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.
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.