New York DNA testing law requires a sample from almost everyone convicted of a felony or a Penal Law misdemeanor, stores those profiles in a confidential state database, gives convicted people a path to post-conviction testing and, in some cases, expungement, and makes unauthorized disclosure of a DNA record a Class E felony punishable by up to four years in prison. The rules reach further than most people expect, and the rights attached to them are easier to use when you know they exist.
Who Has to Give a DNA Sample
Executive Law 995-c requires a DNA sample from anyone convicted of a felony under any chapter of New York law, and from anyone convicted of virtually any misdemeanor defined in the Penal Law.1New York State Senate. New York Executive Law 995-C – State DNA Identification Index The statute carves out only two narrow exceptions: a conviction for prostitution under Penal Law 230.00, and cases where a court determines the person’s involvement in the offense resulted from being a victim of sex trafficking.2New York State Senate. New York Executive Law 995 – Definitions
That net is wide. A felony assault conviction triggers the requirement. So does a misdemeanor theft or criminal mischief plea in most cases. The sentence you receive determines who takes the swab. Prison time means the facility collects the sample. Probation means your probation department handles it. If your sentence includes neither, the court orders a court officer or the county sheriff’s office to collect it.1New York State Senate. New York Executive Law 995-C – State DNA Identification Index If someone slips through, the Division of Criminal Justice Services can flag the gap, and any authorized law enforcement or corrections official who later encounters that person can collect the sample at that point.
How Samples Are Collected
Collection in New York is almost always done with a buccal swab: a cotton swab run along the inside of the cheek. It takes seconds, requires no needle, and produces enough genetic material for a reliable profile. The method has largely replaced blood draws for database purposes.
The Fourth Amendment still applies. Lawful collection has to rest on a qualifying conviction, a valid court order, or voluntary consent. The U.S. Supreme Court held in Maryland v. King that a cheek swab from someone arrested for a serious offense is a reasonable booking procedure, comparable to fingerprinting.3Justia. Maryland v. King, 569 U.S. 435 (2013) In New York, the main statutory trigger is still conviction rather than arrest, though court-ordered collection during an investigation is also possible.
Who Can See Your DNA Record
New York treats DNA records as deeply confidential. Executive Law 995-d makes all records, findings, reports, and results of DNA testing confidential, and prohibits disclosure without the tested person’s consent.4New York State Senate. New York Executive Law 995-D – Confidentiality The statute explicitly bars disclosure to insurance companies, employers, health providers, employment screening companies, and private investigators. DNA records also cannot be compelled through a subpoena, warrant, or court order directed at a third party.
There are two exceptions. The tested person can authorize disclosure, including through a subpoena issued on their own behalf or in a civil case where they have put their DNA record at issue. And DNA testing results (other than the database record itself) can be disclosed in a criminal proceeding to the court, prosecution, and defense through a written request on a form prescribed by the DCJS Commissioner.4New York State Senate. New York Executive Law 995-D – Confidentiality Outside those channels, the default is locked down.
Familial Searching
Familial searching lets investigators look for partial matches in the state database to identify a close biological relative of an unknown crime-scene profile. New York permits it only in narrow circumstances. The underlying crime must involve a homicide, a violent sexual offense, a Class A felony under the arson, kidnapping, or terrorism statutes, or a crime presenting a significant public safety threat.5New York State Division of Criminal Justice Services. 9 NYCRR 6192.3 – Forensic DNA Methodology The head of the investigating agency and the District Attorney with jurisdiction must jointly submit the request, which goes to the DCJS Commissioner for review and approval rather than to a judge.6New York State Division of Criminal Justice Services. Familial Search Process Overview The requesting agencies also have to certify either that reasonable investigative efforts have already been taken or that exigent circumstances exist.
Penalties for Misusing DNA Data
Misuse is not treated as a minor infraction. Under Executive Law 995-f, intentionally disclosing a DNA record to an unauthorized person, using DNA records for unauthorized purposes, or knowingly tampering with a sample or its collection container is a Class E felony.7New York State Senate. New York Executive Law 995-F – Penalties A Class E felony in New York carries a maximum prison sentence of four years.8New York State Senate. New York Penal Law 70.00 – Sentence of Imprisonment for Felony Courts can also impose a fine of up to $5,000, or double the defendant’s gain from the offense, whichever is higher.9New York State Senate. New York Penal Law 80.00 – Fine for Felony
Laboratories and law enforcement agencies that violate DNA handling rules also risk losing their accreditation from the Commission on Forensic Science. For a forensic lab, that effectively ends its ability to contribute to criminal cases statewide.
Post-Conviction DNA Testing
Criminal Procedure Law 440.30 lets a convicted person petition the court to order forensic DNA testing on evidence from their case. The court must grant the motion if DNA evidence was secured in connection with the trial and there is a reasonable probability that a DNA test result, had it been available at trial, would have produced a more favorable verdict.10New York State Senate. New York Criminal Procedure Law 440.30 – Motion to Vacate Judgment
People who pleaded guilty can also seek testing, but the standard is steeper. The court will grant the motion only if there is a substantial probability that the DNA results would have established the person’s actual innocence. The court also weighs whether the defendant had the chance to request testing before pleading and unjustifiably failed to do so.10New York State Senate. New York Criminal Procedure Law 440.30 – Motion to Vacate Judgment There is a five-year filing deadline from the date of conviction for guilty-plea cases, extendable if the defendant shows extraordinary circumstances prevented timely filing, or that the facts supporting the motion were previously unknown and could not have been discovered through due diligence.
A favorable test result can then anchor a broader motion to vacate the conviction. This provision has driven multiple exonerations in the state.
Removing Your DNA From the State Database
If your conviction is reversed, vacated, or you receive a pardon, your profile has to come out of the state database. DCJS removes the profile once it is notified of the reversal or pardon. You then apply to the court where the original conviction was entered for an order directing the destruction of all related samples, analyses, and documents, including any copies held by law enforcement or forensic labs.1New York State Senate. New York Executive Law 995-C – State DNA Identification Index
The court will grant expungement if all appeals are concluded, the person will not be retried (or was fully acquitted on retrial), and expungement will not adversely affect the investigation or prosecution of someone else for the same crime.1New York State Senate. New York Executive Law 995-C – State DNA Identification Index
Expungement is also available if you gave a DNA sample during an investigation, whether voluntarily or under a court order, and no charges were filed within the statute of limitations, or the charges ended in a complete acquittal. In those situations, you can apply to the Supreme Court for an expungement order covering all DNA records and samples tied to that investigation.1New York State Senate. New York Executive Law 995-C – State DNA Identification Index Many people who were investigated but never convicted do not know they have this right.
Challenging DNA Evidence in a Criminal Case
The science behind DNA profiling is well-established and rarely overturned. Cases fall apart on handling, not on the underlying method.
The most common challenge targets collection itself. If a sample was obtained without a valid warrant, court order, qualifying conviction, or consent, defense counsel can move to suppress it as the product of an unreasonable search. Chain-of-custody challenges are equally potent. Defense teams scrutinize every transfer point: who collected the sample, how it was stored, whether it was packaged separately from other evidence, how it reached the lab, and who handled it there. A 2025 forensic study found that DNA transferred between items stored together in the same evidence package in 39% of cases tested, sometimes changing the source attribution of the profile entirely.11National Center for Biotechnology Information. DNA Transfer Between Items Within an Evidence Package That research gives contamination arguments concrete scientific backing.
Secondary Transfer
Your DNA can end up on an object you never touched if someone who did touch it had your DNA on their hands, picked up through a handshake, a shared drink, or any casual contact. A defendant whose DNA is found at a crime scene may argue they were never there and that their genetic material arrived through an innocent intermediate contact. The defense is strongest when the DNA quantity is low and no other physical evidence places the defendant at the scene.
Who Has to Testify About the Test
The Court of Appeals held in People v. John that the prosecution cannot simply introduce DNA lab reports through a supervisor or reviewer who did not personally conduct, witness, or supervise the testing. The Sixth Amendment’s Confrontation Clause requires someone with firsthand knowledge of the analysis to be available for cross-examination.12Justia. People v. John, 27 N.Y.3d 294 (2016) If the original analyst has left the lab, retired, or relocated, the prosecution has a real problem. Defense attorneys who raise the issue early in pretrial proceedings can sometimes force exclusion of the report entirely.
DNA Testing in Family Court
DNA testing in New York is not limited to criminal cases. Family courts routinely order genetic testing in paternity disputes, which directly affect child support, custody, and inheritance. Under federal guidelines governing child support programs, each party in a contested paternity case must submit to genetic testing at the request of either party or the child support agency. If the state orders the test, the state pays for it. A party who disputes the initial result can pay for a second test, and the state must arrange it.
Court-admissible paternity tests typically cost between $200 and $1,500, depending on the provider, how many people are tested, and whether supervised sample collection is required. Supervised collection, where a neutral third party verifies each person’s identity and oversees the swabbing, is what separates a legally admissible result from the at-home kits sold online. Without supervised collection and a documented chain of custody, results generally will not hold up in court.
Consumer DNA Kits and the Privacy Gap
The confidentiality rules in Executive Law 995-d apply to the state’s forensic database, not to data held by private companies like 23andMe or AncestryDNA. If you have sent in a saliva sample, state DNA privacy law does not reach it.
At the federal level, the Genetic Information Nondiscrimination Act prohibits employers from making hiring, firing, or promotion decisions based on genetic information, and bars health insurers from using genetic data to deny coverage or set premiums.13U.S. Equal Employment Opportunity Commission. Genetic Information Nondiscrimination Act of 2008 GINA restricts employers from requesting or requiring genetic information in most circumstances. The gap that catches people off guard: GINA does not cover life insurance, disability insurance, or long-term care insurance. An insurer writing a life policy can, in theory, ask about genetic test results and use them in underwriting.
The Protecting Americans’ Data from Foreign Adversaries Act of 2024 prohibits data brokers from selling or disclosing genetic information to foreign adversaries including China, Russia, North Korea, and Iran, with potential civil penalties of up to $53,088 per violation.14Federal Trade Commission. FTC Reminds Data Brokers of Their Obligations to Comply with PADFAA Beyond that, consumer genetic privacy depends mostly on each company’s own terms of service. If you want to limit your exposure, most major testing companies let you delete your data and request destruction of your stored saliva sample through your account settings. You can also revoke any consent you previously granted for research use. Those steps will not retrieve data already shared with third parties, but they cut off ongoing exposure.