senate Bill S2189A

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 14 / Jan / 2013
    • REFERRED TO CODES
  • 13 / Feb / 2013
    • AMEND AND RECOMMIT TO CODES
  • 13 / Feb / 2013
    • PRINT NUMBER 2189A
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

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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Bill Details

See Assembly Version of this Bill:
A8758
Versions:
S2189
S2189A
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§10.00 & 70.25, add §§120.26, 120.27, 120.28 & 170.36, Pen L; amd §1.20, add §160.46, CP L; amd §§71 & 141, add §141-a, Cor L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S745, S745
2009-2010: S3407, S3407

Sponsor 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 avail-
able 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 respon-
sible 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 effec-
tive 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 preventa-
tive vein that this bill calls for the testing of all currently incar-
cerated 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.

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

                                 2189--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            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,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06427-02-3

S. 2189--A                          2

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

S. 2189--A                          3

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

S. 2189--A                          4

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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