senate Bill S532A

2011-2012 Legislative Session

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property

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Sponsored By

Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 13, 2012 referred to consumer affairs and protection
delivered to assembly
passed senate
ordered to third reading cal.1165
committee discharged and committed to rules
May 21, 2012 reported and committed to codes
Apr 25, 2012 print number 532b
amend (t) and recommit to consumer protection
Jan 04, 2012 referred to consumer protection
Jun 13, 2011 print number 532a
amend (t) and recommit to consumer protection
Jan 05, 2011 referred to consumer protection

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

Co-Sponsors

S532 - Bill Details

See Assembly Version of this Bill:
A6648A
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §§60.31 & 145.62, amd §§65.10, 145.60 & 240.31, Pen L; amd §720.35, CP L; add §399-j, Gen Bus L
Versions Introduced in 2009-2010 Legislative Session:
S1856

S532 - Bill Texts

view summary

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.

view sponsor memo
BILL NUMBER:S532

TITLE OF BILL:
An act
to amend the general business law, in relation to the sale of aerosol
spray paint to persons under the age of eighteen

PURPOSE OR GENERAL IDEA OF BILL:
To deal with the pervasive problem of graffiti in urban areas by
preventing the sale of spray paint to those people under the age of
eighteen.

SUMMARY OF SPECIFIC PROVISIONS:
Section one prohibits the retail sale of non-water soluble aerosol
paint under the age of 18. The section provides for a civil penalty
not to exceed $250.00 for violations.

JUSTIFICATION:
Existing law does not prohibit the sale of spray paint to minors.
Existing laws have been insufficient to stem the tide of graffiti,
especially, in New York's urban areas. Graffiti is a pervasive
problem that causes damage to property, lowers property values and
represents a serious quality of life problem for many New Yorkers.

PRIOR LEGISLATIVE HISTORY:

2005 S.1098 (Brown) Referred to Consumer Protection
2006 S.6438 Referred to Consumer Protection
2008 S.2229 Referred to Consumer Protection
2009 S.1856 Referred to Consumer Protection

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This law shall take effect on the ninetieth day after it shall have
become law.

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

                                   532

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation  to  the  sale  of
  aerosol spray paint to persons under the age of eighteen

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

  Section 1. The general business law is amended by adding a new section
399-j to read as follows:
  S 399-J. SALE OF AEROSOL SPRAY PAINT TO PERSONS UNDER THE AGE OF EIGH-
TEEN. 1. NO AEROSOL SPRAY PAINT CAN CONTAINING A FLUID THAT IS NOT WATER
SOLUBLE SHALL BE SOLD AT RETAIL WITHIN THE STATE TO  PERSONS  UNDER  THE
AGE OF EIGHTEEN.
  2.  A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL PENALTY
NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.





 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04419-01-1

Co-Sponsors

S532A - Bill Details

See Assembly Version of this Bill:
A6648A
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §§60.31 & 145.62, amd §§65.10, 145.60 & 240.31, Pen L; amd §720.35, CP L; add §399-j, Gen Bus L
Versions Introduced in 2009-2010 Legislative Session:
S1856

S532A - Bill Texts

view summary

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.

view sponsor memo
BILL NUMBER:S532A

TITLE OF BILL:
An act
to amend the penal law, in relation to bias-related graffiti, the
disposition of graffiti offenses, graffiti for the purpose of promoting
gang related activities and graffiti upon religious property; to amend
the criminal procedure law, in relation to the unsealing of youthful
offender records relating to the commission of making graffiti in the
first degree and aggravated harassment in the first degree; and to
amend the general business law, in relation to requiring persons
engaged in the retail sale of aerosol spray paint to post notice of
provisions of and penalties for commission of graffiti offenses

PURPOSE OF THE BILL:
To address the pervasive problem of graffiti by taking a multi-faceted
approach while also recognizing that not all graffiti is the same.
Graffiti that is created in relation to gangs and graffiti made on
religious structures or curtilage should be treated with greater
severity.
Additionally, graffiti is often the tool of hateful harassment based
on race, sex, or sexual orientation and thus this legislation
addresses graffiti that is made from this hateful angle. Lastly,
educating offenders of the severity of the crime of graffiti may help
to curb it, thus, graffiti offenders are made to clean up their
graffiti and, similar to other states, advisory signs are posted at
the point of sale of aerosol spray paint is also implemented.

SUMMARY OF SPECIFIC PROVISIONS:
Section One- Amends the penal law by adding section 60.31 which allows
a judge to require completion of a diversity training program when
the graffiti creator is convicted of Aggravated harassment in the
first degree as defined in section 240.31 of the penal law.

Section Two- Amends section 65.10, subdivision 2, paragraph (h) of the
penal law to change division of substance abuse services to office of
alcoholism and substance abuse.

Section Three- Amends Section 65.10 of the penal law by adding
subdivision 6 which requires that when practicable and not dangerous,
that the court require the defendant convicted of graffiti remove the
graffiti underlying the offense.

Section Four- Amends Section 145.60 of the penal law to make that
section making graffiti in the second degree.

Section Five- Amends the penal law by adding section 145.62 to add
making graffiti in the first degree. Making graffiti in the first
degree requires graffiti in the second plus either in a manner to
promote or encourage gang
related activities or graffiti on a building, structure, or curtilage
of a place of worship or upon property consisting of religious
symbols representative of expressing faith. Graffiti in the first
degree is a Class E Felony.


Section Six- Amends section 240.31 of the penal law which defines
Aggravated harassment in the first degree to add section I-a which
includes graffiti motivated by a person's race, color, national
origin, ancestry, gender, religion, religious practice, age,
disability or sexual orientation as aggravated harassment.

Section Seven- Amends section 720.35 of the criminal procedure law to
include subdivision 5 which allows that youthful offenders convicted
of making graffiti in the first degree or aggravated harassment in
the first degree shall not have their name and crime confidential but
may be made available to any person or public or private agency.

Section Eight- Amends the general business law to add section 399-j to
require retail sellers of aerosol spray paint to conspicuously post
notice of graffiti penalties at each location of sale. Violation of
this section not to exceed two hundred and fifty dollars.

JUSTIFICATION:
These amendments recognize that existing law does not appropriately
address the growing problem of graffiti and that a simple prohibition
of the sale of spray paint to minors is not effective enough.

Graffiti is a pervasive problem that causes damage to property, lowers
property values, lowers the wellbeing of the neighborhood, may
heighten the incidence of crime, and represents a serious quality of
life problem for many New Yorkers. The laws in place now have not
gone far enough to stem the growing trend in graffiti which has even
targeted Churches and often can contain messages of hate and are
often the tool of organized criminality such as gangs.

In this vein, these amendments take into account many facets of the
issue ranging from mindless vandalism to targeted hate. First, by
warning all potential painters of graffiti of the repercussions of
their actions through signs posted at the point of sale, we may join
other states in proactive deterrence. This legislation also requires
that anyone caught creating graffiti is taught the lasting lesson of
the difficulty of cleaning up such vandalism by allowing a judge to
require, where practicable and not unduly dangerous, that as part of
the punishment that the graffiti be cleaned up with the property
owner's consent.

For less innocuous graffiti, this bill creates a class E felony to
combat this problem. It adds as Aggravated harassment in the first
degree graffiti motivated by a person's race, color, national origin,
ancestry, gender, religion, religious practice, age, disability or
sexual orientation, regardless of fact. This is creates a tool to
help those being harassed and intimidated based upon their ethnicity,
sex, or sexual orientation. It requires that those who are found to
have committed aggravated harassment, graffiti or not, that we
address the underlying problem and require that in the court's
discretion that the offender complete a diversity training program.

Also as a class E felony, this legislation creates the offense of
graffiti in the first degree when the offender creates graffiti that
either promotes or encourages gang related activities or is done on
or in the curtilage of a place of religious worship or on a display
or religious symbols. This recognizes that graffiti designed to


further crime or to attack religious freedoms is far more serious
that than graffiti created as mindless vandalism. That the underlying
sentiment is far more dangerous and should be addressed as such by
both categorization as a class E felony and by exempting those
offenders from the protections of a status as youthful offender and
keeping those records public.

This bill goes far to address the realities and spectrum of the issues
graffiti presents. It is proactive by warning potential offenders of
the punishments. It teaches the hard lessons of consequences by
requiring the errant vandal to clean up his or her mess. It also
addresses underlying problems of hate and violence by recategorizing
certain types of graffiti as class E felonies.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This law shall take effect on the first of November next succeeding
the date on which it shall have become law.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 532--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by Sens. KLEIN, AVELLA -- read twice and ordered printed, and
  when  printed  to be committed to the Committee on Consumer Protection
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and recommitted to said committee

AN ACT to amend the penal law, in relation to bias-related graffiti, the
  disposition  of graffiti offenses, graffiti for the purpose of promot-
  ing gang related activities and graffiti upon religious  property;  to
  amend  the  criminal  procedure  law,  in relation to the unsealing of
  youthful offender records relating to the commission of making graffi-
  ti in the first degree and aggravated harassment in the first  degree;
  and  to  amend  the  general  business  law,  in relation to requiring
  persons engaged in the retail sale of  aerosol  spray  paint  to  post
  notice  of  provisions  of  and  penalties  for commission of graffiti
  offenses

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

  Section  1.  The penal law is amended by adding a new section 60.31 to
read as follows:
S 60.31 AUTHORIZED  DISPOSITION;  AGGRAVATED  HARASSMENT  IN  THE  FIRST
            DEGREE.
  WHEN  A  PERSON  IS  CONVICTED  OF  AGGRAVATED HARASSMENT IN THE FIRST
DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO
COMMIT SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION  TO
ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL
DISCHARGE  THE  COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT HIS OR
HER OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO  OVER-
COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU-
NICATION,  UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS AND
ETHNIC GROUPS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04419-02-1

S. 532--A                           2

  S 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as amended by chapter 508 of the laws of 2001, is  amended  to  read  as
follows:
  (h) Perform services for a public or not-for-profit corporation, asso-
ciation,  institution  or  agency, including but not limited to services
for the [division] OFFICE of ALCOHOLISM AND  substance  abuse  services,
[services  in  an  appropriate community program for removal of graffiti
from public or private property, including any property damaged  in  the
underlying  offense,] or services for the maintenance and repair of real
or personal property maintained as a cemetery plot, grave, burial  place
or other place of interment of human remains. Provided however, that the
performance of any such services shall not result in the displacement of
employed  workers  or  in  the  impairment  of  existing  contracts  for
services, nor shall the performance of any such services be required  or
permitted  in any establishment involved in any labor strike or lockout.
The court may establish  provisions  for  the  early  termination  of  a
sentence   of   probation  or  conditional  discharge  pursuant  to  the
provisions of subdivision three of section 410.90 of the criminal proce-
dure law after such services have been completed. Such sentence may only
be imposed upon conviction of a misdemeanor, violation, or  class  D  or
class  E  felony,  or  a  youthful  offender  finding replacing any such
conviction, where the defendant has consented to the amount  and  condi-
tions of such service;
  S  3. Section 65.10 of the penal law is amended by adding a new subdi-
vision 6 to read as follows:
  6. WHEN IMPOSING A SENTENCE OF PROBATION OR OF  CONDITIONAL  DISCHARGE
IN  CONNECTION  WITH  A VIOLATION OF SECTION 145.60, 145.62 OR 145.65 OF
THIS CHAPTER, THE COURT SHALL AS A CONDITION OF  THE  SENTENCE,  REQUIRE
THAT  THE  DEFENDANT  REMOVE  GRAFFITI  FROM PUBLIC OR PRIVATE PROPERTY,
INCLUDING ANY PROPERTY DAMAGED IN THE  UNDERLYING  OFFENSE,  UNLESS  THE
COURT  SHALL  DETERMINE  THAT  AN  APPROPRIATE PROGRAM TO SUPERVISE SUCH
REMOVAL IS NOT AVAILABLE OR THAT SUCH GRAFFITI REMOVAL WOULD  BE  UNREA-
SONABLY DANGEROUS; PROVIDED, HOWEVER, THAT GRAFFITI REMOVAL FROM PRIVATE
PROPERTY PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT TO CONSENT OF THE
OWNER OF SUCH PROPERTY.
  S  4.  Section 145.60 of the penal law, as added by chapter 458 of the
laws of 1992, is amended to read as follows:
S 145.60 Making graffiti IN THE SECOND DEGREE.
  1. For purposes of this section AND SECTION 145.62  OF  THIS  ARTICLE,
the  term "graffiti" shall mean the etching, painting, covering, drawing
upon or otherwise placing of a mark upon public or private property with
intent to damage such property.
  2. [No person shall make] A PERSON IS GUILTY OF MAKING GRAFFITI IN THE
SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building,
public or private, or any other property real or personal owned  by  any
person,  firm  or  corporation  or any public agency or instrumentality,
without the express permission of the owner or operator of said  proper-
ty.
  Making graffiti IN THE SECOND DEGREE is a class A misdemeanor.
  S  5.  The penal law is amended by adding a new section 145.62 to read
as follows:
S 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST  DEGREE  WHEN  SUCH
PERSON  DAMAGES  PROPERTY  OF  ANOTHER PERSON IN THE MANNER DESCRIBED IN
SECTION 145.60 OF THIS ARTICLE AND HE OR SHE MAKES GRAFFITI OF ANY TYPE.
  1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR

S. 532--A                           3

  2. ON ANY BUILDING, STRUCTURE OR THE CURTILAGE  OF  SUCH  BUILDING  OR
STRUCTURE  USED  AS  A  PLACE OF RELIGIOUS WORSHIP BY A RELIGIOUS CORPO-
RATION, AS INCORPORATED UNDER THE RELIGIOUS CORPORATIONS  LAW,  OR  UPON
ANY PROPERTY THAT CONSISTS OF A SCROLL, RELIGIOUS VESTMENT, VESSEL, ITEM
COMPRISING A DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE
EXPRESSION OF FAITH OR OTHER MISCELLANEOUS ITEM OF PROPERTY KEPT OR USED
IN OR UPON SUCH BUILDING OR STRUCTURE.
  MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 6. Section 240.31 of the penal law is amended by adding a new subdi-
vision 1-a to read as follows:
  1-A.  ETCHES,  PAINTS,  COVERS,  DRAWS UPON OR OTHERWISE PLACES A MARK
UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT
THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL
PROPERTY; OR
  S 7.   Section 720.35 of the criminal  procedure  law  is  amended  by
adding a new subdivision 5 to read as follows:
  5.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
WHENEVER A PERSON IS ADJUDICATED A YOUTHFUL OFFENDER AND THE  CONVICTION
THAT  WAS  VACATED  AND  REPLACED  BY  THE YOUTHFUL OFFENDER FINDING WAS
EITHER MAKING GRAFFITI IN THE  FIRST  DEGREE  IN  VIOLATION  OF  SECTION
145.62  OF THE PENAL LAW OR AGGRAVATED HARASSMENT IN THE FIRST DEGREE IN
VIOLATION OF SECTION 240.31 OF THE PENAL  LAW,  THEN  THE  NAME  OF  THE
YOUTHFUL  OFFENDER AND THE CRIME FOR WHICH THE YOUTHFUL OFFENDER FINDING
WAS SUBSTITUTED SHALL NOT BE CONFIDENTIAL AND MAY BE MADE  AVAILABLE  TO
ANY PERSON OR PUBLIC OR PRIVATE AGENCY.
  S 8. The general business law is amended by adding a new section 399-j
to read as follows:
  S 399-J. RETAIL SALE OF AEROSOL SPRAY PAINT; NOTICE OF GRAFFITI PENAL-
TIES.  1.  EVERY PERSON AND ENTITY ENGAGED IN THE RETAIL SALE OF AEROSOL
SPRAY PAINT SHALL, AT EACH LOCATION AT WHICH SUCH PAINT IS DISPLAYED FOR
SALE, CONSPICUOUSLY POST A SIGN ADVISING CUSTOMERS OF THE PROVISIONS  OF
AND  PENALTIES  FOR  MAKING  GRAFFITI  IN THE FIRST DEGREE AS DEFINED IN
SECTION 145.60, MAKING GRAFFITI  IN  THE  FIRST  DEGREE  AS  DEFINED  IN
SECTION 145.62, POSSESSION OF GRAFFITI INSTRUMENTS AS DEFINED IN SECTION
145.65  AND  AGGRAVATED  HARASSMENT  IN  THE  FIRST DEGREE AS DEFINED IN
SECTION 240.31 OF THE PENAL LAW.
  2. A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL  PENALTY
NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS.
  S 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

Co-Sponsors

S532B (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A6648A
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §§60.31 & 145.62, amd §§65.10, 145.60 & 240.31, Pen L; amd §720.35, CP L; add §399-j, Gen Bus L
Versions Introduced in 2009-2010 Legislative Session:
S1856

S532B (ACTIVE) - Bill Texts

view summary

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.

view sponsor memo
BILL NUMBER:S532B

TITLE OF BILL:
An act to amend the penal law, in relation to bias-related graffiti, the
disposition of graffiti offenses, graffiti for the purpose of promoting
gang related activities and graffiti upon religious property

PURPOSE OF THE BILL:
The purpose of this bill is to address the pervasive problem of graffiti
by taking a multi-faceted approach while also recognizing that all
graffiti is the same. Graffiti that is created in relation to gangs and
graffiti made on religious structures or curtilage should be treated
with greater severity. Additionally, graffiti is often the tool of
hateful harassment based on race, religion, sex, or other factors, thus
this legislation addresses graffiti that is made from this hateful
angle. Lastly, educating offenders of the severity of the crime of
graffiti and requiring them to clean up damaged property may help to
curb the incidence of such activities.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Amends the Penal Law by adding section 60.31 which allows a
judge to require completion of a diversity training program when the
graffiti creator is convicted of Aggravated harassment in the first
degree as defined in section 240.31 of the penal law.

Section 2: Amends Penal Law section 65.10(2) (h) to change Division of
Substance Abuse Services to Office of Alcoholism and Substance Abuse.

Section 3: Amends penal Law Section 65.10 to add a new subdivision 6
which requires that, when practicable and not dangerous, the court
require that the defendant convicted of such graffiti activity remove
the graffiti from the property that was the underlying cause of the
offense.

Section 4: Amends Penal Law Section 145.60 to make that section of law
to become the lower offense of making graffiti in the second degree.

Section 5: Amends the Penal Law to add a new section 145.62 to create a
new heightened crime of making graffiti in the first degree. Making
graffiti in the first degree requires doing the commission of the crime
of graffiti in the second plus it is done in a manner that either: a)
promotes or encourages gang related activities or b) is graffiti placed
on a religious building, structure, or curtilage of a place of worship
or upon property consisting of religious symbols representative of
expressing faith. To be convicted of this crime, the assailant would
need to have knowledge that such property was religious property or was
property that embodied a religious beliefs and that such person intended
to damage such property. Graffiti in the first degree is a Class E Felo-
ny.

Section 6: Amends Penal Law section 240.31 which defines Aggravated
harassment in the first degree to add section 1-a which includes graffi-
ti placed on property that is motivated by a person's race, ancestry,
gender, religion, religious practice, or other factors as aggravated
harassment.

JUSTIFICATION:
This bill recognizes that existing law does not appropriately address
the growing problem of graffiti, especially that graffiti that is moti-
vated by gang related activity or against houses of worship or religious
property.

Graffiti is a pervasive problem that causes damage to property, lowers
property values, lowers the wellbeing of the neighborhood, may heighten
the incidence of crime, and represents a serious quality of life problem
for many New Yorkers. The laws in place now have not gone far enough to
stem the growing trend in graffiti which has even targeted Houses of
worship and often can contain messages of hate. Such graffiti can also
be used as a tool of organized gangs to promote their illegal activ-
ities.

In this vein, these amendments take into account many facets of the
issue ranging from mindless vandalism to targeted hate. First, this
legislation requires that anyone caught creating graffiti is taught the
lasting lesson of the difficulty of cleaning up such vandalism by allow-
ing a judge to require, where practicable and not unduly dangerous, that
as part of the punishment that the graffiti be cleaned up with the prop-
erty owner's consent.

This bill creates a class E felony to combat this problem. It also adds
as Aggravated harassment in the first degree graffiti motivated by a
person's characteristics such as race, national origin, gender, reli-
gion, religious practice, age, disability or other factors. This is
creates a tool to help those being harassed and intimidated based upon
their religious beliefs,ethnicity, sex, or other characteristics. It
requires that those who are found to have committed aggravated harass-
ment, graffiti or not, that we address the underlying problem and
require that in the court's discretion that the offender complete a
diversity training program.

Also as a class E felony, this legislation creates the offense of graff-
iti in the first degree when the offender creates graffiti that either
promotes or encourages gang related activities or is done on or in the
curtilage or a place of religious worship or on a display of religious
symbols. This recognizes that graffiti designed to further crime or to
attack religious freedoms is far more serious that than graffiti created
as mindless vandalism. That the underlying sentiment is far more danger-
ous and should be addressed as such by both categorization as a class E
felony.

This bill goes far to address the realities and spectrum of the issues
graffiti presents. It teaches the hard lessons of consequences by

requiring the errant vandal to clean up his or her mess. It also
addresses underlying problems of hate and violence by recategorizing
certain types of graffiti as class E felonies.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This law shall take effect on the first of November next succeeding the
date on which it shall have become law.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 532--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by Sens. KLEIN, AVELLA -- read twice and ordered printed, and
  when  printed  to be committed to the Committee on Consumer Protection
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and  recommitted  to said committee -- recommitted to the Committee on
  Consumer Protection in accordance  with  Senate  Rule  6,  sec.  8  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the penal law, in relation to bias-related graffiti, the
  disposition of graffiti offenses, graffiti for the purpose of  promot-
  ing gang related activities and graffiti upon religious property

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

  Section 1.  The penal law is amended by adding a new section 60.31  to
read as follows:
S 60.31 AUTHORIZED  DISPOSITION;  AGGRAVATED  HARASSMENT  IN  THE  FIRST
          DEGREE.
  WHEN A PERSON IS CONVICTED  OF  AGGRAVATED  HARASSMENT  IN  THE  FIRST
DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO
COMMIT  SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION TO
ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL
DISCHARGE THE COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT  HIS  OR
HER  OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO OVER-
COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU-
NICATION, UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS  AND
ETHNIC GROUPS.
  S 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as  amended  by  chapter  508 of the laws of 2001, is amended to read as
follows:
  (h) Perform services for a public or not-for-profit corporation, asso-
ciation, institution or agency, including but not  limited  to  services

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04419-04-2

S. 532--B                           2

for  the  [division]  OFFICE of ALCOHOLISM AND substance abuse services,
[services in an appropriate community program for  removal  of  graffiti
from  public  or private property, including any property damaged in the
underlying  offense,] or services for the maintenance and repair of real
or personal property maintained as a cemetery plot, grave, burial  place
or other place of interment of human remains. Provided however, that the
performance of any such services shall not result in the displacement of
employed  workers  or  in  the  impairment  of  existing  contracts  for
services, nor shall the performance of any such services be required  or
permitted  in any establishment involved in any labor strike or lockout.
The court may establish  provisions  for  the  early  termination  of  a
sentence   of   probation  or  conditional  discharge  pursuant  to  the
provisions of subdivision three of section 410.90 of the criminal proce-
dure law after such services have been completed. Such sentence may only
be imposed upon conviction of a misdemeanor, violation, or  class  D  or
class  E  felony,  or  a  youthful  offender  finding replacing any such
conviction, where the defendant has consented to the amount  and  condi-
tions of such service;
  S  3. Section 65.10 of the penal law is amended by adding a new subdi-
vision 6 to read as follows:
  6. GRAFFITI REMOVAL.   WHEN IMPOSING A SENTENCE  OF  PROBATION  OR  OF
CONDITIONAL  DISCHARGE IN CONNECTION WITH A VIOLATION OF SECTION 145.60,
145.62 OR 145.65 OF THIS CHAPTER, THE COURT SHALL AS A CONDITION OF  THE
SENTENCE,  REQUIRE  THAT  THE  DEFENDANT  REMOVE GRAFFITI FROM PUBLIC OR
PRIVATE PROPERTY, INCLUDING  ANY  PROPERTY  DAMAGED  IN  THE  UNDERLYING
OFFENSE, UNLESS THE COURT SHALL DETERMINE THAT AN APPROPRIATE PROGRAM TO
SUPERVISE  SUCH  REMOVAL  IS NOT AVAILABLE OR THAT SUCH GRAFFITI REMOVAL
WOULD  BE  UNREASONABLY  DANGEROUS;  PROVIDED,  HOWEVER,  THAT  GRAFFITI
REMOVAL  FROM  PRIVATE  PROPERTY  PURSUANT  TO THIS SUBDIVISION SHALL BE
SUBJECT TO CONSENT OF THE OWNER OF SUCH PROPERTY.
  S 4. Section 145.60 of the penal law, as added by chapter 458  of  the
laws of 1992, is amended to read as follows:
S 145.60 Making graffiti IN THE SECOND DEGREE.
  1.  For  purposes  of this section AND SECTION 145.62 OF THIS ARTICLE,
the term "graffiti" shall mean the etching, painting, covering,  drawing
upon or otherwise placing of a mark upon public or private property with
intent to damage such property.
  2. [No person shall make] A PERSON IS GUILTY OF MAKING GRAFFITI IN THE
SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building,
public  or  private, or any other property real or personal owned by any
person, firm or corporation or any  public  agency  or  instrumentality,
without  the express permission of the owner or operator of said proper-
ty.
  Making graffiti IN THE SECOND DEGREE is a class A misdemeanor.
  S 5. The penal law is amended by adding a new section 145.62  to  read
as follows:
S 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF MAKING GRAFFITI IN THE FIRST DEGREE WHEN SUCH
PERSON DAMAGES THE PROPERTY OF ANOTHER PERSON IN THE MANNER DESCRIBED IN
SECTION 145.60 OF THIS ARTICLE, BY MEANS OF MAKING GRAFFITI OF ANY TYPE:
  1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR
  2. HAVING KNOWLEDGE THAT SUCH PROPERTY IS USED AS A PLACE OF RELIGIOUS
WORSHIP, HE OR SHE DAMAGES A BUILDING, STRUCTURE  OR  THE  CURTILAGE  OF
SUCH  BUILDING  OR  STRUCTURE  USED AS A PLACE OF RELIGIOUS WORSHIP BY A
RELIGIOUS CORPORATION, AS INCORPORATED UNDER THE RELIGIOUS  CORPORATIONS
LAW; OR

S. 532--B                           3

  3.  HAVING  KNOWLEDGE  THAT SUCH PROPERTY COMPRISES A DISPLAY OF RELI-
GIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE EXPRESSION OF FAITH, HE  OR
SHE  DAMAGES  A  SCROLL,  RELIGIOUS  VESTMENT, VESSEL, ITEM COMPRISING A
DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE A  REPRESENTATIVE  EXPRESSION  OF
FAITH  OR  A  MISCELLANEOUS  ITEM  OF PROPERTY KEPT OR USED IN OR UPON A
BUILDING, STRUCTURE OR CURTILAGE THEREOF DESCRIBED IN SUBDIVISION TWO OF
THIS SECTION.
  MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 6. Section 240.31 of the penal law is amended by adding a new subdi-
vision 1-a to read as follows:
  1-A. ETCHES, PAINTS, COVERS, DRAWS UPON OR  OTHERWISE  PLACES  A  MARK
UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT
THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL
PROPERTY; OR
  S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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