S T A T E O F N E W Y O R K
________________________________________________________________________
6872
2013-2014 Regular Sessions
I N A S S E M B L Y
April 23, 2013
___________
Introduced by M. of A. ROSA -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to creating the crimes of electronic stalking, and adding
electronic stalking to designated offenses for eavesdropping warrants
and to amend the correction law, in relation to including a conviction
of electronic stalking under the requirements of the sex offender
registration act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 120.40 of the penal law is amended by adding two
new subdivisions 6 and 7 to read as follows:
6. "ELECTRONIC COMMUNICATION" SHALL MEAN ANY TRANSFER OF SIGNS,
SIGNALS, WRITINGS, IMAGES, SOUNDS, DATA, OR INTELLIGENCE OF ANY NATURE
TRANSMITTED IN WHOLE OR IN PART BY A WIRE, RADIO, ELECTROMAGNETIC,
PHOTO-ELECTRONIC, OR PHOTO-OPTICAL SYSTEM. ELECTRONIC COMMUNICATION
INCLUDES, BUT IS NOT LIMITED TO, THE TRANSFER OF THAT COMMUNICATION
THROUGH THE INTERNET.
7. "PERSONAL IDENTIFYING INFORMATION" SHALL MEAN A PERSON'S NAME,
ADDRESS, TELEPHONE NUMBER, DATE OF BIRTH, DRIVER'S LICENSE NUMBER, MOTOR
VEHICLE LICENSE PLATE NUMBER, SOCIAL SECURITY NUMBER, PLACE OF EMPLOY-
MENT, SCHOOL, MOTHER'S MAIDEN NAME, IMAGE, OR SCHEDULE OF DAILY ACTIV-
ITIES.
S 2. Subdivision 4 of section 120.55 of the penal law, as amended by
chapter 598 of the laws of 2003, is amended to read as follows:
4. Being twenty-one years of age or older, repeatedly follows a person
under the age of fourteen or engages in a course of conduct or repeated-
ly commits acts over a period of time intentionally placing or attempt-
ing to place such person who is under the age of fourteen in reasonable
fear of physical injury, serious physical injury [or], death, OR BECOM-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10397-01-3
A. 6872 2
ING THE VICTIM OF A SEX OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY
OF THIS TITLE; or
S 3. The penal law is amended by adding three new sections 120.61,
120.62 and 120.63 to read as follows:
S 120.61 ELECTRONIC STALKING IN THE THIRD DEGREE.
A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE THIRD DEGREE WHEN HE
OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
COMMUNICATION THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
CATION IS LIKELY TO CAUSE SUCH PERSON TO REASONABLY FEAR THE DEATH,
SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
SONMENT OF SUCH PERSON OR ANOTHER PERSON; THE COMMISSION OF A SEX
OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS TITLE AGAINST
SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
NAL TRESPASS OR BURGLARY.
ELECTRONIC STALKING IN THE THIRD DEGREE IS A CLASS E FELONY.
S 120.62 ELECTRONIC STALKING IN THE SECOND DEGREE.
A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE SECOND DEGREE WHEN HE
OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
COMMUNICATION THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
CATION IS LIKELY TO CAUSE SUCH PERSON TO REASONABLY FEAR THE DEATH,
SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
SONMENT OF SUCH PERSON OR ANOTHER PERSON; THE COMMISSION OF A SEX
OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS TITLE AGAINST
SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
NAL TRESPASS OR BURGLARY, AND:
1. SUCH COMMUNICATION FACILITATES THE COMMISSION OR ATTEMPTED COMMIS-
SION OF A CRIME OTHER THAN A CLASS A, B OR C FELONY AND SUCH CRIME OR
ATTEMPTED CRIME ACTUALLY OCCURS; OR
2. SUCH COMMUNICATION INVOLVES THE DISSEMINATION OF PERSONAL IDENTIFY-
ING INFORMATION CONCERNING A PERSON UNDER THE AGE OF EIGHTEEN AND THE
ACTOR IS EIGHTEEN YEARS OLD OR MORE; OR
3. SUCH COMMUNICATION INVOLVES THE DISSEMINATION OF PERSONAL IDENTIFY-
ING INFORMATION CONCERNING A PERSON WHO IS A PUBLIC SERVANT AS DEFINED
IN SUBDIVISION FIFTEEN OF SECTION 10.00 OF THIS CHAPTER AND THE INFORMA-
TION IS COMMUNICATED BECAUSE OF THE PERSON'S POSITION AS A PUBLIC SERV-
ANT; OR
4. HE OR SHE DOES SO BY KNOWINGLY ASSUMING THE IDENTITY OF SUCH
SPECIFIC PERSON BY PRESENTING HIMSELF OR HERSELF AS THAT SPECIFIC
PERSON, OR BY ACTING AS THAT SPECIFIC PERSON, OR BY USING PERSONAL IDEN-
TIFYING INFORMATION OF THAT SPECIFIC PERSON.
ELECTRONIC STALKING IN THE SECOND DEGREE IS A CLASS D FELONY.
S 120.63 ELECTRONIC STALKING IN THE FIRST DEGREE.
A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE FIRST DEGREE WHEN HE
OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
COMMUNICATION THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
CATION IS LIKELY TO CAUSE SUCH PERSON TO REASONABLY FEAR THE DEATH,
SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
SONMENT OF SUCH PERSON OR ANOTHER PERSON; THE COMMISSION OF A SEX
OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS TITLE AGAINST
SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
NAL TRESPASS OR BURGLARY; AND SUCH COMMUNICATION FACILITATES THE COMMIS-
SION OR ATTEMPTED COMMISSION OF A CLASS A, B OR C FELONY AND SUCH CRIME
OR ATTEMPTED CRIME ACTUALLY OCCURS.
A. 6872 3
ELECTRONIC STALKING IN THE FIRST DEGREE IS A CLASS C FELONY.
S 4. Paragraph (p) of subdivision 8 of section 700.05 of the criminal
procedure law, as added by chapter 635 of the laws of 1999, is amended
to read as follows:
(p) Stalking in the second degree as defined in section 120.55 of the
penal law, [and] stalking in the first degree as defined in section
120.60 of the penal law, ELECTRONIC STALKING IN THE THIRD DEGREE AS
DEFINED IN SECTION 120.61 OF THE PENAL LAW, ELECTRONIC STALKING IN THE
SECOND DEGREE AS DEFINED IN SECTION 120.62 OF THE PENAL LAW, AND ELEC-
TRONIC STALKING IN THE FIRST DEGREE AS DEFINED IN SECTION 120.63 OF THE
PENAL LAW.
S 5. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding a new paragraph (u) to read as follows:
(U) DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE AS
DEFINED IN SECTION 235.22 OF THE PENAL LAW, 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 PERFORM-
ANCE BY A CHILD AS DEFINED IN SECTION 263.15 OF THE PENAL LAW, AND
POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.16
OF THE PENAL LAW.
S 6. Paragraphs (b) and (c) of subdivision 1 of section 70.02 of the
penal law, as amended by chapter 1 of the laws of 2013, are amended to
read as follows:
(b) Class C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined in section 125.21,
aggravated sexual abuse in the second degree as defined in section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, assault on a
judge as defined in section 120.09, gang assault in the second degree as
defined in section 120.06, ELECTRONIC STALKING IN THE FIRST DEGREE AS
DEFINED IN SECTION 120.63, strangulation in the first degree as defined
in section 121.13, burglary in the second degree as defined in section
140.25, robbery in the second degree as defined in section 160.10, crim-
inal possession of a weapon in the second degree as defined in section
265.03, criminal use of a firearm in the second degree as defined in
section 265.08, criminal sale of a firearm in the second degree as
defined in section 265.12, criminal sale of a firearm with the aid of a
minor as defined in section 265.14, aggravated criminal possession of a
weapon as defined in section 265.19, soliciting or providing support for
an act of terrorism in the first degree as defined in section 490.15,
hindering prosecution of terrorism in the second degree as defined in
section 490.30, and criminal possession of a chemical weapon or biolog-
ical weapon in the third degree as defined in section 490.37.
(c) Class D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, ELECTRONIC STALKING IN THE FIRST DEGREE AS
DEFINED IN SECTION 120.63, strangulation in the second degree as defined
in section 121.12, rape in the second degree as defined in section
130.30, criminal sexual act in the second degree as defined in section
A. 6872 4
130.45, sexual abuse in the first degree as defined in section 130.65,
course of sexual conduct against a child in the second degree as defined
in section 130.80, aggravated sexual abuse in the third degree as
defined in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six, seven, eight,
nine or ten of section 265.02, criminal sale of a firearm in the third
degree as defined in section 265.11, intimidating a victim or witness in
the second degree as defined in section 215.16, soliciting or providing
support for an act of terrorism in the second degree as defined in
section 490.10, and making a terroristic threat as defined in section
490.20, falsely reporting an incident in the first degree as defined in
section 240.60, placing a false bomb or hazardous substance in the first
degree as defined in section 240.62, placing a false bomb or hazardous
substance in a sports stadium or arena, mass transportation facility or
enclosed shopping mall as defined in section 240.63, and aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
S 7. Subparagraph (iii) of paragraph (d) and paragraph (e) of subdivi-
sion 2 of section 168-a of the correction law, subparagraph (iii) of
paragraph (d) as amended by chapter 232 of the laws of 2008 and para-
graph (e) as amended by chapter 513 of the laws of 2011, are amended and
a new paragraph (f) is added to read as follows:
(iii) any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18
U.S.C. 2252, 18 U.S.C. 2252A, 18 U.S.C. 2260, 18 U.S.C. 2422(b), 18
U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime
of conviction are substantially the same as those which are a part of
such offense as of the date on which this subparagraph takes effect[.];
OR
(e) a conviction of or a conviction for an attempt to commit any of
the provisions of subdivision two, three or four of section 250.45 of
the penal law, unless upon motion by the defendant, the trial court,
having regard to the nature and circumstances of the crime and to the
history and character of the defendant, is of the opinion that registra-
tion would be unduly harsh and inappropriate[.]; OR
(F) A CONVICTION FOR ANY OF THE PROVISIONS DEFINED IN SECTIONS 120.61,
120.62, OR 120.63 OF THE PENAL LAW, UNLESS UPON MOTION BY THE DEFENDANT,
THE TRIAL COURT, HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF THE
CRIME AND TO THE HISTORY AND CHARACTER OF THE DEFENDANT, IS OF THE OPIN-
ION THAT REGISTRATION WOULD BE UNDULY HARSH AND INAPPROPRIATE.
S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.