Creates the state emergency health powers act and enacts legislation relating to terrorism

Section 2: Adds sections 29-h and 29-i to the executive law.

Section 29-h- Planning for an emergency. Establishes the public health emergency planning commission, specifies the membership of the commission including the commissioner of health, the superintendent of state police, the commissioner of mental health and experts on infectious diseases and the health care system designated by the governor. Requires the commission to make a public health emergency plan to be delivered to the legislature and the public.

Section 29-i- Declaring a public health emergency. Allows the governor to declare a public health emergency under the new Article 10 of the public health law. The declaration will specify what political subdivisions are subject to the declaration, the primary public health authority responding to the emergency and the period of time if less than thirty days. Gives the governor authority to suspend any regulatory statute or procedures of conducting state business that would hinder the response to a public health emergency and may he subject to termination by concurrent resolution of the legislature. Transfers the direction of personnel or functions of state department or agencies to facilitate response to the emergency. Allows the governor to mobilize the State's organized militia into service, and provide and seek aid from other states in accordance with any interstate emergency compact made with New York State. Designates the department of health as the lead in coordination pertaining to the public health emergency response. Specifies that the declaration of a public health emergency shall be automatically after 30 days or by a majority vote of the Senate and Assembly.

Section 3: Amends the public health law by adding a new Article 10, creating the State Emergency Health Powers Act.

Title I. Finding, purposes and definitions (§ 1000-1003).

Title II. Management of property (§ 1010-1016). Gives the department of health the power to close and decontaminate as necessary facilities and materials during a public health emergency. Gives the public health authority access and control of facilities, property, materials and roads during a public health emergency. Authorizes the public health authority to adopt measures for the safe disposal of infectious waste and grants control to the public health authority to control and use facilities that collect, store or handle infectious waste. Authorizes the public health authority to adopt measures for the safe disposal of human remains and control for facilities that embalm, bury, cremate, inter, disinter, transport or dispose of human remains. Requires anyone disposing of remains on behalf of the state during a public health emergency to take steps to identify human remains. Authorizes the public health authority to control health care supplies and allows the authority to procure, ration and distribute pharmaceuticals including vaccines, serums, immunizing agents, antibiotics and other medical supplies. Requires the state to compensate the owner of any facility or material that has been lawfully taken or appropriated during a public health emergency. Authorizes the public health authority to destroy contaminated property for the protection of health during a public health emergency.

Title III. Special powers during a public health emergency; protection of persons (§ 1020-1027). States the public health authority shall use every available means to prevent the transmission of infectious disease. Authorizes the public health authority to perform tests and examine as necessary for the diagnosis and treatment of individuals. Authorizes the public health authority to vaccinate, isolate and quarantine individuals to stop the spread of infectious diseases. Specifies the procedures for isolation and quarantine of individuals including the content of a directive, procedures for petition for continued isolation or quarantine and the procedures for those quarantined or isolated to have a hearing in order to seek relief from quarantine or isolation. Authorizes the court to appoint counsel and consolidate claims. Authorizes the state public health authority to collect laboratory specimens, follow chain of custody procedures and provide support as reasonable and necessary to aid in a relevant criminal investigation. Limits the disclosure patient information to those with a legitimate need to acquire that information such as those who provide treatment for the subject of the information, conduct epidemiologic research and investigate the cause of transmission with the exception of federal authorities, an individual or their representative or pursuant to a court order to avert a clear danger to an individual or public health. Allows the public health authority to require that health care providers to assist in vaccination, treatment, examination of individuals as a condition of the continuing licensure and allows the health department to appoint and describe duties to out-of-state health care providers during a public health emergency. Authorizes medical examiners and coroners to appoint assistants as may be required for the proper performance of the duties of the office.

Title IV. Public information regarding public health emergencies (§1030-1031). Requires the public health authority to disseminate information to the people of the State when a public health emergency is declared, how they should protect themselves and what actions are being taken to control the emergency. Requires the public health authority to provide mental health support personnel during and after a public health emergency.

Title V. Miscellaneous (§ 1040-1047) Authorizes the public health authority to promulgate regulations as are reasonable and necessary to implement the provisions of this article. Authorizes the governor to transfer monies available from any fund available provided that: the money will be repaid to that fund; no appropriation is available; an appropriation is insufficient to meet the public health emergency; and federal monies are not available. All expenses must be incurred with the general approval of the governor and monies authorized for an emergency available in subsequent fiscal years may only be used for the emergency for which they were authorized. The State or its political subdivisions shall not be liable for any death, injury to persons or damage to property in attempting to comply with this article except in cases of gross negligence. Anyone surrendering property voluntarily for the use as shelter shall not be liable for damages for negligently causing the death of, or an injury to, an individual. Any individual or corporation who is on contract with the State or a political subdivision and renders assistance at the request of the State shall not be civilly liable for causing death or injury except in cases of gross negligence or willful misconduct. Compensation shall be made for property lawfully taken or appropriated during a public health emergency.

Section 4: Adds a new Article 280 to the Penal Law creating the crimes of Agricultural Adulteration in the First Degree, punishable as a class C felony, and Agricultural Adulteration in the Second Degree, punishable as a class D felony. These crimes are intended to appropriately criminalize and punish the design, development, manufacture, or utilization of genetic, biological or chemical agents in order to contaminate or destroy agricultural products and livestock. If Agricultural Adulteration in the First or Second Degree is committed with a terroristic intent, as defined in Article 490 of the Penal Law, the crime would be punished as a class B or class C felony, respectively.

Section 5: Adds a new section 490.27 to the Penal Law creating the crime of Cyber-Terrorism, which would be punishable as a Class D felony a "denial of service attack" (i.e., overloading a computer network so as to undermine its capability) against a computer network administered by a government, utility or financial institution.

Sections 6, 7 and 8: Amend sections 156.25, 156.26 and 156.27 of the Penal Law to include an aggregation of damage, including damages to any computer affected by the crimes of computer tampering.

Section 9: Amends the existing crime of Criminal Impersonation in section 190.26 of the Penal Law to add impersonating a pilot, or other member of an aviation flight or ground crew.

Section 10: Amends paragraph (a) of subdivision I of section 460.10 of the Penal Law to include money laundering in support of terrorism offenses, structuring, and terrorism offenses within the definition of the term "criminal act" for purposes of an enterprise corruption prosecution.

Section 11: Amends subdivision 1 of section 470.25 of the Penal Law to include the money laundering in support of terrorism crimes to the list of offenses for which a fine may be imposed.

Sections 12 and 13: Add two new sections to the Penal Law related to the new offense of "Structuring." The new offense of Structuring in the Second Degree, punishable as a class E felony, would penalize those who cause or attempt to cause a financial institution not to comply with federal filing requirements. The new offense of Structuring in the First Degree, punishable as a class D felony, would penalize those who commit the second degree offense with the intention of promoting the carrying on of criminal conduct or as part of a pattern of illegal activity involving more than $100,000 in any twelve month period.

Section 14: Amends the undesignated paragraph of section 490.10 of the Penal Law to include concealing or disguising the nature or ownership of material support or resources as an element of the crime of soliciting or providing material support or resources for an act of Terrorism in the Second Degree.

Sections 15 and 16: Amend Article 490 of the Penal Law to create the new crimes of Criminal Facilitation of Terrorism and Conspiracy to Commit Terrorism which would apply traditional criminal facilitation and conspiracy concepts in the context of terror crimes.

Section 17: Amends paragraph (b) of subdivision 2 of section 490.25 of the Penal Law to make conforming changes.

Section 18: Amend paragraph (a) of subdivision 3 of section 490.05 of the Penal Law to add the amended crimes of Computer Tampering and the new crimes of Agricultural Adulteration to the definition of "specified offense" for the crime of terrorism.

Sections 19 and 20: Amend the Criminal Procedure Law to extend state jurisdiction to crimes committed on an aircraft that lands in New York.

Section 21: Amends subdivision 1 of section 60.22 of the Criminal Procedure Law to eliminate in terrorist cases, provisions of state law that require corroboration of accomplice testimony.

Sections 22 and 26: Amend sections 690.05 and 700.05 of the Criminal Procedure Law, and sections 23 through 25 would add sections 690.16, 690.17 and 690.18 of the Criminal Procedure Law, to clarify and improve the issuance of search warrants for out-of-state phone and computer services, and wireless telephones.

Sections 27, 28 and 29: Amend subdivision 8 of section 700.05 of the Criminal Procedure Law to include the amended crimes of. Computer Tampering, the new crimes of Agricultural Adulteration, as well as Money Laundering in Support of Terrorism and Cyberterrorism offenses to the list of offenses for which law enforcement may obtain an eavesdropping or video surveillance warrants.

Section 30: Amends subdivision 2 of section 40.30 of the Criminal Procedure Law by adding a new paragraph (c) to ensure that a terrorist is not deemed to have been prosecuted if such prosecution occurred in a court of any jurisdiction within the United States other than a New York State court.

Section 31: Amends subdivision 9 of section 40.50 of the Criminal Procedure Law to eliminate any restriction against the prosecution of terrorists for the crime of Enterprise Corruption when an underlying criminal act of such prosecution was also part of a previous prosecution for racketeering by the federal government of the government of another state.

Section 32: Adds a new subdivision 2-a to section 210.40 of the Criminal Procedure Law to require a court to consider whether a defendant has previously been prosecuted in a court in another jurisdiction within the United States based upon the same criminal act or transaction when deciding a motion to dismiss a terrorism indictment in furtherance of justice.

Section 33: Adds a new subdivision 4 to section 710.70 of the Criminal Procedure Law to prevent the suppression of reliable evidence of guilt in terrorism cases where an officer acted in good faith.

Section 34: Adds section 700.75 of the Criminal Procedure Law to permit roving interceptions by law enforcement in certain circumstances. This section includes a two-year expiration provision.

Sections 35, 36 and 37: Amend sections 1310, 1311-a and 1313 of the Civil Practice Law and Rules to subject terrorists' property located outside of New York State to civil forfeiture.

Section 38: Adds a new section 28 to the Tax Law to provide for the disclosure of tax related information to a prosecutor pursuant to an ex-parte order issued in connection with the investigation or prosecution of a crime. In addition, this section also would provide that tax information may be disclosed to a prosecutor in response to a grand jury subpoena or a particularized written request of a prosecutor in connection with the investigation of a state or federal terrorism offense where the information sought is relevant to the commission of such offense. This section includes a two-year expiration provision.

Section 39: Provides that a person who violates the new section 28 of the Tax Law is guilty of a misdemeanor.

Section 40: Adds the Director of the Office of Homeland Security as an ex officio member of the Disaster Preparedness Commission.

Section 41: Contains a severability clause.

Section 42: Provides that the bill would take effect immediately.

Existing law

In the wake of the tragic attacks on the World Trade Center and the Pentagon, Governor Pataki called a Special Session of the Legislature to urge enactment of the toughest laws in the nation to combat terrorism and respond to terrorist attacks. The notable outcome of that Special Session was passage of the Governor Pataki's "Anti-Terrorism Act of2001," which among other things, established appropriately severe criminal penalties for persons who commit terrorist acts, make terrorist threats or who render assistance to terrorists in New York State. In 2004, Governor Pataki signed into law additional measures, originally introduced at the request of the Governor and the Attorney General, intended to enhance the safety of New York's citizens by providing law enforcement with new tools to detect, capture and punish those who commit or attempt to commit terrorist acts and by enhancing New York's ability to prepare for, prevent and respond to incidents of terrorism.

Justification

In the wake of tragic events of the September 11th attack it has become evident that we must increase our efforts to protect citizens from acts of terrorism. Creating new criminal offenses, increasing penalties and instituting procedural reforms to enhance the powers of law enforcement are necessary to protect the public from cowardly and inhumane acts of terror.

While experts debate when and how an attack on our food and agriculture industry may take place, all agree that, in addition to causing serious human and animal health consequences, an attack could create substantial fear and disruption among our citizens and result in billions of dollars of damage to this critical sector. The State's $3.1 billion agriculture industry is an important industry across the state that could be compromised by acts of terrorism. Overall, New York's 37,000 farms generate thousands of jobs and support a substantial agribusiness industry, and generate billions of dollars annually. for the State economy. Likewise, New York City is home to the world's pre-eminent financial markets and institutions -- markets and institutions abhorred by terrorists, as evidenced by the horrific events of September 11, 2001. By creating the state crimes of Structuring, Criminal Facilitation and Conspiracy in Furtherance of Terrorism, this bill appropriately recognizes the need to track and trace the relatively small amount of money needed to perpetrate fiendish acts of terrorism that could cost countless priceless lives and billions of dollars.

Recognizing the grave nature of terrorist acts, the bill also would enhance the prosecution of terrorists in the following significant ways: (1) permitting the prosecution of all terrorists under all circumstances in state courts, despite the pendency of a prosecution or a prior prosecution in a jurisdiction other than a New York State court; (2) eliminating in terrorist cases provisions of state law that require corroboration of accomplice testimony (under federal law and in a majority of states, the corroboration of accomplice testimony is not required); (3) enhancing the authority of law enforcement to investigate terrorist activity by authorizing in appropriate cases the release of the tax returns to criminal investigators; and (4) strengthening the authority of law enforcement to subject terrorists' property located outside of New York State to civil forfeiture.

The Centers for Disease Control and Prevention, Centers for Law and the Public's Health at Georgetown University and Johns Hopkins University have developed a model state emergency health powers act, This legislation offers an important tool for both state and local officials to respond to bioterrorism.

This state faces a threat to its public health, safety and security that it has never faced before. The threat of bioterrorism requires that government respond with extraordinary powers. Because the state is responsible for the health, safety and security of its people, it must be able to respond rapidly and effectively to public health threats. This legislation allows the governor to act decisively in the event of a bioterrorist attack to secure the safety, security and health of the public. However, this legislation does not allow these powers to go unchecked. This bill includes language where the legislature, by concurrent resolution, may rescind either the public health emergency declaration or a governor's order to strike a regulatory statute.

Although these provisions provide powers to the governor, provisions also preserve the rights of individuals by giving them ways to appeal orders of isolation and quarantine. This legislation also insures that those who render assistance to the state during a public health emergency, would not be held liable unless there is gross misconduct or willful negligence. The provisions of this bill provides the governor with powers to mitigate a public health emergency while striking a necessary balance with individual rights.

Legislative history

2007-2008: A.6618, Referred to Health.

Fiscal implications

Not yet determined.

Effective date

Immediately.