Bill Text: NY S01351 | 2021-2022 | General Assembly | Introduced
Bill Title: Repeals provisions relating to loitering for the purpose of engaging in a prostitution offense; makes technical corrections relating thereto.
Spectrum: Partisan Bill (Democrat 38-0)
Status: (Passed) 2021-02-02 - SIGNED CHAP.23 [S01351 Detail]
Download: New_York-2021-S01351-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1351 2021-2022 Regular Sessions IN SENATE January 11, 2021 ___________ Introduced by Sens. HOYLMAN, SALAZAR, ADDABBO, BAILEY, BENJAMIN, BIAGGI, BRESLIN, BRISPORT, BROOKS, COMRIE, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, HINCHEY, JACKSON, KAMINSKY, KAPLAN, KAVANAGH, KENNEDY, KRUEGER, LIU, MAY, MAYER, MYRIE, PARKER, PERSAUD, RAMOS, REICHLIN-MEL- NICK, RIVERA, SANDERS, SAVINO, SEPULVEDA, SERRANO, SKOUFIS, STAVISKY, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to repeal section 240.37 of the penal law, relating to loitering for the purpose of engaging in a prostitution offense; and to amend the penal law, the criminal procedure law, the social services law and the administrative code of the city of New York, in relation to making technical corrections relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The repeal of section 240.37 of the penal law, as effected 2 by section two of this act, is hereby declared to be ameliorative, and 3 it is the intent of the legislature that no prosecution under such 4 section be commenced, continued, or refiled. 5 § 2. Section 240.37 of the penal law is REPEALED. 6 § 3. Section 230.01 of the penal law, as amended by chapter 189 of the 7 laws of 2018, is amended to read as follows: 8 § 230.01 Prostitution; affirmative defense. 9 In any prosecution under section 230.00, section 230.03, section 10 230.19, section 230.20, subdivision 2 of section 230.25, subdivision 2 11 of section 230.30[,] or section 230.34-a [or subdivision two of section12240.37] of this [part] article, it is an affirmative defense that the 13 defendant's participation in the offense was a result of having been a 14 victim of compelling prostitution under section 230.33 of this article, 15 a victim of sex trafficking under section 230.34 of this article, a 16 victim of sex trafficking of a child under section 230.34-a of this EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01328-02-1S. 1351 2 1 article or a victim of trafficking in persons under the trafficking 2 victims protection act (United States Code, Title 22, Chapter 78). 3 § 4. Section 60.47 of the criminal procedure law, as added by section 4 2 of part I of chapter 57 of the laws of 2015, is amended to read as 5 follows: 6 § 60.47 Possession of condoms; receipt into evidence. 7 Evidence that a person was in possession of one or more condoms may 8 not be admitted at any trial, hearing, or other proceeding in a prose- 9 cution for section 230.00 [or section 240.37] of the penal law for the 10 purpose of establishing probable cause for an arrest or proving any 11 person's commission or attempted commission of such offense. 12 § 5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of the 13 criminal procedure law, paragraph (c) as amended by chapter 762 of the 14 laws of 1971 and paragraph (d) as amended by chapter 232 of the laws of 15 2010, are amended to read as follows: 16 (c) A misdemeanor defined outside the penal law which would constitute 17 a felony if such person had a previous judgment of conviction for a 18 crime[; or19(d) Loitering for the purpose of engaging in a prostitution offense as20defined in subdivision two of section 240.37 of the penal law]. 21 § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as 22 added by chapter 402 of the laws of 2014, is amended to read as follows: 23 4. After arraignment upon an information, a simplified information, a 24 prosecutor's information or misdemeanor complaint on a charge of prosti- 25 tution pursuant to section 230.00 of the penal law [or loitering for the26purposes of prostitution pursuant to subdivision two of section 240.3727of the penal law, provided that the person does not stand charged with28loitering for the purpose of patronizing a prostitute, where such29offense allegedly occurred when the person was sixteen or seventeen30years of age,] the local criminal court may dismiss such charge in its 31 discretion in the interest of justice on the ground that a defendant 32 participated in services provided to him or her. 33 § 7. The opening paragraph of subdivision 1 of section 170.80 of the 34 criminal procedure law, as amended by chapter 402 of the laws of 2014, 35 is amended to read as follows: 36 Notwithstanding any other provision of law, at any time at or after 37 arraignment on a charge of prostitution pursuant to section 230.00 of 38 the penal law [or loitering for the purposes of prostitution pursuant to39subdivision two of section 240.37 of the penal law, provided that the40person does not stand charged with loitering for the purpose of patron-41izing a prostitute, where such offense allegedly occurred when the42person was sixteen or seventeen years of age except where], after 43 consultation with counsel, a knowing and voluntary plea of guilty has 44 been entered to such charge, any judge or justice hearing any stage of 45 such case may, upon consent of the defendant after consultation with 46 counsel: 47 § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as 48 amended by chapter 144 of the laws of 2020, is amended to read as 49 follows: 50 2. Except as provided in this subdivision or subdivision two-a of this 51 section, under no circumstances shall the mandatory surcharge, sex 52 offender registration fee, DNA databank fee or the crime victim assist- 53 ance fee be waived. A court shall waive any mandatory surcharge, DNA 54 databank fee and crime victim assistance fee when: (i) [the defendant is55convicted of loitering for the purpose of engaging in prostitution under56section 240.37 of the penal law (provided that the defendant was notS. 1351 3 1convicted of loitering for the purpose of patronizing a person for pros-2titution); (ii)] the defendant is convicted of prostitution under 3 section 230.00 of the penal law; [(iii)] (ii) the defendant is convicted 4 of a violation in the event such conviction is in lieu of a plea to or 5 conviction for [loitering for the purpose of engaging in prostitution6under section 240.37 of the penal law (provided that the defendant was7not alleged to be loitering for the purpose of patronizing a person for8prostitution) or] prostitution under section 230.00 of the penal law; 9 [or (iv)] (iii) the court finds that a defendant is a victim of sex 10 trafficking under section 230.34 of the penal law or a victim of traf- 11 ficking in persons under the trafficking victims protection act (United 12 States Code, Title 22, Chapter 78); or [(v)] (iv) the court finds that 13 the defendant is a victim of sex trafficking of a child under section 14 230.34-a of the penal law. 15 § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as 16 added by chapter 402 of the laws of 2014, is amended to read as follows: 17 4. Notwithstanding any provision in this article, a person charged 18 with prostitution as defined in section 230.00 of the penal law [or19loitering for the purposes of prostitution as defined in subdivision two20of section 240.37 of the penal law, provided that the person does not21stand charged with loitering for the purpose of patronizing a prosti-22tute, and such person is aged sixteen or seventeen when such offense23occurred,] regardless of whether such person (i) had prior to commence- 24 ment of trial or entry of a plea of guilty been convicted of a crime or 25 found a youthful offender, or (ii) subsequent to such conviction for 26 prostitution [or loitering for prostitution] is convicted of a crime or 27 found a youthful offender, the provisions of subdivisions one and two of 28 this section requiring or authorizing the accusatory instrument filed 29 against a youth to be sealed, and the arraignment and all proceedings in 30 the action to be conducted in private shall apply. 31 § 10. Subdivision 1 of section 720.35 of the criminal procedure law, 32 as amended by chapter 402 of the laws of 2014, is amended to read as 33 follows: 34 1. A youthful offender adjudication is not a judgment of conviction 35 for a crime or any other offense, and does not operate as a disquali- 36 fication of any person so adjudged to hold public office or public 37 employment or to receive any license granted by public authority but 38 shall be deemed a conviction only for the purposes of transfer of super- 39 vision and custody pursuant to section two hundred fifty-nine-m of the 40 executive law. A defendant for whom a youthful offender adjudication was 41 substituted, who was originally charged with prostitution as defined in 42 section 230.00 of the penal law [or loitering for the purposes of pros-43titution as defined in subdivision two of section 240.37 of the penal44law provided that the person does not stand charged with loitering for45the purpose of patronizing a prostitute, for an offense allegedly46committed when he or she was sixteen or seventeen years of age], shall 47 be deemed a "sexually exploited child" as defined in subdivision one of 48 section four hundred forty-seven-a of the social services law and there- 49 fore shall not be considered an adult for purposes related to the charg- 50 es in the youthful offender proceeding or a proceeding under section 51 170.80 of this chapter. 52 § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of the 53 social services law, as amended by chapter 189 of the laws of 2018, are 54 amended to read as follows: 55 (c) is a victim of the crime of compelling prostitution as defined in 56 section 230.33 of the penal law;S. 1351 4 1 (d) engages in acts or conduct described in article two hundred 2 sixty-three [or section 240.37] of the penal law. 3 § 12. The third undesignated paragraph of subdivision a of section 4 3-118 of the administrative code of the city of New York, as amended by 5 chapter 189 of the laws of 2018, is amended to read as follows: 6 Sexually exploited youth. The term "sexually exploited youth" means 7 persons under the age of 18 who have been subject to sexual exploitation 8 because they (a) are the victim of the crime of sex trafficking as 9 defined in section 230.34 of the penal law; (b) engage in any act as 10 defined in section 230.00 of the penal law; (c) are a victim of the 11 crime of compelling prostitution as defined in section 230.33 of the 12 penal law; (d) are a victim of the crime of sex trafficking of a child 13 as defined in section 230.34-a of the penal law; or (e) engage in acts 14 or conduct described in article [263 or section 240.37] two hundred 15 sixty-three of the penal law. The term shall also mean persons under 16 the age of 18 who have been subject to incest in the third degree, 17 second degree or first degree, as defined in sections 255.25, 255.26, 18 and 255.27 of the penal law, respectively, or any of the sex offenses 19 enumerated in article [130] one hundred thirty of the penal law. 20 § 13. The opening paragraph of subdivision 1 and subdivisions 2 and 3 21 of section 160.55 of the criminal procedure law, the opening paragraph 22 of subdivision 1 as amended by chapter 359 of the laws of 2019, subdivi- 23 sion 2 as amended by chapter 476 of the laws of 2009 and subdivision 3 24 as amended by chapter 249 of the laws of 1981 and renumbered by chapter 25 142 of the laws of 1991, are amended to read as follows: 26 Regardless of the class of offense for which a person is initially 27 charged, upon the termination of a criminal action or proceeding against 28 a person by the conviction of such person of a traffic infraction or a 29 violation, other than [a violation of loitering as described in para-30graph (d) of subdivision one of section 160.10 of this article or] the 31 violation of operating a motor vehicle while ability impaired as 32 described in subdivision one of section eleven hundred ninety-two of the 33 vehicle and traffic law, unless the district attorney upon motion with 34 not less than five days' notice to such person or his or her attorney 35 demonstrates to the satisfaction of the court that the interests of 36 justice require otherwise, or the court on its own motion with not less 37 than five days' notice to such person or his or her attorney determines 38 that the interests of justice require otherwise and states the reasons 39 for such determination on the record, the clerk of the court wherein 40 such criminal action or proceeding was terminated shall immediately 41 notify the commissioner of the division of criminal justice services and 42 the heads of all appropriate police departments and other law enforce- 43 ment agencies that the action has been terminated by such conviction. 44 Upon receipt of notification of such termination: 45 2. A report of the termination of the action or proceeding by 46 conviction of a traffic violation or a violation other than [a violation47of loitering as described in paragraph (d) or (e) of subdivision one of48section 160.10 of this title or] the violation of operating a motor 49 vehicle while ability impaired as described in subdivision one of 50 section eleven hundred ninety-two of the vehicle and traffic law, shall 51 be sufficient notice of sealing to the commissioner of the division of 52 criminal justice services unless the report also indicates that the 53 court directed that the record not be sealed in the interests of 54 justice. Where the court has determined pursuant to subdivision one of 55 this section that sealing is not in the interests of justice, the clerk 56 of the court shall include notification of that determination in anyS. 1351 5 1 report to such division of the disposition of the action or proceeding. 2 When the defendant has been found guilty of a violation of harassment in 3 the second degree and it was determined pursuant to subdivision eight-a 4 of section 170.10 of this title that such violation was committed 5 against a member of the same family or household as the defendant, the 6 clerk of the court shall include notification of that determination in 7 any report to such division of the disposition of the action or proceed- 8 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) 9 of subdivision one of this section. 10 3. A person against whom a criminal action or proceeding was termi- 11 nated by such person's conviction of a traffic infraction or violation 12 other than [a violation of loitering as described in paragraph (d) or13(e) of subdivision one of section 160.10 of this chapter or] the 14 violation of operating a motor vehicle while ability impaired as 15 described in subdivision one of section eleven hundred ninety-two of the 16 vehicle and traffic law, prior to the effective date of this section, 17 may upon motion apply to the court in which such termination occurred, 18 upon not less than twenty days notice to the district attorney, for an 19 order granting to such person the relief set forth in subdivision one of 20 this section, and such order shall be granted unless the district attor- 21 ney demonstrates to the satisfaction of the court that the interests of 22 justice require otherwise. 23 § 14. Subparagraph (iii) of paragraph (k) of subdivision 3 of section 24 160.50 of the criminal procedure law, as amended by chapter 132 of the 25 laws of 2019, is amended to read as follows: 26 (iii) the conviction is for an offense defined in section 221.05 or 27 221.10 of the penal law; or 28 (iv) the conviction was for an offense defined in section 240.37 of 29 the penal law. 30 § 15. This act shall take effect immediately.
