Bill Text: NY S05062 | 2017-2018 | General Assembly | Amended

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Bill Title: Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO JUDICIARY [S05062 Detail]

Download: New_York-2017-S05062-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                         5062--A
                               2017-2018 Regular Sessions
                    IN SENATE
                                      March 6, 2017
                                       ___________
        Introduced   by  Sens.  MONTGOMERY,  BAILEY,  COMRIE,  HOYLMAN,  PARKER,
          PERSAUD, RIVERA, SAVINO, SERRANO, SQUADRON -- read twice  and  ordered
          printed,  and when printed to be committed to the Committee on Judici-
          ary --  committee  discharged,  bill  amended,  ordered  reprinted  as
          amended and recommitted to said committee
        AN ACT to amend the civil practice law and rules, the criminal procedure
          law, the executive law, and the legislative law in relation to the use
          in  evidence  of the fact of possession or presence on the premises of
          condoms and other sexual  and  reproductive  health  devices;  and  to
          repeal  paragraph (d) of subdivision 1 of section 160.10 of the crimi-
          nal procedure law relating thereto
          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 "End crimi-
     2  nalization of condoms act".
     3    § 2. Legislative findings. The legislature hereby finds that promoting
     4  and  protecting  health  and  respecting and fulfilling human rights are
     5  necessarily  linked,  and  that  health-oriented  and  rights-based  law
     6  enforcement efforts are central to the effective provision of government
     7  services for the benefit of the people of the State. Article 17, section
     8  3 of the New York constitution requires that the legislature protect and
     9  promote  the  health  of  the  inhabitants  of this state as a matter of
    10  public concern. Despite these provisions, for  purposes  of  prosecuting
    11  certain  criminal,  civil  and administrative offenses, reproductive and
    12  sexual health tools, including condoms, are currently  being  destroyed,
    13  confiscated,  or  used  as  evidence  by  law enforcement officers. This
    14  legislation is intended to strengthen the public health of all New York-
    15  ers, including the most vulnerable, while preserving the ability of  law
    16  enforcement  to  prosecute  other crimes such as felony sexual offenses.
    17  The purpose of this bill is to avoid the disparate impact of  the  prac-
    18  tice of citing condoms and other reproductive and sexual health tools as
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06195-03-7
        S. 5062--A                          2
     1  evidence  upon  survivors  of  trafficking  and  people  who  are or are
     2  profiled as being engaged in the sex trades.
     3    §  3.  The  civil  practice  law  and rules is amended by adding a new
     4  section 4519-a to read as follows:
     5    § 4519-a. Possession of reproductive or sexual health devices; receipt
     6  into evidence.  1. The fact of possession of a condom or other reproduc-
     7  tive or sexual health device may not be  received  in  evidence  in  any
     8  trial,  hearing  or  proceeding  pursuant  to subdivision one of section
     9  twelve and article ten of the multiple dwelling law,  sections  twelve-a
    10  and  twenty-three  hundred  twenty of the public health law, section two
    11  hundred thirty-one of the real  property  law  or  subdivision  five  of
    12  section  seven  hundred  eleven and section seven hundred fifteen of the
    13  real property actions and proceedings law, or by any law, local  law  or
    14  ordinance of a political subdivision of this state, or by any word, rule
    15  or  regulation  of any governmental instrumentality authorized by law to
    16  adopt the same as evidence of prostitution,  patronizing  a  prostitute,
    17  promoting  prostitution, permitting prostitution, maintaining a premises
    18  for prostitution, lewdness or assignation, maintaining  a  bawdy  house,
    19  compelling prostitution, or sex trafficking.
    20    2. "Reproductive or sexual health device" shall include any contracep-
    21  tive  or  other  tool  used  to prevent unwanted pregnancy or the trans-
    22  mission of HIV or other sexually transmitted diseases, including but not
    23  limited  to  male  condoms,  female  condoms,  lubricants,  pre-exposure
    24  prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retro-
    25  viral medication, spermicide, hormonal methods, emergency contraception,
    26  diaphragm, cervical cap, or sponge.
    27    §  4. Section 60.47 of the criminal procedure law, as added by section
    28  2 of part I of chapter 57 of the laws of 2015, is  amended  to  read  as
    29  follows:
    30  § 60.47 Possession  of  condoms  or  other reproductive or sexual health
    31            device; receipt into evidence.
    32    1. Evidence that a person was in possession of one or more condoms  or
    33  other  reproductive  or  sexual health device may not be admitted at any
    34  trial, hearing, or  other  proceeding  in  a  prosecution  for  [section
    35  230.00]  any  offense,  or  an attempt to commit any offense, defined in
    36  article two hundred thirty or  section  240.37  of  the  penal  law,  or
    37  section  sixty-five  hundred  twelve  of  the education law, or any law,
    38  local law or ordinance of a political subdivision of this state, or  any
    39  word,  rule or regulation of any governmental instrumentality authorized
    40  by law to adopt the same, for the purpose of establishing probable cause
    41  for an arrest or proving any person's commission or attempted commission
    42  of such offense, as  evidence  of  prostitution  or  trafficking-related
    43  activity.
    44    2. "Reproductive or sexual health device" shall include any contracep-
    45  tive  or  other  tool  used  to prevent unwanted pregnancy or the trans-
    46  mission of HIV or other sexually transmitted diseases, including but not
    47  limited to male condoms, female condoms, lubricant, pre-exposure prophy-
    48  laxis ("PrEP"), post-exposure prophylaxis ("PEP"),  HIV  anti-retroviral
    49  medication,   spermicide,  hormonal  methods,  emergency  contraception,
    50  diaphragm, cervical cap, or sponge.
    51    § 5. Paragraph (d) of subdivision 1 of section 160.10 of the  criminal
    52  procedure law is REPEALED.
    53    §  5-a. Paragraph (c) of subdivision 1 of section 160.10 of the crimi-
    54  nal procedure law, as amended by chapter 762 of the  laws  of  1971,  is
    55  amended to read as follows:
        S. 5062--A                          3
     1    (c) A misdemeanor defined outside the penal law which would constitute
     2  a  felony  if  such  person  had a previous judgment of conviction for a
     3  crime[; or].
     4    §  6. The opening paragraph of subdivision 1, subdivision 2 and subdi-
     5  vision 3 of section 160.55 of the criminal procedure  law,  the  opening
     6  paragraph  of  subdivision  1  as  amended by chapter 169 of the laws of
     7  1994, subdivision 2 as amended by chapter 476 of the laws  of  2009  and
     8  subdivision  3  as amended by chapter 249 of the laws of 1981 and renum-
     9  bered by chapter 142 of the  laws  of  1991,  are  amended  to  read  as
    10  follows:
    11    Upon  the  termination  of  a  criminal action or proceeding against a
    12  person by the conviction of such person of a  traffic  infraction  or  a
    13  violation,  other  than  [a violation of loitering as described in para-
    14  graph (d) or (e) of subdivision one of section 160.10  of  this  chapter
    15  or] the violation of operating a motor vehicle while ability impaired as
    16  described in subdivision one of section eleven hundred ninety-two of the
    17  vehicle  and  traffic law, unless the district attorney upon motion with
    18  not less than five days notice to such person or  his  or  her  attorney
    19  demonstrates  to  the  satisfaction  of  the court that the interests of
    20  justice require otherwise, or the court on its own motion with not  less
    21  than  five  days notice to such person or his or her attorney determines
    22  that the interests of justice require otherwise and states  the  reasons
    23  for  such  determination  on  the record, the clerk of the court wherein
    24  such criminal action or  proceeding  was  terminated  shall  immediately
    25  notify the commissioner of the division of criminal justice services and
    26  the  heads  of all appropriate police departments and other law enforce-
    27  ment agencies that the action has been terminated  by  such  conviction.
    28  Upon receipt of notification of such termination:
    29    2.  A  report  of  the  termination  of  the  action  or proceeding by
    30  conviction of a traffic violation or a violation other than [a violation
    31  of loitering as described in paragraph (d) or (e) of subdivision one  of
    32  section  160.10  of  this  title  or] the violation of operating a motor
    33  vehicle while ability  impaired  as  described  in  subdivision  one  of
    34  section  eleven hundred ninety-two of the vehicle and traffic law, shall
    35  be sufficient notice of sealing to the commissioner of the  division  of
    36  criminal  justice  services  unless  the  report also indicates that the
    37  court directed that the  record  not  be  sealed  in  the  interests  of
    38  justice.  Where  the court has determined pursuant to subdivision one of
    39  this section that sealing is not in the interests of justice, the  clerk
    40  of  the  court  shall  include notification of that determination in any
    41  report to such division of the disposition of the action or  proceeding.
    42  When the defendant has been found guilty of a violation of harassment in
    43  the  second degree and it was determined pursuant to subdivision eight-a
    44  of section 170.10 of  this  title  that  such  violation  was  committed
    45  against  a  member of the same family or household as the defendant, the
    46  clerk of the court shall include notification of that  determination  in
    47  any report to such division of the disposition of the action or proceed-
    48  ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
    49  of subdivision one of this section.
    50    3.  A  person  against whom a criminal action or proceeding was termi-
    51  nated by such person's conviction of a traffic infraction  or  violation
    52  other  than  [a  violation of loitering as described in paragraph (d) or
    53  (e) of subdivision one  of  section  160.10  of  this  chapter  or]  the
    54  violation  of  operating  a  motor  vehicle  while  ability  impaired as
    55  described in subdivision one of section eleven hundred ninety-two of the
    56  vehicle and traffic law, prior to the effective date  of  this  section,
        S. 5062--A                          4
     1  may  upon  motion apply to the court in which such termination occurred,
     2  upon not less than twenty days notice to the district attorney,  for  an
     3  order granting to such person the relief set forth in subdivision one of
     4  this section, and such order shall be granted unless the district attor-
     5  ney  demonstrates to the satisfaction of the court that the interests of
     6  justice require otherwise.
     7    § 7. Section 841 of the executive law  is  amended  by  adding  a  new
     8  subdivision 7-b to read as follows:
     9    7-b.  Take  such  steps  as may be necessary to ensure that all police
    10  officers and peace officers certified pursuant to subdivision  three  of
    11  this  section  receive appropriate instruction regarding the evidentiary
    12  prohibition set forth in section 60.47 of the criminal procedure law and
    13  section forty-five hundred nineteen-a of  the  civil  practice  law  and
    14  rules  relating  to  the use of condoms and other reproductive or sexual
    15  health devices as evidence in certain trials, hearings  or  proceedings,
    16  or as a basis for probable cause for arrest, including that unauthorized
    17  seizure  or  confiscation  of  condoms  and other reproductive or sexual
    18  health devices is a breach of public policy.
    19    § 8. The legislative law is amended by adding a new section 49 to read
    20  as follows:
    21    § 49. Requirement with respect to bills amending  certain  laws  which
    22  affect health and human rights. Whenever a committee favorably reports a
    23  bill to amend articles two hundred thirty or section 240.37 of the penal
    24  law,  or, at the discretion of the voting majority of the committee, any
    25  bill which, if passed, would increase or decrease the number  of  arres-
    26  tees  or  pretrial or sentenced population of correctional facilities in
    27  this state, a majority of the committee members voting may request  that
    28  a health and human rights impact statement be prepared.  The legislature
    29  shall  by  concurrent  resolution  of  the senate and assembly prescribe
    30  rules requiring health and human rights impact statements to  accompany,
    31  on  a separate form, bills and amendments to bills after such bills have
    32  been reported from committee.  Health and human rights impact statements
    33  shall be prepared before the bill is considered for final  passage.  The
    34  statement  shall indicate whether the bill would have a disparate impact
    35  by  race,  ethnicity,  religion,  age,  gender,   gender   identity   or
    36  expression, sexual orientation, immigration status, disability, or hous-
    37  ing  status  composition of the arrestee and correctional facility popu-
    38  lation and an explanation of that impact. Any impact  statement  printed
    39  with  or  prepared  for a bill is solely for the purpose of information,
    40  summarization and explanation for members of the legislature  and  shall
    41  not  be  construed  to represent the intent of the legislature or either
    42  chamber thereof for any purpose. Each impact statement  shall  bear  the
    43  following  disclaimer:  "The  following  health  and human rights impact
    44  statement is prepared for the benefit of the members of the legislature,
    45  solely for purposes of information, summarization  and  explanation  and
    46  does not represent the intent of the legislature or either chamber ther-
    47  eof for any purpose."
    48    §  9.  The  legislative law is amended by adding a new section 83-n to
    49  read as follows:
    50    § 83-n. Legislative commission on health and human  rights.    1.  The
    51  legislature  hereby  finds  that  promoting  and  protecting  health and
    52  respecting and fulfilling human rights are necessarily linked, and  that
    53  coordination  between  health  and law enforcement efforts is central to
    54  the effective provision of government services for the  benefit  of  the
    55  people of the state.
        S. 5062--A                          5
     1    2.  A  legislative  commission  on  health  and human rights is hereby
     2  established to examine, evaluate  and  make  recommendations  concerning
     3  rights-based  approaches  to  health  and law enforcement interventions.
     4  The commission shall act as  a  mechanism  for  ongoing  and  meaningful
     5  involvement  of  those  who are or potentially could be affected by this
     6  law, including, but not limited to, survivors of trafficking, people who
     7  are or are profiled as being involved in the sex trades, communities  of
     8  color,  lesbian,  gay,  bisexual  and  transgender people, and people in
     9  custodial settings. The commission shall provide monitoring  and  expert
    10  perspective  to the legislature, promoting awareness of problems in real
    11  time as they emerge, increase cooperation and collaboration between  the
    12  individuals and communities directly impacted and their legislators, and
    13  allow  legislators to share responsibility for successes and failures of
    14  these initiatives. The commission shall make such recommendations as  it
    15  may  deem  necessary as to regulations, policies, programs, and proposed
    16  legislation to provide an equitable system of providing for  the  public
    17  safety while also protecting public health, to encourage the most effec-
    18  tive  use of state and local resources, to preserve the fiscal integrity
    19  of both state and local  government  health  systems  and  otherwise  to
    20  strengthen the fundamental human right to health.
    21    3.  The commission shall consist of ten representatives from organiza-
    22  tions that promote advocacy by and for  directly  impacted  communities.
    23  From  among the members so appointed, a chairperson and vice chairperson
    24  shall be designated by the joint  action  of  the  chairpersons  of  the
    25  senate  and  assembly  health committees. Any vacancy that occurs in the
    26  commission or in the chairmanship or vice chairmanship shall  be  filled
    27  in  the same manner in which the original appointment or designation was
    28  made.
    29    4. The commission in addition to the above mentioned powers shall have
    30  all the powers and privileges of a  legislative  committee  pursuant  to
    31  this chapter.
    32    5.  For  the  accomplishment  of  its purpose, the commission shall be
    33  authorized and empowered to undertake any  study,  inquiry,  survey,  or
    34  analysis  it  may deem relevant through its own personnel in cooperation
    35  with or by agreement with any other public or private agency.
    36    6. The commission may require and shall receive from  any  department,
    37  board,  bureau,  commission, authority, office, or other instrumentality
    38  of the state, and from any county, city, town or village of this  state,
    39  such  facilities, assistance, and data, as it deems necessary or desira-
    40  ble for proper execution of its powers and duties.
    41    7. The commission may hold public or private hearings and  shall  have
    42  full  powers to subpoena witnesses and all records or data it shall deem
    43  necessary or desirable pursuant to this chapter.
    44    8. The members of the commission shall serve on a voluntary basis  and
    45  receive no compensation for their services.
    46    §  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
    47  law, as amended by chapter 169 of the laws of 1994, is amended and a new
    48  paragraph (g) is added to read as follows:
    49    (f) Accomplish all of the functions, powers, and duties set  forth  in
    50  paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
    51  processing  and  disposition  of cases involving violent felony offenses
    52  specified in subdivision one of section 70.02 of the penal law[.]; and
    53    (g) Accomplish all of the functions, powers, and duties set  forth  in
    54  paragraphs (a), (b), (c) and (d) of this subdivision with respect to all
    55  chapters  of law resulting from legislative bills that have been subject
    56  to the provisions of  sections  forty-nine  and  eighty-three-n  of  the
        S. 5062--A                          6
     1  legislative  law. The division shall present to the governor, the tempo-
     2  rary president of the senate, the minority leader  of  the  senate,  the
     3  speaker of the assembly and the minority leader of the assembly an annu-
     4  al  report  containing  the statistics and other information relevant to
     5  this subdivision.
     6    § 11. If any provision of this article or the application  thereof  to
     7  any  person,  circumstances,  or  political subdivision of this state is
     8  adjudged invalid by a court  of  competent  jurisdiction  such  judgment
     9  shall  not  affect or impair the validity of the other provisions of the
    10  article or the application thereof to other  political  subdivisions  of
    11  this state, persons, and circumstances.
    12    § 12. This act shall take effect on the first of March next succeeding
    13  the date on which it shall have become a law; provided, however that the
    14  amendments to article 5-A of the legislative law made by section nine of
    15  this act shall not affect the repeal of such article and shall be deemed
    16  repealed therewith.