S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    654
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  M.  of  A. PAULIN, SEAWRIGHT, DICKENS, DINOWITZ, D'URSO,
   GALEF,  GOTTFRIED,  JAFFEE,  JOYNER,  PICHARDO,  L. ROSENTHAL,  SIMON,
   STECK,  NIOU,  HEVESI  -- Multi-Sponsored by -- M. of A. DE LA ROSA --
   read once and referred to the Committee on Codes

 AN ACT to repeal section 240.37 of the penal law, relating to  loitering
   for  the  purpose  of engaging in a prostitution offense; and to amend
   the penal law, the criminal procedure law, the social services law and
   the administrative code of the city of New York, in relation to making
   technical corrections relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The repeal of section 240.37 of the penal law, as effected
 by section two of this act, is hereby declared to be  ameliorative,  and
 it  is  the  intent  of  the  legislature that no prosecution under such
 section be commenced, continued, or refiled.
   § 2. Section 240.37 of the penal law is REPEALED.
   § 3. Section 230.01 of the penal law, as amended by chapter 189 of the
 laws of 2018, is amended to read as follows:
 § 230.01 Prostitution; affirmative defense.
   In any prosecution  under  section  230.00,  section  230.03,  section
 230.19,  SECTION  230.20, subdivision 2 of section 230.25, subdivision 2
 of section 230.30[,] OR section 230.34-a [or subdivision two of  section
 240.37]  of  this  [part] ARTICLE, it is an affirmative defense that the
 defendant's participation in the offense was a result of having  been  a
 victim  of compelling prostitution under section 230.33 OF THIS ARTICLE,
 a victim of sex trafficking under section  230.34  of  this  article,  a
 victim  of  sex  trafficking  of  a child under section 230.34-a of this
 article or a victim of trafficking  in  persons  under  the  trafficking
 victims protection act (United States Code, Title 22, Chapter 78).
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01944-01-9

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   §  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; receipt into evidence.
   Evidence  that  a  person was in possession of one or more condoms may
 not be admitted at any trial, hearing, or other proceeding in  a  prose-
 cution  for  section 230.00 [or section 240.37] of the penal law for the
 purpose of establishing probable cause for  an  arrest  or  proving  any
 person's commission or attempted commission of such offense.
   §  5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the
 criminal procedure law, paragraph (c) as amended by chapter 762  of  the
 laws  of 1971 and paragraph (d) as amended by chapter 232 of the laws of
 2010, are amended to read as follows:
   (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
   (d) Loitering for the purpose of engaging in a prostitution offense as
 defined in subdivision two of section 240.37 of the penal law].
   § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4.  After arraignment upon an information, a simplified information, a
 prosecutor's information or misdemeanor complaint on a charge of prosti-
 tution pursuant to section 230.00 of the penal law [or loitering for the
 purposes of prostitution pursuant to subdivision two of  section  240.37
 of  the  penal law, provided that the person does not stand charged with
 loitering for the  purpose  of  patronizing  a  prostitute,  where  such
 offense  allegedly  occurred  when  the  person was sixteen or seventeen
 years of age,] the local criminal court may dismiss such charge  in  its
 discretion  in  the  interest  of justice on the ground that a defendant
 participated in services provided to him or her.
   § 7. The opening paragraph of subdivision 1 of section 170.80  of  the
 criminal  procedure  law, as amended by chapter 402 of the laws of 2014,
 is amended to read as follows:
   Notwithstanding any other provision of law, at any time  at  or  after
 arraignment  on  a  charge of prostitution pursuant to section 230.00 of
 the penal law [or loitering for the purposes of prostitution pursuant to
 subdivision two of section 240.37 of the penal law,  provided  that  the
 person  does not stand charged with loitering for the purpose of patron-
 izing a prostitute, where  such  offense  allegedly  occurred  when  the
 person  was  sixteen  or  seventeen  years  of  age except where], after
 consultation with counsel, a knowing and voluntary plea  of  guilty  has
 been  entered  to such charge, any judge or justice hearing any stage of
 such case may, upon consent of the  defendant  after  consultation  with
 counsel:
   § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as
 amended  by  chapter  189  of  the  laws  of 2018, is amended to read as
 follows:
   2. Under no circumstances shall the mandatory surcharge, sex  offender
 registration fee, DNA databank fee or the crime victim assistance fee be
 waived  provided,  however,  that  a  court  may  waive the crime victim
 assistance fee if such defendant is an  eligible  youth  as  defined  in
 subdivision two of section 720.10 of this chapter, and the imposition of
 such  fee  would  work an unreasonable hardship on the defendant, his or
 her immediate family, or any other  person  who  is  dependent  on  such
 defendant  for  financial  support.  A  court  shall waive any mandatory
 surcharge, DNA databank fee and crime victim assistance  fee  when:  (i)

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 [the  defendant is convicted of loitering for the purpose of engaging in
 prostitution under section 240.37 of the penal law  (provided  that  the
 defendant  was not convicted of loitering for the purpose of patronizing
 a  person for prostitution); (ii)] the defendant is convicted of prosti-
 tution under section 230.00 of the penal law; [(iii)] (II) the defendant
 is convicted of a violation in the event such conviction is in lieu of a
 plea to or conviction for [loitering for  the  purpose  of  engaging  in
 prostitution  under  section  240.37 of the penal law (provided that the
 defendant was not alleged to be loitering for the purpose of patronizing
 a person for prostitution) or] prostitution under section 230.00 of  the
 penal  law; [or (iv)] (III) the court finds that a defendant is a victim
 of sex trafficking under section 230.34 of the penal law or a victim  of
 trafficking  in  persons  under  the  trafficking victims protection act
 (United States Code, Title 22, Chapter 78);  or  [(v)]  (IV)  the  court
 finds that the defendant is a victim of sex trafficking of a child under
 section 230.34-a of the penal law.
   § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
 added by chapter 402 of the laws of 2014, is amended to read as follows:
   4.  Notwithstanding  any  provision  in this article, a person charged
 with prostitution as defined in section 230.00  of  the  penal  law  [or
 loitering for the purposes of prostitution as defined in subdivision two
 of  section  240.37  of the penal law, provided that the person does not
 stand charged with loitering for the purpose of  patronizing  a  prosti-
 tute,  and  such  person  is aged sixteen or seventeen when such offense
 occurred,] regardless of whether such person (i) had prior to  commence-
 ment  of trial or entry of a plea of guilty been convicted of a crime or
 found a youthful offender, or (ii) subsequent  to  such  conviction  for
 prostitution  [or loitering for prostitution] is convicted of a crime or
 found a youthful offender, the provisions of subdivisions one and two of
 this section requiring or authorizing the  accusatory  instrument  filed
 against a youth to be sealed, and the arraignment and all proceedings in
 the action to be conducted in private shall apply.
   §  10.  Subdivision 1 of section 720.35 of the criminal procedure law,
 as amended by chapter 402 of the laws of 2014, is  amended  to  read  as
 follows:
   1.  A  youthful  offender adjudication is not a judgment of conviction
 for a crime or any other offense, and does not operate  as  a  disquali-
 fication  of  any  person  so  adjudged  to hold public office or public
 employment or to receive any license granted  by  public  authority  but
 shall be deemed a conviction only for the purposes of transfer of super-
 vision  and  custody pursuant to section two hundred fifty-nine-m of the
 executive law. A defendant for whom a youthful offender adjudication was
 substituted, who was originally charged with prostitution as defined  in
 section  230.00 of the penal law [or loitering for the purposes of pros-
 titution as defined in subdivision two of section 240.37  of  the  penal
 law  provided  that the person does not stand charged with loitering for
 the purpose of  patronizing  a  prostitute,  for  an  offense  allegedly
 committed  when  he or she was sixteen or seventeen years of age], shall
 be deemed a "sexually exploited child" as defined in subdivision one  of
 section four hundred forty-seven-a of the social services law and there-
 fore shall not be considered an adult for purposes related to the charg-
 es  in  the  youthful  offender proceeding or a proceeding under section
 170.80 of this chapter.
   § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of  the
 social  services law, as amended by chapter 189 of the laws of 2018, are
 amended to read as follows:

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   (c) is a victim of the crime of compelling prostitution as defined  in
 section 230.33 of the penal law;
   (d)  engages  in  acts  or  conduct  described  in article two hundred
 sixty-three [or section 240.37] of the penal law.
   § 12. The third undesignated paragraph of  subdivision  a  of  section
 3-118  of the administrative code of the city of New York, as amended by
 chapter 189 of the laws of 2018, is amended to read as follows:
   Sexually exploited youth. The term "sexually  exploited  youth"  means
 persons under the age of 18 who have been subject to sexual exploitation
 because  they  (a)  are  the  victim  of the crime of sex trafficking as
 defined in section 230.34 of the penal law; (b) engage  in  any  act  as
 defined  in  section  230.00  of  the penal law; (c) are a victim of the
 crime of compelling prostitution as defined in  section  230.33  of  the
 penal  law;  (d) are a victim of the crime of sex trafficking of a child
 as defined in section 230.34-a of the penal law; or (e) engage  in  acts
 or  conduct  described  in  article  [263 or section 240.37] TWO HUNDRED
 SIXTY-THREE of the penal law.  The term shall also  mean  persons  under
 the  age  of  18  who  have  been subject to incest in the third degree,
 second degree or first degree, as defined in  sections  255.25,  255.26,
 and  255.27  of  the penal law, respectively, or any of the sex offenses
 enumerated in article [130] ONE HUNDRED THIRTY of the penal law.
   § 13. This act shall take effect immediately.