senate Bill S714A

Creates computer sex crimes against children

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Sponsor

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 CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES
  • 15 / Jun / 2012
    • AMEND (T) AND RECOMMIT TO CODES
  • 15 / Jun / 2012
    • PRINT NUMBER 714A
  • 18 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 18 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1268
  • 18 / Jun / 2012
    • PASSED SENATE
  • 18 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 18 / Jun / 2012
    • REFERRED TO CODES

Summary

Creates computer sex crimes against children and makes it a violent felony offense when a person is convicted of a computer sex crime and the underlying crime is against a child.

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Bill Details

Versions:
S714
S714A
Legislative Cycle:
2011-2012
Current Committee:
Assembly Codes
Law Section:
Penal Law
Laws Affected:
Add Title Y-2 Art 495 §§495.00 & 495.05, amd §460.10, Pen L; amd §§200.50 & 700.05, CP L
Versions Introduced in 2009-2010 Legislative Cycle:
S1459

Sponsor Memo

BILL NUMBER:S714A

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law,
in relation to computer sex crimes against children

PURPOSE:
This bill creates new crimes relating to the use of computers for the
purpose of committing sexual offenses against children.

SUMMARY OF PROVISIONS:
Section 1 of the bill adds Penal Law Article 495 to create the offense
of Computer Sex Crime. A person is guilty of a Computer Sex Crime
when he or she commits a "sex crime against a child" which was
facilitated by using a computer or computer service to communicate
with the victim. For purposes of this new offense, "sex crime
against a child" is defined as a felony offense, the essential
elements of which include the commission or attempted commission of
sexual conduct or the use or promotion of a sexual or obscene sexual
performance involving a child less than 17 years old. The punishment
for committing this offense is one felony class higher than for the
underlying "sex crime against a child." Where the underlying "sex
crime against a child" is a class B felony, the bill increases the
minimum determinate sentence that must be imposed.

Section 2 of the bill amends Criminal Procedure Law §200.50(4) and(7)
regarding the form and content of an indictment to provide that when
charging the offense of Computer Sex Crimes, the accusatory
instrument must particularize the "sex crime against a child, "as
defined in Penal Law § 495.00, followed by the phrase "as a computer
sex crime."

Section 3 of the bill amends Criminal Procedure Law §700.05(B) to
include certain additional computer and sex crime offenses within the
definition of "designated offense" for which law enforcement may
obtain eavesdropping or video surveillance warrants.

Section 4 of the bill amends Penal Law § 460.10(1) to include Computer
Sex Crimes (penal Law § 495) within the definition of "criminal act"
for purposes of an enterprise corruption prosecution.

JUSTIFICATION:
The dramatic increase in the use of computers, and ever-increasing
interconnection through the Internet and other networks, have
fundamentally altered the types of crimes that can be committed and
the ease with which individuals can be victimized. Most notably, the
anonymity of cyberspace is the perfect medium for predatory crimes
against vulnerable individuals.

The incidence of such insidious offenses has increased dramatically in
recent years, and frequently involving individuals using a false
identity in an effort to engage in sexual conduct with minors. This
bill addresses this problem by significantly increasing criminal
penalties for such predators.


In particular, this bill creates a new offense of Computer Sex Crimes.
This crime occurs when a person commits a "sex crime against a
child," which was facilitated by communicating with the victim of
such offense over the Internet. "Sex crime against a child" is
defined as a felony offense, the essential elements of which include
the commission or attempted commission of sexual conduct or the use
or promotion of a sexual or obscene sexual performance involving a
child less than 17 years old. The punishment for committing this
offense is one felony class higher than for the underlying "sex crime
against a child." Where the underlying "sex crime against a child" is
a class B felony, the bill increases the minimum determinate sentence
that must be imposed.

In addition, by adding computer crimes and crimes involving the sexual
performance by a child to the eavesdropping and enterprise corruption
statutes, this bill provides law enforcement with the tools it needs
to investigate such crimes effectively.

LEGISLATIVE HISTORY:
2008: Passed Senate
2009-10: Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill takes effect on the first of November following enactment.

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

                                 714--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  ROBACH -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to computer sex crimes against children

  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 title Y-2 to read
as follows:
                                TITLE Y-2
                  COMPUTER SEX CRIMES AGAINST CHILDREN
                               ARTICLE 495
                  COMPUTER SEX CRIMES AGAINST CHILDREN
SECTION 495.00 COMPUTER SEX CRIMES.
        495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
S 495.00 COMPUTER SEX CRIMES.
  1.  A PERSON COMMITS A COMPUTER SEX CRIME WHEN HE OR SHE COMMITS A SEX
CRIME AGAINST A CHILD AND FACILITATED THE COMMISSION OF SUCH OFFENSE  BY
USING  OR  CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMUNI-
CATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
  2. A "SEX CRIME AGAINST A CHILD" MEANS A FELONY OFFENSE (A) THE ESSEN-
TIAL ELEMENTS OF WHICH INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF
SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF  THIS
CHAPTER,  OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL PERFORM-
ANCE, AS DEFINED IN SECTION 263.00 OF THIS  CHAPTER,  (B)  COMMITTED  OR
ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01996-02-2

S. 714--A                           2

  1.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING CRIME AGAINST A CHILD
IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF  THIS  CHAP-
TER, THE COMPUTER SEX CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
  2.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING SEX CRIME  AGAINST  A
CHILD  IS  A  CLASS  C,  D  OR E FELONY, THE COMPUTER SEX CRIME SHALL BE
DEEMED TO BE ONE CATEGORY HIGHER THAN THE SEX CRIME AGAINST A CHILD  THE
DEFENDANT  COMMITTED,  OR  ONE  CATEGORY  HIGHER  THAN THE OFFENSE LEVEL
APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
COMMIT A SEX CRIME AGAINST A CHILD, WHICHEVER IS APPLICABLE.
  3. NOTWITHSTANDING ANY OTHER  PROVISION  OF  LAW,  WHEN  A  PERSON  IS
CONVICTED  OF  A  COMPUTER  SEX CRIME PURSUANT TO SECTION 495.00 OF THIS
ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B  FELO-
NY:
  (A)  THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
AND
  (C) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
FOUR  YEARS  IF  THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
THIS CHAPTER.
  S 2. Subdivisions 4 and 7 of section 200.50 of the criminal  procedure
law, as amended by chapter 7 of the laws of 2007, are amended to read as
follows:
  4.  A statement in each count that the grand jury, or, where the accu-
satory instrument is a superior court information, the  district  attor-
ney,  accuses  the  defendant  or  defendants  of  a designated offense,
provided that in any prosecution under article four hundred  eighty-five
of the penal law, the designated offense shall be the specified offense,
as  defined  in  subdivision  three  of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further  that  in
any  prosecution  under  section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision  three
of  section  490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and  provided  further  that  in  any  prosecution  under
section  130.91  of  the  penal law, the designated offense shall be the
specified offense, as defined in subdivision two of  section  130.91  of
the  penal law, followed by the phrase "as a sexually motivated felony",
AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 495.00 OF THE
PENAL LAW, THE DESIGNATED OFFENSE SHALL  BE  THE  UNDERLYING  SEX  CRIME
AGAINST  A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF THE
PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and
  7. A plain and concise factual statement in each count which,  without
allegations of an evidentiary nature,
  (a)  asserts facts supporting every element of the offense charged and
the defendant's or defendants' commission thereof with sufficient preci-
sion to clearly apprise the defendant or defendants of the conduct which
is the subject of the accusation; and
  (b) in the case of any armed felony, as defined in subdivision  forty-
one  of  section  1.20,  states that such offense is an armed felony and
specifies  the  particular  implement  the   defendant   or   defendants
possessed,  were  armed  with,  used  or displayed or, in the case of an
implement displayed, specifies what the implement appeared to be; and

S. 714--A                           3

  (c) in the case of any hate crime, as defined in section 485.05 of the
penal law, specifies, as applicable, that the  defendant  or  defendants
intentionally selected the person against whom the offense was committed
or  intended to be committed; or intentionally committed the act or acts
constituting  the  offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin,  ances-
try,  gender,  religion,  religious  practice, age, disability or sexual
orientation of a person; and
  (d) in the case of a crime of terrorism, as defined in section  490.25
of  the  penal  law,  specifies,  as  applicable,  that the defendant or
defendants acted with intent to intimidate or coerce  a  civilian  popu-
lation,  influence the policy of a unit of government by intimidation or
coercion, or affect the conduct of  a  unit  of  government  by  murder,
assassination or kidnapping; and
  (e)  in the case of a sexually motivated felony, as defined in section
130.91 of the penal law, asserts facts supporting  the  allegation  that
the offense was sexually motivated; and
  (F) IN THE CASE OF A COMPUTER SEX CRIME, AS DEFINED IN SUBDIVISION ONE
OF  SECTION  495.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
DEFENDANT OR DEFENDANTS  FACILITATED  THE  COMMISSION  OF  A  SEX  CRIME
AGAINST  A  CHILD, AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 495.00,
BY USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO  COMMU-
NICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
  S  3. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding two new paragraphs (u) and (v) to read as follows:
  (U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
ER TAMPERING IN THE THIRD DEGREE AS DEFINED IN  SECTION  156.25  OF  THE
PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
156.26  OF  THE  PENAL  LAW,  COMPUTER  TAMPERING IN THE FIRST DEGREE AS
DEFINED IN SECTION 156.27 OF THE  PENAL  LAW,  UNLAWFUL  DUPLICATION  OF
COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
CRIMINAL  POSSESSION  OF COMPUTER RELATED MATERIAL AS DEFINED IN SECTION
156.35 OF THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE FIRST DEGREE AS DEFINED IN SECTION 235.22 OF THE PENAL LAW.
  (V) USE OF A CHILD IN A  SEXUAL  PERFORMANCE  AS  DEFINED  IN  SECTION
263.05  OF  THE  PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.10  OF  THE  PENAL  LAW,  POSSESSING  AN
OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD AS DEFINED IN SECTION 263.11 OF
THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS  DEFINED  IN
SECTION  263.15  OF  THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
  S 4. Paragraph (a) of subdivision 1 of section  460.10  of  the  penal
law,  as  amended by chapter 405 of the laws of 2010, is amended to read
as follows:
  (a) Any of the felonies set forth in this  chapter:  sections  120.05,
120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
ing  to  strangulation;  sections 125.10 to 125.27 relating to homicide;
sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
135.25 relating to kidnapping; section 135.35 relating  to  labor  traf-
ficking;  section  135.65  relating to coercion; sections 140.20, 140.25
and 140.30 relating to burglary;  sections  145.05,  145.10  and  145.12
relating  to  criminal  mischief;  article one hundred fifty relating to
arson; sections 155.30, 155.35, 155.40  and  155.42  relating  to  grand
larceny;  sections  177.10, 177.15, 177.20 and 177.25 relating to health
care fraud; article one hundred  sixty  relating  to  robbery;  sections

S. 714--A                           4

165.45,  165.50,  165.52  and  165.54 relating to criminal possession of
stolen property; sections 165.72 and 165.73 relating to trademark  coun-
terfeiting;  sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
170.70  relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
176.30 relating to insurance fraud; sections 178.20 and 178.25  relating
to  criminal  diversion  of  prescription medications and prescriptions;
sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27,  215.00,
215.05  and  215.19 relating to bribery; sections 187.10, 187.15, 187.20
and 187.25 relating to residential mortgage  fraud[,];  sections  190.40
and  190.42  relating  to  criminal  usury;  section  190.65 relating to
schemes to defraud; sections 205.60 and  205.65  relating  to  hindering
prosecution; sections 210.10, 210.15, and 215.51 relating to perjury and
contempt;  section  215.40 relating to tampering with physical evidence;
sections 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39,
220.41, 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
substances; sections 225.10 and 225.20 relating  to  gambling;  sections
230.25,  230.30,  and 230.32 relating to promoting prostitution; section
230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21  and
235.22  relating  to  obscenity;  sections 263.05, 263.10 [and], 263.11,
263.15 AND 263.16 relating to [promoting]  a  sexual  performance  by  a
child;  sections  265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the
provisions of section 265.10  which  constitute  a  felony  relating  to
firearms  and  other  dangerous  weapons; and sections 265.14 and 265.16
relating to criminal sale of a  firearm;  and  section  275.10,  275.20,
275.30,  or  275.40  relating to unauthorized recordings; [and] sections
470.05, 470.10, 470.15 and  470.20  relating  to  money  laundering  AND
SECTION 495.00 RELATING TO COMPUTER SEX CRIMES; or
  S 5. 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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