§ 995-C — State DNA identification index

§ 995-c. State DNA identification index. 1. Following the promulgation\nof a policy by the commission pursuant to subdivision nine of section\nnine hundred ninety-five-b of this article, the commissioner of criminal\njustice services is authorized to promulgate a plan for the\nestablishment of a computerized state DNA identification index within\nthe division of criminal justice services.\n 2. Following the review and approval of the plan by the DNA\nsubcommittee and the commission and the filing of such plan with the\nspeaker of the assembly and the temporary president of the senate, the\ncommissioner of criminal justice services is hereby authorized to\nestablish a computerized state DNA identification index pursuant to the\nprovisions of this article.\n 3. (a) Any designated offender subsequent to conviction and sentencing\nfor a crime specified in subdivision seven of section nine hundred\nninety-five of this article, shall be required to provide a sample\nappropriate for DNA testing to determine identification characteristics\nspecific to such person and to be included in a state DNA identification\nindex pursuant to this article.\n (b) (i) In the case of a designated offender who is sentenced to a\nterm of imprisonment, such sample shall be collected by the public\nservant to whose custody the designated offender has been committed.\n (ii) In the case of a designated offender who is sentenced to a term\nof probation, including a sentence of probation imposed in conjunction\nwith a sentence of imprisonment when a sample has not already been\ntaken, such sample shall be collected by the probation department\nsupervising the designated offender.\n (iii) In the case of a designated offender whose sentence does not\ninclude either a term of imprisonment or a term of probation, outside of\nthe city of New York, the court shall order that a court officer take a\nsample or that the designated offender report to an office of the\nsheriff of that county, and when the designated offender does so, such\nsample shall be collected by the sheriff's office. Within the city of\nNew York, the court shall order that the sample be collected by a court\nofficer.\n (iv) Nothing in this paragraph shall prohibit the collection of a DNA\nsample from a designated offender by any court official, state or local\ncorrection official or employee, probation officer, parole officer,\npolice officer, peace officer, other law enforcement official, or\ndesignated personnel of the division of criminal justice services who\nhas been notified by the division of criminal justice services that such\ndesignated offender has not provided a DNA sample. Upon notification by\nthe division of criminal justice services that a designated offender has\nnot provided a DNA sample, such court official, state or local\ncorrection official or employee, probation officer, parole officer,\npolice officer, peace officer or other law enforcement official, or\ndesignated personnel of the division of criminal justice services shall\ncollect the DNA sample.\n 4. The commissioner of the division of criminal justice services, in\nconsultation with the commission, the commissioner of health, the\ndirector of the office of probation and correctional alternatives and\nthe department of corrections and community supervision, shall\npromulgate rules and regulations governing the procedures for notifying\ndesignated offenders of the requirements of this section.\n 5. The sample shall be collected, stored and forwarded to any forensic\nDNA laboratory which has been authorized by the commission to perform\nforensic DNA testing and analysis for inclusion in the state DNA\nidentification index. Such laboratory shall promptly perform the\nrequisite testing and analysis, and forward the resulting DNA record\nonly to the state DNA identification index in accordance with the\nregulations of the division of criminal justice services. Such\nlaboratory shall perform DNA analysis only for those markers having\nvalue for law enforcement identification purposes. For the purposes of\nthis article, the term "marker" shall have the meaning generally\nascribed to it by members of the scientific community experienced in the\nuse of DNA technology.\n 6. DNA records contained in the state DNA identification index shall\nbe released only for the following purposes:\n (a) to a federal law enforcement agency, or to a state or local law\nenforcement agency or district attorney's office for law enforcement\nidentification purposes upon submission of a DNA record in connection\nwith the investigation of the commission of one or more crimes or to\nassist in the recovery or identification of specified human remains,\nincluding identification of missing persons, provided that there exists\nbetween the division and such agency a written agreement governing the\nuse and dissemination of such DNA records in accordance with the\nprovisions of this article;\n (b) for criminal defense purposes, to a defendant or his or her\nrepresentative, who shall also have access to samples and analyses\nperformed in connection with the case in which such defendant is\ncharged;\n (c) after personally identifiable information has been removed by the\ndivision, to an entity authorized by the division for the purpose of\ncreating or maintaining a population statistics database or for\nidentification research and protocol development for forensic DNA\nanalysis or quality control purposes.\n 7. Requests for DNA records must be in writing, or in a form\nprescribed by the division authorized by the requesting party, and,\nother than a request pursuant to paragraph (b) of subdivision six of\nthis section, maintained on file at the state DNA identification index\nin accordance with rules and regulations promulgated by the commissioner\nof the division of criminal justice services.\n 8. The defendant, including the representative of a defendant, in a\ncriminal action or proceeding shall have access to information in the\nstate DNA identification index relating to the number of requests\npreviously made for a comparison search and the name and identity of any\nrequesting party.\n 9. (a) Upon receipt of notification of a reversal or a vacatur of a\nconviction, or of the granting of a pardon pursuant to article two-A of\nthis chapter, of an individual whose DNA record has been stored in the\nstate DNA identification index in accordance with this article by the\ndivision of criminal justice services, the DNA record shall be expunged\nfrom the state DNA identification index, and such individual may apply\nto the court in which the judgment of conviction was originally entered\nfor an order directing the expungement of any DNA record and any\nsamples, analyses, or other documents relating to the DNA testing of\nsuch individual in connection with the investigation or prosecution of\nthe crime which resulted in the conviction that was reversed or vacated\nor for which the pardon was granted. A copy of such application shall be\nserved on the district attorney and an order directing expungement may\nbe granted if the court finds that all appeals relating to the\nconviction have been concluded; that such individual will not be\nretried, or, if a retrial has occurred, the trier of fact has rendered a\nverdict of complete acquittal, and that expungement will not adversely\naffect the investigation or prosecution of some other person or persons\nfor the crime. The division shall, by rule or regulation, prescribe\nprocedures to ensure that the DNA record in the state DNA identification\nindex, and any samples, analyses, or other documents relating to such\nrecord, whether in the possession of the division, or any law\nenforcement or police agency, or any forensic DNA laboratory, including\nany duplicates or copies thereof, at the discretion of the possessor\nthereof, are either destroyed or returned to such individual, or to the\nattorney who represented him or her at the time such reversal, vacatur\nor pardon, was granted. The commissioner shall also adopt by rule and\nregulation a procedure for the expungement in other appropriate\ncircumstances of DNA records contained in the index.\n (b) As prescribed in this paragraph, if an individual, either\nvoluntarily or pursuant to a warrant or order of a court, has provided a\nsample for DNA testing in connection with the investigation or\nprosecution of a crime and (i) no criminal action against the individual\nrelating to such crime was commenced within the period specified by\nsection 30.10 of the criminal procedure law, or (ii) a criminal action\nwas commenced against the individual relating to such crime which\nresulted in a complete acquittal, or (iii) a criminal action against the\nindividual relating to such crime resulted in a conviction that was\nsubsequently reversed or vacated, or for which the individual was\ngranted a pardon pursuant to article two-A of this chapter, such\nindividual may apply to the supreme court or the court in which the\njudgment of conviction was originally entered for an order directing the\nexpungement of any DNA record and any samples, analyses, or other\ndocuments relating to the DNA testing of such individual in connection\nwith the investigation or prosecution of such crime. A copy of such\napplication shall be served on the district attorney and an order\ndirecting expungement may be granted if the court finds that the\nindividual has satisfied the conditions of one of the subparagraphs of\nthis paragraph; that if a judgment of conviction was reversed or\nvacated, all appeals relating thereto have been concluded and the\nindividual will not be retried, or, if a retrial has occurred, the trier\nof fact has rendered a verdict of complete acquittal, and that\nexpungement will not adversely affect the investigation or prosecution\nof some other person or persons for the crime. If an order directing the\nexpungement of any DNA record and any samples, analyses or other\ndocuments relating to the DNA testing of such individual is issued, such\nrecord and any samples, analyses, or other documents shall, at the\ndiscretion of the possessor thereof, be destroyed or returned to such\nindividual or to the attorney who represented him or her in connection\nwith the application for the order of expungement.\n