§ 347.1. Required testing of the respondent in certain proceedings.
* 1. (a) In any proceeding where the respondent is found pursuant to
section 345.1 or 346.1 of this article, to have committed 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, 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 thereof, 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
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 court's finding that the
respondent committed acts constituting one or more of the offenses
specified in paragraph (a) of this subdivision.

* NB Effective until September 1, 2024

* 1. (a) In any proceeding where the respondent is found pursuant to
section 345.1 or 346.1 of this article, to have committed 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, for which
an act of "vaginal sexual contact", "oral sexual contact" or "anal
sexual contact", 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
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 "vaginal sexual
contact", "oral sexual contact" or "anal sexual contact", as those terms
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.

* NB Effective September 1, 2024

2. Any request made by the victim pursuant to this section must be in
writing, filed with the court and provided by the court to the defendant
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, 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. 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. The application for an order to compel a respondent to undergo an
HIV related test may be made by the victim but, if the victim is an
infant or incompetent 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 application must state that (a) the
applicant was the victim of the offense, enumerated in paragraph (a) of
subdivision one of this section, which the court found the defendant to
have committed; and (b) 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 on the proposed subject;
(ii) current scientific assessments of the risk of transmission of HIV
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.

5. 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. The court ordered test must be performed within fifteen
days of 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.

6. (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 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 confidential HIV related information shall be
limited to the person making the application; redisclosure shall be
permitted only to the victim, the victim'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 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
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. 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. 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 respondent which relates to events that were the
basis for the respondent'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.