S T A T E O F N E W Y O R K
________________________________________________________________________
2510--A
Cal. No. 213
2013-2014 Regular Sessions
I N S E N A T E
January 18, 2013
___________
Introduced by Sens. ROBACH, GOLDEN, LARKIN, O'BRIEN, RANZENHOFER -- read
twice and ordered printed, and when printed to be committed to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Senate Rule 6, sec. 8 -- reported favorably from said
committee, ordered to first and second report, ordered to a third
reading, passed by Senate and delivered to the Assembly, recalled,
vote reconsidered, restored to third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the penal law and the criminal procedure law, in
relation to computer sex crimes against children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new title Y-2 to read
as follows:
TITLE Y-2
COMPUTER SEX CRIMES AGAINST CHILDREN
ARTICLE 495
COMPUTER SEX CRIMES AGAINST CHILDREN
SECTION 495.00 COMPUTER SEX CRIMES.
495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
S 495.00 COMPUTER SEX CRIMES.
1. A PERSON COMMITS A COMPUTER SEX CRIME WHEN HE OR SHE COMMITS A SEX
CRIME AGAINST A CHILD AND FACILITATED THE COMMISSION OF SUCH OFFENSE BY
USING OR CAUSING TO BE USED A COMPUTER, COMPUTER SERVICE, CELL PHONE,
TEXT MESSAGE, INSTANT MESSAGE, OR SOCIAL MEDIA PLATFORM TO COMMUNICATE
WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
2. A "SEX CRIME AGAINST A CHILD" MEANS A FELONY OFFENSE (A) THE ESSEN-
TIAL ELEMENTS OF WHICH INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF
SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THIS
CHAPTER, OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL PERFORM-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01038-04-4
S. 2510--A 2
ANCE, AS DEFINED IN SECTION 263.00 OF THIS CHAPTER, (B) COMMITTED OR
ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
1. WHEN A PERSON IS CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING CRIME AGAINST A CHILD
IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF THIS CHAP-
TER, THE COMPUTER SEX CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
2. WHEN A PERSON IS CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING SEX CRIME AGAINST A
CHILD IS A CLASS C, D OR E FELONY, THE COMPUTER SEX CRIME SHALL BE
DEEMED TO BE ONE CATEGORY HIGHER THAN THE SEX CRIME AGAINST A CHILD THE
DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER THAN THE OFFENSE LEVEL
APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
COMMIT A SEX CRIME AGAINST A CHILD, WHICHEVER IS APPLICABLE.
3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO SECTION 495.00 OF THIS
ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B FELO-
NY:
(A) 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;
(B) 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;
AND
(C) 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.
S 2. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
law, as amended by chapter 7 of the laws of 2007, are amended to read as
follows:
4. A statement in each count that the grand jury, or, where the accu-
satory instrument is a superior court information, the district attor-
ney, accuses the defendant or defendants of a designated offense,
provided that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and provided further that in any prosecution under
section 130.91 of the penal law, the designated offense shall be the
specified offense, as defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated felony",
AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 495.00 OF THE
PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE UNDERLYING SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF THE
PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and
7. A plain and concise factual statement in each count which, without
allegations of an evidentiary nature,
(a) asserts facts supporting every element of the offense charged and
the defendant's or defendants' commission thereof with sufficient preci-
sion to clearly apprise the defendant or defendants of the conduct which
is the subject of the accusation; and
(b) in the case of any armed felony, as defined in subdivision forty-
one of section 1.20, states that such offense is an armed felony and
specifies the particular implement the defendant or defendants
S. 2510--A 3
possessed, were armed with, used or displayed or, in the case of an
implement displayed, specifies what the implement appeared to be; and
(c) in the case of any hate crime, as defined in section 485.05 of the
penal law, specifies, as applicable, that the defendant or defendants
intentionally selected the person against whom the offense was committed
or intended to be committed; or intentionally committed the act or acts
constituting the offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin, ances-
try, gender, religion, religious practice, age, disability or sexual
orientation of a person; and
(d) in the case of a crime of terrorism, as defined in section 490.25
of the penal law, specifies, as applicable, that the defendant or
defendants acted with intent to intimidate or coerce a civilian popu-
lation, influence the policy of a unit of government by intimidation or
coercion, or affect the conduct of a unit of government by murder,
assassination or kidnapping; and
(e) in the case of a sexually motivated felony, as defined in section
130.91 of the penal law, asserts facts supporting the allegation that
the offense was sexually motivated; and
(F) IN THE CASE OF A COMPUTER SEX CRIME, AS DEFINED IN SUBDIVISION ONE
OF SECTION 495.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
DEFENDANT OR DEFENDANTS FACILITATED THE COMMISSION OF A SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 495.00,
BY USING OR CAUSING TO BE USED A COMPUTER, COMPUTER SERVICE, CELL PHONE,
TEXT MESSAGE, INSTANT MESSAGE, OR SOCIAL MEDIA PLATFORM TO COMMUNICATE
WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
S 3. Subdivision 8 of section 700.05 of the criminal procedure law is
amended by adding two new paragraphs (u) and (v) to read as follows:
(U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
ER TAMPERING IN THE THIRD DEGREE AS DEFINED IN SECTION 156.25 OF THE
PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
156.26 OF THE PENAL LAW, COMPUTER TAMPERING IN THE FIRST DEGREE AS
DEFINED IN SECTION 156.27 OF THE PENAL LAW, UNLAWFUL DUPLICATION OF
COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
CRIMINAL POSSESSION OF COMPUTER RELATED MATERIAL AS DEFINED IN SECTION
156.35 OF THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE FIRST DEGREE AS DEFINED IN SECTION 235.22 OF THE PENAL LAW.
(V) USE OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION
263.05 OF THE PENAL LAW, PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.10 OF THE PENAL LAW, POSSESSING AN
OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.11 OF
THE PENAL LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN
SECTION 263.15 OF THE PENAL LAW, POSSESSING A SEXUAL PERFORMANCE BY A
CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
S 4. Paragraph (a) of subdivision 1 of section 460.10 of the penal
law, as amended by chapter 405 of the laws of 2010, is amended to read
as follows:
(a) Any of the felonies set forth in this chapter: sections 120.05,
120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
ing to strangulation; sections 125.10 to 125.27 relating to homicide;
sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
135.25 relating to kidnapping; section 135.35 relating to labor traf-
ficking; section 135.65 relating to coercion; sections 140.20, 140.25
and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12
relating to criminal mischief; article one hundred fifty relating to
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arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
care fraud; article one hundred sixty relating to robbery; sections
165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
stolen property; sections 165.72 and 165.73 relating to trademark coun-
terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
to criminal diversion of prescription medications and prescriptions;
sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20
and 187.25 relating to residential mortgage fraud[,]; sections 190.40
and 190.42 relating to criminal usury; section 190.65 relating to
schemes to defraud; sections 205.60 and 205.65 relating to hindering
prosecution; sections 210.10, 210.15, and 215.51 relating to perjury and
contempt; section 215.40 relating to tampering with physical evidence;
sections 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39,
220.41, 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
substances; sections 225.10 and 225.20 relating to gambling; sections
230.25, 230.30, and 230.32 relating to promoting prostitution; section
230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and
235.22 relating to obscenity; sections 263.05, 263.10 [and], 263.11,
263.15 AND 263.16 relating to [promoting] a sexual performance by a
child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the
provisions of section 265.10 which constitute a felony relating to
firearms and other dangerous weapons; and sections 265.14 and 265.16
relating to criminal sale of a firearm; and section 275.10, 275.20,
275.30, or 275.40 relating to unauthorized recordings; [and] sections
470.05, 470.10, 470.15 and 470.20 relating to money laundering AND
SECTION 495.00 RELATING TO COMPUTER SEX CRIMES; or
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.
