S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6872
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                    April 23, 2013
                                      ___________
       Introduced  by  M. of A. ROSA -- read once and referred to the Committee
         on Codes
       AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
         relation  to  creating  the  crimes of electronic stalking, and adding
         electronic stalking to designated offenses for eavesdropping  warrants
         and to amend the correction law, in relation to including a conviction
         of  electronic  stalking  under  the  requirements of the sex offender
         registration act
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section  120.40 of the penal law is amended by adding two
    2  new subdivisions 6 and 7 to read as follows:
    3    6. "ELECTRONIC  COMMUNICATION"  SHALL  MEAN  ANY  TRANSFER  OF  SIGNS,
    4  SIGNALS,  WRITINGS,  IMAGES, SOUNDS, DATA, OR INTELLIGENCE OF ANY NATURE
    5  TRANSMITTED IN WHOLE OR IN  PART  BY  A  WIRE,  RADIO,  ELECTROMAGNETIC,
    6  PHOTO-ELECTRONIC,  OR  PHOTO-OPTICAL  SYSTEM.  ELECTRONIC  COMMUNICATION
    7  INCLUDES, BUT IS NOT LIMITED TO,  THE  TRANSFER  OF  THAT  COMMUNICATION
    8  THROUGH THE INTERNET.
    9    7.  "PERSONAL  IDENTIFYING  INFORMATION"  SHALL  MEAN A PERSON'S NAME,
   10  ADDRESS, TELEPHONE NUMBER, DATE OF BIRTH, DRIVER'S LICENSE NUMBER, MOTOR
   11  VEHICLE LICENSE PLATE NUMBER, SOCIAL SECURITY NUMBER, PLACE  OF  EMPLOY-
   12  MENT,  SCHOOL,  MOTHER'S MAIDEN NAME, IMAGE, OR SCHEDULE OF DAILY ACTIV-
   13  ITIES.
   14    S 2. Subdivision 4 of section 120.55 of the penal law, as  amended  by
   15  chapter 598 of the laws of 2003, is amended to read as follows:
   16    4. Being twenty-one years of age or older, repeatedly follows a person
   17  under the age of fourteen or engages in a course of conduct or repeated-
   18  ly  commits acts over a period of time intentionally placing or attempt-
   19  ing to place such person who is under the age of fourteen in  reasonable
   20  fear  of physical injury, serious physical injury [or], death, OR BECOM-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10397-01-3
       A. 6872                             2
    1  ING THE VICTIM OF A SEX OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY
    2  OF THIS TITLE; or
    3    S  3.  The  penal  law is amended by adding three new sections 120.61,
    4  120.62 and 120.63 to read as follows:
    5  S 120.61 ELECTRONIC STALKING IN THE THIRD DEGREE.
    6    A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE THIRD DEGREE WHEN  HE
    7  OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
    8  COMMUNICATION  THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
    9  A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
   10  CATION IS LIKELY TO CAUSE SUCH PERSON  TO  REASONABLY  FEAR  THE  DEATH,
   11  SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
   12  SONMENT  OF  SUCH  PERSON  OR  ANOTHER  PERSON;  THE COMMISSION OF A SEX
   13  OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS  TITLE  AGAINST
   14  SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
   15  NAL TRESPASS OR BURGLARY.
   16    ELECTRONIC STALKING IN THE THIRD DEGREE IS A CLASS E FELONY.
   17  S 120.62 ELECTRONIC STALKING IN THE SECOND DEGREE.
   18    A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE SECOND DEGREE WHEN HE
   19  OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
   20  COMMUNICATION  THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
   21  A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
   22  CATION IS LIKELY TO CAUSE SUCH PERSON  TO  REASONABLY  FEAR  THE  DEATH,
   23  SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
   24  SONMENT  OF  SUCH  PERSON  OR  ANOTHER  PERSON;  THE COMMISSION OF A SEX
   25  OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS  TITLE  AGAINST
   26  SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
   27  NAL TRESPASS OR BURGLARY, AND:
   28    1.  SUCH COMMUNICATION FACILITATES THE COMMISSION OR ATTEMPTED COMMIS-
   29  SION OF A CRIME OTHER THAN A CLASS A, B OR C FELONY AND  SUCH  CRIME  OR
   30  ATTEMPTED CRIME ACTUALLY OCCURS; OR
   31    2. SUCH COMMUNICATION INVOLVES THE DISSEMINATION OF PERSONAL IDENTIFY-
   32  ING  INFORMATION  CONCERNING  A PERSON UNDER THE AGE OF EIGHTEEN AND THE
   33  ACTOR IS EIGHTEEN YEARS OLD OR MORE; OR
   34    3. SUCH COMMUNICATION INVOLVES THE DISSEMINATION OF PERSONAL IDENTIFY-
   35  ING INFORMATION CONCERNING A PERSON WHO IS A PUBLIC SERVANT  AS  DEFINED
   36  IN SUBDIVISION FIFTEEN OF SECTION 10.00 OF THIS CHAPTER AND THE INFORMA-
   37  TION  IS COMMUNICATED BECAUSE OF THE PERSON'S POSITION AS A PUBLIC SERV-
   38  ANT; OR
   39    4. HE OR SHE DOES SO  BY  KNOWINGLY  ASSUMING  THE  IDENTITY  OF  SUCH
   40  SPECIFIC  PERSON  BY  PRESENTING  HIMSELF  OR  HERSELF  AS THAT SPECIFIC
   41  PERSON, OR BY ACTING AS THAT SPECIFIC PERSON, OR BY USING PERSONAL IDEN-
   42  TIFYING INFORMATION OF THAT SPECIFIC PERSON.
   43    ELECTRONIC STALKING IN THE SECOND DEGREE IS A CLASS D FELONY.
   44  S 120.63 ELECTRONIC STALKING IN THE FIRST DEGREE.
   45    A PERSON IS GUILTY OF ELECTRONIC STALKING IN THE FIRST DEGREE WHEN  HE
   46  OR SHE, INTENTIONALLY AND FOR NO LEGITIMATE PURPOSE, MAKES AN ELECTRONIC
   47  COMMUNICATION  THAT INCLUDES PERSONAL IDENTIFYING INFORMATION CONCERNING
   48  A SPECIFIC PERSON AND KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNI-
   49  CATION IS LIKELY TO CAUSE SUCH PERSON  TO  REASONABLY  FEAR  THE  DEATH,
   50  SERIOUS PHYSICAL INJURY, PHYSICAL INJURY, KIDNAPPING, OR UNLAWFUL IMPRI-
   51  SONMENT  OF  SUCH  PERSON  OR  ANOTHER  PERSON;  THE COMMISSION OF A SEX
   52  OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS  TITLE  AGAINST
   53  SUCH PERSON OR ANOTHER PERSON; OR THE COMMISSION OF THE CRIMES OF CRIMI-
   54  NAL TRESPASS OR BURGLARY; AND SUCH COMMUNICATION FACILITATES THE COMMIS-
   55  SION  OR ATTEMPTED COMMISSION OF A CLASS A, B OR C FELONY AND SUCH CRIME
   56  OR ATTEMPTED CRIME ACTUALLY OCCURS.
       A. 6872                             3
    1    ELECTRONIC STALKING IN THE FIRST DEGREE IS A CLASS C FELONY.
    2    S  4. Paragraph (p) of subdivision 8 of section 700.05 of the criminal
    3  procedure law, as added by chapter 635 of the laws of 1999,  is  amended
    4  to read as follows:
    5    (p)  Stalking in the second degree as defined in section 120.55 of the
    6  penal law, [and] stalking in the first  degree  as  defined  in  section
    7  120.60  of  the  penal  law,  ELECTRONIC STALKING IN THE THIRD DEGREE AS
    8  DEFINED IN SECTION 120.61 OF THE PENAL LAW, ELECTRONIC STALKING  IN  THE
    9  SECOND  DEGREE  AS DEFINED IN SECTION 120.62 OF THE PENAL LAW, AND ELEC-
   10  TRONIC STALKING IN THE FIRST DEGREE AS DEFINED IN SECTION 120.63 OF  THE
   11  PENAL LAW.
   12    S  5. Subdivision 8 of section 700.05 of the criminal procedure law is
   13  amended by adding a new paragraph (u) to read as follows:
   14    (U) DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST  DEGREE  AS
   15  DEFINED  IN  SECTION 235.22 OF THE PENAL LAW, USE OF A CHILD IN A SEXUAL
   16  PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW, PROMOTING  AN
   17  OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD AS DEFINED IN SECTION 263.10 OF
   18  THE PENAL LAW, POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  AS
   19  DEFINED  IN SECTION 263.11 OF THE PENAL LAW, PROMOTING A SEXUAL PERFORM-
   20  ANCE BY A CHILD AS DEFINED IN SECTION  263.15  OF  THE  PENAL  LAW,  AND
   21  POSSESSING  A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.16
   22  OF THE PENAL LAW.
   23    S 6. Paragraphs (b) and (c) of subdivision 1 of section 70.02  of  the
   24  penal  law,  as amended by chapter 1 of the laws of 2013, are amended to
   25  read as follows:
   26    (b) Class C violent felony offenses: an attempt to commit any  of  the
   27  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   28  vated criminally negligent homicide as defined in section 125.11, aggra-
   29  vated manslaughter in the second degree as defined  in  section  125.21,
   30  aggravated  sexual  abuse  in  the  second  degree as defined in section
   31  130.67, assault on a peace officer, police officer, fireman or emergency
   32  medical services professional as defined in section 120.08, assault on a
   33  judge as defined in section 120.09, gang assault in the second degree as
   34  defined in section 120.06, ELECTRONIC STALKING IN THE  FIRST  DEGREE  AS
   35  DEFINED  IN SECTION 120.63, strangulation in the first degree as defined
   36  in section 121.13, burglary in the second degree as defined  in  section
   37  140.25, robbery in the second degree as defined in section 160.10, crim-
   38  inal  possession  of a weapon in the second degree as defined in section
   39  265.03, criminal use of a firearm in the second  degree  as  defined  in
   40  section  265.08,  criminal  sale  of  a  firearm in the second degree as
   41  defined in section 265.12, criminal sale of a firearm with the aid of  a
   42  minor  as defined in section 265.14, aggravated criminal possession of a
   43  weapon as defined in section 265.19, soliciting or providing support for
   44  an act of terrorism in the first degree as defined  in  section  490.15,
   45  hindering  prosecution  of  terrorism in the second degree as defined in
   46  section 490.30, and criminal possession of a chemical weapon or  biolog-
   47  ical weapon in the third degree as defined in section 490.37.
   48    (c)  Class  D violent felony offenses: an attempt to commit any of the
   49  class C felonies set forth in paragraph (b); reckless assault of a child
   50  as defined in section 120.02, assault in the second degree as defined in
   51  section 120.05, menacing a police officer or peace officer as defined in
   52  section 120.18, stalking in the first degree, as defined in  subdivision
   53  one  of  section  120.60,  ELECTRONIC  STALKING  IN  THE FIRST DEGREE AS
   54  DEFINED IN SECTION 120.63, strangulation in the second degree as defined
   55  in section 121.12, rape in the  second  degree  as  defined  in  section
   56  130.30,  criminal  sexual act in the second degree as defined in section
       A. 6872                             4
    1  130.45, sexual abuse in the first degree as defined in  section  130.65,
    2  course of sexual conduct against a child in the second degree as defined
    3  in  section  130.80,  aggravated  sexual  abuse  in  the third degree as
    4  defined  in section 130.66, facilitating a sex offense with a controlled
    5  substance as defined in section 130.90, criminal possession of a  weapon
    6  in  the  third degree as defined in subdivision five, six, seven, eight,
    7  nine or ten of section 265.02, criminal sale of a firearm in  the  third
    8  degree as defined in section 265.11, intimidating a victim or witness in
    9  the  second degree as defined in section 215.16, soliciting or providing
   10  support for an act of terrorism in  the  second  degree  as  defined  in
   11  section  490.10,  and  making a terroristic threat as defined in section
   12  490.20, falsely reporting an incident in the first degree as defined  in
   13  section 240.60, placing a false bomb or hazardous substance in the first
   14  degree  as  defined in section 240.62, placing a false bomb or hazardous
   15  substance in a sports stadium or arena, mass transportation facility  or
   16  enclosed  shopping  mall  as  defined  in section 240.63, and aggravated
   17  unpermitted use of indoor pyrotechnics in the first degree as defined in
   18  section 405.18.
   19    S 7. Subparagraph (iii) of paragraph (d) and paragraph (e) of subdivi-
   20  sion 2 of section 168-a of the correction  law,  subparagraph  (iii)  of
   21  paragraph  (d)  as  amended by chapter 232 of the laws of 2008 and para-
   22  graph (e) as amended by chapter 513 of the laws of 2011, are amended and
   23  a new paragraph (f) is added to read as follows:
   24    (iii) any of the provisions of 18 U.S.C. 2251,  18  U.S.C.  2251A,  18
   25  U.S.C.  2252,  18  U.S.C.  2252A,  18 U.S.C. 2260, 18 U.S.C. 2422(b), 18
   26  U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime
   27  of conviction are substantially the same as those which are  a  part  of
   28  such  offense as of the date on which this subparagraph takes effect[.];
   29  OR
   30    (e) a conviction of or a conviction for an attempt to  commit  any  of
   31  the  provisions  of  subdivision two, three or four of section 250.45 of
   32  the penal law, unless upon motion by the  defendant,  the  trial  court,
   33  having  regard  to  the nature and circumstances of the crime and to the
   34  history and character of the defendant, is of the opinion that registra-
   35  tion would be unduly harsh and inappropriate[.]; OR
   36    (F) A CONVICTION FOR ANY OF THE PROVISIONS DEFINED IN SECTIONS 120.61,
   37  120.62, OR 120.63 OF THE PENAL LAW, UNLESS UPON MOTION BY THE DEFENDANT,
   38  THE TRIAL COURT, HAVING REGARD TO THE NATURE AND  CIRCUMSTANCES  OF  THE
   39  CRIME AND TO THE HISTORY AND CHARACTER OF THE DEFENDANT, IS OF THE OPIN-
   40  ION THAT REGISTRATION WOULD BE UNDULY HARSH AND INAPPROPRIATE.
   41    S 8. This act shall take effect on the first of November next succeed-
   42  ing the date on which it shall have become a law.