NY State Senate Bill 2017-S5062A

Senate Bill S5062A

2017-2018 Legislative Session

Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices; repealer

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Archive: Last Bill Status - In Senate Committee Judiciary 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
Jan 03, 2018	referred to judiciary
May 24, 2017	print number 5062a
May 24, 2017	amend (t) and recommit to judiciary
Mar 06, 2017	referred to judiciary

Bill Amendments

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A (Active)

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2017-S5062 - Details

See Assembly Version of this Bill:: A7061
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §4519-a, CPLR; amd §§60.47, 160.10 & 160.55, rpld §160.10 sub 1 ¶(d), CP L; amd §§841 & 837, Exec L; add §§49 & 83-n, Leg L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S5638, A7671
2019-2020: S728, S8773, A5177
2021-2022: S2878, A4273
2023-2024: S2543, A281

2017-S5062 - Summary

Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.

2017-S5062 - Sponsor Memo

                                 BILL NUMBER:  S5062

 TITLE OF BILL :  An act to amend the civil practice law and rules,
the criminal procedure law, the executive law, and the legislative law
in relation to the use in evidence of the fact of possession or
presence on the premises of condoms and other sexual and reproductive
health devices; and to repeal certain provisions of the criminal
procedure law relating thereto

 PURPOSE :

The purpose of this bill is to codify the commitment to public health
enshrined in the New York State Constitution, by prohibiting the use
in criminal, civil or administrative proceedings of the fact of
possession or presence of condoms and other reproductive and sexual
health devices as evidence of prostitution or trafficking-related
offenses, and to assess and reduce the disparate impacts of this
practice upon members of vulnerable populations, such as survivors of
trafficking and people who are or are profiled as engaging in the sex
trades.

 EXISTING LAW :

Currently, possession of condoms may be introduced as evidence of
prostitution and trafficking-related offenses in most criminal, civil
and administrative proceedings except misdemeanor prostitution and

loitering for the purpose of prostitution. Other sexual and
reproductive health tools, however, may be introduced as evidence of
all prostitution and trafficking-related offenses.

 SUMMARY OF PROVISIONS :

Section 1 states that this act shall be known as the "End
Criminalization of Condoms Act".

Section 2 states certain legislative findings.

Section 3 adds a new section 4519-a to the civil practice law and
rules to prohibit introduction of the fact of possession or presence
of condoms and other reproductive and sexual health devices as
evidence of prostitution, patronizing a prostitute, promoting
prostitution, permitting prostitution, maintaining a premises for
prostitution, lewdness or assignation, or maintaining a bawdy house,
in any trial, hearing or proceeding pursuant to section 12 and article
10 of the multiple dwelling law (liens on premises used for unlawful
purposes), sections 12-a and title 2 of article 23 of the public
health law (hearings and equitable proceedings regarding premises used
for prostitution), section 231 of the real property law (voiding of
lease on premises used for unlawful purposes), or sections 711 and 715
of the real property actions and proceedings law (summary eviction
proceedings).

Section 4 adds a new section 60.49 to the criminal procedure law to
prohibit introduction of the fact of possession or presence of condoms
and other reproductive and sexual health devices as evidence of
prostitution or trafficking-related activity in any trial, hearing or
proceeding pursuant to article 230 or section 240.37 of the penal law
(prostitution and trafficking-related offenses), or section 6512 of
the education law (unlicensed practice of a profession), or by any
related local or municipal law or regulation, for the purpose of
establishing probable cause for an arrest or proving any person's
commission or attempted commission of such offense.

Section 5 amends section 160.10(1) of the criminal procedure law to
remove subdivision two of section 240.37 of the penal law (loitering

for the purpose of engaging in a prostitution offense) to provide that
this violation shall no longer be an offense requiring fingerprinting.

Section 6 amends section 160.55 of the criminal procedure law to
remove subdivision two of section 240.37 of the penal law (loitering
for the purpose of engaging in a prostitution offense) to provide that
sealing of convictions appropriate to violation-level offenses shall
be available for this violation. It also deletes references to former
section 240.35 of the penal law, as repealed by chapter 232 of the
laws of 2010.

Section 7 adds a new subdivision 7-b to section 841 of the executive
law to authorize the Commissioner of Criminal Justice Services to take
such steps as necessary to ensure that police and peace officers
receive appropriate instruction regarding the evidentiary prohibition
set forth in section 60.47 of the criminal procedure law.

Section 8 adds a new section 49 to the legislative law to create
guidelines for the implementation and use of health and human rights
impact statements to accompany certain legislation.

Section 9 adds a new section 83-n to the legislative law to establish
a volunteer legislative commission on health and human rights.

Section 10 amends paragraph f of subdivision 4 of section 837 of the
executive law to require that the Division of Criminal Justice
Services conduct research and analysis necessary to complete health
and human rights impact statements and present an annual report
containing statistics and other information relevant to such
statements

Section 11 sets forth a severability provision.

Section 12 establishes the effective date.

 JUSTIFICATION :

Currently, for purposes of prosecuting certain criminal, civil and
administrative offenses, reproductive and sexual health tools, and
particularly condoms and lubricants, are being confiscated and
destroyed by law enforcement officers and introduced by prosecution as
evidence in trials, hearings, and proceedings. This practice deters
those most vulnerable to the HIV epidemic, other sexually transmitted
infections, and unwanted pregnancies from using condoms by sending the
message that possession or presence of condoms provides a legal basis
for being stopped, questioned, and arrested by police. This message
undermines public health efforts to promote safer sex practices, and
creates a perverse incentive for exploiters to deny access to critical
reproductive and sexual health tools to victims of trafficking, which
are essential to enabling them to protect themselves from unwanted
pregnancies, HIV and other sexually transmitted infections.

Promoting and protecting health and respecting and fulfilling human
rights are necessarily linked, and health-oriented and rights-based
law enforcement efforts are central to the effective provision of
government services for the benefit of the people of the State. By
adopting a comprehensive ban on using the possession or presence of
condoms as evidence in all prostitution-related cases, this bill will
help to encourage, instead of discourage, safer sex practices.

Article 17, section 3 of the New York State Constitution requires that
the legislature protect and promote the health of the inhabitants of
this state as a matter of public concern. It is pursuant to this
principle that the New York City Department of Health and Mental
Hygiene spends upward to $30 million annually on distributing more
than 38 million condoms per year at approximately 3,500 locations
throughout New York City. However, with one hand the government
distributes these condoms and with the other it destroys, confiscates
and introduces them as evidence of criminal offenses. The same New
York City branded condoms distributed by the City are thrown in City
trashcans, or listed as arrest evidence on police property vouchers
and on supporting depositions filed in criminal cases as evidence of
intent to engage in prostitution in the prosecution of the offenses
covered by this bill.

The practice of using condoms as evidence in prostitution cases has
come under criticism across the country. In 2012, Congresswoman
Kathleen Rice as former Nassau County District Attorney implemented a
comprehensive ban on the use of condoms as evidence in all
prostitution and trafficking-related prosecutions in her jurisdiction.
Congresswoman Rice concluded that any potential benefits of using
condoms as evidence do not outweigh the public health impact. She also
noted that more serious trafficking cases are made out on witness and
other evidence, and that "condom evidence was rarely of any value to a
prosecution." According to Rice, "If you need that condom so badly in
the case against a trafficker, then you don't have a good case.

Governor Andrew M. Cuomo recently announced a bold commitment to end
the AIDS epidemic in New York by 2020. The first-ever statewide
initiative to reduce new transmissions to 750 or fewer per year,
improve access to care for people living with HIV/AIDS (PLWHA), and
work to ensure that PLWHA have undetectable viral loads at a rate that
outpaces new infections. Under current law, the very same prevention
tools that are centerpieces of this plan - condoms - may be lawfully
confiscated and introduced as evidence in a criminal prosecution for a
prostitution or trafficking-related offense. New York simply cannot
end AIDS by 2020 without lifting barriers to access and use of these
critical sexual health tools.

2017-S5062 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5062
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2017
                                ___________
 
 Introduced   by  Sens.  MONTGOMERY,  BAILEY,  COMRIE,  HOYLMAN,  PARKER,
   PERSAUD, RIVERA, SAVINO -- read twice and ordered  printed,  and  when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, the criminal procedure
   law, the executive law, and the legislative law in relation to the use
   in  evidence  of the fact of possession or presence on the premises of
   condoms and other sexual  and  reproductive  health  devices;  and  to
   repeal certain provisions of the criminal procedure law relating ther-
   eto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the "End crimi-
 nalization of condoms act".
   § 2. Legislative findings. The legislature hereby finds that promoting
 and protecting health and respecting and  fulfilling  human  rights  are
 necessarily  linked,  and  that  health-oriented  and  rights-based  law
 enforcement efforts are central to the effective provision of government
 services for the benefit of the people of the State. Article 17, section
 3 of the New York constitution requires that the legislature protect and
 promote the health of the inhabitants of  this  state  as  a  matter  of
 public  concern.  Despite  these provisions, for purposes of prosecuting
 certain criminal, civil and administrative  offenses,  reproductive  and
 sexual  health  tools, including condoms, are currently being destroyed,
 confiscated, or used as  evidence  by  law  enforcement  officers.  This
 legislation is intended to strengthen the public health of all New York-
 ers,  including the most vulnerable, while preserving the ability of law
 enforcement to prosecute other crimes such as  felony  sexual  offenses.
 The  purpose  of this bill is to avoid the disparate impact of the prac-
 tice of citing condoms and other reproductive and sexual health tools as
 evidence upon survivors  of  trafficking  and  people  who  are  or  are
 profiled as being engaged in the sex trades.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06195-02-7

 S. 5062                             2
 
   §  3.  The  civil  practice  law  and rules is amended by adding a new
 section 4519-a to read as follows:
   § 4519-A. POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICES; RECEIPT
 INTO EVIDENCE.  1. THE FACT OF POSSESSION OF A CONDOM OR OTHER REPRODUC-
 TIVE  OR  SEXUAL  HEALTH  DEVICE  MAY NOT BE RECEIVED IN EVIDENCE IN ANY
 TRIAL, HEARING OR PROCEEDING PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION
 TWELVE  AND  ARTICLE TEN OF THE MULTIPLE DWELLING LAW, SECTIONS TWELVE-A
 AND TWENTY-THREE HUNDRED TWENTY OF THE PUBLIC HEALTH  LAW,  SECTION  TWO
 HUNDRED  THIRTY-ONE  OF  THE  REAL  PROPERTY  LAW OR SUBDIVISION FIVE OF
 SECTION SEVEN HUNDRED ELEVEN AND SECTION SEVEN HUNDRED  FIFTEEN  OF  THE
 REAL  PROPERTY  ACTIONS AND PROCEEDINGS LAW, OR BY ANY LAW, LOCAL LAW OR
 ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR BY ANY WORD, RULE
 OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY  LAW  TO
 ADOPT  THE  SAME  AS EVIDENCE OF PROSTITUTION, PATRONIZING A PROSTITUTE,
 PROMOTING PROSTITUTION, PERMITTING PROSTITUTION, MAINTAINING A  PREMISES
 FOR  PROSTITUTION,  LEWDNESS  OR ASSIGNATION, MAINTAINING A BAWDY HOUSE,
 COMPELLING PROSTITUTION, OR SEX TRAFFICKING.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE OR OTHER TOOL USED TO PREVENT  UNWANTED  PREGNANCY  OR  THE  TRANS-
 MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
 LIMITED  TO  MALE  CONDOMS,  FEMALE  CONDOMS,  LUBRICANTS,  PRE-EXPOSURE
 PROPHYLAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETRO-
 VIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS, EMERGENCY CONTRACEPTION,
 DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   3. "POSSESSION" MEANS TO HAVE  PHYSICAL  POSSESSION  OR  OTHERWISE  TO
 EXERCISE DOMINION OR CONTROL OVER TANGIBLE PROPERTY.
   4.  THE FACT OF POSSESSION OR PRESENCE IN A PREMISES OF A REPRODUCTIVE
 OR SEXUAL HEALTH DEVICE SHALL NOT BE INTRODUCED AS EVIDENCE BY ANY MEANS
 FOR ANY OF THE AFOREMENTIONED PURPOSES, INCLUDING BY EITHER PHYSICAL  OR
 TESTIMONIAL EVIDENCE.
   §  4.  The  criminal  procedure law is amended by adding a new section
 60.49 to read as follows:
 § 60.49 POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICE; RECEIPT INTO
           EVIDENCE.
   1. EVIDENCE THAT A PERSON WAS IN  POSSESSION  OF  A  CONDOM  OR  OTHER
 REPRODUCTIVE  OR  SEXUAL HEALTH DEVICE MAY NOT BE ADMITTED AT ANY TRIAL,
 HEARING OR OTHER PROCEEDING IN A PROSECUTION  FOR  ANY  OFFENSE,  OR  AN
 ATTEMPT  TO COMMIT ANY OFFENSE, DEFINED IN ARTICLE TWO HUNDRED THIRTY OR
 SECTION 240.37 OF THE PENAL LAW, OR SECTION SIXTY-FIVE HUNDRED TWELVE OF
 THE EDUCATION LAW, OR ANY LAW, LOCAL LAW OR  ORDINANCE  OF  A  POLITICAL
 SUBDIVISION  OF  THIS  STATE,  OR  ANY  WORD,  RULE OR REGULATION OF ANY
 GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY LAW TO ADOPT  THE  SAME,  FOR
 THE  PURPOSE OF ESTABLISHING PROBABLE CAUSE FOR AN ARREST OR PROVING ANY
 PERSON'S COMMISSION OR ATTEMPTED COMMISSION OF SUCH OFFENSE, AS EVIDENCE
 OF PROSTITUTION OR TRAFFICKING-RELATED ACTIVITY.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE OR OTHER TOOL USED TO PREVENT  UNWANTED  PREGNANCY  OR  THE  TRANS-
 MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
 LIMITED TO MALE CONDOMS, FEMALE CONDOMS, LUBRICANT, PRE-EXPOSURE PROPHY-
 LAXIS  ("PREP"),  POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETROVIRAL
 MEDICATION,  SPERMICIDE,  HORMONAL  METHODS,  EMERGENCY   CONTRACEPTION,
 DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   3.  "POSSESSION"  MEANS  TO  HAVE  PHYSICAL POSSESSION OR OTHERWISE TO
 EXERCISE DOMINION OR CONTROL OVER TANGIBLE PROPERTY.
   4. THE FACT OF POSSESSION OR PRESENCE ON THE PREMISES OF  A  REPRODUC-
 TIVE  OR SEXUAL HEALTH DEVICE SHALL NOT BE INTRODUCED AS EVIDENCE BY ANY

 S. 5062                             3
 
 MEANS FOR ANY OF THE AFOREMENTIONED PURPOSES, INCLUDING BY EITHER  PHYS-
 ICAL OR TESTIMONIAL EVIDENCE.
   §  5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
 procedure law is REPEALED.
   § 6. The opening paragraph of subdivision 1, subdivision 2 and  subdi-
 vision  3  of  section 160.55 of the criminal procedure law, the opening
 paragraph of subdivision 1 as amended by chapter  169  of  the  laws  of
 1994,  subdivision  2  as amended by chapter 476 of the laws of 2009 and
 subdivision 3 as amended by chapter 249 of the laws of 1981  and  renum-
 bered  by  chapter  142  of  the  laws  of  1991, are amended to read as
 follows:
   Upon the termination of a criminal  action  or  proceeding  against  a
 person  by  the  conviction  of such person of a traffic infraction or a
 violation, other than [a violation of loitering as  described  in  para-
 graph  (d)  or  (e) of subdivision one of section 160.10 of this chapter
 or] the violation of operating a motor vehicle while ability impaired as
 described in subdivision one of section eleven hundred ninety-two of the
 vehicle and traffic law, unless the district attorney upon  motion  with
 not  less  than  five  days notice to such person or his or her attorney
 demonstrates to the satisfaction of the  court  that  the  interests  of
 justice  require otherwise, or the court on its own motion with not less
 than five days notice to such person or his or her  attorney  determines
 that  the  interests of justice require otherwise and states the reasons
 for such determination on the record, the clerk  of  the  court  wherein
 such  criminal  action  or  proceeding  was terminated shall immediately
 notify the commissioner of the division of criminal justice services and
 the heads of all appropriate police departments and other  law  enforce-
 ment  agencies  that  the action has been terminated by such conviction.
 Upon receipt of notification of such termination:
   2. A report  of  the  termination  of  the  action  or  proceeding  by
 conviction of a traffic violation or a violation other than [a violation
 of  loitering as described in paragraph (d) or (e) of subdivision one of
 section 160.10 of this title or] the  violation  of  operating  a  motor
 vehicle  while  ability  impaired  as  described  in  subdivision one of
 section eleven hundred ninety-two of the vehicle and traffic law,  shall
 be  sufficient  notice of sealing to the commissioner of the division of
 criminal justice services unless the  report  also  indicates  that  the
 court  directed  that  the  record  not  be  sealed  in the interests of
 justice. Where the court has determined pursuant to subdivision  one  of
 this  section that sealing is not in the interests of justice, the clerk
 of the court shall include notification of  that  determination  in  any
 report  to such division of the disposition of the action or proceeding.
 When the defendant has been found guilty of a violation of harassment in
 the second degree and it was determined pursuant to subdivision  eight-a
 of  section  170.10  of  this  title  that  such violation was committed
 against a member of the same family or household as the  defendant,  the
 clerk  of  the court shall include notification of that determination in
 any report to such division of the disposition of the action or proceed-
 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
 of subdivision one of this section.
   3. A person against whom a criminal action or  proceeding  was  termi-
 nated  by  such person's conviction of a traffic infraction or violation
 other than [a violation of loitering as described in  paragraph  (d)  or
 (e)  of  subdivision  one  of  section  160.10  of  this chapter or] the
 violation of  operating  a  motor  vehicle  while  ability  impaired  as
 described in subdivision one of section eleven hundred ninety-two of the

 S. 5062                             4
 
 vehicle  and  traffic  law, prior to the effective date of this section,
 may upon motion apply to the court in which such  termination  occurred,
 upon  not  less than twenty days notice to the district attorney, for an
 order granting to such person the relief set forth in subdivision one of
 this section, and such order shall be granted unless the district attor-
 ney  demonstrates to the satisfaction of the court that the interests of
 justice require otherwise.
   § 7. Section 841 of the executive law  is  amended  by  adding  a  new
 subdivision 7-b to read as follows:
   7-B.  TAKE  SUCH  STEPS  AS MAY BE NECESSARY TO ENSURE THAT ALL POLICE
 OFFICERS AND PEACE OFFICERS CERTIFIED PURSUANT TO SUBDIVISION  THREE  OF
 THIS  SECTION  RECEIVE APPROPRIATE INSTRUCTION REGARDING THE EVIDENTIARY
 PROHIBITION SET FORTH IN SECTION 60.47 OF THE CRIMINAL PROCEDURE LAW AND
 SECTION FORTY-FIVE HUNDRED NINETEEN-A OF  THE  CIVIL  PRACTICE  LAW  AND
 RULES  RELATING  TO  THE USE OF CONDOMS AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES AS EVIDENCE IN CERTAIN TRIALS, HEARINGS  OR  PROCEEDINGS,
 OR AS A BASIS FOR PROBABLE CAUSE FOR ARREST, INCLUDING THAT UNAUTHORIZED
 SEIZURE  OR  CONFISCATION  OF  CONDOMS  AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES IS A BREACH OF PUBLIC POLICY.
   § 8. The legislative law is amended by adding a new section 49 to read
 as follows:
   § 49. REQUIREMENT WITH RESPECT TO BILLS AMENDING  CERTAIN  LAWS  WHICH
 AFFECT HEALTH AND HUMAN RIGHTS. WHENEVER A COMMITTEE FAVORABLY REPORTS A
 BILL TO AMEND ARTICLES TWO HUNDRED THIRTY OR SECTION 240.37 OF THE PENAL
 LAW,  OR, AT THE DISCRETION OF THE VOTING MAJORITY OF THE COMMITTEE, ANY
 BILL WHICH, IF PASSED, WOULD INCREASE OR DECREASE THE NUMBER  OF  ARRES-
 TEES  OR  PRETRIAL OR SENTENCED POPULATION OF CORRECTIONAL FACILITIES IN
 THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING MAY REQUEST  THAT
 A HEALTH AND HUMAN RIGHTS IMPACT STATEMENT BE PREPARED.  THE LEGISLATURE
 SHALL  BY  CONCURRENT  RESOLUTION  OF  THE SENATE AND ASSEMBLY PRESCRIBE
 RULES REQUIRING HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS TO  ACCOMPANY,
 ON  A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS HAVE
 BEEN REPORTED FROM COMMITTEE.  HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS
 SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL  PASSAGE.  THE
 STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
 BY  RACE,  ETHNICITY,  RELIGION,  AGE,  GENDER,   GENDER   IDENTITY   OR
 EXPRESSION, SEXUAL ORIENTATION, IMMIGRATION STATUS, DISABILITY, OR HOUS-
 ING  STATUS  COMPOSITION OF THE ARRESTEE AND CORRECTIONAL FACILITY POPU-
 LATION AND AN EXPLANATION OF THAT IMPACT. ANY IMPACT  STATEMENT  PRINTED
 WITH  OR  PREPARED  FOR A BILL IS SOLELY FOR THE PURPOSE OF INFORMATION,
 SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGISLATURE  AND  SHALL
 NOT  BE  CONSTRUED  TO REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER
 CHAMBER THEREOF FOR ANY PURPOSE. EACH IMPACT STATEMENT  SHALL  BEAR  THE
 FOLLOWING  DISCLAIMER:  "THE  FOLLOWING  HEALTH  AND HUMAN RIGHTS IMPACT
 STATEMENT IS PREPARED FOR THE BENEFIT OF THE MEMBERS OF THE LEGISLATURE,
 SOLELY FOR PURPOSES OF INFORMATION, SUMMARIZATION  AND  EXPLANATION  AND
 DOES NOT REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER CHAMBER THER-
 EOF FOR ANY PURPOSE."
   §  9.  The  legislative law is amended by adding a new section 83-n to
 read as follows:
   § 83-N. LEGISLATIVE COMMISSION ON HEALTH AND HUMAN  RIGHTS.    1.  THE
 LEGISLATURE  HEREBY  FINDS  THAT  PROMOTING  AND  PROTECTING  HEALTH AND
 RESPECTING AND FULFILLING HUMAN RIGHTS ARE NECESSARILY LINKED, AND  THAT
 COORDINATION  BETWEEN  HEALTH  AND LAW ENFORCEMENT EFFORTS IS CENTRAL TO
 THE EFFECTIVE PROVISION OF GOVERNMENT SERVICES FOR THE  BENEFIT  OF  THE
 PEOPLE OF THE STATE.

 S. 5062                             5
 
   2.  A  LEGISLATIVE  COMMISSION  ON  HEALTH  AND HUMAN RIGHTS IS HEREBY
 ESTABLISHED TO EXAMINE, EVALUATE  AND  MAKE  RECOMMENDATIONS  CONCERNING
 RIGHTS-BASED  APPROACHES  TO  HEALTH  AND LAW ENFORCEMENT INTERVENTIONS.
 THE COMMISSION SHALL ACT AS  A  MECHANISM  FOR  ONGOING  AND  MEANINGFUL
 INVOLVEMENT  OF  THOSE  WHO ARE OR POTENTIALLY COULD BE AFFECTED BY THIS
 LAW, INCLUDING, BUT NOT LIMITED TO, SURVIVORS OF TRAFFICKING, PEOPLE WHO
 ARE OR ARE PROFILED AS BEING INVOLVED IN THE SEX TRADES, COMMUNITIES  OF
 COLOR,  LESBIAN,  GAY,  BISEXUAL  AND  TRANSGENDER PEOPLE, AND PEOPLE IN
 CUSTODIAL SETTINGS. THE COMMISSION SHALL PROVIDE MONITORING  AND  EXPERT
 PERSPECTIVE  TO THE LEGISLATURE, PROMOTING AWARENESS OF PROBLEMS IN REAL
 TIME AS THEY EMERGE, INCREASE COOPERATION AND COLLABORATION BETWEEN  THE
 INDIVIDUALS AND COMMUNITIES DIRECTLY IMPACTED AND THEIR LEGISLATORS, AND
 ALLOW  LEGISLATORS TO SHARE RESPONSIBILITY FOR SUCCESSES AND FAILURES OF
 THESE INITIATIVES. THE COMMISSION SHALL MAKE SUCH RECOMMENDATIONS AS  IT
 MAY  DEEM  NECESSARY AS TO REGULATIONS, POLICIES, PROGRAMS, AND PROPOSED
 LEGISLATION TO PROVIDE AN EQUITABLE SYSTEM OF PROVIDING FOR  THE  PUBLIC
 SAFETY WHILE ALSO PROTECTING PUBLIC HEALTH, TO ENCOURAGE THE MOST EFFEC-
 TIVE  USE OF STATE AND LOCAL RESOURCES, TO PRESERVE THE FISCAL INTEGRITY
 OF BOTH STATE AND LOCAL  GOVERNMENT  HEALTH  SYSTEMS  AND  OTHERWISE  TO
 STRENGTHEN THE FUNDAMENTAL HUMAN RIGHT TO HEALTH.
   3.  THE COMMISSION SHALL CONSIST OF TEN REPRESENTATIVES FROM ORGANIZA-
 TIONS THAT PROMOTE ADVOCACY BY AND FOR  DIRECTLY  IMPACTED  COMMUNITIES.
 FROM  AMONG THE MEMBERS SO APPOINTED, A CHAIRPERSON AND VICE CHAIRPERSON
 SHALL BE DESIGNATED BY THE JOINT  ACTION  OF  THE  CHAIRPERSONS  OF  THE
 SENATE  AND  ASSEMBLY  HEALTH COMMITTEES. ANY VACANCY THAT OCCURS IN THE
 COMMISSION OR IN THE CHAIRMANSHIP OR VICE CHAIRMANSHIP SHALL  BE  FILLED
 IN  THE SAME MANNER IN WHICH THE ORIGINAL APPOINTMENT OR DESIGNATION WAS
 MADE.
   4. THE COMMISSION IN ADDITION TO THE ABOVE MENTIONED POWERS SHALL HAVE
 ALL THE POWERS AND PRIVILEGES OF A  LEGISLATIVE  COMMITTEE  PURSUANT  TO
 THIS CHAPTER.
   5.  FOR  THE  ACCOMPLISHMENT  OF  ITS PURPOSE, THE COMMISSION SHALL BE
 AUTHORIZED AND EMPOWERED TO UNDERTAKE ANY  STUDY,  INQUIRY,  SURVEY,  OR
 ANALYSIS  IT  MAY DEEM RELEVANT THROUGH ITS OWN PERSONNEL IN COOPERATION
 WITH OR BY AGREEMENT WITH ANY OTHER PUBLIC OR PRIVATE AGENCY.
   6. THE COMMISSION MAY REQUIRE AND SHALL RECEIVE FROM  ANY  DEPARTMENT,
 BOARD,  BUREAU,  COMMISSION, AUTHORITY, OFFICE, OR OTHER INSTRUMENTALITY
 OF THE STATE, AND FROM ANY COUNTY, CITY, TOWN OR VILLAGE OF THIS  STATE,
 SUCH  FACILITIES, ASSISTANCE, AND DATA, AS IT DEEMS NECESSARY OR DESIRA-
 BLE FOR PROPER EXECUTION OF ITS POWERS AND DUTIES.
   7. THE COMMISSION MAY HOLD PUBLIC OR PRIVATE HEARINGS AND  SHALL  HAVE
 FULL  POWERS TO SUBPOENA WITNESSES AND ALL RECORDS OR DATA IT SHALL DEEM
 NECESSARY OR DESIRABLE PURSUANT TO THIS CHAPTER.
   8. THE MEMBERS OF THE COMMISSION SHALL SERVE ON A VOLUNTARY BASIS  AND
 RECEIVE NO COMPENSATION FOR THEIR SERVICES.
   §  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
 law, as amended by chapter 169 of the laws of 1994, is amended and a new
 paragraph (g) is added to read as follows:
   (f) Accomplish all of the functions, powers, and duties set  forth  in
 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
 processing  and  disposition  of cases involving violent felony offenses
 specified in subdivision one of section 70.02 of the penal law[.]; AND
   (G) ACCOMPLISH ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET  FORTH  IN
 PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
 CHAPTERS  OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN SUBJECT
 TO THE PROVISIONS OF  SECTIONS  FORTY-NINE  AND  EIGHTY-THREE-N  OF  THE

 S. 5062                             6

 LEGISLATIVE  LAW. THE DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPO-
 RARY PRESIDENT OF THE SENATE, THE MINORITY LEADER  OF  THE  SENATE,  THE
 SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNU-
 AL  REPORT  CONTAINING  THE STATISTICS AND OTHER INFORMATION RELEVANT TO
 THIS SUBDIVISION.
   § 11. If any provision of this article or the application  thereof  to
 any  person,  circumstances,  or  political subdivision of this state is
 adjudged invalid by a court  of  competent  jurisdiction  such  judgment
 shall  not  affect or impair the validity of the other provisions of the
 article or the application thereof to other  political  subdivisions  of
 this state, persons, and circumstances.
   § 12. This act shall take effect on the first of March next succeeding
 the date on which it shall have become a law.

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2017-S5062A (ACTIVE) - Details

See Assembly Version of this Bill:: A7061
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §4519-a, CPLR; amd §§60.47, 160.10 & 160.55, rpld §160.10 sub 1 ¶(d), CP L; amd §§841 & 837, Exec L; add §§49 & 83-n, Leg L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S5638, A7671
2019-2020: S728, S8773, A5177
2021-2022: S2878, A4273
2023-2024: S2543, A281

2017-S5062A (ACTIVE) - Summary

Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.

2017-S5062A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5062A

 TITLE OF BILL :  An act to amend the civil practice law and rules,
the criminal procedure law, the executive law, and the legislative law
in relation to the use in evidence of the fact of possession or
presence on the premises of condoms and other sexual and reproductive
health devices; and to repeal paragraph (d) of subdivision 1 of
section 160.10 of the criminal procedure law relating thereto

 PURPOSE :

The purpose of this bill is to codify the commitment to public health
enshrined in the New York State Constitution, by prohibiting the use
in criminal, civil or administrative proceedings of the fact of
possession or presence of condoms and other reproductive and sexual
health devices as evidence of prostitution or trafficking-related
offenses, and to assess and reduce the disparate impacts of this
practice upon members of vulnerable populations, such as survivors of
trafficking and people who are or are profiled as engaging in the sex
trades.

 EXISTING LAW :

Currently, possession of condoms may be introduced as evidence of
prostitution and trafficking-related offenses in most criminal, civil
and administrative proceedings except misdemeanor prostitution and

loitering for the purpose of prostitution. Other sexual and
reproductive health tools, however, may be introduced as evidence of
all prostitution and trafficking-related offenses.

 SUMMARY OF PROVISIONS :

Section 1 states that this act shall be known as the "End
Criminalization of Condoms Act".

Section 2 states certain legislative findings.

Section 3 adds a new section 4519-a to the civil practice law and
rules to prohibit introduction of the fact of possession or presence
of condoms and other reproductive and sexual health devices as
evidence of prostitution, patronizing a prostitute, promoting
prostitution, permitting prostitution, maintaining a premises for
prostitution, lewdness or assignation, or maintaining a bawdy house,
in any trial, hearing or proceeding pursuant to section 12 and article
10 of the multiple dwelling law (liens on premises used for unlawful
purposes), sections 12-a and title 2 of article 23 of the public
health law (hearings and equitable proceedings regarding premises used
for prostitution), section 231 of the real property law (voiding of
lease on premises used for unlawful purposes), or sections 711 and 715
of the real property actions and proceedings law (summary eviction
proceedings).

Section 4 adds a new section 60.49 to the criminal procedure law to
prohibit introduction of the fact of possession or presence of condoms
and other reproductive and sexual health devices as evidence of
prostitution or trafficking-related activity in any trial, hearing or
proceeding pursuant to article 230 or section 240.37 of the penal law

(prostitution and trafficking-related offenses), or section 6512 of
the education law (unlicensed practice of a profession), or by any
related local or municipal law or regulation, for the purpose of
establishing probable cause for an arrest or proving any person's
commission or attempted commission of such offense.

Section 5 amends section 160.10(1) of the criminal procedure law to
remove subdivision two of section 240.37 of the penal law (loitering
for the purpose of engaging in a prostitution offense) to provide that
this violation shall no longer be an offense requiring fingerprinting.

Section 6 amends section 160.55 of the criminal procedure law to
remove subdivision two of section 240.37 of the penal law (loitering
for the purpose of engaging in a prostitution offense) to provide that
sealing of convictions appropriate to violation-level offenses shall
be available for this violation. It also deletes references to former
section 240.35 of the penal law, as repealed by chapter 232 of the
laws of 2010.

Section 7 adds a new subdivision 7-b to section 841 of the executive
law to authorize the Commissioner of Criminal Justice Services to take
such steps as necessary to ensure that police and peace officers
receive appropriate instruction regarding the evidentiary prohibition
set forth in section 60.47 of the criminal procedure law.

Section 8 adds a new section 49 to the legislative law to create
guidelines for the implementation and use of health and human rights
impact statements to accompany certain legislation.

Section 9 adds a new section 83-n to the legislative law to establish
a volunteer legislative commission on health and human rights.

Section 10 amends paragraph f of subdivision 4 of section 837 of the
executive law to require that the Division of Criminal Justice
Services conduct research and analysis necessary to complete health
and human rights impact statements and present an annual report
containing statistics and other information relevant to such
statements

Section 11 sets forth a severability provision. Section 12 establishes
the effective date.

 JUSTIFICATION :

Currently, for purposes of prosecuting certain criminal, civil and
administrative offenses, reproductive and sexual health tools, and
particularly condoms and lubricants, are being confiscated and
destroyed by law enforcement officers and introduced by prosecution as
evidence in trials, hearings, and proceedings. This practice deters
those most vulnerable to the HIV epidemic, other sexually transmitted
infections, and unwanted pregnancies from using condoms by sending the
message that possession or presence of condoms provides a legal basis
for being stopped, questioned, and arrested by police. This message
undermines public health efforts to promote safer sex practices, and
creates a perverse incentive for exploiters to deny access to critical
reproductive and sexual health tools to victims of trafficking, which
are essential to enabling them to protect themselves from unwanted
pregnancies, HIV and other sexually transmitted infections.

Promoting and protecting health and respecting and fulfilling human
rights are necessarily linked, and health-oriented and rights-based
law enforcement efforts are central to the effective provision of
government services for the benefit of the people of the State. By
adopting a comprehensive ban on using the possession or presence of
condoms as evidence in all prostitution-related cases, this bill will
help to encourage, instead of discourage, safer sex practices.

Article 17, section 3 of the New York State Constitution requires that
the legislature protect and promote the health of the inhabitants of
this state as a matter of public concern. It is pursuant to this
principle that the New York City Department of Health and Mental
Hygiene spends upward to $30 million annually on distributing more
than 38 million condoms per year at approximately 3,580 locations
throughout New York City. However, with one hand the government
distributes these condoms and with the other it destroys, confiscates
and introduces them as evidence of criminal offenses. The same New
York City branded condoms distributed by the City are thrown in City
trashcans, or listed as arrest evidence on police property vouchers
and on supporting depositions filed in criminal cases as evidence of
intent to engage in prostitution in the prosecution of the offenses
covered by this bill.

The practice of using condoms as evidence in prostitution cases has
come under criticism across the country. In 2012, Congresswoman
Kathleen Rice as former Nassau County District Attorney implemented a
comprehensive ban on the use of condoms as evidence in all
prostitution and trafficking-related prosecutions in her jurisdiction.
Congresswoman Rice concluded that any potential benefits of using
condoms as evidence do not outweigh the public health impact. She also
noted that more serious trafficking cases are made out on witness and
other evidence, and that "condom evidence was rarely of any value to a
prosecution." According to Rice, "If you need that condom so badly in
the case against a trafficker, then you don't have a good case.

Governor Andrew M. Cuomo recently announced a bold commitment to end
the AIDS epidemic in New York by 2020. The first-ever statewide
initiative to reduce new transmissions to 750 or fewer per year,
improve access to care for people living with HIV/AIDS (PLWHA), and
work to ensure that PLWHA have undetectable viral loads at a rate that
outpaces new infections. Under current law, the very same prevention
tools that are centerpieces of this plan - condoms - may be lawfully
confiscated and introduced as evidence in a criminal prosecution for a
prostitution or trafficking-related offense. New York simply cannot
end AIDS by 2020 without lifting barriers to access and use of these
critical sexual health tools.

2017-S5062A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5062--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2017
                                ___________
 
 Introduced   by  Sens.  MONTGOMERY,  BAILEY,  COMRIE,  HOYLMAN,  PARKER,
   PERSAUD, RIVERA, SAVINO, SERRANO, SQUADRON -- read twice  and  ordered
   printed,  and when printed to be committed to the Committee on Judici-
   ary --  committee  discharged,  bill  amended,  ordered  reprinted  as
   amended and recommitted to said committee

 AN ACT to amend the civil practice law and rules, the criminal procedure
   law, the executive law, and the legislative law in relation to the use
   in  evidence  of the fact of possession or presence on the premises of
   condoms and other sexual  and  reproductive  health  devices;  and  to
   repeal  paragraph (d) of subdivision 1 of section 160.10 of the crimi-
   nal procedure law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the "End crimi-
 nalization of condoms act".
   § 2. Legislative findings. The legislature hereby finds that promoting
 and  protecting  health  and  respecting and fulfilling human rights are
 necessarily  linked,  and  that  health-oriented  and  rights-based  law
 enforcement efforts are central to the effective provision of government
 services for the benefit of the people of the State. Article 17, section
 3 of the New York constitution requires that the legislature protect and
 promote  the  health  of  the  inhabitants  of this state as a matter of
 public concern. Despite these provisions, for  purposes  of  prosecuting
 certain  criminal,  civil  and administrative offenses, reproductive and
 sexual health tools, including condoms, are currently  being  destroyed,
 confiscated,  or  used  as  evidence  by  law enforcement officers. This
 legislation is intended to strengthen the public health of all New York-
 ers, including the most vulnerable, while preserving the ability of  law
 enforcement  to  prosecute  other crimes such as felony sexual offenses.
 The purpose of this bill is to avoid the disparate impact of  the  prac-
 tice of citing condoms and other reproductive and sexual health tools as
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06195-03-7

 S. 5062--A                          2
 
 evidence  upon  survivors  of  trafficking  and  people  who  are or are
 profiled as being engaged in the sex trades.
   §  3.  The  civil  practice  law  and rules is amended by adding a new
 section 4519-a to read as follows:
   § 4519-A. POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICES; RECEIPT
 INTO EVIDENCE.  1. THE FACT OF POSSESSION OF A CONDOM OR OTHER REPRODUC-
 TIVE OR SEXUAL HEALTH DEVICE MAY NOT BE  RECEIVED  IN  EVIDENCE  IN  ANY
 TRIAL,  HEARING  OR  PROCEEDING  PURSUANT  TO SUBDIVISION ONE OF SECTION
 TWELVE AND ARTICLE TEN OF THE MULTIPLE DWELLING LAW,  SECTIONS  TWELVE-A
 AND  TWENTY-THREE  HUNDRED  TWENTY OF THE PUBLIC HEALTH LAW, SECTION TWO
 HUNDRED THIRTY-ONE OF THE REAL  PROPERTY  LAW  OR  SUBDIVISION  FIVE  OF
 SECTION  SEVEN  HUNDRED  ELEVEN AND SECTION SEVEN HUNDRED FIFTEEN OF THE
 REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, OR BY ANY LAW, LOCAL  LAW  OR
 ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR BY ANY WORD, RULE
 OR  REGULATION  OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY LAW TO
 ADOPT THE SAME AS EVIDENCE OF PROSTITUTION,  PATRONIZING  A  PROSTITUTE,
 PROMOTING  PROSTITUTION, PERMITTING PROSTITUTION, MAINTAINING A PREMISES
 FOR PROSTITUTION, LEWDNESS OR ASSIGNATION, MAINTAINING  A  BAWDY  HOUSE,
 COMPELLING PROSTITUTION, OR SEX TRAFFICKING.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE  OR  OTHER  TOOL  USED  TO PREVENT UNWANTED PREGNANCY OR THE TRANS-
 MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
 LIMITED  TO  MALE  CONDOMS,  FEMALE  CONDOMS,  LUBRICANTS,  PRE-EXPOSURE
 PROPHYLAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETRO-
 VIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS, EMERGENCY CONTRACEPTION,
 DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   §  4. Section 60.47 of the criminal procedure law, as added by section
 2 of part I of chapter 57 of the laws of 2015, is  amended  to  read  as
 follows:
 § 60.47 Possession  of  condoms  OR  OTHER REPRODUCTIVE OR SEXUAL HEALTH
           DEVICE; receipt into evidence.
   1. Evidence that a person was in possession of one or more condoms  OR
 OTHER  REPRODUCTIVE  OR  SEXUAL HEALTH DEVICE may not be admitted at any
 trial, hearing, or  other  proceeding  in  a  prosecution  for  [section
 230.00]  ANY  OFFENSE,  OR  AN ATTEMPT TO COMMIT ANY OFFENSE, DEFINED IN
 ARTICLE TWO HUNDRED THIRTY or  section  240.37  of  the  penal  law,  OR
 SECTION  SIXTY-FIVE  HUNDRED  TWELVE  OF  THE EDUCATION LAW, OR ANY LAW,
 LOCAL LAW OR ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR  ANY
 WORD,  RULE OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED
 BY LAW TO ADOPT THE SAME, for the purpose of establishing probable cause
 for an arrest or proving any person's commission or attempted commission
 of such offense, AS  EVIDENCE  OF  PROSTITUTION  OR  TRAFFICKING-RELATED
 ACTIVITY.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE  OR  OTHER  TOOL  USED  TO PREVENT UNWANTED PREGNANCY OR THE TRANS-
 MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
 LIMITED TO MALE CONDOMS, FEMALE CONDOMS, LUBRICANT, PRE-EXPOSURE PROPHY-
 LAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"),  HIV  ANTI-RETROVIRAL
 MEDICATION,   SPERMICIDE,  HORMONAL  METHODS,  EMERGENCY  CONTRACEPTION,
 DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   § 5. Paragraph (d) of subdivision 1 of section 160.10 of the  criminal
 procedure law is REPEALED.
   §  5-a. Paragraph (c) of subdivision 1 of section 160.10 of the crimi-
 nal procedure law, as amended by chapter 762 of the  laws  of  1971,  is
 amended to read as follows:

 S. 5062--A                          3
 
   (c) A misdemeanor defined outside the penal law which would constitute
 a  felony  if  such  person  had a previous judgment of conviction for a
 crime[; or].
   §  6. The opening paragraph of subdivision 1, subdivision 2 and subdi-
 vision 3 of section 160.55 of the criminal procedure  law,  the  opening
 paragraph  of  subdivision  1  as  amended by chapter 169 of the laws of
 1994, subdivision 2 as amended by chapter 476 of the laws  of  2009  and
 subdivision  3  as amended by chapter 249 of the laws of 1981 and renum-
 bered by chapter 142 of the  laws  of  1991,  are  amended  to  read  as
 follows:
   Upon  the  termination  of  a  criminal action or proceeding against a
 person by the conviction of such person of a  traffic  infraction  or  a
 violation,  other  than  [a violation of loitering as described in para-
 graph (d) or (e) of subdivision one of section 160.10  of  this  chapter
 or] the violation of operating a motor vehicle while ability impaired as
 described in subdivision one of section eleven hundred ninety-two of the
 vehicle  and  traffic law, unless the district attorney upon motion with
 not less than five days notice to such person or  his  or  her  attorney
 demonstrates  to  the  satisfaction  of  the court that the interests of
 justice require otherwise, or the court on its own motion with not  less
 than  five  days notice to such person or his or her attorney determines
 that the interests of justice require otherwise and states  the  reasons
 for  such  determination  on  the record, the clerk of the court wherein
 such criminal action or  proceeding  was  terminated  shall  immediately
 notify the commissioner of the division of criminal justice services and
 the  heads  of all appropriate police departments and other law enforce-
 ment agencies that the action has been terminated  by  such  conviction.
 Upon receipt of notification of such termination:
   2.  A  report  of  the  termination  of  the  action  or proceeding by
 conviction of a traffic violation or a violation other than [a violation
 of loitering as described in paragraph (d) or (e) of subdivision one  of
 section  160.10  of  this  title  or] the violation of operating a motor
 vehicle while ability  impaired  as  described  in  subdivision  one  of
 section  eleven hundred ninety-two of the vehicle and traffic law, shall
 be sufficient notice of sealing to the commissioner of the  division  of
 criminal  justice  services  unless  the  report also indicates that the
 court directed that the  record  not  be  sealed  in  the  interests  of
 justice.  Where  the court has determined pursuant to subdivision one of
 this section that sealing is not in the interests of justice, the  clerk
 of  the  court  shall  include notification of that determination in any
 report to such division of the disposition of the action or  proceeding.
 When the defendant has been found guilty of a violation of harassment in
 the  second degree and it was determined pursuant to subdivision eight-a
 of section 170.10 of  this  title  that  such  violation  was  committed
 against  a  member of the same family or household as the defendant, the
 clerk of the court shall include notification of that  determination  in
 any report to such division of the disposition of the action or proceed-
 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
 of subdivision one of this section.
   3.  A  person  against whom a criminal action or proceeding was termi-
 nated by such person's conviction of a traffic infraction  or  violation
 other  than  [a  violation of loitering as described in paragraph (d) or
 (e) of subdivision one  of  section  160.10  of  this  chapter  or]  the
 violation  of  operating  a  motor  vehicle  while  ability  impaired as
 described in subdivision one of section eleven hundred ninety-two of the
 vehicle and traffic law, prior to the effective date  of  this  section,

 S. 5062--A                          4
 
 may  upon  motion apply to the court in which such termination occurred,
 upon not less than twenty days notice to the district attorney,  for  an
 order granting to such person the relief set forth in subdivision one of
 this section, and such order shall be granted unless the district attor-
 ney  demonstrates to the satisfaction of the court that the interests of
 justice require otherwise.
   § 7. Section 841 of the executive law  is  amended  by  adding  a  new
 subdivision 7-b to read as follows:
   7-B.  TAKE  SUCH  STEPS  AS MAY BE NECESSARY TO ENSURE THAT ALL POLICE
 OFFICERS AND PEACE OFFICERS CERTIFIED PURSUANT TO SUBDIVISION  THREE  OF
 THIS  SECTION  RECEIVE APPROPRIATE INSTRUCTION REGARDING THE EVIDENTIARY
 PROHIBITION SET FORTH IN SECTION 60.47 OF THE CRIMINAL PROCEDURE LAW AND
 SECTION FORTY-FIVE HUNDRED NINETEEN-A OF  THE  CIVIL  PRACTICE  LAW  AND
 RULES  RELATING  TO  THE USE OF CONDOMS AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES AS EVIDENCE IN CERTAIN TRIALS, HEARINGS  OR  PROCEEDINGS,
 OR AS A BASIS FOR PROBABLE CAUSE FOR ARREST, INCLUDING THAT UNAUTHORIZED
 SEIZURE  OR  CONFISCATION  OF  CONDOMS  AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES IS A BREACH OF PUBLIC POLICY.
   § 8. The legislative law is amended by adding a new section 49 to read
 as follows:
   § 49. REQUIREMENT WITH RESPECT TO BILLS AMENDING  CERTAIN  LAWS  WHICH
 AFFECT HEALTH AND HUMAN RIGHTS. WHENEVER A COMMITTEE FAVORABLY REPORTS A
 BILL TO AMEND ARTICLES TWO HUNDRED THIRTY OR SECTION 240.37 OF THE PENAL
 LAW,  OR, AT THE DISCRETION OF THE VOTING MAJORITY OF THE COMMITTEE, ANY
 BILL WHICH, IF PASSED, WOULD INCREASE OR DECREASE THE NUMBER  OF  ARRES-
 TEES  OR  PRETRIAL OR SENTENCED POPULATION OF CORRECTIONAL FACILITIES IN
 THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING MAY REQUEST  THAT
 A HEALTH AND HUMAN RIGHTS IMPACT STATEMENT BE PREPARED.  THE LEGISLATURE
 SHALL  BY  CONCURRENT  RESOLUTION  OF  THE SENATE AND ASSEMBLY PRESCRIBE
 RULES REQUIRING HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS TO  ACCOMPANY,
 ON  A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS HAVE
 BEEN REPORTED FROM COMMITTEE.  HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS
 SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL  PASSAGE.  THE
 STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
 BY  RACE,  ETHNICITY,  RELIGION,  AGE,  GENDER,   GENDER   IDENTITY   OR
 EXPRESSION, SEXUAL ORIENTATION, IMMIGRATION STATUS, DISABILITY, OR HOUS-
 ING  STATUS  COMPOSITION OF THE ARRESTEE AND CORRECTIONAL FACILITY POPU-
 LATION AND AN EXPLANATION OF THAT IMPACT. ANY IMPACT  STATEMENT  PRINTED
 WITH  OR  PREPARED  FOR A BILL IS SOLELY FOR THE PURPOSE OF INFORMATION,
 SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGISLATURE  AND  SHALL
 NOT  BE  CONSTRUED  TO REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER
 CHAMBER THEREOF FOR ANY PURPOSE. EACH IMPACT STATEMENT  SHALL  BEAR  THE
 FOLLOWING  DISCLAIMER:  "THE  FOLLOWING  HEALTH  AND HUMAN RIGHTS IMPACT
 STATEMENT IS PREPARED FOR THE BENEFIT OF THE MEMBERS OF THE LEGISLATURE,
 SOLELY FOR PURPOSES OF INFORMATION, SUMMARIZATION  AND  EXPLANATION  AND
 DOES NOT REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER CHAMBER THER-
 EOF FOR ANY PURPOSE."
   §  9.  The  legislative law is amended by adding a new section 83-n to
 read as follows:
   § 83-N. LEGISLATIVE COMMISSION ON HEALTH AND HUMAN  RIGHTS.    1.  THE
 LEGISLATURE  HEREBY  FINDS  THAT  PROMOTING  AND  PROTECTING  HEALTH AND
 RESPECTING AND FULFILLING HUMAN RIGHTS ARE NECESSARILY LINKED, AND  THAT
 COORDINATION  BETWEEN  HEALTH  AND LAW ENFORCEMENT EFFORTS IS CENTRAL TO
 THE EFFECTIVE PROVISION OF GOVERNMENT SERVICES FOR THE  BENEFIT  OF  THE
 PEOPLE OF THE STATE.

 S. 5062--A                          5
 
   2.  A  LEGISLATIVE  COMMISSION  ON  HEALTH  AND HUMAN RIGHTS IS HEREBY
 ESTABLISHED TO EXAMINE, EVALUATE  AND  MAKE  RECOMMENDATIONS  CONCERNING
 RIGHTS-BASED  APPROACHES  TO  HEALTH  AND LAW ENFORCEMENT INTERVENTIONS.
 THE COMMISSION SHALL ACT AS  A  MECHANISM  FOR  ONGOING  AND  MEANINGFUL
 INVOLVEMENT  OF  THOSE  WHO ARE OR POTENTIALLY COULD BE AFFECTED BY THIS
 LAW, INCLUDING, BUT NOT LIMITED TO, SURVIVORS OF TRAFFICKING, PEOPLE WHO
 ARE OR ARE PROFILED AS BEING INVOLVED IN THE SEX TRADES, COMMUNITIES  OF
 COLOR,  LESBIAN,  GAY,  BISEXUAL  AND  TRANSGENDER PEOPLE, AND PEOPLE IN
 CUSTODIAL SETTINGS. THE COMMISSION SHALL PROVIDE MONITORING  AND  EXPERT
 PERSPECTIVE  TO THE LEGISLATURE, PROMOTING AWARENESS OF PROBLEMS IN REAL
 TIME AS THEY EMERGE, INCREASE COOPERATION AND COLLABORATION BETWEEN  THE
 INDIVIDUALS AND COMMUNITIES DIRECTLY IMPACTED AND THEIR LEGISLATORS, AND
 ALLOW  LEGISLATORS TO SHARE RESPONSIBILITY FOR SUCCESSES AND FAILURES OF
 THESE INITIATIVES. THE COMMISSION SHALL MAKE SUCH RECOMMENDATIONS AS  IT
 MAY  DEEM  NECESSARY AS TO REGULATIONS, POLICIES, PROGRAMS, AND PROPOSED
 LEGISLATION TO PROVIDE AN EQUITABLE SYSTEM OF PROVIDING FOR  THE  PUBLIC
 SAFETY WHILE ALSO PROTECTING PUBLIC HEALTH, TO ENCOURAGE THE MOST EFFEC-
 TIVE  USE OF STATE AND LOCAL RESOURCES, TO PRESERVE THE FISCAL INTEGRITY
 OF BOTH STATE AND LOCAL  GOVERNMENT  HEALTH  SYSTEMS  AND  OTHERWISE  TO
 STRENGTHEN THE FUNDAMENTAL HUMAN RIGHT TO HEALTH.
   3.  THE COMMISSION SHALL CONSIST OF TEN REPRESENTATIVES FROM ORGANIZA-
 TIONS THAT PROMOTE ADVOCACY BY AND FOR  DIRECTLY  IMPACTED  COMMUNITIES.
 FROM  AMONG THE MEMBERS SO APPOINTED, A CHAIRPERSON AND VICE CHAIRPERSON
 SHALL BE DESIGNATED BY THE JOINT  ACTION  OF  THE  CHAIRPERSONS  OF  THE
 SENATE  AND  ASSEMBLY  HEALTH COMMITTEES. ANY VACANCY THAT OCCURS IN THE
 COMMISSION OR IN THE CHAIRMANSHIP OR VICE CHAIRMANSHIP SHALL  BE  FILLED
 IN  THE SAME MANNER IN WHICH THE ORIGINAL APPOINTMENT OR DESIGNATION WAS
 MADE.
   4. THE COMMISSION IN ADDITION TO THE ABOVE MENTIONED POWERS SHALL HAVE
 ALL THE POWERS AND PRIVILEGES OF A  LEGISLATIVE  COMMITTEE  PURSUANT  TO
 THIS CHAPTER.
   5.  FOR  THE  ACCOMPLISHMENT  OF  ITS PURPOSE, THE COMMISSION SHALL BE
 AUTHORIZED AND EMPOWERED TO UNDERTAKE ANY  STUDY,  INQUIRY,  SURVEY,  OR
 ANALYSIS  IT  MAY DEEM RELEVANT THROUGH ITS OWN PERSONNEL IN COOPERATION
 WITH OR BY AGREEMENT WITH ANY OTHER PUBLIC OR PRIVATE AGENCY.
   6. THE COMMISSION MAY REQUIRE AND SHALL RECEIVE FROM  ANY  DEPARTMENT,
 BOARD,  BUREAU,  COMMISSION, AUTHORITY, OFFICE, OR OTHER INSTRUMENTALITY
 OF THE STATE, AND FROM ANY COUNTY, CITY, TOWN OR VILLAGE OF THIS  STATE,
 SUCH  FACILITIES, ASSISTANCE, AND DATA, AS IT DEEMS NECESSARY OR DESIRA-
 BLE FOR PROPER EXECUTION OF ITS POWERS AND DUTIES.
   7. THE COMMISSION MAY HOLD PUBLIC OR PRIVATE HEARINGS AND  SHALL  HAVE
 FULL  POWERS TO SUBPOENA WITNESSES AND ALL RECORDS OR DATA IT SHALL DEEM
 NECESSARY OR DESIRABLE PURSUANT TO THIS CHAPTER.
   8. THE MEMBERS OF THE COMMISSION SHALL SERVE ON A VOLUNTARY BASIS  AND
 RECEIVE NO COMPENSATION FOR THEIR SERVICES.
   §  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
 law, as amended by chapter 169 of the laws of 1994, is amended and a new
 paragraph (g) is added to read as follows:
   (f) Accomplish all of the functions, powers, and duties set  forth  in
 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
 processing  and  disposition  of cases involving violent felony offenses
 specified in subdivision one of section 70.02 of the penal law[.]; AND
   (G) ACCOMPLISH ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET  FORTH  IN
 PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
 CHAPTERS  OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN SUBJECT
 TO THE PROVISIONS OF  SECTIONS  FORTY-NINE  AND  EIGHTY-THREE-N  OF  THE

 S. 5062--A                          6
 
 LEGISLATIVE  LAW. THE DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPO-
 RARY PRESIDENT OF THE SENATE, THE MINORITY LEADER  OF  THE  SENATE,  THE
 SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNU-
 AL  REPORT  CONTAINING  THE STATISTICS AND OTHER INFORMATION RELEVANT TO
 THIS SUBDIVISION.
   § 11. If any provision of this article or the application  thereof  to
 any  person,  circumstances,  or  political subdivision of this state is
 adjudged invalid by a court  of  competent  jurisdiction  such  judgment
 shall  not  affect or impair the validity of the other provisions of the
 article or the application thereof to other  political  subdivisions  of
 this state, persons, and circumstances.
   § 12. This act shall take effect on the first of March next succeeding
 the date on which it shall have become a law; provided, however that the
 amendments to article 5-A of the legislative law made by section nine of
 this act shall not affect the repeal of such article and shall be deemed
 repealed therewith.

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Senate Bill S5062A

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Bill Amendments

co-Sponsors

2017-S5062 - Details

2017-S5062 - Summary

2017-S5062 - Sponsor Memo

2017-S5062 - Bill Text download pdf

co-Sponsors

2017-S5062A (ACTIVE) - Details

2017-S5062A (ACTIVE) - Summary

2017-S5062A (ACTIVE) - Sponsor Memo

2017-S5062A (ACTIVE) - Bill Text download pdf

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