S T A T E O F N E W Y O R K
________________________________________________________________________
5113
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
___________
Introduced by M. of A. ESPAILLAT, JOHN, WRIGHT, COOK -- Multi-Sponsored
by -- M. of A. ALFANO, BARRA, BENJAMIN, BOYLAND, BRADLEY, BRENNAN,
CHRISTENSEN, COLTON, CROUCH, DIAZ, FARRELL, GALEF, GUNTHER, LAVINE,
MAYERSOHN, N. RIVERA, ROBINSON -- 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 executive law and the correction law, in relation to
including a conviction of electronic stalking under the requirements
of the state DNA identification index and the sex offender registra-
tion 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-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07773-01-9
A. 5113 2
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-
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-
A. 5113 3
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.
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, paragraph (b) as separately amended by chapters 764 and 765
of the laws of 2005 and paragraph (c) as amended by chapter 7 of the
laws of 2007, 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); aggravated criminally
negligent homicide as defined in section 125.11, aggravated 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, gang assault in the second
degree as defined in section 120.06, ELECTRONIC STALKING IN THE FIRST
DEGREE AS DEFINED IN SECTION 120.63, burglary in the second degree as
defined in section 140.25, robbery in the second degree as defined in
section 160.10, criminal 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, 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 chemi-
cal weapon or biological 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, rape in the second degree as defined in
A. 5113 4
section 130.30, criminal sexual act in the second degree as defined in
section 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 or eight 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. Paragraph (d) of subdivision 7 of section 995 of the executive
law, as amended by chapter 2 of the laws of 2006, is amended to read as
follows:
(d) any of the following felonies, or an attempt thereof where such
attempt is a felony offense:
aggravated assault upon a person less than eleven years old, as
defined in section 120.12 of the penal law; menacing in the first
degree, as defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of the penal
law; stalking in the second degree, as defined in section 120.55 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; ELECTRONIC STALK-
ING IN THE FIRST DEGREE, AS DEFINED IN SECTION 120.63 OF THE PENAL LAW;
criminally negligent homicide, as defined in section 125.10 of the penal
law; vehicular manslaughter in the second degree, as defined in section
125.12 of the penal law; vehicular manslaughter in the first degree, as
defined in section 125.13 of the penal law; persistent sexual abuse, as
defined in section 130.53 of the penal law; aggravated sexual abuse in
the fourth degree, as defined in section 130.65-a of the penal law;
female genital mutilation, as defined in section 130.85 of the penal
law; facilitating a sex offense with a controlled substance, as defined
in section 130.90 of the penal law; unlawful imprisonment in the first
degree, as defined in section 135.10 of the penal law; custodial inter-
ference in the first degree, as defined in section 135.50 of the penal
law; criminal trespass in the first degree, as defined in section 140.17
of the penal law; criminal tampering in the first degree, as defined in
section 145.20 of the penal law; tampering with a consumer product in
the first degree, as defined in section 145.45 of the penal law; robbery
in the third degree as defined in section 160.05 of the penal law; iden-
tity theft in the second degree, as defined in section 190.79 of the
penal law; identity theft in the first degree, as defined in section
190.80 of the penal law; promoting prison contraband in the first
degree, as defined in section 205.25 of the penal law; tampering with a
witness in the third degree, as defined in section 215.11 of the penal
law; tampering with a witness in the second degree, as defined in
section 215.12 of the penal law; tampering with a witness in the first
A. 5113 5
degree, as defined in section 215.13 of the penal law; criminal contempt
in the first degree, as defined in subdivisions (b), (c) and (d) of
section 215.51 of the penal law; aggravated criminal contempt, as
defined in section 215.52 of the penal law; bail jumping in the second
degree, as defined in section 215.56 of the penal law; bail jumping in
the first degree, as defined in section 215.57 of the penal law; patron-
izing a prostitute in the second degree, as defined in section 230.05 of
the penal law; patronizing a prostitute in the first degree, as defined
in section 230.06 of the penal law; promoting prostitution in the second
degree, as defined in section 230.30 of the penal law; promoting prosti-
tution in the first degree, as defined in section 230.32 of the penal
law; compelling prostitution, as defined in section 230.33 of the penal
law; disseminating indecent [materials] MATERIAL to minors in the second
degree, as defined in section 235.21 of the penal law; disseminating
indecent [materials] MATERIAL to minors in the first degree, as defined
in section 235.22 of the penal law; riot in the first degree, as defined
in section 240.06 of the penal law; criminal anarchy, as defined in
section 240.15 of the penal law; aggravated harassment of an employee by
an inmate, as defined in section 240.32 of the penal law; unlawful
surveillance in the second degree, as defined in section 250.45 of the
penal law; unlawful surveillance in the first degree, as defined in
section 250.50 of the penal law; endangering the welfare of a vulnerable
elderly person in the second degree, as defined in section 260.32 of the
penal law; endangering the welfare of a vulnerable elderly person in the
first degree, as defined in section 260.34 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 perform-
ance by a child, as defined in section 263.11 of the penal law; promot-
ing 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; criminal possession of a weapon in the
third degree, as defined in section 265.02 of the penal law; criminal
sale of a firearm in the third degree, as defined in section 265.11 of
the penal law; criminal sale of a firearm to a minor, as defined in
section 265.16 of the penal law; unlawful wearing of a body vest, as
defined in section 270.20 of the penal law; hate crimes as defined in
section 485.05 of the penal law; and crime of terrorism, as defined in
section 490.25 of the penal law; or
S 8. Subdivision 2 of section 168-a of the correction law is amended
by adding a new paragraph (f) to read as follows:
(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 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.