STATE OF NEW YORK ________________________________________________________________________ 5141 2017-2018 Regular Sessions IN ASSEMBLY February 6, 2017 ___________ Introduced by M. of A. RAMOS -- Multi-Sponsored by -- M. of A. ABBATE, PERRY -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to enacting the criminal street gang related crimes act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "criminal street gang related crimes act". 3 § 2. The penal law is amended by adding a new article 486 to read as 4 follows: 5 ARTICLE 486 6 CRIMINAL STREET GANG RELATED CRIMES 7 Section 486.00 Legislative findings. 8 486.05 Definitions. 9 486.10 Criminal street gang related crime. 10 486.15 Sentencing. 11 § 486.00 Legislative findings. 12 The legislature finds and determines as follows: gang related crime 13 has continued to increase in American society. It is no longer uncommon 14 for gangs to solicit youngsters in the elementary schools to join in 15 their criminal activity. Tougher, new laws are required to break these 16 gangs. It is time to start going after gangs as we did with organized 17 crime. 18 This article increases penalties for various violent crimes that are 19 perpetrated in the furtherance of gang activity. The concept is similar 20 to the law the state enacted to deal with bias related crimes. The 21 penalty is not only given for the underlying assault, but also for the 22 fact that it was bias related. In this case, for example, an E felony is 23 raised to a D felony where the violent crime was committed in the furth- 24 erance of gang activity. This article mirrors legislation that has been EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07282-01-7

A. 5141 2 1 enacted in many other states including the states of New Jersey, Cali- 2 fornia and Florida. 3 § 486.05 Definitions. 4 For the purposes of this article: 5 1. "Criminal street gang" means any ongoing organization, association 6 or group of three or more persons, whether formal or informal, having as 7 one of its primary activities the commission of one or more criminal 8 acts, which has an identifiable name or identifying sign or symbol, and 9 whose members individually or collectively engage in or have engaged in 10 criminal street gang activity. 11 2. "Criminal street gang member" means a person to whom two or more of 12 the following criteria apply: 13 (a) admits to criminal street gang membership; 14 (b) is identified as a criminal street gang member by a documented 15 reliable informant; 16 (c) resides in or frequents a particular criminal street gang's area 17 and adopts its style of dress, its use of hand signals or its tattoos 18 and associates with known criminal street gang members; 19 (d) has been arrested more than once in the company of known criminal 20 street gang members for offenses which are consistent with usual crimi- 21 nal street gang activity; 22 (e) is identified as a criminal street gang member by physical 23 evidence, such as photographs or other documentation; 24 (f) has been stopped in the company of known criminal street gang 25 members four or more times; 26 (g) has been identified as a criminal street gang member by other law 27 enforcement agencies; or 28 (h) is identified as a criminal street gang member by a family member. 29 3. "Criminal street gang activity" means the commission or attempted 30 commission of, or solicitation or conspiracy to commit, two or more 31 felony acts that: 32 (a) were committed on separate occasions within a five year period; 33 (b) are neither isolated incidents, nor so closely related and 34 connected in point of time or circumstance of commission as to consti- 35 tute a criminal offense or criminal transaction, as such terms are 36 defined in section 40.10 of the criminal procedure law; and 37 (c) further a criminal street gang by: (i) being related to one anoth- 38 er through a common scheme or plan; or (ii) were committed, solicited, 39 requested, importuned or intentionally aided by persons acting with the 40 mental culpability required for the commission of such felony acts and 41 such person is a member of such criminal street gang. 42 § 486.10 Criminal street gang related crime. 43 1. A person commits a criminal street gang related crime when he or 44 she commits a specified offense and either: 45 (a) such person is a criminal street gang member, or 46 (b) such person's conduct is in relation to initiation into a criminal 47 street gang, or 48 (c) such person's conduct is in relation to criminal street gang 49 activity. 50 2. A "specified offense" is an offense defined by any of the following 51 provisions of this chapter: section 120.00 (assault in the third 52 degree); section 120.05 (assault in the second degree); section 120.10 53 (assault in the first degree); section 120.12 (aggravated assault upon a 54 person less than eleven years old); section 120.13 (menacing in the 55 first degree); section 120.14 (menacing in the second degree); section 56 120.15 (menacing in the third degree); section 120.20 (reckless endan-

A. 5141 3 1 germent in the second degree); section 120.25 (reckless endangerment in 2 the first degree); subdivision one of section 125.15 (manslaughter in 3 the second degree); subdivision one, two or four of section 125.20 4 (manslaughter in the first degree); section 125.25 (murder in the second 5 degree); section 120.45 (stalking in the fourth degree); section 120.50 6 (stalking in the third degree); section 120.55 (stalking in the second 7 degree); section 120.60 (stalking in the first degree); subdivision one 8 of section 130.35 (rape in the first degree); subdivision one of section 9 130.50 (criminal sexual act in the first degree); subdivision one of 10 section 130.65 (sexual abuse in the first degree); paragraph (a) of 11 subdivision one of section 130.67 (aggravated sexual abuse in the second 12 degree); paragraph (a) of subdivision one of section 130.70 (aggravated 13 sexual abuse in the first degree); section 135.05 (unlawful imprisonment 14 in the second degree); section 135.10 (unlawful imprisonment in the 15 first degree); section 135.20 (kidnapping in the second degree); section 16 135.25 (kidnapping in the first degree); section 135.60 (coercion in the 17 second degree); section 135.65 (coercion in the first degree); section 18 140.10 (criminal trespass in the third degree); section 140.15 (criminal 19 trespass in the second degree); section 140.17 (criminal trespass in the 20 first degree); section 140.20 (burglary in the third degree); section 21 140.25 (burglary in the second degree); section 140.30 (burglary in the 22 first degree); section 145.00 (criminal mischief in the fourth degree); 23 section 145.05 (criminal mischief in the third degree); section 145.10 24 (criminal mischief in the second degree); section 145.12 (criminal 25 mischief in the first degree); section 150.05 (arson in the fourth 26 degree); section 150.10 (arson in the third degree); section 150.15 27 (arson in the second degree); section 150.20 (arson in the first 28 degree); section 155.25 (petit larceny); section 155.30 (grand larceny 29 in the fourth degree); section 155.35 (grand larceny in the third 30 degree); section 155.40 (grand larceny in the second degree); section 31 155.42 (grand larceny in the first degree); section 160.05 (robbery in 32 the third degree); section 160.10 (robbery in the second degree); 33 section 160.15 (robbery in the first degree); section 240.25 (harassment 34 in the first degree); subdivision one, two or four of section 240.30 35 (aggravated harassment in the second degree); or any attempt or conspir- 36 acy to commit any of the foregoing offenses. 37 § 486.15 Sentencing. 38 1. When a person is convicted of a criminal street gang related crime 39 pursuant to this article, and the specified offense is a violent felony 40 offense, as defined in section 70.02 of this chapter, the criminal 41 street gang related crime shall be deemed a violent felony offense. 42 2. When a person is convicted of a criminal street gang related crime 43 pursuant to this article and the specified offense is a misdemeanor or a 44 class C, D or E felony, the criminal street gang related crime shall be 45 deemed to be one category higher than the specified offense the defend- 46 ant committed, or one category higher than the offense level applicable 47 to the defendant's conviction for an attempt or conspiracy to commit a 48 specified offense, whichever is applicable. 49 3. Notwithstanding any other provision of law, when a person is 50 convicted of a criminal street gang related crime pursuant to this arti- 51 cle and the specified offense is a class B felony: 52 (a) the maximum term of the indeterminate sentence must be at least 53 six years if the defendant is sentenced pursuant to section 70.00 of 54 this chapter; 55 (b) the term of the determinate sentence must be at least eight years 56 if the defendant is sentenced pursuant to section 70.02 of this chapter;

A. 5141 4 1 (c) the term of the determinate sentence must be at least twelve years 2 if the defendant is sentenced pursuant to section 70.04 of this chapter; 3 (d) the maximum term of the indeterminate sentence must be at least 4 four years if the defendant is sentenced pursuant to section 70.05 of 5 this chapter; and 6 (e) the maximum term of the indeterminate sentence or the term of the 7 determinate sentence must be at least ten years if the defendant is 8 sentenced pursuant to section 70.06 of this chapter. 9 4. Notwithstanding any other provision of law, when a person is 10 convicted of a criminal street gang related crime pursuant to this arti- 11 cle and the specified offense is a class A-1 felony, the minimum period 12 of the indeterminate sentence shall be not less than twenty years. 13 5. The provisions of this section shall not apply where the court, 14 having regard to the nature and circumstances of the crime and the 15 history and character of the defendant, finds on the record that such 16 additional term or sentence would be unduly harsh and that not imposing 17 such additional term or sentence would be consistent with the public 18 safety and would not deprecate the seriousness of the crime. 19 § 3. Local laws; preemption. Nothing in this act shall prevent a 20 local governing body from adopting and enforcing laws consistent with 21 this act relating to criminal street gang activity on school grounds and 22 criminal street gang violence. Where local laws duplicate or supplement 23 this act, this act shall be construed as providing alternative remedies 24 and not as preempting such local laws. 25 § 4. Severability. If any part or provision of this act, or the appli- 26 cation thereof to any person or circumstance, is held invalid, the 27 remainder of this act, including the application of the part or 28 provision to other persons or circumstances, shall not be affected 29 thereby and shall continue in full force and effect. To this end, the 30 provisions of this act are severable. 31 § 5. This act shall take effect on the first of November next succeed- 32 ing the date on which it shall have become a law.

Enacts the criminal street gang related crimes act

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