse or neglect of an older person pursuant to NRS 200.5099.

(i) A second or subsequent offense for stalking pursuant to NRS 200.575.

(j) Burglary pursuant to NRS 205.060.

(k) Invasion of the home pursuant to NRS 205.067.

(l) An attempt to commit an offense listed in this subsection.

HISTORY: 1989, ch. 168, § 1, p. 376; 1995, ch. 256, § 5, p. 414.; 1997, ch. 451, § 84, p. 1669.

NOTES:
EDITOR'S NOTE. --This section was formerly compiled as NRS 176.111.

EFFECTIVE DATE. --The 1997 amendment is effective July 1, 1997.

EFFECT OF AMENDMENT. --The 1997 amendment rewrote the section.

CASE NOTES

CONSTITUTIONALITY. --This section does not violate the Fourth Amendment because the State's interest in solving crimes outweighs both the convict's diminished expectation of privacy and the minimally intrusive nature of the blood draw. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
Applying a rational basis standard, the court concluded that this section does not offend notions of equal protection because of the existence of a rational basis for requiring genetic marker testing, namely the apprehension of repeat and violent offenders. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
This section does not offend the Due Process Clause given that the proper taking of a blood sample for purposes of a criminal investigation does not shock the conscience or offend one's sense of justice; accordingly, under this approach, the Due Process Clause is not implicated because the blood test is routine, and therefore does not concern a fundamental right. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
A blood test properly performed by a medical provider is not barbarous nor does it involve wanton physical punishment, therefore, the blood draw authorized by this section did not violate the Eighth Amendment. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
This section is not overbroad given that its plain language limits the purpose of testing to identification and defendant's contentions that State might abuse the genetic marker data were merely speculation and conjecture as no evidence was provided to support that argument. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).

APPLICATION OF THIS SECTION IS NOT LIMITED TO SEXUAL OFFENDERS. --This section unambiguously requires genetic marker testing for several types of non-sexual offenses to include burglary; furthermore, the legislative history indicated that the legislature intended to expand the list of crimes for which DNA sampling and testing were required to include certain violent crimes like burglary. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).

RESEARCH REFERENCES
Validity, construction, and operation of state DNA database statutes. 76 A.L.R.5th 239.
Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

LEGAL PERIODICALS
Criminal Procedure; Sex Offenders--Blood and Saliva Test, 1989 Pac. L.J. Rev. Nev. Legis. 89.

NEW HAMPSHIRE

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:20 (2000)
§ 632-A:20. Definitions

In this subdivision:

I. "CODIS" means the Combined DNA Index System, the FBI's national DNA identification index system.

II. "Department" means the department of safety.

III. "Division" means the division of state police, department of safety.

IV. "DNA" means deoxyribonucleic acid.

V. "DNA record" means the DNA identification information stored in the state DNA database or CODIS for the purposes of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the objective form of the DNA analysis test and may include numerical representation of DNA fragment lengths, digital images of autoradiographs, discrete allele assignment numbers, and similar characteristics obtained from a DNA sample which are of value in establishing the identity of individuals. A DNA record may not specify the presence, absence, or alteration of any gene or chromosome.

VI. "DNA sample" means a blood, tissue, or hair follicle sample provided by any person or submitted to the division pursuant to this subdivision for analysis or storage or both.

VII. "FBI" means the Federal Bureau of Investigation.

VIII. "Juvenile sexual offender" means a person who has been found delinquent because of actions which, if the person were an adult, would be crimes under subparagraph IX(a).

IX. "Sexual offender" means a person who has been convicted of any violation of:

(a) RSA 632-A:2, RSA 632-A:3, or RSA 632-A:4; or

(b) A law of another state or the federal government reasonably equivalent to a violation listed in subparagraph (a).

HISTORY: 1996, 177:1, eff. Aug. 8, 1996.

NOTES APPLICABLE TO ENTIRE TITLE

CROSS REFERENCES
Appeals from convictions in municipal or district court, see RSA 599.
Arrests in criminal cases, see RSA 594.
Bail and recognizances, see RSA 597.
Depositions in criminal cases, see RSA 517:13 et seq.
Discovery in criminal cases, see RSA 604:1-a.
Extradition, see RSA 612.
Fingerprinting and measuring of defendants, see RSA 593.
Fresh pursuit, see RSA 614.
Immunity in criminal cases, see RSA 516:34.
Indictments, information, and complaints, see RSA 601.
Jurisdiction and procedure generally, see RSA 592-A.
Pleas and refusal to plead, see RSA 605.
Preliminary examination of accused, see RSA 596-A.
Proceedings in cases of willful trespass, see RSA 539.
Representation of indigent defendants, see RSA 604-A.
Rights of accused, see New Hampshire Constitution, Part 1, Article 15.
Trial of criminal cases, see RSA 606.
Venue in criminal cases, see RSA 602:1.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES
Annulment of record of conviction for offense under this chapter, see RSA 651:5.
Confidential communications between victims of sexual assault and counselors, see RSA 173-C.
Involuntary admission for persons charged with felonious sexual assault found not competent to stand trial, see RSA 171-B.
Parole of prisoner convicted of psycho-sexual murder, see RSA 651-A:8.
Physical force in defense of a person, see RSA 627:4.
Testimony of minor in civil proceedings to recover damages on behalf of minor for abuse or assault, see RSA 516:25-a.

ANNOTATIONS

CITED. Cited in State v. Cressey (1993) 137 N.H. 402, 628 A.2d 696.

LIBRARY REFERENCES

NEW HAMPSHIRE PRACTICE
2 N.H.P. Criminal Practice & Procedure §§ 806, 839, 846, 848, 852, 1040.
For article, "Repressed Memory or False Memory: New Hampshire Courts Consider the Dispute," 35 N.H.B.J. 51 (1994).

CJS
Rape § 1 et seq.

ALR
Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids. 75 ALR4th 897.
Assault and battery: sexual nature of physical contact as aggravating offense. 63 ALR3d 225.
Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape. 76 ALR4th 1147.
Mistake or lack of information as to victim's age, as defense to statutory rape. 44 ALR3d 1434; 46 ALR5th 499.
Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 ALR4th 310.
Prosecution of female as principal for rape. 67 ALR4th 1127.
Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offenses. 88 ALR3d 8.
Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance. 89 ALR3d 102.
Validity of statute making sodomy a criminal offense. 20 ALR4th 1009.
What constitutes offense of "sexual battery". 87 ALR3d 1250.

NOTES APPLICABLE TO ENTIRE HEADING

APPLICABILITY OF ENACTMENT. 1996, 177:3, eff. Aug. 2, 1996, provided that the enactment of this subdivision, comprising RSA 632-A:20-632-A:24, by 1996, 177:1 shall apply to crimes committed after August 2, 1996 and to persons incarcerated in state or county corrections facilities as of August 2, 1996.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:21 (2000)
§ 632-A:21. DNA Analysis Required

I. Before the release of any sexual offender after conviction, or of any juvenile sexual offender after finding of delinquency, whether on probation, conditional or unconditional release, completion of sentence, or release for any other reason, such person shall have a blood sample taken for DNA analysis to determine identification characteristics specific to the person.

II. The analysis shall be performed under the direction of the division, following procedures in conformance with the federal "DNA Identification Act of 1991". Identifying characteristics of the resulting DNA profile shall be stored and maintained by the division in a DNA database compatible with the CODIS system. Information in the database shall be made available only as provided in RSA 632-A:22.

III. The division shall prescribe procedures compatible with the Federal Bureau of Investigation's requirements for the CODIS program, to be used in the collection, submission, identification, analysis, storage and disposition of DNA samples and DNA records obtained pursuant to this subdivision.

IV. The division may contract with third parties for the purposes of this subdivision. Any DNA sample sent to third parties for analysis shall be coded to maintain confidentiality concerning the donor of the sample.

V. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts stated in the analysis.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

NOTES:
REFERENCES IN TEXT. The "DNA Identification Act of 1991", referred to in paragraph II, is apparently a reference to the DNA Identification Act of 1994, and is principally classified to 42 U.S.C. §§ 3751, 3753, 3793, 3796kk-1 et seq., 3797, and 1431 et seq.

LIBRARY REFERENCES

ALR
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:22 (2000)
§ 632-A:22. Dissemination of Information in DNA Database

I. It shall be the duty of the division to receive blood samples and to analyze, classify, and store the DNA records of blood samples submitted pursuant to this subdivision, and to make such information available to federal, state, and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. Such law enforcement officers shall use such information only for the purposes of criminal investigations and prosecutions, or as necessary to the functions of an office of chief medical examiner. A request may be made by personal contact, mail, or electronic means. The name of the person making the request and the purpose for which the information is requested shall be maintained on file with the division.

II. The commissioner of the department of safety shall adopt rules under RSA 541-A to govern the methods of obtaining information from the state DNA database and CODIS and procedures for verification of the identity and authority of the requester.

III. Upon request, a copy of the request for a search shall be furnished to any person identified and charged with an offense as the result of a search of information in the database. Only when a sample or DNA record supplied by the person making the request satisfactorily matches a profile in the database shall the existence of data in the database be confirmed or identifying information from the database be disseminated.

IV. The division shall create a separate statistical database comprised of DNA records of persons whose identities are unknown. Nothing in this subdivision shall prohibit the department from sharing or otherwise disseminating the information in the statistical database with law enforcement or criminal justice agencies within or without the state.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:24 (2000)
§ 632-A:24. Expungement of DNA Database Records Upon Reversal or Dismissal of Conviction

I. A person whose DNA record has been included in the database pursuant to this subdivision may request expungement on the grounds that the criminal conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The department shall purge all records and identifiable information in the database pertaining to the person and destroy all samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the court order reversing and dismissing the conviction.

II. The DNA record of any juvenile sexual offender shall be maintained in the database and shall not be automatically expunged from the database upon that individual reaching the age of adulthood.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

NEW JERSEY

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.17 (2001)
§ 53:1-20.17. Short title

This act shall be known and may be cited as the "DNA Database and Databank Act of 1994."

HISTORY: L. 1994, c. 136, § 1.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.18 (2001)
§ 53:1-20.18. Findings, declarations regarding DNA databanks

The Legislature finds and declares that DNA databanks are an important tool in criminal investigations and in deterring and detecting recidivist acts. Several states have enacted laws requiring persons convicted of certain crimes, especially serious sexual offenses, to provide genetic samples for DNA profiling. Moreover, it is the policy of this State to assist federal, state and local criminal justice and law enforcement agencies in the identification and detection of individuals who are the subjects of criminal investigations. It is therefore in the best interest of the State of New Jersey to establish a DNA database and a DNA databank containing blood samples submitted by certain serious sexual offenders. It is also in the best interest of the State of New Jersey to include in this DNA database and DNA databank blood samples submitted by certain juveniles adjudicated delinquent for certain acts, which if committed by an adult, would constitute serious sexual offenses and blood samples submitted by certain persons found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, of certain serious sexual offenses.

HISTORY: L. 1994, c. 136, § 2; amended 1997, c. 341, § 1.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.19 (2001)
§ 53:1-20.19. Definitions regarding DNA databanks

As used in this act:

"CODIS" means the FBI's national DNA identification index system that allows the storage and exchange of DNA records submitted by State and local forensic laboratories.

"DNA" means deoxyribonucleic acid.

"DNA Record" means DNA identification information stored in the State DNA database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results.

"DNA Sample" means a blood sample provided by any person convicted of any offense enumerated in section 4 of this act or provided by any juvenile adjudicated delinquent for an act which, if committed by an adult, would constitute any offense enumerated in section 4 of this act or submitted to the division for analysis pursuant to a criminal investigation.

"Division" means the Division of State Police in the Department of Law and Public Safety.

"FBI" means the Federal Bureau of Investigation.

"State DNA Database" means the DNA identification record system to be administered by the division which provides DNA records to the FBI for storage and maintenance in CODIS.

"State DNA Databank" means the repository of DNA samples collected under the provisions of this act.

HISTORY: L. 1994, c. 136, § 3; amended 1997, c. 341, § 2.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.21 (2001)
§ 53:1-20.21. Purposes of DNA samples

Tests shall be performed on each blood sample submitted pursuant to section 4 of this act in order to analyze and type the genetic markers contained in or derived from the DNA. Except insofar as the use of the results of these tests for such purposes would jeopardize or result in the loss of federal funding, the results of these tests shall be used for the following purposes:

a. For law enforcement identification purposes;

b. For development of a population database;

c. To support identification research and protocol development of forensic DNA analysis methods;

d. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes;

e. For research, administrative and quality control purposes;

f. For judicial proceedings, by order of the court, if otherwise admissible pursuant to applicable statutes or rules;

g. For criminal defense purposes, on behalf of a defendant, who shall have access to relevant samples and analyses performed in connection with the case in which the defendant is charged; and

h. For such other purposes as may be required under federal law as a condition for obtaining federal funding.

The DNA record of identification characteristics resulting from the DNA testing conducted pursuant to this section shall be stored and maintained in the State DNA database and forwarded to the FBI for inclusion in CODIS. The DNA sample itself will be stored and maintained in the State DNA databank.

HISTORY: L. 1994, c. 136, § 5.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.22 (2001)
§ 53:1-20.22. Drawing of DNA samples; conditions

Each DNA sample required to be drawn pursuant section 4 of this act from persons who are incarcerated shall be drawn at the place of incarceration. DNA samples from persons who are not sentenced to a term of confinement shall be drawn at a prison or jail unit to be specified by the sentencing court. DNA samples from persons who are adjudicated delinquent shall be drawn at a prison or jail identification and classification bureau specified by the family court. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, phlebotomist or other health care worker with phlebotomy training shall draw any DNA sample to be submitted for analysis. No civil liability shall attach to any person authorized to draw blood by this section as a result of drawing blood from any person if the blood was drawn according to recognized medical procedures. No person shall be relieved from liability for negligence in the drawing of any DNA sample. No sample shall be drawn if the division has previously received an adequate blood sample from the convicted person or the juvenile adjudicated delinquent.

HISTORY: L. 1994, c. 136, § 6; amended 1997, c. 341, § 4.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.23 (2001)
§ 53:1-20.23. Rules; procedures

The division shall adopt rules governing the procedures to be used in the submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted under this act. The DNA sample shall be securely stored in the State databank. The typing results shall be securely stored in the State database. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet audit standards for laboratories which submit DNA records to the State database. The DNA identification system established pursuant to this act shall be shall be compatible with that utilized by the FBI.

HISTORY: L. 1994, c. 136, § 7.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.24 (2001)
§ 53:1-20.24. Use of State database

a. It shall be the duty of the division to store, analyze, classify and file in the State database and with the FBI for inclusion in CODIS the DNA record of identification characteristic profiles of DNA samples submitted pursuant to section 4 of this act and to make such information available from the State database as provided in this section. The division may contract out DNA typing analysis to a qualified DNA laboratory that meets established guidelines. The results of the DNA profile of individuals in the State database shall be made available to local, State or federal law enforcement agencies, and approved crime laboratories which serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available upon receipt of a valid court order issued by a judge of the Superior Court directing the division to release these results to appropriate parties not listed above. The division shall maintain a file of such court orders.

b. The division shall adopt rules governing the methods of obtaining information from the State database and CODIS and procedures for verification of the identity and authority of the requester.

c. The division shall create a separate population database comprised of records obtained pursuant to this act after all personal identification is removed. Nothing shall prohibit the division from sharing or disseminating population databases with other law enforcement agencies, and crime laboratories that serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense, or other third parties deemed necessary to assist with statistical analysis of the population databases. The population database may be made available to and searched by other agencies participating in the CODIS system.

HISTORY: L. 1994, c. 136, § 8.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.25 (2001)
§ 53:1-20.25. Expungement of records from State records; conditions

a. (1) Any person whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the conviction that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(2) Any juvenile adjudicated delinquent whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the adjudication that resulted in the inclusion of the juvenile's DNA record or profile in the State database or the inclusion of the juvenile's DNA sample in the State databank has been reversed and the case dismissed. The juvenile adjudicated delinquent, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the adjudication shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(3) Any person found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the judgment that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application of expungement shall be served on the prosecutor for the county in which the judgment was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the judgment shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

b. Upon receipt of an order of expungement and unless otherwise provided, the division shall purge the DNA record and all other identifiable information from the State database and the DNA sample stored in the State databank covered by the order. If the entry in the database reflects more than one conviction or adjudication, that entry shall not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained an order of expungement for each conviction or adjudication on the grounds contained in subsection a. of this section. If one of the bases for inclusion in the DNA database was other than conviction or adjudication, that entry shall not be subject to expungement.

HISTORY: L. 1994, c. 136, § 9; amended 1997, c. 341, § 5.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.26 (2001)
§ 53:1-20.26. Wrongful disclosure of information

Any person who by virtue of employment, or official position, has possession of, or access to, individually identifiable DNA information contained in the State DNA database or databank and who purposely discloses it in any manner to any person or agency not entitled to receive it is guilty of a disorderly person's offense.

HISTORY: L. 1994, c. 136, § 10.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.27 (2001)
§ 53:1-20.27. Confidentiality

All DNA profiles and samples submitted to the division pursuant to this act shall be treated as confidential except as provided in section 8 of this act.

HISTORY: L. 1994, c. 136, § 11.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.30 (2001)
§ 53:1-20.30. Lien against property, income of offender

The State shall have a lien against the property and income of each offender for whom DNA testing is conducted pursuant to section 1 of this act. The lien when properly filed as set forth herein shall have priority over all unrecorded encumbrances except for any restitutions, assessments or fines which the offender has been sentenced to pay.

HISTORY: L. 1997, c. 51, § 2.

SENATE, NO. 2000

1998 N.J. S.N. 2000
SYNOPSIS: AN ACT making appropriations for the support of the State Government and the several public purposes for the fiscal year ending June 30, 1999 and regulating the disbursement thereof.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]
[V> Text within these symbols is vetoed by the governor <V]

Forensic DNA Lab..... 1,200,000

NEW MEXICO

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 3. IDENTIFICATION OF CRIMINALS

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N.M. Stat. Ann. § 29-3-1 (2000)
§ 29-3-1. New Mexico state police; identification and information

A. It is the duty of the New Mexico state police to install and maintain complete systems for the identification of criminals, including the fingerprint system and the modus operandi system. The New Mexico state police shall obtain, from whatever source procurable, and shall file and preserve for record, plates, photographs, outline pictures, fingerprints, measurements, descriptions, modus operandi statements and such other information about, concerning and relating to any and all persons who have been or who shall be convicted of a felony or who shall attempt to commit a felony within this state or who are well-known and habitual criminals or who have been convicted of any of the following felonies or misdemeanors:

(1) illegally carrying, concealing or possessing a pistol or any other dangerous weapon;

(2) buying or receiving stolen property;

(3) unlawful entry of a building;

(4) escaping or aiding an escape from prison;

(5) making or possessing a fraudulent or forged check or draft;

(6) petit larceny;

(7) unlawfully possessing or distributing habit-forming narcotic drugs; and

(8) driving while under the influence of intoxicating liquor or drugs.

B. The New Mexico state police may also obtain like information concerning persons who have been convicted of violating any of the military, naval or criminal laws of the United States or who have been convicted of a crime in any other state, country, district or province, which, if committed within this state, would be a felony.

C. The New Mexico state police shall make a complete and systematic record and index of all information obtained for the purpose of providing a convenient and expeditious method of consultation and comparison.

HISTORY: Laws 1935, ch. 149, § 4; 1941 Comp., § 40-301; 1953 Comp., § 39-3-1; Laws 1977, ch. 257, § 43; 1979, ch. 202, § 36; 1997, ch. 242, § 1.

NOTES:
CROSS-REFERENCES. --For the DNA Identification Act, see Chapter 29, Article 16 NMSA 1978.

THE 1997 AMENDMENT, effective July 1, 1997, in Subsection A, deleted "such" preceding "plates" and "hereafter" following "who shall", designated the paragraphs and added Paragraph (8), in Subsection C inserted "of" following "index", and made minor stylistic changes.

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --6A C.J.S. Arrest § 62.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 11A. SEX OFFENDER REGISTRATION AND NOTIFICATION

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N.M. Stat. Ann. § 29-11A-1 (2000)
§ 29-11A-1. Short title

Chapter 29, Article 11A NMSA 1978 may be cited as the "Sex Offender Registration and Notification Act".

HISTORY: Laws 1995, ch. 106, § 1; 1999, ch. 19, § 1.

NOTES:
CROSS-REFERENCES. --For the DNA Identification Act, see Chapter 29, Article 16 NMSA 1978.

THE 1999 AMENDMENT, effective July 1, 1999, substituted "Chapter 29, Article 11A NMSA 1978" for "This act" and inserted "and Notification".

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-1 (2000)
§ 29-16-1. Short title

This act [29-16-1 to 29-16-13 NMSA 1978] may be cited as the "DNA Identification Act".

HISTORY: Laws 1997, ch. 105, § 1.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-2 (2000)
§ 29-16-2. Purpose of act

The purpose of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] is to:

A. establish a DNA identification system for covered offenders; and

B. facilitate the use of DNA records by local, state and federal law enforcement agencies in the identification, detection or exclusion of persons in connection with criminal investigations.

HISTORY: Laws 1997, ch. 105, § 2.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-3 (2000)
§ 29-16-3. Definitions

As used in the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978]:

A. "administrative center" means the law enforcement agency or unit that administers and operates the DNA identification system;

B. "DNA oversight committee" means the DNA identification system oversight committee;

C. "CODIS" means the federal bureau of investigation's national DNA index system for storage and exchange of DNA records submitted by forensic DNA laboratories;

D. "covered offender" means any person convicted of a felony offense as an adult under the Criminal Code, the Motor Vehicle Code or the constitution of New Mexico or convicted as an adult pursuant to youthful offender or serious youthful offender proceedings under the Children's Code [Chapter 32A NMSA 1978];

E. "department" means the department of public safety;

F. "DNA" means deoxyribonucleic acid as the basis of human heredity;

G. "DNA identification system" means the DNA identification system established pursuant to the DNA Identification Act;

H. "DNA records" means the results of DNA testing and related information;

I. "DNA testing" means a forensic DNA analysis that includes restriction fragment length polymorphism, polymerase chain reaction or other valid methods of DNA typing performed to obtain identification characteristics of samples;

J. "fund" means the DNA identification system fund; and

K. "sample" means a sample of biological material sufficient for DNA testing.

HISTORY: Laws 1997, ch. 105, § 3.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CRIMINAL CODE. --See 30-1-1 NMSA 1978 and notes thereto.

MOTOR VEHICLE CODE. --See 66-1-1 NMSA 1978 and notes thereto.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-4 (2000)
§ 29-16-4. Administrative center; powers and duties; transfer to other law enforcement agency

A. The administrative center shall be an appropriate unit of the department or such other qualified New Mexico law enforcement agency as the secretary of public safety may designate in accordance with this section.

B. The administrative center shall:

(1) establish and administer the DNA identification system. The DNA identification system shall provide for collection, storage, DNA testing, maintenance and comparison of samples and DNA records for forensic purposes. Such purposes shall include generation of investigative leads and statistical analysis of DNA profiles. Procedures used for DNA testing shall be compatible with the procedures the federal bureau of investigation has specified, including comparable test procedures, laboratory equipment, supplies and computer software. Procedures used shall meet or exceed the provisions of the federal DNA Identification Act of 1994 regarding minimum standards for state participation in CODIS, including minimum standards for the acceptance, security and dissemination of DNA records;

(2) coordinate sample collection activities;

(3) perform or contract for DNA testing;

(4) serve as a repository for samples and DNA records;

(5) act as liaison with the federal bureau of investigation for purposes of CODIS; and

(6) adopt regulations and procedures governing:

(a) sample collection;

(b) DNA testing;

(c) the DNA identification system and DNA records; and

(d) the acceptance, security and dissemination of DNA records.

C. The secretary of public safety may designate, pursuant to a joint powers agreement, the crime laboratory of the police department for the largest municipality in a class A county having a population of more than two hundred fifty thousand at the most recent federal decennial census to act as the administrative center.

D. The secretary of public safety may designate, pursuant to a joint powers agreement, any other law enforcement agency to act as administrative center upon recommendation of five voting members of the advisory committee.

HISTORY: Laws 1997, ch. 105, § 4.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

DNA IDENTIFICATION ACT. --The federal DNA Identification Act, referred to in Paragraph B(1), is codified primarily as 42 U.S.C. §§ 3796kk-1 et seq. and 14131 et seq.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-5 (2000)
§ 29-16-5. DNA oversight committee; created; powers and duties

A. The "DNA identification system oversight committee" is created. The DNA oversight committee shall be composed of nine voting members as follows:

(1) a scientific representative from the department crime laboratory appointed by the secretary of public safety;

(2) a scientific representative from the crime laboratory of the police department for the largest municipality in a class A county having a population of more than two hundred fifty thousand at the most recent federal decennial census;

(3) the secretary of corrections or his designated representative;

(4) the state medical investigator or his designated representative;

(5) the attorney general or his designated representative;

(6) the president of the district attorney's association or his designated representative;

(7) the chief public defender or his designated representative; and

(8) the president of the New Mexico criminal defense lawyers association or his designated representative; and

(9) the head of the administrative center or his designated representative.

B. The DNA oversight committee shall adopt rules, regulations and procedures regarding the administration and operation of the DNA identification system.

C. The administrative center shall review and make recommendations to the DNA oversight committee regarding rules, regulations and procedures for the administration and operation of the DNA identification system.

HISTORY: Laws 1997, ch. 105, § 5.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-6 (2000)
§ 29-16-6. Covered offenders subject to collection of samples

Each covered offender shall provide one or more samples to the administrative center, as follows:

A. covered offenders convicted on or after the effective date of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] shall provide a sample at any time before release from any correctional facility or, if the covered offender is not sentenced to incarceration, before the end of any period of probation or other supervised release;

B. covered offenders incarcerated on the effective date of the DNA Identification Act shall provide a sample at any time before release from any correctional facility; and

C. covered offenders on probation or other supervised release on the effective date of the DNA Identification Act shall provide a sample before the end of any period of probation or other supervised release.

HISTORY: Laws 1997, ch. 105, § 6.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-7 (2000)
§ 29-16-7. Procedures for collection of samples

A. The collection of samples pursuant to the provisions of Section 6 [29-16-6 NMSA 1978] of the DNA Identification Act shall be conducted in a medically approved manner in accordance with rules, regulations and procedures adopted by the DNA oversight committee.

B. All persons who collect samples shall be trained in procedures that meet the requirements and standards specified in Subsection A of this section.

C. All persons authorized to collect samples and their employers shall be immune from liability in any civil or criminal action with regard to the collection of samples, if the collection is performed without negligence. This subsection shall not be deemed to create any additional liability or waive any immunity of public employees under the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978].

D. Samples shall be stored in accordance with rules, regulations and procedures adopted by the administrative center.

E. DNA testing shall be performed by the administrative center or a contract facility it may designate.

F. DNA records and samples shall be securely classified and stored at the administrative center.

HISTORY: Laws 1997, ch. 105, § 7.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-8 (2000)
§ 29-16-8. Confidentiality; disclosure and dissemination of DNA records

A. DNA records and samples are confidential and shall not be disclosed except as authorized in the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] pursuant to the rules and regulations developed and adopted by the DNA oversight committee.

B. The administrative center shall make DNA records available for identification, comparison and investigative purposes to local, state and federal law enforcement agencies pursuant to the rules and regulations developed and adopted by the DNA oversight committee. The administrative center may disseminate statistical or research information derived from samples and DNA testing if all personal identification is removed pursuant to the rules and regulations developed and adopted by the DNA oversight committee.

HISTORY: Laws 1997, ch. 105, § 8.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-9 (2000)
§ 29-16-9. Enforcement

The attorney general or a district attorney may petition a district court for an order requiring a covered offender to:

A. provide a sample; or

B. provide a sample by alternative means if the covered offender will not cooperate.

HISTORY: Laws 1997, ch. 105, § 9.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-10 (2000)
§ 29-16-10. Expungement of samples and DNA records from the DNA identification system and CODIS

A. A person may request expungement of his sample and DNA records from the DNA identification system on the grounds that the conviction that led to the inclusion of his sample and DNA records in the DNA identification system has been reversed.

B. The administrative center shall expunge a person's sample and DNA records from the DNA identification system when the person provides the administrative center with the following materials:

(1) a written request for expungement of his sample and DNA records; and

(2) a certified copy of a court order that reverses the conviction that led to the inclusion of his sample and DNA records in the DNA identification system.

C. When a person's sample and DNA records are expunged from the DNA identification system, the head of the administrative center shall ensure that the person's sample and DNA records are expunged from CODIS.

HISTORY: Laws 1997, ch. 105, § 10.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-11 (2000)
§ 29-16-11. Assessment of fee

On and after the effective date of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978], when a covered offender is convicted, the court shall assess a fee of one hundred dollars ($100) in addition to any other fee, restitution or fine. The fee shall be deposited in the fund.

HISTORY: Laws 1997, ch. 105, § 11.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-12 (2000)
§ 29-16-12. Penalty

A. Any person who by virtue of his employment or official position possesses or has access to samples or DNA records and who willfully discloses any of them to any person or in any manner not authorized by the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

B. Any person who uses or attempts to use samples or DNA records for a purpose not authorized by the DNA Identification Act is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Any person who obtains or attempts to obtain samples or DNA records for a purpose not authorized by the DNA Identification Act is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

HISTORY: Laws 1997, ch. 105, § 12.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-13 (2000)
§ 29-16-13. DNA fund created; purposes

A. The "DNA identification system fund" is created in the state treasury.

B. The fund shall consist of all money received by appropriation, gift or grant, all money collected pursuant to Section 11 [29-16-11 NMSA 1978] of the DNA Identification Act and all investment income from the fund.

C. Money and investment income in the fund at the end of any fiscal year shall not revert to the general fund but shall remain in the fund.

D. Money and investment income in the fund is appropriated to the administrative center for expenditure in fiscal year 1998 and subsequent fiscal years for the purposes of the fund.

E. The fund shall be used for the purposes of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978], including paying the expenses incurred by the administrative center and all other reasonable expenses. The administrative center may use money in the fund for loans or grants of money, equipment or personnel to any law enforcement agency, correctional facility, judicial agency, the public defender department or the office of the medical investigator, upon recommendation of the DNA oversight committee.

HISTORY: Laws 1997, ch. 105, § 13.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

NEW MEXICO ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

NEW MEXICO 45TH LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER 29

SENATE BILL 337

2001 N.M. ALS 29; 2001 N.M. Laws 29; 2001 N.M. Ch. 29; 2001 N.M. SB 337
SYNOPSIS: AN ACT RELATING TO CRIMINAL PROCEDURE; ESTABLISHING PROCEDURES FOR THE CONSIDERATION OF DNA EVIDENCE NOT AVAILABLE AT THE TIME OF AN OFFENDER'S CRIMINAL TRIAL; ENACTING A NEW SECTION OF THE CRIMINAL PROCEDURE ACT.

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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

[*1] Section 1. A new section of the Criminal Procedure Act is enacted to read:

"NEW MATERIAL PROCEDURES FOR CONSIDERATION OF DNA EVIDENCE --
REQUIREMENTS.--

A. A person convicted of a criminal offense, who claims that DNA evidence not available at the time of his initial trial will establish his innocence, may petition the district court in which he was convicted to set aside his judgment and sentence or grant him a new trial. A copy of the petition shall be served on the district attorney for the judicial district in which the district court is located.

B. As a condition to the district court's acceptance of his petition, the petitioner shall:

(1) submit to DNA testing ordered by the district court;

(2) authorize the district attorney's use of the DNA test results to investigate all aspects of the case that the petitioner is seeking to reopen; and

(3) authorize the district attorney's use of the DNA test results to investigate or prosecute cases unrelated to the case that the petitioner is seeking to reopen.

C. The petitioner shall prove by clear and convincing evidence that:

(1) he was convicted of the criminal offense at a bench trial or a jury trial;

(2) he has no pending appeal regarding his conviction for the criminal offense;

(3) his identity was an issue during the initial trial;

(4) the evidence he wants the court to order DNA testing upon was secured and preserved by the law enforcement agency that investigated the case;

(5) the evidence he wants the court to order DNA testing upon was subject to a chain of custody sufficient to establish that it was not substituted, tampered with, replaced or altered in any material respect;

(6) the evidence he wants the court to order DNA testing upon was not tested previously because the technology for performing DNA testing was not available at the time of the petitioner's initial trial;

(7) the evidence he wants the court to order DNA testing upon will be highly likely to produce evidentiary results that would have been admissible at the petitioner's initial trial; and

(8) if the evidence he wants the court to order DNA testing upon had been admitted at the petitioner's initial trial, a reasonable judge or jury would not have been able to find him guilty beyond a reasonable doubt.

D. The district court may grant the petition and order DNA testing if the petitioner satisfies the requirements set forth in Subsection C of this section and the court finds that:

(1) the DNA test has the scientific potential to produce new, noncumulative evidence material to the petitioner's assertion of innocence; and

(2) the DNA test employs a scientific method generally accepted within the relevant scientific community.

E. The district court may impose any additional, reasonable conditions on the DNA testing to protect the state's interests in the integrity of the evidence.

F. The district court may order the petitioner to pay for the expense of the DNA testing.

G. The district court shall make specific, written findings of fact with respect to the requirements or conditions set forth in Subsections C, D and E of this section.

H. A petitioner shall file a petition pursuant to the provisions of this section prior to July 1, 2002. The district court shall not accept any petitions after that date.

I. As used in this section, "DNA" means deoxyribonucleic acid."

[*2] Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.

HISTORY:
Approved by the Governor on March 14, 2001

SPONSOR:
Sanchez M

NEW MEXICO ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

NEW MEXICO 45TH LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER 64

HOUSE BILL 2

2001 N.M. ALS 64; 2001 N.M. Laws 64; 2001 N.M. Ch. 64; 2001 N.M. HB 2
SYNOPSIS: AN ACT MAKING GENERAL APPROPRIATIONS AND AUTHORIZING EXPENDITURES BY STATE AGENCIES REQUIRED BY LAW.

NOTICE:
[V> Text within these symbols is vetoed by the governor <V]

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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

[*1] Section 1. SHORT TITLE.--This act may be cited as the "General Appropriation Act of 2001".

[*2] Section 2. DEFINITIONS.--As used in the General Appropriation Act of 2001:

[V> A. "activity" is a strategy or work process designed to achieve a common purpose with a given set of inputs, one or more of which constitute a program; <V]

B. "agency" means an office, department, agency, institution, board, bureau, commission, court, district attorney, council or committee of state government;

[V> C. "efficiency measure" is a indicator of the cost of an activity in dollars or employee hours per unit of output or outcome; <V]

D. "expenditures" means costs, expenses, encumbrances and other financing uses, other than refunds authorized by law, recognized in accordance with generally accepted accounting principles for the legally authorized budget amounts and budget period;

[V> E. "explanatory data" means information that can help users to understand reported performance measures and to evaluate the significance of underlying factors that may have affected the reported information; <V]

F. "federal funds" means any payments by the United States government to state government or agencies except those payments made in accordance with the federal Mineral Lands Leasing Act;

[V> G. "full-time equivalent" or "FTE" means one or more authorized positions that together receive compensation for not more than two thousand eighty hours worked in fiscal year 2002. The calculation of hours worked includes compensated absences but does not include overtime, compensatory time or sick leave paid pursuant to Section 10-7-10 NMSA 1978; <V]

H. "general fund" means that fund created by Section 6-4-2 NMSA 1978 and includes federal Mineral Lands Leasing Act receipts and those payments made in accordance with the federal block grant and the federal Workforce Investment Act, but excludes the general fund operating reserve and the appropriation contingency fund;

I. "interagency transfers" means revenue, other than internal service funds, legally transferred from one agency to another;

J. "internal service funds" means:

(1) revenue transferred to an agency for the financing of goods or services to another agency on a cost-reimbursement basis; and

(2) unencumbered balances in agency internal service fund accounts appropriated by the General Appropriation Act of 2001;

K. "other state funds" means:

(1) unencumbered, nonreverting balances in agency accounts, other than in internal service funds accounts, appropriated by the General Appropriation Act of 2001;

(2) all revenue available to agencies from sources other than the general fund, internal service funds, interagency transfers and federal funds; and

(3) all revenue, the use of which is restricted by statute or agreement;

[V> L. "outcome measure" is an indicator of the accomplishments or results that occur because of services provided by a program and is a measure of the actual impact or public benefit of a program; <V]

[V> M. "ouput measure" is an indicator of the physical quantity of a service or product delivered by an activity or program; <V]

[V> N. "performance measure" means a quantitative or qualitative indicator used to assess a state agency's performance; <V]

[V> O. "program" means a set of activities undertaken in accordance with a plan of action organized to realize identifiable goals and objectives based on legislative authorization; <V]

[V> P. "quality measure" is an indicator of the quality of a good or service produced and is often an indicator of the timeliness, reliability or safety of services or products produced by a program; <V]

Q. "revenue" means all money received by an agency from sources external to that agency, net of refunds and other correcting transactions, other than from issue of debt, liquidation of investments or as agent or trustee for other governmental entities or private persons;

[V> R. "target" means the expected level of performance of a program's performance measures; <V] and

S. "unforeseen federal funds" means a source of federal funds or an increased amount of federal funds that could not have been reasonably anticipated or known during the first session of the forty-fifth legislature and, therefore, could not have been requested by an agency or appropriated by the legislature.

[*3] Section 3. GENERAL PROVISIONS.--

A. Amounts set out under column headings are expressed in thousands of dollars.

B. Amounts set out under column headings are appropriated from the source indicated by the column heading. All amounts set out under the column heading "Internal Service Funds/Interagency Transfers" indicate an intergovernmental transfer and do not represent a portion of total state government appropriations. All information designated as "Totals" or "Subtotals" are provided for information and are not appropriations.

C. Amounts set out in Section 4 and Section 5 of the General Appropriation Act of 2001, or so much as may be necessary, are appropriated from the indicated source for expenditure in fiscal year 2002 for the objects expressed.

D. Unencumbered balances in agency accounts remaining at the end of fiscal year 2001 shall revert to the general fund by October 1, 2001, unless otherwise indicated in the General Appropriation Act of 2001 or otherwise provided by law.

E. Unencumbered balances in agency accounts remaining at the end of fiscal year 2002 shall revert to the general fund by October 1, 2002, unless otherwise indicated in the General Appropriation Act of 2001 or otherwise provided by law.

F. The state budget division shall monitor revenue received by agencies from sources other than the general fund and shall reduce the operating budget of any agency whose revenue from such sources is not meeting projections. The state budget division shall notify the legislative finance committee of any operating budget reduced pursuant to this subsection.

G. Except as otherwise specifically stated in the General Appropriation Act of 2001, appropriations are made in that act for the expenditures of agencies and for other purposes as required by existing law for fiscal year 2002. If any other act of the first session of the forty-fifth legislature changes existing law with regard to the name or responsibilities of an agency or the name or purpose of a fund or distribution, the appropriation made in the General Appropriation Act of 2001 shall be transferred from the agency, fund or distribution to which an appropriation has been made as required by existing law to the appropriate agency, fund or distribution provided by the new law.

[V> H. In August, October, December and May of fiscal year 2002, the department of finance and administration, in consultation with the staff of the legislative finance committee and other agencies, shall prepare and present revenue estimates to the legislative finance committee. If these revenue estimates indicate that revenues and transfers to the general fund, excluding transfers to the general fund operating reserve, the appropriation contingency fund or the state-support reserve fund, as of the end of fiscal year 2002, are not expected to meet appropriations from the general fund, then the department shall present a plan to the legislative finance committee that outlines the methods by which the administration proposes to address the deficit. <V]

I. Pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, agencies whose revenue from unforeseen federal funds, from state board of finance loans, from revenue appropriated by other acts of the legislature, or from gifts, grants, donations, bequests, insurance settlements, refunds, or payments into revolving funds which exceed specifically appropriated amounts, may request budget increases from the state budget division. If approved by the state budget division, such money is appropriated. In approving a budget increase from unforeseen federal funds, the director of the state budget division shall advise the legislative finance committee as to the source of the federal funds and the source and amount of any matching funds required.

[V> J. For fiscal year 2002, the number of permanent and term full-time equivalent positions specified for each agency shows the maximum number of employees intended by the legislature for that agency, unless another provision of the General Appropriation Act of 2001 or another act of the first session of the forty-fifth legislature provides for additional employees. <V]

[V> K. Except for gasoline credit cards used solely for operation of official vehicles and telephone credit cards used solely for official business, none of the appropriations contained in the General Appropriation Act of 2001 may be expended for payment of credit card invoices. <V]

L. To prevent unnecessary spending, expenditures from the General Appropriation Act of 2001 for gasoline for state-owned vehicles at public gasoline service stations shall be made only for self-service gasoline; provided that a state agency head may provide exceptions from the requirement to accommodate disabled persons or for other reasons the public interest may require.

M. When approving operating budgets based on appropriations in the General Appropriation Act of 2001, the state budget division is specifically authorized to approve only those budgets that are in accordance with generally accepted accounting principles for the purpose of properly classifying other financing sources and uses, including interfund, intrafund and interagency transfers.

[V> N. No money appropriated in the General Appropriation Act of 2001 shall be used to promote the legalization or decriminalization of controlled substances. <V]

Item

Performance Measures:

(a) Quality: Number of unprocessed DNA cases 125

(b) Quality: Number of unprocessed firearms cases 100

(c) Efficiency: Number of DNA cases analyzed per FTE 50

(d) Efficiency: Number of firearms cases analyzed per FTE 72

(e) Quality: Percent of misconduct cases processed within timelines 90%

(f) Efficiency: Percent difference in number of arrest records with a final disposition compared to the baseline number 20%

(3) Information technology:

The purpose of the information technology program is to ensure access to information by its customers and to provide reliable and timely information technology services to agency programs and law enforcement and other governmental agencies in their commitment to build a safer, stronger New Mexico.

NEW YORK

CRIMINAL PROCEDURE LAW
PART TWO. THE PRINCIPAL PROCEEDINGS
TITLE M. PROCEEDINGS AFTER JUDGMENT
ARTICLE 440. POST-JUDGMENT MOTIONS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

NY CLS CPL § 440.30 (2001)
§ 440.30. Motion to vacate judgment and to set aside sentence; procedure

1. A motion to vacate a judgment pursuant to section 440.10 and a motion to set aside a sentence pursuant to section 440.20 must be made in writing and upon reasonable notice to the people. Upon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment or sentence. If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact.

1-a. In cases of convictions occurring before January first, nineteen hundred ninety-six, 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 judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, 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.

2. If it appears by conceded or uncontradicted allegations of the moving papers or of the answer, or by unquestionable documentary proof, that there are circumstances which require denial thereof pursuant to subdivision two of section 440.10 or subdivision two of section 440.20, the court must summarily deny the motion. If it appears that there are circumstances authorizing, though not requiring, denial thereof pursuant to subdivision three of section 440.10 or subdivision three of section 440.20, the court may in its discretion either (a) summarily deny the motion, or (b) proceed to consider the merits thereof.

3. Upon considering the merits of the motion, the court must grant it without conducting a hearing and vacate the judgment or set aside the sentence, as the case may be, if:

(a) The moving papers allege a ground constituting legal basis for the motion; and

(b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations thereof; and

(c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.

4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:

(a) The moving papers do not allege any ground constituting legal basis for the motion; or

(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or

(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof; or

(d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

5. If the court does not determine the motion pursuant to subdivisions two, three or four, it must conduct a hearing and make findings of fact essential to the determination thereof. The defendant has a right to be present at such hearing but may waive such right in writing. If he does not so waive it and if he is confined in a prison or other institution of this state, the court must cause him to be produced at such hearing.

6. At such a hearing, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

7. Regardless of whether a hearing was conducted, the court, upon determining the motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination.

HISTORY:
Add, L 1970, ch 996, § 1, eff Sept 1, 1971.
Sub 1-a, add, L 1994, ch 737, § 2, eff Aug 2, 1994 (see 1994 note below).

NOTES:

COMMISSION STAFF NOTES:
This section provides procedural rules for the conduct and determination of the indicated motions; this the Criminal Code fails to do with respect to coram nobis and other currently prevailing post-judgment motions.
In essence, the proposed section requires defense papers asserting legal basis for the particular motion and containing sworn factual allegations supporting the grounds urged (subd 1); demands or permits summary denial where such is required or authorized by the substantive provisions (§§ 440.10, 440.20) or where the motion papers do not state legal grounds for relief or do not conform to the indicated requirements (subds. 2, 4); and, otherwise, mandates the court to conduct a hearing for the purpose of making findings of fact essential to the determination (subd 5), placing upon the defendant the burden of proving every essential fact "by a preponderance of the evidence" (subd 6).

1970 COMMENT
CPL § 440.30 deals with the procedure applicable to a post-judgment motion. Subdivision four thereof sets forth those circumstances under which the court may deny the motion without a hearing. The 1969 study bill provided for three standards; the 1970 bill adds a fourth (§ 440.30[4d]). This addition reflects a currently recognized criterion in both the state and federal courts for the denial, without a hearing, of a post-judgment motion. See, e.g., People v White, 1956, 309 NY 636, 640-641, Machibroda v United States, 1962, 368 US 487, 495.

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.
Laws, 1999, ch 560, § 9 (b) and (c), eff Dec 1, 1999, provides as follows:
§ 9. This act shall take effect December 1, 1999; provided, further, however, that:
(b) in the case of a motion pursuant to subdivision 1-a of section 440.30 of the criminal procedure law that was determined prior to December 1, 1999, an appeal to the intermediate appellate court may be taken by the filing and service of a notice of appeal on or before September 1, 2000 or thirty days after service upon such party of a copy of the order from which the appeal is taken, whichever is later.
(c) notwithstanding the provisions of any other law, if there shall be a case involving a motion pursuant to subdivision 1-a of section 440.30 of the criminal procedure law determined prior to December 1, 1999 that was appealed to an intermediate appellate court and such appeal was determined by such intermediate appellate court prior to May 1, 2000, an application for a certificate granting leave to appeal to the court of appeals from such determination of the intermediate appellate court in such case may be filed on or before September 1, 2000 or thirty days after service upon such party of a copy of the order sought to be appealed, whichever is later (Add, L 2000, ch 8, § 2, eff March 6, 2000, deemed eff Dec 1, 1999.).

FEDERAL ASPECTS:
When defendant's presence required, USCS Federal Rules of Criminal Procedure, Rule 43
Service and filing of papers, USCS Federal Rules of Criminal Procedure, Rule 49

RESEARCH REFERENCES AND PRACTICE AIDS:
34 NY Jur 2d, Criminal Law §§ 3046, 3051, 3054, 3101-3107, 3111, 3113, 3114
18 Am Jur 2d, Coram Nobis and Allied Statutory Remedies § 53 et seq
21 Am Jur 2d, Criminal Law §§ 583, 586
56 Am Jur 2d, Motions, Rules, and Orders §§ 9 et seq., 20 et seq., 22 et seq
8 Am Jur Pl & Pr Forms (Rev ed), Criminal Procedure, Forms 493-499
44 Am Jur Trials 459, Representing Criminal Defendants at Sentencing Hearings

ANNOTATIONS:
Power of state court, during same term, to increase severity of lawful sentence--modern status. 26 ALR4th 905
Time limitations in connection with motions for new trial under Rule 33 of Federal Rules of Criminal Procedure. 51 ALR Fed 482
Supreme Court cases determining whether admission of evidence at criminal trial in violation of Federal Constitutional Rule is prejudicial error or harmless error. 31 L Ed 2d 921

TEXTS:
6 New York Criminal Practice (Matthew Bender), Chapter 50, Post-Judgement Motions

CASE NOTES

1. In general
2. Motion to set aside sentence
3. Motion to vacate judgment
4. --Particular cases
5. Other remedies
6. Hearing requirement
7. Report of findings
8. Appellate review

1. In general
Supreme Court lacked statutory power to vacate plea, vacate sentence and restore original charges where, by its mistake, it imposed minimum indeterminate sentence for E felony even though crime to which defendant had pleaded guilty was classified as misdemeanor at time of its commission. Kisloff on behalf of Wilson v Covington (1989) 73 NY2d 445, 541 NYS2d 737, 539 NE2d 565.
The ultimate relief to which a defendant is entitled lies in the court's sound discretion according to the circumstances of each case in which violation of a promise for a particular sentence in exchange for a guilty plea is alleged. People v Nalo (1975, 1st Dept) 47 App Div 2d 613, 365 NYS2d 2.
Judgment which denied petitioner's application for writ of habeas corpus affirmed-upon retrial, petitioner was convicted of first degree rape based on 1976 incident; he now alleges that his conviction emanated from unconstitutional ex post facto application of law in that trial court improperly defined "forcible compulsion" under amended "reasonable resistance" standard, rather than "earnest resistance" standard in effect at time of crime-petitioner's present challenge could readily have been made on direct appeal or pursuant to CPL article 440 but was not; moreover, no substantial constitutional violation warranting departure from traditional orderly procedure is perceived; law in effect at time of crime defined "forcible compulsion" in terms of "earnest resistance", but did not specifically define latter; in 1977, Legislature defined earnest resistance as resistance of type reasonably to be expected from person who genuinely refuses to participate in illegal act; upon retrial, trial court charged statutory definition of "forcible compulsion" and explained "earnest resistance" in terms of 1977 definition, specifically rejecting "utmost resistance" interpretation; this charge was not ex post facto application of reduced evidentiary standard, but proper interpretation of "earnest resistance" as governed by existing case law; given knifepoint attack, alternative definition of forcible compulsion as express threat creating fear of immediate death or serious physical injury was readily satisfied. People ex rel. Best v Kuhlmann (1989, 3d Dept) 151 App Div 2d 937, 543 NYS2d 212.
Defendant's claim that court improperly accepted his guilty plea was unpreserved for appellate review where he failed to move either to withdraw plea or vacate judgment, and case did not fall within narrow exception to preservation requirement.People v Pink (1999, 1st Dept) 265 AD2d 191, 696 NYS2d 676, app den 94 NY2d 865, 704 NYS2d 541, 725 NE2d 1103.
Defendants charged with assault on off duty policeman were not entitled to discovery of officer's personnel folder in absence of some showing that alleged prior pugnacious conduct and prejudice against Puerto Rican people had some bearing on present guilt or innocence. People v Torres (1973) 77 Misc 2d 13, 352 NYS2d 101.
Application of defendant for order directing district attorney to permit defense inspection of personnel folder of New York City police officer who was also complaining witness should contain sworn allegations of fact based on personal knowledge of defendant or other persons or if upon information and belief state the sources for such information and the ground for such belief. People v Torres (1973) 77 Misc 2d 13, 352 NYS2d 101.
Where defendant knew of alleged illegal experiment conducted by jury after verdict and prior to sentence, but failed to move to set aside verdict on basis of such experiment and appealed on other grounds, application for postconviction relief on basis of such experiment must be denied as attempt to avoid appellate process. People v Simon (1977) 89 Misc 2d 644, 392 NYS2d 190.
Motion to set aside conviction obtained in violation of defendant's constitutional rights must be made in court in which judgment was rendered. People v Molero (1985) 130 Misc 2d 330, 496 NYS2d 671.
Neither New York State Constitution nor CLS CPL § 210.15(2)(c) mandate appointment of counsel on postconviction motion; however, court has inherent power to assign counsel for indigent defendant on postconviction motion under CLS County § 722 in "proper" case. People v Richardson (1993, Sup) 159 Misc 2d 167, 603 NYS2d 700.
Procedural counterpart of ancient writ of coram nobis (CPL §§ 440.10 and 440.30) is proper way to attack constitutionality of conviction where sentence has been completely served, it will not do to label action "civil rights complaint" in order to avoid trial court's denial of coram nobis petition whether or not such petition is based on alleged deprivation of constitutional rights. Bohn v New York (1979, SD NY) 467 F Supp 27.

2. Motion to set aside sentence
In prosecution for third degree sale of controlled substance, defendant was not entitled to third resentencing where first resentencing was based on court's misapprehension regarding its discretion under CLS Penal § 70.25(4) to impose concurrent sentences, second resentencing was based on prosecution's timely motion under CLS CPL § 440.40(1) to vacate sentence that was lower than minimum authorized by law, defendant thus ultimately received minimum sentence authorized by law, and his ultimate sentence was less than that originally promised in plea agreement.People v Yant (1998, 2d Dept) 251 AD2d 435, 674 NYS2d 698, app den 92 NY2d 952, 681 NYS2d 482, 704 NE2d 235.
Motion to set aside a 1-day-to-life sentence on grounds that defendant was not receiving treatment contemplated by such sentence following his conviction of raping 3-year-old girl was granted where it was apparent that Department of Correctional Services had no intention of fulfilling its obligation to initiate the proper rehabilitative services. People v Hutchings (1973) 74 Misc 2d 914, 347 NYS2d 268.
On motion to vacate judgment and sentence pursuant to CLS CPL Art 440 on ground that defendant was sentenced as predicate felony offender and that one of his 2 prior felony convictions had been reversed after sentence was imposed, defendant was not precluded by CLS CPL § 440.20 from raising issue since reversal occurred recently and, as result, issue was not considered on defendant's appeal from judgment in case. On motion to vacate judgment and sentence pursuant to CLS CPL Art 440 on ground that defendant was sentenced as predicate felony offender and that one of his 2 prior felony convictions had been reversed after sentence was imposed, court was powerless to reduce sentence since felony conviction on which defendant was arraigned as predicate felony offender was not conviction that was reversed, and therefore sentence imposed was in accordance with law as required by CLS CPL § 430.10; however, court would appoint counsel to represent defendant in application to Appellate Division for reduction of sentence since existence of second felony conviction probably affected determination that sentence was neither harsh nor excessive. People v Taveras (1993, Sup) 158 Misc 2d 358, 601 NYS2d 256.

3. Motion to vacate judgment
On a "Montgomery" claim, the defendant essentially seeks an extension of time for taking an appeal via resentencing rather than a vacatur of his conviction. People v Corso (1976) 40 NY2d 578, 388 NYS2d 886, 357 NE2d 357.
Where defendant alleges an off-the-record sentence promise, or a misunderstanding on his part at the time of sentencing as to the date of his release, the proper vehicle for relief is a motion to vacate the judgment, not an appeal from the underlying judgment or sentence. People v Wetmore (1976, 2d Dept) 51 App Div 2d 591, 379 NYS2d 114.
Court properly denied defendant's motion to vacate judgment under CLS CPL § 440.10 where (1) documentation did not support contention that prosecutor knowingly allowed false testimony, or that judgment was procured by duress, misrepresentation, or fraud on prosecutor's part, and (2) defendant failed to present affidavit supporting his contentions as required by CLS CPL § 440.30. People v Portalatin (1987, 2d Dept) 132 App Div 2d 581, 517 NYS2d 301, app den (1987) 70 NY2d 716, 519 NYS2d 1052, 513 NE2d 1320, habeas corpus proceeding (1989, ED NY) 1989 US Dist LEXIS 10325.
Defendant did not waive his right to make motion to vacate judgment under CLS CPL § 440.10 on ground that he was denied effective assistance of counsel where he pleaded guilty and, as part of plea agreement, was required to withdraw all motions made or that could have been made, and to waive all other rights and remedies including his right to appeal. People v St. John (1990, 3d Dept) 163 App Div 2d 687, 558 NYS2d 294, app den (1990) 76 NY2d 944, 563 NYS2d 73, 564 NE2d 683.
People's delay, if any, in serving and filing response did not entitle defendant to have his motion to vacate judgment of conviction granted on default.People v Russell (1997, 1st Dept) 235 AD2d 364, 652 NYS2d 977, app den 89 NY2d 1040, 659 NYS2d 871, 681 NE2d 1318.
In postconviction motion under CLS CPL Art 440 based on deprivation of Rosario materials at trial, harmless error analysis to determine whether there was reasonable possibility that failure to disclose contributed to guilty verdict does not require application of subjective test for actual prejudice, whereby former jurors would be asked whether nondisclosed material might have changed verdict; instead, court must make detached and reasoned assessment of case against defendant as it went to jury in light of nondisclosed material. People v Bianco (1992, Sup) 153 Misc 2d 509, 582 NYS2d 622, revd, motion den (1992, 4th Dept) 183 App Div 2d 284, 591 NYS2d 287, app den (1993) 81 NY2d 785, 594 NYS2d 731, 610 NE2d 404.
United States Constitution does not require that court assign counsel to defendant to assist her in proceeding under CLS CPL § 440.10 since such proceeding is collateral proceeding. People v Richardson (1993, Sup) 159 Misc 2d 167, 603 NYS2d 700.

4. --Particular cases
Appropriate procedure for defendant to establish denial or impairment of his right to counsel was a motion to vacate the judgment in the nature of coram nobis; such motion would include the submission of affidavits and perhaps entail a hearing, thereby providing a proper record whereas there was none at all now except as to the actual trial. People v Skrynski (1977) 42 NY2d 218, 397 NYS2d 707, 366 NE2d 797.
Where postjudgment motion is made under CLS CPL § 440.10, hearing to develop additional background facts is not invariably necessary; therefore, no hearing was required on motion to vacate or reargue murder conviction on ground of ineffective assistance of counsel because decision could be reached based on trial record and defendant's submissions. People v Satterfield (1985) 66 NY2d 796, 497 NYS2d 903, 488 NE2d 834.
Defendant who was sentenced as a multiple felony offender on the basis of a prior felony conviction in New Mexico could properly challenge the constitutionality of the prior New Mexico conviction in proceeding on defendant's motion to vacate a judgment of conviction, and his sworn allegations relating to being informed of right of counsel entitled him to a hearing on such issues unless the record submitted conclusively demonstrates the falsity of such allegations and that there is no reasonable probability that the averments are true. People v West (1973, 3d Dept) 41 App Div 2d 987, 343 NYS2d 970.
Motions for summary reversal of convictions would be denied without prejudice to renew, where parties did not furnish information relative to date of indictment, length of trial or date of plea, when defendants were sentenced, when notice of appeal was filed, date defense counsel requested minutes of trial, whether defendants were out on bail, probation or parole or serving sentences, state of completion of transcript and reasons why full transcript was not available. People v Allen (1975, 4th Dept) 47 App Div 2d 999, 367 NYS2d 364.
Where defendant knew at the time of sentencing that he was suffering from multiple sclerosis and did not bring that fact to the attention of his attorney or the sentencing court and did not bring that fact to the attention of the court on appeal, trial court should not, following affirmance by the Appellate Division, have granted motion to vacate the sentence. Hennessy v Cunningham (1977, 4th Dept) 57 App Div 2d 298, 395 NYS2d 320.
Defendants convicted of murder were not entitled to a vacation of their convictions, where the prosecution failed to reveal at trial a statement by a police officer to a key prosecution witness that his testimony was a condition of probation, and where the prosecution refused to request that the witness be granted immunity so that he could testify as to whether his testimony at trial, or his later recantation of that testimony, was true. People v Osorio (1982, 1st Dept) 86 App Div 2d 233, 449 NYS2d 968, app dismd (1982) 57 NY2d 671, 454 NYS2d 77, 439 NE2d 886, habeas corpus dismissed (1992, SD NY) 1992 US Dist LEXIS 3132 and habeas corpus proceeding (1988, SD NY) 679 F Supp 384.
New trial was not required by trial court's failure to comply fully with jury's request to reread certain testimony where jury's request was ambiguous, court responded in "meaningful way," extensive portions of testimony were read back, jury expressed its satisfaction with reread testimony, and evidence of guilt was overwhelming. People v York (1987, 2d Dept) 133 App Div 2d 130, 518 NYS2d 665, app den (1987) 70 NY2d 932, 524 NYS2d 684, 519 NE2d 630 and app den (1987) 70 NY2d 933, 524 NYS2d 685, 519 NE2d 631 and app den (1987) 70 NY2d 934, 524 NYS2d 686, 519 NE2d 632 and app den (1987) 70 NY2d 939, 524 NYS2d 691, 519 NE2d 637.
Defendant was not entitled to vacatur of conviction on ground that trial counsel allegedly failed to present his desire to testify before grand jury where he merely submitted his own affidavit and that of his appellate counsel, who had no personal knowledge of facts.People v Taylor (1995, 1st Dept) 211 App Div 2d 603, 621 NYS2d 877, app den (1995) 85 NY2d 981, 629 NYS2d 741, 653 NE2d 637.
Defendant was not entitled to vacatur of second degree murder conviction based on prosecutor's failure to provide his trial attorney with investigator's notes, on ground that notes, which indicated that pathologist initially concluded that time of death was "not more than 24 hours" before body was discovered, could have been used to refute pathologist's trial testimony that death occurred 5 hours between 19 and 30 hours before body was found, as it was unlikely that availability of notes would have made any difference in verdict, given thoroughness and vigor or defense counsel's cross-examination of pathologist, which enabled him to substantially discredit doctor's testing as to time of death.People v De Oliveira (1996, 3d Dept) 223 AD2d 766, 636 NYS2d 441, app den 88 NY2d 1020, 651 NYS2d 19, 673 NE2d 1246.
Defendant was not entitled to vacatur of murder conviction on basis that 2 police witnesses had since been indicted or convicted of perjury or evidence tampering in unrelated matters, where there was no claim that any evidence was fabricated in defendant's case, nor did People's case rest significantly on testimony provided by police witnesses in question.People v De Oliveira (1996, 3d Dept) 223 AD2d 766, 636 NYS2d 441, app den 88 NY2d 1020, 651 NYS2d 19, 673 NE2d 1246.
Court should have granted defendant's motion to vacate judgment of conviction where he alleged legal basis for motion supported by sworn allegations of fact which were conceded by People to be true.People v Petrocelli (1996, 2d Dept) 232 AD2d 661, 648 NYS2d 992.
Defendant was not denied his right to hearing on his motion to vacate judgment, despite his contention that prosecution wrongfully refused to grant immunity to witness who had provided statement recanting his trial testimony, since there was no proof that District Attorney's chief investigator threatened to prosecute witness for perjury if he testified at hearing on CLS CPL Article 440 motion, and court had sound basis for disbelieving witness' recanted statement.People v Donahue (1997, 3d Dept) 235 AD2d 954, 653 NYS2d 968, app den 89 NY2d 1011, 658 NYS2d 249, 680 NE2d 623.
Defendant failed to prove, by preponderance of evidence under CLS CPL § 440.30(6), that improper ex parte communication took place, in violation of CLS CPL § 310.10, where even assuming that juror told court officer that jury was intimidated by spectators, this conversation was not improper delegation of judicial function, because court officer, by relating message to court, was performing ministerial act and did not attempt to convey any legal instructions to jury or to instruct jurors in their duties.People v Daughtry (1997, 2d Dept) 242 AD2d 731, 664 NYS2d 306, app den 91 NY2d 871, 668 NYS2d 569, 691 NE2d 641.
In prosecution for first degree rape and related crimes, postconviction DNA tests would not have probably resulted in more favorable verdict for defendant where fact that defendant was not source of semen was consistent with victim's testimony that she had intercourse with her boyfriend shortly before rape and that she did not know whether defendant ejaculated, evidence of guilt was overwhelming, and there was no claim of mistaken identity.People v Smith (1997, 1st Dept) 245 AD2d 79, 665 NYS2d 648, app den 92 NY2d 861, 677 NYS2d 92, 699 NE2d 452, habeas corpus proceeding, application den (SD NY) 1999 US Dist LEXIS 5431, magistrate's recommendation, habeas corpus proceeding (SD NY) 1999 US Dist LEXIS 17749.
In prosecution for first degree rape and related crimes, in which defendant moved to vacate his conviction ground that postconviction DNA tests showed that he was not source of semen, court properly applied high standard applicable to newly discovered evidence--that is, probability of affecting verdict.People v Smith (1997, 1st Dept) 245 AD2d 79, 665 NYS2d 648, app den 92 NY2d 861, 677 NYS2d 92, 699 NE2d 452, habeas corpus proceeding, application den (SD NY) 1999 US Dist LEXIS 5431, magistrate's recommendation, habeas corpus proceeding (SD NY) 1999 US Dist LEXIS 17749.
In prosecution for first degree rape and related crimes, in which defendant claimed that he was not source of semen, court's decision to order postconviction DNA test under CLS CPL § 440.30(1-a) did not necessarily require it to grant motion to vacate judgment under CLS CPL § 440.10(1)(g) on receipt of test result favorable to defendant.People v Smith (1997, 1st Dept) 245 AD2d 79, 665 NYS2d 648, app den 92 NY2d 861, 677 NYS2d 92, 699 NE2d 452, habeas corpus proceeding, application den (SD NY) 1999 US Dist LEXIS 5431, magistrate's recommendation, habeas corpus proceeding (SD NY) 1999 US Dist LEXIS 17749.
Where defense, after verdict and prior to sentence, knew of alleged illegal experiment conducted in jury room, but failed to move to set aside verdict and elected to appeal on other grounds, application for postconviction relief based on experiment must be denied under statute providing that court may deny motion to vacate judgment when, although facts in support of ground or issue raised upon motion could with due diligence by defendant have been readily made to appear on record in manner providing adequate basis for review upon appeal from judgment, defendant unjustifiably failed to adduce such matter prior to sentence and ground or issue was not subsequently determined upon appeal. People v Simon (1977) 89 Misc 2d 644, 392 NYS2d 190.
Postconviction claim of newly discovered evidence may be raised only in context of conviction after trial; thus, by pleading guilty, defendant admitted his factual guilt and waived his right to confront his accusers, and he could not seek to defend himself against those accusers by motion under CLS CPLR § 440.10 based on newly discovered evidence.People v Jackson (1994, Co Ct) 163 Misc 2d 224.

5. Other remedies
Until proper statutory remedy is enacted, vehicle for claiming ineffectiveness of appellate counsel is writ of error coram nobis, and proper venue for such writ is appellate tribunal where allegedly deficient representation occurred. People v Bachert (1987) 69 NY2d 593, 516 NYS2d 623, 509 NE2d 318, on remand (1987, 3d Dept) 133 App Div 2d 482, 519 NYS2d 277, app dismd without op (1987) 70 NY2d 797, 522 NYS2d 115, 516 NE2d 1228.
There is no authority for initiating writ of error coram nobis in Court of Appeals. People v Claudio (1991) 77 NY2d 988, 571 NYS2d 899, 575 NE2d 385, habeas corpus proceeding (1992, ED NY) 791 F Supp 985, revd, remanded (1992, CA2 NY) 982 F2d 798, cert den (1993) 508 US 912, 124 L Ed 2d 256, 113 S Ct 2347 and reinstated (1994, ED NY) 841 F Supp 85.
Habeas corpus does not lie when petitioner has more appropriate remedy, such as coram nobis. People ex rel. Cordero v Metz (1977, 3d Dept) 58 App Div 2d 938, 397 NYS2d 424.
Habeas corpus was not proper remedy for attacking judgment of conviction, but petitioner should have brought postconviction proceeding in county where he was convicted. People ex rel. Russell v Le Fevre (1977, 3d Dept) 59 App Div 2d 588, 397 NYS2d 27.
Inmate's application for writ of habeas corpus was properly dismissed where (1) he raised no issues which were not advanced and disposed of in prior application in which he claimed that his conviction for various crimes was obtained in violation of constitutional double jeopardy principles, (2) prior application had been properly denied due both to failure to set forth whether inmate had appealed his conviction and to availability of CLS CPL Art 440 relief, and (3) appeal was pending; fact that inmate could have put forward his double jeopardy argument on appeal, and might do so yet by way of Article 440 proceeding, rendered habeas corpus relief inappropriate. People ex rel. Webb v Leonardo (1988, 3d Dept) 136 App Div 2d 840, 523 NYS2d 683.
Inmate was not entitled to habeas corpus relief where issues raised--grand jury propriety, sentence fairness, counsel adequacy, witness competency, and evidence admissibility--could have been raised on direct appeal or on motion under CLS CPL Art 440. People ex rel. Lamberty v Kuhlmann (1990, 3d Dept) 165 App Div 2d 922, 560 NYS2d 532.
Court properly denied motion to vacate second degree murder conviction and order DNA testing under CLS CPL § 440.30(1-a) on ground that DNA testing would not be probative even if it excluded defendant as depositor of semen found on victim, where conviction was based, inter alia, on evidence that victim left defendant's presence at 1:00 a.m., drove to her boyfriend's apartment at 4:00 a.m. but was rebuffed, and was killed at about 5:00 a.m.; even if another man's semen was found, it could not be determined whether it was deposited before or after 4:00 a.m. (as defendant contended).People v De Oliveira (1996, 3d Dept) 223 AD2d 766, 636 NYS2d 441, app den 88 NY2d 1020, 651 NYS2d 19, 673 NE2d 1246.
Defendant was not entitled to DNA testing under CLS CPL § 440.30(1-a) because it was improbable that results of DNA testing would have any effect on his second degree murder conviction, where it was undisputed that victim was sexually active at about time of her murder, there was no evidence that killing was part of sexual encounter, and there was no critical testimony that could be seriously impeached by test results.People v De Oliveira (1996, 3d Dept) 223 AD2d 766, 636 NYS2d 441, app den 88 NY2d 1020, 651 NYS2d 19, 673 NE2d 1246.
Court would grant defendant's motion to compel district attorney to permit defendant to subject physical evidence held by district attorney's office to DNA and other forensic analysis by defendant's expert; CLS CPL § 440.30(1-a) does not limit defendant's right to attempt to demonstrate his actual innocence through performance of tests made at his own expense, and while any motion to vacate judgment of conviction might not ultimately succeed, defendant should not be denied opportunity to undertake scientific analysis of such evidence as might be available from district attorney's office for purpose of advancing his cause.People v Chichester (1994, Co Ct) 162 Misc 2d 658, 618 NYS2d 201.
Defendant, who was convicted of first degree rape and related crimes in 1986 when DNA testing was not available, was not entitled to order under CLS CPL § 440.30(1-a) directing DNA testing of genetic material obtained in connection with his case, as it was unlikely that verdict would have been more favorable to him where jury reasonably rejected his assertion that victim fabricated entire incident, and mistaken identity was not possible inasmuch as he and victim had been acquainted for years.People v Tookes (1996, Sup) 167 Misc 2d 601, 639 NYS2d 913.
Defendant, who was convicted of rape and related crimes in 1986 when DNA testing was not available, was not entitled to order under CLS CPL § 440.30(1-a) directing DNA testing of genetic material obtained in connection with his case, as it was unlikely that verdict would have been more favorable to him even if DNA tests excluded him as source of sperm recovered, in view of sperm's indeterminate age and equivocal results of blood and saliva tests, including defendant's decision not to pursue then-available enzyme analysis.People v Tookes (1996, Sup) 167 Misc 2d 601, 639 NYS2d 913.
It was not error to deny motion for writ of error coram nobis based on claim that detective testifying as prosecution witness had committed perjury where his answer to question as to whether he had been successful in locating a particular witness, who he in fact knew had been murdered, was not perjurous. United States ex rel. Conomos v La Vallee (1973, SD NY) 363 F Supp 994.

6. Hearing requirement
Where defendant sought postconviction relief in nature of coram nobis on basis of an inconsistent off-the-record promise by a deceased judge, court, in refusing to order a hearing, properly exercised its discretion by impliedly finding that, under all the circumstances attending the case, there was no reasonable possibility that such allegation was true. People v Selikoff (1974) 35 NY2d 227, 360 NYS2d 623, 318 NE2d 784, cert den (1975) 419 US 1122, 42 L Ed 2d 822, 95 S Ct 806.
Nonrecord facts can be material on motion to vacate judgment of conviction on ground that defendant was denied effective assistance of counsel, and vacatur of judgment may be justified on basis of such facts; accordingly, it was error to deny motion to vacate judgment without hearing where defendant submitted personal affidavit setting forth facts which did not appear in record on her direct appeal, and which supported her contention that she had been denied effective assistance of counsel. People v Ferreras (1987) 70 NY2d 630, 518 NYS2d 780, 512 NE2d 301.
Supreme Court was not authorized under CLS CPL § 440.30 to deny, without hearing, defendant's motion to vacate judgment on ground that Brady material was not disclosed where (1) material consisted of police informant's affidavit averring that crucial prosecution witness had been induced to falsely accuse defendant of murder, (2) informant's allegations were neither "conclusively refuted by unquestionable documentary proof," nor "contradicted by a court record or other official document, or...made solely by the defendant and...unsupported by any other affidavit or evidence," and (3) there were no other circumstances establishing that there was "no reasonable possibility" that informant's allegations were true.People v Baxley (1994) 84 NY2d 208, 616 NYS2d 7, 639 NE2d 746, reconsideration dismd (1995) 86 NY2d 886, 635 NYS2d 952, 659 NE2d 775.
Four city officials were properly held in civil contempt for city's failure to obey court orders forbidding overnight housing of homeless families at city welfare offices where finding of contempt against city was well supported on record, individual officials were sufficiently aware of prior orders, prior contempt proceedings and unauthorized use of welfare offices for such housing, and officials were specifically responsible for fulfilling city's obligations to take appropriate steps to comply with orders.McCain v Dinkins (1994) 84 NY2d 216, 616 NYS2d 335, 639 NE2d 1132, motion den (1994) 84 NY2d 846, 617 NYS2d 132, 641 NE2d 152.
Allegations of defendant of an unkept promise with respect to sentence entitled him to a hearing, unless they are refuted conclusively by the record or are incredible as a matter of law, where defendant alleged that he was induced to plead guilty by a promise of the District Attorney and the court communicated to him by his attorney that he would receive a maximum sentence of one year to run concurrently with a sentence then being served and in fact he was sentenced to an indeterminate sentence of 0 to 3 years, he was entitled to a hearing before a judge other than the one who presided at the guilty pleading and sentencing, as the record did not conclusively refute defendant's claim of an unkept promise and it could not be said that his claims were incredible as a matter of law. People v Weintraub (1973, 2d Dept) 41 App Div 2d 660, 340 NYS2d 675.
Where court ultimately imposed a more severe sentence on defendant's plea of guilty than that which defendant claimed he was promised and defense counsel quickly protested that prior agreement had been violated, defendant's allegations presented serious questions of fact which could be resolved only after a hearing to determine whether judgment should be vacated. Hearing on motion to vacate judgment was required to be held before a justice other than justice who allegedly made promise as to sentence upon guilty plea and who was a potential witness. People v Melendez (1975, 2d Dept) 47 App Div 2d 662, 364 NYS2d 196.
A defendant convicted of assault in the first degree in connection with the shooting of a grocer is entitled to a hearing on his postjudgment motion to vacate his conviction in order to determine exactly what had been said by a defense witness in the presence of the police and an Assistant District Attorney about his involvement in or knowledge of a robbery of a grocery store and the shooting of a grocer about the same time and on the same street as the assault the defendant was convicted of, where the witness had declined to testify at defendant's trial, and where there was other evidence at the defendant's trial that the witness had been involved in such a robbery and shooting; defendant's claim has not been conclusively refuted by the papers and the facts require a searching investigation to determine whether newly discovered evidence exists and whether a proper disclosure of exculpatory material was made to defendant. People v Ausserau (1980, 4th Dept) 77 App Div 2d 152, 432 NYS2d 940.
Defendant, who pleaded guilty to killing his former wife while under the influence of extreme emotional disturbance and was convicted of manslaughter in the first degree, was entitled to a hearing on his motion to vacate the judgment based on his claim that he was incapable of understanding or participating in the proceedings due to mental disease or defect where less than two months after judgment defendant was diagnosed as suffering psychosis associated with brain trauma. People v Fixter (1980, 4th Dept) 79 App Div 2d 861, 434 NYS2d 484.
A hearing should have been held to determine the validity of defendant's allegations in his motion pursuant to CPL § 440.10 to vacate the judgment convicting him of attempted criminal sale of a controlled substance, in which defendant contended that his guilty plea was not entered voluntarily but resulted from coercion and the denial of his right to effective assistance of counsel, where his then assigned attorney had advised him that no-one had been acquitted of drug charges in Albany County, that he would receive a sentence of 25 years to life if convicted after trial, that even if acquitted the District Attorney would seek to indict him on another drug charge, and that he had to decide immediately whether to accept a plea agreement, and where these contentions were supported by sworn allegations, upon information and belief, by defendant's current attorney, who stated the sources of his information on the grounds of his belief. People v Welch (1985, 3d Dept) 108 App Div 2d 1020, 485 NYS2d 590.
Defendant was not entitled to hearing on postverdict motion to ascertain whether victim's mother had spoken to jurors at dinner during break in their deliberations where motion was supported only by affidavit of individual who had not been present and merely speculated on "information and belief" that such contact had taken place, and by affidavit of defendant's sister who stated that unnamed waitress had told her that woman fitting description of victim's mother had been present in restaurant, whereas People produced affidavit of court officer who had been present with jury and stated unequivocally that no such contact had occurred. People v Word (1986, 2d Dept) 122 App Div 2d 182, 504 NYS2d 718, app den (1986) 68 NY2d 818.
Defendant was entitled to hearing on motion to vacate conviction for possession of controlled substance where motion was based on prosecution's failure to turn over to defendant exculpatory police report stating that cocaine was recovered from defendant's companion rather than defendant, and it could not be determined in absence of hearing whether such report represented inadvertent misstatement caused by special agent's misreading of arresting officer's report, or represented personal observation made by special agent or some other officer who was present at arrest. People v Porter (1987, 1st Dept) 128 App Div 2d 248, 516 NYS2d 201 (disapproved as stated in People v Ramos (1990) 147 Misc 2d 672, 558 NYS2d 800).
It was error to deny motion for vacatur of judgment on ground of ineffective assistance of counsel based on premise that adequate basis for review was afforded by record on appeal where defendant asserted that his attorney engaged in improper and prejudicial conduct off record. People v Hauver (1987, 3d Dept) 129 App Div 2d 889, 514 NYS2d 814.
Court erroneously denied defendant's motion to vacate judgment without hearing where his allegations raised triable issue regarding effectiveness of his attorney, including assertion that defense counsel simply negotiated plea bargain and "coerced" defendant to accept it even though defendant informed counsel that he used to live in house he was charged with breaking into, that certain items he was charged with removing did not belong to complainant, and that other items were not of sufficient value to amount to grand larceny. People v Cramer (1987, 3d Dept) 133 App Div 2d 880, 520 NYS2d 239, app den (1988) 70 NY2d 1005, 526 NYS2d 940, 521 NE2d 1083.
Court properly denied, without hearing, defendant's posttrial motion to vacate judgment, despite contention that newly discovered evidence existed, where evidence consisted only of witness' incarceration and her alleged receipt of favorable treatment in return for testimony against defendant, which was not newly discovered; evidence would have merely impeached witness and was not likely to lead to different result. People v Miles (1988, 4th Dept) 136 App Div 2d 958, 525 NYS2d 96, later proceeding (1988, 4th Dept) 136 App Div 2d 959, 525 NYS2d 594, app den (1988) 71 NY2d 971, 529 NYS2d 82, 524 NE2d 436 and app den (1988) 71 NY2d 971, 529 NYS2d 82, 524 NE2d 436, subsequent civil proceeding (1993, WD NY) 1993 US Dist LEXIS 11943.
It was error to deny defendant's motion to vacate judgment of conviction without hearing where defense counsel's affirmation in support of motion alleged that codefendant had, in fact, been source of information which led to defendant's arrest and that codefendant's identity as informant was known to prosecutor and purposely withheld from defendant; such allegation was sufficient to warrant hearing. People v Castro (1989, 1st Dept) 147 App Div 2d 410, 538 NYS2d 7.
It was not error for court to summarily deny motion to vacate first degree manslaughter conviction on ground that defense counsel failed to adequately prepare defense and used such lack of preparation to coerce defendant into entering plea bargain where (1) defendant's only specific criticism of defense counsel was that he exacerbated agitation of defendant's father by reporting to him that he was unprepared and then used father's ill health as leverage to secure plea, and (2) defendant failed to submit affidavit from father or someone comparably knowledgeable of facts supporting such assertion. People v Ertel (1989, 3d Dept) 147 App Div 2d 728, 537 NYS2d 334, app den (1989) 74 NY2d 739, 545 NYS2d 113, 543 NE2d 756.
Defendant was entitled to hearing on motion to vacate judgment of conviction where he alleged that (1) People withheld evidence that understanding was reached with witness to robbery to testify in exchange for dismissal of indictment charging witness with unrelated robbery, and (2) notes of interview with witness were not turned over to defendant prior to trial; if no arrangement had been made, proof of that fact could readily have been supplied by People on motion. People v Gayle (1989, 1st Dept) 148 App Div 2d 307, 538 NYS2d 525, supp op (1990, 1st Dept) 168 App Div 2d 201, 562 NYS2d 86, app den (1991) 78 NY2d 955, 573 NYS2d 650, 578 NE2d 448 and app den (1992) 79 NY2d 1001, 584 NYS2d 455, 594 NE2d 949 and app den (1992) 80 NY2d 831, 587 NYS2d 915, 600 NE2d 642.
In trial for possession of cocaine found hidden in various areas of car driven by defendant, court erred in denying without evidentiary hearing defendant's unopposed motion to vacate conviction on ground of newly discovered evidence, in form of signed statement from codefendant automobile lessor who had exercised Fifth Amendment right not to testify at trial, indicating that he had hidden virtually all cocaine in car without defendant's knowledge, since (1) affidavit of codefendant who previously exercised right to remain silent may constitute newly discovered evidence, and (2) codefendant's statement was not facially incredible and did not otherwise warrant summary disposition of issue. People v Beach (1992, 3d Dept) 186 App Div 2d 935, 589 NYS2d 626.
Defendant was not entitled to hearing on his motion to vacate judgment of conviction on basis that defense counsel was ineffective in failing to argue that his Alzheimer's disease rendered his guilty plea ineffectual where (1) court had engaged defendant in full colloquy at time of plea, during which defendant stated that he had no mental disability, and (2) at sentencing, defendant stated that his condition did not affect his plea. People v Edison (1993, 3d Dept) 192 App Div 2d 789, 596 NYS2d 493, motion gr (1994, NY) 1994 NY LEXIS 1128 and app den (1994) 83 NY2d 966, 616 NYS2d 19, 639 NE2d 759.
In absence of documents which defendant claimed contained undisclosed Rosario material, some of which were in defendant's possession as result of Freedom of Information Law (FOIL) request, and some of which might have been obtained if defendant had exhausted his administrative remedies under FOIL, defendant failed to raise issue of fact that warranted hearing on his claim that People failed to disclose Rosario material.People v Hurley (1994, 1st Dept) 202 App Div 2d 371, 612 NYS2d 828, app den (1994) 83 NY2d 968, 616 NYS2d 20, 639 NE2d 760.
Defendant was entitled to hearing to address merits of his motion to vacate his conviction on ground that his counsel had met with codefendant prior to entry of defendant's guilty plea and coerced codefendant into accepting plea bargain that required her to make sworn statement implicating defendant, even though defendant had stated, on record, that he had not been coerced into entering plea and that he was satisfied with representation provided by his attorney, since such statements were not alone sufficient to support finding that there was "no reasonable possibility" that defendant's claims were true.People v Shields (1994, 3d Dept) 205 App Div 2d 833, 613 NYS2d 281, app gr (1994) 84 NY2d 910, 621 NYS2d 527, 645 NE2d 1227 and motion gr (1994, NY) 1994 NY LEXIS 4194 and app withdrawn (1995) 85 NY2d 968, 629 NYS2d 728, 653 NE2d 624, appeal after remand, post-conviction proceeding (1996, NY App Div 3rd Dept) 637 NYS2d 523.
It was improper for court to deny, on procedural grounds and without hearing, that branch of defendant's second motion under CLS CPL § 440.10 seeking new Wade hearing based on witness' viewing of photographs 2 or 3 weeks after robbery where defendant had been in position to raise such claim in his first motion and witness had admitted to defendant's investigators that he had been shown such photographs; however, since statements obtained by investigators from witness prior to first CLS CPL § 440.10 hearing did not include any reference to possibility that detective had written something down at time witness viewed photographs, and witness allegedly refused to cooperate with defendant's attorney in his attempt to follow up on investigators' report, defendant was not procedurally barred from raising Rosario and Brady claims in his second CLS CPL § 440.10 motion. Court properly denied, without hearing, that branch of defendant's motion under CLS CPL § 440.10 alleging Brady violation where moving papers set forth only conclusory and unsubstantiated allegations that witness had failed to identify defendant after viewing certain photos and that People failed to disclose such information.People v Lake (1995, 2d Dept) 213 App Div 2d 494, 623 NYS2d 904, app den (1995) 86 NY2d 737, 631 NYS2d 618, 655 NE2d 715.
Court erroneously denied defendant hearing on his motion to vacate judgment under CLS CPL § 440.30(4)(d)(i) and (ii) where there was independent support for his assertion that his guilty plea was induced by erroneous advice allegedly given by his trial counsel on legal question of whether his statutory speedy trial claim would survive his guilty plea; prosecution's bare denial of defendant's allegations was insufficient record on which to summarily decide motion.People v MacKenzie (1996, 1st Dept) 224 AD2d 173, 637 NYS2d 128.
Court properly denied defendant's motion under CLS CPL § 440.10 to vacate judgment of conviction, without hearing, where his assertions in support of motion were purely speculative in nature and were substantiated only by his own self-serving affidavit and that of his wife, who was also his counsel.People v Chevalier (1996, 3d Dept) 226 AD2d 925, 641 NYS2d 433, app den 88 NY2d 934, 647 NYS2d 168.
Court may summarily deny motion to set aside sentence on grounds that it is unauthorized, illegally imposed or otherwise invalid as matter of law where factual allegations of illegality are made solely by defendant and unsupported by any other affidavit or evidence.People v Myers (1997, 3d Dept) 241 AD2d 705, 660 NYS2d 456, app den 91 NY2d 877, 668 NYS2d 575, 691 NE2d 647.
On motion to vacate defendant's murder conviction, where case was remitted for evidentiary hearing to determine whether prosecutorial misconduct had prevented timely disclosure of Brady material, hearing court's error in refusing to permit defense counsel to examine assistant district attorney as hostile witness, and in restricting defendant's questions to those reasonably calculated to elicit direct evidence of statements actually made by prosecution, so severely and impermissibly restricted scope of defendant's inquiry as to constitute denial of due process, warranting new hearing before different judge.People v Bryce (1998, 3d Dept) 246 AD2d 75, 685 NYS2d 808, app gr 92 NY2d 932, 680 NYS2d 473, 703 NE2d 285 and app dismd 92 NY2d 1024, 684 NYS2d 482, 707 NE2d 437.
Defendant's alleged mistreatment immediately following jail uprising, even if established, was too remote in time to have reasonably impacted on voluntariness of guilty plea he entered nearly year later, and thus there was no requirement for hearing under CLS CPL § 440.30(5), especially since his affidavit identified no incident of mistreatment or other coercive conduct during 10 months immediately preceding plea.People v Hanley (1998, 3d Dept) 249 App Div 2d 680, 671 NYS2d 555, app den (1998) 92 NY2d 898, 680 NYS2d 62, 702 NE2d 847.
Defendant's motion to vacate his conviction was properly denied without hearing where sole basis for motion was claim that he received ineffective assistance of counsel by virtue of trial counsel's stipulation to receipt of laboratory report identifying substance sold to investigator as cocaine, alleged "inconsistencies" in laboratory paperwork were easily reconciled and raised no genuine issue as to accuracy of analysis or integrity of chain of custody of evidence, and stipulation was entirely consistent with defense theory that defendant took no part in sale of substance.People v Alexander (1998, 3d Dept) 255 AD2d 708, 681 NYS2d 109, app den 93 NY2d 897, 689 NYS2d 709, 711 NE2d 985.
Alleged newly discovered evidence, consisting of minor contradictions of testimony given in defendant's criminal trial, to be found in depositions subsequently taken in related civil case from complainant and another witness, who did not testify in criminal trial, was not of such character as to create probability that, had it been received at criminal trial, verdict would have been more favorable to defendant; thus, court properly denied, without hearing, defendant's motions to vacate judgment made on that basis.People v Boyd (1998, 1st Dept) 256 AD2d 170, 683 NYS2d 226, app den 93 NY2d 850, 688 NYS2d 498, 710 NE2d 1097.
Court did not improvidently exercise its discretion in failing to grant evidentiary hearing pursuant to CLS CPL § 440.30 based on child's recantation in sex offense case where sufficient basis for deciding motion was provided by written submissions, including detailed affidavit of child and trial record.People v Cassels (1999, 2d Dept) 260 AD2d 392, 687 NYS2d 681, app den 93 NY2d 1043, 697 NYS2d 875, 720 NE2d 95.
Defendant's assertion that plea offer made to his attorney was never communicated to him did not warrant hearing on his motion to vacate judgment where it was not substantiated by any evidence and was contradicted by his attorney and prosecutor; moreover, there was no reasonable possibility that plea bargain would have been offered in case involving brutal and senseless murder with overwhelming evidence of guilt.People v Toal (1999, 2d Dept) 260 AD2d 512, 686 NYS2d 726, app den 94 NY2d 830, 702 NYS2d 601, 724 NE2d 393.
Since jurors' affidavits were not directed at any juror's misconduct within the jury room or any impropriety on the part of any juror, but focused instead on an alleged inadvertent error outside the jury room in the reading of defendant's testimony by court stenographer, and since, under the circumstances, the policy considerations generally applying to the rule that jurors may not impeach their own verdict were outweighed by the possible violation of defendant's constitutional right to a fair trial, a hearing would be ordered to determine (1) whether defendant's testimony was misread and, if it was, the manner and extent thereof, and (2) whether any misreading was material and affected the vote of the jury. People v Johnson (1974) 79 Misc 2d 880, 361 NYS2d 512.
Expert psychiatric opinion testimony on the theory of "learned helplessness", a recently documented theory which explains the psychological paralysis that maintains the victim status of the battered wife, and expert testimony on the prevalence of inaccurate and dangerous myths and stereotypes concerning battered woman allegedly utilized by the prosecutor in his cross-examination of defendant and in his summation, do not constitute newly discovered evidence (CPL 440.10, subd 1, par [g]) sufficient to set aside defendant's second degree murder conviction since the expert testimony would not change the result if a new trial were granted in that the issue of defendant as a battered wife was in evidence and was an issue before the jury for consideration under the charge of the court which included the defense of justification (Penal Law, art 35) and the affirmative defense of extreme emotional disturbance (Penal Law, § 125.25) such affirmative defense representing the psychological boundary available to battered women under New York law; the proposed expert testimony would merely tend to impeach or discredit the prior testimony of numerous witnesses and, as such, is not new evidence as to set aside the judgment of conviction; the alleged prosecutorial misconduct constituted harmless error when considered with all the evidence in the case and any such misconduct is subject to review on appeal; defendant's motion to set aside the verdict is determinable without a full evidentiary hearing in that a hearing is not necessary to resolve any questions of fact. People v Powell (1980) 102 Misc 2d 775, 424 NYS2d 626, affd (1981, 3d Dept) 83 App Div 2d 719, 442 NYS2d 645, appeal after remand (1983, 3d Dept) 96 App Div 2d 610, 464 NYS2d 611.

7. Report of findings
Requirements of CPL 440.30(5) and (7) were not met by statement by court that "the court had held a hearing on the defendant's motion to vacate the judgment of conviction and after hearing the evidence, the motion is denied in all respects." People v Martinez (1972, App Div) 335 NYS2d 708.

8. Appellate review
Appellate Division erred in granting defendant's motion under CLS CPL Art 440 and ordering new trial on ground that contingent fee arrangement had prejudicial impact on counsel's representation where there was no concession by People nor "unquestionable documentary proof" conclusively establishing that counsel's decisions were affected by fee arrangement; Appellate Division should not have granted defendant's motion without remitting for hearing. People v Winkler (1989) 74 NY2d 704, 543 NYS2d 380, 541 NE2d 409, on remand (1989, 2d Dept) 152 App Div 2d 714, 544 NYS2d 494, supp op (1992, 2d Dept) 179 App Div 2d 711, 578 NYS2d 582, later proceeding (1992, NY App Div 2nd Dept) 1992 NY App Div LEXIS 456 and app den (1992) 80 NY2d 840, 587 NYS2d 924, 600 NE2d 651, habeas corpus den (1993, SD NY) 812 F Supp 426, affd (1993, CA2 NY) 7 F3d 304, cert den (1994, US) 128 L Ed 2d 79, 114 S Ct 1407.
Court of Appeals would not review defendant's appeal from summary denial of his motion to vacate conviction on basis of newly discovered evidence where evidence consisted of sworn statements of police informants (friends of defendant) recanting their testimony at his trial, and recantations did not aver that informants' prior statements or testimony against defendant were products of police or prosecutorial misconduct. Defendant's prayer for postjudgment relief under CLS CPL § 440.10(1)(h), alleging that his conviction was procured in violation of his due process right to pretrial disclosure of Brady material, was subject to postjudgment judicial review via writ of error coram nobis before enactment of CLS CPL Art 440, and thus was reviewable by Court of Appeals to determine whether denial of defendant's motion without hearing constituted abuse of discretion as matter of law.People v Baxley (1994) 84 NY2d 208, 616 NYS2d 7, 639 NE2d 746, reconsideration dismd (1995) 86 NY2d 886, 635 NYS2d 952, 659 NE2d 775.
Where record contained factual support for lower courts' findings that no agreement or understanding of obligation to testify against defendant was part of cooperation agreement between district attorney and codefendant, denial of defendant's motion to vacate his convictions under CLS CPL § 440.10 due to alleged Brady violation arising from People's failure to disclose cooperation agreement was beyond Court of Appeals' further review.People v St. John (1997) 89 NY2d 1018, 657 NYS2d 591, 679 NE2d 1071.
New evidentiary matter should be presented to the trial court in which the judgment of conviction was rendered and should not be presented to court on appeal where it is not in the record on appeal. People v Walrath (1976, 3d Dept) 52 App Div 2d 961, 382 NYS2d 844.
Where Appellate Division had previously ruled that defendant's in-court confession during Hamilton County murder trial was not obtained in violation of his rights, issue could not be reviewed again by court through consideration of defendant's claim that murder indictments subsequently lodged against him in Essex and Warren counties should be dismissed because they were based on prior in-court confession which was allegedly obtained in violation of his right to counsel. People v Garrow (1976, 3d Dept) 52 App Div 2d 982, 383 NYS2d 428.
Where, as part of negotiated plea, defendant clearly waives his right to appeal from offered sentence, and sentence is lawful, such waiver will be given effect so long as it is knowing, voluntary and intelligent. People v Harvey (1986, 3d Dept) 124 App Div 2d 943, 508 NYS2d 690 (criticized by People v Bourne (1988, 1st Dept) 139 App Div 2d 210, 531 NYS2d 899).
Defendant's claim that plea allocution was deficient was not preserved for appeal where defendant did not move to withdraw his guilty plea prior to imposition of sentence for second degree murder; his subsequent motion to vacate judgment would not preserve such claim. People v Fuentes (1986, 2d Dept) 125 App Div 2d 328, 509 NYS2d 60.
On appeal from denial of defendant's motion to vacate his conviction of first degree rape and related crimes, to extent that defendant claimed that DNA testing of semen should have been conducted by prosecution, such claim was not properly before Appellate Division where that claim had been rejected on direct appeal from conviction.People v Smith (1997, 1st Dept) 245 AD2d 79, 665 NYS2d 648, app den 92 NY2d 861, 677 NYS2d 92, 699 NE2d 452, habeas corpus proceeding, application den (SD NY) 1999 US Dist LEXIS 5431, magistrate's recommendation, habeas corpus proceeding (SD NY) 1999 US Dist LEXIS 17749.
In postconviction motion under CLS CPL Art 440 based on deprivation of Rosario materials at trial, harmless error analysis to determine whether there was reasonable possibility that failure to disclose contributed to guilty verdict implies that reviewing court should assess cumulative effect of all Rosario violations on verdict, rather than viewing each error in isolation and denying motion if no single violation is sufficient, and that reviewing court should focus on reasonable reaction to absent evidence from viewpoint of hypothetical fair minded "deliberative" juror. People v Bianco (1992, Sup) 153 Misc 2d 509, 582 NYS2d 622, revd, motion den (1992, 4th Dept) 183 App Div 2d 284, 591 NYS2d 287, app den (1993) 81 NY2d 785, 594 NYS2d 731, 610 NE2d 404.

CRIMINAL PROCEDURE LAW
PART TWO. THE PRINCIPAL PROCEEDINGS
TITLE M. PROCEEDINGS AFTER JUDGMENT
ARTICLE 450. APPEALS--IN WHAT CASES AUTHORIZED AND TO WHAT COURTS TAKEN

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

NY CLS CPL § 450.20 (2001)
§ 450.20. Appeal by people to intermediate appellate court; in what cases authorized

An appeal to an intermediate appellate court may be taken as of right by the people from the following sentence and orders of a criminal court:

1. An order dismissing an accusatory instrument or a count thereof, entered pursuant to section 170.30, 170.50 or 210.20;

1-a. An order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information, entered pursuant to subdivision one-a of section 210.20;

2. An order setting aside a verdict and dismissing an accusatory instrument or a count thereof, entered pursuant to paragraph (b) of subdivision one of section 290.10 or 360.40;

3. An order setting aside a verdict, entered pursuant to section 330.30 or 370.10;

4. A sentence other than one of death, as prescribed in subdivisions two and three of section 450.30;

5. An order, entered pursuant to section 440.10, vacating a judgment other than one including a sentence of death;

6. An order, entered pursuant to section 440.20, setting aside a sentence other than one of death;

7. An order denying a motion by the people, made pursuant to section 440.40, to set aside a sentence other than one of death;

8. An order suppressing evidence, entered before trial pursuant to section 710.20; provided that the people file a statement in the appellate court pursuant to section 450.50.

9. An order entered pursuant to section 460.30 of the penal law setting aside or modifying a verdict of forfeiture.

10. An order, entered pursuant to paragraph (e) of subdivision twelve of section 400.27, finding that the defendant is mentally retarded.

11. (Added, L 1999) An order granting a motion, made pursuant to subdivision one-a of section 440.30, for forensic DNA testing of evidence.

HISTORY:
Add, L 1970, ch 996, § 1, eff Sept 1, 1971, with substance derived from Crim C §§ 518, 750.
Sub 1-a, add, L 1990, ch 209, § 17, eff Sept 1, 1990.
Sub 2, amd, L 1983, ch 170, § 3, eff May 31, 1983.
Sub 9, add, L 1986, ch 516, § 12, eff Nov 1, 1986.
Sub 10, add, L 1995, ch 1, § 22, eff Sept 1, 1995 (see 1995 note below).
Sub 11, add, L 1999, ch 560, § 8, eff Dec 1, 1999 (see 1999 note below).

NOTES:

COMMISSION STAFF NOTES:
Subdivision 1 provides an appeal from an order granting any of the proposed omnibus motions whereby indictments and informations are subject to challenge and dismissal on a variety of grounds (§§ 170.30, 170.50, 210.20). Since these motions are structurally new, the Criminal Code does not contain any precisely equivalent appeal provision. Collectively comparable, however, are a narrow Criminal Code provision authorizing an appeal from an order sustaining a demurrer to an indictment (§ 518[1]), and a dragnet clause authorizing an appeal from an order dismissing an indictment on any ground other than insufficiency of trial evidence (id. [3]).
Subdivision 2, which is new and doubtless controversial, is fully explained in the comment upon § 290.10.
Subdivision 3 is as new as the proposed omnibus motions which are the subjects of this appeal (§§ 330.30, 370.10). The only comparable Criminal Code provision is one authorizing an appeal from an order "arresting the judgment" (§ 518[2])--an ancient remedy of very narrow scope mentioned in the Code § 467).
Subdivision 4, which is new, should be considered in conjunction with another new provision providing for a post-judgment motion by the People to set aside an illegal sentence overly favorable to the defendant (§ 440.40). The instant provision accords the People a choice of challenging such a sentence either by way of the indicated motion or by direct appeal from the sentence itself. (See comment upon § 440.40; see, also, § 450.30).
Subdivision 5 is the People's counterpart of the proposed provision (§ 450.10[3]) authorizing an appeal by the defendant from a denial of the new omnibus motion to vacate a judgment (§ 440.10).
Subdivision 6, similarly, is the People's counterpart of the proposed provision (§ 450.10[4]) authorizing an appeal by the defendant from a denial of the new motion to set aside a sentence (§ 440.20).
Subdivision 7 authorizes the People, after having unsuccessfully invoked the proposed new motion to set aside a sentence on the ground of illegality (§ 440.40), to appeal from the order of denial.
Subdivision 8 authorizes an appeal by the People from an order granting a new omnibus defense motion to suppress evidence (§ 710.40).

1983 RECOMMENDATIONS OF THE ADVISORY COMMITTEE ON CRIMINAL LAW AND PROCEDURE:
It is recommended that sections 290.10, 310.60 and 450.20 of the Criminal Procedure Law be amended to permit a trial court to reserve decision on a motion for a trial order of dismissal until after a verdict of guilty has been rendered.
By reserving decision, the trial court may preserve the People's right to appeal an adverse decision without affecting the rights of the defendant, since the decision would have to be based upon the evidence presented up to the time when the motion was made. If the motion were to be granted immediately based upon the insufficiency of the evidence presented, reprosecution would be impermissible, and therefore, the decision would not be appealable. People v. Brown, 40 N.Y. 2d 381 (1976) , cert. den. , 429 U.S. 975 (1976). A decision issued after a verdict has been rendered, however, is appealable, since upon reversal, the appellate court may reinstate the verdict and avoid the problems caused by defendant's constitutional privilege against double jeopardy. People v. Leach, 46 N.Y. 2d 821 (1978).
Our proposal also clarifies that where the jury is discharged before a verdict is rendered (see, CPL § 310.60), the court shall proceed to determine any outstanding motion for a trial order of dismissal. In addition, it provides that, upon a retrial following discharge of the jury under section 310.60, the indictment will be deemed to contain all counts contained therein at the start of the original trial except those dismissed or deemed to have resulted in acquittal upon motion pursuant to section 290.10(1).

1990 RECOMMENDATIONS OF ADVISORY COMMITTEE ON CRIMINAL LAW AND PROCEDURE:
The Committee recommends that section 210.20 of the Criminal Procedure Law be amended to provide that upon motion of the defendant, the court may reduce an indictment or any count of such indictment upon the ground that the evidence before the grand jury was not legally sufficient to establish defendant's commission of the offense charged, but was legally sufficient to establish the commission of a lesser included offense. The Committee further proposes that a new section 450.55 be added to the Criminal Procedure Law to provide for the taking of an expedited appeal by the People from an order reducing a count of an indictment, that section 460.40 of the Criminal Procedure Law be amended to provide for the stay of any such order pending an appeal, and that conforming amendments be made to sections 30.30, 100.10, 210.30 and 450.20 of the Criminal Procedure Law.
Under present law, the court must sustain an indictment if the evidence before the grand jury legally was sufficient to establish the offense charged or any lesser included offense (CPL § 210.20(1)(v)). Where the court finds that the evidence before the grand jury supports only a lesser included offense, it has no power to reduce the indictment to conform to the evidence presented to the grand jury. The result of this rule is that defendants often are prosecuted on charges not supported by the evidence. Such overcharging places defendant at a disadvantage in plea negotiations, and inflates the number of peremptory challenges to which the parties are entitled (see CPL § 270.25).
This measure would remedy the problem of overcharging by empowering the court to reduce an indictment where the evidence before the grand jury supports only a lesser included offense of the count charged. In order to preserve prosecutorial prerogatives, however, the People are given three options following entry of an order reducing an indictment. First, they may re-present the case to the same or a different grand jury without having to obtain leave of court (compare CPL § 210.20(4), which requires court permission to resubmit an indictment dismissed for insufficiency). Second, they may accept the reduction and amend the indictment accordingly. Third, they may appeal from an order reducing an indictment. The measure further provides for a stay of an order reducing an indictment, pending an appeal by the People from such order.
This proposed change in the law was recommended by the New York State Committee on Sentencing Guidelines and was included in the Governor's bill to codify the recommendations of that Committee (S.6595 of 1985).

EDITOR'S NOTES:
Laws 1995, ch 1, § 38, eff Sept 1, 1995, provides as follows:
§ 38. This act shall take effect on the first day of September next succeeding the date on which it shall have become a law and shall apply only to offenses committed on or after such date; offenses committed prior to such date shall be governed by the provisions of law in effect at the time the offense was committed; provided, further, however, that sections twenty-nine, thirty-five and thirty-six of this act shall take effect April 1, 1995.
Laws 1999, ch 560, § 9, eff Dec 1, 1999, provides as follows:
§ 9. This act shall take effect December 1, 1999; provided, further, however, that:
(a) paragraph (a) of subdivision seven of section 995 of the executive law, as amended 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 designated offense has not been completed prior to the effective date of this act, provided further, that paragraph (b) of subdivision seven of section 995 of the executive law, as amended by section one of this act, shall take effect and apply only to designated offenders convicted on or after the effective date of this act; and provided further that an appeal pursuant to subdivision 5 of section 450.10 of the criminal procedure law as added by section seven of this act or subdivision 11 of section 450.20 of the criminal procedure law, as added by section eight of this act, shall apply to motions pursuant to subdivision 1-a of section 440.30 of the criminal procedure law determined prior to, or on or after, such effective date of this act (Amd, L 2000, ch 8, § 2, eff March 6, 2000, deemed eff Dec 1, 1999.).

EXPERT:

EXPERT:By Kevin J. Bauer
This section specifies the sentences and orders of the criminal courts from which the People may take an appeal by right to an intermediate appellate court. Because it delineates the situations to which it applies with such particularity, the Court of Appeals has consistently rejected attempts to enlarge the number of appeals available to the People beyond those enumerated therein (see, People v Laing (1992) 79 NY2d 166, 581 NYS2d 149, 589 NE2d 372, 1992 NY LEXIS 176)
Note that the double jeopardy clauses of the Federal and State Constitutions restrict the types of appeals available to the People (see, US Const, amend V; NY Const, art I, § 6). It is elementary that the People may not appeal a judgment of acquittal (see, People v Graham (1975) 36 NY2d 633, 370 NYS2d 888, 331 NE2d 673). Neither can the People appeal from a trial order of dismissal predicated on legal insufficiency if the motion to dismiss was decided before the verdict was returned (see, People v Brown (1976) 40 NY2d 381, 386 NYS2d 848, 353 NE2d 811, reh den (1977) 42 NY2d 1015 and cert den (1977) 433 US 913, 53 L Ed 2d 1099, 97 S Ct 2986). However, the People may appeal a trial order of dismissal if the court reserved decision until after the verdict was returned (see, People v Key (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147)

EXPERT:
Kevin J. Bauer, a graduate of Brooklyn Law School, is a solo practitioner. He is a former Law Clerk of Justice Thomas F. McGowan of the Supreme Court, Erie County, and is past chair of the Appellate Practice Committee of the Bar Association of Erie County. His appellate practice extends to a wide variety of civil and criminal matters. He is a co-author of the Cumulative Supplement to Cohen & Karger, Powers of the New York Court of Appeals, 1952-1993 (Buffalo: W.S. Hein & Co., 1994)
CROSS REFERENCES:
This section referred to in §§ 210.20, 290.10, 400.27, 450.30, 450.40, 450.50, 450.55, 450.60, 450.90, 460.40
Right of people to appeal directly to Court of Appeals, § 450.80
Determination of appeals by intermediate appellate courts; scope of review,§ 470.15
Determination of appeals by intermediate appellate courts; corrective action upon reversal or modification, § 470.20
Determination of appeals by intermediate appellate courts; form and content of order, § 470.25
Enterprise corruption; forfeiture, CLS Penal § 460.30

CODES, RULES AND REGULATIONS:
Establishment and jurisdiction of Appellate Terms, Appellatex Term, Second Judicial Department. 22 NYCRR § 730.1 (CLS App Term Rules--Second Judicial Dept § 730.1)Representation by court-assigned counsel in the Appellate Division

1100.1. General
This Part shall govern the procedure for an expedited appeal by the People to the Appellate Division, pursuant to Criminal Procedure Law 400.27(12)(f) and 450.20(10), of an order by a superior court finding a defendant charged with Murder in the First Degree to be mentally retarded
Add, eff immediately, dated December 5, 1995

1100.2. Procedure
(a)Upon filing the notice of appeal, the People shall give notice to the Appellate Division that an appeal is pending pursuant to Criminal Procedure Law 400.27(12)(f) and request that an expedited briefing schedule be set
((b) The Appellate Division shall establish an expedited briefing schedule for the appeal. Briefs may be type-written or reproduced. both the People and the defendant shall file nine copies of a brief, and one copy of the brief shall be served on opposing counsel
((c) The appeal may be taken on one original record, which shall include copies of the indictment, the motion papers, the minutes of, and all exhibits in, the hearing on mental retardation held in the superior court, the court's decision and order, and the notice of appeal
((d) The Appellate Division shall give preference to the hearing of an appeal perfected pursuant to this Part and shall determine the appeal as expeditiously as possible
Add, eff immediately, dated December 5, 1995

1100.3. Representation by court-assigned counsel in the Appellate Division
In any appeal by the People from an order pursuant to this Part, the Appellate Division shall assign counsel to represent a defendant who is represented in the superior court by court-assigned counsel, and may direct that the court-assigned counsel in the superior court represent the defendant on appeal
Add, eff immediately, dated December 5, 1995

FEDERAL ASPECTS:
Appeal on behalf of United States from judgment of dismissal, 18 USCS § 3731
Time for appeal by or on behalf of United States, 18 USCS § 3731

RESEARCH REFERENCES AND PRACTICE AIDS:
32A NY Jur 2d, Criminal Law §§ 1454, 1637
34 NY Jur 2d, Criminal Law §§ 2427, 3100, 3158, 3159, 3161, 3162, 3164, 3165, 3168, 3171, 3218
4 Am Jur 2d, Appellate Review §§ 223, 226, 227, 235, 238
8 Am Jur Pl & Pr Forms (Rev ed), Criminal Procedure, Forms 513 et seq

ANNOTATIONS:
Comment Note.--When criminal case becomes moot so as to preclude review of or attack on conviction or sentence. 9 ALR3d 462
Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency. 16 ALR3d 714
Appealability of state court order granting or denying consolidation, severance, or separate trials. 77 ALR3d 1082
Appeal by state of order granting new trial in criminal case. 95 ALR3d 596
Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance--modern status. 11 ALR4th 399
Adequacy of defense counsel's representation of criminal client regarding appellate and postconviction remedies. 15 ALR4th 582
Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination. 17 ALR4th 867
Appealability of order suspending imposition or execution of sentence. 51 ALR4th 939
Dismissal of indictment or information as reviewable on appeal by United States under 18 USCS § 3731, as amended by Omnibus Crime Control Act of 1970. 30 ALR Fed 655

LAW REVIEWS:
Double jeopardy and government appeals in criminal cases. 12 Colum J L & Soc Prob 295
Ineffective representation as a basis for relief from conviction: principles for appellate review. 13 Colum J L & Soc Prob 1

TEXTS:
1 New York Appellate Practice (Matthew Bender) §§ 5.13, 12.05; 2 New York Appellate Practice (Matthew Bender) § 13.01
4 New York Criminal Practice (Matthew Bender), Chapter 31, Mistrial and Trial Order of Dismissal; 6 New York Criminal Practice (Matthew Bender), Chapter 53, Appeals

CASE NOTES

I. Generally
1. In general
2. Constitutionality
3. --Waiver
4. Appealability of particular rulings
5. --Suppression of evidence
6. --Dismissal
7. ----Double jeopardy
8. --Sentence
9. --Stay of execution
10.--12. [Reserved for future use.]

II. Under Former Crim C § 518.

13. In general
14. Constitutional basis
15. Application
16. Appealability of particular rulings
17. --Inspection of grand jury minutes
18. --Suppression of evidence
19. --Demurrer
20. --Dismissal of information
21. --Dismissal of indictment
22. --Acquittal
23. --Sentencing

I. Generally

1. In general
In criminal cases, limitations on the right to appeal to an intermediate appellate court are principally designed to insure only that trial of the case is not interrupted by interlocutory appeals, if civil proceeding is commenced to obtain collateral review of a determination made in a pending criminal matter (CPL 10.10, subd 7), an intermediate appellate court may look beyond the face of the order, and dismiss, to insure that the restrictions on interlocutory appeals in criminal cases are not breached. People v Coppa (1978) 45 NY2d 244, 408 NYS2d 365, 380 NE2d 195, on remand (1978, 2d Dept) 65 App Div 2d 581, 409 NYS2d 157 and (superseded by statute as stated in People v Giles (1989) 73 NY2d 666, 543 NYS2d 37, 541 NE2d 37).
CLS CPL § 450.30(2) authorizes People to appeal from sentence that is invalid as matter of law, but does not entitle People to appeal from conviction; People could not, under guise of challenging sentence, attack legality of trial judge's decision to accept defendant's guilty plea over prosecutor's objection. People v Cosme (1992) 80 NY2d 790, 587 NYS2d 274, 599 NE2d 678.
Grant of youthful offender status to defendant who pled guilty to criminal possession of a controlled substance in second degree was a proper exercise of discretion. People v D. (1977, 2d Dept) 56 App Div 2d 579, 391 NYS2d 188.
People's appeal of trial court's oral ruling to set aside verdict in burglary case could be properly brought and would not be "procedurally flawed" under CLS CPLR § 2220 (which requires party to file and serve written orders) since CPLR has no application to criminal actions and proceedings; People are not required to serve written order as prerequisite to appeal where order has been entered on record. People v Silva (1986, 1st Dept) 122 App Div 2d 750, 506 NYS2d 55.
Order placing criminal case on "reserve calendar for ultimate dismissal" was not appealable since such order did not dismiss indictment; People's right to appeal from pretrial orders is limited, in general, to orders which in effect terminate prosecution. People v Herrara (1991, 2d Dept) 171 App Div 2d 85, 574 NYS2d 227.
Erroneous filing of unnecessary appeal by People, regardless of how innocent or inadvertent, does not compromise rights of accused to speedy trial, and People will accordingly be held accountable for that period between taking of such appeal and making of application to withdraw it. People v McIntosh (1991, 2d Dept) 173 App Div 2d 490, 570 NYS2d 298, app gr (1991) 78 NY2d 1078, 577 NYS2d 241, 583 NE2d 953 and affd (1992) 80 NY2d 87, 587 NYS2d 568, 600 NE2d 199.
Article 78 petition, seeking to prohibit prosecution of petitioner for murder and other offenses 20 years after same charges against him were dismissed following suppression of his statements to police, would be denied even though further prosecution of original indictment was barred under CLS CPL § 450.20(2) following People's unsuccessful appeal of suppression order, where People discovered additional inculpatory evidence after filing statement under CLS CPL § 450.50(1) which was not available at time of their appeal.Yarter v Winn (1996, 3d Dept) 220 AD2d 1, 645 NYS2d 333, app gr 88 NY2d 809.
Where statute which allowed the prosecution to appeal from trial court's dismissal of charges against defendant for lack of sufficient evidence was unconstitutional, defendant's later conviction and sentence were illegal and void. People ex rel. Pendleton v Smith (1975) 83 Misc 2d 503, 371 NYS2d 316, affd (1976, 4th Dept) 54 App Div 2d 195, 388 NYS2d 426.

2. Constitutionality
Where defendant's motion to dismiss was based on People's failure, at close of their case, to prove a prima facie case, concededly on an issue of law, and the proceeding was "terminated in defendant's favor," double jeopardy precluded the People from taking an appeal. People v Brown (1976) 40 NY2d 381, 386 NYS2d 848, 353 NE2d 811, cert den (1977) 433 US 913, 53 L Ed 2d 1099, 97 S Ct 2986 and (ovrld in part by People v Key (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147).
That portion of statute permitting appeal by People to intermediate appellate court from a trial order of dismissal is violative of double jeopardy provisions of United States and New York Constitutions. People v Piazza (1975, 4th Dept) 47 App Div 2d 990, 366 NYS2d 725 (criticized by People v Brooks (1975, 2d Dept) 50 App Div 2d 319, 376 NYS2d 928).
Statute permitting People to appeal as of right from trial order of dismissal does not violate double jeopardy provisions of United States Constitution. People v Lineman (1976, 2d Dept) 53 App Div 2d 648, 384 NYS2d 494.
Where, in homicide prosecution, trial court granted defendant's motion for dismissal at close of People's case on ground that evidence adduced by People, apart from defendant's confession of slaying, was insufficient corroboration to present question of fact as to whether deceased died as result of criminal act, retrial of defendant after subsequent successful appeal by People subjected defendant to double jeopardy. People ex rel. Pendleton v Smith (1976, 4th Dept) 54 App Div 2d 195, 388 NYS2d 426.
Provision of Criminal Procedure Law which vitiates trial order of dismissal that is followed by mistrial is violative of double jeopardy clause of Fifth Amendment since it allows court order, which requires evaluation of trial evidence and determination that such evidence is too thin to support conviction and which has force of acquittal, to be placed on par with routine trial rulings and permits such order to be aborted when jury disagreement over unrelated matters leads to mistrial and direction for new trial. People v Cuvilje (1976) 85 Misc 2d 628, 380 NYS2d 872.

3. --Waiver
Defendant in homicide prosecution, who did not raise double jeopardy claim at second trial, did not thereby waive immunity from double jeopardy where no legal basis existed for raising such double jeopardy claim at time of second trial, such legal basis arising only under subsequent decision handed down by United States Supreme Court. People ex rel. Pendleton v Smith (1976, 4th Dept) 54 App Div 2d 195, 388 NYS2d 426.
Prosecution abandoned its appeal from order granting defendant's motion to vacate his conviction, on ground of nondisclosure of Rosario material, where prosecution sought and obtained several adjournments of prospective retrial for express purpose of deciding whether to appeal, ultimately made unambiguous declaration on record that it did not intend to appeal, and neither perfected appeal nor sought enlargement of time to do so.People v Hernandez (1998, 1st Dept) 255 AD2d 112, 681 NYS2d 488, app den 93 NY2d 874, 689 NYS2d 436.
Where defendant had not yet been placed in jeopardy for second time, it did not waive objection by failing to raise double jeopardy question on People's appeal. People v Dockside 500 Marina, Inc. (1975) 85 Misc 2d 337, 378 NYS2d 253.

4. Appealability of particular rulings
Appellate Division had jurisdiction to consider appeal by People from order, made on defendant's motion to set aside verdict, modifying verdict by substituting lesser included offense in place of offense for which defendant had been convicted, since CLS CPL § 450.20 grants People right to appeal to intermediate appellate court from criminal court order setting aside verdict entered pursuant to CLS CPL § 330.30, and § 330.30 gives court authority to "set aside or modify the verdict or any part thereof," and thus legislature did not intend to exclude from People's right of appeal those orders entered pursuant to § 330.30 that modify rather than completely set aside jury verdict. People v McDonald (1986) 68 NY2d 1, 505 NYS2d 824, 496 NE2d 844, motion dismd (1987) 69 NY2d 724, 512 NYS2d 366, 504 NE2d 693.
Settlement-of-record appeal was properly dismissed because that kind of order is not appealable.People v Fetcho (1998) 91 NY2d 765, 676 NYS2d 106, 698 NE2d 935.
Although a judgment denying the People's application to quash a subpoena was appealable as a final determination in a special proceeding on the civil side of the court, even though it arose in the context of a pending criminal action, that rationale would not apply to the portion of a judgment relating to a defendant's request for disclosure, and his appeal from that portion of the judgment directing discovery would therefore be dismissed pursuant to CPL § 450.20. People v Busjit (1983, 2d Dept) 96 App Div 2d 858, 465 NYS2d 774 (criticized by People v Johnson (1984, 2d Dept) 103 App Div 2d 754, 477 NYS2d 225).
Although there is no specific statutory authority for interlocutory appeal from order directing disclosure of confidential informant, additional direction in order of suppression of evidence is reviewable by Appellate Division. People v Rumpel (1985, 3d Dept) 111 App Div 2d 481, 488 NYS2d 867.
CLS CPL § 450.20(3) specifically authorizes appeal by People should conviction be set aside. People v Foster (1988, 1st Dept) 143 App Div 2d 56, 532 NYS2d 127, app gr (1988) 72 NY2d 956, 534 NYS2d 670, 531 NE2d 302 and app gr (1988) 72 NY2d 960, 534 NYS2d 674, 531 NE2d 306 and revd on other grounds (1989) 73 NY2d 596, 543 NYS2d 1, 541 NE2d 1.
People could not appeal ruling made in criminal trial that child prostitution was not appropriate area for expert testimony or that particular witness did not qualify as expert witness. People v Falzone (1989, 1st Dept) 150 App Div 2d 249, 541 NYS2d 415, app den (1989) 74 NY2d 739, 545 NYS2d 113, 543 NE2d 756 and app den (1989) 74 NY2d 739, 545 NYS2d 113, 543 NE2d 756 and app den (1989) 74 NY2d 746, 545 NYS2d 120, 543 NE2d 763 and app den (1989) 74 NY2d 746, 545 NYS2d 120, 543 NE2d 763.
People appeal from sentence imposed upon defendant's guilty plea; Appellate Division previously denied writ of prohibition and dismissed petition seeking to avoid enforcement of agreement on ground plea accepted by court, over objection of People, was in respect of less than full indictment, which comprised 10 counts; Court of Appeals dismissed motion for leave to further appeal matter, ruling issues presented had become moot; while vacatur of defendant's conviction upon his CPL 440.10 motion due to violation of attorney-client privilege revived all of counts in indictment and therefore, plea of guilty should not have been accepted to less than entire indictment absent District Attorney's consent, Criminal Procedure Law does not authorize appeal of that conviction by People (see, CPL 450.20); thrust of appeal is validity of underlying conviction, not legality of sentence; thus, CPL 450.20 (4) and 450.30 (2) do not afford appropriate remedy. People v Cosme (1991, 1st Dept) 169 App Div 2d 467, 564 NYS2d 345, app gr (1991) 78 NY2d 954, 573 NYS2d 650, 578 NE2d 448 and affd (1992) 80 NY2d 790, 587 NYS2d 274, 599 NE2d 678.
Appellate Division was without authority to hear People's appeal from order denying their motion for leave to re-present evidence to grand jury. People v John Doe (1991, 2d Dept) 170 App Div 2d 690, 567 NYS2d 104, app dismd (1991) 77 NY2d 956, 570 NYS2d 486, 573 NE2d 574.
There is no statutory authority in Criminal Procedure Law for appeal by city property clerk from order directing return of certain property to defendant.People v Renville-Oviedo (1991, 2d Dept) 178 App Div 2d 442, 577 NYS2d 301.
People may not appeal from order which precludes introduction of identification evidence because of People's failure to timely serve notice on defendant under CLS CPL § 710.30.People v Austin (1994, 3d Dept) 208 App Div 2d 990, 618 NYS2d 115.
People could not appeal from order granting defendant's motion for order of preclusion under CLS CPL § 240.70(1).People v Myers (1996, 2d Dept) 226 AD2d 557, 641 NYS2d 333.
Defendant's argument that his counsel refused to engage in plea negotiations involved matter outside record and could not be reviewed on direct appeal from his conviction.People v Schlageter (1997, 4th Dept) 238 AD2d 891, 660 NYS2d 777.
Criminal defendant's petition in Article 78 proceeding to prohibit Supreme Court justice from sua sponte severing defendant's trial from trial of his 3 codefendants would be granted where reason given by justice for ordering separate trial--to afford defendant "speedy trial"--was not valid, because there was no suggestion that prosecution was not ready for trial within time limits in CLS CPL § 30.30, justice thus exceeded his authority, petitioner would be harmed by being forced to separately try charges of conspiracy, and petitioner had no other adequate remedy.Brown v Schulman (1997, 2d Dept) 245 App Div 2d 561, 667 NYS2d 53, app den (1998) 91 NY2d 806, 668 NYS2d 561, 691 NE2d 633 and petition den (1998, 2d Dept) 246 App Div 2d 648, 667 NYS2d 303, app den (1998) 91 NY2d 814, 676 NYS2d 127, 698 NE2d 956.
Prosecution failed to show clear legal right to extraordinary remedies of prohibition and mandamus to prohibit Supreme Court justice from enforcing order that it not file certificate of readiness in criminal action under particular indictment until certain date where (1) defendant had not yet made speedy trial motion under CLS CPL § 30.30, (2) prosecution had not yet suffered any harm as result of order, (3) if defendant made such motion, prosecution could argue that time at issue should be chargeable to defendant, and (4) prosecution would have right to appeal under CLS CPL § 450.20(1) if speedy trial issue were decided against it.Brown v Schulman (1998, 2d Dept) 246 AD2d 648, 667 NYS2d 303, app den 91 NY2d 814, 676 NYS2d 127, 698 NE2d 956.
Order of County Court which dismissed indictment due to impermissible conflict of interest arising from prosecutor's dual and concurrent roles as assistant district attorney and counsel to complainant in civil matter, was not appealable by People because (1) there is no right of direct appeal from order of disqualification, (2) there was no statutory basis to challenge dismissal of indictment, especially as court appointed special prosecutor for purpose of any further proceedings against defendant, and (3) appointment of special prosecutor terminated district attorney's authority with respect to any further proceedings, including substantive appeal.People v Dellavalle (1999, 3d Dept) 259 AD2d 773, 687 NYS2d 199.
Trial judge abused his discretion in requiring district attorney to permit discovery of statements of witnesses to alleged assault, but not in requiring disclosure of names and addresses of witnesses for prosecution. Vergari v Kendall (1974) 76 Misc 2d 848, 352 NYS2d 383, app dismd (1974, 2d Dept) 46 App Div 2d 679, 360 NYS2d 1003.
An appeal by the People from a decision which held a town ordinance providing only for the issuance of special use permits for the operation of permanently installed amusement rides to be unconstitutional is dismissed since no appeal lies from a decision. People v Newton (1979) 100 Misc 2d 97, 421 NYS2d 189.
An appeal from an order of the Criminal Court, which denied a motion by the New York City Police Department to quash certain subpoenas duces tecum issued in separate criminal proceedings seeking arrest photos and routine police department reports concerning the charged crimes, is dismissed; in the absence of specific statutory authorization (CPL 450.20), this prosecution-related appeal, arising out of criminal, not civil, proceedings, must be dismissed. People v Cabon (1991, Sup App T) 150 Misc 2d 1028, 579 NYS2d 312, app den (1992, 1st Dept) 183 App Div 2d 579, 586 NYS2d 481.

5. --Suppression of evidence
The extraordinary remedy of a writ of prohibition, which is not mandatory, but may issue in the sound discretion of the court, lies only where there is a clear legal right and only when the body or officer acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction; it must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action. Accordingly, where petitioner argues that as a result of an unsuccessful appeal by the People from an order suppressing evidence in a criminal prosecution against him (CPL 450.20, subd 8), the District Attorney lacked the power to obtain a superseding indictment, the Grand Jury lacked the power to indict petitioner, and the courts lack the power to try him upon the indictment, a CPLR article 78 proceeding seeking a writ of prohibition is an appropriate means of asserting such claims. When the People take an unsuccessful appeal from an order suppressing evidence (CPL 450.20, subd 8), in which they must first file a statement asserting that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the People with respect to the filed criminal charge either insufficient as a matter of law or so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed (CPL 450.50, subd 1), CPL 450.50 (subd 2) prohibits subsequent prosecutions of the same defendant upon either the same or a superseding accusatory instrument for the crimes charged in the original instrument, in the absence of extraordinary circumstances. Forte v Supreme Court of New York (1979) 48 NY2d 179, 422 NYS2d 26, 397 NE2d 717.
Appellate Division properly dismissed People's appeals from trial orders precluding introduction of identification evidence for failure to comply with timely notice provision of CLS CPL § 710.30 since such orders are not among enumerated authorizations in CLS CPL § 450.20 and there is no interpretive alternative to such exclusive route for People's appeal. People v Laing (1992) 79 NY2d 166, 581 NYS2d 149, 589 NE2d 372.
People's time to become ready continues to run notwithstanding their CLS CPL § 450.20(8) appeal from court order suppressing evidence if, in fact, that appeal is withdrawn before it is determined. People v McIntosh (1992) 80 NY2d 87, 587 NYS2d 568, 600 NE2d 199.
People were entitled to appeal trial court's suppression ruling as matter of right once it filed requisite statement under CLS CPL § 450.50. People v Mezon (1992) 80 NY2d 155, 589 NYS2d 838, 603 NE2d 943.
In prosecution for driving while intoxicated, People had statutory authority to appeal from trial court's ruling which suppressed result of consented-to chemical test; People's appeal options under CLS CPL § 450.20(8) incorporates whole of CLS CPL § 710.20.People v Ayala (1996) 89 NY2d 874, 653 NYS2d 92, 675 NE2d 846.
Order granting defendant's motion to suppress eyewitness testimony was not appealable by People prior to effective date of CPL §§ 450.20, subd 8 and 450.50, subd 1; provisions of CPL § 460.10, subd 6 were not available to People in light of 7-year delay directly attributable to laxness of People. People v Pappa (1974, 2d Dept) 43 App Div 2d 836, 350 NYS2d 752.
Where the People sought to appeal from two orders suppressing evidence entered March 8, 1976 and October 5, 1976 by a notice of appeal dated October 8, 1976 and the Appellate Division had reversed the second order, the case is in the same posture as it was after the first order was entered and it did not render the proof inadequate for a conviction. The first order was final and the appeal therefrom was untimely. People v Voutsinas (1978, 3d Dept) 62 App Div 2d 465, 406 NYS2d 138, app dismd (1979) 47 NY2d 798, 417 NYS2d 933, 391 NE2d 1014.
An order suppressing evidence seized pursuant to a search warrant was improperly granted where, although the police officer's affidavit for the warrant, containing allegations by an informant, was unaccompanied by a statement of facts relied upon by the informant and thus, by itself, might not have satisfied the Aguilar "basis of knowledge" test, that test was satisfied in an alternative manner by the personal observations of the officer made in his independent investigation. People v Maldonado (1981, 2d Dept) 80 App Div 2d 563, 435 NYS2d 344.
People's appeal pursuant to CPL §§ 450.20 and 450.50 from order which granted defendant's motion to suppress evidence seized from her apartment is denied since findings of fact demonstrate that police failed to give defendant notice of their authority and purpose prior to arrest and seizure pursuant to CPL § 120.80. People v Ferguson (1985, 4th Dept) 115 App Div 2d 333, 496 NYS2d 158.
Dismissal of second count of indictment simultaneously with suppression of defendant's statements guaranteed finality and rendered filing of statement pursuant to CLS CPL § 450.50 unnecessary, and thus People were entitled to appeal even though suppression had not been ordered pursuant to CLS CPL § 710.20. People v Townsend (1987, 1st Dept) 127 App Div 2d 505, 511 NYS2d 858.
Although CLS CPL § 450.20(8) permits People to appeal from order of suppression, they may do so only when they have filed statement pursuant to CLS CPL § 450.50(1) providing that evidence available to them is legally insufficient or so weak that there is no reasonable possibility of conviction. People v Robinson (1991, 1st Dept) 171 App Div 2d 475, 567 NYS2d 401, app den (1991) 78 NY2d 973, 574 NYS2d 953, 580 NE2d 425.
On appeal from denial of defendant's suppression motion, People could raise issue of defendant's lack of standing to challenge search, since it was defendant's burden in first instance to establish that he had legitimate expectation of privacy in premises searched, and suppression court erred in conferring automatic standing on him where criminal possession charges were not rooted solely in any statutory presumption of possession.People v Jackson (1994, 2d Dept) 207 App Div 2d 805, 616 NYS2d 530, app den (1994) 84 NY2d 908, 621 NYS2d 525, 645 NE2d 1225.
Fact that accusatory instrument--which contained charges affected by Supreme Court's suppression order--previously contained other counts which were unaffected by order did not deprive People of their statutory right to appeal under CLS CPL § 450.20(8).People v Salgado (1994, 2d Dept) 207 App Div 2d 918, 616 NYS2d 657, app den (1995) 84 NY2d 1038, 623 NYS2d 194, 647 NE2d 466.
Requirements of statute providing that, in taking appeal from order of criminal court suppressing evidence, People must file statement asserting that deprivation of use of evidence ordered suppressed rendered sum of proof available to People with respect to criminal charge either insufficient as matter of law or so weak in its entirety that any reasonable possibility of prosecuting such charge to conviction was effectively destroyed, are satisfied, where court dismisses information on ground that People are left with insufficient evidence to proceed with prosecution, and filing of statement under those circumstances is not required. Order dismissing information on ground that People are left with insufficient evidence to proceed with prosecution is appealable and brings up for review propriety of intermediate order granting defendant's motion to suppress. People v Midgett (1976) 86 Misc 2d 1003, 383 NYS2d 789.

6. --Dismissal
Where "dismissal" on defendant's request for acquittal in nonjury contempt prosecution occurred after both sides had rested and after defendant had made summation, and where context of trial judge's opinion also revealed true nature of his decision as resolution of case on merits because defendant had been lulled into false sense of assurance that he would have opportunity to change his mind and answer questions before grand jury before any proceedings were instituted against him, decision was on merits and People had no appeal. People v Sabella (1974) 35 NY2d 158, 359 NYS2d 100, 316 NE2d 569 (ovrld in part on other grounds by People v Brown (1976) 40 NY2d 381, 386 NYS2d 848, 353 NE2d 811).
Order of the Appellate Division affirming dismissal of indictment was appealable to Court of Appeals. People v Belge (1976) 41 NY2d 60, 390 NYS2d 867, 359 NE2d 377.
A trial court's order dismissing an indictment on the ground that the prosecutor failed to state a prima facie case during his opening statement to the jury, which order was expressly predicated on CPL 210.20 and thus, on its face, appealable under CPL 450.20 (subd 1), was sufficient to confer jurisdiction on the Appellate Division to determine the appeal on the merits. People v Coppa (1978) 45 NY2d 244, 408 NYS2d 365, 380 NE2d 195, on remand (1978, 2d Dept) 65 App Div 2d 581, 409 NYS2d 157 and (superseded by statute as stated in People v Giles (1989) 73 NY2d 666, 543 NYS2d 37, 541 NE2d 37).
Prohibition will not lie to address pretrial dismissals of indictments entered under CLS CPL § 210.20, or dismissals on merits under CLS CPL § 290.10, rendered after jury returns guilty verdict, since such dismissals are reviewable by way of direct appeal under CLS CPL § 450.20. Holtzman v Goldman (1988) 71 NY2d 564, 528 NYS2d 21, 523 NE2d 297.
People's right to appeal under CLS CPL § 450.20 was not frustrated when--despite favorable appellate ruling which reversed trial court's dismissal of murder count--dismissal of count on double jeopardy principles was nonetheless required because trial court had accepted defendant's guilty plea to remaining counts prior to appellate ruling and defendant had begun serving his sentence; even though stay was unavailable, People could have at least attempted to preserve their rights by requesting presentencing adjournment pending disposition of their interlocutory appeal. People v Moquin (1991) 77 NY2d 449, 568 NYS2d 710, 570 NE2d 1059, reconsideration den (1991) 78 NY2d 952, 573 NYS2d 647, 578 NE2d 445.
Appellate Division improperly conditioned People's appeal from order dismissing indictment on their production of complete grand jury minutes and exhibits, without first considering whether that material was prerequisite for People's right to have appeal heard, where record did not indicate whether defendant met his initial burden of demonstrating "compelling and particularized need for access" to those materials; Court of Appeals remitted case to Appellate Division to hear appeal.People v Fetcho (1998) 91 NY2d 765, 676 NYS2d 106, 698 NE2d 935.
No appeal lies from an intermediate order denying dismissal of an indictment in criminal action and questions involved may only be reviewed on appeal from judgment of conviction. People ex rel. McLaughlin v Monroe (1974, 2d Dept) 44 App Div 2d 575, 353 NYS2d 33.
People could not appeal as of right from trial order of dismissal of a count of indictment where order had not been entered pursuant to statutes. People v O'Neill (1974, 2d Dept) 45 App Div 2d 1038, 358 NYS2d 182, vacated on other grounds (1974, 2d Dept) 45 App Div 2d 958, 359 NYS2d 328.
Trial court has great responsibility in considering motion for trial order of dismissal, where it is close question, court may be well advised to reserve decision until jury has rendered its verdict; if jury finds defendant guilty and court decides that it should have granted motion, it may then do so, and if it is then reversed on appeal, verdict may be reinstated without infringing upon defendant's constitutional immunity from double jeopardy. People ex rel. Pendleton v Smith (1976, 4th Dept) 54 App Div 2d 195, 388 NYS2d 426.
Prosecution's failure to file statement asserting that deprivation of evidence suppressed by trial court nullified any possibility of conviction did not preclude State's appeal from trial court's order dismissing indictment. People v Brooks (1976, 4th Dept) 54 App Div 2d 333, 388 NYS2d 450.
A trial order of dismissal made after the jury had been impaneled and sworn, and after the prosecutor stated that the People's proof had been rendered so weak that the People could not proceed to trial since the court had denied the prosecutor's request that a certain police officer be allowed to testify as to conversations overheard by means of a transmitter, the tapes of the conversations having been suppressed, is affirmed, since although it is questionable whether the dismissal of the indictment is a trial order of dismissal within the meaning of CPL 290.10 and 450.20 (subd 2), the Trial Judge's termination of the proceedings favorably to the defendant was made on a basis related to the defendant's guilt or innocence and, therefore, a retrial of the defendant is barred. People v Morales (1979, 2d Dept) 69 App Div 2d 536, 418 NYS2d 932.
In an Article 78 proceeding, a petition by the People seeking review of an order dismissing a second-degree murder indictment for failure to prosecute would be dismissed, where the People could review such an order by direct appeal under CPL § 450.20, and where the proceeding was academic, in that the matter had been resolved upon direct appeal. People v Kitt (1983, 1st Dept) 93 App Div 2d 77, 460 NYS2d 799.
The prosecution has no right to appeal from an order of dismissal granted in a jury trial at the close of the prosecution's case, since there is no statute granting such right and, unless the trial court reserves decision on a defense motion for an order of dismissal based on insufficient evidence until after the verdict has been rendered and accepted by the court, as provided in CPL §§ 290.10(1), 450.20(2), an appeal from the order of dismissal is not available to the prosecution. People v Harding (1984, 3d Dept) 101 App Div 2d 221, 475 NYS2d 611.
Order granting defendant's motion for trial order of dismissal after jury deadlock resulted in declaration of mistrial was nonappealable since neither CLS CPL § 310.60(1)(a) and (2) nor CLS CPL § 450.20(2), on which People relied, provided Appellate Division with jurisdiction to entertain appeal; § 310.60(1)(a) and (2), which provide for discharge of jury and retrial on indictment when no verdict has been rendered owing to jury deadlock, did not address fact that trial order of dismissal here was granted after mistrial was declared, and § 450.20(2), which provides for appeal by People when trial order of dismissal is granted and indictment dismissed after setting aside of guilty verdict, expressly addresses instances in which verdict has been rendered prior to court's issuance of trial order of dismissal, and absent guilty verdict, statute does not authorize appeal by People. People v Brummel (1988, 1st Dept) 136 App Div 2d 322, 526 NYS2d 823, app den (1988) 73 NY2d 853, 537 NYS2d 500, 534 NE2d 338.
Conviction for murder on second trial would be reversed and indictment would be dismissed, with leave to People to re-present charge of manslaughter to grand jury, where trial judge had dismissed murder indictment in first trial after jury failed to reach verdict, and Appellate Division had thereafter reinstated murder indictment, since Appellate Division was without jurisdiction to reinstate murder indictment. People v Ainsworth (1989, 1st Dept) 145 App Div 2d 74, 537 NYS2d 798, app gr (1989) 74 NY2d 660, 543 NYS2d 403, 541 NE2d 432 and app gr (1989) 74 NY2d 660, 543 NYS2d 403, 541 NE2d 432 and app withdrawn (1989) 74 NY2d 894, 548 NYS2d 426, 547 NE2d 953.
Under CPL § 450.20, no appeal lay from dismissal of information after trial by the court without a jury. People v Braun (1972) 75 Misc 2d 751, 348 NYS2d 811.
Provisions of Criminal Procedure Law affording People opportunity to appeal, as of right, from trial order of dismissal clearly vitiate trial order of dismissal that is followed by mistrial. People v Cuvilje (1976) 85 Misc 2d 628, 380 NYS2d 872.
Order dismissing information on ground that People are left with insufficient evidence to proceed with prosecution is appealable and brings up for review propriety of intermediate order granting defendant's motion to suppress. People v Midgett (1976) 86 Misc 2d 1003, 383 NYS2d 789.
Under statute which permits the State to appeal from an order of the trial court dismissing an accusatory instrument for legal insufficiency, where trial court has acted prior to trial, appellate court can review the accusatory instrument and, when warranted, grant the State appropriate relief; however, once jeopardy has attached, courts must consider the issue of double jeopardy. People v Key (1976) 87 Misc 2d 262, 391 NYS2d 781, affd (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147.
People could not appeal from order dismissing informations which charged violations of zoning ordinance where dismissal was based on failure to prove guilt, since such appeal would be, in effect, appeal from acquittal. People v New York Racing Asso. (1986, Sup App T) 135 Misc 2d 453, 516 NYS2d 387.

7. ----Double jeopardy
Where at conclusion of the People's case-in-chief the defendant, charged with bribery, successfully moved for order of dismissal on ground that prima facie case had not been made out, in that there was insufficient proof on element of an "agreement understanding" shared by the public servant sought to be influenced, the double jeopardy clause precluded appeal by the People. People v Brown (1976) 40 NY2d 381, 386 NYS2d 848, 353 NE2d 811, cert den (1977) 433 US 913, 53 L Ed 2d 1099, 97 S Ct 2986 and (ovrld in part on other grounds by People v Key (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147).
Under principles of double jeopardy, People were barred from appealing to Appellate Division from trial court's order dismissing counts of indictment. People v Consolazio (1976) 40 NY2d 446, 387 NYS2d 62, 354 NE2d 801, on remand (1976, 2d Dept) 53 App Div 2d 903, 386 NYS2d 644 and cert den (1977) 433 US 914, 53 L Ed 2d 1100, 97 S Ct 2986.
Dismissals which terminate proceedings in defendant's favor do not permit reprosecution, but those dismissals that are functionally indistinguishable from declaration of mistrial do not bar reprosecution so long as motion is made by defendant and error prompting motion is not motivated by bad faith or desire to provoke motion. People v Key (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147.
Where trial court dismisses indictment at end of People's case, dismissal is unappealable whether court's decision was based entirely upon facts, upon conclusion of law to be drawn from facts, or entirely upon law, since retrial would place defendant in double jeopardy, where indictment for having stolen, criminally possessed, and fraudulently registered two automobiles was dismissed by trial court at close of People's testimony upon finding that proof was insufficient as matter of law, dismissal was not appealable, since retrial of defendant would place him in double jeopardy. People v Gesegnet (1975, 4th Dept) 47 App Div 2d 333, 366 NYS2d 518.
Trial court has great responsibility in considering motion for trial order of dismissal, where it is close question, court may be well advised to reserve decision until jury has rendered its verdict; if jury finds defendant guilty and court decides that it should have granted motion, it may then do so, and if it is then reversed on appeal, verdict may be reinstated without infringing upon defendant's constitutional immunity from double jeopardy. People ex rel. Pendleton v Smith (1976, 4th Dept) 54 App Div 2d 195, 388 NYS2d 426.
Defendant in felony-murder prosecution was not subjected to double jeopardy when People appealed from trial court's action in granting defendant's motion to set aside jury verdict convicting defendant. People v Dorta (1977, 2d Dept) 56 App Div 2d 607, 391 NYS2d 623, app dismd (1978) 44 NY2d 930, 407 NYS2d 838, 379 NE2d 594.
The People are precluded from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial, or even if it would then be necessary for the trial court to make supplemental findings; double jeopardy principles will bar appeal unless there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand. A defendant who deliberately chooses to seek termination of criminal proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the double jeopardy clause if the government is permitted to appeal from such a ruling of the trial court in favor of the defendant; moreover, the same reasoning applies where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or Jury as to his guilt or innocence. People v Morales (1979, 2d Dept) 69 App Div 2d 536, 418 NYS2d 932.
Proper criterion for appealability by the People, as against claim of double jeopardy, is whether upon reversal and remand further proceedings devoted to resolution of factual issues going to elements of offense charged would be required. People v Dockside 500 Marina, Inc. (1975) 85 Misc 2d 337, 378 NYS2d 253.
Where jeopardy had already attached when motion to dismiss information for legal insufficiency was made and granted, and reversal and remand would have required further hearing, matter would not ordinarily be appealable; however, where defendant waited until jeopardy attached before moving to dismiss, even though he was apparently aware of defect in information prior to trial, right to assert defense of double jeopardy was deemed waived. Where jury was sworn in prosecution for operating motor vehicle with more than .10 of more than one percentum by weight of alcohol in blood, jeopardy had attached, and since trial court, because of double jeopardy, denied relief sought by People on reargument following dismissal of information for legal insufficiency, issue of double jeopardy was required to be considered. Under statute which permits the State to appeal from an order of the trial court dismissing an accusatory instrument for legal insufficiency, where trial court has acted prior to trial, appellate court can review the accusatory instrument and, when warranted, grant the State appropriate relief; however, once jeopardy has attached, courts must consider the issue of double jeopardy. People v Key (1976) 87 Misc 2d 262, 391 NYS2d 781, affd (1978) 45 NY2d 111, 408 NYS2d 16, 379 NE2d 1147.
Where there was no determination of guilt which without more might be reinstated following trial court's sua sponte dismissal of informations charging corporate defendant with violations of county sanitary code, double jeopardy attached and the People's appeal would therefore be dismissed. People v Holbrook Transp. Corp. (1976) 88 Misc 2d 80, 389 NYS2d 514.

8. --Sentence
County district attorney could not employ an Article 78 proceeding to obtain a resentence, where district attorney had remedy by appeal from denial of motion to set aside sentence upon ground that it was invalid as a matter of law, county district attorney's failure to file timely appeal from alleged illegal sentence was a waiver of the right to appeal the sentence. Morgenthau v Roberts (1975, 1st Dept) 47 App Div 2d 826, 366 NYS2d 20.
Where defendant, who was convicted of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the seventh degree and unlawful possession of marijuana, received an A-II felony sentence imposed upon his conviction of the A-I felony of criminal sale of a controlled substance in the first degree, the judgment would be modified by vacating the sentence and the matter would be remitted for the imposition of a proper sentence where, on the record, there was no basis for imposing a lesser sentence upon the defendant than that mandated by statute upon his conviction of criminal sale of a controlled substance in the first degree. People v Barbara (1982, 2d Dept) 87 App Div 2d 844, 449 NYS2d 249, affd (1982) 57 NY2d 727, 455 NYS2d 763, 442 NE2d 60.
People's appeal from order of sentencing court which modified sentence of imprisonment imposed under CLS Penal § 60.01(2)(d) would be dismissed, as sentence of imprisonment constituted condition of probation and thus court's action was authorized by CLS CPL § 410.20 and CLS Penal § 65.00(2); moreover, People did not have right to appeal from order that lawfully modified condition of probation pursuant to § 410.20.People v Cohen (1995, 2d Dept) 222 AD2d 447, 635 NYS2d 38, app den 88 NY2d 934, 647 NYS2d 168 and related proceeding 89 NY2d 351, 653 NYS2d 237.

9. --Stay of execution
No appeal lies from order granting stay of execution pending appeal. Rogers v Leff (1974, 1st Dept) 45 App Div 2d 630, 360 NYS2d 652, motion gr (1974) 35 NY2d 965, 365 NYS2d 180, 324 NE2d 558 and app den (1975) 36 NY2d 665, 365 NYS2d 850, 325 NE2d 166 and app dismd (1976) 38 NY2d 903, 382 NYS2d 753, 346 NE2d 554.
No appeal lies from order granting stay of execution of judgment pending appeal. Where, after criminal defendant obtained stay of execution of judgment pending appeal, fixing bail in amount of $ 10,000, court revoked bail, apparently because it believed that defendant failed to expeditiously process appeal from judgment of conviction, second judge acted improperly in granting bail on defendant's application denominated as one for habeas corpus, since such application constituted new application for stay of execution of judgment, prohibited by statute; order vacating order granting bail would, however, be stayed for ten days to allow defendant to apply to trial judge for restoration of bail originally granted. Lefkowitz v Cioffi (1975, 1st Dept) 46 App Div 2d 473, 363 NYS2d 583.

10.--12. [Reserved for future use.]

II. Under Former Crim C § 518.

13. In general
Section 520, allowing defeated party one appeal, barred appeal by people from judgment and order of Appellate Division reversing judgment of General Sessions rendered on verdict of conviction, where required certificate was not obtained. People v Kevlon (1928) 247 NY 192, 159 NE 907, reh den (1928) 247 NY 584, 161 NE 191.
An appeal by the people lies only in those cases provided for in this section. People v Herbert (1912) 152 App Div 579, 137 NYS 409.
Appellate jurisdiction is purely statutory; and such jurisdiction can never be assumed unless statute can be found which expressly sanctions its exercise. People v Fay (1944) 268 App Div 135, 50 NYS2d 1.
The appellant failed to sustain by a preponderance of credible evidence his contention that his constitutional and statutory rights to representation by counsel during arraignment, plea or sentence were infringed where notations of "Defendant's Counsel" in the minutes, without designation of name, speaking as to the pleas of the two defendants named on the original indictment, did not establish appellant's contention that his co-defendant's lawyer entered a plea of guilty on his behalf. People v Milo (1957, 2d Dept) 4 App Div 2d 679, 163 NYS2d 506, reh and app den (1958, 2d Dept) 5 App Div 2d 770, 169 NYS2d 1014.
Considering that appellate jurisdiction of courts of this state in criminal cases is clearly statutory, and cannot be assumed unless a statute can be found which expressly sanctions its exercise, there is no justification for attributing to subd 5 of this section, providing, generally, that the prosecution can appeal in all cases where an appeal may be taken by defendant, a meaning which its clear language does not support. People v Moreli (1960, 3d Dept) 11 App Div 2d 437, 207 NYS2d 843.
The test of the People's right to appeal is not whether defendant feels sufficiently aggrieved by the sentence to move him to prosecute an appeal from the judgment, but whether he could appeal if he wished to. People v Evans (1963, 2d Dept) 18 App Div 2d 1018, 239 NYS2d 80.

14. Constitutional basis
There is no constitutional right to appeal from judgment of conviction or acquittal, or from any ruling of trial judge. People v Reed (1937) 276 NY 5, 11 NE2d 330.
Appeal is not a matter of constitutional right and in criminal (noncapital) cases, appeal lies only by virtue of statutory authorization; such jurisdiction can never be assumed, unless the statute expressly authorizes its exercise. In re Ryan (1953) 306 NY 11, 114 NE2d 183 (ovrld in part by In re Codey ex rel. N.J. (1993) 82 NY2d 521, 605 NYS2d 661, 626 NE2d 636, 21 Media L R 2267).
Appellate jurisdiction is purely statutory; and such jurisdiction can never be assumed unless statute can be found which expressly sanctions its exercise. People v Fay (1944) 268 App Div 135, 50 NYS2d 1.

15. Application
This section is inapplicable to appeals from Magistrates' Court. People ex rel. Kitching v Goldstein (1948) 192 Misc 337, 78 NYS2d 256.

16. Appealability of particular rulings
Order for inspection of documents in possession of prosecutor was not subject of appeal. People ex rel. Lemon v Supreme Court of State (1927) 245 NY 24, 156 NE 84, 52 ALR 200 (ovrld as stated in Morgenthau v Erlbaum (1983) 59 NY2d 143, 464 NYS2d 392, 451 NE2d 150).
The Code of Criminal Procedure makes no provision for the review of an order denying a motion to vacate a subpoena. Hence, neither the appellate division nor the court of appeals has jurisdiction of such an order. In re Ryan (1953) 306 NY 11, 114 NE2d 183 (ovrld in part by In re Codey ex rel. N.J. (1993) 82 NY2d 521, 605 NYS2d 661, 626 NE2d 636, 21 Media L R 2267).
The addition of subd. 3 to this section was not designed to, and does not, expand the people's right to appeal in a case where, after trial, the court concludes that the people failed to prove their case against defendant, even though that conclusion may have been predicated on an erroneous assumption of law that certain facts which were not shown had to be established. People v Marra (1963) 13 NY2d 18, 241 NYS2d 409, 191 NE2d 792.
This section does not authorize people to appeal from order granting new trial. People ex rel. Jerome v Court of General Sessions (1906) 112 App Div 424, 98 NYS 557, affd (1906) 185 NY 504, 78 NE 149.
Order permitting withdrawal of plea of guilty is not appealable. People v Bradshaw (1938) 253 App Div 405, 3 NYS2d 58.
Order of severance, previously made at Special Term of Supreme Court in criminal case, is not appealable by people. People ex rel. Singer v Rogers (1938) 254 App Div 865, 4 NYS2d 905.
Order fixing compensation of material witness under § 618-b during period of detention is appealable. People v Abbandando (1942) 264 App Div 920, 36 NYS2d 1.
Removal of indictment from general sessions to supreme court is not appealable. People v Fay (1944) 268 App Div 135, 50 NYS2d 1.
Petition by district attorney of Kings County to compel appellants to vacate order, made by one of them as justice of Court of Special Sessions of City of New York, denying DA's application to restore case to calendar for trial, properly granted. It was ministerial obligation of appellants to restore case to calendar at instance of DA. Refusal was not judicial determination which would be appealable under this section, but neglect of ministerial duty subject to review under CPA Article 78. Silver v Gassman (1958, 2d Dept) 6 App Div 2d 694, 174 NYS2d 277, app den (1958) 5 NY2d 706.
Subdivision 4 of this section, as amended, authorizes an appeal by the people from an order granting or denying a motion to vacate a judgment of conviction, and, such an appeal having been taken, there is no necessity for resort to a proceeding under art. People v Riforgiato (1963, 4th Dept) 19 App Div 2d 132, 241 NYS2d 239.
No appeal lies from an order purporting to dismiss a charge of violation of probation and to vacate a warrant for a defendant's arrest as a probation violator. People v Batalias (1970, 2d Dept) 35 App Div 2d 740, 316 NYS2d 245.
Where the court substituted a corporation for the individual defendant after clearly pronouncing a finding of guilt against the individual defendant, the purported substitution was tantamount to an order in arrest of judgment and appeal by the people was therefore authorized. People v Brody (1965) 52 Misc 2d 851, 277 NYS2d 153.
A factor in determining whether or not the Supreme Court would hold the trial of certain misdemeanor cases in criminal court of City of New York without a jury as unconstitutional would be that the defendant could not be prejudiced by failure to hold such procedure unconstitutional, for it is reviewable on appeal from the judgment of conviction while, on the other hand, the People would be seriously prejudiced as no right of appeal from an order denying motion for prosecution by indictment exists on behalf of the People. People v Morganbesser (1968) 57 Misc 2d 678, 293 NYS2d 397.

17. --Inspection of grand jury minutes
Subdivision 5 of this section, providing that the prosecution can appeal in all cases where an appeal may be taken by defendant, except where a verdict or judgment of not guilty has been rendered, will not support an appeal by the prosecution from an order granting defendant's motion for leave to inspect the minutes of the Grand Jury. People v Moreli (1960, 3d Dept) 11 App Div 2d 437, 207 NYS2d 843.

18. --Suppression of evidence
In a case where one of two defendants had his motion to suppress evidence under § 813-c granted and the People appealed therefrom as authorized under subdivision 6 of the above statute, filing the statement required by § 518-a, and the other defendant thereafter joined in the motion and an order was entered reciting the papers submitted by such defendant and in effect resettling the prior order and granting the motion to suppress the evidence, it was held that under the terms of § 524-b it was not necessary for the People to appeal from such resettled order. People v Hoffman (1965, 2d Dept) 24 App Div 2d 497, 261 NYS2d 651.
Under Code of Criminal Procedure § 813-c, a motion to suppress may permit an examination of the factual basis for the issuance of the warrant and if an order of suppression is granted, even as a direct result of the search warrant's vacatur because of the inaccuracy of the underlying affidavits, or the invalidity of the proceedings before the issuing magistrate, an appeal will lie. People v Gold (1971) 65 Misc 2d 873, 319 NYS2d 296.
Before final judgment, a defendant has no right to appeal from an order denying an application to vacate a search warrant and to return seized property. People v Gold (1971) 65 Misc 2d 873, 319 NYS2d 296.

19. --Demurrer
An appeal may be taken by the people upon a judgment for the defendant on a demurrer to the indictment. People v Canepi (1905) 181 NY 398, 74 NE 473.
The term "indictment" as used in this section also means "information" in respect of appeals from courts of special sessions. Thus, the county court and the court of appeals had power to hear an appeal from a city court sustaining defendant's demurrer and dismissing an information. People v Levenstein (1956) 309 NY 433, 131 NE2d 719.
The People were entitled to appeal where the trial court sustained defendant's demurrer to one count of a 19-count indictment. People v Rossi (1959) 5 NY2d 396, 185 NYS2d 5, 157 NE2d 859.
Where the demurrer of a defendant to an information is sustained the people may, under this section, appeal from the judgment thereon. People v Hammerstein (1912) 150 App Div 212, 134 NYS 730, appeal after remand (1913) 155 App Div 204, 139 NYS 1075, affd (1914) 211 NY 552, 105 NE 1093.
The people may appeal from a judgment sustaining a demurrer to the indictment, although the decision gave the right to resubmit the case to the grand jury. People v Bink (1912) 151 App Div 271, 135 NYS 733.
Although respondent's motion to dismiss the information against him on the ground that it "fails to state a prima facie case of the commission of a crime" was treated as a demurrer by the Court of Special Sessions and hence, was not subject to review under subdivision 1 of this section it was in any event an order of the court dismissing the information on a ground other than the insufficiency of the evidence adduced at a trial and was appealable under subdivision 3 of this section. People v Malmud (1957, 2d Dept) 4 App Div 2d 86, 164 NYS2d 204.
Under this section, the People have a right to appeal from any judgment or order made at any stage of the action, dismissing an indictment on a demurrer or on any ground other than insufficiency of the evidence adduced at the trial, and a judicial determination which is "in the nature of a dismissal of an indictment" is appealable. People v Evans (1963, 2d Dept) 18 App Div 2d 1018, 239 NYS2d 80.
People have no right to appeal from order sustaining demurrer to part of indictment. People v Kupferman (1941) 175 Misc 650, 24 NYS2d 445.

20. --Dismissal of information
Where informations charged defendants with trespassing upon privately owned land under water, were undoubtedly sufficient on their face, but the trial judge, nevertheless, dismissed the charges as a matter of law on the basis of the evidence with respect to the navigable nature of the waterway and also on the basis of his own views on navigation, the dismissal was based on the insufficiency of the evidence adduced at the trial, and therefore the People could not appeal by virtue of the terms of subdivision 3 of this section. Kraemer v County Court of Suffolk County (1959) 6 NY2d 363, 189 NYS2d 878, 160 NE2d 633.
An appeal by the prosecution under subd. 3 of this section is not precluded by the fact that the order dismissing the information also vacated another County Judge's prior order directing that the information be filed. People v De Courcy (1960) 8 NY2d 192, 203 NYS2d 817, 168 NE2d 646.
Subdivision 3 of this section, in giving the prosecution a right to appeal from an order dismissing an information on grounds other than insufficiency of the evidence adduced at trial, does not prescribe, nor on the basis of its plain language can it be reasonably argued, as limited to dismissals affected by any particular procedural means, and it is only the finality of the dismissal which is of paramount concern. People v De Courcy (1960) 8 NY2d 192, 203 NYS2d 817, 168 NE2d 646.
Under subd. 3 of this section, providing that an appeal may be taken by the prosecution from an order of the court setting aside or dismissing an information upon a ground other than insufficiency of the evidence adduced at the trial, appeal by the prosecution will lie from an order of a County Court vacating a prior order of that court made by a different judge and directing filing of an information in the Court of Special Sessions and dismissing the information filed pursuant to that order. People v De Courcy (1960) 8 NY2d 192, 203 NYS2d 817, 168 NE2d 646.
The trial judge's "dismissal" of an information charging defendant motorist with speeding under § 1180 of the Vehicle and Traffic Law constituted a finding of not guilty or acquittal of the offense charged where the record demonstrated that he granted the motion to dismiss because he believed the evidence adduced failed to establish guilt because it failed to establish that speed limit signs were posted as required by law, notwithstanding he was in error as to what the law required, and the decision accordingly could not be appealed by the people. People v Marra (1963) 13 NY2d 18, 241 NYS2d 409, 191 NE2d 792.
Appeal was dismissed on ground that people appellant does not have right to appeal from order affirming judgment of police court which dismissed an information charging defendant with failing to pay parking fee at Niagara State Reservation. People v Loverde (1941) 262 App Div 946, 29 NYS2d 393.
After dismissal for insufficiency of evidence, order dismissing information for insufficiency of pleading was nullity. People v Gehlberd (1947) 272 App Div 914, 70 NYS2d 819.
Although respondent's motion to dismiss the information against him on the ground that it "fails to state a prima facie case of the commission of a crime" was treated as a demurrer by the Court of Special Sessions and hence, was not subject to review under subdivision 1 of this section it was in any event an order of the court dismissing the information on a ground other than the insufficiency of the evidence adduced at a trial and was appealable under subdivision 3 of this section. People v Malmud (1957, 2d Dept) 4 App Div 2d 86, 164 NYS2d 204.
The People do not have a right of appeal from order of a city magistrate to the Appellate Part of the Court of Special Sessions where the defendant is discharged and the complaint dismissed after trial is begun. People v Halbreich (1959) 18 Misc 2d 473, 186 NYS2d 689.
The People have no right to appeal from an order of Court of Special Sessions dismissing an information on the grounds of double jeopardy even though the dismissal was erroneous and no question as to the right of appeal was raised in the appeal court. Appeals being purely statutory, jurisdiction can never be assumed except when expressly conferred by statute. People v Bates (1953, Co Ct) 124 NYS2d 315.

21. --Dismissal of indictment
If after a jury is impaneled and before testimony is taken, the judge on motion of self or defendant dismisses the indictment for insufficiency, there is no possible way of reviewing his decision. People v Reed (1937) 276 NY 5, 11 NE2d 330.
Order dismissing indictment for insufficiency at end of case, without submission to jury, is not appealable, although erroneous. People v Reed (1937) 276 NY 5, 11 NE2d 330.
Subdivision 3 of this section was designed solely to allow the people to appeal from an order, made after commencement of trial, which dismissed the indictment upon the ground that the facts stated did not constitute a crime or upon one of the other grounds specified in §§ 323 and 331. People v Marra (1963) 13 NY2d 18, 241 NYS2d 409, 191 NE2d 792.
Judgment dismissing indictment because defendants, having committed acts prohibited by Penal Law § 986, were exempt from criminal liability was not appealable, as such dismissal was tantamount to direction of verdict. People v Reed (1937) 252 App Div 214, 298 NYS 624, affd (1937) 276 NY 5, 11 NE2d 330.
Ordering dismissing indictment on grand jury minutes, granted at special term, held appealable by people. People v Egnor (1939) 256 App Div 396, 10 NYS2d 915.
Order dismissing three counts of indictment for perjury held not appealable. People v Mulligan (1940) 259 App Div 750, 18 NYS2d 709.
Order dismissing indictment because of break in continuity between proceedings instituted before magistrate and subsequent finding of indictment by grand jury does not fall within provisions of this section and is not appealable. People v Rapoport (1941) 261 App Div 484, 26 NYS2d 110.
Appeal by the prosecution from an order in a criminal case is barred by the exception in subd. 3 of this section where it appears from the record that the ground on which an indictment was actually dismissed was insufficiency of proof. People v Trudeau (1962, 4th Dept) 16 App Div 2d 886, 228 NYS2d 783.
There can be no appeal by the prosecution from a dismissal of an indictment predicated upon a finding of insufficiency of evidence, and likewise, no appeal from a determination that the confession was involuntary. People v Jeffrey (1965, 1st Dept) 23 App Div 2d 846, 259 NYS2d 866, affd (1966) 17 NY2d 515, 267 NYS2d 514, 214 NE2d 791.
This section, in permitting appeal by the prosecution as of right from a court order, made at any stage of the action, setting aside or dismissing the indictment on a ground other than insufficiency of evidence adduced at the trial, does not sanction appeal by the prosecution from a judgment rendered on the merits after a full trial, notwithstanding the dismissal or judgment is based on a ground other than sufficiency of evidence. People v Kassover (1960) 24 Misc 2d 1080, 205 NYS2d 428.

22. --Acquittal
People cannot appeal from judgment acquitting defendant, charged with adultery, entered upon recommended verdict of jury of not guilty. People v Moon (1939) 257 App Div 1019, 12 NYS2d 861.
Where the decision of the court is on the merits, the discharge of defendant is equivalent to an acquittal, and the people may not appeal, even though the court erred in discharging defendant. People v Merrill (1935) 156 Misc 637, 282 NYS 809.

23. --Sentencing
People may appeal from order denying people's motion for resentence. People v Heath (1932) 237 App Div 209, 261 NYS 15, app dismd (1933) 261 NY 662, 185 NE 782, reh den (1933) 262 NY 469, 188 NE 24.
Where final order in habeas corpus dismissed writ and remanded prisoner with directions for transfer of his custody as incident to arranging for his resentence, people may appeal from such order. People ex rel. Bernoff v Jackson (1945) 269 App Div 580, 56 NYS2d 675.
Under subd. 5 of this section, the People have a right to appeal in all cases where an appeal "may" be taken by defendant, and where a defendant could appeal in order to obtain a modification or reduction of sentence, the People are likewise entitled to appeal. People v Evans (1963, 2d Dept) 18 App Div 2d 1018, 239 NYS2d 80.
Under subd. 5 of this section, the people may appeal from a judgment of conviction which fails to impose a second felony offender sentence upon defendant, a prior felony conviction in federal court having been duly established. People v Garland (1964, 2d Dept) 20 App Div 2d 822, 248 NYS2d 700.
The People have the same right as the defendant to appeal from an order they consider to be an illegal sentence. People v Vitalo (1960) 20 Misc 2d 861, 195 NYS2d 409.

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec prec § 995 (2001)
Preceding § 995

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995 (2001)
§ 995. Definitions

When used in this article, the following words and terms shall have the meanings ascribed to them in this section:

1. For purposes of general forensic analysis the term "forensic laboratory" shall mean any laboratory operated by the state or unit of local government that performs forensic testing on evidence in a criminal investigation or proceeding or for purposes of identification provided, however, that the examination of latent fingerprints by a police agency shall not be subject to the provisions of this article.

2. For purposes of forensic DNA analysis, the term "forensic DNA laboratory" shall mean any forensic laboratory operated by the state or unit of local government, that performs forensic DNA testing on crime scenes or materials derived from the human body for use as evidence in a criminal proceeding or for purposes of identification and the term "forensic DNA testing" shall mean any test that employs techniques to examine deoxyribonucleic acid (DNA) derived from the human body for the purpose of providing information to resolve issues of identification. Regulation pursuant to this article shall not include DNA testing on materials derived from the human body pursuant to title five of article five of the public health law for the purpose of determining a person's genetic disease or medical condition and shall not include a laboratory operated by the federal government.

3. "DNA testing methodology" means methods and procedures used to extract and analyze DNA material, as well as the methods, procedures, assumptions, and studies used to draw statistical inferences from the test results.

4. "Blind external proficiency testing" means a test sample that is presented to a forensic laboratory for forensic DNA testing through a second agency, and which appears to the analysts to involve routine evidence submitted for forensic DNA testing.

5. "DNA" means deoxyribonucleic acid.

6. "State DNA identification index" means the DNA identification record system for New York state established pursuant to this article.

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[:] *

- - - - - - - - - - - - - - - - - FOOTNOTES - - - - - - - - - - - - - - - - -

* The bracketed punctuation has been inserted by the Publisher.

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(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

- - - - - - - - - - - - - - - - - FOOTNOTES - - - - - - - - - - - - - - - - -

* So in original.

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(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 [fig 1] degree, as defined [fig 2] in [fig 3] subdivision five of section 155.30 [fig 4] of the penal law [fig 5] .

8. "DNA record" means DNA identification information prepared by a forensic DNA laboratory and stored in the state DNA identification index for purposes of establishing identification in connection with law enforcement investigations or supporting statistical interpretation of the results of DNA analysis. A DNA record is the objective form of the results of a DNA analysis sample.

9. "DNA subcommittee" shall mean the subcommittee on forensic DNA laboratories and forensic DNA testing established pursuant to subdivision thirteen of section nine hundred ninety-five-b of this article.

10. "Commission" shall mean the commission on forensic science established pursuant to section nine hundred ninety-five-a of this article.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).
Sub 7, opening par, formerly part of entire sub 7, so designated sub 7, opening par, L 1999, ch 560, § 1, eff Dec 1, 1999 (see 1999 note below).
Sub 7, par (a), formerly part of entire sub 7, so designated sub 7, par (a) and amd, L 1999, ch 560, § 1, eff Dec 1, 1999 (see 1999 note below).
Sub 7, par (b), add, L 1999, ch 560, § 1, eff Dec 1, 1999 (see 1999 note below); amd, L 2000, ch 8, § 1, eff March 6, 2000, deemed eff Dec 1, 1999.
The 2000 act deleted at fig 1 ", third, second or first", at fig 2 "respectively", at fig 3 "sections", at fig 4 ", 155.35, 155.40 or 155.45," and at fig 5 ", but only when such larceny is from a person pursuant to subparagraph (i) of paragraph (e) of subdivision two of section 155.05 of the penal law"

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.
Laws 1999, ch 560.§ 9 (a), eff Dec 1, 1999, provides as follows:
§ 9. This act shall take effect December 1, 1999; provided, further, however, that:
(a) paragraph (a) of subdivision seven of section 995 of the executive law, as amended 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 designated offense has not been completed prior to the effective date of this act, provided further, that paragraph (b) of subdivision seven of section 995 of the executive law, as amended by section one of this act, shall take effect and apply only to designated offenders convicted on or after the effective date of this act; and provided further that an appeal pursuant to subdivision 5 of section 450.10 of the criminal procedure law as added by section seven of this act or subdivision 11 of section 450.20 of the criminal procedure law, as added by section eight of this act, shall apply to motions pursuant to subdivision 1-a of section 440.30 of the criminal procedure law determined prior to, or on or after, such effective date of this act (Amd, L 2000, ch 8, § 2, eff March 6, 2000, deemed eff Dec 1, 1999.).

CROSS REFERENCES:
This section referred to in § 995-c

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995-a (2001)
§ 995-a. Commission on forensic science

1. There is hereby created in the executive department, the commission on forensic science, which shall consist of the following fourteen members:

(a) the commissioner of the division of criminal justice services who shall be chair of the commission and the commissioner of the department of health or his or her designee, who shall serve as an ex-officio member of the commission;

(b) twelve members appointed by the governor.

2. Of the members appointed by the governor,

(a) one member shall be the chair of the New York state crime laboratory advisory committee;

(b) one member shall be the director of a forensic laboratory located in New York state;

(c) one member shall be the director of the office of forensic services within the division of criminal justice services;

(d) two members shall be a scientist having experience in the areas of laboratory standards or quality assurance regulation and monitoring and shall be appointed upon the recommendation of the commissioner of health;

(e) one member shall be a representative of a law enforcement agency and shall be appointed upon the recommendation of the commissioner of criminal justice services;

(f) one member shall be a representative of prosecution services who shall be appointed upon the recommendation of the commissioner of criminal justice services;

(g) one member shall be a representative of the public criminal defense bar who shall be appointed upon the recommendation of an organization representing public defense services;

(h) one member shall be a representative of the private criminal defense bar who shall be appointed upon the recommendation of an organization of such bar;

(i) two members shall be members-at-large, one of whom shall be appointed upon the recommendation of the temporary president of the senate, and one of whom shall be appointed upon the recommendation of the speaker of the assembly; and

(j) one member, who shall be an attorney or judge with a background in privacy issues and biomedical ethics, shall be appointed upon the recommendation of the chief judge of the court of appeals.

3. Of the members appointed by the governor, each member shall be appointed to serve a three year term. Any member appointed by the governor may be reappointed for additional three year terms.

4. Any member chosen to fill a vacancy created otherwise than by expiration of term shall be appointed by the governor for the unexpired term of the member he or she is to succeed. Any such vacancy shall be filled in the same manner as the original appointment.

5. The commission shall meet at least four times each year and may establish its own rules and procedures concerning the conduct of its meetings and other affairs not inconsistent with law.

6. No member of the commission on forensic science shall be disqualified from holding any public office or employment, nor shall he or she forfeit any such office or employment, by reason of his or her appointment hereunder, and members of the commission shall not be required to take and file oaths of office before serving on the commission.

7. Members of the commission shall receive no compensation for their services but shall be allowed their actual and necessary expenses incurred in the performance of their functions hereunder.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

CROSS REFERENCES:
This section referred to in §§ 995, 995-b

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995-b (2001)
§ 995-b. Powers and duties of the commission

1. The commission shall develop minimum standards and a program of accreditation for all forensic laboratories in New York state, including establishing minimum qualifications for forensic laboratory directors and such other personnel as the commission may determine to be necessary and appropriate, and approval of forensic laboratories for the performance of specific forensic methodologies. Nothing in this article shall be deemed to preclude forensic laboratories from performing research and validation studies on new methodologies and technologies which may not yet be approved by the commission at that time.

In designing a system of accreditation pursuant to this article, the commission shall evaluate other systems of accreditation.

2. The minimum standards and program of accreditation shall be designed to accomplish the following objectives:

(a) increase and maintain the effectiveness, efficiency, reliability, and accuracy of forensic laboratories, including forensic DNA laboratories;

(b) ensure that forensic analyses, including forensic DNA testing, are performed in accordance with the highest scientific standards practicable;

(c) promote increased cooperation and coordination among forensic laboratories and other agencies in the criminal justice system;

(d) ensure compatibility, to the extent consistent with the provisions of this article and any other applicable provision of law pertaining to privacy or restricting disclosure or redisclosure of information, with other state and federal forensic laboratories to the extent necessary to share and exchange information, data and results of forensic analyses and tests; and

(e) set forth minimum requirements for the quality and maintenance of equipment.

2-a. Any program of forensic laboratory accreditation with respect to a DNA laboratory pursuant to this section shall be under the direction of the DNA subcommittee established pursuant to subdivision thirteen of this section. Such subcommittee shall have the sole authority to grant, deny, review or modify a DNA forensic laboratory accreditation pursuant to this article, provided that such authority shall be effectuated through binding recommendations made by the DNA subcommittee to the commission. In the event the commission disagrees with any of the binding recommendations of the DNA subcommittee made pursuant to this article, the commission may so notify such subcommittee and request such subcommittee to reasonably review such binding recommendations. The DNA subcommittee shall conduct such review and either forward revised binding recommendations to the commission or indicate, with the reasons therefor, that following such review such subcommittee has determined that such binding recommendations shall not be revised.

3. The program of forensic laboratory accreditation shall include, at a minimum, the following requirements:

(a) an initial laboratory inspection, and routine inspections, as necessary, to ensure compliance with accreditation requirements;

(b) routine internal and external proficiency testing of all laboratory personnel involved in forensic analysis, including blind external proficiency testing if the commission, or the DNA subcommittee as the case may be, determines such a blind proficiency testing program to be practicable and appropriate. In determining whether a blind proficiency testing program is practicable and appropriate, the commission, or the DNA subcommittee as the case may be, shall consider such factors as accuracy and reliability of laboratory results, cost-effectiveness, time, allocation of resources, and availability;

(c) quality control and quality assurance protocols, a method validation procedure and a corrective action and remedial program;

(d) annual certification to the commission by the forensic laboratories of their continued compliance with the requirements of the accreditation program which certification, in the case of a forensic DNA laboratory, shall be forwarded to the DNA subcommittee;

(e) the accreditation of a forensic laboratory may be revoked, suspended or otherwise limited, upon a determination by the commission or, in the case of a forensic DNA laboratory, upon the binding recommendation of the DNA subcommittee, that the laboratory or one or more persons in its employ:
(i) is guilty of misrepresentation in obtaining a forensic laboratory accreditation;
(ii) rendered a report on laboratory work actually performed in another forensic laboratory without disclosing the fact that the examination or procedure was performed by such other forensic laboratory;
(iii) showed a pattern of excessive errors in the performance of forensic laboratory examination procedures;
(iv) failed to file any report required to be submitted pursuant to this article or the rules and regulations promulgated pursuant thereto; or
(v) violated in a material respect any provision of this article or the rules and regulations promulgated pursuant thereto; and

(f) no forensic laboratory accreditation shall be revoked, suspended, or otherwise limited without a hearing. The commission shall serve written notice of the alleged violation, together with written notice of the time and place of the hearing, which notice shall be mailed by certified mail to the holder of the forensic laboratory accreditation at the address of such holder at least twenty-one days prior to the date fixed for such hearing. An accredited laboratory may file a written answer to the charges with the commission, not less than five days prior to the hearing.

4. A laboratory director who knowingly operates a laboratory without obtaining the accreditation required by this article, or who, with the intent to mislead or deceive, misrepresents a material fact to the commission or DNA subcommittee, shall be subject to a civil penalty not to exceed seventy-five hundred dollars and such other penalties as are prescribed by the law.

5. The commission and the DNA subcommittee established pursuant to subdivision thirteen of this section may require and receive from any agency of the state or any political subdivision thereof such assistance and data as may be necessary to enable the commission or DNA subcommittee to administer the provisions of this article. The commission or DNA subcommittee may enter into such cooperative arrangements with the division of criminal justice services, the department of health, and any other state agency, each of which is authorized to enter into such cooperative arrangements as shall be necessary or appropriate. Upon request of the commission or DNA subcommittee, any state agency may transfer to the commission such officers and employees as the commission or DNA subcommittee may deem necessary from time to time to assist the commission or DNA subcommittee in carrying out its functions and duties. Officers and employees so transferred shall not lose their civil service status or rights, and shall remain in the negotiating unit, if any, established prior to such transfer.

6. All of the commission's records, reports, assessments, and evaluation with respect to accreditation, implementation of quality assurance standards (including proficiency testing) and monitoring thereof, shall be archived by the commission.

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

8. The commission or DNA subcommittee shall designate one or more entities for the performance of proficiency tests required pursuant to the provisions of this article.

9. After reviewing recommendations from the division of criminal justice services, the commission, in consultation with the DNA subcommittee, shall promulgate a policy for the establishment and operation of a DNA identification index consistent with the operational requirements and capabilities of the division of criminal justice services. Such policy shall address the following issues:

(a) the forensic DNA methodology or methodologies to be utilized in compiling the index;

(b) procedures for assuring that the state DNA identification index contains the following safeguards:
(i) that any records maintained as part of such an index are accurate and complete;
(ii) that effective software and hardware designs are instituted with security features to prevent unauthorized access to such records;
(iii) that periodic audits will be conducted to ensure that no illegal disclosures of such records have taken place;
(iv) that access to record information system facilities, systems operating environments, data file contents whether while in use or when stored in a media library is restricted to authorized personnel only;
(v) that operation programs are used that will prohibit inquiry, record updates, or destruction of records from any source other than an authorized source of inquiry, update, or destruction of records;
(vi) that operational programs are used to detect and store for the output of authorized employees only all unauthorized attempts to penetrate the state DNA identification index;
(vii) that adequate and timely procedures exist to insure that any subject of the state DNA identification index has the right of access to and review of records relating to such individual contained in such index for the purpose of ascertaining their accuracy and completeness, including procedures for review of information maintained about such individuals and administrative review (including procedures for administrative appeal) and the necessary documentation to demonstrate that the information is inaccurate or incomplete;
(viii) that access to the index will be granted to an agency authorized by this article to have such access only pursuant to a written use and dissemination agreement, a copy of which is filed with the commission, which agreement sets forth the specific procedures by which such agency shall implement the provisions of subparagraphs (i) through (vii) of this paragraph, as applicable, and which agreement specifically prohibits the redisclosure by such agency of any information obtained from the DNA identification index; and
(ix) such policy shall provide for the mutual exchange, use and storage of DNA records with the system of DNA identification utilized by the federal bureau of investigation provided that the commission determines that such exchange, use and storage are consistent with the provisions of this article and applicable provisions of law.

10. Review, and if necessary, recommend modifications to, a plan for implementation of the DNA identification index submitted by the commissioner of criminal justice services pursuant to section nine hundred ninety-five-c of this article.

11. Upon the recommendation of the DNA subcommittee established pursuant to subdivision thirteen of this section, the commission shall designate one or more approved methodologies for the performance of forensic DNA testing, and shall review and act upon applications by forensic DNA laboratories for approval to perform forensic DNA testing.

12. Promulgate standards for a determination of a match between the DNA records contained in the state DNA identification index and a DNA record of a person submitted for comparison therewith.

13. (a) The commission shall establish a subcommittee on forensic DNA laboratories and forensic DNA testing. The chair of the subcommittee shall be appointed by the chair of the commission. The chair of the subcommittee shall appoint six other members to the subcommittee, one of whom shall represent the discipline of molecular biology and be appointed upon the recommendation of the commissioner of the department of health, one of whom shall represent the discipline of population genetics and be appointed upon the recommendation of the commissioner of the department of health, one of whom shall be representative of the discipline of laboratory standards and quality assurance regulation and monitoring and be appointed upon the recommendation of the commissioner of the department of health, one of whom shall be a forensic scientist and be appointed [fig 1] upon the recommendation of the commissioner of the department of health, one of whom shall be representative of the discipline of population genetics and be appointed upon the recommendation of the commissioner of criminal justice services and one of whom shall be representative of the discipline of forensic science and be appointed upon the recommendation of the commissioner of criminal justice services. Members of the DNA subcommittee shall serve for three year terms and be subject to the conditions of service specified in section nine hundred ninety-five-a of this article.

(b) The DNA subcommittee shall assess and evaluate all DNA methodologies proposed to be used for forensic analysis, and make reports and recommendations to the commission as it deems necessary. The DNA subcommittee shall make binding recommendations for adoption by the commission addressing minimum scientific standards to be utilized in conducting forensic DNA analysis including, but not limited to, examination of specimens, population studies and methods employed to determine probabilities and interpret test results. The DNA subcommittee may require a demonstration by an independent laboratory of any proposed forensic DNA testing methodology proposed to be used by a forensic laboratory.

(c) The DNA subcommittee shall make binding recommendations for adoption by the commission with regard to an accreditation program for laboratories performing forensic DNA testing in accordance with the provisions of the state administrative procedure act. Such recommendations shall include the adoption and implementation of internal and external proficiency testing programs, including, if possible, a blind external proficiency testing program for forensic laboratories performing forensic DNA testing. The DNA subcommittee shall also provide the commission with a list of accepted proficiency testers.

(d) The DNA subcommittee shall be authorized to advise the commission on any other matters regarding the implementation of scientific controls and quality assurance procedures for the performance of forensic DNA testing, or on any other matters referred to it by the commission.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).
Sub 13, par (a), amd, L 1999, ch 560, § 2, eff Dec 1, 1999.
The 1999 act deleted at fig 1 "by"

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

CROSS REFERENCES:
This section referred to in §§ 995, 995-c

CODES, RULES AND REGULATIONS:
Division of criminal justice services: DNA databank. 9 NYCRR §§ 6192.1 et seq
Division of criminaal justice services: forensic DNA testing. 9 NYCRR Parts 6190, 6191

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

NY CLS Exec § 995-c (2001)
§ 995-c. State DNA identification index

1. Following the promulgation of a policy by the commission pursuant to subdivision nine of section nine hundred ninety-five-b of this article, the commissioner of criminal justice services is authorized to promulgate a plan for the establishment of a computerized state DNA identification index within the division of criminal justice services.

2. Following the review and approval of the plan by the DNA subcommittee and the commission and the filing of such plan with the speaker of the assembly and the temporary president of the senate, the commissioner of criminal justice services is hereby authorized to establish a computerized state DNA identification index pursuant to the provisions of this article.

3. Any designated offender subsequent to conviction and sentencing for a felony specified in subdivision seven of section nine hundred ninety-five of this article, shall be required to provide a sample [fig 1] appropriate for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index pursuant to this article.

4. The commissioner of the division of criminal justice services, in consultation with the commission, the commissioner of health, the divisions of parole and of probation and correctional alternatives and the department of correctional services, shall promulgate rules and regulations governing the procedures for notifying designated offenders of the requirements of this section.

5. The [fig 1] sample shall be collected, stored and forwarded to any forensic DNA laboratory which has been authorized by the commission to perform forensic DNA testing and analysis for inclusion in the state DNA identification index. Such laboratory shall promptly perform the requisite testing and analysis, and forward the resulting DNA record only to the state DNA identification index in accordance with the regulations of the division of criminal justice services. Such laboratory shall perform DNA analysis only for those markers having value for law enforcement identification purposes. For the purposes of this article, the term "marker" shall have the meaning generally ascribed to it by members of the scientific community experienced in the use of DNA technology.

6. DNA records contained in the state DNA identification index shall be released only for the following purposes:

(a) to a federal law enforcement agency, or to a state or local law enforcement agency or district attorney's office for law enforcement identification purposes upon submission of a DNA record in connection with the investigation of the commission of one or more crimes or to assist in the recovery or identification of specified human remains, including identification of missing persons, provided that there exists between the division and such agency a written agreement governing the use and dissemination of such DNA records in accordance with the provisions of this article;

(b) for criminal defense purposes, to a defendant or his or her representative, who shall also have access to samples and analyses performed in connection with the case in which such defendant is charged;

(c) after personally identifiable information has been removed by the division, to an entity authorized by the division for the purpose of creating or maintaining a population statistics database or for identification research and protocol development for forensic DNA analysis or quality control purposes.

7. Requests for DNA records must be in writing, or in a form prescribed by the division authorized by the requesting party, and, other than a request pursuant to paragraph (b) of subdivision six of this section, maintained on file at the state DNA identification index in accordance with rules and regulations promulgated by the commissioner of the division of criminal justice services.

8. The defendant, including the representative of a defendant, in a criminal action or proceeding shall have access to information in the state DNA identification index relating to the number of requests previously made for a comparison search and the name and identity of any requesting party.

9. Upon receipt of notification of a reversal of a conviction, or of the granting of a pardon pursuant to article two-A of this chapter, of an individual whose DNA record has been stored in the state DNA identification index in accordance with this article by the division of criminal justice services, the DNA record shall be expunged from the state DNA identification index, and the division shall, by rule or regulation, prescribe procedures to ensure that the record, and any samples, analyses, or other documents relating to such record, whether in the possession of the division, or any law enforcement or police agency, or any forensic DNA laboratory, including any duplicates or copies thereof, are returned to such individual, or to the attorney who represented him or her at the time such reversal or pardon, was granted. The commissioner shall also adopt by rule and regulation a procedure for the expungement in other appropriate circumstances of DNA records contained in the index.

HISTORY:
Add, L 1994, ch 737, § 1, eff Jan 1, 1996 (see 1994 note below).
Sub 3, amd, L 1999, ch 560, § 3, eff Dec 1, 1999.
The 1999 act deleted at fig 1 "of blood"
Sub 5, amd, L 1999, ch 560, § 4, eff Dec 1, 1999.
The 1999 act deleted at fig 1 "blood"

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

CROSS REFERENCES:
This section referred to in §§ 995-b, 995-d

CODES, RULES AND REGULATIONS:
Division of criminal justice services: DNA databank. 9 NYCRR §§ 6192.1 et seq
Division of criminaal justice services: forensic DNA testing. 9 NYCRR Parts 6190, 6191

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995-d (2001)
§ 995-d. Confidentiality

1. All records, findings, reports, and results of DNA testing performed on any person shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing. Such records, findings, reports and results shall not be released to insurance companies, employers or potential employers, health providers, employment screening or personnel companies, agencies, or services, private investigation services, and may not be disclosed in response to a subpoena or other compulsory legal process or warrant, or upon request or order of any agency, authority, division, office, corporation, partnership, or any other private or public entity or person, except that nothing contained herein shall prohibit disclosure in response to a subpoena issued on behalf of the subject of such DNA record or on behalf of a party in a civil proceeding where the subject of such DNA record has put such record in issue.

2. Notwithstanding the provisions of subdivision one of this section, records, findings, reports, and results of DNA testing, other than a DNA record maintained in the state DNA identification index, may be disclosed in a criminal proceeding to the court, the prosecution, and the defense pursuant to a written request on a form prescribed by the commissioner of the division of criminal justice services. Notwithstanding the provisions of subdivision one of this section, a DNA record maintained in the state DNA identification index may be disclosed pursuant to section nine hundred [fig 1] ninety-five-c of this article.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).
Sub 2, amd, L 1999, ch 560, § 5, eff Dec 1, 1999.
The 1999 act deleted at fig 1 "fifty-five-c"

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995-e (2001)
§ 995-e. Applicability

This article shall not apply to a forensic DNA laboratory operated by any agency of the federal government, or to any forensic DNA test performed by any such federal laboratory.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

EXECUTIVE LAW
ARTICLE 49-B. COMMISSION ON FORENSIC SCIENCE AND ESTABLISHMENT OF DNA IDENTIFICATION INDEX

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NY CLS Exec § 995-f (2001)
§ 995-f. Penalties

Any person who (a) intentionally discloses a DNA record, or the results of a forensic DNA test or analysis, to an individual or agency other than one authorized to have access to such records pursuant to this article or (b) intentionally uses or receives DNA records, or the results of a forensic DNA test or analysis, for purposes other than those authorized pursuant to this article or (c) any person who knowingly tampers or attempts to tamper with any DNA sample or the collection container without lawful authority shall be guilty of a class [fig 1] E felony.

HISTORY:
Add, L 1994, ch 737, § 1, eff Aug 2, 1994 (see 1994 note below).
Amd, L 1999, ch 560, § 6, eff Dec 1, 1999.
The 1999 act deleted at fig 1 "A misdemeanor, and upon conviction thereof, shall be subject to a fine of not more than ten thousand dollars and such other penalties as are provided in this chapter"

NOTES:

EDITOR'S NOTES:
Laws 1994, ch 737, § 3, eff Aug 2, 1994, provides as follows:
§ 3. This act shall take effect immediately; provided, however that section 995-c of the executive law, as added by section one of this act, shall take effect January 1, 1996 and shall apply to any designated offenders who are convicted on or after that date; and provided further that the commission on forensic science established pursuant to section 995-a of the executive law, as added by section one of this act, and the commissioner of criminal justice services shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this act prior to such effective date and provided further that no forensic laboratory shall be required to become accredited with respect to the performance of forensic DNA testing pursuant to this act prior to January 1, 1996 and provided further that no forensic laboratory shall be required to be fully accredited pursuant to this act prior to July 1, 1997.

FEDERAL ASPECTS:
Crime Identification Technology Act of 1998, P.L. 105-251 §§ 101 et seq

RESEARCH REFERENCES AND PRACTICE AIDS:
ANNOTATIONS:
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239

NORTH CAROLINA

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266 (2000)
§ 15A-266. Short title

This Article may be cited as the DNA Database and Databank Act of 1993.

HISTORY: 1993, c. 401, s. 1.

NOTES:
EDITOR'S NOTE. --Session Laws 1993, c. 401, s. 2 makes this Article effective December 1, 1993, only if the General Assembly appropriates funds to implement the purposes of the act. Funds have been appropriated.

LEGAL PERIODICALS. --For comment, "DNA Databases: The Case for the Combined DNA Index System," see 29 Wake Forest L. Rev. 889 (1994).
For article, "DNA Databanks: Law Enforcement's Greatest Surveillance Tools?," see 34 Wake Forest L. Rev. 767 (1999).
For article, "Genetic Testing, Genetic Medicine, And Managed Care," see 34 Wake Forest L. Rev. 849 (1999).
For article, "The Use of Genetic Testing in the Courtroom," see 34 Wake Forest L. Rev. 889 (1999).

NOTES APPLICABLE TO ENTIRE CHAPTER

OFFICIAL COMMENTARY
This commentary is based upon the commentary included in the January 1973 report of the Criminal Code Commission with its proposed code of pretrial procedure. The consultant-draftsmen of the Commission have revised the commentary to reflect changes that were made by the General Assembly in the course of passage.
The Commission's commentary was drafted by the consultant-draftsmen in an effort to explain the rationale behind policy decisions, to enlighten practitioners as to the aims and intent of the Commission, and in some cases to draw attention to pertinent cases or factual situations which either made the inclusion of a provision desirable or necessary.
The Commission's debates and debates in committees of the legislature and on the floor are the source of much of this commentary but neither the commission nor any legislative official has reviewed and approved this commentary on a line-by-line basis.

EDITOR'S NOTE. --Session Laws 1973, c. 1286, repealed many, but not all, of the sections of Chapter 15, Criminal Procedure, and a number of sections elsewhere in the General Statutes, and enacted in their place Chapter 15A, Criminal Procedure Act, effective July 1, 1975. Certain sections in Chapter 15 and in other chapters of the General Statutes were transferred and renumbered as sections in Chapter 15A. Where appropriate, the historical citations to the repealed sections have been added to corresponding sections in Chapter 15A.
The "Official Commentary" under Articles 1 to 34, 36 to 61 of this Chapter appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.
Many of the cases cited in the annotations under the various sections of this Chapter were decided under former similar provisions of Chapter 15 and earlier statutes.
Session Laws 1973, c. 1286, ss. 27, 28 and 31, provided:
"Sec. 27. All statutes which refer to sections repealed or amended by this act shall be deemed, insofar as possible, to refer to those provisions of this act which accomplish the same or an equivalent purpose.
"Sec. 28. None of the provisions of this act providing for the repeal of certain sections of the General Statutes shall constitute a reenactment of the common law.
"Sec. 31. This act becomes effective on July 1, 1975, and is applicable to all criminal proceedings begun on and after that date and each provision is applicable to criminal proceedings pending on that date to the extent practicable, except § 12 [§§ 15-176.3 through 15-176.5] of this act which becomes effective on July 1, 1974."
Session Laws 1975, c. 573, amended Session Laws 1973, c. 1286, s. 31, so as to make the 1973 act effective Sept. 1, 1975, rather than July 1, 1975.
Session Laws 1975, c. 166, ss. 27 and 28, provided:
"Sec. 27. Chapter 15A of the General Statutes is hereby amended by striking out the words "district solicitor' wherever the words appear throughout Chapter 15A, and inserting in lieu thereof the words "district attorney,' and by striking out the word "solicitor,' wherever the word appears throughout Chapter 15A and inserting in lieu thereof the word "prosecutor.' The Michie Company, publishers of the General Statutes of North Carolina, is authorized and directed to make the changes directed above wherever they might appear appropriate in the text of Chapter 15A of the General Statutes.
"Sec. 28. This act shall become effective on the date that Chapter 1286 of the 1973 Session Laws becomes effective."

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.1 (2000)
§ 15A-266.1. Policy

It is the policy of the State to assist federal, State, and local criminal justice and law enforcement agencies in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes against the person. Identification, detection, and exclusion is facilitated by the analysis of biological evidence that is often left by the perpetrator or is recovered from the crime scene. The analysis of biological evidence can also be used to identify missing persons and victims of mass disasters.

HISTORY: 1993, c. 401, s. 1.

CASE NOTES

DRAWING BLOOD FOR DNA TESTING CONSTITUTIONAL. --Drawing of blood from prison inmates for deoxyribonucleic acid (DNA) sampling did not violate the fourth amendment's prohibition of unreasonable search and seizure. Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994).

FORCE USED TO OBTAIN DNA SAMPLES WAS NOT EXCESSIVE. --Ensuring compliance with a lawful order, such as the deoxyribonucleic acid (DNA) sampling procedure, was a matter of institutional security and discipline; therefore, the actual force used did not constitute cruel and unusual punishment simply because it caused pain to the inmates involved. There were no facts or allegations that the force being used to obtain DNA samples from inmates was being applied with the intention of harming the inmates. Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.2 (2000)
§ 15A-266.2. Definitions

As used in this Article, unless another meaning is specified or the context clearly requires otherwise, the following terms have the meanings specified:

(1) "CODIS" means the FBI's national DNA identification index system that allows the storage and exchange of DNA records submitted by State and local forensic DNA laboratories. The term "CODIS" is derived from Combined DNA Index System.

(2) "DNA" means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.

(3) "DNA Record" means DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification tests on an individual's DNA sample are also collectively referred to as the DNA profile of an individual.

(4) "DNA Sample" in this Article means a blood sample provided by any person convicted of offenses covered by this Article or submitted to the SBI Laboratory for analysis pursuant to a criminal investigation.

(5) "FBI" means the Federal Bureau of Investigation.

(6) "SBI" means the State Bureau of Investigation. The SBI is responsible for the policy management and administration of the State DNA identification record system to support law enforcement, and for liaison with the FBI regarding the State's participation in CODIS.

(7) "State DNA Database" means the SBI's DNA identification record system to support law enforcement. It is administered by the SBI and provides DNA records to the FBI for storage and maintenance in CODIS. The SBI's DNA Database system is the collective capability provided by computer software and procedures administered by the SBI to store and maintain DNA records related to forensic casework, to convicted offenders required to provide a DNA sample under this Article, and to anonymous DNA records used for research or quality control.

(8) "State DNA Databank" means the repository of DNA samples collected under the provisions of this Article.

HISTORY: 1993, c. 401, s. 1.

NOTES:
LEGAL PERIODICALS. --For comment, "DNA Databases: The Case for the Combined DNA Index System," see 29 Wake Forest L. Rev. 889 (1994).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.3 (2000)
§ 15A-266.3. Procedural compatibility with the FBI

The DNA identification system as established by the SBI shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies, and computer software.

HISTORY: 1993, c. 401, s. 1.

NOTES:
LEGAL PERIODICALS. --For article, "DNA Databanks: Law Enforcement's Greatest Surveillance Tools?," see 34 Wake Forest L. Rev. 767 (1999).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.4 (2000)
§ 15A-266.4. Blood sample required for DNA analysis upon conviction

(a) On or after 1 July 1994, a person who is convicted of any of the crimes listed in subsection (b) of this section shall have a DNA sample drawn upon intake to a jail or prison. In addition, every person convicted on or after 1 July 1994, of any of these crimes, but who is not sentenced to a term of confinement, shall provide a DNA sample as a condition of the sentence. A person who has been convicted and incarcerated as a result of a conviction of one or more of these crimes prior to 1 July 1994 shall have a DNA sample drawn before parole or release from the penal system.

(b) Crimes covered by this Article include:

G.S. 14-17 -- Murder in the first and second degree.

G.S. 14-27.2 -- First degree rape.

G.S. 14-27.3 -- Second degree rape.

G.S. 14-27.4 -- First degree sexual offense.

G.S. 14-27.5 -- Second degree sexual offense.

G.S. 14-28 -- Malicious castration.

G.S. 14-29 -- Castration or other maiming.

G.S. 14-30 -- Malicious maiming.

G.S. 14-30.1 -- Malicious throwing of corrosive acid or alkali.

G.S. 14-31 -- Malicious assault in secret manner.

G.S. 14-32 -- Felonious assault with deadly weapon with intent to kill.

G.S. 14-32.1 -- Assaults on handicapped persons.

G.S. 14-34.1 -- Discharging barreled weapon or firearm into occupied property.

G.S. 14-34.2 -- Assault with firearm or other deadly weapon upon
law enforcement officer, fireman, or EMS personnel.

G.S. -- Kidnapping for the purpose of doing serious bodily harm to the person.
14-39(a)(3)

G.S. 14-49 -- Malicious use of explosive or incendiary.

G.S. 14-58.2 -- Burning of mobile home, manufactured-type house, or
recreational trailer home.

G.S. 14-202.1-- Taking indecent liberties with children.

G.S. 14-87 -- Robbery with a dangerous weapon.

G.S. 14-277.3-- Stalking.

-- Common law robbery.

-- First degree arson.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.5 (2000)
§ 15A-266.5. Tests to be performed on blood sample

(a) The tests to be performed on each blood sample are:

(1) To analyze and type the genetic markers contained in or derived from the DNA.

(2) For law enforcement identification purposes.

(3) For research and administrative purposes, including:

a. Development of a population database when personal identifying information is removed.

b. To support identification research and protocol development of forensic DNA analysis methods.

c. For quality control purposes.

d. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of missing persons.

(b) The DNA record of identification characteristics resulting from the DNA testing shall be stored and maintained by the SBI in the State DNA Database. The DNA sample itself will be stored and maintained by the SBI in the State DNA Databank.

HISTORY: 1993, c. 401, s. 1.

NOTES:
LEGAL PERIODICALS. --For comment, "DNA Databases: The Case for the Combined DNA Index System," see 29 Wake Forest L. Rev. 889 (1994).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.6 (2000)
§ 15A-266.6. Procedures for withdrawal of blood sample for DNA analysis

Each DNA sample required to be drawn pursuant to G.S. 15A-266.4 from persons who are incarcerated shall be drawn at the place of incarceration. DNA samples from persons who are not sentenced to a term of confinement shall be drawn at a prison or jail unit to be specified by the sentencing court. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, phlebotomist, or other health care worker with phlebotomy training shall draw any DNA sample to be submitted for analysis. No civil liability shall attach to any person authorized to draw blood by this section as a result of drawing blood from any person if the blood was drawn according to recognized medical procedures. No person shall be relieved from liability for negligence in the drawing of any DNA sample.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.7 (2000)
§ 15A-266.7. Procedures for conducting DNA analysis of blood sample

The SBI shall adopt rules governing the procedures to be used in the submission, identification, analysis, and storage of DNA samples and typing results of DNA samples submitted under this Article. The DNA sample shall be securely stored in the State Databank. The typing results shall be securely stored in the State Database. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet standards and audit standards for laboratories which submit DNA records to the State Database. Records of testing shall be retained on file at the SBI.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.8 (2000)
§ 15A-266.8. DNA database exchange

(a) It shall be the duty of the SBI to receive DNA samples, to store, to analyze or to contract out the DNA typing analysis to a qualified DNA laboratory that meets the guidelines as established by the SBI, classify, and file the DNA record of identification characteristic profiles of DNA samples submitted pursuant to G.S. 15A-266.7 and to make such information available as provided in this section. The SBI may contract out DNA typing analysis to a qualified DNA laboratory that meets guidelines as established by the SBI. The results of the DNA profile of individuals in the State Database shall be made available to local, State, or federal law enforcement agencies, approved crime laboratories which serve these agencies, or the district attorney's office upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available upon receipt of a valid court order directing the SBI to release these results to appropriate parties not listed above, when the court order is signed by a superior court judge after a hearing. The SBI shall maintain a file of such court orders.

(b) The SBI shall adopt rules governing the methods of obtaining information from the State Database and CODIS and procedures for verification of the identity and authority of the requester.

(c) The SBI shall create a separate population database comprised of blood samples obtained under this Article, after all personal identification is removed. Nothing shall prohibit the SBI from sharing or disseminating population databases with other law enforcement agencies, crime laboratories that serve them, or other third parties the SBI deems necessary to assist the SBI with statistical analysis of the SBI's population databases. The population database may be made available to and searched by other agencies participating in the CODIS system.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.9 (2000)
§ 15A-266.9. Cancellation of authority to exchange DNA records

The SBI is authorized to revoke the right of a forensic DNA laboratory within the State to exchange DNA identification records with federal, State, or local criminal justice agencies if the required control and privacy standards specified by the SBI for the State DNA Database are not met by these agencies.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.10 (2000)
§ 15A-266.10. Expungement

(a) Any person whose DNA record or profile has been included in the State Database and whose DNA sample is stored in the State Databank may apply for expungement on the grounds that the felony conviction that resulted in the inclusion of the person's DNA record or profile in the State Database or the inclusion of the person's DNA sample in the State Databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record as provided in G.S. 15A-146. A copy of the application for expungement shall be served on the district attorney for the judicial district in which the felony conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order of expungement.

(b) Upon receipt of an order of expungement, the SBI shall purge the DNA record and all other identifiable information from the State Database and the DNA sample stored in the State Databank covered by the order. If the individual has more than one entry in the State Database and Databank, then only the entry covered by the expungement order shall be deleted from the State Database or Databank.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.11 (2000)
§ 15A-266.11. Unauthorized uses of DNA Databank; penalties

(a) Any person who, by virtue of employment, or official position, has possession of, or access to, individually identifiable DNA information contained in the State DNA Database or Databank and who willfully discloses it in any manner to any person or agency not entitled to receive it is guilty of a Class 1 misdemeanor in accordance with G.S. 14-3.

(b) Any person who, without authorization, willfully obtains individually identifiable DNA information from the State DNA Database or Databank is guilty of a Class 1 misdemeanor in accordance with G.S. 14-3.

HISTORY: 1993, c. 401, s. 1; 1994, Ex. Sess., c. 14, s. 15.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 13. DNA DATABASE AND DATABANK

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N.C. Gen. Stat. § 15A-266.12 (2000)
§ 15A-266.12. Confidentiality of records

(a) All DNA profiles and samples submitted to the SBI pursuant to this Article shall be treated as confidential except as provided in G.S. 15A-266.8.

(b) Only DNA records that directly relate to the identification of individuals shall be collected and stored. These records shall not be used for any purpose other than to facilitate personal identification of an offender; provided that in appropriate circumstances such records may be used to identify potential victims of mass disasters or missing persons.

HISTORY: 1993, c. 401, s. 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-271 (2000)
§ 15A-271. Authority to issue order

A nontestimonial identification order authorized by this Article may be issued by any judge upon request of a prosecutor. As used in this Article, "nontestimonial identification" means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a suspect.

HISTORY: 1973, c. 1286, s. 1; 1975, c. 166, s. 27.

NOTES:
LEGAL PERIODICALS. --For critical analysis of this article, see 12 Wake Forest L. Rev. 387 (1976).
For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

THIS ARTICLE WAS ENACTED IN RESPONSE TO DICTUM CONTAINED IN DAVIS V. MISSISSIPPI, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) inviting the use of narrowly circumscribed procedures for obtaining the fingerprints of individuals for whom there is no probable cause to arrest. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986).

PURPOSE OF ARTICLE. --The obvious purpose and intent of this Article, assuming its constitutionality, is to permit the examination of a suspect pursuant to nontestimonial identification order only if the results of such examination will be of material aid in determining whether such suspect actually committed the offense charged, assuming that a crime punishable by imprisonment for more than one year had been committed by some person. Manifestly, the focus of these statutes is identification of the suspect as the perpetrator, not a determination of whether the crime has been committed. State v. Whaley, 58 N.C. App. 233, 293 S.E.2d 284, cert. denied, 306 N.C. 563, 294 S.E.2d 375 (1982).

ARTICLE INAPPLICABLE TO IN-CUSTODY ACCUSED. --A construction of §§ 15A-272, 15A-274, 15A-276 and 15A-502 so as to achieve a logical relationship and to effectuate apparent legislative intent mandates that this Article applies only to suspects and accused persons before arrest, and persons formally charged and arrested who have been released from custody pending trial. The Article does not apply to an in-custody accused. State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Thompson, 37 N.C. App. 651, 247 S.E.2d 235 (1978); State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985).
This Article does not apply to an in-custody accused and this restrictive interpretation applies even to a defendant in custody on other charges at the time of the lineup. State v. Puckett, 46 N.C. App. 719, 266 S.E.2d 48, appeal dismissed, 300 N.C. 561, 270 S.E.2d 115 (1980).
Although this section does not apply to an in-custody defendant, it does not follow that a trial judge is without authority to issue a nontestimonial identification order where the defendant is in custody. State v. Vereen, 312 N.C. 499, 324 S.E.2d 250 (1985), cert. denied, 471 U.S. 1094, 105 S. Ct. 2170, 85 L. Ed. 2d 526 (1984).
This Article applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in-custody accused. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).

ARTICLE PERMITS INVESTIGATION WHERE BASIS FOR LAWFUL ARREST LACKING. --This Article provides an investigative procedure, not previously available in this State, for use in cases where there are reasonable grounds to suspect that a particular person committed an offense punishable by imprisonment for more than one year but where there is yet lacking a sufficient basis for making a lawful arrest. State v. McDonald, 32 N.C. App. 457, 232 S.E.2d 467, cert. denied, 292 N.C. 469, 233 S.E.2d 925 (1977).
The thrust of this Article is to provide the State with a valuable new investigative tool to compel the presence of unwilling suspects for nontestimonial identification procedures, even though insufficient probable cause exists to permit their arrest. State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978).

CONSENT OF DEFENDANT TO IDENTIFICATION PROCEDURES. --It was unnecessary for the police to utilize the procedures in this Article allowing involuntary detention for nontestimonial identification where the defendant voluntarily participated in the pretrial confrontation. State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978).

EXPRESS WAIVER OF RIGHT TO COUNSEL HELD NOT REQUIRED. --In a prosecution for first-degree murder, the trial court's denial of defendant's motion to suppress nontestimonial identification evidence was without error where, pursuant to an order of the trial court, fingernail scrapings, samples of defendants head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant's body were taken; the order stated defendant's right to counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provisions under this Article, by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

BLOOD SAMPLE TAKEN FROM DEFENDANT CONFINED IN COUNTY JAIL. --Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State's motion, it was error for the trial court to issue the order, and defendant's right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986), declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV.

WHILE GUNSHOT RESIDUE EVIDENCE IS NONTESTIMONIAL IDENTIFICATION, the evidence was still admissible where probable cause--based on the behavior and comments of the defendant coupled with the officer's knowledge of her stormy marriage--and exigent circumstances--the need for testing within four hours of the homicide--existed at the time of the gunshot residue test, and the warrantless search was, therefore, valid. State v. Coplen, -- N.C. App. --, 530 S.E.2d 313 (2000).

HAIR SAMPLE ADMITTED. --Trial court did not err in denying defendant's motion to suppress evidence of hair samples taken in compliance with a nontestimonial identification order entered pursuant to this section. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

APPLIED in State v. Tucker, 329 N.C. 709, 407 S.E.2d 805 (1991).

CITED in State v. Fisher, 321 N.C. 19, 361 S.E.2d 551 (1987).

OPINIONS OF THE ATTORNEY GENERAL

ARTICLE NOT EXCLUSIVE OF OTHER PROCEDURES. --After arrest of a defendant based upon probable cause, a law-enforcement officer may utilize normal investigative procedures including fingerprinting, photographing, lineups, etc., and need not follow exclusively the nontestimonial identification procedures of this Article. See opinion of Attorney General to Mr. Anthony Brannon, 45 N.C.A.G. 60 (1975).

NOTES APPLICABLE TO ENTIRE CHAPTER

OFFICIAL COMMENTARY
This commentary is based upon the commentary included in the January 1973 report of the Criminal Code Commission with its proposed code of pretrial procedure. The consultant-draftsmen of the Commission have revised the commentary to reflect changes that were made by the General Assembly in the course of passage.
The Commission's commentary was drafted by the consultant-draftsmen in an effort to explain the rationale behind policy decisions, to enlighten practitioners as to the aims and intent of the Commission, and in some cases to draw attention to pertinent cases or factual situations which either made the inclusion of a provision desirable or necessary.
The Commission's debates and debates in committees of the legislature and on the floor are the source of much of this commentary but neither the commission nor any legislative official has reviewed and approved this commentary on a line-by-line basis.

EDITOR'S NOTE. --Session Laws 1973, c. 1286, repealed many, but not all, of the sections of Chapter 15, Criminal Procedure, and a number of sections elsewhere in the General Statutes, and enacted in their place Chapter 15A, Criminal Procedure Act, effective July 1, 1975. Certain sections in Chapter 15 and in other chapters of the General Statutes were transferred and renumbered as sections in Chapter 15A. Where appropriate, the historical citations to the repealed sections have been added to corresponding sections in Chapter 15A.
The "Official Commentary" under Articles 1 to 34, 36 to 61 of this Chapter appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.
Many of the cases cited in the annotations under the various sections of this Chapter were decided under former similar provisions of Chapter 15 and earlier statutes.
Session Laws 1973, c. 1286, ss. 27, 28 and 31, provided:
"Sec. 27. All statutes which refer to sections repealed or amended by this act shall be deemed, insofar as possible, to refer to those provisions of this act which accomplish the same or an equivalent purpose.
"Sec. 28. None of the provisions of this act providing for the repeal of certain sections of the General Statutes shall constitute a reenactment of the common law.
"Sec. 31. This act becomes effective on July 1, 1975, and is applicable to all criminal proceedings begun on and after that date and each provision is applicable to criminal proceedings pending on that date to the extent practicable, except § 12 [§§ 15-176.3 through 15-176.5] of this act which becomes effective on July 1, 1974."
Session Laws 1975, c. 573, amended Session Laws 1973, c. 1286, s. 31, so as to make the 1973 act effective Sept. 1, 1975, rather than July 1, 1975.
Session Laws 1975, c. 166, ss. 27 and 28, provided:
"Sec. 27. Chapter 15A of the General Statutes is hereby amended by striking out the words "district solicitor' wherever the words appear throughout Chapter 15A, and inserting in lieu thereof the words "district attorney,' and by striking out the word "solicitor,' wherever the word appears throughout Chapter 15A and inserting in lieu thereof the word "prosecutor.' The Michie Company, publishers of the General Statutes of North Carolina, is authorized and directed to make the changes directed above wherever they might appear appropriate in the text of Chapter 15A of the General Statutes.
"Sec. 28. This act shall become effective on the date that Chapter 1286 of the 1973 Session Laws becomes effective."

NOTES APPLICABLE TO ENTIRE ARTICLE

OFFICIAL COMMENTARY
This Article provides an important investigative procedure not presently available under North Carolina statutes. Under this Article, a solicitor may make application to a judge for an order requiring suspects to submit to certain nontestimonial identification procedures such as fingerprints, measurements, blood and urine specimens, saliva, hair and voice samples, handwriting exemplars, photographs and lineups. To obtain such an order the solicitor must show that there is probable cause to believe that a crime punishable by more than one year's imprisonment has been committed and that there are reasonable grounds to suspect that one or more persons committed the offense. If a specific nontestimonial identification procedure will be of material aid in determining if the suspect committed the offense, the judge may issue an order requiring the person named to appear and submit to designated procedures. If the person named in the order either fails to appear or refuses to submit to the designated procedures, he may be punished for contempt of the court which issued the order.
The Commission inserted a number of significant safeguards to accompany this procedure, including the following:
(1) The order must be served at least 72 hours in advance of the time designated for the procedures (unless the judge finds that the nature of the evidence makes it likely that the delay will adversely affect its probative value). § 15A-274.
(2) The person named may seek modification of the time and place designated in the order. § 15A-275.
(3) No one may be detained longer than is necessary to accomplish the procedures. § 15A-279(c).
(4) Extraction of any bodily fluid must be conducted by a qualified member of the health professions; the judge may order medical supervision for any of the other procedures. § 15A-279(a).
(5) No unreasonable or unnecessary force may be used in conducting the procedures. § 15A-279(b).
(6) The person named has the right to have counsel present during any procedures conducted under this section and to have counsel appointed if he cannot afford to retain one. § 15A-279(d). The order must inform the named person of these rights. § 15A-278(5).
(7) No statement made by the named person while the procedures are being conducted may be used in evidence against him unless his attorney was actually present at the time the statement was made. § 15A-279(d).
(8) The subject of the procedures must be given a copy of the results as soon as they are available. § 15A-282.
In two recent decisions, the Supreme Court of the United States held that the compelled production of handwriting specimens and voice samples under orders of a grand jury do not infringe any legitimate Fourth or Fifth Amendment interests. United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973). These decisions contain substantial indications that procedures such as those recommended by the Commission in the nontestimonial identification Article are constitutionally sound, and Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) contains a dictum inviting use of a procedure similar to this. The Article also permits defendants charged with serious crimes to initiate such procedures by the State.

EDITOR'S NOTE. --The "Official Commentary" under this Article appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-272 (2000)
§ 15A-272. Time of application; additional investigative procedures not precluded

A request for a nontestimonial identification order may be made prior to the arrest of a suspect or after arrest and prior to trial. Nothing in this Article shall preclude such additional investigative procedures as are otherwise permitted by law.

HISTORY: 1973, c. 1286, s. 1.

NOTES:
LEGAL PERIODICALS. --For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

JUVENILE PROCEDURE COMPARED. --Under this section, the adult statute, time of application focuses on the arrest of the suspect, while § 7A-597 [see now § 7B-2104] focuses on taking the juvenile into custody, indicating an expanded time period when procedural protection of juveniles is necessary. State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985).

SEARCH WARRANTS. --In addition to a nontestimonial identification order pursuant to this section and § 15A-242, a search warrant is a proper method to obtain nontestimonial identification evidence from a defendant. State v. McLean, 47 N.C. App. 672, 267 S.E.2d 695 (1980).

WHILE GUNSHOT RESIDUE EVIDENCE IS NONTESTIMONIAL IDENTIFICATION, the evidence was still admissible where probable cause--based on the behavior and comments of the defendant coupled with the officer's knowledge of her stormy marriage--and exigent circumstances--the need for testing within four hours of the homicide--existed at the time of the gunshot residue test, and the warrantless search was, therefore, valid. State v. Coplen, -- N.C. App. --, 530 S.E.2d 313 (2000).

APPLIED in State v. McCain, 39 N.C. App. 213, 249 S.E.2d 812 (1978).

CITED in State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-273 (2000)
§ 15A-273. Basis for order

An order may issue only on an affidavit or affidavits sworn to before the judge and establishing the following grounds for the order:

(1) That there is probable cause to believe that a felony offense, or a Class A1 or Class 1 misdemeanor offense has been committed;

(2) That there are reasonable grounds to suspect that the person named or described in the affidavit committed the offense; and

(3) That the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.

HISTORY: 1973, c. 1286, s. 1; 1997-80, s. 14.

NOTES:
LEGAL PERIODICALS. --For a discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).
For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

BLOOD SAMPLE TAKEN FROM DEFENDANT CONFINED IN COUNTY JAIL. --Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State's motion, it was error for the trial court to issue the order, and defendant's right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when the sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986), declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV.

APPLIED in State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895 (1988); State v. Tucker, 329 N.C. 709, 407 S.E.2d 805 (1991).

CITED in State v. McDonald, 32 N.C. App. 457, 232 S.E.2d 467 (1977); State v. Mettrick, 54 N.C. App. 1, 283 S.E.2d 139 (1981); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-274 (2000)
§ 15A-274. Issuance of order

Upon a showing that the grounds specified in G.S. 15A-273 exist, the judge may issue an order requiring the person named or described with reasonable certainty in the affidavit to appear at a designated time and place and to submit to designated nontestimonial identification procedures. Unless the nature of the evidence sought makes it likely that delay will adversely affect its probative value, or when it appears likely that the person named in the order may destroy, alter, or modify the evidence sought or may not appear, the order must be served at least 72 hours before the time designated for the nontestimonial identification procedure.

HISTORY: 1973, c. 1286, s. 1; 1977, c. 832, s. 1.

NOTES:
LEGAL PERIODICALS. --For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

BLOOD SAMPLE TAKEN FROM DEFENDANT CONFINED IN COUNTY JAIL. --Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State's motion, it was error for the trial court to issue the order, and defendant's right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when the sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986), declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV.

STATED in State v. Vereen, 312 N.C. 499, 324 S.E.2d 250 (1985).

CITED in State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Puckett, 46 N.C. App. 719, 266 S.E.2d 48 (1980); State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898 (1987); State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895 (1988); State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992), cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-278 (2000)
§ 15A-278. Contents of order

An order to appear must be signed by the judge and must state:

(1) That the presence of the person named or described in the affidavit is required for the purpose of permitting nontestimonial identification procedures in order to aid in the investigation of the offense specified therein;

(2) The time and place of the required appearance;

(3) The nontestimonial identification procedures to be conducted, the methods to be used, and the approximate length of time such procedures will require;

(4) The grounds to suspect that the person named or described in the affidavit committed the offense specified therein;

(5) That the person is entitled to be represented by counsel at the procedure, and to the appointment of counsel if he cannot afford to retain one;

(6) That the person will not be subjected to any interrogation or asked to make any statement during the period of his appearance except that required for voice identification;

(7) That the person may request the judge to make a reasonable modification of the order with respect to time and place of appearance, including a request to have any nontestimonial identification procedure other than a lineup conducted at his place of residence; and

(8) That the person, if he fails to appear, may be held in contempt of court.

HISTORY: 1973, c. 1286, s. 1.

NOTES:
LEGAL PERIODICALS. --For discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).
For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

SUBDIVISION (5) INAPPLICABLE WHERE DEFENDANT ARRESTED ON MISDEMEANOR CHARGE. --The provisions of subdivision (5) of this section were not applicable where the defendant was legally arrested on a misdemeanor charge, and therefore could be photographed without the aid of the nontestimonial order. State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978).

APPLIED in State v. Maccia, 311 N.C. 222, 316 S.E.2d 241 (1984).

QUOTED in State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

CITED in In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

CHAPTER 15A. CRIMINAL PROCEDURE ACT
SUBCHAPTER II. LAW-ENFORCEMENT AND INVESTIGATIVE PROCEDURES
ARTICLE 14. NONTESTIMONIAL IDENTIFICATION

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N.C. Gen. Stat. § 15A-279 (2000)
§ 15A-279. Implementation of order

(a) Nontestimonial identification procedures may be conducted by any law-enforcement officer or other person designated by the judge issuing the order. The extraction of any bodily fluid must be conducted by a qualified member of the health professions and the judge may require medical supervision for any other test ordered pursuant to this Article when he considers such supervision necessary.

(b) In conducting authorized identification procedures, no unreasonable or unnecessary force may be used.

(c) No person who appears under an order of appearance issued under this Article may be detained longer than is reasonably necessary to conduct the specified nontestimonial identification procedures, and in no event for longer than six hours, unless he is arrested for an offense.

(d) (Effective until July 1, 2001) Any such person is entitled to have counsel present and must be advised prior to being subjected to any nontestimonial identification procedures of his right to have counsel present during any nontestimonial identification procedure and to the appointment of counsel if he cannot afford to retain counsel. No statement made during nontestimonial identification procedures by the subject of the procedures shall be admissible in any criminal proceeding against him, unless his counsel was present at the time the statement was made.

(d) (Effective July 1, 2001) Any such person is entitled to have counsel present and must be advised prior to being subjected to any nontestimonial identification procedures of his right to have counsel present during any nontestimonial identification procedure and to the appointment of counsel if he cannot afford to retain counsel. Appointment of counsel shall be in accordance with rules adopted by the Office of Indigent Defense Services. No statement made during nontestimonial identification procedures by the subject of the procedures shall be admissible in any criminal proceeding against him, unless his counsel was present at the time the statement was made.

(e) Any person who resists compliance with the authorized nontestimonial identification procedures may be held in contempt of the court which issued the order pursuant to the provisions of G.S. 5A-12(a) and G.S. 5A-21(b).

(f) A nontestimonial identification order may not be issued against a person previously subject to a nontestimonial identification order unless it is based on different evidence which was not reasonably available when the previous order was issued.

(g) Resisting compliance with a nontestimonial identification order is not itself grounds for finding probable cause to arrest the suspect, but it may be considered with other evidence in making the determination whether probable cause exists.

HISTORY: 1973, c. 1286, s. 1; 1977, c. 711, s. 20; 2000-144, s. 28.

NOTES:
SUBSECTION (D) SET OUT TWICE. --The first version of subsection (d) set out above is effective until July 1, 2001. The second version of subsection (d) set out above is effective July 1, 2001.

CROSS REFERENCES. --For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, § 7A-498 et seq.

EFFECT OF AMENDMENTS. --Session Laws 2000-144, s. 28, effective July 1, 2001, added the second sentence in subsection (d).

LEGAL PERIODICALS. --For discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).
For note, "DNA Typing: A New Investigatory Tool," see 1989 Duke L.J. 474.

CASE NOTES

NONTESTIMONIAL IDENTIFICATION PROCEDURES are those procedures by which a suspect's fingerprints, palm prints, footprints, measurements, blood specimen, urine specimen, saliva sample, hair sample, handwriting exemplar, voice sample or photographs are obtained. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

SHOWING TO OBTAIN SUPPRESSION OF STATEMENT. --In order to obtain the suppression of his statement under subsection (d) of this section, a defendant must show: (1) That the statement was made during nontestimonial identification procedures, and (2) that the statement was made without the presence of counsel. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

STATEMENT WHEN SERVED WITH ORDER. --Suppression of statement made by defendant when he was merely being served with a copy of an order requiring his submission to nontestimonial identification procedures, and not made during any nontestimonial identification procedure, was not required by subsection (d) of this section. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

ADMISSION OF EVIDENCE THAT DEFENDANT DID NOT SUBMIT A BLOOD SAMPLE did not violate defendant's rights under subsection (d) of this section. State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986).

FAILURE TO REMIND DEFENDANT OF RIGHT TO COUNSEL. --Given advance notice of his right to counsel in a nontestimonial identification order served on defendant three days before the withdrawal of fluid samples from defendant, any failure to remind defendant of his right to counsel prior to the taking of the fluid samples would not likely constitute a "substantial" violation of subsection (d) of this section requiring suppression of the evidence obtained. State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510 (1980).

THE DEFENDANT'S RIGHT TO COUNSEL UNDER THIS SECTION was not violated by the administering of the gunshot residue kit. No order was required in that probable cause and exigent circumstances existed which justified the search and the defendant sought to suppress the results of the test, not statements made during the procedure. State v. Coplen, -- N.C. App. --, 530 S.E.2d 313 (2000).

AS TO RIGHT TO HAVE COUNSEL PRESENT DURING GUNSHOT RESIDUE TEST BY VIRTUE OF SUBSECTION (D), see State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S. Ct. 1041, 71 L. Ed. 2d 322 (1982).

QUOTED in State v. Fisher, 321 N.C. 19, 361 S.E.2d 551 (1987).

STATED in State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

CITED in State v. Puckett, 46 N.C. App. 719, 266 S.E.2d 48 (1980).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, or chapter.

NORTH DAKOTA

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.D. Cent. Code, § 31-13-03 (2000)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 N.D. HB 1208 -- See section 1.

§ 31-13-03. Persons to be tested -- Costs

The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department on or after August 1, 1995, as a result of a conviction of one of these offenses to have a sample of blood and other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood and other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood and other body fluids as required by this section. Any person convicted on or after August 1, 1995, who is not sentenced to a term of confinement shall provide a sample of blood and other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The cost of the procedure must be assessed to the person being tested.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 3; 1997, ch. 124, § 8.

NOTES:
EFFECTIVE DATE.
The 1997 amendment of this section by section 8 of chapter 124, S.L. 1997 became effective August 1, 1997.

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.D. Cent. Code, § 31-13-04 (2000)
§ 31-13-04. DNA testing -- Procedure -- Immunity -- Penalty

The samples of blood and other body fluids for DNA testing must be obtained in a medically approved manner by a physician, registered nurse, licensed practical nurse, phlebotomist, medical technologist, or other qualified medical personnel approved by the division, and packaged and submitted in containers provided by the division and in accordance with rules adopted by the division. No civil or criminal liability may attach to any person authorized to draw blood and other body fluids as provided by this chapter as a result of the act of drawing blood and other body fluids from any person, provided the blood and other body fluids were drawn according to generally accepted medical procedures. Any person who tampers or attempts to tamper with any sample of blood or other body fluids or the collection container without lawful authority is guilty of a class C felony.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 4.

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

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N.D. Cent. Code, § 31-13-05 (2000)
§ 31-13-05. DNA data base established -- How utilized

The division shall establish a centralized data base of DNA identification records for convicted sexual offenders. The established system must be compatible with the procedures set forth in the national DNA identification index to ensure data exchange on a national level. The centralized DNA data base must be used to assist federal, state, and local criminal justice and law enforcement agencies within and outside the state in the identification or prosecution of sex-related crimes. The division shall receive, analyze, and classify samples in compliance with section 31-13-04 and shall record the DNA result in a centralized data base for identification and statistical purposes. The division may contract with another laboratory for the analysis and classification of the samples. A report of the analysis certified by the division is admissible in any court as prima facie evidence of the facts stated in the report.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 5.

COLLATERAL REFERENCES.
Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

LAW REVIEWS.
How Should North Dakota Approach the Admissibility of DNA: A Comprehensive Analysis of How Other Courts Approach the Admissibility of DNA, 72 N.D. L. Rev. 607 (1996).

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

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N.D. Cent. Code, § 31-13-06 (2000)
§ 31-13-06. Confidentiality of records

Notwithstanding section 44-04-18, except as necessary for law enforcement purposes, all records produced from the samples taken as provided in this chapter must be securely stored and are confidential. However, the records must be available to:

1. Any person who is the subject of a record.

2. A public official or the official's authorized agent who requires that information in connection with the discharge of the official's official duties.

3. A court whenever the court determines that the information is necessary for the determination of an issue before the court.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 6.

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

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N.D. Cent. Code, § 31-13-07 (2000)
§ 31-13-07. Removal of DNA profiles from data base

A person whose DNA profile has been included in the data base pursuant to this chapter may petition the district court for expungement on the grounds that the conviction on which the authority for including the DNA profile was based has been reversed or the case dismissed. The division shall expunge all identifiable information in the data base pertaining to the person and destroy all samples from the person upon receipt of a certified order.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 7.

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

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N.D. Cent. Code, § 31-13-08 (2000)
§ 31-13-08. Rules

The state department of health shall adopt rules pursuant to chapter 28-32 necessary to carry out provisions of the DNA data base identification system. The rules must include procedures for collection, analysis, and classification of samples of blood and other body fluids, data base system usage and integrity, and methods for contracting with another laboratory for the analysis and classification of samples.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 8.

TITLE 31. JUDICIAL PROOF
CHAPTER 31-13. DNA ANALYSIS

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N.D. Cent. Code, § 31-13-09 (2000)
§ 31-13-09. DNA profiles to be available to law enforcement -- Penalty

Upon payment of a reasonable fee established by the division, the division shall provide, upon the request of appropriate law enforcement agencies for use for official purposes, an updated list of names of individuals whose DNA profiles are stored in the data base at the division. Any person who disseminates, receives, or otherwise uses or attempts to use information in the data base, knowing that the dissemination, receipt, or use is for a purpose other than as authorized by law, is guilty of a class A misdemeanor.

HISTORY: SOURCE: S.L. 1995, ch. 325, § 9.

NORTH DAKOTA 57TH LEGISLATIVE ASSEMBLY

HOUSE BILL 1208

2001 N.D. HB 1208
SYNOPSIS: AN ACT to amend and reenact section 31-13-03 of the North Dakota Century Code, relating to DNA testing; and to provide an expiration date.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:

[*1] SECTION 1. AMENDMENT. Section 31-13-03 of the 1999 Supplement to the North Dakota Century Code is amended and reenacted as follows:

31-13-03. Persons to be tested - Costs. The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department [D> on or <D] after [D> August 1 <D] [A> JULY 31 <A] , 1995, as a result of a conviction of one of these offenses to have a sample of blood [D> and <D] [A> OR <A] other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. [A> THE COURT SHALL ORDER ANY PERSON CONVICTED AFTER JULY 31, 2001, OF A FELONY OFFENSE CONTAINED IN CHAPTER 12.1-16, 12.1-17, OR 12.1-18, SECTION 12.1-22-01, OR CHAPTER 12.1-27.2 AND ANY PERSON WHO IS IN THE CUSTODY OF THE DEPARTMENT AFTER JULY 31, 2001, AS A RESULT OF A CONVICTION FOR ONE OF THESE OFFENSES TO HAVE A SAMPLE OF BLOOD OR OTHER BODY FLUIDS TAKEN BY THE DEPARTMENT FOR DNA LAW ENFORCEMENT IDENTIFICATION PURPOSES AND INCLUSION IN THE LAW ENFORCEMENT IDENTIFICATION DATA BASES. <A] Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood [D> and <D] [A> OR <A] other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood [D> and <D] [A> OR <A] other body fluids as required by this section. Any person convicted [D> on or <D] after [D> August 1 <D] [A> JULY 31 <A] , 1995, who is not sentenced to a term of confinement shall provide a sample of blood [D> and <D] [A> OR <A] other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The [A> SENTENCING COURT SHALL ASSESS THE <A] cost of the procedure [D> must be assessed to <D] [A> AGAINST <A] the person being tested. [A> THE DEPARTMENT SHALL COLLECT THE COST OF THE PROCEDURE FROM THE PERSON BEING TESTED AND TRANSFER THE AMOUNT COLLECTED TO THE STATE DEPARTMENT OF HEALTH FOR DEPOSIT IN THE GENERAL FUND. <A]

[*2] SECTION 2. GRANT APPLICATION - IMPLEMENTATION. The governor shall apply for grant funds available under the federal DNA Analysis Backlog Elimination Act of 2000 (Pub. L. 106-546; 114 Stat. 2726) and certify the offenses in section 31-13-03 as qualifying offenses. The department of corrections and rehabilitation and the forensic science division of the state department of health shall limit the implementation of this Act to stay within funds provided by legislative appropriation and from any other public or private source.

[*3] SECTION 3. EXPIRATION DATE. This Act is effective through July 31, 2004, and after that date is ineffective.

HISTORY:
Approved by the Governor April 13, 2001.

SPONSOR: Representatives Klemin, Mahoney
Senator Watne

TITLE I [1] STATE GOVERNMENT
CHAPTER 109: ATTORNEY GENERAL
[BUREAU OF CRIMINAL IDENTIFICATION AND INVESTIGATION]

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ORC Ann. 109.573 (Anderson 2001)
[§ 109.57.3] § 109.573 DNA laboratory and database; unidentified person database; relatives of missing persons database

-- RC § 109.57.3 is affected by Am. Sub. S.B. 179 (148 v --), effective 1-1-2002. See the 2000 Legislative Bulletin, No. 9 for the version effective 1-1-2002.

(A) As used in this section:

(1) "DNA" means human deoxyribonucleic acid.

(2) "DNA analysis" means a laboratory analysis of a DNA specimen to identify DNA characteristics and to create a DNA record.

(3) "DNA database" means a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2151.315 [2151.31.5] and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.

(4) "DNA record" means the objective result of a DNA analysis of a DNA specimen, including representations of DNA fragment lengths, digital images of autoradiographs, discrete allele assignment numbers, and other DNA specimen characteristics that aid in establishing the identity of an individual.

(5) "DNA specimen" includes human blood cells or physiological tissues or body fluids.

(6) "Unidentified person database" means a collection of DNA records, and, on and after May 21, 1998, of fingerprint and photograph records, of unidentified human corpses, human remains, or living individuals.

(7) "Relatives of missing persons database" means a collection of DNA records of persons related by consanguinity of the first degree to a missing person.

(8) "Law enforcement agency" means a police department, the office of a sheriff, the state highway patrol, a county prosecuting attorney, or a federal, state, or local governmental body that enforces criminal laws and that has employees who have a statutory power of arrest.

(B)(1) The superintendent of the bureau of criminal identification and investigation may do all of the following:

(a) Establish and maintain a state DNA laboratory to perform DNA analysis of DNA specimens;

(b) Establish and maintain a DNA database;

(c) Establish and maintain an unidentified person database to aid in the establishment of the identity of unknown human corpses, human remains, or living individuals;

(d) Establish and maintain a relatives of missing persons database for comparison with the unidentified person database to aid in the establishment of the identity of unknown human corpses, human remains, and living individuals.

(2) If the bureau of criminal identification and investigation establishes and maintains a DNA laboratory and a DNA database, the bureau may use or disclose information regarding DNA records for the following purposes:

(a) The bureau may disclose information to a law enforcement agency for purposes of identification.

(b) The bureau shall disclose pursuant to a court order issued under section 3111.09 of the Revised Code any information necessary to determine the existence of a parent and child relationship in an action brought under sections 3111.01 to 3111.18 of the Revised Code.

(c) The bureau may use or disclose information from the population statistics database, for identification research and protocol development, or for quality control purposes.

(3) If the bureau of criminal identification and investigation establishes and maintains a relatives of missing persons database, all of the following apply:

(a) If a person has disappeared and has been continuously absent from the person's place of last domicile for a thirty-day or longer period of time without being heard from during the period, persons related by consanguinity of the first degree to the missing person may submit to the bureau a DNA specimen, the bureau may include the DNA record of the specimen in the relatives of missing persons database, and, if the bureau does not include the DNA record of the specimen in the relatives of missing persons database, the bureau shall retain the DNA record for future reference and inclusion as appropriate in that database.

(b) The bureau shall not charge a fee for the submission of a DNA specimen pursuant to division (B)(3)(a) of this section.

(c) A physician, registered nurse, licensed practical nurse, duly licensed clinical laboratory technician, or other qualified medical practitioner shall conduct the collection procedure for the DNA specimen submitted pursuant to division (B)(3)(a) of this section and shall collect the DNA specimen in a medically approved manner. No later than fifteen days after the date of the collection of the DNA specimen, the person conducting the DNA specimen collection procedure shall cause the DNA specimen to be forwarded to the bureau of criminal identification and investigation in accordance with procedures established by the superintendent of the bureau under division (H) of this section. The bureau may provide the specimen vials, mailing tubes, labels, postage, and instruction needed for the collection and forwarding of the DNA specimen to the bureau.

(d) The superintendent, in the superintendent's discretion, may compare DNA records in the relatives of missing persons database with the DNA records in the unidentified person database.

(4) If the bureau of criminal identification and investigation establishes and maintains an unidentified person database and if the superintendent of the bureau identifies a matching DNA record for the DNA record of a person or deceased person whose DNA record is contained in the unidentified person database, the superintendent shall inform the coroner who submitted or the law enforcement agency that submitted the DNA specimen to the bureau of the match and, if possible, of the identity of the unidentified person.

(5) The bureau of criminal identification and investigation may enter into a contract with a qualified public or private laboratory to perform DNA analyses, DNA specimen maintenance, preservation, and storage, DNA record keeping, and other duties required of the bureau under this section. A public or private laboratory under contract with the bureau shall follow quality assurance and privacy requirements established by the superintendent of the bureau.

(C) The superintendent of the bureau of criminal identification and investigation shall establish procedures for entering into the DNA database the DNA records submitted pursuant to sections 2151.315 [2151.31.5] and 2901.07 of the Revised Code and for determining an order of priority for entry of the DNA records based on the types of offenses committed by the persons whose records are submitted and the available resources of the bureau.

(D) When a DNA record is derived from a DNA specimen provided pursuant to section 2151.315 [2151.31.5] or 2901.07 of the Revised Code, the bureau of criminal identification and investigation shall attach to the DNA record personal identification information that identifies the person from whom the DNA specimen was taken. The personal identification information may include the subject person's fingerprints and any other information the bureau determines necessary. The DNA record and personal identification information attached to it shall be used only for the purpose of personal identification or for a purpose specified in this section.

(E) DNA records, DNA specimens, fingerprints, and photographs that the bureau of criminal identification and investigation receives pursuant to this section and sections 313.08, 2151.315 [2151.31.5], and 2901.07 of the Revised Code and personal identification information attached to a DNA record are not public records under section 149.43 of the Revised Code.

(F) The bureau of criminal identification and investigation may charge a reasonable fee for providing information pursuant to this section to any law enforcement agency located in another state.

(G)(1) No person who because of the person's employment or official position has access to a DNA specimen, a DNA record, or other information contained in the DNA database that identifies an individual shall knowingly disclose that specimen, record, or information to any person or agency not entitled to receive it or otherwise shall misuse that specimen, record, or information.

(2) No person without authorization or privilege to obtain information contained in the DNA database that identifies an individual person shall purposely obtain that information.

(H) The superintendent of the bureau of criminal identification and investigation shall establish procedures for all of the following:

(1) The forwarding to the bureau of DNA specimens collected pursuant to division (H) of this section and sections 313.08, 2151.315 [2151.31.5], and 2901.07 of the Revised Code and of fingerprints and photographs collected pursuant to section 313.08 of the Revised Code;

(2) The collection, maintenance, preservation, and analysis of DNA specimens;

(3) The creation, maintenance, and operation of the DNA database;

(4) The use and dissemination of information from the DNA database;

(5) The creation, maintenance, and operation of the unidentified person database;

(6) The use and dissemination of information from the unidentified person database;

(7) The creation, maintenance, and operation of the relatives of missing persons database;

(8) The use and dissemination of information from the relatives of missing persons database;

(9) The verification of entities requesting DNA records and other DNA information from the bureau and the authority of the entity to receive the information;

(10) The operation of the bureau and responsibilities of employees of the bureau with respect to the activities described in this section.

HISTORY: HISTORY

: 146 v H 5 (Eff 8-30-95); 146 v H 124 (Eff 3-31-97); 147 v S 140 (Eff 5-21-98); 148 v S 180. Eff 3-22-2001.

NOTES:

CROSS-REFERENCES TO RELATED SECTIONS
Penalties, RC § 109.99.
DNA records stored in database are not public records, RC § 149.43.
DNA testing --
Adjudicated delinquents, RC § 2151.31.5.
Offenders sentenced to incarceration, RC § 2901.07.
Genetic tests; DNA records, RC § 3111.09.
Objection to admission of genetic test or DNA record to be written, RC § 3111.12.

ALR
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239.

CASE NOTES AND OAG

1. (1997) The inevitable discovery exception applied to the unlawfully obtained DNA evidence: State v. Pearson, 119 OApp3d 745, 696 NE2d 273.

2. (1995) The state's witness on DNA results was qualified as an expert in population genetics, but not in molecular biology: State v. Lane, 108 OApp3d 477, 671 NE2d 272.

TITLE I [1] STATE GOVERNMENT
CHAPTER 109: ATTORNEY GENERAL
[CRIME VICTIMS ASSISTANCE]

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ORC Ann. 109.99 (Anderson 2001)
§ 109.99 Penalties.

(A) Whoever violates section 109.26 of the Revised Code shall be fined not less than five hundred nor more than ten thousand dollars or be imprisoned not less than one month nor more than one year, or both.

(B) Whoever violates division (G)(1) of section 109.573 [109.57.3] of the Revised Code is guilty of unlawful disclosure of DNA database information, a misdemeanor of the first degree.

(C) Whoever violates division (G)(2) of section 109.573 [109.57.3] of the Revised Code is guilty of unlawful possession of DNA database information, a misdemeanor of the first degree.

(D)(1) Whoever violates division (G)(1) of section 109.35 of the Revised Code is guilty of entering into a transaction involving a nonprofit health care entity without the approval of the attorney general, a felony of the third degree.

(2) Whoever violates division (G)(2) of section 109.35 of the Revised Code is guilty of receiving improper compensation relating to a transaction involving a nonprofit health care entity, a felony of the third degree.

HISTORY: HISTORY

: 125 v 354 (Eff 10-14-53); 146 v H 5 (Eff 8-30-95); 147 v H 242. Eff 5-7-97.

See provisions, § 4 of HB 597 (148 v --) following RC § 109.34.

NOTES:

CROSS-REFERENCES TO RELATED SECTIONS
Penalties for felony, RC § 2929.11; misdemeanor, RC § 2929.21.

LAW REVIEW
Charitable Trusts Act. Robert J. Lynn and John E. Sullivan. 14 OSLJ 357 (1953).

TITLE I [1] STATE GOVERNMENT
CHAPTER 149: DOCUMENTS, REPORTS, AND RECORDS
[RECORDS COMMISSIONS]

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ORC Ann. 149.43 (Anderson 2001)
§ 149.43 Availability of public records.

(A) As used in this section:

(1) "Public record" means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except that "public record" does not mean any of the following:

(a) Medical records;

(b) Records pertaining to probation and parole proceedings;

(c) Records pertaining to actions under section 2151.85 and division (C) of section 2919.121 [2919.12.1] of the Revised Code and to appeals of actions arising under those sections;

(d) Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code;

(e) Information in a record contained in the putative father registry established by section 3107.062 [3107.06.2] of the Revised Code, regardless of whether the information is held by the department of job and family services or, pursuant to section 3111.69 of the Revised Code, the office of child support in the department or a child support enforcement agency;

(f) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code;

(g) Trial preparation records;

(h) Confidential law enforcement investigatory records;

(i) Records containing information that is confidential under section 2317.023 [2317.02.3] or 4112.05 of the Revised Code;

(j) DNA records stored in the DNA database pursuant to section 109.573 [109.57.3] of the Revised Code;

(k) Inmate records released by the department of rehabilitation and correction to the department of youth services or a court of record pursuant to division (E) of section 5120.21 of the Revised Code;

(l) Records maintained by the department of youth services pertaining to children in its custody released by the department of youth services to the department of rehabilitation and correction pursuant to section 5139.05 of the Revised Code;

(m) Intellectual property records;

(n) Donor profile records;

(o) Records maintained by the department of job and family services pursuant to section 3121.894 [3121.89.4] of the Revised Code;

(p) Peace officer residential and familial information;

(q) In the case of a county hospital operated pursuant to Chapter 339. of the Revised Code, information that constitutes a trade secret, as defined in section 1333.61 of the Revised Code;

(r) Information pertaining to the recreational activities of a person under the age of eighteen;

(s) Records provided to, statements made by review board members during meetings of, and all work products of a child fatality review board acting under sections 307.621 [307.62.1] to 307.629 [307.62.9] of the Revised Code, other than the report prepared pursuant to section 307.626 [307.62.6] of the Revised Code;

(t) Records provided to and statements made by the executive director of a public children services agency or a prosecuting attorney acting pursuant to section 5153.171 [5153.17.1] of the Revised Code other than the information released under that section;

(u) Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the board of examiners of nursing home administrators administers under section 4751.04 of the Revised Code or contracts under that section with a private or government entity to administer;

(v) Records the release of which is prohibited by state or federal law.

(2) "Confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness's identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;

(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

(3) "Medical record" means any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.

(4) "Trial preparation record" means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.

(5) "Intellectual property record" means a record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented.

(6) "Donor profile record" means all records about donors or potential donors to a public institution of higher education except the names and reported addresses of the actual donors and the date, amount, and conditions of the actual donation.

(7) "Peace officer residential and familial information" means either of the following:

(a) Any information maintained in a personnel record of a peace officer that discloses any of the following:

(i) The address of the actual personal residence of a peace officer, except for the state or political subdivision in which the peace officer resides;

(ii) Information compiled from referral to or participation in an employee assistance program;

(iii) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any medical information pertaining to, a peace officer;

(iv) The name of any beneficiary of employment benefits, including, but not limited to, life insurance benefits, provided to a peace officer by the peace officer's employer;

(v) The identity and amount of any charitable or employment benefit deduction made by the peace officer's employer from the peace officer's compensation unless the amount of the deduction is required by state or federal law;

(vi) The name, the residential address, the name of the employer, the address of the employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer.

(b) Any record that identifies a person's occupation as a peace officer other than statements required to include the disclosure of that fact under the campaign finance law.

As used in divisions (A)(7) and (B)(5) of this section, "peace officer" has the same meaning as in section 109.71 of the Revised Code and also includes the superintendent and troopers of the state highway patrol; it does not include the sheriff of a county or a supervisory employee who, in the absence of the sheriff, is authorized to stand in for, exercise the authority of, and perform the duties of the sheriff.

(8) "Information pertaining to the recreational activities of a person under the age of eighteen" means information that is kept in the ordinary course of business by a public office, that pertains to the recreational activities of a person under the age of eighteen years, and that discloses any of the following:

(a) The address or telephone number of a person under the age of eighteen or the address or telephone number of that person's parent, guardian, custodian, or emergency contact person;

(b) The social security number, birth date, or photographic image of a person under the age of eighteen;

(c) Any medical record, history, or information pertaining to a person under the age of eighteen;

(d) Any additional information sought or required about a person under the age of eighteen for the purpose of allowing that person to participate in any recreational activity conducted or sponsored by a public office or to use or obtain admission privileges to any recreational facility owned or operated by a public office.

(B)(1) Subject to division (B)(4) of this section, all public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(4) of this section, upon request, a public office or person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, public offices shall maintain public records in a manner that they can be made available for inspection in accordance with this division.

(2) If any person chooses to obtain a copy of a public record in accordance with division (B)(1) of this section, the public office or person responsible for the public record shall permit that person to choose to have the public record duplicated upon paper, upon the same medium upon which the public office or person responsible for the public record keeps it, or upon any other medium upon which the public office or person responsible for the public record determines that it reasonably can be duplicated as an integral part of the normal operations of the public office or person responsible for the public record. When the person seeking the copy makes a choice under this division, the public office or person responsible for the public record shall provide a copy of it in accordance with the choice made by the person seeking the copy.

(3) Upon a request made in accordance with division (B)(1) of this section, a public office or person responsible for public records shall transmit a copy of a public record to any person by United States mail within a reasonable period of time after receiving the request for the copy. The public office or person responsible for the public record may require the person making the request to pay in advance the cost of postage and other supplies used in the mailing.

Any public office may adopt a policy and procedures that it will follow in transmitting, within a reasonable period of time after receiving a request, copies of public records by United States mail pursuant to this division. A public office that adopts a policy and procedures under this division shall comply with them in performing its duties under this division.

In any policy and procedures adopted under this division, a public office may limit the number of records requested by a person that the office will transmit by United States mail to ten per month, unless the person certifies to the office in writing that the person does not intend to use or forward the requested records, or the information contained in them, for commercial purposes. For purposes of this division, "commercial" shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.

(4) A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction or a juvenile adjudication to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject of the investigation or prosecution were an adult, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence or made the adjudication with respect to the person, or the judge's successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person.

(5) Upon written request made and signed by a journalist on or after December 16, 1999, a public office, or person responsible for public records, having custody of the records of the agency employing a specified peace officer shall disclose to the journalist the address of the actual personal residence of the peace officer and, if the peace officer's spouse, former spouse, or child is employed by a public office, the name and address of the employer of the peace officer's spouse, former spouse, or child. The request shall include the journalist's name and title and the name and address of the journalist's employer and shall state that disclosure of the information sought would be in the public interest.

As used in division (B)(5) of this section, "journalist" means a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.

(C) If a person allegedly is aggrieved by the failure of a public office to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section, or if a person who has requested a copy of a public record allegedly is aggrieved by the failure of a public office or the person responsible for the public record to make a copy available to the person allegedly aggrieved in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution.

(D) Chapter 1347. of the Revised Code does not limit the provisions of this section.

(E)(1) The bureau of motor vehicles may adopt rules pursuant to Chapter 119. of the Revised Code to reasonably limit the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a calendar year. The rules may include provisions for charges to be made for bulk commercial special extraction requests for the actual cost of the bureau, plus special extraction costs, plus ten per cent. The bureau may charge for expenses for redacting information, the release of which is prohibited by law.

(2) As used in divisions (B)(3) and (E)(1) of this section:

(a) "Actual cost" means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services.

(b) "Bulk commercial special extraction request" means a request for copies of a record for information in a format other than the format already available, or information that cannot be extracted without examination of all items in a records series, class of records, or data base by a person who intends to use or forward the copies for surveys, marketing, solicitation, or resale for commercial purposes. "Bulk commercial special extraction request" does not include a request by a person who gives assurance to the bureau that the person making the request does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes.

(c) "Commercial" means profit-seeking production, buying, or selling of any good, service, or other product.

(d) "Special extraction costs" means the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction. "Special extraction costs" include any charges paid to a public agency for computer or records services.

(3) For purposes of divisions (E)(1) and (2) of this section, "commercial surveys, marketing, solicitation, or resale" shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.

HISTORY: HISTORY

: 130 v 155 (Eff 9-27-63); 138 v S 62 (Eff 1-18-80); 140 v H 84 (Eff 3-19-85); 141 v H 238 (Eff 7-1-85); 141 v H 319 (Eff 3-24-86); 142 v S 275 (Eff 10-15-87); 145 v H 152 (Eff 7-1-93); 146 v H 5 (Eff 8-30-95); 146 v S 269 (Eff 7-1-96); 146 v H 353 (Eff 9-17-96); 146 v H 419 (Eff 9-18-96); 146 v S 277, § 1 (Eff 3-31-97); 146 v H 438, § 3 (Eff 7-1-97); 146 v S 277, § 6 (Eff 7-1-97); 147 v H 352 (Eff 1-1-98); 147 v H 421 (Eff 5-6-98); 148 v S 55 (Eff 10-26-99); 148 v S 78 (Eff 12-16-99); 148 v H 471 (Eff 7-1-2000); 148 v H 539 (Eff 6-21-2000); 148 v H 640 (Eff 9-14-2000); 148 v H 448 (Eff 10-5-2000); 148 v S 180. Eff 3-22-2001.

The provisions of § 7 of SB 180 (148 v --) read, in part, as follows:

SECTION 7. Section 149.43 of the Revised Code is presented in this act as a composite of the section as amended by Sub. H.B. 448, Sub. H.B. 539, and Am. Sub. H.B. 640 of the 123rd General Assembly, with the new language of none of the acts shown in capital letters. * * * This is in recognition of the principle stated in division (B) of section 1.52 of the Revised Code that such amendments are to be harmonized where not substantively irreconcilable and constitutes a legislative finding that such is the resulting version in effect prior to the effective date of this act.

NOTES:

CROSS-REFERENCES TO RELATED SECTIONS
Abortion; performing or inducing upon minor; records are confidential, RC § 2919.12.1.
Accountancy board investigative proceedings; records are confidential, RC § 4701.29.
Adoption information; files and records are not public records, RC §§ 3107.42, 3107.52.
Issuance of new or foreign birth record after adoption; original record ceases to be public record, RC § 3705.12.
Adult protective services; duty to report abuse; individual information confidential, RC § 5101.61.
Case review and investigation by MR/DD, RC § 5126.31.
AIDS and HIV related duties of director of health information not public record, RC § 3701.24.1.
Alcohol and drug addiction services; program concerning addicted pregnant women and their children; records not a public record, RC § 3793.15.
Anatomical gift law; certificates of request are public records, RC § 2108.02.1.
Antitrust investigation records and materials are confidential, RC § 1331.16.
Artificial insemination; confidentiality and retention of information, RC § 3111.36.
Audits not public records until filed as specified, RC §§ 117.14, 117.15, 117.26.
Birth defects information system; confidentiality of information, RC § 3705.32.
Bureau of criminal identification and investigation; information and materials are not public records, RC § 109.57.
DNA database information not public records, RC § 109.57.3.
Capital case status report, annual; report is public record, RC § 109.97.
Cemeteries required to register; registry is public record, RC § 4767.02.
Cemetery dispute resolution committee; conducting nonpublic meetings and maintaining records as confidential, RC § 4767.06.
Check-cashing business; information not public record, RC §§ 1315.53, 1315.54.
Child support enforcement agency statistics are public records, RC § 2301.41.
Child support obligors; employer's duty to provide information for use in locating; reports are not public records, RC § 5101.31.2.
Children services agency, public; information re at-risk child not public record, RC § 340.15.
Commodity handlers; statistical abstract preparation to protect confidential information, RC § 926.06.
Consumers' counsel records are public, RC § 4911.10.
Controlled substances; written internal control policy governing sales by peace officers are public records, RC § 3719.14.1.
Corrupt activity, gang activity; forfeiture of property record is public record, RC §§ 2923.32, 2923.44.
Disposition of property, RC § 2923.35.
Expenditures of fine moneys, RC § 2923.42.
County boards of mental retardation and developmental disabilities; records of evaluations of programs shall be public, RC § 5126.43.1.
County inactive moneys; monthly portfolio and investment reports are public records, RC § 135.35.
Court of claims; confidentiality of information, RC § 2743.62.
Criminal records check of applicants not public record --
Adoptive or foster parents, RC § 2151.86.
Adult care facility employees, RC § 3722.15.1.
Day-care providers, RC §§ 5104.01.2, 5104.01.3.
Department of --
Mental health employees, RC § 5119.07.2.
Mental retardation and developmental disabilities employees, RC § 5123.08.1.
County boards, RC § 5126.28.
Head start program employees, RC § 3301.32.
Home health agency employees, RC § 3701.88.1.
Hospice care employees, RC § 3712.09.
Nursing home employees, RC § 3721.12.1.
PASSPORT agency employees, RC § 173.41.
Preschool employees, RC § 3301.54.1.
Public children services agency employees, RC § 5153.11.1.
School district employees, RC § 3319.39.
Day-care exceptions to public records law, RC § 5101.29.
Drug offenses; records on fine moneys and expenditures are public records, RC § 2925.03.
Forfeiture and disposition of property are public records, RC §§ 2925.42, 2925.43.
Education management information system; individual pupil data not public record, RC § 3301.07.14.
Emergency medical services; confidentiality of identity of patients or recipients, RC §§ 4765.06, 4765.10, 4765.11.
Environmental protection policy statements to be kept current and available for public inspection and copying, RC § 3745.30.
Estate tax return; certificate is a public record, RC § 5731.21.
Financial records of nonprofit organizations receiving governmental funds; confidentiality of patient and client records, RC § 149.43.1.
Health care data center; data as public records; confidentiality of certain information, RC § 3729.46.
Health insuring corporation law; complaint system; medical records are confidential, RC § 1751.19.
Clinical review rationale is not public record, RC § 1751.80.
Home health agencies; summarization of reports shall be a public record, RC § 3701.88.
Hospitals; department of health to maintain report information as a public record, RC § 3727.11.
Name, social security number of patient or physician excluded from required data; maintenance of data as public record; liability, RC § 3727.14.
Insurance company; work papers are not public records, RC § 3901.48.
Insurance fraud division, disclosure of records and evidence, RC § 3901.44.
Insurer, notice of impairment not a public record, RC § 3999.36.
Investigation of violations by anesthesiologist assistant, RC § 4760.14.
Joint legislative ethics committee advisory opinions, RC § 102.08.
Journal of final actions; materials and data are confidential, RC § 1555.17.
Juvenile court records not public record --
Abortion involving a minor; court hearing records, RC § 2151.85.
Appeal of decision; records, RC § 2505.07.3.
Child alleged to be abused, neglected or dependent; records and information, RC § 2151.14.1.
Delinquent child; victim impact statement, RC § 2151.35.5.
Lead abatement lists maintained by director of health are public records, RC § 3742.10.
Liquor control law; application seeking designation as community entertainment district is public record, RC § 4301.80.
Long-term care facilities; confidentiality of information concerning reports of abuse, neglect or misappropriation, RC § 3721.25.
Mediation communications; confidential, when, RC § 2317.02.3.
Medicaid fraud offense; property seizure records are public, RC § 2933.73.
Medically handicapped children and programs; confidentiality of records, RC § 3701.02.8.
Medical records of persons in the state employee assistance program are not public records, RC § 3701.04.1.
Nurses; alternative program for chemically dependent nurses; records are confidential, RC § 4723.35.
Nursing facilities; confidentiality of information; false complaints, RC § 5111.61.
Nursing home; investigation of complaint; confidentiality of information, RC § 3721.03.1.
Organized crime task force; records and information confidential, RC § 177.03.
Personal information systems; disclosure of information permitted, RC §§ 1347.04, 1347.08.
Professional solicitors; report of activities is public record, RC § 1716.08.
Publicly owned athletic facilities exempt from taxation; certain records are public, RC § 5709.08.1.
Public securities records are not public records, RC § 9.96.
Public utilities commission; disclosure of information, RC §§ 4905.07, 4905.82.
Public utilities commission proceedings are public records, RC § 4901.12.
Purchases by competitive sealed proposal not public records until after contract awarded, RC § 125.07.1.
Radon testing and mitigation; information collection; release and retention, RC § 3723.09.
Rail fixed guideway systems; oversight of safety practices, reports are not public record, RC § 5501.55.
Replevin of public records unlawfully removed, RC § 149.35.2.
Request to bureau of motor vehicles for confidentiality of peace officer's residence address or use of business address, RC § 4501.27.1.
Search warrants; seizure, forfeiture, and disposition of contraband procedures; records are public, RC § 2933.43.
Securities division; documents open to inspection, RC § 1707.12.
Sex offenders; notice to victim of offender's registration or change of information not public record, RC § 2950.10.
Persons to be notified within geographical area; information is public record, RC § 2950.11.
Special improvement district; records of organizations contracting with districts are not public records, RC § 1710.02.
State board of education investigations; records are confidential, RC § 3319.31.1.
State long-term care ombudsman program; investigative files are not public records, RC § 173.22.
State medical board report on discipline cases; certain information is public record, RC § 4731.22.
State nurse aide registry; information is public record, RC § 3721.32.
State records center or archival institution; availability and use of records, RC § 149.44.
Substitute bills and conference committee reports; summaries of differences, including fiscal impact, RC § 103.14.2.
Superintendent of insurance; annual reports are public records, RC § 3929.30.1.
Tax credit authority; financial statements and information of applicants not public records, RC § 122.17.
Tax returns and other records; confidentiality of, RC § 5731.90.
Telephone solicitor certificates; certain information not public record, RC § 4719.02.
Title insurance company; statements and reports of financial institutions are not public records, RC § 3953.23.1.
Tourism market research records are not public records, RC § 122.07.
Veterans' services; financial assistance applicants; statement of income and property not public record, RC § 5901.09.
Victim impact statements are confidential, RC § 2947.05.1.
Victim may make statement prior to sentencing; written statement not public record, RC § 2930.14.
Vital records, issuance of copies, RC § 3705.23.
Youth services, permanent commitment of child to department; access to records, RC § 5139.05.

OHIO CONSTITUTION
Court of Appeals, OConst art IV, § 3.
The supreme court, OConst art IV, § 2.

OHIO ADMINISTRATIVE CODE
Department of public safety, bureau of motor vehicles --
Driver's privacy protection. OAC 4501:1-12-02.
Reports of agencies or information not available as public records --
Athletic commission: drug tests of professional boxers. OAC 3773-1-12.
Department of health: test materials for competency evaluation of nurse aides. OAC 3701-18-22.
Department of job and family services: personal information from employers and financial institutions to be matched with child support obligors in arrears. OAC 5101:1-30-12 et seq.
Department of mental retardation / developmental disabilities, division of regulatory systems: major unusual incidents reported by service providers. OAC 5123:2-17-02.
Joint legislative ethics committee: advisory opinions; when public, when private. OAC 101-1-03 et seq.
Office of the attorney general, bureau of criminal identification and investigation: victim information within registration of sex offender. OAC 109:5-2-03.
Racing commission: investigation into death of horse. OAC 3769-8-09, OAC 3769-18-09.

TEXT DISCUSSION
Access to school records. 1 Baker § 3.22
Adoption records. 1 Anderson Fam. L. § 3.21
Certified copy of birth record. 1 Anderson Fam. L. § 2.3
Exceptions to confidentiality. Ohio Prof. Resp. § 9.5
Preparing the case; discovery. Rep. Term. Employee. § 5.4
Preparing the case; pre-filing investigation. Rep. Term. Employee. § 5.1
Teacher personnel records. 1 Baker § 7.20

FORMS
Discovery: freedom of information act request. Rep. Term. Employee. 5.7
Discovery: federal court subpoena for Ohio Civil Rights Commission records. Rep. Term. Employee. 5.8

RESEARCH AIDS
Disclosure of trade secrets by public agencies:
O-Jur3d: Trade Sec § 27
Am-Jur2d: Records §§ 36, 38
Public's right to inspect and copy official records:
O-Jur3d: Records §§ 15-17, 22-25, 27
Am-Jur2d: Records § 12 et seq

ALR
Confidentiality of proceedings or reports of judicial inquiry board or commission. 5 ALR4th 730.
Confidentiality of records as to recipients of public welfare. 54 ALR3d 768.
Patient's right to disclosure of his or her own medical records under state freedom of information act. 26 ALR4th 701.
Payroll records of individual government employees as subject to disclosure to public. 100 ALR3d 699.
State freedom of information act requests: right to receive information in particular medium or format. 86 ALR4th 786.
Validity, construction, and application of statutory provisions relating to public access to police records. 82 ALR3d 19.
What are "records" of agency which must be made available under state freedom of information act. 27 ALR4th 680.
What constitutes an agency subject to application of state freedom of information act. 27 ALR4th 742.
What constitutes "confidential source" within Freedom of Information Act exemption permitting nondisclosure of identity of confidential source and, in specified instances, of confidential information furnished only by confidential source (5 USCS § 552(b)(7)(D)). 59 ALRFed 550.
What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act. 26 ALR4th 666.
What constitutes preliminary drafts or notes provided by or for state or local governmental agency, or intra-agency memorandums, exempt from disclosure or inspection under state freedom of information acts. 26 ALR4th 639.
What materials are exempt from disclosure under Privacy Act's exemption of "investigatory material" contained in 5 USCS § 552a(k)(5). 55 ALRFed 903.
What constitutes legitimate research justifying inspection of state or local public records not open to inspection by general public. 40 ALR4th 333.
What constitutes "trade secrets" exempt from disclosure under state freedom of information act. 27 ALR4th 773.

LAW REVIEW
Breach of medical confidence in Ohio. Craig E. Johnston. 19 AkronLRev 373 (1986).
A certain and chilling effect: Henneman v. City of Toledo [35 OS3d 241 (1988)]. Case note. 15 ONorthLRev 625 (1988).
Closing divorce trials and records: a specific proposal. Hugh Alan Ross. 14 CapitalULRev 80 (1985).
Confidentiality and privilege: the status of social workers in Ohio. Gary W. Paquin. 19 ONorthLRev 199 (1992).
H. 319: Ohio adopts an abortion notification statute. Note. 12 UDayLRev 205 (1986).
James v. Ohio State University: Ohio declares promotion and tenure records of state-supported universities and colleges public records subject to disclosure. Note. 29 AkronLRev 93 (1995).
More magic with less smoke: a ten year retrospective on Ohio's collective bargaining law. 19 UDayLRev 1 (1993).
The Ohio Privacy Act. John E. Gotherman. 7 CapitalULRev 177 (1977).
Ohio's Privacy Act: an analysis. James B. Recchie and Cynthia E. Wayland. 10 ToledoLRev 159 (1978).
Privacy and Ohio's public records act. Comment. 26 CapitalULRev 107 (1997).
Public employee collective bargaining and Ohio public employers: A new perspective. Nicholas A. Pittner, Matthew J. DeTemple, Joseph F. Tremiti. 17 ToledoLRev 719 (1986).
The right to inspect public records in Ohio. Gary Elson Brown. 37 OSLJ 518 (1976).
State ex. rel. Dispatch Printing Co. v. Wells: a limitation on public employee collective bargaining and a new standard of review for public record disclosure. Case Note. 18 ToledoLRev 543 (1987).
Structures and conflicts: Ohio's collective bargaining law for public employees. James T. O'Reilly and Neil Grath. 44 OSLJ 891, 914 (1983).
The union's right to information at the expense of employees' privacy rights. Comment. 15 ToledoLRev 755 (1984).

CASE NOTES AND OAG

1. (1998) Personal information from undercover police officers personnel records was not "confidential law enforcement investigatory records" exempt from the Sunshine Act's general disclosure requirements: Kallstrom v. City of Columbus, 136 F3d 1055 (6th Cir.).

1.1 (1992) Publication of positive drug test of a licensed thoroughbred trainer by the Ohio State Racing Commission was not an unconstitutional invasion of trainer's right to privacy where information contained in urine was not private, trainer had lessened expectation of privacy as a member of the racing profession due to its heavy regulation, and publication occurred in connection with the adjudication of trainer's licensing status: Carelli v. Ginsburg, 956 F2d 598 (6th Cir.).

1.2 (1999) Any doubt as to whether a record kept by a governmental unit must be made available for public inspection is to be resolved in favor of disclosure: Smith v. Dayton, 68 FSupp2d 911 (S.D.).

1.3 (2000) Since the FOP could not legally bar the production of available public records through a records disposition provision in a collective bargaining agreement, it had no "legally protectable" interest that would allow it to intervene: State ex rel. Dispatch Printing Co. v. Columbus, 90 OS3d 39, 734 NE2d 797.

1.4 (2000) Police internal affairs records were, in part, subject to disclosure: State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor, 89 OS3d 440, 732 NE2d 969.

1.5 (2000) State medical board investigative records are not public records. The board cannot unilaterally waive others' privileges to confidentiality. RC § 3901.44, concerning insurance fraud investigative records, and RC § 149.43 must be read in conjunction: State ex rel. Wallace v. State Med. Bd. of Ohio, 89 OS3d 431, 732 NE2d 960.

1.6 (2000) The intellectual property exception did not apply to the university's documents concerning acquisition of a hospital: State ex rel. Besser v. Ohio State Univ., 89 OS3d 396, 732 NE2d 373.

1.7 (2000) The trade secret exception applied only to the university's list of high patient-volume physicians, which would be unfairly helpful to its competitors: State ex rel. Besser v. Ohio State Univ., 89 OS3d 396, 732 NE2d 373.

1.8 (2000) The mootness exception did not apply to a request for a draft collective bargaining agreement which was belatedly disclosed. A public benefit accrues, for purposes of awarding attorney fees, when the public receives sufficient notice of the terms of a draft agreement being submitted for a city council vote in order to provide constructive input to council concerning the agreement: State ex rel. Calvary v. Upper Arlington, 89 OS3d 229, 729 NE2d 1182.

1.9 (2000) Revised Code § 149.43(B)(4) limits an inmate's right of access to certain public records: State ex rel. Sevayega v. Reis, 88 OS3d 458, 727 NE2d 910.

2. (2000) Personal information of private citizens, obtained by a "public office," reduced to writing and placed in record form and used by the public office in implementing some lawful regulatory policy, is not a public record as contemplated by RC § 149.43: State ex rel. McCleary v. Roberts, 88 OS3d 365, 725 NE2d 1144.

2.1 (2000) Neither RC § 3734.12(G) nor the related administrative rules prevented the county commissioners from bringing a mandamus action pursuant to RC § 149.43 to challenge the EPA's finding that certain information constituted confidential trade secrets: State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 OS3d 166, 724 NE2d 411.

2.2 (2000) Trade secrets remain exempt from disclosure under the state or federal law exemption of RC § 149.43. Public entities can have their own trade secrets: State ex rel. Besser v. Ohio State Univ., 87 OS3d 535, 721 NE2d 1044.

3. (1999) The respondents were reasonably prompt in providing the requested records: State ex rel. Taxpayers Coalition v. Lakewood, 86 OS3d 385, 715 NE2d 179.

3.1 (1999) Police officers' files that contain the names of the officers' children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like should not be available to a defendant who might use the information for nefarious ends. This information is protected by a constitutional right of privacy and by a "good sense" rule: State ex rel. Keller v. Cox, 85 OS3d 279, 707 NE2d 931.

3.2 (1999) County officials had no duty to create new records by searching for and compiling information from existing records: State ex rel. White v. Goldsberry, 85 OS3d 153, 707 NE2d 496.

3.3 (1999) Where a mandamus action under RC § 149.43 becomes moot due to a settlement agreement, a relator may nevertheless be entitled to attorney fees: State ex rel. Russell v. Thomas, 85 OS3d 83, 706 NE2d 1251.

3.4 (1999) Records are not exempted from disclosure under RC § 149.43(A)(1)(g) and (A)(2)(c) by the trial-preparation and work-product exemptions when the defendant who is the subject of the records agrees not to pursue any further proceedings that might result in a new criminal trial: State ex rel. Cleveland Police Patrolmen's Assn. v. Cleveland, 84 OS3d 310, 703 NE2d 796.

4. (1998) An award of attorney fees was proper where the respondents failed to provide any reasons justifying their noncompliance: State ex rel. Youngstown City School Dist. Bd. of Edn. v. Youngstown, 84 OS3d 51, 701 NE2d 986.

5. (1998) Exemptions under RC § 149.43 are not affirmative defenses that must be raised in an answer to avoid waiver: State ex rel. Nix v. Cleveland, 83 OS3d 379, 700 NE2d 12.

6. (1998) A county hospital is a public office for purposes of RC §§ 149.01.1 and 149.43: State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Lawrence Cty. Gen. Hosp., 83 OS3d 351, 699 NE2d 1281.

7. (1998) Letters from the public attempting to influence a judge's sentencing decision were not "records" subject to disclosure under RC § 149.43: State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 OS3d 61, 697 NE2d 640.

8. (1998) The Elida community fire company, a private, nonprofit corporation, is a "public office," subject to RC § 149.43: State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co., 82 OS3d 578, 697 NE2d 210.

9. (1998) A particular compilation of information must already exist before access will be ordered. An agency is not required to reprogram its computer to produce it. RC § 3307.21 and OAC 3307-1-03 provide exemptions from disclosure under RC § 149.43: State ex rel. Kerner v. State Teachers Retirement Bd., 82 OS3d 273, 695 NE2d 256.

10. (1998) Allegedly racist e-mail transmitted between public employees did not constitute a public record where it did not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the public agency: State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept., 82 OS3d 37, 693 NE2d 789.

11. (1998) Attorney fees may be granted even though a request for access to a confidential settlement agreement is moot: State ex rel. The Toledo Blade Co. v. Hancock Cty. Bd. of Commrs., 82 OS3d 34, 693 NE2d 787.

12. (1998) Attorney fees incurred as a result of other efforts to obtain the same records, but not directly incurred in the mandamus action under RC § 149.43, were not recoverable: State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 81 OS3d 1234, 690 NE2d 11.

13. (1998) Previously administered examinations of the twelfth grade Ohio proficiency test and the Ohio competency analysis profile are subject to disclosure under RC § 149.43: State ex rel. Rea v. Ohio Dept. of Edn., 81 OS3d 527, 692 NE2d 596.

14. (1998) A board of tax appeals attorney-examiner report is exempt from disclosure under the "judicial mental process" privilege: TBC Westlake, Inc. v. Hamilton Cty. Bd. of Revision, 81 OS3d 58, 689 NE2d 32.

15. (1998) Public records must be made available reasonably promptly: State ex rel. Wadd v. Cleveland, 81 OS3d 50, 689 NE2d 25.

16. (1997) Where the insurance department conducted a review under RC § 3901.32.1 and an examination under RC § 3901.07 simultaneously, the documents submitted by the insurer were not exempt from disclosure pursuant to RC § 3901.48: State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 80 OS3d 513, 687 NE2d 661.

17. (1997) Trade secrets protected under RC § 1333.61 are not subject to disclosure under RC § 149.43: State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 80 OS3d 513, 687 NE2d 661.

18. (1997) Audits of state offices and related papers are generally subject to disclosure. Where grand jury records are included in the audit, any exemption is waived: State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 OS3d 261, 685 NE2d 1223.

19. (1997) The Cuyahoga county ombudsman office is a "public office" whose records are subject to disclosure. RC § 2151.42.1 does not exempt its child abuse and neglect reports: State ex rel. Strothers v. Wertheim, 80 OS3d 155, 684 NE2d 1239.

20. (1997) Settlement agreements involving a public office are generally subject to disclosure, despite a confidentiality term. Neither RC § 121.22(G)(3) nor the fact that custody of the agreement is transferred to a private party provides an exemption: State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs., 80 OS3d 134, 684 NE2d 1222.

21. (1997) Attorney fees may be denied where the agency's position was reasonably grounded in the law and any public benefit was minimal: State ex rel. Olander v. French, 79 OS3d 176, 680 NE2d 962.

22. (1997) University disciplinary records are not "education records" under FERPA: State ex rel. The Miami Student v. Miami Univ., 79 OS3d 168, 680 NE2d 956.

23. (1997) An action under RC § 149.43 is not rendered moot by providing the records if there are important issues that are capable of repetition, yet evading review. An award of fees is proper where a sufficient public benefit is proved and denial of the records was unreasonable: State ex rel. Gannett Satellite Info. Network v. Shirey, 78 OS3d 400, 678 NE2d 557.

24. (1997) Records relating to a criminal investigationcontinued to be exempt where further proceedings were still possible. However, not every record in a prosecutor's file is exempt: State ex rel. WLWT-TV5 v. Leis, 77 OS3d 357, 673 NE2d 1365.

25. (1997) Information that a criminal prosecutor has disclosed to the defendant for discovery purposes pursuant to CrimR 16 is not thereby subject to release as a "public record" pursuant to RC § 149.43: State ex rel. WHIO- TV-7 v. Lowe, 77 OS3d 350, 673 NE2d 1360.

26. (1996) Records containing information concerning applicants for the city safety director's job were public records: State ex rel. Gannett Satellite Information Network v. Shirey, 76 OS3d 1224, 669 NE2d 1148.

27. (1996) In that there is no Ohio legislative scheme protecting the names of suicide victims from disclosure or incorporating the personal privacy exemption adopted by other states and the federal government, the right of privacy does not exempt the coroner's records from disclosure: State ex rel. Findlay Publishing Co. v. Schroeder, 76 OS3d 580, 669 NE2d 835.

28. (1996) Revised Code §§ 121.22, 149.43 and 305.10, when read together, impose a duty on all boards of county commissioners to maintain a full and accurate record of their proceedings. For public records maintained under RC §§ 121.22 and 305.10, full and accurate minutes must contain sufficient facts and information to permit the public to understand and appreciate the rationale behind the relevant public body's decision: White v. Clinton Cty. Bd. of Commrs., 76 OS3d 416, 667 NE2d 1223.

29. (1996) Most of the records were exempt under the uncharged suspect exception because the protected identities of uncharged suspects were inextricably intertwined with the investigatory records: State ex rel. Master v. Cleveland, 76 OS3d 340, 667 NE2d 974.

30. (1996) Revised Code § 149.43 does not impose any duty on public officials to provide written reasons for withholding requested records. Where it is evident that a crime has occurred, although no suspect has yet been charged, any notes, working papers, memoranda, or similar materials compiled by law enforcement officials in anticipation of a subsequent criminal proceeding are exempt from disclosure as RC § 149.43(A)(2)(c) work product: State ex rel. Leonard v. White, 75 OS3d 516, 664 NE2d 527.

31. (1996) In general, 911 tapes are public records subject to disclosure: State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 OS3d 374, 662 NE2d 334.

32. (1996) A court may award attorney fees pursuant to RC § 149.43 where (1) a person makes a proper request for public records pursuant to RC § 149.43, (2) the custodian of the public records fails to comply with the person's request, (3) the requesting person files a mandamus action pursuant to RC § 149.43 to obtain copies of the records, and (4) the person receives the requested public records only after the mandamus action is filed, thereby rendering the claim for a writ of mandamus moot: State ex rel. Pennington v. Gundler, 75 OS3d 171, 661 NE2d 1049.

33. (1996) Exceptions to disclosure under RC § 149.43 are not affirmative defenses subject to CivR 8(C). Neither the right to privacy nor related policy considerations prevent disclosure of resumes of applicants for public employment, such as city police chief: State ex rel. The Plain Dealer Publishing Co. v. Cleveland, 75 OS3d 31, 661 NE2d 187.

34. (1996) Henneman v. Toledo (1988), 35 Ohio St.3d 241, 520 N.E.2d 207, concerning police internal affairs records, is not controlling as to RC § 149.43 claims: State ex rel. Master v. Cleveland, 75 OS3d 23, 661 NE2d 180.

35. (1996) Administrative investigation files concerning misconduct by a state official were public records. However, innocent employees who were promised confidentiality were entitled to redaction of their identities: State ex rel. Yant v. Conrad, 74 OS3d 681, 660 NE2d 1211.

36. (1995) A presentence investigation report is not a public record under RC § 149.43. Thus the state violates CrimR 6(E) by disclosing grand jury information contained in the report: In re Special Grand Jury Investigation Concerning Organic Technologies, 74 OS3d 30, 656 NE2d 329.

37. (1995) Juvenile Rule (B) does not prevent release of a transcript of a juvenile court proceeding pursuant to RC § 149.43 when there is no evidence that release of the particular transcript will result in any harm to the child involved: State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div., 73 OS3d 19, 652 NE2d 179.

38. (1995) A record which is discoverable under CrimR 16 (B) is subject to immediate release regardless of whether it is contained within a prosecutor's file and combined with "trial preparation records": State ex rel. Carpenter v. Tubbs Jones, 72 OS3d 579, 651 NE2d 993.

39. (1995) Police personnel and internal affairs records are not exempt from disclosure. An award of attorney fees is justified where records are unreasonably denied: State ex rel. Police Officers for Equal Rights v. Lashutka, 72 OS3d 185, 648 NE2d 808.

40. (1995) Investigatory and psychological reports compiled on members of a police recruit class are not exempt from disclosure under RC § 149.43: State ex rel. Multimedia, Inc. v. Snowden, 72 OS3d 141, 647 NE2d 1374.

41. (1994) The names and addresses of animal research scientists must be furnished upon a request under RC § 149.43 where they were improperly redacted from documents furnished earlier. RC § 149.43 contains no personal privacy exception similar to the federal freedom of information act: State ex rel. Thomas v. Ohio State Univ., 71 OS3d 245, 643 NE2d 126.

42. (1994) Trade secrets which are prohibited from disclosure pursuant to RC § 1333.51 may be exempt from disclosure as public records under RC § 149.43: State ex rel. Seballos v. School Emp. Retirement Sys., 70 OS3d 667, 640 NE2d 829.

43. (1994) Records are not required to be available for inspection twenty four hours a day. A normal time period, such as eight am. to four pm. is sufficient. Copies are to be furnished at actual cost, not including employee time. Attorney fees are warranted where the custodian has taken retaliatory actions in response to requests: State ex rel. The Warren Newspapers, Inc. v. Hutson, 70 OS3d 619, 640 NE2d 174.

44. (1994) Social security numbers of a city's employees are "records" for purposes of the public records act. However, they are not "public records" subject to disclosure under RC § 149.43. The high potential for fraud and victimization caused by the unchecked release of such numbers outweighs the minimal information about governmental processes gained through the release of the numbers: State ex rel. Beacon Journal Publishing Co. v. Akron, 70 OS3d 605, 640 NE2d 164.

45. (1994) In a pending criminal case, persons seeking to secure records alleged to be "public records," access to which has been requested and denied, must, in accordance with RC § 149.43(C), use mandamus. In the criminal proceeding itself, a defendant may use only CrimR 16 to obtain discovery. A defendant in a criminal case who has exhausted the direct appeals of her or his conviction may not avail herself or himself of RC § 149.43 to support a petition for postconviction relief: State ex rel. Steckman v. Jackson, 70 OS3d 420, 639 NE2d 83.

46. (1994) Promotion and tenure records maintained by a state-supported institution of higher education are "public records" pursuant to RC § 149.43(A)(1), are not subject to any exception, and are, therefore, subject to the public records disclosure requirements of RC § 149.43(B): [Cite as State ex rel. James v. Ohio State Univ., 70 OS3d 168, 637 NE2d 911.

47. (1994) The fact that data which is readily available to a records custodian had not been transcribed into an actual list does not relieve the custodian of a duty to furnish the list: State ex rel. Cater v. N. Olmsted, 69 OS3d 315, 631 NE2d 1048.

48. (1994) Because the general assembly enacted RC § 149.43 subsequent to RC § 1707.12, and never manifested an intent that the two provisions be coextensive in either the original enactment or any successive amendment, RC § 1707.12 is the sole provision governing information collected by the Ohio Division of Securities: State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 OS3d 426, 627 NE2d 993.

49. (1993) The text of the threatening letters should have been disclosed after any names or other identifying information were deleted so as to protect the confidential informant. The uncharged-suspect and investigatory work product exceptions should be narrowly construed: State ex rel. Beacon Journal Publishing Co. v. Kent State Univ., 68 OS3d 40, 623 NE2d 51.

50. (1993) The witness' statements were not exempt as trial preparation records: State ex rel. Morales v. Cleveland, 67 OS3d 573, 621 NE2d 403.

51. (1993) A trial judge's personal handwritten notes made during the course of a trial are not public records: State ex rel. Steffen v. Kraft, 67 OS3d 439, 619 NE2d 688.

52. (1993) Witness statements from aggravated murder conviction case are not exempt as "trial preparation records" under RC § 149.43: State ex rel. Jells v. Cleveland, 67 OS3d 436, 619 NE2d 686.

53. (1993) Grand jury secrecy is a procedural matter rather than a substantive matter and, as such, properly a subject for court rule. Thus CrimR 6(E) would prevail over RC § 149.43 in the case of conflict between the two: State ex rel. Beacon Journal Publishing Co. v. Waters, 67 OS3d 321, 617 NE2d 1110.

54. (1993) Documents may be exempted from disclosure based on promises of confidentiality to witnesses and on threats to their physical safety: State ex rel. Martin v. Cleveland, 67 OS3d 155, 616 NE2d 886.

55. (1993) The witness statements and forensic tests from relator's aggravated murder prosecution were exempt as trial preparation records and investigatory work product: State ex rel. Hamblin v. Brooklyn, 67 OS3d 152, 616 NE2d 883.

56. (1993) The exemption for uncharged suspects in RC § 149.43(A)(2)(a) is not lost by the passage of time or the lack of enforcement action. However, it does not apply to a suspect who is subsequently arrested for the offense: State ex rel. Moreland v. Dayton, 67 OS3d 129, 616 NE2d 234.

57. (1993) Public officials must be given an adequate opportunity to present evidence about claimed exemptions. Exemptions to the release of records may not be self-evident on a document's face, and courts regularly rely upon other evidence to decide exemptions: State ex rel. Lowery v. Cleveland, 67 OS3d 126, 616 NE2d 233.

58. (1993) A person may inspect and copy a "public record" irrespective of his or her purpose for doing so. Not all items in a personnel file are public records. To the extent an item is not a public record and is "personal information," under RC § 1347.01, a public office has an affirmative duty to prevent its disclosure: State ex rel. Fant v. Enright, 66 OS3d 186, 610 NE2d 997.

59. (1993) The court of appeals did not abuse its discretion by finding that the criminal trial records sought by the media were exempt under RC § 149.43(A)(2) and (4): State ex rel. Vindicator Printing Co. v. Watkins, 66 OS3d 129, 609 NE2d 551.

60. (1993) Revised Code § 149.43 does not require custodians to mail either copies of public records or the records themselves: State ex rel. Nelson v. Fuerst, 66 OS3d 47, 607 NE2d 836.

61. (1992) The public is entitled to secure from the records pertaining to each case filed under RC § 2505.07.3: (1) the docket number, (2) the name of the judge, and (3) the decision, including, if appropriate, a properly redacted opinion: State ex rel. The Cincinnati Post v. Second Dist. Court of Appeals, 65 OS3d 378, 604 NE2d 153.

62. (1992) Witness statements taken by police as part of a homicide investigation, but not specifically for trial preparation, are not exempt from disclosure. Notes taken by detectives during trial are exempt. Personal information about relatives of a crime victim is not automatically exempt: State ex rel. Johnson v. Cleveland, 65 OS3d 331, 603 NE2d 1011.

63. (1992) A private nonprofit corporation that acts as a major gift-receiving and soliciting arm of a public university and receives support from public taxation is a "public office" pursuant to RC § 149.01.1(A), and is subject to the public records disclosure requirements of RC § 149.43(B). The names of donors to such a gift-receiving arm of a public university are "public records" pursuant to RC § 149.43(A)(1), and are not subject to any exception to disclosure: State ex rel. Toledo Blade Co. v. Univ. of Toledo Found., 65 OS3d 258, 602 NE2d 1159.

64. (1992) The convicted criminal defendants were entitled to the records except for trial preparation records and specific investigatory work product records: State ex rel. Williams v. Cleveland, 64 OS3d 544, 597 NE2d 147.

65. (1992) Criminal defendant may not obtain a writ of mandamus under RC § 149.43 to secure public records when he may litigate his right to obtain these records in his ongoing criminal case: State ex rel. Hurt v. Cox, 64 OS3d 522, 597 NE2d 131.

66. (1992) A custodian of public records has no clear legal duty under RC § 149.43(B) to transmit copies of those records by mail: State ex rel. Fenley v. Ohio Historical Soc., 64 OS3d 509, 597 NE2d 120.

67. (1992) Investigatory files compiled by SERB must be disclosed upon request pursuant to RC §§ 149.43 and 4117.17 unless an in camera inspection shows an exception from disclosure: State ex rel. Eaton City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 64 OS3d 383, 595 NE2d 938.

68. (1992) Court errs when it determines that documents submitted as part of an application for financial agreement under RC § 1728.06 for approval of a tax-exempt project were not exempted from disclosure as trade secrets without first reviewing the documents in camera. In camera review was needed to determine whether the documents had become public and thus had lost their protection as trade secrets not subject to disclosure under RC § 149.43: State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 63 OS3d 772, 591 NE2d 708.

69. (1992) Investigatory files compiled by the State Employment Relations Board pursuant to RC § 4117.12 must be disclosed upon request pursuant to RC §§ 4117.17 and 149.43 unless an in camera inspection demonstrates that all or any portions of the files are excepted from disclosure. Excepted information may be redacted prior to disclosure: Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 OS3d 498, 589 NE2d 24.

70. (1992) A governmental agency must allow the copying of the portions of computer tapes to which the public is entitled pursuant to RC § 149.43, if the person requesting the information has presented a legitimate reason why a paper copy of the records would be insufficient or impracticable, and if such person assumes the expense of copying: State ex rel. Margolius v. Cleveland, 62 OS3d 456, 584 NE2d 665.

71. (1992) When information sought is not a "document, device or item" as defined in RC § 149.01.1, the information is not a record and therefore not a public record subject to disclosure under RC § 149.43: State ex rel. Fant v. Mengel, 62 OS3d 455, 584 NE2d 664.

72. (1992) Consideration of the application of a statutory exemption to a particular document is best done by an in camera inspection. A court need not thereafter individually describe each document and specify the applicable exemption: State ex rel. Clark v. Toledo, 62 OS3d 452, 584 NE2d 662.

73. (1991) Pro se litigants are not entitled to attorney fees under RC § 149.43: State ex rel. Fant v. Mengel, 62 OS3d 197, 580 NE2d 1085.

74. (1991) A court's discretion to make an award of attorney fees under RC § 149.43(C) does not extend to mandamus actions rendered moot by the voluntary production of the requested record: State ex rel. Toledo Blade Co. v. Northwood, 58 OS3d 213, 569 NE2d 904.

75. (1991) Police homicide investigation files are not exempt from disclosure as "trial preparation records" where they are not "specifically compiled" in anticipation of a criminal proceeding: State ex rel. Coleman v. Cincinnati, 57 OS3d 83, 566 NE2d 151.

76. (1991) Routine internal affairs investigations of the use of deadly force by police officers are "confidential law enforcement investigatory records," and may be exempt from disclosure: State ex rel. Natl. Broadcasting Co. v. Cleveland, 57 OS3d 77, 566 NE2d 146.

77. (1990) Where county, village and township officials meet with prospective developers in a "workshop" meeting closed to the public, such officials have a clear legal duty to prepare minutes of the meeting and make them available for public inspection: State ex rel. The Fairfield Leader v. Ricketts, 56 OS3d 97, 564 NE2d 486.

78. (1990) A criminal defendant may not obtain a writ of mandamus under RC § 149.43 to secure public records when he may litigate his right to obtain these records in his criminal case: State ex rel. Shane v. New Philadelphia Police Dept., 56 OS3d 36, 564 NE2d 86.

79. (1990) Investigations conducted for multiple purposes do not qualify for exemption as "trial preparation records." Any possible exemption is waived where the records are voluntarily disclosed in another lawsuit: State ex rel. Zuern v. Leis, 56 OS3d 20, 564 NE2d 81.

80. (1990) A criminal defendant who has exhausted the direct appeals of his conviction may avail himself of RC § 149.43 to support his petition for post-conviction relief: State ex rel. Clark v. Toledo, 54 OS3d 55, 560 NE2d 1313.

81. (1990) Child abuse investigation reports are confidential and not subject to inspection: State ex rel. Renfro v. Cuyahoga Cty. Dept. of Human Serv., 54 OS3d 25, 560 NE2d 230.

82. (1990) Attorney fees may be awarded under RC § 149.43(C) where there is a clear public benefit and the refusal to disclose the records is an unreasonable attempt to avoid the clear mandate of RC § 143.43: State ex rel. Multimedia, Inc. v. Whalen, 51 OS3d 99, 554 NE2d 1321.

83. (1990) Where respondent acted in good faith and had a reasonable legal basis in defending its refusal to release the records, an award of attorney fees is not warranted. Public benefit should receive no greater consideration than the other factors: State ex rel. Beacon Journal Publishing Co. v. Ohio Dept. of Health, 51 OS3d 1, 553 NE2d 1345.

84. (1990) Attorney fees are costs, statutes relating to costs are remedial, and therefore the attorney fees provision of RC § 149.43(C) does not violate the constitutional prohibition against retroactive legislation: State ex rel. Beacon Journal Publishing Co. v. Ohio Dept. of Health, 51 OS3d 1, 553 NE2d 1345.

85. (1990) A limited writ of mandamus may be granted directing respondent to submit the requested records to the supreme court for an in camera inspection: State ex rel. Renfro v. Cuyahoga Cty. Dept. of Human Serv., 50 OS3d 267, 553 NE2d 1052.

86. (1990) The granting of a CivR 26(B) motion to quash a subpoena duces tecum issued pursuant to CivR 30(B) is subject to review by way of appeal. Accordingly, the party opposing the motion may not seek to obtain identical relief collaterally through the institution of a separate action in mandamus brought pursuant to RC § 149.43(C): State ex rel. Hastings Mut. Ins. Co. v. Merillat, 50 OS3d 152, 553 NE2d 646.

87. (1990) Revised Code § 149.43(C) does not authorize compensation to pro se litigants: Fant v. Bd. of Trustees, Regional Transit Auth., 50 OS3d 72, 552 NE2d 639.

88. (1990) A record of investigation which qualifies as a confidential law enforcement investigatory record under RC § 149.43(A)(2) does not forfeit its statutory protection merely because there has been passage of time with no forthcoming enforcement action. (State ex rel. Thompson Newspaper, Inc. v. Martin [1989], 47 OS3d 28, 546 NE2d 939, followed.): State ex rel. Polovischak v. Mayfield, 50 OS3d 51, 552 NE2d 635.

89. (1990) Investigatory records of state licensing agencies are exempt from disclosure under RC § 149.43(A)(2) as "confidential law enforcement records:" State ex rel. McGee v. Ohio State Bd. of Psychology, 49 OS3d 59, 550 NE2d 945.

90. (1990) Attorney fees may be awarded in RC § 149.43(C) mandamus cases when the relator demonstrates a sufficient public benefit to warrant them. In making an award, a court may also consider the reasonableness of the respondent's refusal to comply with the relator's request and whether the respondent acted in good faith: State ex rel. Mazzaro v. Ferguson, 49 OS3d 37, 550 NE2d 464.

91. (1990) Revised Code § 149.43(B) requires the auditor of the State of Ohio to produce for inspection audit records that he has access to but which he does not actually possess: State ex rel. Mazzaro v. Ferguson, 49 OS3d 37, 550 NE2d 464.

92. (1990) "Executive privilege" does not prevent disclosure of law enforcement records which are not protected under RC § 149.43: State ex rel. Multimedia, Inc. v. Whalen, 48 OS3d 41, 549 NE2d 167.

93. (1989) Confidential law enforcement investigatory records do not become public records merely because they are submitted to a trial court to provide the factual basis for obtaining the appointment of a special prosecutor: State ex rel. Thompson Newspapers, Inc. v. Martin, 47 OS3d 28, 546 NE2d 939.

94. (1989) A prosecutor's decision not to file formal charges against a suspect does not take the record of the investigation outside the exception provided for confidential law enforcement investigatory records in RC § 149.43(A)(2). (State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept. [1988], 38 OS3d 324, 528 NE2d 175, explained and followed.): State ex rel. Thompson Newspapers, Inc. v. Martin, 47 OS3d 28, 546 NE2d 939.

95. (1989) A county auditor is required only to have machines available to reproduce public records stored on magnetic tape. There is no requirement to provide records in the form of magnetic computer tapes and the software to access them: State ex rel. Recodat Co. v. Buchanan, 46 OS3d 163, 546 NE2d 203.

96. (1989) A relator in a mandamus action seeking production of documents pursuant to RC § 149.43 is required, as are relators in other mandamus actions, to show the absence of an adequate alternative to issuing the writ: State ex rel. Scanlon v. Deters, 45 OS3d 376, 544 NE2d 680.

97. (1989) Where CrimR 16 provides a relator an adequate alternative remedy to RC § 149.43, he cannot be granted a writ of mandamus ordering the production of public records available under such rule: State ex rel. Scanlon v. Deters, 45 OS3d 376, 544 NE2d 680.

98. (1989) Minutes of hospital trustee and joint advisory and quality assurance committee meetings were not exempt from disclosure under RC § 2305.25.1: State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp.Assn., 44 OS3d 111, 541 NE2d 587.

99. (1989) An award of attorney fees under RC § 149.43(C) is not mandatory. A non-disclosing party's good faith may be properly examined when deciding whether to allow attorney fees to a prevailing party: State ex rel. Beacon Journal Publishing Co. v. Akron Metro. Hous. Auth., 42 OS3d 1, 535 NE2d 1366.

100. (1988) A public general hospital leased by a city to a nonprofit corporation is a public office whose records are subject to disclosure under RC § 149.43: State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp.Assn., 40 OS3d 10, 531 NE2d 313.

101. (1988) A public hospital, which renders a public service to residents of a county and which is supported by public taxation, is a "public institution" and thus a "public office" pursuant to RC § 149.011(A), making it subject to the public records disclosure requirements of RC § 149.43: State ex rel. Fox v. Cuyahoga Cty. Hosp. System, 39 OS3d 108, 529 NE2d 443.

102. (1988) The award of attorney fees under RC § 149.43(C) is not mandatory: State ex rel. Fox v. Cuyahoga Cty. Hosp. System, 39 OS3d 108, 529 NE2d 443.

103. (1988) Arrest records and intoxilyzer records which contain the names of persons who have been formally charged with an offense, as well as those who have been arrested and/or issued citations but who have not been formally charged, are not confidential law enforcement investigatory records within the exception to the Public Records Law, RC § 149.43(A)(2)(a), and are thus subject to disclosure: State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept., 38 OS3d 324, 528 NE2d 175.

104. (1988) A report prepared by a court administrator from factual information contained in public records is a public record subject to disclosure under the Public Records Law, even though such compilations are made for the use of judges in sentencing: State ex rel. Cincinnati Post v. Schweikert, 38 OS3d 170, 527 NE2d 1230.

105. (1988) The Public Records Law, RC § 149.43, does not exempt compilations of information contained in public records and does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials: State ex rel. Cincinnati Post v. Schweikert, 38 OS3d 170, 527 NE2d 1230.

106. (1988) When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question. If the court finds that these records contain excepted information, this information must be redacted and any remaining information must be released: State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 OS3d 79, 526 NE2d 786.

107. (1988) The specific investigatory work product exception, RC § 149.43(A)(2)(c), protects an investigator's deliberative and subjective analysis, his interpretation of the facts, his theory of the case, and his investigative plans. The exception does not encompass the objective facts and observations he has recorded: State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 OS3d 79, 526 NE2d 786.

108. (1988) A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by RC § 149.43: State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 OS3d 79, 526 NE2d 786.

109. (1988) Law enforcement investigatory records must be disclosed unless they are excepted from disclosure by RC § 149.43: State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 OS3d 79, 526 NE2d 786.

110. (1988) The record of an investigation of alleged wrongdoing by a police chief compiled to establish the accuracy of the accusations is a public record. While the investigation may lead to litigation, the record of that investigation does not qualify as a trial preparation record: Barton v. Shupe, 37 OS3d 308, 525 NE2d 812.

111. (1988) Records and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party's need for the material outweighs the public interest in the confidentiality of such information: Henneman v. Toledo, 35 OS3d 241, 520 NE2d 207.

112. (1987) Revised Code § 149.99 [repealed] provides the exclusive remedy to compel compliance with RC § 149.43: State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp.Assn., 32 OS3d 327, 512 NE2d 1176.

113. (1986) The trial court did not err in finding that the city's refusals to produce the records constituted only one violation of RC § 149.43(B): Beacon Journal Pub. Co. v. Stow, 25 OS3d 347, 25 OBR 399, 496 NE2d 908.

114. (1986) Videotapes of trial proceedings are public records: State ex rel. Harmon v. Bender, 25 OS3d 15, 25 OBR 13, 494 NE2d 1135.

115. (1985) Civil service personnel records of a police officer-witness are public records: State v. Bundy, 20 OS3d 51, 20 OBR 351, 485 NE2d 1039.

116. (1985) Any document appertaining to, or recording of, the proceedings of a court, or any record necessary to the execution of the responsibilities of a governmental unit is a "public record" and "required to be kept" within the meaning of RC § 149.43. Absent any specific statutory exclusion, such record must be made available for public inspection: State, ex rel. Mothers Against Drunk Drivers v. Gosser, 20 OS3d 30, 20 OBR 279, 485 NE2d 706.

117. (1985) When statutes impose a duty on a particular official to oversee records, that official is the "person responsible" under RC § 149.43(B): State, ex rel. Mothers Against Drunk Drivers v. Gosser, 20 OS3d 30, 20 OBR 279, 485 NE2d 706.

118. (1985) To protect against the unfettered disclosure of civil service personnel records which do not fall within the purview of RC § 149.43, determination of an application for disclosure must be made on an ad hoc basis with the court being the final arbiter as to whether the information is subject to public disclosure. Only if the information in question does not fall within the scope of RC § 149.43 must a determination be made as to whether its release would constitute an invasion of personal privacy as prohibited by RC Chapter 1347.: State ex rel. Dispatch Printing Co. v. Wells, 18 OS3d 382, 18 OBR 437, 481 NE2d 632.

119. (1985) Names and addresses of PFDPF members are public records subject to public inspection: Police & Fire Retirees of Ohio, Inc. v. Police and Firemen's Disability & Pension Fund, 18 OS3d 231, 18 OBR 289, 480 NE2d 482.

120. (1984) Autopsy reports are exempt as specific investigatory work product from disclosure under RC § 149.43: State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 OS3d 100, 12 OBR 87, 465 NE2d 458.

121. (1983) Records of parole proceedings are not required to be made available as public records: State ex rel. Gaines v. Adult Parole Authority, 5 OS3d 104, 449 NE2d 762.

122. (1980) Routine factual law enforcement reports compiled prior to the January 18, 1980 amendment to RC § 149.43 are subject to disclosure: State ex rel. Beacon Journal v. Univ. of Akron, 64 OS2d 392, 18 OO3d 534, 415 NE2d 310.

123. (1979) List of names and addresses of PERS members is a public record: State ex rel. Public Employees Retirees v. PERS, 60 OS2d 93, 14 OO3d 331, 397 NE2d 1191.

124. (1978) In determining whether disclosure to the general public of personal information contained in an otherwise "public record" would constitute an improper use of personal information under the provisions of RC Chapter 1347., the interest of the public's "right to know," codified in RC § 149.43, must be balanced against an individual's "right of personal privacy," codified in RC Chapter 1347. In the consideration of these respective interests, doubt should be resolved in favor of public disclosure of "public records" in order to insure the existence of an informed public: Wooster Republican Printing Co. v. Wooster, 56 OS2d 126, 10 OO3d 312, 383 NE2d 124.

125. (1978) Revised Code § 149.43, providing that "[a]ll public records shall be open at all reasonable times for inspection," must be read in pari materia with RC Chapter 1347., which became effective January 1, 1977 (Dayton Newspapers v. Dayton, 45 OS2d 107, 74 OO2d 209 (1976), distinguished): Wooster Republican Printing Co. v. Wooster, 56 OS2d 126, 10 OO3d 312, 383 NE2d 124.

126. (1978) Police and other law enforcement investigatory records are not subject to the compulsory disclosure provisions of RC § 149.43: Wooster Republican Printing Co. v. Wooster, 56 OS2d 126, 10 OO3d 312, 383 NE2d 124.

127. (1978) Judge's financial disclosure statement filed in juvenile court is not a "public record": State ex rel. Citizens' Bar Assn. v. Gagliardo, 55 OS2d 70, 9 OO3d 74, 378 NE2d 153.

128. (1978) Revised Code § 5120.21 provides that records on prisoners kept by the department of rehabilitation and correction shall be accessible only to its employees. Thus records and files on prisoners are not public records subject to public inspection: State ex rel. Harris v. Rhodes, 54 OS2d 41, 8 OO3d 36, 374 NE2d 641.

129. (1977) Governmental records should be available to the public unless the custodian of such records can show a legal prohibition to disclosure. Thus the remittance advice forms of the industrial commission must be available for public inspection because they are not records disclosing the results of confidential physical or psychiatric examinations: State ex rel. Plain Dealer Publishing Co. v. Krouse, 51 OS2d 1, 5 OO3d 1, 364 NE2d 854.

130. (1977) Revised Code § 4713.02 requires the State Board of Cosmetology to keep records of the names and addresses of all licensed cosmetologists. Thus these records are "public records" within the meaning of RC § 149.43 and must be available for public inspection and copying: State ex rel. Milo's Beauty Supply Co. v. State Board of Cosmetology, 49 OS2d 245, 3 OO3d 374, 361 NE2d 444.

131. (1976) The records of all proceedings of the Registrar of Motor Vehicles are required to be open to the public for inspection at all reasonable times: State ex rel. Beacon Journal Publishing Co. v. Andrews, 48 OS2d 283, 2 OO3d 434, 358 NE2d 565.

132. (1976) All documents in the possession of the Registrar of Motor Vehicles, including all abstracts of records required to be received by and maintained by the registrar pursuant to the provisions of RC § 4507.40, are public records and shall be kept open at all reasonable times for inspection and, upon request, the registrar shall make copies of such records available at cost within a reasonable period of time: State ex rel. Beacon Journal Publishing Co. v. Andrews, 48 OS2d 283, 2 OO3d 434, 358 NE2d 565.

133. (1976) Successful mandamus action to permit inspection and copying of certain high school records did not justify an award of attorney's fees based upon "public benefit": State ex rel. Grosser v. Boy, 46 OS2d 184, 75 OO2d 228, 347 NE2d 539.

134. (1975) Student records of the public schools are public records open to general inspection under RC § 149.43: State ex rel. Grosser v. Boy, 42 OS2d 498, 71 OO2d 499, 330 NE2d 442.

134.1 (1973) Where a taxpayer requests the law director of a municipality to advise the commissioner of the division of building to permit the inspection and copying of public records, as required by RC § 149.43, and the law director refuses, relying upon an alleged policy of the municipality, it is clear that a written request upon the law director to maintain a mandamus action against the commissioner, pursuant to RC § 733.58, would be futile and unavailing, and such request, required by RC § 733.59, is excused: State ex rel. White v. Cleveland, 34 OS2d 37, 63 OO2d 79, 295 NE2d 665.

134.2 (1999) A court may conduct an in camera inspection of child abuse records and has inherent power to order disclosure in appropriate circumstances: Johnson v. Johnson, 134 OApp3d 579, 731 NE2d 1144.

134.3 (1999) Records of the Ohio public defender's office concerning the time and public funds expended in representing a defendant were subject to disclosure under RC § 149.43: State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 OApp3d 415, 731 NE2d 245.

134.4 (1999) Background investigation files regarding police candidates are generally not confidential unless an exception to disclosure applies: Patrolman "X" v. Toledo, 132 OApp3d 374, 725 NE2d 291.

134.5 (1999) The court erred by ordering the state to disclose the identity of a confidential informant where the informant was not a witness to the offense and the state did not intend to call the informant as a witness at trial: State v. Deleon, 131 OApp3d 632, 723 NE2d 188.

134.6 (1998) A defendant was not entitled to have records created and supplied to him by a court-appointed psychologist who conducted a competency examination: State ex rel. Farley v. McIntosh, 134 OApp3d 531, 731 NE2d 726.

135. (1998) The settlement agreement became a public record when the court journalized it as part of the court's entry. Thus a party could not be sanctioned for violating a confidentiality provision in the agreement: Potchen v. Kelly, 130 OApp3d 21, 719 NE2d 570.

135.1 (1997) Absent express statutory authorization, the bureau of workers' compensation rule concerning confidentiality of certain managed care organization records is an unauthorized attempt to create an exception to the public records act: State ex rel. Gallon & Takacs Co., L.P.A. v. Conrad, 123 OApp3d 554, 704 NE2d 638.

136. (1997) An inmate's medical records are not subject to the public records law: State ex rel. Arnold v. Belmont Corr. Infirmary, 123 OApp3d 183, 703 NE2d 857.

137. (1997) A "strike plan" prepared by the police to deal with a possible strike by public school teachers was exempt from disclosure: State ex rel. Cleveland Police Patrolmen's Assn. v. Cleveland, 122 OApp3d 696, 702 NE2d 926.

138. (1997) The report of an investigation of a public employee was not subject to disclosure where the investigation revealed no misconduct and disclosure would violate promises of confidentiality: State ex rel. Strothers v. McFaul, 122 OApp3d 327, 701 NE2d 759.

139. (1997) The clerk of courts had a duty to accommodate the request to review and inspect two vehicle titles: State ex rel. Strothers v. Fuerst, 120 OApp3d 305, 697 NE2d 1063.

140. (1997) One seeking access to public records should be able to receive that information via the method best suited to the person's needs. Thus the prosecutor was entitled to listen to a tape recording of the plea hearing, rather than pay for a typed transcript: State ex rel. Swigart v. Barber, 118 OApp3d 238, 692 NE2d 639.

141. (1996) Revised Code § 149.43 does not require records to be provided free of charge: State ex rel. Edwards v. Cleveland Police Dept., 116 OApp3d 168, 687 NE2d 315.

142. (1996) Juror questionnaire forms are not public records: State ex rel. Blankenship v. Baden, 115 OApp3d 127, 684 NE2d 1255.

143. (1996) The prosecutor's investigatory records were exempt from disclosure: Kremer v. Cox, 114 OApp3d 41, 682 NE2d 1006.

144. (1996) Because the health department received state and federal funding for its home health care program, its client list was not, pursuant to RC § 149.43.1, subject to disclosure: Guardian Home Nursing, Inc. v. Medina Cty. Health Dept., 113 OApp3d 734, 682 NE2d 4.

145. (1996) Generally, internal police investigatory reports are subject to disclosure: Cleveland Police Patrolmen's Assn. v. Cleveland, 110 OApp3d 796, 675 NE2d 501.

146. (1996) Evaluations of the city manager's job performance by council members were public records. However, the mandamus petition was prematurely filed: State ex rel. Medina Cty. Gazette v. Brunswick, 109 OApp3d 661, 672 NE2d 1070.

147. (1996) A public office should not impose preparation costs on a litigant who requests copies of public records; a reasonable fee reflecting the actual costs of copying is permissible: State ex rel. Lemke v. Columbiana County Prosecutor's Office, No. 93-C-56 (7th Dist.), 1996 Ohio App. LEXIS 521.

148. (1996) The beneficiary designation form executed by a member of the state teachers retirement system was not subject to disclosure: State ex rel. Lindsay v. Dwyer, 108 OApp3d 462, 670 NE2d 1375.

149. (1995) Drafts of proposed legislation circulated by a state agency are public records under RC § 149.43: State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Gulyassy, 107 OApp3d 729, 669 NE2d 487.

150. (1995) Relator was not entitled to the requested records where no appeal of his conviction was pending and he did not tender payment for them: State ex rel. Plowman v. Butler Cty. Clerk of Courts, 103 OApp3d 77, 658 NE2d 812.

151. (1995) The public records act, RC § 149.43, cannot be employed to obtain materials for use in support of a petition for postconviction relief, and materials obtained through the act cannot be used in support of a petition: State v. Walker, 102 OApp3d 625, 657 NE2d 798.

152. (1995) An incarcerated person may designate a person to obtain public records on his behalf: State ex rel. Nelson v. Fuerst, 101 OApp3d 436, 655 NE2d 825.

153. (1995) Personal calendars and appointment books maintained solely for the governor's personal convenience are not subject to disclosure under RC § 149.43: Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of Am. v. Voinovich, 100 OApp3d 372, 654 NE2d 139.

154. (1995) The court erred by denying discovery of police records in a civil action for damages without conducting an in-camera inspection: Brkic v. Cleveland, 100 OApp3d 282, 653 NE2d 1225.

155. (1995) A PSI report is not a public record within the meaning of RC § 149.43 and is therefore exempt from disclosure. Furthermore, RC § 1347.04(A)(1) provides that the criminal courts are exempt from RC Chapter 1347. Accordingly, pursuant to RC § 1347.04, the criminal courts are under no legal duty to correct PSI reports: State ex rel. Normand v. Wilkinson, No. 95APE05-563 (10th Dist.), 1995 Ohio App. LEXIS 5257.

156. (1994) Unless there is an applicable statutory waiver, trade secret protection is not lost merely because information is included in an application or proposal to a public agency: State ex rel. Fisher v. PRC Pub. Sector, Inc., 99 OApp3d 387, 650 NE2d 945.

157. (1994) Statements taken by the police from victims for the sole purpose of initiating prosecution are exempt from disclosure. Calendars prepared by victims for the same purpose and to provide a chronology of the offenses are also exempt: State v. Daniel, 97 OApp3d 548, 647 NE2d 174.

158. (1994) Bureau of criminal information data are not public records: State v. Lebron, 97 OApp3d 155, 646 NE2d 481.

159. (1994) The municipal court did not abuse its discretion by unsealing the affidavit for the search warrant, even though it would lead to disclosure of the identity of an informant: In re Search Warrant No. 5077/91, 96 OApp3d 737, 645 NE2d 1304.

160. (1994) An incarcerated convict may use a designee to gain access to records pursuant to RC § 149.43. However, the identity and scope of authority of the designee must be clearly stated: State ex rel. Finnerty v. Custodian of Records, Strongsville Police Dept., 96 OApp3d 569, 645 NE2d 780.

161. (1994) The police officers' contractual duty to cooperate in internal affairs investigations was not abrogated by the fact that the confidentiality provision was subsequently found to be contrary to RC § 149.43: Toledo Police Patrolmen's Assn., Local 10, IUPA v. Toledo, 94 OApp3d 734, 641 NE2d 799.

162. (1994) A presentence investigation report is not a public record under RC § 149.43. It is a violation of CrimR 6(E) for the state to disclose grand jury information filed in connection with the report: In re Special Grand Jury Investigation Concerning Organic Technologies, No. 3-CA-00077 (5th Dist.), 1994 Ohio App. LEXIS 2180.

163. (1994) Records which contain the names of suspects in a criminal investigation who were neither charged with nor arrested for an offense are specifically exempted from release under RC § 149.43(A)(2)(a): State ex rel. Sweeney v. Parma Hts., 93 OApp3d 349, 638 NE2d 614.

164. (1994) A murder victim's family does not have standing to bring an action to prevent the release of photographs and other records by the prosecutor to the media: State ex rel. Jefferys v. Watkins, 92 OApp3d 809, 637 NE2d 345.

165. (1993) Revised Code § 149.43(C) requires a person seeking access to public records to bring a mandamus action in the court of appeals for the appellate district in which the records are withheld. Where an action is improperly venued, the court has jurisdiction to transfer it to the proper court: State ex rel. Pierce v. Dowler, 89 OApp3d 670, 626 NE2d 1033.

166. (1993) After conviction, a defendant is not entitled to a copy of the presentence report under RC § 149.43 or 2951.03 or CrimR 32.2. However, a defendant is entitled to access to it prior to sentencing: State v. Dietz, 89 OApp3d 69, 623 NE2d 613.

167. (1993) A defendant's request that the prosecutor produce police records is not directed to the proper agency: State v. Thompson, 87 OApp3d 570, 622 NE2d 735.

168. (1993) Where a defendant requests evidence beyond the scope of CrimR 16, the defendant must first articulate a reasonable factual basis as to why he believes the records are exculpatory: State v. Simmons, 87 OApp3d 290, 622 NE2d 22.

169. (1993) Polygraph tests given to candidates for a municipal police force are subject to disclosure as public records: State ex rel. Lorain Journal Co. v. Lorain, 87 OApp3d 112, 621 NE2d 894.

170. (1993) Revised Code § 149.43 does not require the court to scrutinize every record to determine which records must be disclosed where the defendant makes a blanket request for all records and