Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.
TITLE OF BILL: An act to amend the penal law, in relation to bias-related graffiti, the disposition of graffiti offenses, graffiti for the purpose of promoting gang related activities and graffiti upon religious property; to amend the criminal procedure law, in relation to the unsealing of youthful offender records relating to the commission of making graffiti in the first degree and aggravated harassment in the first degree; and to amend the general business law, in relation to requiring persons engaged in the retail sale of aerosol spray paint to post notice of provisions of and penalties for commission of graffiti offenses
PURPOSE OF THE BILL: To address the pervasive problem of graffiti by taking a multi-faceted approach while also recognizing that not all graffiti is the same. Graffiti that is created in relation to gangs and graffiti made on religious structures or curtilage should be treated with greater severity. Additionally, graffiti is often the tool of hateful harassment based on race, sex, or sexual orientation and thus this legislation addresses graffiti that is made from this hateful angle. Lastly, educating offenders of the severity of the crime of graffiti may help to curb it, thus, graffiti offenders are made to clean up their graffiti and, similar to other states, advisory signs are posted at the point of sale of aerosol spray paint is also implemented.
SUMMARY OF SPECIFIC PROVISIONS: Section One- Amends the penal law by adding section 60.31 which allows a judge to require completion of a diversity training program when the graffiti creator is convicted of Aggravated harassment in the first degree as defined in section 240.31 of the penal law.
Section Two- Amends section 65.10, subdivision 2, paragraph (h) of the penal law to change division of substance abuse services to office of alcoholism and substance abuse.
Section Three- Amends Section 65.10 of the penal law by adding subdivision 6 which requires that when practicable and not dangerous, that the court require the defendant convicted of graffiti remove the graffiti underlying the offense.
Section Four- Amends Section 145.60 of the penal law to make that section making graffiti in the second degree.
Section Five- Amends the penal law by adding section 145.62 to add making graffiti in the first degree. Making graffiti in the first degree requires graffiti in the second plus either in a manner to promote or encourage gang related activities or graffiti on a building, structure, or curtilage of a place of worship or upon property consisting of religious symbols representative of expressing faith. Graffiti in the first degree is a Class E Felony.
Section Six- Amends section 240.31 of the penal law which defines Aggravated harassment in the first degree to add section I-a which includes graffiti motivated by a person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation as aggravated harassment.
Section Seven- Amends section 720.35 of the criminal procedure law to include subdivision 5 which allows that youthful offenders convicted of making graffiti in the first degree or aggravated harassment in the first degree shall not have their name and crime confidential but may be made available to any person or public or private agency.
Section Eight- Amends the general business law to add section 399-j to require retail sellers of aerosol spray paint to conspicuously post notice of graffiti penalties at each location of sale. Violation of this section not to exceed two hundred and fifty dollars.
JUSTIFICATION: These amendments recognize that existing law does not appropriately address the growing problem of graffiti and that a simple prohibition of the sale of spray paint to minors is not effective enough.
Graffiti is a pervasive problem that causes damage to property, lowers property values, lowers the wellbeing of the neighborhood, may heighten the incidence of crime, and represents a serious quality of life problem for many New Yorkers. The laws in place now have not gone far enough to stem the growing trend in graffiti which has even targeted Churches and often can contain messages of hate and are often the tool of organized criminality such as gangs.
In this vein, these amendments take into account many facets of the issue ranging from mindless vandalism to targeted hate. First, by warning all potential painters of graffiti of the repercussions of their actions through signs posted at the point of sale, we may join other states in proactive deterrence. This legislation also requires that anyone caught creating graffiti is taught the lasting lesson of the difficulty of cleaning up such vandalism by allowing a judge to require, where practicable and not unduly dangerous, that as part of the punishment that the graffiti be cleaned up with the property owner's consent.
For less innocuous graffiti, this bill creates a class E felony to combat this problem. It adds as Aggravated harassment in the first degree graffiti motivated by a person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of fact. This is creates a tool to help those being harassed and intimidated based upon their ethnicity, sex, or sexual orientation. It requires that those who are found to have committed aggravated harassment, graffiti or not, that we address the underlying problem and require that in the court's discretion that the offender complete a diversity training program.
Also as a class E felony, this legislation creates the offense of graffiti in the first degree when the offender creates graffiti that either promotes or encourages gang related activities or is done on or in the curtilage of a place of religious worship or on a display or religious symbols. This recognizes that graffiti designed to
further crime or to attack religious freedoms is far more serious that than graffiti created as mindless vandalism. That the underlying sentiment is far more dangerous and should be addressed as such by both categorization as a class E felony and by exempting those offenders from the protections of a status as youthful offender and keeping those records public.
This bill goes far to address the realities and spectrum of the issues graffiti presents. It is proactive by warning potential offenders of the punishments. It teaches the hard lessons of consequences by requiring the errant vandal to clean up his or her mess. It also addresses underlying problems of hate and violence by recategorizing certain types of graffiti as class E felonies.
PRIOR LEGISLATIVE HISTORY: New Bill.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This law shall take effect on the first of November next succeeding the date on which it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 532--A 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sens. KLEIN, AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, in relation to bias-related graffiti, the disposition of graffiti offenses, graffiti for the purpose of promot- ing gang related activities and graffiti upon religious property; to amend the criminal procedure law, in relation to the unsealing of youthful offender records relating to the commission of making graffi- ti in the first degree and aggravated harassment in the first degree; and to amend the general business law, in relation to requiring persons engaged in the retail sale of aerosol spray paint to post notice of provisions of and penalties for commission of graffiti offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The penal law is amended by adding a new section 60.31 to read as follows: S 60.31 AUTHORIZED DISPOSITION; AGGRAVATED HARASSMENT IN THE FIRST DEGREE. WHEN A PERSON IS CONVICTED OF AGGRAVATED HARASSMENT IN THE FIRST DEGREE AS DEFINED IN SECTION 240.31 OF THIS CHAPTER, OR OF AN ATTEMPT TO COMMIT SUCH AN OFFENSE, OR OF A LESSER INCLUDED OFFENSE, IN ADDITION TO ANY OTHER SENTENCE IMPOSED OR AS A CONDITION OF PROBATION OR CONDITIONAL DISCHARGE THE COURT MAY ORDER SUCH PERSON TO PARTICIPATE IN, AT HIS OR HER OWN EXPENSE, A DIVERSITY TRAINING PROGRAM THAT IS DESIGNED TO OVER- COME DISCRIMINATION, PREJUDICE AND INTOLERANCE, AND THAT PROMOTES COMMU- NICATION, UNDERSTANDING AND RESPECT AMONG DIVERSE RACIAL, RELIGIOUS AND ETHNIC GROUPS.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04419-02-1 S. 532--A 2
S 2. Paragraph (h) of subdivision 2 of section 65.10 of the penal law, as amended by chapter 508 of the laws of 2001, is amended to read as follows: (h) Perform services for a public or not-for-profit corporation, asso- ciation, institution or agency, including but not limited to services for the
[division]OFFICE of ALCOHOLISM AND substance abuse services, [services in an appropriate community program for removal of graffiti from public or private property, including any property damaged in the underlying offense,]or services for the maintenance and repair of real or personal property maintained as a cemetery plot, grave, burial place or other place of interment of human remains. Provided however, that the performance of any such services shall not result in the displacement of employed workers or in the impairment of existing contracts for services, nor shall the performance of any such services be required or permitted in any establishment involved in any labor strike or lockout. The court may establish provisions for the early termination of a sentence of probation or conditional discharge pursuant to the provisions of subdivision three of section 410.90 of the criminal proce- dure law after such services have been completed. Such sentence may only be imposed upon conviction of a misdemeanor, violation, or class D or class E felony, or a youthful offender finding replacing any such conviction, where the defendant has consented to the amount and condi- tions of such service; S 3. Section 65.10 of the penal law is amended by adding a new subdi- vision 6 to read as follows: 6. WHEN IMPOSING A SENTENCE OF PROBATION OR OF CONDITIONAL DISCHARGE IN CONNECTION WITH A VIOLATION OF SECTION 145.60, 145.62 OR 145.65 OF THIS CHAPTER, THE COURT SHALL AS A CONDITION OF THE SENTENCE, REQUIRE THAT THE DEFENDANT REMOVE GRAFFITI FROM PUBLIC OR PRIVATE PROPERTY, INCLUDING ANY PROPERTY DAMAGED IN THE UNDERLYING OFFENSE, UNLESS THE COURT SHALL DETERMINE THAT AN APPROPRIATE PROGRAM TO SUPERVISE SUCH REMOVAL IS NOT AVAILABLE OR THAT SUCH GRAFFITI REMOVAL WOULD BE UNREA- SONABLY DANGEROUS; PROVIDED, HOWEVER, THAT GRAFFITI REMOVAL FROM PRIVATE PROPERTY PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT TO CONSENT OF THE OWNER OF SUCH PROPERTY. S 4. Section 145.60 of the penal law, as added by chapter 458 of the laws of 1992, is amended to read as follows: S 145.60 Making graffiti IN THE SECOND DEGREE. 1. For purposes of this section AND SECTION 145.62 OF THIS ARTICLE, the term "graffiti" shall mean the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property. 2. [No person shall make]A PERSON IS GUILTY OF MAKING GRAFFITI IN THE SECOND DEGREE WHEN HE OR SHE MAKES graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said proper- ty. Making graffiti IN THE SECOND DEGREE is a class A misdemeanor. S 5. The penal law is amended by adding a new section 145.62 to read as follows: S 145.62 MAKING GRAFFITI IN THE FIRST DEGREE. A PERSON IS GUILTY OF MAKING GRAFFITI IN THE FIRST DEGREE WHEN SUCH PERSON DAMAGES PROPERTY OF ANOTHER PERSON IN THE MANNER DESCRIBED IN SECTION 145.60 OF THIS ARTICLE AND HE OR SHE MAKES GRAFFITI OF ANY TYPE. 1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; ORS. 532--A 3
2. ON ANY BUILDING, STRUCTURE OR THE CURTILAGE OF SUCH BUILDING OR STRUCTURE USED AS A PLACE OF RELIGIOUS WORSHIP BY A RELIGIOUS CORPO- RATION, AS INCORPORATED UNDER THE RELIGIOUS CORPORATIONS LAW, OR UPON ANY PROPERTY THAT CONSISTS OF A SCROLL, RELIGIOUS VESTMENT, VESSEL, ITEM COMPRISING A DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE EXPRESSION OF FAITH OR OTHER MISCELLANEOUS ITEM OF PROPERTY KEPT OR USED IN OR UPON SUCH BUILDING OR STRUCTURE. MAKING GRAFFITI IN THE FIRST DEGREE IS A CLASS E FELONY. S 6. Section 240.31 of the penal law is amended by adding a new subdi- vision 1-a to read as follows: 1-A. ETCHES, PAINTS, COVERS, DRAWS UPON OR OTHERWISE PLACES A MARK UPON ANY BUILDING OR ANY OTHER REAL PROPERTY, PUBLIC OR PRIVATE, WITHOUT THE EXPRESS PERMISSION OF THE OWNER OR OPERATOR OF SUCH BUILDING OR REAL PROPERTY; OR S 7. Section 720.35 of the criminal procedure law is amended by adding a new subdivision 5 to read as follows: 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION, WHENEVER A PERSON IS ADJUDICATED A YOUTHFUL OFFENDER AND THE CONVICTION THAT WAS VACATED AND REPLACED BY THE YOUTHFUL OFFENDER FINDING WAS EITHER MAKING GRAFFITI IN THE FIRST DEGREE IN VIOLATION OF SECTION 145.62 OF THE PENAL LAW OR AGGRAVATED HARASSMENT IN THE FIRST DEGREE IN VIOLATION OF SECTION 240.31 OF THE PENAL LAW, THEN THE NAME OF THE YOUTHFUL OFFENDER AND THE CRIME FOR WHICH THE YOUTHFUL OFFENDER FINDING WAS SUBSTITUTED SHALL NOT BE CONFIDENTIAL AND MAY BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY. S 8. The general business law is amended by adding a new section 399-j to read as follows: S 399-J. RETAIL SALE OF AEROSOL SPRAY PAINT; NOTICE OF GRAFFITI PENAL- TIES. 1. EVERY PERSON AND ENTITY ENGAGED IN THE RETAIL SALE OF AEROSOL SPRAY PAINT SHALL, AT EACH LOCATION AT WHICH SUCH PAINT IS DISPLAYED FOR SALE, CONSPICUOUSLY POST A SIGN ADVISING CUSTOMERS OF THE PROVISIONS OF AND PENALTIES FOR MAKING GRAFFITI IN THE FIRST DEGREE AS DEFINED IN SECTION 145.60, MAKING GRAFFITI IN THE FIRST DEGREE AS DEFINED IN SECTION 145.62, POSSESSION OF GRAFFITI INSTRUMENTS AS DEFINED IN SECTION 145.65 AND AGGRAVATED HARASSMENT IN THE FIRST DEGREE AS DEFINED IN SECTION 240.31 OF THE PENAL LAW. 2. A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL PENALTY NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS. S 9. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.