This bill has been amended

Bill S4593A-2009

Relates to when a person is guilty of loitering; repealer

Clarifies provisions of the penal law describing when a person is guilty of loitering by removing subdivisions that have been declared unconstitutional.

Details

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Actions

  • Mar 8, 2010: SUBSTITUTED BY A5537A
  • Mar 4, 2010: ADVANCED TO THIRD READING
  • Mar 3, 2010: 2ND REPORT CAL.
  • Mar 2, 2010: 1ST REPORT CAL.188
  • Jan 6, 2010: REFERRED TO CODES
  • Jul 16, 2009: COMMITTED TO RULES
  • Jun 4, 2009: ADVANCED TO THIRD READING
  • Jun 3, 2009: 2ND REPORT CAL.
  • Jun 2, 2009: 1ST REPORT CAL.573
  • May 19, 2009: PRINT NUMBER 4593A
  • May 19, 2009: AMEND AND RECOMMIT TO CODES
  • Apr 24, 2009: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Jun 2, 2009
Ayes (11): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Volker, Flanagan
Ayes W/R (4): Saland, DeFrancisco, Bonacic, Golden
Nays (1): Lanza
VOTE: COMMITTEE VOTE: - Codes - Mar 2, 2010
Ayes (14): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Volker, DeFrancisco, Bonacic, Lanza, Flanagan
Ayes W/R (1): Saland
Nays (1): Golden

Memo

 BILL NUMBER:  S4593A

TITLE OF BILL : An act to amend the penal law, the alcoholic beverage control law, the criminal procedure law, the executive law and the general business law, in relation to loitering; and to repeal certain provisions of the penal law relating thereto

PURPOSE : This bill would repeal three subdivisions of Penal Law section 240.35 that have been held unconstitutional by different appellate courts and makes conforming changes in other statutes that refer to the deleted provisions.

SUMMARY OF PROVISIONS : This bill repeals three subdivisions of the loitering law that have been declared unconstitutional by the courts. Subdivisions one and three of Penal Law §240.35 respectively proscribe loitering for the purpose of begging and of engaging in or soliciting particular sexual acts. Subdivision seven prohibits a person who does not have a satisfactory explanation from loitering or sleeping in a transportation facility.

The bill conforms other laws to the repeal of §240.35(3). The bill deletes references to § 240.35(3) through the repeal or amendment of provisions of the criminal procedure law, the penal law, the alcoholic beverage control law, the executive law, and the general business law. These provisions require violators of § 240.35(3) to be fingerprinted, include the violation in the definition of serious offense under firearm laws, and prohibit violators from being employed by a business with a license to traffic in alcoholic beverages, from being appointed a notary, and from obtaining a license to become a private investigator, bail enforcement agent, or watch, guard, or patrol agency.

The bill amends the definition of serious offense contained in Penal Law §265.00(17) twice, in sections two and three of the bill, because there was a technical error in chapter 635 of the laws of 1999. That chapter contained two sections each adding the same two phrases to the definition, but inserting the phrases in a different order.

JUSTIFICATION : The law maintains three subdivisions that different courts have found unconstitutional. The continued presence of these provisions in the Penal Law serves no useful purpose. It also creates the risk that police officers will be confused as to the current state of the law. Repealing these subdivisions will make the law clear.

Subdivision one was held unconstitutional in 1993 by the United States Court of Appeals for the Second Circuit in Loper v. New York City Police Department, 999 F.2d 699 (1993) (affirming District Court order enjoining NYPD from enforcing the law). The court held that the statute's blanket prohibition on begging in all public places violated the First Amendment of the United States Constitution. This case does not bind New York courts, but does serve as persuasive authority.

Subdivisions three and seven were held unconstitutional in two different criminal cases by the New York Court of Appeals in the 1980's. The court held subdivision three unconstitutional in People v. Uplinoer, 58 N.Y.2d 936 (1983) because its earlier decision in People v. Onofre, 51 N.Y.2d 476, had struck down the consensual sodomy statute, which it described as the "companion statute" to the loitering statute at issue in Uplinoer. Because the purpose of subdivision three was to punish conduct anticipatory to consensual sodomy, the court held that subdivision three was also unconstitutional. In 1988, the Court of Appeals held that subdivision seven was unconstitutionally vague under the Due Process clause of the federal and state constitutions. People v, Briaht, 71 N.Y.2d 376 (1988), The court found that the subdivision failed to give fair notice that the prohibited conduct was illegal, permitted arbitrary enforcement, and required a citizen to relinquish the 7.8341-B (2008).

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect immediately.

Text

STATE OF NEW YORK ________________________________________________________________________ 4593--A 2009-2010 Regular Sessions IN SENATE April 24, 2009 ___________
Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, the alcoholic beverage control law, the criminal procedure law, the executive law and the general business law, in relation to loitering; and to repeal certain provisions of the penal law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 1, 3 and 7 of section 240.35 of the penal law are REPEALED. S 2. Paragraph (b) of subdivision 17 of section 265.00 of the penal law, as amended by section 11 of chapter 635 of the laws of 1999, is amended to read as follows: (b) any of the following offenses defined in the penal law: illegally using, carrying or possessing a pistol or other dangerous weapon; possession of burglar's tools; criminal possession of stolen property in the third degree; escape in the third degree; jostling; fraudulent accosting; [that kind of loitering defined in subdivision three of section 240.35;] endangering the welfare of a child; the offenses defined in article two hundred thirty-five; issuing abortional articles; permitting prostitution; promoting prostitution in the third degree; stalking in the fourth degree; stalking in the third degree; the offenses defined in article one hundred thirty; the offenses defined in article two hundred twenty. S 3. Paragraph (b) of subdivision 17 of section 265.00 of the penal law, as amended by section 15 of chapter 635 of the laws of 1999, is amended to read as follows: (b) any of the following offenses defined in the penal law: illegally using, carrying or possessing a pistol or other dangerous weapon;
possession of burglar's tools; criminal possession of stolen property in the third degree; escape in the third degree; jostling; fraudulent accosting; [that kind of loitering defined in subdivision three of section 240.35;] endangering the welfare of a child; the offenses defined in article two hundred thirty-five; issuing abortional articles; permitting prostitution; promoting prostitution in the third degree; stalking in the third degree; stalking in the fourth degree; the offenses defined in article one hundred thirty; the offenses defined in article two hundred twenty. S 4. Paragraph (g) of subdivision 2 of section 102 of the alcoholic beverage control law, as amended by chapter 340 of the laws of 1972, is amended to read as follows: (g) Violating subdivisions six, [eight,] ten or eleven of section seven hundred twenty-two of the former penal law as in force and effect immediately prior to September first, nineteen hundred sixty-seven, or violating sections 165.25[,] OR 165.30 [or subdivision three of section 240.35] of the penal law; S 5. Paragraphs (d) and (e) of subdivision 1 of section 160.10 of the criminal procedure law, paragraph (d) as amended and paragraph (e) as added by chapter 344 of the laws of 1976, are amended to read as follows: (d) [Loitering, as defined in subdivision three of section 240.35 of the penal law; or (e)] Loitering for the purpose of engaging in a prostitution offense as defined in subdivision two of section 240.37 of the penal law. S 6. Subdivision (g) of section 130 of the executive law, as amended by chapter 680 of the laws of 1967, is amended to read as follows: (g) violating sections two hundred seventy, two hundred seventy-a, two hundred seventy-b, two hundred seventy-c, two hundred seventy-one, two hundred seventy-five, two hundred seventy-six, five hundred fifty, five hundred fifty-one, five hundred fifty-one-a and subdivisions six, [eight,] ten or eleven of section seven hundred twenty-two of the former penal law as in force and effect immediately prior to September first, nineteen hundred sixty-seven, or violating sections 165.25, 165.30[,] OR subdivision one of section 240.30[, subdivision three of section 240.35] of the penal law, or violating sections four hundred seventy-eight, four hundred seventy-nine, four hundred eighty, four hundred eighty-one, four hundred eighty-four, four hundred eighty-nine and four hundred ninety- one of the judiciary law; or S 7. Paragraph (g) of subdivision 2 of section 74 of the general busi- ness law, as amended by chapter 680 of the laws of 1967, is amended to read as follows: (g) violating [subdivisions] SUBDIVISION six [or eight,] of section seven hundred twenty-two of the former penal law as in force and effect immediately prior to September first, nineteen hundred sixty-seven, or violating [sections] SECTION 165.25[,] OR 165.30 [or subdivision three of section 240.35] of the penal law; S 8. This act shall take effect immediately.

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