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A03355 Summary:

BILL NOA03355
 
SAME ASSAME AS S01351
 
SPONSORPaulin
 
COSPNSRSeawright, Dickens, Dinowitz, Galef, Gottfried, Joyner, Pichardo, Rosenthal L, Simon, Steck, Niou, Hevesi, Quart, Cruz, Kim, Epstein, Walker, Perry, Fernandez, O'Donnell, Carroll, Reyes, Weprin, Rivera J, Richardson, Barron, Sayegh, Aubry, Hunter, Ramos, Taylor, Glick, Otis, Lupardo, Bronson, Bichotte Hermelyn, Fahy, Abinanti, Thiele, Jacobson, Lavine, De La Rosa, Pheffer Amato, Solages, Jean-Pierre, Magnarelli, Stirpe, Braunstein, Zebrowski, Cook, Pretlow, Darling, Davila, Nolan, Abbate, Vanel, Cymbrowitz, Benedetto, Burgos, Clark, Anderson, Gonzalez-Rojas, Mamdani, Gallagher, Septimo, Burdick, Kelles, Meeks, Rajkumar, Forrest, Jackson, Sillitti, Zinerman, Lunsford, Burke
 
MLTSPNSRFrontus, Mitaynes, Rodriguez, Rosenthal D
 
Rpld 240.37, amd 230.01, Pen L; amd 60.47, 160.10, 170.30, 170.80, 420.35, 720.15, 720.35, 160.55 & 160.50, CP L; amd 447-a, Soc Serv L; amd 3-118, NYC Ad Cd
 
Repeals provisions relating to loitering for the purpose of engaging in a prostitution offense; makes technical corrections relating thereto.
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A03355 Actions:

BILL NOA03355
 
01/22/2021referred to codes
01/26/2021reported
01/28/2021advanced to third reading cal.77
02/02/2021substituted by s1351
 S01351 AMEND= HOYLMAN
 01/11/2021REFERRED TO CODES
 01/25/20211ST REPORT CAL.171
 01/26/20212ND REPORT CAL.
 02/01/2021ADVANCED TO THIRD READING
 02/02/2021PASSED SENATE
 02/02/2021DELIVERED TO ASSEMBLY
 02/02/2021referred to codes
 02/02/2021substituted for a3355
 02/02/2021ordered to third reading cal.77
 02/02/2021passed assembly
 02/02/2021returned to senate
 02/02/2021DELIVERED TO GOVERNOR
 02/02/2021SIGNED CHAP.23
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A03355 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3355
 
SPONSOR: Paulin
  TITLE OF BILL: An act to repeal section 240.37 of the penal law, relating to loitering for the purpose of engaging in a prostitution offense; and to amend the penal law, the criminal procedure law, the social services law and the administrative code of the city of New York, in relation to making tech- nical corrections relating thereto   PURPOSE: This bill will repeal a section of the Penal Law that has led to arbi- trary and discriminatory enforcement by targeting women from marginal- ized groups that are at high risk for sex trafficking and other exploi- tation and abuse.   SUMMARY OF PROVISIONS: Section 1 of the bill repeals Section 240.37 of the Penal Law. Sections 2 through 13 of the bill make conforming changes to sections of the Criminal Procedure, Penal and Social Services Laws, as well as the Administrative Code of the City of New York, to reflect the repeal of Section 240.37 of the Penal Law. Section 14 of the bill amends Section 160.50 of the Criminal Procedure Law to seal prior convictions under Section 240.37 of the Penal Law. Section 15 sets the effective date.   JUSTIFICATION: New York Penal Law Section 240.37, which prohibits "loitering for the purpose of prostitution," was enacted in 1976 along with several other anti-loitering statutes at a time when street crime was rampant in order to "curtail the proliferation of prostitution" and other "maladies" in New York. The 1976 legislature defined this new crime as: (any) person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patron- izing a prostitute as those terms are defined in article two hundred thirty of the penal law, shall be guilty of a violation. The 1976 legislature justified this law by citing "harassing" conduct that "interfered with the use and enjoyment by other persons of such public place thereby causing a danger to the public health and safety." However, many repeatedly voiced concerns about the law's constitutional- ity and its potential for abuse - particularly towards women - at the time of the law's passage and afterwards. Given the extent to which the law's premises have changed over the intervening four decades, Section 240.37 is no longer relevant or necessary. Furthermore, concerns about its enforcement and utility outweigh any benefit it may yield. As many feared and predicted, Section 240.37's vagueness has led to arbitrary and discriminatory enforcement. Enforcement of Penal Law Section 240.37 targets marginalized women in the commercial sex indus- try, a group at high risk for trafficking and other exploitation and abuse. It is also duplicative and unnecessary when considered against other statutes that criminalize the behavior at issue. Arrests under Section 240.37 disproportionately impact women, partic- ularly cisgender and transgender women of color and women who have previously been arrested for prostitution offenses. Eighty-five percent of the individuals arrested under Section 240.37 between 2012-2015 were Black or Latina. In particular, women of color have often been unlaw- fully targeted by officers under this statute during "sweeps" or "oper- ations" where officers arrest large numbers of women in a given area at the same time. In a class action lawsuit brought by The Legal Aid Society challenging this statute, five of the eight named plaintiffs are transgender women of color arrested during four separate sweeps in neighborhoods where transwomen gather and socialize as a community to avoid violence, hostility and discrimination. These women are arrested simply for stand- ing outside, speaking to one another, or walking from a subway or grocery store back to their house. Officers have expressly warned transgender women that "girls like them" would be arrested if they were seen outside after midnight. One officer, when asked how he was trained to identify prostitutes, testified that he was trained to look for women with Adams apples, big hands and big feet. Although Section 240.37 has provisions that criminalize loitering for the purpose of patronizing a person for prostitution, it is simply not enforced against purchasers of commercial sex. Instead, women face repeated arrest under the statute. With increased awareness of the pervasiveness of sex trafficking and exploitation, and New York State's commitment to assist victims rather than expose them to arrest and detention, Section 240.37 represents a vestige of an approach that has been universally disavowed. Arrests under the law foster distrust of law enforcement, which hurts victims of trafficking and impedes broader efforts to investigate and punish more serious criminal activity. Expo- sure to repeated arrests, and resulting criminal records, make it diffi- cult for women to leave the commercial sex industry and seek assistance when victimized. Finally, the Section is unnecessary as it is duplicative of other penal law offenses. The conditions which are the subject of most community complaints can be addressed by several other criminal statutes that avoid the pitfalls of Section 240.37. Any legitimate application of the, statute is merely duplicative of preexisting criminal prohibitions. Criminal conduct under Penal Law Sections 140.10/140.15 (Trespass), 230.00 (Prostitution), 245.00 (Public Lewdness), and 240.20 (Disorderly Conduct) would still be subject to arrest and prosecution. The repeal of Section 240.37 will not affect public safety or the ability of the police to respond to community complaints.   LEGISLATIVE HISTORY: S.2253 of 2019-2020 (Hoylman): Died in Codes A.0654 of 2019-2020 (Paulin): Died on 3rd Reading S.8107-A of 2018 (Hoylman): Died in Codes A.9704-A of 2018 (Paulin): Died on 3rd Reading   FISCAL IMPLICATIONS: None to the state.   EFFECTIVE DATE: This act shall take effect immediately.
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A03355 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3355
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 22, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  PAULIN, SEAWRIGHT, DICKENS, DINOWITZ, GALEF,
          GOTTFRIED, JOYNER, PICHARDO, L. ROSENTHAL, SIMON, STECK, NIOU, HEVESI,
          QUART,  CRUZ,  KIM,  EPSTEIN,  WALKER,  PERRY,  FERNANDEZ,  O'DONNELL,
          CARROLL,  REYES, WEPRIN, J. RIVERA, RICHARDSON, BARRON, SAYEGH, AUBRY,
          HUNTER, RAMOS, TAYLOR, GLICK, OTIS, LUPARDO, BRONSON,  BICHOTTE HERME-
          LYN,   FAHY,   ABINANTI,   THIELE,   JACOBSON,   LAVINE,   DE LA ROSA,
          PHEFFER AMATO, SOLAGES, JEAN-PIERRE, MAGNARELLI,  STIRPE,  BRAUNSTEIN,
          ZEBROWSKI,  COOK,  PRETLOW,  DARLING,  DAVILA,  NOLAN,  ABBATE, VANEL,
          CYMBROWITZ,   McDONOUGH,   BENEDETTO,   BURGOS,    CLARK,    ANDERSON,
          GONZALEZ-ROJAS,  MAMDANI,  GALLAGHER, SEPTIMO, BURDICK, KELLES, MEEKS,
          RAJKUMAR, SOUFFRANT FORREST, JACKSON,  SILLITTI,  ZINERMAN  --  Multi-
          Sponsored by -- M. of A. FRONTUS, MITAYNES, RODRIGUEZ, D. ROSENTHAL --
          read once and referred to the Committee on Codes
 
        AN  ACT to repeal section 240.37 of the penal law, relating to loitering
          for the purpose of engaging in a prostitution offense;  and  to  amend
          the penal law, the criminal procedure law, the social services law and
          the administrative code of the city of New York, in relation to making
          technical corrections relating thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The repeal of section 240.37 of the penal law, as  effected
     2  by  section  two of this act, is hereby declared to be ameliorative, and
     3  it is the intent of the  legislature  that  no  prosecution  under  such
     4  section be commenced, continued, or refiled.
     5    § 2. Section 240.37 of the penal law is REPEALED.
     6    § 3. Section 230.01 of the penal law, as amended by chapter 189 of the
     7  laws of 2018, is amended to read as follows:
     8  § 230.01 Prostitution; affirmative defense.
     9    In  any  prosecution  under  section  230.00,  section 230.03, section
    10  230.19, section 230.20, subdivision 2 of section 230.25,  subdivision  2
    11  of  section 230.30[,] or section 230.34-a [or subdivision two of section

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01328-02-1

        A. 3355                             2

     1  240.37] of this [part] article, it is an affirmative  defense  that  the
     2  defendant's  participation  in the offense was a result of having been a
     3  victim of compelling prostitution under section 230.33 of this  article,
     4  a  victim  of  sex  trafficking  under section 230.34 of this article, a
     5  victim of sex trafficking of a child  under  section  230.34-a  of  this
     6  article  or  a  victim  of  trafficking in persons under the trafficking
     7  victims protection act (United States Code, Title 22, Chapter 78).
     8    § 4. Section 60.47 of the criminal procedure law, as added by  section
     9  2  of  part  I  of chapter 57 of the laws of 2015, is amended to read as
    10  follows:
    11  § 60.47 Possession of condoms; receipt into evidence.
    12    Evidence that a person was in possession of one or  more  condoms  may
    13  not  be  admitted at any trial, hearing, or other proceeding in a prose-
    14  cution for section 230.00 [or section 240.37] of the penal law  for  the
    15  purpose  of  establishing  probable  cause  for an arrest or proving any
    16  person's commission or attempted commission of such offense.
    17    § 5. Paragraphs (c) and (d) of subdivision 1 of section 160.10 of  the
    18  criminal  procedure  law, paragraph (c) as amended by chapter 762 of the
    19  laws of 1971 and paragraph (d) as amended by chapter 232 of the laws  of
    20  2010, are amended to read as follows:
    21    (c) A misdemeanor defined outside the penal law which would constitute
    22  a  felony  if  such  person  had a previous judgment of conviction for a
    23  crime[; or
    24    (d) Loitering for the purpose of engaging in a prostitution offense as
    25  defined in subdivision two of section 240.37 of the penal law].
    26    § 6. Subdivision 4 of section 170.30 of the criminal procedure law, as
    27  added by chapter 402 of the laws of 2014, is amended to read as follows:
    28    4. After arraignment upon an information, a simplified information,  a
    29  prosecutor's information or misdemeanor complaint on a charge of prosti-
    30  tution pursuant to section 230.00 of the penal law [or loitering for the
    31  purposes  of  prostitution pursuant to subdivision two of section 240.37
    32  of the penal law, provided that the person does not stand  charged  with
    33  loitering  for  the  purpose  of  patronizing  a  prostitute, where such
    34  offense allegedly occurred when the  person  was  sixteen  or  seventeen
    35  years  of  age,] the local criminal court may dismiss such charge in its
    36  discretion in the interest of justice on the  ground  that  a  defendant
    37  participated in services provided to him or her.
    38    §  7.  The opening paragraph of subdivision 1 of section 170.80 of the
    39  criminal procedure law, as amended by chapter 402 of the laws  of  2014,
    40  is amended to read as follows:
    41    Notwithstanding  any  other  provision of law, at any time at or after
    42  arraignment on a charge of prostitution pursuant to  section  230.00  of
    43  the penal law [or loitering for the purposes of prostitution pursuant to
    44  subdivision  two  of  section 240.37 of the penal law, provided that the
    45  person does not stand charged with loitering for the purpose of  patron-
    46  izing  a  prostitute,  where  such  offense  allegedly occurred when the
    47  person was sixteen or  seventeen  years  of  age  except  where],  after
    48  consultation  with  counsel,  a knowing and voluntary plea of guilty has
    49  been entered to such charge, any judge or justice hearing any  stage  of
    50  such  case  may,  upon  consent of the defendant after consultation with
    51  counsel:
    52    § 8. Subdivision 2 of section 420.35 of the criminal procedure law, as
    53  amended by chapter 144 of the laws  of  2020,  is  amended  to  read  as
    54  follows:
    55    2. Except as provided in this subdivision or subdivision two-a of this
    56  section,  under  no  circumstances  shall  the  mandatory surcharge, sex

        A. 3355                             3
 
     1  offender registration fee, DNA databank fee or the crime victim  assist-
     2  ance  fee  be  waived.  A court shall waive any mandatory surcharge, DNA
     3  databank fee and crime victim assistance fee when: (i) [the defendant is
     4  convicted of loitering for the purpose of engaging in prostitution under
     5  section  240.37  of  the  penal law (provided that the defendant was not
     6  convicted of loitering for the purpose of patronizing a person for pros-
     7  titution); (ii)]  the  defendant  is  convicted  of  prostitution  under
     8  section 230.00 of the penal law; [(iii)] (ii) the defendant is convicted
     9  of  a  violation in the event such conviction is in lieu of a plea to or
    10  conviction for [loitering for the purpose of  engaging  in  prostitution
    11  under  section  240.37 of the penal law (provided that the defendant was
    12  not alleged to be loitering for the purpose of patronizing a person  for
    13  prostitution)  or]  prostitution  under section 230.00 of the penal law;
    14  [or (iv)] (iii) the court finds that a defendant  is  a  victim  of  sex
    15  trafficking  under  section 230.34 of the penal law or a victim of traf-
    16  ficking in persons under the trafficking victims protection act  (United
    17  States  Code,  Title 22, Chapter 78); or [(v)] (iv) the court finds that
    18  the defendant is a victim of sex trafficking of a  child  under  section
    19  230.34-a of the penal law.
    20    § 9. Subdivision 4 of section 720.15 of the criminal procedure law, as
    21  added by chapter 402 of the laws of 2014, is amended to read as follows:
    22    4.  Notwithstanding  any  provision  in this article, a person charged
    23  with prostitution as defined in section 230.00  of  the  penal  law  [or
    24  loitering for the purposes of prostitution as defined in subdivision two
    25  of  section  240.37  of the penal law, provided that the person does not
    26  stand charged with loitering for the purpose of  patronizing  a  prosti-
    27  tute,  and  such  person  is aged sixteen or seventeen when such offense
    28  occurred,] regardless of whether such person (i) had prior to  commence-
    29  ment  of trial or entry of a plea of guilty been convicted of a crime or
    30  found a youthful offender, or (ii) subsequent  to  such  conviction  for
    31  prostitution  [or loitering for prostitution] is convicted of a crime or
    32  found a youthful offender, the provisions of subdivisions one and two of
    33  this section requiring or authorizing the  accusatory  instrument  filed
    34  against a youth to be sealed, and the arraignment and all proceedings in
    35  the action to be conducted in private shall apply.
    36    §  10.  Subdivision 1 of section 720.35 of the criminal procedure law,
    37  as amended by chapter 402 of the laws of 2014, is  amended  to  read  as
    38  follows:
    39    1.  A  youthful  offender adjudication is not a judgment of conviction
    40  for a crime or any other offense, and does not operate  as  a  disquali-
    41  fication  of  any  person  so  adjudged  to hold public office or public
    42  employment or to receive any license granted  by  public  authority  but
    43  shall be deemed a conviction only for the purposes of transfer of super-
    44  vision  and  custody pursuant to section two hundred fifty-nine-m of the
    45  executive law. A defendant for whom a youthful offender adjudication was
    46  substituted, who was originally charged with prostitution as defined  in
    47  section  230.00 of the penal law [or loitering for the purposes of pros-
    48  titution as defined in subdivision two of section 240.37  of  the  penal
    49  law  provided  that the person does not stand charged with loitering for
    50  the purpose of  patronizing  a  prostitute,  for  an  offense  allegedly
    51  committed  when  he or she was sixteen or seventeen years of age], shall
    52  be deemed a "sexually exploited child" as defined in subdivision one  of
    53  section four hundred forty-seven-a of the social services law and there-
    54  fore shall not be considered an adult for purposes related to the charg-
    55  es  in  the  youthful  offender proceeding or a proceeding under section
    56  170.80 of this chapter.

        A. 3355                             4
 
     1    § 11. Paragraphs (c) and (d) of subdivision 1 of section 447-a of  the
     2  social  services law, as amended by chapter 189 of the laws of 2018, are
     3  amended to read as follows:
     4    (c)  is a victim of the crime of compelling prostitution as defined in
     5  section 230.33 of the penal law;
     6    (d) engages in acts  or  conduct  described  in  article  two  hundred
     7  sixty-three [or section 240.37] of the penal law.
     8    §  12.  The  third  undesignated paragraph of subdivision a of section
     9  3-118 of the administrative code of the city of New York, as amended  by
    10  chapter 189 of the laws of 2018, is amended to read as follows:
    11    Sexually  exploited  youth.  The term "sexually exploited youth" means
    12  persons under the age of 18 who have been subject to sexual exploitation
    13  because they (a) are the victim of  the  crime  of  sex  trafficking  as
    14  defined  in  section  230.34  of the penal law; (b) engage in any act as
    15  defined in section 230.00 of the penal law; (c)  are  a  victim  of  the
    16  crime  of  compelling  prostitution  as defined in section 230.33 of the
    17  penal law; (d) are a victim of the crime of sex trafficking of  a  child
    18  as  defined  in section 230.34-a of the penal law; or (e) engage in acts
    19  or conduct described in article [263  or  section  240.37]  two  hundred
    20  sixty-three  of  the penal law.   The term shall also mean persons under
    21  the age of 18 who have been subject  to  incest  in  the  third  degree,
    22  second  degree  or  first degree, as defined in sections 255.25, 255.26,
    23  and 255.27 of the penal law, respectively, or any of  the  sex  offenses
    24  enumerated in article [130] one hundred thirty of the penal law.
    25    §  13. The opening paragraph of subdivision 1 and subdivisions 2 and 3
    26  of section 160.55 of the criminal procedure law, the  opening  paragraph
    27  of subdivision 1 as amended by chapter 359 of the laws of 2019, subdivi-
    28  sion  2  as amended by chapter 476 of the laws of 2009 and subdivision 3
    29  as amended by chapter 249 of the laws of 1981 and renumbered by  chapter
    30  142 of the laws of 1991, are amended to read as follows:
    31    Regardless  of  the  class  of offense for which a person is initially
    32  charged, upon the termination of a criminal action or proceeding against
    33  a person by the conviction of such person of a traffic infraction  or  a
    34  violation,  other  than  [a violation of loitering as described in para-
    35  graph (d) of subdivision one of section 160.10 of this article  or]  the
    36  violation  of  operating  a  motor  vehicle  while  ability  impaired as
    37  described in subdivision one of section eleven hundred ninety-two of the
    38  vehicle and traffic law, unless the district attorney upon  motion  with
    39  not  less  than  five days' notice to such person or his or her attorney
    40  demonstrates to the satisfaction of the  court  that  the  interests  of
    41  justice  require otherwise, or the court on its own motion with not less
    42  than five days' notice to such person or his or her attorney  determines
    43  that  the  interests of justice require otherwise and states the reasons
    44  for such determination on the record, the clerk  of  the  court  wherein
    45  such  criminal  action  or  proceeding  was terminated shall immediately
    46  notify the commissioner of the division of criminal justice services and
    47  the heads of all appropriate police departments and other  law  enforce-
    48  ment  agencies  that  the action has been terminated by such conviction.
    49  Upon receipt of notification of such termination:
    50    2. A report  of  the  termination  of  the  action  or  proceeding  by
    51  conviction of a traffic violation or a violation other than [a violation
    52  of  loitering as described in paragraph (d) or (e) of subdivision one of
    53  section 160.10 of this title or] the  violation  of  operating  a  motor
    54  vehicle  while  ability  impaired  as  described  in  subdivision one of
    55  section eleven hundred ninety-two of the vehicle and traffic law,  shall
    56  be  sufficient  notice of sealing to the commissioner of the division of

        A. 3355                             5
 
     1  criminal justice services unless the  report  also  indicates  that  the
     2  court  directed  that  the  record  not  be  sealed  in the interests of
     3  justice. Where the court has determined pursuant to subdivision  one  of
     4  this  section that sealing is not in the interests of justice, the clerk
     5  of the court shall include notification of  that  determination  in  any
     6  report  to such division of the disposition of the action or proceeding.
     7  When the defendant has been found guilty of a violation of harassment in
     8  the second degree and it was determined pursuant to subdivision  eight-a
     9  of  section  170.10  of  this  title  that  such violation was committed
    10  against a member of the same family or household as the  defendant,  the
    11  clerk  of  the court shall include notification of that determination in
    12  any report to such division of the disposition of the action or proceed-
    13  ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
    14  of subdivision one of this section.
    15    3. A person against whom a criminal action or  proceeding  was  termi-
    16  nated  by  such person's conviction of a traffic infraction or violation
    17  other than [a violation of loitering as described in  paragraph  (d)  or
    18  (e)  of  subdivision  one  of  section  160.10  of  this chapter or] the
    19  violation of  operating  a  motor  vehicle  while  ability  impaired  as
    20  described in subdivision one of section eleven hundred ninety-two of the
    21  vehicle  and  traffic  law, prior to the effective date of this section,
    22  may upon motion apply to the court in which such  termination  occurred,
    23  upon  not  less than twenty days notice to the district attorney, for an
    24  order granting to such person the relief set forth in subdivision one of
    25  this section, and such order shall be granted unless the district attor-
    26  ney demonstrates to the satisfaction of the court that the interests  of
    27  justice require otherwise.
    28    §  14. Subparagraph (iii) of paragraph (k) of subdivision 3 of section
    29  160.50 of the criminal procedure law, as amended by chapter 132  of  the
    30  laws of 2019, is amended to read as follows:
    31    (iii)  the  conviction  is for an offense defined in section 221.05 or
    32  221.10 of the penal law; or
    33    (iv) the conviction was for an offense defined in  section  240.37  of
    34  the penal law.
    35    § 15. This act shall take effect immediately.
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