S T A T E O F N E W Y O R K
________________________________________________________________________
6467
2015-2016 Regular Sessions
I N A S S E M B L Y
March 25, 2015
___________
Introduced by M. of A. CORWIN, RAIA, DUPREY, CERETTO, McDONOUGH, CURRAN,
KEARNS -- Multi-Sponsored by -- M. of A. BRABENEC, GIGLIO, MAGEE,
McLAUGHLIN, PALMESANO, SIMANOWITZ, WOZNIAK -- 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.
LBD01318-01-5
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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:
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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
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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. 6467 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
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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
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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, 2016, 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.