Actions

Text

STATE OF NEW YORK
________________________________________________________________________

2825

2011-2012 Regular Sessions

IN ASSEMBLY

January 20, 2011
___________

Introduced  by  M. of A. CALHOUN, KOLB -- Multi-Sponsored by -- M. of A.
  CONTE, CROUCH, FINCH, TEDISCO -- read once and referred to the Commit-
  tee on Codes

AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
  relation to authorizing court ordered blood testing of violent felons

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The criminal procedure law is amended by adding a new arti-
cle 165 to read as follows:
               ARTICLE 165--COURT AUTHORIZED BLOOD TESTING
SECTION 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF  CERTAIN  OFFEN-
                 DERS.
S 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF CERTAIN OFFENDERS.
  1.  UPON  MOTION  OF THE PROSECUTOR WITH THE CONSENT OF THE VICTIM, OR
UPON MOTION OF THE VICTIM,  A  SUPERIOR  COURT  MAY  ORDER  A  DEFENDANT
CHARGED WITH A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE
PENAL  LAW,  TO UNDERGO A BLOOD TEST FOR ANY TRANSMISSIBLE DISEASE WHERE
THE VICTIM HAS ALLEGEDLY BEEN EXPOSED TO BLOOD OR OTHER BODY  FLUIDS  OF
THE  DEFENDANT,  AND WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT SUCH
EXPOSURE OCCURRED DURING THE COMMISSION OF A VIOLENT FELONY  OFFENSE  OR
AS A PROXIMATE RESULT THERETO.
  2.  A  TRANSMISSIBLE DISEASE SHALL INCLUDE: THE HUMAN IMMUNODEFICIENCY
VIRUS (HIV) OR  ANY  OF  ITS  DERIVATIVES;  ANY  SEXUALLY  TRANSMISSIBLE
DISEASE INCLUDING BUT NOT LIMITED TO SYPHILIS, GONORRHEA, LYMPHOGRANULO-
MA  VENEREUM, HERPES AND GENITAL WARTS; HEPATITIS AND ANY OF ITS DERIVA-
TIVES; AND ANY OTHER DISEASE WHICH THE COURT FINDS THE VICTIM COULD HAVE
A REASONABLE EXPECTATION OF CONTRACTING FROM THE ALLEGED OFFENDER  AS  A
RESULT OF THE ALLEGED EXPOSURE.
  3.    UPON  RECEIVING  AN APPLICATION FOR AN ORDER AUTHORIZING A BLOOD
TEST PURSUANT TO THIS SECTION, THE COURT SHALL ENTER AN ORDER  DIRECTING
THAT  ALL PLEADINGS, PAPERS, AFFIDAVITS, JUDGMENTS, ORDERS OF THE COURT,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02853-01-1
A. 2825                             2

BRIEFS AND MEMORANDA OF LAW WHICH ARE PART OF  THE  APPLICATION  OR  THE
DECISION THEREON, BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON, EXCEPT
TO  THE  EXTENT  NECESSARY TO CONDUCT ANY PROCEEDINGS IN CONNECTION WITH
THE DETERMINATION OF WHETHER TO GRANT OR DENY THE APPLICATION, INCLUDING
ANY  APPEAL.  SUCH  AN  ORDER  SHALL  FURTHER DIRECT THAT ALL SUBSEQUENT
PROCEEDINGS IN CONNECTION WITH THE APPLICATION  SHALL  BE  CONDUCTED  IN
CAMERA, AND, WHERE APPROPRIATE TO PREVENT THE UNAUTHORIZED DISCLOSURE OF
CONFIDENTIAL BLOOD TEST RELATED INFORMATION, THAT ANY PLEADINGS, PAPERS,
AFFIDAVITS,  JUDGMENTS, ORDERS OF THE COURT, BRIEFS AND MEMORANDA OF LAW
WHICH ARE PART OF THE APPLICATION OR THE DECISION THEREON, NOT STATE THE
NAME OF THE DEFENDANT WHO IS THE PROPOSED SUBJECT OF THE BLOOD TEST.
  4. IN ASSESSING THE APPLICATION THE COURT SHALL PROVIDE WRITTEN  FIND-
INGS  OF FACT, INCLUDING SCIENTIFIC OR MEDICAL FINDINGS, CITING SPECIFIC
EVIDENCE IN THE RECORD WHICH SUPPORTS EACH FINDING, AND SHALL WEIGH  THE
APPLICANT'S  NEED  FOR THE INFORMATION TO BE OBTAINED FROM COURT ORDERED
BLOOD TESTING AGAINST THE POTENTIAL HARM  TO  THE  DEFENDANT  WHICH  MAY
RESULT FROM THE COURT ORDERED BLOOD TESTING.
  5.  AT ANY TIME PRIOR TO, OR DURING THE PENDENCY OF AN APPLICATION FOR
A BLOOD TEST UNDER THIS SECTION, THE DEFENDANT MAY CONSENT TO SUBMIT  TO
A  VOLUNTARY  BLOOD TEST, TO SCREEN FOR THE DISEASES AS REQUESTED BY THE
VICTIM. THE RESULTS OF SUCH VOLUNTARY BLOOD TESTS SHALL BE  PROVIDED  TO
THE  VICTIM,  THE  COURT, AND ALL PARTIES IN THE CRIMINAL PROCEEDING AND
SHALL THEREAFTER BE PROVIDED WITH THE SAME DEGREE OF CONFIDENTIALITY  AS
IF  THE BLOOD TEST HAD BEEN ORDERED BY THE COURT. UPON THE SUBMISSION OF
THE ALLEGED VIOLENT FELONY OFFENDER  TO  A  VOLUNTARY  BLOOD  TEST,  ANY
APPLICATION  FOR  A COURT ORDERED TEST SHALL BE DEEMED WITHDRAWN. UNLESS
THE VICTIM OR ANOTHER THIRD PARTY AGREES IN WRITING TO PAY FOR THE  COST
OF  A  VOLUNTARY  BLOOD  TEST,  ALL  SUCH COSTS SHALL BE PAID FOR BY THE
DEFENDANT.
  6. THE COURT, IN GRANTING AN APPLICATION FOR AN  ORDER  AUTHORIZING  A
BLOOD  TEST  PURSUANT  TO THIS SECTION, SHALL SPECIFY THE DISEASES TO BE
SCREENED FOR BY SUCH TEST, AND SHALL ORDER SUCH REASONABLE  MEASURES  AS
IT  DEEMS  NECESSARY TO PREVENT THE UNAUTHORIZED DISCLOSURE OF CONFIDEN-
TIAL BLOOD TEST RELATED INFORMATION. THE COST OF A COURT  ORDERED  BLOOD
TEST SHALL BE PAID FROM THE CRIMINAL JUSTICE IMPROVEMENT ACCOUNT, ESTAB-
LISHED PURSUANT TO SECTION NINETY-SEVEN-BB OF THE STATE FINANCE LAW, AND
IN  THE  EVENT  OF  A  CONVICTION,  THE COST OF SUCH BLOOD TEST SHALL BE
DEEMED A MANDATORY SURCHARGE ASSESSED AGAINST THE DEFENDANT PURSUANT  TO
SECTION 60.35 OF THE PENAL LAW.
  7. NO INFORMATION OBTAINED OR DISCOVERED DURING A HEARING ON AN APPLI-
CATION  PURSUANT  TO THIS SECTION OR AS A RESULT OF A COURT ORDER ISSUED
PURSUANT TO THIS SECTION  RELATING  TO  THE  VIOLENT  FELONY  OFFENDER'S
SUBMISSION  TO  A BLOOD TEST MAY BE USED AS EVIDENCE IN THE TRIAL OF THE
ALLEGED VIOLENT FELONY OFFENDER.
  S 2. Paragraph (a) of subdivision 1 of section 60.35 of the penal law,
is amended by adding a new subparagraph (vi) to read as follows:
  (VI) A PERSON CONVICTED OF A VIOLENT FELONY  OFFENSE,  AS  DEFINED  IN
SECTION  70.02  OF  THIS  CHAPTER, OR WHO IS CHARGED WITH SUCH A VIOLENT
FELONY OFFENSE AND WHO ACCEPTS A PLEA BARGAIN, SHALL PAY  THE  COSTS  OF
ANY  BLOOD  TEST  AUTHORIZED  PURSUANT TO SECTION 165.00 OF THE CRIMINAL
PROCEDURE LAW.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.