2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title I - Preliminary Proceedings in Superior Court › Article 210 - Proceedings in Superior Court From Filing of Indictment to Plea › 210.16 - Requirement of HIV Related Testing in Certain Cases.

§ 210.16 Requirement of HIV related testing in certain cases.
* 1. (a) In a case where an indictment or a superior court information
has  been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one  hundred  thirty
of  the  penal  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 shall, upon a request of the victim within
six  months  of the date of the crimes charged, order that the defendant
submit to human immunodeficiency virus (HIV) related testing. Testing of
a defendant shall be ordered  when  the  result  would  provide  medical
benefit  to the victim or a psychological benefit to the victim. Medical
benefit shall be found when the following elements are satisfied: (i)  a
decision  is  pending  about  beginning,  continuing, or discontinuing a
medical intervention for the victim; and (ii) the result of an HIV  test
of  the  accused  could affect that decision, and could provide relevant
information beyond that which would be provided by an HIV  test  of  the
victim.  If  testing  the defendant would provide medical benefit to the
victim or a psychological benefit to the victim, then 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.
(b)  For  the  purposes  of  this  section,  the  terms  "victim"  and
"applicant" mean the person with whom the defendant is charged  to  have
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
charging the defendant with an offense specified  in  paragraph  (a)  of
this subdivision.
* NB Effective until September 1, 2024
* 1. (a) In a case where an indictment or a superior court information
has  been filed with a superior court which charges the defendant with a
felony offense enumerated in any section of article one  hundred  thirty
of  the penal 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 shall, upon a request of the victim within
six  months  of the date of the crimes charged, order that the defendant
submit to human immunodeficiency virus (HIV) related testing. Testing of
a defendant shall be ordered  when  the  result  would  provide  medical
benefit  to the victim or a psychological benefit to the victim. Medical
benefit shall be found when the following elements are satisfied: (i)  a
decision  is  pending  about  beginning,  continuing, or discontinuing a
medical intervention for the victim; and (ii) the result of an HIV  test
of  the  accused  could affect that decision, and could provide relevant
information beyond that which would be provided by an HIV  test  of  the
victim.  If  testing  the defendant would provide medical benefit to the
victim or a psychological benefit to the victim, then 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.
(b)  For  the  purposes  of  this  section,  the  terms  "victim"  and
"applicant" mean the person with whom the defendant is charged  to  have
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
charging the defendant with 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 within six  months  of  the  date  of  the
crimes charged, 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
forty-eight hours after the indictment or superior court information has
been filed with the superior court;  provided  however  that,  for  good
cause  shown,  the  court may permit such request to be filed at a later
stage of the action within six months of the date of the crimes charged.
3. At any stage in the action within six months of  the  date  of  the
crimes  charged,  prior  to  the  final disposition of the indictment or
superior court information and while the defendant is  charged  with  an
offense  specified  in paragraph (a) of subdivision one of this section,
the victim may request that the defendant  submit  to  a  follow-up  HIV
related  test. Such request must be in writing, filed with the court and
provided by the court to the defendant or his or  her  counsel.  Upon  a
finding that the follow-up HIV related test is medically appropriate the
court must order that the defendant submit to such test. The court shall
not  make  such  finding of medical appropriateness unless the follow-up
HIV related test is to be  administered  a  sufficient  time  after  the
charged  offense  to be consistent with guidelines that may be issued by
the commissioner of health. There shall be no more  than  one  follow-up
HIV related test absent a showing of extraordinary circumstances.
4.  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.
5. The application for an order to compel a defendant  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 is  charged;  and
(b)  the applicant has been offered pre-HIV test counseling and post-HIV
test counseling by a public health officer in  accordance  with  article
twenty-seven-F  of  the  public  health  law  and  has  been advised, in
accordance with any guidelines that may be issued by the commissioner of
health, 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.
6. The court shall conduct a hearing only if necessary to determine if
the  applicant  is  the  victim of the offense of which the defendant is
charged  or  to  determine  whether  a  follow-up  test   is   medically
appropriate. The court ordered test must be performed within forty-eight
hours  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.  The  defendant  shall  be  advised  of

information  as  to HIV testing and medical treatment in accordance with
any guidelines that may be issued by the commissioner of health.
7.  (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; and
(ii)  disclosure of confidential HIV related information shall be made
to the defendant upon his or her request, and  disclosure  to  a  person
other  than  the  defendant  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.
8. 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  proceeding  upon  the
indictment or superior court information.
9.  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 charging the defendant with an offense enumerated in paragraph
(a) of subdivision one of this section, provided however that nothing in
this  section  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.