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

                                  8758

                          I N  A S S E M B L Y

                            February 12, 2014
                               ___________

Introduced by M. of A. 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 inmates and others who may have an undiagnosed case of any
of these syndromes, diseases or viruses are extremely detrimental to the
health, safety and welfare of the correction officers  and  other  staff
who  work  in  such  facilities  as well as inmates who are incarcerated
therein.  In order to maintain proper security and  working  conditions,
the  legislature  hereby  declares  that  all  inmates  presently  under
confinement and all inmates to be newly admitted to  the  department  of
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06427-03-4
              

A. 8758                             2

inmates including separation from the general  inmate  population  in  a
special medical facility.
  S  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.
  S 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:
  S  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, AND A 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.
  S  5.    The  penal law is amended by adding four new sections 120.26,
120.27, 120.28 and 170.36 to read as follows:
S 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.
S 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.
  RECKLESS  ENDANGERMENT  OF THE PUBLIC HEALTH IN THE SECOND DEGREE IS A
CLASS C FELONY.
S 120.28 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH; DEFENSE.

A. 8758                             3

  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.
S 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.
  S 6. Section 1.20 of the criminal procedure law is amended  by  adding
two new subdivisions 44 and 45 to read as follows:
  44.  "HIV  RELATED  ILLNESS" MEANS ANY ILLNESS THAT MAY RESULT FROM OR
MAY BE ASSOCIATED WITH HIV INFECTION.
  45. "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.
  S 7. The criminal procedure law is amended by  adding  a  new  section
160.46 to read as follows:
S 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.
  S 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.
  (B)  FOR  THOSE PERSONS WHO GENERATE A POSITIVE RESULT, THE DEPARTMENT
SHALL PROVIDE, IN EACH FACILITY UNDER ITS CONTROL,  THE  INSTRUCTION  OF
APPROPRIATE  STAFF,  INMATES AND SIGNIFICANT OTHERS REGARDING THE NATURE
OF ACQUIRED IMMUNE DEFICIENCY SYNDROME AND AIDS RELATED  COMPLEX  (ARC),

A. 8758                             4

HUMAN  IMMUNODEFICIENCY  VIRUS,  TUBERCULOSIS  AND  HEPATITIS, POTENTIAL
PROBLEMS, AND STEPS WHICH MAY BE TAKEN TO MINIMIZE SUCH PROBLEMS.
  S  9.  Section 141 of the correction law, as amended by chapter 476 of
the laws of 1970, is amended to read as follows:
  S 141. Contagious disease in facility. 1. In case  any  pestilence  or
contagious  disease  shall  break  out  among  the inmates in any of the
correctional facilities, or in the  vicinity  of  such  facilities,  the
commissioner  [of  correction]  may  cause  the inmates confined in such
facility, or any of them, to be removed to some suitable place of  secu-
rity, where such of them as may be sick shall receive all necessary care
and medical assistance; such inmates 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 INMATE SHALL BE REGULARLY 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 INMATES WHO TEST POSITIVE FOR THESE ILLNESSES.
  S  10.  The correction law is amended by adding a new section 141-a to
read as follows:
  S 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 INMATES, THAT AN INMATE  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 INMATE.
  S 11. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become 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; and provided, that 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 and
directed to be made and completed within 180  days  after  the  date  on
which this act shall have become a law.