CJS-28-10-00005-P Notification to Designated Offenders

7/14/10 N.Y. St. Reg. CJS-28-10-00005-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 28

July 14, 2010

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-28-10-00005-P

Notification to Designated Offenders

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of section 6191.3(f) and (g) to Title 9 NYCRR.

Statutory authority:

Executive Law, sections 837(13) and 995-c(4)

Subject:

Notification to designated offenders.

Purpose:

To address the procedures for notifying designated offenders who are not subject to incarceration or probation supervision.

Text of proposed rule:

1. Two new subdivisions (f) and (g) are added to section 6191.3 of Title 9 NYCRR to read as follows:

(f) Any designated offender who is not subject to incarceration or probation supervision as a result of a conviction for a designated offense, as well as any other designated offender who currently owes a sample but is not under sentence, may be notified by any court official, police officer, peace officer, or other public servant that he or she is required to provide a DNA sample to determine identification characteristics specific to such person and for inclusion in the State DNA identification index.

(g) The notification to a designated offender provided for in this section that such designated offender is required to provide a DNA sample may be communicated to such designated offender verbally and need not be in writing.

Text of proposed rule and any required statements and analyses may be obtained from:

Natasha M. Harvin, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Executive Law sections 837(13) and 995-c(4).

2. Legislative objectives: The State DNA Databank is established pursuant to Executive Law § 995-c. Subdivision (4) of § 995-c requires the commissioner of the Division of Criminal Justice Services, in consultation with the Commission on Forensic Science, the Commissioner of Health, the Division of Parole, the Division of Probation and Correctional Alternatives, and the Department of Correctional Services, to promulgate rules and regulations governing the procedures for notifying designated offenders of the requirements of this section. Part 6191 of Title 9 NYCRR was promulgated to meet this requirement. The proposed rule amends section 6191.3 to address the procedures for notifying offenders who are not subject to incarceration or probation supervision, or who currently owe a sample but are not under sentence.

3. Needs and benefits: Part 6191 was first promulgated in 1996 and amended in 2000. It addresses notification of designated offenders who are under probation or parole supervision or who are committed to a local correctional facility, the Department of Correctional Services, or the Office of Children and Family Services of their obligation to provide a DNA sample. When the databank first became operational, designated offenders were limited to serious and violent felonies for which incarceration or probation supervision were the only options. Over the years, however, the Databank has been expanded to include more offenders. As a result, many designated offenders are now convicted of relatively low level misdemeanor offenses-- such as petit larceny, for example-- for which neither a sentence of incarceration nor probation supervision is required. These offenders may instead be sentenced to a fine or conditional discharge and have no further contact with probation or correctional officials. Thus, the individuals and entities typically responsible for notifying offenders of their duty to provide a sample, such as local probation officers and local correctional facilities, have no interaction with these offenders, and therefore, they will not inform them of their statutory duty to provide a sample. The proposed rule would amend section 6191.3 to provide that offenders who are statutorily required to provide a sample, but from whom a sample has not been taken, can be notified by any court official, police officer, peace officer, or other public servant of their obligation to provide a DNA sample. Such notification is important because at least one court has ruled that a designated offender who has been given notice pursuant to Part 6191 of his or her obligation to provide a DNA sample and refuses to do so may face prosecution for obstructing governmental administration in the second degree (see People v. Chalmers, 21 Misc.3d 953 [Albany City Court 2008]). Some district attorneys have expressed reluctance to charge an offender who was not subject to incarceration or probation supervision, and who therefore was not provided notification pursuant to Part 6191, with obstructing governmental administration.

4. Costs:

a) Costs to regulated parties for the implementation of and continuing compliance with the rule: None.

b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: None.

c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The cost analysis is based on the fact the proposal does not impose mandates or other requirements on any party. It merely provides authorization for any court official, police officer, peace officer, or other public servant to notify a designated offender of his or her obligation to provide a DNA sample.

5. Local government mandates: There are no new mandates imposed by the rule upon any local government.

6. Paperwork: There is no new paperwork required by the proposal.

7. Duplication: No other legal requirements of the state and federal governments, duplicate, overlap, or conflict with the rule.

8. Alternatives: The Commissioner considered not amending section 6191.3. However, this alternative was rejected because it is believed that amending section 6191.3 will facilitate the collection of DNA samples from designated offenders who are legally required to provide a sample but who are not incarcerated or under probation supervision.

9. Federal standards: There are no applicable federal standards.

10. Compliance schedule: Regulated parties are expected to be able to comply with the rule immediately.

Regulatory Flexibility Analysis

1. Effect of rule: The State DNA Databank is established pursuant to Executive Law § 995-c. Subdivision (4) of § 995-c requires the commissioner of the Division of Criminal Justice Services, in consultation with the Commission on Forensic Science, the Commissioner of Health, the Division of Parole, the Division of Probation and Correctional Alternatives, and the Department of Correctional Services, to promulgate rules and regulations governing the procedures for notifying designated offenders of the requirements of this section. Part 6191 of Title 9 NYCRR was promulgated in 1996 and amended in 2000 to meet this requirement. It currently addresses notification of designated offenders who are under probation or parole supervision or who are committed to a local correctional facility, the Department of Correctional Services, or the Office of Children and Family Services of their obligation to provide a DNA sample. When the databank first became operational, designated offenders were limited to serious and violent felonies for which incarceration or probation supervision were the only options. Over the years, however, the Databank has been expanded to include more offenders. As a result, many designated offenders are now convicted of relatively low level misdemeanor offenses-- such as petit larceny, for example-- for which neither a sentence of incarceration nor probation supervision is required. These offenders may instead be sentenced to a fine or conditional discharge and have no further contact with probation or correctional officials. The proposed rule would amend section 6191.3 to provide that such offenders may be notified by any court official, police officer, peace officer, or other public servant. Such notification is important because at least one court has ruled that a designated offender who has been given notice pursuant to Part 6191 of his or her obligation to provide a DNA sample and refuses to do so may face prosecution for obstructing governmental administration in the second degree.

The proposed rule does not apply to small businesses.

2. Compliance requirements: The rule imposes no mandates on local governments.

3. Professional services: No professional services will be needed to comply with the proposed rule.

4. Compliance costs: None. The cost analysis is based on the fact the proposal does not impose mandates or other requirements on any party. It merely provides authorization for any court official, police officer, peace officer, or other public servant to notify a designated offender of his or her obligation to provide a DNA sample.

5. Economic and technological feasibility: No economic or technological impediments to compliance have been identified.

6. Minimizing adverse impact: The rule imposes no mandates on local governments. It merely provides authorization for any court official, police officer, peace officer, or other public servant to notify a designated offender of his or her obligation to provide a DNA sample. It is therefore expected that there will be no adverse impact on local governments.

7. Small business and local government participation: The Commission on Forensic Science and reviewed this proposal. These entities include among their members two representatives of local government laboratories and two county district attorneys. These members provided comment and input regarding the proposed rule.

Rural Area Flexibility Analysis

The proposal does not impose mandates or other requirements on any party. It merely provides authorization for any court official, police officer, peace officer, or other public servant to notify a designated offender of his or her obligation to provide a DNA sample. It is therefore expected that there will be no adverse impact on rural areas, or reporting, record keeping or other compliance requirements on public or private entities in rural areas.

Job Impact Statement

The proposed rule provides authorization for any court official, police officer, peace officer, or other public servant to notify a designated offender of his or her obligation to provide a DNA sample. As such, it is apparent from the nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.