NY State Senate Bill 2023-S5340

Senate Bill S5340

2023-2024 Legislative Session

Relates to creating the crime of unlawful dissemination or publication of discovery material

download bill text pdf

Current 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 03, 2024	referred to codes
Mar 02, 2023	referred to codes

2023-S5340 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §215.09, Pen L; amd §§510.10, 530.20 & 530.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S9018
2021-2022: S6945

2023-S5340 (ACTIVE) - Summary

Creates the crime of unlawful dissemination or publication of discovery material; defines the circumstances under which a person is guilty of such crime; establishes that such crime is a class E felony.

2023-S5340 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5340

SPONSOR: WEIK
 
TITLE OF BILL:

An act to amend the penal law and the criminal procedure law, in
relation to creating the crime of unlawful dissemination or publication
of discovery material

 
PURPOSE:

To prevent the unlawful dissemination or publication of discovery mate-
rial.

 
SUMMARY OF PROVISIONS:

Section 1: Amends the penal law by establishing the crime of unlawful
dissemination or publication of discovery material as a class E felony.
A person is guilty of such crime when he or she intentionally dissem-
inates or publishes discovery material with the intent of intimidating
or harassing another person, or disseminates or publishes such material
to another person he or she knew or reasonably should have known

intended to use such material to intimidate or harass another person.
Provides an exemption for a defense counsel communicating directly with
the defendant in accordance with Article 245 of the Criminal Procedure
Law.

Section 2: Provides that unlawful dissemination or publication of
discovery material shall be a qualifying offense for the purpose of
subdivision 4 of Section 510.10 of the Criminal Procedure Law to grant
courts the discretion to fix bail or commit the principal to custody of
the sheriff.

Section 3: Provides similar provisions to that of Section 2 of this act
for local criminal courts.

Section 4: Provides similar provisions to that of Section 2 of this act
for superior courts.

Section 5: Provides the effective date.

 
JUSTIFICATION:

In the summer of 2020, videos posted online by an unknown individual
depicting an interview by a law enforcement officer of an alleged
participant in a shooting about a slew of criminal activities-with one
of the videos receiving more than 30,000 views. These videos were
required tc be turned over to the defense attorney by the local district
attorney's office due to reforms passed by New York State in 2019
regarding the criminal discovery process.

Although the criminal discovery reforms provided for protective orders
in an attempt to prevent the abuse of information received during
discovery, concerns were still raised that protective orders would not
be sufficient to protect the safety of witnesses who come forward in
criminal investigations. As evidenced by the leaked videos from this
summer-these concerns were founded. In fact, while shootings were up 87%
in New York City last year, for example, NYPD members have said that
they are having trouble getting cooperating witnesses to come forward.
This inability to produce witnesses is attributed in part by some to the
changes in discovery laws and the lack of protections provided to
witnesses. This has a chilling effect on the ability of law enforcement
to identify criminals and prevent them from further contributing to the
spike in violence that we have seen this year.

This legislation would establish the crime of unlawful dissemination or
publication of discovery material. A person would be guilty of this if
he or she intentionally disseminates or publishes discovery material
with the intent of intimidating or harassing another person, or dissem-
inates or publishes such material to another person he or she knew or
reasonably should have known intended to do so.  Furthermore, unlawful
dissemination or publication of discovery material would be classified
as a class E felony, as well as a qualifying offense for the purpose of
allowing courts the discretion to set bail or keep the defendant in
custody.

For our criminal justice system to work, it is absolutely essential that
we can protect those who bravely come forward to speak out crimes which
they have witnesses. Currently, many New Yorkers feel that is not the
case, and enacting this legislation would be a critical step toward
ensuring them that their safety is a top priority.

 
LEGISLATIVE HISTORY:

2022: S6945 Codes

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S5340 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5340
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 2, 2023
                                ___________
 
 Introduced  by  Sen.  WEIK  --  read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
   relation  to  creating the crime of unlawful dissemination or publica-
   tion of discovery material

   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 215.09 to
 read as follows:
 § 215.09 UNLAWFUL DISSEMINATION OR PUBLICATION OF DISCOVERY MATERIAL.
   1. A PERSON IS GUILTY OF  UNLAWFUL  DISSEMINATION  OR  PUBLICATION  OF
 DISCOVERY MATERIAL, WHEN HE OR SHE:
   A.  INTENTIONALLY  DISSEMINATES  OR  PUBLISHES  MATERIAL DEFINED UNDER
 SECTION 245.20 OF THE CRIMINAL PROCEDURE LAW WITH THE INTENT  OF  INTIM-
 IDATING OR HARASSING ANOTHER PERSON; OR
   B.  INTENTIONALLY  DISSEMINATES  OR  PUBLISHES  MATERIAL DEFINED UNDER
 SECTION 245.20 OF THE CRIMINAL PROCEDURE LAW TO ANOTHER PERSON AND HE OR
 SHE KNEW OR REASONABLY SHOULD HAVE KNOWN THAT THE PERSON INTENDED TO USE
 THE DISCOVERY MATERIAL TO INTIMIDATE OR HARASS ANOTHER PERSON.
   2. A PERSON WHO IS THE DEFENSE COUNSEL  TO  A  DEFENDANT  IN  A  LEGAL
 PROCEEDING SHALL NOT BE GUILTY OF AN OFFENSE UNDER PARAGRAPH B OF SUBDI-
 VISION ONE OF THIS SECTION, WHEN COMMUNICATING DIRECTLY WITH THE DEFEND-
 ANT  IN  ACCORDANCE  WITH ARTICLE TWO HUNDRED FORTY-FIVE OF THE CRIMINAL
 PROCEDURE LAW.
   3. UNDER THIS SECTION, "DISSEMINATES" AND "PUBLISHES" SHALL  HAVE  THE
 SAME MEANINGS AS UNDER SECTION 250.40 OF THIS PART.
   UNLAWFUL DISSEMINATION OR PUBLICATION OF DISCOVERY MATERIAL IS A CLASS
 E FELONY.
   §  2. Paragraphs (t) and (u) of subdivision 4 of section 510.10 of the
 criminal procedure law, paragraph (t) as amended and  paragraph  (u)  as
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09275-02-3
 S. 5340                             2

 
 added  by section 2 of subpart B of part UU of chapter 56 of the laws of
 2022, are amended and a new paragraph (v) is added to read as follows:
   (t)  any  felony or class A misdemeanor involving harm to an identifi-
 able person or property, or any  charge  of  criminal  possession  of  a
 firearm  as  defined  in  section  265.01-b of the penal law, where such
 charge arose from conduct occurring while the defendant was released  on
 his or her own recognizance, released under conditions, or had yet to be
 arraigned  after the issuance of a desk appearance ticket for a separate
 felony or class A misdemeanor involving harm to an  identifiable  person
 or  property,  or  any  charge  of  criminal  possession of a firearm as
 defined in section 265.01-b of the penal law,  provided,  however,  that
 the  prosecutor must show reasonable cause to believe that the defendant
 committed the instant crime and any underlying crime. For  the  purposes
 of  this subparagraph, any of the underlying crimes need not be a quali-
 fying offense as defined in this subdivision. For the purposes  of  this
 paragraph,  "harm  to  an identifiable person or property" shall include
 but not be limited to theft of or damage  to  property.  However,  based
 upon  a review of the facts alleged in the accusatory instrument, if the
 court determines that such theft is negligible and does not appear to be
 in furtherance of  other  criminal  activity,  the  principal  shall  be
 released  on  his or her own recognizance or under appropriate non-mone-
 tary conditions; [or]
   (u) criminal possession of a weapon in the third degree as defined  in
 subdivision three of section 265.02 of the penal law or criminal sale of
 a  firearm  to a minor as defined in section 265.16 of the penal law[.];
 OR
   (V) UNLAWFUL DISSEMINATION OR PUBLICATION  OF  DISCOVERY  MATERIAL  AS
 DEFINED IN SECTION 215.09 OF THE PENAL LAW.
   § 3. Subparagraphs (xx) and (xxi) of paragraph (b) of subdivision 1 of
 section  530.20  of  the  criminal  procedure  law, subparagraph (xx) as
 amended and subparagraph (xxi) as added by section 4  of  subpart  C  of
 part UU of chapter 56 of the laws of 2022, are amended and a new subpar-
 agraph (xxii) is added to read as follows:
   (xx)  any felony or class A misdemeanor involving harm to an identifi-
 able person or property, or any  charge  of  criminal  possession  of  a
 firearm  as  defined  in  section  265.01-b  of the penal law where such
 charge arose from conduct occurring while the defendant was released  on
 his or her own recognizance, released under conditions, or had yet to be
 arraigned  after the issuance of a desk appearance ticket for a separate
 felony or class A misdemeanor involving harm to an  identifiable  person
 or property, provided, however, that the prosecutor must show reasonable
 cause  to believe that the defendant committed the instant crime and any
 underlying crime. For the purposes of  this  subparagraph,  any  of  the
 underlying  crimes  need  not be a qualifying offense as defined in this
 subdivision. For the purposes of this paragraph, "harm to  an  identifi-
 able person or property" shall include but not be limited to theft of or
 damage to property. However, based upon a review of the facts alleged in
 the  accusatory  instrument,  if the court determines that such theft is
 negligible and does not appear to be in furtherance  of  other  criminal
 activity, the principal shall be released on his or her own recognizance
 or under appropriate non-monetary conditions; [or]
   (xxi)  criminal  possession of a weapon in the third degree as defined
 in subdivision three of section 265.02 of the penal law or criminal sale
 of a firearm to a minor as  defined  in  section  265.16  of  the  penal
 law[.]; OR
 S. 5340                             3

   (XXII)  UNLAWFUL DISSEMINATION OR PUBLICATION OF DISCOVERY MATERIAL AS
 DEFINED IN SECTION 215.09 OF THE PENAL LAW.
   §  4. Paragraphs (t) and (u) of subdivision 4 of section 530.40 of the
 criminal procedure law, paragraph (t) as amended and  paragraph  (u)  as
 added  by section 4 of subpart B of part UU of chapter 56 of the laws of
 2022, are amended and a new paragraph (v) is added to read as follows:
   (t) any felony or class A misdemeanor involving harm to  an  identifi-
 able  person  or  property,  or  any  charge of criminal possession of a
 firearm as defined in section 265.01-b of  the  penal  law,  where  such
 charge  arose from conduct occurring while the defendant was released on
 his or her own recognizance, released under conditions, or had yet to be
 arraigned after the issuance of a desk appearance ticket for a  separate
 felony  or  class A misdemeanor involving harm to an identifiable person
 or property, or any charge  of  criminal  possession  of  a  firearm  as
 defined  in  section  265.01-b of the penal law, provided, however, that
 the prosecutor must show reasonable cause to believe that the  defendant
 committed  the  instant crime and any underlying crime. For the purposes
 of this subparagraph, any of the underlying crimes need not be a  quali-
 fying  offense  as defined in this subdivision. For the purposes of this
 paragraph, "harm to an identifiable person or  property"  shall  include
 but  not  be  limited  to theft of or damage to property. However, based
 upon a review of the facts alleged in the accusatory instrument, if  the
 court determines that such theft is negligible and does not appear to be
 in  furtherance  of  other  criminal  activity,  the  principal shall be
 released on his or her own recognizance or under  appropriate  non-mone-
 tary conditions; [or]
   (u)  criminal possession of a weapon in the third degree as defined in
 subdivision three of section 265.02 of the penal law or criminal sale of
 a firearm to a minor as defined in section 265.16 of the penal law[.]  ;
 OR
   (V)  UNLAWFUL  DISSEMINATION  OR  PUBLICATION OF DISCOVERY MATERIAL AS
 DEFINED IN SECTION 215.09 OF THE PENAL LAW
   § 5. This act shall take effect immediately.

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