NY State Senate Bill 2021-S94

Senate Bill S94

2021-2022 Legislative Session

Increases the penalties for bias-related and gang related graffiti, and graffiti upon religious property

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes 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 05, 2022	referred to codes
Jan 06, 2021	referred to codes

2021-S94 (ACTIVE) - Details

See Assembly Version of this Bill:: A5090
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §§60.31 & 145.62, amd §§65.10, 145.60 & 240.31, Pen L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1856
2011-2012: S532, A6648
2013-2014: S2251, A3740
2015-2016: S849, A4392
2017-2018: S1785, A7449
2019-2020: S83, A7138

2021-S94 (ACTIVE) - Summary

Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.

2021-S94 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S94

SPONSOR: KAMINSKY
 
TITLE OF BILL:

An act to amend the penal law, in relation to bias-related graffiti, the
disposition of graffiti offenses, graffiti for the purpose of promoting
gang related activities and graffiti upon religious property

 
PURPOSE OF THE BILL:

The purpose of this bill is to address the pervasive problem of graffiti
by taking a multi-faceted approach while also recognizing that all
graffiti is the same. Graffiti that is created in relation to gangs and
graffiti made on religious structures or curtilage should be treated
with greater severity, Additionally, graffiti is often the tool of hate-
ful harassment based on race, religion, sex, or other factors, thus this
legislation addresses graffiti that is made from this hateful angle.
Lastly, educating offenders on the severity of the crime of graffiti and
requiring them to clean up damaged property may help to curb the inci-
dence of such activities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends the Penal Law by adding section 60.31 which allows a
judge to require completion of a diversity training program when the
graffiti creator is convicted of Aggravated harassment in the first
degree as defined in section 240.31 of the penal law.

Section 2: Amends Penal Law section 65.10(2) (h) to change Division of
Substance Abuse Services to Office of Alcoholism and Substance Abuse.

Section 3: Amends penal Law Section 65.10 to add a new subdivision 6
which requires that, when practicable and not dangerous, the court
require that the defendant convicted of such graffiti activity remove
the graffiti from the property that was the underlying cause of the
offense.

Section 4: Amends Penal Law Section 145.60 to make that section of law
to become the lower offense of making graffiti in the second degree.

Section 5: Amends the Penal Law to add a new section 145.62 to create a
new heightened crime of making graffiti in the first degree. Making
graffiti in the first degree requires doing the commission of the crime
of graffiti in the second plus it is done in a manner that either: a)
promotes or encourages gang related activities or b) is graffiti placed
on a religious building, structure, or curtilage of a place of worship
or upon property consisting of religious symbols representative of
expressing faith. To be convicted of this crime, the assailant would
need to have knowledge that such property was religious property or was
property that embodied a religious beliefs and that such person intended
to damage such property. Graffiti in the first degree is a Class E Felo-
ny.

Section 6: Amends Penal Law section 240.31 which defines Aggravated
harassment in the first degree to add section 1-a which includes graffi-
ti placed on the property that is motivated by a person's race, ances-
try, gender, religion, religious practice, or other factors as aggra-
vated harassment.
 
JUSTIFICATION:

This bill recognizes that existing law does not appropriately address
the growing problem of graffiti, especially that graffiti that is moti-
vated by gang related activity or against houses of worship, religious
property, or religious museums.  Graffiti is a pervasive problem that
causes damage to property, lowers property values, lowers the wellbeing
of the neighborhood, may heighten the incidence of crime, and represents
a serious quality of life problem for many New Yorkers. The laws in
place now have not gone far enough to stem the growing trend in graffiti
which has even targeted Houses of worship or religious museums and often
can contain messages of hate. Such graffiti can also be used as a tool
of organized gangs to promote their illegal activities.

In this vein, these amendments take into account many facets of the
issue ranging from mindless vandalism to targeted hate. First, this
legislation requires that anyone caught creating graffiti is taught the
lasting lesson of the difficulty of cleaning up such vandalism by allow-
ing a judge to require, where practicable and not unduly dangerous, that
as part of the punishment that the graffiti be cleaned up with the prop-
erty owner's consent.

This bill creates a class E felony to combat this problem. It also adds
as Aggravated harassment in the first degree graffiti motivated by a
person's characteristics such as race, national origin, gender, reli-
gion, religious practice, age, disability or other factors. This creates
a tool to help those being harassed and intimidated based upon their
religious beliefs, ethnicity, sex, or other characteristics. It requires
that those who are found to have committed aggravated harassment, graff-
iti or not, that we address the underlying problem and require that in
the court's discretion that the offender complete a diversity training
program.

Also as a class E felony, this legislation creates the offense of graff-
iti in the first degree when the offender creates graffiti that either
promotes or encourages gang related activities or is done on or in the
curtilage or a place of religious worship or on a display of religious
symbols. This recognizes that graffiti designed to further crime or to
attack religious freedoms is far more serious than graffiti created as
mindless vandalism. That the underlying sentiment is far more dangerous
and should be addressed as such by both categorization as a class E
felony.

This bill goes far to address the realities and spectrum of the issues
graffiti presents. It teaches the hard lessons of consequences by
requiring the errant vandal to clean up his or her mess. It also
addresses underlying problems of hate and violence by re-categorizing
certain types of graffiti as class E felonies.

 
PRIOR LEGISLATIVE HISTORY:

2020 - S.83 (Kaminsky) died in Codes

2019 - S.83 (Kaminsky) died in Codes 2019-S.1785 (Klein) died in Codes

2017-S.1785 (Klein), Passed Senate

2016-S.849 (Klein), Passed Senate
2014-S.2251 (Klein), Passed Senate

2012-S.532 (Klein), Passed Senate

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This law shall take effect on the first of November next succeeding the
date on which it shall have become law.

2021-S94 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    94
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sen. KAMINSKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to bias-related graffiti, the
   disposition of graffiti offenses, graffiti for the purpose of  promot-
   ing gang related activities and graffiti upon religious property
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  The penal law is amended by adding a new section 60.31  to
 read as follows:
 § 60.31 AUTHORIZED  DISPOSITION;  AGGRAVATED  HARASSMENT  IN  THE  FIRST
           DEGREE.
   WHEN A PERSON IS CONVICTED  OF  AGGRAVATED  HARASSMENT  IN  THE  FIRST
 DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO
 COMMIT  SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION TO
 ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL
 DISCHARGE THE COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT  HIS  OR
 HER  OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO OVER-
 COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU-
 NICATION, UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS  AND
 ETHNIC GROUPS.
   § 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
 as  amended  by  chapter  508 of the laws of 2001, is amended to read as
 follows:
   (h) Perform services for a public or not-for-profit corporation, asso-
 ciation, institution or agency, including but not  limited  to  services
 for  the  [division]  OFFICE of ALCOHOLISM AND substance abuse services,
 [services in an appropriate community program for  removal  of  graffiti
 from  public  or private property, including any property damaged in the
 underlying offense,] or services for the maintenance and repair of  real
 or  personal property maintained as a cemetery plot, grave, burial place
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00979-01-1

 S. 94                               2
 
 or other place of interment of human remains. Provided however, that the
 performance of any such services shall not result in the displacement of
 employed  workers  or  in  the  impairment  of  existing  contracts  for
 services,  nor shall the performance of any such services be required or
 permitted in any establishment involved in any labor strike or  lockout.
 The  court  may  establish  provisions  for  the  early termination of a
 sentence  of  probation  or  conditional  discharge  pursuant   to   the
 provisions of subdivision three of section 410.90 of the criminal proce-
 dure law after such services have been completed. Such sentence may only
 be  imposed  upon  conviction of a misdemeanor, violation, or class D or
 class E felony, or  a  youthful  offender  finding  replacing  any  such
 conviction,  where  the defendant has consented to the amount and condi-
 tions of such service;
   § 3. Section 65.10 of the penal law is amended by adding a new  subdi-
 vision 6 to read as follows:
   6.  GRAFFITI  REMOVAL.    WHEN  IMPOSING A SENTENCE OF PROBATION OR OF
 CONDITIONAL DISCHARGE IN CONNECTION WITH A VIOLATION OF SECTION  145.60,
 145.62  OR 145.65 OF THIS CHAPTER, THE COURT SHALL AS A CONDITION OF THE
 SENTENCE, REQUIRE THAT THE DEFENDANT  REMOVE  GRAFFITI  FROM  PUBLIC  OR
 PRIVATE  PROPERTY,  INCLUDING  ANY  PROPERTY  DAMAGED  IN THE UNDERLYING
 OFFENSE, UNLESS THE COURT SHALL DETERMINE THAT AN APPROPRIATE PROGRAM TO
 SUPERVISE SUCH REMOVAL IS NOT AVAILABLE OR THAT  SUCH  GRAFFITI  REMOVAL
 WOULD  BE  UNREASONABLY  DANGEROUS;  PROVIDED,  HOWEVER,  THAT  GRAFFITI
 REMOVAL FROM PRIVATE PROPERTY PURSUANT  TO  THIS  SUBDIVISION  SHALL  BE
 SUBJECT TO CONSENT OF THE OWNER OF SUCH PROPERTY.
   §  4.  Section 145.60 of the penal law, as added by chapter 458 of the
 laws of 1992, is amended to read as follows:
 § 145.60 Making graffiti IN THE SECOND DEGREE.
   1. For purposes of this section AND SECTION 145.62  OF  THIS  ARTICLE,
 the  term "graffiti" shall mean the etching, painting, covering, drawing
 upon or otherwise placing of a mark upon public or private property with
 intent to damage such property.
   2. [No person shall make] A PERSON IS GUILTY OF MAKING GRAFFITI IN THE
 SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building,
 public or private, or any other property real or personal owned  by  any
 person,  firm  or  corporation  or any public agency or instrumentality,
 without the express permission of the owner or operator of said  proper-
 ty.
   Making graffiti IN THE SECOND DEGREE is a class A misdemeanor.
   §  5.  The penal law is amended by adding a new section 145.62 to read
 as follows:
 § 145.62 MAKING GRAFFITI IN THE FIRST DEGREE.
   A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST DEGREE WHEN  HE  OR
 SHE  COMMITS  THE  OFFENSE  OF  MAKING  GRAFFITI IN THE SECOND DEGREE AS
 DEFINED IN SECTION 145.60 OF THIS ARTICLE:
   1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR
   2. HAVING KNOWLEDGE THAT SUCH PROPERTY IS USED AS A PLACE OF RELIGIOUS
 WORSHIP, HE OR SHE DAMAGES A BUILDING, STRUCTURE  OR  THE  CURTILAGE  OF
 SUCH  BUILDING  OR  STRUCTURE  USED AS A PLACE OF RELIGIOUS WORSHIP BY A
 RELIGIOUS CORPORATION, AS INCORPORATED UNDER THE RELIGIOUS  CORPORATIONS
 LAW; OR
   3.  HAVING  KNOWLEDGE  THAT SUCH PROPERTY COMPRISES A DISPLAY OF RELI-
 GIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE EXPRESSION OF FAITH, HE  OR
 SHE  DAMAGES  A  SCROLL,  RELIGIOUS  VESTMENT, VESSEL, ITEM COMPRISING A
 DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE A  REPRESENTATIVE  EXPRESSION  OF
 FAITH  OR  A  MISCELLANEOUS  ITEM  OF PROPERTY KEPT OR USED IN OR UPON A

 S. 94                               3
 
 BUILDING, STRUCTURE OR CURTILAGE THEREOF DESCRIBED IN SUBDIVISION TWO OF
 THIS SECTION.
   MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY.
   § 6. Section 240.31 of the penal law is amended by adding a new subdi-
 vision 1-a to read as follows:
   1-A.  ETCHES,  PAINTS,  COVERS,  DRAWS UPON OR OTHERWISE PLACES A MARK
 UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT
 THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL
 PROPERTY; OR
   § 7. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.

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