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

§ 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. (a) Any designated offender subsequent to conviction and sentencing for  a  crime  specified  in  subdivision  seven of section nine hundred ninety-five of this article, shall  be  required  to  provide  a  sample 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.  (b) (i) In the case of a designated offender who  is  sentenced  to  a term  of  imprisonment,  such  sample  shall  be collected by the public servant to whose custody the designated offender has been committed.  (ii) In the case of a designated offender who is sentenced to  a  term of  probation,  including a sentence of probation imposed in conjunction with a sentence of imprisonment when  a  sample  has  not  already  been taken,  such  sample  shall  be  collected  by  the probation department supervising the designated offender.  (iii) In the case of a designated offender  whose  sentence  does  not include either a term of imprisonment or a term of probation, outside of the  city of New York, the court shall order that a court officer take a sample or that the designated  offender  report  to  an  office  of  the sheriff  of  that county, and when the designated offender does so, such sample shall be collected by the sheriff's office. Within  the  city  of New  York, the court shall order that the sample be collected by a court officer.  (iv) Nothing in this paragraph shall prohibit the collection of a  DNA sample  from a designated offender by any court official, state or local correction official or  employee,  probation  officer,  parole  officer, police  officer,  peace  officer,  other  law  enforcement  official, or designated personnel of the division of criminal  justice  services  who has been notified by the division of criminal justice services that such designated  offender has not provided a DNA sample. Upon notification by the division of criminal justice services that a designated offender has not  provided  a  DNA  sample,  such  court  official,  state  or  local correction  official  or  employee,  probation  officer, parole officer, police officer, peace officer or  other  law  enforcement  official,  or designated  personnel of the division of criminal justice services shall collect the DNA sample.   4. The commissioner of the division of criminal justice  services,  in consultation  with  the  commission,  the  commissioner  of  health, the director of the office of probation and  correctional  alternatives  and the   department   of   corrections  and  community  supervision,  shall promulgate rules and regulations governing the procedures for  notifying designated offenders of the requirements of this section.   5. The 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. (a) Upon receipt of notification of a reversal or a  vacatur  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 such individual may apply to the court in which the judgment of conviction was originally  entered for  an  order  directing  the  expungement  of  any  DNA record and any samples, analyses, or other documents relating to  the  DNA  testing  of such  individual  in connection with the investigation or prosecution of the crime which resulted in the conviction that was reversed or  vacated or for which the pardon was granted. A copy of such application shall be served  on  the district attorney and an order directing expungement may be granted  if  the  court  finds  that  all  appeals  relating  to  the conviction  have  been  concluded;  that  such  individual  will  not be retried, or, if a retrial has occurred, the trier of fact has rendered a verdict of complete acquittal, and that expungement will  not  adversely affect  the investigation or prosecution of some other person or persons for the crime. The division shall,  by  rule  or  regulation,  prescribe procedures to ensure that the DNA record in the state DNA identification  index,  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, at the discretion of the possessor thereof, are either destroyed or returned to such individual, or to  the attorney  who  represented him or her at the time such reversal, vacatur 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.  (b)  As  prescribed  in  this  paragraph,  if  an  individual,  either voluntarily or pursuant to a warrant or order of a court, has provided a sample   for  DNA  testing  in  connection  with  the  investigation  or prosecution of a crime and (i) no criminal action against the individual relating to such crime was commenced  within  the  period  specified  by section  30.10  of the criminal procedure law, or (ii) a criminal action was commenced against  the  individual  relating  to  such  crime  which resulted in a complete acquittal, or (iii) a criminal action against the individual  relating  to  such  crime  resulted in a conviction that was subsequently reversed or  vacated,  or  for  which  the  individual  was granted  a  pardon  pursuant  to  article  two-A  of  this chapter, such individual may apply to the supreme court or  the  court  in  which  the judgment of conviction was originally entered for an order directing the expungement  of  any  DNA  record  and  any  samples, analyses, or other documents relating to the DNA testing of such individual  in  connection with  the  investigation  or  prosecution  of such crime. A copy of such application shall be served  on  the  district  attorney  and  an  order directing  expungement  may  be  granted  if  the  court  finds that the individual has satisfied the conditions of one of the  subparagraphs  of this  paragraph;  that  if  a  judgment  of  conviction  was reversed or vacated, all appeals  relating  thereto  have  been  concluded  and  the individual will not be retried, or, if a retrial has occurred, the trier of  fact  has  rendered  a  verdict  of  complete  acquittal,  and  that expungement will not adversely affect the investigation  or  prosecution of some other person or persons for the crime. If an order directing the expungement  of  any  DNA  record  and  any  samples,  analyses or other documents relating to the DNA testing of such individual is issued, such record and any samples, analyses,  or  other  documents  shall,  at  the discretion  of  the  possessor thereof, be destroyed or returned to such individual or to the attorney who represented him or her  in  connection with the application for the order of expungement.