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

                                  6000

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 3, 2011
                               ___________

Introduced  by M. of A. BURLING, J. MILLER, CALHOUN, HAYES, KOLB, FINCH,
  GIGLIO, HAWLEY, TOBACCO, SPANO, M. MILLER, CASTELLI, McLAUGHLIN, STEV-
  ENSON, CORWIN -- Multi-Sponsored by  --  M.  of  A.  BARCLAY,  CROUCH,
  DUPREY, FITZPATRICK, JORDAN, McDONOUGH, McKEVITT, MOLINARO, MONTESANO,
  OAKS,  PALMESANO,  RAIA, REILICH, SAYWARD -- read once and referred to
  the Committee on Codes

AN ACT to amend the criminal procedure law and the public health law, in
  relation to providing for human immunodeficiency virus testing of  sex
  offenders and disclosure of the results to victims of sex offenses

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

  Section 1. The legislature finds that sex offenses are occurring  with
alarming  frequency;  that  sex  crimes have a lifelong dehumanizing and
traumatizing effect on victims; with  the  increased  incidence  of  the
acquired immune deficiency syndrome virus (AIDS) in New York, victims of
sex  offenses  can  contract the human immunodeficiency virus from their
attackers. These victims have a right to know if they are at risk.
  The purpose of this act is to facilitate identification of sex  offen-
ders  carrying  the  AIDS  virus  in order to notify the victims of such
offenses of the possibility of contracting the virus from their  attack-
ers.
  S  2.  The  criminal  procedure law is amended by adding a new section
210.52 to read as follows:
S 210.52 RESULTS OF BLOOD SPECIMENS.
  UPON MOTION OF THE PROSECUTOR, WITH THE CONSENT OF THE COMPLAINANT AND
SUBJECT TO CONSTITUTIONAL LIMITATION, THE COURT IN WHICH THERE IS  PEND-
ING  AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION
OR INFORMATION CHARGING A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE
PENAL LAW MAY:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03185-01-1

A. 6000                             2
              

  1. ORDER THE TAKING OF SAMPLES OF BLOOD FROM  DEFENDANT'S  BODY  IN  A
MANNER  NOT  INVOLVING  AN  UNREASONABLE INTRUSION THEREOF OR A  RISK OF
SERIOUS PHYSICAL INJURY THERETO.
  THIS SUBDIVISION SHALL NOT BE CONSTRUED TO LIMIT, EXPAND, OR OTHERWISE
AFFECT  THE  ISSUANCE  OF A SIMILAR COURT ORDER, AS MAY BE AUTHORIZED BY
LAW, BEFORE THE FILING OF AN ACCUSATORY INSTRUMENT CONSISTENT WITH  SUCH
RIGHTS  AS  THE DEFENDANT MAY DERIVE FROM THE CONSTITUTION OF THIS STATE
OR OF THE UNITED STATES.
  2. BLOOD SPECIMENS REQUIRED BY SUBDIVISION ONE OF THIS  SECTION  SHALL
BE TAKEN IN THE MANNER PRESCRIBED IN SECTION 210.53 OF THIS ARTICLE.
  3. SUCH BLOOD SPECIMENS SHALL BE FORWARDED TO THE DIVISION OF CRIMINAL
JUSTICE  SERVICES  WHICH  SHALL CONTRACT WITH LABORATORIES AND ESTABLISH
REGULATIONS FOR TESTING TO DETERMINE THE  PRESENCE  OR  ABSENCE  OF  THE
HUMAN IMMUNODEFICIENCY VIRUS (HIV).
  4.  UPON COMPLETION OF SUCH TESTING, THE RESULTS SHALL BE FORWARDED TO
THE PROSECUTOR WHO SHALL, UPON REQUEST OF  THE  COMPLAINANT  AND/OR  THE
DEFENDANT,  REVEAL  THE RESULTS TO SUCH INDIVIDUAL. OTHER THAN NOTIFICA-
TION OF THE VICTIM AND/OR DEFENDANT, THE  TEST  RESULTS  SHALL  BE  HELD
CONFIDENTIAL PURSUANT TO THE PROVISIONS OF ARTICLE TWENTY-SEVEN-F OF THE
PUBLIC HEALTH LAW.
  5. TEST RESULTS SHALL NOT BE ADMISSIBLE AT DEFENDANT'S TRIAL.
  S  3.  The  criminal  procedure law is amended by adding a new section
210.53 to read as follows:
S 210.53 PROCEDURE FOR TAKING BLOOD SPECIMENS.
  1. (A) WHEN THE TAKING OF BLOOD SPECIMENS IS REQUIRED PURSUANT TO  THE
PROVISIONS  OF SECTION 210.52 OF THIS ARTICLE, THE FOLLOWING PERSONS MAY
WITHDRAW BLOOD FOR THE PURPOSE OF CONDUCTING AN  ANALYSIS  TO  DETERMINE
THE  PRESENCE  OR  ABSENCE  OF  THE  HUMAN IMMUNODEFICIENCY VIRUS BY THE
DEPARTMENT OF CRIMINAL JUSTICE SERVICES: (I) A PHYSICIAN,  A  REGISTERED
PROFESSIONAL  NURSE OR A REGISTERED PHYSICIAN'S ASSISTANT; OR (II) UNDER
THE SUPERVISION AND AT THE DIRECTION OF A PHYSICIAN, A MEDICAL LABORATO-
RY TECHNICIAN OR MEDICAL TECHNOLOGIST AS CLASSIFIED BY CIVIL SERVICE,  A
PHLEBOTOMIST,  AN  ADVANCED EMERGENCY MEDICAL TECHNICIAN AS CERTIFIED BY
THE DEPARTMENT OF HEALTH, OR A MEDICAL LABORATORY TECHNICIAN OR  MEDICAL
TECHNOLOGIST EMPLOYED BY A CLINICAL LABORATORY APPROVED UNDER TITLE FIVE
OF ARTICLE FIVE OF THE PUBLIC HEALTH LAW.
  (B)  NO PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO PARAGRAPH (A) OF
THIS SUBDIVISION OR HOSPITAL, CLINIC OR TREATMENT CENTER EMPLOYING  SUCH
PERSON,  AND  NO  OTHER  EMPLOYER  OF  SUCH PERSON SHALL BE SUED OR HELD
LIABLE FOR ANY ACT DONE OR OMITTED IN THE COURSE  OF  WITHDRAWING  BLOOD
PURSUANT TO THIS SECTION.
  (C)  ANY  PERSON WHO MAY HAVE A CAUSE OF ACTION ARISING FROM THE WITH-
DRAWAL OF BLOOD PURSUANT TO THIS  SUBDIVISION,  FOR  WHICH  NO  PERSONAL
LIABILITY  EXISTS  UNDER PARAGRAPH (B) OF THIS SUBDIVISION, MAY MAINTAIN
SUCH ACTION AGAINST THE STATE. NO ACTION SHALL BE MAINTAINED PURSUANT TO
THIS PARAGRAPH UNLESS A NOTICE OF CLAIM HAS BEEN DULY SERVED IN  COMPLI-
ANCE  WITH  THE REQUIREMENTS SET FORTH IN SECTION FIFTY-E OF THE GENERAL
MUNICIPAL LAW.
  (D) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION TO THE  CONTRA-
RY,  AN  ACTION MAY BE MAINTAINED BY THE STATE AGAINST A PERSON ENTITLED
TO WITHDRAW BLOOD PURSUANT TO  PARAGRAPH  (A)  OF  THIS  SUBDIVISION  OR
HOSPITAL  EMPLOYING  SUCH PERSON FOR WHOSE ACT OR OMISSION THE STATE HAS
BEEN HELD LIABLE UNDER THIS SUBDIVISION TO RECOVER DAMAGES, NOT  EXCEED-
ING  THE AMOUNT AWARDED TO THE CLAIMANT, THAT MAY HAVE BEEN SUSTAINED BY
THE STATE BY REASON OF GROSS NEGLIGENCE OR BAD FAITH ON THE PART OF SUCH
PERSON.

A. 6000                             3

  (E) THE PROVISIONS OF PARAGRAPHS (B), (C) AND (D) OF THIS  SUBDIVISION
SHALL  ALSO  APPLY  TO  ANY  PERSON  EMPLOYED  BY A HOSPITAL AS SECURITY
PERSONNEL FOR ANY ACT PERFORMED OR OMITTED IN THE COURSE OF  WITHDRAWING
BLOOD PURSUANT TO A COURT ORDER.
  2. THE DEPARTMENT OF HEALTH SHALL ISSUE AND FILE RULES AND REGULATIONS
APPROVING SATISFACTORY TECHNIQUES OR METHODS OF CONDUCTING ANALYSES OF A
PERSON'S BLOOD TO DETERMINE THE PRESENCE OR ABSENCE OF THE HUMAN IMMUNO-
DEFICIENCY  VIRUS  AND TO ASCERTAIN THE QUALIFICATIONS AND COMPETENCE OF
INDIVIDUALS TO CONDUCT AND SUPERVISE ANALYSES OF  A  PERSON'S  BLOOD  TO
DETERMINE  THE  PRESENCE  OF  THE  ACQUIRED  IMMUNE  DEFICIENCY SYNDROME
(AIDS). IF THE ANALYSES WERE MADE BY AN INDIVIDUAL POSSESSING  A  PERMIT
ISSUED  BY  THE DEPARTMENT OF HEALTH, THIS SHALL BE PRESUMPTIVE EVIDENCE
THAT THE ANALYSES WERE PROPERLY PERFORMED.
  3. BLOOD SPECIMENS SHALL BE DRAWN AND COLLECTED IN A MANNER PRESCRIBED
BY THE DIVISION OF CRIMINAL JUSTICE  SERVICES,  WHICH  DEPARTMENT  SHALL
PROVIDE  SPECIMEN  VIALS, MAILING TUBES, LABELS AND INSTRUCTIONS FOR THE
COLLECTION OF BLOOD SPECIMENS.
  4. THE BLOOD SPECIMENS SHALL BE FORWARDED TO THE DIVISION OF  CRIMINAL
JUSTICE  SERVICES  OR  TO  A  LABORATORY DESIGNATED BY SUCH DIVISION FOR
ANALYSIS TO DETERMINE THE PRESENCE OR ABSENCE OF AIDS.
  S 4. Paragraphs (o), (p) and (q) of subdivision 1 of section  2782  of
the public health law, paragraph (o) as added by chapter 584 of the laws
of  1988, paragraph (p) as amended by chapter 41 of the laws of 2010 and
paragraph (q) as added by chapter 308 of the laws of 2010,  are  amended
and a new paragraph (r) is added to read as follows:
  (o)  an  employee or agent of the commission of correction, in accord-
ance with paragraph (a)  of  subdivision  two  of  section  twenty-seven
hundred  eighty-six of this article, to the extent the employee or agent
is authorized to access records containing such information in order  to
carry  out the commission's functions, powers and duties with respect to
the protected individual, pursuant to article three  of  the  correction
law[.];
  (p)  an attorney appointed to represent a minor pursuant to the social
services law or the family court act, with respect to  confidential  HIV
related information relating to the minor and for the purpose of repres-
enting  the minor. If the minor has the capacity to consent, the minor's
attorney may not redisclose confidential HIV related information without
the minor's permission. If the minor  lacks  capacity  to  consent,  the
minor's attorney may redisclose confidential HIV related information for
the  sole  purpose  of  representing the minor. This paragraph shall not
limit the ability of the minor's attorney to seek relief  under  section
twenty-seven hundred eighty-five of this [chapter.] ARTICLE; OR
  (q)  an executor or an administrator of an estate shall have access to
the confidential HIV information of  a  deceased  person  as  needed  to
fulfill his or her responsibilities/duties as an executor or administra-
tor[.]; OR
  (R)  THE COMPLAINANT AND DEFENDANT AS SET FORTH IN SUBDIVISION FOUR OF
SECTION 210.52 OF THE CRIMINAL PROCEDURE LAW.
  S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.