New York State Assembly

 
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A00459 Summary:

A00459 Actions:

A00459 Committee Votes:

Committee:CODES   Chair:Lentol      
DATE:03/18/2019AYE/NAY:15/6  Action: Favorable         
Lentol
Aye
Ra
Nay
Schimminger
Aye
Giglio
Nay
Pretlow
Aye
Montesano
Nay
Cook
Aye
Morinello
Nay
Cymbrowitz
Aye
Palumbo
Nay
O'Donnell
Absent
Garbarino
Nay
Lavine
Aye
Perry
Aye
Zebrowski
Aye
Abinanti
Aye
Weprin
Aye
Mosley
Aye
Hevesi
Aye
Fahy
Aye
Seawright
Aye
Rosenthal
Aye

A00459 Floor Votes:

A00459 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A459A
 
SPONSOR: Paulin

 
TITLE OF BILL:  An act to amend the executive law and the criminal
procedure law, in relation to the definition of designated offender
 
 
PURPOSE:
 
To exempt victims of sex trafficking from the requirement to provide a
DNA sample for inclusion in the state DNA identification index.
 
 
SUMMARY OF PROVISIONS:
 
Section one amends subdivision 7 of section 995 of the Executive Law, as
amended by Chapter 19 of the Laws of 2012, to provide that the defi-
nition of designated offender shall not include (i) a person convicted
of loitering for the purpose of engaging in prostitution under subdivi-
sion two of section 240.37 of the penal law, (ii) a person convicted of
prostitution under section 230.00 of the penal law, or (iii) a person
whose participation in the offense is determined by a court to have been
a result of having been a victim of sex trafficking under section 230.34
of the penal law, sex trafficking of a child under section 230.34-a of
the penal law, or traffic king in persons under the Trafficking Victims
Protection Act (United States Code, title 22, chapter 78).
 
Section two amends subdivision two of section 420.35 of the criminal
procedure law, as amended by Chapter 426 of the Laws of 2015, to make
technical amendments as necessitated by the amendment to such section by
Chapter 368 of the Laws of 2015.
 
Section three provides the effective date.
 
 
JUSTIFICATION:
 
Pursuant to section 995-c (3)(a) of the Executive Law, a designated
offender convicted and sentenced for a crime is required to provide a
sample appropriate for DNA testing to determine identification charac-
teristics specific to such person and to be included in the state's DNA
identification index. Section 995(7) of the Executive Law defines a
designated offender to be any person convicted of a felony or any misde-
meanor defined in the penal law other than a person who, as a first time
offense, knowingly and unlawfully possesses marijuana in a public place
and the marijuana is burning or open to public view.
 
New York has been a leader in enacting laws that recognize that sexually
exploited persons should be treated as victims and not as criminals,
including most recently by passing and having signed into law the
comprehensive Trafficking Victims Protection and Justice Act (Chapter
368 of the Laws of 2015) and legislation to require courts to waive
payment by sex trafficking victims of a mandatory surcharge, crime
victim assistance fee and DNA databank fee where the victim is convicted
of a misdemeanor or a violation (Ch. 385 of the Laws of 2014 and Ch. 426
of the Laws of 2015).
 
As we have learned, a young woman may be forced to engage in prostitu-
tion by her sex trafficker. Although she faces conviction, she may not
be prepared, for a variety of reasons, to seek or receive services,
primarily because she is still under the control of her exploiter and
does not believe she can escape her situation.  Accordingly, she may
decide, for example, to plead guilty to a misdemeanor offense of loiter-
ing for the purpose of engaging in prostitution to be able to return to
the streets.
 
This legislation will exclude from the definition of a designated offen-
der a person convicted of prostitution or loitering for the purpose of
engaging in prostitution or a person whose participation in the offense
the court determines was a result of having been a sex trafficking
victim under federal or New York state trafficking law. By stating that
these victims are not designated offenders, these victims will not be
required to provide DNA samples to be included in the state DNA iden-
tification database.
 
We have been steadfast in our commitment to the principle that a person
who is commercially sexually exploited is a victim, and must not be
treated as a criminal. However, by continuing to require sex trafficking
victims to provide DNA samples following conviction, we run afoul of
that commitment and we treat these victims as criminals. These victims
have entered our criminal justice system by virtue of their enslavement
at the hands of their traffickers. The basic human rights of sex traf-
ficking victims have already been violated by their traffickers; we
should not compound the further violation of their rights by requiring a
DNA sample.
 
 
LEGISLATIVE HISTORY:
 
2018: A.1030 Passed Assembly / S.5145 Referred to Finance
2017: A.1030 Passed Assembly / S.5145 Committed to Rules
2016: A.9306 Advanced to Third Reading / S.7069 Committed to Rules
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
This act shall take effect immediately.

A00459 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         459--A
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 9, 2019
                                       ___________
 
        Introduced  by  M. of A. PAULIN, MOSLEY, M. G. MILLER, CROUCH, GOTTFRIED
          -- read once and referred to  the  Committee  on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN  ACT  to  amend  the executive law and the criminal procedure law, in
          relation to the definition of designated offender
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision  7  of  section  995 of the executive law, as
     2  amended by chapter 19 of the  laws  of  2012,  is  amended  to  read  as
     3  follows:
     4    7.  "Designated  offender"  means  a  person  convicted  of any felony
     5  defined in any chapter of the laws  of  the  state  or  any  misdemeanor
     6  defined  in the penal law except: (a) that where the person is convicted
     7  under section 221.10 of the penal law, only  a  person  convicted  under
     8  subdivision two of such section, or a person convicted under subdivision
     9  one  of  such  section  who  stands previously convicted of any crime as
    10  defined in subdivision six of section 10.00 of  the  penal  law[.];  and
    11  (b)(i)  a  person  convicted of loitering for the purpose of engaging in
    12  prostitution under subdivision two of section 240.37 of the  penal  law,
    13  (ii)  a  person  convicted  of  prostitution under section 230.00 of the
    14  penal law, or (iii) a person  whose  participation  in  the  offense  is
    15  determined  by  a court to have been a result of having been a victim of
    16  sex trafficking under section 230.34 of the penal law,  sex  trafficking
    17  of  a  child  under section 230.34-a of the penal law, or trafficking in
    18  persons under the trafficking  victims  protection  act  (United  States
    19  Code, Title 22, Chapter 78).
    20    § 2. Subdivision 2 of section 420.35 of the criminal procedure law, as
    21  amended  by  chapter  189  of  the  laws  of 2018, is amended to read as
    22  follows:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00613-02-9
        A. 459--A                           2
 
     1    2. Under no circumstances shall the mandatory surcharge, sex  offender
     2  registration fee, DNA databank fee or the crime victim assistance fee be
     3  waived  provided,  however,  that  a  court  may  waive the crime victim
     4  assistance fee if such defendant is an  eligible  youth  as  defined  in
     5  subdivision two of section 720.10 of this chapter, and the imposition of
     6  such  fee  would  work an unreasonable hardship on the defendant, his or
     7  her immediate family, or any other  person  who  is  dependent  on  such
     8  defendant  for  financial  support.  A  court  shall waive any mandatory
     9  surcharge, DNA databank fee and crime victim assistance  fee  when:  (i)
    10  the  defendant  is convicted of loitering for the purpose of engaging in
    11  prostitution under subdivision two of section 240.37 of  the  penal  law
    12  [(provided  that  the  defendant  was not convicted of loitering for the
    13  purpose of patronizing a person for prostitution)]; (ii)  the  defendant
    14  is  convicted  of  prostitution  under  section 230.00 of the penal law;
    15  (iii) the defendant is convicted  of  a  violation  in  the  event  such
    16  conviction  is  in lieu of a plea to or conviction for loitering for the
    17  purpose of engaging in prostitution under  subdivision  two  of  section
    18  240.37 of the penal law [(provided that the defendant was not alleged to
    19  be  loitering for the purpose of patronizing a person for prostitution)]
    20  or prostitution under section 230.00 of the penal  law;  [or]  (iv)  the
    21  court  finds  that  a  defendant  is  a  victim of sex trafficking under
    22  section 230.34 of the penal law or a victim of  trafficking  in  persons
    23  under  the trafficking victims protection act (United States Code, Title
    24  22, Chapter 78); or (v) the court finds that the defendant is  a  victim
    25  of sex trafficking of a child under section 230.34-a of the penal law.
    26    § 3. This act shall take effect immediately.

A00459 LFIN:

 
NO LFIN

A00459 Chamber Video/Transcript: