STATE OF NEW YORK ________________________________________________________________________ 297 2017-2018 Regular Sessions IN SENATE (Prefiled) January 4, 2017 ___________ Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law and the criminal procedure law, in relation to computer sex crimes against children The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The penal law is amended by adding a new title Y-3 to read 2 as follows: 3 TITLE Y-3 4 COMPUTER SEX CRIMES AGAINST CHILDREN 5 ARTICLE 497 6 COMPUTER SEX CRIMES AGAINST CHILDREN 7 Section 497.00 Computer sex crimes. 8 497.05 Sentence of imprisonment for computer sex crimes. 9 § 497.00 Computer sex crimes. 10 1. A person commits a computer sex crime when he or she commits a sex 11 crime against a child and facilitated the commission of such offense by 12 using or causing to be used a computer, computer service, cell phone, 13 text message, instant message, or social media platform to communicate 14 with the child against whom such offense is committed. 15 2. A "sex crime against a child" means a felony offense (a) the essen- 16 tial elements of which include the commission or attempted commission of 17 sexual conduct, as defined in subdivision ten of section 130.00 of this 18 chapter, or the use or promotion of a sexual or obscene sexual perform- 19 ance, as defined in section 263.00 of this chapter, (b) committed or 20 attempted to be committed against a child less than seventeen years old. 21 § 497.05 Sentence of imprisonment for computer sex crimes. 22 1. When a person is convicted of a computer sex crime pursuant to 23 section 497.00 of this article, and the underlying crime against a child EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02888-01-7

S. 297 2 1 is a violent felony offense, as defined in section 70.02 of this chap- 2 ter, the computer sex crime shall be deemed a violent felony offense. 3 2. When a person is convicted of a computer sex crime pursuant to 4 section 497.00 of this article, and the underlying sex crime against a 5 child is a class C, D or E felony, the computer sex crime shall be 6 deemed to be one category higher than the sex crime against a child the 7 defendant committed, or one category higher than the offense level 8 applicable to the defendant's conviction for an attempt or conspiracy to 9 commit a sex crime against a child, whichever is applicable. 10 3. Notwithstanding any other provision of law, when a person is 11 convicted of a computer sex crime pursuant to section 497.00 of this 12 article and the underlying sex crime against a child is a class B felo- 13 ny: 14 (a) the term of the determinate sentence must be at least eight years 15 if the defendant is sentenced pursuant to section 70.02 of this chapter; 16 (b) the term of the determinate sentence must be at least twelve years 17 if the defendant is sentenced pursuant to section 70.04 of this chapter; 18 and 19 (c) the maximum term of the indeterminate sentence must be at least 20 four years if the defendant is sentenced pursuant to section 70.05 of 21 this chapter. 22 § 2. Subdivisions 4 and 7 of section 200.50 of the criminal procedure 23 law, subdivision 4 as amended by section 15 of subpart A of part H of 24 chapter 55 of the laws of 2014, subdivision 7 as amended by chapter 7 of 25 the laws of 2007, are amended to read as follows: 26 4. A statement in each count that the grand jury, or, where the accu- 27 satory instrument is a superior court information, the district attor- 28 ney, accuses the defendant or defendants of a designated offense, 29 provided that in any prosecution under article four hundred eighty-five 30 of the penal law, the designated offense shall be the specified offense, 31 as defined in subdivision three of section 485.05 of the penal law, 32 followed by the phrase "as a hate crime", and provided further that in 33 any prosecution under section 490.25 of the penal law, the designated 34 offense shall be the specified offense, as defined in subdivision three 35 of section 490.05 of the penal law, followed by the phrase "as a crime 36 of terrorism"; and provided further that in any prosecution under 37 section 130.91 of the penal law, the designated offense shall be the 38 specified offense, as defined in subdivision two of section 130.91 of 39 the penal law, followed by the phrase "as a sexually motivated felony", 40 and provided further that in any prosecution under section 497.00 of the 41 penal law, the designated offense shall be the underlying sex crime 42 against a child, as defined in subdivision two of section 497.00 of the 43 penal law, followed by the phrase "as a computer sex crime"; and 44 provided further that in any prosecution under section 496.06 of the 45 penal law, the designated offense shall be the specified offense, as 46 defined in subdivision two of such section, followed by the phrase "as a 47 public corruption crime"; and 48 7. A plain and concise factual statement in each count which, without 49 allegations of an evidentiary nature, 50 (a) asserts facts supporting every element of the offense charged and 51 the defendant's or defendants' commission thereof with sufficient preci- 52 sion to clearly apprise the defendant or defendants of the conduct which 53 is the subject of the accusation; and 54 (b) in the case of any armed felony, as defined in subdivision forty- 55 one of section 1.20, states that such offense is an armed felony and 56 specifies the particular implement the defendant or defendants

S. 297 3 1 possessed, were armed with, used or displayed or, in the case of an 2 implement displayed, specifies what the implement appeared to be; and 3 (c) in the case of any hate crime, as defined in section 485.05 of the 4 penal law, specifies, as applicable, that the defendant or defendants 5 intentionally selected the person against whom the offense was committed 6 or intended to be committed; or intentionally committed the act or acts 7 constituting the offense, in whole or in substantial part because of a 8 belief or perception regarding the race, color, national origin, ances- 9 try, gender, religion, religious practice, age, disability or sexual 10 orientation of a person; and 11 (d) in the case of a crime of terrorism, as defined in section 490.25 12 of the penal law, specifies, as applicable, that the defendant or 13 defendants acted with intent to intimidate or coerce a civilian popu- 14 lation, influence the policy of a unit of government by intimidation or 15 coercion, or affect the conduct of a unit of government by murder, 16 assassination or kidnapping; and 17 (e) in the case of a sexually motivated felony, as defined in section 18 130.91 of the penal law, asserts facts supporting the allegation that 19 the offense was sexually motivated; and 20 (f) in the case of a computer sex crime, as defined in subdivision one 21 of section 497.00 of the penal law, specifies, as applicable, that the 22 defendant or defendants facilitated the commission of a sex crime 23 against a child, as defined in subdivision two of such section 497.00, 24 by using or causing to be used a computer, computer service, cell phone, 25 text message, instant message, or social media platform to communicate 26 with the child against whom such offense is committed; and 27 § 3. Subdivision 8 of section 700.05 of the criminal procedure law is 28 amended by adding two new paragraphs (v) and (w) to read as follows: 29 (v) Computer sex crimes as defined in section 497.00 of the penal law, 30 computer trespass as defined in section 156.10 of the penal law, comput- 31 er tampering in the third degree as defined in section 156.25 of the 32 penal law, computer tampering in the second degree as defined in section 33 156.26 of the penal law, computer tampering in the first degree as 34 defined in section 156.27 of the penal law, unlawful duplication of 35 computer related material as defined in section 156.30 of the penal law, 36 criminal possession of computer related material as defined in section 37 156.35 of the penal law and disseminating indecent material to minors in 38 the first degree as defined in section 235.22 of the penal law. 39 (w) Use of a child in a sexual performance as defined in section 40 263.05 of the penal law, promoting an obscene sexual performance by a 41 child as defined in section 263.10 of the penal law, possessing an 42 obscene sexual performance by a child as defined in section 263.11 of 43 the penal law, promoting a sexual performance by a child as defined in 44 section 263.15 of the penal law, possessing a sexual performance by a 45 child as defined in section 263.16 of the penal law. 46 § 4. Paragraph (a) of subdivision 1 of section 460.10 of the penal 47 law, as amended by chapter 368 of the laws of 2015, is amended to read 48 as follows: 49 (a) Any of the felonies set forth in this chapter: sections 120.05, 50 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat- 51 ing to strangulation; sections 125.10 to 125.27 relating to homicide; 52 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and 53 135.25 relating to kidnapping; sections 135.35 and 135.37 relating to 54 labor trafficking; section 135.65 relating to coercion; sections 140.20, 55 140.25 and 140.30 relating to burglary; sections 145.05, 145.10 and 56 145.12 relating to criminal mischief; article one hundred fifty relating

S. 297 4 1 to arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand 2 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health 3 care fraud; article one hundred sixty relating to robbery; sections 4 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of 5 stolen property; sections 165.72 and 165.73 relating to trademark coun- 6 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and 7 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and 8 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and 9 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating 10 to criminal diversion of prescription medications and prescriptions; 11 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03, 12 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 200.56, 13 215.00, 215.05 and 215.19; sections 187.10, 187.15, 187.20 and 187.25 14 relating to residential mortgage fraud, sections 190.40 and 190.42 15 relating to criminal usury; section 190.65 relating to schemes to 16 defraud; any felony defined in article four hundred ninety-six; sections 17 205.60 and 205.65 relating to hindering prosecution; sections 210.10, 18 210.15, and 215.51 relating to perjury and contempt; section 215.40 19 relating to tampering with physical evidence; sections 220.06, 220.09, 20 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46, 21 220.55, 220.60, 220.65 and 220.77 relating to controlled substances; 22 sections 225.10 and 225.20 relating to gambling; sections 230.25, 23 230.30, and 230.32 relating to promoting prostitution; section 230.34 24 relating to sex trafficking; sections 235.06, 235.07, 235.21 and 235.22 25 relating to obscenity; sections 263.05, 263.10 [~~and~~], 263.11, 263.15 and 26 263.16 relating to [~~promoting~~] a sexual performance by a child; sections 27 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the provisions of 28 section 265.10 which constitute a felony relating to firearms and other 29 dangerous weapons; sections 265.14 and 265.16 relating to criminal sale 30 of a firearm; section 275.10, 275.20, 275.30, or 275.40 relating to 31 unauthorized recordings; [~~and~~] sections 470.05, 470.10, 470.15 and 32 470.20 relating to money laundering; and section 497.00 relating to 33 computer sex crimes; or 34 § 5. This act shall take effect on the first of November next succeed- 35 ing the date on which it shall have become a law.

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