§ 390.15 Requirement of HIV related testing in certain cases.
1. (a) In any case where the defendant is convicted of 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" {or}, "{deviate 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
testing. 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 imposi-
tion 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
"victim" means the person with whom the defendant engaged in an act of
{sexual intercourse or deviate sexual intercourse} "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 conviction of an offense speci-
fied in paragraph (a) of this subdivision.
(As amended by L.2003, c.264, effective 11/1/03.)
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 of the defendant's conviction; provided
that, for good cause shown, the court may permit such request to be
filed at any time before sentence is imposed.
3. 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.
4. The application for an order to compel a convicted 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;
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. 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.
6. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:
(i) disclosure of confidential HIV related information shall be
limited to that information which is necessary to fulfill the purpose
for which the order is granted;
(ii) disclosure of confidential HIV related information 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 measures as the court deems necessary to protect confidential
information.
7. 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 sentence imposed by the
court.
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 conviction, provided however that nothing
herein 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.
.