STATE OF NEW YORK
________________________________________________________________________
2253
2019-2020 Regular Sessions
IN SENATE
January 23, 2019
___________
Introduced by Sens. HOYLMAN, SALAZAR -- read twice and ordered printed,
and when printed to be committed 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 Section 240.37 of the penal law is REPEALED.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).
19 § 4. Section 60.47 of the criminal procedure law, as added by section
20 2 of part I of chapter 57 of the laws of 2015, is amended to read as
21 follows:
22 § 60.47 Possession of condoms; receipt into evidence.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01944-01-9
S. 2253 2
1 Evidence that a person was in possession of one or more condoms may
2 not be admitted at any trial, hearing, or other proceeding in a prose-
3 cution for section 230.00 [or section 240.37] of the penal law for the
4 purpose of establishing probable cause for an arrest or proving any
5 person's commission or attempted commission of such offense.
6 § 5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the
7 criminal procedure law, paragraph (c) as amended by chapter 762 of the
8 laws of 1971 and paragraph (d) as amended by chapter 232 of the laws of
9 2010, are amended to read as follows:
10 (c) A misdemeanor defined outside the penal law which would constitute
11 a felony if such person had a previous judgment of conviction for a
12 crime[; or
13 (d) Loitering for the purpose of engaging in a prostitution offense as
14 defined in subdivision two of section 240.37 of the penal law].
15 § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as
16 added by chapter 402 of the laws of 2014, is amended to read as follows:
17 4. After arraignment upon an information, a simplified information, a
18 prosecutor's information or misdemeanor complaint on a charge of prosti-
19 tution pursuant to section 230.00 of the penal law [or loitering for the
20 purposes of prostitution pursuant to subdivision two of section 240.37
21 of the penal law, provided that the person does not stand charged with
22 loitering for the purpose of patronizing a prostitute, where such
23 offense allegedly occurred when the person was sixteen or seventeen
24 years of age,] the local criminal court may dismiss such charge in its
25 discretion in the interest of justice on the ground that a defendant
26 participated in services provided to him or her.
27 § 7. The opening paragraph of subdivision 1 of section 170.80 of the
28 criminal procedure law, as amended by chapter 402 of the laws of 2014,
29 is amended to read as follows:
30 Notwithstanding any other provision of law, at any time at or after
31 arraignment on a charge of prostitution pursuant to section 230.00 of
32 the penal law [or loitering for the purposes of prostitution pursuant to
33 subdivision two of section 240.37 of the penal law, provided that the
34 person does not stand charged with loitering for the purpose of patron-
35 izing a prostitute, where such offense allegedly occurred when the
36 person was sixteen or seventeen years of age except where], after
37 consultation with counsel, a knowing and voluntary plea of guilty has
38 been entered to such charge, any judge or justice hearing any stage of
39 such case may, upon consent of the defendant after consultation with
40 counsel:
41 § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as
42 amended by chapter 189 of the laws of 2018, is amended to read as
43 follows:
44 2. Under no circumstances shall the mandatory surcharge, sex offender
45 registration fee, DNA databank fee or the crime victim assistance fee be
46 waived provided, however, that a court may waive the crime victim
47 assistance fee if such defendant is an eligible youth as defined in
48 subdivision two of section 720.10 of this chapter, and the imposition of
49 such fee would work an unreasonable hardship on the defendant, his or
50 her immediate family, or any other person who is dependent on such
51 defendant for financial support. A court shall waive any mandatory
52 surcharge, DNA databank fee and crime victim assistance fee when: (i)
53 [the defendant is convicted of loitering for the purpose of engaging in
54 prostitution under section 240.37 of the penal law (provided that the
55 defendant was not convicted of loitering for the purpose of patronizing
56 a person for prostitution); (ii)] the defendant is convicted of prosti-
S. 2253 3
1 tution under section 230.00 of the penal law; [(iii)] (ii) the defendant
2 is convicted of a violation in the event such conviction is in lieu of a
3 plea to or conviction for [loitering for the purpose of engaging in
4 prostitution under section 240.37 of the penal law (provided that the
5 defendant was not alleged to be loitering for the purpose of patronizing
6 a person for prostitution) or] prostitution under section 230.00 of the
7 penal law; [or (iv)] (iii) the court finds that a defendant is a victim
8 of sex trafficking under section 230.34 of the penal law or a victim of
9 trafficking in persons under the trafficking victims protection act
10 (United States Code, Title 22, Chapter 78); or [(v)] (iv) the court
11 finds that the defendant is a victim of sex trafficking of a child under
12 section 230.34-a of the penal law.
13 § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
14 added by chapter 402 of the laws of 2014, is amended to read as follows:
15 4. Notwithstanding any provision in this article, a person charged
16 with prostitution as defined in section 230.00 of the penal law [or
17 loitering for the purposes of prostitution as defined in subdivision two
18 of section 240.37 of the penal law, provided that the person does not
19 stand charged with loitering for the purpose of patronizing a prosti-
20 tute, and such person is aged sixteen or seventeen when such offense
21 occurred,] regardless of whether such person (i) had prior to commence-
22 ment of trial or entry of a plea of guilty been convicted of a crime or
23 found a youthful offender, or (ii) subsequent to such conviction for
24 prostitution [or loitering for prostitution] is convicted of a crime or
25 found a youthful offender, the provisions of subdivisions one and two of
26 this section requiring or authorizing the accusatory instrument filed
27 against a youth to be sealed, and the arraignment and all proceedings in
28 the action to be conducted in private shall apply.
29 § 10. Subdivision 1 of section 720.35 of the criminal procedure law,
30 as amended by chapter 402 of the laws of 2014, is amended to read as
31 follows:
32 1. A youthful offender adjudication is not a judgment of conviction
33 for a crime or any other offense, and does not operate as a disquali-
34 fication of any person so adjudged to hold public office or public
35 employment or to receive any license granted by public authority but
36 shall be deemed a conviction only for the purposes of transfer of super-
37 vision and custody pursuant to section two hundred fifty-nine-m of the
38 executive law. A defendant for whom a youthful offender adjudication was
39 substituted, who was originally charged with prostitution as defined in
40 section 230.00 of the penal law [or loitering for the purposes of pros-
41 titution as defined in subdivision two of section 240.37 of the penal
42 law provided that the person does not stand charged with loitering for
43 the purpose of patronizing a prostitute, for an offense allegedly
44 committed when he or she was sixteen or seventeen years of age], shall
45 be deemed a "sexually exploited child" as defined in subdivision one of
46 section four hundred forty-seven-a of the social services law and there-
47 fore shall not be considered an adult for purposes related to the charg-
48 es in the youthful offender proceeding or a proceeding under section
49 170.80 of this chapter.
50 § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of the
51 social services law, as amended by chapter 189 of the laws of 2018, are
52 amended to read as follows:
53 (c) is a victim of the crime of compelling prostitution as defined in
54 section 230.33 of the penal law;
55 (d) engages in acts or conduct described in article two hundred
56 sixty-three [or section 240.37] of the penal law.
S. 2253 4
1 § 12. The third undesignated paragraph of subdivision a of section
2 3-118 of the administrative code of the city of New York, as amended by
3 chapter 189 of the laws of 2018, is amended to read as follows:
4 Sexually exploited youth. The term "sexually exploited youth" means
5 persons under the age of 18 who have been subject to sexual exploitation
6 because they (a) are the victim of the crime of sex trafficking as
7 defined in section 230.34 of the penal law; (b) engage in any act as
8 defined in section 230.00 of the penal law; (c) are a victim of the
9 crime of compelling prostitution as defined in section 230.33 of the
10 penal law; (d) are a victim of the crime of sex trafficking of a child
11 as defined in section 230.34-a of the penal law; or (e) engage in acts
12 or conduct described in article [263 or section 240.37] two hundred
13 sixty-three of the penal law. The term shall also mean persons under
14 the age of 18 who have been subject to incest in the third degree,
15 second degree or first degree, as defined in sections 255.25, 255.26,
16 and 255.27 of the penal law, respectively, or any of the sex offenses
17 enumerated in article [130] one hundred thirty of the penal law.
18 § 13. This act shall take effect immediately.
