Bill Text: NY S01417 | 2011-2012 | General Assembly | Amended
Bill Title: Relates to offenses involving sexual performances by a child; increases penalties for offenses involving promoting and possessing the sexual performance of a child.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Engrossed - Dead) 2012-01-24 - referred to codes [S01417 Detail]
Download: New_York-2011-S01417-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 1417--B 2011-2012 Regular Sessions I N S E N A T E January 7, 2011 ___________ Introduced by Sens. SALAND, AVELLA, KENNEDY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- reported favorably from said committee, ordered to first report, amended on first report, ordered to a second report and ordered reprinted, retaining its place in the order of second report -- recom- mitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, the executive law and the vehicle and traffic law, in relation to offenses involving sexual performances by a child 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 section 263.09 to 2 read as follows: 3 S 263.09 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST 4 DEGREE. 5 A PERSON IS GUILTY OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A 6 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE- 7 OF, HE PRODUCES, DIRECTS OR PROMOTES TWENTY-FIVE OR MORE OBSCENE 8 PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN 9 YEARS OF AGE. 10 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE 11 IS A CLASS C FELONY. 12 S 2. Section 263.10 of the penal law, as amended by chapter 1 of the 13 laws of 2000, is amended to read as follows: 14 S 263.10 Promoting an obscene sexual performance by a child IN THE 15 SECOND DEGREE. 16 A person is guilty of promoting an obscene sexual performance by a 17 child IN THE SECOND DEGREE when, knowing the character and content ther- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05320-03-2 S. 1417--B 2 1 eof, he produces, directs or promotes any obscene performance which 2 includes sexual conduct by a child less than seventeen years of age. 3 Promoting an obscene sexual performance by a child IN THE SECOND 4 DEGREE is a class D felony. 5 S 3. Section 263.11 of the penal law, as added by chapter 11 of the 6 laws of 1996, is amended to read as follows: 7 S 263.11 Possessing an obscene sexual performance by a child IN THE 8 THIRD DEGREE. 9 A person is guilty of possessing an obscene sexual performance by a 10 child IN THE THIRD DEGREE when, knowing the character and content there- 11 of, he knowingly has in his possession or control any obscene perform- 12 ance which includes sexual conduct by a child less than sixteen years of 13 age. 14 Possessing an obscene sexual performance by a child IN THE THIRD 15 DEGREE is a class E felony. 16 S 4. The penal law is amended by adding three new sections 263.12, 17 263.13 and 263.14 to read as follows: 18 S 263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE 19 SECOND DEGREE. 20 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A 21 CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER- 22 EOF, HE KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWENTY-FIVE OR MORE 23 OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS THAN 24 SIXTEEN YEARS OF AGE. 25 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND 26 DEGREE IS A CLASS D FELONY. 27 S 263.13 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE 28 FIRST DEGREE. 29 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A 30 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE- 31 OF, HE KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWO HUNDRED FIFTY OR 32 MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS 33 THAN SIXTEEN YEARS OF AGE. 34 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST 35 DEGREE IS A CLASS C FELONY. 36 S 263.14 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE. 37 A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE 38 FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE PRODUC- 39 ES, DIRECTS OR PROMOTES TWENTY-FIVE OR MORE PERFORMANCES WHICH INCLUDES 40 SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE. 41 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A 42 CLASS C FELONY. 43 S 5. Section 263.15 of the penal law, as amended by chapter 1 of the 44 laws of 2000, is amended to read as follows: 45 S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE. 46 A person is guilty of promoting a sexual performance by a child IN THE 47 SECOND DEGREE when, knowing the character and content thereof, he 48 produces, directs or promotes any performance which includes sexual 49 conduct by a child less than seventeen years of age. 50 Promoting a sexual performance by a child IN THE SECOND DEGREE is a 51 class D felony. 52 S 6. Section 263.16 of the penal law, as added by chapter 11 of the 53 laws of 1996, is amended and two new sections 263.17 and 263.18 are 54 added to read as follows: 55 S 263.16 Possessing a sexual performance by a child IN THE THIRD DEGREE. S. 1417--B 3 1 A person is guilty of possessing a sexual performance by a child IN 2 THE THIRD DEGREE when, knowing the character and content thereof, he 3 knowingly has in his possession or control any performance which 4 includes sexual conduct by a child less than sixteen years of age. 5 Possessing a sexual performance by a child IN THE THIRD DEGREE is a 6 class E felony. 7 S 263.17 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND 8 DEGREE. 9 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN 10 THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE 11 KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWENTY-FIVE OR MORE PERFORM- 12 ANCES WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SIXTEEN YEARS 13 OF AGE. 14 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A 15 CLASS D FELONY. 16 S 263.18 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE. 17 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN 18 THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE 19 KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWO HUNDRED FIFTY OR MORE 20 PERFORMANCES WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SIXTEEN 21 YEARS OF AGE. 22 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A 23 CLASS C FELONY. 24 S 7. Subdivision 1 of section 263.20 of the penal law, as amended by 25 chapter 1 of the laws of 2000, is amended to read as follows: 26 1. Under this article, it shall be an affirmative defense that the 27 defendant in good faith reasonably believed the person appearing in the 28 performance was, for purposes of section 263.11 [or], 263.12, 263.13, 29 263.16, 263.17 OR 263.18 of this article, sixteen years of age or over 30 or, for purposes of section 263.05, 263.09, 263.10, 263.14 or 263.15 of 31 this article, seventeen years of age or over. 32 S 8. Paragraph (d) of subdivision 7 of section 995 of the executive 33 law, as amended by chapter 2 of the laws of 2006, is amended to read as 34 follows: 35 (d) any of the following felonies, or an attempt thereof where such 36 attempt is a felony offense: 37 aggravated assault upon a person less than eleven years old, as 38 defined in section 120.12 of the penal law; menacing in the first 39 degree, as defined in section 120.13 of the penal law; reckless endan- 40 germent in the first degree, as defined in section 120.25 of the penal 41 law; stalking in the second degree, as defined in section 120.55 of the 42 penal law; criminally negligent homicide, as defined in section 125.10 43 of the penal law; vehicular manslaughter in the second degree, as 44 defined in section 125.12 of the penal law; vehicular manslaughter in 45 the first degree, as defined in section 125.13 of the penal law; 46 persistent sexual abuse, as defined in section 130.53 of the penal law; 47 aggravated sexual abuse in the fourth degree, as defined in section 48 130.65-a of the penal law; female genital mutilation, as defined in 49 section 130.85 of the penal law; facilitating a sex offense with a 50 controlled substance, as defined in section 130.90 of the penal law; 51 unlawful imprisonment in the first degree, as defined in section 135.10 52 of the penal law; custodial interference in the first degree, as defined 53 in section 135.50 of the penal law; criminal trespass in the first 54 degree, as defined in section 140.17 of the penal law; criminal tamper- 55 ing in the first degree, as defined in section 145.20 of the penal law; 56 tampering with a consumer product in the first degree, as defined in S. 1417--B 4 1 section 145.45 of the penal law; robbery in the third degree as defined 2 in section 160.05 of the penal law; identity theft in the second degree, 3 as defined in section 190.79 of the penal law; identity theft in the 4 first degree, as defined in section 190.80 of the penal law; promoting 5 prison contraband in the first degree, as defined in section 205.25 of 6 the penal law; tampering with a witness in the third degree, as defined 7 in section 215.11 of the penal law; tampering with a witness in the 8 second degree, as defined in section 215.12 of the penal law; tampering 9 with a witness in the first degree, as defined in section 215.13 of the 10 penal law; criminal contempt in the first degree, as defined in subdivi- 11 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated 12 criminal contempt, as defined in section 215.52 of the penal law; bail 13 jumping in the second degree, as defined in section 215.56 of the penal 14 law; bail jumping in the first degree, as defined in section 215.57 of 15 the penal law; patronizing a prostitute in the second degree, as defined 16 in section 230.05 of the penal law; patronizing a prostitute in the 17 first degree, as defined in section 230.06 of the penal law; promoting 18 prostitution in the second degree, as defined in section 230.30 of the 19 penal law; promoting prostitution in the first degree, as defined in 20 section 230.32 of the penal law; compelling prostitution, as defined in 21 section 230.33 of the penal law; disseminating indecent materials to 22 minors in the second degree, as defined in section 235.21 of the penal 23 law; disseminating indecent materials to minors in the first degree, as 24 defined in section 235.22 of the penal law; riot in the first degree, as 25 defined in section 240.06 of the penal law; criminal anarchy, as defined 26 in section 240.15 of the penal law; aggravated harassment of an employee 27 by an inmate, as defined in section 240.32 of the penal law; unlawful 28 surveillance in the second degree, as defined in section 250.45 of the 29 penal law; unlawful surveillance in the first degree, as defined in 30 section 250.50 of the penal law; endangering the welfare of a vulnerable 31 elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the 32 second degree, as defined in section 260.32 of the penal law; endanger- 33 ing the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR 34 PHYSICALLY DISABLED PERSON in the first degree, as defined in section 35 260.34 of the penal law; use of a child in a sexual performance, as 36 defined in section 263.05 of the penal law; PROMOTING AN OBSCENE SEXUAL 37 PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.09 38 OF THE PENAL LAW; promoting an obscene sexual performance by a child IN 39 THE SECOND DEGREE, as defined in section 263.10 of the penal law; 40 possessing an obscene sexual performance by a child IN THE THIRD DEGREE, 41 as defined in section 263.11 of the penal law; POSSESSING AN OBSCENE 42 SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 43 263.12 OF THE PENAL LAW; POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A 44 CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.13 OF THE PENAL LAW; 45 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED 46 IN SECTION 263.14 OF THE PENAL LAW; promoting a sexual performance by a 47 child IN THE SECOND DEGREE, as defined in section 263.15 of the penal 48 law; possessing a sexual performance by a child IN THE THIRD DEGREE, as 49 defined in section 263.16 of the penal law; POSSESSING A SEXUAL PERFORM- 50 ANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.17 OF THE 51 PENAL LAW; POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST 52 DEGREE AS DEFINED IN SECTION 263.18 OF THE PENAL LAW; criminal 53 possession of a weapon in the third degree, as defined in section 265.02 54 of the penal law; criminal sale of a firearm in the third degree, as 55 defined in section 265.11 of the penal law; criminal sale of a firearm 56 to a minor, as defined in section 265.16 of the penal law; unlawful S. 1417--B 5 1 wearing of a body vest, as defined in section 270.20 of the penal law; 2 hate crimes as defined in section 485.05 of the penal law; and crime of 3 terrorism, as defined in section 490.25 of the penal law; or 4 S 9. Subdivisions 1 and 2 of section 263.00 of the penal law, as 5 amended by chapter 1 of the laws of 2000, are amended to read as 6 follows: 7 1. "Sexual performance" means any performance or part thereof which, 8 for purposes of [section] SECTIONS 263.16, 263.17 AND 263.18 of this 9 article, includes sexual conduct by a child less than sixteen years of 10 age or, for purposes of section 263.05, 263.14 or 263.15 of this arti- 11 cle, includes sexual conduct by a child less than seventeen years of 12 age. 13 2. "Obscene sexual performance" means any performance which, for 14 purposes of [section] SECTIONS 263.11, 263.12 AND 263.13 of this arti- 15 cle, includes sexual conduct by a child less than sixteen years of age 16 or, for purposes of [section] SECTIONS 263.09 AND 263.10 of this arti- 17 cle, includes sexual conduct by a child less than seventeen years of 18 age, in any material which is obscene, as such term is defined in 19 section 235.00 of this chapter. 20 S 10. Paragraph (a) of subdivision 1 of section 460.10 of the penal 21 law, as amended by chapter 405 of the laws of 2010, is amended to read 22 as follows: 23 (a) Any of the felonies set forth in this chapter: sections 120.05, 24 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat- 25 ing to strangulation; sections 125.10 to 125.27 relating to homicide; 26 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and 27 135.25 relating to kidnapping; section 135.35 relating to labor traf- 28 ficking; section 135.65 relating to coercion; sections 140.20, 140.25 29 and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12 30 relating to criminal mischief; article one hundred fifty relating to 31 arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand 32 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health 33 care fraud; article one hundred sixty relating to robbery; sections 34 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of 35 stolen property; sections 165.72 and 165.73 relating to trademark coun- 36 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and 37 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and 38 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and 39 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating 40 to criminal diversion of prescription medications and prescriptions; 41 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03, 42 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00, 43 215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20 44 and 187.25 relating to residential mortgage fraud, sections 190.40 and 45 190.42 relating to criminal usury; section 190.65 relating to schemes to 46 defraud; sections 205.60 and 205.65 relating to hindering prosecution; 47 sections 210.10, 210.15, and 215.51 relating to perjury and contempt; 48 section 215.40 relating to tampering with physical evidence; sections 49 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 50 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled 51 substances; sections 225.10 and 225.20 relating to gambling; sections 52 230.25, 230.30, and 230.32 relating to promoting prostitution; section 53 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and 54 235.22 relating to obscenity; sections 263.09, 263.10 and 263.15 relat- 55 ing to promoting a sexual performance by a child; sections 265.02, 56 265.03, 265.04, 265.11, 265.12, 265.13 and the provisions of section S. 1417--B 6 1 265.10 which constitute a felony relating to firearms and other danger- 2 ous weapons; and sections 265.14 and 265.16 relating to criminal sale of 3 a firearm; and section 275.10, 275.20, 275.30, or 275.40 relating to 4 unauthorized recordings; and sections 470.05, 470.10, 470.15 and 470.20 5 relating to money laundering; or 6 S 11. Paragraph (b) of subdivision 4 of section 509-cc of the vehicle 7 and traffic law, as amended by chapter 400 of the laws of 2011, is 8 amended to read as follows: 9 (b) The offenses referred to in subparagraph (ii) of paragraph (a) of 10 subdivision one and paragraph (b) of subdivision two of this section 11 that result in permanent disqualification shall include a conviction 12 under sections 100.13, 105.15, 105.17, 115.08, 120.12, 120.70, 125.10, 13 125.11, 130.40, 130.53, 130.60, 130.65-a, 135.20, 160.15, 220.18, 14 220.21, 220.39, 220.41, 220.43, 220.44, 230.25, 260.00, 263.09, 263.14, 15 265.04 of the penal law or an attempt to commit any of the aforesaid 16 offenses under section 110.00 of the penal law, or any offenses commit- 17 ted under a former section of the penal law which would constitute 18 violations of the aforesaid sections of the penal law, or any offenses 19 committed outside this state which would constitute violations of the 20 aforesaid sections of the penal law. 21 S 12. This act shall take effect on the first of November next 22 succeeding the date on which it shall have become a law; provided, 23 however, that the amendments to paragraph (b) of subdivision 4 of 24 section 509-cc of the vehicle and traffic law made by section eleven of 25 this act shall take effect on the same date and in the same manner as 26 section 1 of chapter 400 of the laws of 2011, takes effect.