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

                                   768

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 15, 2009
                               ___________

Introduced  by  Sens.  LARKIN, ALESI, BONACIC, MAZIARZ -- 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 cemetery desecration and
  cemetery desecration of a veteran

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

  Section  1. Section 145.22 of the penal law, as amended by chapter 353
of the laws of 2007, is amended to read as follows:
S 145.22 Cemetery desecration in the second degree.
  A person is guilty of cemetery desecration in the second degree  when:
(a)  with  intent  to damage property of another person[,] and having no
right to do so nor any reasonable ground to believe that he OR  SHE  has
such  right,  he  OR  SHE  damages any real or personal property USED OR
maintained as a cemetery,  MAUSOLEUM,  COLUMBARIUM,  LOT,  plot,  grave,
burial  place, NICHE, CRYPT, VAULT or other place of interment OR TEMPO-
RARY STORAGE of human remains OR CREMATED HUMAN REMAINS,  OR  ANY  MONU-
MENT,  HEADSTONE,  MARKER,  MEMORIAL,  PLAQUE,  STATUE, VASE, URN, DECO-
RATION, FLAG HOLDER,  BADGE,  SHIELD,  ITEM  OF  MEMORABILIA,  OR  OTHER
EMBELLISHMENT THAT IS LOCATED ON OR ADJACENT TO, OR IS OTHERWISE ASSOCI-
ATED  WITH, ANY SUCH CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE,
BURIAL PLACE, NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPO-
RARY STORAGE; or
  (b) with intent to steal personal property, he OR SHE steals  personal
property  which  is  located at a cemetery, MAUSOLEUM, COLUMBARIUM, LOT,
plot, grave, burial place, NICHE, CRYPT, VAULT or other place of  inter-
ment OR TEMPORARY STORAGE of human remains OR CREMATED HUMAN REMAINS, OR
ANY  MONUMENT,  HEADSTONE,  MARKER, MEMORIAL, PLAQUE, STATUE, VASE, URN,
DECORATION, FLAG HOLDER, BADGE, SHIELD, ITEM OF  MEMORABILIA,  OR  OTHER
EMBELLISHMENT THAT IS LOCATED ON OR ADJACENT TO, OR IS OTHERWISE ASSOCI-
ATED  WITH, ANY SUCH CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04192-02-9
              

S. 768                              2

BURIAL PLACE, NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPO-
RARY STORAGE, and which property is owned by the person or  organization
which  maintains or owns such place or the estate, next-of-kin or repre-
sentatives of the deceased person interred OR STORED there.
  Cemetery desecration in the second degree is a class A misdemeanor.
  S 2. Section 145.23 of the penal law, as amended by chapter 353 of the
laws of 2007, is amended to read as follows:
S 145.23 Cemetery desecration in the first degree.
  A  person  is guilty of cemetery desecration in the first degree when,
with intent to damage property of another person[,] and having no  right
to  do  so  nor any reasonable ground to believe that he OR SHE has such
right, he OR SHE:
  (a) damages any real or personal property  USED  OR  maintained  as  a
cemetery, MAUSOLEUM, COLUMBARIUM, LOT, plot, grave, burial place, NICHE,
CRYPT,  VAULT  or other place of interment OR TEMPORARY STORAGE of human
remains OR CREMATED HUMAN REMAINS, OR ANY MONUMENT,  HEADSTONE,  MARKER,
MEMORIAL,  PLAQUE,  STATUE,  VASE,  URN, DECORATION, FLAG HOLDER, BADGE,
SHIELD, ITEM OF MEMORABILIA, OR OTHER EMBELLISHMENT THAT IS  LOCATED  ON
OR  ADJACENT  TO,  OR  IS  OTHERWISE ASSOCIATED WITH, ANY SUCH CEMETERY,
MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE, BURIAL  PLACE,  NICHE,  CRYPT,
VAULT,  OR  OTHER  PLACE OF INTERMENT OR TEMPORARY STORAGE, in an amount
exceeding two hundred fifty dollars; or
  (b) with intent to steal personal property, he OR SHE steals  personal
property, the value of which exceeds two hundred fifty dollars, which is
located  at a cemetery, MAUSOLEUM, COLUMBARIUM, LOT, plot, grave, burial
place, NICHE, CRYPT, VAULT or other  place  of  interment  OR  TEMPORARY
STORAGE  of  human  remains  OR CREMATED HUMAN REMAINS, OR ANY MONUMENT,
HEADSTONE, MARKER, MEMORIAL, PLAQUE, STATUE, VASE, URN, DECORATION, FLAG
HOLDER, BADGE, SHIELD, ITEM OF MEMORABILIA, OR OTHER EMBELLISHMENT  THAT
IS  LOCATED ON OR ADJACENT TO, OR IS OTHERWISE ASSOCIATED WITH, ANY SUCH
CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE, BURIAL PLACE, NICHE,
CRYPT, VAULT, OR OTHER PLACE OF  INTERMENT  OR  TEMPORARY  STORAGE,  and
which property is owned by the person or organization which maintains or
owns  such  place  or  the estate, next-of-kin or representatives of the
deceased person interred there; or
  (c) commits the crime of cemetery desecration in the second degree  as
defined  in  section  145.22  of  this  article  and has been previously
convicted of the crime of cemetery desecration  in  the  second  degree,
CEMETERY  DESECRATION  IN  THE  FIRST  DEGREE, AGGRAVATED CEMETERY DESE-
CRATION IN THE SECOND DEGREE, AGGRAVATED  CEMETERY  DESECRATION  IN  THE
FIRST  DEGREE  OR CEMETERY DESECRATION OF A VETERAN within the preceding
five years.
  Cemetery desecration in the first degree is a class E felony.
  S 3. Section 145.27 of the penal law, as added by chapter 376  of  the
laws of 2007, is amended to read as follows:
S 145.27 Aggravated cemetery desecration in the first degree.
  A  person  is  guilty  of aggravated cemetery desecration in the first
degree when such person commits the crime of aggravated  cemetery  dese-
cration  in  the  second degree and has been previously convicted within
the past five years of the crime of cemetery desecration in  the  second
degree  as  defined  in  section  145.22 of this article, cemetery dese-
cration in the first degree as defined in section 145.23 of this article
[or], aggravated cemetery desecration in the second degree as defined in
section 145.26 of this article OR CEMETERY DESECRATION OF A  VETERAN  AS
DEFINED IN SECTION 145.29 OF THIS ARTICLE.

S. 768                              3

  Aggravated cemetery desecration in the first degree is a class D felo-
ny.
  S  4.  The  penal law is amended by adding two new sections 145.28 and
145.29 to read as follows:
S 145.28 CEMETERY DESECRATION OF A VETERAN; DEFINITION OF "VETERAN".
  FOR THE PURPOSES OF SECTION 145.29 OF THIS ARTICLE, THE TERM "VETERAN"
MEANS A DECEASED PERSON WHO:
  1. (A) SERVED IN THE ACTIVE MILITARY, NAVAL, OR AIR SERVICE  DURING  A
WAR IN WHICH THE UNITED STATES ENGAGED; OR
  (B) SERVED IN THE RESERVE COMPONENT OF THE ARMED FORCES, THE ORGANIZED
MILITIA OF THE STATE; OR
  (C)  IS  ELIGIBLE TO RECEIVE A STANDARD GOVERNMENT HEADSTONE OR MARKER
FOR INSTALLATION IN A PRIVATE CEMETERY OR  A  STATE  VETERANS'  CEMETERY
PROVIDED  BY THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS WHO SERVED
IN THE UNITED STATES ARMED FORCES; AND
  2. WAS DISCHARGED OR RELEASED THEREFROM UNDER  CONDITIONS  OTHER  THAN
DISHONORABLE.
  FOR THE PURPOSES OF THIS SECTION "RESERVE COMPONENT OF THE ARMED FORC-
ES  OF THE UNITED STATES" MEANS THE ARMY RESERVE, THE NAVAL RESERVE, THE
MARINE CORPS RESERVE, THE AIR FORCE RESERVE, THE  COAST  GUARD  RESERVE,
THE  ARMY NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD
OF THE UNITED STATES AND WHOSE SERVICE WAS DURING A  WAR  IN  WHICH  THE
UNITED  STATES  ENGAGED.    ORGANIZED  MILITIA  OF THE STATE, SHALL MEAN
SERVICE OTHER THAN PERMANENT, FULL-TIME SERVICE IN THE  MILITARY  FORCES
OF  THE STATE OF NEW YORK INCLUDING BUT NOT LIMITED TO THE NEW YORK ARMY
NATIONAL GUARD, THE NEW YORK AIR NATIONAL GUARD, THE NAVAL  MILITIA  AND
THE  NEW  YORK  GUARD (NOT INCLUDING THE INACTIVE NATIONAL GUARD AND NOT
INCLUDING THE NEW YORK GUARD IN AN INACTIVE STATUS).
S 145.29 CEMETERY DESECRATION OF A VETERAN.
  A PERSON IS GUILTY OF CEMETERY DESECRATION OF  A  VETERAN  WHEN,  WITH
INTENT  TO  DAMAGE THE PROPERTY OF ANOTHER PERSON AND HAVING NO RIGHT TO
DO SO NOR ANY REASONABLE GROUND TO BELIEVE  THAT  HE  OR  SHE  HAS  SUCH
RIGHT, HE OR SHE INTENTIONALLY DAMAGES:
  (A)  ANY  REAL  OR  PERSONAL  PROPERTY THAT HE OR SHE KNOWS IS USED OR
MAINTAINED AS A CEMETERY,  MAUSOLEUM,  COLUMBARIUM,  LOT,  PLOT,  GRAVE,
BURIAL  PLACE, NICHE, CRYPT, VAULT OR OTHER PLACE OF INTERMENT OR TEMPO-
RARY STORAGE PLACE OF A VETERAN; OR
  (B) ANY MONUMENT, HEADSTONE, MARKER, MEMORIAL, PLAQUE,  STATUE,  VASE,
URN,  DECORATION,  FLAG  HOLDER,  BADGE,  SHIELD, ITEM OF MEMORABILIA OR
OTHER EMBELLISHMENT THAT IS LOCATED ON OR ADJACENT TO, OR  IS  OTHERWISE
ASSOCIATED  WITH,  ANY SUCH CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT,
GRAVE, BURIAL PLACE, NICHE, CRYPT, VAULT OR OTHER PLACE OF INTERMENT  OR
TEMPORARY STORAGE THAT HE OR SHE KNOWS BELONGS TO A VETERAN.
  CEMETERY DESECRATION OF A VETERAN IS A CLASS E FELONY.
  S  5.  Section  60.29 of the penal law, as added by chapter 165 of the
laws of 1997, is amended to read as follows:
S 60.29 Authorized disposition; cemetery desecration.
  When a person is convicted of an offense  defined  in  section  145.22
[or],  145.23, OR 145.29 of this chapter or of an attempt to commit such
an offense, and the sentence imposed by the court  for  such  conviction
includes a sentence of probation or conditional discharge, such sentence
shall,  where appropriate, be in accordance with paragraph (h) of subdi-
vision two of section 65.10 of this  [article]  TITLE  as  such  section
relates to cemetery crime.

S. 768                              4

  S 6. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as  amended  by  chapter  508 of the laws of 2001, is amended to read as
follows:
  (h) Perform services for a public or not-for-profit corporation, asso-
ciation,  institution,  or agency, including but not limited to services
for the division of substance abuse services, services in an appropriate
community program for removal of graffiti from public or private proper-
ty, including  any  property  damaged  in  the  underlying  offense,  or
services  for  the  maintenance  and repair of real or personal property
USED OR maintained as a cemetery,  MAUSOLEUM,  COLUMBARIUM,  LOT,  plot,
grave, burial place, NICHE, CRYPT, VAULT, or other place of interment OR
TEMPORARY  STORAGE  of  human  remains OR CREMATED HUMAN REMAINS, OR ANY
MONUMENT, HEADSTONE, MARKER, MEMORIAL, PLAQUE, STATUE, VASE, URN,  DECO-
RATION,  FLAG  HOLDER,  BADGE,  SHIELD,  ITEM  OF  MEMORABILIA, OR OTHER
EMBELLISHMENT THAT IS LOCATED ON OR ADJACENT TO, OR IS OTHERWISE ASSOCI-
ATED WITH, ANY SUCH CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT,  GRAVE,
BURIAL PLACE, NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPO-
RARY  STORAGE.    Provided,  however,  that  the performance of any such
services shall not result in the displacement of employed workers or  in
the  impairment  of  existing  contracts  for  services,  nor  shall the
performance of any such services be required or permitted in any  estab-
lishment  involved in any labor strike or lockout.  The court may estab-
lish provisions for the early termination of a sentence of probation  or
conditional discharge pursuant to the provisions of subdivision three of
section  410.90  of  the criminal procedure law after such services have
been completed. Such sentence may only be imposed upon conviction  of  a
misdemeanor,  violation,  or  class  D  or class E felony, or a youthful
offender finding replacing any such conviction, where the defendant  has
consented to the amount and conditions of such service;
  S 7. This act shall take effect on the one hundred eightieth day after
it  shall  have become a law; provided, however, that the cemetery board
in the division of cemeteries in the department of state may  promulgate
rules  and  regulations  prior  to  such effective date to implement the
provisions of this act.