NY State Senate Bill 2009-S7823

Senate Bill S7823

2009-2010 Legislative Session

Repeals subdivisions 1, 3 and 7 of section 240.35 of the penal law, relating to the offense of loitering, and makes conforming technical amendments

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Archive: Last Bill Status - In Senate Committee Codes Committee

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 13, 2010	referred to codes

2009-S7823 (ACTIVE) - Details

See Assembly Version of this Bill:: A11227
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Rpld §240.35 subs 1, 3 & 7, §265.00 sub 17 ¶(b), amd §265.00, Pen L; amd §160.10, CP L; amd §130, Exec L; amd §74, Gen Bus L

2009-S7823 (ACTIVE) - Summary

Relates to the offense of loitering, and makes conforming technical amendments in the penal law, the alcoholic beverage control law, the criminal procedure law, the executive law and the general business law.

2009-S7823 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7823

 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 making conforming technical amendments; to repeal
subdivisions 1, 3 and 7 of section 240.35 of the penal law, relating
to the offense of loitering; and to repeal certain provisions of the
penal law relating thereto


 PURPOSE :
To strike out loitering provisions in the New York State Penal Law
which were held unconstitutional by the New York State Court of
Appeals in 1983. The actual statute, §240J2 was never amended to
strike out the unconstitutional subsections.

 SUMMARY OF PROVISIONS :
Section One of the bill repeals Subdivisions (1),(3) and (7) of
§240.30 of the Penal Law.
(Loitering)

Section 2 amends paragraph of §265.00 of the Penal Law to remove
references to §240.30(1)(3) and (7)

Sections 3 amends subdivision 17 of § 265.00 of the Penal Law to

remove references to §240(1)(3) and (7).

Section 4 amends paragraph (g) of subdivision 2 of § 102 of the
Alcoholic Beverage Control Law to remove references to §240.30(1)(3)
and (7)

 EXISTING LAW :
In 1983, in the Court of Appeals case People v. Uplinger, 460 N.Y.S.2d
514 struck down specific loitering provisions found in §240.35 of the
Penal Law. However, these sections were never removed from the Penal
Law.

 JUSTIFICATION :
Recently, U.S. District Court judge Scheindlin (Casale v. Kelly, 80
Civ. 2173 (SAS))(S.D.N.Y.)) held New York City in contempt of court
for failure to cease enforcing the loitering laws that were stricken
down as unconstitutional by the New York State Court of Appeals in
1983 (People v. Uplinger, 460 N.Y.S.2d 514). The Court of Appeals case
held that since the sodomy statutes were unconstitutional, the state
could no longer penalize the act of asking another person to engage in
now legal conduct (although actually engaging in sexual activity at a
public place still remains illegal).

However it has become clear that the New York City Police Department
and others continued to arrest and charge men for the act of
loitering. Since 1989 tens of thousands of people have been arrested
and charged with a crime using this now defunct provision of the penal
law.

Judge Scheindlin condemned the NYPD for targeting the poor and gay men
"cruising" for sex using the loitering law.

Those charged under the loitering provision endure the indignity of
being detained, booked, charged, held in jail, brought to court and
left with an arrest record. While the vast majority of these charges
are dropped by the court due to the unconstitutionality of the
provisions, law enforcement continues to aggressively utilize these
statutes - which have never been physically removed from the Penal
Law.

This bill will repeal and strikeout those loitering provisions that
were deem unconstitutional by the Court of Appeals in 1989 and
reaffirmed by the Federal Southern District of New York on April 26,
2010.

 LEGISLATIVE HISTORY :
New Bill.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.

2009-S7823 (ACTIVE) - Bill Text download pdf

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

                                  7823

                            I N  S E N A T E

                              May 13, 2010
                               ___________

Introduced  by  Sen.  DUANE  -- 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 making conforming technical amendments; to  repeal
  subdivisions  1,  3 and 7 of section 240.35 of the penal law, relating
  to the offense of 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
REPEALED.
  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-

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

                                                           LBD17347-01-0

S. 7823                             2

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. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
procedure law, as amended by chapter 344 of the laws of 1976, is amended
to read as follows:
  [(d)  Loitering, as defined in subdivision three of section 240.35  of
the penal law; or]
  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[,]  OR  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 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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