A06941 Summary:

BILL NOA06941A
 
SAME ASSAME AS S02205-A
 
SPONSOROrtiz (MS)
 
COSPNSRSchroeder, Colton, Koon, Maisel, Fields, Gunther, Jaffee, Gabryszak, Mayersohn, Galef, Robinson, Titus, Espaillat
 
MLTSPNSRAlfano, Boyland, Brook-Krasny, Cook, DelMonte, Hawley, Hyer-Spencer, Kolb, Markey, Pheffer, Reilly, Scarborough, Sweeney, Weisenberg
 
Amd SS160.10, 190.30, 200.50, 610.10, 610.20, 700.05, 60.42 & 380.50, CP L; amd SS168-a, 168-f & 168-b, Cor L; rpld SS120.70, 235.20, 235.21, 235.22, 235.23 & 235.24, Art 263, amd Pen L, generally; amd SS61, 62, 64 & 50-b, Civ Rts L; amd S995, Exec L; amd S344.4, Fam Ct Act; amd S10.03, Ment Hyg L; amd S353, Mult Dwell L; amd SS2302, 2324-a & 2324, Pub Health L; amd S126, ABC L; amd S715, RPAP L; amd S231, RP L; amd S509-cc, V & T L; amd S35.07, Arts & Cul L; amd S390-c, Gen Bus L; amd S133, Lab L; amd S6330, CPLR
 
Enacts the "child sexual abuse and exploitation prevention act"; relates to prostitution offenses and creating the crime of sexual exploitation of a child; relates to computer sex crimes against children.
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A06941 Actions:

BILL NOA06941A
 
03/17/2009referred to codes
01/06/2010referred to codes
01/29/2010amend and recommit to codes
01/29/2010print number 6941a
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A06941 Floor Votes:

There are no votes for this bill in this legislative session.
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A06941 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6941--A
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 17, 2009
                                       ___________
 
        Introduced  by  M. of A. ORTIZ, SCHROEDER, COLTON, KOON, MAISEL, FIELDS,
          GUNTHER, JAFFEE, GABRYSZAK, MAYERSOHN, GALEF, ROBINSON, TITUS, ESPAIL-
          LAT -- Multi-Sponsored by -- M. of A. ALFANO,  BOYLAND,  BROOK-KRASNY,
          COOK,  DelMONTE, HYER-SPENCER, KOLB, MARKEY, PHEFFER, REILLY, SCARBOR-
          OUGH, SWEENEY, WEISENBERG -- read once and referred to  the  Committee

          on  Codes  -- recommitted to the Committee on Codes in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the criminal procedure  law,  the  correction  law,  the
          penal  law,  the  arts  and cultural affairs law, the general business
          law, the labor law and the civil practice law and rules,  in  relation
          to  enacting the "child sexual abuse and exploitation prevention act";
          to amend the penal law, in relation to creating the crime of  criminal
          use  of encryption in the first and second degrees; to amend the penal
          law, the criminal procedure law, the civil rights law,  the  executive
          law, the family court act, the mental hygiene law, the multiple dwell-
          ing  law,  the  public health law, the alcoholic beverage control law,

          the real property actions and proceedings law, the real  property  law
          and  the vehicle and traffic law, in relation to prostitution offenses
          and creating the crime of sexual exploitation of a child; to amend the
          penal law, in relation to computer sex crimes  against  children;  and
          repealing certain provisions of the penal law relating thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "child sexual abuse and exploitation prevention act".
     3    §  2.  Legislative  intent.  The legislature hereby finds and declares
     4  that the sexual abuse and exploitation of children is a continuing seri-
     5  ous problem and  such  exploitation  is  being  aided  by  technological

     6  advances that utilize the internet. The proliferation of child pornogra-
     7  phy must be addressed through legislative means that supply law enforce-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02962-04-0

        A. 6941--A                          2
 
     1  ment  with  the tools needed to combat this problem, impose penalties on
     2  those determined to abuse children and provide a  safe  environment  for
     3  child victims.
     4    §  3. Paragraph (e) of subdivision 1 of section 160.10 of the criminal
     5  procedure law, as added by chapter 344 of the laws of 1976,  is  amended
     6  and a new paragraph (f) is added to read as follows:
     7    (e) Loitering for the purpose of engaging in a prostitution offense as

     8  defined in subdivision two of section 240.37 of the penal law[.]; or
     9    (f)  Unlawful  prostitution  as defined in section 230.01 of the penal
    10  law.
    11    § 4. Section 190.30 of the criminal procedure law is amended by adding
    12  a new subdivision 9 to read as follows:
    13    9. Business records may be  received  at  grand  jury  proceedings  as
    14  evidence  of the facts stated in such records, provided such records are
    15  accompanied by a written statement, under oath, of the  record's  custo-
    16  dian  or  other  qualified witness of the business. Such statement shall
    17  contain a list or description of  the  records  attached  and  state  in
    18  substance  that the person is a duly authorized custodian of the records

    19  or other qualified witness with knowledge that such records were made in
    20  the regular course of business and that it was  the  regular  course  of
    21  such  business to make such records at the time of the act, transaction,
    22  occurrence or event, or within a reasonable time thereafter. Such  writ-
    23  ten  statement  may  also include a statement that the business does not
    24  possess a particular record  or  records,  and  such  statement  may  be
    25  received  at  grand  jury  proceedings  as evidence of the fact that the
    26  business does not possess such record or records. When it  is  necessary
    27  for the business whose records are being offered into evidence to submit
    28  a  written  statement  under oath from more than one of its employees in

    29  order to comply with this subdivision, more than one  written  statement
    30  under  oath  may  be  attached  to  the records. For the purpose of this
    31  subdivision, the term "business" includes a business, profession,  occu-
    32  pation and calling of every kind.
    33    § 5.  Subdivisions 4 and 7 of section 200.50 of the criminal procedure
    34  law, as amended by chapter 7 of the laws of 2007, are amended to read as
    35  follows:
    36    4.  A statement in each count that the grand jury, or, where the accu-
    37  satory instrument is a superior court information, the  district  attor-
    38  ney,  accuses  the  defendant  or  defendants  of  a designated offense,
    39  provided that in any prosecution under article four hundred  eighty-five
    40  of the penal law, the designated offense shall be the specified offense,

    41  as  defined  in  subdivision  three  of section 485.05 of the penal law,
    42  followed by the phrase "as a hate crime", and provided further  that  in
    43  any  prosecution  under  section 490.25 of the penal law, the designated
    44  offense shall be the specified offense, as defined in subdivision  three
    45  of  section  490.05 of the penal law, followed by the phrase "as a crime
    46  of terrorism"; and  provided  further  that  in  any  prosecution  under
    47  section  130.91  of  the  penal law, the designated offense shall be the
    48  specified offense, as defined in subdivision two of  section  130.91  of
    49  the  penal law, followed by the phrase "as a sexually motivated felony";
    50  and provided further that in any prosecution under section 263.18 of the
    51  penal law, the designated offense shall  be  the  underlying  sex  crime

    52  against  a child, as defined in subdivision two of section 263.18 of the
    53  penal law, followed by the phrase "as a computer sex crime"; and
    54    7. A plain and concise factual statement in each count which,  without
    55  allegations of an evidentiary nature,

        A. 6941--A                          3
 
     1    (a)  asserts facts supporting every element of the offense charged and
     2  the defendant's or defendants' commission thereof with sufficient preci-
     3  sion to clearly apprise the defendant or defendants of the conduct which
     4  is the subject of the accusation; and
     5    (b)  in the case of any armed felony, as defined in subdivision forty-
     6  one of section 1.20 of this chapter, states  that  such  offense  is  an
     7  armed  felony  and  specifies  the particular implement the defendant or

     8  defendants possessed, were armed with, used or displayed or, in the case
     9  of an implement displayed, specifies what the implement appeared to  be;
    10  and
    11    (c) in the case of any hate crime, as defined in section 485.05 of the
    12  penal  law,  specifies,  as applicable, that the defendant or defendants
    13  intentionally selected the person against whom the offense was committed
    14  or intended to be committed; or intentionally committed the act or  acts
    15  constituting  the  offense, in whole or in substantial part because of a
    16  belief or perception regarding the race, color, national origin,  ances-
    17  try,  gender,  religion,  religious  practice, age, disability or sexual
    18  orientation of a person; and
    19    (d) in the case of a crime of terrorism, as defined in section  490.25
    20  of  the  penal  law,  specifies,  as  applicable,  that the defendant or

    21  defendants acted with intent to intimidate or coerce  a  civilian  popu-
    22  lation,  influence the policy of a unit of government by intimidation or
    23  coercion, or affect the conduct of  a  unit  of  government  by  murder,
    24  assassination or kidnapping; and
    25    (e)  in the case of a sexually motivated felony, as defined in section
    26  130.91 of the penal law, asserts facts supporting  the  allegation  that
    27  the offense was sexually motivated; and
    28    (f) in the case of a computer sex crime, as defined in subdivision one
    29  of  section  263.18 of the penal law, specifies, as applicable, that the
    30  defendant or defendants  facilitated  the  commission  of  a  sex  crime
    31  against  a child, as defined in subdivision two of section 263.18 of the
    32  penal law, by using or causing to be used a computer or computer service

    33  to communicate with the child against whom such offense is committed.
    34    § 6. Section 610.10 of the criminal procedure law is amended by adding
    35  a new subdivision 4 to read as follows:
    36    4. A "non-judicial subpoena" is a process issued by a district  attor-
    37  ney  or  the attorney general, where appropriate, or the chief executive
    38  officer of a police department, as defined in subdivision a  of  section
    39  eight  hundred  thirty-seven-c  of the executive law, or the designee of
    40  such chief executive officer,  in  accordance  with  the  provisions  of
    41  subdivision four of section 610.20 of this article.
    42    § 7. Section 610.20 of the criminal procedure law is amended by adding
    43  a new subdivision 4 to read as follows:

    44    4. In the investigation of an offense against a minor or an attempt to
    45  commit  an offense against a minor, or in any instance where the life or
    46  safety of a person is in imminent danger, a non-judicial subpoena may be
    47  issued and directed to an internet service provider  or  a  provider  of
    48  e-mail  services  requiring  the  provider  to disclose the identity and
    49  address of a subscriber relative to a screen name.
    50    § 8. Paragraph (h) of subdivision 8 of section 700.05 of the  criminal
    51  procedure law, as amended by chapter 154 of the laws of 1990, is amended
    52  to read as follows:
    53    (h)  Promoting prostitution in the first degree, as defined in section
    54  230.32 of the penal law, promoting prostitution in the second degree, as
    55  defined by subdivision one of section 230.30 of the penal  law,  compel-

    56  ling prostitution, as defined in section 230.33 of the penal law;

        A. 6941--A                          4
 
     1    §  9. Subdivision 8 of section 700.05 of the criminal procedure law is
     2  amended by adding a new paragraph (u) to read as follows:
     3    (u)  Use  of  a  child in a sexual performance in the second degree as
     4  defined in section 263.06 of the penal law, use of a child in  a  sexual
     5  performance  in  the  first  degree  as defined in section 263.07 of the
     6  penal law, promoting an obscene sexual performance by  a  child  in  the
     7  second  degree  as defined in section 263.08 of the penal law, promoting
     8  an obscene sexual performance by a child in the first degree as  defined
     9  in  section  263.09  of  the  penal  law,  possessing  an obscene sexual

    10  performance by a child in the third degree as defined in section  263.10
    11  of the penal law, possessing an obscene sexual performance by a child in
    12  the  second  degree  as  defined  in  section  263.11  of the penal law,
    13  possessing an obscene sexual performance by a child in the first  degree
    14  as  defined  in  section  263.12  of  the  penal law, promoting a sexual
    15  performance by a child in the second degree as defined in section 263.13
    16  of the penal law, promoting a sexual performance by a child in the first
    17  degree as defined in section 263.14 of the penal law, possessing a sexu-
    18  al performance by a child in the third  degree  as  defined  in  section
    19  263.15  of  the penal law, possessing a sexual performance by a child in

    20  the second degree as  defined  in  section  263.16  of  the  penal  law,
    21  possessing  a  sexual  performance  by  a  child  in the first degree as
    22  defined in section 263.17 of the  penal  law,  computer  sex  crimes  as
    23  defined  in  section 263.18 of the penal law, criminal use of encryption
    24  in the second degree as defined in section  156.40  of  the  penal  law,
    25  criminal  use  of  encryption  in the first degree as defined in section
    26  156.41 of the penal law, luring a child as defined in section 263.01  of
    27  the penal law and disseminating indecent material to minors in the first
    28  degree as defined in section 263.03 of the penal law.
    29    §  10.  Paragraph  (a)  of  subdivision  2  of  section  168-a  of the

    30  correction law, as amended by chapter  405  of  the  laws  of  2008,  is
    31  amended to read as follows:
    32    (a)  (i)  a conviction of or a conviction for an attempt to commit any
    33  of the provisions of sections [120.70,] 130.20, 130.25, 130.30,  130.40,
    34  130.45, 130.60, 230.34, 250.50, 255.25, 255.26 and 255.27 or article two
    35  hundred  sixty-three of the penal law, or section 135.05, 135.10, 135.20
    36  or 135.25 of such law relating  to  kidnapping  offenses,  provided  the
    37  victim  of  such  kidnapping  or  related offense is less than seventeen
    38  years old and the offender is not the parent of the victim,  or  section
    39  230.04, where the person patronized is in fact less than seventeen years
    40  of  age,  230.05 [or], 230.06 or 230.06-a, or subdivision two of section

    41  230.30, or section 230.32 [or], 230.33 or 230.45 of the  penal  law,  or
    42  (ii)  [a  conviction  of or a conviction for an attempt to commit any of
    43  the provisions  of  section  235.22  of  the  penal  law,  or  (iii)]  a
    44  conviction of or a conviction for an attempt to commit any provisions of
    45  the foregoing sections committed or attempted as a hate crime defined in
    46  section  485.05  of  the penal law or as a crime of terrorism defined in
    47  section 490.25 of such law or as a sexually motivated felony defined  in
    48  section 130.91 of such law; or
    49    §  11.  Paragraph  (b)  of  subdivision  2  of  section  168-f  of the
    50  correction law, as added by chapter 192 of the laws of 1995, is  amended
    51  to read as follows:
    52    (b)  The  verification  form  shall be signed by the sex offender, and

    53  state that he or she still resides at the address last reported  to  the
    54  division  and shall provide information on any internet accounts belong-
    55  ing to such sex offender and any internet screen name or names  used  by
    56  such offender.

        A. 6941--A                          5
 
     1    §  12.  Paragraphs  d  and  e of subdivision 2 of section 168-b of the
     2  correction law are relettered paragraphs e and f and a new  paragraph  d
     3  is added to read as follows:
     4    d.  The  registry  is  authorized  to  make  available the information
     5  provided for in section one hundred sixty-eight-q of this  article  and,
     6  in  addition, provide information on any internet accounts registered to
     7  such sex offender and any internet screen names used by such offender to

     8  an interactive computer service, which shall be defined as any  informa-
     9  tion  service,  system  or  access  software  provider  that provides or
    10  enables computer access by multiple users to a computer server,  includ-
    11  ing  specifically a service or system that provides access to the inter-
    12  net.
    13    § 13. Subdivision 1 of section 70.02 of the penal law,  as  separately
    14  amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
    15  amended by chapter 320 of the laws of 2006 and paragraphs (c) and (d) as
    16  amended by chapter 7 of the laws of 2007, is amended to read as follows:
    17    1. Definition of a violent felony offense. A violent felony offense is
    18  a class B violent felony offense, a class C violent  felony  offense,  a
    19  class  D  violent  felony  offense, or a class E violent felony offense,

    20  defined as follows:
    21    (a) Class B violent felony offenses: an attempt to  commit  the  class
    22  A-I  felonies  of  murder  in  the  second  degree as defined in section
    23  125.25, kidnapping in the first degree as defined in section 135.25, and
    24  arson in the first degree as defined in section 150.20; manslaughter  in
    25  the  first  degree as defined in section 125.20, aggravated manslaughter
    26  in the first degree as defined in section  125.22,  rape  in  the  first
    27  degree  as  defined  in section 130.35, criminal sexual act in the first
    28  degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
    29  first  degree  as  defined  in  section 130.70, course of sexual conduct
    30  against a child in the first degree as  defined  in  section  130.75[;],
    31  assault  in the first degree as defined in section 120.10, kidnapping in

    32  the second degree as defined in section 135.20, burglary  in  the  first
    33  degree  as  defined  in  section  140.30,  arson in the second degree as
    34  defined in section 150.15, robbery in the first  degree  as  defined  in
    35  section  160.15,  sexual  exploitation  of a child as defined in section
    36  230.06-a, promoting prostitution in  the  first  degree  as  defined  in
    37  section  230.32,  compelling  prostitution as defined in section 230.33,
    38  incest in the first degree as defined in section 255.27, use of a  child
    39  in  a  sexual  performance  in  the  first  degree as defined in section
    40  263.07, criminal possession of a weapon in the first degree  as  defined
    41  in  section  265.04,  criminal  use  of a firearm in the first degree as
    42  defined in section 265.09, criminal sale  of  a  firearm  in  the  first

    43  degree  as  defined  in section 265.13, aggravated assault upon a police
    44  officer or a peace officer as defined in section 120.11, gang assault in
    45  the first degree as defined in section 120.07, intimidating a victim  or
    46  witness  in  the  first  degree  as defined in section 215.17, hindering
    47  prosecution of terrorism in the  first  degree  as  defined  in  section
    48  490.35, criminal possession of a chemical weapon or biological weapon in
    49  the  second  degree  as defined in section 490.40, and criminal use of a
    50  chemical weapon or biological weapon in the third degree as  defined  in
    51  section 490.47.
    52    (b)  Class  C violent felony offenses: an attempt to commit any of the
    53  class B felonies set  forth  in  paragraph  (a);  aggravated  criminally
    54  negligent homicide as defined in section 125.11, aggravated manslaughter
    55  in  the  second  degree  as defined in section 125.21, aggravated sexual

    56  abuse in the second degree as defined in section 130.67,  assault  on  a

        A. 6941--A                          6
 
     1  peace  officer,  police  officer,  fireman or emergency medical services
     2  professional as defined in section 120.08, gang assault  in  the  second
     3  degree  as  defined  in section 120.06, burglary in the second degree as
     4  defined  in  section  140.25, robbery in the second degree as defined in
     5  section 160.10, promoting prostitution in the second degree  as  defined
     6  in  section  230.30,  disseminating  indecent materials to minors in the
     7  first degree as defined in section 263.03, use of a child  in  a  sexual
     8  performance in the second degree as defined in section 263.06, promoting
     9  an  obscene sexual performance by a child in the first degree as defined

    10  in section 263.09, possessing an obscene sexual performance by  a  child
    11  in  the  first  degree  as defined in section 263.12, promoting a sexual
    12  performance by a child in the first degree as defined in section 263.14,
    13  possessing a sexual performance by  a  child  in  the  first  degree  as
    14  defined in section 263.17, criminal possession of a weapon in the second
    15  degree  as  defined  in section 265.03, criminal use of a firearm in the
    16  second degree as defined in section 265.08, criminal sale of  a  firearm
    17  in  the  second  degree as defined in section 265.12, criminal sale of a
    18  firearm with the aid of a minor as defined in section 265.14, soliciting
    19  or providing support for an act of terrorism  in  the  first  degree  as
    20  defined  in  section  490.15,  hindering prosecution of terrorism in the

    21  second degree as defined in section 490.30, and criminal possession of a
    22  chemical weapon or biological weapon in the third degree as  defined  in
    23  section 490.37.
    24    (c)  Class  D violent felony offenses: an attempt to commit any of the
    25  class C felonies set forth in paragraph (b); reckless assault of a child
    26  as defined in section 120.02, assault in the second degree as defined in
    27  section 120.05, menacing a police officer or peace officer as defined in
    28  section 120.18, stalking in the first degree, as defined in  subdivision
    29  one  of  section 120.60, rape in the second degree as defined in section
    30  130.30, criminal sexual act in the second degree as defined  in  section
    31  130.45,  sexual  abuse in the first degree as defined in section 130.65,
    32  course of sexual conduct against a child in the second degree as defined
    33  in section 130.80, aggravated  sexual  abuse  in  the  third  degree  as

    34  defined  in section 130.66, facilitating a sex offense with a controlled
    35  substance as defined in section 130.90, patronizing a prostitute in  the
    36  first degree as defined in section 230.06, promoting prostitution in the
    37  third  degree as defined in subdivision two of section 230.25, promoting
    38  an obscene sexual performance by a child in the second degree as defined
    39  in section 263.08, promoting a sexual performance  by  a  child  in  the
    40  second  degree  as  defined  in section 263.13, criminal possession of a
    41  weapon in the third degree as defined in subdivision five, six, seven or
    42  eight of section 265.02, criminal sale of a firearm in the third  degree
    43  as  defined  in  section 265.11, intimidating a victim or witness in the
    44  second degree as defined in  section  215.16,  soliciting  or  providing

    45  support  for  an  act  of  terrorism  in the second degree as defined in
    46  section 490.10, and making a terroristic threat as  defined  in  section
    47  490.20,  falsely reporting an incident in the first degree as defined in
    48  section 240.60, placing a false bomb or hazardous substance in the first
    49  degree as defined in section 240.62, placing a false bomb  or  hazardous
    50  substance  in a sports stadium or arena, mass transportation facility or
    51  enclosed shopping mall as defined  in  section  240.63,  and  aggravated
    52  unpermitted use of indoor pyrotechnics in the first degree as defined in
    53  section 405.18.
    54    (d)  Class  E violent felony offenses: an attempt to commit any of the
    55  felonies of criminal possession of a  weapon  in  the  third  degree  as
    56  defined  in subdivision five, six, seven or eight of section 265.02 as a

        A. 6941--A                          7

 
     1  lesser included offense of that section as defined in section 220.20  of
     2  the  criminal  procedure  law,  persistent  sexual  abuse  as defined in
     3  section 130.53, aggravated sexual abuse in the fourth degree as  defined
     4  in  section  130.65-a,  patronizing a prostitute in the second degree as
     5  defined in section 230.05, falsely reporting an incident in  the  second
     6  degree  as defined in section 240.55 and placing a false bomb or hazard-
     7  ous substance in the second degree as defined in section 240.61.
     8    § 14. The penal law is amended by adding two new sections  156.40  and
     9  156.41 to read as follows:
    10  § 156.40 Criminal use of encryption in the second degree.
    11    A  person is guilty of criminal use of encryption in the second degree
    12  when he or she intentionally uses or attempts to use encryption to:

    13    1. commit, further,  facilitate  or  promote  conduct  constituting  a
    14  crime;
    15    2. conceal the commission of any crime;
    16    3.  conceal  or protect the identity of a person who has committed any
    17  crime; or
    18    4. prevent, impede, delay or disrupt the normal operation or use of  a
    19  computer, computer program or computer system.
    20    Criminal use of encryption in the second degree is a class A misdemea-
    21  nor.
    22  § 156.41 Criminal use of encryption in the first degree.
    23    A  person  is guilty of criminal use of encryption in the first degree
    24  when he or she commits the crime of criminal use of  encryption  in  the
    25  second degree and he or she:

    26    1.  does  so  with an intent to commit or attempt to commit or further
    27  the commission of a felony;
    28    2. does so with an intent to conceal the commission of any felony;
    29    3. does so with the intent to protect the identity of a person who has
    30  committed any felony; or
    31    4. has been previously convicted of any crime under this article.
    32    Criminal use of encryption in the first degree is a class E felony.
    33    § 15. Section 156.00 of the penal law  is  amended  by  adding  a  new
    34  subdivision 10 to read as follows:
    35    10.   "Encryption" means any protective or disruptive measure, includ-
    36  ing, without limitation, cryptography, enciphering or encoding, which:
    37    (a) causes or makes any data, information, image, program,  signal  or

    38  sound unintelligible or unusable; or
    39    (b) prevents, impedes, delays or disrupts access to any data, informa-
    40  tion, image, program, signal or sound.
    41    § 16. Section 215.40 of the penal law is amended to read as follows:
    42  § 215.40 Tampering with physical evidence.
    43    A person is guilty of tampering with physical evidence when:
    44    1.  With intent that it be used or introduced in, or believing that it
    45  has been requested or may be gathered during or pursuant to an  official
    46  proceeding  or  a prospective official proceeding, [he] such person: (a)
    47  knowingly makes, devises or prepares false  physical  evidence,  or  (b)
    48  produces  or  offers such evidence at such a proceeding knowing it to be
    49  false; or

    50    2. Believing that certain physical evidence [is about to] has been  or
    51  may  be requested, gathered, produced or used in or pursuant to an offi-
    52  cial proceeding or a prospective official proceeding, and  intending  to
    53  prevent  such  production  or use, [he] such person suppresses it by any
    54  act of concealment, alteration, encryption or destruction, or by employ-
    55  ing force, intimidation or deception against any person.

        A. 6941--A                          8
 
     1    3. No electronic communications service or remote  computing  service,
     2  as  defined  under  the  federal  electronic communications privacy act,
     3  which is acting within the ordinary course of business, shall  be  obli-

     4  gated to retain customer information and/or content unless in receipt of
     5  an official request to retain physical evidence.
     6    Tampering with physical evidence is a class [E] D felony.
     7    §  17.  Section  230.00 of the penal law, as amended by chapter 169 of
     8  the laws of 1969, is amended to read as follows:
     9  § 230.00 [Prostitution] Criminal prostitution.
    10    A person is guilty of  criminal  prostitution  when,  being  seventeen
    11  years  old or more, such person engages or agrees or offers to engage in
    12  sexual conduct with another person in return for a fee.
    13    [Prostitution] Criminal prostitution is a class B [Misdemeanor] misde-
    14  meanor.

    15    § 18. The penal law is amended by adding a new section 230.01 to  read
    16  as follows:
    17  § 230.01 Unlawful prostitution.
    18    A  person  is  guilty  of  unlawful prostitution when, being less than
    19  seventeen years old, such person engages or agrees or offers  to  engage
    20  in sexual conduct with another person in return for a fee.
    21    Unlawful  prostitution  is  a  violation,  provided, however, that any
    22  person who has previously been convicted of  a  crime  defined  in  this
    23  article  or  section  240.37  of  this part shall be guilty of a class B
    24  misdemeanor.
    25    § 19.  Sections 230.05 and 230.06 of the penal law, as added by  chap-
    26  ter 627 of the laws of 1978, are amended to read as follows:
    27  § 230.05 Patronizing a prostitute in the second degree.

    28    A  person  is  guilty of patronizing a prostitute in the second degree
    29  when, being [over eighteen] twenty-one years of age or more, he  or  she
    30  patronizes  a  prostitute  and the person patronized is less than [four-
    31  teen] seventeen years of age.
    32    Patronizing a prostitute in the second degree is a class E felony.
    33  § 230.06 Patronizing a prostitute in the first degree.
    34    A person is guilty of patronizing a prostitute  in  the  first  degree
    35  when,  being eighteen years of age or more, he or she patronizes a pros-
    36  titute and the person patronized is less than [eleven] fifteen years  of
    37  age.
    38    Patronizing a prostitute in the first degree is a class D felony.
    39    §  20.  The  penal  law is amended by adding a new section 230.06-a to

    40  read as follows:
    41  § 230.06-a Sexual exploitation of a child.
    42    A person is guilty of sexual exploitation of a child when:
    43    1. Being eighteen years of age or more he or she patronizes a  prosti-
    44  tute and the person patronized is less than thirteen years of age; or
    45    2. He or she patronizes a prostitute and the person patronized is less
    46  than eleven years of age.
    47    Sexual exploitation of a child is a class B felony.
    48    § 21. Section 230.07 of the penal law, as amended by chapter 74 of the
    49  laws of 2007, is amended to read as follows:
    50  § 230.07 Patronizing a prostitute; defense.
    51    In any prosecution for patronizing a prostitute in the first or second
    52  degrees  or  sexual  exploitation  of  a child, it is [a] an affirmative

    53  defense that the defendant did not have reasonable  grounds  to  believe
    54  that the person was less than the age specified.
    55    §  22.  The  opening  paragraph  of section 230.10 of the penal law is
    56  amended to read as follows:

        A. 6941--A                          9
 
     1    In any prosecution for sexual exploitation of a child, prostitution or
     2  patronizing a prostitute, the sex of  the  two  parties  or  prospective
     3  parties  to  the sexual conduct engaged in, contemplated or solicited is
     4  immaterial, and it is no defense that:
     5    § 23.  Subdivision 2 of section 230.30 of the penal law, as amended by
     6  chapter 627 of the laws of 1978, is amended to read as follows:
     7    2.  Advances  or  profits  from  prostitution  of  a  person less than
     8  [sixteen] seventeen years old.

     9    § 23-a. The penal law is amended by adding a  new  section  230.11  to
    10  read as follows:
    11  § 230.11 Prostitution; defense.
    12    In any prosecution for unlawful prostitution or criminal prostitution,
    13  it is an affirmative defense that the defendant is a victim of sex traf-
    14  ficking.
    15    §  24. Section 230.33 of the penal law, as added by chapter 450 of the
    16  laws of 2005, is amended to read as follows:
    17  § 230.33 Compelling prostitution.
    18    A person is guilty of compelling prostitution when,  being  twenty-one
    19  years  of  age  or  older,  he or she knowingly advances prostitution by
    20  compelling a person less than [sixteen] seventeen years old, by force or
    21  intimidation, to engage in prostitution.
    22    Compelling prostitution is a class B felony.

    23    § 25. Subdivision 2 of section 240.37 of the penal law,  as  added  by
    24  chapter 344 of the laws of 1976, is amended to read as follows:
    25    2.  Any  person  who  remains  or  wanders about in a public place and
    26  repeatedly beckons to, or repeatedly stops, or  repeatedly  attempts  to
    27  stop,  or  repeatedly  attempts to engage passers-by in conversation, or
    28  repeatedly stops or attempts  to  stop  motor  vehicles,  or  repeatedly
    29  interferes  with  the  free passage of other persons, for the purpose of
    30  prostitution, or of patronizing a prostitute as those terms are  defined
    31  in  article two hundred thirty of [the penal law] this chapter, shall be
    32  guilty of a violation and is guilty of a class  B  misdemeanor  if  such
    33  person  has  previously been convicted of a violation of this section or

    34  of [sections] section 230.00, 230.01 or 230.05 of [the penal  law]  this
    35  chapter.
    36    §  26.  Section  230.40  of the penal law is amended and a new section
    37  230.45 is added to read as follows:
    38  § 230.40 Permitting prostitution in the second degree.
    39    A person is guilty of permitting prostitution  in  the  second  degree
    40  when, having possession or control of premises which he or she knows are
    41  being used for prostitution purposes, he or she fails to make reasonable
    42  effort to halt or abate such use.
    43    Permitting  prostitution  in the second degree is a class [B] A misde-
    44  meanor.
    45  § 230.45 Permitting prostitution in the first degree.

    46    A person is guilty of permitting prostitution in the first degree when
    47  having possession or control of premises which he or she knows are being
    48  used for prostitution purposes including the  prostitution  of  a  child
    49  less  than  seventeen  years  of age, he or she fails to make reasonable
    50  effort to halt or abate such use.
    51    Permitting prostitution in the first degree is a class E felony.
    52    § 27. Section 60.13 of the penal law, as added by  chapter  7  of  the
    53  laws of 2007, is amended to read as follows:
    54  § 60.13 Authorized dispositions; felony sex offenses.
    55    When  a  person  is  to  be sentenced upon a conviction for any felony
    56  defined in article one hundred thirty of this chapter, including a sexu-

        A. 6941--A                         10
 

     1  ally motivated felony, or patronizing a prostitute in the  first  degree
     2  as  defined  in section 230.06 of this chapter, sexual exploitation of a
     3  child as defined in section 230.06-a of  this  chapter,  incest  in  the
     4  second degree as defined in section 255.26 of this chapter, or incest in
     5  the  first  degree  as  defined  in section 255.27 of this chapter, or a
     6  felony attempt or conspiracy to commit any of these  crimes,  the  court
     7  must sentence the defendant in accordance with the provisions of section
     8  70.80 of this title.
     9    §  28.  Paragraph  (a)  of subdivision 1 of section 70.80 of the penal
    10  law, as added by chapter 7 of the laws of 2007, is amended  to  read  as
    11  follows:
    12    (a)  For  the purposes of this section, a "felony sex offense" means a
    13  conviction of any felony defined in article one hundred thirty  of  this

    14  chapter, including a sexually motivated felony, or patronizing a prosti-
    15  tute  in  the first degree as defined in section 230.06 of this chapter,
    16  incest in the second degree as defined in section 255.26 of  this  chap-
    17  ter,  sexual  exploitation  of a child as defined in section 230.06-a of
    18  this chapter, or incest in the first degree as defined in section 255.27
    19  of this chapter, or a felony attempt or conspiracy to commit any of  the
    20  above.
    21    § 29. Subdivision 2 of section 60.42 of the criminal procedure law, as
    22  added by chapter 230 of the laws of 1975, is amended to read as follows:
    23    2.  proves  or tends to prove that the victim has been convicted of an
    24  offense under section 230.00 or 230.01 of the  penal  law  within  three
    25  years  prior to the sex offense which is the subject of the prosecution;
    26  or

    27    § 30. Subdivision 6 of section 380.50 of the criminal  procedure  law,
    28  as  amended  by  chapter  320 of the laws of 2006, is amended to read as
    29  follows:
    30    6. Regardless of whether the victim requests to make a statement  with
    31  regard to the defendant's sentence, where the defendant is sentenced for
    32  a violent felony offense as defined in section 70.02 of the penal law or
    33  a  felony  defined in article one hundred twenty-five of such law or any
    34  of the following provisions of such law sections 130.25, 130.30, 130.40,
    35  130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
    36  135.25, 230.05, 230.06, 230.06-a, subdivision two of section  230.30  or
    37  230.32,  the  prosecutor  shall,  within sixty days of the imposition of
    38  sentence, provide the victim with a form on which the victim  may  indi-

    39  cate  a demand to be informed of any petition to change the name of such
    40  defendant.   Such forms shall be maintained  by  such  prosecutor.  Upon
    41  receipt of a notice of a petition to change the name of any such defend-
    42  ant,  pursuant  to  subdivision  two  of  section sixty-two of the civil
    43  rights law, the prosecutor shall promptly notify the victim at the  most
    44  current  address or telephone number provided by such victim in the most
    45  reasonable and expedient possible manner of  the  time  and  place  such
    46  petition will be presented to the court.
    47    §  31. Subdivision 2 of section 61 of the civil rights law, as amended
    48  by chapter 320 of the laws of 2006, is amended to read as follows:
    49    2. If the petitioner stands convicted of a violent felony  offense  as
    50  defined in section 70.02 of the penal law or a felony defined in article

    51  one  hundred  twenty-five of such law or any of the following provisions
    52  of such law sections 130.25, 130.30,  130.40,  130.45,  255.25,  255.26,
    53  255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06,
    54  230.06-a,  subdivision two of section 230.30 or 230.32, and is currently
    55  confined as an inmate in any correctional facility  or  currently  under
    56  the  supervision  of  the state division of parole or a county probation

        A. 6941--A                         11
 
     1  department as a result of such conviction, the petition shall  for  each
     2  such  conviction  specify  such  felony  conviction,  the  date  of such
     3  conviction or convictions, and the court in  which  such  conviction  or
     4  convictions were entered.
     5    §  32. Subdivision 2 of section 62 of the civil rights law, as amended

     6  by chapter 320 of the laws of 2006, is amended to read as follows:
     7    2. If the petition be  to  change  the  name  of  a  person  currently
     8  confined  as  an  inmate in any correctional facility or currently under
     9  the supervision of the state division of parole or  a  county  probation
    10  department  as  a result of a conviction for a violent felony offense as
    11  defined in section 70.02 of the penal law or a felony defined in article
    12  one hundred twenty-five of such law or any of the  following  provisions
    13  of  such  law  sections  130.25, 130.30, 130.40, 130.45, 255.25, 255.26,
    14  255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06,
    15  230.06-a, subdivision two of section 230.30 or  230.32,  notice  of  the
    16  time  and  place  when and where the petition will be presented shall be
    17  served, in like manner as a notice of a motion upon an  attorney  in  an

    18  action,  upon the district attorney of every county in which such person
    19  has been convicted of such felony and upon the court or courts in  which
    20  the  sentence  for  such  felony was entered. Unless a shorter period of
    21  time is ordered by the court, said notice shall be served upon each such
    22  district attorney and court or courts not less than sixty days prior  to
    23  the date on which such petition is noticed to be heard.
    24    §  33. The closing paragraph of section 64 of the civil rights law, as
    25  separately amended by chapters 258, 320 and 481 of the laws of 2006,  is
    26  amended to read as follows:
    27    Upon  compliance with the order and the filing of the affidavit of the
    28  publication, as provided in this section, the  clerk  of  the  court  in
    29  which  the  order has been entered shall certify that the order has been
    30  complied with; and, if the petition states that  the  petitioner  stands

    31  convicted of a violent felony offense as defined in section 70.02 of the
    32  penal law or a felony defined in article one hundred twenty-five of such
    33  law  or  any  of  the  following provisions of such law sections 130.25,
    34  130.30, 130.40, 130.45, 255.25,  255.26,  255.27,  article  two  hundred
    35  sixty-three,  135.10,  135.25, 230.05, 230.06, 230.06-a, subdivision two
    36  of section 230.30 or 230.32, such clerk  (1)  shall  deliver,  by  first
    37  class  mail,  a copy of such certified order to the division of criminal
    38  justice services at its office in the county of Albany and (2) upon  the
    39  clerk  of  the  court  reviewing  the  petitioner's application for name
    40  change and subsequent in-court inquiry, may, in the clerk's  discretion,
    41  deliver, by first class mail, the petitioner's new name with such certi-
    42  fied  order  to  the  court  of competent jurisdiction which imposed the

    43  orders of support.   Such certification shall  appear  on  the  original
    44  order  and  on  any  certified  copy thereof and shall be entered in the
    45  clerk's minutes of the proceeding.
    46    § 34. Paragraph (d) of subdivision 7 of section 995 of  the  executive
    47  law,  as amended by chapter 2 of the laws of 2006, is amended to read as
    48  follows:
    49    (d) any of the following felonies, or an attempt  thereof  where  such
    50  attempt is a felony offense:
    51    aggravated  assault  upon  a  person  less  than  eleven years old, as
    52  defined in section 120.12 of  the  penal  law;  menacing  in  the  first
    53  degree,  as  defined in section 120.13 of the penal law; reckless endan-
    54  germent in the first degree, as defined in section 120.25 of  the  penal
    55  law;  stalking in the second degree, as defined in section 120.55 of the
    56  penal law; criminally negligent homicide, as defined in  section  125.10

        A. 6941--A                         12
 
     1  of  the  penal  law;  vehicular  manslaughter  in  the second degree, as
     2  defined in section 125.12 of the penal law;  vehicular  manslaughter  in
     3  the  first  degree,  as  defined  in  section  125.13  of the penal law;
     4  persistent  sexual abuse, as defined in section 130.53 of the penal law;
     5  aggravated sexual abuse in the fourth  degree,  as  defined  in  section
     6  130.65-a  of  the  penal  law;  female genital mutilation, as defined in
     7  section 130.85 of the penal law;  facilitating  a  sex  offense  with  a
     8  controlled  substance,  as  defined  in section 130.90 of the penal law;
     9  unlawful imprisonment in the first degree, as defined in section  135.10
    10  of the penal law; custodial interference in the first degree, as defined
    11  in  section  135.50  of  the  penal  law; criminal trespass in the first

    12  degree, as defined in section 140.17 of the penal law; criminal  tamper-
    13  ing  in the first degree, as defined in section 145.20 of the penal law;
    14  tampering with a consumer product in the first  degree,  as  defined  in
    15  section  145.45 of the penal law; robbery in the third degree as defined
    16  in section 160.05 of the penal law; identity theft in the second degree,
    17  as defined in section 190.79 of the penal law;  identity  theft  in  the
    18  first  degree,  as defined in section 190.80 of the penal law; promoting
    19  prison contraband in the first degree, as defined in section  205.25  of
    20  the  penal law; tampering with a witness in the third degree, as defined
    21  in section 215.11 of the penal law; tampering  with  a  witness  in  the
    22  second  degree, as defined in section 215.12 of the penal law; tampering
    23  with a witness in the first degree, as defined in section 215.13 of  the

    24  penal law; criminal contempt in the first degree, as defined in subdivi-
    25  sions  (b),  (c)  and (d) of section 215.51 of the penal law; aggravated
    26  criminal contempt, as defined in section 215.52 of the penal  law;  bail
    27  jumping  in the second degree, as defined in section 215.56 of the penal
    28  law; bail jumping in the first degree, as defined in section  215.57  of
    29  the penal law; patronizing a prostitute in the second degree, as defined
    30  in  section  230.05  of  the  penal law; patronizing a prostitute in the
    31  first degree, as defined in section 230.06  of  the  penal  law;  sexual
    32  exploitation of a child, as defined in section 230.06-a; promoting pros-
    33  titution in the second degree, as defined in section 230.30 of the penal
    34  law;  promoting  prostitution in the first degree, as defined in section
    35  230.32 of the penal law; compelling prostitution, as defined in  section

    36  230.33  of the penal law; disseminating indecent [materials] material to
    37  minors in the second degree, as defined in section  [235.21]  263.02  of
    38  the  penal law; disseminating indecent [materials] material to minors in
    39  the first degree, as defined in section [235.22]  263.03  of  the  penal
    40  law; riot in the first degree, as defined in section 240.06 of the penal
    41  law;  criminal  anarchy,  as defined in section 240.15 of the penal law;
    42  aggravated harassment of an employee by an inmate, as defined in section
    43  240.32 of the penal law; unlawful surveillance in the second degree,  as
    44  defined in section 250.45 of the penal law; unlawful surveillance in the
    45  first degree, as defined in section 250.50 of the penal law; endangering

    46  the  welfare  of  a  vulnerable  elderly person in the second degree, as
    47  defined in section 260.32 of the penal law; endangering the welfare of a
    48  vulnerable elderly person in the first degree,  as  defined  in  section
    49  260.34  of  the penal law; use of a child in a sexual performance in the
    50  second degree, as defined in section [263.05] 263.06 of the  penal  law;
    51  use  of  a child in a sexual performance in the first degree, as defined
    52  in section 263.07 of the penal law; promoting an obscene sexual perform-
    53  ance by a child in the second degree, as  defined  in  section  [263.10]
    54  263.08  of  the  penal law; promoting an obscene sexual performance by a
    55  child in the first degree, as defined in section  263.09  of  the  penal

    56  law;  possessing  an  obscene sexual performance by a child in the third

        A. 6941--A                         13
 
     1  degree, as defined in section 263.10 of the  penal  law;  possessing  an
     2  obscene  sexual  performance by a child in the second degree, as defined
     3  in section 263.11  of  the  penal  law;  possessing  an  obscene  sexual
     4  performance  by  a  child  in  the  first  degree, as defined in section
     5  [263.11] 263.12 of the penal law; promoting a sexual  performance  by  a
     6  child[,  as  defined  in  section  263.15 of the penal law; possessing a
     7  sexual performance by a child, as defined  in  section  263.16]  in  the
     8  second  degree, as defined in section 263.13 of the penal law; promoting

     9  a sexual performance by a child in  the  first  degree,  as  defined  in
    10  section  263.14  of  the penal law; possessing a sexual performance by a
    11  child in the third degree, as defined in section  263.15  of  the  penal
    12  law; possessing a sexual performance by a child in the second degree, as
    13  defined in section 263.16 of the penal law; possessing a sexual perform-
    14  ance by a child in the first degree, as defined in section 263.17 of the
    15  penal  law;  criminal  possession  of  a  weapon in the third degree, as
    16  defined in section 265.02 of the penal law; criminal sale of  a  firearm
    17  in  the  third  degree,  as  defined in section 265.11 of the penal law;
    18  criminal sale of a firearm to a minor, as defined in section  265.16  of
    19  the  penal  law;  unlawful wearing of a body vest, as defined in section

    20  270.20 of the penal law; hate crimes as defined in section 485.05 of the
    21  penal law; and crime of terrorism, as defined in section 490.25  of  the
    22  penal law; or
    23    § 35. Subdivision 2 of section 344.4 of the family court act, as added
    24  by chapter 761 of the laws of 1987, is amended to read as follows:
    25    2.  proves  or tends to prove that the victim has been convicted of an
    26  offense under section 230.00 or 230.01 of the  penal  law  within  three
    27  years  prior  to  the  sex  offense which is the subject of the juvenile
    28  delinquency proceeding; or
    29    § 36. Subdivisions (f) and (p) of section 10.03 of the mental  hygiene
    30  law,  as  added by chapter 7 of the laws of 2007, are amended to read as
    31  follows:
    32    (f) "Designated felony" means any felony offense defined by any of the
    33  following provisions of the penal law: assault in the second  degree  as

    34  defined  in  section  120.05,  assault in the first degree as defined in
    35  section 120.10, gang assault in the second degree as defined in  section
    36  120.06,  gang  assault in the first degree as defined in section 120.07,
    37  stalking in the first degree as defined in section 120.60,  manslaughter
    38  in  the  second  degree as defined in subdivision one of section 125.15,
    39  manslaughter in the first degree as defined in section 125.20, murder in
    40  the second degree as defined in section  125.25,  aggravated  murder  as
    41  defined  in  section  125.26,  murder  in the first degree as defined in
    42  section 125.27, kidnapping in the second degree as  defined  in  section
    43  135.20,  kidnapping  in  the  first degree as defined in section 135.25,
    44  burglary in the third degree as defined in section 140.20,  burglary  in
    45  the  second  degree  as defined in section 140.25, burglary in the first

    46  degree as defined in section 140.30,  arson  in  the  second  degree  as
    47  defined  in  section  150.15,  arson  in  the first degree as defined in
    48  section 150.20, robbery in  the  third  degree  as  defined  in  section
    49  160.05,  robbery  in  the  second  degree  as defined in section 160.10,
    50  robbery in the first degree as  defined  in  section  160.15,  promoting
    51  prostitution  in the second degree as defined in section 230.30, promot-
    52  ing prostitution in the first  degree  as  defined  in  section  230.32,
    53  compelling  prostitution  as  defined  in  section 230.33, disseminating
    54  indecent material to minors in the first degree as  defined  in  section
    55  [235.22]  263.03,  use  of a child in a sexual performance in the second
    56  degree as defined in section [263.05] 263.06, use of a child in a sexual

        A. 6941--A                         14
 
     1  performance in the first degree as defined in section 263.07,  promoting
     2  an obscene sexual performance by a child in the second degree as defined
     3  in section [263.10] 263.08, promoting an obscene sexual performance by a
     4  child  in  the  first  degree  as defined in section 263.09, promoting a
     5  sexual performance by a child in the second degree as defined in section
     6  [263.15] 263.13, promoting a sexual performance by a child in the  first
     7  degree as defined in section 263.14, or any felony attempt or conspiracy
     8  to commit any of the foregoing offenses.
     9    (p)  "Sex  offense"  means an act or acts constituting: (1) any felony

    10  defined in article one hundred thirty of  the  penal  law,  including  a
    11  sexually  motivated  felony;  (2)  patronizing a prostitute in the first
    12  degree as defined in section 230.06 of the  penal  law,  incest  in  the
    13  second  degree  as  defined  in  section 255.26 of the penal law, sexual
    14  exploitation of a child as defined in section 230.06-a of the penal law,
    15  or incest in the first degree as defined in section 255.27 of the  penal
    16  law;  (3)  a felony attempt or conspiracy to commit any of the foregoing
    17  offenses set forth in this subdivision; or (4) a designated  felony,  as
    18  defined  in  subdivision  (f) of this section, if sexually motivated and
    19  committed prior to the effective date of this article.
    20    § 37. Subdivision 2 of section 353 of the multiple  dwelling  law,  as
    21  amended  by  chapter  680  of  the  laws  of 1967, is amended to read as

    22  follows:
    23    2. If there be two or more convictions in such dwelling within a peri-
    24  od of six months, under sections 230.00, 230.01, 230.25, [or] 230.40  or
    25  230.45 of the penal law.
    26    §  38.  Subdivision  1  of  section  2302 of the public health law, as
    27  amended by chapter 680 of the laws  of  1967,  is  amended  to  read  as
    28  follows:
    29    1.  Every  person  arrested charged with a violation of section 230.00
    30  [or], 230.01, 230.40 or 230.45 of the penal law, or arrested for failure
    31  to comply with the order of a judge or justice issued  pursuant  to  the
    32  provisions of section two thousand three hundred one of this chapter, or
    33  any person arrested for frequenting disorderly houses or houses of pros-
    34  titution,  shall  be  reported  within twenty-four hours by the court or

    35  magistrate before whom such person is arraigned to the health officer of
    36  the health district in which the alleged offense occurred, and shall  be
    37  examined in accordance with the provisions of section two thousand three
    38  hundred of this chapter.
    39    §  39.  Section 2324-a of the public health law, as amended by chapter
    40  260 of the laws of 1978, is amended to read as follows:
    41    § 2324-a. Presumptive evidence. For the purposes of this title, two or
    42  more convictions of any person or persons had, within a  period  of  one
    43  year,  for  any  of  the  offenses  described in section 230.00, 230.01,
    44  230.05, 230.20, 230.25 or 230.30 of the penal law arising out of conduct
    45  engaged in at the same real property consisting of a  dwelling  as  that
    46  term  is  defined  in  subdivision  four of section four of the multiple

    47  dwelling law shall be presumptive evidence of conduct  constituting  use
    48  of the premises for purposes of prostitution.
    49    §  40.  Paragraph  (b)  of subdivision 3 of section 2324 of the public
    50  health law, as amended by chapter 680 of the laws of 1967, is amended to
    51  read as follows:
    52    (b) An admission or finding of guilt of any person of a  violation  of
    53  section  230.40  or  230.45  of  the  penal  law  at such place shall be
    54  presumptive evidence of  the  nuisance,  and  a  plea  of  guilty  or  a
    55  conviction  in  a criminal action of maintaining a nuisance at the place
    56  described in  the  complaint  shall  be  prima  facie  evidence  of  the

        A. 6941--A                         15
 
     1  nuisance,  and  the  records  of  any court in the jurisdiction shall be
     2  admissible as evidence to prove the conviction or plea of guilty.

     3    §  41.  Subdivisions  1 and 4 of section 126 of the alcoholic beverage
     4  control law, as amended by chapter 366 of the laws of 1992, are  amended
     5  to read as follows:
     6    1.  Except  as provided in subdivision one-a of this section, a person
     7  who has been convicted of a felony or any of the misdemeanors  mentioned
     8  in  section eleven hundred forty-six of the former penal law as in force
     9  and effect  immediately  prior  to  September  first,  nineteen  hundred
    10  sixty-seven,  or of an offense defined in section 230.20 [or], 230.40 or
    11  230.45 of the penal law,  unless  subsequent  to  such  conviction  such
    12  person  shall  have  received an executive pardon therefor removing this
    13  disability, a certificate of  good  conduct  granted  by  the  board  of
    14  parole,  or  a  certificate  of  relief from disabilities granted by the

    15  board of parole or a court of this state pursuant to the  provisions  of
    16  article  twenty-three  of  the  correction  law to remove the disability
    17  under this section because of such conviction.
    18    4. A copartnership or a corporation, unless each member of  the  part-
    19  nership,  or  each of the principal officers and directors of the corpo-
    20  ration, is a citizen of the United States or an alien lawfully  admitted
    21  for  permanent  residence in the United States, not less than twenty-one
    22  years of age, and has not been convicted of any felony  or  any  of  the
    23  misdemeanors,  specified  in  section  eleven  hundred  forty-six of the
    24  former penal law as in force and effect immediately prior  to  September
    25  first, nineteen hundred sixty-seven, or of an offense defined in section
    26  230.20  [or],  230.40 or 230.45 of the penal law, or if so convicted has

    27  received, subsequent to such conviction, an  executive  pardon  therefor
    28  removing  this  disability  a certificate of good conduct granted by the
    29  board of parole, or a certificate of relief from disabilities granted by
    30  the board of parole or a court of this state pursuant to the  provisions
    31  of  article  twenty-three of the correction law to remove the disability
    32  under this section because of such conviction; provided however  that  a
    33  corporation which otherwise conforms to the requirements of this section
    34  and  chapter  may be licensed if each of its principal officers and more
    35  than one-half of its directors are citizens  of  the  United  States  or
    36  aliens  lawfully  admitted for permanent residence in the United States;
    37  and provided further that a corporation organized under the not-for-pro-
    38  fit corporation law or the education law which otherwise conforms to the

    39  requirements of this section and chapter may be licensed if each of  its
    40  principal  officers and more than one-half of its directors are not less
    41  than twenty-one years of age and none of its  directors  are  less  than
    42  eighteen years of age; and provided further that a corporation organized
    43  under  the  not-for-profit  corporation  law  or  the  education law and
    44  located on the premises of a college as defined by section  two  of  the
    45  education  law  which  otherwise  conforms  to  the requirements of this
    46  section and chapter may be licensed if each of  its  principal  officers
    47  and each of its directors are not less than eighteen years of age.
    48    §  42.  Subdivision  2 of section 715 of the real property actions and
    49  proceedings law, as added by chapter 494 of the laws of 1976, is amended
    50  to read as follows:
    51    2. For purposes of this section, two or more convictions of any person

    52  or persons had, within a period of one year, for  any  of  the  offenses
    53  described  in  section  230.00,  230.01,  230.05, 230.20, 230.25, 230.30
    54  [or], 230.40 or 230.45 of the penal law arising out of  conduct  engaged
    55  in  at  the  same real property consisting of a dwelling as that term is
    56  defined in subdivision four of section four of the multiple dwelling law

        A. 6941--A                         16
 
     1  shall be presumptive evidence of conduct constituting use of  the  prem-
     2  ises for purposes of prostitution.
     3    §  43.  Subdivision  3  of  section  231  of the real property law, as
     4  amended by chapter 203 of the laws  of  1980,  is  amended  to  read  as
     5  follows:
     6    3.  For  the  purposes of this section, two or more convictions of any

     7  person or persons had, within a period of  one  year,  for  any  of  the
     8  offenses  described  in  section 230.00, 230.01, 230.05, 230.20, 230.25,
     9  230.30, [or] 230.40 or 230.45 of the penal law arising  out  of  conduct
    10  engaged in at the same premises consisting of a dwelling as that term is
    11  defined in subdivision four of section four of the multiple dwelling law
    12  shall  be  presumptive  evidence of unlawful use of such premises and of
    13  the owners knowledge of the same.
    14    § 44. Paragraphs (b) and (c) of subdivision 4 of section 509-cc of the
    15  vehicle and traffic law, paragraph (b) as amended by chapter 360 of  the
    16  laws  of 1986 and paragraph (c) as amended by chapter 345 of the laws of
    17  2007, are amended to read as follows:
    18    (b) The offenses referred to in subparagraph (ii) of paragraph (a)  of

    19  subdivision  one  and  paragraph  (b) of subdivision two of this section
    20  that result in permanent disqualification  shall  include  a  conviction
    21  under  sections  100.13, 105.15, 105.17, 115.08, 125.10, 125.15, 130.40,
    22  130.60, 130.65, 135.20, 160.15, 220.18, 220.21, 220.39, 220.41,  220.43,
    23  260.00, [263.05, 263.10, 263.15] 263.06, 263.07, 263.08, 263.09, 263.13,
    24  263.14, 265.04 or article two hundred sixty-three of the penal law or an
    25  attempt  to commit any of the aforesaid offenses under section 110.00 of
    26  the penal law, or any offenses committed under a former section  of  the
    27  penal law which would constitute violations of the aforesaid sections of
    28  the  penal law, or any offenses committed outside this state which would
    29  constitute violations of the aforesaid sections of the penal law.

    30    (c) The offenses referred to in subparagraph (i) of paragraph  (b)  of
    31  subdivision one and subparagraph (i) of paragraph (c) of subdivision two
    32  of  this  section  that  result in disqualification for a period of five
    33  years shall include a conviction under sections 100.10, 105.13,  115.05,
    34  120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  125.13,  125.14,
    35  125.40, 125.45, 130.20, 130.25, 130.55, 135.10, 135.55, 140.17,  140.25,
    36  140.30,  145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09, 220.16,
    37  220.31, 220.34, 220.60, 221.30, 221.50, 221.55, 230.00, 230.01,  230.05,
    38  230.06,  230.06-a,  230.20,  230.25,  230.30,  230.32,  235.05,  235.06,
    39  235.07, [235.21,] 240.06, 245.00, 260.10,  subdivision  two  of  section
    40  260.20  and  sections  260.25,  263.02,  265.02, 265.03, 265.08, 265.09,

    41  265.10, 265.12, 265.35 of the penal law or an attempt to commit  any  of
    42  the  aforesaid  offenses  under  section 110.00 of the penal law, or any
    43  similar offenses committed under a former section of the penal  law,  or
    44  any  offenses  committed  under  a former section of the penal law which
    45  would constitute violations of the aforesaid sections of the penal  law,
    46  or  any  offenses  committed  outside  this state which would constitute
    47  violations of the aforesaid sections of the penal law.
    48    § 45. The section heading and subdivision 1 of section 235.15  of  the
    49  penal law, as amended by chapter 600 of the laws of 1996, are amended to
    50  read as follows:
    51    Obscenity  [or disseminating indecent material to minors in the second
    52  degree]; defense.
    53    1. In any prosecution for obscenity[, or disseminating indecent  mate-

    54  rial to minors in the second degree in violation of subdivision three of
    55  section  235.21  of this article,] it is an affirmative defense that the
    56  persons to whom allegedly obscene   or  indecent  material  was  dissem-

        A. 6941--A                         17
 
     1  inated,  or  the audience to an allegedly obscene performance, consisted
     2  of persons or institutions having scientific, educational,  governmental
     3  or  other similar justification for possessing, disseminating or viewing
     4  the same.
     5    §  46.  Sections  120.70, 235.20, 235.21, 235.22, 235.23 and 235.24 of
     6  the penal law are REPEALED.
     7    § 47. Article 263 of the penal law is REPEALED and a new  article  263
     8  is added to read as follows:
     9                                 ARTICLE 263

    10                      CHILD SEXUAL ABUSE, EXPLOITATION
    11                          AND PORNOGRAPHY OFFENSES
    12  Section 263.00 Definitions.
    13          263.01 Luring a child.
    14          263.02 Disseminating  indecent  material to minors in the second
    15                   degree.
    16          263.03 Disseminating indecent material to minors  in  the  first
    17                   degree.
    18          263.04 Disseminating  indecent  material  to minors; presumption
    19                   and defenses.
    20          263.05 Disseminating indecent material to minors; limitations.
    21          263.06 Use of a child in a  sexual  performance  in  the  second
    22                   degree.

    23          263.07 Use  of  a  child  in  a  sexual performance in the first
    24                   degree.
    25          263.08 Promoting an obscene sexual performance by a child in the
    26                   second degree.
    27          263.09 Promoting an obscene sexual performance by a child in the
    28                   first degree.
    29          263.10 Possessing an obscene sexual performance by  a  child  in
    30                   the third degree.
    31          263.11 Possessing  an  obscene  sexual performance by a child in
    32                   the second degree.
    33          263.12 Possessing an obscene sexual performance by  a  child  in
    34                   the first degree.
    35          263.13 Promoting  a  sexual performance by a child in the second

    36                   degree.
    37          263.14 Promoting a sexual performance by a child  in  the  first
    38                   degree.
    39          263.15 Possessing  a  sexual performance by a child in the third
    40                   degree.
    41          263.16 Possessing a sexual performance by a child in the  second
    42                   degree.
    43          263.17 Possessing  a  sexual performance by a child in the first
    44                   degree.
    45          263.18 Computer sex crimes against children.
    46          263.19 Sentence of imprisonment for computer sex crimes.
    47          263.20 Sexual performance by a child; affirmative defenses.
    48          263.25 Proof of age of child.
    49  § 263.00 Definitions.

    50    As used in this article the following definitions shall apply:
    51    1. "Minor" means any person less than seventeen years old.
    52    2. "Nudity" means the showing of the human male  or  female  genitals,
    53  pubic  area  or  buttocks  with less than a full opaque covering, or the
    54  showing of the female breast with less than a fully opaque  covering  of
    55  any  portion  thereof  below  the top of the nipple, or the depiction of
    56  covered male genitals in a discernibly turgid state.

        A. 6941--A                         18
 
     1    3. "Sexual conduct" means actual or simulated sexual intercourse, oral
     2  sexual conduct, anal sexual conduct,  sexual  bestiality,  masturbation,
     3  sadomasochistic abuse, or lewd exhibition of the genitals.

     4    4.  "Sexual  excitement"  means  the condition of human male or female
     5  genitals when in a state of sexual stimulation or arousal.
     6    5. "Sexual performance" means any performance or  part  thereof  which
     7  includes sexual conduct or what reasonably appears to be sexual conduct,
     8  by a child less than seventeen years of age.
     9    6.  "Obscene  sexual performance" means any performance which includes
    10  sexual conduct or what reasonably appears to be  sexual  conduct,  by  a
    11  child  less  than  seventeen  years  of  age,  in  any material which is
    12  obscene, as such term is defined in section 235.00 of this chapter.
    13    7. "Sexual intercourse", "sexual contact", "oral sexual  conduct"  and
    14  "anal sexual conduct" mean the conduct defined by section 130.00 of this

    15  chapter.
    16    8.  "Sadomasochistic abuse" means flagellation or torture by or upon a
    17  person clad in undergarments, a mask or bizarre costume, or  the  condi-
    18  tion  of being fettered, bound or otherwise physically restrained on the
    19  part of one so clothed.
    20    9. "Performance" means any play, motion picture, photograph or  dance,
    21  film, video, digital image or data stored on a computer disk or by elec-
    22  tronic  means  where  such  data  is capable of conversion into a visual
    23  image. Performance also means any other visual representation  exhibited
    24  before an audience.
    25    10.  "Promote"  means  to  procure,  manufacture,  issue,  sell, give,
    26  provide, lend, mail, deliver, transfer, transmute, publish,  distribute,

    27  circulate,  disseminate,  present,  exhibit or advertise, or to offer or
    28  agree to do the same.
    29    11. "Simulated" means the explicit depiction of any of the conduct set
    30  forth in subdivision three of this section which creates the  appearance
    31  of such conduct.
    32    12.  "Harmful  to  minors"  means  that  quality of any description or
    33  representation, in whatever form,  of  nudity,  sexual  conduct,  sexual
    34  excitement,  or  sadomasochistic  abuse,  when  it:  (a) considered as a
    35  whole, appeals to the prurient interest in sex of  minors;  and  (b)  is
    36  patently  offensive  to prevailing standards in the adult community as a
    37  whole with respect to what is suitable  material  for  minors;  and  (c)

    38  considered  as  a whole, lacks serious literary, artistic, political and
    39  scientific value for minors.
    40    13. "Access software" means software (including client or server soft-
    41  ware) or enabling tools that do not create or provide the content of the
    42  communication but that allow a user to do any one or more of the follow-
    43  ing: (a) filter, screen, allow or disallow content;  (b)  pick,  choose,
    44  analyze  or  digest content; or (c) transmit, receive, display, forward,
    45  cache, search, subset, organize, reorganize or translate content.
    46    14. "Computer" shall have the same meaning as ascribed to such term by
    47  section 156.00 of this chapter.
    48    15. "Telephonic communication" and  "electronic  communication"  shall

    49  have  the  meaning  given  to those terms by subdivisions three and five
    50  respectively, of section 250.00 of this chapter.
    51  § 263.01 Luring a child.
    52    1. A person is guilty of luring a child when he or she lures  a  child
    53  into  a motor vehicle, aircraft, watercraft, isolated area, building, or
    54  part thereof, for the purpose of committing against such  child  any  of
    55  the  following  offenses: an offense as defined in section 70.02 of this
    56  chapter; an offense as defined in section 125.25 or 125.27 of this chap-

        A. 6941--A                         19
 
     1  ter; a felony offense that is a violation of article one hundred  thirty
     2  of  this  chapter; an offense as defined in section 135.25 of this chap-

     3  ter; an offense as defined in sections 230.30, 230.33 or 230.34 of  this
     4  chapter;  an offense as defined in sections 255.25, 255.26, or 255.27 of
     5  this chapter; or an offense as defined in this article.  For purposes of
     6  this subdivision "child" means a person less  than  seventeen  years  of
     7  age.  Nothing  in  this  section  shall  be  deemed  to preclude, if the
     8  evidence warrants, a conviction for the commission or attempted  commis-
     9  sion of any crime, including but not limited to a crime defined in arti-
    10  cle one hundred thirty-five of this chapter.
    11    2.  Luring a child is a class E felony, provided, however, that if the
    12  underlying offense the actor  intended  to  commit  against  such  child

    13  constituted  a class A or a class B felony, then the offense of luring a
    14  child in violation of this section shall be deemed respectively, a class
    15  C felony or class D felony.
    16  § 263.02 Disseminating indecent material to minors in the second degree.
    17    A person is guilty of disseminating indecent material to minors in the
    18  second degree when:
    19    1. With knowledge of its character and content, he  or  she  sells  or
    20  loans to a minor for monetary consideration:
    21    (a)  any picture, photograph, drawing, sculpture, motion picture film,
    22  or similar visual representation or image of a person or portion of  the
    23  human body which depicts nudity, sexual conduct or sadomasochistic abuse
    24  and which is harmful to minors; or

    25    (b)  any  book, pamphlet, magazine, printed matter however reproduced,
    26  or sound recording which contains any matter enumerated in paragraph (a)
    27  of this subdivision, or explicit and  detailed  verbal  descriptions  or
    28  narrative accounts of sexual excitement, sexual conduct or sadomasochis-
    29  tic abuse and which, taken as a whole, is harmful to minors; or
    30    2.  Knowing  the  character  and  content of a motion picture, show or
    31  other presentation which, in whole or in part,  depicts  nudity,  sexual
    32  conduct  or sadomasochistic abuse, and which is harmful to minors, he or
    33  she:
    34    (a) exhibits such motion picture, show  or  other  presentation  to  a
    35  minor for monetary consideration; or

    36    (b)  sells  to a minor an admission ticket or pass to premises whereon
    37  there is exhibited or to be exhibited such motion picture, show or other
    38  presentation; or
    39    (c) admits a minor for a monetary consideration  to  premises  whereon
    40  there  is exhibited or to be exhibited such motion picture show or other
    41  presentation; or
    42    3. Knowing the character and content of the  communication  which,  in
    43  whole or in part, depicts or describes, either in words or images actual
    44  or  simulated nudity, sexual conduct or sadomasochistic abuse, and which
    45  is harmful to minors, he or she intentionally uses any computer communi-
    46  cation system allowing the input, output, examination  or  transfer,  of

    47  computer  data  or  computer  programs  from one computer to another, to
    48  initiate or engage in such communication with a person who is a minor.
    49    Disseminating indecent material to minors in the second  degree  is  a
    50  class E felony.
    51  § 263.03 Disseminating indecent material to minors in the first degree.
    52    A person is guilty of disseminating indecent material to minors in the
    53  first degree when:
    54    1.  Knowing  the  character and content of the communication which, in
    55  whole or in part, depicts or describes, either in words or images actual
    56  or simulated nudity, sexual conduct or sadomasochistic abuse, and  which

        A. 6941--A                         20
 

     1  is harmful to minors, he or she intentionally uses any telephonic commu-
     2  nication,  electronic  communication  or  computer  communication system
     3  allowing the input, output, examination or transfer, of computer data or
     4  computer programs from one computer to another, to initiate or engage in
     5  such communication with a person who is a minor or a person who, regard-
     6  less  of  his  or  her age, is a police officer and the actor reasonably
     7  believes such officer to be a minor; and
     8    2. By means of such communication he or  she  importunes,  invites  or
     9  induces  a  minor  or  a  person who, regardless of his or her age, is a
    10  police officer and the actor reasonably believes such officer  to  be  a

    11  minor to engage in sexual intercourse, oral sexual conduct or anal sexu-
    12  al  conduct, or sexual contact with him or her, or to engage in a sexual
    13  performance, obscene sexual performance, or sexual conduct  for  his  or
    14  her benefit.
    15    Disseminating  indecent  material  to  minors in the first degree is a
    16  class C felony.
    17  § 263.04 Disseminating indecent  material  to  minors;  presumption  and
    18             defenses.
    19    1. A person who engages in the conduct proscribed by section 263.02 of
    20  this  article  is  presumed to do so with knowledge of the character and
    21  content of the material sold or loaned, or the motion picture,  show  or
    22  presentation exhibited or to be exhibited.

    23    2. In any prosecution for disseminating indecent material to minors in
    24  the  second  degree pursuant to subdivision one or two of section 263.02
    25  of this article, it is an affirmative defense that:
    26    (a) the defendant had reasonable  cause  to  believe  that  the  minor
    27  involved was seventeen years old or more; and
    28    (b)  such  minor  exhibited  to  the  defendant a draft card, driver's
    29  license, birth certificate or  other  official  or  apparently  official
    30  document purporting to establish that such minor was seventeen years old
    31  or more.
    32    3. In any prosecution for disseminating indecent material to minors in
    33  the second degree in violation of subdivision three of section 263.02 of

    34  this  article,  it  is  an  affirmative defense that the persons to whom
    35  allegedly obscene or indecent material was disseminated, or the audience
    36  to an allegedly obscene performance,  consisted  of  persons  or  insti-
    37  tutions  having  scientific,  educational, governmental or other similar
    38  justification for possessing, disseminating or viewing the same.
    39    4. In any prosecution for disseminating indecent material to minors in
    40  the second degree pursuant to subdivision three  of  section  263.02  of
    41  this  article  or disseminating indecent material to minors in the first
    42  degree pursuant to section 263.03 of this article, it shall be a defense
    43  that:
    44    (a) the defendant made a reasonable effort to ascertain the  true  age

    45  of the minor and was unable to do so as a result of actions taken by the
    46  minor; or
    47    (b)  the defendant has taken, in good faith, reasonable, effective and
    48  appropriate actions under  the  circumstances  to  restrict  or  prevent
    49  access  by  minors to materials specified in such subdivision, which may
    50  involve any appropriate measures to restrict minors from access to  such
    51  communications,  including  any method which is feasible under available
    52  technology; or
    53    (c) the defendant has restricted access to such materials by requiring
    54  use of a verified credit card, debit account, adult access code or adult
    55  personal identification number; or

        A. 6941--A                         21
 

     1    (d) the defendant has in good faith established a mechanism such  that
     2  the  labelling,  segregation or other mechanism enables such material to
     3  be automatically blocked or screened by software or  other  capabilities
     4  reasonably available to responsible adults wishing to effect such block-
     5  ing  or  screening  and the defendant has not otherwise solicited minors
     6  not subject to such screening or blocking capabilities  to  access  that
     7  material or to circumvent any such screening or blocking.
     8  § 263.05 Disseminating indecent material to minors; limitations.
     9    In  any  prosecution  for disseminating indecent material to minors in
    10  the second degree pursuant to subdivision three  of  section  263.02  of

    11  this  article  or disseminating indecent material to minors in the first
    12  degree pursuant to section 263.03 of this article:
    13    1. No person shall be held to have violated such provisions solely for
    14  providing access or connection to or from a facility, system, or network
    15  not under that person's control,  including  transmission,  downloading,
    16  intermediate  storage,  access  software,  or other related capabilities
    17  that are incidental to providing such access or connection that  do  not
    18  include the creation of the content of the communication.
    19    (a) The limitations provided by this subdivision shall not be applica-
    20  ble to a person who is a conspirator with an entity actively involved in

    21  the creation or knowing distribution of communications that violate such
    22  provisions,  or who knowingly advertises the availability of such commu-
    23  nications.
    24    (b) The limitations provided by this subdivision shall not be applica-
    25  ble to a person who provides access or connection to a facility, system,
    26  or network engaged in the violation of such provisions that is owned  or
    27  controlled by such person.
    28    2.  No  employer  shall  be  held liable under such provisions for the
    29  actions of an employee or agent unless the employee's or agent's conduct
    30  is within the scope of his or her employment or agency and the  employer
    31  having  knowledge  of such conduct, authorizes or ratifies such conduct,
    32  or recklessly disregards such conduct.

    33  § 263.06 Use of a child in a sexual performance in the second degree.
    34    A person is guilty of the use of a child in a  sexual  performance  in
    35  the second degree if knowing the character and content thereof he or she
    36  employs, authorizes or induces a minor to engage in a sexual performance
    37  or  obscene  sexual  performance  or  being  a parent, legal guardian or
    38  custodian of such minor, he or she consents to the participation by such
    39  minor in a sexual performance or obscene sexual performance.
    40    Use of a child in a sexual performance in the second degree is a class
    41  C felony.
    42  § 263.07 Use of a child in a sexual performance in the first degree.
    43    A person is guilty of the use of a child in a  sexual  performance  in

    44  the  first degree if knowing the character and content thereof he or she
    45  employs, authorizes or induces a child less than eleven years of age  to
    46  engage  in a sexual performance or obscene sexual performance or being a
    47  parent, legal guardian or custodian of such child, he or she consents to
    48  the participation by such child in a sexual performance or obscene sexu-
    49  al performance.
    50    Use of a child in a sexual performance in the first degree is a  class
    51  B felony.
    52  § 263.08 Promoting  an  obscene  sexual  performance  by  a child in the
    53             second degree.
    54    A person is guilty of promoting an obscene  sexual  performance  by  a
    55  child in the second degree when, knowing the character and content ther-

    56  eof,  he  or  she  produces, directs or promotes any obscene performance

        A. 6941--A                         22
 
     1  which includes sexual conduct, or what reasonably appears to  be  sexual
     2  conduct, by a minor.
     3    Promoting  an  obscene  sexual  performance  by  a child in the second
     4  degree is a class D felony.
     5  § 263.09 Promoting an obscene sexual performance by a child in the first
     6             degree.
     7    A person is guilty of promoting an obscene  sexual  performance  by  a
     8  child in the first degree when, knowing the character and content there-
     9  of, he or she produces, directs or promotes:
    10    1.  ten  or more obscene performances which include sexual conduct, or

    11  what reasonably appears to be sexual conduct, by a minor; or
    12    2. any obscene performance which  includes  sexual  conduct,  or  what
    13  reasonably  appears  to  be  sexual  conduct,  by  a minor and he or she
    14  promotes such performance to a minor, or a person who, regardless of his
    15  or her age, is a police officer and the actor reasonably  believes  such
    16  officer to be a minor.
    17    Promoting an obscene sexual performance by a child in the first degree
    18  is a class C felony.
    19  § 263.10 Possessing  an  obscene  sexual  performance  by a child in the
    20             third degree.
    21    A person is guilty of possessing an obscene sexual  performance  by  a
    22  child in the third degree when, knowing the character and content there-

    23  of,  he  or  she  knowingly  has in his or her possession or control any
    24  obscene performance which includes sexual  conduct  or  what  reasonably
    25  appears to be sexual conduct by a minor.
    26    Possessing  an  obscene  sexual  performance  by  a child in the third
    27  degree is a class E felony.
    28  § 263.11 Possessing an obscene sexual performance  by  a  child  in  the
    29             second degree.
    30    A  person  is  guilty of possessing an obscene sexual performance by a
    31  child in the second degree when, knowing the character and content ther-
    32  eof, he or she knowingly has in his or her possession or control ten  or
    33  more  obscene  performances which include sexual conduct or what reason-
    34  ably appears to be sexual conduct by a minor.

    35    Possessing an obscene sexual performance by  a  child  in  the  second
    36  degree is a class D felony.
    37  § 263.12 Possessing  an  obscene  sexual  performance  by a child in the
    38             first degree.
    39    A person is guilty of possessing an obscene sexual  performance  by  a
    40  child in the first degree when, knowing the character and content there-
    41  of,  he  or  she  knowingly  has in his or her possession or control one
    42  hundred or more obscene performances which  include  sexual  conduct  or
    43  what reasonably appears to be sexual conduct by a minor.
    44    Possessing  an  obscene  sexual  performance  by  a child in the first
    45  degree is a class C felony.
    46  § 263.13 Promoting a sexual performance by a child in the second degree.

    47    A person is guilty of promoting a sexual performance by a child in the
    48  second degree when, knowing the character and content thereof, he or she
    49  produces, directs or promotes  any  performance  which  includes  sexual
    50  conduct by a minor.
    51    Promoting  a  sexual  performance by a child in the second degree is a
    52  class D felony.
    53  § 263.14 Promoting a sexual performance by a child in the first degree.
    54    A person is guilty of promoting a sexual performance by a child in the
    55  first degree when, knowing the character and content thereof, he or  she
    56  produces, directs or promotes:

        A. 6941--A                         23
 
     1    1.  ten  or  more  performances  which include sexual conduct, or what

     2  reasonably appears to be sexual conduct, by a minor; or
     3    2.  any  performance which includes sexual conduct, or what reasonably
     4  appears to be sexual conduct, by a minor and he  or  she  promotes  such
     5  performance  to  a minor, or a person who, regardless of his or her age,
     6  is a police officer and the actor reasonably believes such officer to be
     7  a minor.
     8    Promoting a sexual performance by a child in the  first  degree  is  a
     9  class C felony.
    10  § 263.15 Possessing a sexual performance by a child in the third degree.
    11    A  person  is  guilty of possessing a sexual performance by a child in
    12  the third degree when, knowing the character and content thereof, he  or

    13  she  knowingly  has  in his or her possession or control any performance
    14  which includes sexual conduct, or what reasonably appears to  be  sexual
    15  conduct, by a minor.
    16    Possessing  a  sexual  performance by a child in the third degree is a
    17  class E felony.
    18  § 263.16 Possessing a sexual  performance  by  a  child  in  the  second
    19             degree.
    20    A  person  is  guilty of possessing a sexual performance by a child in
    21  the second degree when, knowing the character and content thereof, he or
    22  she knowingly has in his or  her  possession  or  control  ten  or  more
    23  performances  which include sexual conduct or what reasonably appears to
    24  be sexual conduct by a minor.

    25    Possessing a sexual performance by a child in the second degree  is  a
    26  class D felony.
    27  § 263.17 Possessing a sexual performance by a child in the first degree.
    28    A  person  is  guilty of possessing a sexual performance by a child in
    29  the first degree when, knowing the character and content thereof, he  or
    30  she  knowingly  has  in  his or her possession or control one hundred or
    31  more performances  which  include  sexual  conduct  or  what  reasonably
    32  appears to be sexual conduct by a minor.
    33    Possessing  a  sexual  performance by a child in the first degree is a
    34  class C felony.
    35  § 263.18 Computer sex crimes against children.
    36    1. A person commits a computer sex crime when he or she commits a  sex

    37  crime  against a child and facilitated the commission of such offense by
    38  using or causing to be used a computer or computer service  to  communi-
    39  cate with the child against whom such offense is committed.
    40    2. A "sex crime against a child" means a felony offense (a) the essen-
    41  tial elements of which include the commission or attempted commission of
    42  sexual  conduct, as defined in subdivision ten of section 130.00 of this
    43  chapter, or the use or promotion of a sexual or obscene sexual  perform-
    44  ance,  as  defined  in  section 263.00 of this article, (b) committed or
    45  attempted to be committed against a child less than seventeen years old.
    46  § 263.19 Sentence of imprisonment for computer sex crimes.

    47    1. When a person is convicted of a  computer  sex  crime  pursuant  to
    48  section 263.18 of this article, and the underlying crime against a child
    49  is  a  violent felony offense, as defined in section 70.02 of this chap-
    50  ter, the computer sex crime shall be deemed a violent felony offense.
    51    2. When a person is convicted of a  computer  sex  crime  pursuant  to
    52  section  263.18  of this article, and the underlying sex crime against a
    53  child is a class C, D or E felony,  the  computer  sex  crime  shall  be
    54  deemed  to be one category higher than the sex crime against a child the
    55  defendant committed, or one  category  higher  than  the  offense  level

        A. 6941--A                         24
 

     1  applicable to the defendant's conviction for an attempt or conspiracy to
     2  commit a sex crime against a child, whichever is applicable.
     3    3.  Notwithstanding  any  other  provision  of  law,  when a person is
     4  convicted of a computer sex crime pursuant to  section  263.18  of  this
     5  article  and the underlying sex crime against a child is a class B felo-
     6  ny:
     7    (a) the term of the determinate sentence must be at least eight  years
     8  if the defendant is sentenced pursuant to section 70.02 of this chapter;
     9    (b) the term of the determinate sentence must be at least twelve years
    10  if the defendant is sentenced pursuant to section 70.04 of this chapter;
    11  and
    12    (c)  the  maximum  term of the indeterminate sentence must be at least

    13  four years if the defendant is sentenced pursuant to  section  70.05  of
    14  this chapter.
    15  § 263.20 Sexual performance by a child; affirmative defenses.
    16    1.  Under  this  article,  it shall be an affirmative defense that the
    17  defendant in good faith reasonably believed the person appearing in  the
    18  performance was not a minor.
    19    2.  In any prosecution for any offense pursuant to this article, it is
    20  an affirmative defense that  the  person  so  charged  was  a  librarian
    21  engaged  in the normal course of his or her employment, a motion picture
    22  projectionist, stage employee or spotlight operator,  cashier,  doorman,
    23  usher,  candy  stand attendant, porter or in any other non-managerial or

    24  non-supervisory capacity in a motion picture theatre; provided he or she
    25  has no financial interest, other  than  his  or  her  employment,  which
    26  employment  does not encompass compensation based upon any proportion of
    27  the gross receipts, in the promotion of a sexual performance  for  sale,
    28  rental  or  exhibition or in the promotion, presentation or direction of
    29  any sexual performance, or is in any way responsible for acquiring  such
    30  material for sale, rental or exhibition.
    31  § 263.25 Proof of age of child.
    32    Whenever  it  becomes  necessary  for  the purposes of this article to
    33  determine whether a child who participated in a sexual performance was a
    34  minor, the court or jury may make  such  determination  by  any  of  the

    35  following:  personal  inspection  of the child; inspection of the sexual
    36  performance; oral testimony by a witness to the sexual performance as to
    37  the age of the child based upon the child's appearance;  expert  medical
    38  testimony  based upon the appearance of the child in the sexual perform-
    39  ance; and any other method authorized by any applicable provision of law
    40  or by the rules of evidence at common law.
    41    § 48. Paragraph (a) of subdivision 1 of section 460.10  of  the  penal
    42  law,  as  amended by section 30 of part AAA of chapter 56 of the laws of
    43  2009, is amended to read as follows:
    44    (a) Any of the felonies set forth in this  chapter:  sections  120.05,
    45  120.10  and 120.11 relating to assault; sections 125.10 to 125.27 relat-
    46  ing to homicide; sections 130.25, 130.30 and 130.35  relating  to  rape;

    47  sections 135.20 and 135.25 relating to kidnapping; section 135.35 relat-
    48  ing  to labor trafficking; section 135.65 relating to coercion; sections
    49  140.20, 140.25 and 140.30 relating to burglary; sections 145.05,  145.10
    50  and  145.12  relating  to  criminal  mischief; article one hundred fifty
    51  relating to arson; sections 155.30, 155.35, 155.40 and  155.42  relating
    52  to grand larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to
    53  health  care  fraud;  article  one  hundred  sixty  relating to robbery;
    54  sections  165.45,  165.50,  165.52  and  165.54  relating  to   criminal
    55  possession  of  stolen  property; sections 165.72 and 165.73 relating to
    56  trademark  counterfeiting;  sections  170.10,  170.15,  170.25,  170.30,

        A. 6941--A                         25
 
     1  170.40,  170.65 and 170.70 relating to forgery; sections 175.10, 175.25,

     2  175.35, 175.40 and 210.40 relating to false statements; sections 176.15,
     3  176.20, 176.25 and 176.30 relating to insurance fraud;  sections  178.20
     4  and  178.25  relating  to criminal diversion of prescription medications
     5  and prescriptions; sections  180.03,  180.08,  180.15,  180.25,  180.40,
     6  180.45,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.20, 200.22,
     7  200.25, 200.27, 215.00, 215.05 and 215.19 relating to bribery;  sections
     8  187.10,  187.15,  187.20  and  187.25  relating  to residential mortgage
     9  fraud, sections 190.40 and 190.42 relating to  criminal  usury;  section
    10  190.65 relating to schemes to defraud; sections 205.60 and 205.65 relat-
    11  ing to hindering prosecution; sections 210.10, 210.15, and 215.51 relat-
    12  ing  to  perjury and contempt; section 215.40 relating to tampering with
    13  physical evidence; sections  220.06,  220.09,  220.16,  220.18,  220.21,

    14  220.31,  220.34,  220.39,  220.41,  220.43,  220.46,  220.55, 220.60 and
    15  220.77 relating to controlled substances;  sections  225.10  and  225.20
    16  relating  to  gambling;  sections 230.25, 230.30, and 230.32 relating to
    17  promoting prostitution; section  230.34  relating  to  sex  trafficking;
    18  sections  235.06, and 235.07[, 235.21 and 235.22] relating to obscenity;
    19  sections  [263.10]  263.01,  263.02,  263.03,  263.06,  263.07,  263.08,
    20  263.09,  263.13  and  [263.15]  263.14  relating  to [promoting a sexual
    21  performance by a] child  sexual  abuse,  exploitation  and  pornography;
    22  section 263.18 relating to sex crimes against children; sections 265.02,
    23  265.03,  265.04,  265.11,  265.12,  265.13 and the provisions of section

    24  265.10 which constitute a felony relating to firearms and other  danger-
    25  ous weapons; and sections 265.14 and 265.16 relating to criminal sale of
    26  a  firearm;  and  section  275.10, 275.20, 275.30, or 275.40 relating to
    27  unauthorized recordings; and sections 470.05, 470.10, 470.15 and  470.20
    28  relating to money laundering; or
    29    §  49.  Subdivision  1  of  section  50-b  of the civil rights law, as
    30  amended by chapter 320 of the laws  of  2006,  is  amended  to  read  as
    31  follows:
    32    1.  The identity of any victim of a sex offense, as defined in article
    33  one hundred thirty, article two hundred sixty-three or  section  255.25,
    34  255.26  or  255.27  of  the  penal  law,  or of an offense involving the
    35  alleged transmission of  the  human  immunodeficiency  virus,  shall  be
    36  confidential. No report, paper, picture, photograph, court file or other

    37  documents, in the custody or possession of any public officer or employ-
    38  ee,  which  identifies  such a victim shall be made available for public
    39  inspection. No such  public  officer  or  employee  shall  disclose  any
    40  portion of any police report, court file, or other document, which tends
    41  to  identify such a victim except as provided in subdivision two of this
    42  section.
    43    § 50. Subdivision 2 of section 130.91 of the penal law,  as  added  by
    44  chapter 7 of the laws of 2007, is amended to read as follows:
    45    2.  A  "specified  offense"  is a felony offense defined by any of the
    46  following provisions of this chapter: assault in the  second  degree  as
    47  defined  in  section  120.05,  assault in the first degree as defined in
    48  section 120.10, gang assault in the second degree as defined in  section
    49  120.06,  gang  assault in the first degree as defined in section 120.07,

    50  stalking in the first degree as defined in section 120.60,  manslaughter
    51  in  the  second  degree as defined in subdivision one of section 125.15,
    52  manslaughter in the first degree as defined in section 125.20, murder in
    53  the second degree as defined in section  125.25,  aggravated  murder  as
    54  defined  in  section  125.26,  murder  in the first degree as defined in
    55  section 125.27, kidnapping in the second degree as  defined  in  section
    56  135.20,  kidnapping  in  the  first degree as defined in section 135.25,

        A. 6941--A                         26
 
     1  burglary in the third degree as defined in section 140.20,  burglary  in
     2  the  second  degree  as defined in section 140.25, burglary in the first
     3  degree as defined in section 140.30,  arson  in  the  second  degree  as
     4  defined  in  section  150.15,  arson  in  the first degree as defined in

     5  section 150.20, robbery in  the  third  degree  as  defined  in  section
     6  160.05,  robbery  in  the  second  degree  as defined in section 160.10,
     7  robbery in the first degree as  defined  in  section  160.15,  promoting
     8  prostitution  in the second degree as defined in section 230.30, promot-
     9  ing prostitution in the first  degree  as  defined  in  section  230.32,
    10  compelling  prostitution  as  defined  in  section 230.33, disseminating
    11  indecent material to minors in the first degree as  defined  in  section
    12  [235.22]  263.03,  use  of a child in a sexual performance in the second
    13  degree as defined in section [263.05] 263.06, use of a child in a sexual
    14  performance in the first degree as defined in section 263.07,  promoting

    15  an obscene sexual performance by a child in the second degree as defined
    16  in section [263.10] 263.08, promoting an obscene sexual performance by a
    17  child  in  the  first  degree  as defined in section 263.09, promoting a
    18  sexual performance by a child in the second degree as defined in section
    19  [263.15] 263.13, promoting a sexual performance by a child in the  first
    20  degree as defined in section 263.14, or any felony attempt or conspiracy
    21  to commit any of the foregoing offenses.
    22    §  51.  Subdivision  3 of section 130.95 of the penal law, as added by
    23  chapter 107 of the laws of 2006, is amended to read as follows:
    24    3. He or she has previously been subjected to a conviction for a felo-
    25  ny defined in this article, incest as defined in section 255.25 of  this

    26  chapter or use of a child in a sexual performance as defined in [section
    27  263.05] sections 263.06 and 263.07 of this chapter.
    28    §  52.  Subdivision  2 of section 250.65 of the penal law, as added by
    29  chapter 69 of the laws of 2003, is amended to read as follows:
    30    2. With respect to sections 250.55 and 250.60  of  this  article,  the
    31  provisions of subdivision two of section 235.15 and subdivisions one and
    32  two of section [235.24] 263.05 of this chapter shall apply.
    33    §  53. Subdivision 2 of section 35.07 of the arts and cultural affairs
    34  law, as added by chapter 160 of the laws of 2007, is amended to read  as
    35  follows:
    36    2.  It  shall be unlawful for any person to employ, use or exhibit any
    37  person under eighteen years of age as  a  dancer  or  performer  in  any

    38  portion  of  a facility open to the public wherein performers appear and
    39  dance or otherwise perform unclothed, under circumstances in which  such
    40  employment  would  be  harmful  to  such person in the manner defined in
    41  subdivision [six] twelve of section [235.20] 263.00 of the penal law.
    42    § 54. Subdivision 1 of section 390-c of the general business  law,  as
    43  added by chapter 160 of the laws of 2007, is amended to read as follows:
    44    1.  No person under the age of eighteen years shall be admitted to any
    45  portion of a facility open to the public wherein performers  appear  and
    46  dance  or otherwise perform unclothed, under circumstances where viewing
    47  such dancing or performance would be harmful  to  such  person,  in  the

    48  manner  described in subdivision [six] twelve of section [235.20] 263.00
    49  of the penal law.
    50    § 55. Paragraph s of subdivision 2 of section 133 of the labor law, as
    51  added by chapter 160 of the laws of 2007, is amended to read as follows:
    52    s. as a dancer or performer in any portion of a facility open  to  the
    53  public   wherein  performers  appear  and  dance  or  otherwise  perform
    54  unclothed, under circumstances in which such employment would be harmful
    55  to such person in the manner defined  in  subdivision  [six]  twelve  of
    56  section [235.20] 263.00 of the penal law.

        A. 6941--A                         27
 
     1    §  56.  Subdivision  6  of  section 6330 of the civil practice law and

     2  rules, as amended by chapter 826 of the laws of 1972, is amended to read
     3  as follows:
     4    6. The court, in its adjudication, may (1) grant the relief sought (2)
     5  deny  the  relief  sought or (3) enjoin the sale, further sale, display,
     6  distribution,  further  distribution,   acquisition,   publication,   or
     7  possession  of the material, to persons under the age of seventeen, upon
     8  a finding that the material is of the kind described  in  paragraph  [a]
     9  (a)  or  [b]  (b)  of  subdivision one of section [235.21] 263.02 of the
    10  penal law.
    11    § 57. This act shall  take  effect  on  the  first  of  November  next
    12  succeeding the date on which it shall have become a law.
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