N.Y. Executive Law § 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.