S T A T E   O F   N E W   Y O R K
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                                  2991

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2011
                               ___________

Introduced by M. of A. GABRYSZAK -- Multi-Sponsored by -- M. of A. PHEF-
  FER -- read once and referred to the Committee on Codes

AN  ACT  to  amend  the  penal  law, in relation to assault and reckless
  endangerment by  engaging  in  sexual  conduct  by  persons  who  have
  contracted HIV

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 120.10 of the penal law, subdivision 4  as  amended
by  chapter 791 of the laws of 1967 and the closing paragraph as amended
by chapter 646 of the laws of 1996, is amended to read as follows:
S 120.10 Assault in the first degree.
  A person is guilty of assault in the first degree when:
  1. With intent to cause serious physical injury to another person,  he
OR  SHE  causes such injury to such person or to a third person by means
of a deadly weapon or a dangerous instrument; or
  2. With intent to disfigure another person seriously and  permanently,
or  to destroy, amputate or disable permanently a member or organ of his
OR HER body, he OR SHE causes such injury to such person or to  a  third
person; or
  3. Under circumstances evincing a depraved indifference to human life,
he  OR  SHE  recklessly engages in conduct which creates a grave risk of
death to another person, and thereby causes serious physical  injury  to
another person; or
  4.  In the course of and in furtherance of the commission or attempted
commission of a felony or of immediate flight therefrom, he OR  SHE,  or
another participant if there be any, causes serious physical injury to a
person other than one of the participants[.]; OR
  5.  SUCH  PERSON  HAS ACTUAL NOTICE THAT HE OR SHE HAS TESTED POSITIVE
FOR HUMAN IMMUNODEFICIENCY VIRUS (HIV) AND HAS IN FACT  CONTRACTED  HIV,
AND  INTENTIONALLY OR, UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFER-
ENCE  TO  HUMAN  LIFE RECKLESSLY, ENGAGES IN SEXUAL CONDUCT WITH ANOTHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07720-01-1
              

A. 2991                             2

PERSON, AND SUCH CONDUCT IS INTENDED OR REASONABLY  LIKELY  TO  TRANSMIT
HIV TO SUCH OTHER PERSON AND THEREBY TRANSMITS HIV TO SUCH OTHER PERSON.
IT  IS  AN  AFFIRMATIVE  DEFENSE  THAT  SUCH  OTHER PERSON KNEW THAT THE
DEFENDANT  HAD TESTED POSITIVE FOR HIV, KNEW SUCH EXPOSURE COULD RESULT,
AND CONSENTED TO SUCH SEXUAL CONDUCT. FOR PURPOSES OF THIS  SUBDIVISION,
"SEXUAL CONDUCT" SHALL MEAN "SEXUAL INTERCOURSE", "ORAL SEXUAL CONDUCT",
OR "ANAL SEXUAL CONDUCT" AS THOSE TERMS ARE DEFINED IN SECTION 130.00 OF
THIS TITLE.
  Assault in the first degree is a class B felony.
  S 2. Section 120.25 of the penal law is amended to read as follows:
S 120.25 Reckless endangerment in the first degree.
  A person is guilty of reckless endangerment in the first degree when[,
under]:
  1. UNDER circumstances evincing a depraved indifference to human life,
he  OR  SHE  recklessly engages in conduct which creates a grave risk of
death to another person[.]; OR
  2. SUCH PERSON HAS ACTUAL NOTICE THAT HE OR SHE  HAS  TESTED  POSITIVE
FOR  HUMAN  IMMUNODEFICIENCY VIRUS (HIV) AND HAS IN FACT CONTRACTED HIV,
AND INTENTIONALLY OR, UNDER CIRCUMSTANCES EVINCING A DEPRAVED  INDIFFER-
ENCE  TO  HUMAN  LIFE RECKLESSLY, ENGAGES IN SEXUAL CONDUCT WITH ANOTHER
PERSON, AND SUCH CONDUCT IS INTENDED OR REASONABLY  LIKELY  TO  TRANSMIT
HIV  TO  SUCH OTHER PERSON. IT IS AN AFFIRMATIVE DEFENSE THAT SUCH OTHER
PERSON KNEW THAT THE DEFENDANT HAD TESTED POSITIVE FOR  HIV,  KNEW  SUCH
EXPOSURE  COULD  RESULT,  AND  CONSENTED  TO  SUCH  SEXUAL  CONDUCT. FOR
PURPOSES OF THIS SUBDIVISION, "SEXUAL CONDUCT" SHALL MEAN "SEXUAL INTER-
COURSE", "ORAL SEXUAL CONDUCT", OR "ANAL SEXUAL CONDUCT" AS THOSE  TERMS
ARE DEFINED IN SECTION 130.00 OF THIS TITLE.
  Reckless endangerment in the first degree is a class D felony.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.