Bill S2189A-2013

Creates the crime of reckless endangerment of the public health for recklessly transmitting HIV/AIDS

Creates crimes of reckless endangerment of public health with respect to HIV/AIDS transmission; creates crime of filing false instrument with respect to HIV/AIDS; provides for HIV/AIDS testing for alleged sex offenders and public health offenders; provides for contagious disease testing for persons in the custody of the department of corrections; provides that if an inmate tests positive notice shall be given to all employees that will have contact with such inmate.

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Actions

  • Jan 8, 2014: REFERRED TO CODES
  • Feb 13, 2013: PRINT NUMBER 2189A
  • Feb 13, 2013: AMEND AND RECOMMIT TO CODES
  • Jan 14, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S2189A

TITLE OF BILL: An act to amend the penal law, the criminal procedure law and the correction law, in relation to criminalizing the reckless transmission of HIV/AIDS and to require testing for AIDS and HIV for certain persons

PURPOSE: Creates the crime of reckless endangerment of the public health for recklessly transmitting HIV/AIDS.

SUMMARY OF PROVISIONS:

The Penal Law is amended by creating the crime of reckless endangerment of the public health in the first and second degree as class S and C felony offenses. This legislation also creates a class E felony for providing false information or statement regarding HIV status to a health care provider.

The Criminal Procedure Law is amended to require any defendant arrested or arraigned for any crime set for in article one hundred thirty or section 120.26 or 120.27 of the penal law to be tested for the HIV virus. The results of such testing would, upon request, be made available to the defendant's alleged victim.

The Correction Law is amended to require that all currently incarcerated persons and persons newly entering a correctional facility be tested for the HIV virus. This bill also provides that upon the diagnoses of an inmate that has symptoms of AIDS, notice of such diagnosis shall be provided to persons involved in the supervision and care of the inmate.

JUSTIFICATION:

The announcement in the fall of 1997 that Nushawn Williams had been informed of his HIV-positive status but continued to have unprotected sex with young women in Chautauqua County shocked the State and, indeed, the nation. Nushawn Williams is directly responsible for infecting nine girls and women, and possibly as many as twenty-eight persons. Given these facts and the possibility of more persons acting like Williams throughout the State, this bill seeks to bring New York's current law of strict confidentiality for HIV related information in line with responsible policy designed to prevent the transmission of HIV and to protect as many New Yorkers as possible from getting this horrible disease.

While this bill retains nearly all of the existing confidentiality provisions for the protection of HIV infected persons, it allows for criminal investigation and prosecution of those persons who chose to act irresponsibly with regard to their HIV status. HIV/AIDS is a deadly disease for which there currently is no cure. When an HIV infected person, who is aware of their status, acts in a manner that recklessly places other unknowing persons in a position to contract the disease, they should be severely punished.

Likewise, when a person commits an act that endangers the public health or is considered a sex offense as currently defined in the Penal Law, we need to be able to test the alleged offenders in a timely manner. Many of the treatments that are currently available for HIV are most effective if administered as close as possible to the transmission date. The victims have a right to know the HIV status of their offender in order to procure the most effective health care. It is in the same preventative vein that this bill calls for the testing of all currently incarcerated persons. Sensible, and sufficient health care, and education can best be provided when the HIV status of these individuals is known. In addition, employees of the correctional facilities, who are required to supervise and care for the infected inmates, have a right to know of the potential health risks.

LEGISLATIVE HISTORY:

2011,2012: S.745/A.1908 Referred to Codes 2009,2010: S.3407/A.4939 Referred to Codes 2007,2008: S.387/A.2707 Referred to Codes 2006:S.6268 Referred to Codes 2005:A.5697 Referred to Health 2003,2004: A.4787 Held in Health

FISCAL IMPLICATIONS: $1.6 million to the State.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first day of January next succeeding the date on which it shall have become law; provided however, that sections three, four and five of this act shall take effect on the first day of November next succeeding the date on which it shall have become a law; and provided, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of the foregoing sections of this act on their effective date are authorized and directed to be made and completed within 180 days after the date on which this act shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 2189--A 2013-2014 Regular Sessions IN SENATE January 14, 2013 ___________
Introduced by Sens. YOUNG, BONACIC, DeFRANCISCO, NOZZOLIO, O'MARA, RANZENHOFER -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the penal law, the criminal procedure law and the correction law, in relation to criminalizing the reckless transmission of HIV/AIDS and to require testing for AIDS and HIV for certain persons THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative intent. The legislature finds that HIV/AIDS infection poses a serious threat to the public health of all New Yorkers whenever HIV/AIDS infected persons act in a manner which is likely to spread this horrible disease to other persons. When HIV/AIDS infected persons commit such actions as having unprotected sex or sharing needles without the consent of their partners, they endanger the public health and frustrate the efforts of health officials to contain and, hopefully, reverse the spread of HIV/AIDS. The legislature further finds that in order to allow the victims of alleged sex crimes or crimes which endanger their health to obtain the most effective health care treatment, the HIV status of their offenders must be determined. The legislature further finds that the increasing reports of acquired immune deficiency syndrome, human immunodeficiency virus, tuberculosis and hepatitis in state correctional facilities have reached an alarming level. These inmates and others who may have an undiagnosed case of any of these syndromes, diseases or viruses are extremely detrimental to the health, safety and welfare of the correction officers and other staff who work in such facilities as well as inmates who are incarcerated therein. In order to maintain proper security and working conditions,
the legislature hereby declares that all inmates presently under confinement and all inmates to be newly admitted to the department of corrections and community supervision must be expeditiously tested for such syndromes, diseases or viruses. The department of corrections and community supervision shall take immediate action to care for afflicted inmates including separation from the general inmate population in a special medical facility. S 2. Section 10.00 of the penal law is amended by adding two new subdivisions 22 and 23 to read as follows: 22. "AIDS" MEANS ACQUIRED IMMUNE DEFICIENCY SYNDROME, AS MAY BE DEFINED FROM TIME TO TIME BY THE CENTERS FOR DISEASE CONTROL OF THE UNITED STATES PUBLIC HEALTH SERVICE. 23. "HIV INFECTION" MEANS INFECTION WITH THE HUMAN IMMUNODEFICIENCY VIRUS OR ANY OTHER RELATED VIRUS IDENTIFIED AS A PROBABLE CAUSATIVE AGENT OF AIDS. S 3. The opening paragraph of subdivision 1 of section 70.25 of the penal law, as amended by chapter 372 of the laws of 1981, is amended to read as follows: Except as provided in subdivisions two, two-a [and], five AND SIX of this section, when multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undisc- harged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentence. If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows: S 4. Section 70.25 of the penal law is amended by adding a new subdi- vision 6 to read as follows: 6. WHEN A PERSON IS CONVICTED OF RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST DEGREE, AS DEFINED IN SECTION 120.26 OF THIS CHAP- TER, OR RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE, AS DEFINED IN SECTION 120.27 OF THIS CHAPTER, AND A TERM OF IMPRISONMENT WHICH MAY BE IMPOSED AS A SENTENCE UPON SUCH CONVICTION, SHALL RUN CONSECUTIVELY TO ANY OTHER TERM OF IMPRISONMENT IMPOSED AS THE SENTENCE UPON THE CONVICTION OF ANY OTHER OFFENSE COMMITTED THROUGH THE SAME ACT OR OMISSION, OR THROUGH AN ACT OR OMISSION WITH ITSELF CONSTITUTED ONE OF THE MATERIAL ELEMENTS OF SUCH RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH OFFENSE. S 5. The penal law is amended by adding four new sections 120.26, 120.27, 120.28 and 170.36 to read as follows: S 120.26 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST DEGREE. A PERSON IS GUILTY OF RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST DEGREE WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED POSI- TIVELY FOR HIV/AIDS AND THEN RECKLESSLY ENGAGES IN CONDUCT WHICH RESULTS IN THE TRANSMISSION OF HIV/AIDS TO ANOTHER PERSON WHO WAS UNAWARE OF SUCH CONDITION. RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST DEGREE IS A CLASS B FELONY. S 120.27 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE. A PERSON IS GUILTY OF RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED POSITIVELY FOR HIV/AIDS AND THEN RECKLESSLY ENGAGES IN CONDUCT WHICH
CREATES A SUBSTANTIAL RISK OF THE TRANSMISSION OF HIV/AIDS TO ANOTHER PERSON WHO WAS UNAWARE OF SUCH CONDITION. RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE IS A CLASS C FELONY. S 120.28 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH; DEFENSE. IN ANY PROSECUTION UNDER SECTION 120.26 OR 120.27 OF THIS ARTICLE, IT SHALL BE AN ABSOLUTE DEFENSE THAT THE DEFENDANT, AT THE TIME SHE WAS ENGAGED IN THE CONDUCT CONSTITUTING THE OFFENSE, WAS A WOMAN WHO TRANS- MITTED THE HIV/AIDS VIRUS TO HER CHILD AS THE RESULT OF GIVING BIRTH TO SUCH CHILD. S 170.36 OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE PUBLIC HEALTH. A PERSON IS GUILTY OF OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE PUBLIC HEALTH WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED POSITIVE FOR HIV/AIDS AND THEN KNOWING THAT A WRITTEN INSTRUMENT CONTAINS A FALSE STATEMENT OR FALSE INFORMATION REGARDING HIS OR HER HIV STATUS AND WITH THE INTENT TO DEFRAUD THE DEPARTMENT OF HEALTH, ANY SUBDIVISION OR AGENT THEREOF, OR ANY OTHER HEALTH CARE PROVIDER, HE OR SHE OFFERS OR PRESENTS SUCH INSTRUMENT TO AN AGENT OF THAT OFFICE OR OTHER HEALTH CARE PROVIDER WITH THE KNOWLEDGE OR BELIEF THAT IT WILL BE FILED WITH, REGISTERED OR RECORDED IN OR OTHERWISE BECOME A PART OF THE RECORDS OF SUCH PUBLIC OFFICE OR PUBLIC SERVANT. OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE PUBLIC HEALTH IS A CLASS E FELONY. S 6. Section 1.20 of the criminal procedure law is amended by adding two new subdivisions 44 and 45 to read as follows: 44. "HIV RELATED ILLNESS" MEANS ANY ILLNESS THAT MAY RESULT FROM OR MAY BE ASSOCIATED WITH HIV INFECTION. 45. "HIV RELATED TEST" MEANS ANY LABORATORY TEST OR SERIES OF TESTS FOR ANY VIRUS, ANTIBODY, ANTIGEN OR ETIOLOGIC AGENT WHATSOEVER THOUGHT TO CAUSE OR TO INDICATE THE PRESENCE OF AIDS. S 7. The criminal procedure law is amended by adding a new section 160.46 to read as follows: S 160.46 HIV RELATED TESTING OF ALLEGED SEX AND PUBLIC HEALTH OFFENDERS. 1. A POLICE OFFICER WHO MAKES AN ARREST FOR ANY CRIME SET FORTH IN ARTICLE ONE HUNDRED THIRTY OR SECTION 120.26 OR 120.27 OF THE PENAL LAW, EITHER WITH OR WITHOUT A WARRANT, SHALL, FOLLOWING SUCH ARREST OR THE ARRAIGNMENT UPON A LOCAL CRIMINAL COURT ACCUSATORY INSTRUMENT OF A DEFENDANT WHOSE COURT ATTENDANCE HAS BEEN SECURED BY A SUMMONS OR AN APPEARANCE TICKET, CAUSE SUCH DEFENDANT TO BE IMMEDIATELY GIVEN AN HIV RELATED TEST TO DETERMINE IF SUCH DEFENDANT HAS HIV INFECTION, HIV RELATED ILLNESS OR AIDS. 2. THE HIV RELATED TEST PRESCRIBED IN SUBDIVISION ONE OF THIS SECTION AND THE SUBMISSION OF AVAILABLE INFORMATION CONCERNING THE DEFENDANT AND THE FACTS AND CIRCUMSTANCES OF THE CRIME CHARGED MUST BE IN ACCORDANCE WITH THE RULES AND REGULATIONS PROMULGATED BY THE COMMISSIONER OF CRIMI- NAL JUSTICE SERVICES. 3. THE RESULT OF AN HIV RELATED TEST PERFORMED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, SHALL, UPON REQUEST, BE MADE AVAILABLE TO THE VICTIM OR ALLEGED VICTIM OF SUCH CRIME AND TO THE DEFENDANT. S 8. Section 71 of the correction law is amended by adding a new subdivision 9 to read as follows: 9. (A) PERSONS WHO ARE COMMITTED, TRANSFERRED, CERTIFIED TO OR PLACED IN THE CARE OR CUSTODY OF THE DEPARTMENT SHALL BE IMMEDIATELY TESTED FOR EVIDENCE OF ACQUIRED IMMUNE DEFICIENCY SYNDROME, HUMAN IMMUNODEFICIENCY VIRUS, TUBERCULOSIS AND HEPATITIS AND MONITORED FOR THE POSSIBILITY OF
DEVELOPMENT OF SUCH SYNDROMES, DISEASES OR VIRUSES IN ACCORDANCE WITH PROPER MEDICAL PROCEDURES. (B) FOR THOSE PERSONS WHO GENERATE A POSITIVE RESULT, THE DEPARTMENT SHALL PROVIDE, IN EACH FACILITY UNDER ITS CONTROL, THE INSTRUCTION OF APPROPRIATE STAFF, INMATES AND SIGNIFICANT OTHERS REGARDING THE NATURE OF ACQUIRED IMMUNE DEFICIENCY SYNDROME AND AIDS RELATED COMPLEX (ARC), HUMAN IMMUNODEFICIENCY VIRUS, TUBERCULOSIS AND HEPATITIS, POTENTIAL PROBLEMS, AND STEPS WHICH MAY BE TAKEN TO MINIMIZE SUCH PROBLEMS. S 9. Section 141 of the correction law, as amended by chapter 476 of the laws of 1970, is amended to read as follows: S 141. Contagious disease in facility. 1. In case any pestilence or contagious disease shall break out among the inmates in any of the correctional facilities, or in the vicinity of such facilities, the commissioner [of correction] may cause the inmates confined in such facility, or any of them, to be removed to some suitable place of secu- rity, where such of them as may be sick shall receive all necessary care and medical assistance; such inmates shall be returned as soon as may be feasible to the facility from which they were taken, to be confined therein according to their respective sentences. 2. TO REDUCE THE POSSIBILITY OF ANY PESTILENCE OR CONTAGIOUS DISEASE IN CORRECTIONAL FACILITIES, EVERY INMATE SHALL BE REGULARLY ADMINISTERED A BLOOD TEST DESIGNED TO TEST FOR THE VIRAL AGENT KNOWN AS HTLV-III/LAV WHICH CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME AND A BLOOD TEST DESIGNED TO TEST FOR TUBERCULOSIS AND HEPATITIS. THE COMMISSIONER SHALL TAKE ALL NECESSARY PRECAUTIONS WHICH SHALL INCLUDE MONITORING, EDUCATION AND COUNSELING FOR THOSE INMATES WHO TEST POSITIVE FOR THESE ILLNESSES. S 10. The correction law is amended by adding a new section 141-a to read as follows: S 141-A. NOTIFICATION OF DISEASE SYMPTOMS. UPON THE DIAGNOSIS OF A FACILITY HEALTH DIRECTOR OR ANY OTHER MEDICAL SERVICE PROVIDER AUTHOR- IZED BY THE DEPARTMENT TO EXAMINE INMATES, THAT AN INMATE HAS SYMPTOMS OF ACQUIRED IMMUNE DEFICIENCY SYNDROME, NOTICE OF THE DIAGNOSIS SHALL BE PROVIDED TO ALL EMPLOYEES OF THE DEPARTMENT WHO CAN REASONABLY BE EXPECTED TO BE INVOLVED IN THE SUPERVISION AND CARE OF SAID INMATE. S 11. This act shall take effect on the first of January next succeed- ing the date on which it shall have become law; provided however that sections three, four and five of this act shall take effect on the first of November next succeeding the date on which it shall have become a law; and provided, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of the provisions of this act on its effective date are authorized and directed to be made and completed within 180 days after the date on which this act shall have become a law.

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