S T A T E   O F   N E W   Y O R K
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                                  3037

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 23, 2013
                               ___________

Introduced  by  M. of A. REILICH, KOLB -- Multi-Sponsored by -- M. of A.
  CROUCH, DUPREY, FINCH, GIGLIO, HAWLEY, McDONOUGH, OAKS, TENNEY -- read
  once and referred to the Committee on Codes

AN ACT to amend the penal law, the election law and the  education  law,
  in relation to voting by level two or level three sex offenders

  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 two new sections  145.75
and 145.80 to read as follows:
S 145.75 UNLAWFULLY  ENTERING  OR  REMAINING IN A SCHOOL OR FACILITY FOR
           CHILDREN FOR THE PURPOSES OF VOTING IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF UNLAWFULLY ENTERING OR REMAINING IN A  SCHOOL
OR  FACILITY  FOR  CHILDREN  FOR  THE  PURPOSES  OF VOTING IN THE SECOND
DEGREE, WHEN BEING A LEVEL TWO OR LEVEL THREE SEX OFFENDER,  HE  OR  SHE
ENTERS  OR REMAINS IN A SCHOOL OR FACILITY FOR CHILDREN FOR THE PURPOSES
OF CASTING A BALLOT OR OTHERWISE VOTING  DURING  ANY  PRIMARY,  GENERAL,
SPECIAL,  SCHOOL  DISTRICT  OR OTHER ELECTION IN WHICH RESIDENTS, REGIS-
TERED OR QUALIFIED VOTERS ARE ENTITLED TO CAST BALLOTS.
  2. FOR THE PURPOSES OF THIS SECTION: (A) "LEVEL TWO OR LEVEL THREE SEX
OFFENDER" SHALL MEAN A PERSON REGISTERED OR REQUIRED TO  REGISTER  UNDER
SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW WHO HAS RECEIVED
A  LEVEL  TWO OR LEVEL THREE DESIGNATION PURSUANT TO SECTION ONE HUNDRED
SIXTY-EIGHT-L OF THE CORRECTION LAW; AND (B)  "SCHOOL  OR  FACILITY  FOR
CHILDREN"  SHALL  MEAN  A  BUILDING,  STRUCTURE, ATHLETIC PLAYING FIELD,
PLAYGROUND OR LAND CONTAINED WITHIN THE REAL PROPERTY BOUNDARY LINE OF A
PUBLIC OR PRIVATE  ELEMENTARY,  PAROCHIAL,  INTERMEDIATE,  JUNIOR  HIGH,
VOCATIONAL,  OR HIGH SCHOOL, OR ANY OTHER FACILITY OR INSTITUTION PRIMA-
RILY USED FOR THE CARE OR TREATMENT OF PERSONS UNDER THE AGE OF EIGHTEEN
WHILE ONE OR MORE OF SUCH PERSONS UNDER THE AGE OF EIGHTEEN ARE PRESENT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01598-01-3

A. 3037                             2
              

  UNLAWFULLY ENTERING OR REMAINING IN A SCHOOL OR FACILITY FOR  CHILDREN
FOR  THE  PURPOSES OF VOTING IN THE SECOND DEGREE IS A CLASS A MISDEMEA-
NOR.
S  145.80  UNLAWFULLY  ENTERING OR REMAINING IN A SCHOOL OR FACILITY FOR
           CHILDREN FOR THE PURPOSES OF VOTING IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF UNLAWFULLY ENTERING OR REMAINING IN A SCHOOL  OR
FACILITY  FOR  CHILDREN  FOR  THE PURPOSES OF VOTING IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF UNLAWFULLY ENTERING OR REMAINING  IN
A  SCHOOL  OR  FACILITY  FOR  CHILDREN FOR THE PURPOSES OF VOTING IN THE
SECOND DEGREE, HAVING PREVIOUSLY BEEN CONVICTED OF SUCH CRIME WITHIN THE
PRECEDING TEN YEARS.
  UNLAWFULLY ENTERING OR REMAINING IN A SCHOOL OR FACILITY FOR  CHILDREN
FOR THE PURPOSES OF VOTING IN THE FIRST DEGREE IS A CLASS E FELONY.
  S  2.  Paragraph (d) of subdivision 1 of section 8-400 of the election
law, as amended by chapter 63 of the laws of 2010, is amended and a  new
paragraph (e) is added to read as follows:
  (d)  absent  from  his  or  her  voting residence because he or she is
detained in jail awaiting action by a grand jury or awaiting  trial,  or
confined  in jail or prison after a conviction for an offense other than
a felony, provided that he or she is qualified to vote in  the  election
district of his or her residence[.]; OR
  (E)  PROHIBITED  FROM APPEARING PERSONALLY AT THE POLLING PLACE OF THE
ELECTION DISTRICT IN WHICH HE OR SHE IS A QUALIFIED VOTER BECAUSE HE  OR
SHE IS A LEVEL TWO OR LEVEL THREE SEX OFFENDER AND SUCH POLLING PLACE IS
LOCATED  ON  OR  WITHIN  A SCHOOL OR FACILITY FOR CHILDREN AS  THE TERMS
"LEVEL TWO AND LEVEL THREE SEX OFFENDER" AND  "SCHOOL  OR  FACILITY  FOR
CHILDREN" ARE DEFINED IN SECTION 145.75 OF THE PENAL LAW.
  S  3.  Subparagraph  (iv) of paragraph (c) of subdivision 3 of section
8-400 of the election law, as amended by chapter 63 of the laws of 2010,
is amended and a new subparagraph (v) is added to read as follows:
  (iv) detained in jail awaiting action by  a  grand  jury  or  awaiting
trial  or  confined  in jail or prison after a conviction for an offense
other than a felony and stating the place where he or she is so detained
or confined[.]; OR
  (V) PROHIBITED FROM APPEARING PERSONALLY AT THE POLLING PLACE  OF  THE
ELECTION  DISTRICT IN WHICH HE OR SHE IS A QUALIFIED VOTER BECAUSE HE OR
SHE IS A LEVEL TWO OR LEVEL THREE SEX OFFENDER AND SUCH POLLING PLACE IS
LOCATED ON OR WITHIN A SCHOOL OR FACILITY  FOR  CHILDREN  AS  THE  TERMS
"LEVEL  TWO  AND  LEVEL  THREE SEX OFFENDER" AND "SCHOOL OR FACILITY FOR
CHILDREN" ARE DEFINED IN SECTION 145.75 OF THE PENAL LAW.
  S 4. Section 8-400 of the election law is  amended  by  adding  a  new
subdivision 11 to read as follows:
  11.  SIXTY  DAYS  BEFORE  EACH  ELECTION  THE BOARD OF ELECTIONS SHALL
COMPILE A LIST OF ALL LEVEL TWO AND LEVEL THREE REGISTERED SEX OFFENDERS
ENTITLED TO RECEIVE ABSENTEE BALLOTS PURSUANT TO THE PROVISIONS OF  THIS
SECTION.  THE  BOARD  OF  ELECTIONS SHALL, BY MAIL ADDRESSED TO SUCH SEX
OFFENDER AT HIS OR HER REGISTERED ADDRESS, SEND AN ABSENTEE  BALLOT  FOR
THE  ENSUING  ELECTION  TO SUCH PERSON IN THE SAME MANNER AS PROVIDED IN
THIS SECTION FOR A  QUALIFIED  VOTER  ENTITLED  TO  AN  ABSENTEE  BALLOT
BECAUSE OF ILLNESS OR DISABILITY.
  S 5. Subdivision 2 of section 2018-a of the education law, as added by
chapter  219 of the laws of 1978, paragraphs a and b as amended by chap-
ter 136 of the laws of 1991, paragraph c as amended by chapter 26 of the
laws of 1994, paragraph d as amended by chapter 72 of the laws  of  1988
and  paragraph  g  as  amended  by  chapter  825 of the laws of 1984, is
amended to read as follows:

A. 3037                             3

  2. a. An applicant for such an absentee ballot shall submit an  appli-
cation  setting forth (1) his OR HER name and residence address, includ-
ing the street and number, if any, or town and rural delivery route,  if
any; (2) that he OR SHE is or will be, on the day of the school district
election,  a  qualified  voter of the school district in which he OR SHE
resides in that he OR SHE is or will be, on  such  date,  over  eighteen
years  of  age,  a  citizen  of  the  United States and has or will have
resided in the district for thirty days next preceding  such  date;  (3)
whether  he OR SHE is registered in the district; AND (4) that he OR SHE
will be unable to appear to vote in person on  the  day  of  the  school
district  election for which the absentee ballot is requested because he
OR SHE is, or will be on such day (a) a patient in a hospital, or unable
to appear personally at the polling place on such day because of illness
or physical disability [or]; (b) because his OR HER duties,  occupation,
business, or studies will require him OR HER to be outside of the county
or  city  of  his OR HER residence on such day[,]; (c) because he OR SHE
will be on vacation outside the county or city of his OR  HER  residence
on  such  day;  [or,] (d) absent from his voting residence because he OR
SHE is detained in jail awaiting action by  a  grand  jury  or  awaiting
trial  or  is  confined  in prison after conviction for an offense other
than a felony; OR (E) PROHIBITED FROM APPEARING PERSONALLY AT THE  POLL-
ING  PLACE  OF  THE  ELECTION DISTRICT IN WHICH HE OR SHE IS A QUALIFIED
VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR LEVEL THREE SEX  OFFENDER  AND
SUCH  POLLING  PLACE  IS  LOCATED  ON OR WITHIN A SCHOOL OR FACILITY FOR
CHILDREN AS THE TERMS "LEVEL TWO  AND  LEVEL  THREE  SEX  OFFENDER"  AND
"SCHOOL  OR  FACILITY FOR CHILDREN" ARE DEFINED IN SECTION 145.75 OF THE
PENAL LAW.
  Such application must be received by the district clerk at least seven
days before the election if the ballot is to be mailed to the voter,  or
the day before the election, if the ballot is to be delivered personally
to the voter.
  b. (1) Where such duties, occupation, business, or studies are of such
a  nature  as ordinarily to require such absence, a brief description of
such duties, occupation, business, or studies shall be set forth in such
application. (2) Where such duties, occupation, business, or studies are
not of such a nature as ordinarily to require such absence, such  appli-
cation shall contain a statement of the special circumstances on account
of which such absence is required.
  c.  Where  the applicant expects in good faith to be absent on the day
of the election because he OR SHE will be on vacation elsewhere on  such
day,  such application shall also contain the dates upon which he OR SHE
expects to begin and end such vacation, the place or places where he  OR
SHE  expects  to be on such vacation, the name and address of his OR HER
employer, if any, and if self-employed or retired, a statement  to  that
effect.
  d.  Where  the absence is because of detention or confinement to jail,
such application shall state whether  the  voter  is  detained  awaiting
action  of the grand jury or is confined after conviction for an offense
other than a felony.
  e. WHERE THE APPLICANT INDICATES HE OR SHE IS PROHIBITED FROM  APPEAR-
ING PERSONALLY AT THE POLLING PLACE OF THE ELECTION DISTRICT IN WHICH HE
OR  SHE  IS  A QUALIFIED VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR LEVEL
THREE SEX OFFENDER AND SUCH POLLING PLACE IS  LOCATED  ON  OR  WITHIN  A
SCHOOL  OR FACILITY FOR CHILDREN AS THE TERMS "LEVEL TWO AND LEVEL THREE
SEX OFFENDER" AND "SCHOOL OR  FACILITY  FOR  CHILDREN"  ARE  DEFINED  IN
SECTION  145.75 OF THE PENAL LAW SUCH APPLICATION SHALL STATE WHETHER OR

A. 3037                             4

NOT THE VOTER IS CURRENTLY UNDER A SENTENCE OF IMPRISONMENT FOR A FELONY
OR ON PAROLE.
  F. Where a person is or would be, if he OR SHE were a qualified voter,
entitled  to  apply  for  the right to vote by absentee ballot under the
provisions of this section, his OR HER spouse, parent  or  child,  if  a
qualified  voter  and  a  resident of the same school district, shall be
entitled to vote as an absentee voter upon personally making and signing
an application in accordance  with  the  preceding  provisions  of  this
subdivision  and  showing  that  he OR SHE expects to be absent from the
school district on the day of the school district election by reason  of
accompanying  or  being with the spouse, child or parent who is or would
be, if he OR SHE were a qualified voter, so entitled to  apply  for  the
right  to  vote  by absentee ballot, and, in the event no application is
made by such spouse, child or parent, such further  information  as  the
board of registration shall require.
  [f.]  G.  Such application shall include the following statement to be
signed by the voter.
  I hereby declare that the foregoing is a true statement to the best of
my knowledge and belief, and I understand that if I  make  any  material
false  statement  in the foregoing statement of application for absentee
ballots, I shall be guilty of a misdemeanor.

Date.....................Signature of Voter ............................

  [g.] H. An applicant whose ability to appear personally at the polling
place of the school district of which he OR SHE is a qualified voter  is
substantially  impaired by reason of permanent illness or physical disa-
bility and whose registration record has been marked "permanently  disa-
bled"  by  the  board  of  elections  pursuant  to the provisions of the
election law shall be entitled to receive an absentee ballot pursuant to
the provisions of this section without making separate  application  for
such  absentee  ballot, and the board of registration upon being advised
by the board of elections on or with the list of registered voters  that
the  registration  record  of  a  voter is marked "permanently disabled"
shall send an absentee ballot to such voter at his  OR  HER  last  known
address with a request to the postal authorities not to forward same but
to  return same in five days in the event that it cannot be delivered to
the addressee. The board  of  education  shall  determine  whether  such
ballot  shall  be  sent  by  first  class or by certified mail. All such
ballots shall be mailed in the same manner as determined by the board of
education. The board of registration shall make an appropriate entry  on
the  registration  indicating  the fact that an absentee ballot has been
sent and the date of mailing.
  S 6. Subdivision 2 of section 2018-b of the education law, as  amended
by  chapter 46 of the laws of 1992 and paragraph c as amended by chapter
26 of the laws of 1994, is amended to read as follows:
  2. a. An applicant for such an absentee ballot shall submit an  appli-
cation  setting forth (1) his OR HER name and residence address, includ-
ing the street and number, if any, or town and rural delivery route,  if
any; (2) that he OR SHE is or will be, on the day of the school district
election,  a  qualified  voter of the school district in which he OR SHE
resides in that he OR SHE is or will be, on  such  date,  over  eighteen
years  of  age,  a  citizen  of  the  United States and has or will have
resided in the district for thirty days next preceding  such  date;  AND
(3) that he OR SHE will be unable to appear to vote in person on the day
of  the  school  district  election  for  which  the  absentee ballot is

A. 3037                             5

requested because he OR SHE is, or will be on such day (a) a patient  in
a  hospital, or unable to appear personally at the polling place on such
day because of illness or physical disability [or]; (b) because  his  OR
HER  duties, occupation, business, or studies will require him OR HER to
be outside of the county or city of his residence on  such  day[,];  (c)
because  he OR SHE will be on vacation outside the county or city of his
OR HER residence on such day; [or,] (d) absent from his  OR  HER  voting
residence  because  he  OR  SHE is detained in jail awaiting action by a
grand jury or awaiting trial or is confined in prison  after  conviction
for  an  offense  other  than a felony; OR (E) PROHIBITED FROM APPEARING
PERSONALLY AT THE POLLING PLACE OF THE ELECTION DISTRICT IN WHICH HE  OR
SHE IS A QUALIFIED VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR LEVEL THREE
SEX  OFFENDER AND SUCH POLLING PLACE IS LOCATED ON OR WITHIN A SCHOOL OR
FACILITY FOR CHILDREN AS THE TERMS "LEVEL TWO AND LEVEL THREE SEX OFFEN-
DER" AND "SCHOOL OR FACILITY FOR CHILDREN" ARE DEFINED IN SECTION 145.75
OF THE PENAL LAW.  Such application must be  received  by  the  district
clerk  or  designee  of the trustees or school board at least seven days
before the election if the ballot is to be mailed to the voter,  or  the
day  before the election, if the ballot is to be delivered personally to
the voter.
  b. (1) Where such duties, occupation, business, or studies are of such
a nature as ordinarily to require such absence, a brief  description  of
such duties, occupation, business, or studies shall be set forth in such
application.
  (2)  Where  such  duties,  occupation, business, or studies are not of
such a nature as ordinarily to require such  absence,  such  application
shall  contain  a  statement  of the special circumstances on account of
which such absence is required.
  c. Where the applicant expects in good faith to be absent on  the  day
of  the election because he OR SHE will be on vacation elsewhere on such
day, such application shall also contain the dates upon which he OR  SHE
expects  to begin and end such vacation, the place or places where he OR
SHE expects to be on such vacation, the name and address of his  OR  HER
employer,  if  any, and if self-employed or retired, a statement to that
effect.
  d. Where the absence is because of detention or confinement  to  jail,
such  application  shall  state  whether  the voter is detained awaiting
action of the grand jury or is confined after conviction for an  offense
other than a felony.
  e.    WHERE  THE APPLICANT INDICATES THAT HE OR SHE IS PROHIBITED FROM
APPEARING PERSONALLY AT THE POLLING PLACE OF THE  ELECTION  DISTRICT  IN
WHICH HE OR SHE IS A QUALIFIED VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR
LEVEL  THREE SEX OFFENDER AND SUCH POLLING PLACE IS LOCATED ON OR WITHIN
A SCHOOL OR FACILITY FOR CHILDREN AS THE  TERMS  "LEVEL  TWO  AND  LEVEL
THREE SEX OFFENDER" AND "SCHOOL OR FACILITY FOR CHILDREN" ARE DEFINED IN
SECTION  145.75 OF THE PENAL LAW SUCH APPLICATION SHALL STATE WHETHER OR
NOT THE VOTER IS CURRENTLY UNDER A SENTENCE OF IMPRISONMENT FOR A FELONY
OR ON PAROLE.
  F. Where a person is or would be, if he OR SHE were a qualified voter,
entitled to apply for the right to vote by  absentee  ballot  under  the
provisions  of  this  section,  his OR HER spouse, parent or child, if a
qualified voter and a resident of the same  school  district,  shall  be
entitled to vote as an absentee voter upon personally making and signing
an  application  in  accordance  with  the  preceding provisions of this
subdivision and showing that he OR SHE expects to  be  absent  from  the
school  district on the day of the school district election by reason of

A. 3037                             6

accompanying or being with the spouse, child or parent who is  or  would
be,  if  he  OR SHE were a qualified voter, so entitled to apply for the
right to vote by absentee ballot, and, in the event  no  application  is
made  by  such  spouse, child or parent, such further information as the
clerk of the school district or designee of the trustees or school board
shall require.
  [f.] G. Such application shall include the following statement  to  be
signed by the voter.

  I hereby declare that the foregoing is a true statement to the best of
my  knowledge  and  belief, and I understand that if I make any material
false statement in the foregoing statement of application  for  absentee
ballots, I shall be guilty of a misdemeanor.

Date......................Signature of Voter ...........................

  [g.] H. The clerk of the school district or a designee of the trustees
or  school  board  shall  request  registration  lists from the board of
elections pursuant to subdivision three of section 5-612 of the election
law for those voters whose registration record has been  marked  "perma-
nently disabled". An applicant whose ability to appear personally at the
polling  place  of the school district of which he OR SHE is a qualified
voter is substantially impaired by reason of permanent illness or  phys-
ical  disability  and  whose registration record has been marked "perma-
nently disabled" as determined by the board of elections pursuant to the
provisions of this chapter and who has previously applied for an  absen-
tee  ballot  shall  be  entitled  to receive subsequent absentee ballots
pursuant to the provisions  of  this  section  without  making  separate
application  for  such  absentee  ballot,  and  the  clerk of the school
district or a designee of the trustees or school  board  shall  send  an
absentee  ballot  to  such voter at his OR HER last known address with a
request to the postal authorities not to forward same but to return same
in five days in the event that it cannot be delivered to the  addressee.
The clerk of the school district or a designee of the trustees or school
board  shall  determine whether such ballot shall be sent by first class
or by certified mail. All such ballots  shall  be  mailed  in  the  same
manner as determined by the trustees or the board of education.
  S  7.  The  election  law is amended by adding a new section 17-172 to
read as follows:
  S 17-172. IMMUNITY AND DEFENSE FOR POLL WORKERS AND OTHERS RELATED  TO
ADMITTANCE  OF  SEX  OFFENDERS  TO POLLING PLACES. 1. NO PERSON SHALL BE
CIVILLY LIABLE FOR REFUSING ADMITTANCE OF A LEVEL TWO OR LEVEL THREE SEX
OFFENDER TO A POLLING PLACE WHICH IS OR IS WITHIN A SCHOOL  OR  FACILITY
FOR  CHILDREN  AS THOSE TERMS ARE DEFINED IN SECTION 145.75 OF THE PENAL
LAW, WHEN SUCH PERSON IS ACTING IN GOOD FAITH AND IN THE PERFORMANCE  OF
THEIR DUTIES. FOR THE PURPOSES OF THIS SECTION, A PERSON SHALL BE DEEMED
TO  BE ACTING IN GOOD FAITH IF THE NAME AND ADDRESS OR NAME AND APPROXI-
MATE ADDRESS BASED ON ZIP CODE OF THE VOTER REFUSED ADMISSION APPEARS ON
A LIST OF LEVEL TWO OR LEVEL THREE SEX OFFENDERS PROVIDED BY A BOARD  OF
ELECTIONS OR THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  2.  IT  SHALL BE AN AFFIRMATIVE DEFENSE TO ANY CHARGE OF VIOLATING THE
ELECTIVE FRANCHISE OF A VOTER BASED UPON THE REFUSING OF ADMITTANCE OF A
LEVEL TWO OR LEVEL THREE SEX OFFENDER TO A POLLING PLACE WHICH IS OR  IS
WITHIN  A  SCHOOL OR FACILITY FOR CHILDREN AS THOSE TERMS ARE DEFINED IN
SECTION 145.75 OF THE PENAL LAW, THAT THE NAME AND ADDRESS OR  NAME  AND
APPROXIMATE  ADDRESS  BASED  ON  ZIP CODE OF THE VOTER REFUSED ADMISSION

A. 3037                             7

APPEARS ON A LIST OF LEVEL TWO OR LEVEL THREE SEX OFFENDERS PROVIDED  BY
A BOARD OF ELECTIONS OR THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  S  8.  This  act  shall  take  effect  immediately  and shall apply to
elections held on and after January 1, 2014,  provided  that  the  state
board  of  elections  shall be authorized to promulgate any rules, regu-
lations, forms, or notices required to carry out the provisions of  this
act prior to such effective date.