N.Y. Executive Law § 838: Identification of unknown dead and missing persons

§ 838. Identification of unknown dead and missing persons. 1. Every

county medical examiner and coroner shall promptly furnish the division

and the National Missing and Unidentified Persons System created by the

Office of Justice Program's National Institute of Justice, with copies

of fingerprints on standardized eight inch by eight inch fingerprint

cards or the equivalent digital image, personal descriptions and other

identifying data, including date and place of death, of all deceased

persons whose deaths are in a classification requiring inquiry by the

medical examiner or coroner where the deceased is not identified or the

medical examiner or coroner is not satisfied with the decedent's

identification. The division shall promptly make available personal

descriptions and other identifying data, including date and place of

death, of such deceased persons to all law enforcement agencies in the

state, and upon request, to law enforcement agencies outside of the

state.

2. In any case where it is not physically possible to furnish prints

of the ten fingers of the deceased, prints or partial prints of any

fingers with other identifying data shall be forwarded by the county

medical examiner or coroner to the division.

3. In addition to the foregoing provisions of this section, the county

medical examiner or coroner shall cause a dentist authorized to practice

pursuant to article one hundred thirty-three of the education law or a

dental student in a registered school of dentistry in this state to

carry out a dental examination of the deceased. The medical examiner or

coroner shall forward the dental examination records to the division on

a form supplied by the division for that purpose.

4. The division shall compare the fingerprints received from the

county medical examiners or coroners to fingerprints on file with the

division for purposes of attempting to determine the identity of the

deceased. Other descriptive data supplied with the fingerprints shall

also be compared to records maintained by the division concerning

missing persons. The division shall submit the results of the

comparisons to the appropriate medical examiner or coroner and if a

tentative or positive identification is made, to the law enforcement

authority which submitted the report of the missing person.

5. (a) (i) When any person makes a report of a missing person to a law

enforcement authority, the authority shall request a member of the

family or next of kin of the missing person to authorize the release to

the division of the dental records of the person reported missing. The

release shall be on a form supplied by the division. If the person

reported missing is still missing thirty days after the report is made,

the law enforcement authority shall deliver the release to the dentist

or dentists of the missing person, and request the dentist or dentists

to deliver such records, including dental x-rays, to the division within

ten days. The form of such request shall also include means by which the

law enforcement authority shall be notified of the delivery of such

records.

(ii) When the person reported missing has not been found within thirty

days and no family or next of kin exists or can be located, the law

enforcement authority may execute a written declaration, stating that an

active investigation seeking the location of the missing person is being

conducted, and that the dental records are necessary for the exclusive

purpose of furthering the investigation. Such written declaration,

signed by a peace officer, is sufficient authority for the dentist or

dentists to release the missing person's dental records, including

dental x-rays, to the division.

(b) Upon receipt of a properly executed release and request or

declaration, the dentist or dentists shall forward the dental records,

including dental x-rays, to the division, where a file shall be

maintained concerning persons reported to it as missing and who have not

been reported to it as found. The file shall contain dental records and

such other information as the division finds to be relevant to assisting

in the location of a missing person. The law enforcement authority shall

be notified of the delivery of such records.

6. The division shall compare the dental records received from the

county medical examiners or coroners to dental records of missing

persons on file with the division. The division shall submit the results

of the comparison to the appropriate medical examiner or coroner and if

a tentative or positive identification is made, to the law enforcement

authority which submitted the report of the missing person.

7. (a) When a person previously reported missing has been found, the

superintendent of state police, sheriff, chief of police, coroner or

medical examiner, or other law enforcement authority shall erase all

records with respect to such person and/or destroy any documents which

are maintained pursuant to this section and shall report to the division

that the person has been found and that the records and documents have

been so erased or destroyed. After receiving such a report, the division

shall erase all records with respect to such person and/or destroy any

documents which are maintained pursuant to this section.

(b) Nothing in paragraph (a) of this subdivision shall be construed as

prohibiting law enforcement agencies from maintaining case files

relating to vulnerable adults, as defined in section eight hundred

thirty-seven-f-one, who were reported missing, provided, however, that

any DNA, fingerprints and/or dental records acquired in the course of

such investigation shall be erased and/or destroyed in accordance with

paragraph (a) of this subdivision after the person previously reported

missing has been found.

(c) (i) Notwithstanding the provisions of paragraph (a) of this

subdivision, if a vulnerable adult, as defined in section eight hundred

thirty-seven-f-one of this article, previously reported missing has been

found, the division shall maintain a sealed record of the case file for

a period of ten years, after which it shall be erased and/or destroyed.

The sealed record shall be unsealed if the individual to whom the record

pertains is reported missing on a subsequent occasion or if needed for

evidentiary purposes in any civil litigation against the division or its

personnel that arises from the investigation. However, in the event that

there are grounds for a criminal action arising from the investigation,

nothing in this subdivision shall be interpreted as prohibiting the

division from allowing such records to remain unsealed until such

criminal action is concluded or otherwise resolved.

(ii) The division shall establish rules and regulations relating to

the unsealing of records. Such rules and regulations shall require that,

pursuant to subparagraph (i) of this paragraph, the process of unsealing

such records shall take no longer than two hours from the time the

division receives a report that a vulnerable adult, for whom there is a

previous record, is missing.

8. The information contained in the division's missing person files

shall be made available by it to law enforcement agencies attempting to

locate missing persons.

9. Notwithstanding any other provision of law, no criminal justice

agency shall establish or maintain any policy which requires the

observance of a waiting period before accepting and investigating a

missing child report. Upon receipt of a report of a missing child,

criminal justice agencies shall make entries of such report to the

register in the manner provided by section eight hundred thirty-seven-e

of this article.

10. Notwithstanding any other provision of law, no criminal justice

agency shall establish or maintain any policy that requires the

observance of a waiting period before accepting and investigating a

report of a missing vulnerable adult as defined in section eight hundred

thirty-seven-f-one of this article. Upon receipt of a report of such

missing vulnerable adult, criminal justice agencies shall make entries

of such report in the manner provided by subdivision eleven of this

section.

11. Whenever a criminal justice agency determines that a person is a

missing vulnerable adult, as defined in section eight hundred

thirty-seven-f-one of this article, or that an unidentified living

person may be a missing vulnerable adult, such criminal justice agency

shall enter the report of such missing vulnerable adult in any database

of missing persons maintained by the division and the federal

government.