Bill Text: NY A05477 | 2017-2018 | General Assembly | Introduced
Bill Title: Enacts the criminal street gang act; defines offenses; increases penalties; provides for gang prevention programs in schools; establishes the criminal street gang prevention fund; and develops a comprehensive approach to protecting public interests from gang related crime and violence.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2018-01-03 - referred to codes [A05477 Detail]
Download: New_York-2017-A05477-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5477 2017-2018 Regular Sessions IN ASSEMBLY February 9, 2017 ___________ Introduced by M. of A. LENTOL -- read once and referred to the Committee on Codes AN ACT to amend the civil practice law and rules, the penal law, the state finance law and the education law, in relation to defining offenses involving criminal street gangs, creating the criminal street gang prevention fund, and providing for gang prevention services in schools The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "New York 2 State criminal street gang act". 3 § 2. Legislative findings and purpose. The legislature hereby finds 4 that preservation of public order and improvement of individual safety 5 and security can be improved by a comprehensive, targeted, and systemic 6 enhancement of state laws applicable to criminal street gangs and their 7 activities in order to prevent the growth of such gangs, facilitate 8 prosecution and punishment of their members for unlawful acts, and 9 punish those who solicit others to participate in such gangs and in acts 10 of gang-related violence and unlawfulness or who provide support or 11 resources to those who commit or encourage the commission of such acts. 12 The legislature therefore declares it to be in every sense in the 13 public interest to establish the comprehensive approach to the 14 protection of public order and individual safety enacted by this act 15 that will enhance prosecution and punishment of the unlawful activities 16 of criminal street gangs, prevent their growth and ability to recruit 17 members, and expand effective anti-gang education and intervention 18 activities by the state and its localities. 19 § 3. Paragraph (g) of subdivision 2 of section 1349 of the civil prac- 20 tice law and rules, as amended by chapter 398 of the laws of 2004, is 21 amended to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03824-01-7A. 5477 2 1 (g) Forty percent of all moneys realized through forfeiture which are 2 remaining after distributions pursuant to paragraphs (a) through (f) of 3 this subdivision, to the chemical dependence service fund established 4 pursuant to section ninety-seven-w of the state finance law, except that 5 in the case of any such monies realized through forfeiture resulting 6 from convictions obtained under article four hundred ninety-five of the 7 penal law, such forty percent shall be paid into the criminal street 8 gang prevention fund established by section ninety-seven-pppp of the 9 state finance law; 10 § 4. The penal law is amended by adding a new title Y-1-A to read as 11 follows: 12 TITLE Y-1-A 13 OFFENSES INVOLVING CRIMINAL STREET GANGS 14 ARTICLE 495 15 CRIMINAL STREET GANGS ENFORCEMENT AND PREVENTION ACT 16 Section 495.05 Definitions. 17 495.10 Accepting the benefits or proceeds of criminal street 18 gang activity. 19 495.15 Participation in criminal street gang activity. 20 495.20 Solicitation for participation in a criminal street gang 21 in the third degree. 22 495.25 Solicitation for participation in a criminal street gang 23 in the second degree. 24 495.30 Solicitation of minors for participation in a criminal 25 street gang. 26 495.35 Solicitation of minors for participation in a criminal 27 street gang on school grounds. 28 495.40 Sentencing. 29 § 495.05 Definitions. As used in this article, the following terms shall 30 mean and include: 31 1. "Criminal street gang" means a street gang that engages in a 32 pattern of criminal street gang activity for its benefit or for the 33 benefit of one or more members. As used in this article, the term 34 "street gang" means and includes any formal or informal association in 35 fact of two or more individuals identified by a common name, sign, 36 dress, symbols, tattoos, or other mark or markings. 37 2. "Participation in a criminal street gang" means (a) the commission 38 of any act of criminal street gang activity by a person for the purpose 39 of obtaining, maintaining or increasing such person's position in a 40 criminal street gang, or (b) the commission of any act of criminal 41 street gang activity at the direction of or with the knowledge of two or 42 more members of a criminal street gang, or (c) knowingly using the 43 assets of a criminal street gang in the commission of any act of crimi- 44 nal street gang activity, or (d) the knowing receipt of any proceeds or 45 benefits, directly or indirectly, from the commission of any act of 46 criminal street gang activity, including the receipt of any substituted 47 asset obtained or converted from proceeds of such act. 48 3. "Pattern of criminal street gang activity" means the commission of 49 two or more discreet acts of criminal street gang activity, one of which 50 occurred after the effective date of this article and the last of which 51 occurred within three years (excluding any period of imprisonment) after 52 the commission of a prior act of criminal street gang activity. As used 53 in this article, "pattern of criminal street gang activity" also means 54 and includes the conspiracy to commit, solicit, attempt, aid and abet 55 the commission of any act of criminal street gang activity;A. 5477 3 1 4. "Criminal street gang activity" means any felony criminal offense 2 defined by any of the following provisions of this chapter: section 3 120.00 (assault in the third degree); section 120.05 (assault in the 4 second degree); section 120.06 (gang assault in the second degree); 5 section 120.07 (gang assault in the first degree); section 120.10 6 (assault in the first degree); section 120.12 (aggravated assault upon a 7 person less than eleven years old); section 120.13 (menacing in the 8 first degree); section 120.14 (menacing in the second degree); section 9 120.15 (menacing in the third degree); section 120.20 (reckless endan- 10 germent in the second degree); section 120.25 (reckless endangerment in 11 the first degree); section 121.12 (strangulation in the second degree); 12 section 121.13 (strangulation in the first degree); subdivision one of 13 section 125.15 (manslaughter in the second degree); subdivision one, two 14 or four of section 125.20 (manslaughter in the first degree); section 15 125.27 (murder in the first degree); section 125.25 (murder in the 16 second degree); section 120.45 (stalking in the fourth degree); section 17 120.50 (stalking in the third degree); section 120.55 (stalking in the 18 second degree); section 120.60 (stalking in the first degree); subdivi- 19 sion one of section 130.35 (rape in the first degree); subdivision one 20 of section 130.50 (criminal sexual act in the first degree); subdivision 21 one of section 130.65 (sexual abuse in the first degree); paragraph (a) 22 of subdivision one of section 130.67 (aggravated sexual abuse in the 23 second degree); paragraph (a) of subdivision one of section 130.70 24 (aggravated sexual abuse in the first degree); section 135.05 (unlawful 25 imprisonment in the second degree); section 135.10 (unlawful imprison- 26 ment in the first degree); section 135.20 (kidnapping in the second 27 degree); section 135.25 (kidnapping in the first degree); section 135.60 28 (coercion in the second degree); section 135.65 (coercion in the first 29 degree); section 140.10 (criminal trespass in the third degree); section 30 140.15 (criminal trespass in the second degree); section 140.17 (crimi- 31 nal trespass in the first degree); section 140.20 (burglary in the third 32 degree); section 140.25 (burglary in the second degree); section 140.30 33 (burglary in the first degree); section 145.00 (criminal mischief in the 34 fourth degree); section 145.05 (criminal mischief in the third degree); 35 section 145.10 (criminal mischief in the second degree); section 145.12 36 (criminal mischief in the first degree); section 150.05 (arson in the 37 fourth degree); section 150.10 (arson in the third degree); section 38 150.15 (arson in the second degree); section 150.20 (arson in the first 39 degree); section 155.25 (petit larceny); section 155.30 (grand larceny 40 in the fourth degree); section 155.35 (grand larceny in the third 41 degree); section 155.40 (grand larceny in the second degree); section 42 155.42 (grand larceny in the first degree); section 160.05 (robbery in 43 the third degree); section 160.10 (robbery in the second degree); 44 section 160.15 (robbery in the first degree); sections 210.10 and 210.15 45 (perjury); sections 215.00, 215.05, 215.11, 215.12, 215.13, 215.15, 46 215.16, 215.17, 215.19 (bribery, tampering with a juror); sections 47 220.06, 220.09, 220.16, 220.18, 220.21, 220.28, 220.31, 220.34, 220.39, 48 220.41, 220.43, 220.44 (controlled substance sale and possession); 49 sections 240.06, 240.15, 240.31, 240.32, 240.46, 240.55, 240.60, 240.61, 50 240.62, 240.63, 240.71, 240.72, 240.73, 240.75 (riot and offenses 51 against public order); section 240.25 (harassment in the first degree); 52 subdivision one, two, or four of section 240.30 (aggravated harassment 53 in the second degree); section 242.15 (harming a service animal in the 54 first degree); sections 250.05, 250.45, 250.50, 250.60 (wiretapping, 55 unlawful surveillance, and offenses against the right to privacy); 56 section 270.20 (unlawful wearing of a body vest); and sections 270.30A. 5477 4 1 and 270.35 (unlawful fleeing a police officer in a motor vehicle); drug 2 trafficking felony as defined in subdivision twenty-one of section 3 10.00; or any offense defined by any of the following provisions of this 4 chapter: section 120.03, 120.04, 120.04-a, 120.05, 120.08, 120.09, 5 120.10, 120.11, 120.13, 120.18, 120.55, 120.60, 125.12, 125.13, 125.14, 6 125.15, 125.20, 125.21, 125.22, 125.25, 125.26, 125.27, 135.65, 140.17, 7 140.20, 140.25, 140.30, 145.00, 145.05, 145.10, 145.12, 145.60, 145.65, 8 190.25, 190.26, 190.78, 190.79, 190.80, 190.80-a, 200.00, 200.03, 9 205.60, 205.65, 230.19, 230.20, 230.25, 230.32, 230.33, or 230.34; 10 265.11, 265.12, or 235.13, as such provisions were in effect prior to 11 the enactment of chapter one of the laws of two thousand thirteen; arti- 12 cle one hundred fifty-five, one hundred sixty, two hundred ten, four 13 hundred seventy, four hundred eighty-five or four hundred ninety; or any 14 felony offense defined in article one hundred thirty, one hundred thir- 15 ty-five, one hundred fifty, one hundred sixty-five, two hundred fifteen, 16 two hundred forty, two hundred fifty or two hundred sixty-three; or any 17 attempt or conspiracy to commit any of the foregoing offenses. 18 § 495.10 Accepting the benefits or proceeds of criminal street gang 19 activity. 20 A person is guilty of accepting the benefits or proceeds of criminal 21 street gang activity when such person knowingly accepts from a criminal 22 street gang the benefits or proceeds derived from the commission of 23 criminal street gang activity, or of any substituted asset obtained or 24 converted from proceeds or benefits derived from such act. 25 Accepting the benefits or proceeds of criminal street gang activity is 26 a class E felony. 27 § 495.15 Participation in criminal street gang activity. 28 A person is guilty of participation in criminal street gang activity 29 when, acting as a member of a criminal street gang, such person knowing- 30 ly promotes, furthers, assists in, conducts, facilitates, or partic- 31 ipates in the commission of criminal street gang activity, or knowingly 32 receives the benefits from criminal street gang activity, or uses or 33 invests the income, assets, proceeds, or substitute proceeds, from crim- 34 inal street gang activity for the benefit of the criminal street gang. 35 Participation in criminal street gang activity is a class E felony. 36 § 495.20 Solicitation for participation in a criminal street gang in the 37 third degree. 38 A person is guilty of solicitation for participation in a criminal 39 street gang in the third degree if such person solicits or recruits 40 another to participate in a criminal street gang, or threatens a person 41 with physical injury with the intent to coerce, induce, or solicit such 42 person or another to participate in a criminal street gang. 43 Solicitation for participation in a criminal street gang in the third 44 degree is a class E felony. 45 § 495.25 Solicitation for participation in a criminal street gang in the 46 second degree. 47 A person is guilty of solicitation for participation in a criminal 48 street gang in the second degree when, with intent to cause physical 49 injury to another person, such person causes physical injury to another 50 person in order to coerce, induce, or solicit such person to participate 51 in a criminal street gang. 52 Solicitation for participation in a criminal street gang in the second 53 degree is a class D felony. 54 § 495.30 Solicitation of minors for participation in a criminal street 55 gang.A. 5477 5 1 A person is guilty of solicitation of minors for participation in a 2 criminal street gang when he or she commits, facilitates, or conspires 3 to commit the crime of solicitation for participation in a criminal 4 street gang and the person solicited is less than eighteen years of age. 5 Solicitation of minors for participation in a criminal street gang is 6 a class D felony. 7 § 495.35 Solicitation of minors for participation in a criminal street 8 gang on school grounds. 9 A person is guilty of solicitation of minors for participation in a 10 criminal street gang on school grounds when he or she commits, facili- 11 tates, or conspires to commit the crime of solicitation of minors for 12 participation in a criminal street gang while on school grounds. For 13 purposes of this section, the term "school grounds" means "school 14 grounds" as defined in subdivision fourteen of section 220.00 of this 15 chapter. 16 Solicitation of minors for participation in a criminal street gang on 17 school grounds is a class C felony. 18 § 495.40 Sentencing. 19 1. When a person is convicted of the crime of participation in crimi- 20 nal street gang activity pursuant to this article, and one or more of 21 the criminal street gang activities constituting such participation is a 22 violent felony offense, as defined in section 70.02 of this chapter, the 23 crime of participation in criminal street gang activity shall be deemed 24 a violent felony offense. 25 2. When a person is convicted of the crime of participation in crimi- 26 nal street gang activity pursuant to this article and the criminal 27 street gang activity is a misdemeanor or a class C, D or E felony, the 28 crime of participation in criminal street gang activity shall be deemed 29 to be one category higher than the criminal street gang activity the 30 defendant committed, or one category higher than the offense level 31 applicable to the defendant's conviction for an attempt or conspiracy to 32 commit criminal street gang activity, whichever is applicable. 33 3. Notwithstanding any other provision of law, when a person is 34 convicted of the crime of participation in criminal street gang activity 35 pursuant to this article and the underlying criminal street gang activ- 36 ity or pattern of criminal street gang activity is a class B felony: 37 (a) the maximum term of the indeterminate sentence must be at least 38 six years of imprisonment if the defendant is sentenced pursuant to 39 section 70.00 of this chapter; 40 (b) the term of the determinate sentence must be at least eight years 41 of imprisonment if the defendant is sentenced pursuant to section 70.02 42 of this chapter; 43 (c) the term of the determinate sentence must be at least twelve years 44 of imprisonment if the defendant is sentenced pursuant to section 70.04 45 of this chapter; 46 (d) the maximum term of the indeterminate sentence must be at least 47 four years of imprisonment if the defendant is sentenced pursuant to 48 section 70.05 of this chapter; and 49 (e) the maximum term of the indeterminate sentence or the term of the 50 determinate sentence must be at least ten years of imprisonment if the 51 defendant is sentenced pursuant to section 70.06 of this chapter. 52 4. Any other provision of any other law to the contrary notwithstand- 53 ing, when a person is convicted of the crime of participation in crimi- 54 nal street gang activity pursuant to this article and the criminal 55 street gang activity is a class A-1 felony, the minimum period of theA. 5477 6 1 indeterminate sentence shall be not less than twenty years of imprison- 2 ment. 3 § 5. The state finance law is amended by adding a new section 97-pppp 4 to read as follows: 5 § 97-pppp. Criminal street gang prevention fund. 1. There is hereby 6 established in the joint custody of the state comptroller and the 7 commissioner of taxation and finance an account of the miscellaneous 8 special revenue fund to be known as the criminal street gang prevention 9 fund. 10 2. The criminal street gang prevention fund shall consist of moneys 11 appropriated thereto, funds transferred from any other fund or sources, 12 and moneys deposited therein pursuant to subdivision two of section 13 thirteen hundred forty-nine of the civil practice law and rules or any 14 other section of law. 15 3. Moneys of the fund, following appropriation by the legislature, may 16 be expended to support the criminal street gang and violence prevention 17 partnership program established pursuant to section twelve hundred thir- 18 teen of the education law. Moneys shall be paid out of the account on 19 the audit and warrant of the state comptroller on vouchers certified or 20 approved by the commissioner of the department of education, in collab- 21 oration with the division of criminal justice services. 22 § 6. The education law is amended by adding a new article 25 to read 23 as follows: 24 ARTICLE 25 25 GANG PREVENTION 26 Section 1210. Gang prevention. 27 1211. Model gang violence curriculum; prevention activities. 28 1212. Dress code concerning gang-related apparel. 29 1213. Criminal street gang and violence prevention partnership 30 program. 31 § 1210. Gang prevention. 1. The department, after consultation with 32 the division of criminal justice services regarding gang violence, 33 shall: 34 (a) prepare and distribute to schools guidelines for incorporating 35 in-service training in gang violence into staff development plans for 36 teachers, counselors, athletic directors, school board members, and 37 other educational personnel, and shall, upon request, assist any school 38 in developing comprehensive gang violence in-service training programs. 39 To the maximum extent possible such information and guidelines shall 40 encourage schools to avoid duplication of effort by sharing resources; 41 adapting or adopting model in-service training programs; developing 42 joint and collaborative programs; and coordinating efforts with existing 43 gang violence staff development programs, county and city law enforce- 44 ment agencies, and other public and private agencies providing gang 45 violence prevention, or other related services at the local level; and 46 (b) assist schools seeking to qualify for receipt of federal and state 47 funds to support gang violence and drug and alcohol abuse prevention 48 in-service training programs. 49 2. The term "gang violence and drug and alcohol abuse prevention 50 in-service training" as used in this section means the presentation of 51 programs, instruction, and curricula that will help educators develop 52 competencies in interacting in a positive manner with children and youth 53 and their parents to assist them in developing the positive values, 54 self-esteem, knowledge, and skills to lead productive, gang-free, and 55 drug-free lives, including the development of knowledge of the causes ofA. 5477 7 1 gang violence and substance abuse, and training regarding available 2 information and resources concerning gang violence. 3 § 1211. Model gang violence curriculum; prevention activities. 1. The 4 department, in collaboration with the division of criminal justice 5 services, shall develop a model gang violence prevention curriculum for 6 use in schools, and shall provide for an independent biennial evaluation 7 of the curriculum and of pupil outcomes. 8 2. In developing the curriculum, the department, in conjunction with 9 the division of criminal justice services, shall assess the current 10 status of school crime committed on school campuses and at school-relat- 11 ed functions, and identify appropriate strategies and programs that will 12 provide or maintain a high level of school safety and address the 13 school's procedures for complying with existing laws related to school 14 safety. 15 3. Upon request, the department shall assist school districts in 16 developing comprehensive gang violence and drug and alcohol abuse 17 prevention in-service training programs. Such guidelines shall to the 18 maximum extent possible encourage school districts to share resources, 19 develop joint and collaborative programs, and coordinate efforts with 20 other existing state and local programs. 21 § 1212. Dress code concerning gang-related apparel. Any other 22 provision of any other law to the contrary notwithstanding, following 23 procedures established pursuant to section twenty-eight hundred one of 24 this chapter, the board of education or the trustees, as defined in 25 section two of this chapter, of every school district within the state, 26 however created, and every board of cooperative educational services and 27 county vocational extension board may adopt or rescind a dress code 28 policy that requires pupils to wear a school-wide uniform or prohibits 29 pupils from wearing "gang-related apparel". 30 § 1213. Criminal street gang and violence prevention partnership 31 program. 1. The department, in collaboration with the division of crimi- 32 nal justice services, shall evaluate requests for funding for programs 33 from the criminal street gang prevention fund, established pursuant to 34 section ninety-seven-pppp of the state finance law. All such funds shall 35 be disbursed to non-profit agencies that comply with the program 36 requirements and who meet funding criteria. 37 2. Grants disbursed pursuant to this section may enhance but shall not 38 supplant local, state, or federal funds that would otherwise be avail- 39 able for the prevention or intervention of youth involvement in gangs, 40 crime, or violence. Grants shall be awarded pursuant to a request for 41 proposals that informs applicants of the purposes and availability of 42 funds to be awarded and solicits proposals to provide services consist- 43 ent with this article. Agencies receiving funds pursuant to this section 44 shall utilize the funds to provide services and activities designed to 45 prevent or deter at-risk youth from participating in gangs, criminal 46 activity, or violent behavior. Such funds may not be used for services 47 or activities related to suppression, law enforcement, incarceration, or 48 other purposes not related to the prevention and deterrence of gangs, 49 crime, and violence. Nothing in this subdivision shall prevent funds 50 from being used for violence prevention and gang crime deterrence 51 services provided by nonprofit agencies to youths incarcerated in juve- 52 nile detention facilities. Services and activities provided with funds 53 under this section shall be used for at-risk youth who are defined as 54 persons from age five to twenty years of age and who are current or 55 former gang members, or who have one or more family members living at 56 home who are current or former members of a gang.A. 5477 8 1 3. The department shall conduct an evaluation of the criminal street 2 gang and violence prevention partnership program after two years of 3 program operation and each year thereafter, to assess the effectiveness 4 and results of the program. The evaluation shall be conducted by staff 5 or an independent body that has experience in evaluating programs oper- 6 ated by community-based organizations or nonprofit agencies. After two 7 years of program operation, and each year thereafter, the department 8 shall prepare and submit an annual report to the legislature describing 9 in detail the operation of the program and the results obtained. 10 4. The commissioner shall additionally be empowered to develop and 11 implement an educational program, coordinated with the educational 12 program authorized pursuant to section fifteen-b of the correction law, 13 which shall be known as the department of corrections gang education and 14 prevention program, whereby inmates can receive instruction concerning 15 the impact of and risks associated with gang affiliation, and receive 16 support services in relation to the cessation of gang membership. The 17 commissioner shall be empowered to promulgate rules and regulations 18 necessary to effectuate this program. The program shall be funded from 19 the criminal street gang prevention fund or from any other appropri- 20 ations made or funds otherwise made available to such program. 21 § 7. Severability. If any clause, sentence, paragraph, section or part 22 of this act shall be adjudged by any court of competent jurisdiction to 23 be invalid, such judgment shall not affect, impair or invalidate the 24 remainder thereof, but shall be confined in its operation to the clause, 25 sentence, paragraph, section or part thereof directly involved in the 26 controversy in which such judgment shall have been rendered. 27 § 8. This act shall take effect on the first of January next succeed- 28 ing the date on which it shall have become a law.
