senate Bill S532A

Amended

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Jan / 2011
    • REFERRED TO CONSUMER PROTECTION
  • 13 / Jun / 2011
    • AMEND (T) AND RECOMMIT TO CONSUMER PROTECTION
  • 13 / Jun / 2011
    • PRINT NUMBER 532A
  • 04 / Jan / 2012
    • REFERRED TO CONSUMER PROTECTION
  • 25 / Apr / 2012
    • AMEND (T) AND RECOMMIT TO CONSUMER PROTECTION
  • 25 / Apr / 2012
    • PRINT NUMBER 532B
  • 21 / May / 2012
    • REPORTED AND COMMITTED TO CODES
  • 13 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 13 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1165
  • 13 / Jun / 2012
    • PASSED SENATE
  • 13 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 13 / Jun / 2012
    • REFERRED TO CONSUMER AFFAIRS AND PROTECTION

Summary

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.

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Bill Details

See Assembly Version of this Bill:
A6648A
Versions:
S532
S532A
S532B
Legislative Cycle:
2011-2012
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §§60.31 & 145.62, amd §§65.10, 145.60 & 240.31, Pen L; amd §720.35, CP L; add §399-j, Gen Bus L
Versions Introduced in 2009-2010 Legislative Cycle:
S1856, S1856

Sponsor Memo

BILL NUMBER:S532A

TITLE OF BILL:
An act
to amend the penal law, in relation to bias-related graffiti, the
disposition of graffiti offenses, graffiti for the purpose of promoting
gang related activities and graffiti upon religious property; to amend
the criminal procedure law, in relation to the unsealing of youthful
offender records relating to the commission of making graffiti in the
first degree and aggravated harassment in the first degree; and to
amend the general business law, in relation to requiring persons
engaged in the retail sale of aerosol spray paint to post notice of
provisions of and penalties for commission of graffiti offenses

PURPOSE OF THE BILL:
To address the pervasive problem of graffiti by taking a multi-faceted
approach while also recognizing that not all graffiti is the same.
Graffiti that is created in relation to gangs and graffiti made on
religious structures or curtilage should be treated with greater
severity.
Additionally, graffiti is often the tool of hateful harassment based
on race, sex, or sexual orientation and thus this legislation
addresses graffiti that is made from this hateful angle. Lastly,
educating offenders of the severity of the crime of graffiti may help
to curb it, thus, graffiti offenders are made to clean up their
graffiti and, similar to other states, advisory signs are posted at
the point of sale of aerosol spray paint is also implemented.

SUMMARY OF SPECIFIC PROVISIONS:
Section One- Amends the penal law by adding section 60.31 which allows
a judge to require completion of a diversity training program when
the graffiti creator is convicted of Aggravated harassment in the
first degree as defined in section 240.31 of the penal law.

Section Two- Amends section 65.10, subdivision 2, paragraph (h) of the
penal law to change division of substance abuse services to office of
alcoholism and substance abuse.

Section Three- Amends Section 65.10 of the penal law by adding
subdivision 6 which requires that when practicable and not dangerous,
that the court require the defendant convicted of graffiti remove the
graffiti underlying the offense.

Section Four- Amends Section 145.60 of the penal law to make that
section making graffiti in the second degree.

Section Five- Amends the penal law by adding section 145.62 to add
making graffiti in the first degree. Making graffiti in the first
degree requires graffiti in the second plus either in a manner to
promote or encourage gang
related activities or graffiti on a building, structure, or curtilage
of a place of worship or upon property consisting of religious
symbols representative of expressing faith. Graffiti in the first
degree is a Class E Felony.


Section Six- Amends section 240.31 of the penal law which defines
Aggravated harassment in the first degree to add section I-a which
includes graffiti motivated by a person's race, color, national
origin, ancestry, gender, religion, religious practice, age,
disability or sexual orientation as aggravated harassment.

Section Seven- Amends section 720.35 of the criminal procedure law to
include subdivision 5 which allows that youthful offenders convicted
of making graffiti in the first degree or aggravated harassment in
the first degree shall not have their name and crime confidential but
may be made available to any person or public or private agency.

Section Eight- Amends the general business law to add section 399-j to
require retail sellers of aerosol spray paint to conspicuously post
notice of graffiti penalties at each location of sale. Violation of
this section not to exceed two hundred and fifty dollars.

JUSTIFICATION:
These amendments recognize that existing law does not appropriately
address the growing problem of graffiti and that a simple prohibition
of the sale of spray paint to minors is not effective enough.

Graffiti is a pervasive problem that causes damage to property, lowers
property values, lowers the wellbeing of the neighborhood, may
heighten the incidence of crime, and represents a serious quality of
life problem for many New Yorkers. The laws in place now have not
gone far enough to stem the growing trend in graffiti which has even
targeted Churches and often can contain messages of hate and are
often the tool of organized criminality such as gangs.

In this vein, these amendments take into account many facets of the
issue ranging from mindless vandalism to targeted hate. First, by
warning all potential painters of graffiti of the repercussions of
their actions through signs posted at the point of sale, we may join
other states in proactive deterrence. This legislation also requires
that anyone caught creating graffiti is taught the lasting lesson of
the difficulty of cleaning up such vandalism by allowing a judge to
require, where practicable and not unduly dangerous, that as part of
the punishment that the graffiti be cleaned up with the property
owner's consent.

For less innocuous graffiti, this bill creates a class E felony to
combat this problem. It adds as Aggravated harassment in the first
degree graffiti motivated by a person's race, color, national origin,
ancestry, gender, religion, religious practice, age, disability or
sexual orientation, regardless of fact. This is creates a tool to
help those being harassed and intimidated based upon their ethnicity,
sex, or sexual orientation. It requires that those who are found to
have committed aggravated harassment, graffiti or not, that we
address the underlying problem and require that in the court's
discretion that the offender complete a diversity training program.

Also as a class E felony, this legislation creates the offense of
graffiti in the first degree when the offender creates graffiti that
either promotes or encourages gang related activities or is done on
or in the curtilage of a place of religious worship or on a display
or religious symbols. This recognizes that graffiti designed to


further crime or to attack religious freedoms is far more serious
that than graffiti created as mindless vandalism. That the underlying
sentiment is far more dangerous and should be addressed as such by
both categorization as a class E felony and by exempting those
offenders from the protections of a status as youthful offender and
keeping those records public.

This bill goes far to address the realities and spectrum of the issues
graffiti presents. It is proactive by warning potential offenders of
the punishments. It teaches the hard lessons of consequences by
requiring the errant vandal to clean up his or her mess. It also
addresses underlying problems of hate and violence by recategorizing
certain types of graffiti as class E felonies.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This law shall take effect on the first of November next succeeding
the date on which it shall have become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 532--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by Sens. KLEIN, AVELLA -- read twice and ordered printed, and
  when  printed  to be committed to the Committee on Consumer Protection
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and recommitted to said committee

AN ACT to amend the penal law, in relation to bias-related graffiti, the
  disposition  of graffiti offenses, graffiti for the purpose of promot-
  ing gang related activities and graffiti upon religious  property;  to
  amend  the  criminal  procedure  law,  in relation to the unsealing of
  youthful offender records relating to the commission of making graffi-
  ti in the first degree and aggravated harassment in the first  degree;
  and  to  amend  the  general  business  law,  in relation to requiring
  persons engaged in the retail sale of  aerosol  spray  paint  to  post
  notice  of  provisions  of  and  penalties  for commission of graffiti
  offenses

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The penal law is amended by adding a new section 60.31 to
read as follows:
S 60.31 AUTHORIZED  DISPOSITION;  AGGRAVATED  HARASSMENT  IN  THE  FIRST
            DEGREE.
  WHEN  A  PERSON  IS  CONVICTED  OF  AGGRAVATED HARASSMENT IN THE FIRST
DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO
COMMIT SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION  TO
ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL
DISCHARGE  THE  COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT HIS OR
HER OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO  OVER-
COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU-
NICATION,  UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS AND
ETHNIC GROUPS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04419-02-1

S. 532--A                           2

  S 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as amended by chapter 508 of the laws of 2001, is  amended  to  read  as
follows:
  (h) Perform services for a public or not-for-profit corporation, asso-
ciation,  institution  or  agency, including but not limited to services
for the [division] OFFICE of ALCOHOLISM AND  substance  abuse  services,
[services  in  an  appropriate community program for removal of graffiti
from public or private property, including any property damaged  in  the
underlying  offense,] or services for the maintenance and repair of real
or personal property maintained as a cemetery plot, grave, burial  place
or other place of interment of human remains. Provided however, that the
performance of any such services shall not result in the displacement of
employed  workers  or  in  the  impairment  of  existing  contracts  for
services, nor shall the performance of any such services be required  or
permitted  in any establishment involved in any labor strike or lockout.
The court may establish  provisions  for  the  early  termination  of  a
sentence   of   probation  or  conditional  discharge  pursuant  to  the
provisions of subdivision three of section 410.90 of the criminal proce-
dure law after such services have been completed. Such sentence may only
be imposed upon conviction of a misdemeanor, violation, or  class  D  or
class  E  felony,  or  a  youthful  offender  finding replacing any such
conviction, where the defendant has consented to the amount  and  condi-
tions of such service;
  S  3. Section 65.10 of the penal law is amended by adding a new subdi-
vision 6 to read as follows:
  6. WHEN IMPOSING A SENTENCE OF PROBATION OR OF  CONDITIONAL  DISCHARGE
IN  CONNECTION  WITH  A VIOLATION OF SECTION 145.60, 145.62 OR 145.65 OF
THIS CHAPTER, THE COURT SHALL AS A CONDITION OF  THE  SENTENCE,  REQUIRE
THAT  THE  DEFENDANT  REMOVE  GRAFFITI  FROM PUBLIC OR PRIVATE PROPERTY,
INCLUDING ANY PROPERTY DAMAGED IN THE  UNDERLYING  OFFENSE,  UNLESS  THE
COURT  SHALL  DETERMINE  THAT  AN  APPROPRIATE PROGRAM TO SUPERVISE SUCH
REMOVAL IS NOT AVAILABLE OR THAT SUCH GRAFFITI REMOVAL WOULD  BE  UNREA-
SONABLY DANGEROUS; PROVIDED, HOWEVER, THAT GRAFFITI REMOVAL FROM PRIVATE
PROPERTY PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT TO CONSENT OF THE
OWNER OF SUCH PROPERTY.
  S  4.  Section 145.60 of the penal law, as added by chapter 458 of the
laws of 1992, is amended to read as follows:
S 145.60 Making graffiti IN THE SECOND DEGREE.
  1. For purposes of this section AND SECTION 145.62  OF  THIS  ARTICLE,
the  term "graffiti" shall mean the etching, painting, covering, drawing
upon or otherwise placing of a mark upon public or private property with
intent to damage such property.
  2. [No person shall make] A PERSON IS GUILTY OF MAKING GRAFFITI IN THE
SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building,
public or private, or any other property real or personal owned  by  any
person,  firm  or  corporation  or any public agency or instrumentality,
without the express permission of the owner or operator of said  proper-
ty.
  Making graffiti IN THE SECOND DEGREE is a class A misdemeanor.
  S  5.  The penal law is amended by adding a new section 145.62 to read
as follows:
S 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST  DEGREE  WHEN  SUCH
PERSON  DAMAGES  PROPERTY  OF  ANOTHER PERSON IN THE MANNER DESCRIBED IN
SECTION 145.60 OF THIS ARTICLE AND HE OR SHE MAKES GRAFFITI OF ANY TYPE.
  1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR

S. 532--A                           3

  2. ON ANY BUILDING, STRUCTURE OR THE CURTILAGE  OF  SUCH  BUILDING  OR
STRUCTURE  USED  AS  A  PLACE OF RELIGIOUS WORSHIP BY A RELIGIOUS CORPO-
RATION, AS INCORPORATED UNDER THE RELIGIOUS CORPORATIONS  LAW,  OR  UPON
ANY PROPERTY THAT CONSISTS OF A SCROLL, RELIGIOUS VESTMENT, VESSEL, ITEM
COMPRISING A DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE
EXPRESSION OF FAITH OR OTHER MISCELLANEOUS ITEM OF PROPERTY KEPT OR USED
IN OR UPON SUCH BUILDING OR STRUCTURE.
  MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 6. Section 240.31 of the penal law is amended by adding a new subdi-
vision 1-a to read as follows:
  1-A.  ETCHES,  PAINTS,  COVERS,  DRAWS UPON OR OTHERWISE PLACES A MARK
UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT
THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL
PROPERTY; OR
  S 7.   Section 720.35 of the criminal  procedure  law  is  amended  by
adding a new subdivision 5 to read as follows:
  5.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
WHENEVER A PERSON IS ADJUDICATED A YOUTHFUL OFFENDER AND THE  CONVICTION
THAT  WAS  VACATED  AND  REPLACED  BY  THE YOUTHFUL OFFENDER FINDING WAS
EITHER MAKING GRAFFITI IN THE  FIRST  DEGREE  IN  VIOLATION  OF  SECTION
145.62  OF THE PENAL LAW OR AGGRAVATED HARASSMENT IN THE FIRST DEGREE IN
VIOLATION OF SECTION 240.31 OF THE PENAL  LAW,  THEN  THE  NAME  OF  THE
YOUTHFUL  OFFENDER AND THE CRIME FOR WHICH THE YOUTHFUL OFFENDER FINDING
WAS SUBSTITUTED SHALL NOT BE CONFIDENTIAL AND MAY BE MADE  AVAILABLE  TO
ANY PERSON OR PUBLIC OR PRIVATE AGENCY.
  S 8. The general business law is amended by adding a new section 399-j
to read as follows:
  S 399-J. RETAIL SALE OF AEROSOL SPRAY PAINT; NOTICE OF GRAFFITI PENAL-
TIES.  1.  EVERY PERSON AND ENTITY ENGAGED IN THE RETAIL SALE OF AEROSOL
SPRAY PAINT SHALL, AT EACH LOCATION AT WHICH SUCH PAINT IS DISPLAYED FOR
SALE, CONSPICUOUSLY POST A SIGN ADVISING CUSTOMERS OF THE PROVISIONS  OF
AND  PENALTIES  FOR  MAKING  GRAFFITI  IN THE FIRST DEGREE AS DEFINED IN
SECTION 145.60, MAKING GRAFFITI  IN  THE  FIRST  DEGREE  AS  DEFINED  IN
SECTION 145.62, POSSESSION OF GRAFFITI INSTRUMENTS AS DEFINED IN SECTION
145.65  AND  AGGRAVATED  HARASSMENT  IN  THE  FIRST DEGREE AS DEFINED IN
SECTION 240.31 OF THE PENAL LAW.
  2. A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL  PENALTY
NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS.
  S 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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