S T A T E   O F   N E W   Y O R K
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                                  3740

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2013
                               ___________

Introduced  by  M.  of  A.  BENEDETTO  --  read once and referred to the
  Committee on Consumer Affairs and Protection

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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06601-01-3
              

A. 3740                             2

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
  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

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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.