S T A T E O F N E W Y O R K
________________________________________________________________________
281
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. PAULIN, HOYT, GUNTHER, SCHROEDER, SCHIMMINGER,
GALEF, ROBINSON, N. RIVERA, ENGLEBRIGHT, BENEDETTO, MAGNARELLI, PHEF-
FER, LATIMER, SPANO, GABRYSZAK -- Multi-Sponsored by -- M. of A.
CLARK, COLTON, DESTITO, DINOWITZ, HOOPER, MARKEY, MAYERSOHN, MOLINARO,
SWEENEY, WEISENBERG -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law, the executive law and the vehicle and
traffic law, in relation to offenses involving sexual performances by
a child
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 section 263.09 to
2 read as follows:
3 S 263.09 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
4 DEGREE.
5 A PERSON IS GUILTY OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
6 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
7 OF, HE PRODUCES, DIRECTS OR PROMOTES TWENTY-FIVE OR MORE OBSCENE
8 PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN
9 YEARS OF AGE.
10 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
11 IS A CLASS C FELONY.
12 S 2. Section 263.10 of the penal law, as amended by chapter 1 of the
13 laws of 2000, is amended to read as follows:
14 S 263.10 Promoting an obscene sexual performance by a child IN THE
15 SECOND DEGREE.
16 A person is guilty of promoting an obscene sexual performance by a
17 child IN THE SECOND DEGREE when, knowing the character and content ther-
18 eof, he produces, directs or promotes any obscene performance which
19 includes sexual conduct by a child less than seventeen years of age.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00833-01-1
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1 Promoting an obscene sexual performance by a child IN THE SECOND
2 DEGREE is a class D felony.
3 S 3. Section 263.11 of the penal law, as added by chapter 11 of the
4 laws of 1996, is amended to read as follows:
5 S 263.11 Possessing an obscene sexual performance by a child IN THE
6 THIRD DEGREE.
7 A person is guilty of possessing an obscene sexual performance by a
8 child IN THE THIRD DEGREE when, knowing the character and content there-
9 of, he knowingly has in his possession or control any obscene perform-
10 ance which includes sexual conduct by a child less than sixteen years of
11 age.
12 Possessing an obscene sexual performance by a child IN THE THIRD
13 DEGREE is a class E felony.
14 S 4. The penal law is amended by adding three new sections 263.12,
15 263.13 and 263.14 to read as follows:
16 S 263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
17 SECOND DEGREE.
18 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
19 CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
20 EOF, HE KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWENTY-FIVE OR MORE
21 OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS THAN
22 SIXTEEN YEARS OF AGE.
23 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND
24 DEGREE IS A CLASS D FELONY.
25 S 263.13 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
26 FIRST DEGREE.
27 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
28 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
29 OF, HE KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWO HUNDRED FIFTY OR
30 MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT BY A CHILD LESS
31 THAN SIXTEEN YEARS OF AGE.
32 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
33 DEGREE IS A CLASS C FELONY.
34 S 263.14 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
35 A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
36 FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE PRODUC-
37 ES, DIRECTS OR PROMOTES TWENTY-FIVE OR MORE PERFORMANCES WHICH INCLUDES
38 SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE.
39 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A
40 CLASS C FELONY.
41 S 5. Section 263.15 of the penal law, as amended by chapter 1 of the
42 laws of 2000, is amended to read as follows:
43 S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.
44 A person is guilty of promoting a sexual performance by a child IN THE
45 SECOND DEGREE when, knowing the character and content thereof, he
46 produces, directs or promotes any performance which includes sexual
47 conduct by a child less than seventeen years of age.
48 Promoting a sexual performance by a child IN THE SECOND DEGREE is a
49 class D felony.
50 S 6. Section 263.16 of the penal law, as added by chapter 11 of the
51 laws of 1996, is amended and two new sections 263.17 and 263.18 are
52 added to read as follows:
53 S 263.16 Possessing a sexual performance by a child IN THE THIRD DEGREE.
54 A person is guilty of possessing a sexual performance by a child IN
55 THE THIRD DEGREE when, knowing the character and content thereof, he
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1 knowingly has in his possession or control any performance which
2 includes sexual conduct by a child less than sixteen years of age.
3 Possessing a sexual performance by a child IN THE THIRD DEGREE is a
4 class E felony.
5 S 263.17 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND
6 DEGREE.
7 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
8 THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE
9 KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWENTY-FIVE OR MORE PERFORM-
10 ANCES WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SIXTEEN YEARS
11 OF AGE.
12 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
13 CLASS D FELONY.
14 S 263.18 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
15 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
16 THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE
17 KNOWINGLY HAS IN HIS POSSESSION OR CONTROL TWO HUNDRED FIFTY OR MORE
18 PERFORMANCES WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SIXTEEN
19 YEARS OF AGE.
20 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A
21 CLASS C FELONY.
22 S 7. Subdivision 1 of section 263.20 of the penal law, as amended by
23 chapter 1 of the laws of 2000, is amended to read as follows:
24 1. Under this article, it shall be an affirmative defense that the
25 defendant in good faith reasonably believed the person appearing in the
26 performance was, for purposes of section 263.11 [or], 263.12, 263.13,
27 263.16, 263.17 OR 263.18 of this article, sixteen years of age or over
28 or, for purposes of section 263.05, 263.09, 263.10, 263.14 or 263.15 of
29 this article, seventeen years of age or over.
30 S 8. Paragraph (d) of subdivision 7 of section 995 of the executive
31 law, as amended by chapter 2 of the laws of 2006, is amended to read as
32 follows:
33 (d) any of the following felonies, or an attempt thereof where such
34 attempt is a felony offense:
35 aggravated assault upon a person less than eleven years old, as
36 defined in section 120.12 of the penal law; menacing in the first
37 degree, as defined in section 120.13 of the penal law; reckless endan-
38 germent in the first degree, as defined in section 120.25 of the penal
39 law; stalking in the second degree, as defined in section 120.55 of the
40 penal law; criminally negligent homicide, as defined in section 125.10
41 of the penal law; vehicular manslaughter in the second degree, as
42 defined in section 125.12 of the penal law; vehicular manslaughter in
43 the first degree, as defined in section 125.13 of the penal law;
44 persistent sexual abuse, as defined in section 130.53 of the penal law;
45 aggravated sexual abuse in the fourth degree, as defined in section
46 130.65-a of the penal law; female genital mutilation, as defined in
47 section 130.85 of the penal law; facilitating a sex offense with a
48 controlled substance, as defined in section 130.90 of the penal law;
49 unlawful imprisonment in the first degree, as defined in section 135.10
50 of the penal law; custodial interference in the first degree, as defined
51 in section 135.50 of the penal law; criminal trespass in the first
52 degree, as defined in section 140.17 of the penal law; criminal tamper-
53 ing in the first degree, as defined in section 145.20 of the penal law;
54 tampering with a consumer product in the first degree, as defined in
55 section 145.45 of the penal law; robbery in the third degree as defined
56 in section 160.05 of the penal law; identity theft in the second degree,
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1 as defined in section 190.79 of the penal law; identity theft in the
2 first degree, as defined in section 190.80 of the penal law; promoting
3 prison contraband in the first degree, as defined in section 205.25 of
4 the penal law; tampering with a witness in the third degree, as defined
5 in section 215.11 of the penal law; tampering with a witness in the
6 second degree, as defined in section 215.12 of the penal law; tampering
7 with a witness in the first degree, as defined in section 215.13 of the
8 penal law; criminal contempt in the first degree, as defined in subdivi-
9 sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
10 criminal contempt, as defined in section 215.52 of the penal law; bail
11 jumping in the second degree, as defined in section 215.56 of the penal
12 law; bail jumping in the first degree, as defined in section 215.57 of
13 the penal law; patronizing a prostitute in the second degree, as defined
14 in section 230.05 of the penal law; patronizing a prostitute in the
15 first degree, as defined in section 230.06 of the penal law; promoting
16 prostitution in the second degree, as defined in section 230.30 of the
17 penal law; promoting prostitution in the first degree, as defined in
18 section 230.32 of the penal law; compelling prostitution, as defined in
19 section 230.33 of the penal law; disseminating indecent materials to
20 minors in the second degree, as defined in section 235.21 of the penal
21 law; disseminating indecent materials to minors in the first degree, as
22 defined in section 235.22 of the penal law; riot in the first degree, as
23 defined in section 240.06 of the penal law; criminal anarchy, as defined
24 in section 240.15 of the penal law; aggravated harassment of an employee
25 by an inmate, as defined in section 240.32 of the penal law; unlawful
26 surveillance in the second degree, as defined in section 250.45 of the
27 penal law; unlawful surveillance in the first degree, as defined in
28 section 250.50 of the penal law; endangering the welfare of a vulnerable
29 elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the
30 second degree, as defined in section 260.32 of the penal law; endanger-
31 ing the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR
32 PHYSICALLY DISABLED PERSON in the first degree, as defined in section
33 260.34 of the penal law; use of a child in a sexual performance, as
34 defined in section 263.05 of the penal law; PROMOTING AN OBSCENE SEXUAL
35 PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.09
36 OF THE PENAL LAW; promoting an obscene sexual performance by a child IN
37 THE SECOND DEGREE, as defined in section 263.10 of the penal law;
38 possessing an obscene sexual performance by a child IN THE THIRD DEGREE,
39 as defined in section 263.11 of the penal law; POSSESSING AN OBSCENE
40 SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION
41 263.12 OF THE PENAL LAW; POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
42 CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.13 OF THE PENAL LAW;
43 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
44 IN SECTION 263.14 OF THE PENAL LAW; promoting a sexual performance by a
45 child IN THE SECOND DEGREE, as defined in section 263.15 of the penal
46 law; possessing a sexual performance by a child IN THE THIRD DEGREE, as
47 defined in section 263.16 of the penal law; POSSESSING A SEXUAL PERFORM-
48 ANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.17 OF THE
49 PENAL LAW; POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
50 DEGREE AS DEFINED IN SECTION 263.18 OF THE PENAL LAW; criminal
51 possession of a weapon in the third degree, as defined in section 265.02
52 of the penal law; criminal sale of a firearm in the third degree, as
53 defined in section 265.11 of the penal law; criminal sale of a firearm
54 to a minor, as defined in section 265.16 of the penal law; unlawful
55 wearing of a body vest, as defined in section 270.20 of the penal law;
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1 hate crimes as defined in section 485.05 of the penal law; and crime of
2 terrorism, as defined in section 490.25 of the penal law; or
3 S 9. Subdivisions 1 and 2 of section 263.00 of the penal law, as
4 amended by chapter 1 of the laws of 2000, are amended to read as
5 follows:
6 1. "Sexual performance" means any performance or part thereof which,
7 for purposes of [section] SECTIONS 263.16, 263.17 AND 263.18 of this
8 article, includes sexual conduct by a child less than sixteen years of
9 age or, for purposes of section 263.05, 263.14 or 263.15 of this arti-
10 cle, includes sexual conduct by a child less than seventeen years of
11 age.
12 2. "Obscene sexual performance" means any performance which, for
13 purposes of [section] SECTIONS 263.11, 263.12 AND 263.13 of this arti-
14 cle, includes sexual conduct by a child less than sixteen years of age
15 or, for purposes of [section] SECTIONS 263.09 AND 263.10 of this arti-
16 cle, includes sexual conduct by a child less than seventeen years of
17 age, in any material which is obscene, as such term is defined in
18 section 235.00 of this chapter.
19 S 10. Paragraph (a) of subdivision 1 of section 460.10 of the penal
20 law, as amended by chapter 405 of the laws of 2010, is amended to read
21 as follows:
22 (a) Any of the felonies set forth in this chapter: sections 120.05,
23 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
24 ing to strangulation; sections 125.10 to 125.27 relating to homicide;
25 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
26 135.25 relating to kidnapping; section 135.35 relating to labor traf-
27 ficking; section 135.65 relating to coercion; sections 140.20, 140.25
28 and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12
29 relating to criminal mischief; article one hundred fifty relating to
30 arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
31 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
32 care fraud; article one hundred sixty relating to robbery; sections
33 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
34 stolen property; sections 165.72 and 165.73 relating to trademark coun-
35 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
36 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
37 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
38 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
39 to criminal diversion of prescription medications and prescriptions;
40 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
41 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00,
42 215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20
43 and 187.25 relating to residential mortgage fraud, sections 190.40 and
44 190.42 relating to criminal usury; section 190.65 relating to schemes to
45 defraud; sections 205.60 and 205.65 relating to hindering prosecution;
46 sections 210.10, 210.15, and 215.51 relating to perjury and contempt;
47 section 215.40 relating to tampering with physical evidence; sections
48 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41,
49 220.43, 220.46, 220.55, 220.60 and 220.77 relating to controlled
50 substances; sections 225.10 and 225.20 relating to gambling; sections
51 230.25, 230.30, and 230.32 relating to promoting prostitution; section
52 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and
53 235.22 relating to obscenity; sections 263.09, 263.10 and 263.15 relat-
54 ing to promoting a sexual performance by a child; sections 265.02,
55 265.03, 265.04, 265.11, 265.12, 265.13 and the provisions of section
56 265.10 which constitute a felony relating to firearms and other danger-
A. 281 6
1 ous weapons; and sections 265.14 and 265.16 relating to criminal sale of
2 a firearm; and section 275.10, 275.20, 275.30, or 275.40 relating to
3 unauthorized recordings; and sections 470.05, 470.10, 470.15 and 470.20
4 relating to money laundering; or
5 S 11. Paragraph (b) of subdivision 4 of section 509-cc of the vehicle
6 and traffic law, as amended by chapter 360 of the laws of 1986, is
7 amended to read as follows:
8 (b) The offenses referred to in subparagraph (ii) of paragraph (a) of
9 subdivision one and paragraph (b) of subdivision two of this section
10 that result in permanent disqualification shall include a conviction
11 under sections 100.13, 105.15, 105.17, 115.08, 125.10, 125.15, 130.40,
12 130.60, 130.65, 135.20, 160.15, 220.18, 220.21, 220.39, 220.41, 220.43,
13 260.00, 263.05, 263.09, 263.10, 263.14, 263.15, 265.04 of the penal law
14 or an attempt to commit any of the aforesaid offenses under section
15 110.00 of the penal law, or any offenses committed under a former
16 section of the penal law which would constitute violations of the afore-
17 said sections of the penal law, or any offenses committed outside this
18 state which would constitute violations of the aforesaid sections of the
19 penal law.
20 S 12. This act shall take effect on the first of November next
21 succeeding the date on which it shall have become a law.