Bill Text: NY A08170 | 2011-2012 | General Assembly | Amended


Bill Title: Creates an educational reform program and a diversionary program for certain juveniles who are criminally charged with certain offenses involving the creation, exhibition or distribution of a photograph depicting nudity through the use of an electronic communication device, an interactive wireless communications device or a computer.

Spectrum: Partisan Bill (Democrat 15-0)

Status: (Passed) 2011-09-23 - approval memo.9 [A08170 Detail]

Download: New_York-2011-A08170-Amended.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        8170--B
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                     June 3, 2011
                                      ___________
       Introduced  by  M.  of  A.  PERRY,  P. RIVERA,  MAISEL, ROBERTS, JAFFEE,
         GIBSON, STEVENSON, MOYA -- Multi-Sponsored by  --  M.  of  A.  ARROYO,
         BOYLAND,  CRESPO,  McENENY,  SCARBOROUGH,  THIELE  --  read  once  and
         referred to the Committee on Social Services -- committee  discharged,
         bill  amended,  ordered  reprinted  as amended and recommitted to said
         committee -- reported and  referred  to  the  Committee  on  Codes  --
         committee  discharged,  bill amended, ordered reprinted as amended and
         recommitted to said committee
       AN ACT to amend the social services law, the family court  act  and  the
         penal  law,  in  relation  to creating an education reform program for
         certain  individuals  charged  with  certain  offenses  involving  the
         creation,  exhibition or distribution of a photograph depicting nudity
         through the use of an electronic communication device, an  interactive
         wireless communications device or a computer
         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  cyber-
    2  crime youth rescue act".
    3    S  2.  Article 6 of the social services law is amended by adding a new
    4  title 11 to read as follows:
    5                                   TITLE 11
    6                          EDUCATION REFORM PROGRAM
    7  SECTION 458-L. EDUCATION REFORM PROGRAM.
    8    S 458-L. EDUCATION REFORM PROGRAM. 1. AS USED IN THIS SECTION:
    9    (A) "ELIGIBLE PERSON" MEANS AN INDIVIDUAL WHO  IS  THE  SUBJECT  OF  A
   10  PENDING  PETITION  IN  FAMILY  COURT ALLEGING HE OR SHE HAS COMMITTED AN
   11  ELIGIBLE OFFENSE OR A PERSON WHO HAS BEEN CHARGED,  IN  CRIMINAL  COURT,
   12  WITH  AN  ELIGIBLE  OFFENSE  AS THAT TERM IS DEFINED IN PARAGRAPH (B) OF
   13  THIS SUBDIVISION.
   14    (B) "ELIGIBLE OFFENSE" MEANS A CRIME OR OFFENSE COMMITTED BY AN ELIGI-
   15  BLE PERSON THAT INVOLVED CYBERBULLYING OR  THE  SENDING  OR  RECEIPT  OF
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11494-07-1
       A. 8170--B                          2
    1  OBSCENITY,  AS DEFINED IN SUBDIVISION ONE OF SECTION 235.00 OF THE PENAL
    2  LAW, OR NUDITY, AS DEFINED IN SUBDIVISION TWO OF SECTION 235.20  OF  THE
    3  PENAL  LAW, WHEN THE SENDER AND THE RECEIVER THEREOF WERE BOTH UNDER THE
    4  AGE  OF TWENTY AT THE TIME OF SUCH COMMUNICATION, BUT NOT MORE THAN FIVE
    5  YEARS APART IN AGE.
    6    (C) "PROGRAM" MEANS THE EDUCATION REFORM PROGRAM DEVELOPED PURSUANT TO
    7  SUBDIVISION TWO OF THIS SECTION.
    8    2. THE  OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES,  HEREINAFTER  THE
    9  "OFFICE," SHALL DEVELOP AND IMPLEMENT, IN CONSULTATION WITH THE DIVISION
   10  OF  CRIMINAL  JUSTICE  SERVICES  AND  THE STATE EDUCATION DEPARTMENT, AN
   11  EDUCATION REFORM PROGRAM FOR ELIGIBLE PERSONS WHO HAVE BEEN REQUIRED  TO
   12  COMPLETE  SUCH  PROGRAM PURSUANT TO ARTICLE THREE OR SEVEN OF THE FAMILY
   13  COURT ACT OR SECTION 60.37 OF THE PENAL LAW.
   14    3. THE PROGRAM SHALL BE AVAILABLE IN EVERY JUDICIAL  DISTRICT  IN  THE
   15  STATE; PROVIDED THAT IF THE OFFICE DETERMINES THAT THERE IS NOT A SUFFI-
   16  CIENT  NUMBER OF ELIGIBLE OFFENSES IN A JUDICIAL DISTRICT TO MANDATE THE
   17  IMPLEMENTATION OF A PROGRAM, PROVISIONS SHALL BE MADE FOR THE  RESIDENTS
   18  OF  SUCH  JUDICIAL DISTRICT TO PARTICIPATE IN A PROGRAM IN ANOTHER JUDI-
   19  CIAL DISTRICT WHERE A PROGRAM EXISTS IF PRACTICABLE WITH REGARD TO TRAV-
   20  EL AND COST, OR TO COMPLETE THE EDUCATION COURSE ONLINE.
   21    4. THE PROGRAM SHALL INVOLVE UP TO  EIGHT  HOURS  OF  INSTRUCTION  AND
   22  SHALL PROVIDE, AT A MINIMUM, INFORMATION CONCERNING:
   23    (A)  THE  LEGAL  CONSEQUENCES  OF  AND POTENTIAL PENALTIES FOR SHARING
   24  SEXUALLY SUGGESTIVE MATERIALS, EXPLICIT MATERIALS OR ABUSIVE  MATERIALS,
   25  INCLUDING SANCTIONS IMPOSED UNDER APPLICABLE FEDERAL AND STATE STATUTES;
   26    (B)  THE NON-LEGAL CONSEQUENCES OF SHARING SEXUALLY SUGGESTIVE MATERI-
   27  ALS, EXPLICIT MATERIALS OR ABUSIVE MATERIALS, INCLUDING, BUT NOT LIMITED
   28  TO, THE POSSIBLE  EFFECT  ON  RELATIONSHIPS,  LOSS  OF  EDUCATIONAL  AND
   29  EMPLOYMENT  OPPORTUNITIES, AND THE POTENTIAL FOR BEING BARRED OR REMOVED
   30  FROM SCHOOL PROGRAMS AND EXTRACURRICULAR ACTIVITIES;
   31    (C) HOW THE UNIQUE CHARACTERISTICS OF  CYBERSPACE  AND  THE  INTERNET,
   32  INCLUDING  THE  POTENTIAL ABILITY OF AN INFINITE AUDIENCE TO UTILIZE THE
   33  INTERNET TO SEARCH FOR AND REPLICATE MATERIALS,  CAN  PRODUCE  LONG-TERM
   34  AND  UNFORESEEN  CONSEQUENCES FOR SHARING SEXUALLY SUGGESTIVE MATERIALS,
   35  EXPLICIT MATERIALS OR ABUSIVE MATERIALS; AND
   36    (D) THE POTENTIAL CONNECTION BETWEEN BULLYING AND  CYBER-BULLYING  AND
   37  JUVENILES  SHARING  SEXUALLY SUGGESTIVE MATERIALS, EXPLICIT MATERIALS OR
   38  ABUSIVE MATERIALS.
   39    5. UPON RECEIPT OF THE COURT ORDER, PURSUANT TO THE FAMILY  COURT  ACT
   40  OR  SECTION  60.37  OF  THE  PENAL  LAW, DIRECTING AN ELIGIBLE PERSON TO
   41  ATTEND THE PROGRAM, THE OFFICE, AFTER  CONSULTATION  WITH  THE  ELIGIBLE
   42  PERSON  AND  THE  ATTORNEY  FOR SUCH PERSON, SHALL SCHEDULE THE ELIGIBLE
   43  PERSON TO ATTEND THE NEXT AVAILABLE SESSION OF  THE  PROGRAM  AND  SHALL
   44  SEND  WRITTEN  NOTICE  OF  THE SCHEDULING, ALONG WITH THE DATE, TIME AND
   45  LOCATION OF THE SESSION OR SESSIONS, TO THE ELIGIBLE PERSON, THE  ATTOR-
   46  NEY FOR SUCH PERSON AND THE CLERK OF THE REFERRING COURT.
   47    6.  WITHIN  TWENTY  DAYS  OF  THE  DATE UPON WHICH THE ELIGIBLE PERSON
   48  COMPLETES THE PROGRAM, THE OFFICE  SHALL  PROVIDE  SUCH  PERSON  WITH  A
   49  CERTIFICATION THAT HE OR SHE HAS SUCCESSFULLY COMPLETED THE PROGRAM.
   50    S  3.  Subdivision  1  of  section  315.3  of the family court act, as
   51  amended by chapter 237 of the laws  of  1991,  is  amended  to  read  as
   52  follows:
   53    1. Except where the petition alleges that the respondent has committed
   54  a designated felony act, the court may at any time prior to the entering
   55  of  a finding under section 352.1 and with the consent of the respondent
   56  order that the proceeding be "adjourned in contemplation of  dismissal".
       A. 8170--B                          3
    1  An  adjournment  in  contemplation of dismissal is an adjournment of the
    2  proceeding, for a period not to exceed six months, with a view to  ulti-
    3  mate  dismissal  of the petition in furtherance of justice. Upon issuing
    4  such  an  order,  providing such terms and conditions as the court deems
    5  appropriate, the court must release the respondent. The court may, as  a
    6  condition  of  an  adjournment  in  contemplation of dismissal order, in
    7  cases where the record indicates that the  consumption  of  alcohol  may
    8  have  been  a  contributing factor, require the respondent to attend and
    9  complete an alcohol awareness program established pursuant to [paragraph
   10  six-a] of subdivision (a) of section 19.07 of the  mental  hygiene  law.
   11  THE  COURT  MAY,  AS  A  CONDITION OF AN ADJOURNMENT IN CONTEMPLATION OF
   12  DISMISSAL ORDER, IN CASES WHERE THE RECORD INDICATES THAT THE RESPONDENT
   13  IS AN ELIGIBLE PERSON AS DEFINED IN SECTION FOUR  HUNDRED  FIFTY-EIGHT-L
   14  OF  THE  SOCIAL  SERVICES  LAW  AND  HAS ALLEGEDLY COMMITTED AN ELIGIBLE
   15  OFFENSE AS DEFINED IN SUCH SECTION, DIRECT THE RESPONDENT TO ATTEND  AND
   16  COMPLETE  AN  EDUCATION  REFORM  PROGRAM ESTABLISHED PURSUANT TO SECTION
   17  FOUR HUNDRED FIFTY-EIGHT-L OF THE SOCIAL SERVICES  LAW.  Upon  ex  parte
   18  motion  by  the presentment agency, or upon the court's own motion, made
   19  at the time the order is issued or at any time during its duration,  the
   20  court  may  restore the matter to the calendar. If the proceeding is not
   21  restored, the petition is, at the expiration of  the  order,  deemed  to
   22  have been dismissed by the court in furtherance of justice.
   23    S  4. Subdivision 1 of section 353.1 of the family court act, as added
   24  by chapter 920 of the laws of 1982, is amended to read as follows:
   25    1. The court may conditionally discharge the respondent if the  court,
   26  having  regard for the nature and circumstances of the crime and for the
   27  history, character and condition of the respondent, is  of  the  opinion
   28  that  consistent  with  subdivision  two  of  section 352.2, neither the
   29  public interest nor the ends of justice would be served by  a  placement
   30  and  that  probation supervision is not appropriate. THE COURT MAY, AS A
   31  CONDITION OF A CONDITIONAL DISCHARGE, IN CASES WHERE  THE  RECORD  INDI-
   32  CATES  THE RESPONDENT QUALIFIES AS AN ELIGIBLE PERSON AND HAS BEEN ADJU-
   33  DICATED FOR AN ELIGIBLE OFFENSE  AS  DEFINED  IN  SECTION  FOUR  HUNDRED
   34  FIFTY-EIGHT-L  OF  THE  SOCIAL  SERVICES  LAW, REQUIRE THE RESPONDENT TO
   35  ATTEND AND COMPLETE AN EDUCATION REFORM PROGRAM ESTABLISHED PURSUANT  TO
   36  SECTION FOUR HUNDRED FIFTY-EIGHT-L OF THE SOCIAL SERVICES LAW.
   37    S  5.  Paragraph  (i)  of subdivision (d) of section 735 of the family
   38  court act, as added by section 7 of part E of chapter 57 of the laws  of
   39  2005, is amended to read as follows:
   40    (i)  providing,  at the first contact, information on the availability
   41  of or a referral to services in the geographic area where the youth  and
   42  his  or  her  family  are located that may be of benefit in avoiding the
   43  need to file a petition under this article; including the  availability,
   44  for  up  to  twenty-one  days,  of a residential respite program, if the
   45  youth and his or her parent or other person legally responsible for  his
   46  or  her care agree, and the availability of other non-residential crisis
   47  intervention programs such as family crisis  counseling  or  alternative
   48  dispute  resolution  programs  OR  AN  EDUCATIONAL PROGRAM AS DEFINED IN
   49  SECTION FOUR HUNDRED FIFTY-EIGHT-L OF THE SOCIAL SERVICES LAW.
   50    S 6. The penal law is amended by adding a new section 60.37 to read as
   51  follows:
   52  S 60.37 AUTHORIZED DISPOSITION; CERTAIN OFFENSES.
   53    WHEN A PERSON HAS BEEN CHARGED WITH AN OFFENSE  AND  THE  ELEMENTS  OF
   54  SUCH  OFFENSE MEET THE CRITERIA OF AN "ELIGIBLE OFFENSE" AND SUCH PERSON
   55  QUALIFIES AS AN "ELIGIBLE PERSON" AS SUCH TERMS ARE DEFINED  IN  SECTION
   56  FOUR HUNDRED FIFTY-EIGHT-L OF THE SOCIAL SERVICES LAW, THE COURT MAY, AS
       A. 8170--B                          4
    1  A  CONDITION  OF  PROBATION  OR A CONDITIONAL DISCHARGE, DIRECT THAT THE
    2  DEFENDANT PARTICIPATE IN AN EDUCATION REFORM PROGRAM PURSUANT TO  SUBDI-
    3  VISION  TWO OF SECTION FOUR HUNDRED FIFTY-EIGHT-L OF THE SOCIAL SERVICES
    4  LAW.
    5    S 7. This act shall take effect on the one hundred eightieth day after
    6  it  shall  have  become a law; provided that, effective immediately, the
    7  commissioner of the office of children and family services shall promul-
    8  gate any rules and regulations and take all other actions  necessary  to
    9  implement the provisions of this act on or before such effective date.
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