Senate Bill S94

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    94
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sen. KAMINSKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 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:
 § 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.
   § 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00979-01-1

 S. 94                               2
 
 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;
   § 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.
   §  4.  Section 145.60 of the penal law, as added by chapter 458 of the
 laws of 1992, is amended to read as follows:
 § 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.
   §  5.  The penal law is amended by adding a new section 145.62 to read
 as follows:
 § 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
   A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST DEGREE WHEN  HE  OR
 SHE  COMMITS  THE  OFFENSE  OF  MAKING  GRAFFITI IN THE SECOND DEGREE AS
 DEFINED IN SECTION 145.60 OF THIS ARTICLE:
   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

 S. 94                               3
 
 BUILDING, STRUCTURE OR CURTILAGE THEREOF DESCRIBED IN SUBDIVISION TWO OF
 THIS SECTION.
   MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
   § 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
   § 7. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.