2023 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.