senate Bill S4487

Relates to the testing of certain criminal defendants for HIV

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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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actions

  • 03 / Apr / 2013
    • REFERRED TO CODES
  • 29 / May / 2013
    • 1ST REPORT CAL.781
  • 30 / May / 2013
    • 2ND REPORT CAL.
  • 03 / Jun / 2013
    • ADVANCED TO THIRD READING
  • 04 / Jun / 2013
    • PASSED SENATE
  • 04 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 04 / Jun / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Relates to the testing of certain criminal defendants for HIV.

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Bill Details

See Assembly Version of this Bill:
A9835
Versions:
S4487
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §210.16, CP L

Sponsor Memo

BILL NUMBER:S4487 REVISED 04/03/13

TITLE OF BILL: An act to amend the criminal procedure law, in
relation to the testing of certain criminal defendants for human
immunodeficiency virus

Purpose of Bill:

This bill would amend the Criminal Procedure Law to authorize a court
to order a defendant to submit to human immunodeficiency virus (HIV)
testing within 48 hours of the filing of an indictment or superior
court information charging the defendant with certain enumerated sex
offenses.

Summary of Provisions:

Section one of the bill would amend Criminal Procedure Law § 210.16 to
require that, upon a victim's request, a post-indictment HIV test be
conducted within 48 hours of the filing of the indictment that charges
a defendant with a crime involving sexual intercourse, anal sexual
conduct or oral sexual conduct. Results of such testing would be
provided to the victim and the defendant as soon as practicable, and
the victim may request that the defendant submit to any medically
appropriate follow-up tests. The county would be responsible for
paying any fee assessed for conducting the test.

Section two of the bill provides that it shall take effect
immediately.

Existing Law:

Criminal Procedure Law § 210.16 allows the victim of a sex offense to
petition for an order requiring that the defendant be tested for HIV
within six months of the date that the crime occurred. The court may
order the testing only on a finding that the result would provide a
medical benefit to the victim. Follow-up tests may be ordered within
six months of the date that the crime occurred.

Prior Legislative History:

This is a new bill.

Statement in Support:

This bill will allow sex crime victims to request information about
their abuser's HIV status at a much earlier time than now permitted
under law. By obtaining test results earlier, victims may make more
intelligent medical choices with respect to prophylaxis treatments and
the likelihood of their exposure to HIV.

Moreover, this bill is necessary to obtain the full amount of federal
Grants to Encourage Arrest Policies (GTEAP). The existing New York
State law authorizing the HIV testing of certain defendants, Criminal
Procedure Law § 210.16, has been determined by the federal government
to be insufficient because the victim is not entitled to request an
HIV test within 48 hours of the filing of an indictment. This failure
resulted in a loss of 5% of GTEAP funds in the 2009/2010 grant period,


for a total of $533,555 statewide. In 2011, New York State entities
lost over $150,000. The failure to enact a compliant statute will
cause the State to again lose 5% of GTEAP funds in the 2013/2014 grant
period and in future years. In the past, New York State has received
grant amounts ranging from $700,000 to $1,500,000. Other entities in
New York State, including District Attorneys, also are eligible to
apply for GTEAP funds. These entities also will be affected if this
law is not enacted.

Budget Implications:

This bill will have a negligible fiscal impact on counties, which
would be required to pay any fee assessed for the court-ordered HIV
testing. This testing is relatively inexpensive.

Effective Date:

This bill would take effect immediately.

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

                                  4487

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 3, 2013
                               ___________

Introduced  by  Sen. NOZZOLIO -- (at request of the Division of Criminal
  Justice Services) -- 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.  Section 210.16 of the criminal procedure law, as added by
chapter 571 of the laws of 2007, is amended to read as follows:
S 210.16 Requirement of HIV related testing in certain cases.
  1. (a) In a case where an indictment or a superior  court  information
has  been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one  hundred  thirty
of  the  penal  law  where  an act of "sexual intercourse", "oral sexual
conduct" or "anal sexual conduct," as those terms are defined in section
130.00 of the penal law, is required as an  essential  element  for  the
commission thereof, the court shall, upon a request of the victim, with-
in  [six  months  of  the date of the crimes charged,] FORTY-EIGHT HOURS
order that the defendant submit to human  immunodeficiency  virus  (HIV)
related  testing.    [Testing  of  a defendant shall be ordered when the
result would provide medical benefit to the victim  or  a  psychological
benefit to the victim. Medical benefit shall be found when the following
elements  are  satisfied:  (i)  a  decision  is pending about beginning,
continuing, or discontinuing a medical intervention for the victim;  and
(ii)  the  result  of an HIV test of the accused could affect that deci-
sion, and could provide relevant information beyond that which would  be
provided  by  an  HIV test of the victim. If testing the defendant would
provide medical benefit to the victim or a psychological benefit to  the
victim,  then the] THE testing is to be conducted by a state, county, or
local public health officer designated by the order.  ANY  FEE  ASSESSED
FOR  CONDUCTING  THE TEST SHALL BE PAID FOR BY THE COUNTY. Test results,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09339-01-3

S. 4487                             2

which shall not be disclosed to the court, shall be communicated to  the
defendant  and  the  victim named in the order AS SOON AS PRACTICABLE in
accordance with the provisions of section twenty-seven  hundred  eighty-
five-a of the public health law.
  (b)  For  the purposes of this section, the terms "victim" and "appli-
cant" mean the person with whom the defendant is charged to have engaged
in an act of "sexual intercourse", "oral sexual conduct" or "anal sexual
conduct", as those terms are defined in section 130.00 of the penal law,
where such conduct with such victim  was  the  basis  for  charging  the
defendant  with  an  offense specified in paragraph (a) of this subdivi-
sion.
  2. Any request made by the victim pursuant to this section must be  in
writing[,  filed  with  the  court  within six months of the date of the
crimes charged,] and provided by the court to the defendant  or  his  or
her  counsel. The request [must] MAY be filed with the court prior to or
within forty-eight hours after the indictment or superior court informa-
tion 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].   IF THE REQUEST IS FILED PRIOR TO THE FILING OF AN INDICTMENT
OR SUPERIOR COURT INFORMATION, THE COURT SHALL NOT ACT  ON  THE  REQUEST
UNTIL SUCH INDICTMENT OR SUPERIOR COURT INFORMATION IS FILED.
  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 paragraph (a) of subdivision one of  this  section,
the  victim  may  request  that  the defendant submit to a follow-up HIV
related test AS MAY BE MEDICALLY APPROPRIATE.  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  adminis-
tered  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  may  be  made by the victim but, if the victim is an
infant or incompetent person, the application may  also  be  made  by  a
representative  as  defined  in  section twelve hundred one of the civil
practice law and rules. The application must state that: (a) the  appli-
cant was the victim of the offense enumerated in paragraph (a) of subdi-
vision  one  of  this section of which the defendant is charged; and (b)
the applicant has been offered pre-HIV test counseling and post-HIV test
counseling by a public health officer in accordance with  article  twen-
ty-seven-F  of the public health law and has been advised, in accordance
with any guidelines that may be issued by the commissioner of health, of
(i) the limitations on the information to be  obtained  through  an  HIV
test on the proposed subject; (ii) current scientific assessments of the

S. 4487                             3

risk of transmission of HIV from the exposure he or she may have experi-
enced; and (iii) the need for the applicant to undergo HIV related test-
ing to definitively determine his or her HIV status.
  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 AS SOON AS PRACTICABLE  subject
to  the  following  limitations,  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; redisclosure shall be permitted only  to  the  victim,  the
victim's  immediate  family, guardian, physicians, attorneys, medical or
mental health providers and to his or her past and  future  contacts  to
whom there was or is a reasonable risk of HIV transmission and shall not
be permitted to any other person or the court.
  (b)  Unless  inconsistent  with  this section, the court's order shall
direct compliance with and conform to the provisions of article  twenty-
seven-F  of  the public health law. Such 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 meas-
ures as the court deems necessary to protect confidential information.
  8. Any failure to comply  with  the  provisions  of  this  section  or
section  twenty-seven  hundred  eighty-five-a  of  the public health law
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 paragraph
(a) of subdivision 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 and shall permit court-
ordered testing of persons against whom an indictment or superior  court
information has been filed on or after such effective date.

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