2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 390 - Pre-Sentence Reports › 390.15 - Requirement of HIV Related Testing in Certain Cases.

§ 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",  "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 imposition 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", "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 specified in paragraph (a) of this subdivision.
* NB Effective until September 1, 2024
* 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 "vaginal sexual contact", "oral sexual contact" or  "anal  sexual
contact," 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 imposition 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
"vaginal  sexual  contact",  "oral  sexual  contact"  or  "anal   sexual
contact", 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 specified in paragraph (a) of this subdivision.
* NB Effective September 1, 2024
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.