LBD08564-02-9
A. 6512 2
ny (Part L); and to amend the penal law, in relation to sentencing of
persistent violent felony offenders; and to repeal subdivision 3 of
section 70.08 of such law relating to minimum periods of imprisonment
for persistent violent felony offenders (Part M)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act enacts into law major components of legislation
which are necessary to enact the SAVE-NY Child Protection Act. Each
component is wholly contained within a Part identified as Parts A
through M. The effective date for each particular provision contained
within such Part is set forth in the last section of such Part. Any
provision in any section contained within a Part, including the effec-
tive date of the Part, which makes reference to a section "of this act",
when used in connection with that particular component, shall be deemed
to mean and refer to the corresponding section of the Part in which it
is found. Section five of this act sets forth the general effective date
of this act.
S 2. This act shall be known and may be cited as the "SAVE-NY Child
Protection Act".
S 3. Legislative intent. The Sexual Assault and Violence Education
Task Force (SAVE-NY) worked diligently with law enforcement officials,
district attorneys and community activists throughout New York state to
create legislation to further protect New York's children from sexual
predators. The Task Force thoroughly reviewed Megan's Law and, while
acknowledging that this law is an invaluable tool for keeping children
safe, determined that the current provisions can be strengthened to
provide more protection for children and stiffer penalties for sexual
predators who violate the law's provisions. SAVE-NY also explored other
avenues for protecting children from sexual predators, such as civil
confinement, internet protection and criminal background checks for
individuals seeking to work with children. This legislation is the
culmination of the SAVE-NY Task Force's research and investigation and
provides a thorough and comprehensive plan for protecting New York's
residents, especially its children, from sexual predators.
PART A
Section 1. Paragraph (c) of subdivision 2 of section 168-f of the
correction law, as amended by chapter 453 of the laws of 1999, is
amended to read as follows:
(c) If the sex offender fails to mail the signed verification form to
the division within ten calendar days after receipt of the form, he or
she shall be in violation of this section [unless he proves that he or
she has not changed his or her residence address] AND SUBJECT TO THE
PENALTIES SET FORTH IN SECTION ONE HUNDRED SIXTY-EIGHT-T OF THIS
ARTICLE.
S 2. Section 168-t of the correction law, as amended by chapter 373 of
the laws of 2007, is amended to read as follows:
S 168-t. Penalty. 1. Any LEVEL ONE OR LEVEL TWO sex offender required
to register or to verify pursuant to the provisions of this article
SHALL HAVE THE AMOUNT OF TIME THE OFFENDER EVADED REGISTRATION OR
VERIFICATION ADDED TO THE DURATION SUCH SEX OFFENDER IS MANDATED TO
REGISTER PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-H OF THIS ARTICLE
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OR, who fails to register or verify in the manner and within the time
periods provided for in this article shall be guilty of a class E felony
upon conviction for the first offense, and upon conviction for a second
or subsequent offense shall be guilty of a class D felony. Any sex
offender who violates the provisions of section one hundred
sixty-eight-v of this article shall be guilty of a class A misdemeanor
upon conviction for the first offense, and upon conviction for a second
or subsequent offense shall be guilty of a class D felony. Any such
failure to register or verify may also be the basis for revocation of
parole pursuant to section two hundred fifty-nine-i of the executive law
or the basis for revocation of probation pursuant to article four
hundred ten of the criminal procedure law.
2. ANY LEVEL THREE SEX OFFENDER REQUIRED TO REGISTER OR TO VERIFY
PURSUANT TO THE PROVISIONS OF THIS ARTICLE WHO FAILS TO REGISTER OR
VERIFY IN THE MANNER AND WITHIN THE TIME PERIODS PROVIDED FOR IN THIS
ARTICLE SHALL HAVE THE AMOUNT OF TIME THE OFFENDER EVADED REGISTRATION
OR VERIFICATION ADDED TO THE DURATION SUCH SEX OFFENDER IS MANDATED TO
REGISTER PURSUANT TO THIS ARTICLE, SHALL BE GUILTY OF A CLASS D FELONY
UPON CONVICTION FOR THE FIRST OFFENSE, AND UPON CONVICTION FOR A SECOND
OR SUBSEQUENT OFFENSE SHALL BE GUILTY OF A CLASS C FELONY. ANY SUCH
FAILURE TO REGISTER OR VERIFY MAY ALSO BE THE BASIS FOR REVOCATION OF
PAROLE PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW
OR THE BASIS FOR REVOCATION OF PROBATION PURSUANT TO ARTICLE FOUR
HUNDRED TEN OF THE CRIMINAL PROCEDURE LAW.
S 3. Section 168-w of the correction law, as relettered by chapter 604
of the laws of 2005, is relettered section 168-y and two new sections
168-w and 168-x are added to read as follows:
S 168-W. SUBMISSION OF FRAUDULENT INFORMATION RESPECTING IDENTITY OR
RESIDENCE FOR THE PURPOSE OF REGISTRATION OR VERIFICATION; PENALTY. ANY
SEX OFFENDER REQUIRED TO REGISTER OR TO VERIFY PURSUANT TO THE
PROVISIONS OF THIS ARTICLE WHO, WITH FRAUDULENT INTENT, SUBMITS FALSE
INFORMATION RESPECTING HIS OR HER IDENTITY OR RESIDENCE OR BOTH, FOR THE
PURPOSE OF, OR IN THE COURSE OF, SATISFYING HIS OR HER DUTY TO REGISTER
OR TO VERIFY PURSUANT TO THE PROVISIONS OF THIS ARTICLE, SHALL BE GUILTY
OF A CLASS E FELONY.
S 168-X. SEX OFFENDERS SHALL NOT BE EMPLOYED IN A POSITION INVOLVING
DIRECT CONTACT WITH CHILDREN. 1. NO SEX OFFENDER SHALL APPLY FOR OR
ACCEPT A POSITION WHICH INVOLVES DIRECT CONTACT WITH CHILDREN. SUCH
POSITION SHALL INCLUDE ANY JOB, TASK OR OCCUPATION, WHICH BY ITS NATURE,
REQUIRES A PERSON TO BE IN DIRECT CONTACT WITH CHILDREN IN THE REGULAR
PERFORMANCE OF HIS OR HER DUTIES OR DEALINGS IN SUCH POSITION. THIS
SECTION SHALL ALSO APPLY TO ANY PERSON SEEKING A PERMIT OR PERMISSION TO
EXECUTE ANY ACTIVITY OR PERFORMANCE THAT WOULD PRESENT A DIRECT CONTACT
WITH CHILDREN.
2. THE DEFINITION OF "POSITION" AS USED IN THIS SECTION SHALL APPLY TO
ANY PERSON SEEKING EMPLOYMENT EITHER PAID OR NOT PAID, ANY PERSON SEEK-
ING TO VOLUNTEER, OR ANY PERSON SEEKING A PERMIT OR PERMISSION THAT
WOULD PRESENT A DIRECT CONTACT WITH CHILDREN.
3. EXAMPLES OF SUCH EMPLOYMENT INCLUDE, BUT ARE NOT LIMITED TO:
A. ANY INSTRUCTIONAL OR NON-INSTRUCTIONAL SCHOOL DISTRICT EMPLOYEE OR
CONTRACTUAL PERSONNEL WHO ARE PERMITTED ACCESS ON SCHOOL GROUNDS WHEN
STUDENTS ARE PRESENT INCLUDING TEACHERS, TEACHER-AIDES, ADMINISTRATORS,
ASSISTANTS, CAFETERIA WORKERS, JANITORS, NURSES, CONTRACTUAL PERSONNEL
INCLUDING A VENDOR, INDIVIDUAL OR ENTITY UNDER CONTRACT WITH SUCH
SCHOOL, SCHOOL BOARD OR SCHOOL DISTRICT OR ANY OTHER PERSON WORKING IN A
SCHOOL THAT WOULD HAVE CONTACT WITH THE CHILDREN ATTENDING THE SCHOOL;
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B. ANY POSITION IN A CHILD-CARE FACILITY;
C. ANY RECREATIONAL POSITION SUCH AS A COACH, BOY SCOUT OR GIRL SCOUT
LEADER, CAMP COUNSELOR, LIFEGUARD, INSTRUCTORS OR ANY OTHER RECREATIONAL
AREA THAT WOULD PRESENT A DIRECT CONTACT WITH CHILDREN;
D. ANY POSITION IN A PARK, PLAYGROUND, AMUSEMENT PARK, POOL OR ANY
OTHER FACILITY OR AREA WHERE CHILDREN HAVE A PROPENSITY TO INHABIT;
E. ANY STORE OR RESTAURANT THAT IS SPECIFICALLY TARGETED TOWARDS CHIL-
DREN SUCH AS A TOY STORE OR CHILDREN'S THEME RESTAURANT;
F. ANY POSITION WHEREAS A PERSON WOULD BE EMPLOYED IN AN AREA THAT
SPECIFICALLY IS TARGETED TOWARDS CHILDREN SUCH AS AN ICE-CREAM TRUCK
OPERATOR;
G. ANY PERSON APPLYING FOR A PERMIT OR PERMISSION THAT WOULD GRANT
SAID PERSON THE ABILITY TO CARRY OUT ANY ACTIVITY OR ACTION THAT IS
DIRECTED TOWARDS OR WOULD INVOLVE DIRECT CONTACT WITH CHILDREN.
4. EMPLOYERS, ORGANIZATIONS OR GOVERNMENT ENTITIES SHALL HAVE ACCESS
TO THE STATEWIDE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT FOR
THE PURPOSE OF PERFORMING A BACKGROUND CHECK FOR ANY CONVICTIONS OF
SEXUAL ABUSE OF A CHILD. ANY EMPLOYER, ORGANIZATION OR GOVERNMENT ENTITY
SHALL CHECK ANY POTENTIAL EMPLOYEES SEEKING TO ASSUME A POSITION THAT
WILL BE IN DIRECT CONTACT WITH CHILDREN AGAINST BOTH THE STATEWIDE
CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AND THE REGISTERED SEX
OFFENDERS DATABASE TO ASCERTAIN IF SAID PERSON MAINTAINS A CONVICTION
FOR SEXUAL ABUSE OF A CHILD.
5. "DIRECT CONTACT WITH CHILDREN" AS USED IN THIS SECTION MEANS WORK-
ING WITH CHILDREN, HAVING ACCESS TO CHILDREN, HAVING OPPORTUNITY TO BE
ALONE WITH CHILDREN, SPENDING TIME WITH CHILDREN, PERFORMING FOR CHIL-
DREN OR ANY OTHER ACTIVITY THAT INVOLVES CHILDREN.
6. A. ANY SEX OFFENDER WHO APPLIES FOR OR ACCEPTS EMPLOYMENT IN
VIOLATION OF THIS SECTION SHALL BE GUILTY OF A CLASS A MISDEMEANOR UPON
CONVICTION FOR THE FIRST OFFENSE, AND UPON CONVICTION FOR A SECOND OR
SUBSEQUENT OFFENSE SHALL BE GUILTY OF A CLASS D FELONY.
B. ANY EMPLOYER WHO KNOWINGLY EMPLOYS A SEX OFFENDER IN VIOLATION OF
THIS SECTION SHALL, UPON CONVICTION, BE GUILTY OF A CLASS A MISDEMEANOR.
S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law; provided that section
168-x of the correction law as added by section three of this act shall
take effect on the first of January next succeeding the date on which it
shall have become a law.
PART B
Section 1. Subdivision 2 of section 168-q of the correction law is
renumbered subdivision 3 and a new subdivision 2 is added to read as
follows:
2. THE DIVISION SHALL, ON ITS INTERNET HOMEPAGE, PROVIDE A MEANS FOR
ANY PERSON TO REGISTER AND RECEIVE NOTICE AT SUCH PERSON'S ELECTRONIC
MAIL ADDRESS OF ALL SEX OFFENDERS WHO RESIDE OR MOVE INTO THE AREA
ENCOMPASSED BY SUCH PERSON'S ZIP CODE. THE DIVISION SHALL PROVIDE TIMELY
NOTICE BY ELECTRONIC MAIL TO EACH PERSON WHO REGISTERS PURSUANT TO THIS
SUBDIVISION OF A LEVEL TWO OR LEVEL THREE SEX OFFENDER RESIDING IN AND
OF EVERY LEVEL TWO OR LEVEL THREE SEX OFFENDER WHO MOVES INTO THE
PERSON'S ZIP CODE. SUCH NOTICE SHALL INCLUDE ALL INFORMATION AUTHORIZED
TO BE DISCLOSED ON EACH SUCH SEX OFFENDER PURSUANT TO PARAGRAPHS (B) AND
(C) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS
ARTICLE.
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S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided, however, that effective immediate-
ly, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of this act on its effective date is
authorized and directed to be made and completed on or before such
effective date.
PART C
Section 1. The section heading of section 168-j of the correction
law, as amended by chapter 11 of the laws of 2002, is amended and two
new subdivisions 6 and 7 are added to read as follows:
Notification of local law enforcement agencies of change of address;
PROHIBITED RELOCATIONS.
6. ANY PERSON WHO HAS BEEN CONVICTED OF OR CONVICTED FOR AN ATTEMPT TO
COMMIT AN OFFENSE UNDER SECTION 130.20, 130.25, 130.30, 130.35, 130.40,
130.45, 130.50, 130.55, 130.60, 130.65, 130.66, 130.67, 130.70, 130.75,
130.80, 255.25 OR ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW OR
OTHER OFFENSES DEFINED UNDER THE PROVISIONS OF SECTION ONE HUNDRED
SIXTY-EIGHT-A OF THIS ARTICLE, WHERE THE VICTIM OF SUCH OFFENSE WAS A
PERSON UNDER THE AGE OF EIGHTEEN, WHO IS PAROLED, ON PROBATION, OR
CONDITIONALLY RELEASED PURSUANT TO SECTION 70.40 OF THE PENAL LAW, AND
WHO MAY BE REQUIRED TO REGISTER UNDER THE PROVISIONS OF THIS ARTICLE, OR
ANY LEVEL THREE SEX OFFENDER REQUIRED TO REGISTER OR VERIFY PURSUANT TO
THIS ARTICLE, SHALL NOT, DURING THE PERIOD OF PAROLE, PROBATION OR
CONDITIONAL RELEASE, ESTABLISH A RESIDENTIAL RESIDENCE, EITHER FREEHOLD
OR LEASEHOLD, WITHIN ONE THOUSAND FEET OF THE BOUNDARIES OF ANY SCHOOL
THAT WORKS WITH, INSTRUCTS, OR TREATS CHILDREN UNDER THE AGE OF EIGHTEEN
OR WITHIN FIVE HUNDRED FEET OF THE BOUNDARIES OF ANY SCHOOL THAT WORKS
WITH, INSTRUCTS, OR TREATS CHILDREN UNDER THE AGE OF EIGHTEEN THAT IS
LOCATED IN A CITY HAVING A POPULATION OF ONE MILLION OR MORE.
7. "BOUNDARIES OF ANY SCHOOL" MEANS IN OR ON OR WITHIN ANY BUILDING,
STRUCTURE, ATHLETIC PLAYING FIELD, PLAYGROUND OR LAND CONTAINED WITHIN
THE REAL PROPERTY BOUNDARY LINE OF A CERTIFIED DAY CARE CENTER, PUBLIC
OR PRIVATE ELEMENTARY, PAROCHIAL, INTERMEDIATE, JUNIOR HIGH, VOCATIONAL,
OR HIGH SCHOOL, OR SIMILAR EDUCATIONAL INSTITUTION WHERE CHILDREN ARE IN
DAILY ATTENDANCE, OR WITHIN ONE THOUSAND FEET OF THE REAL PROPERTY BOUN-
DARY LINE COMPRISING ANY SUCH SCHOOL, CENTER, OR INSTITUTION.
S 2. The penal law is amended by adding a new section 70.09 to read as
follows:
S 70.09 SENTENCE OF IMPRISONMENT FOR DELINEATED SEX OFFENSE.
NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, ANY
PERSON WHO COMMITS ANY OFFENSE SET FORTH UNDER SUBDIVISION SIX OF
SECTION ONE HUNDRED SIXTY-EIGHT-J OF THE CORRECTION LAW WITHIN ONE THOU-
SAND FEET OF THE BOUNDARIES OF ANY SCHOOL AS DEFINED IN SUBDIVISION
SEVEN OF SECTION ONE HUNDRED SIXTY-EIGHT-J OF THE CORRECTION LAW OR
WITHIN FIVE HUNDRED FEET OF THE BOUNDARIES OF ANY SCHOOL IN A CITY
HAVING A POPULATION OF ONE MILLION OR MORE SHALL BE SUBJECT TO A PERMIS-
SIBLE SENTENCE OF IMPRISONMENT WHICH IS TWO TIMES THE SENTENCE OF IMPRI-
SONMENT FOR SUCH OFFENSE OTHERWISE PROVIDED FOR IN THIS CHAPTER.
S 3. The social services law is amended by adding a new section 419-a
to read as follows:
S 419-A. IMMUNITY FROM LIABILITY. ANY TEACHER, OFFICIAL OR EDUCA-
TIONAL INSTITUTION WHO, IN GOOD FAITH, FAILS TO NOTIFY A PARENT, GUARDI-
AN OR OTHER PERSON LEGALLY RESPONSIBLE FOR A CHILD, THAT SUCH CHILD IS
BEING QUESTIONED ON SCHOOL PROPERTY BY LAW ENFORCEMENT REGARDING ALLEGA-
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TIONS OF CHILD ABUSE ALLEGEDLY PERPETRATED BY THAT CHILD'S PARENT, GUAR-
DIAN, ETC., IS IMMUNE FROM CIVIL OR CRIMINAL LIABILITY FOR FAILING TO
NOTIFY THE PARENT, GUARDIAN, ETC. OF THE QUESTIONING. IN ORDER TO QUALI-
FY FOR THIS IMMUNITY, THE EMPLOYEE, OFFICIAL OR EDUCATIONAL INSTITUTION
MUST HAVE A REASONABLE BELIEF THAT THE PARENT, GUARDIAN, ETC. PERPE-
TRATED THE ABUSE.
S 4. This act shall take effect on the first of September next
succeeding the date on which it shall have become a law.
PART D
Section 1. The executive law is amended by adding a new section 837-s
to read as follows:
S 837-S. REQUESTS FOR CRIMINAL HISTORY INFORMATION CONCERNING NEW AND
PROSPECTIVE CHILD CARE EMPLOYEES. 1. AN EMPLOYER AND VOLUNTEER ORGANIZA-
TION SHALL REQUEST AND ARE AUTHORIZED TO RECEIVE FROM THE DIVISION CRIM-
INAL HISTORY INFORMATION CONCERNING EACH NEW AND PROSPECTIVE EMPLOYEE
AND VOLUNTEER WHO IN CONNECTION WITH SUCH EMPLOYMENT FOR SERVICE WILL BE
IN CONTACT WITH PERSONS UNDER THE AGE OF EIGHTEEN, SUBJECT TO THE
FOLLOWING RESTRICTIONS:
(A) AN EMPLOYER OR VOLUNTEER ORGANIZATION SHALL DESIGNATE ONE PERSON
WHO SHALL BE AUTHORIZED TO REQUEST, RECEIVE AND REVIEW CRIMINAL HISTORY
INFORMATION, AND ONLY SUCH PERSON AND THE NEW OR PROSPECTIVE EMPLOYEE
AND VOLUNTEER WHO IN CONNECTION WITH SUCH EMPLOYMENT FOR SERVICE WILL BE
IN CONTACT WITH PERSONS UNDER THE AGE OF EIGHTEEN TO WHICH THE CRIMINAL
HISTORY INFORMATION RELATES SHALL HAVE ACCESS TO SUCH INFORMATION;
PROVIDED, HOWEVER, THAT CRIMINAL HISTORY INFORMATION MAY BE DISCLOSED TO
OTHER PERSONNEL AUTHORIZED BY THE EMPLOYER OR VOLUNTEER ORGANIZATION WHO
ARE EMPOWERED BY SUCH EMPLOYER OR VOLUNTEER ORGANIZATION TO MAKE HIRING
DECISIONS CONCERNING NEW OR PROSPECTIVE EMPLOYEES OR VOLUNTEERS AND
PROVIDED FURTHER THAT SUCH OTHER PERSONNEL SHALL ALSO BE SUBJECT TO THE
CONFIDENTIALITY REQUIREMENTS AND ALL OTHER PROVISIONS OF THIS ARTICLE.
AN EMPLOYER OR VOLUNTEER ORGANIZATION SHALL NOTIFY THE DIVISION OF EACH
PERSON AUTHORIZED TO HAVE ACCESS TO CRIMINAL HISTORY INFORMATION PURSU-
ANT TO THIS SECTION;
(B) AN EMPLOYER OR VOLUNTEER ORGANIZATION REQUESTING CRIMINAL HISTORY
INFORMATION PURSUANT TO THIS SECTION SHALL DO SO BY COMPLETING A FORM
DEVELOPED FOR SUCH PURPOSE BY THE DIVISION. SUCH FORM SHALL INCLUDE A
SWORN STATEMENT OF THE PERSON DESIGNATED BY THE EMPLOYER OR VOLUNTEER
ORGANIZATION TO REQUEST, RECEIVE AND REVIEW CRIMINAL HISTORY INFORMATION
PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION CERTIFYING THAT (I) THE
PERSON WHOSE CRIMINAL HISTORY INFORMATION IS REQUESTED IS NOT PRESENTLY
BUT HAS APPLIED TO BE AN EMPLOYEE OR VOLUNTEER, OR IS A NEW EMPLOYEE OR
VOLUNTEER; (II) SUCH CRIMINAL HISTORY INFORMATION WILL BE USED BY THE
EMPLOYER OR VOLUNTEER ORGANIZATION SOLELY FOR PURPOSES AUTHORIZED BY
THIS ARTICLE; AND (III) THE EMPLOYER OR VOLUNTEER ORGANIZATION AND ITS
STAFF ARE AWARE OF AND WILL ABIDE BY THE CONFIDENTIALITY REQUIREMENTS
AND ALL OTHER PROVISIONS OF THIS ARTICLE;
(C) THE PERSON DESIGNATED BY AN EMPLOYER OR VOLUNTEER ORGANIZATION FOR
RECEIPT OF CRIMINAL HISTORY INFORMATION PURSUANT TO PARAGRAPH (A) OF
THIS SUBDIVISION SHALL UPON RECEIPT IMMEDIATELY MARK SUCH CRIMINAL
HISTORY INFORMATION "CONFIDENTIAL", AND SHALL AT ALL TIMES MAINTAIN SUCH
CRIMINAL HISTORY INFORMATION IN A SECURE PLACE. ANY PERSON WHO WILLFUL-
LY PERMITS THE RELEASE OF ANY CONFIDENTIAL CRIMINAL HISTORY INFORMATION
CONTAINED IN THE REPORT TO PERSONS NOT PERMITTED BY THIS ARTICLE TO
RECEIVE SUCH INFORMATION SHALL BE GUILTY OF A MISDEMEANOR.
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2. NOTWITHSTANDING SUBDIVISION EIGHT-A OF SECTION EIGHT HUNDRED THIR-
TY-SEVEN OF THIS ARTICLE THERE SHALL BE NO FEE CHARGED TO AN EMPLOYER OR
VOLUNTEER ORGANIZATION OR AN EMPLOYEE OR VOLUNTEER FOR A REQUEST FOR
CRIMINAL HISTORY INFORMATION SUBMITTED TO THE DIVISION PURSUANT TO THIS
SECTION.
3. TO THE EXTENT PERMITTED BY LAW, AN EMPLOYER OR VOLUNTEER ORGANIZA-
TION MAY REQUEST FROM A NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER A
STATEMENT OF HIS OR HER PRIOR CRIMINAL CONVICTIONS IN THIS STATE OR ANY
OTHER JURISDICTION. PRIOR TO REQUESTING CRIMINAL HISTORY INFORMATION
CONCERNING ANY NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER, EACH EMPLOYER
OR VOLUNTEER ORGANIZATION SHALL:
(A) INFORM THE NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER IN WRITING
THAT THE EMPLOYER OR VOLUNTEER ORGANIZATION IS REQUIRED TO REQUEST HIS
OR HER CRIMINAL HISTORY INFORMATION FROM THE DIVISION AND REVIEW SUCH
INFORMATION PURSUANT TO THIS SECTION;
(B) INFORM THE NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER THAT BEFORE
THE EMPLOYER OR VOLUNTEER ORGANIZATION REQUESTS SUCH CRIMINAL HISTORY
INFORMATION, THE NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER HAS THE RIGHT
TO OBTAIN, REVIEW AND SEEK CORRECTION OF HIS OR HER CRIMINAL HISTORY
INFORMATION PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE
DIVISION;
(C) OBTAIN THE SIGNED INFORMED CONSENT OF THE NEW OR PROSPECTIVE
EMPLOYEE OR VOLUNTEER ON A FORM SUPPLIED BY THE DIVISION WHICH INDICATES
THAT SUCH PERSON HAS:
(I) BEEN INFORMED OF THE RIGHT AND PROCEDURES NECESSARY TO OBTAIN,
REVIEW AND SEEK CORRECTION OF HIS OR HER CRIMINAL HISTORY INFORMATION;
(II) BEEN INFORMED OF THE REASON FOR THE REQUEST FOR HIS OR HER CRIMI-
NAL HISTORY INFORMATION;
(III) CONSENTED TO SUCH REQUEST; AND
(D) UPON RECEIVING SUCH WRITTEN CONSENT, OBTAIN THE FINGERPRINTS OF
SUCH NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER PURSUANT TO REGULATIONS
ESTABLISHED BY THE DIVISION.
4. A NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER MAY WITHDRAW FROM THE
APPLICATION PROCESS, WITHOUT PREJUDICE, AT ANY TIME REGARDLESS OF WHETH-
ER OR NOT HE OR SHE HAS REVIEWED HIS OR HER CRIMINAL HISTORY INFORMATION
OR THE EMPLOYER OR VOLUNTEER ORGANIZATION HAS RECEIVED CRIMINAL HISTORY
INFORMATION. WHERE A NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER WITHDRAWS
FROM THE APPLICATION PROCESS, ANY FINGERPRINTS AND CRIMINAL HISTORY
INFORMATION CONCERNING SUCH NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER
RECEIVED BY THE EMPLOYER OR VOLUNTEER ORGANIZATION SHALL BE IMMEDIATELY
RETURNED TO SUCH NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER BY THE PERSON
DESIGNATED FOR RECEIPT OF CRIMINAL HISTORY INFORMATION PURSUANT TO PARA-
GRAPH (A) OF SUBDIVISION ONE OF THIS SECTION.
5. IN ALL CASES THE FINGERPRINTS AND CRIMINAL HISTORY INFORMATION
CONCERNING A NEW OR PROSPECTIVE EMPLOYEE OR VOLUNTEER SHALL BE IMME-
DIATELY RETURNED TO SUCH PERSON BY THE PERSON DESIGNATED FOR RECEIPT OF
CRIMINAL HISTORY INFORMATION UPON THE DENIAL OF EMPLOYMENT OR VOLUNTARY
SERVICES OR TERMINATION OF EMPLOYMENT OR VOLUNTARY SERVICES OF SUCH
EMPLOYEE OR VOLUNTEER.
6. THE DIVISION SHALL PROVIDE REQUESTED CRIMINAL HISTORY INFORMATION
AND RETURN FINGERPRINTS TO AN EMPLOYER OR VOLUNTEER ORGANIZATION WITHIN
FIFTEEN BUSINESS DAYS AFTER THE RECEIPT OF A REQUEST FOR CRIMINAL HISTO-
RY INFORMATION IF SUCH REQUEST IS:
(A) MADE BY THE PERSON DESIGNATED BY THE EMPLOYER OR VOLUNTEER ORGAN-
IZATION FOR RECEIPT OF CRIMINAL HISTORY INFORMATION PURSUANT TO PARA-
GRAPH (A) OF SUBDIVISION ONE OF THIS SECTION AND ACCOMPANIED BY THE
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CERTIFICATION REQUIRED BY PARAGRAPH (B) OF SUBDIVISION ONE OF THIS
SECTION;
(B) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH (C) OF
SUBDIVISION THREE OF THIS SECTION; AND
(C) ACCOMPANIED BY FINGERPRINTS OF THE NEW OR PROSPECTIVE EMPLOYEE OR
VOLUNTEER OBTAINED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION THREE OF
THIS SECTION.
7. THE COMMISSIONER SHALL PROMULGATE ALL RULES AND REGULATIONS NECES-
SARY TO IMPLEMENT THE PROVISIONS OF THIS ARTICLE, WHICH SHALL INCLUDE
CONVENIENT PROCEDURES FOR NEW AND PROSPECTIVE EMPLOYEES AND VOLUNTEERS
TO PROMPTLY VERIFY THE ACCURACY OF THEIR CRIMINAL HISTORY INFORMATION
AND, TO THE EXTENT AUTHORIZED BY LAW, TO HAVE ACCESS TO RELEVANT DOCU-
MENTS RELATED THERETO.
S 2. The sum of fifty thousand dollars ($50,000), or so much thereof
as may be necessary, is hereby appropriated out of moneys in the state
treasury in the general fund to the credit of the state purposes
account, not otherwise appropriated, and made immediately available to
the division of criminal justice services for distribution to non-profit
organizations required to perform criminal history checks pursuant to
this act. Such moneys shall be payable on the audit and warrant of the
comptroller on vouchers certified or approved in the manner prescribed
by law.
S 3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.
PART E
Section 1. The penal law is amended by adding a new section 135.17 to
read as follows:
S 135.17 ATTEMPTING TO LURE OR ENTICE A MINOR.
1. A PERSON IS GUILTY OF ATTEMPTING TO LURE OR ENTICE A MINOR WHEN:
(A) BEING EIGHTEEN OR MORE YEARS OLD HE OR SHE ATTEMPTS TO LURE OR
ENTICE A MINOR INTO A MOTOR VEHICLE, AIRCRAFT, WATERCRAFT, BUILDING OR
ISOLATED AREA FOR THE PURPOSE OF COMMITTING A CRIMINAL OFFENSE WITH OR
AGAINST SUCH MINOR; OR
(B) BEING EIGHTEEN YEARS OLD OR MORE AND WITH INTENT TO LURE, ENTICE,
PERSUADE, CONVINCE, HARASS, ANNOY, THREATEN OR ALARM ANOTHER PERSON, HE
OR SHE, BY MEANS OF A COMPUTER COMMUNICATIONS SYSTEM, COMMUNICATES OR
CAUSES A COMMUNICATION TO BE INITIATED PURPORTING TO SOLICIT:
(1) SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT, ANAL SEXUAL CONDUCT OR
SEXUAL CONTACT WITH A PERSON WHOM HE OR SHE KNOWS OR REASONABLY SHOULD
KNOW IS LESS THAN SEVENTEEN YEARS OLD; OR
(2) A SEXUAL PERFORMANCE BY A PERSON WHOM HE OR SHE KNOWS OR REASON-
ABLY SHOULD KNOW IS LESS THAN SEVENTEEN YEARS OLD; OR
(3) ANY IN-PERSON CONTACT THAT RESULTS IN THE COMMISSION OR ATTEMPTED
COMMISSION OF A CRIMINAL OFFENSE WITH OR AGAINST A MINOR.
2. FOR PURPOSES OF THIS SECTION: (A) "MINOR" MEANS A PERSON LESS THAN
SEVENTEEN YEARS OF AGE, OR A PERSON WHO, REGARDLESS OF HIS OR HER AGE,
IS A LAW ENFORCEMENT OFFICIAL POSING AS A MINOR DURING THE COURSE OF HIS
OR HER OFFICIAL DUTIES.
(B) "BUILDING" IN ADDITION TO ITS ORDINARY MEANING, INCLUDES ANY
STRUCTURE, VEHICLE, AIRCRAFT OR WATERCRAFT USED FOR OVERNIGHT LODGING OF
PERSONS, OR USED BY PERSONS FOR CARRYING ON BUSINESS THEREIN, OR AN
ENCLOSED MOTOR TRUCK, OR AN ENCLOSED MOTOR TRUCK TRAILER.
(C) "COMPUTER" SHALL HAVE THE SAME MEANING AS ASCRIBED TO SUCH TERM BY
SECTION 156.00 OF THIS PART.
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(D) "ORAL SEXUAL CONDUCT" AND "ANAL SEXUAL CONDUCT" SHALL HAVE THE
SAME MEANINGS AS ASCRIBED TO SUCH TERMS BY SECTION 130.00 OF THIS TITLE.
(E) "SEXUAL CONTACT" SHALL HAVE THE SAME MEANING AS ASCRIBED TO SUCH
TERM BY SECTION 130.00 OF THIS TITLE.
(F) "SEXUAL INTERCOURSE" SHALL HAVE THE SAME MEANING AS ASCRIBED TO
SUCH TERM BY SECTION 130.00 OF THIS TITLE.
(G) "SEXUAL PERFORMANCE" SHALL HAVE THE SAME MEANING AS ASCRIBED TO
SUCH TERM BY SECTION 263.00 OF THIS PART.
3. NOTHING IN THIS SECTION SHALL BE DEEMED TO PRECLUDE, IF THE
EVIDENCE SO WARRANTS, AN INDICTMENT AND CONVICTION FOR ATTEMPTED KIDNAP-
PING UNDER THE PROVISIONS OF SECTIONS 110.00 AND 135.00 OF THIS PART.
ATTEMPTING TO LURE OR ENTICE A MINOR IS A CLASS D FELONY.
S 2. Subdivisions 1 and 2 of section 235.22 of the penal law, subdivi-
sion 1 as amended by chapter 8 of the laws of 2007 and subdivision 2 as
amended by chapter 264 of the laws of 2003, are amended to read as
follows:
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
is harmful to minors, he intentionally uses any 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, LESS THAN
SEVENTEEN YEARS OF AGE, OR A PERSON WHO, REGARDLESS OF HIS OR HER AGE,
IS A LAW ENFORCEMENT OFFICIAL POSING AS A MINOR DURING THE COURSE OF HIS
OR HER OFFICIAL DUTIES; and
2. by means of such communication he importunes, invites or induces a
minor, LESS THAN SEVENTEEN YEARS OF AGE, OR A PERSON WHO, REGARDLESS OF
HIS OR HER AGE, IS A LAW ENFORCEMENT OFFICIAL POSING AS A MINOR DURING
THE COURSE OF HIS OR HER OFFICIAL DUTIES to engage in sexual inter-
course, oral sexual conduct or anal sexual 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.
S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
PART F
Section 1. Subdivision 5 of section 220.10 of the criminal procedure
law is amended by adding a new paragraph (i) to read as follows:
(I) WHERE THE INDICTMENT CHARGES A FELONY CONTAINED IN ARTICLE ONE
HUNDRED THIRTY OR SECTION 255.25, 263.05, 263.10 OR 263.15 OF THE PENAL
LAW, ANY PLEA OF GUILTY THEREAFTER ENTERED IN SATISFACTION OF SUCH
CHARGE MUST INCLUDE AT LEAST A PLEA OF GUILTY TO THE VIOLATION OF ONE OF
THE ABOVE ENUMERATED OFFENSES AND NO OTHER DISPOSITION BY PLEA OF GUILTY
TO ANY OTHER CHARGE IN SATISFACTION OF SUCH CHARGE SHALL BE AUTHORIZED,
PROVIDED, HOWEVER, IF THE DISTRICT ATTORNEY UPON REVIEWING THE AVAILABLE
EVIDENCE DETERMINES THAT THE CHARGE OF A VIOLATION OF THE ABOVE ENUMER-
ATED FELONIES IS NOT WARRANTED, SUCH DISTRICT ATTORNEY MAY CONSENT, AND
THE COURT MAY ALLOW A DISPOSITION BY PLEA OF GUILTY TO ANOTHER CHARGE IN
SATISFACTION OF SUCH CHARGE; PROVIDED, HOWEVER, IN ALL SUCH CASES, THE
COURT SHALL SET FORTH UPON THE RECORD THE BASIS FOR SUCH DISPOSITION.
S 2. Section 530.50 of the criminal procedure law, as amended by chap-
ter 264 of the laws of 2003, is amended to read as follows:
S 530.50 Order of recognizance or bail; during pendency of appeal.
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A judge who is otherwise authorized pursuant to section 460.50 or
section 460.60 to issue an order of recognizance or bail pending the
determination of an appeal, may do so unless the defendant received a
class A felony sentence, A CLASS B OR CLASS C FELONY SENTENCE FOR A SEX
OFFENSE THAT REQUIRES THE DEFENDANT TO REGISTER PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW, or a sentence for any class B or class C
felony offense defined in article one hundred thirty of the penal law
committed or attempted to be committed by a person eighteen years of age
or older against a person less than eighteen years of age.
S 3. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-b to read as follows:
4-B. POLYGRAPH AUTHORIZATION. WHEN IMPOSING A SENTENCE OF PROBATION
THE COURT MAY, IN ADDITION TO ANY CONDITIONS IMPOSED PURSUANT TO SUBDI-
VISIONS TWO AND THREE OF THIS SECTION, REQUIRE A DEFENDANT, UNDER SUPER-
VISION FOR CONVICTION OF A SEX OFFENSE DEFINED IN ARTICLE SIX-C OF THE
CORRECTION LAW, TO SUBMIT TO POLYGRAPHIC EXAMINATIONS TO ENSURE COMPLI-
ANCE WITH THE TERMS OF PROBATION. THE COURT MAY ORDER THE OFFENDER TO
PAY ALL OR A PORTION OF THE COSTS OF THE EXAMINATIONS. THE FEE MAY BE
WAIVED IF THE OFFENDER IS INDIGENT OR IF PAYMENT WOULD RESULT IN AN
ECONOMIC HARDSHIP TO THE OFFENDER'S IMMEDIATE FAMILY. BY SEPTEMBER
FIRST, TWO THOUSAND TEN THE CHIEF JUSTICE OF THE COURT OF APPEALS IN
CONSULTATION WITH THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE
SERVICES SHALL DEVELOP A PROTOCOL FOR THE USE OF POLYGRAPHIC EXAMINA-
TIONS FOR SEX OFFENDERS PLACED ON PROBATION. THIS PROTOCOL SHALL BE
DISTRIBUTED TO JUDGES ACROSS THE STATE.
S 4. Subdivision 3 of section 130.00 of the penal law, as amended by
chapter 650 of the laws of 1984, is amended to read as follows:
3. "Sexual contact" means any INTENTIONAL touching of the sexual or
other intimate parts of [a] ANOTHER person [not married to the actor for
the purpose of gratifying sexual desire of either party] FOR NO LEGITI-
MATE PURPOSE. It includes the touching of the actor by the victim, as
well as the touching of the victim by the actor, whether directly or
through clothing.
S 5. Subdivisions 1 and 2 of section 168-a of the correction law,
subdivision 1 as added by chapter 192 of the laws of 1995, subdivision 2
as amended by chapter 11 of the laws of 2002, paragraph (a) of subdivi-
sion 2 as amended by chapter 405 of the laws of 2008, subparagraph (i)
of paragraph (d) of subdivision 2 as amended by chapter 146 of the laws
of 2004, subparagraph (iii) of paragraph (d) of subdivision 2 as amended
by chapter 232 of the laws of 2008, and paragraph (e) of subdivision 2
as added by chapter 69 of the laws of 2003, are amended to read as
follows:
1. "Sex offender" includes any person who is convicted of (A) any of
the offenses set forth in subdivision two or three of this section OR
(B) ANY OTHER FELONY OFFENSE COMMITTED WITHIN FIVE YEARS OF THE DATE ON
WHICH HE OR SHE WAS ADJUDICATED A YOUTHFUL OFFENDER PURSUANT TO ARTICLE
SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY OF THE
OFFENSES SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION.
Convictions that result from or are connected with the same act, or
result from offenses committed at the same time, shall be counted for
the purpose of this article as one conviction. Any conviction set aside
pursuant to law is not a conviction for purposes of this article.
2. "Sex offense" means: (a) (i) a conviction of or a conviction for an
attempt to commit any of the provisions of sections 120.70, 130.20,
130.25, 130.30, 130.40, 130.45, 130.60, 130.80, 230.34, 250.50, 255.25,
255.26 and 255.27 or article two hundred sixty-three of the penal law,
A. 6512 11
or section 135.05, 135.10, 135.20 or 135.25 of such law relating to
kidnapping offenses, provided the victim of such kidnapping or related
offense is less than seventeen years old and the offender is not the
parent of the victim, or section 230.04, where the person patronized is
in fact less than seventeen years of age, 230.05 or 230.06, or subdivi-
sion two of section 230.30, or section 230.32 or 230.33 of the penal
law, or (ii) a conviction of or a conviction for an attempt to commit
any of the provisions of section 235.22 of the penal law, or (iii) a
conviction of or a conviction for an attempt to commit any provisions of
the foregoing sections committed or attempted as a hate crime defined in
section 485.05 of the penal law or as a crime of terrorism defined in
section 490.25 of such law or as a sexually motivated felony defined in
section 130.91 of such law; or
(b) a conviction of or a conviction for an attempt to commit any of
the provisions of section 130.52 or 130.55 of the penal law, provided
the victim of such offense is less than eighteen years of age; or
(c) a conviction of or a conviction for an attempt to commit any of
the provisions of section 130.52 or 130.55 of the penal law regardless
of the age of the victim and the offender has previously been convicted
of: (i) a sex offense defined in this article, (ii) a sexually violent
offense defined in this article, or (iii) any of the provisions of
section 130.52 or 130.55 of the penal law, or an attempt thereof; or
(d) a conviction of (i) an offense in any other jurisdiction which
includes all of the essential elements of any such crime provided for in
paragraph (a), (b) or (c) of this subdivision or (ii) a felony in any
other jurisdiction for which the offender is required to register as a
sex offender in the jurisdiction in which the conviction occurred or,
(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.
(e) a conviction of any of the provisions of subdivision two, three or
four of section 250.45 OR SECTION 245.00 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 registration would be unduly harsh and
inappropriate[.]; OR
(F) A CONVICTION FOR ANY OFFENSE SET FORTH IN PARAGRAPH (A) OF THIS
SUBDIVISION WHICH WAS REPLACED BY A YOUTHFUL OFFENDER FINDING PURSUANT
TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW.
S 6. Section 450.10 of the criminal procedure law is amended by adding
a new subdivision 6 to read as follows:
6. AN ORDER, ENTERED PURSUANT TO SECTION 530.42 OF THIS CHAPTER,
GRANTING IN WHOLE OR IN PART AN APPLICATION OF THE PEOPLE.
S 7. Subdivision 4 of section 450.20 of the criminal procedure law is
amended to read as follows:
4. A sentence other than one of death, as prescribed in subdivisions
two and three of section 450.30, UNLESS THE APPEAL IS BASED SOLELY UPON
THE GROUND THAT A SENTENCE WAS UNDULY LENIENT WHEN SUCH SENTENCE WAS
PREDICATED UPON ENTRY OF A PLEA OF GUILTY AND THE SENTENCE IMPOSED WAS
NOT LESS THAN THAT WHICH WAS AGREED TO BY THE PEOPLE AS A CONDITION OF
THE PLEA AND SET FORTH IN THE RECORD OR FILED WITH THE COURT AS REQUIRED
BY SUBDIVISION FIVE OF SECTION 220.50 OF THIS CHAPTER OR SUBDIVISION
FOUR OF SECTION 340.20 OF THIS CHAPTER;
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S 8. Section 450.20 of the criminal procedure law is amended by adding
a new subdivision 12 to read as follows:
12. AN ORDER, ENTERED PURSUANT TO SECTION 530.42 OF THIS CHAPTER,
DENYING IN WHOLE OR IN PART AN APPLICATION OF THE PEOPLE.
S 9. Subdivision 2 of section 450.30 of the criminal procedure law is
amended to read as follows:
2. An appeal by the people from a sentence, as authorized by subdivi-
sion four of section 450.20, may be based [only] upon the ground that
such sentence EITHER was (A) invalid as a matter of law OR (B) UNDULY
LENIENT.
S 10. Paragraph (c) of subdivision 2 and paragraph (b) of subdivision
6 of section 470.15 of the criminal procedure law are amended to read as
follows:
(c) Upon a determination that a sentence imposed upon a valid
conviction is illegal [or], unduly harsh or severe OR UNDULY LENIENT,
the court may modify the judgment by reversing it with respect to the
sentence and by otherwise affirming it.
(b) That a sentence, though legal, was EITHER (I) unduly harsh or
severe OR (II) UNDULY LENIENT.
S 11. Subdivision 6 of section 470.20 of the criminal procedure law is
amended to read as follows:
6. Upon modifying a judgment or reversing a sentence as a matter of
discretion in the interest of justice upon the ground that the sentence
is unduly harsh or severe OR UNDULY LENIENT, the court must itself
impose some legally authorized lesser OR GREATER sentence.
S 12. Subdivision 3 of section 530.30 of the criminal procedure law is
renumbered subdivision 6 and three new subdivisions 3, 4 and 5 are added
to read as follows:
3. WHEN A CRIMINAL ACTION IS PENDING IN A LOCAL CRIMINAL COURT, OTHER
THAN ONE CONSISTING OF A SUPERIOR COURT JUDGE SITTING AS SUCH, A JUDGE
OF A SUPERIOR COURT HOLDING A TERM THEREOF IN THE COUNTY, UPON APPLICA-
TION OF THE PEOPLE, MAY REVOKE AN ORDER OF RECOGNIZANCE OR BAIL ENTERED
BY A LOCAL CRIMINAL COURT AND FIX BAIL IN AN AMOUNT THE COURT DETERMINES
SUFFICIENT OR, IF THE DEFENDANT IS CHARGED WITH ONE OR MORE CRIMES AT
LEAST ONE OF WHICH IS A FELONY, COMMIT THE DEFENDANT TO THE CUSTODY OF
THE SHERIFF.
4. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS
SECTION, A SUPERIOR COURT JUDGE MAY NOT VACATE AN ORDER OF RECOGNIZANCE
OR BAIL AND FIX BAIL OR COMMIT THE DEFENDANT TO THE CUSTODY OF THE SHER-
IFF UNLESS AND UNTIL:
(A) THE DEFENDANT HAS HAD AN OPPORTUNITY TO BE HEARD IN THE MATTER OR,
AFTER KNOWLEDGE OR NOTICE TO THE DEFENDANT OR HIS COUNSEL OF THE APPLI-
CATION AND REASONABLE OPPORTUNITY TO BE HEARD, HAS FAILED TO APPEAR AT
THE PROCEEDING OR HAS OTHERWISE WAIVED HIS RIGHT TO DO SO; AND
(B) SUCH JUDGE HAS BEEN FURNISHED WITH A REPORT AS DESCRIBED IN
SUBPARAGRAPH (II) OF PARAGRAPH (B) OF SUBDIVISION TWO OF SECTION 530.20
OF THIS ARTICLE.
5. WHEN A CRIMINAL ACTION IS PENDING IN A LOCAL CRIMINAL COURT AND AN
ORDER FIXING BAIL HAS BEEN ENTERED, AND THEREAFTER A LOCAL CRIMINAL
COURT ENTERS AN ORDER RELEASING THE DEFENDANT ON HIS OWN RECOGNIZANCE OR
FIXING BAIL IN A LESSER AMOUNT OR IN A LESS BURDENSOME MANNER, THE
PEOPLE MAY FILE WITH THE LOCAL CRIMINAL COURT A NOTICE OF INTENTION TO
APPLY TO A SUPERIOR COURT JUDGE PURSUANT TO SUBDIVISION THREE OF THIS
SECTION. THE FILING OF SUCH A NOTICE SHALL STAY THE EFFECT OF THE ORDER
RELEASING THE DEFENDANT ON HIS OWN RECOGNIZANCE OR FIXING BAIL IN A
LESSER AMOUNT OR IN A LESS BURDENSOME MANNER. A STAY PURSUANT TO THIS
A. 6512 13
SUBDIVISION SHALL REMAIN IN EFFECT FOR A PERIOD OF SEVENTY-TWO HOURS
UNLESS EXTENDED OR VACATED BY THE JUDGE OF THE SUPERIOR COURT TO WHOM
THE PEOPLE APPLY PURSUANT TO SUBDIVISION THREE OF THIS SECTION.
S 13. The criminal procedure law is amended by adding a new section
530.42 to read as follows:
S 530.42 ORDER OF RECOGNIZANCE OR BAIL; REVIEW BY SUPERIOR COURT.
1. WHEN A CRIMINAL ACTION IS PENDING IN A LOCAL CRIMINAL COURT OR A
SUPERIOR COURT, AND THE COURT HAS ORDERED RECOGNIZANCE OR BAIL, A JUDGE
OF THE SUPERIOR COURT HOLDING A TERM THEREOF IN THE COUNTY, UPON APPLI-
CATION OF THE PEOPLE, MAY REVIEW AN ORDER OF RECOGNIZANCE OR BAIL PREVI-
OUSLY ENTERED IN THE ACTION AND FIX BAIL IN AN AMOUNT THE COURT DETER-
MINES SUFFICIENT OR, IF THE DEFENDANT IS CHARGED WITH ONE OR MORE CRIMES
AT LEAST ONE OF WHICH IS A FELONY, COMMIT THE DEFENDANT TO THE CUSTODY
OF THE SHERIFF.
2. UPON AN APPLICATION FOR REVIEW PURSUANT TO SUBDIVISION ONE OF THIS
SECTION, THE SUPERIOR COURT JUDGE MAY GRANT THE APPLICATION ONLY UPON A
DETERMINATION THAT THE ORDER OF RECOGNIZANCE OR BAIL UNDER REVIEW
CONSTITUTES AN ABUSE OF DISCRETION.
3. AN APPLICATION PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL BE
ACCOMPANIED BY AN AFFIDAVIT OR AFFIRMATION WHICH SHALL STATE THE DATE,
AND THE COURT OR JUDGE TO WHOM MADE, OF EVERY PREVIOUS APPLICATION, THE
DISPOSITION OF EACH SUCH APPLICATION AND OF ANY APPEAL TAKEN, AND THE
NEW FACTS PRESENTED IN THE APPLICATION THAT WERE NOT PRESENTED IN ANY
PREVIOUS APPLICATION.
4. WHEN A CRIMINAL ACTION IS PENDING IN A SUPERIOR COURT AND AN ORDER
IS ENTERED RELEASING THE DEFENDANT ON HIS OWN RECOGNIZANCE OR FIXING
BAIL, THE PEOPLE MAY APPLY ON AN EMERGENCY BASIS TO THE COURT TO WHICH
AN APPLICATION PURSUANT TO SUBDIVISION ONE OF THIS SECTION WOULD BE MADE
FOR AN INTERIM ORDER FIXING BAIL OR COMMITTING THE DEFENDANT TO THE
CUSTODY OF THE SHERIFF. SUCH AN ORDER SHALL REMAIN IN EFFECT FOR A PERI-
OD OF SEVENTY-TWO HOURS UNLESS EXTENDED OR VACATED BY THE COURT TO WHICH
THE PEOPLE APPLY PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
5. THE CHIEF ADMINISTRATOR OF THE COURTS, WITH THE ADVICE AND CONSENT
OF THE ADMINISTRATIVE BOARD OF THE COURTS, SHALL ADOPT PROCEDURES REGU-
LATING THE COURT OR COURTS IN THE COUNTY TO WHICH AN APPLICATION PURSU-
ANT TO SUBDIVISION ONE OF THIS SECTION MAY BE MADE.
S 14. Subdivision 1 of section 720.35 of the criminal procedure law,
as amended by chapter 452 of the laws of 1992, is amended to read as
follows:
1. A youthful offender adjudication is not a judgment of conviction
for a crime or any other offense, and does not operate as a disquali-
fication of any person so adjudged to hold public office or public
employment or to receive any license granted by public authority but
shall be deemed a conviction [only] (I) for the purposes of transfer of
supervision and custody pursuant to section two hundred fifty-nine-m of
the executive law OR (II) FOR THE PURPOSE OF DETERMINING WHETHER THE
PERSON IS SUBJECT TO THE REQUIREMENTS OF ARTICLE SIX-C OF THE CORRECTION
LAW, WHENEVER THE PERSON HAS BEEN CONVICTED OF A FELONY OFFENSE COMMIT-
TED WITHIN FIVE YEARS OF THE DATE ON WHICH HE OR SHE WAS ADJUDICATED A
YOUTHFUL OFFENDER FOR A FELONY OFFENSE DEFINED IN SUBDIVISION TWO OR
THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW OR
(III) FOR THE PURPOSE OF DETERMINING WHETHER THE PERSON IS A DESIGNATED
OFFENDER WITHIN THE MEANING OF SUBDIVISION SEVEN OF SECTION NINE HUNDRED
NINETY-FIVE OF THE EXECUTIVE LAW AND SUBJECT TO THE REQUIREMENTS OF
ARTICLE FORTY-NINE-B OF THE EXECUTIVE LAW.
A. 6512 14
S 15. Section 720.35 of the criminal procedure law is amended by
adding a new subdivision 5 to read as follows:
5. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, WHENEVER A PERSON
STANDS CONVICTED OF A FELONY OFFENSE COMMITTED WITHIN FIVE YEARS OF THE
DATE ON WHICH HE OR SHE WAS ADJUDICATED A YOUTHFUL OFFENDER FOR A FELONY
OFFENSE DEFINED IN SUBDIVISION TWO OR THREE OF SECTION ONE HUNDRED
SIXTY-EIGHT-A OF THE CORRECTION LAW, ALL RECORDS PERTAINING TO THE
YOUTHFUL OFFENDER ADJUDICATION SHALL NO LONGER BE CONFIDENTIAL.
S 16. The criminal procedure law is amended by adding a new section
60.41 to read as follows:
S 60.41 RULES OF EVIDENCE; PROOF OF PREVIOUS SEXUAL ASSAULT.
1. IN ANY PROSECUTION IN WHICH A DEFENDANT IS CHARGED WITH AN OFFENSE
OF SEXUAL ASSAULT, EVIDENCE OF THE DEFENDANT'S COMMISSION OF ANOTHER
OFFENSE OR OFFENSES OF SEXUAL ASSAULT IS ADMISSIBLE AND MAY BE CONSID-
ERED FOR ITS BEARING ON ANY MATTER TO WHICH IT IS RELEVANT, INCLUDING
THE DEFENDANT'S PROPENSITY TO COMMIT AN OFFENSE OF SEXUAL ASSAULT OR THE
CREDIBILITY OF THE ALLEGED VICTIM OF THE SEXUAL ASSAULT, UNLESS THE
COURT DETERMINES THAT ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY
THE DANGER OF UNDUE PREJUDICE TO THE DEFENDANT.
2. FOR PURPOSES OF THIS SECTION, "OFFENSE OF SEXUAL ASSAULT" MEANS ANY
CONDUCT PROSCRIBED BY ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, OR
ANY ATTEMPT TO ENGAGE IN SUCH CONDUCT, WHETHER COMMITTED IN THIS STATE
OR ELSEWHERE, REGARDLESS OF WHETHER THE DEFENDANT WAS CONVICTED FOR THE
CONDUCT.
S 17. Section 60.40 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
4. IN ACCORDANCE WITH SECTION 60.41 OF THIS ARTICLE, THE PEOPLE MAY
PROVE THAT A DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF AN OFFENSE OF
SEXUAL ASSAULT.
S 18. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law provided that
section three of this act shall take effect January 1, 2010.
PART G
Section 1. Paragraphs (e) and (f) of subdivision 3 of section 30.10 of
the criminal procedure law are REPEALED, paragraph (g) is relettered
paragraph (f) and a new paragraph (e) is added to read as follows:
(E) A PROSECUTION FOR A SEX OFFENSE DEFINED IN ARTICLE ONE HUNDRED
THIRTY OF THE PENAL LAW, OTHER THAN A SEXUAL OFFENSE DELINEATED IN PARA-
GRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, COMMITTED AGAINST A CHILD
LESS THAN EIGHTEEN YEARS OF AGE, INCEST IN THE FIRST, SECOND OR THIRD
DEGREE AS DEFINED IN SECTIONS 255.27, 255.26 AND 255.25 OF THE PENAL LAW
COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR USE OF A
CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL
LAW, MAY BE COMMENCED WITHIN FIFTEEN YEARS AFTER SUCH CHILD HAS REACHED
THE AGE OF EIGHTEEN.
S 2. This act shall take effect immediately and shall apply to
offenses committed on and after such date as well as to offenses commit-
ted prior thereto, provided that this act shall not apply to offenses
committed prior to such date on which the prosecution thereof was barred
under the provisions of section 30.10 of the criminal procedure law in
effect immediately prior to such date.
PART H
A. 6512 15
Section 1. Subparagraph (ii) of paragraph (a) of subdivision 3 of
section 70.00 of the penal law, as amended by chapter 107 of the laws of
2006, is amended to read as follows:
(ii) For a class A-II felony, such minimum period shall not be less
than three years nor more than eight years four months, except that for
the class A-II felony of predatory sexual assault as defined in section
130.95 of this chapter [or the class A-II felony of predatory sexual
assault against a child as defined in section 130.96 of this chapter,]
such minimum period shall be not less than ten years nor more than twen-
ty-five years AND FOR THE CLASS A-II FELONY OF PREDATORY SEXUAL ASSAULT
AGAINST A CHILD AS DEFINED IN SECTION 130.96 OF THIS CHAPTER SUCH MINI-
MUM PERIOD SHALL BE NOT LESS THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM
SHALL BE LIFE IMPRISONMENT.
S 2. Paragraph (a) of subdivision 4 of section 70.06 of the penal law,
as amended by chapter 107 of the laws of 2006, is amended to read as
follows:
(a) The minimum period of imprisonment for a second felony offender
convicted of a class A-II felony must be fixed by the court at no less
than six years and not to exceed twelve and one-half years and must be
specified in the sentence, except that for the class A-II felony of
predatory sexual assault as defined in section 130.95 of this chapter
[or the class A-II felony of predatory sexual assault against a child as
defined in section 130.96 of this chapter,] such minimum period shall be
not less than ten years nor more than twenty-five years AND FOR THE
CLASS A-II FELONY OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS DEFINED
IN SECTION 130.96 OF THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE NOT LESS
THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM SHALL BE LIFE IMPRISONMENT.
S 3. Subdivision 1 of section 70.40 of the penal law is amended by
adding a new paragraph (d) to read as follows:
(D) A PERSON WHO HAS BEEN PAROLED AFTER SERVING A SENTENCE OF IMPRI-
SONMENT FOR THE CRIME OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS
DEFINED IN SECTION 130.96 OF THIS CHAPTER SHALL BE UNDER THE SUPERVISION
OF THE STATE BOARD OF PAROLE FOR THE DURATION OF THEIR LIFETIME.
S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
PART I
Section 1. Section 245.00 of the penal law, as amended by chapter 748
of the laws of 1968, is amended to read as follows:
S 245.00 Public lewdness.
A person is guilty of public lewdness when he intentionally exposes
the private or intimate parts of his OR HER body in a lewd manner or
commits any other lewd act (a) in a public place, or (b) in private
premises under circumstances in which he OR SHE may readily be observed
from either a public place or from other private premises, and with
intent that he OR SHE be so observed.
Public lewdness is a class B misdemeanor.
A SECOND OFFENSE UNDER THIS SECTION COMMITTED WITHIN A TEN YEAR PERIOD
IS A CLASS A MISDEMEANOR.
A THIRD OR SUBSEQUENT OFFENSE UNDER THIS SECTION COMMITTED WITHIN A
TEN YEAR PERIOD IS A CLASS E FELONY.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
PART J
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Section 1. Section 130.53 of the penal law, as amended by chapter 264
of the laws of 2003, is amended to read as follows:
S 130.53 Persistent sexual abuse.
A person is guilty of persistent sexual abuse when he or she [commits
the crime of forcible touching, as defined in section 130.52 of this
article, sexual abuse in the third degree, as defined in section 130.55
of this article, or sexual abuse in the second degree, as defined in
section 130.60 of this article, and, within the previous ten year peri-
od, has been convicted two or more times, in separate criminal trans-
actions for which sentence was imposed on separate occasions, of forci-
ble touching, as defined in section 130.52 of this article, sexual abuse
in the third degree as defined in section 130.55 of this article, sexual
abuse in the second degree, as defined in section 130.60 of this arti-
cle, or any offense defined in this article, of which the commission or
attempted commission thereof is a felony] STANDS CONVICTED OF ANY SEX
OFFENSE ENUMERATED IN THIS ARTICLE, AND WITHIN THE PREVIOUS TEN YEAR
PERIOD, HAS BEEN CONVICTED TWO OR MORE TIMES, IN SEPARATE CRIMINAL TRAN-
SACTIONS FOR WHICH SENTENCE WAS IMPOSED ON SEPARATE OCCASIONS, OF ANY
SEX OFFENSE ENUMERATED IN THIS ARTICLE.
Persistent sexual abuse is a class E felony.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
PART K
Section 1. Section 250.05 of the penal law, as amended by chapter 744
of the laws of 1988, is amended to read as follows:
S 250.05 Eavesdropping.
A person is guilty of eavesdropping when he unlawfully engages in
wiretapping, mechanical overhearing of a conversation, or intercepting
or accessing of an electronic communication, EXCEPT WHEN A PARENT OR
LEGAL GUARDIAN IS INTERCEPTING A COMMUNICATION BETWEEN THE CHILD AND A
FAMILY MEMBER OR ANY THIRD PARTY, WHERE THE PARENT OR LEGAL GUARDIAN
SUSPECTS THAT THE CHILD IS INVOLVED IN AN ILLEGAL SEXUAL RELATIONSHIP OR
THE SUBJECT OF AN ATTEMPTED LURING, AND THE BASIS FOR INTERCEPTING SUCH
COMMUNICATION IS MOTIVATED BY GOOD FAITH CONCERN BY THE PARENT OR LEGAL
GUARDIAN FOR THE CHILD'S WELFARE AND/OR SAFETY.
Eavesdropping is a class E felony.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
PART L
Section 1. The penal law is amended by adding a new section 260.12 to
read as follows:
S 260.12 ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER.
A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL
MANNER WHEN HE OR SHE COMMITS THE CRIME OF ENDANGERING THE WELFARE OF A
CHILD AND THE INJURIOUS MANNER IN WHICH THE PERSON ACTED, OR THE OCCUPA-
TION THE CHILD WAS DIRECTED OR AUTHORIZED TO ENGAGE IN, OR THE REASON
FOR THE CHILD BEING DEEMED AN "ABUSED CHILD," A "NEGLECTED CHILD," A
"JUVENILE DELINQUENT" AND/OR A "PERSON IN NEED OF SUPERVISION" IS OF A
SEXUAL NATURE.
ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER IS A CLASS E
FELONY.
A. 6512 17
S 2. Section 260.11 of the penal law, as amended by chapter 89 of the
laws of 1984, is amended to read as follows:
S 260.11 Endangering the welfare of a child; corroboration.
A person shall not be convicted of endangering the welfare of a child
OR ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER, or of an
attempt to commit the same, upon the testimony of a victim who is inca-
pable of consent because of mental defect or mental incapacity as to
conduct that constitutes an offense or an attempt to commit an offense
referred to in section 130.16, without additional evidence sufficient
pursuant to section 130.16 to sustain a conviction of an offense
referred to in section 130.16, or of an attempt to commit the same.
S 3. Subparagraph (i) of paragraph (a) of subdivision 2 of section
168-a of the correction law, as amended by chapter 405 of the laws of
2008, is amended to read as follows:
(i) a conviction of or a conviction for an attempt to commit any of
the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40,
130.45, 130.60, 260.13, 230.34, 250.50, 255.25, 255.26 and 255.27 or
article two hundred sixty-three of the penal law, or section 135.05,
135.10, 135.20 or 135.25 of such law relating to kidnapping offenses,
provided the victim of such kidnapping or related offense is less than
seventeen years old and the offender is not the parent of the victim, or
section 230.04, where the person patronized is in fact less than seven-
teen years of age, 230.05 or 230.06, or subdivision two of section
230.30, or section 230.32 or 230.33 of the penal law, or
S 4. This act shall take effect immediately.
PART M
Section 1. Subdivision 5 of section 70.00 of the penal law, as amended
by chapter 765 of the laws of 2005, is amended to read as follows:
5. Life imprisonment without parole. Notwithstanding any other
provision of law, a defendant sentenced to life imprisonment without
parole shall not be or become eligible for parole or conditional
release. For purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be an indetermi-
nate sentence. A defendant may be sentenced to life imprisonment with-
out parole, IN ACCORDANCE WITH THE PROCEDURES PROVIDED BY LAW FOR IMPOS-
ING SUCH A SENTENCE, EITHER: (A) upon conviction for the crime of
murder in the first degree as defined in section 125.27 of this chapter
[and in accordance with the procedures provided by law for imposing a
sentence for such crime]; OR (B) UPON CONVICTION OF A VIOLENT FELONY
OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THIS ARTICLE
WHEN SUCH DEFENDANT HAS PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDI-
CATE VIOLENT FELONY CONVICTIONS AS DEFINED IN PARAGRAPH (B) OF SUBDIVI-
SION ONE OF SECTION 70.04 OF THIS ARTICLE. A defendant must be sentenced
to life imprisonment without parole upon conviction for the crime of
terrorism as defined in section 490.25 of this chapter, where the speci-
fied offense the defendant committed is a class A-I felony; the crime of
criminal possession of a chemical weapon or biological weapon in the
first degree as defined in section 490.45 of this chapter; or the crime
of criminal use of a chemical weapon or biological weapon in the first
degree as defined in section 490.55 of this chapter; provided, however,
that nothing in this subdivision shall preclude or prevent a sentence of
death when the defendant is also convicted of the crime of murder in the
first degree as defined in section 125.27 of this chapter, OR IS ALSO
CONVICTED OF A VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF
A. 6512 18
SECTION 70.02 OF THIS ARTICLE WHEN SUCH DEFENDANT HAS PREVIOUSLY BEEN
SUBJECTED TO TWO OR MORE PREDICATE VIOLENT FELONY CONVICTIONS AS DEFINED
IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 70.04 OF THIS ARTICLE. A
defendant must be sentenced to life imprisonment without parole upon
conviction for the crime of murder in the second degree as defined in
subdivision five of section 125.25 of this chapter or for the crime of
aggravated murder as defined in section 125.26 of this chapter.
S 2. Subdivision 2 of section 70.08 of the penal law, as added by
chapter 481 of the laws of 1978, is amended to read as follows:
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
violent felony offender the court must impose [an indeterminate sentence
of imprisonment, the maximum term of which shall be life imprisonment.
The minimum period of imprisonment under such sentence must be in
accordance with subdivision three of this section] A SENTENCE OF LIFE
IMPRISONMENT WITHOUT PAROLE PURSUANT TO SECTION 70.00 OF THIS ARTICLE.
S 3. Subdivision 3 of section 70.08 of the penal law is REPEALED.
S 4. This act shall take effect on the ninetieth day after it shall
have become a law.
S 4. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 5. This act shall take effect immediately provided, however, that
the applicable effective date of parts A through M of this act shall be
as specifically set forth in the last section of such parts.