New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle U - Division of Criminal Justice Services › Chapter VIII - Forensic Services › Part 6193 - Use And Dissemination Agreement For Access To State Dna Databank; Right Of Subjects To Access Records, And Expungement › Section 6193.4 - Expungement of DNA records

Current through Register Vol. 46, No. 28, July 10, 2024
(a) An
				  individual with a convicted offender DNA profile that has been included in the
				  offender index of the DNA databank or an individual with a subject DNA profile
				  that has been included in the offender index of the DNA databank pursuant to a
				  plea agreement may request expungement on the grounds that the conviction which
				  formed the basis for such inclusion in the DNA databank was reversed or vacated
				  or a pardon was granted. An individual shall provide the request in writing to
				  the division along with a certified copy of the final court order reversing or
				  vacating the conviction or a certified copy of the pardon. Upon receipt of such
				  request for expungement:
(1) the division
				  shall verify whether a DNA sample was ever collected from an individual with
				  personal identifying data which corresponds with information provided in this
				  subdivision. If needed, the division shall use other computerized databases
				  within the authority of the division to assist in fulfilling the subject's
				  request;
(2) if no record is found
				  using this information, or if there is any discrepancy discovered in the
				  information submitted by the subject or his or her representative in the
				  request, the division shall notify the subject in writing within 30 business
				  days, setting forth reasons why documents were not returned and requesting
				  additional information, if appropriate, by certified or registered mail return
				  receipt requested. For purposes of this section,
DNA record
shall refer to the DNA record relating to the subject's conviction which has
				  been reversed or vacated or which a pardon has been granted and for which
				  expungement has been requested. Only the DNA records relating to the conviction
				  that has been reversed or for which a pardon was granted shall be subject to
				  these expungement procedures;
(3)
				  if a record is found for the identified subject in the DNA databank and no
				  discrepancies are identified in the submitted information, the division shall
				  determine the location and extent of all documents related to the subject's DNA
				  record. The list of documents identified in this search will be communicated by
				  the division to the subject in writing within 30 days of the notification of
				  need for expungement, by return receipt requested mail. In this same letter,
				  the division shall define for the subject the expected time needed to obtain
				  all copies of all documents to be returned to the subject. The time to obtain
				  and return these records to the subject shall not exceed 120 days from the date
				  of notification of the need for expungement;
(4) the division shall thereafter obtain all
				  documents related to the subject's DNA databank record. After insuring that all
				  documents, and all copies thereof, have been obtained, these records shall be
				  catalogued and any DNA sample(s) obtained in connection with the subject
				  conviction shall be destroyed. These documents, if applicable, shall be
				  forwarded to the subject of the expungement using return receipt requested
				  mail;
(5) the catalogue of the
				  documents returned to the subject or the subject's representative shall be
				  maintained, with documentation of notification of the need for expungement and
				  all related correspondence between the division and the subject, in a file at
				  the division. After completion of all activities by the division related to
				  this expungement, this file shall be sealed and maintained by the division for
				  a period of three years and shall not be opened except pursuant to an order of
				  a court of competent jurisdiction; and
(6) at the end of this three-year period, the
				  sealed file shall be disposed in accordance with the requirements of the State
				  Archives and Records Administration (SARA) procedures.