NY Exec L § 995-B (2021)
2021 New York Laws EXC - Executive Article 49-B - Commission on Forensic Science and Establishment of DNA Identification Index 995-B - Powers and Duties of the Commission.

§ 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 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.