The New York State Senate

                    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 Section 240.37 of the penal law is REPEALED.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

A. 9704                             3

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.