senate Bill S745

2011-2012 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Jan 05, 2011 referred to codes

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S745 - Bill Details

See Assembly Version of this Bill:
A1908
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 2009-2010 Legislative Session:
S3407, A4939

S745 - Bill Texts

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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 NUMBER:S745

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 B 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 forth 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
available 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
responsible 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 as such, 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 effective 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 preventative vein that this bill calls
for the testing of all currently incarcerated 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:

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
section three 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.

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

                                   745

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens. YOUNG, BONACIC, DeFRANCISCO, NOZZOLIO, RANZENHOFER
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Codes

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,
the  legislature  hereby  declares  that  all  inmates  presently  under

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02708-01-1

S. 745                              2

confinement  and  all  inmates to be newly admitted to the department of
correctional services must be expeditiously tested for  such  syndromes,
diseases or viruses.  The department of correctional services 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 21 and 22 to read as follows:
  21. "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.
  22. "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
CREATES A SUBSTANTIAL RISK OF THE TRANSMISSION OF  HIV/AIDS  TO  ANOTHER
PERSON WHO WAS UNAWARE OF SUCH CONDITION.

S. 745                              3

  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
DEVELOPMENT OF SUCH SYNDROMES, DISEASES OR VIRUSES  IN  ACCORDANCE  WITH
PROPER MEDICAL PROCEDURES.

S. 745                              4

  (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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