S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4681
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 20, 2019
                                ___________
 
 Introduced  by  Sen.  ORTT  --  read twice and ordered printed, and when
   printed to be committed 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

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

                                                            LBD03949-01-9

 S. 4681                             2
 
 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
 CREATES  A  SUBSTANTIAL  RISK OF THE TRANSMISSION OF HIV/AIDS TO ANOTHER
 PERSON WHO WAS UNAWARE OF SUCH CONDITION.

 S. 4681                             3
 
   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
 DEVELOPMENT OF SUCH SYNDROMES, DISEASES OR VIRUSES  IN  ACCORDANCE  WITH
 PROPER MEDICAL PROCEDURES.

 S. 4681                             4
 
   (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.