Increases the penalties for persons convicted of child pornography; creates a new crime of use of a child in a sexual performance in the first degree and imposes consecutive sentencing upon certain multiple convictions of child pornography statutes.
STATE OF NEW YORK
________________________________________________________________________
1904
2011-2012 Regular Sessions
IN SENATE
January 14, 2011
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to increasing the criminal
penalties for sexual performances by a child and in relation to
providing for consecutive sentencing upon certain multiple convictions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
2 amended by chapter 1 of the laws of 2000, are amended to read as
3 follows:
4 1. "Sexual performance" means any performance or part thereof which,
5 for purposes of section 263.16 of this article, includes sexual conduct
6 by a child less than sixteen years of age or, for purposes of section
7 263.05 or 263.15 of this article, includes sexual conduct by a child
8 less than [seventeen] eighteen years of age.
9 2. "Obscene sexual performance" means any performance which, for
10 purposes of section 263.11 of this article, includes sexual conduct by a
11 child less than sixteen years of age or, for purposes of section 263.10
12 of this article, includes sexual conduct by a child less than [seven-
13 teen] eighteen years of age, in any material which is obscene, as such
14 term is defined in section 235.00 of this chapter.
15 § 2. The penal law is amended by adding a new section 263.03 to read
16 as follows:
17 § 263.03 Use of a child in a sexual performance in the first degree.
18 A person is guilty of the use of a child in a sexual performance in
19 the first degree if knowing the character and content thereof he
20 employs, authorizes or induces a child less than twelve years of age to
21 engage in a sexual performance or being a parent, legal guardian or
22 custodian of such child, he consents to the participation by such child
23 in a sexual performance.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07235-01-1
S. 1904 2
1 Use of a child in a sexual performance in the first degree is a class
2 B felony.
3 § 3. Section 263.05 of the penal law, as amended by chapter 1 of the
4 laws of 2000, is amended to read as follows:
5 § 263.05 Use of a child in a sexual performance in the second degree.
6 A person is guilty of the use of a child in a sexual performance in
7 the second degree if knowing the character and content thereof he
8 employs, authorizes or induces a child less than [seventeen] eighteen
9 years of age to engage in a sexual performance or being a parent, legal
10 guardian or custodian of such child, he consents to the participation by
11 such child in a sexual performance.
12 Use of a child in a sexual performance in the second degree is a class
13 C felony.
14 § 4. The penal law is amended by adding a new section 263.08 to read
15 as follows:
16 § 263.08 Promoting an obscene sexual performance by a child in the first
17 degree.
18 A person is guilty of promoting an obscene sexual performance by a
19 child in the first degree when, knowing the character and content there-
20 of, he produces, directs or promotes any obscene performance which
21 includes sexual conduct by a child less than twelve years of age.
22 Promoting an obscene sexual performance by a child in the first degree
23 is a class C felony.
24 § 5. Section 263.10 of the penal law, as amended by chapter 1 of the
25 laws of 2000, is amended to read as follows:
26 § 263.10 Promoting an obscene sexual performance by a child in the
27 second degree.
28 A person is guilty of promoting an obscene sexual performance by a
29 child in the second degree when, knowing the character and content ther-
30 eof, he produces, directs or promotes any obscene performance which
31 includes sexual conduct by a child less than [seventeen] eighteen years
32 of age.
33 Promoting an obscene sexual performance by a child in the second
34 degree is a class D felony.
35 § 6. The penal law is amended by adding a new section 263.13 to read
36 as follows:
37 § 263.13 Promoting a sexual performance by a child in the first degree.
38 A person is guilty of promoting a sexual performance by a child in the
39 first degree when, knowing the character and content thereof, he produc-
40 es, directs or promotes any performance which includes sexual conduct by
41 a child less than twelve years of age.
42 Promoting a sexual performance by a child in the first degree is a
43 class C felony.
44 § 7. Section 263.15 of the penal law, as amended by chapter 1 of the
45 laws of 2000, is amended to read as follows:
46 § 263.15 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
49 produces, directs or promotes any performance which includes sexual
50 conduct by a child less than [seventeen] eighteen years of age.
51 Promoting a sexual performance by a child in the second degree is a
52 class D felony.
53 § 8. Subdivision 1 of section 263.20 of the penal law, as amended by
54 chapter 1 of the laws of 2000, is amended to read as follows:
55 1. Under this article, it shall be an affirmative defense that the
56 defendant in good faith reasonably believed the person appearing in the
S. 1904 3
1 performance was, for purposes of section 263.11 or 263.16 of this arti-
2 cle, sixteen years of age or over or, for purposes of section 263.05,
3 263.10 or 263.15 of this article, [seventeen] eighteen years of age or
4 over.
5 § 9. The opening paragraph of subdivision 1 and subdivision 2 of
6 section 70.25 of the penal law, the opening paragraph of subdivision 1
7 as amended by chapter 372 of the laws of 1981 and subdivision 2 as
8 amended by chapter 56 of the laws of 1984, are amended and a new subdi-
9 vision 6 is added to read as follows:
10 Except as provided in subdivisions two, two-a [and], five and six of
11 this section, when multiple sentences of imprisonment are imposed on a
12 person at the same time, or when a person who is subject to any undisc-
13 harged term of imprisonment imposed at a previous time by a court of
14 this state is sentenced to an additional term of imprisonment, the
15 sentence or sentences imposed by the court shall run either concurrently
16 or consecutively with respect to each other and the undischarged term or
17 terms in such manner as the court directs at the time of sentence. If
18 the court does not specify the manner in which a sentence imposed by it
19 is to run, the sentence shall run as follows:
20 2. When more than one sentence of imprisonment is imposed on a person
21 for two or more offenses committed through a single act or omission, or
22 through an act or omission which in itself constituted one of the
23 offenses and also was a material element of the other, the sentences,
24 except if one or more of such sentences is for a violation of section
25 263.03, 263.05, 263.08, 263.10, 263.13, 263.15, or 270.20 of this chap-
26 ter, must run concurrently.
27 6. When a person is convicted of use of a child in a sexual perform-
28 ance in the first degree as defined in section 263.03 of this chapter or
29 use of a child in a sexual performance in the second degree as defined
30 in section 263.05 of this chapter or promoting an obscene sexual
31 performance by a child in the first degree as defined in section 263.08
32 of this chapter or promoting an obscene sexual performance by a child in
33 the second degree as defined in section 263.10 of this chapter or
34 promoting a sexual performance by a child in the first degree as defined
35 in section 263.13 of this chapter or promoting a sexual performance by a
36 child in the second degree as defined in section 263.15 of this chapter,
37 and any other crime, the sentences for such crimes shall run consec-
38 utively.
39 § 10. This act shall take effect on the first of November next
40 succeeding the date on which it shall have become a law.
