Enacts the criminal street gang abatement act of 2009; appropriation

Section 2 of the bill adds a new Article 465 to Penal Law entitled the "Criminal Street Gang Abatement Act".

Section 465.00: Sets forth legislative findings and intent.

Section 465.05: Defines "criminal street gang," "pattern of street gang activity," and "criminal act".

Section 465.10: Provides for enhanced penalties for criminal acts committed by a criminal street gang member.

Section 465.15: Creates the crime of Gang Solicitation, Recruitment or Retention, a class E felony.

Section 465.20: Creates the crime of Gang Solicitation, Recruitment or Retention of Minors, a class D felony.

Section 465.25: Creates the crime of Gang Solicitation, Recruitment or Retention of Minors on School Grounds, a class C felony.

Section 465.30: Creates a statewide gang database.

Sections 3 and 4 of the bill amends paragraph (h) and adds a new paragraph (i) to subdivision 2 of §1349 of the Civil Practice Law & Rules to provide that after disbursement of forfeited assets pursuant to paragraphs (a) through (g) of this section, if a defendant subject to forfeiture is a "street gang member" seventy-five percent of any remaining seized assets shall be distributed to the defendant's local school district to fund afterschool programs. After this distribution, fifteen percent shall be distributed to law enforcement with the remaining ten percent distributed to the prosecution services subaccount.

Section 5 of the bill Adds the sum of one million dollars, or so much thereof any be necessary to be appropriated to the Division of Criminal Justice Services for the purposes of developing a grant program in consultation with the Department of Education and the State Police for schools to receive gang prevention programs.

Sections 6 and 7: Adds §700.75 of the Criminal Procedure Law to permit roving interceptions by law enforcement in certain circumstances and adds subparagraph (g) to paragraph 8 of §700.05 of the Criminal Procedure Law to authorize eavesdropping and video surveillance warrants to be issued in gang offense criminal investigations. Section 8: Amends §60.22 of the Criminal Procedure Law to remove the corroboration requirement for accomplice testimony in gang offense prosecutions.

Section 9: Adds new §97-eeee to the State Finance Law.

97-eeee (1) Establishes the "Witness Protection Fund" to be jointly administered by the State Comptroller and the Commissioner of the Department of Taxation and Finance.

97-eeee (2) States that the Fund shall consist of 5% of all moneys received pursuant to section 60.35 of the penal law; 5% of moneys received pursuant to section 1809 of the vehicle and traffic law from any court other than a town or village court; 10% of all moneys deposited to the credit of the State Police Seized Asset account in each calendar year; all other fees, fines, grafts, bequests or other moneys made available for the purposes of the Fund.

97-eeee (3) Provides that moneys in the Fund, following appropriation by the Legislature and allocation by the Director of the Budget shall be made available to the Division of Criminal Justices Services for local assistance services and expenses of programs designed to provide witness protection services.

97-eeee (4) Provides that any moneys remaining in the Fund at the end of each year shall be returned to the Fund and not revert to the General Fund.

Section 10: Appropriates $5 million to the Witness Protection Fund.

Section 11: Authorizes this act to take effect on the first of November next succeeding the date on which it shall have become a law.

Justification

New York has seen an increase in violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods to illegally benefit themselves. These activities, both individually and collectively, present a clear and present danger to public order and safety.

Gangs have expanded from New York City and other states into New York with all of the nationally known gangs now existing throughout the major cities. Gang membership numbers run as high as 10,000. While gang membership remains concentrated primarily in low-income communities, they have surfaced in many other areas throughout New York, becoming more racially and ethnically diverse.

However, with the exception of the crimes of gang assault and making graffiti, New York's laws are silent on gang-related crimes. With no uniform state law, police departments throughout the state are not classifying gangs for what they are - a group of three or more people who come together to do a criminal act. They use terms like "large groups of youths." Subsequently, drug and gun sales as well as assaults, rapes and murders are not recorded, investigated and disclosed to the public as the gang crimes they are.

Due to the lack of specific state law to adequately address the brutality of gang-related crimes, the Bronx District Attorney is trying an alleged gang member as a terrorist, the first case to be tried under the state's anti-terrorism law enacted shortly after Sept. 11, 2001, in order to subject this individual to the more severe penalties mandated by this statute.

Enactment of this article provides law enforcement with the tools they need to combat gang violence. This legislation codifies the definitions of "gang member," "pattern of street gang activity" and "criminal act" in Penal Law thereby providing uniformity and clarification to the law enforcement community throughout the state. These definitions will allow for more accurate and reliable data to provide a clearer assessment of the gang problem and the extent of gang-related crimes throughout the state.

It further provides for enhanced penalties for crimes committed by street gang members, providing a deterrent for existing members as well as a deterrent for potential new members who might otherwise commit a crime to gain acceptance within a gang.

Criminal street gangs are constantly seeking to recruit new members into their hierarchy by utilizing threats, intimidation and physical violence. Minors are particularly vulnerable arid are often forced into criminal activity as a means of gang initiation, falling prey to such incitement and intimidation in their local neighborhoods and schools. This bill seeks to discourage gang recruitment by holding accountable those who solicit or recruit gang members and as a further deterrent, provide for heightened penalties for those who prey upon minors and utilize school grounds to increase their membership.

This bill recognizes the need for interagency communication and cooperation in the investigation, prosecution and prevention of gang activity, and as such creates a statewide data base for the collection of information pertaining to the identification of gang members.

One positive step that communities can take is to provide youths with alternatives to joining gangs. After-school academic, sports programs, and various other gang prevention programs can provide youths with a safe environment, positive role models and positive reinforcement. Youths who receive this positive reinforcement are less likely to join gangs. This bill will provide funding at the local level for these important programs, funded by a $1,000,000 appropriation and from the very gang members who are attempting to destroy these communities.

Present law relating to asset forfeiture actions provides that after distribution pursuant to provisions in civil practice law and rules, seventy-five percent of any remaining funds shall be distributed to a law enforcement subaccount with the remaining twenty-five percent distributed to a prosecution services subaccount. This bill will not alter this distribution scheme except in cases where the forfeited assets are from a known "gang member." In this case seventy-five percent of the remaining assets after distribution shall be distributed to local school districts to establish or maintain programs designed to prevent or deter youths from joining gangs. The remaining funds will be distributed at fifteen percent to the law enforcement subaccount with the remaining ten percent being distributed to the prosecution services subaccount.

The investigation of gang offenses is hampered by the limitations of current requirements that require specificity of the particular telephone device to obtain eavesdropping and video surveillance warrants. Gang leaders and members routinely use inexpensive cellular phones that can be easily purchased, used and then replaced after a short period of time. Under current law, law enforcement officials have to identify each phone and acquire a new warrant each time a phone is replaced. This bill would allow roving interceptions that would target a specific person - not a specific phone - in gang offense criminal investigations.

Gang leaders emulating organized crime bosses frequently attempt to insulate themselves from prosecution by directing underlings to commit crimes. Too often the only evidence connecting leaders to their crimes is the testimony of fellow gang members. This bill would remove the requirement of corroboration in gang offense prosecutions.

Witness intimidation is another major impediment to successful gang prosecutions in New York. New York must protect those who are brave enough to come forward and testify against criminals. Local agencies do not have the resources to provide for protection and relocation of witnesses so witnesses are often forced to live in the same areas or neighborhoods as the gangs and criminals they will testify against. This bill creates a State funded witness protection program that mirrors the federal government's program.

Prior legislative history

2005-06: A:7970-A - Held in Asbly Codes. 2007-08: S.5594 - Senate Finance Committee

Fiscal implications

Funding reallocation. Funds derived from forfeited assets shall be distributed to local school districts instead of deposited into a law enforcement subaccount. Appropriation of one million to the Division of Criminal Justice Services from any moneys available in the State Treasury in the General Fund to the credit of the Local Assistance Account for the development of a grant program for schools to receive gang prevention programs. Appropriation of five million for the establishment of the witness protection program.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.