New York Criminal Lawyer Blog
A case has been filed against the defendant. He is accused of the crimes of Rape in the First Degree (2 Counts), Sodomy in the First Degree (2 Counts), Sexual Abuse in the First Degree (2 Counts), and Burglary in the Second Degree.
The charges are that defendant on 18 November 1987 knowingly entered unlawfully in a dwelling with intent to commit the crimes of Rape and Sodomy therein, and engaged in sexual intercourse and deviate sexual intercourse with a female by forcible compulsion not prostitution.
On 21 April 1988 the criminal defendant entered a plea of guilty to Attempted Rape in the First Degree in Violation of Sections 110/130.35(1) of the Penal Law, a Class “C” violent felony, in full satisfaction of the charges against him. The defendant will be sentenced as a second violent felony offender to an indeterminate sentence of imprisonment having a maximum term of 15 years and a minimum of 7 years 6 months.
The People move this Court for an Order pursuant to Criminal Procedure Law § 240.40(2)(b)(v) and the case of Schmerber v. California (1966) allowing the People to obtain, through safe and reliable and by minimally intrusive means, a blood sample from defendant for the purpose of determining whether defendant has been exposed to the virus known as Acquired Immunodeficiency Syndrome (AIDS). The defendant has opposed such request by the People, claiming that such blood test constitutes an unlawful search and seizure under the Fourth Amendment and claiming further that the result thereof could expose him to further criminal prosecution.
The defendant back on 14 August 1978, was convicted in County Court, Nassau County of the crime of Attempted Rape in the first degree, and on 21 December 1978 was sentenced to an indeterminate sentence of imprisonment having a maximum term of 10 years. Thereafter, as a result of defendant’s sentence to incarceration and at least one parole revocation hearing, defendant spent a substantial number of years in state prison. He was reparoled on 7 April 1987, with a maximum expiration date of 13 May 1989.
The evidence presented to the Grand Jury establishes that defendant forcibly and repeatedly engaged in acts of sexual intercourse and oral sodomy with the victim, and did thereby expose said victim to his body and sexual fluids.
The victim is concerned and desirous of knowing whether or not she may have possibly been exposed to the AIDS virus as a result of being forcibly raped and sodomized by the defendant.
Criminal Procedure Law § 240.40(2)(b)(v) provides, in pertinent part, as follows: “Upon motion of the prosecutor, and subject to Constitutional limitation, the Court in which an indictment is pending may order the defendant to provide non-testimonial evidence. Such Order may, among other things, require defendant to permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto.”
The Court takes judicial notice of the fact that the virus generally known as Acquired Immunodeficiency Syndrome is spread from person to person by the transfer of body fluids, including sexual fluids, and that a person’s exposure to the AIDS virus may be detected by an analysis of his blood conducted by trained medical-scientific experts, commonly known as the “AIDS Antibody Test”–but that such exposure may not be detectable for several months or years after the incident or exposure. This Court further takes judicial notice of the fact that AIDS exposure is markedly more prevalent among the state prison population than among the general population.
The Fourth Amendment of the United States Constitution provides that “… the right of people to be secure in their persons, homes, papers and effects, against unreasonable searches and seizures shall not be violated …” For the reasons which follow, the Court holds and determines that the People’s motion to obtain a blood sample from defendant for testing to determine whether the defendant has been exposed to the AIDS virus is entirely reasonable and proper.
On 28 April 1988, the United States Senate unanimously approved mandatory AIDS testing of people convicted of sex crimes and drug crimes. The vote was 97-0. Under the Senate measure, anyone convicted of a state or federal crime related to sex or intravenous drugs carrying a penalty of death or at least a year in prison would be tested. Results would be confidential but could be disclosed to prison wardens and/or victims of sex crimes.
Presumptively, a vote of 97-0 in the United States Senate reflects a considered political and public judgment by the elected representatives of the People as to the precise issue presently before the Court.
Considering the equities of this entire situation, the Court holds and determines that the victim has a right to know whether she may have been exposed to the AIDS virus by reason of having been exposed to the body and sexual fluids of the defendant. The Court finds and determines that it has inherent discretionary power to order the defendant to submit to such a blood test simply because it is the intelligent, humane, logical, and proper course of action under the circumstances. The mental anguish suffered by the victim knowing that she was forcibly raped and sodomized by a former inmate of the New York State Department of Correctional Services is real and continuing, and the intrusion upon defendant of a routine drawing of a blood sample is very minimal and commonplace.
Hopefully, the result of such a blood test will be negative, thereby relieving the victim of her understandable anxiety. In the unlikely event that the AIDS test of defendant’s blood were to prove positive, the defendant could indeed be eventually subjected to a prosecution for depraved indifference murder. However, if the defendant is afflicted with the AIDS virus, he may already be subject to a death sentence which could well claim his life long before he ever serves 7 1/2 years in state prison.
The Court holds and determines that the People’s motion should be granted in all respects, and that the defendant will be required to permit the taking of samples of blood from his body in a manner not involving an unreasonable intrusion thereof, or a risk of serious physical injury thereto. The results of such AIDS Antibody Test shall be disclosed not only to the defendant but also to the victim of the defendant’s crimes. In the event that the test for AIDS was positive, the results will also be disclosed to the New York State Department of Correctional Services.
Nassau County Criminal Attorneys like Nassau County Rape Attorneys, Nassau County Sodomy Attorneys, and the like, are protectors of women and children. Numerous cases analogous to the case narrated above have been won by our firm, Stephen Bilkis & Associates. With us, we make sure that perpetrators of this crime go behind bars. We give victims of these kinds of crimes a new life and a new hope. Don’t let the perpetrators walk free. Act on your rights at the soonest possible time and make justice happen. Justice doesn’t just come out of thin air. Together, with your help and ours, we will fight for truth and make justice come about. Contact us now for advice on similar matters or visit our firm at locations near you for a more in-depth discussion of your situation. Our firm is equipped with the most skilled, highly trained and widely experienced legal counsels in the country. With our team’s competence and determination to fight for your cause, justice will surely prevail.