S T A T E   O F   N E W   Y O R K
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                                  4978

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

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

AN ACT to amend the penal law, in  relation  to  enacting  the  criminal
  street gang related crimes act

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

  Section 1. Short title. This act shall be known and may  be  cited  as
the "criminal street gang related crimes act".
  S  2.  The penal law is amended by adding a new article 486 to read as
follows:
                               ARTICLE 486
                   CRIMINAL STREET GANG RELATED CRIMES
SECTION 486.00 LEGISLATIVE FINDINGS.
        486.05 DEFINITIONS.
        486.10 CRIMINAL STREET GANG RELATED CRIME.
        486.15 SENTENCING.
S 486.00 LEGISLATIVE FINDINGS.
  THE LEGISLATURE FINDS AND DETERMINES AS FOLLOWS:  GANG  RELATED  CRIME
HAS  CONTINUED TO INCREASE IN AMERICAN SOCIETY. IT IS NO LONGER UNCOMMON
FOR GANGS TO SOLICIT YOUNGSTERS IN THE ELEMENTARY  SCHOOLS  TO  JOIN  IN
THEIR  CRIMINAL  ACTIVITY. TOUGHER, NEW LAWS ARE REQUIRED TO BREAK THESE
GANGS. IT IS TIME TO START GOING AFTER GANGS AS WE  DID  WITH  ORGANIZED
CRIME.
  THIS  ARTICLE  INCREASES PENALTIES FOR VARIOUS VIOLENT CRIMES THAT ARE
PERPETRATED IN THE FURTHERANCE OF GANG ACTIVITY. THE CONCEPT IS  SIMILAR
TO  THE  LAW  THE  STATE  ENACTED TO DEAL WITH BIAS RELATED CRIMES.  THE
PENALTY IS NOT ONLY GIVEN FOR THE UNDERLYING ASSAULT, BUT ALSO  FOR  THE
FACT THAT IT WAS BIAS RELATED. IN THIS CASE, FOR EXAMPLE, AN E FELONY IS
RAISED TO A D FELONY WHERE THE VIOLENT CRIME WAS COMMITTED IN THE FURTH-
ERANCE  OF GANG ACTIVITY. THIS ARTICLE MIRRORS LEGISLATION THAT HAS BEEN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07609-01-9

              

S. 4978                             2

ENACTED IN MANY OTHER STATES INCLUDING THE STATES OF NEW  JERSEY,  CALI-
FORNIA AND FLORIDA.
S 486.05 DEFINITIONS.
  FOR THE PURPOSES OF THIS ARTICLE:
  1.  "CRIMINAL STREET GANG" MEANS ANY ONGOING ORGANIZATION, ASSOCIATION
OR GROUP OF THREE OR MORE PERSONS, WHETHER FORMAL OR INFORMAL, HAVING AS
ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF  ONE  OR  MORE  CRIMINAL
ACTS,  WHICH HAS AN IDENTIFIABLE NAME OR IDENTIFYING SIGN OR SYMBOL, AND
WHOSE MEMBERS INDIVIDUALLY OR COLLECTIVELY ENGAGE IN OR HAVE ENGAGED  IN
CRIMINAL STREET GANG ACTIVITY.
  2. "CRIMINAL STREET GANG MEMBER" MEANS A PERSON TO WHOM TWO OR MORE OF
THE FOLLOWING CRITERIA APPLY:
  (A) ADMITS TO CRIMINAL STREET GANG MEMBERSHIP;
  (B)  IS  IDENTIFIED  AS  A CRIMINAL STREET GANG MEMBER BY A DOCUMENTED
RELIABLE INFORMANT;
  (C) RESIDES IN OR FREQUENTS A PARTICULAR CRIMINAL STREET  GANG'S  AREA
AND  ADOPTS  ITS  STYLE OF DRESS, ITS USE OF HAND SIGNALS OR ITS TATTOOS
AND ASSOCIATES WITH KNOWN CRIMINAL STREET GANG MEMBERS;
  (D) HAS BEEN ARRESTED MORE THAN ONCE IN THE COMPANY OF KNOWN  CRIMINAL
STREET  GANG MEMBERS FOR OFFENSES WHICH ARE CONSISTENT WITH USUAL CRIMI-
NAL STREET GANG ACTIVITY;
  (E) IS IDENTIFIED  AS  A  CRIMINAL  STREET  GANG  MEMBER  BY  PHYSICAL
EVIDENCE, SUCH AS PHOTOGRAPHS OR OTHER DOCUMENTATION;
  (F)  HAS  BEEN  STOPPED  IN  THE COMPANY OF KNOWN CRIMINAL STREET GANG
MEMBERS FOUR OR MORE TIMES;
  (G) HAS BEEN IDENTIFIED AS A CRIMINAL STREET GANG MEMBER BY OTHER  LAW
ENFORCEMENT AGENCIES; OR
  (H) IS IDENTIFIED AS A CRIMINAL STREET GANG MEMBER BY A FAMILY MEMBER.
  3.  "CRIMINAL  STREET GANG ACTIVITY" MEANS THE COMMISSION OR ATTEMPTED
COMMISSION OF, OR SOLICITATION OR CONSPIRACY  TO  COMMIT,  TWO  OR  MORE
FELONY ACTS THAT:
  (A) WERE COMMITTED ON SEPARATE OCCASIONS WITHIN A FIVE YEAR PERIOD;
  (B)  ARE  NEITHER  ISOLATED  INCIDENTS,  NOR  SO  CLOSELY  RELATED AND
CONNECTED IN POINT OF TIME OR CIRCUMSTANCE OF COMMISSION AS  TO  CONSTI-
TUTE  A  CRIMINAL  OFFENSE  OR  CRIMINAL  TRANSACTION, AS SUCH TERMS ARE
DEFINED IN SECTION 40.10 OF THE CRIMINAL PROCEDURE LAW; AND
  (C) FURTHER A CRIMINAL STREET GANG BY: (I) BEING RELATED TO ONE ANOTH-
ER THROUGH A COMMON SCHEME OR PLAN; OR (II) WERE  COMMITTED,  SOLICITED,
REQUESTED,  IMPORTUNED OR INTENTIONALLY AIDED BY PERSONS ACTING WITH THE
MENTAL CULPABILITY REQUIRED FOR THE COMMISSION OF SUCH FELONY  ACTS  AND
SUCH PERSON IS A MEMBER OF SUCH CRIMINAL STREET GANG.
S 486.10 CRIMINAL STREET GANG RELATED CRIME.
  1.  A  PERSON  COMMITS A CRIMINAL STREET GANG RELATED CRIME WHEN HE OR
SHE COMMITS A SPECIFIED OFFENSE AND EITHER:
  (A) SUCH PERSON IS A CRIMINAL STREET GANG MEMBER, OR
  (B) SUCH PERSON'S CONDUCT IS IN RELATION TO INITIATION INTO A CRIMINAL
STREET GANG, OR
  (C) SUCH PERSON'S CONDUCT IS  IN  RELATION  TO  CRIMINAL  STREET  GANG
ACTIVITY.
  2. A "SPECIFIED OFFENSE" IS AN OFFENSE DEFINED BY ANY OF THE FOLLOWING
PROVISIONS  OF  THIS  CHAPTER:    SECTION  120.00  (ASSAULT IN THE THIRD
DEGREE); SECTION 120.05 (ASSAULT IN THE SECOND DEGREE);  SECTION  120.10
(ASSAULT IN THE FIRST DEGREE); SECTION 120.12 (AGGRAVATED ASSAULT UPON A
PERSON  LESS  THAN  ELEVEN  YEARS  OLD); SECTION 120.13 (MENACING IN THE
FIRST DEGREE); SECTION 120.14 (MENACING IN THE SECOND  DEGREE);  SECTION
120.15  (MENACING  IN THE THIRD DEGREE); SECTION 120.20 (RECKLESS ENDAN-

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GERMENT IN THE SECOND DEGREE); SECTION 120.25 (RECKLESS ENDANGERMENT  IN
THE  FIRST  DEGREE);  SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN
THE SECOND DEGREE); SUBDIVISION ONE,  TWO  OR  FOUR  OF  SECTION  125.20
(MANSLAUGHTER IN THE FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND
DEGREE);  SECTION 120.45 (STALKING IN THE FOURTH DEGREE); SECTION 120.50
(STALKING IN THE THIRD DEGREE); SECTION 120.55 (STALKING IN  THE  SECOND
DEGREE);  SECTION 120.60 (STALKING IN THE FIRST DEGREE); SUBDIVISION ONE
OF SECTION 130.35 (RAPE IN THE FIRST DEGREE); SUBDIVISION ONE OF SECTION
130.50 (CRIMINAL SEXUAL ACT IN THE FIRST  DEGREE);  SUBDIVISION  ONE  OF
SECTION  130.65    (SEXUAL  ABUSE IN THE FIRST DEGREE); PARAGRAPH (A) OF
SUBDIVISION ONE OF SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN THE SECOND
DEGREE); PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 130.70  (AGGRAVATED
SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 135.05 (UNLAWFUL IMPRISONMENT
IN  THE  SECOND  DEGREE);  SECTION  135.10 (UNLAWFUL IMPRISONMENT IN THE
FIRST DEGREE); SECTION 135.20 (KIDNAPPING IN THE SECOND DEGREE); SECTION
135.25 (KIDNAPPING IN THE FIRST DEGREE); SECTION 135.60 (COERCION IN THE
SECOND DEGREE); SECTION 135.65 (COERCION IN THE FIRST  DEGREE);  SECTION
140.10 (CRIMINAL TRESPASS IN THE THIRD DEGREE); SECTION 140.15 (CRIMINAL
TRESPASS IN THE SECOND DEGREE); SECTION 140.17 (CRIMINAL TRESPASS IN THE
FIRST  DEGREE);  SECTION  140.20 (BURGLARY IN THE THIRD DEGREE); SECTION
140.25 (BURGLARY IN THE SECOND DEGREE); SECTION 140.30 (BURGLARY IN  THE
FIRST  DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE FOURTH DEGREE);
SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE);  SECTION  145.10
(CRIMINAL  MISCHIEF  IN  THE  SECOND  DEGREE);  SECTION 145.12 (CRIMINAL
MISCHIEF IN THE FIRST DEGREE);  SECTION  150.05  (ARSON  IN  THE  FOURTH
DEGREE);  SECTION  150.10  (ARSON  IN  THE THIRD DEGREE); SECTION 150.15
(ARSON IN THE  SECOND  DEGREE);  SECTION  150.20  (ARSON  IN  THE  FIRST
DEGREE);  SECTION  155.25 (PETIT LARCENY); SECTION 155.30 (GRAND LARCENY
IN THE FOURTH DEGREE);  SECTION  155.35  (GRAND  LARCENY  IN  THE  THIRD
DEGREE);  SECTION  155.40  (GRAND LARCENY IN THE SECOND DEGREE); SECTION
155.42 (GRAND LARCENY IN THE FIRST DEGREE); SECTION 160.05  (ROBBERY  IN
THE  THIRD  DEGREE);  SECTION  160.10  (ROBBERY  IN  THE SECOND DEGREE);
SECTION 160.15 (ROBBERY IN THE FIRST DEGREE); SECTION 240.25 (HARASSMENT
IN THE FIRST DEGREE); SUBDIVISION ONE, TWO OR  FOUR  OF  SECTION  240.30
(AGGRAVATED HARASSMENT IN THE SECOND DEGREE); OR ANY ATTEMPT OR CONSPIR-
ACY TO COMMIT ANY OF THE FOREGOING OFFENSES.
S 486.15 SENTENCING.
  1.  WHEN A PERSON IS CONVICTED OF A CRIMINAL STREET GANG RELATED CRIME
PURSUANT TO THIS ARTICLE, AND THE SPECIFIED OFFENSE IS A VIOLENT  FELONY
OFFENSE,  AS  DEFINED  IN  SECTION  70.02  OF THIS CHAPTER, THE CRIMINAL
STREET GANG RELATED  CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
  2. WHEN A PERSON IS CONVICTED OF A CRIMINAL STREET GANG RELATED  CRIME
PURSUANT TO THIS ARTICLE AND THE SPECIFIED OFFENSE IS A MISDEMEANOR OR A
CLASS  C, D OR E FELONY, THE CRIMINAL STREET GANG RELATED CRIME SHALL BE
DEEMED TO BE ONE CATEGORY HIGHER THAN THE SPECIFIED OFFENSE THE  DEFEND-
ANT  COMMITTED, OR ONE CATEGORY HIGHER THAN THE OFFENSE LEVEL APPLICABLE
TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO  COMMIT  A
SPECIFIED OFFENSE, WHICHEVER IS APPLICABLE.
  3.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIMINAL STREET GANG RELATED CRIME PURSUANT TO THIS ARTI-
CLE AND THE SPECIFIED OFFENSE IS A CLASS B FELONY:
  (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
SIX  YEARS  IF  THE  DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT  YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;

S. 4978                             4

  (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
  (D)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER; AND
  (E)  THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN  YEARS  IF  THE  DEFENDANT  IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIMINAL STREET GANG RELATED CRIME PURSUANT TO THIS ARTI-
CLE AND THE SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM  PERIOD
OF THE INDETERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
  5.  THE  PROVISIONS  OF  THIS SECTION SHALL NOT APPLY WHERE THE COURT,
HAVING REGARD TO THE NATURE AND  CIRCUMSTANCES  OF  THE  CRIME  AND  THE
HISTORY  AND  CHARACTER  OF THE DEFENDANT, FINDS ON THE RECORD THAT SUCH
ADDITIONAL TERM OR SENTENCE WOULD BE UNDULY HARSH AND THAT NOT  IMPOSING
SUCH  ADDITIONAL  TERM  OR  SENTENCE WOULD BE CONSISTENT WITH THE PUBLIC
SAFETY AND WOULD NOT DEPRECATE THE SERIOUSNESS OF THE CRIME.
  S 3. Local laws; preemption.   Nothing in this  act  shall  prevent  a
local  governing  body  from adopting and enforcing laws consistent with
this act relating to criminal street gang activity on school grounds and
criminal street gang violence.  Where local laws duplicate or supplement
this act, this act shall be construed as providing alternative  remedies
and not as preempting such local laws.
  S 4. Severability. If any part or provision of this act, or the appli-
cation  thereof  to  any  person  or  circumstance, is held invalid, the
remainder of  this  act,  including  the  application  of  the  part  or
provision  to  other  persons  or  circumstances,  shall not be affected
thereby and shall continue in full force and effect. To  this  end,  the
provisions of this act are severable.
  S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.