S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2920

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2013
                               ___________

Introduced  by M. of A. REILICH, KOLB, FINCH -- Multi-Sponsored by -- M.
  of A. BARCLAY, CROUCH, McDONOUGH,  OAKS,  TEDISCO  --  read  once  and
  referred to the Committee on Codes

AN  ACT  to  amend the penal law, in relation to increasing the criminal
  penalties for sexual performances  by  a  child  and  in  relation  to
  providing for consecutive sentencing upon certain multiple convictions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
amended by chapter 1 of the  laws  of  2000,  are  amended  to  read  as
follows:
  1.  "Sexual performance" means any performance or part thereof which[,
for purposes of section 263.16 of this article,] includes sexual conduct
by a child less than [sixteen] EIGHTEEN years of age [or,  for  purposes
of  section 263.05 or 263.15 of this article, includes sexual conduct by
a child less than seventeen years of age].
  2. "Obscene sexual performance"  means  any  performance  which[,  for
purposes  of section 263.11 of this article,] includes sexual conduct by
a child less than [sixteen] EIGHTEEN years of age [or, for  purposes  of
section  263.10 of this article, includes sexual conduct by a child less
than seventeen years of age,] in any material which is obscene, as  such
term is defined in section 235.00 of this chapter.
  S  2.  The penal law is amended by adding a new section 263.03 to read
as follows:
S 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF THE USE OF A CHILD IN A  SEXUAL  PERFORMANCE  IN
THE  FIRST  DEGREE  IF  KNOWING  THE  CHARACTER  AND  CONTENT THEREOF HE
EMPLOYS, AUTHORIZES OR INDUCES A CHILD LESS THAN TWELVE YEARS OF AGE  TO
ENGAGE  IN  A  SEXUAL  PERFORMANCE  OR BEING A PARENT, LEGAL GUARDIAN OR
CUSTODIAN OF SUCH CHILD, HE CONSENTS TO THE PARTICIPATION BY SUCH  CHILD
IN A SEXUAL PERFORMANCE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01408-01-3
              

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  USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
B FELONY.
  S  3.  Section 263.05 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.05 Use of a child in a sexual performance IN THE SECOND DEGREE.
  A person is guilty of the use of a child in a  sexual  performance  IN
THE  SECOND  DEGREE  if  knowing  the  character  and content thereof he
employs, authorizes or induces a child less  than  [seventeen]  EIGHTEEN
years  of age to engage in a sexual performance or being a parent, legal
guardian or custodian of such child, he consents to the participation by
such child in a sexual performance.
  Use of a child in a sexual performance IN THE SECOND DEGREE is a class
C felony.
  S 4. The penal law is amended by adding a new section 263.08  to  read
as follows:
S 263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
           DEGREE.
  A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF, HE PRODUCES, DIRECTS  OR  PROMOTES  ANY  OBSCENE  PERFORMANCE  WHICH
INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS C FELONY.
  S  5.  Section 263.10 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.10 Promoting an obscene sexual  performance  by  a  child  IN  THE
           SECOND DEGREE.
  A  person  is  guilty  of promoting an obscene sexual performance by a
child IN THE SECOND DEGREE when, knowing the character and content ther-
eof, he produces, directs or  promotes  any  obscene  performance  which
includes  sexual conduct by a child less than [seventeen] EIGHTEEN years
of age.
  Promoting an obscene sexual performance  by  a  child  IN  THE  SECOND
DEGREE is a class D felony.
  S 6. Section 263.11 of the penal law, as amended by chapter 456 of the
laws of 2012, is amended to read as follows:
S 263.11 Possessing an obscene sexual performance by a child.
  A  person  is  guilty of possessing an obscene sexual performance by a
child when, knowing the character and content thereof, he knowingly  has
in his possession or control, or knowingly accesses with intent to view,
any  obscene  performance  which includes sexual conduct by a child less
than [sixteen] EIGHTEEN years of age.
  Possessing an obscene sexual performance by a child is a class E felo-
ny.
  S 7. The penal law is amended by adding a new section 263.13  to  read
as follows:
S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE PRODUC-
ES, DIRECTS OR PROMOTES ANY PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT BY
A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING  A  SEXUAL  PERFORMANCE  BY A CHILD IN THE FIRST DEGREE IS A
CLASS C FELONY.
  S 8. Section 263.15 of the penal law, as amended by chapter 1  of  the
laws of 2000, is amended to read as follows:
S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.

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  A person is guilty of promoting a sexual performance by a child IN THE
SECOND  DEGREE  when,  knowing  the  character  and  content thereof, he
produces, directs or promotes  any  performance  which  includes  sexual
conduct by a child less than [seventeen] EIGHTEEN years of age.
  Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
class D felony.
  S 9. Section 263.16 of the penal law, as amended by chapter 456 of the
laws of 2012, is amended to read as follows:
S 263.16 Possessing a sexual performance by a child.
  A person is guilty of possessing a sexual performance by a child when,
knowing the character and content  thereof,  he  knowingly  has  in  his
possession  or  control,  or knowingly accesses with intent to view, any
performance which includes sexual conduct by a child less than [sixteen]
EIGHTEEN years of age.
  Possessing a sexual performance by a child is a class E felony.
  S 10. Subdivision 1 of section 263.20 of the penal law, as amended  by
chapter 1 of the laws of 2000, is amended to read as follows:
  1.  Under  this  article,  it shall be an affirmative defense that the
defendant in good faith reasonably believed the person appearing in  the
performance  was, for purposes of section 263.11 or 263.16 of this arti-
cle, sixteen years of age or over or, for purposes  of  section  263.05,
263.10  or  263.15 of this article, [seventeen] EIGHTEEN years of age or
over.
  S 11. The opening paragraph of subdivision  1  and  subdivision  2  of
section  70.25  of the penal law, the opening paragraph of subdivision 1
as amended by chapter 372 of the laws  of  1981  and  subdivision  2  as
amended  by chapter 56 of the laws of 1984, are amended and a new subdi-
vision 6 is added to read as follows:
  Except as provided in subdivisions two, two-a [and], five AND  SIX  of
this  section,  when multiple sentences of imprisonment are imposed on a
person at the same time, or when a person who is subject to any  undisc-
harged  term  of  imprisonment  imposed at a previous time by a court of
this state is sentenced to  an  additional  term  of  imprisonment,  the
sentence or sentences imposed by the court shall run either concurrently
or consecutively with respect to each other and the undischarged term or
terms  in  such  manner as the court directs at the time of sentence. If
the court does not specify the manner in which a sentence imposed by  it
is to run, the sentence shall run as follows:
  2.  When more than one sentence of imprisonment is imposed on a person
for two or more offenses committed through a single act or omission,  or
through  an  act  or  omission  which  in  itself constituted one of the
offenses and also was a material element of the  other,  the  sentences,
except  if  one  or more of such sentences is for a violation of section
263.03, 263.05, 263.08, 263.10, 263.13, 263.15, OR 270.20 of this  chap-
ter, must run concurrently.
  6.  WHEN  A PERSON IS CONVICTED OF USE OF A CHILD IN A SEXUAL PERFORM-
ANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03 OF THIS CHAPTER OR
USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE  AS  DEFINED
IN  SECTION  263.05  OF  THIS  CHAPTER  OR  PROMOTING  AN OBSCENE SEXUAL
PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION  263.08
OF THIS CHAPTER OR PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
THE  SECOND  DEGREE  AS  DEFINED  IN  SECTION  263.10 OF THIS CHAPTER OR
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
IN SECTION 263.13 OF THIS CHAPTER OR PROMOTING A SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15 OF THIS CHAPTER,

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AND ANY OTHER CRIME, THE SENTENCES FOR SUCH  CRIMES  SHALL  RUN  CONSEC-
UTIVELY.
  S  12.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law.