S T A T E O F N E W Y O R K
________________________________________________________________________
6648--A
2011-2012 Regular Sessions
I N A S S E M B L Y
March 24, 2011
___________
Introduced by M. of A. BENEDETTO, MARKEY, P. RIVERA, ROBERTS, SPANO,
M. MILLER, GALEF, REILLY, STEVENSON, MOYA -- Multi-Sponsored by -- M.
of A. ABBATE, GUNTHER, HOOPER, SIMOTAS -- read once and referred to
the Committee on Consumer Affairs and Protection -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the penal law, in relation to bias-related graffiti, the
disposition of graffiti offenses, graffiti for the purpose of promot-
ing gang related activities and graffiti upon religious property; to
amend the criminal procedure law, in relation to the unsealing of
youthful offender records relating to the commission of making graffi-
ti in the first degree and aggravated harassment in the first degree;
and to amend the general business law, in relation to requiring
persons engaged in the retail sale of aerosol spray paint to post
notice of provisions of and penalties for commission of graffiti
offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 60.31 to
read as follows:
S 60.31 AUTHORIZED DISPOSITION; AGGRAVATED HARASSMENT IN THE FIRST
DEGREE.
WHEN A PERSON IS CONVICTED OF AGGRAVATED HARASSMENT IN THE FIRST
DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO
COMMIT SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION TO
ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL
DISCHARGE THE COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT HIS OR
HER OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO OVER-
COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU-
NICATION, UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS AND
ETHNIC GROUPS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04419-03-1
A. 6648--A 2
S 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as amended by chapter 508 of the laws of 2001, is amended to read as
follows:
(h) Perform services for a public or not-for-profit corporation, asso-
ciation, institution or agency, including but not limited to services
for the [division] OFFICE of ALCOHOLISM AND substance abuse services,
[services in an appropriate community program for removal of graffiti
from public or private property, including any property damaged in the
underlying offense,] or services for the maintenance and repair of real
or personal property maintained as a cemetery plot, grave, burial place
or other place of interment of human remains. Provided however, that the
performance of any such services shall not result in the displacement of
employed workers or in the impairment of existing contracts for
services, nor shall the performance of any such services be required or
permitted in any establishment involved in any labor strike or lockout.
The court may establish provisions for the early termination of a
sentence of probation or conditional discharge pursuant to the
provisions of subdivision three of section 410.90 of the criminal proce-
dure law after such services have been completed. Such sentence may only
be imposed upon conviction of a misdemeanor, violation, or class D or
class E felony, or a youthful offender finding replacing any such
conviction, where the defendant has consented to the amount and condi-
tions of such service;
S 3. Section 65.10 of the penal law is amended by adding a new subdi-
vision 6 to read as follows:
6. WHEN IMPOSING A SENTENCE OF PROBATION OR OF CONDITIONAL DISCHARGE
IN CONNECTION WITH A VIOLATION OF SECTION 145.60, 145.62 OR 145.65 OF
THIS CHAPTER, THE COURT SHALL AS A CONDITION OF THE SENTENCE, REQUIRE
THAT THE DEFENDANT REMOVE GRAFFITI FROM PUBLIC OR PRIVATE PROPERTY,
INCLUDING ANY PROPERTY DAMAGED IN THE UNDERLYING OFFENSE, UNLESS THE
COURT SHALL DETERMINE THAT AN APPROPRIATE PROGRAM TO SUPERVISE SUCH
REMOVAL IS NOT AVAILABLE OR THAT SUCH GRAFFITI REMOVAL WOULD BE UNREA-
SONABLY DANGEROUS; PROVIDED, HOWEVER, THAT GRAFFITI REMOVAL FROM PRIVATE
PROPERTY PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT TO CONSENT OF THE
OWNER OF SUCH PROPERTY.
S 4. Section 145.60 of the penal law, as added by chapter 458 of the
laws of 1992, is amended to read as follows:
S 145.60 Making graffiti IN THE SECOND DEGREE.
1. For purposes of this section AND SECTION 145.62 OF THIS ARTICLE,
the term "graffiti" shall mean the etching, painting, covering, drawing
upon or otherwise placing of a mark upon public or private property with
intent to damage such property.
2. [No person shall make] A PERSON IS GUILTY OF MAKING GRAFFITI IN THE
SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building,
public or private, or any other property real or personal owned by any
person, firm or corporation or any public agency or instrumentality,
without the express permission of the owner or operator of said proper-
ty.
Making graffiti IN THE SECOND DEGREE is a class A misdemeanor.
S 5. The penal law is amended by adding a new section 145.62 to read
as follows:
S 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST DEGREE WHEN SUCH
PERSON DAMAGES PROPERTY OF ANOTHER PERSON IN THE MANNER DESCRIBED IN
SECTION 145.60 OF THIS ARTICLE AND HE OR SHE MAKES GRAFFITI OF ANY TYPE.
1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR
A. 6648--A 3
2. ON ANY BUILDING, STRUCTURE OR THE CURTILAGE OF SUCH BUILDING OR
STRUCTURE USED AS A PLACE OF RELIGIOUS WORSHIP BY A RELIGIOUS CORPO-
RATION, AS INCORPORATED UNDER THE RELIGIOUS CORPORATIONS LAW, OR UPON
ANY PROPERTY THAT CONSISTS OF A SCROLL, RELIGIOUS VESTMENT, VESSEL, ITEM
COMPRISING A DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE
EXPRESSION OF FAITH OR OTHER MISCELLANEOUS ITEM OF PROPERTY KEPT OR USED
IN OR UPON SUCH BUILDING OR STRUCTURE.
MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
S 6. Section 240.31 of the penal law is amended by adding a new subdi-
vision 1-a to read as follows:
1-A. ETCHES, PAINTS, COVERS, DRAWS UPON OR OTHERWISE PLACES A MARK
UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT
THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL
PROPERTY; OR
S 7. Section 720.35 of the criminal procedure law is amended by
adding a new subdivision 5 to read as follows:
5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
WHENEVER A PERSON IS ADJUDICATED A YOUTHFUL OFFENDER AND THE CONVICTION
THAT WAS VACATED AND REPLACED BY THE YOUTHFUL OFFENDER FINDING WAS
EITHER MAKING GRAFFITI IN THE FIRST DEGREE IN VIOLATION OF SECTION
145.62 OF THE PENAL LAW OR AGGRAVATED HARASSMENT IN THE FIRST DEGREE IN
VIOLATION OF SECTION 240.31 OF THE PENAL LAW, THEN THE NAME OF THE
YOUTHFUL OFFENDER AND THE CRIME FOR WHICH THE YOUTHFUL OFFENDER FINDING
WAS SUBSTITUTED SHALL NOT BE CONFIDENTIAL AND MAY BE MADE AVAILABLE TO
ANY PERSON OR PUBLIC OR PRIVATE AGENCY.
S 8. The general business law is amended by adding a new section 399-j
to read as follows:
S 399-J. RETAIL SALE OF AEROSOL SPRAY PAINT; NOTICE OF GRAFFITI PENAL-
TIES. 1. EVERY PERSON AND ENTITY ENGAGED IN THE RETAIL SALE OF AEROSOL
SPRAY PAINT SHALL, AT EACH LOCATION AT WHICH SUCH PAINT IS DISPLAYED FOR
SALE, CONSPICUOUSLY POST A SIGN ADVISING CUSTOMERS OF THE PROVISIONS OF
AND PENALTIES FOR MAKING GRAFFITI IN THE FIRST DEGREE AS DEFINED IN
SECTION 145.60, MAKING GRAFFITI IN THE FIRST DEGREE AS DEFINED IN
SECTION 145.62, POSSESSION OF GRAFFITI INSTRUMENTS AS DEFINED IN SECTION
145.65 AND AGGRAVATED HARASSMENT IN THE FIRST DEGREE AS DEFINED IN
SECTION 240.31 OF THE PENAL LAW.
2. A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL PENALTY
NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS.
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.