2023 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.