STATE OF NEW YORK
________________________________________________________________________
1310
2023-2024 Regular Sessions
IN SENATE
January 11, 2023
___________
Introduced by Sen. ORTT -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
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:
1 Section 1. Legislative intent. The legislature finds that HIV/AIDS
2 infection poses a serious threat to the public health of all New Yorkers
3 whenever HIV/AIDS infected persons act in a manner which is likely to
4 spread this horrible disease to other persons. When HIV/AIDS infected
5 persons commit such actions as having unprotected sex or sharing needles
6 without the consent of their partners, they endanger the public health
7 and frustrate the efforts of health officials to contain and, hopefully,
8 reverse the spread of HIV/AIDS.
9 The legislature further finds that in order to allow the victims of
10 alleged sex crimes or crimes which endanger their health to obtain the
11 most effective health care treatment, the HIV status of their offenders
12 must be determined.
13 The legislature further finds that the increasing reports of acquired
14 immune deficiency syndrome, human immunodeficiency virus, tuberculosis
15 and hepatitis in state correctional facilities have reached an alarming
16 level. These incarcerated individuals and others who may have an undi-
17 agnosed case of any of these syndromes, diseases or viruses are extreme-
18 ly detrimental to the health, safety and welfare of the correction offi-
19 cers and other staff who work in such facilities as well as incarcerated
20 individuals who are incarcerated therein. In order to maintain proper
21 security and working conditions, the legislature hereby declares that
22 all incarcerated individuals presently under confinement and all incar-
23 cerated individuals to be newly admitted to the department of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02822-01-3
S. 1310 2
1 corrections and community supervision must be expeditiously tested for
2 such syndromes, diseases or viruses. The department of corrections and
3 community supervision shall take immediate action to care for afflicted
4 incarcerated individuals including separation from the general incarcer-
5 ated individual population in a special medical facility.
6 § 2. Section 10.00 of the penal law is amended by adding two new
7 subdivisions 22 and 23 to read as follows:
8 22. "AIDS" means acquired immune deficiency syndrome, as may be
9 defined from time to time by the centers for disease control of the
10 United States public health service.
11 23. "HIV infection" means infection with the human immunodeficiency
12 virus or any other related virus identified as a probable causative
13 agent of AIDS.
14 § 3. The opening paragraph of subdivision 1 of section 70.25 of the
15 penal law, as amended by chapter 372 of the laws of 1981, is amended to
16 read as follows:
17 Except as provided in subdivisions two, two-a [and], five and six of
18 this section, when multiple sentences of imprisonment are imposed on a
19 person at the same time, or when a person who is subject to any undisc-
20 harged term of imprisonment imposed at a previous time by a court of
21 this state is sentenced to an additional term of imprisonment, the
22 sentence or sentences imposed by the court shall run either concurrently
23 or consecutively with respect to each other and the undischarged term or
24 terms in such manner as the court directs at the time of sentence. If
25 the court does not specify the manner in which a sentence imposed by it
26 is to run, the sentence shall run as follows:
27 § 4. Section 70.25 of the penal law is amended by adding a new subdi-
28 vision 6 to read as follows:
29 6. When a person is convicted of reckless endangerment of the public
30 health in the first degree, as defined in section 120.26 of this chap-
31 ter, or reckless endangerment of the public health in the second degree,
32 as defined in section 120.27 of this chapter, the term of imprisonment
33 which may be imposed as a sentence upon such conviction, shall run
34 consecutively to any other term of imprisonment imposed as the sentence
35 upon the conviction of any other offense committed through the same act
36 or omission, or through an act or omission with itself constituted one
37 of the material elements of such reckless endangerment of the public
38 health offense.
39 § 5. The penal law is amended by adding four new sections 120.26,
40 120.27, 120.28 and 170.36 to read as follows:
41 § 120.26 Reckless endangerment of the public health in the first degree.
42 A person is guilty of reckless endangerment of the public health in
43 the first degree when he or she is aware that he or she has tested posi-
44 tively for HIV/AIDS and then recklessly engages in conduct which results
45 in the transmission of HIV/AIDS to another person who was unaware of
46 such condition.
47 Reckless endangerment of the public health in the first degree is a
48 class B felony.
49 § 120.27 Reckless endangerment of the public health in the second
50 degree.
51 A person is guilty of reckless endangerment of the public health in
52 the second degree when he or she is aware that he or she has tested
53 positively for HIV/AIDS and then recklessly engages in conduct which
54 creates a substantial risk of the transmission of HIV/AIDS to another
55 person who was unaware of such condition.
S. 1310 3
1 Reckless endangerment of the public health in the second degree is a
2 class C felony.
3 § 120.28 Reckless endangerment of the public health; defense.
4 In any prosecution under section 120.26 or 120.27 of this article, it
5 shall be an absolute defense that the defendant, at the time she was
6 engaged in the conduct constituting the offense, was a woman who trans-
7 mitted the HIV/AIDS virus to her child as the result of giving birth to
8 such child.
9 § 170.36 Offering a false instrument which endangers the public health.
10 A person is guilty of offering a false instrument which endangers the
11 public health when he or she is aware that he or she has tested positive
12 for HIV/AIDS and then knowing that a written instrument contains a false
13 statement or false information regarding his or her HIV status and with
14 the intent to defraud the department of health, any subdivision or agent
15 thereof, or any other health care provider, he or she offers or presents
16 such instrument to an agent of that office or other health care provider
17 with the knowledge or belief that it will be filed with, registered or
18 recorded in or otherwise become a part of the records of such public
19 office or public servant.
20 Offering a false instrument which endangers the public health is a
21 class E felony.
22 § 6. Section 1.20 of the criminal procedure law is amended by adding
23 two new subdivisions 46 and 47 to read as follows:
24 46. "HIV related illness" means any illness that may result from or
25 may be associated with HIV infection.
26 47. "HIV related test" means any laboratory test or series of tests
27 for any virus, antibody, antigen or etiologic agent whatsoever thought
28 to cause or to indicate the presence of AIDS.
29 § 7. The criminal procedure law is amended by adding a new section
30 160.46 to read as follows:
31 § 160.46 HIV related testing of alleged sex and public health offenders.
32 1. A police officer who makes an arrest for any crime set forth in
33 article one hundred thirty or section 120.26 or 120.27 of the penal law,
34 either with or without a warrant, shall, following such arrest or the
35 arraignment upon a local criminal court accusatory instrument of a
36 defendant whose court attendance has been secured by a summons or an
37 appearance ticket, cause such defendant to be immediately given an HIV
38 related test to determine if such defendant has HIV infection, HIV
39 related illness or AIDS.
40 2. The HIV related test prescribed in subdivision one of this section
41 and the submission of available information concerning the defendant and
42 the facts and circumstances of the crime charged must be in accordance
43 with the rules and regulations promulgated by the commissioner of crimi-
44 nal justice services.
45 3. The result of an HIV related test performed pursuant to subdivision
46 one of this section, shall, upon request, be made available to the
47 victim or alleged victim of such crime and to the defendant.
48 § 8. Section 71 of the correction law is amended by adding a new
49 subdivision 9 to read as follows:
50 9. (a) Persons who are committed, transferred, certified to or placed
51 in the care or custody of the department shall be immediately tested for
52 evidence of acquired immune deficiency syndrome, human immunodeficiency
53 virus, tuberculosis and hepatitis and monitored for the possibility of
54 development of such syndromes, diseases or viruses in accordance with
55 proper medical procedures.
S. 1310 4
1 (b) For those persons who generate a positive result, the department
2 shall provide, in each facility under its control, the instruction of
3 appropriate staff, incarcerated individuals and significant others
4 regarding the nature of acquired immune deficiency syndrome and AIDS
5 Related Complex (ARC), human immunodeficiency virus, tuberculosis and
6 hepatitis, potential problems, and steps which may be taken to minimize
7 such problems.
8 § 9. Section 141 of the correction law, as amended by chapter 322 of
9 the laws of 2021, is amended to read as follows:
10 § 141. Contagious disease in facility. 1. In case any pestilence or
11 contagious disease shall break out among the incarcerated individuals in
12 any of the correctional facilities, or in the vicinity of such facili-
13 ties, the commissioner [of correction] may cause the incarcerated indi-
14 viduals confined in such facility, or any of them, to be removed to some
15 suitable place of security, where such of them as may be sick shall
16 receive all necessary care and medical assistance; such incarcerated
17 individuals shall be returned as soon as may be feasible to the facility
18 from which they were taken, to be confined therein according to their
19 respective sentences.
20 2. To reduce the possibility of any pestilence or contagious disease
21 in correctional facilities, every incarcerated individual shall be regu-
22 larly administered a blood test designed to test for the viral agent
23 known as HTLV-III/LAV which causes acquired immune deficiency syndrome
24 and a blood test designed to test for tuberculosis and hepatitis. The
25 commissioner shall take all necessary precautions which shall include
26 monitoring, education and counseling for those incarcerated individuals
27 who test positive for these illnesses.
28 § 10. The correction law is amended by adding a new section 141-a to
29 read as follows:
30 § 141-a. Notification of disease symptoms. Upon the diagnosis of a
31 facility health director or any other medical service provider author-
32 ized by the department to examine incarcerated individuals, that an
33 incarcerated individual has symptoms of acquired immune deficiency
34 syndrome, notice of the diagnosis shall be provided to all employees of
35 the department who can reasonably be expected to be involved in the
36 supervision and care of said incarcerated individual.
37 § 11. This act shall take effect on the first of January next succeed-
38 ing the date on which it shall have become a law; provided however that
39 sections three, four and five of this act shall take effect on the first
40 of November next succeeding the date on which it shall have become a
41 law. Effective immediately, the addition, amendment and/or repeal of any
42 rule or regulation necessary for the implementation of the provisions of
43 this act on its effective date are authorized to be made and completed
44 within 180 days after the date on which this act shall have become a
45 law.
