Relates to crimes of terrorism

(2) Enhancing the ability to identify, prepare for and respond to terrorism by enhancing penalties and extending additional protections to the public.

Summary of provisions

: Section 1 of the bill would amend the Penal Law to create the crimes of Agricultural Adulteration in the First Degree, punishable as a class C felony, and Agricultural Adulteration in the Second Degree, punishable as a class D felony. These crimes are intended to appropriately criminalize and punish the design, development, manufacture, or utilization of genetic, biological or chemical agents in order to contaminate or destroy agricultural products and livestock.

If Agricultural Adulteration in the First or Second Degree is committed with a terroristic intent, as defined in Article 490 of the Penal Law, it would be punished as a class B or class C felony, respectively.

Section 2 of the bill would amend the Penal Law to create the Crime of Cyber-Terrorism, which would be punishable as a Class D felony a "denial of service attack" (i.e., overloading a computer network so as to undermine its capability) against a computer network administered by a government, utility or financial institution.

Sections 3, 4 and 5 of the bill would amend the Penal Law to include an aggregation of damage, including damages to any computer affected by the crimes of computer tampering.

Section 6 of the bill would amend the existing crime of Criminal Impersonation in the Penal Law to add impersonating a pilot, or other member of an aviation flight or ground crew.

Section 7 of the bill would amend the Penal Law to include money laundering in support of terrorism offenses, structuring, and terrorism offenses within the definition of the term "criminal act" for purposes of an enterprise corruption prosecution.

Section 8 of the bill would amend the Penal Law to include the money laundering in support of terrorism crimes to the list of offenses for which a fine may be imposed.

Sections 9 and 10 of the bill amend the Penal Law to create the new crime of "Structuring." The new offense of Structuring in the Second Degree, punishable as a class E felony, would penalize those who cause or attempt to cause a financial institution not to comply with federal filing requirements. The new offense of Structuring in the First Degree, punishable as a class D felony, would penalize those who commit the second degree offense with the intention of promoting the carrying on of criminal conduct or as part of a pattern of illegal activity involving more than $100,000 in any twelve month period.

Section 11 of the bill would amend the Penal Law to include concealing or disguising the nature or ownership of material support or resources as an element of the crime of soliciting or providing material support or resources for an act of Terrorism in the Second Degree.

Sections 12 and 13 of the bill would amend the Penal Law to create the new crimes of Criminal Facilitation of Terrorism and Conspiracy to Commit Terrorism which would apply traditional criminal facilitation and conspiracy concepts in the context of terror Crimes.

Section 14 the bill would amend the Penal Law to make conforming changes.

Section 15 of the bill would amend the Penal Law to add the amended crimes of Computer Tampering and the new crimes of Agricultural Adulteration to the definition of "specified offense" for the crime of terrorism.

Sections 16 and 17 of the bill would amend the Criminal Procedure Law to extend state jurisdiction to crimes committed on an aircraft that lands in New York.

Section 18 of the bill would amend the Criminal Procedure Law to eliminate in terrorist cases provisions of state law that require corroboration of accomplice testimony.

Sections 19 through 23 would amend the Criminal Procedure Law to clarify and improve the issuance of search warrants for out-of-state phone and computer services, and wireless telephones.

Sections 24, 25 and 26 of the bill would amend the Criminal Procedure Law to include the amended crimes of Computer Tampering, the new crimes of Agricultural Adulteration, as well as Money Laundering in Support of Terrorism and Cyberterrorism offenses to the list of offenses for which law enforcement may obtain an eaves- dropping or video surveillance warrants.

Section 27 of the bill would amend the Criminal Procedure Law to ensure that a terrorist is not deemed to have been prosecuted if such prosecution occurred in a court of any jurisdiction within the United States other than a New York State court.

Section 28 of the bill would amend the Criminal Procedure Law to eliminate any restriction against the prosecution of terrorists for the crime of Enterprise Corruption when an underlying criminal act of such prosecution was also part of a previous prosecution for racketeering by the federal government of the government of another state.

Section 29 of the bill would amend the Criminal Procedure Law to require a court to consider whether a defendant has previously been prosecuted in a court in another jurisdiction within the United States based upon the same criminal act or transaction when deciding a motion to dismiss a terrorism indictment in furtherance of justice.

Section 30 of the bill would amend the Criminal Procedure Law to prevent the suppression of reliable evidence of guilt in terrorism cases where an officer acted in good faith.

Section 31 of the bill would amend the Criminal Procedure Law to permit roving interceptions by law enforcement in certain circumstances. This section includes a two year expiration provision.

Sections 32, 33 and 34 of the bill would amend the Civil Practice Law and Rules to subject terrorists' property located outside of New York State to civil forfeiture. Section 35 of the bill would amend the Tax Law to provide for the disclosure of tax related information to a prosecutor pursuant to an ex parte order issued in connection with the investigation or prosecution of a crime. In addition, this section also would provide that tax information may be disclosed to a prosecutor in response to a grand jury subpoena or a particularized written request of a prosecutor in connection with the investigation of a state or federal terrorism offense where the information sought is relevant to the commission of such offense. This section includes a two-year expiration provision.

Section 36 of the bill would provide that a person who violates the new section 28 of the Tax Law is guilty of a misdemeanor.

Section 37 of the bill would add the Director of the Office of Homeland Security as an ex officio member of the Disaster Preparedness Commission.

Section 38 contains a severability clause.

Justification

The tragic events of the September 11th attack, orchestrated by a handful of extremists cloaked in a false shroud of religious righteousness, and the continuing real and present threat to New York's cities and citizens, underscore the compelling need for further anti-terror measures to enhance public safety.

It is our nation's profound commitment to the principles of democracy and the rule of law - a commitment despised by terrorists - that enables us to respond efficiently and effectively to the outrageous criminal acts of terrorists. Creating new criminal offenses, increasing penalties and instituting procedural reforms to enhance the powers of law enforcement are necessary to combat their cowardly and inhumane acts of terror.

While experts debate when and how an attack on our food and agriculture industry may take place, all agree that, in addition to causing serious human and animal health consequences, an attack could create substantial fear and disruption among our citizens and result in billions of dollars of damage to this critical sector.

Despite its urban image, New York is an important agricultural state. The State's abundant water supplies, fertile soils and favorable climatic conditions position New York's $3.1 billion agriculture industry as an important industry across the state. The industry is a fundamental component of the economy of virtually every community in rural New York, and the food processing, marketing and retail sectors are economically important in the State's urban sectors as well.

Overall, New York's 37,000 farms generate thousands of jobs and support a substantial agri-business industry, and generate billions of dollars annually for the State economy. In a table-top simulation of the introduction of Foot and Mouth Disease into a single livestock market in Texas, evaluation of the daily movement records from that market revealed that the disease could move to 17 other states within 72 hours.

In light of the great harm that would be caused by an attack on New York's food or agriculture, the establishment of a specific crime of agricultural adulteration, and adding this new crime to the definition of "specified offense" for the crime of terrorism will assist not only in punishing those responsible, but in providing a stronger deterrent to those considering such action in the future.

Likewise, New York City is home to the world's pre-eminent financial markets and institutions - markets and institutions abhorred by terrorists, as evidenced by the horrific events of September 11, 2001. Although the spirit of capitalism and democracy threatens the autocratic rule of terrorist leaders, terrorist organizations will continue to function unless meaningful steps are taken to cut off their networks of financial support.

That terrorists have raised, disguised, and used the money necessary to train and hone their lethal trade in our midst makes abundantly clear the need to enable law enforcement to uncover these terror proceeds and punish severely those who manipulate this money for terrorist purposes.

By creating the state crimes of Structuring, Criminal Facilitation and Conspiracy in Furtherance of Terrorism, this bill appropriately recognizes the need to track and trace the relatively small amount of money needed to perpetrate fiendish acts of terrorism that could cost countless priceless lives and billions of dollars.

The citizens of New York cannot afford to bestow on defendants accused of terrorist acts the windfall of the exclusionary rule if a police officer makes a technical error in the recovery of evidence. To prevent terrorists from escaping justice on account of good faith errors by law enforcement officials during searches and seizures, the bill would amend existing law to ensure that a good faith error made by a law enforcement official in a terrorist case will not necessitate the exclusion of reliable evidence of guilt and will prevent a terrorist from getting off on a "technicality."

Terrorists have benefitted from major technological advancements in cellular communications. Cellular phones, once a rarity, have become as common as home telephones. Regrettably, these phones have enabled criminals to thwart law enforcement initiatives simply by changing phones. Current law requires separate judicial authorization, a timely and cumbersome process, for each phone to be monitored by authorized law enforcement.

This bill, therefore, would remove this requirement and enable judges to authorize "roving wiretaps" so that law enforcement is able to monitor all communications by persons reasonably suspected of involvement in terrorist activities regardless of how many cell phones they use to conduct and plan and organize their illegal activities.

Recognizing the grave nature of terrorist acts, the bill also would enhance the prosecution of terrorists in the following significant ways:

(1) Permitting the prosecution of all terrorists under all circumstances in state courts, despite the pendency of a prosecution or a prior prosecution in a jurisdiction other than a New York State court;

(2) Eliminating in terrorist cases provisions of state law that require corroboration of accomplice testimony (under federal law and in a majority of states, the corroboration of accomplice testimony is not required);

(3) Enhancing the authority of law enforcement to investigate terrorist activity by authorizing in appropriate cases the release of the tax returns to criminal investigators; and

(4) Strengthening the authority of law enforcement to subject terrorists' property located outside of New York State to civil forfeiture.

The images of the savage attack on the World Trade Center and the Pentagon on September 11, 2001 will be forever remembered by all Americans. The slaughter of innocent civilians, and the sacrifice of selfless police officers, brave firefighters and other heroic emergency services personnel, will never be forgotten. A crime of unimaginable horror, terrorism tears at the very fabric of our society, threatening to rob us of our commitment to freedom, justice and democracy.

This bill would protect that commitment by providing law enforcement with the necessary tools to investigate, prosecute and punish terrorists.

Prior legislative history

: 2006 - S5605 Passed Senate; 2008 - S3645 - Referred to the Standing Committee on Veterans, Homeland Security and Military Affairs.

Fiscal implications

None Noted.

Effective date

: This act would take effect immediately.