Implementing the New Subject Index

On December 5, 2005, Executive Order #143 was issued, which directed the Commissioner of DCJS to work with DOCS, Parole, and DPCA to increase the number of DNA samples that could be added to the State DNA Databank within the constraints of existing law. In accordance with Executive Law §995-c, the Databank is operated pursuant to an Implementation Plan. The Implementation Plan provides the framework for the operation of the Databank and specifies the type of profiles that may be included in the Databank. The Implementation Plan and related regulations, 9 NYCRR Part 6192, previously authorized inclusion of profiles obtained from convicted offenders pursuant to Executive Law §995-c(3), profiles obtained from crime scene evidence, and profiles from missing persons or relatives of persons reported missing. DCJS is authorized pursuant to §995-c to establish and revise the Implementation Plan, subject to the review and approval of the Plan by the Commission on Forensic Science (Commission) and the DNA Subcommittee and the filing of the Plan with the State Legislature.

While offenders convicted of designated offenses, as defined in Executive Law §995(7), must, in accordance with Executive Law §995-c(3), provide a DNA sample for inclusion in the State DNA Databank, the statute does not expressly limit the State DNA Databank to convicted offender profiles, nor does it set forth what profiles should be included in the Databank or how the Databank should be set up. Rather, it is the DNA Subcommittee, Commission, and Commissioner of DCJS, through the Implementation Plan, that determine how the Databank will be established and what types of profiles will be included.

On January 3, 2006, emergency regulations were adopted to amend the Implementation Plan and related regulations to authorize establishment of a fourth index in the Databank, known as the Subject Index. These amendments were permanently adopted on March 22, 2006. The changes will allow the Databank to accept and maintain in the Subject Index DNA profiles obtained from offenders convicted of crimes whose DNA specimens were collected: (1) pursuant to a plea agreement; (2) as a condition for participation in a DOCS’ temporary release, comprehensive alcohol and substance abuse treatment (“CASAT”), or shock incarceration program; (3) as a condition of release on parole, post-release supervision, presumptive release, or conditional release on a definite or indeterminate sentence; or (4) as a condition of probation or interim probation supervision.

Requiring DNA samples for participating in DOCS’ temporary release programs will screen out otherwise eligible inmates who may be connected to an unsolved murder, rape, or other serious crime. Furthermore, if an inmate were to commit a new crime after being released into the community, the DNA sample on file will help law enforcement to expeditiously identify and remove the offender from the community. Likewise, an offender under parole or probation supervision who has a DNA sample on file will be more likely to abide by the terms and conditions of release, and less likely to engage in criminal behavior. The DNA sample will also allow law enforcement to expeditiously identify and return to custody a parolee or probationer who has returned to his or her criminal ways.