Senate Bill S2053

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2053
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 11, 2017
                                ___________
 
 Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to  the  testing
   of certain criminal defendants for human immunodeficiency virus
 
   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
 section 210.17 to read as follows:
 § 210.17 REQUIREMENT OF HIV RELATED TESTING IN CERTAIN CASES.
   1.  IN  A CASE WHERE AN INDICTMENT OR A SUPERIOR COURT INFORMATION HAS
 BEEN FILED WITH A SUPERIOR COURT WHICH  CHARGES  THE  DEFENDANT  WITH  A
 VIOLATION OF SECTION 120.08 OR 120.11 OF THE PENAL LAW, THE COURT SHALL,
 UPON A REQUEST OF THE PEACE OFFICER, POLICE OFFICER, FIREMAN OR EMERGEN-
 CY  MEDICAL  SERVICES  PROFESSIONAL  INVOLVED,  ORDER THAT THE DEFENDANT
 SUBMIT TO HUMAN IMMUNODEFICIENCY VIRUS (HIV)  RELATED  TESTING,  IF  THE
 COURT  DETERMINES  THAT  THERE  WAS  A  SIGNIFICANT RISK OF TRANSMISSION
 PURSUANT TO THE PROVISIONS SET FORTH IN  SECTION  ONE  HUNDRED  SEVENTY-
 EIGHT  OF  THE  CIVIL  SERVICE  LAW.  TEST  RESULTS,  WHICH SHALL NOT BE
 DISCLOSED TO THE COURT, SHALL BE COMMUNICATED TO THE DEFENDANT  AND  THE
 REQUESTING PUBLIC PROTECTION OFFICIAL NAMED IN THE ORDER.
   2. ANY REQUEST MADE BY THE PUBLIC PROTECTION OFFICIAL PURSUANT TO THIS
 SECTION  MUST  BE  IN WRITING, FILED WITH THE COURT WITHIN SIX MONTHS OF
 THE DATE OF THE CRIME CHARGED, AND PROVIDED BY THE COURT TO THE  DEFEND-
 ANT  OR  HIS  OR  HER  COUNSEL. THE REQUEST MUST BE FILED WITH THE COURT
 PRIOR TO OR WITHIN FORTY-EIGHT HOURS AFTER THE  INDICTMENT  OR  SUPERIOR
 COURT  INFORMATION  HAS  BEEN  FILED  WITH  THE SUPERIOR COURT; PROVIDED
 HOWEVER THAT, FOR GOOD CAUSE SHOWN, THE COURT MAY PERMIT SUCH REQUEST TO
 BE FILED AT A LATER STAGE OF THE ACTION WITHIN SIX MONTHS OF THE DATE OF
 THE CRIMES CHARGED.
   3. AT ANY STAGE IN THE ACTION WITHIN SIX MONTHS OF  THE  DATE  OF  THE
 CRIMES  CHARGED,  PRIOR  TO  THE  FINAL DISPOSITION OF THE INDICTMENT OR
 SUPERIOR COURT INFORMATION AND WHILE THE DEFENDANT IS  CHARGED  WITH  AN
 OFFENSE  SPECIFIED  IN  SUBDIVISION  ONE  OF  THIS  SECTION,  THE PUBLIC
 PROTECTION OFFICIAL MAY REQUEST THAT THE DEFENDANT SUBMIT TO A FOLLOW-UP
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04125-01-7

 S. 2053                             2
 
 HIV RELATED TEST. SUCH REQUEST MUST BE IN WRITING, FILED WITH THE  COURT
 AND PROVIDED BY THE COURT TO THE DEFENDANT OR HIS OR HER COUNSEL. UPON A
 FINDING THAT THE FOLLOW-UP HIV RELATED TEST IS MEDICALLY APPROPRIATE THE
 COURT MUST ORDER THAT THE DEFENDANT SUBMIT TO SUCH TEST. THE COURT SHALL
 NOT  MAKE  SUCH  FINDING OF MEDICAL APPROPRIATENESS UNLESS THE FOLLOW-UP
 HIV RELATED TEST IS TO BE  ADMINISTERED  A  SUFFICIENT  TIME  AFTER  THE
 CHARGED  OFFENSE  TO BE CONSISTENT WITH GUIDELINES THAT MAY BE ISSUED BY
 THE COMMISSIONER OF HEALTH. THERE SHALL BE NO MORE  THAN  ONE  FOLLOW-UP
 HIV RELATED TEST ABSENT A SHOWING OF EXTRAORDINARY CIRCUMSTANCES.
   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.
   5. THE APPLICATION FOR AN ORDER TO COMPEL A DEFENDANT  TO  UNDERGO  AN
 HIV  RELATED  TEST  MUST  STATE THAT THE APPLICANT WAS THE VICTIM OF THE
 OFFENSE ENUMERATED IN SUBDIVISION ONE  OF  THIS  SECTION  OF  WHICH  THE
 DEFENDANT IS CHARGED.
   6. THE COURT SHALL CONDUCT A HEARING ONLY IF NECESSARY TO DETERMINE IF
 THE  APPLICANT  IS  THE  VICTIM OF THE OFFENSE OF WHICH THE DEFENDANT IS
 CHARGED OR TO DETERMINE WHETHER A FOLLOW-UP TEST IS MEDICALLY  APPROPRI-
 ATE.  THE  COURT ORDERED TEST MUST BE PERFORMED WITHIN FORTY-EIGHT HOURS
 OF 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.  THE  DEFENDANT SHALL BE ADVISED OF INFORMATION AS TO HIV
 TESTING AND MEDICAL TREATMENT IN ACCORDANCE WITH ANY GUIDELINES THAT MAY
 BE ISSUED BY THE COMMISSIONER OF HEALTH.
   7. (A) TEST RESULTS SHALL BE DISCLOSED SUBJECT TO THE FOLLOWING  LIMI-
 TATIONS,  WHICH  SHALL BE SPECIFIED IN ANY ORDER ISSUED PURSUANT TO THIS
 SECTION:
   (I) DISCLOSURE OF CONFIDENTIAL HIV RELATED INFORMATION SHALL BE LIMIT-
 ED TO THAT INFORMATION WHICH IS NECESSARY TO  FULFILL  THE  PURPOSE  FOR
 WHICH THE ORDER IS GRANTED; AND
   (II)  DISCLOSURE OF CONFIDENTIAL HIV RELATED INFORMATION SHALL BE MADE
 TO THE DEFENDANT UPON HIS OR HER REQUEST, AND  DISCLOSURE  TO  A  PERSON
 OTHER  THAN  THE  DEFENDANT  SHALL  BE  LIMITED TO THE PERSON MAKING THE
 APPLICATION.
   (B) THE COURT'S  ORDER  SHALL  INCLUDE  MEASURES  TO  PROTECT  AGAINST
 DISCLOSURE TO OTHERS OF THE IDENTITY AND HIV STATUS OF THE APPLICANT AND
 OF  THE  PERSON  TESTED AND MAY INCLUDE SUCH OTHER MEASURES AS THE COURT
 DEEMS NECESSARY TO PROTECT CONFIDENTIAL INFORMATION.
   8. ANY FAILURE TO COMPLY WITH THE PROVISIONS OF THIS SECTION SHALL NOT
 IMPAIR OR AFFECT THE VALIDITY OF ANY PROCEEDING UPON THE  INDICTMENT  OR
 SUPERIOR COURT INFORMATION.
   9.  NO INFORMATION OBTAINED AS A RESULT OF A CONSENT, HEARING OR COURT
 ORDER FOR TESTING ISSUED PURSUANT TO THIS SECTION  NOR  ANY  INFORMATION
 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 CHARGING THE DEFENDANT WITH AN OFFENSE ENUMERATED IN SUBDIVI-
 SION ONE OF THIS SECTION, PROVIDED HOWEVER THAT NOTHING IN THIS  SECTION
 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.
   § 2. This act shall take effect immediately.