A07027 Summary:
| BILL NO | A07027 |
| SAME AS | No Same As |
| SPONSOR | Lentol |
| COSPNSR | |
| MLTSPNSR | |
| Amd S210.16, CP L | |
| Relates to the testing of certain criminal defendants for HIV. | |
A07027 Actions:
| BILL NO | A07027 | |||||||||||||||||||||||||||||||||||||||||||||||||
| 04/20/2015 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/06/2016 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
A07027 Committee Votes:
Go to topA07027 Floor Votes:
There are no votes for this bill in this legislative session.
Go to topA07027 Text:
Go to topSTATE OF NEW YORK ________________________________________________________________________ 7027 2015-2016 Regular Sessions IN ASSEMBLY April 20, 2015 ___________ Introduced by M. of A. LENTOL -- (at request of the Division of Criminal Justice Services) -- read once and referred 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: 1 Section 1. Section 210.16 of the criminal procedure law, as added by 2 chapter 571 of the laws of 2007, is amended to read as follows: 3 § 210.16 Requirement of HIV related testing in certain cases. 4 1. (a) In a case where an indictment or a superior court information 5 has been filed with a superior court which charges the defendant with a 6 felony offense enumerated in any section of article one hundred thirty 7 of the penal law where an act of "sexual intercourse", "oral sexual 8 conduct" or "anal sexual conduct," as those terms are defined in section 9 130.00 of the penal law, is required as an essential element for the 10 commission thereof, the court shall, upon a request of the victim, with- 11 in [six months of the date of the crimes charged,] forty-eight hours 12 order that the defendant submit to human immunodeficiency virus (HIV) 13 related testing. [Testing of a defendant shall be ordered when the14result would provide medical benefit to the victim or a psychological15benefit to the victim. Medical benefit shall be found when the following16elements are satisfied: (i) a decision is pending about beginning,17continuing, or discontinuing a medical intervention for the victim; and18(ii) the result of an HIV test of the accused could affect that deci-19sion, and could provide relevant information beyond that which would be20provided by an HIV test of the victim. If testing the defendant would21provide medical benefit to the victim or a psychological benefit to the22victim, then the] The testing is to be conducted by a state, county, or 23 local public health officer designated by the order. Any fee assessed 24 for conducting the test shall be paid for by the county. Test results, 25 which shall not be disclosed to the court, shall be communicated to the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09548-01-5A. 7027 2 1 defendant and the victim named in the order as soon as practicable in 2 accordance with the provisions of section twenty-seven hundred eighty- 3 five-a of the public health law. 4 (b) For the purposes of this section, the terms "victim" and "appli- 5 cant" mean the person with whom the defendant is charged to have engaged 6 in an act of "sexual intercourse", "oral sexual conduct" or "anal sexual 7 conduct", as those terms are defined in section 130.00 of the penal law, 8 where such conduct with such victim was the basis for charging the 9 defendant with an offense specified in paragraph (a) of this subdivi- 10 sion. 11 2. Any request made by the victim pursuant to this section must be in 12 writing[, filed with the court within six months of the date of the13crimes charged,] and provided by the court to the defendant or his or 14 her counsel. The request [must] may be filed with the court prior to or 15 within forty-eight hours after the indictment or superior court informa- 16 tion has been filed with the superior court; provided however that, for 17 good cause shown, the court may permit such request to be filed at a 18 later stage of the action [within six months of the date of the crimes19charged]. If the request is filed prior to the filing of an indictment 20 or superior court information, the court shall not act on the request 21 until such indictment or superior court information is filed. 22 3. At any stage in the action [within six months of the date of the23crimes charged,] prior to the final disposition of the indictment or 24 superior court information and while the defendant is charged with an 25 offense specified in paragraph (a) of subdivision one of this section, 26 the victim may request that the defendant submit to a follow-up HIV 27 related test as may be medically appropriate. Such request must be in 28 writing, filed with the court and provided by the court to the defendant 29 or his or her counsel. Upon a finding that the follow-up HIV related 30 test is medically appropriate the court must order that the defendant 31 submit to such test. [The court shall not make such finding of medical32appropriateness unless the follow-up HIV related test is to be adminis-33tered a sufficient time after the charged offense to be consistent with34guidelines that may be issued by the commissioner of health. There shall35be no more than one follow-up HIV related test absent a showing of36extraordinary circumstances.] 37 4. Any requests, related papers and orders made or filed pursuant to 38 this section, together with any papers or proceedings related thereto, 39 shall be sealed by the court and not made available for any purpose, 40 except as may be necessary for the conduct of judicial proceedings 41 directly related to the provisions of this section. All proceedings on 42 such requests shall be held in camera. 43 5. The application for an order to compel a defendant to undergo an 44 HIV related test may be made by the victim but, if the victim is an 45 infant or incompetent person, the application may also be made by a 46 representative as defined in section twelve hundred one of the civil 47 practice law and rules. The application must state that: (a) the appli- 48 cant was the victim of the offense enumerated in paragraph (a) of subdi- 49 vision one of this section of which the defendant is charged; and (b) 50 the applicant has been offered pre-HIV test counseling and post-HIV test 51 counseling by a public health officer in accordance with article twen- 52 ty-seven-F of the public health law and has been advised, in accordance 53 with any guidelines that may be issued by the commissioner of health, of 54 (i) the limitations on the information to be obtained through an HIV 55 test on the proposed subject; (ii) current scientific assessments of the 56 risk of transmission of HIV from the exposure he or she may have experi-A. 7027 3 1 enced; and (iii) the need for the applicant to undergo HIV related test- 2 ing to definitively determine his or her HIV status. 3 6. The court shall conduct a hearing only if necessary to determine if 4 the applicant is the victim of the offense of which the defendant is 5 charged or to determine whether a follow-up test is medically appropri- 6 ate. The court ordered test must be performed within forty-eight hours 7 of the date on which the court ordered the test, provided, however, that 8 whenever the defendant is not tested within the period prescribed by the 9 court, the court must again order that the defendant undergo an HIV 10 related test. The defendant shall be advised of information as to HIV 11 testing and medical treatment in accordance with any guidelines that may 12 be issued by the commissioner of health. 13 7. (a) Test results shall be disclosed as soon as practicable subject 14 to the following limitations, which shall be specified in any order 15 issued pursuant to this section: 16 (i) disclosure of confidential HIV related information shall be limit- 17 ed to that information which is necessary to fulfill the purpose for 18 which the order is granted; and 19 (ii) disclosure of confidential HIV related information shall be made 20 to the defendant upon his or her request, and disclosure to a person 21 other than the defendant shall be limited to the person making the 22 application; redisclosure shall be permitted only to the victim, the 23 victim's immediate family, guardian, physicians, attorneys, medical or 24 mental health providers and to his or her past and future contacts to 25 whom there was or is a reasonable risk of HIV transmission and shall not 26 be permitted to any other person or the court. 27 (b) Unless inconsistent with this section, the court's order shall 28 direct compliance with and conform to the provisions of article twenty- 29 seven-F of the public health law. Such order shall include measures to 30 protect against disclosure to others of the identity and HIV status of 31 the applicant and of the person tested and may include such other meas- 32 ures as the court deems necessary to protect confidential information. 33 8. Any failure to comply with the provisions of this section or 34 section twenty-seven hundred eighty-five-a of the public health law 35 shall not impair or affect the validity of any proceeding upon the 36 indictment or superior court information. 37 9. No information obtained as a result of a consent, hearing or court 38 order for testing issued pursuant to this section nor any information 39 derived therefrom may be used as evidence in any criminal or civil 40 proceeding against the defendant which relates to events that were the 41 basis for charging the defendant with an offense enumerated in paragraph 42 (a) of subdivision one of this section, provided however that nothing in 43 this section shall prevent prosecution of a witness testifying in any 44 court hearing held pursuant to this section for perjury pursuant to 45 article two hundred ten of the penal law. 46 § 2. This act shall take effect immediately and shall permit court- 47 ordered testing of persons against whom an indictment or superior court 48 information has been filed on or after such effective date.