N.Y. FCT Law § 347.1 — New York Code / Act FCT / Article 3 / Part 4 / Section 347.1
Required testing of the respondent in certain proceedings
Status: in_force

§ 347.1. Required testing of the respondent in certain proceedings.\n1. (a) In any proceeding where the respondent is found pursuant to\nsection 345.1 or 346.1 of this article, to have committed 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, for which\nan act of "vaginal sexual contact", "oral sexual contact" or "anal\nsexual contact", as those terms are defined in section 130.00 of the\npenal law, is required as an essential element for the commission\nthereof, the court must, upon a request of the victim, order that the\nrespondent submit to human immunodeficiency (HIV) related testing. The\ntesting is to be conducted by a state, county, or local public health\nofficer designated by the order. Test results, which shall not be\ndisclosed to the court, shall be communicated to the respondent and the\nvictim named in the order in accordance with the provisions of section\ntwenty-seven hundred eighty-five-a of the public health law.\n  (b) For the purposes of this section, the term "victim" means the\nperson with whom the respondent engaged in an act of "vaginal sexual\ncontact", "oral sexual contact" or "anal sexual contact", as those terms\nare defined in section 130.00 of the penal law, where such conduct with\nsuch victim was the basis for the court's finding that the respondent\ncommitted acts constituting one or more of the offenses specified in\nparagraph (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\nand his or her counsel. The request must be filed with the court prior\nto or within ten days after the filing of an order in accordance with\nsection 345.1 or 346.1 of this article, provided that, for good cause\nshown, the court may permit such request to be filed at any time prior\nto the entry of an order of disposition.\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 respondent 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, which the court found the defendant to\nhave committed; and (b) the applicant has been offered counseling by a\npublic health officer and been advised of (i) the limitations on the\ninformation to be obtained through an HIV test on the proposed subject;\n(ii) current scientific assessments of the risk of transmission of HIV\nfrom the exposure he or she may have experienced; and (iii) the need for\nthe applicant to undergo HIV related testing to definitively determine\nhis or 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 the respondent was found to\nhave committed. The court ordered test must be performed within fifteen\ndays of the date on which the court ordered the test, provided however\nthat whenever the respondent is not tested within the period prescribed\nby the court, the court must again order that the respondent undergo an\nHIV related 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 the validity of any order of disposition entered 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 respondent which relates to events that were the\nbasis for the respondent'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