Bill Text: NY A04939 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the penal law, the criminal procedure law and the correction law, in relation to criminalizing the reckless transmission of HIV/AIDS and to require testing for AIDS and HIV for certain persons
Spectrum: Partisan Bill (Republican 18-0)
Status: (Introduced - Dead) 2010-05-18 - held for consideration in codes [A04939 Detail]
Download: New_York-2009-A04939-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4939
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
___________
Introduced by M. of A. GIGLIO, QUINN, ERRIGO, FINCH, WALKER, KOLB --
Multi-Sponsored by -- M. of A. BALL, BARCLAY, BURLING, CALHOUN,
CROUCH, HAWLEY, McDONOUGH, McKEVITT, MILLER, MOLINARO, OAKS, SAYWARD,
TOWNSEND -- read once and referred to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the
correction law, in relation to criminalizing the reckless transmission
of HIV/AIDS and to require testing for AIDS and HIV for certain
persons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Legislative intent. The legislature finds that HIV/AIDS
2 infection poses a serious threat to the public health of all New Yorkers
3 whenever HIV/AIDS infected persons act in a manner which is likely to
4 spread this horrible disease to other persons. When HIV/AIDS infected
5 persons commit such actions as having unprotected sex or sharing needles
6 without the consent of their partners, they endanger the public health
7 and frustrate the efforts of health officials to contain and, hopefully,
8 reverse the spread of HIV/AIDS.
9 The legislature further finds that in order to allow the victims of
10 alleged sex crimes or crimes which endanger their health to obtain the
11 most effective health care treatment, the HIV status of their offenders
12 must be determined.
13 The legislature further finds that the increasing reports of acquired
14 immune deficiency syndrome, human immunodeficiency virus, tuberculosis
15 and hepatitis in state correctional facilities have reached an alarming
16 level. These inmates and others who may have an undiagnosed case of any
17 of these syndromes, diseases or viruses are extremely detrimental to the
18 health, safety and welfare of the correction officers and other staff
19 who work in such facilities as well as inmates who are incarcerated
20 therein. In order to maintain proper security and working conditions,
21 the legislature hereby declares that all inmates presently under
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05170-01-9
A. 4939 2
1 confinement and all inmates to be newly admitted to the department of
2 correctional services must be expeditiously tested for such syndromes,
3 diseases or viruses. The department of correctional services shall take
4 immediate action to care for afflicted inmates including separation from
5 the general inmate population in a special medical facility.
6 S 2. Section 10.00 of the penal law is amended by adding two new
7 subdivisions 21 and 22 to read as follows:
8 21. "AIDS" MEANS ACQUIRED IMMUNE DEFICIENCY SYNDROME, AS MAY BE
9 DEFINED FROM TIME TO TIME BY THE CENTERS FOR DISEASE CONTROL OF THE
10 UNITED STATES PUBLIC HEALTH SERVICE.
11 22. "HIV INFECTION" MEANS INFECTION WITH THE HUMAN IMMUNODEFICIENCY
12 VIRUS OR ANY OTHER RELATED VIRUS IDENTIFIED AS A PROBABLE CAUSATIVE
13 AGENT OF AIDS.
14 S 3. The opening paragraph of subdivision 1 of section 70.25 of the
15 penal law, as amended by chapter 372 of the laws of 1981, is amended to
16 read as follows:
17 Except as provided in subdivisions two, two-a [and], five AND SIX of
18 this section, when multiple sentences of imprisonment are imposed on a
19 person at the same time, or when a person who is subject to any undisc-
20 harged term of imprisonment imposed at a previous time by a court of
21 this state is sentenced to an additional term of imprisonment, the
22 sentence or sentences imposed by the court shall run either concurrently
23 or consecutively with respect to each other and the undischarged term or
24 terms in such manner as the court directs at the time of sentence. If
25 the court does not specify the manner in which a sentence imposed by it
26 is to run, the sentence shall run as follows:
27 S 4. Section 70.25 of the penal law is amended by adding a new subdi-
28 vision 6 to read as follows:
29 6. WHEN A PERSON IS CONVICTED OF RECKLESS ENDANGERMENT OF THE PUBLIC
30 HEALTH IN THE FIRST DEGREE, AS DEFINED IN SECTION 120.26 OF THIS CHAP-
31 TER, OR RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE,
32 AS DEFINED IN SECTION 120.27 OF THIS CHAPTER, AND A TERM OF IMPRISONMENT
33 WHICH MAY BE IMPOSED AS A SENTENCE UPON SUCH CONVICTION, SHALL RUN
34 CONSECUTIVELY TO ANY OTHER TERM OF IMPRISONMENT IMPOSED AS THE SENTENCE
35 UPON THE CONVICTION OF ANY OTHER OFFENSE COMMITTED THROUGH THE SAME ACT
36 OR OMISSION, OR THROUGH AN ACT OR OMISSION WITH ITSELF CONSTITUTED ONE
37 OF THE MATERIAL ELEMENTS OF SUCH RECKLESS ENDANGERMENT OF THE PUBLIC
38 HEALTH OFFENSE.
39 S 5. The penal law is amended by adding four new sections 120.26,
40 120.27, 120.28 and 170.36 to read as follows:
41 S 120.26 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST
42 DEGREE.
43 A PERSON IS GUILTY OF RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN
44 THE FIRST DEGREE WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED POSI-
45 TIVELY FOR HIV/AIDS AND THEN RECKLESSLY ENGAGES IN CONDUCT WHICH RESULTS
46 IN THE TRANSMISSION OF HIV/AIDS TO ANOTHER PERSON WHO WAS UNAWARE OF
47 SUCH CONDITION.
48 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE FIRST DEGREE IS A
49 CLASS B FELONY.
50 S 120.27 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND
51 DEGREE.
52 A PERSON IS GUILTY OF RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN
53 THE SECOND DEGREE WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED
54 POSITIVELY FOR HIV/AIDS AND THEN RECKLESSLY ENGAGES IN CONDUCT WHICH
55 CREATES A SUBSTANTIAL RISK OF THE TRANSMISSION OF HIV/AIDS TO ANOTHER
56 PERSON WHO WAS UNAWARE OF SUCH CONDITION.
A. 4939 3
1 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH IN THE SECOND DEGREE IS A
2 CLASS C FELONY.
3 S 120.28 RECKLESS ENDANGERMENT OF THE PUBLIC HEALTH; DEFENSE.
4 IN ANY PROSECUTION UNDER SECTION 120.26 OR 120.27 OF THIS ARTICLE, IT
5 SHALL BE AN ABSOLUTE DEFENSE THAT THE DEFENDANT, AT THE TIME SHE WAS
6 ENGAGED IN THE CONDUCT CONSTITUTING THE OFFENSE, WAS A WOMAN WHO TRANS-
7 MITTED THE HIV/AIDS VIRUS TO HER CHILD AS THE RESULT OF GIVING BIRTH TO
8 SUCH CHILD.
9 S 170.36 OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE PUBLIC HEALTH.
10 A PERSON IS GUILTY OF OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE
11 PUBLIC HEALTH WHEN HE OR SHE IS AWARE THAT HE OR SHE HAS TESTED POSITIVE
12 FOR HIV/AIDS AND THEN KNOWING THAT A WRITTEN INSTRUMENT CONTAINS A FALSE
13 STATEMENT OR FALSE INFORMATION REGARDING HIS OR HER HIV STATUS AND WITH
14 THE INTENT TO DEFRAUD THE DEPARTMENT OF HEALTH, ANY SUBDIVISION OR AGENT
15 THEREOF, OR ANY OTHER HEALTH CARE PROVIDER, HE OR SHE OFFERS OR PRESENTS
16 SUCH INSTRUMENT TO AN AGENT OF THAT OFFICE OR OTHER HEALTH CARE PROVIDER
17 WITH THE KNOWLEDGE OR BELIEF THAT IT WILL BE FILED WITH, REGISTERED OR
18 RECORDED IN OR OTHERWISE BECOME A PART OF THE RECORDS OF SUCH PUBLIC
19 OFFICE OR PUBLIC SERVANT.
20 OFFERING A FALSE INSTRUMENT WHICH ENDANGERS THE PUBLIC HEALTH IS A
21 CLASS E FELONY.
22 S 6. Section 1.20 of the criminal procedure law is amended by adding
23 two new subdivisions 44 and 45 to read as follows:
24 44. "HIV RELATED ILLNESS" MEANS ANY ILLNESS THAT MAY RESULT FROM OR
25 MAY BE ASSOCIATED WITH HIV INFECTION.
26 45. "HIV RELATED TEST" MEANS ANY LABORATORY TEST OR SERIES OF TESTS
27 FOR ANY VIRUS, ANTIBODY, ANTIGEN OR ETIOLOGIC AGENT WHATSOEVER THOUGHT
28 TO CAUSE OR TO INDICATE THE PRESENCE OF AIDS.
29 S 7. The criminal procedure law is amended by adding a new section
30 160.46 to read as follows:
31 S 160.46 HIV RELATED TESTING OF ALLEGED SEX AND PUBLIC HEALTH OFFENDERS.
32 1. A POLICE OFFICER WHO MAKES AN ARREST FOR ANY CRIME SET FORTH IN
33 ARTICLE ONE HUNDRED THIRTY OR SECTION 120.26 OR 120.27 OF THE PENAL LAW,
34 EITHER WITH OR WITHOUT A WARRANT, SHALL, FOLLOWING SUCH ARREST OR THE
35 ARRAIGNMENT UPON A LOCAL CRIMINAL COURT ACCUSATORY INSTRUMENT OF A
36 DEFENDANT WHOSE COURT ATTENDANCE HAS BEEN SECURED BY A SUMMONS OR AN
37 APPEARANCE TICKET, CAUSE SUCH DEFENDANT TO BE IMMEDIATELY GIVEN AN HIV
38 RELATED TEST TO DETERMINE IF SUCH DEFENDANT HAS HIV INFECTION, HIV
39 RELATED ILLNESS OR AIDS.
40 2. THE HIV RELATED TEST PRESCRIBED IN SUBDIVISION ONE OF THIS SECTION
41 AND THE SUBMISSION OF AVAILABLE INFORMATION CONCERNING THE DEFENDANT AND
42 THE FACTS AND CIRCUMSTANCES OF THE CRIME CHARGED MUST BE IN ACCORDANCE
43 WITH THE RULES AND REGULATIONS PROMULGATED BY THE COMMISSIONER OF CRIMI-
44 NAL JUSTICE SERVICES.
45 3. THE RESULT OF AN HIV RELATED TEST PERFORMED PURSUANT TO SUBDIVISION
46 ONE OF THIS SECTION, SHALL, UPON REQUEST, BE MADE AVAILABLE TO THE
47 VICTIM OR ALLEGED VICTIM OF SUCH CRIME AND TO THE DEFENDANT.
48 S 8. Section 71 of the correction law is amended by adding a new
49 subdivision 8 to read as follows:
50 8. (A) PERSONS WHO ARE COMMITTED, TRANSFERRED, CERTIFIED TO OR PLACED
51 IN THE CARE OR CUSTODY OF THE DEPARTMENT SHALL BE IMMEDIATELY TESTED FOR
52 EVIDENCE OF ACQUIRED IMMUNE DEFICIENCY SYNDROME, HUMAN IMMUNODEFICIENCY
53 VIRUS, TUBERCULOSIS AND HEPATITIS AND MONITORED FOR THE POSSIBILITY OF
54 DEVELOPMENT OF SUCH SYNDROMES, DISEASES OR VIRUSES IN ACCORDANCE WITH
55 PROPER MEDICAL PROCEDURES.
A. 4939 4
1 (B) FOR THOSE PERSONS WHO GENERATE A POSITIVE RESULT, THE DEPARTMENT
2 SHALL PROVIDE, IN EACH FACILITY UNDER ITS CONTROL, THE INSTRUCTION OF
3 APPROPRIATE STAFF, INMATES AND SIGNIFICANT OTHERS REGARDING THE NATURE
4 OF ACQUIRED IMMUNE DEFICIENCY SYNDROME AND AIDS RELATED COMPLEX (ARC),
5 HUMAN IMMUNODEFICIENCY VIRUS, TUBERCULOSIS AND HEPATITIS, POTENTIAL
6 PROBLEMS, AND STEPS WHICH MAY BE TAKEN TO MINIMIZE SUCH PROBLEMS.
7 S 9. Section 141 of the correction law, as amended by chapter 476 of
8 the laws of 1970, is amended to read as follows:
9 S 141. Contagious disease in facility. 1. In case any pestilence or
10 contagious disease shall break out among the inmates in any of the
11 correctional facilities, or in the vicinity of such facilities, the
12 commissioner [of correction] may cause the inmates confined in such
13 facility, or any of them, to be removed to some suitable place of secu-
14 rity, where such of them as may be sick shall receive all necessary care
15 and medical assistance; such inmates shall be returned as soon as may be
16 feasible to the facility from which they were taken, to be confined
17 therein according to their respective sentences.
18 2. TO REDUCE THE POSSIBILITY OF ANY PESTILENCE OR CONTAGIOUS DISEASE
19 IN CORRECTIONAL FACILITIES, EVERY INMATE SHALL BE REGULARLY ADMINISTERED
20 A BLOOD TEST DESIGNED TO TEST FOR THE VIRAL AGENT KNOWN AS HTLV-III/LAV
21 WHICH CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME AND A BLOOD TEST
22 DESIGNED TO TEST FOR TUBERCULOSIS AND HEPATITIS. THE COMMISSIONER SHALL
23 TAKE ALL NECESSARY PRECAUTIONS WHICH SHALL INCLUDE MONITORING, EDUCATION
24 AND COUNSELING FOR THOSE INMATES WHO TEST POSITIVE FOR THESE ILLNESSES.
25 S 10. The correction law is amended by adding a new section 141-a to
26 read as follows:
27 S 141-A. NOTIFICATION OF DISEASE SYMPTOMS. UPON THE DIAGNOSIS OF A
28 FACILITY HEALTH DIRECTOR OR ANY OTHER MEDICAL SERVICE PROVIDER AUTHOR-
29 IZED BY THE DEPARTMENT TO EXAMINE INMATES, THAT AN INMATE HAS SYMPTOMS
30 OF ACQUIRED IMMUNE DEFICIENCY SYNDROME, NOTICE OF THE DIAGNOSIS SHALL BE
31 PROVIDED TO ALL EMPLOYEES OF THE DEPARTMENT WHO CAN REASONABLY BE
32 EXPECTED TO BE INVOLVED IN THE SUPERVISION AND CARE OF SAID INMATE.
33 S 11. This act shall take effect on the first of January next succeed-
34 ing the date on which it shall have become law; provided however that
35 sections three, four and five of this act shall take effect on the first
36 of November next succeeding the date on which it shall have become a
37 law; and provided, that effective immediately, the addition, amendment
38 and/or repeal of any rule or regulation necessary for the implementation
39 of the provisions of this act on its effective date are authorized and
40 directed to be made and completed within 180 days after the date on
41 which this act shall have become a law.
