HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/THOMAS.ASC

Text File | 1993-01-14 | 8KB | 161 lines

/* This case is reported in 529 N.Y.S.2d 429. This case was ruled
upon prior to the passage of state laws mandating testing of all
sexual criminals for HIV; it finds, although through flawed
reasoning, that the evidence rules and common law permit such
testing. Important in any states where the law is unclear. */

The PEOPLE of the State of New York

v.

Brian P. THOMAS, Defendant.

Schoharie County Court.

May 18, 1988.



DAN LAMONT, Judge.

An Indictment has been filed against the defendant accusing him
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 November 18, 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.

On April 21, 1988 the 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, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (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 de
fendant 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 August 14, 1978, was convicted in County
Court, Nassau County of the crime of Attempted Rape in the first
degree, and on December 21, 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 April 7, 1987, with a maximum expiration date of
May 13, 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 as follows:

"Upon motion of the prosecutor, and subject to Constitutional
limitation, the Court in which an Indictment * * * is pending: *
* *

"(b) may order the defendant to provide non-testimonial evidence.
Such Order may, among other things, require defendant to: * * *

"(v) 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;"

[1, 2]  This 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.

[3]  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 ... (emphasis supplied)  For the
reasons which follow, this 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 April 28, 1988, the United States Senate  unanimously
approved  mandatory AIDS testing of people convicted of sex 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.

/* A misstatement. the vote conditions the right to get federal
funds for certain police activities unless such laws are passed
by the states. */

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 this Court.

/* Legislatures have often passed laws with great majority that
were either not the opinion of the majority of people OR
constitutional. A very broad boot strap. */

Considering the equities of this entire situation, this 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. This
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.

This 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 were positive, the results will also be
disclosed to the New York State Department of Correctional
Services.