HIV TESTING

LAWS OF NEW YORK, 2007
CHAPTER 571

AN ACT to amend the criminal procedure law and the public health law, in
relation to the testing of certain criminal defendants for human immu-
nodeficiency virus

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law
to be omitted.

Became a law August 15, 2007, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. The criminal procedure law is amended by adding a new
section 210.16 to read as follows:
§ 210.16 Requirement of HIV related testing in certain cases.
1. (a) In a case where an indictment or a superior court information
has been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one hundred thirty
of the penal 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 shall, upon a request of the victim within
six months of the date of the crimes charged, order that the defendant
submit to human immunodeficiency virus (HIV) related testing. Testing of
a defendant shall be ordered when the result would provide medical bene-
fit to the victim or a psychological benefit to the victim. Medical
benefit shall be found when the following elements are satisfied: (i) a
decision is pending about beginning, continuing, or discontinuing a
medical intervention for the victim; and (ii) the result of an HIV test
of the accused could affect that decision, and could provide relevant
information beyond that which would be provided by an HIV test of the
victim. If testing the defendant would provide medical benefit to the
victim or a psychological benefit to the victim, then the testing is to
be conducted by a state, county, or local public health officer desig-
nated 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.
(b) For the purposes of this section, the terms "victim" and "appli-
cant" mean the person with whom the defendant is charged to have 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 charging the
defendant with an offense specified in paragraph (a) of this subdivi-
sion.
2. Any request made by the victim pursuant to this section must be in
writing, filed with the court within six months of the date of the
crimes charged, 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
forty-eight hours after the indictment or superior court information has
been filed with the superior court; provided however that, for good

cause shown, the court may permit such request to be filed at a later
stage of the action within six months of the date of the crimes charged.
3. At any stage in the action within six months of the date of the
crimes charged, prior to the final disposition of the indictment or
superior court information and while the defendant is charged with an
offense specified in paragraph (a) of subdivision one of this section,
the victim may request that the defendant submit to a follow-up HIV
related test. Such request must be in writing, filed with the court and
provided by the court to the defendant or his or her counsel. Upon a
finding that the follow-up HIV related test is medically appropriate the
court must order that the defendant submit to such test. The court
shall not make such finding of medical appropriateness unless the
follow-up HIV related test is to be administered a sufficient time after
the charged offense to be consistent with guidelines that may be issued
by the commissioner of health. There shall be no more than one follow-up
HIV related test absent a showing of extraordinary circumstances.
4. Any requests, related papers and orders made or filed pursuant to
this section, together with any papers or proceedings related thereto,
shall be sealed by the court and not made available for any purpose,
except as may be necessary for the conduct of judicial proceedings
directly related to the provisions of this section. All proceedings on
such requests shall be held in camera.
5. The application for an order to compel a defendant 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 appli-
cant was the victim of the offense enumerated in paragraph (a) of subdi-
vision one of this section of which the defendant is charged; and (b)
the applicant has been offered pre-HIV test counseling and post-HIV test
counseling by a public health officer in accordance with article twen-
ty-seven-F of the public health law and has been advised, in accordance
with any guidelines that may be issued by the commissioner of health, 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 experi-
enced; and (iii) the need for the applicant to undergo HIV related test-
ing to definitively determine his or her HIV status.
6. The court shall conduct a hearing only if necessary to determine if
the applicant is the victim of the offense of which the defendant is
charged or to determine whether a follow-up test is medically appropri-
ate. The court ordered test must be performed within forty-eight hours
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. The defendant shall be advised of information as to HIV
testing and medical treatment in accordance with any guidelines that may
be issued by the commissioner of health.
7. (a) Test results shall be disclosed subject to the following limi-
tations, which shall be specified in any order issued pursuant to this
section:
(i) disclosure of confidential HIV related information shall be limit-
ed to that information which is necessary to fulfill the purpose for
which the order is granted; and
(ii) disclosure of confidential HIV related information shall be made
to the defendant upon his or her request, and disclosure to a person
other than the defendant shall be limited to the person making the
application; redisclosure shall be permitted only to the victim, the
victim's immediate family, guardian, physicians, attorneys, medical or
mental health providers and to his or her past and future contacts to
whom there was or is a reasonable risk of HIV transmission and shall not
be permitted to any other person or the court.
(b) Unless inconsistent with this section, the court's order shall
direct compliance with and conform to the provisions of article twenty-
seven-F of the public health law. Such order shall include measures to
protect against disclosure to others of the identity and HIV status of
the applicant and of the person tested and may include such other meas-
ures as the court deems necessary to protect confidential information.
8. Any failure to comply with the provisions of this section or
section twenty-seven hundred eighty-five-a of the public health law
shall not impair or affect the validity of any proceeding upon the
indictment or superior court information.
9. 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 charging the defendant with an offense enumerated in paragraph
(a) of subdivision one of this section, provided however that nothing in
this section 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.
§ 2. Subdivision 1 of section 2805-i of the public health law is
amended by adding a new paragraph (c) to read as follows:
(c) offering and making available appropriate HIV post-exposure treat-
ment therapies in cases where it has been determined, in accordance with
guidelines issued by the commissioner, that a significant exposure to
HIV has occurred, and informing the victim that payment assistance for
such therapies may be available from the crime victims board pursuant to
the provisions of article twenty-two of the executive law.
§ 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law and shall permit court-
ordered testing of persons against whom an indictment or a superior
court information has been filed on and after such effective date.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

JOSEPH L. BRUNO
Temporary President of the Senate
SHELDON SILVER
Speaker of the Assembly