S T A T E   O F   N E W   Y O R K
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                                  8193

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               May 7, 2009
                               ___________

Introduced  by  M.  of A. DelMONTE, RABBITT -- read once and referred to
  the Committee on Codes

AN ACT to amend the penal law, in relation to creating the new crime  of
  cyber  harassment;  and increasing penalties for the crimes of harass-
  ment and stalking

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  The penal law is amended by adding a new section 240.33 to
read as follows:
S 240.33 CYBER HARASSMENT.
  1.  A  PERSON  IS  GUILTY OF CYBER HARASSMENT WHEN, FOR THE PURPOSE OF
FRIGHTENING OR DISTURBING ANOTHER PERSON, HE OR SHE TRANSMITS OR  CAUSES
THE TRANSMISSION OF AN ELECTRONIC COMMUNICATION, OR KNOWINGLY PERMITS AN
ELECTRONIC  COMMUNICATION  TO  BE  TRANSMITTED TO ANOTHER PERSON FROM AN
ELECTRONIC COMMUNICATION DEVICE UNDER HIS OR HER CONTROL:
  (A) USING COARSE LANGUAGE OFFENSIVE TO A PERSON OF  AVERAGE  SENSIBIL-
ITY; OR
  (B)  ANONYMOUSLY OR REPEATEDLY TRANSMITTING SUCH COMMUNICATION WHETHER
OR NOT CONVERSATION OCCURS; OR
  (C) THREATENING TO COMMIT ANY FELONY.
  2. NO PERSON SHALL MAKE OR CAUSE TO BE  MADE  AN  ELECTRONIC  COMMUNI-
CATION,  OR  PERMIT AN ELECTRONIC COMMUNICATION TO BE MADE FROM AN ELEC-
TRONIC COMMUNICATION DEVICE UNDER SUCH PERSON'S CONTROL, WITH THE INTENT
TO FRIGHTEN OR DISTURB ANY OTHER PERSON IN ANY MANNER DESCRIBED IN  THIS
SECTION  EITHER BY THE DIRECT ACTION OF THE PERSON INITIATING THE COMMU-
NICATION OR THROUGH THE ACTIONS OF  A  THIRD  PARTY  WHOSE  ACTIONS  ARE
INSTIGATED,  INITIATED,  PROMPTED,  OR  BROUGHT  ABOUT  BY SUCH PERSON'S
COMMUNICATION.
  3. ANY OFFENSE COMMITTED UNDER THIS SECTION MAY BE DEEMED TO HAVE BEEN
COMMITTED EITHER AT THE PLACE FROM WHICH THE COMMUNICATION WAS  MADE  OR
AT THE PLACE WHERE THE COMMUNICATION WAS RECEIVED.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11755-01-9
              

A. 8193                             2

  4. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL MEAN:
  (A) "AN ADULT" IS ANY PERSON TWENTY-ONE YEARS OR OLDER;
  (B) "A CHILD" IS ANY PERSON UNDER SEVENTEEN YEARS OF AGE;
  (C) "ELECTRONIC COMMUNICATIONS" ARE THE ORIGINATION, EMISSION, DISSEM-
INATION, TRANSMISSION, OR RECEPTION OF DATA, IMAGES, SIGNALS, SOUNDS, OR
OTHER INTELLIGENCE OR EQUIVALENCE OF INTELLIGENCE OF ANY NATURE OVER ANY
COMMUNICATIONS  SYSTEM  BY  ANY METHOD, INCLUDING, BUT NOT LIMITED TO, A
FIBER OPTIC, ELECTRONIC, MAGNETIC, OPTICAL, DIGITAL, OR  ANALOG  METHOD.
SUCH  ELECTRONIC  COMMUNICATIONS  SHALL  INCLUDE,  BUT NOT BE LIMITED TO
ELECTRONIC MAIL, INTERNET-BASED COMMUNICATIONS, PAGER SERVICE, AND ELEC-
TRONIC TEXT MESSAGING; AND
  (D) "AN ELECTRONIC COMMUNICATIONS DEVICE" IS  ANY  INSTRUMENT,  EQUIP-
MENT,  MACHINE,  OR  OTHER  DEVICE  THAT  FACILITATES TELECOMMUNICATION,
INCLUDING, BUT NOT LIMITED TO, A COMPUTER,  COMPUTER  NETWORK,  COMPUTER
CHIP,  COMPUTER  CIRCUIT, SCANNER, TELEPHONE, CELLULAR TELEPHONE, PAGER,
PERSONAL COMMUNICATIONS DEVICE, TRANSPONDER, RECEIVER, RADIO, MODEM,  OR
DEVICE THAT ENABLES THE USE OF A MODEM.
  CYBER HARASSMENT IS A CLASS A MISDEMEANOR. CYBER HARASSMENT IS A CLASS
D FELONY WHEN COMMITTED BY AN ADULT AGAINST A CHILD.
  S 2. Section 240.25 of the penal law, as amended by chapter 109 of the
laws of 1994, is amended to read as follows:
S 240.25 Harassment in the first degree.
  A  person  is  guilty of harassment in the first degree when he or she
intentionally and repeatedly harasses another person by  following  such
person  in  or about a public place or places or by engaging in a course
of conduct or by repeatedly committing acts which places such person  in
reasonable  fear  of  physical injury.   This section shall not apply to
activities regulated by the national labor relations  act,  as  amended,
the  railway  labor  act,  as  amended,  or the federal employment labor
management act, as amended.
  Harassment in the first degree is a class B misdemeanor.    HARASSMENT
IN  THE  FIRST  DEGREE  IS  A  CLASS D FELONY WHEN COMMITTED BY AN ADULT
AGAINST A CHILD.
  S 3. Section 240.26 of the penal law, as amended by chapter 109 of the
laws of 1994, is amended to read as follows:
S 240.26 Harassment in the second degree.
  A person is guilty of harassment  in  the  second  degree  when,  with
intent to harass, annoy or alarm another person:
  1.  He  or she strikes, shoves, kicks or otherwise subjects such other
person to physical contact, or attempts or threatens to do the same; or
  2. He or she follows a person in or about a public place or places; or
  3. He or she engages in a course of conduct or repeatedly commits acts
which alarm or seriously annoy such other  person  and  which  serve  no
legitimate purpose.
  Subdivisions  two  and three of this section shall not apply to activ-
ities regulated by the national labor relations  act,  as  amended,  the
railway  labor  act, as amended, or the federal employment labor manage-
ment act, as amended.
  Harassment in the second degree is a violation.    HARASSMENT  IN  THE
SECOND  DEGREE  IS A CLASS E FELONY WHEN COMMITTED BY AN ADULT AGAINST A
CHILD.
  S 4. Section 120.50 of the penal law, as added by chapter 635  of  the
laws of 1999, is amended to read as follows:
S 120.50 Stalking in the third degree.
  A person is guilty of stalking in the third degree when he or she:

A. 8193                             3

  1.  Commits the crime of stalking in the fourth degree in violation of
section 120.45 of this article against three or more persons,  in  three
or  more  separate transactions, for which the actor has not been previ-
ously convicted; or
  2.  Commits the crime of stalking in the fourth degree in violation of
section 120.45 of this article against any person,  and  has  previously
been  convicted, within the preceding ten years of a specified predicate
crime, as defined in subdivision five of section 120.40 of this article,
and the victim of such specified predicate crime is the  victim,  or  an
immediate family member of the victim, of the present offense; or
  3.  With  intent  to  harass, annoy or alarm a specific person, inten-
tionally engages in a course of conduct directed at such person which is
likely to cause such person to reasonably fear physical injury or  seri-
ous  physical  injury,  the  commission of a sex offense against, or the
kidnapping, unlawful imprisonment or death of such person or a member of
such person's immediate family; or
  4. Commits the crime of stalking in the fourth degree and  has  previ-
ously  been  convicted within the preceding ten years of stalking in the
fourth degree.
  Stalking in the third degree is a class A misdemeanor.    STALKING  IN
THE  THIRD DEGREE IS A CLASS D FELONY WHEN COMMITTED BY AN ADULT AGAINST
A CHILD.
  S 5. Section 120.45 of the penal law, as added by chapter 635  of  the
laws of 1999, is amended to read as follows:
S 120.45 Stalking in the fourth degree.
  A  person  is  guilty  of stalking in the fourth degree when he or she
intentionally, and for no legitimate purpose, engages  in  a  course  of
conduct  directed  at  a specific person, and knows or reasonably should
know that such conduct:
  1. is likely to cause reasonable fear of material harm to the physical
health, safety or property of such person, a  member  of  such  person's
immediate  family  or a third party with whom such person is acquainted;
or
  2. causes material harm to the mental  or  emotional  health  of  such
person,  where such conduct consists of following, telephoning or initi-
ating communication or contact  with  such  person,  a  member  of  such
person's  immediate  family  or  a  third party with whom such person is
acquainted, and the actor was previously clearly informed to cease  that
conduct; or
  3.  is  likely to cause such person to reasonably fear that his or her
employment,  business  or  career  is  threatened,  where  such  conduct
consists  of  appearing,  telephoning  or  initiating  communication  or
contact at such person's place of employment or business, and the  actor
was previously clearly informed to cease that conduct.
  Stalking  in  the fourth degree is a class B misdemeanor.  STALKING IN
THE FOURTH DEGREE IS A CLASS E FELONY WHEN COMMITTED BY AN ADULT AGAINST
A CHILD.
  S 6. This act shall take effect on the one hundred eightieth day after
it shall have become a law.