S T A T E   O F   N E W   Y O R K
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                                  7026

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 18, 2009
                               ___________

Introduced  by  M. of A. RABBITT, CORWIN, CROUCH, DUPREY, FIELDS, GIGLIO
  -- Multi-Sponsored by -- M. of A. BACALLES, BARCLAY, BURLING, CALHOUN,
  CONTE, FINCH, GABRYSZAK, GALEF, HAWLEY, HAYES, KOLB, MAGEE, McDONOUGH,
  McKEVITT, MENG, MOLINARO, RAIA, REILICH, TOBACCO, WALKER -- read  once
  and referred to the Committee on Codes

AN  ACT to amend the penal law, in relation to creating the new crime of
  cyber harassment; and increasing penalties for the crimes  of  harass-
  ment and stalking

  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 240.33 to
read as follows:
S 240.33 CYBER HARASSMENT.
  1. A PERSON IS GUILTY OF CYBER HARASSMENT WHEN,  FOR  THE  PURPOSE  OF
FRIGHTENING  OR DISTURBING ANOTHER PERSON, HE OR SHE TRANSMITS OR CAUSES
THE TRANSMISSION OF AN ELECTRONIC COMMUNICATION, OR KNOWINGLY PERMITS AN
ELECTRONIC COMMUNICATION TO BE TRANSMITTED TO  ANOTHER  PERSON  FROM  AN
ELECTRONIC COMMUNICATION DEVICE UNDER HIS OR HER CONTROL:
  (A)  USING  COARSE LANGUAGE OFFENSIVE TO A PERSON OF AVERAGE SENSIBIL-
ITY; OR
  (B) ANONYMOUSLY OR REPEATEDLY TRANSMITTING SUCH COMMUNICATION  WHETHER
OR NOT CONVERSATION OCCURS; OR
  (C) THREATENING TO COMMIT ANY FELONY.
  2.  NO  PERSON  SHALL  MAKE OR CAUSE TO BE MADE AN ELECTRONIC COMMUNI-
CATION, OR PERMIT AN ELECTRONIC COMMUNICATION TO BE MADE FROM  AN  ELEC-
TRONIC COMMUNICATION DEVICE UNDER SUCH PERSON'S CONTROL, WITH THE INTENT
TO  FRIGHTEN OR DISTURB ANY OTHER PERSON IN ANY MANNER DESCRIBED IN THIS
SECTION EITHER BY THE DIRECT ACTION OF THE PERSON INITIATING THE  COMMU-
NICATION  OR  THROUGH  THE  ACTIONS  OF  A THIRD PARTY WHOSE ACTIONS ARE
INSTIGATED, INITIATED, PROMPTED,  OR  BROUGHT  ABOUT  BY  SUCH  PERSON'S
COMMUNICATION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09780-01-9
              

A. 7026                             2

  3. ANY OFFENSE COMMITTED UNDER THIS SECTION MAY BE DEEMED TO HAVE BEEN
COMMITTED  EITHER  AT THE PLACE FROM WHICH THE COMMUNICATION WAS MADE OR
AT THE PLACE WHERE THE COMMUNICATION WAS RECEIVED.
  4. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL MEAN:
  (A) "AN ADULT" IS ANY PERSON TWENTY-ONE YEARS OR OLDER;
  (B) "A CHILD" IS ANY PERSON UNDER SEVENTEEN YEARS OF AGE;
  (C) "ELECTRONIC COMMUNICATIONS" ARE THE ORIGINATION, EMISSION, DISSEM-
INATION, TRANSMISSION, OR RECEPTION OF DATA, IMAGES, SIGNALS, SOUNDS, OR
OTHER INTELLIGENCE OR EQUIVALENCE OF INTELLIGENCE OF ANY NATURE OVER ANY
COMMUNICATIONS  SYSTEM  BY  ANY METHOD, INCLUDING, BUT NOT LIMITED TO, A
FIBER OPTIC, ELECTRONIC, MAGNETIC, OPTICAL, DIGITAL, OR  ANALOG  METHOD.
SUCH  ELECTRONIC  COMMUNICATIONS  SHALL  INCLUDE,  BUT NOT BE LIMITED TO
ELECTRONIC MAIL, INTERNET-BASED COMMUNICATIONS, PAGER SERVICE, AND ELEC-
TRONIC TEXT MESSAGING; AND
  (D) "AN ELECTRONIC COMMUNICATIONS DEVICE" IS  ANY  INSTRUMENT,  EQUIP-
MENT,  MACHINE,  OR  OTHER  DEVICE  THAT  FACILITATES TELECOMMUNICATION,
INCLUDING, BUT NOT LIMITED TO, A COMPUTER,  COMPUTER  NETWORK,  COMPUTER
CHIP,  COMPUTER  CIRCUIT, SCANNER, TELEPHONE, CELLULAR TELEPHONE, PAGER,
PERSONAL COMMUNICATIONS DEVICE, TRANSPONDER, RECEIVER, RADIO, MODEM,  OR
DEVICE THAT ENABLES THE USE OF A MODEM.
  CYBER HARASSMENT IS A CLASS A MISDEMEANOR. CYBER HARASSMENT IS A CLASS
D FELONY WHEN COMMITTED BY AN ADULT AGAINST A CHILD.
  S 2. Section 240.25 of the penal law, as amended by chapter 109 of the
laws of 1994, is amended to read as follows:
S 240.25 Harassment in the first degree.
  A  person  is  guilty of harassment in the first degree when he or she
intentionally and repeatedly harasses another person by  following  such
person  in  or about a public place or places or by engaging in a course
of conduct or by repeatedly committing acts which places such person  in
reasonable  fear  of  physical injury.   This section shall not apply to
activities regulated by the national labor relations  act,  as  amended,
the  railway  labor  act,  as  amended,  or the federal employment labor
management act, as amended.
  Harassment in the first degree is a class B misdemeanor.    HARASSMENT
IN  THE  FIRST  DEGREE  IS  A  CLASS D FELONY WHEN COMMITTED BY AN ADULT
AGAINST A CHILD.
  S 3. Section 240.26 of the penal law, as amended by chapter 109 of the
laws of 1994, is amended to read as follows:
S 240.26 Harassment in the second degree.
  A person is guilty of harassment  in  the  second  degree  when,  with
intent to harass, annoy or alarm another person:
  1.  He  or she strikes, shoves, kicks or otherwise subjects such other
person to physical contact, or attempts or threatens to do the same; or
  2. He or she follows a person in or about a public place or places; or
  3. He or she engages in a course of conduct or repeatedly commits acts
which alarm or seriously annoy such other  person  and  which  serve  no
legitimate purpose.
  Subdivisions  two  and three of this section shall not apply to activ-
ities regulated by the national labor relations  act,  as  amended,  the
railway  labor  act, as amended, or the federal employment labor manage-
ment act, as amended.
  Harassment in the second degree is a violation.    HARASSMENT  IN  THE
SECOND  DEGREE  IS A CLASS E FELONY WHEN COMMITTED BY AN ADULT AGAINST A
CHILD.
  S 4. Section 120.50 of the penal law, as added by chapter 635  of  the
laws of 1999, is amended to read as follows:

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S 120.50 Stalking in the third degree.
  A person is guilty of stalking in the third degree when he or she:
  1.  Commits the crime of stalking in the fourth degree in violation of
section 120.45 of this article against three or more persons,  in  three
or  more  separate transactions, for which the actor has not been previ-
ously convicted; or
  2. Commits the crime of stalking in the fourth degree in violation  of
section  120.45  of  this article against any person, and has previously
been convicted, within the preceding ten years of a specified  predicate
crime, as defined in subdivision five of section 120.40 of this article,
and  the  victim  of such specified predicate crime is the victim, or an
immediate family member of the victim, of the present offense; or
  3. With intent to harass, annoy or alarm  a  specific  person,  inten-
tionally engages in a course of conduct directed at such person which is
likely  to cause such person to reasonably fear physical injury or seri-
ous physical injury, the commission of a sex  offense  against,  or  the
kidnapping, unlawful imprisonment or death of such person or a member of
such person's immediate family; or
  4.  Commits  the crime of stalking in the fourth degree and has previ-
ously been convicted within the preceding ten years of stalking  in  the
fourth degree.
  Stalking  in  the  third degree is a class A misdemeanor.  STALKING IN
THE THIRD DEGREE IS A CLASS D FELONY WHEN COMMITTED BY AN ADULT  AGAINST
A CHILD.
  S  5.  Section 120.45 of the penal law, as added by chapter 635 of the
laws of 1999, is amended to read as follows:
S 120.45 Stalking in the fourth degree.
  A person is guilty of stalking in the fourth degree  when  he  or  she
intentionally,  and  for  no  legitimate purpose, engages in a course of
conduct directed at a specific person, and knows  or  reasonably  should
know that such conduct:
  1. is likely to cause reasonable fear of material harm to the physical
health,  safety  or  property  of such person, a member of such person's
immediate family or a third party with whom such person  is  acquainted;
or
  2.  causes  material  harm  to  the mental or emotional health of such
person, where such conduct consists of following, telephoning or  initi-
ating  communication  or  contact  with  such  person,  a member of such
person's immediate family or a third party  with  whom  such  person  is
acquainted,  and the actor was previously clearly informed to cease that
conduct; or
  3. is likely to cause such person to reasonably fear that his  or  her
employment,  business  or  career  is  threatened,  where  such  conduct
consists  of  appearing,  telephoning  or  initiating  communication  or
contact  at such person's place of employment or business, and the actor
was previously clearly informed to cease that conduct.
  Stalking in the fourth degree is a class B misdemeanor.   STALKING  IN
THE FOURTH DEGREE IS A CLASS E FELONY WHEN COMMITTED BY AN ADULT AGAINST
A CHILD.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.