Designates public lewdness as public lewdness in the fourth degree and establishes the class A misdemeanor of public lewdness in the third degree and the class E felony of public lewdness in the second degree for committing public lewdness in the third degree after having been previously convicted of such offense within the preceding ten years; establishes the class D felony of public lewdness in the first degree for committing public lewdness in the third degree and such crime is committed at a time or place where a child under the age of 14 is likely to be present; provides for a permanent disqualification from being a school bus driver upon conviction of public lewdness in the first, second or third degree; and designates public lewdness in the first degree as a sex offense for purposes of sex offender registration.
Ayes (56): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hoylman, Kennedy, Klein, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Ranzenhofer, Ritchie, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Nays (5): Espaillat, Hassell-Thomps, Krueger, Montgomery, Perkins
Excused (2): Hannon, Sampson
TITLE OF BILL: An act to amend the penal law, in relation to public lewdness; to amend the vehicle and traffic law, in relation to designating public lewdness in the first degree as an offense which results in permanent disqualification as a bus driver; and to amend the correction law, in relation to designating public lewdness in the first degree as a sex offense for purposes of the sex offender registration
PURPOSE: To create new crimes of Public Lewdness in the first degree, second degree and third degree in order to enhance penalties for persons who repeatedly commit lewd acts, deter such behavior and provide for registration of offenders under SORA who commit such acts repeatedly or against children.
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 3 of section 65.00 of the Penal law to rename the lowest level Public Lewdness offense as Public Lewdness in the third degree.
Section 2 amends the Penal Law by renaming the current Public Lewdness section as Public Lewdness in the third degree.
Section 3 creates new Penal law section 245.03 Public Lewdness in the second degree. This provides that it shall be a class "A" misdemeanor for a person to commit the crime of Public Lewdness for the purpose in whole or part of sexual gratification.
Section 4 creates the new crime of Public Lewdness in the first degree. This provides that it shall be a class "E" felony for a person to commit the crime of Public Lewdness in the second degree who has previously been convicted of such crime within the preceding 10 years or commits the crime of Public Lewdness at a time or in place where a child less than 14 years old is likely to be present.
Section 5 adds the offenses of Public Lewdness in the first degree and Public Lewdness in the second degree to those offenses that permanently disqualify an individual from obtaining a school bus driver's license under the VTL.
Section 6 adds the offense of Public Lewdness in the first degree to the list of registerable offenses under the VTL.
Section 7 provides for an effective date of the first of November after enactment.
EXISTING LAW: Current law contains a single crime of Public Lewdness which is a class B misdemeanor with no registration requirement under SORA and no enhancement if the act is committed against a child.
JUSTIFICATION: A person is guilty of Public Lewdness when he intentionally exposes the private parts of his body in a lewd manner or commits any other lewd act in a public place, or in private under circumstances in which he may easily be seen and with intent that he
be seen. Law enforcement officials have indicated that, in their experience, many perpetrators of public lewdness have a long history of such acts and other sex crimes. In many cases, these perpetrators go on to commit even more serious sex offenses.
Public Lewdness has long been viewed as a nuisance crime. However, according to studies, these types of offenders have the highest rate of recidivism compared to any other sex offender. One study indicates that 24r of exhibitionists reoffend, and 10% graduate to contact sexual offenses, such as sexual touching or sexual assault. Recent crimes in Long Island and Albany, verify this fact.
According to Parents for Megan's Law, the Crime Victims Center in Stony Brook, NY and the Suffolk County police, the recidivism rate of public lewdness offenses as well as the linkage to contact sexual offenses is a serious public safety concern. Certain highly publicized incidents detailed below, including a crime committed in a popular children's restaurant in Long Island and a perpetrator masturbating to a passing school bus in Albany, demonstrate that individuals who have been convicted of public lewdness need more severe penalties especially if they commit the same act again and again or expose children to their obscene conduct.
On February 22, 2012, a repeat public lewdness offender was arrested in a popular children's chain restaurant for touching his exposed private area while standing next to two 12-year-old girls. Records indicate that this offender had ten prior public lewdness offense arrests, committed in public libraries, retail chain stores, a beach, and in the children's section of a well known retail book store, where he was captured on videotape masturbating. Furthermore, in Nassau and Suffolk Counties combined; the offender has five public lewdness convictions, four endangering the welfare of a child convictions and one conviction for stalking.
In another recent incident in Albany, the police responded to a call around 7:00 a.m. by a bus driver transporting children to school. The bus driver reported that a man exposed himself and masturbated to the children on the bus. The driver stated that the man continued to follow the bus on foot and when the bus stopped, he exposed himself and began to masturbate. Upon arrest, it was discovered that the perpetrator had been convicted for public lewdness several times and was also a level three Sex Offender. Certainly, the repeat intentional and predatory targeting of victims and children is worthy of registration and supervision as a sex offender.
This bill remedies a far too lenient treatment of public lewdness offenders in the law. It raises the penalty for repeat Lewdness offenses and provides a much needed felony offense for perpetrators who prey upon children. This Bill enhances public safety and the safety of our children.
LEGISLATIVE HISTORY: S. 7267 (of 2012) Passed in the Senate
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: First of November after enactment
STATE OF NEW YORK ________________________________________________________________________ 3805 2013-2014 Regular Sessions IN SENATE February 19, 2013 ___________Introduced by Sens. ZELDIN, FLANAGAN, LARKIN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to public lewdness; to amend the vehicle and traffic law, in relation to designating public lewd- ness in the first degree as an offense which results in permanent disqualification as a bus driver; and to amend the correction law, in relation to designating public lewdness in the first degree as a sex offense for purposes of the sex offender registration THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (c) of subdivision 3 of section 65.00 of the penal law, as amended by chapter 568 of the laws of 2004, is amended to read as follows: (c) For a class B misdemeanor, the period of probation shall be one year, except the period of probation shall be no less than one year and no more than three years for the class B misdemeanor of public lewdness IN THE THIRD DEGREE as defined in section 245.00 of this chapter; S 2. Section 245.00 of the penal law, as amended by chapter 748 of the laws of 1968, is amended to read as follows: S 245.00 Public lewdness IN THE THIRD DEGREE. A person is guilty of public lewdness IN THE THIRD DEGREE when he OR SHE intentionally exposes the private or intimate parts of his OR HER body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he OR SHE may readily be observed from either a public place or from other private premises, and with intent that he OR SHE be so observed. Public lewdness IN THE THIRD DEGREE is a class B misdemeanor. S 3. The penal law is amended by adding a new section 245.03 to read as follows: S 245.03 PUBLIC LEWDNESS IN THE SECOND DEGREE.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04787-03-3 S. 3805 2
A PERSON IS GUILTY OF PUBLIC LEWDNESS IN THE SECOND DEGREE WHEN HE OR SHE INTENTIONALLY EXPOSES THE PRIVATE OR INTIMATE PARTS OF HIS OR HER BODY IN A LEWD MANNER OR COMMITS ANY OTHER LEWD ACT (A) IN A PUBLIC PLACE, OR (B) IN A PRIVATE PREMISES UNDER CIRCUMSTANCES IN WHICH HE OR SHE MAY READILY BE OBSERVED FROM EITHER A PUBLIC PLACE OR FROM OTHER PRIVATE PREMISES, AND WITH THE INTENT THAT HE OR SHE BE OBSERVED WHEN THE OFFENSE IS COMMITTED FOR THE PURPOSE, IN WHOLE OR SUBSTANTIAL PART, OF HIS OR HER OWN SEXUAL GRATIFICATION. PUBLIC LEWDNESS IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR. S 4. The penal law is amended by adding a new section 245.06 to read as follows: S 245.06 PUBLIC LEWDNESS IN THE FIRST DEGREE. A PERSON IS GUILTY OF PUBLIC LEWDNESS IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF PUBLIC LEWDNESS IN THE SECOND DEGREE, AS DEFINED IN SECTION 245.03 OF THIS ARTICLE, AND HAS PREVIOUSLY BEEN CONVICTED OF SUCH CRIME WITHIN THE PRECEDING TEN YEARS OR COMMITS THE CRIME OF PUBLIC LEWDNESS IN THE SECOND DEGREE AT A TIME, PLACE OR MANNER WHERE A CHILD UNDER THE AGE OF FOURTEEN IS LIKELY TO BE PRESENT. FOR PURPOSES OF THIS SECTION, IT IS NOT NECESSARY THAT SUCH CHILD IS ACTUAL- LY PRESENT OR WITNESSES ACTS PROHIBITED UNDER THIS SECTION. PUBLIC LEWDNESS IN THE FIRST DEGREE IS A CLASS E FELONY. S 5. Paragraph (b) of subdivision 4 of section 509-cc of the vehicle and traffic law, as amended by chapter 400 of the laws of 2011, is amended to read as follows: (b) The offenses referred to in subparagraph (ii) of paragraph (a) of subdivision one and paragraph (b) of subdivision two of this section that result in permanent disqualification shall include a conviction under sections 100.13, 105.15, 105.17, 115.08, 120.12, 120.70, 125.10, 125.11, 130.40, 130.53, 130.60, 130.65-a, 135.20, 160.15, 220.18, 220.21, 220.39, 220.41, 220.43, 220.44, 230.25, 245.03, 245.06, 260.00, 265.04 of the penal law or an attempt to commit any of the aforesaid offenses under section 110.00 of the penal law, or any offenses commit- ted under a former section of the penal law which would constitute violations of the aforesaid sections of the penal law, or any offenses committed outside this state which would constitute violations of the aforesaid sections of the penal law. S 6. Subparagraph (i) of paragraph (a) of subdivision 2 of section 168-a of the correction law, as amended by chapter 405 of the laws of 2008, is amended to read as follows: (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 245.06, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seven- teen years of age, 230.05 or 230.06, or subdivision two of section 230.30, or section 230.32 or 230.33 of the penal law, or S 7. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.