S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9704
 
                           I N  A S S E M B L Y
 
                             February 2, 2018
                                ___________
 
 Introduced  by  M.  of  A. PAULIN, SEAWRIGHT, DICKENS, DINOWITZ, D'URSO,
   GALEF, GOTTFRIED, HOOPER, JAFFEE, JENNE, JOYNER,  PICHARDO,  L. ROSEN-
   THAL,  SIMON,  STECK,  ERRIGO  --  Multi-Sponsored  by  --  M.  of  A.
   DE LA ROSA, MAGEE -- read once and referred to the Committee on Codes
 
 AN ACT to repeal section 240.37 of the penal law, relating to  loitering
   for  the  purpose  of engaging in a prostitution offense; and to amend
   the penal law, the criminal procedure law, the social services law and
   the administrative code of the city of New York, in relation to making
   technical corrections relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 240.37 of the penal law is REPEALED.
   §  2.  Section 230.01 of the penal law, as added by chapter 368 of the
 laws of 2015, is amended to read as follows:
 § 230.01 Prostitution; affirmative defense.
   In any prosecution under  section  230.00[,]  OR  section  230.03  [or
 subdivision  two  of  section 240.37] of this part, it is an affirmative
 defense that the defendant's participation in the offense was  a  result
 of having been a victim of compelling prostitution under section 230.33,
 a  victim  of  sex trafficking under section 230.34 of this article or a
 victim  of  trafficking  in  persons  under  the   trafficking   victims
 protection act (United States Code, Title 22, Chapter 78).
   §  3. Section 60.47 of the criminal procedure law, as added by section
 2 of part I of chapter 57 of the laws of 2015, is  amended  to  read  as
 follows:
 § 60.47 Possession of condoms; receipt into evidence.
   Evidence  that  a  person was in possession of one or more condoms may
 not be admitted at any trial, hearing, or other proceeding in  a  prose-
 cution  for  section 230.00 [or section 240.37] of the penal law for the
 purpose of establishing probable cause for  an  arrest  or  proving  any
 person's commission or attempted commission of such offense.
   §  4. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the
 criminal procedure law, paragraph (c) as amended by chapter 762  of  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13841-02-8

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 laws  of 1971 and paragraph (d) as amended by chapter 232 of the laws of
 2010, are amended to read as follows:
   (c) A misdemeanor defined outside the penal law which would constitute
 a  felony  if  such  person  had a previous judgment of conviction for a
 crime[; or
   (d) Loitering for the purpose of engaging in a prostitution offense as
 defined in subdivision two of section 240.37 of the penal law].
   § 5. Subdivision 4 of section 170.30 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4. After arraignment upon an information, a simplified information,  a
 prosecutor's information or misdemeanor complaint on a charge of prosti-
 tution pursuant to section 230.00 of the penal law [or loitering for the
 purposes  of  prostitution pursuant to subdivision two of section 240.37
 of the penal law, provided that the person does not stand  charged  with
 loitering  for  the  purpose  of  patronizing  a  prostitute, where such
 offense allegedly occurred when the  person  was  sixteen  or  seventeen
 years  of  age,] the local criminal court may dismiss such charge in its
 discretion in the interest of justice on the  ground  that  a  defendant
 participated in services provided to him or her.
   §  6.  The opening paragraph of subdivision 1 of section 170.80 of the
 criminal procedure law, as amended by chapter 402 of the laws  of  2014,
 is amended to read as follows:
   Notwithstanding  any  other  provision of law, at any time at or after
 arraignment on a charge of prostitution pursuant to  section  230.00  of
 the penal law [or loitering for the purposes of prostitution pursuant to
 subdivision  two  of  section 240.37 of the penal law, provided that the
 person does not stand charged with loitering for the purpose of  patron-
 izing  a  prostitute,  where  such  offense  allegedly occurred when the
 person was sixteen or  seventeen  years  of  age  except  where],  after
 consultation  with  counsel,  a knowing and voluntary plea of guilty has
 been entered to such charge, any judge or justice hearing any  stage  of
 such  case  may,  upon  consent of the defendant after consultation with
 counsel:
   § 7. Subdivision 2 of section 420.35 of the criminal procedure law, as
 amended by chapter 426 of the laws  of  2015,  is  amended  to  read  as
 follows:
   2.  Under no circumstances shall the mandatory surcharge, sex offender
 registration fee, DNA databank fee or the crime victim assistance fee be
 waived provided, however, that  a  court  may  waive  the  crime  victim
 assistance  fee  if  such  defendant  is an eligible youth as defined in
 subdivision two of section 720.10 of this chapter, and the imposition of
 such fee would work an unreasonable hardship on the  defendant,  his  or
 her  immediate  family,  or  any  other  person who is dependent on such
 defendant for financial support.  A  court  shall  waive  any  mandatory
 surcharge,  DNA  databank  fee and crime victim assistance fee when: (i)
 [the defendant is convicted of loitering for the purpose of engaging  in
 prostitution  under  section  240.37 of the penal law (provided that the
 defendant was not convicted of loitering for the purpose of  patronizing
 a  person for prostitution); (ii)] the defendant is convicted of prosti-
 tution under section 230.00 of the penal law; [(iii)] (II) the defendant
 is convicted of a violation in the event such conviction is in lieu of a
 plea to or conviction for [loitering for  the  purpose  of  engaging  in
 prostitution  under  section  240.37 of the penal law (provided that the
 defendant was not alleged to be loitering for the purpose of patronizing
 a person for prostitution) or] prostitution under section 230.00 of  the
 penal  law; or [(iv)] (III) the court finds that a defendant is a victim

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 of sex trafficking under section 230.34 of the penal law or a victim  of
 trafficking  in  persons  under  the  trafficking victims protection act
 (United States Code, Title 22, Chapter 78).
   §  8.  The  opening  paragraph  of  paragraph  (i) of subdivision 1 of
 section 440.10 of the criminal procedure law, as amended by chapter  368
 of the laws of 2015, is amended to read as follows:
   The  judgment  is  a  conviction  where the arresting charge was under
 section [240.37 (loitering for the purpose of engaging in a prostitution
 offense, provided that the defendant was not alleged to be loitering for
 the purpose of patronizing a person for prostitution or promoting  pros-
 titution)  or] 230.00 (prostitution) or 230.03 (prostitution in a school
 zone) of the penal law, and the defendant's participation in the offense
 was a result of having been a victim of sex  trafficking  under  section
 230.34  of  the penal law, labor trafficking under section 135.35 of the
 penal law, aggravated labor trafficking  under  section  135.37  of  the
 penal  law,  compelling  prostitution  under section 230.33 of the penal
 law, or trafficking in persons under the Trafficking Victims  Protection
 Act (United States Code, title 22, chapter 78); provided that
   § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4.  Notwithstanding  any  provision  in this article, a person charged
 with prostitution as defined in section 230.00  of  the  penal  law  [or
 loitering for the purposes of prostitution as defined in subdivision two
 of  section  240.37  of the penal law, provided that the person does not
 stand charged with loitering for the purpose of  patronizing  a  prosti-
 tute,  and  such  person  is aged sixteen or seventeen when such offense
 occurred,] regardless of whether such person (i) had prior to  commence-
 ment  of trial or entry of a plea of guilty been convicted of a crime or
 found a youthful offender, or (ii) subsequent  to  such  conviction  for
 prostitution  [or loitering for prostitution] is convicted of a crime or
 found a youthful offender, the provisions of subdivisions one and two of
 this section requiring or authorizing the  accusatory  instrument  filed
 against a youth to be sealed, and the arraignment and all proceedings in
 the action to be conducted in private shall apply.
   §  10.  Subdivision 1 of section 720.35 of the criminal procedure law,
 as amended by chapter 402 of the laws of 2014, is  amended  to  read  as
 follows:
   1.  A  youthful  offender adjudication is not a judgment of conviction
 for a crime or any other offense, and does not operate  as  a  disquali-
 fication  of  any  person  so  adjudged  to hold public office or public
 employment or to receive any license granted  by  public  authority  but
 shall be deemed a conviction only for the purposes of transfer of super-
 vision  and  custody pursuant to section two hundred fifty-nine-m of the
 executive law. A defendant for whom a youthful offender adjudication was
 substituted, who was originally charged with prostitution as defined  in
 section  230.00 of the penal law [or loitering for the purposes of pros-
 titution as defined in subdivision two of section 240.37  of  the  penal
 law  provided  that the person does not stand charged with loitering for
 the purpose of  patronizing  a  prostitute,  for  an  offense  allegedly
 committed  when  he or she was sixteen or seventeen years of age], shall
 be deemed a "sexually exploited child" as defined in subdivision one  of
 section four hundred forty-seven-a of the social services law and there-
 fore shall not be considered an adult for purposes related to the charg-
 es  in  the  youthful  offender proceeding or a proceeding under section
 170.80 of this chapter.

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   § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of  the
 social  services law, as amended by section 1 of part G of chapter 58 of
 the laws of 2010, are amended to read as follows:
   (c)  is a victim of the crime of compelling prostitution as defined in
 section 230.33 of the penal law;
   (d) engages in acts  or  conduct  described  in  article  two  hundred
 sixty-three [or section 240.37] of the penal law.
   §  12.  The  third  undesignated paragraph of subdivision a of section
 3-118 of the administrative code of the city of New York,  as  added  by
 local  law  number  39  of  the  city  of New York for the year 2016, is
 amended to read as follows:
   Sexually exploited youth. The term "sexually  exploited  youth"  means
 persons under the age of 18 who have been subject to sexual exploitation
 because  they  (a)  are  the  victim  of the crime of sex trafficking as
 defined in section 230.34 of the penal law; (b) engage  in  any  act  as
 defined  in  section  230.00  of  the penal law; (c) are a victim of the
 crime of compelling prostitution as defined in  section  230.33  of  the
 penal law; or (d) engage in acts or conduct described in article 263 [or
 section 240.37] of the penal law. The term shall also mean persons under
 the  age  of  18  who  have  been subject to incest in the third degree,
 second degree or first degree, as defined in  sections  255.25,  255.26,
 and  255.27  of  the penal law, respectively, or any of the sex offenses
 enumerated in article 130 of the penal law.
   § 13. This act shall take effect on the ninetieth day after  it  shall
 have become a law.