S T A T E O F N E W Y O R K
________________________________________________________________________
2217
2009-2010 Regular Sessions
I N A S S E M B L Y
January 15, 2009
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Introduced by M. of A. CALHOUN, ALFANO, KOLB, BARRA -- Multi-Sponsored
by -- M. of A. CONTE, CROUCH, ERRIGO, FINCH, TEDISCO -- read once and
referred to the Committee on Codes
AN ACT to amend the criminal procedure law and the penal law, in
relation to authorizing court ordered blood testing of violent felons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new arti-
cle 165 to read as follows:
ARTICLE 165--COURT AUTHORIZED BLOOD TESTING
SECTION 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF CERTAIN OFFEN-
DERS.
S 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF CERTAIN OFFENDERS.
1. UPON MOTION OF THE PROSECUTOR WITH THE CONSENT OF THE VICTIM, OR
UPON MOTION OF THE VICTIM, A SUPERIOR COURT MAY ORDER A DEFENDANT
CHARGED WITH A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE
PENAL LAW, TO UNDERGO A BLOOD TEST FOR ANY TRANSMISSIBLE DISEASE WHERE
THE VICTIM HAS ALLEGEDLY BEEN EXPOSED TO BLOOD OR OTHER BODY FLUIDS OF
THE DEFENDANT, AND WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT SUCH
EXPOSURE OCCURRED DURING THE COMMISSION OF A VIOLENT FELONY OFFENSE OR
AS A PROXIMATE RESULT THERETO.
2. A TRANSMISSIBLE DISEASE SHALL INCLUDE: THE HUMAN IMMUNODEFICIENCY
VIRUS (HIV) OR ANY OF ITS DERIVATIVES; ANY SEXUALLY TRANSMISSIBLE
DISEASE INCLUDING BUT NOT LIMITED TO SYPHILIS, GONORRHEA, LYMPHOGRANULO-
MA VENEREUM, HERPES AND GENITAL WARTS; HEPATITIS AND ANY OF ITS DERIVA-
TIVES; AND ANY OTHER DISEASE WHICH THE COURT FINDS THE VICTIM COULD HAVE
A REASONABLE EXPECTATION OF CONTRACTING FROM THE ALLEGED OFFENDER AS A
RESULT OF THE ALLEGED EXPOSURE.
3. UPON RECEIVING AN APPLICATION FOR AN ORDER AUTHORIZING A BLOOD
TEST PURSUANT TO THIS SECTION, THE COURT SHALL ENTER AN ORDER DIRECTING
THAT ALL PLEADINGS, PAPERS, AFFIDAVITS, JUDGMENTS, ORDERS OF THE COURT,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02313-01-9
A. 2217 2
BRIEFS AND MEMORANDA OF LAW WHICH ARE PART OF THE APPLICATION OR THE
DECISION THEREON, BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON, EXCEPT
TO THE EXTENT NECESSARY TO CONDUCT ANY PROCEEDINGS IN CONNECTION WITH
THE DETERMINATION OF WHETHER TO GRANT OR DENY THE APPLICATION, INCLUDING
ANY APPEAL. SUCH AN ORDER SHALL FURTHER DIRECT THAT ALL SUBSEQUENT
PROCEEDINGS IN CONNECTION WITH THE APPLICATION SHALL BE CONDUCTED IN
CAMERA, AND, WHERE APPROPRIATE TO PREVENT THE UNAUTHORIZED DISCLOSURE OF
CONFIDENTIAL BLOOD TEST RELATED INFORMATION, THAT ANY PLEADINGS, PAPERS,
AFFIDAVITS, JUDGMENTS, ORDERS OF THE COURT, BRIEFS AND MEMORANDA OF LAW
WHICH ARE PART OF THE APPLICATION OR THE DECISION THEREON, NOT STATE THE
NAME OF THE DEFENDANT WHO IS THE PROPOSED SUBJECT OF THE BLOOD TEST.
4. IN ASSESSING THE APPLICATION THE COURT SHALL PROVIDE WRITTEN FIND-
INGS OF FACT, INCLUDING SCIENTIFIC OR MEDICAL FINDINGS, CITING SPECIFIC
EVIDENCE IN THE RECORD WHICH SUPPORTS EACH FINDING, AND SHALL WEIGH THE
APPLICANT'S NEED FOR THE INFORMATION TO BE OBTAINED FROM COURT ORDERED
BLOOD TESTING AGAINST THE POTENTIAL HARM TO THE DEFENDANT WHICH MAY
RESULT FROM THE COURT ORDERED BLOOD TESTING.
5. AT ANY TIME PRIOR TO, OR DURING THE PENDENCY OF AN APPLICATION FOR
A BLOOD TEST UNDER THIS SECTION, THE DEFENDANT MAY CONSENT TO SUBMIT TO
A VOLUNTARY BLOOD TEST, TO SCREEN FOR THE DISEASES AS REQUESTED BY THE
VICTIM. THE RESULTS OF SUCH VOLUNTARY BLOOD TESTS SHALL BE PROVIDED TO
THE VICTIM, THE COURT, AND ALL PARTIES IN THE CRIMINAL PROCEEDING AND
SHALL THEREAFTER BE PROVIDED WITH THE SAME DEGREE OF CONFIDENTIALITY AS
IF THE BLOOD TEST HAD BEEN ORDERED BY THE COURT. UPON THE SUBMISSION OF
THE ALLEGED VIOLENT FELONY OFFENDER TO A VOLUNTARY BLOOD TEST, ANY
APPLICATION FOR A COURT ORDERED TEST SHALL BE DEEMED WITHDRAWN. UNLESS
THE VICTIM OR ANOTHER THIRD PARTY AGREES IN WRITING TO PAY FOR THE COST
OF A VOLUNTARY BLOOD TEST, ALL SUCH COSTS SHALL BE PAID FOR BY THE
DEFENDANT.
6. THE COURT, IN GRANTING AN APPLICATION FOR AN ORDER AUTHORIZING A
BLOOD TEST PURSUANT TO THIS SECTION, SHALL SPECIFY THE DISEASES TO BE
SCREENED FOR BY SUCH TEST, AND SHALL ORDER SUCH REASONABLE MEASURES AS
IT DEEMS NECESSARY TO PREVENT THE UNAUTHORIZED DISCLOSURE OF CONFIDEN-
TIAL BLOOD TEST RELATED INFORMATION. THE COST OF A COURT ORDERED BLOOD
TEST SHALL BE PAID FROM THE CRIMINAL JUSTICE IMPROVEMENT ACCOUNT, ESTAB-
LISHED PURSUANT TO SECTION NINETY-SEVEN-BB OF THE STATE FINANCE LAW, AND
IN THE EVENT OF A CONVICTION, THE COST OF SUCH BLOOD TEST SHALL BE
DEEMED A MANDATORY SURCHARGE ASSESSED AGAINST THE DEFENDANT PURSUANT TO
SECTION 60.35 OF THE PENAL LAW.
7. NO INFORMATION OBTAINED OR DISCOVERED DURING A HEARING ON AN APPLI-
CATION PURSUANT TO THIS SECTION OR AS A RESULT OF A COURT ORDER ISSUED
PURSUANT TO THIS SECTION RELATING TO THE VIOLENT FELONY OFFENDER'S
SUBMISSION TO A BLOOD TEST MAY BE USED AS EVIDENCE IN THE TRIAL OF THE
ALLEGED VIOLENT FELONY OFFENDER.
S 2. Paragraph (a) of subdivision 1 of section 60.35 of the penal law,
is amended by adding a new subparagraph (vi) to read as follows:
(VI) A PERSON CONVICTED OF A VIOLENT FELONY OFFENSE, AS DEFINED IN
SECTION 70.02 OF THIS CHAPTER, OR WHO IS CHARGED WITH SUCH A VIOLENT
FELONY OFFENSE AND WHO ACCEPTS A PLEA BARGAIN, SHALL PAY THE COSTS OF
ANY BLOOD TEST AUTHORIZED PURSUANT TO SECTION 165.00 OF THE CRIMINAL
PROCEDURE LAW.
S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.