2006 New York Code - Required Testing Of The Respondent In Certain Proceedings.

 
    §  347.1.  Required  testing of the respondent in certain proceedings.
  1. (a) In any proceeding where  the  respondent  is  found  pursuant  to
  section  345.1  or  346.1  of  this  article, to have committed 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, for which
  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  respondent
  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 respondent 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  term  "victim"  means  the
  person   with   whom  the  respondent  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  court's  finding that the
  respondent committed acts constituting  one  or  more  of  the  offenses
  specified in paragraph (a) of this subdivision.
    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
  and his or her counsel. The request must be filed with the  court  prior
  to  or  within  ten days after the filing of an order in accordance with
  section 345.1 or 346.1 of this article, provided that,  for  good  cause
  shown,  the  court may permit such request to be filed at any time prior
  to the entry of an order of disposition.
    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 respondent 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, which the court found the defendant to
  have committed; 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 the respondent was found to
  have committed. 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 respondent is not tested within the period  prescribed
  by  the court, the court must again order that the respondent 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 the validity of any order of disposition entered 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 respondent which relates to events that were the
  basis for the respondent'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.