Amd Pen L, generally; amd S995, Exec L; amd S509-cc, V & T L
Relates to offenses involving the sexual performance of a child; increases penalties for offenses involving promoting and possessing the sexual performance of a child.
STATE OF NEW YORK
________________________________________________________________________
281--A
2011-2012 Regular Sessions
IN ASSEMBLY(Prefiled)
January 5, 2011
___________
Introduced by M. of A. PAULIN, GUNTHER, SCHIMMINGER, GALEF, ROBINSON,
N. RIVERA, ENGLEBRIGHT, BENEDETTO, MAGNARELLI, LATIMER, GABRYSZAK --
Multi-Sponsored by -- M. of A. CLARK, COLTON, CURRAN, DINOWITZ, HOOP-
ER, MARKEY, SWEENEY, WEISENBERG -- read once and referred to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the penal law, the executive law and the vehicle and
traffic law, in relation to offenses involving sexual performances by
a child
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 263.09 to
2 read as follows:
3 § 263.09 Promoting an obscene sexual performance by a child in the first
4 degree.
5 A person is guilty of promoting an obscene sexual performance by a
6 child in the first degree when, knowing the character and content there-
7 of, he produces, directs or promotes twenty-five or more obscene
8 performances which include sexual conduct by a child less than seventeen
9 years of age.
10 Promoting an obscene sexual performance by a child in the first degree
11 is a class C felony.
12 § 2. Section 263.10 of the penal law, as amended by chapter 1 of the
13 laws of 2000, is amended to read as follows:
14 § 263.10 Promoting an obscene sexual performance by a child in the
15 second degree.
16 A person is guilty of promoting an obscene sexual performance by a
17 child in the second degree when, knowing the character and content ther-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00833-02-2
A. 281--A 2
1 eof, he produces, directs or promotes any obscene performance which
2 includes sexual conduct by a child less than seventeen years of age.
3 Promoting an obscene sexual performance by a child in the second
4 degree is a class D felony.
5 § 3. Section 263.11 of the penal law, as added by chapter 11 of the
6 laws of 1996, is amended to read as follows:
7 § 263.11 Possessing an obscene sexual performance by a child in the
8 third degree.
9 A person is guilty of possessing an obscene sexual performance by a
10 child in the third degree when, knowing the character and content there-
11 of, he knowingly has in his possession or control any obscene perform-
12 ance which includes sexual conduct by a child less than sixteen years of
13 age.
14 Possessing an obscene sexual performance by a child in the third
15 degree is a class E felony.
16 § 4. The penal law is amended by adding three new sections 263.12,
17 263.13 and 263.14 to read as follows:
18 § 263.12 Possessing an obscene sexual performance by a child in the
19 second degree.
20 A person is guilty of possessing an obscene sexual performance by a
21 child in the second degree when, knowing the character and content ther-
22 eof, he knowingly has in his possession or control twenty-five or more
23 obscene performances which include sexual conduct by a child less than
24 sixteen years of age.
25 Possessing an obscene sexual performance by a child in the second
26 degree is a class D felony.
27 § 263.13 Possessing an obscene sexual performance by a child in the
28 first degree.
29 A person is guilty of possessing an obscene sexual performance by a
30 child in the first degree when, knowing the character and content there-
31 of, he knowingly has in his possession or control two hundred fifty or
32 more obscene performances which include sexual conduct by a child less
33 than sixteen years of age.
34 Possessing an obscene sexual performance by a child in the first
35 degree is a class C felony.
36 § 263.14 Promoting a sexual performance by a child in the first degree.
37 A person is guilty of promoting a sexual performance by a child in the
38 first degree when, knowing the character and content thereof, he produc-
39 es, directs or promotes twenty-five or more performances which includes
40 sexual conduct by a child less than seventeen years of age.
41 Promoting a sexual performance by a child in the first degree is a
42 class C felony.
43 § 5. Section 263.15 of the penal law, as amended by chapter 1 of the
44 laws of 2000, is amended to read as follows:
45 § 263.15 Promoting a sexual performance by a child in the second degree.
46 A person is guilty of promoting a sexual performance by a child in the
47 second degree when, knowing the character and content thereof, he
48 produces, directs or promotes any performance which includes sexual
49 conduct by a child less than seventeen years of age.
50 Promoting a sexual performance by a child in the second degree is a
51 class D felony.
52 § 6. Section 263.16 of the penal law, as added by chapter 11 of the
53 laws of 1996, is amended and two new sections 263.17 and 263.18 are
54 added to read as follows:
55 § 263.16 Possessing a sexual performance by a child in the third degree.
A. 281--A 3
1 A person is guilty of possessing a sexual performance by a child in
2 the third degree when, knowing the character and content thereof, he
3 knowingly has in his possession or control any performance which
4 includes sexual conduct by a child less than sixteen years of age.
5 Possessing a sexual performance by a child in the third degree is a
6 class E felony.
7 § 263.17 Possessing a sexual performance by a child in the second
8 degree.
9 A person is guilty of possessing a sexual performance by a child in
10 the second degree when, knowing the character and content thereof, he
11 knowingly has in his possession or control twenty-five or more perform-
12 ances which includes sexual conduct by a child less than sixteen years
13 of age.
14 Possessing a sexual performance by a child in the second degree is a
15 class D felony.
16 § 263.18 Possessing a sexual performance by a child in the first degree.
17 A person is guilty of possessing a sexual performance by a child in
18 the first degree when, knowing the character and content thereof, he
19 knowingly has in his possession or control two hundred fifty or more
20 performances which includes sexual conduct by a child less than sixteen
21 years of age.
22 Possessing a sexual performance by a child in the first degree is a
23 class C felony.
24 § 7. Subdivision 1 of section 263.20 of the penal law, as amended by
25 chapter 1 of the laws of 2000, is amended to read as follows:
26 1. Under this article, it shall be an affirmative defense that the
27 defendant in good faith reasonably believed the person appearing in the
28 performance was, for purposes of section 263.11 [or], 263.12, 263.13,
29 263.16, 263.17 or 263.18 of this article, sixteen years of age or over
30 or, for purposes of section 263.05, 263.09, 263.10, 263.14 or 263.15 of
31 this article, seventeen years of age or over.
32 § 8. Paragraph (d) of subdivision 7 of section 995 of the executive
33 law, as amended by chapter 2 of the laws of 2006, is amended to read as
34 follows:
35 (d) any of the following felonies, or an attempt thereof where such
36 attempt is a felony offense:
37 aggravated assault upon a person less than eleven years old, as
38 defined in section 120.12 of the penal law; menacing in the first
39 degree, as defined in section 120.13 of the penal law; reckless endan-
40 germent in the first degree, as defined in section 120.25 of the penal
41 law; stalking in the second degree, as defined in section 120.55 of the
42 penal law; criminally negligent homicide, as defined in section 125.10
43 of the penal law; vehicular manslaughter in the second degree, as
44 defined in section 125.12 of the penal law; vehicular manslaughter in
45 the first degree, as defined in section 125.13 of the penal law;
46 persistent sexual abuse, as defined in section 130.53 of the penal law;
47 aggravated sexual abuse in the fourth degree, as defined in section
48 130.65-a of the penal law; female genital mutilation, as defined in
49 section 130.85 of the penal law; facilitating a sex offense with a
50 controlled substance, as defined in section 130.90 of the penal law;
51 unlawful imprisonment in the first degree, as defined in section 135.10
52 of the penal law; custodial interference in the first degree, as defined
53 in section 135.50 of the penal law; criminal trespass in the first
54 degree, as defined in section 140.17 of the penal law; criminal tamper-
55 ing in the first degree, as defined in section 145.20 of the penal law;
56 tampering with a consumer product in the first degree, as defined in
A. 281--A 4
1 section 145.45 of the penal law; robbery in the third degree as defined
2 in section 160.05 of the penal law; identity theft in the second degree,
3 as defined in section 190.79 of the penal law; identity theft in the
4 first degree, as defined in section 190.80 of the penal law; promoting
5 prison contraband in the first degree, as defined in section 205.25 of
6 the penal law; tampering with a witness in the third degree, as defined
7 in section 215.11 of the penal law; tampering with a witness in the
8 second degree, as defined in section 215.12 of the penal law; tampering
9 with a witness in the first degree, as defined in section 215.13 of the
10 penal law; criminal contempt in the first degree, as defined in subdivi-
11 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
12 criminal contempt, as defined in section 215.52 of the penal law; bail
13 jumping in the second degree, as defined in section 215.56 of the penal
14 law; bail jumping in the first degree, as defined in section 215.57 of
15 the penal law; patronizing a prostitute in the second degree, as defined
16 in section 230.05 of the penal law; patronizing a prostitute in the
17 first degree, as defined in section 230.06 of the penal law; promoting
18 prostitution in the second degree, as defined in section 230.30 of the
19 penal law; promoting prostitution in the first degree, as defined in
20 section 230.32 of the penal law; compelling prostitution, as defined in
21 section 230.33 of the penal law; disseminating indecent materials to
22 minors in the second degree, as defined in section 235.21 of the penal
23 law; disseminating indecent materials to minors in the first degree, as
24 defined in section 235.22 of the penal law; riot in the first degree, as
25 defined in section 240.06 of the penal law; criminal anarchy, as defined
26 in section 240.15 of the penal law; aggravated harassment of an employee
27 by an inmate, as defined in section 240.32 of the penal law; unlawful
28 surveillance in the second degree, as defined in section 250.45 of the
29 penal law; unlawful surveillance in the first degree, as defined in
30 section 250.50 of the penal law; endangering the welfare of a vulnerable
31 elderly person, or an incompetent or physically disabled person in the
32 second degree, as defined in section 260.32 of the penal law; endanger-
33 ing the welfare of a vulnerable elderly person, or an incompetent or
34 physically disabled person in the first degree, as defined in section
35 260.34 of the penal law; use of a child in a sexual performance, as
36 defined in section 263.05 of the penal law; promoting an obscene sexual
37 performance by a child in the first degree as defined in section 263.09
38 of the penal law; promoting an obscene sexual performance by a child in
39 the second degree, as defined in section 263.10 of the penal law;
40 possessing an obscene sexual performance by a child in the third degree,
41 as defined in section 263.11 of the penal law; possessing an obscene
42 sexual performance by a child in the second degree as defined in section
43 263.12 of the penal law; possessing an obscene sexual performance by a
44 child in the first degree as defined in section 263.13 of the penal law;
45 promoting a sexual performance by a child in the first degree as defined
46 in section 263.14 of the penal law; promoting a sexual performance by a
47 child in the second degree, as defined in section 263.15 of the penal
48 law; possessing a sexual performance by a child in the third degree, as
49 defined in section 263.16 of the penal law; possessing a sexual perform-
50 ance by a child in the second degree as defined in section 263.17 of the
51 penal law; possessing a sexual performance by a child in the first
52 degree as defined in section 263.18 of the penal law; criminal
53 possession of a weapon in the third degree, as defined in section 265.02
54 of the penal law; criminal sale of a firearm in the third degree, as
55 defined in section 265.11 of the penal law; criminal sale of a firearm
56 to a minor, as defined in section 265.16 of the penal law; unlawful
A. 281--A 5
1 wearing of a body vest, as defined in section 270.20 of the penal law;
2 hate crimes as defined in section 485.05 of the penal law; and crime of
3 terrorism, as defined in section 490.25 of the penal law; or
4 § 9. Subdivisions 1 and 2 of section 263.00 of the penal law, as
5 amended by chapter 1 of the laws of 2000, are amended to read as
6 follows:
7 1. "Sexual performance" means any performance or part thereof which,
8 for purposes of [section] sections 263.16, 263.17 and 263.18 of this
9 article, includes sexual conduct by a child less than sixteen years of
10 age or, for purposes of section 263.05, 263.14 or 263.15 of this arti-
11 cle, includes sexual conduct by a child less than seventeen years of
12 age.
13 2. "Obscene sexual performance" means any performance which, for
14 purposes of [section] sections 263.11, 263.12 and 263.13 of this arti-
15 cle, includes sexual conduct by a child less than sixteen years of age
16 or, for purposes of [section] sections 263.09 and 263.10 of this arti-
17 cle, includes sexual conduct by a child less than seventeen years of
18 age, in any material which is obscene, as such term is defined in
19 section 235.00 of this chapter.
20 § 10. Paragraph (a) of subdivision 1 of section 460.10 of the penal
21 law, as amended by chapter 405 of the laws of 2010, is amended to read
22 as follows:
23 (a) Any of the felonies set forth in this chapter: sections 120.05,
24 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
25 ing to strangulation; sections 125.10 to 125.27 relating to homicide;
26 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
27 135.25 relating to kidnapping; section 135.35 relating to labor traf-
28 ficking; section 135.65 relating to coercion; sections 140.20, 140.25
29 and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12
30 relating to criminal mischief; article one hundred fifty relating to
31 arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
32 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
33 care fraud; article one hundred sixty relating to robbery; sections
34 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
35 stolen property; sections 165.72 and 165.73 relating to trademark coun-
36 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
37 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
38 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
39 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
40 to criminal diversion of prescription medications and prescriptions;
41 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
42 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
43 215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20
44 and 187.25 relating to residential mortgage fraud, sections 190.40 and
45 190.42 relating to criminal usury; section 190.65 relating to schemes to
46 defraud; sections 205.60 and 205.65 relating to hindering prosecution;
47 sections 210.10, 210.15, and 215.51 relating to perjury and contempt;
48 section 215.40 relating to tampering with physical evidence; sections
49 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41,
50 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
51 substances; sections 225.10 and 225.20 relating to gambling; sections
52 230.25, 230.30, and 230.32 relating to promoting prostitution; section
53 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and
54 235.22 relating to obscenity; sections 263.09, 263.10 and 263.15 relat-
55 ing to promoting a sexual performance by a child; sections 265.02,
56 265.03, 265.04, 265.11, 265.12, 265.13 and the provisions of section
A. 281--A 6
1 265.10 which constitute a felony relating to firearms and other danger-
2 ous weapons; and sections 265.14 and 265.16 relating to criminal sale of
3 a firearm; and section 275.10, 275.20, 275.30, or 275.40 relating to
4 unauthorized recordings; and sections 470.05, 470.10, 470.15 and 470.20
5 relating to money laundering; or
6 § 11. Paragraph (b) of subdivision 4 of section 509-cc of the vehicle
7 and traffic law, as amended by chapter 400 of the laws of 2011, is
8 amended to read as follows:
9 (b) The offenses referred to in subparagraph (ii) of paragraph (a) of
10 subdivision one and paragraph (b) of subdivision two of this section
11 that result in permanent disqualification shall include a conviction
12 under sections 100.13, 105.15, 105.17, 115.08, 120.12, 120.70, 125.10,
13 125.11, 130.40, 130.53, 130.60, 130.65-a, 135.20, 160.15, 220.18,
14 220.21, 220.39, 220.41, 220.43, 220.44, 230.25, 260.00, 263.09, 263.14,
15 265.04 of the penal law or an attempt to commit any of the aforesaid
16 offenses under section 110.00 of the penal law, or any offenses commit-
17 ted under a former section of the penal law which would constitute
18 violations of the aforesaid sections of the penal law, or any offenses
19 committed outside this state which would constitute violations of the
20 aforesaid sections of the penal law.
21 § 12. This act shall take effect on the first of November next
22 succeeding the date on which it shall have become a law; provided,
23 however, that the amendments to paragraph (b) of subdivision 4 of
24 section 509-cc of the vehicle and traffic law made by section eleven of
25 this act shall take effect on the same date and in the same manner as
26 section 1 of chapter 400 of the laws of 2011, takes effect.
