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

                                 5226--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced by Sens. SALAND, ADAMS -- read twice and ordered printed, and
  when  printed to be committed to the Committee on Codes -- recommitted
  to the Committee on Codes 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 criminal procedure  law,  the  correction  law,  the
  penal  law,  the  arts  and cultural affairs law, the general business
  law, the labor law and the civil practice law and rules,  in  relation
  to  enacting the "child sexual abuse and exploitation prevention act";
  to amend the penal law, in relation to creating the crime of  criminal
  use  of encryption in the first and second degrees; to amend the penal
  law, the criminal procedure law, the civil rights law,  the  executive
  law, the family court act, the mental hygiene law, the multiple dwell-
  ing  law,  the  public health law, the alcoholic beverage control 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; to amend the
  penal law, in relation to computer sex crimes  against  children;  and
  repealing certain provisions of the penal law relating thereto

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

  Section 1. Short title. This act shall be known and may  be  cited  as
the "child sexual abuse and exploitation prevention act".
  S  2.  Legislative  intent.  The legislature hereby finds and declares
that the sexual abuse and exploitation of children is a continuing seri-
ous problem and  such  exploitation  is  being  aided  by  technological
advances that utilize the internet. The proliferation of child pornogra-
phy must be addressed through legislative means that supply law enforce-
ment  with  the tools needed to combat this problem, impose penalties on
those determined to abuse children and provide a  safe  environment  for
child victims.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04092-03-2
              

S. 5226--A                          2

  S  3. 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 4. 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 5. Section 190.30 of the criminal procedure law is amended by adding
a new subdivision 9 to read as follows:
  9. BUSINESS RECORDS MAY BE  RECEIVED  AT  GRAND  JURY  PROCEEDINGS  AS
EVIDENCE  OF THE FACTS STATED IN SUCH RECORDS, PROVIDED SUCH RECORDS ARE
ACCOMPANIED BY A WRITTEN STATEMENT, UNDER OATH, OF THE  RECORD'S  CUSTO-
DIAN  OR  OTHER  QUALIFIED WITNESS OF THE BUSINESS. SUCH STATEMENT SHALL
CONTAIN A LIST OR DESCRIPTION OF  THE  RECORDS  ATTACHED  AND  STATE  IN
SUBSTANCE  THAT THE PERSON IS A DULY AUTHORIZED CUSTODIAN OF THE RECORDS
OR OTHER QUALIFIED WITNESS WITH KNOWLEDGE THAT SUCH RECORDS WERE MADE IN
THE REGULAR COURSE OF BUSINESS AND THAT IT WAS  THE  REGULAR  COURSE  OF
SUCH  BUSINESS TO MAKE SUCH RECORDS AT THE TIME OF THE ACT, TRANSACTION,
OCCURRENCE OR EVENT, OR WITHIN A REASONABLE TIME THEREAFTER. SUCH  WRIT-
TEN  STATEMENT  MAY  ALSO INCLUDE A STATEMENT THAT THE BUSINESS DOES NOT
POSSESS A PARTICULAR RECORD  OR  RECORDS,  AND  SUCH  STATEMENT  MAY  BE
RECEIVED  AT  GRAND  JURY  PROCEEDINGS  AS EVIDENCE OF THE FACT THAT THE
BUSINESS DOES NOT POSSESS SUCH RECORD OR RECORDS. WHEN IT  IS  NECESSARY
FOR THE BUSINESS WHOSE RECORDS ARE BEING OFFERED INTO EVIDENCE TO SUBMIT
A  WRITTEN  STATEMENT  UNDER OATH FROM MORE THAN ONE OF ITS EMPLOYEES IN
ORDER TO COMPLY WITH THIS SUBDIVISION, MORE THAN ONE  WRITTEN  STATEMENT
UNDER  OATH  MAY  BE  ATTACHED  TO  THE RECORDS. FOR THE PURPOSE OF THIS
SUBDIVISION, THE TERM "BUSINESS" INCLUDES A BUSINESS, PROFESSION,  OCCU-
PATION AND CALLING OF EVERY KIND.
  S  6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
law, as amended by chapter 7 of the laws of 2007, are amended to read as
follows:
  4. A statement in each count that the grand jury, or, where the  accu-
satory  instrument  is a superior court information, the district attor-
ney, accuses the  defendant  or  defendants  of  a  designated  offense,
provided  that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section  485.05  of  the  penal  law,
followed  by  the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal  law,  the  designated
offense  shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as  a  crime
of  terrorism";  and  provided  further  that  in  any prosecution under
section 130.91 of the penal law, the designated  offense  shall  be  the
specified  offense,  as  defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated  felony";
and PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 263.18 OF THE
PENAL  LAW,  THE  DESIGNATED  OFFENSE  SHALL BE THE UNDERLYING SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 263.18 OF  THE
PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; AND

S. 5226--A                          3

  7.  A plain and concise factual statement in each count which, without
allegations of an evidentiary nature,
  (a)  asserts facts supporting every element of the offense charged and
the defendant's or defendants' commission thereof with sufficient preci-
sion to clearly apprise the defendant or defendants of the conduct which
is the subject of the accusation; and
  (b) in the case of any armed felony, as defined in subdivision  forty-
one  of  section  1.20  OF  THIS CHAPTER, states that such offense is an
armed felony and specifies the particular  implement  the  defendant  or
defendants possessed, were armed with, used or displayed or, in the case
of  an implement displayed, specifies what the implement appeared to be;
and
  (c) in the case of any hate crime, as defined in section 485.05 of the
penal law, specifies, as applicable, that the  defendant  or  defendants
intentionally selected the person against whom the offense was committed
or  intended to be committed; or intentionally committed the act or acts
constituting the offense, in whole or in substantial part because  of  a
belief  or perception regarding the race, color, national origin, ances-
try, gender, religion, religious practice,  age,  disability  or  sexual
orientation of a person; and
  (d)  in the case of a crime of terrorism, as defined in section 490.25
of the penal law,  specifies,  as  applicable,  that  the  defendant  or
defendants  acted  with  intent to intimidate or coerce a civilian popu-
lation, influence the policy of a unit of government by intimidation  or
coercion,  or  affect  the  conduct  of  a unit of government by murder,
assassination or kidnapping; and
  (e) in the case of a sexually motivated felony, as defined in  section
130.91  of  the  penal law, asserts facts supporting the allegation that
the offense was sexually motivated; and
  (F) IN THE CASE OF A COMPUTER SEX CRIME, AS DEFINED IN SUBDIVISION ONE
OF SECTION 263.18 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE,  THAT  THE
DEFENDANT  OR  DEFENDANTS  FACILITATED  THE  COMMISSION  OF  A SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 263.18 OF  THE
PENAL LAW, BY USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE
TO COMMUNICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
  S 7. 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. 5226--A                          4

  S 8. Section 610.10 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4.  A "NON-JUDICIAL SUBPOENA" IS A PROCESS ISSUED BY A DISTRICT ATTOR-
NEY OR THE ATTORNEY GENERAL, WHERE APPROPRIATE, OR THE  CHIEF  EXECUTIVE
OFFICER  OF  A POLICE DEPARTMENT, AS DEFINED IN SUBDIVISION A OF SECTION
EIGHT HUNDRED THIRTY-SEVEN-C OF THE EXECUTIVE LAW, OR  THE  DESIGNEE  OF
SUCH  CHIEF  EXECUTIVE  OFFICER,  IN  ACCORDANCE  WITH THE PROVISIONS OF
SUBDIVISION FOUR OF SECTION 610.20 OF THIS ARTICLE.
  S 9. Section 610.20 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4. IN THE INVESTIGATION OF AN OFFENSE AGAINST A MINOR OR AN ATTEMPT TO
COMMIT AN OFFENSE AGAINST A MINOR, OR IN ANY INSTANCE WHERE THE LIFE  OR
SAFETY OF A PERSON IS IN IMMINENT DANGER, A NON-JUDICIAL SUBPOENA MAY BE
ISSUED  AND  DIRECTED  TO  AN INTERNET SERVICE PROVIDER OR A PROVIDER OF
E-MAIL SERVICES REQUIRING THE PROVIDER  TO  DISCLOSE  THE  IDENTITY  AND
ADDRESS OF A SUBSCRIBER RELATIVE TO A SCREEN NAME.
  S 10. Paragraph (h) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 154 of the laws of 1990, is amended
to read as follows:
  (h)  Promoting prostitution in the first degree, as defined in section
230.32 of the penal law, promoting prostitution in the second degree, as
defined by subdivision one of section 230.30 of the penal  law,  COMPEL-
LING PROSTITUTION, AS DEFINED IN SECTION 230.33 OF THE PENAL LAW;
  S 11. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding a new paragraph (u) to read as follows:
  (U)  USE  OF  A  CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE AS
DEFINED IN SECTION 263.06 OF THE PENAL LAW, USE OF A CHILD IN  A  SEXUAL
PERFORMANCE  IN  THE  FIRST  DEGREE  AS DEFINED IN SECTION 263.07 OF THE
PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  IN  THE
SECOND  DEGREE  AS DEFINED IN SECTION 263.08 OF THE PENAL LAW, PROMOTING
AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS  DEFINED
IN  SECTION  263.09  OF  THE  PENAL  LAW,  POSSESSING  AN OBSCENE SEXUAL
PERFORMANCE BY A CHILD IN THE THIRD DEGREE AS DEFINED IN SECTION  263.10
OF THE PENAL LAW, POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
THE  SECOND  DEGREE  AS  DEFINED  IN  SECTION  263.11  OF THE PENAL LAW,
POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST  DEGREE
AS  DEFINED  IN  SECTION  263.12  OF  THE  PENAL LAW, PROMOTING A SEXUAL
PERFORMANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.13
OF THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 263.14 OF THE PENAL LAW, POSSESSING A SEXU-
AL PERFORMANCE BY A CHILD IN THE THIRD  DEGREE  AS  DEFINED  IN  SECTION
263.15  OF  THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
THE SECOND DEGREE AS  DEFINED  IN  SECTION  263.16  OF  THE  PENAL  LAW,
POSSESSING  A  SEXUAL  PERFORMANCE  BY  A  CHILD  IN THE FIRST DEGREE AS
DEFINED IN SECTION 263.17 OF THE  PENAL  LAW,  COMPUTER  SEX  CRIMES  AS
DEFINED  IN  SECTION 263.18 OF THE PENAL LAW, CRIMINAL USE OF ENCRYPTION
IN THE SECOND DEGREE AS DEFINED IN SECTION  156.40  OF  THE  PENAL  LAW,
CRIMINAL  USE  OF  ENCRYPTION  IN THE FIRST DEGREE AS DEFINED IN SECTION
156.41 OF THE PENAL LAW, LURING A CHILD AS DEFINED IN SECTION 263.01  OF
THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST
DEGREE AS DEFINED IN SECTION 263.03 OF THE PENAL LAW.
  S  12.  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:
  (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,

S. 5226--A                          5

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 OR 230.45 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
  S  13.  Paragraphs  d  and  e of subdivision 2 of section 168-b of the
correction law are relettered paragraphs e and f and a new  paragraph  d
is added to read as follows:
  D.  THE  REGISTRY  IS  AUTHORIZED  TO  MAKE  AVAILABLE THE INFORMATION
PROVIDED FOR IN SECTION ONE HUNDRED SIXTY-EIGHT-Q OF THIS  ARTICLE  AND,
IN  ADDITION, PROVIDE INFORMATION ON ANY INTERNET ACCOUNTS REGISTERED TO
SUCH SEX OFFENDER AND ANY INTERNET SCREEN NAMES USED BY SUCH OFFENDER TO
AN INTERACTIVE COMPUTER SERVICE, WHICH SHALL BE DEFINED AS ANY  INFORMA-
TION  SERVICE,  SYSTEM  OR  ACCESS  SOFTWARE  PROVIDER  THAT PROVIDES OR
ENABLES COMPUTER ACCESS BY MULTIPLE USERS TO A COMPUTER SERVER,  INCLUD-
ING  SPECIFICALLY A SERVICE OR SYSTEM THAT PROVIDES ACCESS TO THE INTER-
NET.
  S 14.  Paragraph  (b)  of  subdivision  2  of  section  168-f  of  the
correction  law, as added by chapter 192 of the laws of 1995, is amended
to read as follows:
  (b) The verification form shall be signed by  the  sex  offender,  and
state  that  he OR SHE still resides at the address last reported to the
division AND SHALL PROVIDE INFORMATION ON ANY INTERNET ACCOUNTS  BELONG-
ING  TO  SUCH SEX OFFENDER AND ANY INTERNET SCREEN NAME OR NAMES USED BY
SUCH OFFENDER.
  S 15. Sections 120.70, 235.20, 235.21, 235.22, 235.23  and  235.24  of
the penal law are REPEALED.
  S  16.  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 17. Subdivision 1 of section 70.02 of the penal law,  as  separately
amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
amended by chapter 320 of the laws of 2006, paragraph (b) as amended  by
chapter 148 of the laws of 2011, paragraph (c) as amended by chapter 405
of  the  laws  of  2010 and paragraph (d) as amended by chapter 7 of the
laws of 2007, is amended to read as follows:

S. 5226--A                          6

  1. Definition of a violent felony offense. A violent felony offense is
a class B violent felony offense, a class C violent  felony  offense,  a
class  D  violent  felony  offense, or a class E violent felony offense,
defined as follows:
  (a)  Class  B  violent felony offenses: an attempt to commit the class
A-I felonies of murder in  the  second  degree  as  defined  in  section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson  in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20,  aggravated  manslaughter
in  the  first  degree  as  defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act  in  the  first
degree  as  defined  in  section  130.50, aggravated sexual abuse in the
first degree as defined in section  130.70,  course  of  sexual  conduct
against  a  child  in  the first degree as defined in section 130.75[;],
assault in the first degree as defined in section 120.10, kidnapping  in
the  second  degree  as defined in section 135.20, burglary in the first
degree as defined in section 140.30,  arson  in  the  second  degree  as
defined  in  section  150.15,  robbery in the first degree as defined in
section 160.15, SEXUAL EXPLOITATION OF A CHILD  AS  DEFINED  IN  SECTION
230.06-A,  PROMOTING  PROSTITUTION  IN  THE  FIRST  DEGREE AS DEFINED IN
SECTION 230.32, COMPELLING PROSTITUTION AS DEFINED  IN  SECTION  230.33,
incest  in the first degree as defined in section 255.27, USE OF A CHILD
IN A SEXUAL PERFORMANCE IN  THE  FIRST  DEGREE  AS  DEFINED  IN  SECTION
263.07,  criminal  possession of a weapon in the first degree as defined
in section 265.04, criminal use of a firearm  in  the  first  degree  as
defined  in  section  265.09,  criminal  sale  of a firearm in the first
degree as defined in section 265.13, aggravated assault  upon  a  police
officer or a peace officer as defined in section 120.11, gang assault in
the  first degree as defined in section 120.07, intimidating a victim or
witness in the first degree as  defined  in  section  215.17,  hindering
prosecution  of  terrorism  in  the  first  degree as defined in section
490.35, criminal possession of a chemical weapon or biological weapon in
the second degree as defined in section 490.40, and criminal  use  of  a
chemical  weapon  or biological weapon in the third degree as defined in
section 490.47.
  (b) Class C violent felony offenses: an attempt to commit any  of  the
class  B felonies set forth in paragraph (a) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined  in  section  125.21,
aggravated  sexual  abuse  in  the  second  degree as defined in section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, assault on a
judge as defined in section 120.09, gang assault in the second degree as
defined in section 120.06, strangulation in the first degree as  defined
in  section  121.13, burglary in the second degree as defined in section
140.25, robbery in the second  degree  as  defined  in  section  160.10,
PROMOTING  PROSTITUTION  IN  THE  SECOND  DEGREE  AS  DEFINED IN SECTION
230.30, DISSEMINATING INDECENT MATERIALS TO MINORS IN THE  FIRST  DEGREE
AS  DEFINED IN SECTION 263.03, USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE SECOND DEGREE AS DEFINED IN SECTION  263.06,  PROMOTING  AN  OBSCENE
SEXUAL  PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
263.09, POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 263.12, PROMOTING A SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE AS DEFINED IN  SECTION  263.14,  POSSESSING  A
SEXUAL  PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
263.17, criminal possession of a weapon in the second degree as  defined

S. 5226--A                          7

in  section  265.03,  criminal  use of a firearm in the second degree as
defined in section 265.08, criminal sale of  a  firearm  in  the  second
degree as defined in section 265.12, criminal sale of a firearm with the
aid  of  a  minor  as defined in section 265.14, soliciting or providing
support for an act of terrorism  in  the  first  degree  as  defined  in
section  490.15, hindering prosecution of terrorism in the second degree
as defined in section 490.30, and  criminal  possession  of  a  chemical
weapon  or  biological  weapon in the third degree as defined in section
490.37.
  (c) Class D violent felony offenses: an attempt to commit any  of  the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section  120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, strangulation in the second degree as defined  in
section  121.12, rape in the second degree as defined in section 130.30,
criminal sexual act in the second degree as defined in  section  130.45,
sexual abuse in the first degree as defined in section 130.65, course of
sexual  conduct  against  a  child  in  the  second degree as defined in
section 130.80, aggravated sexual abuse in the third degree  as  defined
in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
substance as defined in section 130.90, PATRONIZING A PROSTITUTE IN  THE
FIRST DEGREE AS DEFINED IN SECTION 230.06, PROMOTING PROSTITUTION IN THE
THIRD  DEGREE AS DEFINED IN SUBDIVISION TWO OF SECTION 230.25, PROMOTING
AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED
IN SECTION 263.08, PROMOTING A SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE
SECOND  DEGREE  AS  DEFINED  IN SECTION 263.13, criminal possession of a
weapon in the third degree as defined in subdivision five, six, seven or
eight of section 265.02, criminal sale of a firearm in the third  degree
as  defined  in  section 265.11, intimidating a victim or witness in the
second degree as defined in  section  215.16,  soliciting  or  providing
support  for  an  act  of  terrorism  in the second degree as defined in
section 490.10, and making a terroristic threat as  defined  in  section
490.20,  falsely reporting an incident in the first degree as defined in
section 240.60, placing a false bomb or hazardous substance in the first
degree as defined in section 240.62, placing a false bomb  or  hazardous
substance  in a sports stadium or arena, mass transportation facility or
enclosed shopping mall as defined  in  section  240.63,  and  aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
  (d)  Class  E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a  weapon  in  the  third  degree  as
defined  in subdivision five, six, seven or eight of section 265.02 as a
lesser included offense of that section as defined in section 220.20  of
the  criminal  procedure  law,  persistent  sexual  abuse  as defined in
section 130.53, aggravated sexual abuse in the fourth degree as  defined
in  section  130.65-a,  PATRONIZING A PROSTITUTE IN THE SECOND DEGREE AS
DEFINED IN SECTION 230.05, falsely reporting an incident in  the  second
degree  as defined in section 240.55 and placing a false bomb or hazard-
ous substance in the second degree as defined in section 240.61.
  S 18. 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-

S. 5226--A                          8

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 19. Subdivision 2 of section 130.91 of the penal law, as amended  by
chapter 405 of the laws of 2010, is amended to read as follows:
  2.  A  "specified  offense"  is a felony offense defined by any of the
following provisions of this chapter: assault in the  second  degree  as
defined  in  section  120.05,  assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in  section
120.06,  gang  assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, strangulation
in the second degree as defined in section 121.12, strangulation in  the
first  degree  as  defined in section 121.13, manslaughter in the second
degree as defined in subdivision one of section 125.15, manslaughter  in
the  first  degree  as  defined  in section 125.20, murder in the second
degree as defined in section 125.25, aggravated  murder  as  defined  in
section 125.26, murder in the first degree as defined in section 125.27,
kidnapping in the second degree as defined in section 135.20, kidnapping
in  the first degree as defined in section 135.25, burglary in the third
degree as defined in section 140.20, burglary in the  second  degree  as
defined  in  section  140.25, burglary in the first degree as defined in
section 140.30, arson in the second degree as defined in section 150.15,
arson in the first degree as defined in section 150.20, robbery  in  the
third  degree as defined in section 160.05, robbery in the second degree
as defined in section 160.10, robbery in the first degree as defined  in
section  160.15,  promoting prostitution in the second degree as defined
in section 230.30, promoting prostitution in the first degree as defined
in section 230.32, compelling prostitution as defined in section 230.33,
disseminating indecent material to minors in the first degree as defined
in section [235.22] 263.03, use of a child in a  sexual  performance  IN
THE  SECOND DEGREE as defined in section [263.05] 263.06, USE OF A CHILD
IN A SEXUAL PERFORMANCE IN  THE  FIRST  DEGREE  AS  DEFINED  IN  SECTION
263.07, promoting an obscene sexual performance by a child IN THE SECOND
DEGREE as defined in section [263.10] 263.08, PROMOTING AN OBSCENE SEXU-
AL  PERFORMANCE  BY  A  CHILD  IN THE FIRST DEGREE AS DEFINED IN SECTION
263.09, promoting a sexual performance by a child IN THE  SECOND  DEGREE
as defined in section [263.15] 263.13, PROMOTING A SEXUAL PERFORMANCE BY
A  CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.14, or any felony
attempt or conspiracy to commit any of the foregoing offenses.
  S 20. Subdivision 3 of section 130.95 of the penal law,  as  added  by
chapter 107 of the laws of 2006, is amended to read as follows:
  3. He or she has previously been subjected to a conviction for a felo-
ny  defined in this article, incest as defined in section 255.25 of this
chapter or use of a child in a sexual performance as defined in [section
263.05] SECTIONS 263.06 AND 263.07 of this chapter.
  S 21. Section 156.00 of the penal law  is  amended  by  adding  a  new
subdivision 10 to read as follows:
  10.   "ENCRYPTION" MEANS ANY PROTECTIVE OR DISRUPTIVE MEASURE, INCLUD-
ING, WITHOUT LIMITATION, CRYPTOGRAPHY, ENCIPHERING OR ENCODING, WHICH:
  (A) CAUSES OR MAKES ANY DATA, INFORMATION, IMAGE, PROGRAM,  SIGNAL  OR
SOUND UNINTELLIGIBLE OR UNUSABLE; OR
  (B) PREVENTS, IMPEDES, DELAYS OR DISRUPTS ACCESS TO ANY DATA, INFORMA-
TION, IMAGE, PROGRAM, SIGNAL OR SOUND.

S. 5226--A                          9

  S  22.  The penal law is amended by adding two new sections 156.40 and
156.41 to read as follows:
S 156.40 CRIMINAL USE OF ENCRYPTION IN THE SECOND DEGREE.
  A  PERSON IS GUILTY OF CRIMINAL USE OF ENCRYPTION IN THE SECOND DEGREE
WHEN HE OR SHE INTENTIONALLY USES OR ATTEMPTS TO USE ENCRYPTION TO:
  1. COMMIT, FURTHER,  FACILITATE  OR  PROMOTE  CONDUCT  CONSTITUTING  A
CRIME;
  2. CONCEAL THE COMMISSION OF ANY CRIME;
  3.  CONCEAL  OR PROTECT THE IDENTITY OF A PERSON WHO HAS COMMITTED ANY
CRIME; OR
  4. PREVENT, IMPEDE, DELAY OR DISRUPT THE NORMAL OPERATION OR USE OF  A
COMPUTER, COMPUTER PROGRAM OR COMPUTER SYSTEM.
  CRIMINAL USE OF ENCRYPTION IN THE SECOND DEGREE IS A CLASS A MISDEMEA-
NOR.
S 156.41 CRIMINAL USE OF ENCRYPTION IN THE FIRST DEGREE.
  A  PERSON  IS GUILTY OF CRIMINAL USE OF ENCRYPTION IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF CRIMINAL USE OF  ENCRYPTION  IN  THE
SECOND DEGREE AND HE OR SHE:
  1.  DOES  SO  WITH AN INTENT TO COMMIT OR ATTEMPT TO COMMIT OR FURTHER
THE COMMISSION OF A FELONY;
  2. DOES SO WITH AN INTENT TO CONCEAL THE COMMISSION OF ANY FELONY;
  3. DOES SO WITH THE INTENT TO PROTECT THE IDENTITY OF A PERSON WHO HAS
COMMITTED ANY FELONY; OR
  4. HAS BEEN PREVIOUSLY CONVICTED OF ANY CRIME UNDER THIS ARTICLE.
  CRIMINAL USE OF ENCRYPTION IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 23. Section 215.40 of the penal law is amended to read as follows:
S 215.40 Tampering with physical evidence.
  A person is guilty of tampering with physical evidence when:
  1. With intent that it be used or introduced in, OR BELIEVING THAT  IT
HAS  BEEN REQUESTED OR MAY BE GATHERED DURING OR PURSUANT TO an official
proceeding or a prospective official proceeding, [he] SUCH  PERSON:  (a)
knowingly  makes,  devises  or  prepares false physical evidence, or (b)
produces or offers such evidence at such a proceeding knowing it  to  be
false; or
  2.  Believing that certain physical evidence [is about to] HAS BEEN OR
MAY be REQUESTED, GATHERED, produced or used in OR PURSUANT TO an  offi-
cial  proceeding  or a prospective official proceeding, and intending to
prevent such production or use, [he] SUCH PERSON suppresses  it  by  any
act of concealment, alteration, ENCRYPTION or destruction, or by employ-
ing force, intimidation or deception against any person.
  3.  NO  ELECTRONIC COMMUNICATIONS SERVICE OR REMOTE COMPUTING SERVICE,
AS DEFINED UNDER THE  FEDERAL  ELECTRONIC  COMMUNICATIONS  PRIVACY  ACT,
WHICH  IS  ACTING WITHIN THE ORDINARY COURSE OF BUSINESS, SHALL BE OBLI-
GATED TO RETAIN CUSTOMER INFORMATION AND/OR CONTENT UNLESS IN RECEIPT OF
AN OFFICIAL REQUEST TO RETAIN PHYSICAL EVIDENCE.
  Tampering with physical evidence is a class [E] D felony.
  S 24. 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] MISDE-
MEANOR.
  S  25. The penal law is amended by adding a new section 230.01 to read
as follows:

S. 5226--A                         10

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 26.  Sections 230.05 and 230.06 of the penal law, as added by  chap-
ter 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  OR  SHE
patronizes  a  prostitute  and the person patronized is less than [four-
teen] 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 OR SHE patronizes a pros-
titute 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  27.  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 OR SHE PATRONIZES A  PROSTI-
TUTE AND THE PERSON PATRONIZED IS LESS THAN THIRTEEN YEARS OF AGE; OR
  2. HE OR SHE 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 28. 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  29.  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 30. 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  31. 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  32. Section 230.33 of the penal law, as added by chapter 450 of the
laws of 2005, is amended to read as follows:

S. 5226--A                         11

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  33.  Section  230.40  of the penal law is amended and a new section
230.45 is added to read as follows:
S 230.40 Permitting prostitution IN THE SECOND DEGREE.
  A person is guilty of permitting prostitution  IN  THE  SECOND  DEGREE
when, having possession or control of premises which he OR SHE knows are
being used for prostitution purposes, he OR SHE fails to make reasonable
effort to halt or abate such use.
  Permitting  prostitution  IN THE SECOND DEGREE is a class [B] A misde-
meanor.
S 230.45 PERMITTING PROSTITUTION IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF PERMITTING PROSTITUTION IN THE FIRST DEGREE WHEN
HAVING POSSESSION OR CONTROL OF PREMISES WHICH HE OR SHE KNOWS ARE BEING
USED FOR PROSTITUTION PURPOSES INCLUDING THE  PROSTITUTION  OF  A  CHILD
LESS  THAN  SEVENTEEN  YEARS  OF AGE, HE OR SHE FAILS TO MAKE REASONABLE
EFFORT TO HALT OR ABATE SUCH USE.
  PERMITTING PROSTITUTION IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 34. The section heading and subdivision 1 of section 235.15  of  the
penal law, as amended by chapter 600 of the laws of 1996, are amended to
read as follows:
  Obscenity  [or disseminating indecent material to minors in the second
degree]; defense.
  1. In any prosecution for obscenity[, or disseminating indecent  mate-
rial to minors in the second degree in violation of subdivision three of
section  235.21  of this article,] it is an affirmative defense that the
persons to whom allegedly obscene   or  indecent  material  was  dissem-
inated,  or  the audience to an allegedly obscene performance, consisted
of persons or institutions having scientific, educational,  governmental
or  other similar justification for possessing, disseminating or viewing
the same.
  S 35. 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
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  36.  Subdivision  2 of section 250.65 of the penal law, as added by
chapter 69 of the laws of 2003, is amended to read as follows:
  2. With respect to sections 250.55 and 250.60  of  this  article,  the
provisions of subdivision two of section 235.15 and subdivisions one and
two of section [235.24] 263.05 of this chapter shall apply.
  S  37.  Article 263 of the penal law is REPEALED and a new article 263
is added to read as follows:

S. 5226--A                         12

                               ARTICLE 263
                    CHILD SEXUAL ABUSE, EXPLOITATION
                        AND PORNOGRAPHY OFFENSES
SECTION 263.00 DEFINITIONS.
        263.01 LURING A CHILD.
        263.02 DISSEMINATING  INDECENT  MATERIAL TO MINORS IN THE SECOND
                 DEGREE.
        263.03 DISSEMINATING INDECENT MATERIAL TO MINORS  IN  THE  FIRST
                 DEGREE.
        263.04 DISSEMINATING  INDECENT  MATERIAL  TO MINORS; PRESUMPTION
                 AND DEFENSES.
        263.05 DISSEMINATING INDECENT MATERIAL TO MINORS; LIMITATIONS.
        263.06 USE OF A CHILD IN A  SEXUAL  PERFORMANCE  IN  THE  SECOND
                 DEGREE.
        263.07 USE  OF  A  CHILD  IN  A  SEXUAL PERFORMANCE IN THE FIRST
                 DEGREE.
        263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
                 SECOND DEGREE.
        263.09 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
                 FIRST DEGREE.
        263.10 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  IN
                 THE THIRD DEGREE.
        263.11 POSSESSING  AN  OBSCENE  SEXUAL PERFORMANCE BY A CHILD IN
                 THE SECOND DEGREE.
        263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  IN
                 THE FIRST DEGREE.
        263.13 PROMOTING  A  SEXUAL PERFORMANCE BY A CHILD IN THE SECOND
                 DEGREE.
        263.14 PROMOTING A SEXUAL PERFORMANCE BY A CHILD  IN  THE  FIRST
                 DEGREE.
        263.15 POSSESSING  A  SEXUAL PERFORMANCE BY A CHILD IN THE THIRD
                 DEGREE.
        263.16 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE  SECOND
                 DEGREE.
        263.17 POSSESSING  A  SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
                 DEGREE.
        263.18 COMPUTER SEX CRIMES AGAINST CHILDREN.
        263.19 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
        263.20 SEXUAL PERFORMANCE BY A CHILD; AFFIRMATIVE DEFENSES.
        263.25 PROOF OF AGE OF CHILD.
S 263.00 DEFINITIONS.
  AS USED IN THIS ARTICLE THE FOLLOWING DEFINITIONS SHALL APPLY:
  1. "MINOR" MEANS ANY PERSON LESS THAN SEVENTEEN YEARS OLD.
  2. "NUDITY" MEANS THE SHOWING OF THE HUMAN MALE  OR  FEMALE  GENITALS,
PUBIC  AREA  OR  BUTTOCKS  WITH LESS THAN A FULL OPAQUE COVERING, OR THE
SHOWING OF THE FEMALE BREAST WITH LESS THAN A FULLY OPAQUE  COVERING  OF
ANY  PORTION  THEREOF  BELOW  THE TOP OF THE NIPPLE, OR THE DEPICTION OF
COVERED MALE GENITALS IN A DISCERNIBLY TURGID STATE.
  3. "SEXUAL CONDUCT" MEANS ACTUAL OR SIMULATED SEXUAL INTERCOURSE, ORAL
SEXUAL CONDUCT, ANAL SEXUAL CONDUCT,  SEXUAL  BESTIALITY,  MASTURBATION,
SADOMASOCHISTIC ABUSE, OR LEWD EXHIBITION OF THE GENITALS.
  4.  "SEXUAL  EXCITEMENT"  MEANS  THE CONDITION OF HUMAN MALE OR FEMALE
GENITALS WHEN IN A STATE OF SEXUAL STIMULATION OR AROUSAL.
  5. "SEXUAL PERFORMANCE" MEANS ANY PERFORMANCE OR  PART  THEREOF  WHICH
INCLUDES SEXUAL CONDUCT OR WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT,
BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE.

S. 5226--A                         13

  6.  "OBSCENE  SEXUAL PERFORMANCE" MEANS ANY PERFORMANCE WHICH INCLUDES
SEXUAL CONDUCT OR WHAT REASONABLY APPEARS TO BE  SEXUAL  CONDUCT,  BY  A
CHILD  LESS  THAN  SEVENTEEN  YEARS  OF  AGE,  IN  ANY MATERIAL WHICH IS
OBSCENE, AS SUCH TERM IS DEFINED IN SECTION 235.00 OF THIS PART.
  7.  "SEXUAL  INTERCOURSE", "SEXUAL CONTACT", "ORAL SEXUAL CONDUCT" AND
"ANAL SEXUAL CONDUCT" MEAN THE CONDUCT DEFINED BY SECTION 130.00 OF THIS
PART.
  8. "SADOMASOCHISTIC ABUSE" MEANS FLAGELLATION OR TORTURE BY OR UPON  A
PERSON  CLAD  IN UNDERGARMENTS, A MASK OR BIZARRE COSTUME, OR THE CONDI-
TION OF BEING FETTERED, BOUND OR OTHERWISE PHYSICALLY RESTRAINED ON  THE
PART OF ONE SO CLOTHED.
  9.  "PERFORMANCE" MEANS ANY PLAY, MOTION PICTURE, PHOTOGRAPH OR DANCE,
FILM, VIDEO, DIGITAL IMAGE OR DATA STORED ON A COMPUTER DISK OR BY ELEC-
TRONIC MEANS WHERE SUCH DATA IS CAPABLE  OF  CONVERSION  INTO  A  VISUAL
IMAGE.  PERFORMANCE ALSO MEANS ANY OTHER VISUAL REPRESENTATION EXHIBITED
BEFORE AN AUDIENCE.
  10. "PROMOTE"  MEANS  TO  PROCURE,  MANUFACTURE,  ISSUE,  SELL,  GIVE,
PROVIDE,  LEND, MAIL, DELIVER, TRANSFER, TRANSMUTE, PUBLISH, DISTRIBUTE,
CIRCULATE, DISSEMINATE, PRESENT, EXHIBIT OR ADVERTISE, OR  TO  OFFER  OR
AGREE TO DO THE SAME.
  11. "SIMULATED" MEANS THE EXPLICIT DEPICTION OF ANY OF THE CONDUCT SET
FORTH  IN SUBDIVISION THREE OF THIS SECTION WHICH CREATES THE APPEARANCE
OF SUCH CONDUCT.
  12. "HARMFUL TO MINORS" MEANS  THAT  QUALITY  OF  ANY  DESCRIPTION  OR
REPRESENTATION,  IN  WHATEVER  FORM,  OF  NUDITY, SEXUAL CONDUCT, SEXUAL
EXCITEMENT, OR SADOMASOCHISTIC ABUSE,  WHEN  IT:  (A)  CONSIDERED  AS  A
WHOLE,  APPEALS  TO  THE  PRURIENT INTEREST IN SEX OF MINORS; AND (B) IS
PATENTLY OFFENSIVE TO PREVAILING STANDARDS IN THE ADULT COMMUNITY  AS  A
WHOLE  WITH  RESPECT  TO  WHAT  IS SUITABLE MATERIAL FOR MINORS; AND (C)
CONSIDERED AS A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC,  POLITICAL  AND
SCIENTIFIC VALUE FOR MINORS.
  13. "ACCESS SOFTWARE" MEANS SOFTWARE (INCLUDING CLIENT OR SERVER SOFT-
WARE) OR ENABLING TOOLS THAT DO NOT CREATE OR PROVIDE THE CONTENT OF THE
COMMUNICATION BUT THAT ALLOW A USER TO DO ANY ONE OR MORE OF THE FOLLOW-
ING:  (A)  FILTER,  SCREEN, ALLOW OR DISALLOW CONTENT; (B) PICK, CHOOSE,
ANALYZE OR DIGEST CONTENT; OR (C) TRANSMIT, RECEIVE,  DISPLAY,  FORWARD,
CACHE, SEARCH, SUBSET, ORGANIZE, REORGANIZE OR TRANSLATE CONTENT.
  14. "COMPUTER" SHALL HAVE THE SAME MEANING AS ASCRIBED TO SUCH TERM BY
SECTION 156.00 OF THIS PART.
  15.  "TELEPHONIC  COMMUNICATION"  AND "ELECTRONIC COMMUNICATION" SHALL
HAVE THE MEANING GIVEN TO THOSE TERMS BY  SUBDIVISIONS  THREE  AND  FIVE
RESPECTIVELY, OF SECTION 250.00 OF THIS PART.
S 263.01 LURING A CHILD.
  1.  A  PERSON IS GUILTY OF LURING A CHILD WHEN HE OR SHE LURES A CHILD
INTO A MOTOR VEHICLE, AIRCRAFT, WATERCRAFT, ISOLATED AREA, BUILDING,  OR
PART  THEREOF,  FOR  THE PURPOSE OF COMMITTING AGAINST SUCH CHILD ANY OF
THE FOLLOWING OFFENSES: AN OFFENSE AS DEFINED IN SECTION 70.02  OF  THIS
CHAPTER; AN OFFENSE AS DEFINED IN SECTION 125.25 OR 125.27 OF THIS PART;
A  FELONY  OFFENSE  THAT IS A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF
THIS PART; AN OFFENSE AS DEFINED IN SECTION  135.25  OF  THIS  PART;  AN
OFFENSE AS DEFINED IN SECTIONS 230.30, 230.33 OR 230.34 OF THIS PART; AN
OFFENSE  AS  DEFINED IN SECTIONS 255.25, 255.26, OR 255.27 OF THIS PART;
OR AN OFFENSE AS DEFINED IN THIS ARTICLE.  FOR PURPOSES OF THIS SUBDIVI-
SION "CHILD" MEANS A PERSON LESS THAN SEVENTEEN YEARS OF AGE. NOTHING IN
THIS SECTION SHALL BE DEEMED TO PRECLUDE, IF THE  EVIDENCE  WARRANTS,  A
CONVICTION  FOR  THE  COMMISSION  OR  ATTEMPTED COMMISSION OF ANY CRIME,

S. 5226--A                         14

INCLUDING BUT NOT LIMITED TO A CRIME  DEFINED  IN  ARTICLE  ONE  HUNDRED
THIRTY-FIVE OF THIS PART.
  2.  LURING A CHILD IS A CLASS E FELONY, PROVIDED, HOWEVER, THAT IF THE
UNDERLYING OFFENSE THE ACTOR  INTENDED  TO  COMMIT  AGAINST  SUCH  CHILD
CONSTITUTED  A CLASS A OR A CLASS B FELONY, THEN THE OFFENSE OF LURING A
CHILD IN VIOLATION OF THIS SECTION SHALL BE DEEMED RESPECTIVELY, A CLASS
C FELONY OR CLASS D FELONY.
S 263.02 DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF DISSEMINATING INDECENT MATERIAL TO MINORS IN THE
SECOND DEGREE WHEN:
  1. WITH KNOWLEDGE OF ITS CHARACTER AND CONTENT, HE  OR  SHE  SELLS  OR
LOANS TO A MINOR FOR MONETARY CONSIDERATION:
  (A)  ANY PICTURE, PHOTOGRAPH, DRAWING, SCULPTURE, MOTION PICTURE FILM,
OR SIMILAR VISUAL REPRESENTATION OR IMAGE OF A PERSON OR PORTION OF  THE
HUMAN BODY WHICH DEPICTS NUDITY, SEXUAL CONDUCT OR SADOMASOCHISTIC ABUSE
AND WHICH IS HARMFUL TO MINORS; OR
  (B)  ANY  BOOK, PAMPHLET, MAGAZINE, PRINTED MATTER HOWEVER REPRODUCED,
OR SOUND RECORDING WHICH CONTAINS ANY MATTER ENUMERATED IN PARAGRAPH (A)
OF THIS SUBDIVISION, OR EXPLICIT AND  DETAILED  VERBAL  DESCRIPTIONS  OR
NARRATIVE ACCOUNTS OF SEXUAL EXCITEMENT, SEXUAL CONDUCT OR SADOMASOCHIS-
TIC ABUSE AND WHICH, TAKEN AS A WHOLE, IS HARMFUL TO MINORS; OR
  2.  KNOWING  THE  CHARACTER  AND  CONTENT OF A MOTION PICTURE, SHOW OR
OTHER PRESENTATION WHICH, IN WHOLE OR IN PART,  DEPICTS  NUDITY,  SEXUAL
CONDUCT  OR SADOMASOCHISTIC ABUSE, AND WHICH IS HARMFUL TO MINORS, HE OR
SHE:
  (A) EXHIBITS SUCH MOTION PICTURE, SHOW  OR  OTHER  PRESENTATION  TO  A
MINOR FOR MONETARY CONSIDERATION; OR
  (B)  SELLS  TO A MINOR AN ADMISSION TICKET OR PASS TO PREMISES WHEREON
THERE IS EXHIBITED OR TO BE EXHIBITED SUCH MOTION PICTURE, SHOW OR OTHER
PRESENTATION; OR
  (C) ADMITS A MINOR FOR A MONETARY CONSIDERATION  TO  PREMISES  WHEREON
THERE  IS EXHIBITED OR TO BE EXHIBITED SUCH MOTION PICTURE SHOW OR OTHER
PRESENTATION; OR
  3. 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 SADOMASOCHISTIC ABUSE, AND WHICH
IS HARMFUL TO MINORS, HE OR SHE INTENTIONALLY USES ANY COMPUTER COMMUNI-
CATION 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.
  DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND  DEGREE  IS  A
CLASS E FELONY.
S 263.03 DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF DISSEMINATING INDECENT MATERIAL TO MINORS IN THE
FIRST DEGREE WHEN:
  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 SADOMASOCHISTIC ABUSE, AND  WHICH
IS HARMFUL TO MINORS, HE OR SHE INTENTIONALLY USES ANY TELEPHONIC COMMU-
NICATION,  ELECTRONIC  COMMUNICATION  OR  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 OR A PERSON WHO, REGARD-
LESS OF HIS OR HER AGE, IS A POLICE OFFICER  AND  THE  ACTOR  REASONABLY
BELIEVES SUCH OFFICER TO BE A MINOR; AND

S. 5226--A                         15

  2.  BY  MEANS  OF  SUCH COMMUNICATION HE OR SHE IMPORTUNES, INVITES OR
INDUCES A MINOR OR A PERSON WHO, REGARDLESS OF HIS  OR  HER  AGE,  IS  A
POLICE  OFFICER  AND  THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE A
MINOR TO ENGAGE IN SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT OR ANAL SEXU-
AL  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.
  DISSEMINATING  INDECENT  MATERIAL  TO  MINORS IN THE FIRST DEGREE IS A
CLASS C FELONY.
S 263.04 DISSEMINATING INDECENT  MATERIAL  TO  MINORS;  PRESUMPTION  AND
           DEFENSES.
  1. A PERSON WHO ENGAGES IN THE CONDUCT PROSCRIBED BY SECTION 263.02 OF
THIS  ARTICLE  IS  PRESUMED TO DO SO WITH KNOWLEDGE OF THE CHARACTER AND
CONTENT OF THE MATERIAL SOLD OR LOANED, OR THE MOTION PICTURE,  SHOW  OR
PRESENTATION EXHIBITED OR TO BE EXHIBITED.
  2. IN ANY PROSECUTION FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE  SECOND  DEGREE PURSUANT TO SUBDIVISION ONE OR TWO OF SECTION 263.02
OF THIS ARTICLE, IT IS AN AFFIRMATIVE DEFENSE THAT:
  (A) THE DEFENDANT HAD REASONABLE  CAUSE  TO  BELIEVE  THAT  THE  MINOR
INVOLVED WAS SEVENTEEN YEARS OLD OR MORE; AND
  (B)  SUCH  MINOR  EXHIBITED  TO  THE  DEFENDANT A DRAFT CARD, DRIVER'S
LICENSE, BIRTH CERTIFICATE OR  OTHER  OFFICIAL  OR  APPARENTLY  OFFICIAL
DOCUMENT PURPORTING TO ESTABLISH THAT SUCH MINOR WAS SEVENTEEN YEARS OLD
OR MORE.
  3. IN ANY PROSECUTION FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE SECOND DEGREE IN VIOLATION OF SUBDIVISION THREE OF SECTION 263.02 OF
THIS  ARTICLE,  IT  IS  AN  AFFIRMATIVE DEFENSE THAT THE PERSONS TO WHOM
ALLEGEDLY OBSCENE OR INDECENT MATERIAL WAS DISSEMINATED, OR THE AUDIENCE
TO AN ALLEGEDLY OBSCENE PERFORMANCE,  CONSISTED  OF  PERSONS  OR  INSTI-
TUTIONS  HAVING  SCIENTIFIC,  EDUCATIONAL, GOVERNMENTAL OR OTHER SIMILAR
JUSTIFICATION FOR POSSESSING, DISSEMINATING OR VIEWING THE SAME.
  4. IN ANY PROSECUTION FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE SECOND DEGREE PURSUANT TO SUBDIVISION THREE  OF  SECTION  263.02  OF
THIS  ARTICLE  OR DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST
DEGREE PURSUANT TO SECTION 263.03 OF THIS ARTICLE, IT SHALL BE A DEFENSE
THAT:
  (A) THE DEFENDANT MADE A REASONABLE EFFORT TO ASCERTAIN THE  TRUE  AGE
OF THE MINOR AND WAS UNABLE TO DO SO AS A RESULT OF ACTIONS TAKEN BY THE
MINOR; OR
  (B)  THE DEFENDANT HAS TAKEN, IN GOOD FAITH, REASONABLE, EFFECTIVE AND
APPROPRIATE ACTIONS UNDER  THE  CIRCUMSTANCES  TO  RESTRICT  OR  PREVENT
ACCESS  BY  MINORS TO MATERIALS SPECIFIED IN SUCH SUBDIVISION, WHICH MAY
INVOLVE ANY APPROPRIATE MEASURES TO RESTRICT MINORS FROM ACCESS TO  SUCH
COMMUNICATIONS,  INCLUDING  ANY METHOD WHICH IS FEASIBLE UNDER AVAILABLE
TECHNOLOGY; OR
  (C) THE DEFENDANT HAS RESTRICTED ACCESS TO SUCH MATERIALS BY REQUIRING
USE OF A VERIFIED CREDIT CARD, DEBIT ACCOUNT, ADULT ACCESS CODE OR ADULT
PERSONAL IDENTIFICATION NUMBER; OR
  (D) THE DEFENDANT HAS IN GOOD FAITH ESTABLISHED A MECHANISM SUCH  THAT
THE  LABELLING,  SEGREGATION OR OTHER MECHANISM ENABLES SUCH MATERIAL TO
BE AUTOMATICALLY BLOCKED OR SCREENED BY SOFTWARE OR  OTHER  CAPABILITIES
REASONABLY AVAILABLE TO RESPONSIBLE ADULTS WISHING TO EFFECT SUCH BLOCK-
ING  OR  SCREENING  AND THE DEFENDANT HAS NOT OTHERWISE SOLICITED MINORS
NOT SUBJECT TO SUCH SCREENING OR BLOCKING CAPABILITIES  TO  ACCESS  THAT
MATERIAL OR TO CIRCUMVENT ANY SUCH SCREENING OR BLOCKING.
S 263.05 DISSEMINATING INDECENT MATERIAL TO MINORS; LIMITATIONS.

S. 5226--A                         16

  IN  ANY  PROSECUTION  FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE SECOND DEGREE PURSUANT TO SUBDIVISION THREE  OF  SECTION  263.02  OF
THIS  ARTICLE  OR DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST
DEGREE PURSUANT TO SECTION 263.03 OF THIS ARTICLE:
  1. NO PERSON SHALL BE HELD TO HAVE VIOLATED SUCH PROVISIONS SOLELY FOR
PROVIDING ACCESS OR CONNECTION TO OR FROM A FACILITY, SYSTEM, OR NETWORK
NOT  UNDER  THAT  PERSON'S CONTROL, INCLUDING TRANSMISSION, DOWNLOADING,
INTERMEDIATE STORAGE, ACCESS SOFTWARE,  OR  OTHER  RELATED  CAPABILITIES
THAT  ARE  INCIDENTAL TO PROVIDING SUCH ACCESS OR CONNECTION THAT DO NOT
INCLUDE THE CREATION OF THE CONTENT OF THE COMMUNICATION.
  (A) THE LIMITATIONS PROVIDED BY THIS SUBDIVISION SHALL NOT BE APPLICA-
BLE TO A PERSON WHO IS A CONSPIRATOR WITH AN ENTITY ACTIVELY INVOLVED IN
THE CREATION OR KNOWING DISTRIBUTION OF COMMUNICATIONS THAT VIOLATE SUCH
PROVISIONS, OR WHO KNOWINGLY ADVERTISES THE AVAILABILITY OF SUCH  COMMU-
NICATIONS.
  (B) THE LIMITATIONS PROVIDED BY THIS SUBDIVISION SHALL NOT BE APPLICA-
BLE TO A PERSON WHO PROVIDES ACCESS OR CONNECTION TO A FACILITY, SYSTEM,
OR  NETWORK ENGAGED IN THE VIOLATION OF SUCH PROVISIONS THAT IS OWNED OR
CONTROLLED BY SUCH PERSON.
  2. NO EMPLOYER SHALL BE HELD LIABLE  UNDER  SUCH  PROVISIONS  FOR  THE
ACTIONS OF AN EMPLOYEE OR AGENT UNLESS THE EMPLOYEE'S OR AGENT'S CONDUCT
IS  WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT OR AGENCY AND THE EMPLOYER
HAVING KNOWLEDGE OF SUCH CONDUCT, AUTHORIZES OR RATIFIES  SUCH  CONDUCT,
OR RECKLESSLY DISREGARDS SUCH CONDUCT.
S 263.06 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE.
  A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE SECOND DEGREE IF KNOWING THE CHARACTER AND CONTENT THEREOF HE OR SHE
EMPLOYS, AUTHORIZES OR INDUCES A MINOR TO ENGAGE IN A SEXUAL PERFORMANCE
OR OBSCENE SEXUAL PERFORMANCE OR  BEING  A  PARENT,  LEGAL  GUARDIAN  OR
CUSTODIAN OF SUCH MINOR, HE OR SHE CONSENTS TO THE PARTICIPATION BY SUCH
MINOR IN A SEXUAL PERFORMANCE OR OBSCENE SEXUAL PERFORMANCE.
  USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE IS A CLASS
C FELONY.
S 263.07 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE FIRST DEGREE IF KNOWING THE CHARACTER AND CONTENT THEREOF HE OR  SHE
EMPLOYS,  AUTHORIZES OR INDUCES A CHILD LESS THAN ELEVEN YEARS OF AGE TO
ENGAGE IN A SEXUAL PERFORMANCE OR OBSCENE SEXUAL PERFORMANCE OR BEING  A
PARENT, LEGAL GUARDIAN OR CUSTODIAN OF SUCH CHILD, HE OR SHE CONSENTS TO
THE PARTICIPATION BY SUCH CHILD IN A SEXUAL PERFORMANCE OR OBSCENE SEXU-
AL PERFORMANCE.
  USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
B FELONY.
S 263.08 PROMOTING AN OBSCENE SEXUAL  PERFORMANCE  BY  A  CHILD  IN  THE
           SECOND DEGREE.
  A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
EOF, HE OR SHE PRODUCES, DIRECTS OR  PROMOTES  ANY  OBSCENE  PERFORMANCE
WHICH  INCLUDES  SEXUAL CONDUCT, OR WHAT REASONABLY APPEARS TO BE SEXUAL
CONDUCT, BY A MINOR.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE  SECOND
DEGREE IS A CLASS D FELONY.
S 263.09 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
           DEGREE.

S. 5226--A                         17

  A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF, HE OR SHE PRODUCES, DIRECTS OR PROMOTES:
  1.  TEN  OR MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR
WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A MINOR; OR
  2. ANY OBSCENE PERFORMANCE WHICH  INCLUDES  SEXUAL  CONDUCT,  OR  WHAT
REASONABLY  APPEARS  TO  BE  SEXUAL  CONDUCT,  BY  A MINOR AND HE OR SHE
PROMOTES SUCH PERFORMANCE TO A MINOR, OR A PERSON WHO, REGARDLESS OF HIS
OR HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY  BELIEVES  SUCH
OFFICER TO BE A MINOR.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS C FELONY.
S 263.10 POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD IN THE
           THIRD DEGREE.
  A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
CHILD IN THE THIRD DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF,  HE  OR  SHE  KNOWINGLY  HAS IN HIS OR HER POSSESSION OR CONTROL ANY
OBSCENE PERFORMANCE WHICH INCLUDES SEXUAL  CONDUCT  OR  WHAT  REASONABLY
APPEARS TO BE SEXUAL CONDUCT BY A MINOR.
  POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY  A CHILD IN THE THIRD
DEGREE IS A CLASS E FELONY.
S 263.11 POSSESSING AN OBSCENE SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE
           SECOND DEGREE.
  A  PERSON  IS  GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
EOF, HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL TEN  OR
MORE  OBSCENE  PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT OR WHAT REASON-
ABLY APPEARS TO BE SEXUAL CONDUCT BY A MINOR.
  POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  IN  THE  SECOND
DEGREE IS A CLASS D FELONY.
S 263.12 POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD IN THE
           FIRST DEGREE.
  A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF,  HE  OR  SHE  KNOWINGLY  HAS IN HIS OR HER POSSESSION OR CONTROL ONE
HUNDRED OR MORE OBSCENE PERFORMANCES WHICH  INCLUDE  SEXUAL  CONDUCT  OR
WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT BY A MINOR.
  POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY  A CHILD IN THE FIRST
DEGREE IS A CLASS C FELONY.
S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR SHE
PRODUCES, DIRECTS OR PROMOTES  ANY  PERFORMANCE  WHICH  INCLUDES  SEXUAL
CONDUCT BY A MINOR.
  PROMOTING  A  SEXUAL  PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
CLASS D FELONY.
S 263.14 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR  SHE
PRODUCES, DIRECTS OR PROMOTES:
  1.  TEN  OR  MORE  PERFORMANCES  WHICH INCLUDE SEXUAL CONDUCT, OR WHAT
REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A MINOR; OR
  2. ANY PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT, OR  WHAT  REASONABLY
APPEARS  TO  BE  SEXUAL  CONDUCT, BY A MINOR AND HE OR SHE PROMOTES SUCH
PERFORMANCE TO A MINOR, OR A PERSON WHO, REGARDLESS OF HIS OR  HER  AGE,

S. 5226--A                         18

IS A POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE
A MINOR.
  PROMOTING  A  SEXUAL  PERFORMANCE  BY A CHILD IN THE FIRST DEGREE IS A
CLASS C FELONY.
S 263.15 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY  A  CHILD  IN
THE  THIRD DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR  CONTROL  ANY  PERFORMANCE
WHICH  INCLUDES  SEXUAL CONDUCT, OR WHAT REASONABLY APPEARS TO BE SEXUAL
CONDUCT, BY A MINOR.
  POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE THIRD  DEGREE  IS  A
CLASS E FELONY.
S 263.16 POSSESSING  A  SEXUAL  PERFORMANCE  BY  A  CHILD  IN THE SECOND
           DEGREE.
  A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY  A  CHILD  IN
THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
SHE  KNOWINGLY  HAS  IN  HIS  OR  HER  POSSESSION OR CONTROL TEN OR MORE
PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT OR WHAT REASONABLY APPEARS  TO
BE SEXUAL CONDUCT BY A MINOR.
  POSSESSING  A  SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
CLASS D FELONY.
S 263.17 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY  A  CHILD  IN
THE  FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR  CONTROL  ONE  HUNDRED  OR
MORE  PERFORMANCES  WHICH  INCLUDE  SEXUAL  CONDUCT  OR  WHAT REASONABLY
APPEARS TO BE SEXUAL CONDUCT BY A MINOR.
  POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST  DEGREE  IS  A
CLASS C FELONY.
S 263.18 COMPUTER SEX CRIMES AGAINST CHILDREN.
  1.  A PERSON COMMITS A COMPUTER SEX CRIME WHEN HE OR SHE COMMITS A SEX
CRIME AGAINST A CHILD AND FACILITATED THE COMMISSION OF SUCH OFFENSE  BY
USING  OR  CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMUNI-
CATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
  2. A "SEX CRIME AGAINST A CHILD" MEANS A FELONY OFFENSE (A) THE ESSEN-
TIAL ELEMENTS OF WHICH INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF
SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF  THIS
PART, OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL PERFORMANCE,
AS DEFINED IN SECTION 263.00 OF THIS ARTICLE, (B) COMMITTED OR ATTEMPTED
TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
S 263.19 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
  1.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 263.18 OF THIS ARTICLE, AND THE UNDERLYING CRIME AGAINST A CHILD
IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF  THIS  CHAP-
TER, THE COMPUTER SEX CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
  2.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 263.18 OF THIS ARTICLE, AND THE UNDERLYING SEX CRIME  AGAINST  A
CHILD  IS  A  CLASS  C,  D  OR E FELONY, THE COMPUTER SEX CRIME SHALL BE
DEEMED TO BE ONE CATEGORY HIGHER THAN THE SEX CRIME AGAINST A CHILD  THE
DEFENDANT  COMMITTED,  OR  ONE  CATEGORY  HIGHER  THAN THE OFFENSE LEVEL
APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
COMMIT A SEX CRIME AGAINST A CHILD, WHICHEVER IS APPLICABLE.
  3. NOTWITHSTANDING ANY OTHER  PROVISION  OF  LAW,  WHEN  A  PERSON  IS
CONVICTED  OF  A  COMPUTER  SEX CRIME PURSUANT TO SECTION 263.18 OF THIS
ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B  FELO-
NY:

S. 5226--A                         19

  (A)  THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
AND
  (C)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER.
S 263.20 SEXUAL PERFORMANCE BY A CHILD; AFFIRMATIVE DEFENSES.
  1.  UNDER  THIS  ARTICLE,  IT SHALL BE AN AFFIRMATIVE DEFENSE THAT THE
DEFENDANT IN GOOD FAITH REASONABLY BELIEVED THE PERSON APPEARING IN  THE
PERFORMANCE WAS NOT A MINOR.
  2.  IN ANY PROSECUTION FOR ANY OFFENSE PURSUANT TO THIS ARTICLE, IT IS
AN AFFIRMATIVE DEFENSE THAT  THE  PERSON  SO  CHARGED  WAS  A  LIBRARIAN
ENGAGED  IN THE NORMAL COURSE OF HIS OR HER EMPLOYMENT, A MOTION PICTURE
PROJECTIONIST, STAGE EMPLOYEE OR SPOTLIGHT OPERATOR,  CASHIER,  DOORMAN,
USHER,  CANDY  STAND ATTENDANT, PORTER OR IN ANY OTHER NON-MANAGERIAL OR
NON-SUPERVISORY CAPACITY IN A MOTION PICTURE THEATRE; PROVIDED HE OR SHE
HAS NO FINANCIAL INTEREST, OTHER  THAN  HIS  OR  HER  EMPLOYMENT,  WHICH
EMPLOYMENT  DOES NOT ENCOMPASS COMPENSATION BASED UPON ANY PROPORTION OF
THE GROSS RECEIPTS, IN THE PROMOTION OF A SEXUAL PERFORMANCE  FOR  SALE,
RENTAL  OR  EXHIBITION OR IN THE PROMOTION, PRESENTATION OR DIRECTION OF
ANY SEXUAL PERFORMANCE, OR IS IN ANY WAY RESPONSIBLE FOR ACQUIRING  SUCH
MATERIAL FOR SALE, RENTAL OR EXHIBITION.
S 263.25 PROOF OF AGE OF CHILD.
  WHENEVER  IT  BECOMES  NECESSARY  FOR  THE PURPOSES OF THIS ARTICLE TO
DETERMINE WHETHER A CHILD WHO PARTICIPATED IN A SEXUAL PERFORMANCE WAS A
MINOR, THE COURT OR JURY MAY MAKE  SUCH  DETERMINATION  BY  ANY  OF  THE
FOLLOWING:  PERSONAL  INSPECTION  OF THE CHILD; INSPECTION OF THE SEXUAL
PERFORMANCE; ORAL TESTIMONY BY A WITNESS TO THE SEXUAL PERFORMANCE AS TO
THE AGE OF THE CHILD BASED UPON THE CHILD'S APPEARANCE;  EXPERT  MEDICAL
TESTIMONY  BASED UPON THE APPEARANCE OF THE CHILD IN THE SEXUAL PERFORM-
ANCE; AND ANY OTHER METHOD AUTHORIZED BY ANY APPLICABLE PROVISION OF LAW
OR BY THE RULES OF EVIDENCE AT COMMON LAW.
  S 38. Paragraph (a) of subdivision 1 of section 460.10  of  the  penal
law,  as  amended by chapter 405 of the laws of 2010, is amended to read
as follows:
  (a) Any of the felonies set forth in this  chapter:  sections  120.05,
120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
ing  to  strangulation;  sections 125.10 to 125.27 relating to homicide;
sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
135.25 relating to kidnapping; section 135.35 relating  to  labor  traf-
ficking;  section  135.65  relating to coercion; sections 140.20, 140.25
and 140.30 relating to burglary;  sections  145.05,  145.10  and  145.12
relating  to  criminal  mischief;  article one hundred fifty relating to
arson; sections 155.30, 155.35, 155.40  and  155.42  relating  to  grand
larceny;  sections  177.10, 177.15, 177.20 and 177.25 relating to health
care fraud; article one hundred  sixty  relating  to  robbery;  sections
165.45,  165.50,  165.52  and  165.54 relating to criminal possession of
stolen property; sections 165.72 and 165.73 relating to trademark  coun-
terfeiting;  sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40  and
210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
176.30  relating to insurance fraud; sections 178.20 and 178.25 relating
to criminal diversion of  prescription  medications  and  prescriptions;
sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,

S. 5226--A                         20

200.04,  200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
215.05 and 215.19 relating to bribery; sections 187.10,  187.15,  187.20
and  187.25  relating to residential mortgage fraud, sections 190.40 and
190.42 relating to criminal usury; section 190.65 relating to schemes to
defraud;  sections  205.60 and 205.65 relating to hindering prosecution;
sections 210.10, 210.15, and 215.51 relating to  perjury  and  contempt;
section  215.40  relating  to tampering with physical evidence; sections
220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39,  220.41,
220.43,  220.46,  220.55,  220.60  and  220.77  relating  to  controlled
substances; sections 225.10 and 225.20 relating  to  gambling;  sections
230.25,  230.30,  and 230.32 relating to promoting prostitution; section
230.34 relating to sex  trafficking;  sections  235.06[,]  AND  235.07[,
235.21  and  235.22]  relating  to  obscenity; sections [263.10] 263.01,
263.02, 263.03, 263.06, 263.07,  263.08,  263.09,  263.13  and  [263.15]
263.14  relating  to  [promoting a sexual performance by a] child SEXUAL
ABUSE, EXPLOITATION AND PORNOGRAPHY;  SECTION  263.18  RELATING  TO  SEX
CRIMES  AGAINST  CHILDREN;  sections  265.02,  265.03,  265.04,  265.11,
265.12, 265.13 and the provisions of section 265.10 which  constitute  a
felony  relating  to  firearms and other dangerous weapons; and sections
265.14 and 265.16 relating to criminal sale of a  firearm;  and  section
275.10,  275.20,  275.30, or 275.40 relating to unauthorized recordings;
and sections 470.05, 470.10, 470.15 and 470.20 relating to  money  laun-
dering; or
  S  39.  Subdivision  1  of  section  50-b  of the civil rights law, as
amended by chapter 320 of the laws  of  2006,  is  amended  to  read  as
follows:
  1.  The identity of any victim of a sex offense, as defined in article
one hundred thirty, ARTICLE TWO HUNDRED SIXTY-THREE or  section  255.25,
255.26  or  255.27  of  the  penal  law,  or of an offense involving the
alleged transmission of  the  human  immunodeficiency  virus,  shall  be
confidential. No report, paper, picture, photograph, court file or other
documents, in the custody or possession of any public officer or employ-
ee,  which  identifies  such a victim shall be made available for public
inspection. No such  public  officer  or  employee  shall  disclose  any
portion of any police report, court file, or other document, which tends
to  identify such a victim except as provided in subdivision two of this
section.
  S 40. 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 41. 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:

S. 5226--A                         21

  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
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 42. 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  43.  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

S. 5226--A                         22

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
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; promoting pros-
titution 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] 263.02 of
the penal law; disseminating indecent [materials] MATERIAL to minors  in
the  first  degree,  as  defined in section [235.22] 263.03 of the penal
law; riot in the first degree, as defined in section 240.06 of the penal
law; criminal anarchy, as defined in section 240.15 of  the  penal  law;
aggravated harassment of an employee by an inmate, as defined in section
240.32  of the penal law; unlawful surveillance in the second degree, as
defined in section 250.45 of the penal law; unlawful surveillance in the
first degree, as defined in section 250.50 of the penal law; endangering
the welfare of a vulnerable elderly person  in  the  second  degree,  as
defined in section 260.32 of the penal law; endangering the welfare of a
vulnerable  elderly  person  in  the first degree, as defined in section
260.34 of the penal law; use of a child in a sexual performance  IN  THE
SECOND  DEGREE,  as defined in section [263.05] 263.06 of the penal law;
USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE,  AS  DEFINED
IN SECTION 263.07 OF THE PENAL LAW; promoting an obscene sexual perform-
ance  by  a  child  IN THE SECOND DEGREE, as defined in section [263.10]
263.08 of the penal law; PROMOTING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
CHILD  IN  THE  FIRST  DEGREE, AS DEFINED IN SECTION 263.09 OF THE PENAL
LAW; POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD  IN  THE  THIRD
DEGREE,  AS  DEFINED  IN  SECTION 263.10 OF THE PENAL LAW; POSSESSING AN
OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE,  AS  DEFINED
IN  SECTION  263.11  OF  THE  PENAL  LAW;  possessing  an obscene sexual
performance by a child IN  THE  FIRST  DEGREE,  as  defined  in  section
[263.11]  263.12  of  the penal law; promoting a sexual performance by a

S. 5226--A                         23

child[, as defined in section 263.15 of  the  penal  law;  possessing  a
sexual  performance  by  a  child,  as defined in section 263.16] IN THE
SECOND DEGREE, AS DEFINED IN SECTION 263.13 OF THE PENAL LAW;  PROMOTING
A  SEXUAL  PERFORMANCE  BY  A  CHILD  IN THE FIRST DEGREE, AS DEFINED IN
SECTION 263.14 OF THE PENAL LAW; POSSESSING A SEXUAL  PERFORMANCE  BY  A
CHILD  IN  THE  THIRD  DEGREE, AS DEFINED IN SECTION 263.15 OF THE PENAL
LAW; POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE, AS
DEFINED IN SECTION 263.16 OF THE PENAL LAW; POSSESSING A SEXUAL PERFORM-
ANCE BY A CHILD IN THE FIRST DEGREE, AS DEFINED IN SECTION 263.17 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 44. 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  45. Subdivisions (f) and (p) of section 10.03 of the mental hygiene
law, subdivision (f) as amended by chapter 405 of the laws of  2010  and
subdivision  (p)  as added by chapter 7 of the laws of 2007, are amended
to read as follows:
  (f) "Designated felony" means any felony offense defined by any of the
following provisions of the penal law: assault in the second  degree  as
defined  in  section  120.05,  assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in  section
120.06,  gang  assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, strangulation
in the second degree as defined in section 121.12, strangulation in  the
first  degree  as  defined in section 121.13, manslaughter in the second
degree as defined in subdivision one of section 125.15, manslaughter  in
the  first  degree  as  defined  in section 125.20, murder in the second
degree as defined in section 125.25, aggravated  murder  as  defined  in
section 125.26, murder in the first degree as defined in section 125.27,
kidnapping in the second degree as defined in section 135.20, kidnapping
in  the first degree as defined in section 135.25, burglary in the third
degree as defined in section 140.20, burglary in the  second  degree  as
defined  in  section  140.25, burglary in the first degree as defined in
section 140.30, arson in the second degree as defined in section 150.15,
arson in the first degree as defined in section 150.20, robbery  in  the
third  degree as defined in section 160.05, robbery in the second degree
as defined in section 160.10, robbery in the first degree as defined  in
section  160.15,  promoting prostitution in the second degree as defined
in section 230.30, promoting prostitution in the first degree as defined
in section 230.32, compelling prostitution as defined in section 230.33,
disseminating indecent material to minors in the first degree as defined
in section [235.22] 263.03, use of a child in a  sexual  performance  IN
THE  SECOND DEGREE as defined in section [263.05] 263.06, USE OF A CHILD
IN A SEXUAL PERFORMANCE IN  THE  FIRST  DEGREE  AS  DEFINED  IN  SECTION
263.07, promoting an obscene sexual performance by a child IN THE SECOND
DEGREE as defined in section [263.10] 263.08, PROMOTING AN OBSCENE SEXU-

S. 5226--A                         24

AL  PERFORMANCE  BY  A  CHILD  IN THE FIRST DEGREE AS DEFINED IN SECTION
263.09, promoting a sexual performance by a child IN THE  SECOND  DEGREE
as defined in section [263.15] 263.13, PROMOTING A SEXUAL PERFORMANCE BY
A  CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.14, or any felony
attempt or conspiracy to commit any of the foregoing offenses.
  (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  46.  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 OR
230.45 of the penal law.
  S 47. 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
[or], 230.01, 230.40 OR 230.45 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, 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.
  S 48. Paragraph (b) of subdivision 3 of section  2324  of  the  public
health law, as amended by chapter 680 of the laws of 1967, is amended to
read as follows:
  (b)  An  admission or finding of guilt of any person of a violation of
section 230.40 OR 230.45 of  the  penal  law  at  such  place  shall  be
presumptive  evidence  of  the  nuisance,  and  a  plea  of  guilty or a
conviction in a criminal action of maintaining a nuisance at  the  place
described  in  the  complaint  shall  be  prima  facie  evidence  of the
nuisance, and the records of any court  in  the  jurisdiction  shall  be
admissible as evidence to prove the conviction or plea of guilty.
  S  49.  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. 5226--A                         25

  S  50.  Subdivisions  1 and 4 of section 126 of the alcoholic beverage
control law, as amended by section 50 of subpart B of part C of  chapter
62 of the laws of 2011, are amended to read as follows:
  1.  Except  as provided in subdivision one-a of this section, a person
who has been convicted of a felony or any of the misdemeanors  mentioned
in  section eleven hundred forty-six of the former penal law as in force
and effect  immediately  prior  to  September  first,  nineteen  hundred
sixty-seven,  or of an offense defined in section 230.20 [or], 230.40 OR
230.45 of the penal law,  unless  subsequent  to  such  conviction  such
person  shall  have  received an executive pardon therefor removing this
disability, a certificate of good conduct granted by the  department  of
corrections  and  community supervision, or a certificate of relief from
disabilities granted by the  department  of  corrections  and  community
supervision or a court of this state pursuant to the provisions of arti-
cle  twenty-three  of  the correction law to remove the disability under
this section because of such conviction.
  4. A copartnership or a corporation, unless each member of  the  part-
nership,  or  each of the principal officers and directors of the corpo-
ration, is a citizen of the United States or an alien lawfully  admitted
for  permanent  residence in the United States, not less than twenty-one
years of age, and has not been convicted of any felony  or  any  of  the
misdemeanors,  specified  in  section  eleven  hundred  forty-six of the
former penal law as in force and effect immediately prior  to  September
first, nineteen hundred sixty-seven, or of an offense defined in section
230.20  [or],  230.40 OR 230.45 of the penal law, or if so convicted has
received, subsequent to such conviction, an  executive  pardon  therefor
removing  this  disability  a certificate of good conduct granted by the
department of corrections and community supervision, or a certificate of
relief from disabilities granted by the department  of  corrections  and
community  supervision,  or  a  court  of  this  state  pursuant  to the
provisions of article twenty-three of the correction law to  remove  the
disability  under  this  section  because  of  such conviction; provided
however that a corporation which otherwise conforms to the  requirements
of  this  section  and  chapter may be licensed if each of its principal
officers and more than one-half of its directors  are  citizens  of  the
United States or aliens lawfully admitted for permanent residence in the
United  States;  and provided further that a corporation organized under
the not-for-profit corporation law or the education law which  otherwise
conforms to the requirements of this section and chapter may be licensed
if  each  of its principal officers and more than one-half of its direc-
tors are not less than twenty-one years of age and none of its directors
are less than eighteen years of age; and provided further that a  corpo-
ration  organized under the not-for-profit corporation law or the educa-
tion law and located on the premises of a college as defined by  section
two of the education law which otherwise conforms to the requirements of
this  section and chapter may be licensed if each of its principal offi-
cers and each of its directors are not less than eighteen years of age.
  S 51. 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  OR 230.45 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

S. 5226--A                         26

shall  be  presumptive evidence of conduct constituting use of the prem-
ises for purposes of prostitution.
  S  52.  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 OR 230.45 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 53. Subdivision 2 of section 35.07 of the arts and cultural  affairs
law,  as added by chapter 160 of the laws of 2007, is amended to read as
follows:
  2. It shall be unlawful for any person to employ, use or  exhibit  any
person  under  eighteen  years  of  age  as a dancer or performer in any
portion of a facility open to the public wherein performers  appear  and
dance  or otherwise perform unclothed, under circumstances in which such
employment would be harmful to such person  in  the  manner  defined  in
subdivision [six] TWELVE of section [235.20] 263.00 of the penal law.
  S  54.  Subdivision 1 of section 390-c of the general business law, as
added by chapter 160 of the laws of 2007, is amended to read as follows:
  1. No person under the age of eighteen years shall be admitted to  any
portion  of  a facility open to the public wherein performers appear and
dance or otherwise perform unclothed, under circumstances where  viewing
such  dancing  or  performance  would  be harmful to such person, in the
manner described in subdivision [six] TWELVE of section [235.20]  263.00
of the penal law.
  S 55. Paragraph s of subdivision 2 of section 133 of the labor law, as
added by chapter 160 of the laws of 2007, is amended to read as follows:
  s.  as  a dancer or performer in any portion of a facility open to the
public  wherein  performers  appear  and  dance  or  otherwise   perform
unclothed, under circumstances in which such employment would be harmful
to  such  person  in  the  manner defined in subdivision [six] TWELVE of
section [235.20] 263.00 of the penal law.
  S 56. Subdivision 6 of section 6330 of  the  civil  practice  law  and
rules, as amended by chapter 826 of the laws of 1972, is amended to read
as follows:
  6. The court, in its adjudication, may (1) grant the relief sought (2)
deny  the  relief  sought or (3) enjoin the sale, further sale, display,
distribution,  further  distribution,   acquisition,   publication,   or
possession  of the material, to persons under the age of seventeen, upon
a finding that the material is of the kind described  in  paragraph  [a]
(A)  or  [b]  (B)  of  subdivision one of section [235.21] 263.02 of the
penal law.
  S 57. Paragraphs (b) and (c) of subdivision 4 of section 509-cc of the
vehicle and traffic law, paragraph (b) as amended by chapter 400 of  the
laws of 2011, are amended to read as follows:
  (b)  The offenses referred to in subparagraph (ii) of paragraph (a) of
subdivision one and paragraph (b) of subdivision  two  of  this  section
that  result  in  permanent  disqualification shall include a conviction
under sections 100.13, 105.15, 105.17, 115.08, 120.12,  120.70,  125.10,
125.11,  130.40,  130.53,  130.60,  130.65-a,  135.20,  160.15,  220.18,
220.21, 220.39, 220.41, 220.43, 220.44, 230.25, 260.00, 263.06,  263.07,

S. 5226--A                         27

263.08,   263.09,   263.13,   263.14,  265.04  OR  ARTICLE  TWO  HUNDRED
SIXTY-THREE of the penal law or an attempt to commit any of  the  afore-
said  offenses  under  section  110.00 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.
  (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, 263.02, 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  58.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law.