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

                                 2213--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 13, 2009
                               ___________

Introduced  by  Sens. DIAZ, ADAMS -- read twice and ordered printed, and
  when printed to be committed to the Committee on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  penal law, in relation to establishing criminal
  street gang enterprise offenses and the abatement of premises used for
  criminal street gang enterprise activity

  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 article 280 to
read as follows:
                                ARTICLE 280
                          CRIMINAL STREET GANG
                           ENTERPRISE OFFENSES
SECTION 280.00 DEFINITIONS.
        280.05 CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT
                 OR RETENTION.
        280.10 CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT
                 OR RETENTION OF MINORS.
        280.15 COERCION OF A MINOR INTO A CRIMINAL  STREET  GANG  ENTER-
                 PRISE CONSPIRACY.
        280.20 CRIMINAL STREET GANG ENTERPRISE LEADERSHIP.
        280.25 ABATEMENT  OF  PREMISES  USED  FOR  CRIMINAL  STREET GANG
                 ENTERPRISE ACTIVITY.
        280.30 PREEMPTION.
S 280.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1. "CRIMINAL STREET GANG ENTERPRISE" MEANS A GROUP OF PERSONS  SHARING
A  COMMON  PURPOSE  OF  ENGAGING  IN  CRIMINAL CONDUCT, ASSOCIATED IN AN
ASCERTAINABLE STRUCTURE DISTINCT FROM A PATTERN OF STREET GANG  CRIMINAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00038-04-9

              

S. 2213--A                          2

ACTIVITY,  AND  WITH  A  CONTINUITY OF EXISTENCE, STRUCTURE AND CRIMINAL
PURPOSE BEYOND THE SCOPE OF INDIVIDUAL CRIMINAL ACTS.
  2.  "GANG CRIME" MEANS CONDUCT CONSTITUTING ANY OF THE FOLLOWING FELO-
NIES, OR CONSPIRACY OR ATTEMPT TO COMMIT ANY OF THE FOLLOWING  FELONIES:
SECTIONS  120.05, 120.10 AND 120.11 RELATING TO ASSAULT; SECTIONS 125.10
TO 125.27 RELATING TO  HOMICIDE;  SECTIONS  130.25,  130.30  AND  130.35
RELATING  TO  RAPE;  SECTIONS  135.20 AND 135.25 RELATING TO KIDNAPPING;
SECTION 135.35 RELATING TO LABOR TRAFFICKING; SECTION 135.65 RELATING TO
COERCION; SECTIONS 140.20,  140.25  AND  140.30  RELATING  TO  BURGLARY;
SECTIONS  145.05, 145.10 AND 145.12 RELATING TO CRIMINAL MISCHIEF; ARTI-
CLE ONE HUNDRED FIFTY RELATING TO ARSON; SECTIONS 155.30, 155.35, 155.40
AND 155.42 RELATING TO GRAND LARCENY; SECTIONS  177.10,  177.15,  177.20
AND  177.25  RELATING  TO  HEALTH  CARE FRAUD; ARTICLE ONE HUNDRED SIXTY
RELATING TO ROBBERY; SECTIONS 165.45, 165.50, 165.52 AND 165.54 RELATING
TO CRIMINAL POSSESSION OF STOLEN PROPERTY; SECTIONS  165.72  AND  165.73
RELATING  TO  TRADEMARK COUNTERFEITING; SECTIONS 170.10, 170.15, 170.25,
170.30, 170.40, 170.65 AND 170.70 RELATING TO FORGERY; SECTIONS  175.10,
175.25, 175.35, 175.40 AND 210.40 RELATING TO FALSE STATEMENTS; SECTIONS
176.15,  176.20, 176.25 AND 176.30 RELATING TO INSURANCE FRAUD; SECTIONS
178.20 AND 178.25 RELATING TO CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
TIONS  AND  PRESCRIPTIONS;  SECTIONS  180.03,  180.08,  180.15,  180.25,
180.40,  180.45, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.20,
200.22, 200.25, 200.27, 215.00, 215.05 AND 215.19 RELATING  TO  BRIBERY;
SECTIONS 187.10, 187.15, 187.20 AND 187.25 RELATING TO RESIDENTIAL MORT-
GAGE  FRAUD;  SECTIONS  190.40  AND  190.42  RELATING TO CRIMINAL USURY;
SECTION 190.65 RELATING TO  SCHEMES  TO  DEFRAUD;  SECTIONS  205.60  AND
205.65  RELATING  TO HINDERING PROSECUTION; SECTIONS 210.10, 210.15, AND
215.51 RELATING TO PERJURY AND  CONTEMPT;  SECTION  215.40  RELATING  TO
TAMPERING  WITH  PHYSICAL  EVIDENCE;  SECTIONS  220.06,  220.09, 220.16,
220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46,  220.55,
220.60 AND 220.77 RELATING TO CONTROLLED SUBSTANCES; SECTIONS 225.10 AND
225.20  RELATING TO GAMBLING; SECTIONS 230.25, 230.30, AND 230.32 RELAT-
ING TO PROMOTING PROSTITUTION; SECTION 230.34 RELATING TO SEX  TRAFFICK-
ING;  SECTIONS  235.06, 235.07, 235.21 AND 235.22 RELATING TO OBSCENITY;
SECTIONS 263.10 AND 263.15 RELATING TO PROMOTING A SEXUAL PERFORMANCE BY
A CHILD; SECTIONS 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 AND THE
PROVISIONS OF SECTION 265.10  WHICH  CONSTITUTE  A  FELONY  RELATING  TO
FIREARMS  AND  OTHER  DANGEROUS  WEAPONS; AND SECTIONS 265.14 AND 265.16
RELATING TO CRIMINAL SALE OF A  FIREARM;  AND  SECTION  275.10,  275.20,
275.30,  OR  275.40  RELATING  TO  UNAUTHORIZED RECORDINGS; AND SECTIONS
470.05, 470.10, 470.15 AND 470.20 RELATING TO MONEY LAUNDERING, OF  THIS
CHAPTER.
  3. "PATTERN OF STREET GANG CRIMINAL ACTIVITY" MEANS CONDUCT ENGAGED IN
BY  PERSONS CHARGED IN A CRIMINAL STREET GANG ENTERPRISE OFFENSE DEFINED
IN THIS ARTICLE CONSTITUTING THREE OR MORE GANG CRIMES THAT:
  (A) WERE COMMITTED WITHIN TEN YEARS OF THE COMMENCEMENT OF THE  CRIMI-
NAL ACTION;
  (B)  ARE  NEITHER  ISOLATED  INCIDENTS,  NOR  SO  CLOSELY  RELATED AND
CONNECTED IN POINT OF TIME OR CIRCUMSTANCES OF COMMISSION AS TO  CONSTI-
TUTE  A  CRIMINAL  OFFENSE  OR  CRIMINAL TRANSACTION, AS THOSE TERMS ARE
DEFINED IN SECTION 40.10 OF THE CRIMINAL PROCEDURE LAW; AND
  (C) ARE EITHER:  (I) RELATED TO ONE ANOTHER THROUGH A COMMON SCHEME OR
PLAN OR (II) WERE COMMITTED, SOLICITED, REQUESTED, IMPORTUNED OR  INTEN-
TIONALLY  AIDED  BY  PERSONS ACTING WITH THE MENTAL CULPABILITY REQUIRED
FOR THE COMMISSION THEREOF AND ASSOCIATED WITH OR IN THE CRIMINAL STREET
GANG ENTERPRISE.

S. 2213--A                          3

S 280.05 CRIMINAL STREET GANG ENTERPRISE  SOLICITATION,  RECRUITMENT  OR
           RETENTION.
  A  PERSON  IS  GUILTY OF CRIMINAL STREET GANG ENTERPRISE SOLICITATION,
RECRUITMENT OR RETENTION WHEN HE OR SHE:
  1. INTENTIONALLY SOLICITS, RECRUITS, EMPLOYS, CAUSES,  ENCOURAGES,  OR
CONSPIRES TO CAUSE ANOTHER PERSON TO BE OR REMAIN AS A MEMBER OF A CRIM-
INAL  STREET  GANG ENTERPRISE THAT REQUIRES AS A CONDITION OF MEMBERSHIP
OR CONTINUED MEMBERSHIP THE  COMMISSION  OF  OR  PARTICIPATION  IN  GANG
CRIMES; OR
  2.  INTENTIONALLY MAKES ANY COMMUNICATION, DIRECT OR INDIRECT, CONSTI-
TUTING A THREAT TO PERSON OR PROPERTY OR TO ANY ASSOCIATE OR RELATIVE OF
THE PERSON BEING SOLICITED, RECRUITED OR RETAINED AS A MEMBER OF A CRIM-
INAL STREET GANG ENTERPRISE THAT REQUIRES AS A CONDITION  OF  MEMBERSHIP
OR  CONTINUED  MEMBERSHIP  THE  COMMISSION  OF  OR PARTICIPATION IN GANG
CRIMES.
  CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT OR RETENTION
IS A CLASS E FELONY.
S 280.10 CRIMINAL STREET GANG ENTERPRISE  SOLICITATION,  RECRUITMENT  OR
           RETENTION OF MINORS.
  A  PERSON  IS  GUILTY OF CRIMINAL STREET GANG ENTERPRISE SOLICITATION,
RECRUITMENT OR RETENTION OF MINORS WHEN HE OR SHE:
  1. INTENTIONALLY SOLICITS, RECRUITS, EMPLOYS, CAUSES,  ENCOURAGES,  OR
CONSPIRES  TO  CAUSE ANOTHER PERSON UNDER EIGHTEEN YEARS OF AGE TO BE OR
REMAIN AS A MEMBER OF A CRIMINAL STREET GANG ENTERPRISE THAT REQUIRES AS
A CONDITION OF MEMBERSHIP OR CONTINUED MEMBERSHIP THE COMMISSION  OF  OR
PARTICIPATION IN GANG CRIMES; OR
  2.  INTENTIONALLY MAKES ANY COMMUNICATION, DIRECT OR INDIRECT, CONSTI-
TUTING A THREAT TO A PERSON UNDER EIGHTEEN YEARS OF AGE, TO PROPERTY, OR
TO ANY ASSOCIATE OR RELATIVE OF THE MINOR BEING SOLICITED, RECRUITED  OR
RETAINED  AS A MEMBER OF A CRIMINAL STREET GANG ENTERPRISE THAT REQUIRES
AS A CONDITION OF MEMBERSHIP OR CONTINUED MEMBERSHIP THE  COMMISSION  OF
OR PARTICIPATION IN GANG CRIMES.
  CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT OR RETENTION
OF MINORS IS A CLASS D FELONY.
S 280.15 COERCION  OF  A  MINOR  INTO  A CRIMINAL STREET GANG ENTERPRISE
           CONSPIRACY.
  A PERSON IS GUILTY OF COERCION OF A MINOR INTO A CRIMINAL STREET  GANG
ENTERPRISE  CONSPIRACY WHEN, WITH THE INTENT TO CAUSE PHYSICAL INJURY TO
A PERSON UNDER EIGHTEEN YEARS OF AGE, HE OR  SHE  CAUSES  SUCH  PHYSICAL
INJURY  TO SUCH PERSON OR ANOTHER PERSON UNDER EIGHTEEN YEARS OF AGE FOR
THE PURPOSE OF CAUSING OR COERCING SUCH PERSON TO JOIN OR PARTICIPATE IN
A CRIMINAL CONSPIRACY TO BENEFIT A CRIMINAL STREET  GANG  ENTERPRISE  OR
OTHER  ORGANIZATION  OF  THREE  OR MORE PERSONS WHICH HAS A COMMON NAME,
IDENTIFYING SIGN OR SYMBOL AND WHOSE MEMBERS INDIVIDUALLY OR COLLECTIVE-
LY ENGAGE IN GANG CRIMES.
  COERCION OF A MINOR INTO A CRIMINAL STREET GANG ENTERPRISE  CONSPIRACY
IS A CLASS D FELONY.
S 280.20 CRIMINAL STREET GANG ENTERPRISE LEADERSHIP.
  A PERSON IS GUILTY OF CRIMINAL STREET GANG ENTERPRISE LEADERSHIP WHEN,
AS  A  MEMBER  OF A CRIMINAL STREET GANG ENTERPRISE, HE OR SHE COMMANDS,
COUNSELS, PERSUADES, INDUCES,  ENTICES  OR  COERCES  ANY  INDIVIDUAL  TO
COMMIT A CRIME WHERE THE PURPOSE OF SUCH CRIME IS THE FURTHERANCE OF THE
CRIMINAL OBJECTIVES OF SUCH CRIMINAL STREET GANG ENTERPRISE.
  CRIMINAL STREET GANG ENTERPRISE LEADERSHIP IS A CLASS D FELONY.
S 280.25 ABATEMENT  OF PREMISES USED FOR CRIMINAL STREET GANG ENTERPRISE
           ACTIVITY.

S. 2213--A                          4

  1. ANY PLACE OR PREMISES THAT HAS BEEN USED ON  MORE  THAN  TWO  OCCA-
SIONS,  WITHIN A SIX MONTH PERIOD OF TIME, FOR THE PURPOSE OF CONDUCTING
A PATTERN OF STREET GANG CRIMINAL ACTIVITY, OR ANY REAL PROPERTY THAT IS
ERECTED, ESTABLISHED, MAINTAINED, OWNED, LEASED, OR USED BY ANY CRIMINAL
STREET  GANG  ENTERPRISE  FOR  THE PURPOSE OF CONDUCTING CRIMINAL STREET
GANG ENTERPRISE ACTIVITY CONSTITUTES A NUISANCE, THAT SHALL BE ENJOINED,
ABATED, AND PREVENTED, AND FOR WHICH DAMAGES MAY BE RECOVERED,   WHETHER
IT IS A PUBLIC OR PRIVATE NUISANCE.
  2.  ANY ACTION FOR AN INJUNCTION OR ABATEMENT FILED PURSUANT TO SUBDI-
VISION ONE OF THIS SECTION SHALL PROCEED ACCORDING TO THE PROVISIONS  OF
THE CIVIL PRACTICE LAW AND RULES, EXCEPT THAT ALL OF THE FOLLOWING SHALL
APPLY:
  (A)  THE  COURT  SHALL  NOT  ASSESS A CIVIL PENALTY AGAINST ANY PERSON
UNLESS THAT PERSON KNEW OR  SHOULD  HAVE  KNOWN  OF  THE  UNLAWFUL  ACTS
COMMITTED ON OR IN THE PREMISES;
  (B) NO ORDER OF EVICTION OR CLOSURE MAY BE ENTERED;
  (C)  ALL  INJUNCTIONS  ISSUED  SHALL  BE LIMITED TO THOSE NECESSARY TO
PROTECT THE HEALTH AND SAFETY OF THE RESIDENTS OR THE  PUBLIC  OR  THOSE
NECESSARY TO PREVENT FURTHER CRIMINAL ACTIVITY; AND
  (D)  SUIT  MAY  NOT  BE  FILED UNTIL A THIRTY-DAY NOTICE PERIOD OF THE
UNLAWFUL USE OR CRIMINAL CONDUCT HAS BEEN PROVIDED TO THE OWNER BY MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE LAST KNOWN ADDRESS.
  3. NO NOT-FOR-PROFIT OR CHARITABLE ORGANIZATION  WHICH  IS  CONDUCTING
ITS  AFFAIRS  WITH  ORDINARY CARE AND SKILL, AND NO GOVERNMENTAL ENTITY,
SHALL BE ABATED PURSUANT TO THE PROVISIONS OF SUBDIVISIONS ONE  AND  TWO
OF THIS SECTION.
  4.  NOTHING  IN  THIS SECTION SHALL PRECLUDE ANY AGGRIEVED PERSON FROM
SEEKING ANY OTHER REMEDY PROVIDED BY LAW.
S 280.30 PREEMPTION.
  NOTHING IN THIS ARTICLE SHALL PREEMPT AN  APPROPRIATE  ALTERNATIVE  OR
ADDITIONAL  CHARGE  PURSUANT  TO THIS CHAPTER, INCLUDING BUT NOT LIMITED
TO, A CHARGE PURSUANT TO SECTION 120.06  (GANG  ASSAULT  IN  THE  SECOND
DEGREE),  OR  SECTION  120.07  (GANG  ASSAULT  IN  THE FIRST DEGREE); OR
PREVENT A LOCAL GOVERNMENT FROM ADOPTING AND ENFORCING  LAWS  CONSISTENT
WITH  THIS  ARTICLE RELATING TO CRIMINAL STREET GANG ENTERPRISE ACTIVITY
AND CRIMINAL STREET GANG ENTERPRISE VIOLENCE. WHERE LOCAL LAWS DUPLICATE
OR SUPPLEMENT THIS ARTICLE, THE PROVISIONS  OF  THIS  ARTICLE  SHALL  BE
CONSTRUED  AS  PROVIDING ALTERNATIVE REMEDIES AND NOT AS PREEMPTING SUCH
LOCAL LAWS.
  S 2. Severability. If any provision of this act,  or  the  application
thereof to any person or circumstance, shall be adjudged by any court of
competent  jurisdiction to be invalid or unconstitutional, such judgment
shall not affect, impair or invalidate the remainder thereof, but  shall
be  confined  in  its  operation to the provision of this act, or in its
application to the person or  circumstance,  directly  involved  in  the
controversy in which such judgment shall have been rendered.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.