Increases the penalties for bias related and gang related graffiti, and graffiti upon religious property.
Ayes (8): Zeldin, Ball, Fuschillo, Marcellino, O'Mara, Adams, Hassell-Thompson, Squadron
Ayes W/R (1): Little
Excused (1): Huntley
Ayes (59): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Lanza, Larkin, LaValle, Libous, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Nays (1): Little
Excused (2): Huntley, Krueger
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
PURPOSE OF THE BILL: The purpose of this bill is to address the pervasive problem of graffiti by taking a multi-faceted approach while also recognizing that 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, religion, sex, or other factors, thus this legislation addresses graffiti that is made from this hateful angle. Lastly, educating offenders of the severity of the crime of graffiti and requiring them to clean up damaged property may help to curb the incidence of such activities.
SUMMARY OF SPECIFIC PROVISIONS: Section 1: 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 2: Amends Penal Law section 65.10(2) (h) to change Division of Substance Abuse Services to Office of Alcoholism and Substance Abuse.
Section 3: Amends penal Law Section 65.10 to add a new subdivision 6 which requires that, when practicable and not dangerous, the court require that the defendant convicted of such graffiti activity remove the graffiti from the property that was the underlying cause of the offense.
Section 4: Amends Penal Law Section 145.60 to make that section of law to become the lower offense of making graffiti in the second degree.
Section 5: Amends the Penal Law to add a new section 145.62 to create a new heightened crime of making graffiti in the first degree. Making graffiti in the first degree requires doing the commission of the crime of graffiti in the second plus it is done in a manner that either: a) promotes or encourages gang related activities or b) is graffiti placed on a religious building, structure, or curtilage of a place of worship or upon property consisting of religious symbols representative of expressing faith. To be convicted of this crime, the assailant would need to have knowledge that such property was religious property or was property that embodied a religious beliefs and that such person intended to damage such property. Graffiti in the first degree is a Class E Felony.
Section 6: Amends Penal Law section 240.31 which defines Aggravated harassment in the first degree to add section 1-a which includes graffiti placed on property that is motivated by a person's race, ancestry, gender, religion, religious practice, or other factors as aggravated harassment.
JUSTIFICATION: This bill recognizes that existing law does not appropriately address the growing problem of graffiti, especially that graffiti that is motivated by gang related activity or against houses of worship or religious property.
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 Houses of worship and often can contain messages of hate. Such graffiti can also be used as a tool of organized gangs to promote their illegal activities.
In this vein, these amendments take into account many facets of the issue ranging from mindless vandalism to targeted hate. First, this legislation 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.
This bill creates a class E felony to combat this problem. It also adds as Aggravated harassment in the first degree graffiti motivated by a person's characteristics such as race, national origin, gender, religion, religious practice, age, disability or other factors. This is creates a tool to help those being harassed and intimidated based upon their religious beliefs,ethnicity, sex, or other characteristics. 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 or a place of religious worship or on a display of 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.
This bill goes far to address the realities and spectrum of the issues graffiti presents. 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--B 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 -- recommitted to the Committee on Consumer Protection 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, 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 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. 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 servicesEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04419-04-2 S. 532--B 2
[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. GRAFFITI REMOVAL. 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 UNREASONABLY 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 THE PROPERTY OF ANOTHER PERSON IN THE MANNER DESCRIBED IN SECTION 145.60 OF THIS ARTICLE, BY MEANS OF MAKING GRAFFITI OF ANY TYPE: 1. IN A MANNER TO PROMOTE OR ENCOURAGE GANG RELATED ACTIVITIES; OR 2. HAVING KNOWLEDGE THAT SUCH PROPERTY IS USED AS A PLACE OF RELIGIOUS WORSHIP, HE OR SHE DAMAGES A BUILDING, STRUCTURE OR THE CURTILAGE OF SUCH BUILDING OR STRUCTURE USED AS A PLACE OF RELIGIOUS WORSHIP BY A RELIGIOUS CORPORATION, AS INCORPORATED UNDER THE RELIGIOUS CORPORATIONS LAW; ORS. 532--B 3
3. HAVING KNOWLEDGE THAT SUCH PROPERTY COMPRISES A DISPLAY OF RELI- GIOUS SYMBOLS WHICH ARE FOR A REPRESENTATIVE EXPRESSION OF FAITH, HE OR SHE DAMAGES A SCROLL, RELIGIOUS VESTMENT, VESSEL, ITEM COMPRISING A DISPLAY OF RELIGIOUS SYMBOLS WHICH ARE A REPRESENTATIVE EXPRESSION OF FAITH OR A MISCELLANEOUS ITEM OF PROPERTY KEPT OR USED IN OR UPON A BUILDING, STRUCTURE OR CURTILAGE THEREOF DESCRIBED IN SUBDIVISION TWO OF THIS SECTION. 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. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.