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

                                  2609

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2009
                               ___________

Introduced  by  M.  of A. REILICH, BARRA, KOLB, ALFANO, FINCH, ERRIGO --
  Multi-Sponsored by -- M. of A.  BACALLES,  BARCLAY,  BURLING,  CROUCH,
  McDONOUGH,  OAKS, SAYWARD, TEDISCO, TOWNSEND -- read once and referred
  to the Committee on Codes

AN ACT to amend the penal law, in relation to  increasing  the  criminal
  penalties  for  sexual  performances  by  a  child  and in relation to
  providing for consecutive sentencing upon certain multiple convictions

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

  Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
amended  by  chapter  1  of  the  laws  of  2000, are amended to read as
follows:
  1. "Sexual performance" means any performance or part thereof  which[,
for purposes of section 263.16 of this article,] includes sexual conduct
by  a  child less than [sixteen] EIGHTEEN years of age [or, for purposes
of section 263.05 or 263.15 of this article, includes sexual conduct  by
a child less than seventeen years of age].
  2.  "Obscene  sexual  performance"  means  any performance which[, for
purposes of section 263.11 of this article,] includes sexual conduct  by
a  child  less than [sixteen] EIGHTEEN years of age [or, for purposes of
section 263.10 of this article, includes sexual conduct by a child  less
than  seventeen years of age,] in any material which is obscene, as such
term is defined in section 235.00 of this chapter.
  S 2. The penal law is amended by adding a new section 263.03  to  read
as follows:
S 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE FIRST DEGREE  IF  KNOWING  THE  CHARACTER  AND  CONTENT  THEREOF  HE
EMPLOYS,  AUTHORIZES OR INDUCES A CHILD LESS THAN TWELVE YEARS OF AGE TO
ENGAGE IN A SEXUAL PERFORMANCE OR BEING  A  PARENT,  LEGAL  GUARDIAN  OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02164-02-9

              

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CUSTODIAN  OF SUCH CHILD, HE CONSENTS TO THE PARTICIPATION BY SUCH CHILD
IN A SEXUAL PERFORMANCE.
  USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
B FELONY.
  S 3. Section 263.05 of the penal law, as amended by chapter 1  of  the
laws of 2000, is amended to read as follows:
 S 263.05 Use of a child in a sexual performance IN THE SECOND DEGREE.
  A  person  is  guilty of the use of a child in a sexual performance IN
THE SECOND DEGREE if  knowing  the  character  and  content  thereof  he
employs,  authorizes  or  induces a child less than [seventeen] EIGHTEEN
years of age to engage in a sexual performance or being a parent,  legal
guardian or custodian of such child, he consents to the participation by
such child in a sexual performance.
  Use of a child in a sexual performance IN THE SECOND DEGREE is a class
C felony.
  S  4.  The penal law is amended by adding a new section 263.08 to read
as follows:
S 263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
           DEGREE.
  A PERSON IS GUILTY OF PROMOTING AN OBSCENE  SEXUAL  PERFORMANCE  BY  A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF,  HE  PRODUCES,  DIRECTS  OR  PROMOTES  ANY OBSCENE PERFORMANCE WHICH
INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS C FELONY.
  S 5. Section 263.10 of the penal law, as amended by chapter 1  of  the
laws of 2000, is amended to read as follows:
S  263.10  Promoting  an  obscene  sexual  performance by a child IN THE
           SECOND DEGREE.
  A person is guilty of promoting an obscene  sexual  performance  by  a
child IN THE SECOND DEGREE when, knowing the character and content ther-
eof,  he  produces,  directs  or  promotes any obscene performance which
includes sexual conduct by a child less than [seventeen] EIGHTEEN  years
of age.
  Promoting  an  obscene  sexual  performance  by  a child IN THE SECOND
DEGREE is a class D felony.
  S 6. Section 263.11 of the penal law, as added by chapter  11  of  the
laws of 1996, is amended to read as follows:
S 263.11 Possessing an obscene sexual performance by a child.
  A  person  is  guilty of possessing an obscene sexual performance by a
child when, knowing the character and content thereof, he knowingly  has
in  his  possession  or  control  any obscene performance which includes
sexual conduct by a child less than [sixteen] EIGHTEEN years of age.
  Possessing an obscene sexual performance by a child is a class E felo-
ny.
  S 7. The penal law is amended by adding a new section 263.13  to  read
as follows:
S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE PRODUC-
ES, DIRECTS OR PROMOTES ANY PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT BY
A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING  A  SEXUAL  PERFORMANCE  BY A CHILD IN THE FIRST DEGREE IS A
CLASS C FELONY.
  S 8. Section 263.15 of the penal law, as amended by chapter 1  of  the
laws of 2000, is amended to read as follows:

A. 2609                             3

S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.
  A person is guilty of promoting a sexual performance by a child IN THE
SECOND  DEGREE  when,  knowing  the  character  and  content thereof, he
produces, directs or promotes  any  performance  which  includes  sexual
conduct by a child less than [seventeen] EIGHTEEN years of age.
  Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
class D felony.
  S 9. Section 263.16 of the penal law, as added by chapter  11  of  the
laws of 1996, is amended to read as follows:
S 263.16 Possessing a sexual performance by a child.
  A person is guilty of possessing a sexual performance by a child when,
knowing  the  character  and  content  thereof,  he knowingly has in his
possession or control any performance which includes sexual conduct by a
child less than [sixteen] EIGHTEEN years of age.
  Possessing a sexual performance by a child is a class E felony.
  S 10. Subdivision 1 of section 263.20 of the penal law, as amended  by
chapter 1 of the laws of 2000, is amended to read as follows:
  1.  Under  this  article,  it shall be an affirmative defense that the
defendant in good faith reasonably believed the person appearing in  the
performance  was, for purposes of section 263.11 or 263.16 of this arti-
cle, sixteen years of age or over or, for purposes  of  section  263.05,
263.10  or  263.15 of this article, [seventeen] EIGHTEEN years of age or
over.
  S 11. The opening paragraph of subdivision  1  and  subdivision  2  of
section  70.25  of the penal law, the opening paragraph of subdivision 1
as amended by chapter 372 of the laws  of  1981  and  subdivision  2  as
amended  by chapter 56 of the laws of 1984, are amended and a new subdi-
vision 6 is added to read as follows:
  Except as provided in subdivisions two, two-a [and], five AND  SIX  of
this  section,  when multiple sentences of imprisonment are imposed on a
person at the same time, or when a person who is subject to any  undisc-
harged  term  of  imprisonment  imposed at a previous time by a court of
this state is sentenced to  an  additional  term  of  imprisonment,  the
sentence or sentences imposed by the court shall run either concurrently
or consecutively with respect to each other and the undischarged term or
terms  in  such  manner as the court directs at the time of sentence. If
the court does not specify the manner in which a sentence imposed by  it
is to run, the sentence shall run as follows:
  2.  When more than one sentence of imprisonment is imposed on a person
for two or more offenses committed through a single act or omission,  or
through  an  act  or  omission  which  in  itself constituted one of the
offenses and also was a material element of the  other,  the  sentences,
except  if  one  or more of such sentences is for a violation of section
263.03, 263.05, 263.08, 263.10, 263.13, 263.15, OR 270.20 of this  chap-
ter, must run concurrently.
  6.  WHEN  A PERSON IS CONVICTED OF USE OF A CHILD IN A SEXUAL PERFORM-
ANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03 OF THIS CHAPTER OR
USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE  AS  DEFINED
IN  SECTION  263.05  OF  THIS  CHAPTER  OR  PROMOTING  AN OBSCENE SEXUAL
PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION  263.08
OF THIS CHAPTER OR PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
THE  SECOND  DEGREE  AS  DEFINED  IN  SECTION  263.10 OF THIS CHAPTER OR
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
IN SECTION 263.13 OF THIS CHAPTER OR PROMOTING A SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15 OF THIS CHAPTER,

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AND ANY OTHER CRIME, THE SENTENCES FOR SUCH  CRIMES  SHALL  RUN  CONSEC-
UTIVELY.
  S  12.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law.