S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2510
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 18, 2013
                                      ___________
       Introduced  by  Sen.  ROBACH -- 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 computer sex crimes against children
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  The penal law is amended by adding a new title Y-2 to read
    2  as follows:
    3                                  TITLE Y-2
    4                    COMPUTER SEX CRIMES AGAINST CHILDREN
    5                                 ARTICLE 495
    6                    COMPUTER SEX CRIMES AGAINST CHILDREN
    7  SECTION 495.00 COMPUTER SEX CRIMES.
    8          495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
    9  S 495.00 COMPUTER SEX CRIMES.
   10    1. A PERSON COMMITS A COMPUTER SEX CRIME WHEN HE OR SHE COMMITS A  SEX
   11  CRIME  AGAINST A CHILD AND FACILITATED THE COMMISSION OF SUCH OFFENSE BY
   12  USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE  TO  COMMUNI-
   13  CATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED.
   14    2. A "SEX CRIME AGAINST A CHILD" MEANS A FELONY OFFENSE (A) THE ESSEN-
   15  TIAL ELEMENTS OF WHICH INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF
   16  SEXUAL  CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THIS
   17  CHAPTER, OR THE USE OR PROMOTION OF A SEXUAL OR OBSCENE SEXUAL  PERFORM-
   18  ANCE,  AS  DEFINED  IN  SECTION 263.00 OF THIS CHAPTER, (B) COMMITTED OR
   19  ATTEMPTED TO BE COMMITTED AGAINST A CHILD LESS THAN SEVENTEEN YEARS OLD.
   20  S 495.05 SENTENCE OF IMPRISONMENT FOR COMPUTER SEX CRIMES.
   21    1. WHEN A PERSON IS CONVICTED OF A  COMPUTER  SEX  CRIME  PURSUANT  TO
   22  SECTION 495.00 OF THIS ARTICLE, AND THE UNDERLYING CRIME AGAINST A CHILD
   23  IS  A  VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF THIS CHAP-
   24  TER, THE COMPUTER SEX CRIME SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01038-02-3
       S. 2510                             2
    1    2. WHEN A PERSON IS CONVICTED OF A  COMPUTER  SEX  CRIME  PURSUANT  TO
    2  SECTION  495.00  OF THIS ARTICLE, AND THE UNDERLYING SEX CRIME AGAINST A
    3  CHILD IS A CLASS C, D OR E FELONY,  THE  COMPUTER  SEX  CRIME  SHALL  BE
    4  DEEMED  TO BE ONE CATEGORY HIGHER THAN THE SEX CRIME AGAINST A CHILD THE
    5  DEFENDANT  COMMITTED,  OR  ONE  CATEGORY  HIGHER  THAN THE OFFENSE LEVEL
    6  APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
    7  COMMIT A SEX CRIME AGAINST A CHILD, WHICHEVER IS APPLICABLE.
    8    3. NOTWITHSTANDING ANY OTHER  PROVISION  OF  LAW,  WHEN  A  PERSON  IS
    9  CONVICTED  OF  A  COMPUTER  SEX CRIME PURSUANT TO SECTION 495.00 OF THIS
   10  ARTICLE AND THE UNDERLYING SEX CRIME AGAINST A CHILD IS A CLASS B  FELO-
   11  NY:
   12    (A)  THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
   13  IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
   14    (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
   15  IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
   16  AND
   17    (C) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
   18  FOUR  YEARS  IF  THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
   19  THIS CHAPTER.
   20    S 2. Subdivisions 4 and 7 of section 200.50 of the criminal  procedure
   21  law, as amended by chapter 7 of the laws of 2007, are amended to read as
   22  follows:
   23    4.  A statement in each count that the grand jury, or, where the accu-
   24  satory instrument is a superior court information, the  district  attor-
   25  ney,  accuses  the  defendant  or  defendants  of  a designated offense,
   26  provided that in any prosecution under article four hundred  eighty-five
   27  of the penal law, the designated offense shall be the specified offense,
   28  as  defined  in  subdivision  three  of section 485.05 of the penal law,
   29  followed by the phrase "as a hate crime", and provided further  that  in
   30  any  prosecution  under  section 490.25 of the penal law, the designated
   31  offense shall be the specified offense, as defined in subdivision  three
   32  of  section  490.05 of the penal law, followed by the phrase "as a crime
   33  of terrorism"; and  provided  further  that  in  any  prosecution  under
   34  section  130.91  of  the  penal law, the designated offense shall be the
   35  specified offense, as defined in subdivision two of  section  130.91  of
   36  the  penal law, followed by the phrase "as a sexually motivated felony",
   37  AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 495.00 OF THE
   38  PENAL LAW, THE DESIGNATED OFFENSE SHALL  BE  THE  UNDERLYING  SEX  CRIME
   39  AGAINST  A CHILD, AS DEFINED IN SUBDIVISION TWO OF SECTION 495.00 OF THE
   40  PENAL LAW, FOLLOWED BY THE PHRASE "AS A COMPUTER SEX CRIME"; and
   41    7. A plain and concise factual statement in each count which,  without
   42  allegations of an evidentiary nature,
   43    (a)  asserts facts supporting every element of the offense charged and
   44  the defendant's or defendants' commission thereof with sufficient preci-
   45  sion to clearly apprise the defendant or defendants of the conduct which
   46  is the subject of the accusation; and
   47    (b) in the case of any armed felony, as defined in subdivision  forty-
   48  one  of  section  1.20,  states that such offense is an armed felony and
   49  specifies  the  particular  implement  the   defendant   or   defendants
   50  possessed,  were  armed  with,  used  or displayed or, in the case of an
   51  implement displayed, specifies what the implement appeared to be; and
   52    (c) in the case of any hate crime, as defined in section 485.05 of the
   53  penal law, specifies, as applicable, that the  defendant  or  defendants
   54  intentionally selected the person against whom the offense was committed
   55  or  intended to be committed; or intentionally committed the act or acts
   56  constituting the offense, in whole or in substantial part because  of  a
       S. 2510                             3
    1  belief  or perception regarding the race, color, national origin, ances-
    2  try, gender, religion, religious practice,  age,  disability  or  sexual
    3  orientation of a person; and
    4    (d)  in the case of a crime of terrorism, as defined in section 490.25
    5  of the penal law,  specifies,  as  applicable,  that  the  defendant  or
    6  defendants  acted  with  intent to intimidate or coerce a civilian popu-
    7  lation, influence the policy of a unit of government by intimidation  or
    8  coercion,  or  affect  the  conduct  of  a unit of government by murder,
    9  assassination or kidnapping; and
   10    (e) in the case of a sexually motivated felony, as defined in  section
   11  130.91  of  the  penal law, asserts facts supporting the allegation that
   12  the offense was sexually motivated; and
   13    (F) IN THE CASE OF A COMPUTER SEX CRIME, AS DEFINED IN SUBDIVISION ONE
   14  OF SECTION 495.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE,  THAT  THE
   15  DEFENDANT  OR  DEFENDANTS  FACILITATED  THE  COMMISSION  OF  A SEX CRIME
   16  AGAINST A CHILD, AS DEFINED IN SUBDIVISION TWO OF SUCH  SECTION  495.00,
   17  BY  USING OR CAUSING TO BE USED A COMPUTER OR COMPUTER SERVICE TO COMMU-
   18  NICATE WITH THE CHILD AGAINST WHOM SUCH OFFENSE IS COMMITTED; AND
   19    S 3. Subdivision 8 of section 700.05 of the criminal procedure law  is
   20  amended by adding two new paragraphs (u) and (v) to read as follows:
   21    (U) COMPUTER SEX CRIMES AS DEFINED IN SECTION 495.00 OF THE PENAL LAW,
   22  COMPUTER TRESPASS AS DEFINED IN SECTION 156.10 OF THE PENAL LAW, COMPUT-
   23  ER  TAMPERING  IN  THE  THIRD DEGREE AS DEFINED IN SECTION 156.25 OF THE
   24  PENAL LAW, COMPUTER TAMPERING IN THE SECOND DEGREE AS DEFINED IN SECTION
   25  156.26 OF THE PENAL LAW, COMPUTER  TAMPERING  IN  THE  FIRST  DEGREE  AS
   26  DEFINED  IN  SECTION  156.27  OF  THE PENAL LAW, UNLAWFUL DUPLICATION OF
   27  COMPUTER RELATED MATERIAL AS DEFINED IN SECTION 156.30 OF THE PENAL LAW,
   28  CRIMINAL POSSESSION OF COMPUTER RELATED MATERIAL AS DEFINED  IN  SECTION
   29  156.35 OF THE PENAL LAW AND DISSEMINATING INDECENT MATERIAL TO MINORS IN
   30  THE FIRST DEGREE AS DEFINED IN SECTION 235.22 OF THE PENAL LAW.
   31    (V)  USE  OF  A  CHILD  IN  A SEXUAL PERFORMANCE AS DEFINED IN SECTION
   32  263.05 OF THE PENAL LAW, PROMOTING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
   33  CHILD  AS  DEFINED  IN  SECTION  263.10  OF THE PENAL LAW, POSSESSING AN
   34  OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN  SECTION  263.11  OF
   35  THE  PENAL  LAW, PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN
   36  SECTION 263.15 OF THE PENAL LAW, POSSESSING A SEXUAL  PERFORMANCE  BY  A
   37  CHILD AS DEFINED IN SECTION 263.16 OF THE PENAL LAW.
   38    S  4.  Paragraph  (a)  of subdivision 1 of section 460.10 of the penal
   39  law, as amended by chapter 405 of the laws of 2010, is amended  to  read
   40  as follows:
   41    (a)  Any  of  the felonies set forth in this chapter: sections 120.05,
   42  120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
   43  ing to strangulation; sections 125.10 to 125.27  relating  to  homicide;
   44  sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
   45  135.25  relating  to  kidnapping; section 135.35 relating to labor traf-
   46  ficking; section 135.65 relating to coercion;  sections  140.20,  140.25
   47  and  140.30  relating  to  burglary;  sections 145.05, 145.10 and 145.12
   48  relating to criminal mischief; article one  hundred  fifty  relating  to
   49  arson;  sections  155.30,  155.35,  155.40  and 155.42 relating to grand
   50  larceny; sections 177.10, 177.15, 177.20 and 177.25 relating  to  health
   51  care  fraud;  article  one  hundred  sixty relating to robbery; sections
   52  165.45, 165.50, 165.52 and 165.54 relating  to  criminal  possession  of
   53  stolen  property; sections 165.72 and 165.73 relating to trademark coun-
   54  terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65  and
   55  170.70  relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
   56  210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
       S. 2510                             4
    1  176.30 relating to insurance fraud; sections 178.20 and 178.25  relating
    2  to  criminal  diversion  of  prescription medications and prescriptions;
    3  sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
    4  200.04,  200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
    5  215.05 and 215.19 relating to bribery; sections 187.10,  187.15,  187.20
    6  and  187.25  relating  to residential mortgage fraud[,]; sections 190.40
    7  and 190.42 relating  to  criminal  usury;  section  190.65  relating  to
    8  schemes  to  defraud;  sections  205.60 and 205.65 relating to hindering
    9  prosecution; sections 210.10, 210.15, and 215.51 relating to perjury and
   10  contempt; section 215.40 relating to tampering with  physical  evidence;
   11  sections 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39,
   12  220.41, 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
   13  substances;  sections  225.10  and 225.20 relating to gambling; sections
   14  230.25, 230.30, and 230.32 relating to promoting  prostitution;  section
   15  230.34  relating to sex trafficking; sections 235.06, 235.07, 235.21 and
   16  235.22 relating to obscenity; sections  263.05,  263.10  [and],  263.11,
   17  263.15  AND  263.16  relating  to  [promoting] a sexual performance by a
   18  child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13  and  the
   19  provisions  of  section  265.10  which  constitute  a felony relating to
   20  firearms and other dangerous weapons; and  sections  265.14  and  265.16
   21  relating  to  criminal  sale  of  a firearm; and section 275.10, 275.20,
   22  275.30, or 275.40 relating to unauthorized  recordings;  [and]  sections
   23  470.05,  470.10,  470.15  and  470.20  relating  to money laundering AND
   24  SECTION 495.00 RELATING TO COMPUTER SEX CRIMES; or
   25    S 5. This act shall take effect on the first of November next succeed-
   26  ing the date on which it shall have become a law.