Section 390.15. Requirement of HIV related testing in certain cases

1.  (a)  In  any  case  where  the  defendant is convicted of 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, where 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  defendant
  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 defendant 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,  but  such  results  and
  disclosure need not be completed prior to the imposition of sentence.
    (b)   For  the  purposes  of  this  section,  the  terms  "defendant",
  "conviction" and "sentence" mean and include, respectively, an "eligible
  youth," a "youthful offender finding" and a "youthful offender sentence"
  as those terms are defined in section 720.10 of this chapter.  The  term
  "victim"  means  the person with whom the defendant 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 defendant's conviction of
  an offense 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
  or his or her counsel. The request must be filed with the court prior to
  or within ten days after entry of the defendant's  conviction;  provided
  that,  for  good  cause  shown,  the court may permit such request to be
  filed at any time before sentence is imposed.
    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 convicted person 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 of which the defendant stands 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.
    5. The court shall conduct a hearing only if necessary to determine if
  the  applicant  is  the victim of the offense of which the defendant was
  convicted. 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 defendant is not tested within the period prescribed by the
  court,  the  court  must  again  order that the defendant 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 or affect the validity of any sentence imposed  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 defendant which relates to events that  were  the
  basis  for  the  defendant'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.