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

                                  9360

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 6, 2010
                               ___________

Introduced  by  M.  of  A.  GABRYSZAK,  CUSICK, MILLMAN, FIELDS, MAISEL,
  ROBINSON -- Multi-Sponsored by -- M. of A. ALFANO, BROOK-KRASNY, HOOP-
  ER, HYER-SPENCER, McDONOUGH, PEOPLES-STOKES, SWEENEY, TITONE,  WEISEN-
  BERG -- read once and referred to the Committee on Codes

AN  ACT  to  amend  the penal law, in relation to the unlawful sale to a
  child and unlawful purchase of tobacco products by a child

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

  Section 1. Section 260.21 of the penal law, as added by chapter 362 of
the  laws  of 1992, the opening paragraph of subdivision 1 as amended by
chapter 478 of the laws of 1996, is amended to read as follows:
S 260.21 Unlawfully dealing with a child in the second degree.
  A person is guilty of unlawfully dealing with a child  in  the  second
degree when:
  1.  Being an owner, lessee, manager or employee of a place where alco-
holic beverages are sold or given away, he OR SHE permits a  child  less
than sixteen years old to enter or remain in such place unless:
  (a)  The  child  is  accompanied  by his OR HER parent, guardian or an
adult authorized by a parent or guardian; or
  (b) The entertainment or activity is being conducted for  the  benefit
or  under  the  auspices  of a non-profit school, church or other educa-
tional or religious institution; or
  (c) Otherwise permitted by law to do so; or
  (d) The establishment is closed to the public for a  specified  period
of  time to conduct an activity or entertainment, during which the child
is in or remains in such establishment, and no alcoholic  beverages  are
sold,  served,  given away or consumed at such establishment during such
period. The state liquor authority shall be notified in writing  by  the
licensee  of  such establishment, of the intended closing of such estab-
lishment, to conduct any such activity or entertainment, not  less  than
ten days prior to any such closing; or
  2.  He  OR  SHE marks the body of a child less than eighteen years old
with indelible ink or pigments by means of tattooing[; or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD03538-01-9

A. 9360                             2

  3. He sells or causes to be sold tobacco in any form to a  child  less
than eighteen years old.
  It  is  no  defense  to a prosecution pursuant to subdivision three of
this section that the child acted as  the  agent  or  representative  of
another person or that the defendant dealt with the child as such].
  Unlawfully  dealing  with  a  child  in the second degree is a class B
misdemeanor.
  S 2. The penal law is amended by adding a new section 260.22  to  read
as follows:
S 260.22 UNLAWFUL SALE OF TOBACCO PRODUCTS TO A CHILD.
  1.  A PERSON IS GUILTY OF UNLAWFUL SALE OF TOBACCO PRODUCTS TO A CHILD
WHEN:
  HE OR SHE SELLS OR CAUSES TO BE SOLD TOBACCO IN ANY FORM  TO  A  CHILD
LESS THAN  EIGHTEEN YEARS OLD.
  2.  IT  IS  NO DEFENSE TO A PROSECUTION PURSUANT TO SUBDIVISION ONE OF
THIS SECTION THAT THE CHILD ACTED AS  THE  AGENT  OR  REPRESENTATIVE  OF
ANOTHER PERSON OR THAT THE DEFENDANT DEALT WITH THE CHILD AS SUCH.
  UNLAWFUL SALE OF TOBACCO PRODUCTS TO A CHILD IS A CLASS B MISDEMEANOR.
  S  3.  The penal law is amended by adding a new section 260.23 to read
as follows:
S 260.23 UNLAWFUL PURCHASE OR POSSESSION OF TOBACCO PRODUCTS BY A CHILD;
           USE OF FALSE IDENTIFICATION TO PURCHASE TOBACCO PRODUCTS BY A
           CHILD.
  1. A CHILD LESS THAN EIGHTEEN YEARS OLD IS GUILTY OF UNLAWFUL PURCHASE
OR POSSESSION OF TOBACCO PRODUCTS WHEN:
  HE OR SHE PURCHASES A TOBACCO PRODUCT, POSSESSES A TOBACCO PRODUCT  OR
ATTEMPTS TO PURCHASE OR POSSESS A TOBACCO PRODUCT UNLESS:
  (A) THE CHILD IS ENGAGED IN LAW ENFORCEMENT ACTIVITY; OR
  (B)  THE CHILD IS HANDLING OR TRANSPORTING A TOBACCO PRODUCT UNDER THE
TERMS OF HIS OR HER EMPLOYMENT.
  2. A CHILD LESS THAN EIGHTEEN YEARS OLD IS  GUILTY  OF  USE  OF  FALSE
IDENTIFICATION WHEN:
  HE  OR  SHE  PRESENTS  OR OFFERS TO ANOTHER PERSON A DRIVER'S LICENSE,
NON-DRIVER'S IDENTIFICATION CARD ISSUED BY A STATE  OR  FEDERAL  GOVERN-
MENTAL AGENCY OR PASSPORT WHICH IS FALSE, FRAUDULENT OR NOT ACTUALLY HIS
OR  HER  OWN DRIVER'S LICENSE, NON-DRIVER'S IDENTIFICATION CARD OR PASS-
PORT, FOR THE PURPOSE OF ATTEMPTING TO PURCHASE  OR  POSSESS  A  TOBACCO
PRODUCT.
  UNLAWFUL PURCHASE OR POSSESSION OF TOBACCO PRODUCTS BY A CHILD AND USE
OF FALSE IDENTIFICATION BY A CHILD SHALL RESULT IN THE FORFEITURE OF ANY
TOBACCO  PRODUCT  AND/OR  DRIVER'S  LICENSE, NON-DRIVER'S IDENTIFICATION
CARD ISSUED BY A STATE OR FEDERAL GOVERNMENTAL AGENCY OR PASSPORT IN HIS
OR HER POSSESSION TO ANY ENFORCEMENT OFFICER, POLICE OFFICER  DESIGNATED
BY  SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW OR A PEACE OFFICER DESIG-
NATED BY SUBDIVISION FOUR OF SECTION 2.10 OF SUCH LAW UPON REQUEST,  AND
SUCH  CHILD  SHALL  BE  LIABLE FOR A FINE OF NOT MORE THAN FIFTY DOLLARS
AND/OR AN APPROPRIATE AMOUNT OF COMMUNITY SERVICE NOT  TO  EXCEED  EIGHT
HOURS.
  S 4. This act shall take effect immediately.