S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  705--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  ORTT  --  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, 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:
 § 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.
              

                                                            LBD04520-02-8

 S. 705--A                           2
 
   UNLAWFULLY  ENTERING OR REMAINING IN A SCHOOL OR FACILITY FOR CHILDREN
 FOR THE PURPOSES OF VOTING IN THE SECOND DEGREE IS A CLASS  A  MISDEMEA-
 NOR.
 §  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.
   §  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.
   §  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.
   § 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.
   § 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:

 S. 705--A                           3
 
   2. a. An applicant for such an absentee ballot shall submit an  appli-
 cation  setting forth (1) his OR HER name and residence address, includ-
 ing the street and number, if any, or town and rural delivery route,  if
 any; (2) that he OR SHE is or will be, on the day of the school district
 election,  a  qualified  voter of the school district in which he OR SHE
 resides in that he OR SHE is or will be, on  such  date,  over  eighteen
 years  of  age,  a  citizen  of  the  United States and has or will have
 resided in the district for thirty days next preceding  such  date;  (3)
 whether  he OR SHE is registered in the district; AND (4) that he OR SHE
 will be unable to appear to vote in person on  the  day  of  the  school
 district  election for which the absentee ballot is requested because he
 OR SHE is, or will be on such day (a) a patient in a hospital, or unable
 to appear personally at the polling place on such day because of illness
 or physical disability [or]; (b) because his OR HER duties,  occupation,
 business, or studies will require him OR HER to be outside of the county
 or  city  of  his OR HER residence on such day[,]; (c) because he OR SHE
 will be on vacation outside the county or city of his OR  HER  residence
 on  such  day;  [or,] (d) absent from his voting residence because he OR
 SHE is detained in jail awaiting action by  a  grand  jury  or  awaiting
 trial  or  is  confined  in prison after conviction for an offense other
 than a felony; OR (E) PROHIBITED FROM APPEARING PERSONALLY AT THE  POLL-
 ING  PLACE  OF  THE  ELECTION DISTRICT IN WHICH HE OR SHE IS A QUALIFIED
 VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR LEVEL THREE SEX  OFFENDER  AND
 SUCH  POLLING  PLACE  IS  LOCATED  ON OR WITHIN A SCHOOL OR FACILITY FOR
 CHILDREN AS THE TERMS "LEVEL TWO  AND  LEVEL  THREE  SEX  OFFENDER"  AND
 "SCHOOL  OR  FACILITY FOR CHILDREN" ARE DEFINED IN SECTION 145.75 OF THE
 PENAL LAW.
   Such application must be received by the district clerk at least seven
 days before the election if the ballot is to be mailed to the voter,  or
 the day before the election, if the ballot is to be delivered personally
 to the voter.
   b. (1) Where such duties, occupation, business, or studies are of such
 a  nature  as ordinarily to require such absence, a brief description of
 such duties, occupation, business, or studies shall be set forth in such
 application. (2) Where such duties, occupation, business, or studies are
 not of such a nature as ordinarily to require such absence, such  appli-
 cation shall contain a statement of the special circumstances on account
 of which such absence is required.
   c.  Where  the applicant expects in good faith to be absent on the day
 of the election because he OR SHE will be on vacation elsewhere on  such
 day,  such application shall also contain the dates upon which he OR SHE
 expects to begin and end such vacation, the place or places where he  OR
 SHE  expects  to be on such vacation, the name and address of his OR HER
 employer, if any, and if self-employed or retired, a statement  to  that
 effect.
   d.  Where  the absence is because of detention or confinement to jail,
 such application shall state whether  the  voter  is  detained  awaiting
 action  of the grand jury or is confined after conviction for an offense
 other than a felony.
   e. WHERE THE APPLICANT INDICATES HE OR SHE IS PROHIBITED FROM  APPEAR-
 ING PERSONALLY AT THE POLLING PLACE OF THE ELECTION DISTRICT IN WHICH HE
 OR  SHE  IS  A QUALIFIED VOTER BECAUSE HE OR SHE IS A LEVEL TWO OR LEVEL
 THREE SEX OFFENDER AND SUCH POLLING PLACE IS  LOCATED  ON  OR  WITHIN  A
 SCHOOL  OR FACILITY FOR CHILDREN AS THE TERMS "LEVEL TWO AND LEVEL THREE
 SEX OFFENDER" AND "SCHOOL OR  FACILITY  FOR  CHILDREN"  ARE  DEFINED  IN
 SECTION  145.75 OF THE PENAL LAW SUCH APPLICATION SHALL STATE WHETHER OR

 S. 705--A                           4

 NOT THE VOTER IS CURRENTLY UNDER A SENTENCE OF IMPRISONMENT FOR A FELONY
 OR ON PAROLE.
   F. Where a person is or would be, if he OR SHE were a qualified voter,
 entitled  to  apply  for  the right to vote by absentee ballot under the
 provisions of this section, his OR HER spouse, parent  or  child,  if  a
 qualified  voter  and  a  resident of the same school district, shall be
 entitled to vote as an absentee voter upon personally making and signing
 an application in accordance  with  the  preceding  provisions  of  this
 subdivision  and  showing  that  he OR SHE expects to be absent from the
 school district on the day of the school district election by reason  of
 accompanying  or  being with the spouse, child or parent who is or would
 be, if he OR SHE were a qualified voter, so entitled to  apply  for  the
 right  to  vote  by absentee ballot, and, in the event no application is
 made by such spouse, child or parent, such further  information  as  the
 board of registration shall require.
   [f.]  G.  Such application shall include the following statement to be
 signed by the voter.
   I hereby declare that the foregoing is a true statement to the best of
 my knowledge and belief, and I understand that if I  make  any  material
 false  statement  in the foregoing statement of application for absentee
 ballots, I shall be guilty of a misdemeanor.
 
 Date.....................Signature of Voter ............................
 
   [g.] H. An applicant whose ability to appear personally at the polling
 place of the school district of which he OR SHE is a qualified voter  is
 substantially  impaired by reason of permanent illness or physical disa-
 bility and whose registration record has been marked "permanently  disa-
 bled"  by  the  board  of  elections  pursuant  to the provisions of the
 election law shall be entitled to receive an absentee ballot pursuant to
 the provisions of this section without making separate  application  for
 such  absentee  ballot, and the board of registration upon being advised
 by the board of elections on or with the list of registered voters  that
 the  registration  record  of  a  voter is marked "permanently disabled"
 shall send an absentee ballot to such voter at his  OR  HER  last  known
 address with a request to the postal authorities not to forward same but
 to  return same in five days in the event that it cannot be delivered to
 the addressee. The board  of  education  shall  determine  whether  such
 ballot  shall  be  sent  by  first  class or by certified mail. All such
 ballots shall be mailed in the same manner as determined by the board of
 education. The board of registration shall make an appropriate entry  on
 the  registration  indicating  the fact that an absentee ballot has been
 sent and the date of mailing.
   § 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

 S. 705--A                           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

 S. 705--A                           6
 
 accompanying  or  being with the spouse, child or parent who is or would
 be, if he OR SHE were a qualified voter, so entitled to  apply  for  the
 right  to  vote  by absentee ballot, and, in the event no application is
 made  by  such  spouse, child or parent, such further information as the
 clerk of the school district or designee of the trustees or school board
 shall require.
   [f.] G. Such application shall include the following statement  to  be
 signed by the voter.
 
   I hereby declare that the foregoing is a true statement to the best of
 my  knowledge  and  belief, and I understand that if I make any material
 false statement in the foregoing statement of application  for  absentee
 ballots, I shall be guilty of a misdemeanor.
 
 Date......................Signature of Voter ...........................
 
   [g.] H. The clerk of the school district or a designee of the trustees
 or  school  board  shall  request  registration  lists from the board of
 elections pursuant to subdivision three of section 5-612 of the election
 law for those voters whose registration record has been  marked  "perma-
 nently disabled". An applicant whose ability to appear personally at the
 polling  place  of the school district of which he OR SHE is a qualified
 voter is substantially impaired by reason of permanent illness or  phys-
 ical  disability  and  whose registration record has been marked "perma-
 nently disabled" as determined by the board of elections pursuant to the
 provisions of this chapter and who has previously applied for an  absen-
 tee  ballot  shall  be  entitled  to receive subsequent absentee ballots
 pursuant to the provisions  of  this  section  without  making  separate
 application  for  such  absentee  ballot,  and  the  clerk of the school
 district or a designee of the trustees or school  board  shall  send  an
 absentee  ballot  to  such voter at his OR HER last known address with a
 request to the postal authorities not to forward same but to return same
 in five days in the event that it cannot be delivered to the  addressee.
 The clerk of the school district or a designee of the trustees or school
 board  shall  determine whether such ballot shall be sent by first class
 or by certified mail. All such ballots  shall  be  mailed  in  the  same
 manner as determined by the trustees or the board of education.
   §  7.  The  election  law is amended by adding a new section 17-172 to
 read as follows:
   § 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

 S. 705--A                           7
 
 APPEARS ON A LIST OF LEVEL TWO OR LEVEL THREE SEX OFFENDERS PROVIDED  BY
 A BOARD OF ELECTIONS OR THE DIVISION OF CRIMINAL JUSTICE SERVICES.
   §  8.  This  act  shall  take  effect  immediately  and shall apply to
 elections held on and after January 1, 2019,  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.