S T A T E O F N E W Y O R K
________________________________________________________________________
6583
2009-2010 Regular Sessions
I N A S S E M B L Y
March 6, 2009
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Introduced by M. of A. BURLING, MILLER, CALHOUN, ERRIGO, HAYES, KOLB,
FINCH, GIGLIO, HAWLEY, BALL, TOBACCO, SPANO, WALKER -- Multi-Sponsored
by -- M. of A. ALFANO, BARCLAY, BARRA, CROUCH, DUPREY, FITZPATRICK,
McDONOUGH, McKEVITT, MOLINARO, OAKS, QUINN, RAIA, REILICH, SAYWARD --
read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law and the public health law, in
relation to providing for human immunodeficiency virus testing of sex
offenders and disclosure of the results to victims of sex offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The legislature finds that sex offenses are occurring with
alarming frequency; that sex crimes have a lifelong dehumanizing and
traumatizing effect on victims; with the increased incidence of the
acquired immune deficiency syndrome virus (AIDS) in New York, victims of
sex offenses can contract the human immunodeficiency virus from their
attackers. These victims have a right to know if they are at risk.
The purpose of this act is to facilitate identification of sex offen-
ders carrying the AIDS virus in order to notify the victims of such
offenses of the possibility of contracting the virus from their attack-
ers.
S 2. The criminal procedure law is amended by adding a new section
210.52 to read as follows:
S 210.52 RESULTS OF BLOOD SPECIMENS.
UPON MOTION OF THE PROSECUTOR, WITH THE CONSENT OF THE COMPLAINANT AND
SUBJECT TO CONSTITUTIONAL LIMITATION, THE COURT IN WHICH THERE IS PEND-
ING AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION
OR INFORMATION CHARGING A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE
PENAL LAW MAY:
1. ORDER THE TAKING OF SAMPLES OF BLOOD FROM DEFENDANT'S BODY IN A
MANNER NOT INVOLVING AN UNREASONABLE INTRUSION THEREOF OR A RISK OF
SERIOUS PHYSICAL INJURY THERETO.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06261-01-9
A. 6583 2
THIS SUBDIVISION SHALL NOT BE CONSTRUED TO LIMIT, EXPAND, OR OTHERWISE
AFFECT THE ISSUANCE OF A SIMILAR COURT ORDER, AS MAY BE AUTHORIZED BY
LAW, BEFORE THE FILING OF AN ACCUSATORY INSTRUMENT CONSISTENT WITH SUCH
RIGHTS AS THE DEFENDANT MAY DERIVE FROM THE CONSTITUTION OF THIS STATE
OR OF THE UNITED STATES.
2. BLOOD SPECIMENS REQUIRED BY SUBDIVISION ONE OF THIS SECTION SHALL
BE TAKEN IN THE MANNER PRESCRIBED IN SECTION 210.53 OF THIS ARTICLE.
3. SUCH BLOOD SPECIMENS SHALL BE FORWARDED TO THE DIVISION OF CRIMINAL
JUSTICE SERVICES WHICH SHALL CONTRACT WITH LABORATORIES AND ESTABLISH
REGULATIONS FOR TESTING TO DETERMINE THE PRESENCE OR ABSENCE OF THE
HUMAN IMMUNODEFICIENCY VIRUS (HIV).
4. UPON COMPLETION OF SUCH TESTING, THE RESULTS SHALL BE FORWARDED TO
THE PROSECUTOR WHO SHALL, UPON REQUEST OF THE COMPLAINANT AND/OR THE
DEFENDANT, REVEAL THE RESULTS TO SUCH INDIVIDUAL. OTHER THAN NOTIFICA-
TION OF THE VICTIM AND/OR DEFENDANT, THE TEST RESULTS SHALL BE HELD
CONFIDENTIAL PURSUANT TO THE PROVISIONS OF ARTICLE TWENTY-SEVEN-F OF THE
PUBLIC HEALTH LAW.
5. TEST RESULTS SHALL NOT BE ADMISSIBLE AT DEFENDANT'S TRIAL.
S 3. The criminal procedure law is amended by adding a new section
210.53 to read as follows:
S 210.53 PROCEDURE FOR TAKING BLOOD SPECIMENS.
1. (A) WHEN THE TAKING OF BLOOD SPECIMENS IS REQUIRED PURSUANT TO THE
PROVISIONS OF SECTION 210.52 OF THIS ARTICLE, THE FOLLOWING PERSONS MAY
WITHDRAW BLOOD FOR THE PURPOSE OF CONDUCTING AN ANALYSIS TO DETERMINE
THE PRESENCE OR ABSENCE OF THE HUMAN IMMUNODEFICIENCY VIRUS BY THE
DEPARTMENT OF CRIMINAL JUSTICE SERVICES: (I) A PHYSICIAN, A REGISTERED
PROFESSIONAL NURSE OR A REGISTERED PHYSICIAN'S ASSISTANT; OR (II) UNDER
THE SUPERVISION AND AT THE DIRECTION OF A PHYSICIAN, A MEDICAL LABORATO-
RY TECHNICIAN OR MEDICAL TECHNOLOGIST AS CLASSIFIED BY CIVIL SERVICE, A
PHLEBOTOMIST, AN ADVANCED EMERGENCY MEDICAL TECHNICIAN AS CERTIFIED BY
THE DEPARTMENT OF HEALTH, OR A MEDICAL LABORATORY TECHNICIAN OR MEDICAL
TECHNOLOGIST EMPLOYED BY A CLINICAL LABORATORY APPROVED UNDER TITLE FIVE
OF ARTICLE FIVE OF THE PUBLIC HEALTH LAW.
(B) NO PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO PARAGRAPH (A) OF
THIS SUBDIVISION OR HOSPITAL, CLINIC OR TREATMENT CENTER EMPLOYING SUCH
PERSON, AND NO OTHER EMPLOYER OF SUCH PERSON SHALL BE SUED OR HELD
LIABLE FOR ANY ACT DONE OR OMITTED IN THE COURSE OF WITHDRAWING BLOOD
PURSUANT TO THIS SECTION.
(C) ANY PERSON WHO MAY HAVE A CAUSE OF ACTION ARISING FROM THE WITH-
DRAWAL OF BLOOD PURSUANT TO THIS SUBDIVISION, FOR WHICH NO PERSONAL
LIABILITY EXISTS UNDER PARAGRAPH (B) OF THIS SUBDIVISION, MAY MAINTAIN
SUCH ACTION AGAINST THE STATE. NO ACTION SHALL BE MAINTAINED PURSUANT TO
THIS PARAGRAPH UNLESS A NOTICE OF CLAIM HAS BEEN DULY SERVED IN COMPLI-
ANCE WITH THE REQUIREMENTS SET FORTH IN SECTION FIFTY-E OF THE GENERAL
MUNICIPAL LAW.
(D) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION TO THE CONTRA-
RY, AN ACTION MAY BE MAINTAINED BY THE STATE AGAINST A PERSON ENTITLED
TO WITHDRAW BLOOD PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION OR
HOSPITAL EMPLOYING SUCH PERSON FOR WHOSE ACT OR OMISSION THE STATE HAS
BEEN HELD LIABLE UNDER THIS SUBDIVISION TO RECOVER DAMAGES, NOT EXCEED-
ING THE AMOUNT AWARDED TO THE CLAIMANT, THAT MAY HAVE BEEN SUSTAINED BY
THE STATE BY REASON OF GROSS NEGLIGENCE OR BAD FAITH ON THE PART OF SUCH
PERSON.
(E) THE PROVISIONS OF PARAGRAPHS (B), (C) AND (D) OF THIS SUBDIVISION
SHALL ALSO APPLY TO ANY PERSON EMPLOYED BY A HOSPITAL AS SECURITY
A. 6583 3
PERSONNEL FOR ANY ACT PERFORMED OR OMITTED IN THE COURSE OF WITHDRAWING
BLOOD PURSUANT TO A COURT ORDER.
2. THE DEPARTMENT OF HEALTH SHALL ISSUE AND FILE RULES AND REGULATIONS
APPROVING SATISFACTORY TECHNIQUES OR METHODS OF CONDUCTING ANALYSES OF A
PERSON'S BLOOD TO DETERMINE THE PRESENCE OR ABSENCE OF THE HUMAN IMMUNO-
DEFICIENCY VIRUS AND TO ASCERTAIN THE QUALIFICATIONS AND COMPETENCE OF
INDIVIDUALS TO CONDUCT AND SUPERVISE ANALYSES OF A PERSON'S BLOOD TO
DETERMINE THE PRESENCE OF THE ACQUIRED IMMUNE DEFICIENCY SYNDROME (HERE-
AFTER REFERRED TO AS AIDS). IF THE ANALYSES WERE MADE BY AN INDIVIDUAL
POSSESSING A PERMIT ISSUED BY THE DEPARTMENT OF HEALTH, THIS SHALL BE
PRESUMPTIVE EVIDENCE THAT THE ANALYSES WERE PROPERLY PERFORMED.
3. BLOOD SPECIMENS SHALL BE DRAWN AND COLLECTED IN A MANNER PRESCRIBED
BY THE DIVISION OF CRIMINAL JUSTICE SERVICES, WHICH DEPARTMENT SHALL
PROVIDE SPECIMEN VIALS, MAILING TUBES, LABELS AND INSTRUCTIONS FOR THE
COLLECTION OF BLOOD SPECIMENS.
4. THE BLOOD SPECIMENS SHALL BE FORWARDED TO THE DIVISION OF CRIMINAL
JUSTICE SERVICES OR TO A LABORATORY DESIGNATED BY SUCH DIVISION FOR
ANALYSIS TO DETERMINE THE PRESENCE OR ABSENCE OF THE AIDS VIRUS.
S 4. Paragraphs (n), (o) and (p) of subdivision 1 of section 2782 of
the public health law, paragraphs (n) and (o) as added by chapter 584 of
the laws of 1988 and paragraph (p) as added by chapter 592 of the laws
of 1990, are amended and a new subdivision (q) is added to read as
follows:
(n) a medical director of a local correctional facility as defined in
section forty of the correction law, in accordance with paragraph (a) of
subdivision two of section twenty-seven hundred eighty-six of this arti-
cle, to the extent the medical director is authorized to access records
containing such information in order to carry out his or her functions,
powers and duties with respect to the protected individual; [or]
(o) an employee or agent of the commission of correction, in accord-
ance with paragraph (a) of subdivision two of section twenty-seven
hundred eighty-six of this article, to the extent the employee or agent
is authorized to access records containing such information in order to
carry out the commission's functions, powers and duties with respect to
the protected individual, pursuant to article three of the correction
law[.];
(p) a law guardian, appointed to represent a minor pursuant to the
social services law or the family court act, with respect to confiden-
tial HIV related information relating to the minor and for the purpose
of representing the minor. If the minor has the capacity to consent, the
law guardian may not redisclose confidential HIV related information
without the minor's permission. If the minor lacks capacity to consent,
the law guardian may redisclose confidential HIV related information for
the sole purpose of representing the minor. This paragraph shall not
limit a law guardian's ability to seek relief under section twenty-seven
hundred eighty-five of this [chapter.] ARTICLE; OR
(Q) THE COMPLAINANT AND DEFENDANT AS SET FORTH IN SUBDIVISION FOUR OF
SECTION 210.52 OF THE CRIMINAL PROCEDURE LAW.
S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.