N.Y. CPL Law § 390.15 — New York Code / Act CPL / Part 2 / Title L / Article 390 / Section 390.15
Requirement of HIV related testing in certain cases
Status: in_force

§ 390.15 Requirement of HIV related testing in certain cases.\n  1. (a) In any case where the defendant is convicted of a felony\noffense enumerated in any section of article one hundred thirty of the\npenal law, or any subdivision of section 130.20 of such law, where an\nact of "vaginal sexual contact", "oral sexual contact" or "anal sexual\ncontact," as those terms are defined in section 130.00 of the penal law,\nis required as an essential element for the commission thereof, the\ncourt must, upon a request of the victim, order that the defendant\nsubmit to human immunodeficiency (HIV) related testing. The testing is\nto be 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, but such results and\ndisclosure need not be completed prior to the imposition of sentence.\n  (b) For the purposes of this section, the terms "defendant",\n"conviction" and "sentence" mean and include, respectively, an "eligible\nyouth," a "youthful offender finding" and a "youthful offender sentence"\nas those terms are defined in section 720.10 of this chapter. The term\n"victim" means the person with whom the defendant engaged in an act of\n"vaginal sexual contact", "oral sexual contact" or "anal sexual\ncontact", as those terms are defined in section 130.00 of the penal law,\nwhere such conduct with such victim was the basis for the defendant's\nconviction of an offense specified in paragraph (a) of this subdivision.\n  2. Any request made by the victim pursuant to this section must be in\nwriting, filed with the court and provided by the court to the defendant\nor his or her counsel. The request must be filed with the court prior to\nor within ten days after entry of the defendant's conviction; provided\nthat, for good cause shown, the court may permit such request to be\nfiled at any time before sentence is imposed.\n  3. 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  4. The application for an order to compel a convicted person to\nundergo an HIV related test may be made by the victim but, if the victim\nis an infant or incompetent person, the application may also be made by\na representative 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 stands convicted;\nand (b) the applicant has been offered counseling by a public health\nofficer and been advised of (i) the limitations on the information to be\nobtained through an HIV test on the proposed subject; (ii) current\nscientific assessments of the risk of transmission of HIV from the\nexposure he or she may have experienced, and (iii) the need for the\napplicant to undergo HIV related testing to definitively determine his\nor her HIV status.\n  5. The court shall conduct a hearing only if necessary to determine if\nthe applicant is the victim of the offense of which the defendant was\nconvicted. The court ordered test must be performed within fifteen days\nof the date on which the court ordered the test, provided, however, that\nwhenever the defendant is not tested within the period prescribed by the\ncourt, the court must again order that the defendant undergo an HIV\nrelated test.\n  6. (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;\n  (ii) disclosure of confidential HIV related information shall be\nlimited to the person making the application; redisclosure shall be\npermitted only to the victim, the victim's immediate family, guardian,\nphysicians, attorneys, medical or mental health providers and to his or\nher past and future contacts to whom there was or is a reasonable risk\nof HIV transmission and shall not be permitted to any other person or\nthe 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  7. 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 sentence imposed by the\ncourt.\n  8. 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 the defendant's conviction, provided however that nothing\nherein shall prevent prosecution of a witness testifying in any court\nhearing held pursuant to this section for perjury pursuant to article\ntwo hundred ten of the penal law.\n