STATE OF NEW YORK
________________________________________________________________________
654
2019-2020 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2019
___________
Introduced by M. of A. PAULIN, SEAWRIGHT, DICKENS, DINOWITZ, D'URSO,
GALEF, GOTTFRIED, JAFFEE, JOYNER, PICHARDO, L. ROSENTHAL, SIMON,
STECK, NIOU, HEVESI -- Multi-Sponsored by -- M. of A. DE LA ROSA --
read once and referred to the Committee on Codes
AN ACT to repeal section 240.37 of the penal law, relating to loitering
for the purpose of engaging in a prostitution offense; and to amend
the penal law, the criminal procedure law, the social services law and
the administrative code of the city of New York, in relation to making
technical corrections relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The repeal of section 240.37 of the penal law, as effected
2 by section two of this act, is hereby declared to be ameliorative, and
3 it is the intent of the legislature that no prosecution under such
4 section be commenced, continued, or refiled.
5 § 2. Section 240.37 of the penal law is REPEALED.
6 § 3. Section 230.01 of the penal law, as amended by chapter 189 of the
7 laws of 2018, is amended to read as follows:
8 § 230.01 Prostitution; affirmative defense.
9 In any prosecution under section 230.00, section 230.03, section
10 230.19, section 230.20, subdivision 2 of section 230.25, subdivision 2
11 of section 230.30[,] or section 230.34-a [or subdivision two of section
12 240.37] of this [part] article, it is an affirmative defense that the
13 defendant's participation in the offense was a result of having been a
14 victim of compelling prostitution under section 230.33 of this article,
15 a victim of sex trafficking under section 230.34 of this article, a
16 victim of sex trafficking of a child under section 230.34-a of this
17 article or a victim of trafficking in persons under the trafficking
18 victims protection act (United States Code, Title 22, Chapter 78).
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01944-01-9
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1 § 4. Section 60.47 of the criminal procedure law, as added by section
2 2 of part I of chapter 57 of the laws of 2015, is amended to read as
3 follows:
4 § 60.47 Possession of condoms; receipt into evidence.
5 Evidence that a person was in possession of one or more condoms may
6 not be admitted at any trial, hearing, or other proceeding in a prose-
7 cution for section 230.00 [or section 240.37] of the penal law for the
8 purpose of establishing probable cause for an arrest or proving any
9 person's commission or attempted commission of such offense.
10 § 5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the
11 criminal procedure law, paragraph (c) as amended by chapter 762 of the
12 laws of 1971 and paragraph (d) as amended by chapter 232 of the laws of
13 2010, are amended to read as follows:
14 (c) A misdemeanor defined outside the penal law which would constitute
15 a felony if such person had a previous judgment of conviction for a
16 crime[; or
17 (d) Loitering for the purpose of engaging in a prostitution offense as
18 defined in subdivision two of section 240.37 of the penal law].
19 § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as
20 added by chapter 402 of the laws of 2014, is amended to read as follows:
21 4. After arraignment upon an information, a simplified information, a
22 prosecutor's information or misdemeanor complaint on a charge of prosti-
23 tution pursuant to section 230.00 of the penal law [or loitering for the
24 purposes of prostitution pursuant to subdivision two of section 240.37
25 of the penal law, provided that the person does not stand charged with
26 loitering for the purpose of patronizing a prostitute, where such
27 offense allegedly occurred when the person was sixteen or seventeen
28 years of age,] the local criminal court may dismiss such charge in its
29 discretion in the interest of justice on the ground that a defendant
30 participated in services provided to him or her.
31 § 7. The opening paragraph of subdivision 1 of section 170.80 of the
32 criminal procedure law, as amended by chapter 402 of the laws of 2014,
33 is amended to read as follows:
34 Notwithstanding any other provision of law, at any time at or after
35 arraignment on a charge of prostitution pursuant to section 230.00 of
36 the penal law [or loitering for the purposes of prostitution pursuant to
37 subdivision two of section 240.37 of the penal law, provided that the
38 person does not stand charged with loitering for the purpose of patron-
39 izing a prostitute, where such offense allegedly occurred when the
40 person was sixteen or seventeen years of age except where], after
41 consultation with counsel, a knowing and voluntary plea of guilty has
42 been entered to such charge, any judge or justice hearing any stage of
43 such case may, upon consent of the defendant after consultation with
44 counsel:
45 § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as
46 amended by chapter 189 of the laws of 2018, is amended to read as
47 follows:
48 2. Under no circumstances shall the mandatory surcharge, sex offender
49 registration fee, DNA databank fee or the crime victim assistance fee be
50 waived provided, however, that a court may waive the crime victim
51 assistance fee if such defendant is an eligible youth as defined in
52 subdivision two of section 720.10 of this chapter, and the imposition of
53 such fee would work an unreasonable hardship on the defendant, his or
54 her immediate family, or any other person who is dependent on such
55 defendant for financial support. A court shall waive any mandatory
56 surcharge, DNA databank fee and crime victim assistance fee when: (i)
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1 [the defendant is convicted of loitering for the purpose of engaging in
2 prostitution under section 240.37 of the penal law (provided that the
3 defendant was not convicted of loitering for the purpose of patronizing
4 a person for prostitution); (ii)] the defendant is convicted of prosti-
5 tution under section 230.00 of the penal law; [(iii)] (ii) the defendant
6 is convicted of a violation in the event such conviction is in lieu of a
7 plea to or conviction for [loitering for the purpose of engaging in
8 prostitution under section 240.37 of the penal law (provided that the
9 defendant was not alleged to be loitering for the purpose of patronizing
10 a person for prostitution) or] prostitution under section 230.00 of the
11 penal law; [or (iv)] (iii) the court finds that a defendant is a victim
12 of sex trafficking under section 230.34 of the penal law or a victim of
13 trafficking in persons under the trafficking victims protection act
14 (United States Code, Title 22, Chapter 78); or [(v)] (iv) the court
15 finds that the defendant is a victim of sex trafficking of a child under
16 section 230.34-a of the penal law.
17 § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
18 added by chapter 402 of the laws of 2014, is amended to read as follows:
19 4. Notwithstanding any provision in this article, a person charged
20 with prostitution as defined in section 230.00 of the penal law [or
21 loitering for the purposes of prostitution as defined in subdivision two
22 of section 240.37 of the penal law, provided that the person does not
23 stand charged with loitering for the purpose of patronizing a prosti-
24 tute, and such person is aged sixteen or seventeen when such offense
25 occurred,] regardless of whether such person (i) had prior to commence-
26 ment of trial or entry of a plea of guilty been convicted of a crime or
27 found a youthful offender, or (ii) subsequent to such conviction for
28 prostitution [or loitering for prostitution] is convicted of a crime or
29 found a youthful offender, the provisions of subdivisions one and two of
30 this section requiring or authorizing the accusatory instrument filed
31 against a youth to be sealed, and the arraignment and all proceedings in
32 the action to be conducted in private shall apply.
33 § 10. Subdivision 1 of section 720.35 of the criminal procedure law,
34 as amended by chapter 402 of the laws of 2014, is amended to read as
35 follows:
36 1. A youthful offender adjudication is not a judgment of conviction
37 for a crime or any other offense, and does not operate as a disquali-
38 fication of any person so adjudged to hold public office or public
39 employment or to receive any license granted by public authority but
40 shall be deemed a conviction only for the purposes of transfer of super-
41 vision and custody pursuant to section two hundred fifty-nine-m of the
42 executive law. A defendant for whom a youthful offender adjudication was
43 substituted, who was originally charged with prostitution as defined in
44 section 230.00 of the penal law [or loitering for the purposes of pros-
45 titution as defined in subdivision two of section 240.37 of the penal
46 law provided that the person does not stand charged with loitering for
47 the purpose of patronizing a prostitute, for an offense allegedly
48 committed when he or she was sixteen or seventeen years of age], shall
49 be deemed a "sexually exploited child" as defined in subdivision one of
50 section four hundred forty-seven-a of the social services law and there-
51 fore shall not be considered an adult for purposes related to the charg-
52 es in the youthful offender proceeding or a proceeding under section
53 170.80 of this chapter.
54 § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of the
55 social services law, as amended by chapter 189 of the laws of 2018, are
56 amended to read as follows:
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1 (c) is a victim of the crime of compelling prostitution as defined in
2 section 230.33 of the penal law;
3 (d) engages in acts or conduct described in article two hundred
4 sixty-three [or section 240.37] of the penal law.
5 § 12. The third undesignated paragraph of subdivision a of section
6 3-118 of the administrative code of the city of New York, as amended by
7 chapter 189 of the laws of 2018, is amended to read as follows:
8 Sexually exploited youth. The term "sexually exploited youth" means
9 persons under the age of 18 who have been subject to sexual exploitation
10 because they (a) are the victim of the crime of sex trafficking as
11 defined in section 230.34 of the penal law; (b) engage in any act as
12 defined in section 230.00 of the penal law; (c) are a victim of the
13 crime of compelling prostitution as defined in section 230.33 of the
14 penal law; (d) are a victim of the crime of sex trafficking of a child
15 as defined in section 230.34-a of the penal law; or (e) engage in acts
16 or conduct described in article [263 or section 240.37] two hundred
17 sixty-three of the penal law. The term shall also mean persons under
18 the age of 18 who have been subject to incest in the third degree,
19 second degree or first degree, as defined in sections 255.25, 255.26,
20 and 255.27 of the penal law, respectively, or any of the sex offenses
21 enumerated in article [130] one hundred thirty of the penal law.
22 § 13. This act shall take effect immediately.
