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

                                  3506

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced by M. of A. BRADLEY -- Multi-Sponsored by -- M. of A. ALFANO,
  PHEFFER -- read once and referred to the Committee on Codes

AN  ACT  to  amend  the penal law, in relation to disseminating indecent
  material to minors in the first degree, promoting  and  possessing  an
  obscene  sexual performance by a child, and promoting and possessing a
  sexual performance by a child; and to amend the civil rights  law,  in
  relation to a child victim's right of privacy

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

  Section 1. Subdivision 3 of section 235.21 of the penal law, as  added
by chapter 600 of the laws of 1996, is amended to read as follows:
  3.  Knowing  the  character and content of the communication which, in
whole or in part, depicts OR DESCRIBES, EITHER IN WORDS OR IMAGES actual
or simulated nudity, sexual conduct or sado-masochistic abuse, and which
is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU-
NICATION, ELECTRONIC  COMMUNICATION  OR  computer  communication  system
allowing the input, output, examination or transfer, of computer data or
computer programs from one computer to another, to initiate or engage in
such communication with a person who is a minor OR A PERSON WHO, REGARD-
LESS  OF  HIS  OR  HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY
BELIEVES SUCH OFFICER TO BE A MINOR.
  S 2. Section 235.22 of the penal law, as added by chapter 600  of  the
laws of 1996, subdivision 1 as amended by chapter 8 of the laws of 2007,
subdivision  2 as amended by chapter 264 of the laws of 2003, is amended
to read as follows:
S 235.22 Disseminating indecent material to minors in the first degree.
  A person is guilty of disseminating indecent material to minors in the
first degree when:
  1. knowing the character and content of the  communication  which,  in
whole or in part, depicts or describes, either in words or images actual
or simulated nudity, sexual conduct or sado-masochistic abuse, and which

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03543-01-9
              

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is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU-
NICATION,  ELECTRONIC  COMMUNICATION  OR  computer  communication system
allowing the input, output, examination or transfer, of computer data or
computer programs from one computer to another, to initiate or engage in
such communication with a person who is a minor OR A PERSON WHO, REGARD-
LESS  OF  HIS  OR  HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY
BELIEVES SUCH OFFICER TO BE A MINOR; and
  2. by means of such communication he OR  SHE  importunes,  invites  or
induces  a  minor  OR  A  PERSON WHO, REGARDLESS OF HIS OR HER AGE, IS A
POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER  TO  BE  A
MINOR to engage in sexual intercourse, oral sexual conduct or anal sexu-
al  conduct, or sexual contact with him OR HER, or to engage in a sexual
performance, obscene sexual performance, or sexual conduct  for  his  OR
HER benefit.
  Disseminating  indecent  material  to  minors in the first degree is a
class D felony.
  S 3. Subdivisions 1, 2, 4 and 6 of section 263.00 of  the  penal  law,
subdivisions  1  and  2  as amended by chapter 1 of the laws of 2000 and
subdivisions 4 and 6 as added by chapter 910 of the laws  of  1977,  are
amended to read as follows:
  1.  "Sexual performance" means any performance or part thereof which[,
for purposes of section 263.16 of this article, includes sexual  conduct
by  a  child  less than sixteen years of age or, for purposes of section
263.05 or 263.15 of this article,]  includes  sexual  conduct,  OR  WHAT
REASONABLY  APPEARS TO BE SEXUAL CONDUCT, by a child less than seventeen
years of age.
  2. "Obscene sexual performance"  means  any  performance  which[,  for
purposes of section 263.11 of this article, includes sexual conduct by a
child  less than sixteen years of age or, for purposes of section 263.10
of this article,] includes sexual conduct, OR WHAT REASONABLY APPEARS TO
BE SEXUAL CONDUCT, by a child less than seventeen years of age,  in  any
material  which is obscene, as such term is defined in section 235.00 of
this chapter.
  4. "Performance" means any  play,  motion  picture,  photograph  [or],
dance,  FILM,  VIDEO, DIGITAL IMAGE OR DATA STORED ON A COMPUTER DISK OR
BY ELECTRONIC MEANS WHERE SUCH DATA IS  CAPABLE  OF  CONVERSION  INTO  A
VISUAL  IMAGE.  Performance  also  means any other visual representation
exhibited before an audience.
  6. "Simulated" means the explicit depiction of any of the conduct  set
forth  in subdivision three of this section which creates the appearance
of such conduct  [and  which  exhibits  any  uncovered  portion  of  the
breasts, genitals or buttocks].
  S  4.  Section 263.10 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.10 Promoting an obscene sexual  performance  by  a  child  IN  THE
           SECOND DEGREE.
  A  person  is  guilty  of promoting an obscene sexual performance by a
child IN THE SECOND DEGREE when, knowing the character and content ther-
eof, he OR SHE produces, directs or  promotes  any  obscene  performance
which  includes  sexual conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL
CONDUCT, by a child less than seventeen years of age.
  Promoting an obscene sexual performance  by  a  child  IN  THE  SECOND
DEGREE is a class D felony.
  S 5. The penal law is amended by adding a new section 263.10-a to read
as follows:

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S  263.10-A  PROMOTING  AN  OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
             FIRST DEGREE.
  A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE, WHEN KNOWING THE CHARACTER AND CONTENT THERE-
OF, HE OR SHE PRODUCES, DIRECTS OR PROMOTES:
  1. TEN OR MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL  CONDUCT,  OR
WHAT  REASONABLY  APPEARS  TO  BE  SEXUAL  CONDUCT, BY A CHILD LESS THAN
SEVENTEEN YEARS OF AGE, OR
  2. ANY OBSCENE PERFORMANCE WHICH  INCLUDES  SEXUAL  CONDUCT,  OR  WHAT
REASONABLY  APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN
YEARS OF AGE AND HE OR SHE PROMOTES SUCH PERFORMANCE  TO  A  CHILD  LESS
THAN  SEVENTEEN  YEARS  OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR
HER AGE, IS A POLICE OFFICER AND  THE  ACTOR  REASONABLY  BELIEVES  SUCH
OFFICER TO BE A CHILD LESS THAN SEVENTEEN YEARS OF AGE.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS C FELONY.
  S  6.  Section  263.11 of the penal law, as added by chapter 11 of the
laws of 1996, is amended to read as follows:
S 263.11 Possessing an obscene sexual performance  by  a  child  IN  THE
             THIRD DEGREE.
  A  person  is  guilty of possessing an obscene sexual performance by a
child IN THE THIRD DEGREE when, knowing the character and content there-
of, he OR SHE knowingly has in his OR  HER  possession  or  control  any
obscene  performance  which  includes sexual conduct, OR WHAT REASONABLY
APPEARS TO BE SEXUAL CONDUCT, by a child less than  [sixteen]  SEVENTEEN
years of age.
  Possessing  an  obscene  sexual  performance  by  a child IN THE THIRD
DEGREE is a class E felony.
  S 7. The penal law is amended by adding a new section 263.12  to  read
as follows:
S  263.12  POSSESSING  AN  OBSCENE  SEXUAL PERFORMANCE BY A CHILD IN THE
             SECOND DEGREE.
  A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
EOF,  HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL TEN OR
MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT  REASON-
ABLY  APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS
OF AGE.
  POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  IN  THE  SECOND
DEGREE IS A CLASS D FELONY.
  S  8.  The penal law is amended by adding a new section 263.13 to read
as follows:
S 263.13 POSSESSING AN OBSCENE SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE
             FIRST DEGREE.
  A  PERSON  IS  GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF, HE OR SHE KNOWINGLY HAS IN HIS OR  HER  POSSESSION  OR  CONTROL  ONE
HUNDRED  OR  MORE  OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR
WHAT REASONABLY APPEARS TO BE SEXUAL  CONDUCT,  BY  A  CHILD  LESS  THAN
SEVENTEEN YEARS OF AGE.
  POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY  A CHILD IN THE FIRST
DEGREE IS A CLASS C FELONY.
  S 9. Section 263.15 of the penal law, as amended by chapter 1  of  the
laws of 2000, is amended to read as follows:
S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.

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  A person is guilty of promoting a sexual performance by a child IN THE
SECOND DEGREE when, knowing the character and content thereof, he OR SHE
produces,  directs  or  promotes  any  performance which includes sexual
conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL  CONDUCT,  by  a  child
less than seventeen years of age.
  Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
class D felony.
  S 10. The penal law is amended by adding a  new  section  263.15-a  to
read as follows:
S  263.15-A  PROMOTING  A  SEXUAL  PERFORMANCE  BY  A CHILD IN THE FIRST
             DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR  SHE
PRODUCES, DIRECTS OR PROMOTES:
  1.  TEN  OR  MORE  PERFORMANCES  WHICH INCLUDE SEXUAL CONDUCT, OR WHAT
REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN  SEVENTEEN
YEARS OF AGE, OR
  2.  ANY  PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT, OR WHAT REASONABLY
APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN  SEVENTEEN  YEARS  OF
AGE  AND HE OR SHE PROMOTES SUCH PERFORMANCE TO A CHILD LESS THAN SEVEN-
TEEN YEARS OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR HER AGE,  IS
A  POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE A
CHILD LESS THAN SEVENTEEN YEARS OF AGE.
  PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE  FIRST  DEGREE  IS  A
CLASS C FELONY.
  S  11.  Section 263.16 of the penal law, as added by chapter 11 of the
laws of 1996, is amended to read as follows:
S 263.16 Possessing a sexual performance by a child IN THE THIRD DEGREE.
  A person is guilty of possessing a sexual performance by  a  child  IN
THE  THIRD DEGREE when, knowing the character and content thereof, he OR
SHE knowingly has in his OR HER possession or  control  any  performance
which  includes  sexual conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL
CONDUCT, by a child less than [sixteen] SEVENTEEN years of age.
  Possessing a sexual performance by a child IN THE THIRD  DEGREE  is  a
class E felony.
  S  12. The penal law is amended by adding a new section 263.17 to read
as follows:
S 263.17 POSSESSING A SEXUAL  PERFORMANCE  BY  A  CHILD  IN  THE  SECOND
           DEGREE.
  A  PERSON  IS  GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
SHE KNOWINGLY HAS IN HIS OR  HER  POSSESSION  OR  CONTROL  TEN  OR  MORE
PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASONABLY APPEARS TO
BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE.
  POSSESSING  A  SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
CLASS D FELONY.
  S 13. The penal law is amended by adding a new section 263.18 to  read
as follows:
S 263.18 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE  OR
SHE  KNOWINGLY  HAS  IN  HIS OR HER POSSESSION OR CONTROL ONE HUNDRED OR
MORE PERFORMANCES WHICH  INCLUDE  SEXUAL  CONDUCT,  OR  WHAT  REASONABLY
APPEARS  TO  BE  SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF
AGE.

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  POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST  DEGREE  IS  A
CLASS C FELONY.
  S  14. Subdivision 1 of section 263.20 of the penal law, as amended by
chapter 1 of the laws of 2000, is amended to read as follows:
  1. Under this article, it shall be an  affirmative  defense  that  the
defendant  in good faith reasonably believed the person appearing in the
performance was[, for purposes of section 263.11 or 263.16 of this arti-
cle, sixteen years of age or over or, for purposes  of  section  263.05,
263.10 or 263.15 of this article,] seventeen years of age or over.
  S  15. Section 263.25 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.25 Proof of age of child.
  Whenever it becomes necessary for the  purposes  of  this  article  to
determine  whether  a child who participated in a sexual performance was
[under an age specified in this article] LESS THAN  SEVENTEEN  YEARS  OF
AGE, the court or jury may make such determination by any of the follow-
ing:  personal  inspection  of the child; inspection of [a photograph or
motion picture which constituted] the sexual performance; oral testimony
by a witness to the sexual performance as to the age of the child  based
upon  the  child's  appearance;  expert medical testimony based upon the
appearance of the child in the sexual performance; and any other  method
authorized  by  any  applicable  provision  of  law  or  by the rules of
evidence at common law.
  S 16. Subdivision 1 of section  50-b  of  the  civil  rights  law,  as
amended  by  chapter  320  of  the  laws  of 2006, is amended to read as
follows:
  1. The identity of any victim of a sex offense, as defined in  article
one hundred thirty, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED SIXTY-THREE, or
section  255.25,  255.26  or  255.27  of the penal law, or of an offense
involving the alleged transmission of the human immunodeficiency  virus,
shall be confidential. No report, paper, picture, photograph, court file
or  other  documents, in the custody or possession of any public officer
or employee, which identifies such a victim shall be made available  for
public inspection. No such public officer or employee shall disclose any
portion of any police report, court file, or other document, which tends
to  identify such a victim except as provided in subdivision two of this
section.
  S 17. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.