Current through Register Vol. 46, No. 12, March 20, 2024
(a) DNA
databank shall be comprised of data generated from DNA testing methods approved
in the NDIS Operating Procedures. Loci required for the upload
to NDIS of authorized DNA profiles shall be in accordance with the NDIS
Operating Procedures.
(b)
Forensic DNA profiles to be maintained in the DNA databank shall be comprised
of information for at least the minimum required STR loci or other combinations
of loci using alternative technologies approved for use in the NDIS
Operating Procedures. This requirement for a minimum number of loci
applies only to those forensic DNA profiles which an authorized laboratory
desires to have maintained in the forensic index of the DNA databank.
(c) For purposes of searches of the DNA
databank, the minimum loci required shall be provided by a laboratory
requesting a forensic DNA profile search against the DNA databank. Generally,
all available loci associated with a forensic DNA profile shall be searched in
the DNA databank. Notwithstanding this requirement, the laboratory may, at its
discretion, request that a search be performed using fewer loci if there is an
investigative need and sufficient scientific reasons which support using fewer
than the required loci in a particular case. The scientific reasons shall
include, but not be limited to, the apparent presence of mixtures, sample
degradation or limited sample availability. The basis of the scientific
reason(s) must be summarized in the search request whenever fewer than the
required loci are provided with a search request.
(d) DNA profiles that may be added to the DNA
databank by forensic DNA laboratories include forensic DNA profiles, convicted
offender DNA profiles, subject DNA profiles, DNA profiles of missing persons,
relatives of individuals reported missing, unidentified humans or human
remains.
(e) In the event of a
potential indirect association, laboratories should use Y-STR and/or mt DNA
testing to help determine if the indirect association should be pursued
further.
(f) Pursuant to NDIS, the
division may release the identity of an offender whose DNA profile has been
indirectly associated through a national CODIS search with a DNA profile in
another state's forensic index. The State CODIS laboratory will review requests
from NDIS participating laboratories and notify the division regarding the
partial match request. The State CODIS laboratory will notify the NDIS
participating laboratory and NDIS custodian if a name is released. Testing of
additional loci of the offender sample may be required and may include Y-STR
and/or mt DNA analysis.
(g) The
division may release the name of an offender whose DNA profile has been
indirectly associated through a State CODIS search with a forensic DNA profile
when it has been determined that the information may lead to the identification
of an individual related to the offender. For associations obtained from a
State CODIS search, the following conditions must be met:
(1) The laboratory submitting the forensic
DNA profile to the CODIS program shall complete an application to the division
requesting the name of the offender and, as part of the application, confirm
that:
(i) an LDIS search has been performed
using the profile in the forensic index;
(ii) the forensic DNA profile derives from a
single source and contains at least 10 of the CODIS core loci;
(iii) the Expected Match Ratio (EMR) and/or
the Expected Kinship Ratio (EKR) for the four major ethnic groups in the FBI
allele frequency databases (or equivalent likelihood ratio approved by the
StateDNA Subcommittee) was calculated and at least one of the fourdatabase
values for EMR or EKR is greater than or equal to 1.0 and all theothers are
greater than or equal to 0.1 (or an equivalent pre-determinedstatistical
measure approved by the DNA Subcommittee). If available andappropriate,
additional DNA analysis (e.g., Y-STR, mitochondrial) shouldbe
performed;
(iv) the submitting
agency and the appropriate prosecutor have committed to pursue further
investigation of the case if the name is released. Such entities also agree to
provide follow-up information to the division regarding the outcome of the
case, which the division will provide to the DNA Subcommittee at six month
intervals; and
(v) the submitting
laboratory has confirmed that release of the name will be followed by a
notification to the investigating agency.
(2) The notification from the submitting
laboratory to the investigating agency shall indicate that:
(i) the association is indirect;
(ii) the information provided is an
investigative lead;
(iii) the
available data suggests that the source of the forensic DNA profile is
potentially a relative of the convicted offender but is not conclusive evidence
of the same.
(3) A
partial match request from a local CODIS laboratory that satisfies all criteria
described above will be submitted to the State CODIS laboratory for
verification. Upon receipt of such verification, the division will release the
name of the offender to the local CODIS laboratory. If the criteria are not
satisfied, the State CODIS laboratory will notify the division and the
convicted offender's name will not be released.
(h) When there is not a match or a partial
match to a sample in the DNA data bank, a familial search may be performed. To
perform a familial search, the following case and sample requirements must be
met:
(1) The forensic DNA profile or
unidentified human remains DNA profile must be associated with:
(i) a Penal Law Article 125 felony offense,
other than one defined in Penal Law sections
125.40 or
125.45;
or
(ii) a Penal Law Article 130
offense that is defined as a violent felony offense pursuant to Penal Law
section
70.02; or
(iii) a class A felony offense defined in
Article 130, 135, 150 or 490 of the Penal Law; or
(iv) a crime presenting a significant public
safety threat.
(2) The
investigating agency and appropriate prosecutor must certify, in the form and
manner required by the division, that:
(i)
reasonable investigative efforts have been taken in the case; or
(ii) exigent circumstances exist warranting a
familial search. Nothing in this section shall preclude an investigating agency
and the appropriate prosecutor from requesting a familial search of an
unidentified profile meeting the criteria set forth in the policy which is
associated with a case in which a defendant was previously convicted.
(3) The forensic DNA profile must:
(i) be a single source, or a fully deduced
profile originating from a mixture;
(ii) appear to have a direct connection with
the putative perpetrator of the crime;
(iii) reside in SDIS; and
(iv) have been searched against DNA profiles
contained in the State DNA Databank.
(4) The unidentified human remains DNA
profile must:
(i) be a single source
profile;
(ii) have been developed
from a deceased individual whose identity is unknown and whose death is
suspected to involve the commission of a crime enumerated in paragraph (h) (1)
of this section;
(iii) reside in
SDIS; and,
(iv) have been searched
against DNA profiles contained in the State DNA Databank
(i) Any request for a
familial DNA search must be made jointly by the appropriate investigating
agency and the appropriate prosecutor (hereinafter "the requestors") through an
application to the division in the form and manner specified by the division.
(1) Upon receipt of an application:
(i) The division will confirm that the
familial search requests meets the case requirements in paragraph (h)(1) of
this section; and
(ii) The state
CODIS administrator will confirm that the sample requirements in paragraphs
(h)(3)(i) and (ii) or (h)(4)(i) and (ii) of this section have been verified by
the forensic laboratory that generated the forensic DNA profile or unidentified
human remains DNA profile; and,
(iii) The state CODIS administrator will
confirm that the sample requirements in paragraphs (h)(3)(iii) and (iv) or
(h)(4)(iii) and (iv)of this section have been met.
(2) The commissioner shall review all
completed applications.
(i) If, upon review
and evaluation of such application, the commissioner determines that any of the
case and/or any of the sample requirements are not satisfied, the division
shall notify the requestors, in writing, that a familial search cannot be
performed and identify the requirements not satisfied.
(ii) If, upon review and evaluation of such
application, the commissioner determines that all of the case and sample
requirements have been satisfied, the requestors will be notified in writing
that their familial search request has been approved and entered into the queue
for search processing.
(j) Upon receipt of an approved familial
search application from the division, the New York State Police crime
laboratory will:
(1) use validated software,
which has been approved by the DNA subcommittee and the commission, to perform
a familial search of the DNA databank and generate a candidate list;
(2) evaluate the candidate list based on
established kinship threshold value(s) approved by the DNA subcommittee and
commission;
(3) perform Y-STR
testing on the candidate sample(s) if the forensic DNA profile or unidentified
human remains DNA profile is from a male individual and sufficient forensic DNA
sample exists for Y-STR testing; and,
(4) if appropriate, ensure additional testing
is performed on the candidate sample, provided there is sufficient forensic DNA
sample or unidentified human remains DNA profile available for
testing.
(k) In order
for the results of a familial DNA search to be released, the following
conditions must be met:
(1) If the candidate
profile(s) exceed the established kinship thresh-old value(s), and are not
excluded by additional testing performed, the name(s) of the offender(s) in the
DNA databank will be released to the requestors. The familial DNA search
results shall be provided in writing and shall include the following
statements:
(i) The information provided is
for investigatory law enforcement purposes only;
(ii) The forensic DNA profile or unidentified
human remains DNA profile could not have come from the named offender in the
DNA databank;
(iii) The information
provided is not a definitive statement of a familial (i.e., biological)
relationship; and,
(iv) The
information provided shall be treated only as an investigative lead.
(2) The requestors must
satisfactorily complete, and demonstrate an under standing of, a mandatory,
in-person, or at the discretion of the commissioner, video conference training.
At a minimum, the training shall address:
(i)
how a familial search is conducted, including the limitations of the
method;
(ii) guidance on how to best
evaluate leads from a familial search in order to protect unknown family
relationships (donor parents/adoptions, previously unknown
relatives);
(iii) the
confidentiality requirements associated with the DNA Data bank records, and any
samples, analysis or other related documents (see Executive Law sections
995-c; 995-d; 995-f);
(iv) the requirement to withdraw a request if
a suspect or the human remains are identified through other means before the
familial search is completed; and,
(v) the requirement to provide follow-up
information to the division regarding the case at intervals determined by the
division
(3) If no
candidate profile(s) on the candidate list exceed the established kinship
threshold value(s), no name will be released and the requestors will be
notified as such, in writing.
(4)
The forensic DNA profile or unidentified human remains DNA profile can be
researched against the DNA databank upon renewal of the request. In the absence
of exigent circumstances, such requests may be made every six months from the
notification that there were no candidates identified.