NY State Senate Bill 2009-S4593

Archive: Last Bill Status Via A5537 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 30, 2010	signed chap.232
Jul 19, 2010	delivered to governor
Jun 24, 2010	returned to assembly passed senate
Mar 08, 2010	3rd reading cal.188 substituted for s4593a
Mar 08, 2010	substituted by a5537a
Mar 04, 2010	advanced to third reading
Mar 03, 2010	2nd report cal.
Mar 02, 2010	1st report cal.188
Jan 06, 2010	referred to codes
Jul 16, 2009	committed to rules
Jun 04, 2009	advanced to third reading
Jun 03, 2009	2nd report cal.
Jun 02, 2009	1st report cal.573
May 19, 2009	print number 4593a
May 19, 2009	amend and recommit to codes
Apr 24, 2009	referred to codes

Votes

- Jun 24, 2010 - Floor Vote
  A5537
  
  61
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 24, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Morahan
  Mar 2, 2010 - Codes Committee Vote
  S4593
  
  14
  
  Aye
  
  1
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Mar 2, 2010
      
      aye (14)
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Duane
      
      Flanagan
      
      Huntley
      
      Klein
      
      Lanza
      
      Parker
      
      Perkins
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      Volker
      
      nay (1)
      
      Golden
      
      aye wr (1)
      
      Saland
  Jun 2, 2009 - Codes Committee Vote
  S4593
  
  11
  
  Aye
  
  1
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Jun 2, 2009
      
      aye (11)
      
      Breslin
      
      Duane
      
      Flanagan
      
      Huntley
      
      Klein
      
      Parker
      
      Perkins
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      Volker
      
      nay (1)
      
      Lanza
      
      aye wr (4)
      
      Bonacic
      
      DeFrancisco
      
      Golden
      
      Saland

Bill Amendments

Original

A (Active)

2009-S4593 - Details

2009-S4593 - Summary

Clarifies provisions of the penal law describing when a person is guilty of loitering by removing subdivisions that have been declared unconstitutional.

2009-S4593 - Sponsor Memo

                                 BILL NUMBER:  S4593

 TITLE OF BILL :
An act to amend the penal law, the alcoholic beverage control law, the
criminal procedure law, the executive law and the general business
law, in relation to loitering; and to repeal certain provisions of the
penal law relating thereto


 PURPOSE :
This bill would repeal three subdivisions of Penal Law section 240.35
that have been held unconstitutional by different appellate courts and
makes conforming changes in other statutes that refer to the deleted
provisions.

 SUMMARY OF PROVISIONS :
This bill repeals three subdivisions of the loitering law that have
been declared unconstitutional by the courts.  Subdivisions one and
three of Penal Law §240.35 respectively proscribe loitering for the
purpose of begging and of engaging in or soliciting particular sexual
acts. Subdivision seven prohibits a person who does not have a
satisfactory explanation from loitering or sleeping in a
transportation facility.

The bill conforms other laws to the repeal of §240.35(3). The bill
deletes references to § 240.35(3) through the repeal or amendment of

provisions of the criminal procedure law, the penal law, the alcoholic
beverage control law, the executive law, and the general business law.
These provisions require violators of § 240.35(3) to be fingerprinted,
include the violation in the definition of serious offense under
firearm laws, and prohibit violators from being employed by a business
with a license to traffic in alcoholic beverages, from being appointed
a notary, and from obtaining a license to become a private
investigator, bail enforcement agent, or watch, guard, or patrol
agency.

The bill amends the definition of serious offense contained in Penal
Law §265.00(17) twice, in sections two and three of the bill, because
there was a technical error in chapter 635 of the laws of 1999. That
chapter contained two sections each adding the same two phrases to the
definition, but inserting the phrases in a different order.

 JUSTIFICATION :
The law maintains three subdivisions that different courts have found
unconstitutional. The continued presence of these provisions in the
Penal Law serves no useful purpose. It also creates the risk that
police officers will be confused as to the current state of the law.
Repealing these subdivisions will make the law clear.

Subdivision one was held unconstitutional in 1993 by the United States
Court of Appeals for the Second Circuit in Loper v. New York City
Police Department, 999 F.2d 699 (1993) (affirming District Court order
enjoining NYPD from enforcing the law). The court held that the
statute's blanket prohibition on begging in all public places violated
the First Amendment of the United States Constitution. This case does
not bind New York courts, but does serve as persuasive authority.

Subdivisions three and seven were held unconstitutional in two
different criminal cases by the New York Court of Appeals in the
1980's. The court held subdivision three unconstitutional in People v.
Uplinoer, 58 N.Y.2d 936 (1983) because its earlier decision in People
v. Onofre, 51 N.Y.2d 476, had struck down the consensual sodomy
statute, which it described as the "companion statute" to the
loitering statute at issue in Uplinoer. Because the purpose of
subdivision three was to punish conduct anticipatory to consensual
sodomy, the court held that subdivision three was also
unconstitutional. In 1988, the Court of Appeals held that subdivision
seven was unconstitutionally vague under the Due Process clause of the
federal and state constitutions. People v, Briaht, 71 N.Y.2d 376
(1988). The court found that the subdivision failed to give fair
notice that the prohibited conduct was illegal, permitted arbitrary
enforcement, and required a citizen to relinquish the constitutional
right against compulsory self-incrimination in order to avoid arrest.

 LEGISLATIVE HISTORY :
A.11173-C/S.8341-B (2008).

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S4593 - Bill Text download pdf

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

                                  4593

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 24, 2009
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
  when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, the alcoholic beverage control  law,  the
  criminal  procedure  law,  the  executive law and the general business
  law, in relation to loitering; and to repeal certain provisions of the
  penal law relating thereto

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

  Section  1. Subdivisions 1, 3 and 7 of section 240.35 of the penal law
are REPEALED.
  S 2. Paragraph (b) of subdivision 17 of section 265.00  of  the  penal
law,  as  amended  by  section 11 of chapter 635 of the laws of 1999, is
amended to read as follows:
  (b) any of the following offenses defined in the penal law:  illegally
using,  carrying  or  possessing  a  pistol  or  other dangerous weapon;
possession of burglar's tools; criminal possession of stolen property in
the third degree; escape  in  the  third  degree;  jostling;  fraudulent
accosting;  [that  kind  of  loitering  defined  in subdivision three of
section 240.35;] endangering  the  welfare  of  a  child;  the  offenses
defined in article two hundred thirty-five; issuing abortional articles;
permitting  prostitution;  promoting  prostitution  in the third degree;
stalking in the  fourth  degree;  stalking  in  the  third  degree;  the
offenses  defined in article one hundred thirty; the offenses defined in
article two hundred twenty.
  S 3. Paragraph (b) of subdivision 17 of section 265.00  of  the  penal
law,  as  amended  by  section 15 of chapter 635 of the laws of 1999, is
amended to read as follows:
  (b) any of the following offenses defined in the penal law:  illegally
using,  carrying  or  possessing  a  pistol  or  other dangerous weapon;
possession of burglar's tools; criminal possession of stolen property in
the third degree; escape  in  the  third  degree;  jostling;  fraudulent

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00089-02-9

S. 4593                             2

accosting;  [that  kind  of  loitering  defined  in subdivision three of
section 240.35;] endangering  the  welfare  of  a  child;  the  offenses
defined in article two hundred thirty-five; issuing abortional articles;
permitting  prostitution;  promoting  prostitution  in the third degree;
stalking in the  third  degree;  stalking  in  the  fourth  degree;  the
offenses  defined in article one hundred thirty; the offenses defined in
article two hundred twenty.
  S 4. Paragraph (g) of subdivision 2 of section 102  of  the  alcoholic
beverage  control law, as amended by chapter 340 of the laws of 1972, is
amended to read as follows:
  (g) Violating subdivisions six, eight, ten or eleven of section  seven
hundred  twenty-two of the former penal law as in force and effect imme-
diately prior to  September  first,  nineteen  hundred  sixty-seven,  or
violating  sections 165.25[,] OR 165.30 [or subdivision three of section
240.35] of the penal law;
  S 5. Paragraphs (d) and (e) of subdivision 1 of section 160.10 of  the
criminal  procedure  law,  paragraph (d) as amended and paragraph (e) as
added by chapter 344 of the  laws  of  1976,  are  amended  to  read  as
follows:
  (d)  [Loitering,  as defined in subdivision three of section 240.35 of
the penal law; or
  (e)] Loitering for the purpose of engaging in a  prostitution  offense
as defined in subdivision two of section 240.37 of the penal law.
  S  6.  Subdivision (g) of section 130 of the executive law, as amended
by chapter 680 of the laws of 1967, is amended to read as follows:
  (g) violating sections two hundred seventy, two hundred seventy-a, two
hundred seventy-b, two hundred seventy-c, two hundred  seventy-one,  two
hundred  seventy-five, two hundred seventy-six, five hundred fifty, five
hundred fifty-one, five hundred fifty-one-a and subdivisions six, eight,
ten or eleven of section seven hundred twenty-two of  the  former  penal
law  as  in force and effect immediately prior to September first, nine-
teen hundred sixty-seven, or violating  sections  165.25,  165.30[,]  OR
subdivision one of section 240.30, [subdivision three of section 240.35]
of the penal law, or violating sections four hundred seventy-eight, four
hundred seventy-nine, four hundred eighty, four hundred eighty-one, four
hundred  eighty-four,  four hundred eighty-nine and four hundred ninety-
one of the judiciary law; or
  S 7. Paragraph (g) of subdivision 2 of section 74 of the general busi-
ness law, as amended by chapter 680 of the laws of 1967, is  amended  to
read as follows:
  (g)  violating  [subdivisions  six  or eight, of section seven hundred
twenty-two of the former penal law as in force  and  effect  immediately
prior  to  September  first,  nineteen hundred sixty-seven, or violating
sections]  SECTION 165.25[,] OR 165.30 [or subdivision three of  section
240.35] of the penal law;
  S 8. This act shall take effect immediately.

co-Sponsors

2009-S4593A (ACTIVE) - Details

2009-S4593A (ACTIVE) - Summary

Clarifies provisions of the penal law describing when a person is guilty of loitering by removing subdivisions that have been declared unconstitutional.

2009-S4593A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4593A

 TITLE OF BILL :
An act to amend the penal law, the alcoholic beverage control law, the
criminal procedure law, the executive law and the general business
law, in relation to loitering; and to repeal certain provisions of the
penal law relating thereto


 PURPOSE :
This bill would repeal three subdivisions of Penal Law section 240.35
that have been held unconstitutional by different appellate courts and
makes conforming changes in other statutes that refer to the deleted
provisions.

 SUMMARY OF PROVISIONS :
This bill repeals three subdivisions of the loitering law that have
been declared unconstitutional by the courts.  Subdivisions one and
three of Penal Law §240.35 respectively proscribe loitering for the
purpose of begging and of engaging in or soliciting particular sexual
acts. Subdivision seven prohibits a person who does not have a
satisfactory explanation from loitering or sleeping in a
transportation facility.

The bill conforms other laws to the repeal of §240.35(3). The bill
deletes references to § 240.35(3) through the repeal or amendment of

provisions of the criminal procedure law, the penal law, the alcoholic
beverage control law, the executive law, and the general business law.
These provisions require violators of § 240.35(3) to be fingerprinted,
include the violation in the definition of serious offense under
firearm laws, and prohibit violators from being employed by a business
with a license to traffic in alcoholic beverages, from being appointed
a notary, and from obtaining a license to become a private
investigator, bail enforcement agent, or watch, guard, or patrol
agency.

The bill amends the definition of serious offense contained in Penal
Law §265.00(17) twice, in sections two and three of the bill, because
there was a technical error in chapter 635 of the laws of 1999. That
chapter contained two sections each adding the same two phrases to the
definition, but inserting the phrases in a different order.

 JUSTIFICATION :
The law maintains three subdivisions that different courts have found
unconstitutional. The continued presence of these provisions in the
Penal Law serves no useful purpose. It also creates the risk that
police officers will be confused as to the current state of the law.
Repealing these subdivisions will make the law clear.

Subdivision one was held unconstitutional in 1993 by the United States
Court of Appeals for the Second Circuit in Loper v. New York City
Police Department, 999 F.2d 699 (1993) (affirming District Court order
enjoining NYPD from enforcing the law). The court held that the
statute's blanket prohibition on begging in all public places violated
the First Amendment of the United States Constitution. This case does
not bind New York courts, but does serve as persuasive authority.

Subdivisions three and seven were held unconstitutional in two
different criminal cases by the New York Court of Appeals in the
1980's. The court held subdivision three unconstitutional in People v.
Uplinoer, 58 N.Y.2d 936 (1983) because its earlier decision in People
v. Onofre, 51 N.Y.2d 476, had struck down the consensual sodomy
statute, which it described as the "companion statute" to the
loitering statute at issue in Uplinoer. Because the purpose of
subdivision three was to punish conduct anticipatory to consensual
sodomy, the court held that subdivision three was also
unconstitutional. In 1988, the Court of Appeals held that subdivision
seven was unconstitutionally vague under the Due Process clause of the
federal and state constitutions. People v, Briaht, 71 N.Y.2d 376
(1988), The court found that the subdivision failed to give fair
notice that the prohibited conduct was illegal, permitted arbitrary
enforcement, and required a citizen to relinquish the 7.8341-B (2008).

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S4593A (ACTIVE) - Bill Text download pdf

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

                                 4593--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 24, 2009
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- 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, the alcoholic beverage control law, the
  criminal procedure law, the executive law  and  the  general  business
  law, in relation to loitering; and to repeal certain provisions of the
  penal law relating thereto

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

  Section 1. Subdivisions 1, 3 and 7 of section 240.35 of the penal  law
are REPEALED.
  S  2.  Paragraph  (b) of subdivision 17 of section 265.00 of the penal
law, as amended by section 11 of chapter 635 of the  laws  of  1999,  is
amended to read as follows:
  (b)  any of the following offenses defined in the penal law: illegally
using, carrying or  possessing  a  pistol  or  other  dangerous  weapon;
possession of burglar's tools; criminal possession of stolen property in
the  third  degree;  escape  in  the  third degree; jostling; fraudulent
accosting; [that kind of  loitering  defined  in  subdivision  three  of
section  240.35;]  endangering  the  welfare  of  a  child; the offenses
defined in article two hundred thirty-five; issuing abortional articles;
permitting prostitution; promoting prostitution  in  the  third  degree;
stalking  in  the  fourth  degree;  stalking  in  the  third degree; the
offenses defined in article one hundred thirty; the offenses defined  in
article two hundred twenty.
  S  3.  Paragraph  (b) of subdivision 17 of section 265.00 of the penal
law, as amended by section 15 of chapter 635 of the  laws  of  1999,  is
amended to read as follows:
  (b)  any of the following offenses defined in the penal law: illegally
using, carrying or  possessing  a  pistol  or  other  dangerous  weapon;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00089-04-9

S. 4593--A                          2

possession of burglar's tools; criminal possession of stolen property in
the  third  degree;  escape  in  the  third degree; jostling; fraudulent
accosting; [that kind of  loitering  defined  in  subdivision  three  of
section  240.35;]  endangering  the  welfare  of  a  child; the offenses
defined in article two hundred thirty-five; issuing abortional articles;
permitting prostitution; promoting prostitution  in  the  third  degree;
stalking  in  the  third  degree;  stalking  in  the  fourth degree; the
offenses defined in article one hundred thirty; the offenses defined  in
article two hundred twenty.
  S  4.  Paragraph  (g) of subdivision 2 of section 102 of the alcoholic
beverage control law, as amended by chapter 340 of the laws of 1972,  is
amended to read as follows:
  (g)  Violating  subdivisions  six,  [eight,]  ten or eleven of section
seven hundred twenty-two of the former penal law as in force and  effect
immediately  prior  to September first, nineteen hundred sixty-seven, or
violating sections 165.25[,] OR 165.30 [or subdivision three of  section
240.35] of the penal law;
  S  5. Paragraphs (d) and (e) of subdivision 1 of section 160.10 of the
criminal procedure law, paragraph (d) as amended and  paragraph  (e)  as
added  by  chapter  344  of  the  laws  of  1976, are amended to read as
follows:
  (d) [Loitering, as defined in subdivision three of section  240.35  of
the penal law; or
  (e)]  Loitering  for the purpose of engaging in a prostitution offense
as defined in subdivision two of section 240.37 of the penal law.
  S 6. Subdivision (g) of section 130 of the executive law,  as  amended
by chapter 680 of the laws of 1967, is amended to read as follows:
  (g) violating sections two hundred seventy, two hundred seventy-a, two
hundred  seventy-b,  two hundred seventy-c, two hundred seventy-one, two
hundred seventy-five, two hundred seventy-six, five hundred fifty,  five
hundred  fifty-one,  five  hundred  fifty-one-a  and  subdivisions  six,
[eight,] ten or eleven of section seven hundred twenty-two of the former
penal law as in force and effect immediately prior to  September  first,
nineteen hundred sixty-seven, or violating sections 165.25, 165.30[,] OR
subdivision one of section 240.30[, subdivision three of section 240.35]
of the penal law, or violating sections four hundred seventy-eight, four
hundred seventy-nine, four hundred eighty, four hundred eighty-one, four
hundred  eighty-four,  four hundred eighty-nine and four hundred ninety-
one of the judiciary law; or
  S 7. Paragraph (g) of subdivision 2 of section 74 of the general busi-
ness law, as amended by chapter 680 of the laws of 1967, is  amended  to
read as follows:
  (g)  violating  [subdivisions]  SUBDIVISION six [or eight,] of section
seven hundred twenty-two of the former penal law as in force and  effect
immediately  prior  to September first, nineteen hundred sixty-seven, or
violating [sections]  SECTION 165.25[,] OR 165.30 [or subdivision  three
of section 240.35] of the penal law;
  S 8. This act shall take effect immediately.

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Senate Bill S4593

Sponsored By

Archive: Last Bill Status Via A5537 - Signed by Governor

Jun 24, 2010 - Floor Vote

Floor Vote: Jun 24, 2010

Mar 2, 2010 - Codes Committee Vote

Codes Committee Vote: Mar 2, 2010

Jun 2, 2009 - Codes Committee Vote

Codes Committee Vote: Jun 2, 2009

Bill Amendments

2009-S4593 - Details

2009-S4593 - Summary

2009-S4593 - Sponsor Memo

2009-S4593 - Bill Text download pdf

co-Sponsors

2009-S4593A (ACTIVE) - Details

2009-S4593A (ACTIVE) - Summary

2009-S4593A (ACTIVE) - Sponsor Memo

2009-S4593A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4593

Share this bill

Sponsored By

Eric T. Schneiderman

Archive: Last Bill Status Via A5537 - Signed by Governor

Bill Amendments

2009-S4593 - Details

2009-S4593 - Summary

2009-S4593 - Sponsor Memo

2009-S4593 - Bill Text download pdf

co-Sponsors

Antoine M. Thompson

2009-S4593A (ACTIVE) - Details

2009-S4593A (ACTIVE) - Summary

2009-S4593A (ACTIVE) - Sponsor Memo

2009-S4593A (ACTIVE) - Bill Text download pdf

Comments