HIV/AIDS Testing of Offenders
New York

• Persons (including juveniles) convicted of (or, in the case of a juvenile in Family Act proceedings, found to have committed), or where an indictment or a superior court information has been filed with a superior court relating to, a felony offense where “sexual intercourse” (which “has its ordinary meaning and occurs upon any penetration, however slight”), “oral sexual conduct” (contact between the mouth and the penis, anus, vulva or vagina) or “anal sexual conduct,” (contact between the penis and anus) is a required element.

• Available upon court order at the written request of the victim or representative of a minor or incompetent victim. Such request must be made prior to or within 48 hours after the indictment or superior court information has been filed with the superior court or prior to or within 10 days after entry of the offender’s conviction (or, in juvenile delinquency proceedings, entry of the court’s order finding the juvenile committed the act).
• The court may permit the request to be filed at a later stage of the action within six months of the date of the crimes charged (alleged offender) or at any time before a sentence is imposed (convicted offender) or before entry of the order of disposition (in juvenile delinquency proceedings), for good cause shown.

Within 48 hours of the date on which the court ordered the testing (for an alleged offender) or 15 days of the date on which the court ordered the testing (for a convicted offender). 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.

• In the case of an alleged offender:
• Any request for testing made by the victim must be in writing and provided by the court to the defendant or his or her counsel.
• Prior to or within 48 hours after the indictment/information filing, the victim, or representative of a minor or incompetent victim, may request in writing to the court that the alleged offender or offender submit to an HIV test, provided that, for good cause shown, the court may permit such request to be filed at a later stage within 6 months of the date of the crimes charged.
• If the victim requests the alleged offender undergo an HIV test, the court will order it, provided that the test would provide medical or psychological benefit to the victim. “Medical benefit” to the victim exists when a decision is pending about beginning, continuing, or discontinuing a medical intervention for the victim and the result of an HIV test of the alleged offender could affect that decision, and could provide relevant information beyond that which would be provided by an HIV test of the victim.
• At any stage in the action within 6 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 above, 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 will not make such a 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 will be no more than one follow-up HIV related test absent a showing of extraordinary circumstances.
• The court may also conduct a hearing if necessary to determine if the applicant is the victim of the offense of which the defendant is charged or to determine whether a requested follow-up test is medically appropriate.
  
  
• In the case of a convicted offender (or, in juvenile delinquency proceedings, juvenile respondent found to have committed the offense):
• Any request made by the victim pursuant must be in writing, filed with the court and provided by the court to the defendant or his or her counsel.
• The application for an order to compel a convicted person to undergo an HIV related test may be made by the victim or representative (if the victim is a minor or incompetent). The application must state that (a) the applicant was the victim of the offense of which the defendant was convicted; 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.
• The court may conduct a hearing if necessary to determine if the applicant is the victim of the offense of which the defendant was convicted.

• The victim and defendant. The test results are not disclosed to the court. 
• Test results will be disclosed subject to the following limitations, which will be specified in any order issued by the court:
• Disclosure of confidential HIV related information will be limited to that information which is necessary to fulfill the purpose for which the order is granted;
• Disclosure of confidential HIV related information will be made to the defendant upon his or her request, and disclosure to a person other than the defendant will be limited to the person making the application.
• Redisclosure of such information will 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 will not be permitted to any other person or the court.
• Any such court order will 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

• In the case of a positive test result, at the time of communicating the test result to the subject of the test, a person ordering the performance of an HIV related test will, directly or through a representative, provide the subject of the test or victim with appropriate health care and support services, or referrals to such available services, counseling with regard to HIV disease and HIV testing in accordance with law, and with counseling or referrals for counseling:
• for coping with the emotional consequences of learning the test result;
• regarding the discrimination problems that disclosure of the result could cause;
• for behavior change to prevent transmission or contraction of HIV infection;
• to inform such person of available medical treatments; and
• regarding the need to notify his or her contacts.  

• No information obtained as a result of a consent, hearing, or court order for testing, 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/convicting the defendant with the relevant offense.
• Any requests, related papers and orders made or filed pursuant to the applicable statute, together with any papers or proceedings related thereto, will be sealed by the court and not made available for any purpose, except as may be necessary for the conduct of judicial proceedings. All proceedings on such requests will be held in camera by the court.

N.Y. Penal Law § 130.00; N.Y. Crim. Proc. Law § 210.16 and 390.15; N.Y. Pub. Health Law art. 27-F, §§ 2781 and 2785-A; NY Family Court Act § 347.1.