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This entry was published on 2016-09-23
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SECTION 838
Identification of unknown dead and missing persons
Executive (EXC) CHAPTER 18, ARTICLE 35
§ 838. Identification of unknown dead and missing persons. 1. Every
county medical examiner and coroner shall promptly furnish the division
and the National Missing and Unidentified Persons System created by the
Office of Justice Program's National Institute of Justice, with copies
of fingerprints on standardized eight inch by eight inch fingerprint
cards or the equivalent digital image, personal descriptions and other
identifying data, including date and place of death, of all deceased
persons whose deaths are in a classification requiring inquiry by the
medical examiner or coroner where the deceased is not identified or the
medical examiner or coroner is not satisfied with the decedent's
identification. The division shall promptly make available personal
descriptions and other identifying data, including date and place of
death, of such deceased persons to all law enforcement agencies in the
state, and upon request, to law enforcement agencies outside of the
state.

2. In any case where it is not physically possible to furnish prints
of the ten fingers of the deceased, prints or partial prints of any
fingers with other identifying data shall be forwarded by the county
medical examiner or coroner to the division.

3. In addition to the foregoing provisions of this section, the county
medical examiner or coroner shall cause a dentist authorized to practice
pursuant to article one hundred thirty-three of the education law or a
dental student in a registered school of dentistry in this state to
carry out a dental examination of the deceased. The medical examiner or
coroner shall forward the dental examination records to the division on
a form supplied by the division for that purpose.

4. The division shall compare the fingerprints received from the
county medical examiners or coroners to fingerprints on file with the
division for purposes of attempting to determine the identity of the
deceased. Other descriptive data supplied with the fingerprints shall
also be compared to records maintained by the division concerning
missing persons. The division shall submit the results of the
comparisons to the appropriate medical examiner or coroner and if a
tentative or positive identification is made, to the law enforcement
authority which submitted the report of the missing person.

5. (a) (i) When any person makes a report of a missing person to a law
enforcement authority, the authority shall request a member of the
family or next of kin of the missing person to authorize the release to
the division of the dental records of the person reported missing. The
release shall be on a form supplied by the division. If the person
reported missing is still missing thirty days after the report is made,
the law enforcement authority shall deliver the release to the dentist
or dentists of the missing person, and request the dentist or dentists
to deliver such records, including dental x-rays, to the division within
ten days. The form of such request shall also include means by which the
law enforcement authority shall be notified of the delivery of such
records.

(ii) When the person reported missing has not been found within thirty
days and no family or next of kin exists or can be located, the law
enforcement authority may execute a written declaration, stating that an
active investigation seeking the location of the missing person is being
conducted, and that the dental records are necessary for the exclusive
purpose of furthering the investigation. Such written declaration,
signed by a peace officer, is sufficient authority for the dentist or
dentists to release the missing person's dental records, including
dental x-rays, to the division.

(b) Upon receipt of a properly executed release and request or
declaration, the dentist or dentists shall forward the dental records,
including dental x-rays, to the division, where a file shall be
maintained concerning persons reported to it as missing and who have not
been reported to it as found. The file shall contain dental records and
such other information as the division finds to be relevant to assisting
in the location of a missing person. The law enforcement authority shall
be notified of the delivery of such records.

6. The division shall compare the dental records received from the
county medical examiners or coroners to dental records of missing
persons on file with the division. The division shall submit the results
of the comparison to the appropriate medical examiner or coroner and if
a tentative or positive identification is made, to the law enforcement
authority which submitted the report of the missing person.

7. (a) When a person previously reported missing has been found, the
superintendent of state police, sheriff, chief of police, coroner or
medical examiner, or other law enforcement authority shall erase all
records with respect to such person and/or destroy any documents which
are maintained pursuant to this section and shall report to the division
that the person has been found and that the records and documents have
been so erased or destroyed. After receiving such a report, the division
shall erase all records with respect to such person and/or destroy any
documents which are maintained pursuant to this section.

(b) Nothing in paragraph (a) of this subdivision shall be construed as
prohibiting law enforcement agencies from maintaining case files
relating to vulnerable adults, as defined in section eight hundred
thirty-seven-f-one, who were reported missing, provided, however, that
any DNA, fingerprints and/or dental records acquired in the course of
such investigation shall be erased and/or destroyed in accordance with
paragraph (a) of this subdivision after the person previously reported
missing has been found.

(c) (i) Notwithstanding the provisions of paragraph (a) of this
subdivision, if a vulnerable adult, as defined in section eight hundred
thirty-seven-f-one of this article, previously reported missing has been
found, the division shall maintain a sealed record of the case file for
a period of ten years, after which it shall be erased and/or destroyed.
The sealed record shall be unsealed if the individual to whom the record
pertains is reported missing on a subsequent occasion or if needed for
evidentiary purposes in any civil litigation against the division or its
personnel that arises from the investigation. However, in the event that
there are grounds for a criminal action arising from the investigation,
nothing in this subdivision shall be interpreted as prohibiting the
division from allowing such records to remain unsealed until such
criminal action is concluded or otherwise resolved.

(ii) The division shall establish rules and regulations relating to
the unsealing of records. Such rules and regulations shall require that,
pursuant to subparagraph (i) of this paragraph, the process of unsealing
such records shall take no longer than two hours from the time the
division receives a report that a vulnerable adult, for whom there is a
previous record, is missing.

8. The information contained in the division's missing person files
shall be made available by it to law enforcement agencies attempting to
locate missing persons.

9. Notwithstanding any other provision of law, no criminal justice
agency shall establish or maintain any policy which requires the
observance of a waiting period before accepting and investigating a
missing child report. Upon receipt of a report of a missing child,
criminal justice agencies shall make entries of such report to the
register in the manner provided by section eight hundred thirty-seven-e
of this article.

10. Notwithstanding any other provision of law, no criminal justice
agency shall establish or maintain any policy that requires the
observance of a waiting period before accepting and investigating a
report of a missing vulnerable adult as defined in section eight hundred
thirty-seven-f-one of this article. Upon receipt of a report of such
missing vulnerable adult, criminal justice agencies shall make entries
of such report in the manner provided by subdivision eleven of this
section.

11. Whenever a criminal justice agency determines that a person is a
missing vulnerable adult, as defined in section eight hundred
thirty-seven-f-one of this article, or that an unidentified living
person may be a missing vulnerable adult, such criminal justice agency
shall enter the report of such missing vulnerable adult in any database
of missing persons maintained by the division and the federal
government.