LBD01494-01-9
A. 749 2
VISION ONE-A OF THIS SECTION, "PETITIONER" SHALL ALSO INCLUDE A PERSON
WHO ALLEGES IN A COMPLAINT FILED WITH AN APPROPRIATE LOCAL OR STATE LAW
ENFORCEMENT AGENCY THAT HE OR SHE WAS EXPOSED TO THE BODILY FLUID OF AN
UNAPPREHENDED PERPETRATOR DURING, OR AS A PROXIMATE RESULT OF, THE
COMMISSION OF AN OFFENSE DESCRIBED IN PARAGRAPH (E) OF THIS SUBDIVISION
OR PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION.
(D) "TRANSMISSIBLE DISEASE" MEANS THE HUMAN IMMUNODEFICIENCY VIRUS
(HIV) OR ANY OF ITS DERIVATIVES, SYPHILIS, GONORRHEA, LYMPHOGRANULOMA
VENEREUM, HERPES, GENITAL WARTS, OR HEPATITIS AND ANY OF ITS DERIVA-
TIVES.
(E) "QUALIFYING OFFENSE" MEANS: A VIOLENT FELONY OFFENSE AS DEFINED IN
SECTION 70.02 OF THE PENAL LAW; ASSAULT IN THE THIRD DEGREE AS DEFINED
IN SECTION 120.00 OF THE PENAL LAW; ASSAULT IN THE SECOND DEGREE AS
DEFINED IN SECTION 120.05 OF THE PENAL LAW; AGGRAVATED ASSAULT UPON A
PERSON LESS THAN ELEVEN YEARS OLD AS DEFINED IN SECTION 120.12 OF THE
PENAL LAW; SEXUAL ABUSE IN THE THIRD DEGREE, AS DEFINED IN SECTION
130.55 OF THE PENAL LAW; SEXUAL ABUSE IN THE SECOND DEGREE, AS DEFINED
IN SECTION 130.60 OF THE PENAL LAW; RAPE IN THE THIRD DEGREE AS DEFINED
IN SECTION 130.25 OF THE PENAL LAW; RAPE IN THE SECOND DEGREE AS DEFINED
IN SECTION 130.30 OF THE PENAL LAW; CRIMINAL SEXUAL ACT IN THE THIRD
DEGREE AS DEFINED IN SECTION 130.40 OF THE PENAL LAW; CRIMINAL SEXUAL
ACT IN THE SECOND DEGREE AS DEFINED IN SECTION 130.45 OF THE PENAL LAW;
PERSISTENT SEXUAL ABUSE AS DEFINED IN SECTION 130.53 OF THE PENAL LAW;
AGGRAVATED SEXUAL ABUSE IN THE FOURTH DEGREE AS DEFINED IN SECTION
130.65-A OF THE PENAL LAW; FEMALE GENITAL MUTILATION AS DEFINED IN
SECTION 130.85 OF THE PENAL LAW; FACILITATING A SEX OFFENSE WITH A
CONTROLLED SUBSTANCE AS DEFINED IN SECTION 130.90 OF THE PENAL LAW;
HARASSMENT IN THE SECOND DEGREE, AS DEFINED IN SUBDIVISION ONE OF
SECTION 240.26 OF THE PENAL LAW; AGGRAVATED HARASSMENT IN THE SECOND
DEGREE, AS DEFINED IN SUBDIVISION THREE OF SECTION 240.30 OF THE PENAL
LAW; AGGRAVATED HARASSMENT IN THE FIRST DEGREE, AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 240.31 OF THE PENAL LAW; AGGRAVATED HARASSMENT OF AN
EMPLOYEE BY AN INMATE AS DEFINED IN SECTION 240.32 OF THE PENAL LAW;
INCEST IN THE THIRD DEGREE AS DEFINED IN SECTION 255.25 OF THE PENAL
LAW; INCEST IN THE SECOND DEGREE AS DEFINED IN SECTION 255.26 OF THE
PENAL LAW; AND INCEST IN THE FIRST DEGREE AS DEFINED IN SECTION 255.27
OF THE PENAL LAW.
(F) "BODILY FLUID" SHALL HAVE ITS ORDINARY MEANING EXCEPT THAT, WHERE
THE SPECIFIED TRANSMISSIBLE DISEASE FOR WHICH TESTING IS SOUGHT IS HUMAN
IMMUNODEFICIENCY VIRUS (HIV) OR ANY OF ITS DERIVATIVES, "BODILY FLUID"
SHALL MEAN BLOOD OR SEMEN.
1-A. A VICTIM OR PETITIONER, AS DEFINED IN PARAGRAPHS (B) AND (C) OF
SUBDIVISION ONE OF THIS SECTION, OR AN ATTORNEY ACTING ON THEIR BEHALF,
MAY DIRECT A REQUEST FOR A TRANSMISSIBLE DISEASE TEST TO DETERMINE HIS
OR HER TRANSMISSIBLE DISEASE STATUS TO THE CHIEF CITY OR COUNTY PUBLIC
HEALTH OFFICIAL OF THE JURISDICTION WHERE HE OR SHE RESIDES OR WHERE THE
VICTIM OR PETITIONER BELIEVES HE OR SHE MAY HAVE CONTRACTED SUCH TRAN-
SMISSIBLE DISEASE. SUCH OFFICIAL SHALL, UPON SUCH REQUEST, AUTHORIZE
THE VICTIM OR PETITIONER TO UNDERGO PROMPT, READILY ACCESSIBLE AND
SCIENTIFICALLY RECOGNIZED LABORATORY TESTING INCLUDING, WHERE APPROPRI-
ATE, POLYMERASE CHAIN REACTION (PCR) OR OTHER ADVANCED TESTING TECHNOLO-
GIES, FOR THE DIAGNOSIS OF TRANSMISSIBLE DISEASES AT STATE EXPENSE,
PURSUANT TO SECTION TWENTY-SEVEN HUNDRED EIGHTY-FIVE-B OF THE PUBLIC
HEALTH LAW. NOTHING IN THIS SUBDIVISION SHALL PRECLUDE OR LIMIT A COURT
FROM GRANTING AN APPLICATION FOR THE TESTING OF A DEFENDANT PURSUANT TO
THIS SECTION OR ANY OTHER APPLICABLE LAW.
A. 749 3
2. (a) In any case where [the] A defendant is convicted of a felony
offense enumerated in any section of article one hundred thirty of the
penal law, or any subdivision of section 130.20 of such 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 must, upon a request of the victim, order that the defendant
submit to [human immunodeficiency (HIV) related] testing[. The testing
is to be conducted by a state, county, or local public health officer
designated by the order. Test results, which shall not be disclosed to
the court, shall be communicated to the defendant and the victim named
in the order in accordance with the provisions of section twenty-seven
hundred eighty-five-a of the public health law, but such results and
disclosure need not be completed prior to the imposition of sentence.
(b) For the purposes of this section, the terms "defendant",
"conviction" and "sentence" mean and include, respectively, an "eligible
youth," a "youthful offender finding" and a "youthful offender sentence"
as those terms are defined in section 720.10 of this chapter. The term
"victim" means the person with whom the defendant 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 the defendant's conviction of
an offense specified in paragraph (a) of this subdivision] OF HIS OR HER
BLOOD FOR THE PRESENCE OF ONE OR MORE TRANSMISSIBLE DISEASES.
[2.] (B) IN ANY CASE WHERE A DEFENDANT (I) IS CONVICTED OF A QUALIFY-
ING OFFENSE AS DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE OF THIS
SECTION, OR (II) STANDS CHARGED BY AN ACCUSATORY INSTRUMENT WITH A QUAL-
IFYING OFFENSE AS DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE OF THIS
SECTION OR AN OFFENSE DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION;
AND THE COURT HAS MADE A FINDING PURSUANT TO PARAGRAPH (B) OF SUBDIVI-
SION SIX OF THIS SECTION, THE COURT SHALL, UPON REQUEST OF THE PETITION-
ER AND PURSUANT TO THIS SECTION, ORDER THE DEFENDANT TO SUBMIT TO TEST-
ING OF HIS OR HER BLOOD FOR THE PRESENCE OF ONE OR MORE TRANSMISSIBLE
DISEASES.
(C) THE TESTING OF BLOOD PURSUANT TO THIS SECTION IS TO BE ARRANGED BY
A STATE, COUNTY, OR LOCAL PUBLIC HEALTH OFFICER DESIGNATED BY THE ORDER.
TEST RESULTS, WHICH SHALL NOT BE DISCLOSED TO THE COURT, SHALL BE COMMU-
NICATED TO THE DEFENDANT AND TO THE PETITIONER OR VICTIM NAMED IN THE
ORDER IN ACCORDANCE WITH THE PROVISIONS OF SECTION TWENTY-SEVEN HUNDRED
EIGHTY-FIVE-A OF THE PUBLIC HEALTH LAW.
(D) WHEN A REQUEST FOR TESTING OF A DEFENDANT IS RECEIVED BY A COURT
PURSUANT TO THIS SECTION, THE COURT SHALL ADVISE THE VICTIM OR PETITION-
ER OF THE AVAILABILITY OF PROMPT, READILY ACCESSIBLE AND SCIENTIFICALLY
RECOGNIZED LABORATORY TESTING OF SUCH VICTIM OR PETITIONER FOR THE DIAG-
NOSIS OF TRANSMISSIBLE DISEASES AT STATE EXPENSE PURSUANT TO SUBDIVISION
ONE-A OF THIS SECTION.
3. (A) Any request made [by the victim] pursuant to PARAGRAPH (A) OF
SUBDIVISION TWO OF this section must be in writing, filed with the court
and provided by the court to the defendant or his or her counsel. The
request must be filed with the court prior to or within ten days after
entry of the defendant's conviction; provided that, for good cause
shown, the court may permit such request to be filed at any time before
sentence is imposed.
[3.] (B) THE DISTRICT ATTORNEY SHALL REPRESENT THE PETITIONER BEFORE
THE COURT. ANY REQUEST MADE BY A PETITIONER PURSUANT TO SUBPARAGRAPH (I)
OF PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION MUST BE IN WRITING,
A. 749 4
FILED WITH THE COURT AND PROVIDED BY THE COURT TO THE DEFENDANT AND HIS
OR HER COUNSEL. SUCH REQUEST MUST BE FILED WITH THE COURT PRIOR TO OR
WITHIN TEN DAYS AFTER ENTRY OF THE DEFENDANT'S CONVICTION; PROVIDED
THAT, FOR GOOD CAUSE SHOWN, THE COURT MAY PERMIT SUCH REQUEST TO BE
FILED AT ANY TIME BEFORE SENTENCE IS IMPOSED. WHERE THE REQUEST IS
PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (B) OF SUBDIVISION TWO OF
THIS SECTION, SUCH REQUEST MUST BE IN WRITING, AND MUST BE SERVED AND
FILED WITH THE COURT PRIOR TO THE DEFENDANT'S ENTERING A PLEA OF GUILTY
OR THE RENDERING OF A VERDICT AFTER TRIAL. WHERE A CRIMINAL ACTION IS
TERMINATED IN A MANNER OTHER THAN BY A PLEA OF GUILTY OR A VERDICT AFTER
TRIAL, A REQUEST PURSUANT TO SUCH SUBPARAGRAPH (II) MUST BE SERVED AND
FILED WITH THE COURT PRIOR TO SUCH TERMINATION.
(C) A REQUEST FOR TESTING PURSUANT TO THIS SUBDIVISION MAY BE HEARD
AND DETERMINED ONLY IN A COURT OF RECORD HAVING JURISDICTION OVER THE
OFFENSE CHARGED. IF THE COURT IN WHICH THE CRIMINAL ACTION IS PENDING IS
NOT A COURT OF RECORD, AND THE REQUEST FOR TESTING IS FILED IN SUCH
COURT, SUCH COURT SHALL PROMPTLY TRANSFER THE APPLICATION TO A COURT OF
RECORD WHICH HAS CONCURRENT JURISDICTION OVER THE OFFENSE CHARGED, FOR
THE SOLE PURPOSE OF HEARING AND DETERMINING THE APPLICATION.
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.
[4.] 5. (A) The application for an order to compel a [convicted
person] DEFENDANT to undergo [an HIV related test] A BLOOD TEST FOR A
TRANSMISSIBLE DISEASE PURSUANT TO THIS SECTION may be made by the victim
OR PETITIONER but, if the victim OR PETITIONER is an infant or incompe-
tent 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] (B) IN THE CASE OF AN APPLICATION PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION TWO OF THIS SECTION, THE application must state that [(a)]
the applicant was the victim of the offense enumerated in SUCH paragraph
(a) [of subdivision one of this section] of which the defendant stands
convicted[; and (b)].
(C) IN THE CASE OF AN APPLICATION PURSUANT TO PARAGRAPH (B) OF SUBDI-
VISION TWO OF THIS SECTION, THE APPLICATION MUST STATE THAT THE PETI-
TIONER MAY HAVE BEEN EXPOSED TO BODILY FLUID OF THE DEFENDANT DURING, OR
AS A PROXIMATE RESULT OF, THE COMMISSION OF OR IN THE COURSE OF FLIGHT
FROM AN OFFENSE DESCRIBED IN SUCH PARAGRAPH IN A MANNER THAT MAY HAVE
INVOLVED TRANSMISSION OF A SPECIFIED TRANSMISSIBLE DISEASE FROM THE
DEFENDANT TO THE PETITIONER.
(D) IN ALL SUCH APPLICATIONS FOR TESTING FILED PURSUANT TO THIS
SECTION, THE APPLICANT MUST ALSO STATE THAT the applicant has been
offered counseling by a public health officer and been advised of (i)
the limitations on the information to be obtained through [an HIV test]
A BLOOD TEST on the proposed subject; (ii) current scientific assess-
ments of the risk of transmission of [HIV] A DISEASE from the exposure
he or she may have experienced[, and]; (iii) the need for the applicant
to undergo [HIV related] testing to definitively determine his or her
[HIV] status WITH REGARD TO ANY DISEASE; AND (IV) WHERE THE REQUEST IS
FOR A TRANSMISSIBLE DISEASE TEST OF THE DEFENDANT, THE AVAILABILITY OF
PROMPT, READILY ACCESSIBLE AND SCIENTIFICALLY RECOGNIZED LABORATORY
TESTING OF THE APPLICANT, INCLUDING, WHERE APPROPRIATE, POLYMERASE CHAIN
A. 749 5
REACTION (PCR) OR OTHER ADVANCED TESTING TECHNOLOGIES, FOR THE DIAGNOSIS
OF TRANSMISSIBLE DISEASES AT STATE EXPENSE PURSUANT TO SUBDIVISION ONE-A
OF THIS SECTION.
[5. The] 6. (A) IN THE CASE OF AN APPLICATION TO TEST A DEFENDANT
PURSUANT TO PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, THE court
shall conduct a hearing only if necessary to determine if the applicant
is the victim of the offense of which the defendant was convicted.
(B) IN THE CASE OF AN APPLICATION TO TEST A DEFENDANT PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION, THE COURT SHALL
CONSIDER SUCH APPLICATION ON AN EXPEDITED BASIS. IF THE APPLICATION
SETS FORTH FACTS SATISFYING THE REQUIREMENTS OF PARAGRAPHS (C) AND (D)
OF SUBDIVISION FIVE OF THIS SECTION, IT SHALL BE GRANTED ON THE PAPERS
AND WITHOUT A HEARING; PROVIDED, HOWEVER, THAT THE COURT SHALL DIRECT AN
IMMEDIATE HEARING WHEN REQUIRED BY, AND IN ACCORDANCE WITH PARAGRAPH (C)
OF THIS SUBDIVISION. AN APPLICATION SETS FORTH FACTS SATISFYING THE
REQUIREMENTS OF PARAGRAPHS (C) AND (D) OF SUBDIVISION FIVE OF THIS
SECTION WHEN THE DISTRICT ATTORNEY CERTIFIES THAT THE DEFENDANT HAS BEEN
EITHER CONVICTED OF A QUALIFYING OFFENSE OR CHARGED BY AN ACCUSATORY
INSTRUMENT WITH A QUALIFYING OFFENSE AND AN AFFIDAVIT SUPPORTED AND
SUBMITTED IN SUPPORT OF THE APPLICATION ASSERTS FACTS SUFFICIENT TO
DEMONSTRATE THAT THE PETITIONER MAY HAVE BEEN EXPOSED TO BODILY FLUID OF
THE DEFENDANT DURING, OR AS A PROXIMATE RESULT OF OR IN THE COURSE OF
FLIGHT FROM THE COMMISSION OF THE QUALIFYING OFFENSE SPECIFIED IN THE
APPLICATION IN A MANNER WHICH MAY HAVE INVOLVED TRANSMISSION FROM THE
DEFENDANT TO THE PETITIONER OF ONE OR MORE SPECIFIED TRANSMISSIBLE
DISEASES.
(C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVI-
SION, THE COURT SHALL DIRECT AN IMMEDIATE HEARING IF THE DEFENDANT FILES
A WRITTEN REQUEST FOR A HEARING, AND SUCH REQUEST CONTAINS SWORN ALLEGA-
TIONS OF FACT, BASED UPON PERSONAL KNOWLEDGE OF THE DEFENDANT OR ANOTHER
PERSON OR PERSONS ESTABLISHING REASONABLE GROUNDS TO BELIEVE THAT
EITHER: (I) THE DEFENDANT DID NOT COMMIT THE QUALIFYING OFFENSE CHARGED
OR A LESSER INCLUDED OFFENSE THEREOF; OR (II) IN THE COURSE OF THE
COMMISSION OF, FLIGHT FROM OR ARREST FOR THE QUALIFYING OFFENSE OR AS A
RESULT THEREOF THE PETITIONER WAS NOT EXPOSED TO BODILY FLUID OF THE
DEFENDANT.
(D) ALL PERSONS GIVING FACTUAL INFORMATION AT SUCH HEARING MUST TESTI-
FY UNDER OATH, EXCEPT THAT UNSWORN EVIDENCE PURSUANT TO SUBDIVISION TWO
OF SECTION 60.20 OF THIS CHAPTER MAY ALSO BE RECEIVED. AT SUCH HEARING,
THE PROSECUTION HAS THE BURDEN OF PERSUASION, AND THE DEFENDANT HAS THE
BURDEN OF GOING FORWARD. IF THE DEFENDANT FAILS TO SATISFY HIS OR HER
BURDEN, THE COURT SHALL NOT TAKE TESTIMONY FROM THE PROSECUTION, BUT
SHALL INSTEAD IMMEDIATELY GRANT THE APPLICATION. NEITHER SWORN ALLEGA-
TIONS OF FACT OF THE DEFENDANT CONTAINED IN A WRITTEN REQUEST FOR A
HEARING NOR ANY TESTIMONY IN SUPPORT THEREOF OFFERED BY THE DEFENDANT
SHALL BE ADMISSIBLE AT TRIAL IN THE PROSECUTION'S CASE-IN-CHIEF.
(E) FOR PURPOSES OF PARAGRAPH (C) OF SUBDIVISION FIVE OF THIS SECTION
A PETITIONER HAS BEEN EXPOSED TO BODILY FLUID OF THE DEFENDANT WHEN: (I)
AN ELEMENT OF THE QUALIFYING OFFENSE ALLEGEDLY COMMITTED BY THE DEFEND-
ANT INCLUDES SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT OR ANAL SEXUAL
CONDUCT WITH THE PETITIONER; OR (II) THE SKIN OR A MUCOUS MEMBRANE OF
THE PETITIONER HAS BEEN PUNCTURED BY A HYPODERMIC INSTRUMENT WHICH WAS
IN THE POSSESSION, CUSTODY OR CONTROL OF THE DEFENDANT; OR (III) THE
DEFENDANT'S SEMEN, VAGINAL SECRETIONS OR ANY BODILY SUBSTANCE CONTAINING
BLOOD VISIBLE TO THE NAKED EYE MAY HAVE COME INTO CONTACT WITH A MUCOUS
A. 749 6
MEMBRANE, RUPTURED OR BROKEN SKIN OR THE VASCULAR SYSTEM OF THE PETI-
TIONER.
(F) The court ordered test must be performed [within fifteen] AS SOON
AS PRACTICABLE BUT IN NO EVENT LATER THAN FIVE days [of] AFTER 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] A BLOOD TEST FOR THE PRESENCE OF SUCH TRANSMISSIBLE DISEASE. ANY
COURT ORDER FOR TESTING PURSUANT TO THIS SECTION SHALL SPECIFY THE
DISEASE OR DISEASES FOR WHICH THE DEFENDANT'S BLOOD IS TO BE TESTED.
[6.] 7. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:
(i) disclosure of TEST RESULTS OR confidential HIV related information
shall be limited to that information which is necessary to fulfill the
purpose for which the order is granted;
(ii) disclosure of TEST RESULTS OR confidential HIV related informa-
tion shall be limited to the person making the application; redisclosure
shall be permitted only to the victim OR PETITIONER, the victim's OR
PETITIONER'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 OF SUCH
TRANSMISSIBLE DISEASE 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 orders shall include measures to
protect against disclosure to others of the identity and HIV OR OTHER
DISEASE status of the applicant and of the person tested and may include
such other measures as the court deems necessary to protect confidential
information.
[7.] 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 sentence imposed by the
court.
[8.] 9. No information obtained as a result of a consent, hearing or
court order for testing issued pursuant to this section nor any informa-
tion 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 the CHARGES OR THE defendant's conviction, provided however
that nothing herein 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; AND PROVIDED, FURTHER, THAT
NOTHING IN THIS SECTION SHALL BE DEEMED TO PRECLUDE THE INTRODUCTION IN
ANY SUCH PROCEEDING OF ANY OTHER ADMISSIBLE TEST RESULT CONCERNING THE
HIV OR TRANSMISSIBLE DISEASE STATUS OF ANY PERSON, INCLUDING EVIDENCE
OBTAINED PURSUANT TO SECTION THREE THOUSAND ONE HUNDRED TWENTY-ONE OF
THE CIVIL PRACTICE LAW AND RULES.
S 2. Section 347.1 of the family court act, as added by chapter 76 of
the laws of 1995, subdivision 1 as amended by chapter 264 of the laws of
2003, is amended to read as follows:
S 347.1. Required testing of the respondent in certain proceedings. 1.
FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL APPLY:
(A) "VICTIM" SHALL MEAN THE PERSON WITH WHOM THE RESPONDENT 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,
A. 749 7
WHERE SUCH CONDUCT WITH SUCH PERSON WAS THE BASIS FOR THE FINDING THAT
THE RESPONDENT COMMITTED AN OFFENSE SPECIFIED IN PARAGRAPH (A) OF SUBDI-
VISION TWO OF THIS SECTION.
(B) "PETITIONER" MEANS A PERSON WHO ALLEGES HE OR SHE WAS EXPOSED TO
BODILY FLUID OF A RESPONDENT DURING, OR AS A PROXIMATE RESULT OF, THE
COMMISSION OF AN OFFENSE DESCRIBED IN PARAGRAPH (D) OF THIS SUBDIVISION
OR PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION. AS USED IN SUBDI-
VISION ONE-A OF THIS SECTION, "PETITIONER" SHALL ALSO INCLUDE A PERSON
WHO ALLEGES IN A COMPLAINT FILED WITH AN APPROPRIATE LOCAL OR STATE LAW
ENFORCEMENT AGENCY THAT HE OR SHE WAS EXPOSED TO THE BODILY FLUID OF AN
UNAPPREHENDED PERPETRATOR DURING, OR AS A PROXIMATE RESULT OF, THE
COMMISSION OF AN OFFENSE DESCRIBED IN PARAGRAPH (D) OF THIS SUBDIVISION
OR PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION.
(C) "TRANSMISSIBLE DISEASE" MEANS THE HUMAN IMMUNODEFICIENCY VIRUS
(HIV) OR ANY OF ITS DERIVATIVES, SYPHILIS, GONORRHEA, LYMPHOGRANULOMA
VENEREUM, HERPES, GENITAL WARTS, OR HEPATITIS AND ANY OF ITS DERIVA-
TIVES.
(D) "QUALIFYING OFFENSE" SHALL MEAN THE OFFENSES SET FORTH IN PARA-
GRAPH (E) OF SUBDIVISION ONE OF SECTION 390.15 OF THE CRIMINAL PROCEDURE
LAW.
(E) "BODILY FLUID" SHALL HAVE ITS ORDINARY MEANING EXCEPT THAT, WHERE
THE SPECIFIED TRANSMISSIBLE DISEASE FOR WHICH TESTING IS SOUGHT IS HUMAN
IMMUNODEFICIENCY VIRUS (HIV) OR ANY OF ITS DERIVATIVES, "BODILY FLUID"
SHALL MEAN BLOOD OR SEMEN.
1-A. A VICTIM OR PETITIONER, AS DEFINED IN PARAGRAPHS (A) AND (B) OF
SUBDIVISION ONE OF THIS SECTION, MAY DIRECT A REQUEST FOR A TRANSMISSI-
BLE DISEASE TEST TO DETERMINE HIS OR HER TRANSMISSIBLE DISEASE STATUS TO
THE CHIEF CITY OR COUNTY PUBLIC HEALTH OFFICIAL OF THE JURISDICTION
WHERE HE OR SHE RESIDES OR WHERE THE VICTIM OR PETITIONER BELIEVES HE OR
SHE MAY HAVE CONTRACTED SUCH TRANSMISSIBLE DISEASE. SUCH OFFICIAL
SHALL, UPON SUCH REQUEST, AUTHORIZE THE VICTIM OR PETITIONER TO UNDERGO
PROMPT, READILY ACCESSIBLE AND SCIENTIFICALLY RECOGNIZED LABORATORY
TESTING INCLUDING, WHERE APPROPRIATE, POLYMERASE CHAIN REACTION (PCR) OR
OTHER ADVANCED TESTING TECHNOLOGIES, PURSUANT TO SECTION TWENTY-SEVEN
HUNDRED EIGHTY-FIVE-B OF THE PUBLIC HEALTH LAW, FOR THE DIAGNOSIS OF
TRANSMISSIBLE DISEASES AT STATE EXPENSE. NOTHING IN THIS SUBDIVISION
SHALL PRECLUDE OR LIMIT A COURT FROM GRANTING AN APPLICATION FOR THE
TESTING OF A RESPONDENT PURSUANT TO THIS SECTION OR ANY OTHER APPLICABLE
LAW.
2. (a) In any proceeding where [the] A respondent is found pursuant to
section 345.1 or 346.1 of this [article] PART, to have committed a felo-
ny offense enumerated in any section of article one hundred thirty of
the penal law, or any subdivision of section 130.20 of such law, for
which 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 there-
of, the court must, upon a request of the victim, order that the
respondent submit to [human immunodeficiency (HIV) related testing. The
testing is to be conducted by a state, county, or local public health
officer designated by the order. Test results, which shall not be
disclosed to the court, shall be communicated to the respondent and the
victim named in the order 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 term "victim" means the
person with whom the respondent engaged in an act of "sexual inter-
course", "oral sexual conduct" or "anal sexual conduct", as those terms
A. 749 8
are defined in section 130.00 of the penal law, where such conduct with
such victim was the basis for the court's finding that the respondent
committed acts constituting one or more of the offenses specified in
paragraph (a) of this subdivision] THE TESTING OF HIS OR HER BLOOD FOR
THE PRESENCE OF ONE OR MORE TRANSMISSIBLE DISEASES.
[2.] (B) IN ANY PROCEEDING WHERE A RESPONDENT (I) IS FOUND PURSUANT TO
SECTION 345.1 OR 346.1 OF THIS PART TO HAVE COMMITTED A QUALIFYING
OFFENSE AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION,
OR (II) STANDS CHARGED BY A PETITION WHICH ALLEGES THAT SUCH RESPONDENT
COMMITTED AN OFFENSE WHICH WOULD CONSTITUTE A QUALIFYING OFFENSE OR AN
OFFENSE DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION, AND THE COURT
HAS MADE A FINDING PURSUANT TO SECTION 325.3 OF THIS ARTICLE OR THE
RESPONDENT HAS VALIDLY WAIVED SUCH A FINDING; AND THE COURT HAS MADE A
FINDING PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF THIS SECTION,
THE COURT SHALL, UPON A REQUEST OF THE PETITIONER AND PURSUANT TO THIS
SECTION, ORDER THE RESPONDENT TO SUBMIT TO TESTING OF HIS OR HER BLOOD
FOR THE PRESENCE OF ONE OR MORE TRANSMISSIBLE DISEASES.
(C) THE TESTING IS TO BE ARRANGED BY A STATE, COUNTY, OR LOCAL PUBLIC
HEALTH OFFICER DESIGNATED BY THE ORDER. TEST RESULTS, WHICH SHALL NOT
BE DISCLOSED TO THE COURT, SHALL BE COMMUNICATED TO THE RESPONDENT AND
TO THE PETITIONER OR VICTIM NAMED IN THE ORDER IN ACCORDANCE WITH THE
PROVISIONS OF SECTION TWENTY-SEVEN HUNDRED EIGHTY-FIVE-A OF THE PUBLIC
HEALTH LAW.
(D) WHEN A REQUEST FOR TESTING OF A RESPONDENT IS RECEIVED BY A COURT
PURSUANT TO THIS SECTION, THE COURT SHALL ADVISE THE VICTIM OR PETITION-
ER OF THE AVAILABILITY OF PROMPT, READILY ACCESSIBLE AND SCIENTIFICALLY
RECOGNIZED LABORATORY TESTING OF SUCH VICTIM OR PETITIONER FOR THE DIAG-
NOSIS OF TRANSMISSIBLE DISEASES AT STATE EXPENSE PURSUANT TO SUBDIVISION
ONE-A OF THIS SECTION.
3. (A) Any request made [by the victim] pursuant to PARAGRAPH (A) OF
SUBDIVISION TWO OF this section must be in writing, filed with the court
and provided by the court to the [defendant] RESPONDENT and his or her
counsel. The request must be filed with the court prior to or within
ten days after the filing of an order in accordance with section 345.1
or 346.1 of this [article] PART, provided that, for good cause shown,
the court may permit such request to be filed at any time prior to the
entry of an order of disposition.
[3.] (B) THE PROSECUTOR SHALL REPRESENT THE VICTIM BEFORE THE COURT.
ANY REQUEST MADE BY A PETITIONER PURSUANT TO SUBPARAGRAPH (I) OF PARA-
GRAPH (B) OF SUBDIVISION TWO OF THIS SECTION MUST BE IN WRITING, FILED
WITH THE COURT AND PROVIDED BY THE COURT TO THE RESPONDENT AND HIS OR
HER COUNSEL. SUCH REQUEST MUST BE FILED WITH THE COURT PRIOR TO OR
WITHIN TEN DAYS AFTER THE FILING OF AN ORDER IN ACCORDANCE WITH SECTION
345.1 OR 346.1 OF THIS PART, PROVIDED THAT, FOR GOOD CAUSE SHOWN, THE
COURT MAY PERMIT SUCH REQUEST TO BE FILED AT ANY TIME PRIOR TO THE ENTRY
OF AN ORDER OF DISPOSITION. WHERE THE REQUEST IS PURSUANT TO SUBPARA-
GRAPH (II) OF PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION, SUCH
REQUEST MUST BE IN WRITING, AND MUST BE SERVED AND FILED WITH THE COURT
PRIOR TO THE RESPONDENT'S ENTRY OF AN ADMISSION OR THE ISSUANCE OF AN
ORDER IN ACCORDANCE WITH SECTION 345.1 OR 346.1 OF THIS PART. WHERE
PROCEEDINGS ON THE PETITION ARE TERMINATED IN A MANNER OTHER THAN PURSU-
ANT TO SECTION 345.1 OR 346.1 OF THIS PART, A REQUEST PURSUANT TO SUCH
SUBPARAGRAPH (II) MUST BE SERVED AND FILED WITH THE COURT PRIOR TO SUCH
TERMINATION.
(C) A REQUEST FOR TESTING PURSUANT TO THIS SUBDIVISION MAY BE HEARD
AND DETERMINED ONLY IN A COURT OF RECORD HAVING JURISDICTION OVER THE
A. 749 9
OFFENSE CHARGED. IF THE COURT IN WHICH THE CRIMINAL ACTION IS PENDING IS
NOT A COURT OF RECORD, AND THE REQUEST FOR TESTING IS FILED IN SUCH
COURT, SUCH COURT SHALL PROMPTLY TRANSFER THE APPLICATION TO A COURT OF
RECORD WHICH HAS CONCURRENT JURISDICTION OVER THE OFFENSE CHARGED, FOR
THE SOLE PURPOSE OF HEARING AND DETERMINING THE APPLICATION.
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.
[4.] 5. (A) The application for an order to compel a respondent to
undergo [an HIV related test] A BLOOD TEST FOR A TRANSMISSIBLE DISEASE
PURSUANT TO THIS SECTION may be made by the victim OR PETITIONER but, if
the victim OR PETITIONER is an infant or incompetent person, the appli-
cation may also be made by a representative as defined in section twelve
hundred one of the civil practice law and rules.
[The] (B) IN THE CASE OF AN APPLICATION PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION TWO OF THIS SECTION, THE application must state that [(a)]
the applicant was the victim of the offense[,] enumerated in SUCH para-
graph (a) [of subdivision one of this section], which OFFENSE the court
found the [defendant] RESPONDENT to have committed[; and (b)].
(C) IN THE CASE OF AN APPLICATION PURSUANT TO PARAGRAPH (B) OF SUBDI-
VISION TWO OF THIS SECTION, THE APPLICATION MUST STATE THAT THE PETI-
TIONER MAY HAVE BEEN EXPOSED TO BODILY FLUID OF THE RESPONDENT DURING,
OR AS A PROXIMATE RESULT OF, THE COMMISSION OF OR IN THE COURSE OF
FLIGHT FROM AN OFFENSE DESCRIBED IN SUCH PARAGRAPH IN A MANNER THAT MAY
HAVE INVOLVED TRANSMISSION OF A SPECIFIED TRANSMISSIBLE DISEASE FROM THE
RESPONDENT TO THE PETITIONER.
(D) IN ALL SUCH APPLICATIONS FOR TESTING FILED PURSUANT TO THIS
SECTION, THE APPLICANT MUST ALSO STATE THAT the applicant has been
offered counseling by a public health officer and been advised of (i)
the limitations on the information to be obtained through [an HIV test]
A BLOOD TEST on the proposed subject; (ii) current scientific assess-
ments of the risk of transmission of [HIV] A DISEASE from the exposure
he or she may have experienced; [and] (iii) the need for the applicant
to undergo [HIV related] testing to definitively determine his or her
[HIV] status WITH REGARD TO ANY DISEASE; AND (IV) WHERE THE REQUEST IS
FOR A TRANSMISSIBLE DISEASE TEST OF THE RESPONDENT, THE AVAILABILITY OF
PROMPT, READILY ACCESSIBLE AND SCIENTIFICALLY RECOGNIZED LABORATORY
TESTING OF THE APPLICANT, INCLUDING, WHERE APPROPRIATE, POLYMERASE CHAIN
REACTION (PCR) OR OTHER ADVANCED TESTING TECHNOLOGIES, FOR THE DIAGNOSIS
OF TRANSMISSIBLE DISEASES AT STATE EXPENSE PURSUANT TO SUBDIVISION ONE-A
OF THIS SECTION.
[5. The] 6. (A) IN THE CASE OF AN APPLICATION TO TEST A RESPONDENT
PURSUANT TO PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, THE court
shall conduct a hearing only if necessary to determine if the applicant
is the victim of the offense the respondent was found to have committed.
(B) IN THE CASE OF AN APPLICATION TO TEST A RESPONDENT PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION, THE COURT SHALL
CONSIDER SUCH APPLICATION ON AN EXPEDITED BASIS. IF THE APPLICATION
SETS FORTH FACTS SATISFYING THE REQUIREMENTS OF PARAGRAPHS (C) AND (D)
OF SUBDIVISION FIVE OF THIS SECTION, IT SHALL BE GRANTED ON THE PAPERS
AND WITHOUT A HEARING; PROVIDED, HOWEVER, THAT THE COURT SHALL DIRECT AN
IMMEDIATE HEARING WHEN REQUIRED BY, AND IN ACCORDANCE WITH PARAGRAPH (C)
OF THIS SUBDIVISION. AN APPLICATION SETS FORTH FACTS SATISFYING THE
A. 749 10
REQUIREMENTS OF PARAGRAPHS (C) AND (D) OF SUBDIVISION FIVE OF THIS
SECTION WHEN THE DISTRICT ATTORNEY CERTIFIES THAT THE RESPONDENT HAS
BEEN DETERMINED TO HAVE COMMITTED A QUALIFYING OFFENSE OR CHARGED BY A
PETITION WITH A QUALIFYING OFFENSE AND AN AFFIDAVIT SUPPORTED AND
SUBMITTED IN SUPPORT OF THE APPLICATION ASSERTS FACTS SUFFICIENT TO
DEMONSTRATE THAT THE PETITIONER MAY HAVE BEEN EXPOSED TO BODILY FLUID OF
THE RESPONDENT DURING, OR AS A PROXIMATE RESULT OF OR IN THE COURSE OF
FLIGHT FROM THE COMMISSION OF THE QUALIFYING OFFENSE SPECIFIED IN THE
APPLICATION IN A MANNER WHICH MAY HAVE INVOLVED TRANSMISSION FROM THE
RESPONDENT TO THE PETITIONER OF ONE OR MORE SPECIFIED TRANSMISSIBLE
DISEASES.
(C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVI-
SION, THE COURT SHALL DIRECT AN IMMEDIATE HEARING IF THE RESPONDENT
FILES A WRITTEN REQUEST FOR A HEARING, AND SUCH REQUEST CONTAINS SWORN
ALLEGATIONS OF FACT, BASED UPON PERSONAL KNOWLEDGE OF THE RESPONDENT OR
ANOTHER PERSON OR PERSONS ESTABLISHING REASONABLE GROUNDS TO BELIEVE
THAT EITHER: (I) THE RESPONDENT DID NOT COMMIT THE QUALIFYING OFFENSE
CHARGED OR A LESSER INCLUDED OFFENSE THEREOF; OR (II) IN THE COURSE OF
THE COMMISSION OF, FLIGHT FROM OR ARREST FOR THE QUALIFYING OFFENSE OR
AS A RESULT THEREOF THE PETITIONER WAS NOT EXPOSED TO BODILY FLUID OF
THE RESPONDENT.
(D) ALL PERSONS GIVING FACTUAL INFORMATION AT SUCH HEARING MUST TESTI-
FY UNDER OATH, EXCEPT THAT UNSWORN EVIDENCE PURSUANT TO SUBDIVISION TWO
OF SECTION 60.20 OF THE CRIMINAL PROCEDURE LAW MAY ALSO BE RECEIVED. AT
SUCH HEARING, THE PROSECUTION HAS THE BURDEN OF PERSUASION, AND THE
RESPONDENT HAS THE BURDEN OF GOING FORWARD. IF THE RESPONDENT FAILS TO
SATISFY HIS OR HER BURDEN, THE COURT SHALL NOT TAKE TESTIMONY FROM THE
PROSECUTION, BUT SHALL INSTEAD IMMEDIATELY GRANT THE APPLICATION.
NEITHER SWORN ALLEGATIONS OF FACT OF THE RESPONDENT CONTAINED IN A WRIT-
TEN REQUEST FOR A HEARING NOR ANY TESTIMONY IN SUPPORT THEREOF OFFERED
BY THE RESPONDENT SHALL BE ADMISSIBLE AT TRIAL IN THE PROSECUTION'S
CASE-IN-CHIEF.
(E) FOR PURPOSES OF PARAGRAPH (C) OF SUBDIVISION FIVE OF THIS SECTION
A PETITIONER HAS BEEN EXPOSED TO BODILY FLUID OF THE RESPONDENT WHEN:
(I) AN ELEMENT OF THE QUALIFYING OFFENSE ALLEGEDLY COMMITTED BY THE
RESPONDENT INCLUDES SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT OR ANAL
SEXUAL CONDUCT WITH THE PETITIONER; OR (II) THE SKIN OR A MUCOUS
MEMBRANE OF THE PETITIONER HAS BEEN PUNCTURED BY A HYPODERMIC INSTRUMENT
WHICH WAS IN THE POSSESSION, CUSTODY OR CONTROL OF THE RESPONDENT; OR
(III) THE RESPONDENT'S SEMEN, VAGINAL SECRETIONS OR ANY BODILY SUBSTANCE
CONTAINING BLOOD VISIBLE TO THE NAKED EYE MAY HAVE COME INTO CONTACT
WITH A MUCOUS MEMBRANE, RUPTURED OR BROKEN SKIN OR THE VASCULAR SYSTEM
OF THE PETITIONER.
(F) The court ordered test must be performed [within fifteen] AS SOON
AS PRACTICABLE BUT IN NO EVENT LATER THAN FIVE days [of] AFTER the date
on which the court ordered the test, provided however that whenever the
respondent is not tested within the period prescribed by the court, the
court must again order that the respondent undergo [an HIV related test]
A BLOOD TEST FOR THE PRESENCE OF SUCH TRANSMISSIBLE DISEASE. ANY COURT
ORDER FOR TESTING PURSUANT TO THIS SECTION SHALL SPECIFY THE DISEASE OR
DISEASES FOR WHICH THE RESPONDENT'S BLOOD IS TO BE TESTED.
[6] 7. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:
A. 749 11
(i) disclosure of TEST RESULTS OR confidential HIV related information
shall be limited to that information which is necessary to fulfill the
purpose for which the order is granted;
(ii) disclosure of TEST RESULTS OR confidential HIV related informa-
tion shall be limited to the person making the application; redisclosure
shall be permitted only to the victim OR PETITIONER, the victim's OR
PETITIONER'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 OF SUCH
TRANSMISSIBLE DISEASE 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 OR OTHER
DISEASE status of the applicant and of the person tested and may
include such other measures as the court deems necessary to protect
confidential information.
[7] 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 the validity of any order of disposition entered by the
court.
[8] 9. No information obtained as a result of a consent, hearing or
court order for testing issued pursuant to this section nor any informa-
tion derived therefrom may be used as evidence in any criminal or civil
proceeding against the respondent which relates to events that were the
basis for the [respondent's conviction] CHARGES OR THE FINDING THAT THE
RESPONDENT COMMITTED SUCH OFFENSES, provided however that nothing herein
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; AND PROVIDED, FURTHER, THAT NOTHING IN
THIS SECTION SHALL BE DEEMED TO PRECLUDE THE INTRODUCTION IN ANY SUCH
PROCEEDING OF ANY OTHER ADMISSIBLE TEST RESULT CONCERNING THE HIV OR
TRANSMISSIBLE DISEASE STATUS OF ANY PERSON, INCLUDING EVIDENCE OBTAINED
PURSUANT TO SECTION THREE THOUSAND ONE HUNDRED TWENTY-ONE OF THE CIVIL
PRACTICE LAW AND RULES.
S 3. Section 353.6 of the family court act is amended by adding a new
subdivision 5 to read as follows:
5. IN ANY INSTANCE IN WHICH A CHIEF COUNTY OR CITY HEALTH OFFICIAL HAS
AUTHORIZED TESTING OF A PERSON PURSUANT TO SUBDIVISION ONE-A OF SECTION
347.1 OF THIS ARTICLE, AND A DISPOSITIONAL HEARING IS HELD FOR THE
RESPONDENT WHO WAS ALLEGED TO HAVE TRANSMITTED A TRANSMISSIBLE DISEASE
TO THE PERSON TESTED WITH REGARD TO THE OFFENSE WHICH FORMED A BASIS FOR
SUCH TESTING, THE COURT AS A PART OF SUCH DISPOSITION SHALL ORDER THE
RESPONDENT TO MAKE RESTITUTION TO THE STATE OF NEW YORK OF THE REASON-
ABLE COST INCURRED BY THE STATE IN CONDUCTING SUCH TESTING.
S 4. Section 60.27 of the penal law is amended by adding a new subdi-
vision 14 to read as follows:
14. IN ANY INSTANCE IN WHICH A CHIEF COUNTY OR CITY HEALTH OFFICIAL
HAS AUTHORIZED TESTING OF A PERSON PURSUANT TO SUBDIVISION ONE-A OF
SECTION 390.15 OF THE CRIMINAL PROCEDURE LAW, AND THE DEFENDANT WHO WAS
ALLEGED TO HAVE TRANSMITTED A TRANSMISSIBLE DISEASE TO THE PERSON TESTED
IS SENTENCED FOR THE OFFENSE WHICH FORMED A BASIS FOR SUCH TESTING, THE
SENTENCING COURT SHALL ORDER THE DEFENDANT TO MAKE RESTITUTION TO THE
STATE OF NEW YORK OF THE REASONABLE COST INCURRED BY THE STATE IN
CONDUCTING SUCH TESTING.
A. 749 12
S 5. Section 2785-a of the public health law, as added by chapter 76
of the laws of 1995, is amended to read as follows:
S 2785-a. Court order for [HIV related] testing OF BLOOD in certain
cases. 1. Notwithstanding any contrary provision of law or regulation, a
state, county or local public health officer to whom an order or a
consent for [an HIV test] A BLOOD TEST FOR HIV OR THE PRESENCE OF A
TRANSMISSIBLE DISEASE is addressed or sent, in accordance with section
390.15 of the criminal procedure law or section 347.1 of the family
court act, must cause [HIV related] SUCH testing to be administered to
the subject named therein and, if the test is pursuant to court order,
must immediately provide to the court that issued the order a written
report specifying the date on which such test was completed. Such
report to the court shall not, however, disclose the results of such
test. Such officer must disclose the results of the testing to the
victim OR PETITIONER indicated in the order or consent and must also
disclose the results to the person tested, unless the person tested has
been asked to but declines to authorize such disclosure to himself or
herself.
2. At the time of communicating the test results to the subject or
the victim, such public health officer shall directly provide the victim
OR PETITIONER and person tested with (a) counseling or referrals for
counseling for the purposes specified in subdivision five of section
[two thousand seven] TWENTY-SEVEN hundred eighty-one of this article;
(b) WHERE THE TEST WAS AN HIV RELATED TEST, counseling with regard to
HIV disease and HIV testing in accordance with law and consistent with
subdivision five of section [two thousand seven] TWENTY-SEVEN hundred
eighty-one of this article; and (c) appropriate health care and support
services, or referrals to such available services. If at the time of
communicating the test results, the person tested is in the custody of
the department of correctional services, [division for youth] OFFICE OF
CHILDREN AND FAMILY SERVICES, office of mental health or a local correc-
tional institution, the counseling and services required by this subdi-
vision may be provided by a public health officer associated with the
county or facility within which the person tested is confined.
3. Unless inconsistent with this section, the provisions of this
article regarding the confidentiality and disclosure of HIV related
information shall apply to proceedings conducted pursuant to section
390.15 of the criminal procedure law or section 347.1 of the family
court act.
S 6. Section 206 of the public health law is amended by adding a new
subdivision 26 to read as follows:
26. THE COMMISSIONER SHALL ANNUALLY REVIEW THE LIST OF TRANSMISSIBLE
DISEASES SET FORTH IN PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION 390.15
OF THE CRIMINAL PROCEDURE LAW AND PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION 347.1 OF THE FAMILY COURT ACT AND, IF THE COMMISSIONER DEEMS IT
APPROPRIATE, SHALL RECOMMEND MODIFICATIONS TO SUCH LISTS TO THE GOVER-
NOR, THE SPEAKER OF THE ASSEMBLY AND THE TEMPORARY PRESIDENT OF THE
SENATE, TOGETHER WITH THE REASONS FOR SUCH RECOMMENDATIONS.
S 7. The public health law is amended by adding a new section 2785-b
to read as follows:
S 2785-B. TRANSMISSIBLE DISEASE TESTING OF CRIME VICTIMS IN CERTAIN
CASES. 1. THERE IS HEREBY ESTABLISHED IN THIS STATE A STATEWIDE PROGRAM
OF CRIME VICTIM TESTING FOR TRANSMISSIBLE DISEASES, WHICH SHALL BE
AVAILABLE TO PERSONS APPROVED FOR TESTING PURSUANT TO SUBDIVISION ONE-A
OF SECTION 390.15 OF THE CRIMINAL PROCEDURE LAW OR SUBDIVISION ONE-A OF
SECTION 347.1 OF THE FAMILY COURT ACT. THE COMMISSIONER SHALL PROMUL-
A. 749 13
GATE REGULATIONS CONSISTENT WITH THIS SECTION AND SUBDIVISION ONE-A OF
SECTION 390.15 OF THE CRIMINAL PROCEDURE LAW AND SUBDIVISION ONE-A OF
SECTION 347.1 OF THE FAMILY COURT ACT TO IMPLEMENT THE PROGRAM OF CRIME
VICTIM TESTING AVAILABLE PURSUANT TO SUCH STATUTES.
2. CRIME VICTIM TESTING AUTHORIZED PURSUANT TO SUBDIVISION ONE-A OF
SECTION 390.15 OF THE CRIMINAL PROCEDURE LAW OR SUBDIVISION ONE-A OF
SECTION 347.1 OF THE FAMILY COURT ACT SHALL BE CONDUCTED BY AN APPROPRI-
ATE LABORATORY OR LABORATORIES APPROVED FOR SUCH PURPOSES BY THE COMMIS-
SIONER PURSUANT TO SECTION FIVE HUNDRED SEVENTY-FIVE OF THIS CHAPTER.
SUCH TESTING OF CRIME VICTIMS SHALL BE CONDUCTED PROMPTLY, AND SHALL BE
READILY ACCESSIBLE AND SCIENTIFICALLY RECOGNIZED LABORATORY TESTING
INCLUDING, WHERE APPROPRIATE, POLYMERASE CHAIN REACTION (PCR) OR OTHER
ADVANCED TESTING TECHNOLOGIES, FOR THE DIAGNOSIS OF TRANSMISSIBLE
DISEASES. THE COST FOR SUCH TESTING SHALL BE A STATE CHARGE.
3. UNLESS INCONSISTENT WITH THIS SECTION, THE PROVISIONS OF THIS ARTI-
CLE, INCLUDING BUT NOT LIMITED TO SECTION TWENTY-SEVEN HUNDRED
EIGHTY-FIVE-A OF THIS ARTICLE REGARDING THE CONFIDENTIALITY AND DISCLO-
SURE OF HIV RELATED INFORMATION AND THE COUNSELLING OF TESTED PERSONS,
SHALL APPLY TO THE TESTING OF CRIME VICTIMS PURSUANT TO THIS SECTION.
4. THE COMMISSIONER SHALL DEVELOP AND PERIODICALLY REVISE A
DESCRIPTION OF THE PROGRAM OF CRIME VICTIM TESTING FOR THE PRESENCE OF
TRANSMISSIBLE DISEASES AVAILABLE PURSUANT TO THIS SECTION. THE COMMIS-
SIONER SHALL FURNISH COPIES OF SUCH DESCRIPTION TO THE APPROPRIATE
COURTS AND THE APPROPRIATE CHIEF COUNTY AND CITY PUBLIC HEALTH OFFI-
CIALS, WHO IN TURN SHALL FURNISH SUCH DESCRIPTION TO PERSONS REQUESTING
OR CONSIDERING REQUESTING TESTING PURSUANT TO SUBDIVISION ONE-A OF
SECTION 390.15 OF THE CRIMINAL PROCEDURE LAW OR SUBDIVISION ONE-A OF
SECTION 347.1 OF THE FAMILY COURT ACT.
5. NOTHING CONTAINED IN THIS SECTION SHALL PRECLUDE A CRIME VICTIM,
WHO IS OTHERWISE ENTITLED TO TRANSMISSIBLE DISEASE TESTING AT STATE
EXPENSE PURSUANT TO SUBDIVISION ONE-A OF SECTION 390.15 OF THE CRIMINAL
PROCEDURE LAW OR SUBDIVISION ONE-A OF SECTION 347.1 OF THE FAMILY COURT
ACT, FROM ELECTING TO UNDERGO SUCH TESTING THROUGH HIS OR HER PHYSICIAN
OR MEDICAL CAREGIVER. THE COST FOR SUCH TESTING SHALL BE A STATE CHARGE.
THE COMMISSIONER SHALL PROMULGATE REGULATIONS CONSISTENT WITH THIS
SECTION AND SUBDIVISION ONE-A OF SECTION 390.15 OF THE CRIMINAL PROCE-
DURE LAW AND SUBDIVISION ONE-A OF SECTION 347.1 OF THE FAMILY COURT ACT
TO IMPLEMENT THE PROVISIONS OF THIS SUBDIVISION.
S 8. This act shall take effect immediately and, where otherwise
permitted by this act, shall authorize the testing of persons against
whom charges are pending and the testing of persons who are convicted on
or after such date.