S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1896

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 15, 2015
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  the  testing
  of certain criminal defendants for human immunodeficiency virus

  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
section 210.17 to read as follows:
S 210.17 REQUIREMENT OF HIV RELATED TESTING IN CERTAIN CASES.
  1.  IN  A CASE WHERE AN INDICTMENT OR A SUPERIOR COURT INFORMATION HAS
BEEN FILED WITH A SUPERIOR COURT WHICH  CHARGES  THE  DEFENDANT  WITH  A
VIOLATION OF SECTION 120.08 OR 120.11 OF THE PENAL LAW, THE COURT SHALL,
UPON A REQUEST OF THE PEACE OFFICER, POLICE OFFICER, FIREMAN OR EMERGEN-
CY  MEDICAL  SERVICES  PROFESSIONAL  INVOLVED,  ORDER THAT THE DEFENDANT
SUBMIT TO HUMAN IMMUNODEFICIENCY VIRUS (HIV)  RELATED  TESTING,  IF  THE
COURT  DETERMINES  THAT  THERE  WAS  A  SIGNIFICANT RISK OF TRANSMISSION
PURSUANT  TO  THE  PROVISIONS  SET  FORTH   IN   SECTION   ONE   HUNDRED
SEVENTY-EIGHT OF THE CIVIL SERVICE LAW. TEST RESULTS, WHICH SHALL NOT BE
DISCLOSED  TO  THE COURT, SHALL BE COMMUNICATED TO THE DEFENDANT AND THE
REQUESTING PUBLIC PROTECTION OFFICIAL NAMED IN THE ORDER.
  2. ANY REQUEST MADE BY THE PUBLIC PROTECTION OFFICIAL PURSUANT TO THIS
SECTION MUST BE IN WRITING, FILED WITH THE COURT WITHIN  SIX  MONTHS  OF
THE  DATE OF THE CRIME CHARGED, AND PROVIDED BY THE COURT TO THE DEFEND-
ANT OR HIS OR HER COUNSEL. THE REQUEST MUST  BE  FILED  WITH  THE  COURT
PRIOR  TO  OR  WITHIN FORTY-EIGHT HOURS AFTER THE INDICTMENT OR SUPERIOR
COURT INFORMATION HAS BEEN  FILED  WITH  THE  SUPERIOR  COURT;  PROVIDED
HOWEVER THAT, FOR GOOD CAUSE SHOWN, THE COURT MAY PERMIT SUCH REQUEST TO
BE FILED AT A LATER STAGE OF THE ACTION WITHIN SIX MONTHS OF THE DATE OF
THE CRIMES CHARGED.
  3.  AT  ANY  STAGE  IN THE ACTION WITHIN SIX MONTHS OF THE DATE OF THE
CRIMES CHARGED, PRIOR TO THE FINAL  DISPOSITION  OF  THE  INDICTMENT  OR
SUPERIOR  COURT  INFORMATION  AND WHILE THE DEFENDANT IS CHARGED WITH AN
OFFENSE SPECIFIED  IN  SUBDIVISION  ONE  OF  THIS  SECTION,  THE  PUBLIC
PROTECTION OFFICIAL MAY REQUEST THAT THE DEFENDANT SUBMIT TO A FOLLOW-UP

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03099-01-5

S. 1896                             2

HIV  RELATED TEST. SUCH REQUEST MUST BE IN WRITING, FILED WITH THE COURT
AND PROVIDED BY THE COURT TO THE DEFENDANT OR HIS OR HER COUNSEL. UPON A
FINDING THAT THE FOLLOW-UP HIV RELATED TEST IS MEDICALLY APPROPRIATE THE
COURT MUST ORDER THAT THE DEFENDANT SUBMIT TO SUCH TEST. THE COURT SHALL
NOT  MAKE  SUCH  FINDING OF MEDICAL APPROPRIATENESS UNLESS THE FOLLOW-UP
HIV RELATED TEST IS TO BE  ADMINISTERED  A  SUFFICIENT  TIME  AFTER  THE
CHARGED  OFFENSE  TO BE CONSISTENT WITH GUIDELINES THAT MAY BE ISSUED BY
THE COMMISSIONER OF HEALTH. THERE SHALL BE NO MORE  THAN  ONE  FOLLOW-UP
HIV RELATED TEST ABSENT A SHOWING OF EXTRAORDINARY CIRCUMSTANCES.
  4.  ANY  REQUESTS, RELATED PAPERS AND ORDERS MADE OR FILED PURSUANT TO
THIS SECTION, TOGETHER WITH ANY PAPERS OR PROCEEDINGS  RELATED  THERETO,
SHALL  BE  SEALED  BY  THE COURT AND NOT MADE AVAILABLE FOR ANY PURPOSE,
EXCEPT AS MAY BE NECESSARY  FOR  THE  CONDUCT  OF  JUDICIAL  PROCEEDINGS
DIRECTLY  RELATED  TO THE PROVISIONS OF THIS SECTION. ALL PROCEEDINGS ON
SUCH REQUESTS SHALL BE HELD IN CAMERA.
  5. THE APPLICATION FOR AN ORDER TO COMPEL A DEFENDANT  TO  UNDERGO  AN
HIV  RELATED  TEST  MUST  STATE THAT THE APPLICANT WAS THE VICTIM OF THE
OFFENSE ENUMERATED IN SUBDIVISION ONE  OF  THIS  SECTION  OF  WHICH  THE
DEFENDANT IS CHARGED.
  6. THE COURT SHALL CONDUCT A HEARING ONLY IF NECESSARY TO DETERMINE IF
THE  APPLICANT  IS  THE  VICTIM OF THE OFFENSE OF WHICH THE DEFENDANT IS
CHARGED OR TO DETERMINE WHETHER A FOLLOW-UP TEST IS MEDICALLY  APPROPRI-
ATE.  THE  COURT ORDERED TEST MUST BE PERFORMED WITHIN FORTY-EIGHT HOURS
OF THE DATE ON WHICH THE COURT ORDERED THE TEST, PROVIDED, HOWEVER, THAT
WHENEVER THE DEFENDANT IS NOT TESTED WITHIN THE PERIOD PRESCRIBED BY THE
COURT, THE COURT MUST AGAIN ORDER THAT  THE  DEFENDANT  UNDERGO  AN  HIV
RELATED  TEST.  THE  DEFENDANT SHALL BE ADVISED OF INFORMATION AS TO HIV
TESTING AND MEDICAL TREATMENT IN ACCORDANCE WITH ANY GUIDELINES THAT MAY
BE ISSUED BY THE COMMISSIONER OF HEALTH.
  7. (A) TEST RESULTS SHALL BE DISCLOSED SUBJECT TO THE FOLLOWING  LIMI-
TATIONS,  WHICH  SHALL BE SPECIFIED IN ANY ORDER ISSUED PURSUANT TO THIS
SECTION:
  (I) DISCLOSURE OF CONFIDENTIAL HIV RELATED INFORMATION SHALL BE LIMIT-
ED TO THAT INFORMATION WHICH IS NECESSARY TO  FULFILL  THE  PURPOSE  FOR
WHICH THE ORDER IS GRANTED; AND
  (II)  DISCLOSURE OF CONFIDENTIAL HIV RELATED INFORMATION SHALL BE MADE
TO THE DEFENDANT UPON HIS OR HER REQUEST, AND  DISCLOSURE  TO  A  PERSON
OTHER  THAN  THE  DEFENDANT  SHALL  BE  LIMITED TO THE PERSON MAKING THE
APPLICATION.
  (B) THE COURT'S  ORDER  SHALL  INCLUDE  MEASURES  TO  PROTECT  AGAINST
DISCLOSURE TO OTHERS OF THE IDENTITY AND HIV STATUS OF THE APPLICANT AND
OF  THE  PERSON  TESTED AND MAY INCLUDE SUCH OTHER MEASURES AS THE COURT
DEEMS NECESSARY TO PROTECT CONFIDENTIAL INFORMATION.
  8. ANY FAILURE TO COMPLY WITH THE PROVISIONS OF THIS SECTION SHALL NOT
IMPAIR OR AFFECT THE VALIDITY OF ANY PROCEEDING UPON THE  INDICTMENT  OR
SUPERIOR COURT INFORMATION.
  9.  NO INFORMATION OBTAINED AS A RESULT OF A CONSENT, HEARING OR COURT
ORDER FOR TESTING ISSUED PURSUANT TO THIS SECTION  NOR  ANY  INFORMATION
DERIVED  THEREFROM  MAY  BE  USED  AS  EVIDENCE IN ANY CRIMINAL OR CIVIL
PROCEEDING AGAINST THE DEFENDANT WHICH RELATES TO EVENTS THAT  WERE  THE
BASIS  FOR CHARGING THE DEFENDANT WITH AN OFFENSE ENUMERATED IN SUBDIVI-
SION ONE OF THIS SECTION, PROVIDED HOWEVER THAT NOTHING IN THIS  SECTION
SHALL  PREVENT  PROSECUTION OF A WITNESS TESTIFYING IN ANY COURT HEARING
HELD PURSUANT TO THIS  SECTION  FOR  PERJURY  PURSUANT  TO  ARTICLE  TWO
HUNDRED TEN OF THE PENAL LAW.
  S 2. This act shall take effect immediately.