Senate Bill S1795

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

                                  1795

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 12, 2011
                               ___________

Introduced  by Sens. KLEIN, ADAMS, DIAZ, MAZIARZ, PARKER, SAVINO -- 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 requiring HIV
  related testing in certain cases

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

  Section 1. Subdivisions 1, 2, 4, 5 and 8  of  section  390.15  of  the
criminal  procedure  law, subdivision 1 as amended by chapter 264 of the
laws of 2003, and subdivisions 2, 4, 5 and 8 as added by chapter  76  of
the laws of 1995, are amended to read as follows:
  1. (a) In any case where the defendant is [convicted of] CHARGED IN AN
INDICTMENT  WITH  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, where 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 defendant submit to human immunodeficiency (HIV) related  test-
ing.  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 defendant  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,  but  such
results  and disclosure need not be completed prior to the imposition of
sentence.
  (b)  For  the  purposes  of  this  section,  the  terms   "defendant",
"conviction" and "sentence" mean and include, respectively, an "eligible
youth," a "youthful offender finding" and a "youthful offender sentence"
as  those terms are defined in section 720.10 of this chapter.  THE TERM
"INDICTMENT" MEANS AND INCLUDES AN INDICTMENT SEALED PURSUANT TO SECTION

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05919-01-1
              

S. 1795                             2

720.15 OF THIS CHAPTER. The term "victim" means the person with whom the
defendant 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 defendant's INDICTMENT OR conviction of an offense  speci-
fied in paragraph (a) of this subdivision.
  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
or his or her counsel. The request must be filed with the  court  [prior
to  or  within  ten  days]  after  [entry]  FILING  of  the  defendant's
[conviction; provided that, for good cause shown, the court  may  permit
such  request to be filed] INDICTMENT AND at any time before sentence is
imposed.
  4. The application for an order to compel [a  convicted]  AN  INDICTED
person  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  of  which  the  defendant  stands
[convicted]  INDICTED; 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 of which  the  defendant  was
[convicted]  INDICTED.   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  defendant is not tested within the period
prescribed by the court, the court must again order that  the  defendant
undergo an HIV related test.
  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 defendant which relates to events that  were  the
basis  for  the  defendant's  INDICTMENT OR conviction, provided however
that nothing [herein] IN THIS SUBDIVISION 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.
  S 2. This act shall take effect immediately.