S T A T E O F N E W Y O R K
________________________________________________________________________
6719
2013-2014 Regular Sessions
I N A S S E M B L Y
April 17, 2013
___________
Introduced by M. of A. CRESPO -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to computer sex crimes against children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The penal law is amended by adding a new title Y-2 to read
2 as follows:
3 TITLE Y-2
4 COMPUTER SEX CRIMES AGAINST CHILDREN
5 ARTICLE 495
6 COMPUTER SEX CRIMES AGAINST CHILDREN
7 SECTION 495.00 COMPUTER SEX CRIMES.
8 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
9 S 495.00 COMPUTER SEX CRIMES.
10 1. A PERSON COMMITS A COMPUTER SEX CRIME WHEN HE OR SHE COMMITS A SEX
11 CRIME AGAINST A CHILD AND FACILITATED THE COMMISSION OF SUCH OFFENSE BY
12 USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMUNI-
13 CATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
14 2. A "SEX CRIME AGAINST A CHILD" MEANS A FELONY OFFENSE (A) THE ESSEN-
15 TIAL ELEMENTS OF WHICH INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF
16 SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THIS
17 CHAPTER, OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL PERFORM-
18 ANCE, AS DEFINED IN SECTION 263.00 OF THIS CHAPTER, (B) COMMITTED OR
19 ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
20 S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
21 1. WHEN A PERSON IS CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
22 SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING CRIME AGAINST A CHILD
23 IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF THIS CHAP-
24 TER, THE COMPUTER SEX CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01038-02-3
A. 6719 2
1 2. WHEN A PERSON IS CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
2 SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING SEX CRIME AGAINST A
3 CHILD IS A CLASS C, D OR E FELONY, THE COMPUTER SEX CRIME SHALL BE
4 DEEMED TO BE ONE CATEGORY HIGHER THAN THE SEX CRIME AGAINST A CHILD THE
5 DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER THAN THE OFFENSE LEVEL
6 APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
7 COMMIT A SEX CRIME AGAINST A CHILD, WHICHEVER IS APPLICABLE.
8 3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
9 CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO SECTION 495.00 OF THIS
10 ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B FELO-
11 NY:
12 (A) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
13 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
14 (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
15 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
16 AND
17 (C) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
18 FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
19 THIS CHAPTER.
20 S 2. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
21 law, as amended by chapter 7 of the laws of 2007, are amended to read as
22 follows:
23 4. A statement in each count that the grand jury, or, where the accu-
24 satory instrument is a superior court information, the district attor-
25 ney, accuses the defendant or defendants of a designated offense,
26 provided that in any prosecution under article four hundred eighty-five
27 of the penal law, the designated offense shall be the specified offense,
28 as defined in subdivision three of section 485.05 of the penal law,
29 followed by the phrase "as a hate crime", and provided further that in
30 any prosecution under section 490.25 of the penal law, the designated
31 offense shall be the specified offense, as defined in subdivision three
32 of section 490.05 of the penal law, followed by the phrase "as a crime
33 of terrorism"; and provided further that in any prosecution under
34 section 130.91 of the penal law, the designated offense shall be the
35 specified offense, as defined in subdivision two of section 130.91 of
36 the penal law, followed by the phrase "as a sexually motivated felony",
37 AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 495.00 OF THE
38 PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE UNDERLYING SEX CRIME
39 AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF THE
40 PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and
41 7. A plain and concise factual statement in each count which, without
42 allegations of an evidentiary nature,
43 (a) asserts facts supporting every element of the offense charged and
44 the defendant's or defendants' commission thereof with sufficient preci-
45 sion to clearly apprise the defendant or defendants of the conduct which
46 is the subject of the accusation; and
47 (b) in the case of any armed felony, as defined in subdivision forty-
48 one of section 1.20, states that such offense is an armed felony and
49 specifies the particular implement the defendant or defendants
50 possessed, were armed with, used or displayed or, in the case of an
51 implement displayed, specifies what the implement appeared to be; and
52 (c) in the case of any hate crime, as defined in section 485.05 of the
53 penal law, specifies, as applicable, that the defendant or defendants
54 intentionally selected the person against whom the offense was committed
55 or intended to be committed; or intentionally committed the act or acts
56 constituting the offense, in whole or in substantial part because of a
A. 6719 3
1 belief or perception regarding the race, color, national origin, ances-
2 try, gender, religion, religious practice, age, disability or sexual
3 orientation of a person; and
4 (d) in the case of a crime of terrorism, as defined in section 490.25
5 of the penal law, specifies, as applicable, that the defendant or
6 defendants acted with intent to intimidate or coerce a civilian popu-
7 lation, influence the policy of a unit of government by intimidation or
8 coercion, or affect the conduct of a unit of government by murder,
9 assassination or kidnapping; and
10 (e) in the case of a sexually motivated felony, as defined in section
11 130.91 of the penal law, asserts facts supporting the allegation that
12 the offense was sexually motivated; and
13 (F) IN THE CASE OF A COMPUTER SEX CRIME, AS DEFINED IN SUBDIVISION ONE
14 OF SECTION 495.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
15 DEFENDANT OR DEFENDANTS FACILITATED THE COMMISSION OF A SEX CRIME
16 AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 495.00,
17 BY USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMU-
18 NICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
19 S 3. Subdivision 8 of section 700.05 of the criminal procedure law is
20 amended by adding two new paragraphs (u) and (v) to read as follows:
21 (U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
22 COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
23 ER TAMPERING IN THE THIRD DEGREE AS DEFINED IN SECTION 156.25 OF THE
24 PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
25 156.26 OF THE PENAL LAW, COMPUTER TAMPERING IN THE FIRST DEGREE AS
26 DEFINED IN SECTION 156.27 OF THE PENAL LAW, UNLAWFUL DUPLICATION OF
27 COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
28 CRIMINAL POSSESSION OF COMPUTER RELATED MATERIAL AS DEFINED IN SECTION
29 156.35 OF THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN
30 THE FIRST DEGREE AS DEFINED IN SECTION 235.22 OF THE PENAL LAW.
31 (V) USE OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION
32 263.05 OF THE PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
33 CHILD AS DEFINED IN SECTION 263.10 OF THE PENAL LAW, POSSESSING AN
34 OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.11 OF
35 THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN
36 SECTION 263.15 OF THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A
37 CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
38 S 4. Paragraph (a) of subdivision 1 of section 460.10 of the penal
39 law, as amended by chapter 405 of the laws of 2010, is amended to read
40 as follows:
41 (a) Any of the felonies set forth in this chapter: sections 120.05,
42 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
43 ing to strangulation; sections 125.10 to 125.27 relating to homicide;
44 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
45 135.25 relating to kidnapping; section 135.35 relating to labor traf-
46 ficking; section 135.65 relating to coercion; sections 140.20, 140.25
47 and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12
48 relating to criminal mischief; article one hundred fifty relating to
49 arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
50 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
51 care fraud; article one hundred sixty relating to robbery; sections
52 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
53 stolen property; sections 165.72 and 165.73 relating to trademark coun-
54 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
55 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
56 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
A. 6719 4
1 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
2 to criminal diversion of prescription medications and prescriptions;
3 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
4 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
5 215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20
6 and 187.25 relating to residential mortgage fraud[,]; sections 190.40
7 and 190.42 relating to criminal usury; section 190.65 relating to
8 schemes to defraud; sections 205.60 and 205.65 relating to hindering
9 prosecution; sections 210.10, 210.15, and 215.51 relating to perjury and
10 contempt; section 215.40 relating to tampering with physical evidence;
11 sections 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39,
12 220.41, 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
13 substances; sections 225.10 and 225.20 relating to gambling; sections
14 230.25, 230.30, and 230.32 relating to promoting prostitution; section
15 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and
16 235.22 relating to obscenity; sections 263.05, 263.10 [and], 263.11,
17 263.15 AND 263.16 relating to [promoting] a sexual performance by a
18 child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the
19 provisions of section 265.10 which constitute a felony relating to
20 firearms and other dangerous weapons; and sections 265.14 and 265.16
21 relating to criminal sale of a firearm; and section 275.10, 275.20,
22 275.30, or 275.40 relating to unauthorized recordings; [and] sections
23 470.05, 470.10, 470.15 and 470.20 relating to money laundering AND
24 SECTION 495.00 RELATING TO COMPUTER SEX CRIMES; or
25 S 5. This act shall take effect on the first of November next succeed-
26 ing the date on which it shall have become a law.