S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2688
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2023
                                ___________
 
 Introduced  by  M.  of  A. J. M. GIGLIO -- read once and referred 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 incarcerated individuals and others who may have an undi-
 agnosed case of any of these syndromes, diseases or viruses are extreme-
 ly detrimental to the health, safety and welfare of the correction offi-
 cers and other staff who work in such facilities as well as incarcerated
 individuals who are incarcerated therein.  In order to  maintain  proper
 security  and  working  conditions, the legislature hereby declares that
 all incarcerated individuals presently under confinement and all  incar-
 cerated   individuals   to  be  newly  admitted  to  the  department  of

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02822-01-3
              

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 corrections and community supervision must be expeditiously  tested  for
 such  syndromes, diseases or viruses.  The department of corrections and
 community supervision shall take immediate action to care for  afflicted
 incarcerated individuals including separation from the general incarcer-
 ated individual population in a special medical facility.
   §  2.  Section  10.00  of  the  penal law is amended by adding two new
 subdivisions 22 and 23 to read as follows:
   22. "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.
   23. "HIV INFECTION" MEANS INFECTION WITH  THE  HUMAN  IMMUNODEFICIENCY
 VIRUS  OR  ANY  OTHER  RELATED  VIRUS IDENTIFIED AS A PROBABLE CAUSATIVE
 AGENT OF AIDS.
   § 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:
   §  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, THE 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.
   § 5.  The penal law is amended by adding  four  new  sections  120.26,
 120.27, 120.28 and 170.36 to read as follows:
 § 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.
 § 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.
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   RECKLESS  ENDANGERMENT  OF THE PUBLIC HEALTH IN THE SECOND DEGREE IS A
 CLASS C FELONY.
 § 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.
 § 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.
   § 6. Section 1.20 of the criminal procedure law is amended  by  adding
 two new subdivisions 46 and 47 to read as follows:
   46.  "HIV  RELATED  ILLNESS" MEANS ANY ILLNESS THAT MAY RESULT FROM OR
 MAY BE ASSOCIATED WITH HIV INFECTION.
   47. "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.
   § 7. The criminal procedure law is amended by  adding  a  new  section
 160.46 to read as follows:
 § 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.
   § 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.
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   (B)  FOR  THOSE PERSONS WHO GENERATE A POSITIVE RESULT, THE DEPARTMENT
 SHALL PROVIDE, IN EACH FACILITY UNDER ITS CONTROL,  THE  INSTRUCTION  OF
 APPROPRIATE  STAFF,  INCARCERATED  INDIVIDUALS  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.
   §  9.  Section 141 of the correction law, as amended by chapter 322 of
 the laws of 2021, is amended to read as follows:
   § 141. Contagious disease in facility. 1. In case  any  pestilence  or
 contagious disease shall break out among the incarcerated individuals in
 any  of  the correctional facilities, or in the vicinity of such facili-
 ties, the commissioner [of correction] may cause the incarcerated  indi-
 viduals confined in such facility, or any of them, to be removed to some
 suitable  place  of  security,  where  such of them as may be sick shall
 receive all necessary care and  medical  assistance;  such  incarcerated
 individuals 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 INCARCERATED INDIVIDUAL SHALL BE REGU-
 LARLY  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 INCARCERATED INDIVIDUALS
 WHO TEST POSITIVE FOR THESE ILLNESSES.
   § 10. The correction law is amended by adding a new section  141-a  to
 read as follows:
   §  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 INCARCERATED INDIVIDUALS, THAT AN
 INCARCERATED INDIVIDUAL  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 INCARCERATED INDIVIDUAL.
   § 11. This act shall take effect on the first of January next succeed-
 ing  the date on which it shall have become a 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. 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 to be made and completed
 within 180 days after the date on which this act  shall  have  become  a
 law.