Repeals subdivisions 1, 3 and 7 of section 240.35 of the penal law, relating to the offense of loitering, and makes conforming technical amendments

Title of bill

An act to amend the penal law, the alcoholic beverage control law, the criminal procedure law, the executive law and the general business law, in relation to making conforming technical amendments; to repeal subdivisions 1, 3 and 7 of section 240.35 of the penal law, relating to the offense of loitering; and to repeal certain provisions of the penal law relating thereto

Purpose

To strike out loitering provisions in the New York State Penal Law which were held unconstitutional by the New York State Court of Appeals in 1983. The actual statute, §240J2 was never amended to strike out the unconstitutional subsections.

Summary of provisions

Section One of the bill repeals Subdivisions (1),(3) and (7) of §240.30 of the Penal Law. (Loitering)

Section 2 amends paragraph of §265.00 of the Penal Law to remove references to §240.30(1)(3) and (7)

Sections 3 amends subdivision 17 of § 265.00 of the Penal Law to remove references to §240(1)(3) and (7).

Section 4 amends paragraph (g) of subdivision 2 of § 102 of the Alcoholic Beverage Control Law to remove references to §240.30(1)(3) and (7)

Existing law

In 1983, in the Court of Appeals case People v. Uplinger, 460 N.Y.S.2d 514 struck down specific loitering provisions found in §240.35 of the Penal Law. However, these sections were never removed from the Penal Law.

Justification

Recently, U.S. District Court judge Scheindlin (Casale v. Kelly, 80 Civ. 2173 (SAS))(S.D.N.Y.)) held New York City in contempt of court for failure to cease enforcing the loitering laws that were stricken down as unconstitutional by the New York State Court of Appeals in 1983 (People v. Uplinger, 460 N.Y.S.2d 514). The Court of Appeals case held that since the sodomy statutes were unconstitutional, the state could no longer penalize the act of asking another person to engage in now legal conduct (although actually engaging in sexual activity at a public place still remains illegal).

However it has become clear that the New York City Police Department and others continued to arrest and charge men for the act of loitering. Since 1989 tens of thousands of people have been arrested and charged with a crime using this now defunct provision of the penal law.

Judge Scheindlin condemned the NYPD for targeting the poor and gay men "cruising" for sex using the loitering law.

Those charged under the loitering provision endure the indignity of being detained, booked, charged, held in jail, brought to court and left with an arrest record. While the vast majority of these charges are dropped by the court due to the unconstitutionality of the provisions, law enforcement continues to aggressively utilize these statutes - which have never been physically removed from the Penal Law.

This bill will repeal and strikeout those loitering provisions that were deem unconstitutional by the Court of Appeals in 1989 and reaffirmed by the Federal Southern District of New York on April 26, 2010.

Legislative history

New Bill.

Fiscal implications

None.

Effective date

Immediately.