NY State Senate Bill S116A

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
In Committee
On Floor Calendar
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Delivered to Governor
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Actions

view actions (6)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2012	print number 116a
Jan 05, 2012	amend and recommit to judiciary
Jan 04, 2012	referred to judiciary
Mar 31, 2011	committee discharged and committed to judiciary
Feb 22, 2011	notice of committee consideration - requested
Jan 05, 2011	referred to codes

Bill Amendments

Original

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Original

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S116 - Details

Current Committee:: Senate Judiciary
Law Section:: Penal Law
Laws Affected:: Amd generally, Pen L; amd §168-a, Cor L; amd §§60.42, 160.10 & 380.50, CP L; amd §§61, 62 & 64, Civ Rts L; amd §995, Exec L; amd §344.4, Fam Ct Act; amd §10.03, Ment Hyg L; amd §353, Mult Dwell L; amd §§2302 & 2324-a, Pub Health L; amd §715, RPAP L; amd §231, RP L; amd §509-cc, V & T L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1986
2013-2014: S559
2015-2016: S112
2017-2018: S4937, S8702

S116 - Summary

Relates to prostitution offenses; creates the new crimes of unlawful prostitution and sexual exploitation of a child.

S116 - Sponsor Memo

BILL NUMBER:S116

TITLE OF BILL:

An act
to amend the penal law, the correction law, the criminal procedure law,
the civil rights law, the executive law, the family court act, the
mental hygiene law, the multiple dwelling law, the public health law,
the real property actions and proceedings law, the real property law and
the vehicle and traffic law, in relation to prostitution offenses and
creating the crime of sexual exploitation of a child

PURPOSE:

The purpose of this bill is to protect children, especially runaway
kids who are being turned into sex slaves by parents, pimps and other
abusive adults. The bill would ensure that anyone engaging in sexual
conduct for a fee with a child, who by law is incapable of consenting
to sexual conduct, is punished to the same extent as a person who is
charged under current New York law dealing with statutory rape. The
bill also provides any sixteen year old child who engages in sexual
conduct for a fee and who is a first-time offender with a one-time
non-criminal disposition for any charge of prostitution.

SUMMARY OF PROVISIONS:

Section 1 of the bill defines the crime of criminal prostitution. Any
person who is lawfully able to consent to sexual conduct, who engages
in such sexual conduct for a fee is guilty of a class B Misdemeanor.

Section 2 of the bill defines Unlawful prostitution. Any person who is
less than the age of seventeen, the age of legal consent to sexual
conduct, would be guilty of unlawful prostitution, if such person
engages in sexual conduct for a fee. A first offense would be a
violation, subsequent offenses by sixteen year olds engaging in
prostitution would match the penalty imposed for seventeen year old
children and other adults who engage in prostitution.

Section 3 of the bill amends sections 230.05 and 230.06 of the Penal
Law in order to conform the age of the person being patronized and
the penalties for patronizing such under aged children with the
penalties contained in Article 130 of the Penal Law relative to
statutory rape.

Section 4 of the bill creates the crime of sexual exploitation of a
child. Similar to rape in the first degree and associated sexual
conduct involving children ten years old and less as well as certain
children aged eleven and twelve, a person patronizing such under aged
children would be guilty of a class B felony.

Section 5 of the bill would shift the burden to the defendant who
engaged in the sexual conduct with the under aged person to show, by
a preponderance of the evidence, that the defendant did not have
reasonable grounds to believe that the person was less than the age
specified.


Sections 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27 and 28 are technical amendments.

Section 7 of the bill provides an affirmative defense for a victim of
sex trafficking to a charge of unlawful prostitution or criminal
prostitution.

Section 8 of this bill would increase the penalty for a person who
advances or profits from prostitution of a sixteen year old minor.

Section 9 of this bill would increase the penalty for a person who by
force or intimidation compels a sixteen year old minor to engage in
prostitution.

Section 15 of this bill provides that unlawful prostitution is a
finger-printable offense.

Section 29 Effective Date

EXISTING LAW:

Under existing law persons sixteen years and older, who engage in
sexual conduct for a fee, are guilty of a class B misdemeanor. The
law does not distinguish between actors who are capable of consent to
sexual conduct and those who are not.

Under current law a person who patronizes a prostitute, i.e., pays a
fee to engage in sexual conduct is guilty of a class A misdemeanor.
Also under current law, any person, including a sixteen year old, who
engages in sexual conduct with a minor aged sixteen or younger is
guilty of sexual misconduct, a class A misdemeanor.

Under current law an actor 21 years old or more who engages in sexual
conduct with a person under the age of seventeen is guilty of a class
E felony. If this same individual pays a fee to engage in sexual
conduct with a fourteen, fifteen or sixteen year old child, the
person is only guilty of a class A misdemeanor.

Under current law, if the actor is eighteen years of age or older and
engages in sexual conduct with a person under the age of fifteen the
person is guilty of a class D felony. If this same person pays a fee
to engage in sexual conduct with a fourteen or thirteen year old
child, the person is only guilty of a class E felony.

In addition, under current law it is a B felony for anyone eighteen
years of age or over to engage in sexual conduct with a twelve or
eleven year old and for anyone criminally responsible to engage in
sexual conduct with a child ten years old or younger. However under
current law if someone aged eighteen years or older pays a fee to
engage in sexual conduct with a twelve or eleven year old child, the
person is only guilty of a class E felony. A person who pays a fee to
engage in sexual conduct with a child ten years old or younger is
only guilty of a class D felony.

Under current law a pimp or other person aiding a sixteen or seventeen
year old minor to engage in prostitution is guilty of a class D


felony. Current law makes this activity a class C felony for aiding
children fifteen or younger to engage in prostitution.

Under current law a person who by force or intimidation compels
someone fifteen years old or younger to engage in prostitution is
guilty of a class B felony.

JUSTIFICATION:

Current laws governing statutory rape of a minor child and
prostitution by a minor child are at odds. A minor child under the
age of eighteen who accepts money or other valuable consideration in
exchange for sex is treated just like an adult and charged as a
criminal. At the same time, the penal law makes it a crime to engage
in sex with a minor under the age of seventeen. Common sense dictates
that children, who as a matter of law are incapable of consent to
sexual intercourse or anal or oral sexual conduct are actually
victims of sexual abuse by virtue of their age. Testimony elicited at
a March 2007 Assembly Children and Family Committee sponsored
roundtable on sexually exploited children drew attention to this
anomaly in state law.

Individuals who engage in criminal sexual conduct with children should
not face lesser sentences because they paid for the criminal conduct.
Nor should pimps and other criminal sex abusers receive lesser
punishment because the minor being sold for sex or forced into such
activity is sixteen years old. Sixteen year olds are incapable of
consent to sexual conduct as a matter of law and are victims. They
deserve the same protections other minor children receive from pimps
and other criminal sex abusers.

In addition, the law should make distinctions between children who are
incapable of consent as a matter of law and others who can consent to
sexual conduct. At the same time, recognizing that the law should not
encourage minors under the age of seventeen to engage in sexual
conduct and that criminally culpable minors ought to bear some
responsibility for engaging in illegal activity, prostitution by
criminally culpable minors should continue to be proscribed by the
penal law.

In an effort to balance the twin goals of protecting children from
sexual exploitation at the hands of pimps and persons patronizing
these children as prostitutes and discouraging children from engaging
in sexual conduct for money or other valuable consideration, a
reduced penalty is proposed for minors, who are a matter of law are
incapable of consent to sexual conduct but who engage in this
activity in exchange for money or other valuable consideration.
Repeat offenders would be subject to the same penalties as under
current law.

LEGISLATIVE HISTORY:

2009-10:  S.1986 - Referred to Codes/A.3202 - Referred to Codes
2007-08:  S.5455A - Advanced to Third Reading/A.7426A - Amended and
Recommitted to Codes

FISCAL IMPLICATIONS:


None to the State.

LOCAL FISCAL IMPLICATIONS:

Some reduction in local incarceration and probation costs can be
expected. In addition a minor reduction in family court and juvenile
detention expenditures may occur.

EFFECTIVE DATE:

Ninety days next succeeding the day it shall have become a law.

S116 - Bill Text download pdf

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

                                   116

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, the correction law, the  criminal  proce-
  dure  law,  the  civil rights law, the executive law, the family court
  act, the mental hygiene law, the multiple  dwelling  law,  the  public
  health  law,  the  real property actions and proceedings law, the real
  property law and the vehicle and traffic law, in relation to prostitu-
  tion offenses and creating the crime of sexual exploitation of a child

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

  Section  1. Section 230.00 of the penal law, as amended by chapter 169
of the laws of 1969, is amended to read as follows:
S 230.00 [Prostitution] CRIMINAL PROSTITUTION.
  A person is guilty of  CRIMINAL  prostitution  when,  BEING  SEVENTEEN
YEARS  OLD OR MORE, such person engages or agrees or offers to engage in
sexual conduct with another person in return for a fee.
  [Prostitution] CRIMINAL PROSTITUTION is a class B Misdemeanor.
  S 2. The penal law is amended by adding a new section 230.01  to  read
as follows:
S 230.01 UNLAWFUL PROSTITUTION.
  A  PERSON  IS  GUILTY  OF  UNLAWFUL PROSTITUTION WHEN, BEING LESS THAN
SEVENTEEN YEARS OLD, SUCH PERSON ENGAGES OR AGREES OR OFFERS  TO  ENGAGE
IN SEXUAL CONDUCT WITH ANOTHER PERSON IN RETURN FOR A FEE.
  UNLAWFUL  PROSTITUTION  IS  A  VIOLATION,  PROVIDED, HOWEVER, THAT ANY
PERSON WHO HAS PREVIOUSLY BEEN CONVICTED OF  A  CRIME  DEFINED  IN  THIS
ARTICLE  OR  SECTION  240.37  OF  THIS PART SHALL BE GUILTY OF A CLASS B
MISDEMEANOR.
  S 3. Sections 230.05 and 230.06 of the penal law, as added by  chapter
627 of the laws of 1978, are amended to read as follows:
S 230.05 Patronizing a prostitute in the second degree.

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

                                                           LBD02217-01-1

S. 116                              2

  A  person  is  guilty of patronizing a prostitute in the second degree
when, being [over eighteen] TWENTY-ONE years of age OR MORE, he  patron-
izes  a  prostitute  and  the  person patronized is less than [fourteen]
SEVENTEEN years of age.
  Patronizing a prostitute in the second degree is a class E felony.
S 230.06 Patronizing a prostitute in the first degree.
  A  person  is  guilty  of patronizing a prostitute in the first degree
when, BEING EIGHTEEN YEARS OF AGE OR MORE, he  patronizes  a  prostitute
and the person patronized is less than [eleven] FIFTEEN years of age.
  Patronizing a prostitute in the first degree is a class D felony.
  S 4. The penal law is amended by adding a new section 230.06-a to read
as follows:
S 230.06-A SEXUAL EXPLOITATION OF A CHILD.
  A PERSON IS GUILTY OF SEXUAL EXPLOITATION OF A CHILD WHEN:
  1.  BEING EIGHTEEN YEARS OF AGE OR MORE HE PATRONIZES A PROSTITUTE AND
THE PERSON PATRONIZED IS LESS THAN THIRTEEN YEARS OF AGE; OR
  2. HE PATRONIZES A PROSTITUTE AND THE PERSON PATRONIZED IS  LESS  THAN
ELEVEN YEARS OF AGE.
  SEXUAL EXPLOITATION OF A CHILD IS A CLASS B FELONY.
  S  5. Section 230.07 of the penal law, as amended by chapter 74 of the
laws of 2007, is amended to read as follows:
S 230.07 Patronizing a prostitute; defense.
  In any prosecution for patronizing a prostitute in the first or second
degrees OR SEXUAL EXPLOITATION OF A CHILD,  it  is  [a]  AN  AFFIRMATIVE
defense  that  the  defendant did not have reasonable grounds to believe
that the person was less than the age specified.
  S 6. The opening paragraph of section  230.10  of  the  penal  law  is
amended to read as follows:
  In any prosecution for SEXUAL EXPLOITATION OF A CHILD, prostitution or
patronizing  a  prostitute,  the  sex  of the two parties or prospective
parties to the sexual conduct engaged in, contemplated or  solicited  is
immaterial, and it is no defense that:
  S  7.  The penal law is amended by adding a new section 230.11 to read
as follows:
S 230.11 PROSTITUTION; DEFENSE.
  IN ANY PROSECUTION FOR UNLAWFUL PROSTITUTION OR CRIMINAL PROSTITUTION,
IT IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT IS A VICTIM OF SEX TRAF-
FICKING.
  S 8. Subdivision 2 of section 230.30 of the penal law, as  amended  by
chapter 627 of the laws of 1978, is amended to read as follows:
  2.  Advances  or  profits  from  prostitution  of  a  person less than
[sixteen] SEVENTEEN years old.
  S 9. Section 230.33 of the penal law, as added by chapter 450  of  the
laws of 2005, is amended to read as follows:
S 230.33 Compelling prostitution.
  A  person  is guilty of compelling prostitution when, being twenty-one
years of age or older, he or  she  knowingly  advances  prostitution  by
compelling a person less than [sixteen] SEVENTEEN years old, by force or
intimidation, to engage in prostitution.
  Compelling prostitution is a class B felony.
  S  10.  Subdivision  2 of section 240.37 of the penal law, as added by
chapter 344 of the laws of 1976, is amended to read as follows:
  2. Any person who remains or wanders  about  in  a  public  place  and
repeatedly  beckons  to,  or repeatedly stops, or repeatedly attempts to
stop, or repeatedly attempts to engage passers-by  in  conversation,  or
repeatedly  stops  or  attempts  to  stop  motor vehicles, or repeatedly

S. 116                              3

interferes with the free passage of other persons, for  the  purpose  of
prostitution,  or of patronizing a prostitute as those terms are defined
in article two hundred thirty of [the penal law] THIS CHAPTER, shall  be
guilty  of  a  violation  and is guilty of a class B misdemeanor if such
person has previously been convicted of a violation of this  section  or
of  [sections]  SECTION 230.00, 230.01 or 230.05 of [the penal law] THIS
PART.
  S 11. Section 60.13 of the penal law, as added by  chapter  7  of  the
laws of 2007, is amended to read as follows:
S 60.13 Authorized dispositions; felony sex offenses.
  When  a  person  is  to  be sentenced upon a conviction for any felony
defined in article one hundred thirty of this chapter, including a sexu-
ally motivated felony, or patronizing a prostitute in the  first  degree
as  defined  in section 230.06 of this chapter, SEXUAL EXPLOITATION OF A
CHILD AS DEFINED IN SECTION 230.06-A OF  THIS  CHAPTER,  incest  in  the
second degree as defined in section 255.26 of this chapter, or incest in
the  first  degree  as  defined  in section 255.27 of this chapter, or a
felony attempt or conspiracy to commit any of these  crimes,  the  court
must sentence the defendant in accordance with the provisions of section
70.80 of this title.
  S  12.  Paragraph  (a)  of subdivision 1 of section 70.80 of the penal
law, as added by chapter 7 of the laws of 2007, is amended  to  read  as
follows:
  (a)  For  the purposes of this section, a "felony sex offense" means a
conviction of any felony defined in article one hundred thirty  of  this
chapter, including a sexually motivated felony, or patronizing a prosti-
tute  in  the first degree as defined in section 230.06 of this chapter,
incest in the second degree as defined in section 255.26 of  this  chap-
ter,  SEXUAL  EXPLOITATION  OF A CHILD AS DEFINED IN SECTION 230.06-A OF
THIS CHAPTER, or incest in the first degree as defined in section 255.27
of this chapter, or a felony attempt or conspiracy to commit any of  the
above.
  S  13.  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, 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 seventeen years
of  age,  230.05 [or], 230.06 OR 230.06-A, or subdivision two of section
230.30, or section 230.32 or 230.33 of the penal law, or
  S 14. Subdivision 2 of section 60.42 of the criminal procedure law, as
added by chapter 230 of the laws of 1975, is amended to read as follows:
  2. proves or tends to prove that the victim has been convicted  of  an
offense  under  section  230.00  OR 230.01 of the penal law within three
years prior to the sex offense which is the subject of the  prosecution;
or
  S 15. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
procedure law, as amended by chapter 232 of the laws of 2010, is amended
and a new paragraph (e) is added to read as follows:
  (d)    Loitering for the purpose of engaging in a prostitution offense
as defined in subdivision two of section 240.37 of the penal law[.]; OR

S. 116                              4

  (E) UNLAWFUL PROSTITUTION AS DEFINED IN SECTION 230.01  OF  THE  PENAL
LAW.
  S  16.  Subdivision 6 of section 380.50 of the criminal procedure law,
as amended by chapter 320 of the laws of 2006, is  amended  to  read  as
follows:
  6.  Regardless of whether the victim requests to make a statement with
regard to the defendant's sentence, where the defendant is sentenced for
a violent felony offense as defined in section 70.02 of the penal law or
a felony defined in article one hundred twenty-five of such law  or  any
of the following provisions of such law sections 130.25, 130.30, 130.40,
130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
135.25,  230.05,  230.06, 230.06-A, subdivision two of section 230.30 or
230.32, the prosecutor shall, within sixty days  of  the  imposition  of
sentence,  provide  the victim with a form on which the victim may indi-
cate a demand to be informed of any petition to change the name of  such
defendant.    Such  forms  shall  be maintained by such prosecutor. Upon
receipt of a notice of a petition to change the name of any such defend-
ant, pursuant to subdivision two  of  section  sixty-two  of  the  civil
rights  law, the prosecutor shall promptly notify the victim at the most
current address or telephone number provided by such victim in the  most
reasonable  and  expedient  possible  manner  of the time and place such
petition will be presented to the court.
  S 17. Subdivision 2 of section 61 of the civil rights law, as  amended
by chapter 320 of the laws of 2006, is amended to read as follows:
  2.  If  the petitioner stands convicted of a violent felony offense as
defined in section 70.02 of the penal law or a felony defined in article
one hundred twenty-five of such law or any of the  following  provisions
of  such  law  sections  130.25, 130.30, 130.40, 130.45, 255.25, 255.26,
255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06,
230.06-A, subdivision two of section 230.30 or 230.32, and is  currently
confined  as  an  inmate in any correctional facility or currently under
the supervision of the state division of parole or  a  county  probation
department  as  a result of such conviction, the petition shall for each
such conviction  specify  such  felony  conviction,  the  date  of  such
conviction  or  convictions,  and  the court in which such conviction or
convictions were entered.
  S 18. Subdivision 2 of section 62 of the civil rights law, as  amended
by chapter 320 of the laws of 2006, is amended to read as follows:
  2.  If  the  petition  be  to  change  the  name of a person currently
confined as an inmate in any correctional facility  or  currently  under
the  supervision  of  the state division of parole or a county probation
department as a result of a conviction for a violent felony  offense  as
defined in section 70.02 of the penal law or a felony defined in article
one  hundred  twenty-five of such law or any of the following provisions
of such law sections 130.25, 130.30,  130.40,  130.45,  255.25,  255.26,
255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06,
230.06-A,  subdivision  two  of  section 230.30 or 230.32, notice of the
time and place when and where the petition will be  presented  shall  be
served,  in  like  manner as a notice of a motion upon an attorney in an
action, upon the district attorney of every county in which such  person
has  been convicted of such felony and upon the court or courts in which
the sentence for such felony was entered. Unless  a  shorter  period  of
time is ordered by the court, said notice shall be served upon each such
district  attorney and court or courts not less than sixty days prior to
the date on which such petition is noticed to be heard.

S. 116                              5

  S 19. The closing paragraph of section 64 of the civil rights law,  as
separately  amended by chapters 258, 320 and 481 of the laws of 2006, is
amended to read as follows:
  Upon  compliance with the order and the filing of the affidavit of the
publication, as provided in this section, the  clerk  of  the  court  in
which  the  order has been entered shall certify that the order has been
complied with; and, if the petition states that  the  petitioner  stands
convicted of a violent felony offense as defined in section 70.02 of the
penal law or a felony defined in article one hundred twenty-five of such
law  or  any  of  the  following provisions of such law sections 130.25,
130.30, 130.40, 130.45, 255.25,  255.26,  255.27,  article  two  hundred
sixty-three,  135.10,  135.25, 230.05, 230.06, 230.06-A, subdivision two
of section 230.30 or 230.32, such clerk  (1)  shall  deliver,  by  first
class  mail,  a copy of such certified order to the division of criminal
justice services at its office in the county of Albany and (2) upon  the
clerk  of  the  court  reviewing  the  petitioner's application for name
change and subsequent in-court inquiry, may, in the clerk's  discretion,
deliver, by first class mail, the petitioner's new name with such certi-
fied  order  to  the  court  of competent jurisdiction which imposed the
orders of support.   Such certification shall  appear  on  the  original
order  and  on  any  certified  copy thereof and shall be entered in the
clerk's minutes of the proceeding.
  S 20. 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; 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 interference 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 tamper-
ing 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; identity 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 degree, as defined in section 215.13 of the

S. 116                              6

penal law; criminal contempt in the first degree, as defined in subdivi-
sions (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; patronizing 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;  SEXUAL
EXPLOITATION  OF  A  CHILD,  AS DEFINED IN SECTION 230.06-A OF THE PENAL
LAW; promoting prostitution in the second degree, as defined in  section
230.30  of the penal law; promoting prostitution 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 surveil-
lance  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; endanger-
ing 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 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; possess-
ing 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 21. Subdivision 2 of section 344.4 of the family court act, as added
by chapter 761 of the laws of 1987, is amended to read as follows:
  2.  proves  or tends to prove that the victim has been convicted of an
offense under section 230.00 OR 230.01 of the  penal  law  within  three
years  prior  to  the  sex  offense which is the subject of the juvenile
delinquency proceeding; or
  S 22. Subdivision (p) of section 10.03 of the mental hygiene  law,  as
added by chapter 7 of the laws of 2007, is amended to read as follows:
  (p)  "Sex  offense"  means an act or acts constituting: (1) any felony
defined in article one hundred thirty of  the  penal  law,  including  a
sexually  motivated  felony;  (2)  patronizing a prostitute in the first
degree as defined in section 230.06 of the  penal  law,  incest  in  the
second  degree  as  defined  in  section 255.26 of the penal law, SEXUAL
EXPLOITATION OF A CHILD AS DEFINED IN SECTION 230.06-A OF THE PENAL LAW,
or incest in the first degree as defined in section 255.27 of the  penal
law;  (3)  a felony attempt or conspiracy to commit any of the foregoing

S. 116                              7

offenses set forth in this subdivision; or (4) a designated  felony,  as
defined  in  subdivision  (f) of this section, if sexually motivated and
committed prior to the effective date of this article.
  S  23.  Subdivision  2 of section 353 of the multiple dwelling law, as
amended by chapter 680 of the laws  of  1967,  is  amended  to  read  as
follows:
  2. If there be two or more convictions in such dwelling within a peri-
od  of  six  months, under sections 230.00, 230.01, 230.25, or 230.40 of
the penal law.
  S 24. Subdivision 1 of section 2302  of  the  public  health  law,  as
amended  by  chapter  680  of  the  laws  of 1967, is amended to read as
follows:
  1. Every person arrested charged with a violation of  section  230.00,
230.01  or  230.40  of  the penal law, or arrested for failure to comply
with the order of a judge or justice issued pursuant to  the  provisions
of  section  two  thousand three hundred one of this [chapter] TITLE, or
any person arrested for frequenting disorderly houses or houses of pros-
titution, shall be reported within twenty-four hours  by  the  court  or
magistrate before whom such person is arraigned to the health officer of
the  health district in which the alleged offense occurred, and shall be
examined in accordance with the provisions of section two thousand three
hundred of this [chapter] TITLE.
  S 25. Section 2324-a of the public health law, as amended  by  chapter
260 of the laws of 1978, is amended to read as follows:
  S 2324-a. Presumptive evidence. For the purposes of this title, two or
more  convictions  of  any person or persons had, within a period of one
year, for any of the  offenses  described  in  section  230.00,  230.01,
230.05, 230.20, 230.25 or 230.30 of the penal law arising out of conduct
engaged  in  at  the same real property consisting of a dwelling as that
term is defined in subdivision four of  section  four  of  the  multiple
dwelling  law  shall be presumptive evidence of conduct constituting use
of the premises for purposes of prostitution.
  S 26. Subdivision 2 of section 715 of the real  property  actions  and
proceedings law, as added by chapter 494 of the laws of 1976, is amended
to read as follows:
  2. For purposes of this section, two or more convictions of any person
or  persons  had,  within  a period of one year, for any of the offenses
described in section 230.00, 230.01, 230.05, 230.20, 230.25,  230.30  or
230.40  of  the  penal law arising out of conduct engaged in at the same
real property consisting of a dwelling as that term is defined in subdi-
vision four of section four  of  the  multiple  dwelling  law  shall  be
presumptive  evidence  of  conduct  constituting use of the premises for
purposes of prostitution.
  S 27. Subdivision 3 of section  231  of  the  real  property  law,  as
amended  by  chapter  203  of  the  laws  of 1980, is amended to read as
follows:
  3. For the purposes of this section, two or more  convictions  of  any
person  or  persons  had,  within  a  period of one year, for any of the
offenses described in section 230.00, 230.01,  230.05,  230.20,  230.25,
230.30,  or 230.40 of the penal law arising out of conduct engaged in at
the same premises consisting of a dwelling as that term  is  defined  in
subdivision  four  of section four of the multiple dwelling law shall be
presumptive evidence of unlawful use of such premises and of the  owners
knowledge of the same.

S. 116                              8

  S  28. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 405  of  the  laws  of  2010,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five
years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.13,  125.14, 125.40, 125.45, 130.20, 130.25, 130.55, 135.10, 135.55,
140.17, 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10,  220.06,
220.09,  220.16, 220.31, 220.34, 220.60, 221.30, 221.50, 221.55, 230.00,
230.01,  230.05,  230.06,  230.06-A,  230.20,  230.25,  230.30,  230.32,
235.05,  235.06, 235.07, 235.21, 240.06, 245.00, 260.10, subdivision two
of section 260.20 and sections 260.25, 265.02, 265.03,  265.08,  265.09,
265.10,  265.12,  265.35 of the penal law or an attempt to commit any of
the aforesaid offenses under section 110.00 of the  penal  law,  or  any
similar  offenses  committed under a former section of the penal law, or
any offenses committed under a former section of  the  penal  law  which
would  constitute violations of the aforesaid sections of the penal law,
or any offenses committed outside  this  state  which  would  constitute
violations of the aforesaid sections of the penal law.
  S  29.  This act shall take effect on the ninetieth day after it shall
have become a law.

S116A (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Penal Law
Laws Affected:: Amd generally, Pen L; amd §168-a, Cor L; amd §§60.42, 160.10 & 380.50, CP L; amd §§61, 62 & 64, Civ Rts L; amd §995, Exec L; amd §344.4, Fam Ct Act; amd §10.03, Ment Hyg L; amd §353, Mult Dwell L; amd §§2302 & 2324-a, Pub Health L; amd §715, RPAP L; amd §231, RP L; amd §509-cc, V & T L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1986
2013-2014: S559
2015-2016: S112
2017-2018: S4937, S8702

S116A (ACTIVE) - Summary

Relates to prostitution offenses; creates the new crimes of unlawful prostitution and sexual exploitation of a child.

S116A (ACTIVE) - Sponsor Memo

BILL NUMBER:S116A

TITLE OF BILL:

An act
to amend the penal law, the correction law, the criminal procedure law,
the civil rights law, the executive law, the family court act, the
mental hygiene law, the multiple dwelling law, the public health law,
the real property actions and proceedings law, the real property law and
the vehicle and traffic law, in relation to prostitution offenses and
creating the crime of sexual exploitation of a child

PURPOSE:

The purpose of this bill is to protect children, especially runaway
kids who are being turned into sex slaves by parents, pimps and other
abusive adults. The bill would ensure that anyone engaging in sexual
conduct for a fee with a child, who by law is incapable of consenting
to sexual conduct, is punished to the same extent as a person who is
charged under current New York law dealing with statutory rape. The
bill also provides any sixteen year old child who engages in sexual
conduct for a fee and who is a first-time offender with a one-time
non-criminal disposition for any charge of prostitution.

SUMMARY OF PROVISIONS:

Section 1 Amends Section 230 of the Penal Law. Defines criminal
prostitution. Any person who is lawfully able to consent to sexual
conduct, who engages in such sexual conduct for a fee is guilty of a
class B Misdemeanor.

Section 2 Amends the Penal Law by adding a new section 230.01. Defines
unlawful prostitution. Any person who is less than the age of
seventeen, the age of legal consent to sexual conduct, would be
guilty of unlawful prostitution, if such person engages in sexual
conduct for a fee. A first offense would be a violation, subsequent
offenses by sixteen year olds engaging in prostitution would match
the penalty imposed for seventeen year old children and other adults
who engage in prostitution.

Section 3 Amends sections 230.05 and 230.06 of the Penal Law in order
to conform the age of the person being patronized and the penalties
for patronizing such under aged children with the penalties contained
in Article 130 of the Penal Law relative to statutory rape.

Section 4 Amends the Penal Law by adding a new section 230.06-a.
Creates the crime of sexual exploitation of a child. Similar to rape
in the first degree and associated sexual conduct involving children
ten years old and less as well as certain children aged eleven and
twelve, a person patronizing such under aged children would be guilty
of a class B felony.

Section 5 Amends section 230.07 of the Penal law. Shifts the burden to
the defendant who engaged in the sexual conduct with the under aged
person to show, by a preponderance of the evidence, that the


defendant did not have reasonable grounds to believe that the person
was less than the age specified.

Sections 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27 and 28 are technical amendments.

Section 7 Amends the Penal Law by adding a new section 230.11.
Provides an affirmative defense for a victim of sex trafficking to a
charge of unlawful prostitution or criminal prostitution.

Section 8 Amends the Penal Law, subdivision two, section 230.03.
Increases the penalty for a person who advances or profits from
prostitution of a sixteen year old minor.

Section 9 Amends the Penal Law, section 230.33. Increases the penalty
for a person who by force or intimidation compels a sixteen year old
minor to engage in prostitution.

Section 15 Amends paragraph (d) of subdivision 1 of section 160.10 and
adds a new paragraph (e). Provides that unlawful prostitution is a
finger-printable offense.

Section 29 Effective Date

EXISTING LAW:

Under existing law persons sixteen years and older, who engage in
sexual conduct for a fee, are guilty of a class B misdemeanor. The
law does not distinguish between actors who are capable of consent to
sexual conduct and those who are not.

Under current law a person who patronizes a prostitute, i.e., pays a
fee to engage in sexual conduct is guilty of a class A misdemeanor.
Also under current law, any person, including a sixteen year old, who
engages in sexual conduct with a minor aged sixteen or younger is
guilty of sexual misconduct, a class A misdemeanor.

Under current law an actor 21 years old or more who engages in sexual
conduct with a person under the age of seventeen is guilty of a class
E felony. If this same individual pays a fee to engage in sexual
conduct with a fourteen, fifteen or sixteen year old child, the person
is only guilty of a class A misdemeanor.

Under current law, if the actor is eighteen years of age or older and
engages in sexual conduct with a person under the age of fifteen the
person is guilty of a class D felony. If this same person pays a fee
to engage in sexual conduct with a fourteen or thirteen year old
child, the person is only guilty of a class E felony.

In addition, under current law it is a B felony for anyone eighteen
years of age or over to engage in sexual conduct with a twelve or
eleven year old and for anyone criminally responsible to engage in
sexual conduct with a child ten years old or younger. However under
current law if someone aged eighteen years or older pays a fee to
engage in sexual conduct with a twelve or eleven year old child, the
person is only guilty of a class E felony. A person who pays a fee to


engage in sexual conduct with a child ten years old or younger is
only guilty of a class D felony.

Under current law a pimp or other person aiding a sixteen or seventeen
year old minor to engage in prostitution is guilty of a class D
felony. Current law makes this activity a class C felony for aiding
children fifteen or younger to engage in prostitution.

Under current law a person who by force or intimidation compels
someone fifteen years old or younger to engage in prostitution is
guilty of a class B felony.

JUSTIFICATION:

Current laws governing statutory rape of a minor child and
prostitution by a minor child are at odds. A minor child under the
age of eighteen who accepts money or other valuable consideration in
exchange for sex is treated just like an adult and charged as a
criminal. At the same time, the penal law makes it a crime to engage
in sex with a minor under the age of seventeen. Common sense dictates
that children, who as a matter of law are incapable of consent to
sexual intercourse or anal or oral sexual conduct are actually
victims of sexual abuse by virtue of their age. Testimony elicited at
a March 2007 Assembly Children and Family Committee sponsored
roundtable on sexually exploited children drew attention to this
anomaly in state law.

Individuals who engage in criminal sexual conduct with children should
not face lesser sentences because they paid for the criminal conduct.
Nor should pimps and other criminal sex abusers receive lesser
punishment because the minor being sold for sex or forced into such
activity is sixteen years old. Sixteen year olds are incapable of
consent to sexual conduct as it matter of law and are victims. They
deserve the same protections other minor children receive from pimps
and other criminal sex abusers.

In addition, the law should make distinctions between children who are
incapable of consent as a matter of law and others who can consent to
sexual conduct. At the same time, recognizing that the law should not
encourage minors under the age of seventeen to engage in sexual
conduct and that criminally culpable minors ought to bear some
responsibility for engaging in illegal activity, prostitution by
criminally culpable minors should continue to be proscribed by the
penal law.

In an effort to balance the twin goals of protecting children from
sexual exploitation at the hands of pimps and persons patronizing
these children as prostitutes and discouraging children from engaging
in sexual conduct for money or other valuable consideration, a
reduced penalty is proposed for minors, who are a matter of law are
incapable of consent to sexual conduct but who engage in this
activity in exchange for money or other valuable consideration.
Repeat offenders would be subject to the same penalties as under
current law.

LEGISLATIVE HISTORY:


2011:    S.116 - Discharged from Codes and Committed to Judiciary
2009-10: S.1986 Referred to Codes/A.3202 - Referred to Codes
2007-07: S.5455A - Advanced to Third Reading/A.7426A -
         Amended and Recommitted to Codes

FISCAL IMPLICATIONS:

None to the State.

LOCAL FISCAL IMPLICATIONS:

Some reduction in local incarceration and probation costs can be
expected. In addition a minor reduction in family court and juvenile
detention expenditures may occur.

EFFECTIVE DATE:

Ninety days next succeeding the day it shall have become a law.

S116A (ACTIVE) - Bill Text download pdf

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

                                 116--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the penal law, the correction law, the  criminal  proce-
  dure  law,  the  civil rights law, the executive law, the family court
  act, the mental hygiene law, the multiple  dwelling  law,  the  public
  health  law,  the  real property actions and proceedings law, the real
  property law and the vehicle and traffic law, in relation to prostitu-
  tion offenses and creating the crime of sexual exploitation of a child

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

  Section  1. Section 230.00 of the penal law, as amended by chapter 169
of the laws of 1969, is amended to read as follows:
S 230.00 [Prostitution] CRIMINAL PROSTITUTION.
  A person is guilty of  CRIMINAL  prostitution  when,  BEING  SEVENTEEN
YEARS  OLD OR MORE, such person engages or agrees or offers to engage in
sexual conduct with another person in return for a fee.
  [Prostitution] CRIMINAL PROSTITUTION is a class B Misdemeanor.
  S 2. The penal law is amended by adding a new section 230.01  to  read
as follows:
S 230.01 UNLAWFUL PROSTITUTION.
  A  PERSON  IS  GUILTY  OF  UNLAWFUL PROSTITUTION WHEN, BEING LESS THAN
SEVENTEEN YEARS OLD, SUCH PERSON ENGAGES OR AGREES OR OFFERS  TO  ENGAGE
IN SEXUAL CONDUCT WITH ANOTHER PERSON IN RETURN FOR A FEE.
  UNLAWFUL  PROSTITUTION  IS  A  VIOLATION,  PROVIDED, HOWEVER, THAT ANY
PERSON WHO HAS PREVIOUSLY BEEN CONVICTED OF  A  CRIME  DEFINED  IN  THIS
ARTICLE  OR  SECTION  240.37  OF  THIS PART SHALL BE GUILTY OF A CLASS B
MISDEMEANOR.

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

                                                           LBD02217-02-1

S. 116--A                           2

  S 3. Sections 230.05 and 230.06 of the penal law, as added by  chapter
627 of the laws of 1978, are amended to read as follows:
S 230.05 Patronizing a prostitute in the second degree.
  A  person  is  guilty of patronizing a prostitute in the second degree
when, being [over eighteen] TWENTY-ONE years of age OR MORE, he  patron-
izes  a  prostitute  and  the  person patronized is less than [fourteen]
SEVENTEEN years of age.
  Patronizing a prostitute in the second degree is a class E felony.
S 230.06 Patronizing a prostitute in the first degree.
  A person is guilty of patronizing a prostitute  in  the  first  degree
when,  BEING  EIGHTEEN  YEARS OF AGE OR MORE, he patronizes a prostitute
and the person patronized is less than [eleven] FIFTEEN years of age.
  Patronizing a prostitute in the first degree is a class D felony.
  S 4. The penal law is amended by adding a new section 230.06-a to read
as follows:
S 230.06-A SEXUAL EXPLOITATION OF A CHILD.
  A PERSON IS GUILTY OF SEXUAL EXPLOITATION OF A CHILD WHEN:
  1. BEING EIGHTEEN YEARS OF AGE OR MORE HE PATRONIZES A PROSTITUTE  AND
THE PERSON PATRONIZED IS LESS THAN THIRTEEN YEARS OF AGE; OR
  2.  HE  PATRONIZES A PROSTITUTE AND THE PERSON PATRONIZED IS LESS THAN
ELEVEN YEARS OF AGE.
  SEXUAL EXPLOITATION OF A CHILD IS A CLASS B FELONY.
  S 5. Section 230.07 of the penal law, as amended by chapter 74 of  the
laws of 2007, is amended to read as follows:
S 230.07 Patronizing a prostitute; defense.
  In any prosecution for patronizing a prostitute in the first or second
degrees  OR  SEXUAL  EXPLOITATION  OF  A CHILD, it is [a] AN AFFIRMATIVE
defense that the defendant did not have reasonable  grounds  to  believe
that the person was less than the age specified.
  S  6.  The  opening  paragraph  of  section 230.10 of the penal law is
amended to read as follows:
  In any prosecution for SEXUAL EXPLOITATION OF A CHILD, prostitution or
patronizing a prostitute, the sex of  the  two  parties  or  prospective
parties  to  the sexual conduct engaged in, contemplated or solicited is
immaterial, and it is no defense that:
  S 7. The penal law is amended by adding a new section 230.11  to  read
as follows:
S 230.11 PROSTITUTION; DEFENSE.
  IN ANY PROSECUTION FOR UNLAWFUL PROSTITUTION OR CRIMINAL PROSTITUTION,
IT IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT IS A VICTIM OF SEX TRAF-
FICKING.
  S  8.  Subdivision 2 of section 230.30 of the penal law, as amended by
chapter 627 of the laws of 1978, is amended to read as follows:
  2. Advances or  profits  from  prostitution  of  a  person  less  than
[sixteen] SEVENTEEN years old.
  S  9.  Section 230.33 of the penal law, as added by chapter 450 of the
laws of 2005, is amended to read as follows:
S 230.33 Compelling prostitution.
  A person is guilty of compelling prostitution when,  being  twenty-one
years  of  age  or  older,  he or she knowingly advances prostitution by
compelling a person less than [sixteen] SEVENTEEN years old, by force or
intimidation, to engage in prostitution.
  Compelling prostitution is a class B felony.
  S 10. Subdivision 2 of section 240.37 of the penal law,  as  added  by
chapter 344 of the laws of 1976, is amended to read as follows:

S. 116--A                           3

  2.  Any  person  who  remains  or  wanders about in a public place and
repeatedly beckons to, or repeatedly stops, or  repeatedly  attempts  to
stop,  or  repeatedly  attempts to engage passers-by in conversation, or
repeatedly stops or attempts  to  stop  motor  vehicles,  or  repeatedly
interferes  with  the  free passage of other persons, for the purpose of
prostitution, or of patronizing a prostitute as those terms are  defined
in  article two hundred thirty of [the penal law] THIS CHAPTER, shall be
guilty of a violation and is guilty of a class  B  misdemeanor  if  such
person  has  previously been convicted of a violation of this section or
of [sections] SECTION 230.00, 230.01 or 230.05 of [the penal  law]  THIS
PART.
  S  11.  Section  60.13  of the penal law, as added by chapter 7 of the
laws of 2007, is amended to read as follows:
S 60.13 Authorized dispositions; felony sex offenses.
  When a person is to be sentenced upon  a  conviction  for  any  felony
defined in article one hundred thirty of this chapter, including a sexu-
ally  motivated  felony, or patronizing a prostitute in the first degree
as defined in section 230.06 of this chapter, SEXUAL EXPLOITATION  OF  A
CHILD  AS  DEFINED  IN  SECTION  230.06-A OF THIS CHAPTER, incest in the
second degree as defined in section 255.26 of this chapter, or incest in
the first degree as defined in section 255.27  of  this  chapter,  or  a
felony  attempt  or  conspiracy to commit any of these crimes, the court
must sentence the defendant in accordance with the provisions of section
70.80 of this title.
  S 12. Paragraph (a) of subdivision 1 of section  70.80  of  the  penal
law,  as  added  by chapter 7 of the laws of 2007, is amended to read as
follows:
  (a) For the purposes of this section, a "felony sex offense"  means  a
conviction  of  any felony defined in article one hundred thirty of this
chapter, including a sexually motivated felony, or patronizing a prosti-
tute in the first degree as defined in section 230.06 of  this  chapter,
incest  in  the second degree as defined in section 255.26 of this chap-
ter, SEXUAL EXPLOITATION OF A CHILD AS DEFINED IN  SECTION  230.06-A  OF
THIS CHAPTER, or incest in the first degree as defined in section 255.27
of  this chapter, or a felony attempt or conspiracy to commit any of the
above.
  S 13. 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, 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 seventeen years
of age, 230.05 [or], 230.06 OR 230.06-A, or subdivision two  of  section
230.30, or section 230.32 or 230.33 of the penal law, or
  S 14. Subdivision 2 of section 60.42 of the criminal procedure law, as
added by chapter 230 of the laws of 1975, is amended to read as follows:
  2.  proves  or tends to prove that the victim has been convicted of an
offense under section 230.00 OR 230.01 of the  penal  law  within  three
years  prior to the sex offense which is the subject of the prosecution;
or

S. 116--A                           4

  S 15. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
procedure law, as amended by chapter 232 of the laws of 2010, is amended
and a new paragraph (e) is added to read as follows:
  (d)    Loitering for the purpose of engaging in a prostitution offense
as defined in subdivision two of section 240.37 of the penal law[.]; OR
  (E) UNLAWFUL PROSTITUTION AS DEFINED IN SECTION 230.01  OF  THE  PENAL
LAW.
  S  16.  Subdivision 6 of section 380.50 of the criminal procedure law,
as amended by chapter 320 of the laws of 2006, is  amended  to  read  as
follows:
  6.  Regardless of whether the victim requests to make a statement with
regard to the defendant's sentence, where the defendant is sentenced for
a violent felony offense as defined in section 70.02 of the penal law or
a felony defined in article one hundred twenty-five of such law  or  any
of the following provisions of such law sections 130.25, 130.30, 130.40,
130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
135.25,  230.05,  230.06, 230.06-A, subdivision two of section 230.30 or
230.32, the prosecutor shall, within sixty days  of  the  imposition  of
sentence,  provide  the victim with a form on which the victim may indi-
cate a demand to be informed of any petition to change the name of  such
defendant.    Such  forms  shall  be maintained by such prosecutor. Upon
receipt of a notice of a petition to change the name of any such defend-
ant, pursuant to subdivision two  of  section  sixty-two  of  the  civil
rights  law, the prosecutor shall promptly notify the victim at the most
current address or telephone number provided by such victim in the  most
reasonable  and  expedient  possible  manner  of the time and place such
petition will be presented to the court.
  S 17. Subdivision 2 of section 61 of the civil rights law, as  amended
by  section 54 of subpart B of part C of chapter 62 of the laws of 2011,
is amended to read as follows:
  2. If the petitioner stands convicted of a violent felony  offense  as
defined in section 70.02 of the penal law or a felony defined in article
one  hundred  twenty-five of such law or any of the following provisions
of such law sections 130.25, 130.30,  130.40,  130.45,  255.25,  255.26,
255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06,
230.06-A,  subdivision two of section 230.30 or 230.32, and is currently
confined as an inmate in any correctional facility  or  currently  under
the  supervision  of  the department of corrections and community super-
vision or a county probation department as a result of such  conviction,
the  petition  shall  for  each  such  conviction  specify  such  felony
conviction, the date of such conviction or convictions, and the court in
which such conviction or convictions were entered.
  S 18. Subdivision 2 of section 62 of the civil rights law, as  amended
by  section 55 of subpart B of part C of chapter 62 of the laws of 2011,
is amended to read as follows:
  2. If the petition be  to  change  the  name  of  a  person  currently
confined  as  an  inmate in any correctional facility or currently under
the supervision of the department of corrections  and  community  super-
vision  or a county probation department as a result of a conviction for
a violent felony offense as defined in section 70.02 of the penal law or
a felony defined in article one hundred twenty-five of such law  or  any
of the following provisions of such law sections 130.25, 130.30, 130.40,
130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
135.25,  230.05,  230.06,  230.06-A subdivision two of section 230.30 or
230.32, notice of the time and place when and where the petition will be
presented shall be served, in like manner as a notice of a  motion  upon

S. 116--A                           5

an  attorney in an action, upon the district attorney of every county in
which such person has been convicted of such felony and upon  the  court
or  courts  in  which the sentence for such felony was entered. Unless a
shorter  period  of  time  is ordered by the court, said notice shall be
served upon each such district attorney and court  or  courts  not  less
than  sixty  days prior to the date on which such petition is noticed to
be heard.
  S 19. The closing paragraph of section 64 of the civil rights law,  as
separately  amended by chapters 258, 320 and 481 of the laws of 2006, is
amended to read as follows:
  Upon compliance with the order and the filing of the affidavit of  the
publication,  as  provided  in  this  section, the clerk of the court in
which the order has been entered shall certify that the order  has  been
complied  with;  and,  if the petition states that the petitioner stands
convicted of a violent felony offense as defined in section 70.02 of the
penal law or a felony defined in article one hundred twenty-five of such
law or any of the following provisions  of  such  law  sections  130.25,
130.30,  130.40,  130.45,  255.25,  255.26,  255.27, article two hundred
sixty-three, 135.10, 135.25, 230.05, 230.06, 230.06-A,  subdivision  two
of  section  230.30  or  230.32,  such clerk (1) shall deliver, by first
class mail, a copy of such certified order to the division  of  criminal
justice  services at its office in the county of Albany and (2) upon the
clerk of the court  reviewing  the  petitioner's  application  for  name
change  and subsequent in-court inquiry, may, in the clerk's discretion,
deliver, by first class mail, the petitioner's new name with such certi-
fied order to the court of  competent  jurisdiction  which  imposed  the
orders  of  support.    Such  certification shall appear on the original
order and on any certified copy thereof and  shall  be  entered  in  the
clerk's minutes of the proceeding.
  S  20.  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;  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 interference 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  tamper-
ing  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; identity theft in the second degree,

S. 116--A                           6

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 degree, as defined in section 215.13 of  the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions  (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; patronizing 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;  SEXUAL
EXPLOITATION  OF  A  CHILD,  AS DEFINED IN SECTION 230.06-A OF THE PENAL
LAW; promoting prostitution in the second degree, as defined in  section
230.30  of the penal law; promoting prostitution 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 surveil-
lance  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; endanger-
ing 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 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; possess-
ing 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 21. Subdivision 2 of section 344.4 of the family court act, as added
by chapter 761 of the laws of 1987, is amended to read as follows:
  2.  proves  or tends to prove that the victim has been convicted of an
offense under section 230.00 OR 230.01 of the  penal  law  within  three
years  prior  to  the  sex  offense which is the subject of the juvenile
delinquency proceeding; or
  S 22. Subdivision (p) of section 10.03 of the mental hygiene  law,  as
added by chapter 7 of the laws of 2007, is amended to read as follows:

S. 116--A                           7

  (p)  "Sex  offense"  means an act or acts constituting: (1) any felony
defined in article one hundred thirty of  the  penal  law,  including  a
sexually  motivated  felony;  (2)  patronizing a prostitute in the first
degree as defined in section 230.06 of the  penal  law,  incest  in  the
second  degree  as  defined  in  section 255.26 of the penal law, SEXUAL
EXPLOITATION OF A CHILD AS DEFINED IN SECTION 230.06-A OF THE PENAL LAW,
or incest in the first degree as defined in section 255.27 of the  penal
law;  (3)  a felony attempt or conspiracy to commit any of the foregoing
offenses set forth in this subdivision; or (4) a designated  felony,  as
defined  in  subdivision  (f) of this section, if sexually motivated and
committed prior to the effective date of this article.
  S 23. Subdivision 2 of section 353 of the multiple  dwelling  law,  as
amended  by  chapter  680  of  the  laws  of 1967, is amended to read as
follows:
  2. If there be two or more convictions in such dwelling within a peri-
od of six months, under sections 230.00, 230.01, 230.25,  or  230.40  of
the penal law.
  S  24.  Subdivision  1  of  section  2302 of the public health law, as
amended by chapter 680 of the laws  of  1967,  is  amended  to  read  as
follows:
  1.  Every  person arrested charged with a violation of section 230.00,
230.01 or 230.40 of the penal law, or arrested  for  failure  to  comply
with  the  order of a judge or justice issued pursuant to the provisions
of section two thousand three hundred one of this  [chapter]  TITLE,  or
any person arrested for frequenting disorderly houses or houses of pros-
titution,  shall  be  reported  within twenty-four hours by the court or
magistrate before whom such person is arraigned to the health officer of
the health district in which the alleged offense occurred, and shall  be
examined in accordance with the provisions of section two thousand three
hundred of this [chapter] TITLE.
  S  25.  Section 2324-a of the public health law, as amended by chapter
260 of the laws of 1978, is amended to read as follows:
  S 2324-a. Presumptive evidence. For the purposes of this title, two or
more convictions of any person or persons had, within a  period  of  one
year,  for  any  of  the  offenses  described in section 230.00, 230.01,
230.05, 230.20, 230.25 or 230.30 of the penal law arising out of conduct
engaged in at the same real property consisting of a  dwelling  as  that
term  is  defined  in  subdivision  four of section four of the multiple
dwelling law shall be presumptive evidence of conduct  constituting  use
of the premises for purposes of prostitution.
  S  26.  Subdivision  2 of section 715 of the real property actions and
proceedings law, as added by chapter 494 of the laws of 1976, is amended
to read as follows:
  2. For purposes of this section, two or more convictions of any person
or persons had, within a period of one year, for  any  of  the  offenses
described  in  section 230.00, 230.01, 230.05, 230.20, 230.25, 230.30 or
230.40 of the penal law arising out of conduct engaged in  at  the  same
real property consisting of a dwelling as that term is defined in subdi-
vision  four  of  section  four  of  the  multiple dwelling law shall be
presumptive evidence of conduct constituting use  of  the  premises  for
purposes of prostitution.
  S  27.  Subdivision  3  of  section  231  of the real property law, as
amended by chapter 203 of the laws  of  1980,  is  amended  to  read  as
follows:
  3.  For  the  purposes of this section, two or more convictions of any
person or persons had, within a period of  one  year,  for  any  of  the

S. 116--A                           8

offenses  described  in  section 230.00, 230.01, 230.05, 230.20, 230.25,
230.30, or 230.40 of the penal law arising out of conduct engaged in  at
the  same  premises  consisting of a dwelling as that term is defined in
subdivision  four  of section four of the multiple dwelling law shall be
presumptive evidence of unlawful use of such premises and of the  owners
knowledge of the same.
  S  28. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 400  of  the  laws  of  2011,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five
years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.40,  125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06,  220.09,
220.16,  220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
230.01,  230.05,  230.06,  230.06-A,  230.20,  235.05,  235.06,  235.07,
235.21,  240.06,  245.00,  260.10, subdivision two of section 260.20 and
sections 260.25, 265.02, 265.03, 265.08, 265.09, 265.10, 265.12,  265.35
of  the  penal law or an attempt to commit any of the aforesaid offenses
under section 110.00 of the penal law, or any similar offenses committed
under a former section of the penal law, or any offenses committed under
a former section of the penal law which would constitute  violations  of
the  aforesaid  sections  of  the  penal  law, or any offenses committed
outside this state which would constitute violations  of  the  aforesaid
sections of the penal law.
  S  29.  This act shall take effect on the ninetieth day after it shall
have become a law.

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senate Bill S116A

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senate Bill S116A

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Ruben Diaz

Archive: Last Bill Status - In Senate Committee Judiciary Committee

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