S T A T E O F N E W Y O R K
________________________________________________________________________
1742--A
2011-2012 Regular Sessions
I N S E N A T E
January 12, 2011
___________
Introduced by Sens. GOLDEN, JOHNSON, LAVALLE -- read twice and ordered
printed, and when printed to be committed to the Committee on Codes --
recommitted to the Committee on Codes in accordance with Senate Rule
6, sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the penal law, the civil practice law and rules, the
state finance law, the education law, and the mental hygiene law, in
relation to defining offenses involving criminal street gangs, creat-
ing the criminal street gang prevention fund, and providing for gang
prevention services in schools; and to repeal sections 120.06 and
120.07 of the penal law, relating to offenses of gang assault
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Legislative findings and purpose. The legislature hereby
2 finds that New York laws are insufficiently targeted to the prosecution
3 of criminal street gangs and the protection of public order and individ-
4 ual safety against gang-related violence, because they lack programs and
5 activities specifically designed to prevent the growth of criminal
6 street gangs, facilitate prosecution and punishment of members of crimi-
7 nal street gangs, and punish those who solicit others to participate in
8 criminal street gangs and in acts of gang-related violence or who
9 provide support or resources to those who commit or encourage the
10 commission of such acts.
11 The legislature further finds that the threat of violence and the
12 disruption of public order and safety presented by criminal street gangs
13 has reached a crisis point that threatens the right of residents of this
14 state to be secure and protected from fear, intimidation, and physical
15 harm.
16 The legislature therefore finds and declares that it is in every sense
17 in the public interest to establish a comprehensive approach to the
18 protection of public order and individual safety against criminal street
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04618-02-2
S. 1742--A 2
1 gangs and gang-related violence, by severely criminalizing such activ-
2 ities, by creating anti-crime programs that focus on patterns of crimi-
3 nal gang activity and organization, and by expanding education and
4 intervention to prevent the growth of criminal street gangs as provided
5 in this legislation.
6 S 2. Paragraph (a) of subdivision 2 of section 60.07 of the penal law,
7 as added by chapter 148 of the laws of 2000, is amended to read as
8 follows:
9 (a) the term "specified offense" shall mean an attempt to commit
10 murder in the second degree as defined in section 125.25 of this chap-
11 ter, gang assault in the first degree as defined in section [120.07]
12 495.08 of this chapter, gang assault in the second degree as defined in
13 section [120.06] 495.07 of this chapter, assault in the first degree as
14 defined in section 120.10 of this chapter, manslaughter in the first
15 degree as defined in section 125.20 of this chapter, manslaughter in the
16 second degree as defined in section 125.15 of this chapter, robbery in
17 the first degree as defined in section 160.15 of this chapter, robbery
18 in the second degree as defined in section 160.10 of this chapter, or
19 the attempted commission of any of the following offenses: gang assault
20 in the first degree as defined in section [120.07] 495.08, assault in
21 the first degree as defined in section 120.10, manslaughter in the first
22 degree as defined in section 125.20 or robbery in the first degree as
23 defined in section 160.15;
24 S 3. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the
25 penal law, paragraph (a) as amended by chapter 320 of the laws of 2006
26 and paragraph (b) as amended by chapter 148 of the laws of 2011, are
27 amended to read as follows:
28 (a) Class B violent felony offenses: an attempt to commit the class
29 A-I felonies of murder in the second degree as defined in section
30 125.25, kidnapping in the first degree as defined in section 135.25, and
31 arson in the first degree as defined in section 150.20; manslaughter in
32 the first degree as defined in section 125.20, aggravated manslaughter
33 in the first degree as defined in section 125.22, rape in the first
34 degree as defined in section 130.35, criminal sexual act in the first
35 degree as defined in section 130.50, aggravated sexual abuse in the
36 first degree as defined in section 130.70, course of sexual conduct
37 against a child in the first degree as defined in section 130.75;
38 assault in the first degree as defined in section 120.10, kidnapping in
39 the second degree as defined in section 135.20, burglary in the first
40 degree as defined in section 140.30, arson in the second degree as
41 defined in section 150.15, robbery in the first degree as defined in
42 section 160.15, incest in the first degree as defined in section 255.27,
43 criminal possession of a weapon in the first degree as defined in
44 section 265.04, criminal use of a firearm in the first degree as defined
45 in section 265.09, criminal sale of a firearm in the first degree as
46 defined in section 265.13, aggravated assault upon a police officer or a
47 peace officer as defined in section 120.11, gang assault in the first
48 degree as defined in section [120.07] 495.08, intimidating a victim or
49 witness in the first degree as defined in section 215.17, hindering
50 prosecution of terrorism in the first degree as defined in section
51 490.35, criminal possession of a chemical weapon or biological weapon in
52 the second degree as defined in section 490.40, and criminal use of a
53 chemical weapon or biological weapon in the third degree as defined in
54 section 490.47.
55 (b) Class C violent felony offenses: an attempt to commit any of the
56 class B felonies set forth in paragraph (a) of this subdivision; aggra-
S. 1742--A 3
1 vated criminally negligent homicide as defined in section 125.11, aggra-
2 vated manslaughter in the second degree as defined in section 125.21,
3 aggravated sexual abuse in the second degree as defined in section
4 130.67, assault on a peace officer, police officer, fireman or emergency
5 medical services professional as defined in section 120.08, assault on a
6 judge as defined in section 120.09, gang assault in the second degree as
7 defined in section [120.06] 495.07, strangulation in the first degree as
8 defined in section 121.13, burglary in the second degree as defined in
9 section 140.25, robbery in the second degree as defined in section
10 160.10, criminal possession of a weapon in the second degree as defined
11 in section 265.03, criminal use of a firearm in the second degree as
12 defined in section 265.08, criminal sale of a firearm in the second
13 degree as defined in section 265.12, criminal sale of a firearm with the
14 aid of a minor as defined in section 265.14, soliciting or providing
15 support for an act of terrorism in the first degree as defined in
16 section 490.15, hindering prosecution of terrorism in the second degree
17 as defined in section 490.30, and criminal possession of a chemical
18 weapon or biological weapon in the third degree as defined in section
19 490.37.
20 S 4. Sections 120.06 and 120.07 of the penal law are REPEALED.
21 S 5. Subdivision 2 of section 130.91 of the penal law, as amended by
22 chapter 405 of the laws of 2010, is amended to read as follows:
23 2. A "specified offense" is a felony offense defined by any of the
24 following provisions of this chapter: assault in the second degree as
25 defined in section 120.05, assault in the first degree as defined in
26 section 120.10, gang assault in the second degree as defined in section
27 [120.06] 495.07, gang assault in the first degree as defined in section
28 [120.07] 495.08, stalking in the first degree as defined in section
29 120.60, strangulation in the second degree as defined in section 121.12,
30 strangulation in the first degree as defined in section 121.13,
31 manslaughter in the second degree as defined in subdivision one of
32 section 125.15, manslaughter in the first degree as defined in section
33 125.20, murder in the second degree as defined in section 125.25, aggra-
34 vated murder as defined in section 125.26, murder in the first degree as
35 defined in section 125.27, kidnapping in the second degree as defined in
36 section 135.20, kidnapping in the first degree as defined in section
37 135.25, burglary in the third degree as defined in section 140.20,
38 burglary in the second degree as defined in section 140.25, burglary in
39 the first degree as defined in section 140.30, arson in the second
40 degree as defined in section 150.15, arson in the first degree as
41 defined in section 150.20, robbery in the third degree as defined in
42 section 160.05, robbery in the second degree as defined in section
43 160.10, robbery in the first degree as defined in section 160.15,
44 promoting prostitution in the second degree as defined in section
45 230.30, promoting prostitution in the first degree as defined in section
46 230.32, compelling prostitution as defined in section 230.33, dissem-
47 inating indecent material to minors in the first degree as defined in
48 section 235.22, use of a child in a sexual performance as defined in
49 section 263.05, promoting an obscene sexual performance by a child as
50 defined in section 263.10, promoting a sexual performance by a child as
51 defined in section 263.15, or any felony attempt or conspiracy to commit
52 any of the foregoing offenses.
53 S 6. The penal law is amended by adding a new title Y-2 to read as
54 follows:
55 TITLE Y-2
56 OFFENSES INVOLVING CRIMINAL STREET GANGS
S. 1742--A 4
1 ARTICLE 495
2 CRIMINAL STREET GANGS ENFORCEMENT AND PREVENTION ACT
3 SECTION 495.01 DEFINITIONS.
4 495.02 PARTICIPATION IN A CRIMINAL STREET GANG.
5 495.03 PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY.
6 495.04 SOLICITATION FOR PARTICIPATION IN A CRIMINAL STREET GANG.
7 495.05 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION
8 IN A CRIMINAL STREET GANG.
9 495.06 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION
10 IN A CRIMINAL STREET GANG ON SCHOOL GROUNDS.
11 495.07 GANG ASSAULT IN THE SECOND DEGREE.
12 495.08 GANG ASSAULT IN THE FIRST DEGREE.
13 495.09 ABATEMENT OF PREMISES USED FOR CRIMINAL STREET GANG
14 ACTIVITY.
15 495.10 PREEMPTION.
16 495.11 SENTENCING.
17 S 495.01 DEFINITIONS.
18 AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
19 MEANINGS:
20 1. "CRIMINAL STREET GANG" MEANS ANY FORMAL OR INFORMAL ORGANIZATION,
21 ASSOCIATION, OR GROUP OF THREE OR MORE PERSONS HAVING A COMMON NAME OR
22 IDENTIFYING SIGN OR SYMBOL WHOSE MEMBERS INDIVIDUALLY OR COLLECTIVELY
23 ENGAGE IN OR HAVE ENGAGED IN A PATTERN OF CRIMINAL GANG ACTIVITY.
24 2. "PATTERN OF CRIMINAL GANG ACTIVITY" MEANS THE COMMISSION OF,
25 ATTEMPTED COMMISSION OF, CONSPIRACY TO COMMIT, SOLICITATION OF,
26 SUSTAINED JUVENILE PETITION FOR, OR CONVICTION OF ANY TWO OR MORE OF ANY
27 SPECIFIED OFFENSES LISTED IN SUBDIVISION THREE OF THIS SECTION BY A
28 PARTICIPANT OR PARTICIPANTS IN A CRIMINAL STREET GANG, PROVIDED THAT THE
29 OFFENSES SHALL HAVE OCCURRED ON SEPARATE OCCASIONS WITHIN THREE YEARS OF
30 EACH OTHER, OR BY TWO OR MORE PERSONS WHO ARE PARTICIPANTS IN A CRIMINAL
31 STREET GANG, AND THAT AT LEAST ONE SUCH OFFENSE SHALL HAVE OCCURRED
32 AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
33 3. "SPECIFIED OFFENSE" MEANS ANY OFFENSE DEFINED BY ANY OF THE FOLLOW-
34 ING PROVISIONS OF THIS CHAPTER: OFFENSES CONSTITUTING A SPECIFIED
35 OFFENSE AS DEFINED IN SUBDIVISION THREE OF SECTION 485.05 (HATE CRIMES),
36 ARTICLE ONE HUNDRED FIFTEEN (CRIMINAL FACILITATION), ONE HUNDRED THIR-
37 TY-FIVE (KIDNAPPING, COERCION AND RELATED OFFENSE), ONE HUNDRED SEVENTY
38 (FORGERY AND RELATED OFFENSES), ONE HUNDRED SEVENTY-EIGHT (CRIMINAL
39 DIVERSION OF PRESCRIPTION MEDICATIONS AND PRESCRIPTIONS), TWO HUNDRED
40 TWENTY (CONTROLLED SUBSTANCES OFFENSES), TWO HUNDRED TWENTY-ONE
41 (OFFENSES INVOLVING MARIHUANA), TWO HUNDRED TWENTY-FIVE (GAMBLING
42 OFFENSES), TWO HUNDRED THIRTY (PROSTITUTION OFFENSES), TWO HUNDRED THIR-
43 TY-FIVE (OBSCENITY AND RELATED OFFENSES), TWO HUNDRED SIXTY-FIVE
44 (FIREARMS AND OTHER DANGEROUS WEAPONS), TWO HUNDRED SEVENTY (OTHER
45 OFFENSES RELATING TO PUBLIC SAFETY), FOUR HUNDRED (LICENSING AND OTHER
46 PROVISIONS RELATING TO FIREARMS) OR FOUR HUNDRED SEVENTY (MONEY LAUNDER-
47 ING).
48 S 495.02 PARTICIPATION IN A CRIMINAL STREET GANG.
49 A PERSON IS GUILTY OF PARTICIPATION IN A CRIMINAL STREET GANG IF SUCH
50 PERSON PARTICIPATES IN A CRIMINAL STREET GANG WITH KNOWLEDGE THAT ITS
51 MEMBERS ENGAGE IN OR HAVE ENGAGED IN A PATTERN OF CRIMINAL GANG ACTIV-
52 ITY.
53 PARTICIPATION IN A CRIMINAL STREET GANG IS A CLASS A MISDEMEANOR.
54 S 495.03 PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY.
55 A PERSON IS GUILTY OF PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY
56 WHEN HE OR SHE WILLFULLY AND KNOWINGLY PROMOTES, FURTHERS, ASSISTS IN,
S. 1742--A 5
1 CONDUCTS, OR PARTICIPATES IN THE AFFAIRS OF A CRIMINAL STREET GANG BY
2 PARTICIPATING IN A PATTERN OF CRIMINAL STREET GANG ACTIVITY, OR KNOWING-
3 LY INVESTS PROCEEDS DERIVED FROM CRIMINAL STREET GANG ACTIVITY, OR
4 PROCEEDS DERIVED FROM THE INVESTMENT OR USE OF THOSE PROCEEDS, IN AN
5 ENTERPRISE. A PERSON MAY BE A PARTICIPANT IN A CRIMINAL STREET GANG
6 IRRESPECTIVE OF THE AMOUNT OF TIME HE OR SHE DEVOTES TO THE CRIMINAL
7 STREET GANG, AS LONG AS SUCH PERSON SHALL HAVE PARTICIPATED IN COMMIT-
8 TING ACTS CONSTITUTING CRIMINAL STREET GANG ACTIVITY WITH ONE OR MORE
9 MEMBERS OF A CRIMINAL STREET GANG.
10 PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY IS A CLASS E FELONY.
11 S 495.04 SOLICITATION FOR PARTICIPATION IN A CRIMINAL STREET GANG.
12 A PERSON IS GUILTY OF SOLICITATION FOR PARTICIPATION IN A CRIMINAL
13 STREET GANG IF SUCH PERSON:
14 1. SOLICITS OR RECRUITS ANOTHER TO ACTIVELY PARTICIPATE IN A CRIMINAL
15 STREET GANG WITH THE INTENT THAT THE PERSON SOLICITED OR RECRUITED
16 PARTICIPATE IN A PATTERN OF CRIMINAL STREET GANG ACTIVITY, OR WITH THE
17 INTENT THAT SUCH PERSON PROMOTE, FURTHER, CONDUCT, OR ASSIST IN ANY
18 PATTERN OF CRIMINAL STREET GANG ACTIVITY BY MEMBERS OF THE CRIMINAL
19 STREET GANG; OR
20 2. THREATENS A PERSON WITH PHYSICAL VIOLENCE WITH THE INTENT TO
21 COERCE, INDUCE, OR SOLICIT SUCH PERSON OR ANOTHER TO PARTICIPATE IN A
22 CRIMINAL STREET GANG; OR
23 3. USES PHYSICAL VIOLENCE TO COERCE, INDUCE, OR SOLICIT ANOTHER PERSON
24 TO PARTICIPATE IN A CRIMINAL STREET GANG.
25 SOLICITATION FOR PARTICIPATION IN A CRIMINAL STREET GANG IS A CLASS E
26 FELONY.
27 S 495.05 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION IN A
28 CRIMINAL STREET GANG.
29 A PERSON IS GUILTY OF SOLICITATION OR RECRUITMENT OF MINORS FOR
30 PARTICIPATION IN A CRIMINAL STREET GANG WHEN HE OR SHE COMMITS THE CRIME
31 OF SOLICITATION FOR PARTICIPATION IN A CRIMINAL STREET GANG AND THE
32 PERSON SOLICITED OR RECRUITED IS LESS THAN EIGHTEEN YEARS OF AGE.
33 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION IN A CRIMINAL
34 STREET GANG IS A CLASS D FELONY.
35 S 495.06 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION IN A
36 CRIMINAL STREET GANG ON SCHOOL GROUNDS.
37 A PERSON IS GUILTY OF SOLICITATION OR RECRUITMENT OF MINORS FOR
38 PARTICIPATION IN A CRIMINAL STREET GANG ON SCHOOL GROUNDS WHEN HE OR SHE
39 COMMITS THE CRIME OF SOLICITATION OR RECRUITMENT OF MINORS FOR PARTIC-
40 IPATION IN A CRIMINAL STREET GANG WHILE ON SCHOOL GROUNDS. FOR PURPOSES
41 OF THIS SECTION, THE TERM "SCHOOL GROUNDS" MEANS "SCHOOL GROUNDS" AS
42 DEFINED IN SUBDIVISION FOURTEEN OF SECTION 220.00 OF THIS CHAPTER.
43 SOLICITATION OR RECRUITMENT OF MINORS FOR PARTICIPATION IN A CRIMINAL
44 STREET GANG ON SCHOOL GROUNDS IS A CLASS C FELONY.
45 S 495.07 GANG ASSAULT IN THE SECOND DEGREE.
46 A PERSON IS GUILTY OF GANG ASSAULT IN THE SECOND DEGREE WHEN, WITH
47 INTENT TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON AND WHEN AIDED BY TWO
48 OR MORE OTHER PERSONS ACTUALLY PRESENT, HE OR SHE CAUSES SERIOUS PHYS-
49 ICAL INJURY TO SUCH PERSON OR TO A THIRD PERSON.
50 GANG ASSAULT IN THE SECOND DEGREE IS A CLASS C FELONY.
51 S 495.08 GANG ASSAULT IN THE FIRST DEGREE.
52 A PERSON IS GUILTY OF GANG ASSAULT IN THE FIRST DEGREE WHEN, WITH
53 INTENT TO CAUSE SERIOUS PHYSICAL INJURY TO ANOTHER PERSON AND WHEN AIDED
54 BY TWO OR MORE OTHER PERSONS ACTUALLY PRESENT, HE OR SHE CAUSES SERIOUS
55 PHYSICAL INJURY TO SUCH PERSON OR TO A THIRD PERSON.
56 GANG ASSAULT IN THE FIRST DEGREE IS A CLASS B FELONY.
S. 1742--A 6
1 S 495.09 ABATEMENT OF PREMISES USED FOR CRIMINAL STREET GANG ACTIVITY.
2 1. A BUILDING OR PLACE USED BY MEMBERS OF A CRIMINAL STREET GANG FOR
3 THE PURPOSE OF ENGAGING IN A PATTERN OF CRIMINAL GANG ACTIVITY IS A
4 NUISANCE WHICH SHALL BE ENJOINED, ABATED, AND PREVENTED, AND FOR WHICH
5 DAMAGES MAY BE RECOVERED, IRRESPECTIVE OF WHETHER IT CONSTITUTES A
6 PUBLIC OR PRIVATE NUISANCE.
7 2. ANY ACTION FOR AN INJUNCTION OR ABATEMENT FILED PURSUANT TO SUBDI-
8 VISION ONE OF THIS SECTION SHALL PROCEED ACCORDING TO THE PROVISIONS OF
9 THE CIVIL PRACTICE LAW AND RULES, EXCEPT THAT ALL OF THE FOLLOWING SHALL
10 APPLY:
11 (A) THE COURT SHALL NOT ASSESS A CIVIL PENALTY AGAINST ANY PERSON
12 UNLESS THAT PERSON KNEW OR SHOULD HAVE KNOWN OF THE UNLAWFUL ACTS
13 COMMITTED ON OR IN THE PREMISES;
14 (B) NO ORDER OF EVICTION OR CLOSURE MAY BE ENTERED;
15 (C) ALL INJUNCTIONS ISSUED SHALL BE LIMITED TO THOSE NECESSARY TO
16 PROTECT THE HEALTH AND SAFETY OF THE RESIDENTS OR THE PUBLIC OR THOSE
17 NECESSARY TO PREVENT FURTHER CRIMINAL ACTIVITY; AND
18 (D) SUIT MAY NOT BE FILED UNTIL A THIRTY DAY NOTICE PERIOD OF THE
19 UNLAWFUL USE OR CRIMINAL CONDUCT HAS BEEN PROVIDED TO THE OWNER BY MAIL,
20 RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE LAST KNOWN ADDRESS.
21 3. NO NOT-FOR-PROFIT OR CHARITABLE ORGANIZATION WHICH IS CONDUCTING
22 ITS AFFAIRS WITH ORDINARY CARE AND SKILL, AND NO GOVERNMENTAL ENTITY,
23 SHALL BE ABATED PURSUANT TO THE PROVISIONS OF SUBDIVISIONS ONE AND TWO
24 OF THIS SECTION.
25 4. NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGGRIEVED PERSON FROM
26 SEEKING ANY OTHER REMEDY PROVIDED BY LAW.
27 5. WHEN AN INJUNCTION IS ISSUED PURSUANT TO THIS SECTION FOR THE
28 ABATEMENT OF PREMISES USED FOR CRIMINAL STREET GANG ACTIVITIES, THE
29 ATTORNEY GENERAL OR ANY DISTRICT ATTORNEY OR ANY PROSECUTING CITY ATTOR-
30 NEY MAY MAINTAIN AN ACTION FOR MONEY DAMAGES ON BEHALF OF THE COMMUNITY
31 OR NEIGHBORHOOD INJURED BY THE NUISANCE. ANY MONEY DAMAGES AWARDED SHALL
32 BE PAID BY OR COLLECTED FROM ASSETS OF THE CRIMINAL STREET GANG OR ITS
33 MEMBERS THAT WERE DERIVED FROM THE PATTERN OF CRIMINAL STREET GANG
34 ACTIVITY BEING ABATED OR ENJOINED. ONLY PERSONS WHO KNEW OR SHOULD HAVE
35 KNOWN OF THE UNLAWFUL ACTS SHALL BE PERSONALLY LIABLE FOR THE PAYMENT OF
36 THE DAMAGES AWARDED. IN A CIVIL ACTION FOR DAMAGES BROUGHT PURSUANT TO
37 THIS SUBDIVISION, THE ATTORNEY GENERAL, DISTRICT ATTORNEY, OR CITY
38 ATTORNEY MAY USE, BUT IS NOT LIMITED TO THE USE OF, THE TESTIMONY OF
39 EXPERTS TO ESTABLISH DAMAGES SUFFERED BY THE COMMUNITY OR NEIGHBORHOOD
40 INJURED BY THE NUISANCE. DAMAGES RECOVERED PURSUANT TO THIS SUBDIVISION
41 SHALL BE DEPOSITED INTO A SEPARATE SEGREGATED FUND FOR PAYMENT TO THE
42 GOVERNING BODY OF THE CITY OR COUNTY IN WHOSE POLITICAL SUBDIVISION THE
43 COMMUNITY OR NEIGHBORHOOD IS LOCATED, AND THAT GOVERNING BODY SHALL USE
44 THOSE ASSETS FOR THE BENEFIT OF THE COMMUNITY OR NEIGHBORHOOD INJURED BY
45 THE NUISANCE.
46 S 495.10 PREEMPTION.
47 NOTHING IN THIS ARTICLE SHALL PREEMPT AN APPROPRIATE ALTERNATIVE OR
48 ADDITIONAL CHARGE PURSUANT TO THIS CHAPTER.
49 S 495.11 SENTENCING.
50 1. WHEN A PERSON IS CONVICTED OF THE CRIME OF PARTICIPATION IN CRIMI-
51 NAL STREET GANG ACTIVITY PURSUANT TO THIS ARTICLE, AND THE SPECIFIED
52 OFFENSE IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF THIS
53 CHAPTER, THE CRIME OF PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY
54 SHALL BE DEEMED A VIOLENT FELONY OFFENSE.
55 2. WHEN A PERSON IS CONVICTED OF THE CRIME OF PARTICIPATION IN CRIMI-
56 NAL STREET GANG ACTIVITY PURSUANT TO THIS ARTICLE AND THE SPECIFIED
S. 1742--A 7
1 OFFENSE IS A MISDEMEANOR OR A CLASS C, D OR E FELONY, THE CRIME OF
2 PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY SHALL BE DEEMED TO BE ONE
3 CATEGORY HIGHER THAN THE SPECIFIED OFFENSE THE DEFENDANT COMMITTED, OR
4 ONE CATEGORY HIGHER THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S
5 CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE,
6 WHICHEVER IS APPLICABLE.
7 3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
8 CONVICTED OF THE CRIME OF PARTICIPATION IN CRIMINAL STREET GANG ACTIVITY
9 PURSUANT TO THIS ARTICLE AND THE SPECIFIED OFFENSE IS A CLASS B FELONY:
10 (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
11 SIX YEARS OF IMPRISONMENT IF THE DEFENDANT IS SENTENCED PURSUANT TO
12 SECTION 70.00 OF THIS CHAPTER;
13 (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
14 OF IMPRISONMENT IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02
15 OF THIS CHAPTER;
16 (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
17 OF IMPRISONMENT IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04
18 OF THIS CHAPTER;
19 (D) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
20 FOUR YEARS OF IMPRISONMENT IF THE DEFENDANT IS SENTENCED PURSUANT TO
21 SECTION 70.05 OF THIS CHAPTER; AND
22 (E) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
23 DETERMINATE SENTENCE MUST BE AT LEAST TEN YEARS OF IMPRISONMENT IF THE
24 DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
25 4. ANY OTHER PROVISION OF ANY OTHER LAW TO THE CONTRARY NOTWITHSTAND-
26 ING, WHEN A PERSON IS CONVICTED OF THE CRIME OF PARTICIPATION IN CRIMI-
27 NAL STREET GANG ACTIVITY PURSUANT TO THIS ARTICLE AND THE SPECIFIED
28 OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM PERIOD OF THE INDETERMINATE
29 SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS OF IMPRISONMENT.
30 NOTWITHSTANDING ANY OTHER LAW, THE COURT MAY STRIKE THE ADDITIONAL
31 PUNISHMENT FOR THE ENHANCEMENTS PROVIDED IN SUBDIVISIONS ONE THROUGH
32 FOUR OF THIS SECTION OR REFUSE TO IMPOSE THE MINIMUM JAIL SENTENCE FOR
33 MISDEMEANORS IN AN UNUSUAL CASE WHERE THE INTERESTS OF JUSTICE WOULD
34 BEST BE SERVED, IF THE COURT SPECIFIES ON THE RECORD AND ENTERS INTO THE
35 MINUTES THE CIRCUMSTANCES INDICATING THE MANNER IN WHICH THE INTERESTS
36 OF JUSTICE WOULD BEST BE SERVED BY SUCH DISPOSITION.
37 NOTWITHSTANDING THE FOREGOING, IN THE CASE OF A MINOR FOUND TO BE
38 GUILTY OF AN OFFENSE DESCRIBED IN THIS ARTICLE WHO IS A FIRST-TIME
39 OFFENDER, THE COURT MAY ORDER THAT A PARENT OR GUARDIAN RETAIN CUSTODY
40 OF THAT MINOR, AND MAY ORDER THE PARENT OR GUARDIAN TO ATTEND ANTI-GANG
41 VIOLENCE PARENTING CLASSES ESTABLISHED PURSUANT TO STANDARDS OF THE
42 DIVISION OF CRIMINAL JUSTICE SERVICES. THE FATHER, MOTHER, SPOUSE, OR
43 OTHER PERSON LIABLE FOR THE SUPPORT OF THE MINOR, THE ESTATE OF THAT
44 PERSON, AND THE ESTATE OF THE MINOR SHALL BE LIABLE FOR THE COST OF
45 CLASSES ORDERED PURSUANT TO THIS SECTION, UNLESS THE COURT FINDS THAT
46 THE PERSON OR ESTATE DOES NOT HAVE THE FINANCIAL ABILITY TO PAY. IN
47 EVALUATING FINANCIAL ABILITY TO PAY, THE COURT SHALL TAKE INTO CONSIDER-
48 ATION THE COMBINED HOUSEHOLD INCOME, THE NECESSARY OBLIGATIONS OF THE
49 HOUSEHOLD, THE NUMBER OF PERSONS DEPENDENT UPON THIS INCOME, AND WHETHER
50 REDUCED MONTHLY PAYMENTS WOULD OBVIATE THE NEED TO WAIVE LIABILITY FOR
51 THE FULL COSTS.
52 S 7. The opening paragraph of paragraph (h) of subdivision 2 of
53 section 1349 of the civil practice law and rules, as added by chapter
54 655 of the laws of 1990, is amended to read as follows:
55 [All] EXCEPT WITH RESPECT TO A CIRCUMSTANCE TO WHICH PARAGRAPH (I) OF
56 THIS SUBDIVISION APPLIES, ALL moneys remaining after distributions
S. 1742--A 8
1 pursuant to paragraphs (a) through (g) of this subdivision shall be
2 distributed as follows:
3 S 8. Subdivision 2 of section 1349 of the civil practice law and rules
4 is amended by adding a new paragraph (i) to read as follows:
5 (I) IF THE DEFENDANT AGAINST WHOM A FORFEITURE ACTION IS COMMENCED IS
6 CONVICTED OF AN OFFENSE LISTED IN ARTICLE FOUR HUNDRED NINETY-FIVE OF
7 THE PENAL LAW, ALL MONEYS REMAINING AFTER DISTRIBUTIONS PURSUANT TO
8 PARAGRAPHS (A) THROUGH (G) OF THIS SUBDIVISION SHALL BE DISTRIBUTED TO
9 THE CRIMINAL STREET GANG PREVENTION FUND, ESTABLISHED PURSUANT TO
10 SECTION NINETY-SEVEN-LLLL OF THE STATE FINANCE LAW.
11 S 9. The state finance law is amended by adding a new section 97-llll
12 to read as follows:
13 S 97-LLLL. CRIMINAL STREET GANG PREVENTION FUND. 1. THERE IS HEREBY
14 ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
15 COMMISSIONER OF TAXATION AND FINANCE AN ACCOUNT OF THE MISCELLANEOUS
16 SPECIAL REVENUE FUND TO BE KNOWN AS THE CRIMINAL STREET GANG PREVENTION
17 FUND.
18 2. THE COMPTROLLER IS AUTHORIZED AND DIRECTED TO RECEIVE FOR DEPOSIT
19 TO THE CREDIT OF THE CULTURAL EDUCATION ACCOUNT REVENUES DESIGNATED FOR
20 SUCH DEPOSIT BY LAW OR APPROPRIATION.
21 3. MONEYS OF THE FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
22 SHALL BE AVAILABLE TO SUPPORT THE CRIMINAL STREET GANG AND VIOLENCE
23 PREVENTION PARTNERSHIP PROGRAM ESTABLISHED PURSUANT TO SECTION TWELVE
24 HUNDRED THIRTEEN OF THE EDUCATION LAW.
25 S 10. The education law is amended by adding a new article 25 to read
26 as follows:
27 ARTICLE 25
28 GANG PREVENTION
29 SECTION 1210. GANG PREVENTION.
30 1211. MODEL GANG VIOLENCE CURRICULUM; PREVENTION ACTIVITIES.
31 1212. DRESS CODE CONCERNING GANG-RELATED APPAREL.
32 1213. CRIMINAL STREET GANG AND VIOLENCE PREVENTION PARTNERSHIP
33 PROGRAM.
34 S 1210. GANG PREVENTION. THE DEPARTMENT SHALL PREPARE AND DISTRIBUTE
35 TO SCHOOLS GUIDELINES FOR INCORPORATING IN-SERVICE TRAINING IN GANG
36 VIOLENCE FOR TEACHERS, COUNSELORS, ATHLETIC DIRECTORS, SCHOOL BOARD
37 MEMBERS, AND OTHER EDUCATIONAL PERSONNEL INTO THE STAFF DEVELOPMENT
38 PLANS, AND SHALL, UPON REQUEST, ASSIST ANY SCHOOL IN DEVELOPING COMPRE-
39 HENSIVE GANG VIOLENCE IN-SERVICE TRAINING PROGRAMS. SUCH INFORMATION AND
40 GUIDELINES, TO THE MAXIMUM EXTENT POSSIBLE, SHALL ENCOURAGE SCHOOLS TO
41 AVOID DUPLICATION OF EFFORT BY SHARING RESOURCES; ADAPTING OR ADOPTING
42 MODEL IN-SERVICE TRAINING PROGRAMS; DEVELOPING JOINT AND COLLABORATIVE
43 PROGRAMS; AND COORDINATING EFFORTS WITH EXISTING STATE AND LOCAL GANG
44 VIOLENCE STAFF DEVELOPMENT PROGRAMS, COUNTY AND CITY LAW ENFORCEMENT
45 AGENCIES, AND OTHER PUBLIC AND PRIVATE AGENCIES PROVIDING GANG VIOLENCE
46 PREVENTION, OR OTHER RELATED SERVICES AT THE LOCAL LEVEL.
47 THE DEPARTMENT SHALL ADDITIONALLY ASSIST SCHOOLS IN QUALIFYING FOR THE
48 RECEIPT OF FEDERAL AND STATE FUNDS TO SUPPORT THEIR GANG VIOLENCE AND
49 DRUG AND ALCOHOL ABUSE PREVENTION IN-SERVICE TRAINING PROGRAMS. THE
50 DEPARTMENT SHALL CONSULT WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES
51 REGARDING GANG VIOLENCE.
52 THE TERM "GANG VIOLENCE AND DRUG AND ALCOHOL ABUSE PREVENTION IN-SER-
53 VICE TRAINING" AS USED IN THIS SECTION MEANS THE PRESENTATION OF
54 PROGRAMS, INSTRUCTION, AND CURRICULA THAT WILL HELP EDUCATORS DEVELOP
55 COMPETENCIES IN INTERACTING IN A POSITIVE MANNER WITH CHILDREN AND YOUTH
56 TO ASSIST THEM IN DEVELOPING THE POSITIVE VALUES, SELF-ESTEEM, KNOW-
S. 1742--A 9
1 LEDGE, AND SKILLS TO LEAD PRODUCTIVE, GANG-FREE, AND DRUG-FREE LIVES,
2 INCLUDING THE DEVELOPMENT OF KNOWLEDGE OF THE CAUSES OF GANG VIOLENCE
3 AND SUBSTANCE ABUSE, AND TRAINING REGARDING AVAILABLE INFORMATION AND
4 RESOURCES CONCERNING GANG VIOLENCE.
5 S 1211. MODEL GANG VIOLENCE CURRICULUM; PREVENTION ACTIVITIES. 1. THE
6 DEPARTMENT, IN COLLABORATION WITH THE DIVISION OF CRIMINAL JUSTICE
7 SERVICES, SHALL DEVELOP A MODEL GANG VIOLENCE PREVENTION CURRICULUM FOR
8 USE IN SCHOOLS, AND SHALL PROVIDE FOR AN INDEPENDENT BIENNIAL EVALUATION
9 OF THE CURRICULUM AND OF PUPIL OUTCOMES.
10 2. IN DEVELOPING THE CURRICULUM, THE DEPARTMENT, IN CONJUNCTION WITH
11 THE DIVISION OF CRIMINAL JUSTICE SERVICES, SHALL ASSESS THE CURRENT
12 STATUS OF SCHOOL CRIME COMMITTED ON SCHOOL CAMPUSES AND AT SCHOOL-RELAT-
13 ED FUNCTIONS, AND IDENTIFY APPROPRIATE STRATEGIES AND PROGRAMS THAT WILL
14 PROVIDE OR MAINTAIN A HIGH LEVEL OF SCHOOL SAFETY AND ADDRESS THE
15 SCHOOL'S PROCEDURES FOR COMPLYING WITH EXISTING LAWS RELATED TO SCHOOL
16 SAFETY.
17 3. UPON REQUEST, THE DEPARTMENT SHALL ASSIST SCHOOL DISTRICTS IN
18 DEVELOPING COMPREHENSIVE GANG VIOLENCE AND DRUG AND ALCOHOL ABUSE
19 PREVENTION IN-SERVICE TRAINING PROGRAMS. SUCH GUIDELINES SHALL TO THE
20 MAXIMUM EXTENT POSSIBLE ENCOURAGE SCHOOL DISTRICTS TO SHARE RESOURCES,
21 DEVELOP JOINT AND COLLABORATIVE PROGRAMS, AND COORDINATE EFFORTS WITH
22 OTHER EXISTING STATE AND LOCAL PROGRAMS.
23 4. THE DEPARTMENT SHALL PREPARE AND DISTRIBUTE TO SCHOOL DISTRICTS
24 GUIDELINES FOR INCORPORATING IN-SERVICE TRAINING IN GANG VIOLENCE AND
25 DRUG AND ALCOHOL ABUSE PREVENTION FOR TEACHERS, COUNSELORS, ATHLETIC
26 DIRECTORS, SCHOOL BOARD MEMBERS, AND OTHER EDUCATIONAL PERSONNEL INTO
27 THE STAFF DEVELOPMENT PLANS OF ALL SCHOOL DISTRICTS AND COUNTY OFFICES
28 OF EDUCATION. SUCH TRAINING SHALL INCLUDE INSTRUCTION TO TEACHERS AND
29 ADMINISTRATORS ON THE SUBTLETIES OF IDENTIFYING CONSTANTLY CHANGING GANG
30 REGALIA AND GANG AFFILIATION.
31 S 1212. DRESS CODE CONCERNING GANG-RELATED APPAREL. ANY OTHER
32 PROVISION OF ANY OTHER LAW TO THE CONTRARY NOTWITHSTANDING, THE GOVERN-
33 ING BOARD OF ANY SCHOOL DISTRICT MAY ADOPT OR RESCIND A REASONABLE DRESS
34 CODE POLICY THAT REQUIRES PUPILS TO WEAR A SCHOOLWIDE UNIFORM OR PROHIB-
35 ITS PUPILS FROM WEARING "GANG-RELATED APPAREL" IF THE GOVERNING BOARD OF
36 THE SCHOOL DISTRICT APPROVES A PLAN THAT MAY BE INITIATED BY AN INDIVID-
37 UAL SCHOOL'S PRINCIPAL, STAFF, AND PARENTS AND DETERMINES THAT THE POLI-
38 CY IS NECESSARY FOR THE HEALTH AND SAFETY OF THE SCHOOL ENVIRONMENT.
39 INDIVIDUAL SCHOOLS MAY INCLUDE THE REASONABLE DRESS CODE POLICY. THE
40 GOVERNING BOARD SHALL PROVIDE A METHOD WHEREBY PARENTS MAY CHOOSE NOT TO
41 HAVE THEIR CHILDREN COMPLY WITH AN ADOPTED SCHOOL UNIFORM POLICY. NO
42 PUPIL SHALL BE PENALIZED ACADEMICALLY OR OTHERWISE DISCRIMINATED AGAINST
43 NOR DENIED ATTENDANCE TO SCHOOL IF THE PUPIL'S PARENTS CHOSE NOT TO HAVE
44 THE PUPIL COMPLY WITH THE SCHOOL UNIFORM POLICY. THE GOVERNING BOARD
45 SHALL CONTINUE TO HAVE RESPONSIBILITY FOR THE APPROPRIATE EDUCATION OF
46 SUCH PUPILS. THE COMMISSIONER SHALL ADOPT RULES AND REGULATIONS TO CARRY
47 OUT THE INTENT AND PURPOSES OF THIS SECTION.
48 S 1213. CRIMINAL STREET GANG AND VIOLENCE PREVENTION PARTNERSHIP
49 PROGRAM. 1. THE DEPARTMENT, IN COLLABORATION WITH THE DIVISION OF CRIM-
50 INAL JUSTICE SERVICES, SHALL EVALUATE REQUESTS FOR FUNDING FOR PROGRAMS
51 FROM THE CRIMINAL STREET GANG PREVENTION FUND, ESTABLISHED PURSUANT TO
52 SECTION NINETY-SEVEN-LLLL OF THE STATE FINANCE LAW. ALL SUCH FUNDS SHALL
53 BE DISBURSED TO NON-PROFIT AGENCIES THAT COMPLY WITH THE PROGRAM
54 REQUIREMENTS AND WHO MEET FUNDING CRITERIA.
55 2. GRANTS DISBURSED PURSUANT TO THIS SECTION MAY ENHANCE BUT SHALL NOT
56 SUPPLANT LOCAL, STATE, OR FEDERAL FUNDS THAT WOULD OTHERWISE BE AVAIL-
S. 1742--A 10
1 ABLE FOR THE PREVENTION OR INTERVENTION OF YOUTH INVOLVEMENT IN GANGS,
2 CRIME, OR VIOLENCE. GRANTS SHALL BE AWARDED PURSUANT TO A REQUEST FOR
3 PROPOSALS THAT INFORMS APPLICANTS OF THE PURPOSES AND AVAILABILITY OF
4 FUNDS TO BE AWARDED AND SOLICITS PROPOSALS TO PROVIDE SERVICES CONSIST-
5 ENT WITH THIS ARTICLE. AGENCIES RECEIVING FUNDS PURSUANT TO THIS SECTION
6 SHALL UTILIZE THE FUNDS TO PROVIDE SERVICES AND ACTIVITIES DESIGNED TO
7 PREVENT OR DETER AT-RISK YOUTH FROM PARTICIPATING IN GANGS, CRIMINAL
8 ACTIVITY, OR VIOLENT BEHAVIOR. SUCH FUNDS MAY NOT BE USED FOR SERVICES
9 OR ACTIVITIES RELATED TO SUPPRESSION, LAW ENFORCEMENT, INCARCERATION, OR
10 OTHER PURPOSES NOT RELATED TO THE PREVENTION AND DETERRENCE OF GANGS,
11 CRIME, AND VIOLENCE. NOTHING IN THIS SUBDIVISION SHALL PREVENT FUNDS
12 FROM BEING USED FOR VIOLENCE PREVENTION AND GANG CRIME DETERRENCE
13 SERVICES PROVIDED BY NONPROFIT AGENCIES TO YOUTHS INCARCERATED IN JUVE-
14 NILE DETENTION FACILITIES. SERVICES AND ACTIVITIES PROVIDED WITH FUNDS
15 UNDER THIS SECTION SHALL BE USED FOR AT-RISK YOUTH WHO ARE DEFINED AS
16 PERSONS FROM AGE FIVE TO TWENTY YEARS OF AGE AND WHO ARE CURRENT OR
17 FORMER GANG MEMBERS, OR WHO HAVE ONE OR MORE FAMILY MEMBERS LIVING AT
18 HOME WHO ARE CURRENT OR FORMER MEMBERS OF A GANG.
19 3. THE DEPARTMENT SHALL CONDUCT AN EVALUATION OF THE CRIMINAL STREET
20 GANG AND VIOLENCE PREVENTION PARTNERSHIP PROGRAM AFTER TWO YEARS OF
21 PROGRAM OPERATION AND EACH YEAR THEREAFTER, TO ASSESS THE EFFECTIVENESS
22 AND RESULTS OF THE PROGRAM. THE EVALUATION SHALL BE CONDUCTED BY STAFF
23 OR AN INDEPENDENT BODY THAT HAS EXPERIENCE IN EVALUATING PROGRAMS OPER-
24 ATED BY COMMUNITY-BASED ORGANIZATIONS OR NONPROFIT AGENCIES. AFTER TWO
25 YEARS OF PROGRAM OPERATION, AND EACH YEAR THEREAFTER, THE DEPARTMENT
26 SHALL PREPARE AND SUBMIT AN ANNUAL REPORT TO THE LEGISLATURE DESCRIBING
27 IN DETAIL THE OPERATION OF THE PROGRAM AND THE RESULTS OBTAINED.
28 S 11. Subdivision (f) of section 10.03 of the mental hygiene law, as
29 amended by chapter 405 of the laws of 2010, is amended to read as
30 follows:
31 (f) "Designated felony" means any felony offense defined by any of the
32 following provisions of the penal law: assault in the second degree as
33 defined in section 120.05, assault in the first degree as defined in
34 section 120.10, gang assault in the second degree as defined in section
35 [120.06] 495.07, gang assault in the first degree as defined in section
36 [120.07] 495.08, stalking in the first degree as defined in section
37 120.60, strangulation in the second degree as defined in section 121.12,
38 strangulation in the first degree as defined in section 121.13,
39 manslaughter in the second degree as defined in subdivision one of
40 section 125.15, manslaughter in the first degree as defined in section
41 125.20, murder in the second degree as defined in section 125.25, aggra-
42 vated murder as defined in section 125.26, murder in the first degree as
43 defined in section 125.27, kidnapping in the second degree as defined in
44 section 135.20, kidnapping in the first degree as defined in section
45 135.25, burglary in the third degree as defined in section 140.20,
46 burglary in the second degree as defined in section 140.25, burglary in
47 the first degree as defined in section 140.30, arson in the second
48 degree as defined in section 150.15, arson in the first degree as
49 defined in section 150.20, robbery in the third degree as defined in
50 section 160.05, robbery in the second degree as defined in section
51 160.10, robbery in the first degree as defined in section 160.15,
52 promoting prostitution in the second degree as defined in section
53 230.30, promoting prostitution in the first degree as defined in section
54 230.32, compelling prostitution as defined in section 230.33, dissem-
55 inating indecent material to minors in the first degree as defined in
56 section 235.22, use of a child in a sexual performance as defined in
S. 1742--A 11
1 section 263.05, promoting an obscene sexual performance by a child as
2 defined in section 263.10, promoting a sexual performance by a child as
3 defined in section 263.15, or any felony attempt or conspiracy to commit
4 any of the foregoing offenses.
5 S 12. This act shall take effect on the first of January next succeed-
6 ing the date on which it shall have become a law.