Bill Text: NY A02825 | 2011-2012 | General Assembly | Introduced
Bill Title: Authorizes a court to order blood testing of defendants charged with violent felony offenses upon motion of the prosecutor with consent of the victim or upon motion of the victim where the victim has allegedly been exposed to blood or other bodily fluids of the defendant to be tested; requires the cost of such test to be borne, if convicted by the violent felony offender.
Spectrum: Partisan Bill (Republican 7-0)
Status: (Introduced - Dead) 2012-01-04 - referred to codes [A02825 Detail]
Download: New_York-2011-A02825-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2825 2011-2012 Regular Sessions I N A S S E M B L Y January 20, 2011 ___________ Introduced by M. of A. CALHOUN, KOLB -- Multi-Sponsored by -- M. of A. CONTE, CROUCH, FINCH, TEDISCO -- read once and referred to the Commit- tee on Codes AN ACT to amend the criminal procedure law and the penal law, in relation to authorizing court ordered blood testing of violent felons THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The criminal procedure law is amended by adding a new arti- 2 cle 165 to read as follows: 3 ARTICLE 165--COURT AUTHORIZED BLOOD TESTING 4 SECTION 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF CERTAIN OFFEN- 5 DERS. 6 S 165.00 COURT AUTHORIZATION FOR BLOOD TESTING OF CERTAIN OFFENDERS. 7 1. UPON MOTION OF THE PROSECUTOR WITH THE CONSENT OF THE VICTIM, OR 8 UPON MOTION OF THE VICTIM, A SUPERIOR COURT MAY ORDER A DEFENDANT 9 CHARGED WITH A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE 10 PENAL LAW, TO UNDERGO A BLOOD TEST FOR ANY TRANSMISSIBLE DISEASE WHERE 11 THE VICTIM HAS ALLEGEDLY BEEN EXPOSED TO BLOOD OR OTHER BODY FLUIDS OF 12 THE DEFENDANT, AND WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT SUCH 13 EXPOSURE OCCURRED DURING THE COMMISSION OF A VIOLENT FELONY OFFENSE OR 14 AS A PROXIMATE RESULT THERETO. 15 2. A TRANSMISSIBLE DISEASE SHALL INCLUDE: THE HUMAN IMMUNODEFICIENCY 16 VIRUS (HIV) OR ANY OF ITS DERIVATIVES; ANY SEXUALLY TRANSMISSIBLE 17 DISEASE INCLUDING BUT NOT LIMITED TO SYPHILIS, GONORRHEA, LYMPHOGRANULO- 18 MA VENEREUM, HERPES AND GENITAL WARTS; HEPATITIS AND ANY OF ITS DERIVA- 19 TIVES; AND ANY OTHER DISEASE WHICH THE COURT FINDS THE VICTIM COULD HAVE 20 A REASONABLE EXPECTATION OF CONTRACTING FROM THE ALLEGED OFFENDER AS A 21 RESULT OF THE ALLEGED EXPOSURE. 22 3. UPON RECEIVING AN APPLICATION FOR AN ORDER AUTHORIZING A BLOOD 23 TEST PURSUANT TO THIS SECTION, THE COURT SHALL ENTER AN ORDER DIRECTING 24 THAT ALL PLEADINGS, PAPERS, AFFIDAVITS, JUDGMENTS, ORDERS OF THE COURT, EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02853-01-1 A. 2825 2 1 BRIEFS AND MEMORANDA OF LAW WHICH ARE PART OF THE APPLICATION OR THE 2 DECISION THEREON, BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON, EXCEPT 3 TO THE EXTENT NECESSARY TO CONDUCT ANY PROCEEDINGS IN CONNECTION WITH 4 THE DETERMINATION OF WHETHER TO GRANT OR DENY THE APPLICATION, INCLUDING 5 ANY APPEAL. SUCH AN ORDER SHALL FURTHER DIRECT THAT ALL SUBSEQUENT 6 PROCEEDINGS IN CONNECTION WITH THE APPLICATION SHALL BE CONDUCTED IN 7 CAMERA, AND, WHERE APPROPRIATE TO PREVENT THE UNAUTHORIZED DISCLOSURE OF 8 CONFIDENTIAL BLOOD TEST RELATED INFORMATION, THAT ANY PLEADINGS, PAPERS, 9 AFFIDAVITS, JUDGMENTS, ORDERS OF THE COURT, BRIEFS AND MEMORANDA OF LAW 10 WHICH ARE PART OF THE APPLICATION OR THE DECISION THEREON, NOT STATE THE 11 NAME OF THE DEFENDANT WHO IS THE PROPOSED SUBJECT OF THE BLOOD TEST. 12 4. IN ASSESSING THE APPLICATION THE COURT SHALL PROVIDE WRITTEN FIND- 13 INGS OF FACT, INCLUDING SCIENTIFIC OR MEDICAL FINDINGS, CITING SPECIFIC 14 EVIDENCE IN THE RECORD WHICH SUPPORTS EACH FINDING, AND SHALL WEIGH THE 15 APPLICANT'S NEED FOR THE INFORMATION TO BE OBTAINED FROM COURT ORDERED 16 BLOOD TESTING AGAINST THE POTENTIAL HARM TO THE DEFENDANT WHICH MAY 17 RESULT FROM THE COURT ORDERED BLOOD TESTING. 18 5. AT ANY TIME PRIOR TO, OR DURING THE PENDENCY OF AN APPLICATION FOR 19 A BLOOD TEST UNDER THIS SECTION, THE DEFENDANT MAY CONSENT TO SUBMIT TO 20 A VOLUNTARY BLOOD TEST, TO SCREEN FOR THE DISEASES AS REQUESTED BY THE 21 VICTIM. THE RESULTS OF SUCH VOLUNTARY BLOOD TESTS SHALL BE PROVIDED TO 22 THE VICTIM, THE COURT, AND ALL PARTIES IN THE CRIMINAL PROCEEDING AND 23 SHALL THEREAFTER BE PROVIDED WITH THE SAME DEGREE OF CONFIDENTIALITY AS 24 IF THE BLOOD TEST HAD BEEN ORDERED BY THE COURT. UPON THE SUBMISSION OF 25 THE ALLEGED VIOLENT FELONY OFFENDER TO A VOLUNTARY BLOOD TEST, ANY 26 APPLICATION FOR A COURT ORDERED TEST SHALL BE DEEMED WITHDRAWN. UNLESS 27 THE VICTIM OR ANOTHER THIRD PARTY AGREES IN WRITING TO PAY FOR THE COST 28 OF A VOLUNTARY BLOOD TEST, ALL SUCH COSTS SHALL BE PAID FOR BY THE 29 DEFENDANT. 30 6. THE COURT, IN GRANTING AN APPLICATION FOR AN ORDER AUTHORIZING A 31 BLOOD TEST PURSUANT TO THIS SECTION, SHALL SPECIFY THE DISEASES TO BE 32 SCREENED FOR BY SUCH TEST, AND SHALL ORDER SUCH REASONABLE MEASURES AS 33 IT DEEMS NECESSARY TO PREVENT THE UNAUTHORIZED DISCLOSURE OF CONFIDEN- 34 TIAL BLOOD TEST RELATED INFORMATION. THE COST OF A COURT ORDERED BLOOD 35 TEST SHALL BE PAID FROM THE CRIMINAL JUSTICE IMPROVEMENT ACCOUNT, ESTAB- 36 LISHED PURSUANT TO SECTION NINETY-SEVEN-BB OF THE STATE FINANCE LAW, AND 37 IN THE EVENT OF A CONVICTION, THE COST OF SUCH BLOOD TEST SHALL BE 38 DEEMED A MANDATORY SURCHARGE ASSESSED AGAINST THE DEFENDANT PURSUANT TO 39 SECTION 60.35 OF THE PENAL LAW. 40 7. NO INFORMATION OBTAINED OR DISCOVERED DURING A HEARING ON AN APPLI- 41 CATION PURSUANT TO THIS SECTION OR AS A RESULT OF A COURT ORDER ISSUED 42 PURSUANT TO THIS SECTION RELATING TO THE VIOLENT FELONY OFFENDER'S 43 SUBMISSION TO A BLOOD TEST MAY BE USED AS EVIDENCE IN THE TRIAL OF THE 44 ALLEGED VIOLENT FELONY OFFENDER. 45 S 2. Paragraph (a) of subdivision 1 of section 60.35 of the penal law, 46 is amended by adding a new subparagraph (vi) to read as follows: 47 (VI) A PERSON CONVICTED OF A VIOLENT FELONY OFFENSE, AS DEFINED IN 48 SECTION 70.02 OF THIS CHAPTER, OR WHO IS CHARGED WITH SUCH A VIOLENT 49 FELONY OFFENSE AND WHO ACCEPTS A PLEA BARGAIN, SHALL PAY THE COSTS OF 50 ANY BLOOD TEST AUTHORIZED PURSUANT TO SECTION 165.00 OF THE CRIMINAL 51 PROCEDURE LAW. 52 S 3. This act shall take effect on the one hundred twentieth day after 53 it shall have become a law.