S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3570
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2023
                                ___________
 
 Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the penal law, in relation to  increasing  the  criminal
   penalties  for  sexual  performances  by  a  child  and in relation to
   providing for consecutive sentencing upon certain multiple convictions

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
 amended  by  chapter  1  of  the  laws  of  2000, are amended to read as
 follows:
   1. "Sexual performance" means any performance or part thereof  which[,
 for purposes of section 263.16 of this article,] includes sexual conduct
 by  a  child less than [sixteen] EIGHTEEN years of age [or, for purposes
 of section 263.05 or 263.15 of this article, includes sexual conduct  by
 a child less than seventeen years of age].
   2.  "Obscene  sexual  performance"  means  any performance which[, for
 purposes of section 263.11 of this article,] includes sexual conduct  by
 a  child  less than [sixteen] EIGHTEEN years of age [or, for purposes of
 section 263.10 of this article, includes sexual conduct by a child  less
 than  seventeen years of age,] in any material which is obscene, as such
 term is defined in section 235.00 of this [chapter] PART.
   § 2. The penal law is amended by adding a new section 263.03  to  read
 as follows:
 § 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
   A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
 THE FIRST DEGREE IF KNOWING THE CHARACTER AND CONTENT THEREOF HE OR  SHE
 EMPLOYS,  AUTHORIZES OR INDUCES A CHILD LESS THAN TWELVE YEARS OF AGE TO
 ENGAGE IN A SEXUAL PERFORMANCE OR BEING  A  PARENT,  LEGAL  GUARDIAN  OR
 CUSTODIAN OF SUCH CHILD, HE OR SHE CONSENTS TO THE PARTICIPATION BY SUCH
 CHILD IN A SEXUAL PERFORMANCE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08183-01-3
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   USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
 B FELONY.
   §  3.  Section 263.05 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.05 Use of a child in a sexual performance IN THE SECOND DEGREE.
   A person is guilty of the use of a child in a  sexual  performance  IN
 THE SECOND DEGREE if knowing the character and content thereof he OR SHE
 employs,  authorizes  or  induces a child less than [seventeen] EIGHTEEN
 years of age to engage in a sexual performance or being a parent,  legal
 guardian  or  custodian of such child, he OR SHE consents to the partic-
 ipation by such child in a sexual performance.
   Use of a child in a sexual performance IN THE SECOND DEGREE is a class
 C felony.
   § 4. The penal law is amended by adding a new section 263.08  to  read
 as follows:
 § 263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
            DEGREE.
   A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
 OF, HE OR SHE PRODUCES, DIRECTS  OR  PROMOTES  ANY  OBSCENE  PERFORMANCE
 WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN TWELVE YEARS OF AGE.
   PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
 IS A CLASS C FELONY.
   §  5.  Section 263.10 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.10 Promoting an obscene sexual  performance  by  a  child  IN  THE
            SECOND DEGREE.
   A  person  is  guilty  of promoting an obscene sexual performance by a
 child IN THE SECOND DEGREE when, knowing the character and content ther-
 eof, he OR SHE produces, directs or  promotes  any  obscene  performance
 which  includes sexual conduct by a child less than [seventeen] EIGHTEEN
 years of age.
   Promoting an obscene sexual performance  by  a  child  IN  THE  SECOND
 DEGREE is a class D felony.
   § 6. Section 263.11 of the penal law, as amended by chapter 456 of the
 laws of 2012, is amended to read as follows:
 § 263.11 Possessing an obscene sexual performance by a child.
   A  person  is  guilty of possessing an obscene sexual performance by a
 child when, knowing the character and content thereof, he OR  SHE  know-
 ingly  has  in  his  OR HER possession or control, or knowingly accesses
 with intent to view,  any  obscene  performance  which  includes  sexual
 conduct by a child less than [sixteen] EIGHTEEN years of age.
   Possessing an obscene sexual performance by a child is a class E felo-
 ny.
   §  7.  The penal law is amended by adding a new section 263.13 to read
 as follows:
 § 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
   A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
 FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR  SHE
 PRODUCES,  DIRECTS  OR  PROMOTES  ANY  PERFORMANCE WHICH INCLUDES SEXUAL
 CONDUCT BY A CHILD LESS THAN TWELVE YEARS OF AGE.
   PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE  FIRST  DEGREE  IS  A
 CLASS C FELONY.
   §  8.  Section 263.15 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.
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   A person is guilty of promoting a sexual performance by a child IN THE
 SECOND DEGREE when, knowing the character and content thereof, he OR SHE
 produces, directs or promotes  any  performance  which  includes  sexual
 conduct by a child less than [seventeen] EIGHTEEN years of age.
   Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
 class D felony.
   § 9. Section 263.16 of the penal law, as amended by chapter 456 of the
 laws of 2012, is amended to read as follows:
 § 263.16 Possessing a sexual performance by a child.
   A person is guilty of possessing a sexual performance by a child when,
 knowing the character and content thereof, he OR SHE  knowingly  has  in
 his  OR  HER possession or control, or knowingly accesses with intent to
 view, any performance which includes sexual conduct by a child less than
 [sixteen] EIGHTEEN years of age.
   Possessing a sexual performance by a child is a class E felony.
   § 10. Subdivision 1 of section 263.20 of the penal law, as amended  by
 chapter 1 of the laws of 2000, is amended to read as follows:
   1.  Under  this  article,  it shall be an affirmative defense that the
 defendant in good faith reasonably believed the person appearing in  the
 performance  was,  for  purposes  of  section  263.10, 263.11, 263.15 or
 263.16 of this article, [sixteen years of age or over or,  for  purposes
 of section 263.05, 263.10 or 263.15 of this article, seventeen] EIGHTEEN
 years of age or over.
   §  11.  The  opening  paragraph  of subdivision 1 and subdivision 2 of
 section 70.25 of the penal law, the opening paragraph of  subdivision  1
 as  amended  by  chapter  372  of  the laws of 1981 and subdivision 2 as
 amended by chapter 56 of the laws of 1984, are amended and a new  subdi-
 vision 6 is added to read as follows:
   Except  as  provided in subdivisions two, two-a [and], five AND SIX of
 this section, when multiple sentences of imprisonment are imposed  on  a
 person  at the same time, or when a person who is subject to any undisc-
 harged term of imprisonment imposed at a previous time  by  a  court  of
 this  state  is  sentenced  to  an  additional term of imprisonment, the
 sentence or sentences imposed by the court shall run either concurrently
 or consecutively with respect to each other and the undischarged term or
 terms in such manner as the court directs at the time  of  sentence.  If
 the  court does not specify the manner in which a sentence imposed by it
 is to run, the sentence shall run as follows:
   2. When more than one sentence of imprisonment is imposed on a  person
 for  two or more offenses committed through a single act or omission, or
 through an act or omission  which  in  itself  constituted  one  of  the
 offenses  and  also  was a material element of the other, the sentences,
 except if one or more of such sentences is for a  violation  of  section
 263.03,  263.05, 263.08, 263.10, 263.13, 263.15, OR 270.20 of this chap-
 ter, must run concurrently.
   6. WHEN A PERSON IS CONVICTED OF USE OF A CHILD IN A  SEXUAL  PERFORM-
 ANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03 OF THIS CHAPTER OR
 USE  OF  A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE AS DEFINED
 IN SECTION 263.05  OF  THIS  CHAPTER  OR  PROMOTING  AN  OBSCENE  SEXUAL
 PERFORMANCE  BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.08
 OF THIS CHAPTER OR PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
 THE SECOND DEGREE AS DEFINED  IN  SECTION  263.10  OF  THIS  CHAPTER  OR
 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
 IN SECTION 263.13 OF THIS CHAPTER OR PROMOTING A SEXUAL PERFORMANCE BY A
 CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15 OF THIS CHAPTER,
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 AND  ANY  OTHER  CRIME,  THE SENTENCES FOR SUCH CRIMES SHALL RUN CONSEC-
 UTIVELY.
   §  12.  This  act  shall  take  effect  on  the first of November next
 succeeding the date on which it shall have become a law.