Bill Text: NY A05794 | 2019-2020 | General Assembly | Introduced


Bill Title: Creates crimes of reckless endangerment of public health with respect to HIV/AIDS transmission; creates crime of filing false instrument with respect to HIV/AIDS; provides for HIV/AIDS testing for alleged sex offenders and public health offenders; provides for contagious disease testing for persons in the custody of the department of corrections; provides that if an inmate tests positive notice shall be given to all employees that will have contact with such inmate.

Spectrum: Strong Partisan Bill (Republican 11-1)

Status: (Introduced) 2019-06-13 - held for consideration in codes [A05794 Detail]

Download: New_York-2019-A05794-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5794
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 19, 2019
                                       ___________
        Introduced  by  M.  of A. GIGLIO, CROUCH, LAWRENCE, RA, DeSTEFANO, McDO-
          NOUGH, RAIA, HAWLEY, MIKULIN -- Multi-Sponsored by -- M. of  A.  MORI-
          NELLO, SAYEGH -- 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
    22  confinement and all inmates to be newly admitted to  the  department  of
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03949-01-9

        A. 5794                             2
     1  corrections  and  community supervision must be expeditiously tested for
     2  such syndromes, diseases or viruses.  The department of corrections  and
     3  community  supervision shall take immediate action to care for afflicted
     4  inmates  including  separation  from  the general inmate population in a
     5  special medical facility.
     6    § 2. Section 10.00 of the penal law  is  amended  by  adding  two  new
     7  subdivisions 22 and 23 to read as follows:
     8    22.  "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    23.  "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    §  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    § 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, the 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    §  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  § 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  § 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. 5794                             3
     1    Reckless  endangerment  of the public health in the second degree is a
     2  class C felony.
     3  § 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  § 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    § 6. Section 1.20 of the criminal procedure law is amended  by  adding
    23  two new subdivisions 45 and 46 to read as follows:
    24    45.  "HIV  related  illness" means any illness that may result from or
    25  may be associated with HIV infection.
    26    46. "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    § 7. The criminal procedure law is amended by  adding  a  new  section
    30  160.46 to read as follows:
    31  § 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    § 8. Section 71 of the correction law  is  amended  by  adding  a  new
    49  subdivision 9 to read as follows:
    50    9.  (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. 5794                             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    § 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    §  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    § 10. The correction law is amended by adding a new section  141-a  to
    26  read as follows:
    27    §  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    § 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.
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