N.Y. CPL Law § 210.16 — New York Code / Act CPL / Part 2 / Title I / Article 210 / Section 210.16
Requirement of HIV related testing in certain cases
Status: in_force

§ 210.16 Requirement of HIV related testing in certain cases.\n  1. (a) In a case where an indictment or a superior court information\nhas been filed with a superior court which charges the defendant with a\nfelony offense enumerated in any section of article one hundred thirty\nof the penal law where an act of "vaginal sexual contact", "oral sexual\ncontact" or "anal sexual contact," as those terms are defined in section\n130.00 of the penal law, is required as an essential element for the\ncommission thereof, the court shall, upon a request of the victim within\nsix months of the date of the crimes charged, order that the defendant\nsubmit to human immunodeficiency virus (HIV) related testing. Testing of\na defendant shall be ordered when the result would provide medical\nbenefit to the victim or a psychological benefit to the victim. Medical\nbenefit shall be found when the following elements are satisfied: (i) a\ndecision is pending about beginning, continuing, or discontinuing a\nmedical intervention for the victim; and (ii) the result of an HIV test\nof the accused could affect that decision, and could provide relevant\ninformation beyond that which would be provided by an HIV test of the\nvictim. If testing the defendant would provide medical benefit to the\nvictim or a psychological benefit to the victim, then the testing is to\nbe conducted by a state, county, or local public health officer\ndesignated by the order. Test results, which shall not be disclosed to\nthe court, shall be communicated to the defendant and the victim named\nin the order in accordance with the provisions of section twenty-seven\nhundred eighty-five-a of the public health law.\n  (b) For the purposes of this section, the terms "victim" and\n"applicant" mean the person with whom the defendant is charged to have\nengaged in an act of "vaginal sexual contact", "oral sexual contact" or\n"anal sexual contact", as those terms are defined in section 130.00 of\nthe penal law, where such conduct with such victim was the basis for\ncharging the defendant with an offense specified in paragraph (a) of\nthis subdivision.\n  2. Any request made by the victim pursuant to this section must be in\nwriting, filed with the court within six months of the date of the\ncrimes charged, and provided by the court to the defendant or his or her\ncounsel. The request must be filed with the court prior to or within\nforty-eight hours after the indictment or superior court information has\nbeen filed with the superior court; provided however that, for good\ncause shown, the court may permit such request to be filed at a later\nstage of the action within six months of the date of the crimes charged.\n  3. At any stage in the action within six months of the date of the\ncrimes charged, prior to the final disposition of the indictment or\nsuperior court information and while the defendant is charged with an\noffense specified in paragraph (a) of subdivision one of this section,\nthe victim may request that the defendant submit to a follow-up HIV\nrelated test. Such request must be in writing, filed with the court and\nprovided by the court to the defendant or his or her counsel. Upon a\nfinding that the follow-up HIV related test is medically appropriate the\ncourt must order that the defendant submit to such test. The court shall\nnot make such finding of medical appropriateness unless the follow-up\nHIV related test is to be administered a sufficient time after the\ncharged offense to be consistent with guidelines that may be issued by\nthe commissioner of health. There shall be no more than one follow-up\nHIV related test absent a showing of extraordinary circumstances.\n  4. Any requests, related papers and orders made or filed pursuant to\nthis section, together with any papers or proceedings related thereto,\nshall be sealed by the court and not made available for any purpose,\nexcept as may be necessary for the conduct of judicial proceedings\ndirectly related to the provisions of this section. All proceedings on\nsuch requests shall be held in camera.\n  5. The application for an order to compel a defendant to undergo an\nHIV related test may be made by the victim but, if the victim is an\ninfant or incompetent person, the application may also be made by a\nrepresentative as defined in section twelve hundred one of the civil\npractice law and rules. The application must state that: (a) the\napplicant was the victim of the offense enumerated in paragraph (a) of\nsubdivision one of this section of which the defendant is charged; and\n(b) the applicant has been offered pre-HIV test counseling and post-HIV\ntest counseling by a public health officer in accordance with article\ntwenty-seven-F of the public health law and has been advised, in\naccordance with any guidelines that may be issued by the commissioner of\nhealth, of (i) the limitations on the information to be obtained through\nan HIV test on the proposed subject; (ii) current scientific assessments\nof the risk of transmission of HIV from the exposure he or she may have\nexperienced; and (iii) the need for the applicant to undergo HIV related\ntesting to definitively determine his or her HIV status.\n  6. The court shall conduct a hearing only if necessary to determine if\nthe applicant is the victim of the offense of which the defendant is\ncharged or to determine whether a follow-up test is medically\nappropriate. The court ordered test must be performed within forty-eight\nhours of the date on which the court ordered the test, provided,\nhowever, that whenever the defendant is not tested within the period\nprescribed by the court, the court must again order that the defendant\nundergo an HIV related test. The defendant shall be advised of\ninformation as to HIV testing and medical treatment in accordance with\nany guidelines that may be issued by the commissioner of health.\n  7. (a) Test results shall be disclosed subject to the following\nlimitations, which shall be specified in any order issued pursuant to\nthis section:\n  (i) disclosure of confidential HIV related information shall be\nlimited to that information which is necessary to fulfill the purpose\nfor which the order is granted; and\n  (ii) disclosure of confidential HIV related information shall be made\nto the defendant upon his or her request, and disclosure to a person\nother than the defendant shall be limited to the person making the\napplication; redisclosure shall be permitted only to the victim, the\nvictim's immediate family, guardian, physicians, attorneys, medical or\nmental health providers and to his or her past and future contacts to\nwhom there was or is a reasonable risk of HIV transmission and shall not\nbe permitted to any other person or the court.\n  (b) Unless inconsistent with this section, the court's order shall\ndirect compliance with and conform to the provisions of article\ntwenty-seven-F of the public health law. Such order shall include\nmeasures to protect against disclosure to others of the identity and HIV\nstatus of the applicant and of the person tested and may include such\nother measures as the court deems necessary to protect confidential\ninformation.\n  8. Any failure to comply with the provisions of this section or\nsection twenty-seven hundred eighty-five-a of the public health law\nshall not impair or affect the validity of any proceeding upon the\nindictment or superior court information.\n  9. No information obtained as a result of a consent, hearing or court\norder for testing issued pursuant to this section nor any information\nderived therefrom may be used as evidence in any criminal or civil\nproceeding against the defendant which relates to events that were the\nbasis for charging the defendant with an offense enumerated in paragraph\n(a) of subdivision one of this section, provided however that nothing in\nthis section shall prevent prosecution of a witness testifying in any\ncourt hearing held pursuant to this section for perjury pursuant to\narticle two hundred ten of the penal law.\n