Barry Kamins

This is the second part of a review of new criminal justice legislation (see “New Criminal Justice Legislation: Part 1,” N.Y.L.J. (Oct. 5, 2018). In some instances, where indicated, legislation enacted by both houses is awaiting the Governor’s signature and, of course, the reader must check to determine whether the bill is ultimately signed by the Governor.

Each year, the Legislature enacts new crimes, amends the definition of existing crimes and increases the penalties of others—and this year was no exception. For example, in an effort to toughen human trafficking laws, the Legislature enacted a new crime, Sex Trafficking of a Child, a class B felony (L. 2018, Ch. 189, eff. Nov. 14, 2018).

Although New York has enacted significant sex trafficking laws since 2007, the Legislature has now taken steps to strengthen the law relating to victims of trafficking who are under the age of 18. Under the new law, a person is guilty of sex trafficking of a child when he or she, being twenty-one years old or more, intentionally advances or profits from the prostitution of a child less than eighteen years old. Significantly, the prosecutor need no longer prove that the trafficker used force, fraud or coercion to commit the crime.

Knowledge by the defendant of the age of the child is not an element of the offense and it is not a defense that the defendant did not know the age of the child or believed such age to be greater than 18. The law also creates an affirmative defense to the new crime where such person’s participation in the offense was a result of having been a victim of sex trafficking under New York or federal law. Thus, a sex trafficking victim will not be punished if he or she has been compelled by his or her trafficker to assume a role, such as answering phone calls, relaying messages or looking after younger sex trafficking victims, that he or she would not have assumed had he or she not been a sex trafficking victim herself.

A second new crime will protect individuals who hire caregivers for one’s children. The new crime—Misrepresentation by, or on behalf of, a Caregiver for a Child or Children—will make it illegal to make a false written statement that misrepresents an applicant’s background for employment as a caregiver (L. 2018, Ch. 195, eff. Oct. 15, 2018). The legislation defines “caregiver” as someone who provides 15 or more hours of care per week. It should be noted that the new crime is an unclassified misdemeanor, providing for a term of imprisonment of up to six months in jail.

Under a new law, police officers can now be prosecuted for having sex with persons in their custody. Under the amendment, when a person is under arrest, in detention or otherwise in actual custody, that person is legally incapable of giving consent to sexual activity with a police officer (L. 2018, Ch. 55, eff. June 11, 2018).

Merchants in barber shops, hair salons and beauty shops will benefit from an amendment to the Theft of Services law. The law currently protects certain business, e.g., restaurants, cable services, companies, hotels, electric companies, etc., but a person who leaves a barbershop or beauty salon without paying cannot be prosecuted for theft of services. Under the new law, that has now changed (L. 2018, Ch. 275, effective Dec. 24, 2018).

The Legislature has also responded to the dangers of hazing rituals at college fraternities in which serous injuries and deaths have occurred. Under an amendment to the hazing statutes, physical conduct and physical activities are prohibited during a person’s initiation into these types of organizations (L. 2018, Ch. 188, eff. Aug. 15, 2018).

Finally, the crime of Coercion has been restructured. Currently, the crime is delineated as an A misdemeanor (2nd Degree) and D felony (1st Degree). Under the new legislation, the crime is delineated as an A misdemeanor (3rd Degree), E felony (2nd Degree) and D felony (1st Degree). A person is guilty of the new crime of Coercion in the Second Degree when he or she commits the crime of Coercion in the Third Degree and compels or induces a person to engage in sexual intercourse, oral sexual conduct or anal sexual conduct (L. 2018, Ch. 55, eff. Nov. 1, 2018).

A number of procedural changes were enacted in the last legislative session. In 2013, New York state implemented the Human Trafficking Intervention Court (HTIC) establishing eleven courts throughout the state—one for each of the five counties in New York City and six others around the state. Unlike drug courts, however, which were created to act as focal points for the drug caseloads for their respective counties, four of the six HTIC courts outside of New York City lack jurisdiction to hear cases that originate outside of the local criminal courts where they are physically situated.

In order to expand the jurisdiction of these courts—in Westchester, Erie, Monroe and Onondaga counties—new legislation permits the removal of prostitution cases pending in the local criminal court to another local criminal court in the same county or, with the consent of the prosecutor, to a human trafficking court in an adjourning county (L. 2018, Ch. 191, eff. Aug. 16, 2018).

Another amendment will permit town and village justices to preside over their courts outside their respective towns and villages for the limited purpose of presiding over an off-hours arraignment part established in another municipality located in the same county (L. 2018, Ch. 231, eff. Aug. 24, 2018).

New legislation will affect the recovery of funds by a prosecutor prior to the filing of an accusatory instrument in a criminal case. The new law applies only to the five District Attorneys in New York City where a “pre-criminal proceeding settlement” has been reached (L. 2018, Ch. 55, eff. April 12, 2018). After any injured parties have been appropriately compensated, the prosecutor will be able to retain a certain percentage of the funds in recognition that such monies were recovered as a result of the investigation undertaken by that office.

The new law creates a formula for the percentage of funds that can be retained by the prosecutor, beginning with 10 percent of the first 25 million dollars and up to 1 percent in excess of one hundred million dollars. Monies retained by a prosecutor pursuant to this law must be used to enhance law enforcement efforts within New York state.

Victims of crimes will benefit from several new laws. For example, victims of sexual assaults will now be provided a copy of a Victim’s Bill of Rights before the victim can be interviewed by the police or prosecution or given a physical examination (S. 8977, awaiting the Governor’s signature). These rights include the right to have a rape crisis representative present during the interview, the right to be notified by the prosecutor about the progress of the case and the right to decide whether or not to report the offense to the police.

In addition, sexual assault evidence kits must now be maintained for 20 years. Where the evidence is privileged, the custodian of the evidence cannot release the evidence to law enforcement without written consent from the victim (L. 2018, Ch. 57, eff. April 12, 2018).

Other laws expand the reporting of certain crimes. Under current law, an incident of child abuse at a public school must be reported by school employees to school administrators who must, in turn, notify the child’s parents. That requirement has now been expanded to private schools (S. 7372, awaiting the Governor’s signature). In addition, when a prosecution for a sex offense has commenced against a school employee (private or public), the prosecutor must notify the school superintendent or administrator; there is no requirement that the crime must have occurred in the school (L. 2018, Ch. 233, eff. Aug. 24, 2018).

Victims of domestic violence will benefit from a new law that expands the number of misdemeanors that, upon conviction, disqualify a defendant from possessing a firearm, rifle or shotgun (L. 2018, Ch. 60, eff. June 11, 2018). Under this amendment, the number of disqualifying offenses has increased from four to thirteen, although one offense, forcible touching (P.L. §130.52), is no longer a disqualifying offense. In addition, the statute utilizes a broader definition of “members of the same family or household” in order to disqualify a defendant from possessing a firearm after being convicted.

The statute also requires a court to ask a defendant who has been convicted of a felony or “serous offense” if he or she owns or possesses any firearms, rifles or shotguns and to order the immediate surrender of such weapons. Finally, upon issuing an Order of Protection or Temporary Order of Protection, a court is now authorized to order the surrender of firearms, rifles, or shotguns.

Battered women and children can now be reimbursed for shelter costs and crime scene cleanup costs (L. 2018, Ch. 204, eff. Feb. 18, 2019). In addition, victims of sex offenses will now be able to file a claim with the Crime Victim Board by filing official documents other than police reports; this will apply to victims of offenses under Article 130 and other specified crimes. This amendment reflects the understanding that many sex crime victims may not be emotionally ready to go to the police to report crimes of this nature (L. 2018, Ch. 295, eff. Oct. 31, 2018).

Victims of human trafficking will benefit from two other new laws. First, survivors of these crimes will be provided short-term and long-term safe house residential facilities, operated by not-for-profit agencies. A victim can be placed in these facilities even if he or she is involved in a proceeding which has not reached final disposition or is not even involved in a pending proceeding (L. 2018, Ch. 238, eff. Dec. 22, 2018). Second, hotels and motels will now be required to display informational cards, in plain view, describing services for human trafficking victims (L. 2018, Ch. 190, eff. Oct. 14, 2018).

Finally, a new law ensures that victims of crimes are reimbursed for appropriate burial expenses. The Office of Victim Services will now be permitted to make an award not exceeding $6,000 for the burial expenses of a victim who has died as a direct result of a crime. Should it be determined later that the victim contributed to the infliction of his or her injury, the award cannot be reduced by more than 50 percent (S. 7992, awaiting the Governor’s signature).

A new law will affect prisoners who have been denied parole because they have not completed a mandated program through no fault of their own. Such prisoners will be placed in the required program as soon as practicable (L. 2018, Ch. 26, eff. Dec. 18, 2018).

Other legislative changes have been enacted in miscellaneous statutes. For example, under state law a municipality may currently impose the following forms of punishment: a fine, forfeiture or a civil penalty. A new law adds community services as a permissible form of punishment (L. 2018, Ch. 216, eff. Aug. 24, 2018).

In addition, a new law allows for the use of medical marijuana as an alternative to opioids for pain management. A physician can now certify that a patient is eligible for medical marijuana if he or she suffers from “pain that degrades health and functional capability” (L. 2018, Ch. 273, eff. Sept. 24, 2018).

Finally, the City Council has enacted two local laws that will impact significantly on the criminal justice community. First, inmates within New York City correctional facilities will be able to use telephone service without any cost (Administrative Code 9-154, eff. May 4, 2019).

Second, under a new law, known as the Right to Know Act, police officers who engage in a variety of law enforcement activities, must now identify themselves by providing pre-printed business cards with specific information (name, rank, shield number) and provide an explanation for such law enforcement activity. This will not be required when an officer is making an arrest, issuing a summons, or engaging in undercover activity or activity that subjects him or her to danger or a risk of physical injury (Administrative Code 14-174, eff. Oct. 19. 2018).

​Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York ​Search and Seizure (Lexis/Nexis 2018); he is a former state Supreme Court judge.