Creates a new crime of electronic stalking and provides for a conviction for electronic stalking to trigger submission to the DNA databank

6. "Electronic communication" shall mean any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system. Electronic communication includes, but is not limited to, the transfer of that communication through the internet.

7. "Personal identifying information" shall mean a person's name, address, telephone number, date of birth, driver's license number, motor vehicle license plate number, social security number, place of employment, school, mother's maiden name, image, or schedule of daily activities.

Section 2. Subdivision 4 of section 120.55 of the penal law , as amended by chapter 598 of the laws of 2003.

4. Being twenty-one years of age or older, repeatedly follows a person under the age of fourteen or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or, death, or becoming the victim of a sex offense as defined in article one hundred thirty of this chapter.

Section 3. The Penal Law is amended by adding three new sections 120.65, 120.70, and 120.75.

120.65 Electronic stalking in the third degree. A person is guilty of electronic stalking in the first degree when he or she, intentionally and for no legitimate purpose makes an electronic communication that includes personal identifying information concerning a specific person and knows or reasonably should know that such communication is likely to cause such person to reasonably fear the death, serious physical injury, physical injury, kidnapping, or unlawful imprisonment of such person or another person; the commission of a sex offense as defined in article one hundred thirty of this chapter against such person or another person; or the commission of the crimes of criminal trespass or burglary.

120.70 Electronic Stalking in the second degree.

A person is guilty of electronic stalking in the second degree when he or she, intentionally and for no legitimate purpose, makes an electronic communication that includes personal identifying information concerning a specific person and knows or reasonably should know that such communication is likely to cause such person to reasonably fear the death, serious physical injury, physical injury, kidnapping, or unlawful imprisonment of such person or another person; the commission of a sex offense as defined in article one hundred thirty of this chapter against such person; or another person or the commission of the crimes of criminal trespass or burglary, and:

1. such communication facilitates the commission or attempted commission of a crime other than a class A, B, or C felony and such crime or attempted crime actually occurs; or

2. such communication involves the dissemination of personal identifying information concerning a person under the age of eighteen and the actor is eighteen years old or more; or

3. such communication involves the dissemination of personal identifying information concerning a person who is a public servant as defined in subdivision fifteen of section 10.00 of this chapter and the information is communicated because of the person's position as a public servant; or

4. he or she does so by knowingly assuming the identity of such specific person by presenting himself or herself as that specific person, or by acting as that specific person, or by using personal identifying information of that specific person.

Electronic Stalking in the second degree is a class D felony

120.75 Electronic Stalking in the first degree

A person is guilty of electronic stalking in the first degree when he or she, intentionally and for no legitimate purpose makes an electronic communication that includes personal identifying information concerning a specific person and knows or reasonably should know that such communication is likely to cause such person to reasonably fear the death, serious physical injury, physical injury, kidnapping, or unlawful imprisonment of such person or another person. The commission of a sex offense as defined in article one hundred thirty of this chapter against such person or another person, or the commission of the crimes of criminal trespass or burglary, and such communication facilitates the commission or attempted commission of a class A, B, or C felony and such crime or attempted crime actually occurs. Electronic stalking in the first degree is a class C felony.

Section 4. Paragraph (P) of subdivision 8 of section 700.05 of the criminal procedure law, as added by chapter 635 of the laws of 1999, is amended by adding electronic stalking, in the third degree as deemed in section 120.65 of the penal law, electronic stalking in the second degree as deemed in section 120.70 of the penal law, and electronic stalking in the first degree as defined in section 120.75 of the penal law.

Section 5. Subdivision 8 of section 700.05 of the criminal procedure law is amended by adding a new paragraph (t) to read as follows:

(t) Disseminating indecent material to a minor in the first degree as defined in section 235.22 of the penal law, use or a child in a sexual performance as defined in section 263.05 of the penal law, promoting an obscene sexual performance by a child as defined in section 263.10 of the penal law, promoting an obscene sexual performance by a child as defined in section 263.11 of the penal law, promoting a sexual performance by a child as defined in section 263.16 of the penal law. Section 6. Paragraphs (b) and (c) of subdivision 1 of section 70.02 of the penal law , paragraph (b) as amended by section 6 of pact A of chapter 1 of the laws of 2004 and paragraph (c) as amended by chapter 584 of the laws of2003, are amended by adding:

(b) Class C violent offenses: ... electronic stalking in the first degree as defined in section §120.75

(c) Class D violent offenses: ...electronic stalking in the second degree as defined in § 120.70

Section 7. Paragraph (d) of subdivision 7 of section 995 of the executive law, as amended by chapter 576 of the laws of 2004, is amended by adding the following:

(d) any of the following felonies, or an attempt thereof where such attempt is a felony offense:

electronic stalking in the third degree, as defined in section 120.65 of the penal law; electronic stalking in the second degree, as deemed in section 120.70 of the penal law; electronic stalking in the first degree, as defined in section 120.75 of the penal law.

Section 8: Subdivision 2 of section 168-a of the correction law is amended by adding a new paragraph (f) to read as follows:

(f) a conviction for any of the provisions defined in sections 120.65, 120.70, or 120.75 of the penal law, unless upon motion by the defendant, the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that registration would be unduly harsh and inappropriate.

Justification

Cyber Stalking - or electronic stalking - is the use of the internet or other electronic means to disseminate, for no legitimate purpose, personal identifying information about another person. This type of conduct, which often occurs in the context of domestic or other personal relationships, is not adequately addressed by current laws. Cyberstalking that exposes the victim to the risk of physical injury or other substantial harm should be a felony under the New York Penal Law.

Prior legislative history

2007-08: S.4295/A.4709. 2005-06: A.7031.

Fiscal implications

To be determined.

Effective date

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