S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  844--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2017
                                ___________
 
 Introduced  by  Sens.  YOUNG, BONACIC, O'MARA, RANZENHOFER -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Codes -- recommitted to the Committee on Codes in  accordance  with
   Senate  Rule  6, sec. 8 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee

 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,

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

                                                            LBD05850-02-8

 S. 844--A                           2
 
 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
 inmates  including  separation  from  the general inmate 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

 S. 844--A                           3

 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.
 § 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 45 and 46 to read as follows:
   45. "HIV RELATED ILLNESS" MEANS ANY ILLNESS THAT MAY  RESULT  FROM  OR
 MAY BE ASSOCIATED WITH HIV INFECTION.
   46.  "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

 S. 844--A                           4
 
 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),
 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  476  of
 the laws of 1970, is amended to read as follows:
   §  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.
   § 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 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.
   § 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.