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

                                 871--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 7, 2015
                               ___________

Introduced by Sens. ROBACH, FUNKE -- read twice and ordered printed, and
  when  printed to be committed to the Committee on Codes -- recommitted
  to the Committee on Codes in accordance with Senate Rule 6, sec. 8  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

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-3 to read
as follows:
                                TITLE Y-3
                  COMPUTER SEX CRIMES AGAINST CHILDREN
                               ARTICLE 497
                  COMPUTER SEX CRIMES AGAINST CHILDREN
SECTION 497.00 COMPUTER SEX CRIMES.
        497.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
S 497.00 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-
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 497.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03852-03-6

              

S. 871--A                           2

  1.  WHEN  A  PERSON  IS  CONVICTED OF A COMPUTER SEX CRIME PURSUANT TO
SECTION 497.00 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 497.00 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 497.00 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,  subdivision  4  as amended by section 15 of subpart A of part H of
chapter 55 of the laws of 2014, subdivision 7 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 497.00 OF THE
PENAL  LAW,  THE  DESIGNATED  OFFENSE  SHALL BE THE UNDERLYING SEX CRIME
AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 497.00 OF  THE
PENAL  LAW,  FOLLOWED  BY  THE  PHRASE  "AS  A  COMPUTER SEX CRIME"; and
provided further that in any prosecution under  section  496.06  of  the
penal  law,  the  designated  offense shall be the specified offense, as
defined in subdivision two of such section, followed by the phrase "as a
public corruption 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

S. 871--A                           3

  (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
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  497.00 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 497.00,
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 (v) and (w) to read as follows:
  (V) COMPUTER SEX CRIMES AS DEFINED IN SECTION 497.00 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.
  (W) 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 368 of the laws of 2015, 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; sections 135.35 and  135.37  relating  to

S. 871--A                           4

labor trafficking; 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  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,  200.56,
215.00,  215.05  and  215.19; 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; any felony defined in article four hundred ninety-six; 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, 220.65 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; sections 265.14 and 265.16 relating to criminal  sale
of  a  firearm;  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 497.00 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.