senate Bill S714A

2011-2012 Legislative Session

Creates computer sex crimes against children

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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 18, 2012 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1268
committee discharged and committed to rules
Jun 15, 2012 print number 714a
amend (t) and recommit to codes
Jan 04, 2012 referred to codes
Jan 05, 2011 referred to codes

Votes

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Bill Amendments

Original
A (Active)
Original
A (Active)

S714 - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Add Title Y-2 Art 495 §§495.00 & 495.05, amd §460.10, Pen L; amd §§200.50 & 700.05, CP L
Versions Introduced in 2009-2010 Legislative Session:
S1459

S714 - Bill Texts

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Creates computer sex crimes against children and makes it a violent felony offense when a person is convicted of a computer sex crime and the underlying crime is against a child.

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BILL NUMBER:S714

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law,
in relation to computer crimes and obscenities

PURPOSE:
This bill creates new crimes relating to the use of computers for the
purpose of committing sexual offenses against children.

SUMMARY OF PROVISIONS:
Section 1 of the bill adds Penal Law Article 495 to create the offense
of Computer Sex Crime. A person is guilty of a Computer Sex Crime
when he or she commits a "sex crime against a child" which was
facilitated by using a computer or computer service to communicate
with the victim. For purposes of this new offense, "sex crime against
a child" is defined as a felony offense, the essential elements of
which include the commission or attempted commission of sexual
conduct or the use or promotion of a sexual or obscene sexual
performance involving a child less than 17 years old. The punishment
for committing this offense is one felony class higher than for the
underlying "sex crime against a child." Where the underlying "sex
crime against a child" is a class B felony, the bill increases the
minimum determinate sentence that must be imposed.

Section 2 of the bill amends Criminal Procedure Law §200.50(4) and(7)
regarding the form and content of an indictment to provide that when
charging the offense of Computer Sex Crimes, the accusatory
instrument must particularize the "sex crime against a child, "as
defined in Penal Law § 495.00, followed by the phrase "as a computer
sex crime."

Section 3 of the bill amends Criminal Procedure Law §700.05(8) to
include certain additional computer and sex crime offenses within the
definition of "designated offense" for which law enforcement may
obtain eavesdropping or video surveillance warrants.

Section 4 of the bill amends Penal Law § 460.10(1) to include Computer
Sex Crimes (penal Law § 495) within the definition of "criminal act"
for purposes of an enterprise corruption prosecution.

JUSTIFICATION:
The dramatic increase in the use of computers, and ever-increasing
interconnection through the Internet and other networks, have
fundamentally altered the types of crimes that can be committed and
the ease with which individuals can be victimized. Most notably, the
anonymity of cyberspace is the perfect medium for predatory crimes
against vulnerable
individuals.

The incidence of such insidious offenses has increased dramatically in
recent years, and frequently involving individuals using a false
identity in an effort to engage in sexual conduct with minors. This
bill addresses this problem by significantly increasing criminal
penalties for such predators.


In particular, this bill creates a new offense of Computer Sex Crimes.
This crime occurs when a person commits a "sex crime against a
child," which was facilitated by communicating with the victim of
such offense over the Internet. "Sex crime against a child" is
defined as a felony offense, the essential elements of which include
the commission or attempted commission of sexual conduct or the use
or promotion of a sexual or obscene sexual performance involving a
child less than 17 years old. The punishment for committing this
offense is one felony class higher than for the underlying "sex crime
against a child." Where the underlying "sex crime against a child" is
a class B felony, the bill increases the minimum determinate sentence
that must be imposed.

In addition, by adding computer crimes and crimes involving the sexual
performance by a child to the eavesdropping and enterprise corruption
statutes, this bill provides law enforcement with the tools it needs
to investigate such crimes effectively.

LEGISLATIVE HISTORY:
2008: Passed Senate
2009-10: Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill takes effect on the first of November following enactment.

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

                                   714

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

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

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to computer crimes and obscenities

  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 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01996-01-1

S. 714                              2

  CRIMINAL USE OF ENCRYPTION IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 2. Section 156.00 of the penal law is amended by adding a new subdi-
vision 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 3. Section 215.35 of the penal law is amended to read as follows:
S 215.35 Tampering with physical evidence; definitions of terms.
  The following definitions are applicable to section 215.40:
  1.  "Physical  evidence"  means any article, object, document, record,
PROPERTY OF ANY KIND, or other thing of physical substance [which is  or
is  about to be produced or used as evidence in an official proceeding],
INCLUDING BUT NOT  LIMITED  TO  COMPUTER  PROGRAMS,  COMPUTER  DATA  AND
COMPUTER SERVICES AS DEFINED IN SECTION 156.00 OF THIS PART.
  2. "Official proceeding" means any action or proceeding, INVESTIGATION
OR INQUIRY conducted by or before a legally constituted judicial, legis-
lative,  administrative  or  other  governmental  agency or official, in
which evidence may properly be received OR GATHERED.
  3. "ENCRYPTION" MEANS ANY PROTECTIVE OR DISRUPTIVE MEASURE,  INCLUDING
BUT  NOT  LIMITED  TO  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, INFORMATION, IMAGE, PROGRAM, SIGNAL OR SOUND.
  S 4. 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  5.  The penal law is amended by adding a new article 495 to read as
follows:
                               ARTICLE 495
                  COMPUTER SEX CRIMES AGAINST CHILDREN

SECTION 495.00 COMPUTER SEX CRIMES.
        495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
S 495.00 COMPUTER SEX CRIMES.

S. 714                              3

  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
CHAPTER, OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL  PERFORM-
ANCE,  AS  DEFINED  IN  SECTION 263.00 OF THIS CHAPTER, (B) COMMITTED OR
ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
  1. WHEN A PERSON IS CONVICTED OF A  COMPUTER  SEX  CRIME  PURSUANT  TO
SECTION 495.00 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  495.00  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  495.00  OF  THIS
ARTICLE  AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B FELO-
NY:
  (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  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 495.00 OF THE
PENAL  LAW,  THE  DESIGNATED  OFFENSE  SHALL BE THE UNDERLYING SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF  THE
PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and

S. 714                              4

  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,  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 495.00 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 SUCH  SECTION  495.00,
BY  USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMU-
NICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
  S 7. Paragraph (c) of subdivision 5 of section  156.00  of  the  penal
law, as amended by chapter 558 of the laws of 2006, is amended and a new
paragraph (d) is added to read as follows:
  (c)  is  not  and is not intended to be available to anyone other than
the person or persons  rightfully  in  possession  thereof  or  selected
persons  having  access thereto with his, her or their consent and which
accords or may accord such rightful possessors an advantage over compet-
itors or other persons who do not have knowledge or the  benefit  there-
of[.]; OR
  (D) CONTAINS RECORDS OF THE EMPLOYMENT, SALARY, CREDIT OR OTHER FINAN-
CIAL OR PERSONAL INFORMATION RELATING TO ANOTHER PERSON AND SUCH RECORDS
ARE ACCESSED AFTER THE TIME AT WHICH A PERSON KNOWS OR REASONABLY SHOULD
KNOW  THAT  HE  OR  SHE IS WITHOUT AUTHORIZATION TO VIEW THE INFORMATION
DISPLAYED.
  S 8. Subdivision 2 of section 156.10 of the penal law, as  amended  by
chapter 558 of the laws of 2006, is amended to read as follows:
  2.  he  or she thereby knowingly gains access to computer material[.];
OR
  S 9. Section 156.10 of the penal law is amended by adding a new subdi-
vision 3 to read as follows:
  3. HE OR SHE GAINS ACCESS TO SUCH  COMPUTER  OR  COMPUTER  SERVICE  BY
USING A CARD, CODE OR OTHER MEANS OF ACCESS, OR ANY COMBINATION THEREOF,

S. 714                              5

THAT  HE OR SHE KNOWS TO BE FORGED OR STOLEN, OR THROUGH USE OF A FICTI-
TIOUS IDENTITY.
  S  10.  The  opening  paragraph of section 156.20 of the penal law, as
amended by chapter 558 of the laws  of  2006,  is  amended  to  read  as
follows:
  A  person is guilty of computer tampering in the fourth degree when he
or she uses, causes  to  be  used,  or  accesses  a  computer,  computer
service,  or computer network without authorization and he or she inten-
tionally alters in any manner or destroys, DAMAGES OR CONCEALS  computer
data or a computer program of another person.
  S  11.  Subdivisions  3  and  4 of section 156.25 of the penal law, as
amended by chapter 89 of the laws  of  1993,  are  amended  to  read  as
follows:
  3.  [he]  SUCH  PERSON intentionally alters in any manner or destroys,
DAMAGES OR CONCEALS computer material; or
  4. [he] SUCH PERSON intentionally alters in any  manner  or  destroys,
DAMAGES  OR  CONCEALS computer data or a computer program so as to cause
damages in an aggregate amount exceeding one thousand dollars.
  S 12. Section 156.26 of the penal law, as amended by  chapter  590  of
the laws of 2008, is amended to read as follows:
S 156.26 Computer tampering in the second degree.
  A  person is guilty of computer tampering in the second degree when he
or she commits the crime of computer tampering in the fourth degree  and
he  or  she  intentionally  alters in any manner or destroys, DAMAGES OR
CONCEALS:
  1. computer data or a computer program: (A) so as to cause damages  in
an  aggregate  amount  exceeding  three thousand dollars, OR (B) DOES SO
WITH THE INTENT TO ENDANGER PUBLIC SAFETY, INCLUDING,  BUT  NOT  LIMITED
TO, INTERRUPTING OR IMPAIRING THE PROVIDING OF SERVICES BY ANY PUBLIC OR
PRIVATE  UTILITY  OR  BY ANY STATE, COUNTY OR LOCAL GOVERNMENTAL AGENCY,
PUBLIC CARRIER OR PUBLIC COMMUNICATION SERVICE; or
  2. computer material that contains records of the medical  history  or
medical treatment of an identified or readily identifiable individual or
individuals  and  as  a  result  of such alteration or destruction, such
individual or individuals suffer serious physical injury, and he or  she
is  aware  of and consciously disregards a substantial and unjustifiable
risk that such serious physical injury may occur.
  Computer tampering in the second degree is a class D felony.
  S 13. The opening paragraph of section 156.27 of  the  penal  law,  as
added by chapter 89 of the laws of 1993, is amended to read as follows:
  A person is guilty of computer tampering in the first degree when [he]
SUCH PERSON commits the crime of computer tampering in the fourth degree
and  [he]  SUCH  PERSON  intentionally alters in any manner or destroys,
DAMAGES OR CONCEALS computer data or a computer program so as  to  cause
damages in an aggregate amount exceeding fifty thousand dollars.
  S  14.  Subdivision  2 of section 115.00 of the penal law, as added by
chapter 422 of the laws of 1978, is amended to read as follows:
  2. to a person under sixteen years of age who  intends  to  engage  in
conduct  which  would  constitute  a crime, [he] SUCH PERSON, being over
eighteen years of age, engages in conduct  which  provides  such  person
with  means  or opportunity for the commission thereof and which in fact
aids such person to commit a crime[.]; OR
  S 15. Section 115.00 of the penal law  is  amended  by  adding  a  new
subdivision 3 to read as follows:
  3.  TO  A  PERSON WHO INTENDS TO COMMIT A CRIME, HE ENGAGES IN CONDUCT
WHICH INCLUDES THE INTENTIONAL DISCLOSURE OF A COMPUTER PASSWORD,  IDEN-

S. 714                              6

TIFYING  CODE, PERSONAL INFORMATION NUMBER, OR OTHER CONFIDENTIAL INFOR-
MATION ABOUT A COMPUTER SECURITY SYSTEM WHICH PROVIDES SUCH PERSON  WITH
MEANS  OR  OPPORTUNITY  FOR THE COMMISSION THEREOF AND IN FACT AIDS SUCH
PERSON TO COMMIT A CRIME.
  S 16. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding two new paragraphs (u) and (v) to read as follows:
  (U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
ER  TAMPERING  IN  THE  THIRD DEGREE AS DEFINED IN SECTION 156.25 OF THE
PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
156.26 OF THE PENAL LAW, COMPUTER  TAMPERING  IN  THE  FIRST  DEGREE  AS
DEFINED  IN  SECTION  156.27  OF  THE PENAL LAW, UNLAWFUL DUPLICATION OF
COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
CRIMINAL POSSESSION OF COMPUTER RELATED MATERIAL AS DEFINED  IN  SECTION
156.35 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 AND DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE AS
DEFINED IN SECTION 235.22 OF THE PENAL LAW.
  (V) USE OF A CHILD IN A  SEXUAL  PERFORMANCE  AS  DEFINED  IN  SECTION
263.05  OF  THE  PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.10  OF  THE  PENAL  LAW,  POSSESSING  AN
OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD AS DEFINED IN SECTION 263.11 OF
THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS  DEFINED  IN
SECTION  263.15  OF  THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
  S 17. 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;  SECTION 156.10 RELATING TO COMPUTER TRESPASS; SECTIONS 156.25,
156.26 AND 156.27 RELATING TO COMPUTER TAMPERING; SECTION 156.30  RELAT-
ING TO UNLAWFUL DUPLICATION OF COMPUTER RELATED MATERIAL; SECTION 156.35
RELATING  TO  CRIMINAL  POSSESSION OF COMPUTER RELATED MATERIAL; SECTION
156.41 RELATING TO CRIMINAL USE OF ENCRYPTION; 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 counterfeiting;  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, 200.04, 200.10,  200.11,
200.12, 200.20, 200.22, 200.25, 200.27, 215.00, 215.05 and 215.19 relat-
ing  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

S. 714                              7

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, 235.07, 235.21 and 235.22 relating  to
obscenity;  sections  263.05,  263.10  [and],  263.11, 263.15 AND 263.16
relating to [promoting]  a  sexual  performance  by  a  child;  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  relat-
ing  to  unauthorized  recordings; [and] sections 470.05, 470.10, 470.15
and 470.20 relating to money laundering AND SECTION 495.00  RELATING  TO
COMPUTER SEX CRIMES; or
  S  18.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law.

S714A (ACTIVE) - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Add Title Y-2 Art 495 §§495.00 & 495.05, amd §460.10, Pen L; amd §§200.50 & 700.05, CP L
Versions Introduced in 2009-2010 Legislative Session:
S1459

S714A (ACTIVE) - Bill Texts

view summary

Creates computer sex crimes against children and makes it a violent felony offense when a person is convicted of a computer sex crime and the underlying crime is against a child.

view sponsor memo
BILL NUMBER:S714A

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law,
in relation to computer sex crimes against children

PURPOSE:
This bill creates new crimes relating to the use of computers for the
purpose of committing sexual offenses against children.

SUMMARY OF PROVISIONS:
Section 1 of the bill adds Penal Law Article 495 to create the offense
of Computer Sex Crime. A person is guilty of a Computer Sex Crime
when he or she commits a "sex crime against a child" which was
facilitated by using a computer or computer service to communicate
with the victim. For purposes of this new offense, "sex crime
against a child" is defined as a felony offense, the essential
elements of which include the commission or attempted commission of
sexual conduct or the use or promotion of a sexual or obscene sexual
performance involving a child less than 17 years old. The punishment
for committing this offense is one felony class higher than for the
underlying "sex crime against a child." Where the underlying "sex
crime against a child" is a class B felony, the bill increases the
minimum determinate sentence that must be imposed.

Section 2 of the bill amends Criminal Procedure Law §200.50(4) and(7)
regarding the form and content of an indictment to provide that when
charging the offense of Computer Sex Crimes, the accusatory
instrument must particularize the "sex crime against a child, "as
defined in Penal Law § 495.00, followed by the phrase "as a computer
sex crime."

Section 3 of the bill amends Criminal Procedure Law §700.05(B) to
include certain additional computer and sex crime offenses within the
definition of "designated offense" for which law enforcement may
obtain eavesdropping or video surveillance warrants.

Section 4 of the bill amends Penal Law § 460.10(1) to include Computer
Sex Crimes (penal Law § 495) within the definition of "criminal act"
for purposes of an enterprise corruption prosecution.

JUSTIFICATION:
The dramatic increase in the use of computers, and ever-increasing
interconnection through the Internet and other networks, have
fundamentally altered the types of crimes that can be committed and
the ease with which individuals can be victimized. Most notably, the
anonymity of cyberspace is the perfect medium for predatory crimes
against vulnerable individuals.

The incidence of such insidious offenses has increased dramatically in
recent years, and frequently involving individuals using a false
identity in an effort to engage in sexual conduct with minors. This
bill addresses this problem by significantly increasing criminal
penalties for such predators.


In particular, this bill creates a new offense of Computer Sex Crimes.
This crime occurs when a person commits a "sex crime against a
child," which was facilitated by communicating with the victim of
such offense over the Internet. "Sex crime against a child" is
defined as a felony offense, the essential elements of which include
the commission or attempted commission of sexual conduct or the use
or promotion of a sexual or obscene sexual performance involving a
child less than 17 years old. The punishment for committing this
offense is one felony class higher than for the underlying "sex crime
against a child." Where the underlying "sex crime against a child" is
a class B felony, the bill increases the minimum determinate sentence
that must be imposed.

In addition, by adding computer crimes and crimes involving the sexual
performance by a child to the eavesdropping and enterprise corruption
statutes, this bill provides law enforcement with the tools it needs
to investigate such crimes effectively.

LEGISLATIVE HISTORY:
2008: Passed Senate
2009-10: Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill takes effect on the first of November following enactment.

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

                                 714--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  ROBACH -- 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  penal  law  and  the criminal procedure law, in
  relation to computer sex crimes against children

  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 title Y-2 to read
as follows:
                                TITLE Y-2
                  COMPUTER SEX CRIMES AGAINST CHILDREN
                               ARTICLE 495
                  COMPUTER SEX CRIMES AGAINST CHILDREN
SECTION 495.00 COMPUTER SEX CRIMES.
        495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
S 495.00 COMPUTER SEX CRIMES.
  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
CHAPTER,  OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL PERFORM-
ANCE, AS DEFINED IN SECTION 263.00 OF THIS  CHAPTER,  (B)  COMMITTED  OR
ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01996-02-2

S. 714--A                           2

  1.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 495.00 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 495.00 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 495.00 OF THIS
ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B  FELO-
NY:
  (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 2. 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 495.00 OF THE
PENAL LAW, THE DESIGNATED OFFENSE SHALL  BE  THE  UNDERLYING  SEX  CRIME
AGAINST  A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF THE
PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and
  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,  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

S. 714--A                           3

  (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  495.00 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 SUCH SECTION 495.00,
BY USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO  COMMU-
NICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
  S  3. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding two new paragraphs (u) and (v) to read as follows:
  (U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
ER TAMPERING IN THE THIRD DEGREE AS DEFINED IN  SECTION  156.25  OF  THE
PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
156.26  OF  THE  PENAL  LAW,  COMPUTER  TAMPERING IN THE FIRST DEGREE AS
DEFINED IN SECTION 156.27 OF THE  PENAL  LAW,  UNLAWFUL  DUPLICATION  OF
COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
CRIMINAL  POSSESSION  OF COMPUTER RELATED MATERIAL AS DEFINED IN SECTION
156.35 OF THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE FIRST DEGREE AS DEFINED IN SECTION 235.22 OF THE PENAL LAW.
  (V) USE OF A CHILD IN A  SEXUAL  PERFORMANCE  AS  DEFINED  IN  SECTION
263.05  OF  THE  PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.10  OF  THE  PENAL  LAW,  POSSESSING  AN
OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD AS DEFINED IN SECTION 263.11 OF
THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS  DEFINED  IN
SECTION  263.15  OF  THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
  S 4. 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

S. 714--A                           4

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,
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, 235.07, 235.21  and
235.22  relating  to  obscenity;  sections 263.05, 263.10 [and], 263.11,
263.15 AND 263.16 relating to [promoting]  a  sexual  performance  by  a
child;  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  laundering  AND
SECTION 495.00 RELATING TO COMPUTER SEX CRIMES; or
  S 5. 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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