§ 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.