 |
Penal Law Definitions
Arson
Assault
Bribery
Burglary
Controlled Substances
Criminal Facilitation
Criminal Mischief
DWI or DUI
Enterprise Corruption
Firearms/Guns
Forgery
Gambling
Harassment
Hate Crimes
Homicide
Insurance Fraud
Kidnapping
Larceny
Marihuana
Money Laundering
Obscenity
Perjury
Prostitution
Robbery
Arson
* ARTICLE 150
ARSON
Section 150.00 Arson; definitions.
150.01 Arson in the fifth degree.
150.05 Arson in the fourth degree.
150.10 Arson in the third degree.
150.15 Arson in the second degree.
150.20 Arson in the first degree.
S 150.00 Arson; definitions.
As used in this article, 1. "Building", in addition to its ordinary
meaning, includes any structure, vehicle or watercraft used for
overnight lodging of persons, or used by persons for carrying on
business therein. Where a building consists of two or more units
separately secured or occupied, each unit shall not be deemed a separate
building.
2. "Motor vehicle", includes every vehicle operated or driven upon a
public highway which is propelled by any power other than muscular
power, except (a) electrically-driven invalid chairs being operated or
driven by an invalid, (b) vehicles which run only upon rails or tracks,
and (c) snowmobiles as defined in article forty-seven of the vehicle and
traffic law.
S 150.01 Arson in the fifth degree.
A person is guilty of arson in the fifth degree when he or she
intentionally damages property of another without consent of the owner
by intentionally starting a fire or causing an explosion.
Arson in the fifth degree is a class A misdemeanor.
S 150.05 Arson in the fourth degree.
1. A person is guilty of arson in the fourth degree when he recklessly
damages a building or motor vehicle by intentionally starting a fire or
causing an explosion.
2. In any prosecution under this section, it is an affirmative defense
that no person other than the defendant had a possessory or proprietary
interest in the building or motor vehicle.
Arson in the fourth degree is a class E felony.
S 150.10 Arson in the third degree.
1. A person is guilty of arson in the third degree when he
intentionally damages a building or motor vehicle by starting a fire or
causing an explosion.
2. In any prosecution under this section, it is an affirmative defense
that (a) no person other than the defendant had a possessory or
proprietary interest in the building or motor vehicle, or if other
persons had such interests, all of them consented to the defendant`s
conduct, and (b) the defendant`s sole intent was to destroy or damage
the building or motor vehicle for a lawful and proper purpose, and (c)
the defendant had no reasonable ground to believe that his conduct might
endanger the life or safety of another person or damage another building
or motor vehicle.
Arson in the third degree is a class C felony.
S 150.15 Arson in the second degree.
A person is guilty of arson in the second degree when he intentionally
damages a building or motor vehicle by starting a fire, and when (a)
another person who is not a participant in the crime is present in such
building or motor vehicle at the time, and (b) the defendant knows that
fact or the circumstances are such as to render the presence of such a
person therein a reasonable possibility.
Arson in the second degree is a class B felony.
S 150.20 Arson in the first degree.
1. A person is guilty of arson in the first degree when he
intentionally damages a building or motor vehicle by causing an
explosion or a fire and when (a) such explosion or fire is caused by an
incendiary device propelled, thrown or placed inside or near such
building or motor vehicle; or when such explosion or fire is caused by
an explosive; or when such explosion or fire either (i) causes serious
physical injury to another person other than a participant, or (ii) the
explosion or fire was caused with the expectation or receipt of
financial advantage or pecuniary profit by the actor; and when (b)
another person who is not a participant in the crime is present in such
building or motor vehicle at the time; and (c) the defendant knows that
fact or the circumstances are such as to render the presence of such
person therein a reasonable possibility.
2. As used in this section, "incendiary device" means a breakable
container designed to explode or produce uncontained combustion upon
impact, containing flammable liquid and having a wick or a similar
device capable of being ignited.
Arson in the first degree is a class A-I felony.
Back to Top
Assault
* ARTICLE 120
ASSAULT AND RELATED OFFENSES
Section 120.00 Assault in the third degree.
120.01 Reckless assault of a child by a child day care provider.
120.03 Vehicular assault in the second degree.
120.04 Vehicular assault in the first degree.
120.05 Assault in the second degree.
120.06 Gang assault in the second degree.
120.07 Gang assault in the first degree.
120.08 Assault on a peace officer, police officer, fireman or
emergency medical services professional.
120.10 Assault in the first degree.
120.11 Aggravated assault upon a police officer or a peace
officer.
120.12 Aggravated assault upon a person less than eleven years
old.
120.13 Menacing in the first degree.
120.14 Menacing in the second degree.
120.15 Menacing in the third degree.
120.16 Hazing in the first degree.
120.17 Hazing in the second degree.
120.20 Reckless endangerment in the second degree.
120.25 Reckless endangerment in the first degree.
120.30 Promoting a suicide attempt.
120.35 Promoting a suicide attempt; when punishable as attempt
to commit murder.
120.40 Definitions.
120.45 Stalking in the fourth degree.
120.50 Stalking in the third degree.
120.55 Stalking in the second degree.
120.60 Stalking in the first degree.
S 120.00 Assault in the third degree.
A person is guilty of assault in the third degree when:
1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.
Assault in the third degree is a class A misdemeanor.
S 120.01 Reckless assault of a child by a child day care provider.
A person is guilty of reckless assault of a child when, being a child
day care provider or an employee thereof, he or she recklessly causes
serious physical injury to a child under the care of such provider or
employee who is less than eleven years of age.
Reckless assault of a child by a child day care provider is a class E
felony.
S 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when:
(1) with criminal negligence he causes serious physical injury to
another person, and either
(2) causes such serious physical injury by operation of a vehicle in
violation of subdivision two, three or four of section eleven hundred
ninety-two of the vehicle and traffic law or by operation of a vessel or
public vessel in violation of paragraph (b), (c), (d) or (e) of
subdivision two of section forty-nine-a of the navigation law, or
(3) causes such serious physical injury by operation of a motor
vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives in violation of subdivision one of section eleven hundred
ninety-two of the vehicle and traffic law, and such flammable gas,
radioactive materials or explosives is the cause of such serious
physical injury, by operation of a snowmobile in violation of paragraph
(b), (c) or (d) of subdivision one of section 25.24 of the parks,
recreation and historic preservation law or by operation of an all
terrain vehicle as defined in paragraph (a) of subdivision one of
section twenty-two hundred eighty-one of the vehicle and traffic law and
in violation of subdivision two, three, or four of section eleven
hundred ninety-two of the vehicle and traffic law.
Vehicular assault in the second degree is a class E felony.
S 120.04 Vehicular assault in the first degree.
A person is guilty of vehicular assault in the first degree when he:
(1) commits the crime of vehicular assault in the second degree as
defined in section 120.03, and
(2) commits such crime while knowing or having reason to know that:
(a) his license or his privilege of operating a motor vehicle in another
state or his privilege of obtaining a license to operate a motor vehicle
in another state is suspended or revoked and such suspension or
revocation is based upon a conviction in such other state for an offense
which would, if committed in this state, constitute a violation of any
of the provisions of section eleven hundred ninety-two of the vehicle
and traffic law; or (b) his license or his privilege of operating a
motor vehicle in the state or his privilege of obtaining a license
issued by the commissioner of motor vehicles is suspended or revoked and
such suspension or revocation is based upon either a refusal to submit
to a chemical test pursuant to section eleven hundred ninety-four of the
vehicle and traffic law or following a conviction for a violation of any
of the provisions of section eleven hundred ninety-two of the vehicle
and traffic law.
Vehicular assault in the first degree is a class D felony.
S 120.05 Assault in the second degree.
A person is guilty of assault in the second degree when:
1. With intent to cause serious physical injury to another person, he
causes such injury to such person or to a third person; or
2. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person by means of a deadly
weapon or a dangerous instrument; or
3. With intent to prevent a peace officer, police officer, a fireman,
including a fireman acting as a paramedic or emergency medical
technician administering first aid in the course of performance of duty
as such fireman, an emergency medical service paramedic or emergency
medical service technician, or medical or related personnel in a
hospital emergency department, from performing a lawful duty, by means
including releasing or failing to control an animal under circumstances
evincing the actor`s intent that the animal obstruct the lawful activity
of such peace officer, police officer, fireman, paramedic or technician,
he causes physical injury to such peace officer, police officer,
fireman, paramedic, technician or medical or related personnel in a
hospital emergency department; or
4. He recklessly causes serious physical injury to another person by
means of a deadly weapon or a dangerous instrument; or
5. For a purpose other than lawful medical or therapeutic treatment,
he intentionally causes stupor, unconsciousness or other physical
impairment or injury to another person by administering to him, without
his consent, a drug, substance or preparation capable of producing the
same; or
6. In the course of and in furtherance of the commission or attempted
commission of a felony, other than a felony defined in article one
hundred thirty which requires corroboration for conviction, or of
immediate flight therefrom, he, or another participant if there be any,
causes physical injury to a person other than one of the participants;
or
7. Having been charged with or convicted of a crime and while confined
in a correctional facility, as defined in subdivision three of section
forty of the correction law, pursuant to such charge or conviction, with
intent to cause physical injury to another person, he causes such injury
to such person or to a third person; or
8. Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
causes serious physical injury to such person; or
9. Being eighteen years old or more and with intent to cause physical
injury to a person less than seven years old, the defendant causes such
injury to such person; or
10. Acting at a place the person knows, or reasonably should know, is
on school grounds and with intent to cause physical injury, he or she:
(a) causes such injury to an employee of a school or public school
district; or
(b) not being a student of such school or public school district,
causes physical injury to another, and such other person is a student of
such school who is attending or present for educational purposes. For
purposes of this subdivision the term "school grounds" shall have the
meaning set forth in subdivision fourteen of section 220.00 of this
chapter.
11. With intent to cause physical injury to a train operator, ticket
inspector, conductor, bus operator or station agent employed by any
transit agency, authority or company, public or private, whose operation
is authorized by New York state or any of its political subdivisions, he
or she causes physical injury to such train operator, ticket inspector,
conductor, bus operator or station agent while such employee is
performing an assigned duty on, or directly related to, the operation of
a train or bus.
Assault in the second degree is a class D felony.
S 120.06 Gang assault in the second degree.
A person is guilty of gang assault in the second degree when, with
intent to cause physical injury to another person and when aided by two
or more other persons actually present, he causes serious physical
injury to such person or to a third person.
Gang assault in the second degree is a class C felony.
S 120.07 Gang assault in the first degree.
A person is guilty of gang assault in the first degree when, with
intent to cause serious physical injury to another person and when aided
by two or more other persons actually present, he causes serious
physical injury to such person or to a third person.
Gang assault in the first degree is a class B felony.
S 120.08 Assault on a peace officer, police officer, fireman or
emergency medical services professional.
A person is guilty of assault on a peace officer, police officer,
fireman or emergency medical services professional when, with intent to
prevent a peace officer, police officer, a fireman, including a fireman
acting as a paramedic or emergency medical technician administering
first aid in the course of performance of duty as such fireman, or an
emergency medical service paramedic or emergency medical service
technician, from performing a lawful duty, he causes serious physical
injury to such peace officer, police officer, fireman, paramedic or
technician.
Assault on a peace officer, police officer, fireman or emergency
medical services professional is a class C felony.
S 120.10 Assault in the first degree.
A person is guilty of assault in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes such injury to such person or to a third person by means of a
deadly weapon or a dangerous instrument; or
2. With intent to disfigure another person seriously and permanently,
or to destroy, amputate or disable permanently a member or organ of his
body, he causes such injury to such person or to a third person; or
3. Under circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes serious physical injury to another
person; or
4. In the course of and in furtherance of the commission or attempted
commission of a felony or of immediate flight therefrom, he, or another
participant if there be any, causes serious physical injury to a person
other than one of the participants.
Assault in the first degree is a class B felony.
S 120.11 Aggravated assault upon a police officer or a peace officer.
A person is guilty of aggravated assault upon a police officer or a
peace officer when, with intent to cause serious physical injury to a
person whom he knows or reasonably should know to be a police officer or
a peace officer engaged in the course of performing his official duties,
he causes such injury by means of a deadly weapon or dangerous
instrument.
Aggravated assault upon a police officer or a peace officer is a class
B felony.
S 120.12 Aggravated assault upon a person less than eleven years old.
A person is guilty of aggravated assault upon a person less than
eleven years old when being eighteen years old or more the defendant
commits the crime of assault in the third degree as defined in section
120.00 of this article upon a person less than eleven years old and has
been previously convicted of such crime upon a person less than eleven
years old within the preceding three years.
Aggravated assault upon a person less than eleven years old is a class
E felony.
S 120.13 Menacing in the first degree.
A person is guilty of menacing in the first degree when he or she
commits the crime of menacing in the second degree and has been
previously convicted of the crime of menacing in the second degree
within the preceding ten years.
Menacing in the first degree is a class E felony.
S 120.14 Menacing in the second degree.
A person is guilty of menacing in the second degree when:
1. He or she intentionally places or attempts to place another person
in reasonable fear of physical injury, serious physical injury or death
by displaying a deadly weapon, dangerous instrument or what appears to
be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
2. He or she repeatedly follows a person or engages in a course of
conduct or repeatedly commits acts over a period of time intentionally
placing or attempting to place another person in reasonable fear of
physical injury, serious physical injury or death; or
3. He or she commits the crime of menacing in the third degree in
violation of that part of a duly served order of protection, or such
order which the defendant has actual knowledge of because he or she was
present in court when such order was issued, pursuant to article eight
of the family court act, section 530.12 of the criminal procedure law,
or an order of protection issued by a court of competent jurisdiction in
another state, territorial or tribal jurisdiction, which directed the
respondent or defendant to stay away from the person or persons on whose
behalf the order was issued.
Menacing in the second degree is a class A misdemeanor.
S 120.15 Menacing in the third degree.
A person is guilty of menacing in the third degree when, by physical
menace, he or she intentionally places or attempts to place another
person in fear of death, imminent serious physical injury or physical
injury.
Menacing in the third degree is a class B misdemeanor.
S 120.16 Hazing in the first degree.
A person is guilty of hazing in the first degree when, in the course
of another person`s initiation into or affiliation with any
organization, he intentionally or recklessly engages in conduct which
creates a substantial risk of physical injury to such other person or a
third person and thereby causes such injury.
Hazing in the first degree is a class A misdemeanor.
S 120.17 Hazing in the second degree.
A person is guilty of hazing in the second degree when, in the course
of another person`s initiation or affiliation with any organization, he
intentionally or recklessly engages in conduct which creates a
substantial risk of physical injury to such other person or a third
person.
Hazing in the second degree is a violation.
S 120.20 Reckless endangerment in the second degree.
A person is guilty of reckless endangerment in the second degree when
he recklessly engages in conduct which creates a substantial risk of
serious physical injury to another person.
Reckless endangerment in the second degree is a class A misdemeanor.
S 120.25 Reckless endangerment in the first degree.
A person is guilty of reckless endangerment in the first degree when,
under circumstances evincing a depraved indifference to human life, he
recklessly engages in conduct which creates a grave risk of death to
another person.
Reckless endangerment in the first degree is a class D felony.
S 120.30 Promoting a suicide attempt.
A person is guilty of promoting a suicide attempt when he
intentionally causes or aids another person to attempt suicide.
Promoting a suicide attempt is a class E felony.
S 120.35 Promoting a suicide attempt; when punishable as attempt to
commit murder.
A person who engages in conduct constituting both the offense of
promoting a suicide attempt and the offense of attempt to commit murder
may not be convicted of attempt to commit murder unless he causes or
aids the suicide attempt by the use of duress or deception.
S 120.40 Definitions.
For purposes of sections 120.45, 120.50, 120.55 and 120.60 of this
article:
1. "Kidnapping" shall mean a kidnapping crime defined in article one
hundred thirty-five of this chapter.
2. "Unlawful imprisonment" shall mean an unlawful imprisonment felony
crime defined in article one hundred thirty-five of this chapter.
3. "Sex offense" shall mean a felony defined in article one hundred
thirty of this chapter, sexual misconduct, as defined in section 130.20
of this chapter, sexual abuse in the third degree as defined in section
130.55 of this chapter or sexual abuse in the second degree as defined
in section 130.60 of this chapter.
4. "Immediate family" means the spouse, former spouse, parent, child,
sibling, or any other person who regularly resides or has regularly
resided in the household of a person.
5. "Specified predicate crime" means:
a. a violent felony offense;
b. a crime defined in section 130.20, 130.25, 130.30, 130.40, 130.45,
130.55, 130.60, 130.70 or 255.25;
c. assault in the third degree, as defined in section 120.00; menacing
in the first degree, as defined in section 120.13; menacing in the
second degree, as defined in section 120.14; coercion in the first
degree, as defined in section 135.65; coercion in the second degree, as
defined in section 135.60; aggravated harassment in the second degree,
as defined in section 240.30; harassment in the first degree, as defined
in section 240.25; menacing in the third degree, as defined in section
120.15; criminal mischief in the third degree, as defined in section
145.05; criminal mischief in the second degree, as defined in section
145.10, criminal mischief in the first degree, as defined in section
145.12; criminal tampering in the first degree, as defined in section
145.20; arson in the fourth degree, as defined in section 150.05; arson
in the third degree, as defined in section 150.10; criminal contempt in
the first degree, as defined in section 215.51; endangering the welfare
of a child, as defined in section 260.10; or
d. stalking in the fourth degree, as defined in section 120.45;
stalking in the third degree, as defined in section 120.50; stalking in
the second degree, as defined in section 120.55; or
e. an offense in any other jurisdiction which includes all of the
essential elements of any such crime for which a sentence to a term of
imprisonment in excess of one year or a sentence of death was authorized
and is authorized in this state irrespective of whether such sentence
was imposed.
S 120.45 Stalking in the fourth degree.
A person is guilty of stalking in the fourth degree when he or she
intentionally, and for no legitimate purpose, engages in a course of
conduct directed at a specific person, and knows or reasonably should
know that such conduct:
1. is likely to cause reasonable fear of material harm to the physical
health, safety or property of such person, a member of such person`s
immediate family or a third party with whom such person is acquainted;
or
2. causes material harm to the mental or emotional health of such
person, where such conduct consists of following, telephoning or
initiating communication or contact with such person, a member of such
person`s immediate family or a third party with whom such person is
acquainted, and the actor was previously clearly informed to cease that
conduct; or
3. is likely to cause such person to reasonably fear that his or her
employment, business or career is threatened, where such conduct
consists of appearing, telephoning or initiating communication or
contact at such person`s place of employment or business, and the actor
was previously clearly informed to cease that conduct.
Stalking in the fourth degree is a class B misdemeanor.
S 120.50 Stalking in the third degree.
A person is guilty of stalking in the third degree when he or she:
1. Commits the crime of stalking in the fourth degree in violation of
section 120.45 of this article against three or more persons, in three
or more separate transactions, for which the actor has not been
previously convicted; or
2. Commits the crime of stalking in the fourth degree in violation of
section 120.45 of this article against any person, and has previously
been convicted, within the preceding ten years of a specified predicate
crime, as defined in subdivision five of section 120.40 of this article,
and the victim of such specified predicate crime is the victim, or an
immediate family member of the victim, of the present offense; or
3. With intent to harass, annoy or alarm a specific person,
intentionally engages in a course of conduct directed at such person
which is likely to cause such person to reasonably fear physical injury
or serious physical injury, the commission of a sex offense against, or
the kidnapping, unlawful imprisonment or death of such person or a
member of such person`s immediate family; or
4. Commits the crime of stalking in the fourth degree and has
previously been convicted within the preceding ten years of stalking in
the fourth degree.
Stalking in the third degree is a class A misdemeanor.
S 120.55 Stalking in the second degree.
A person is guilty of stalking in the second degree when he or she:
1. Commits the crime of stalking in the third degree as defined in
subdivision three of section 120.50 of this article and in the course of
and in furtherance of the commission of such offense: (i) displays, or
possesses and threatens the use of, a firearm, pistol, revolver, rifle,
shotgun, machine gun, electronic dart gun, electronic stun gun, cane
sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand
bag, sandclub, slingshot, slungshot, shirken, "Kung Fu Star", dagger,
dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous
instrument, deadly instrument or deadly weapon; or (ii) displays what
appears to be a pistol, revolver, rifle, shotgun, machine gun or other
firearm; or
2. Commits the crime of stalking in the third degree in violation of
subdivision three of section 120.50 of this article against any person,
and has previously been convicted, within the preceding five years, of a
specified predicate crime as defined in subdivision five of section
120.40 of this article, and the victim of such specified predicate crime
is the victim, or an immediate family member of the victim, of the
present offense; or
3. Commits the crime of stalking in the fourth degree and has
previously been convicted of stalking in the third degree as defined in
subdivision four of section 120.50 of this article against any person;
or
4. Being twenty-one years of age or older, repeatedly follows a person
under the age of fourteen or engages in a course of conduct or
repeatedly commits acts over a period of time intentionally placing or
attempting to place such person who is under the age of fourteen in
reasonable fear of physical injury, serious physical injury or death; or
5. Commits the crime of stalking in the third degree, as defined in
subdivision three of section 120.50 of this article, against ten or more
persons, in ten or more separate transactions, for which the actor has
not been previously convicted.
Stalking in the second degree is a class E felony.
S 120.60 Stalking in the first degree.
A person is guilty of stalking in the first degree when he or she
commits the crime of stalking in the third degree as defined in
subdivision three of section 120.50 or stalking in the second degree as
defined in section 120.55 of this article and, in the course and
furtherance thereof, he or she:
1. intentionally or recklessly causes physical injury to the victim of
such crime; or
2. commits a class A misdemeanor defined in article one hundred thirty
of this chapter, or a class E felony defined in section 130.25, 130.40
or 130.85 of this chapter, or a class D felony defined in section 130.30
or 130.45 of this chapter.
Stalking in the first degree is a class D felony.
Back to Top
Bribery
* ARTICLE 180
BRIBERY NOT INVOLVING PUBLIC SERVANTS, AND RELATED OFFENSES
Section 180.00 Commercial bribing in the second degree.
180.03 Commercial bribing in the first degree.
180.05 Commercial bribe receiving in the second degree.
180.08 Commercial bribe receiving in the first degree.
180.10 Bribery of labor official; definition of term.
180.15 Bribing a labor official.
180.20 Bribing a labor official; defense.
180.25 Bribe receiving by a labor official.
180.30 Bribe receiving by a labor official; no defense.
180.35 Sports bribery and tampering; definitions of terms.
180.40 Sports bribing.
180.45 Sports bribe receiving.
180.50 Tampering with a sports contest in the second degree.
180.51 Tampering with a sports contest in the first degree.
180.52 Impairing the integrity of a pari-mutuel betting system
in the second degree.
180.53 Impairing the integrity of a pari-mutuel betting system
in the first degree.
180.54 Rent gouging; definition of term.
180.55 Rent gouging in the third degree.
180.56 Rent gouging in the second degree.
180.57 Rent gouging in the first degree.
S 180.00 Commercial bribing in the second degree.
A person is guilty of commercial bribing in the second degree when he
confers, or offers or agrees to confer, any benefit upon any employee,
agent or fiduciary without the consent of the latter`s employer or
principal, with intent to influence his conduct in relation to his
employer`s or principal`s affairs.
Commercial bribing in the second degree is a class A misdemeanor.
S 180.03 Commercial bribing in the first degree.
A person is guilty of commercial bribing in the first degree when he
confers, or offers or agrees to confer, any benefit upon any employee,
agent or fiduciary without the consent of the latter`s employer or
principal, with intent to influence his conduct in relation to his
employer`s or principal`s affairs, and when the value of the benefit
conferred or offered or agreed to be conferred exceeds one thousand
dollars and causes economic harm to the employer or principal in an
amount exceeding two hundred fifty dollars.
Commercial bribing in the first degree is a class E felony.
S 180.05 Commercial bribe receiving in the second degree.
An employee, agent or fiduciary is guilty of commercial bribe
receiving in the second degree when, without the consent of his employer
or principal, he solicits, accepts or agrees to accept any benefit from
another person upon an agreement or understanding that such benefit will
influence his conduct in relation to his employer`s or principal`s
affairs.
Commercial bribe receiving in the second degree is a class A
misdemeanor.
S 180.08 Commercial bribe receiving in the first degree.
An employee, agent or fiduciary is guilty of commercial bribe
receiving in the first degree when, without the consent of his employer
or principal, he solicits, accepts or agrees to accept any benefit from
another person upon an agreement or understanding that such benefit will
influence his conduct in relation to his employer`s or principal`s
affairs, and when the value of the benefit solicited, accepted or agreed
to be accepted exceeds one thousand dollars and causes economic harm to
the employer or principal in an amount exceeding two hundred fifty
dollars.
Commercial bribe receiving in the first degree is a class E felony.
S 180.10 Bribery of labor official; definition of term.
As used in this article, "labor official" means any duly appointed
representative of a labor organization or any duly appointed trustee or
representative of an employee welfare trust fund.
S 180.15 Bribing a labor official.
A person is guilty of bribing a labor official when, with intent to
influence a labor official in respect to any of his acts, decisions or
duties as such labor official, he confers, or offers or agrees to
confer, any benefit upon him.
Bribing a labor official is a class D felony.
S 180.20 Bribing a labor official; defense.
In any prosecution for bribing a labor official, it is a defense that
the defendant conferred or agreed to confer the benefit involved upon
the labor official as a result of conduct of the latter constituting
larceny committed by means of extortion, or an attempt to commit the
same, or coercion, or an attempt to commit coercion.
S 180.25 Bribe receiving by a labor official.
A labor official is guilty of bribe receiving by a labor official when
he solicits, accepts or agrees to accept any benefit from another person
upon an agreement or understanding that such benefit will influence him
in respect to any of his acts, decisions, or duties as such labor
official.
Bribe receiving by a labor official is a class D felony.
S 180.30 Bribe receiving by a labor official; no defense.
The crimes of (a) bribe receiving by a labor official, and (b) larceny
committed by means of extortion, attempt to commit the same, coercion or
attempt to commit coercion, are not mutually exclusive, and it is no
defense to a prosecution for bribe receiving by a labor official that,
by reason of the same conduct, the defendant also committed one of such
other specified crimes.
S 180.35 Sports bribery and tampering; definitions of terms.
As used in this article:
1. "Sports contest" means any professional or amateur sport or
athletic game or contest viewed by the public.
2. "Sports participant" means any person who participates or expects
to participate in a sports contest as a player, contestant or member of
a team, or as a coach, manager, trainer or other person directly
associated with a player, contestant or team.
3. "Sports official" means any person who acts or expects to act in a
sports contest as an umpire, referee, judge or otherwise to officiate at
a sports contest.
4. "Pari-mutuel betting" is such betting as is authorized under the
provisions of the pari-mutuel revenue law as set forth in chapter 254 of
the laws of 1940 with amendments.
5. "Pari-mutuel horse race" means any horse race upon which betting is
conducted under the provisions of the pari-mutuel revenue law as set
forth in chapter 254 of the laws of 1940.
S 180.40 Sports bribing.
A person is guilty of sports bribing when he:
1. Confers, or offers or agrees to confer, any benefit upon a sports
participant with intent to influence him not to give his best efforts in
a sports contest; or
2. Confers, or offers or agrees to confer, any benefit upon a sports
official with intent to influence him to perform his duties improperly.
Sports bribing is a class D felony.
S 180.45 Sports bribe receiving.
A person is guilty of sports bribe receiving when:
1. Being a sports participant, he solicits, accepts or agrees to
accept any benefit from another person upon an agreement or
understanding that he will thereby be influenced not to give his best
efforts in a sports contest; or
2. Being a sports official, he solicits, accepts or agrees to accept
any benefit from another person upon an agreement or understanding that
he will perform his duties improperly.
Sports bribe receiving is a class E felony.
S 180.50 Tampering with a sports contest in the second degree.
A person is guilty of tampering with a sports contest when, with
intent to influence the outcome of a sports contest, he tampers with any
sports participant, sports official or with any animal or equipment or
other thing involved in the conduct or operation of a sports contest in
a manner contrary to the rules and usages purporting to govern such a
contest.
Tampering with a sports contest in the second degree is a class A
misdemeanor.
S 180.51 Tampering with a sports contest in the first degree.
A person is guilty of tampering with a sports contest in the first
degree when, with intent to influence the outcome of a pari-mutuel horse
race:
1. He affects any equine animal involved in the conduct or operation
of a pari-mutuel horse race by administering to the animal in any manner
whatsoever any controlled substance listed in section thirty-three
hundred six of the public health law; or
2. He knowingly enters or furnishes to another person for entry or
brings into this state for entry into a pari-mutuel horse race, or rides
or drives in any pari-mutuel horse race any running, trotting or pacing
horse, mare, gelding, colt or filly under an assumed name, or
deceptively out of its proper class, or that has been painted or
disguised or represented to be any other or different horse, mare,
gelding, colt or filly from that which it actually is; or
3. He knowingly and falsely registers with the jockey club, United
States trotting association, American quarterhorse association or
national steeplechase and hunt association a horse, mare, gelding, colt
or filly previously registered under a different name; or
4. He agrees with one or more persons to enter such misrepresented or
drugged animal in a pari-mutuel horse race. A person shall not be
convicted of a violation of this subdivision unless an overt act is
alleged and proved to have been committed by one of said persons in
furtherance of said agreement.
Tampering with a sports contest in the first degree is a class E
felony.
S 180.52 Impairing the integrity of a pari-mutuel betting system in the
second degree.
A person is guilty of impairing the integrity of a pari-mutuel betting
system in the second degree when, with the intent to obtain either any
payment for himself or for a third person or with the intent to defraud
any person he:
1. Alters, changes or interferes with any equipment or device used in
connection with pari-mutuel betting; or
2. Causes any false, inaccurate, delayed or unauthorized data, impulse
or signal to be fed into, or transmitted over, or registered in or
displayed upon any equipment or device used in connection with
pari-mutuel betting.
Impairing the integrity of a pari-mutuel betting system in the second
degree is a class E felony.
S 180.53 Impairing the integrity of a pari-mutuel betting system in
the first degree.
A person is guilty of impairing the integrity of a pari-mutuel betting
system in the first degree when, with the intent to obtain either any
payment for himself or for a third person or with the intent to defraud
any person, and when the value of the payment exceeds one thousand five
hundred dollars he:
1. Alters, changes or interferes with any equipment or device used in
connection with pari-mutuel betting; or
2. Causes any false, inaccurate, delayed or unauthorized data, impulse
or signal to be fed into, or transmitted over, or registered in or
displayed upon any equipment or device used in connection with
pari-mutuel betting.
Impairing the integrity of a pari-mutuel betting system in the first
degree is a class D felony.
S 180.54 Rent gouging; definition of term.
As used in this article, "lawful rental and other lawful charges"
means registered, reported or contracted for rent pursuant to chapter
four hundred three of the laws of nineteen hundred eighty-three, article
two of the private housing finance law or section eight of the federal
housing act of nineteen hundred sixty-eight, or, rent contained in a
court approved stipulation of settlement, even if such rent or charges
are subsequently decreased by order of the department of housing and
community renewal or a court of competent jurisdiction.
S 180.55 Rent gouging in the third degree.
A person is guilty of rent gouging in the third degree when, in
connection with the leasing, rental or use of real property, he
solicits, accepts or agrees to accept from a person some consideration
of value, less than two hundred fifty dollars, in addition to lawful
rental and other lawful charges, upon an agreement or understanding that
the furnishing of such consideration will increase the possibility that
any person may obtain or renew the lease, rental or use of such
property, or that a failure to furnish it will decrease the possibility
that any person may obtain or renew the same.
Rent gouging in the third degree is a class B misdemeanor.
S 180.56 Rent gouging in the second degree.
A person is guilty of rent gouging in the second degree when, in
connection with the leasing, rental or use of real property, he
solicits, accepts or agrees to accept from a person some consideration
of value, of two hundred fifty dollars or more, in addition to lawful
rental and other lawful charges, upon an agreement or understanding that
the furnishing of such consideration will increase the possibility that
any person may obtain or renew the lease, rental or use of such
property, or that a failure to furnish it will decrease the possibility
that any person may obtain or renew the same.
Rent gouging in the second degree is a class A misdemeanor.
S 180.57 Rent gouging in the first degree.
A person is guilty of rent gouging in the first degree when, in the
course of a scheme constituting a systematic ongoing course of conduct
in connection with the leasing, rental or use of three or more apartment
units, the rental price of which is regulated pursuant to the provisions
of federal, state or local law, he solicits, accepts or agrees to accept
from one or more persons in three separate transactions some
consideration of value, knowing that such consideration is in addition
to lawful rental and other lawful charges established pursuant to the
provisions of such federal, state or local law, and upon an agreement or
understanding that the furnishing of such consideration will increase
the possibility that any person may obtain or renew the lease, rental or
use of such property, or that a failure to furnish it will decrease the
possibility that any person may obtain or renew same, and thereby
obtains such consideration from one or more persons.
Rent gouging in the first degree is a class E felony.
Back to Top
Burglary
* TITLE I
OFFENSES INVOLVING DAMAGE TO AND INTRUSION UPON PROPERTY
ARTICLE 140
BURGLARY AND RELATED OFFENSES
Section 140.00 Criminal trespass and burglary; definitions of terms.
140.05 Trespass.
140.10 Criminal trespass in the third degree.
140.15 Criminal trespass in the second degree.
140.17 Criminal trespass in the first degree.
140.20 Burglary in the third degree.
140.25 Burglary in the second degree.
140.30 Burglary in the first degree.
140.35 Possession of burglar`s tools.
140.40 Unlawful possession of radio devices.
S 140.00 Criminal trespass and burglary; definitions of terms.
The following definitions are applicable to this article:
1. "Premises" includes the term "building," as defined herein, and any
real property.
2. "Building," in addition to its ordinary meaning, includes any
structure, vehicle or watercraft used for overnight lodging of persons,
or used by persons for carrying on business therein, or used as an
elementary or secondary school, or an inclosed motor truck, or an
inclosed motor truck trailer. Where a building consists of two or more
units separately secured or occupied, each unit shall be deemed both a
separate building in itself and a part of the main building.
3. "Dwelling" means a building which is usually occupied by a person
lodging therein at night.
4. "Night" means the period between thirty minutes after sunset and
thirty minutes before sunrise.
5. "Enter or remain unlawfully." A person "enters or remains
unlawfully" in or upon premises when he is not licensed or privileged to
do so. A person who, regardless of his intent, enters or remains in or
upon premises which are at the time open to the public does so with
license and privilege unless he defies a lawful order not to enter or
remain, personally communicated to him by the owner of such premises or
other authorized person. A license or privilege to enter or remain in a
building which is only partly open to the public is not a license or
privilege to enter or remain in that part of the building which is not
open to the public. A person who enters or remains upon unimproved and
apparently unused land, which is neither fenced nor otherwise enclosed
in a manner designed to exclude intruders, does so with license and
privilege unless notice against trespass is personally communicated to
him by the owner of such land or other authorized person, or unless such
notice is given by posting in a conspicuous manner. A person who enters
or remains in or about a school building without written permission from
someone authorized to issue such permission or without a legitimate
reason which includes a relationship involving custody of or
responsibility for a pupil or student enrolled in the school or without
legitimate business or a purpose relating to the operation of the school
does so without license and privilege.
S 140.05 Trespass.
A person is guilty of trespass when he knowingly enters or remains
unlawfully in or upon premises.
Trespass is a violation.
S 140.10 Criminal trespass in the third degree.
A person is guilty of criminal trespass in the third degree when he
knowingly enters or remains unlawfully in a building or upon real
property
(a) which is fenced or otherwise enclosed in a manner designed to
exclude intruders; or
(b) where the building is utilized as an elementary or secondary
school or a children`s overnight camp as defined in section one thousand
three hundred ninety-two of the public health law or a summer day camp
as defined in section one thousand three hundred ninety-two of the
public health law in violation of conspicuously posted rules or
regulations governing entry and use thereof; or
(c) located within a city with a population in excess of one million
and where the building or real property is utilized as an elementary or
secondary school in violation of a personally communicated request to
leave the premises from a principal, custodian or other person in charge
thereof; or
(d) located outside of a city with a population in excess of one
million and where the building or real property is utilized as an
elementary or secondary school in violation of a personally communicated
request to leave the premises from a principal, custodian, school board
member or trustee, or other person in charge thereof; or
(e) where the building is used as a public housing project in
violation of conspicuously posted rules or regulations governing entry
and use thereof; or
(f) where a building is used as a public housing project in violation
of a personally communicated request to leave the premises from a
housing police officer or other person in charge thereof; or
(g) where the property consists of a right-of-way or yard of a
railroad or rapid transit railroad which has been designated and
conspicuously posted as a no-trespass railroad zone, pursuant to section
eighty-three-b of the railroad law, by the city or county in which such
property is located.
Criminal trespass in the third degree is a class B misdemeanor.
S 140.15 Criminal trespass in the second degree.
A person is guilty of criminal trespass in the second degree when he
knowingly enters or remains unlawfully in a dwelling.
Criminal trespass in the second degree is a class A misdemeanor.
S 140.17 Criminal trespass in the first degree.
A person is guilty of criminal trespass in the first degree when he
knowingly enters or remains unlawfully in a building, and when, in the
course of committing such crime, he:
1. Possesses, or knows that another participant in the crime
possesses, an explosive or a deadly weapon; or
2. Possesses a firearm, rifle or shotgun, as those terms are defined
in section 265.00, and also possesses or has readily accessible a
quantity of ammunition which is capable of being discharged from such
firearm, rifle or shotgun; or
3. Knows that another participant in the crime possesses a firearm,
rifle or shotgun under circumstances described in subdivision two.
Criminal trespass in the first degree is a class D felony.
S 140.20 Burglary in the third degree.
A person is guilty of burglary in the third degree when he knowingly
enters or remains unlawfully in a building with intent to commit a crime
therein.
Burglary in the third degree is a class D felony.
S 140.25 Burglary in the second degree.
A person is guilty of burglary in the second degree when he knowingly
enters or remains unlawfully in a building with intent to commit a crime
therein, and when:
1. In effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in
the crime; or
(c) Uses or threatens the immediate use of a dangerous instrument; or
(d) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
2. The building is a dwelling.
Burglary in the second degree is a class C felony.
S 140.30 Burglary in the first degree.
A person is guilty of burglary in the first degree when he knowingly
enters or remains unlawfully in a dwelling with intent to commit a crime
therein, and when, in effecting entry or while in the dwelling or in
immediate flight therefrom, he or another participant in the crime:
1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not a participant in
the crime; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; except that in any prosecution under this
subdivision, it is an affirmative defense that such pistol, revolver,
rifle, shotgun, machine gun or other firearm was not a loaded weapon
from which a shot, readily capable of producing death or other serious
physical injury, could be discharged. Nothing contained in this
subdivision shall constitute a defense to a prosecution for, or preclude
a conviction of, burglary in the second degree, burglary in the third
degree or any other crime.
Burglary in the first degree is a class B felony.
S 140.35 Possession of burglar`s tools.
A person is guilty of possession of burglar`s tools when he possesses
any tool, instrument or other article adapted, designed or commonly used
for committing or facilitating offenses involving forcible entry into
premises, or offenses involving larceny by a physical taking, or
offenses involving theft of services as defined in subdivisions four,
five and six of section 165.15, under circumstances evincing an intent
to use or knowledge that some person intends to use the same in the
commission of an offense of such character.
Possession of burglar`s tools is a class A misdemeanor.
S 140.40 Unlawful possession of radio devices.
As used in this section, the term "radio device" means any device
capable of receiving a wireless voice transmission on any frequency
allocated for police use, or any device capable of transmitting and
receiving a wireless voice transmission. A person is guilty of unlawful
possession of a radio device when he possesses a radio device with the
intent to use that device in the commission of robbery, burglary,
larceny, gambling or a violation of any provision of article two hundred
twenty of the penal law.
Unlawful possession of a radio device is a class B misdemeanor.
Back to Top
Controlled Substances
* ARTICLE 220
CONTROLLED SUBSTANCES OFFENSES
Section 220.00 Controlled substances; definitions.
220.03 Criminal possession of a controlled substance in the
seventh degree.
220.06 Criminal possession of a controlled substance in the
fifth degree.
220.09 Criminal possession of a controlled substance in the
fourth degree.
220.16 Criminal possession of a controlled substance in the
third degree.
220.18 Criminal possession of a controlled substance in the
second degree.
220.21 Criminal possession of a controlled substance in the
first degree.
220.25 Criminal possession of a controlled substance;
presumption.
220.31 Criminal sale of a controlled substance in the fifth
degree.
220.34 Criminal sale of a controlled substance in the fourth
degree.
220.39 Criminal sale of a controlled substance in the third
degree.
220.41 Criminal sale of a controlled substance in the second
degree.
220.43 Criminal sale of a controlled substance in the first
degree.
220.44 Criminal sale of a controlled substance in or near school
grounds.
220.45 Criminally possessing a hypodermic instrument.
220.46 Criminal injection of a narcotic drug.
220.50 Criminally using drug paraphernalia in the second degree.
220.55 Criminally using drug paraphernalia in the first degree.
220.60 Criminal possession of precursors of controlled
substances.
220.65 Criminal sale of a prescription for a controlled
substance.
S 220.00 Controlled substances; definitions.
1. "Sell" means to sell, exchange, give or dispose of to another, or
to offer or agree to do the same.
2. "Unlawfully" means in violation of article thirty-three of the
public health law.
3. "Ounce" means an avoirdupois ounce as applied to solids or
semisolids, and a fluid ounce as applied to liquids.
4. "Pound" means an avoirdupois pound.
5. "Controlled substance" means any substance listed in schedule I,
II, III, IV or V of section thirty-three hundred six of the public
health law other than marihuana, but including concentrated cannabis as
defined in paragraph (a) of subdivision four of section thirty-three
hundred two of such law.
6. "Marihuana" means "marihuana" or "concentrated cannabis" as those
terms are defined in section thirty-three hundred two of the public
health law.
7. "Narcotic drug" means any controlled substance listed in schedule
I(b), I(c), II(b) or II(c) other than methadone.
8. "Narcotic preparation" means any controlled substance listed in
schedule III(d) or III(e).
9. "Hallucinogen" means any controlled substance listed in schedule
I(d) (5), (18), (19), (20), (21) and (22).
10. "Hallucinogenic substance" means any controlled substance listed
in schedule I(d) other than concentrated cannabis, lysergic acid
diethylamide, or an hallucinogen.
11. "Stimulant" means any controlled substance listed in schedule
I(f),II(d).
12. "Dangerous depressant" means any controlled substance listed in
schedule I(e)(2), (3), II(e), III(c)(3) or IV(c)(2), (31), (32), (40).
13. "Depressant" means any controlled substance listed in schedule
IV(c) except (c)(2), (31), (32), (40).
14. "School grounds" means (a) in or on or within any building,
structure, athletic playing field, playground or land contained within
the real property boundary line of a public or private elementary,
parochial, intermediate, junior high, vocational, or high school, or (b)
any area accessible to the public located within one thousand feet of
the real property boundary line comprising any such school or any parked
automobile or other parked vehicle located within one thousand feet of
the real property boundary line comprising any such school. For the
purposes of this section an "area accessible to the public" shall mean
sidewalks, streets, parking lots, parks, playgrounds, stores and
restaurants.
15. "Prescription for a controlled substance" means a direction or
authorization, by means of an official New York state prescription form,
a written prescription form or an oral prescription, which will permit a
person to lawfully obtain a controlled substance from any person
authorized to dispense controlled substances.
S 220.03 Criminal possession of a controlled substance in the seventh
degree.
A person is guilty of criminal possession of a controlled substance in
the seventh degree when he knowingly and unlawfully possesses a
controlled substance.
Criminal possession of a controlled substance in the seventh degree is
a class A misdemeanor.
S 220.06 Criminal possession of a controlled substance in the fifth
degree.
A person is guilty of criminal possession of a controlled substance in
the fifth degree when he knowingly and unlawfully possesses:
1. a controlled substance with intent to sell it; or
2. one or more preparations, compounds, mixtures or substances
containing a narcotic preparation and said preparations, compounds,
mixtures or substances are of an aggregate weight of one-half ounce or
more; or
3. phencyclidine and said phencyclidine weighs fifty milligrams or
more; or
4. one or more preparations, compounds, mixtures or substances
containing concentrated cannabis as defined in paragraph (a) of
subdivision four of section thirty-three hundred two of the public
health law and said preparations, compounds, mixtures or substances are
of an aggregate weight of one-fourth ounce or more; or
5. cocaine and said cocaine weighs five hundred milligrams or more.
6. ketamine and said ketamine weighs more than one thousand
milligrams; or
7. ketamine and has previously been convicted of possession or the
attempt to commit possession of ketamine in any amount; or
8. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of twenty-eight grams or more.
Criminal possession of a controlled substance in the fifth degree is a
class D felony.
S 220.09 Criminal possession of a controlled substance in the fourth
degree.
A person is guilty of criminal possession of a controlled substance in
the fourth degree when he knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of one-eighth ounce or more; or
2. one or more preparations, compounds, mixtures or substances
containing methamphetamine, its salts, isomers or salts of isomers and
said preparations, compounds, mixtures or substances are of an aggregate
weight of one-half ounce or more; or
3. one or more preparations, compounds, mixtures or substances
containing a narcotic preparation and said preparations, compounds,
mixtures or substances are of an aggregate weight of two ounces or more;
or
4. a stimulant and said stimulant weighs one gram or more; or
5. lysergic acid diethylamide and said lysergic acid diethylamide
weighs one milligram or more; or
6. a hallucinogen and said hallucinogen weighs twenty-five milligrams
or more; or
7. a hallucinogenic substance and said hallucinogenic substance weighs
one gram or more; or
8. a dangerous depressant and such dangerous depressant weighs ten
ounces or more; or
9. a depressant and such depressant weighs two pounds or more; or
10. one or more preparations, compounds, mixtures or substances
containing concentrated cannabis as defined in paragraph (a) of
subdivision four of section thirty-three hundred two of the public
health law and said preparations, compounds, mixtures or substances are
of an aggregate weight of one ounce or more; or
11. phencyclidine and said phencyclidine weighs two hundred fifty
milligrams or more; or
12. methadone and said methadone weighs three hundred sixty milligrams
or more; or
13. phencyclidine and said phencyclidine weighs fifty milligrams or
more with intent to sell it and has previously been convicted of an
offense defined in this article or the attempt or conspiracy to commit
any such offense; or
14. ketamine and said ketamine weighs four thousand milligrams or
more; or
15. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of two hundred grams or more.
Criminal possession of a controlled substance in the fourth degree is
a class C felony.
S 220.16 Criminal possession of a controlled substance in the third
degree.
A person is guilty of criminal possession of a controlled substance in
the third degree when he knowingly and unlawfully possesses:
1. a narcotic drug with intent to sell it; or
2. a stimulant, hallucinogen, hallucinogenic substance, or lysergic
acid diethylamide, with intent to sell it and has previously been con-
victed of an offense defined in article two hundred twenty or the
attempt or conspiracy to commit any such offense; or
3. a stimulant with intent to sell it and said stimulant weighs one
gram or more; or
4. lysergic acid diethylamide with intent to sell it and said
lysergic acid diethylamide weighs one milligram or more; or
5. a hallucinogen with intent to sell it and said hallucinogen weighs
twenty-five milligrams or more; or
6. a hallucinogenic substance with intent to sell it and said
hallucinogenic substance weighs one gram or more; or
7. one or more preparations, compounds, mixtures or substances
containing methamphetamine, its salts, isomers or salts of isomers with
intent to sell it and said preparations, compounds, mixtures or
substances are of an aggregate weight of one-eighth ounce or more; or
8. a stimulant and said stimulant weighs five grams or more; or
9. lysergic acid diethylamide and said lysergic acid diethylamide
weighs five milligrams or more; or
10. a hallucinogen and said hallucinogen weighs one hundred
twenty-five milligrams or more; or
11. a hallucinogenic substance and said hallucinogenic substance
weighs five grams or more; or
12. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of one-half ounce or more; or
13. phencyclidine and said phencyclidine weighs one thousand two
hundred fifty milligrams or more.
Criminal possession of a controlled substance in the third degree is a
class B felony.
S 220.18 Criminal possession of a controlled substance in the second
degree.
A person is guilty of criminal possession of a controlled substance in
the second degree when he knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of two ounces or more; or
2. one or more preparations, compounds, mixtures or substances
containing methamphetamine, its salts, isomers or salts of isomers and
said preparations, compounds, mixtures or substances are of an aggregate
weight of two ounces or more; or
3. a stimulant and said stimulant weighs ten grams or more; or
4. lysergic acid diethylamide and said lysergic acid diethylamide
weighs twenty-five milligrams or more; or
5. a hallucinogen and said hallucinogen weighs six hundred
twenty-five milligrams or more; or
6. a hallucinogenic substance and said hallucinogenic substance
weighs twenty-five grams or more; or
7. methadone and said methadone weighs two thousand eight hundred
eighty milligrams or more.
Criminal possession of a controlled substance in the second degree is
a class A-II felony.
S 220.21 Criminal possession of a controlled substance in the first
degree.
A person is guilty of criminal possession of a controlled substance in
the first degree when he knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of four ounces or more; or
2. methadone and said methadone weighs five thousand seven hundred
sixty milligrams or more.
Criminal possession of a controlled substance in the first degree is a
class A-I felony.
S 220.25 Criminal possession of a controlled substance; presumption.
1. The presence of a controlled substance in an automobile, other than
a public omnibus, is presumptive evidence of knowing possession thereof
by each and every person in the automobile at the time such controlled
substance was found; except that such presumption does not apply (a) to
a duly licensed operator of an automobile who is at the time operating
it for hire in the lawful and proper pursuit of his trade, or (b) to any
person in the automobile if one of them, having obtained the controlled
substance and not being under duress, is authorized to possess it and
such controlled substance is in the same container as when he received
possession thereof, or (c) when the controlled substance is concealed
upon the person of one of the occupants.
2. The presence of a narcotic drug, narcotic preparation, marihuana or
phencyclidine in open view in a room, other than a public place, under
circumstances evincing an intent to unlawfully mix, compound, package or
otherwise prepare for sale such controlled substance is presumptive
evidence of knowing possession thereof by each and every person in close
proximity to such controlled substance at the time such controlled
substance was found; except that such presumption does not apply to any
such persons if (a) one of them, having obtained such controlled
substance and not being under duress, is authorized to possess it and
such controlled substance is in the same container as when he received
possession thereof, or (b) one of them has such controlled substance
upon his person.
S 220.31 Criminal sale of a controlled substance in the fifth degree.
A person is guilty of criminal sale of a controlled substance in the
fifth degree when he knowingly and unlawfully sells a controlled
substance.
Criminal sale of a controlled substance in the fifth degree is a class
D felony.
S 220.34 Criminal sale of a controlled substance in the fourth degree.
A person is guilty of criminal sale of a controlled substance in the
fourth degree when he knowingly and unlawfully sells:
1. a narcotic preparation; or
2. a dangerous depressant or a depressant and the dangerous depressant
weighs ten ounces or more, or the depressant weighs two pounds or more;
or
3. concentrated cannabis as defined in paragraph (a) of subdivision
four of section thirty-three hundred two of the public health law; or
4. phencyclidine and the phencyclidine weighs fifty milligrams or
more; or
5. methadone; or
6. any amount of phencyclidine and has previously been convicted of an
offense defined in this article or the attempt or conspiracy to commit
any such offense; or
6-a. ketamine and said ketamine weighs four thousand milligrams or
more.
7. a controlled substance in violation of section 220.31 of this
article, when such sale takes place upon school grounds; or
8. a controlled substance in violation of section 220.31 of this
article, when such sale takes place upon the grounds of a child day care
or educational facility under circumstances evincing knowledge by the
defendant that such sale is taking place upon such grounds. As used in
this subdivision, the phrase "the grounds of a child day care or
educational facility" shall have the same meaning as provided for in
subdivision five of section 220.44 of this article. For the purposes of
this subdivision, a rebuttable presumption shall be established that a
person has knowledge that they are within the grounds of a child day
care or educational facility when notice is conspicuously posted of the
presence or proximity of such facility; or
9. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of twenty-eight grams or more.
Criminal sale of a controlled substance in the fourth degree is a
class C felony.
S 220.39 Criminal sale of a controlled substance in the third degree.
A person is guilty of criminal sale of a controlled substance in the
third degree when he knowingly and unlawfully sells:
1. a narcotic drug; or
2. a stimulant, hallucinogen, hallucinogenic substance, or lysergic
acid diethylamide and has previously been convicted of an offense
defined in article two hundred twenty or the attempt or conspiracy to
commit any such offense; or
3. a stimulant and the stimulant weighs one gram or more; or
4. lysergic acid diethylamide and the lysergic acid diethylamide
weighs one milligram or more; or
5. a hallucinogen and the hallucinogen weighs twenty-five milligrams
or more; or
6. a hallucinogenic substance and the hallucinogenic substance weighs
one gram or more; or
7. one or more preparations, compounds, mixtures or substances
containing methamphetamine, its salts, isomers or salts of isomers and
the preparations, compounds, mixtures or substances are of an aggregate
weight of one-eighth ounce or more; or
8. phencyclidine and the phencyclidine weighs two hundred fifty
milligrams or more; or
9. a narcotic preparation to a person less than twenty-one years old.
Criminal sale of a controlled substance in the third degree is a class
B felony.
S 220.41 Criminal sale of a controlled substance in the second degree.
A person is guilty of criminal sale of a controlled substance in the
second degree when he knowingly and unlawfully sells:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and the preparations, compounds, mixtures or
substances are of an aggregate weight of one-half ounce or more; or
2. one or more preparations, compounds, mixtures or substances
containing methamphetamine, its salts, isomers or salts of isomers and
the preparations, compounds, mixtures or substances are of an aggregate
weight of one-half ounce or more; or
3. a stimulant and the stimulant weighs five grams or more; or
4. lysergic acid diethylamide and the lysergic acid diethylamide
weighs five milligrams or more; or
5. a hallucinogen and the hallucinogen weighs one hundred twenty-five
milligrams or more; or
6. a hallucinogenic substance and the hallucinogenic substance weighs
five grams or more; or
7. methadone and the methadone weighs three hundred sixty milligrams
or more.
Criminal sale of a controlled substance in the second degree is a
class A-II felony.
S 220.43 Criminal sale of a controlled substance in the first degree.
A person is guilty of criminal sale of a controlled substance in the
first degree when he knowingly and unlawfully sells:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and the preparations, compounds, mixtures or
substances are of an aggregate weight of two ounces or more; or
2. methadone and the methadone weighs two thousand eight hundred
eighty milligrams or more.
Criminal sale of a controlled substance in the first degree is a class
A-I felony.
S 220.44 Criminal sale of a controlled substance in or near school
grounds.
A person is guilty of criminal sale of a controlled substance in or
near school grounds when he knowingly and unlawfully sells:
1. a controlled substance in violation of any one of subdivisions one
through six-a of section 220.34 of this article, when such sale takes
place upon school grounds; or
2. a controlled substance in violation of any one of subdivisions one
through eight of section 220.39 of this article, when such sale takes
place upon school grounds; or
3. a controlled substance in violation of any one of subdivisions one
through six of section 220.34 of this article, when such sale takes
place upon the grounds of a child day care or educational facility under
circumstances evincing knowledge by the defendant that such sale is
taking place upon such grounds; or
4. a controlled substance in violation of any one of subdivisions one
through eight of section 220.39 of this article, when such sale takes
place upon the grounds of a child day care or educational facility under
circumstances evincing knowledge by the defendant that such sale is
taking place upon such grounds.
5. For purposes of subdivisions three and four of this section, "the
grounds of a child day care or educational facility" means (a) in or on
or within any building, structure, athletic playing field, a playground
or land contained within the real property boundary line of a public or
private child day care center as such term is defined in paragraph (c)
of subdivision one of section three hundred ninety of the social
services law, or nursery, pre-kindergarten or kindergarten, or (b) any
area accessible to the public located within one thousand feet of the
real property boundary line comprising any such facility or any parked
automobile or other parked vehicle located within one thousand feet of
the real property boundary line comprising any such facility. For the
purposes of this section an "area accessible to the public" shall mean
sidewalks, streets, parking lots, parks, playgrounds, stores and
restaurants.
6. For the purposes of this section, a rebuttable presumption shall be
established that a person has knowledge that they are within the grounds
of a child day care or educational facility when notice is conspicuously
posted of the presence or proximity of such facility.
Criminal sale of a controlled substance in or near school grounds is a
class B felony.
S 220.45 Criminally possessing a hypodermic instrument.
A person is guilty of criminally possessing a hypodermic instrument
when he knowingly and unlawfully possesses or sells a hypodermic syringe
or hypodermic needle.
Criminally possessing a hypodermic instrument is a class A
misdemeanor.
S 220.46 Criminal injection of a narcotic drug.
A person is guilty of criminal injection of a narcotic drug when he
knowingly and unlawfully possesses a narcotic drug and he intentionally
injects by means of a hypodermic syringe or hypodermic needle all or any
portion of that drug into the body of another person with the latter`s
consent.
Criminal injection of a narcotic drug is a class E felony.
S 220.50 Criminally using drug paraphernalia in the second degree.
A person is guilty of criminally using drug paraphernalia in the
second degree when he knowingly possesses or sells:
1. Diluents, dilutants or adulterants, including but not limited to,
any of the following: quinine hydrochloride, mannitol, mannite, lactose
or dextrose, adapted for the dilution of narcotic drugs or stimulants
under circumstances evincing an intent to use, or under circumstances
evincing knowledge that some person intends to use, the same for
purposes of unlawfully mixing, compounding, or otherwise preparing any
narcotic drug or stimulant; or
2. Gelatine capsules, glassine envelopes, vials, capsules or any other
material suitable for the packaging of individual quantities of narcotic
drugs or stimulants under circumstances evincing an intent to use, or
under circumstances evincing knowledge that some person intends to use,
the same for the purpose of unlawfully manufacturing, packaging or
dispensing of any narcotic drug or stimulant; or
3. Scales and balances used or designed for the purpose of weighing or
measuring controlled substances, under circumstances evincing an intent
to use, or under circumstances evincing knowledge that some person
intends to use, the same for purpose of unlawfully manufacturing,
packaging or dispensing of any narcotic drug or stimulant.
Criminally using drug paraphernalia in the second degree is a class A
misdemeanor.
S 220.55 Criminally using drug paraphernalia in the first degree.
A person is guilty of criminally using drug paraphernalia in the first
degree when he commits the crime of criminally using drug paraphernalia
in the second degree and he has previously been convicted of criminally
using drug paraphernalia in the second degree.
Criminally using drug paraphernalia in the first degree is a class D
felony.
S 220.60 Criminal possession of precursors of controlled substances.
A person is guilty of criminal possession of precursors of con-
trolled substances when, with intent to manufacture a controlled sub-
stance unlawfully, he possesses at the same time:
(a) carbamide (urea) and propanedioc and malonic acid or its
derivatives; or
(b) ergot or an ergot derivative and diethylamine or dimethyl-
formamide or diethylamide; or
(c) phenylacetone (1-phenyl-2 propanone) and hydroxylamine or ammonia
or formamide or benzaldehyde or nitroethane or methylamine.
(d) pentazocine and methyliodide; or
(e) phenylacetonitrile and dichlorodiethyl methylamine or dichlor-
odiethyl benzylamine; or
(f) diephenylacetonitrile and dimethylaminoisopropyl chloride; or
(g) piperidine and cyclohexanone and bromobenzene and lithium or
magnesium; or
(h) 2, 5-dimethoxy benzaldehyde and nitroethane and a reducing agent.
Criminal prossession of precursors of controlled substances is a class
E felony.
S 220.65 Criminal sale of a prescription for a controlled substance.
A person is guilty of criminal sale of a prescription for a controlled
substance when, being a practitioner, as that term is defined in section
thirty-three hundred two of the public health law, he knowingly and
unlawfully sells a prescription for a controlled substance. For the
purposes of this section, a person sells a prescription for a controlled
substance unlawfully when he does so other than in good faith in the
course of his professional practice.
Criminal sale of a prescription is a class C felony.
Back to Top
Criminal Facilitation
* ARTICLE 115
CRIMINAL FACILITATION
Section 115.00 Criminal facilitation in the fourth degree.
115.01 Criminal facilitation in the third degree.
115.05 Criminal facilitation in the second degree.
115.08 Criminal facilitation in the first degree.
115.10 Criminal facilitation; no defense.
115.15 Criminal facilitation; corroboration.
S 115.00 Criminal facilitation in the fourth degree.
A person is guilty of criminal facilitation in the fourth degree when,
believing it probable that he is rendering aid:
1. to a person who intends to commit a crime, he engages in conduct
which provides such person with means or opportunity for the commission
thereof and which in fact aids such person to commit a felony; or
2. to a person under sixteen years of age who intends to engage in
conduct which would constitute a crime, he, being over eighteen years of
age, engages in conduct which provides such person with means or
opportunity for the commission thereof and which in fact aids such
person to commit a crime.
Criminal facilitation in the fourth degree is a class A misdemeanor.
S 115.01 Criminal facilitation in the third degree.
A person guilty of criminal facilitation in the third degree, when
believing it probable that he is rendering aid to a person under sixteen
years of age who intends to engage in conduct that would constitute a
felony, he, being over eighteen years of age, engages in conduct which
provides such person with means or opportunity for the commission
thereof and which in fact aids such person to commit a felony.
Criminal facilitation in the third degree is a class E felony.
S 115.05 Criminal facilitation in the second degree.
A person is guilty of criminal facilitation in the second degree when,
believing it probable that he is rendering aid to a person who intends
to commit a class A felony, he engages in conduct which provides such
person with means or opportunity for the commission thereof and which in
fact aids such person to commit such class A felony.
Criminal facilitation in the second degree is a class C felony.
S 115.08 Criminal facilitation in the first degree.
A person is guilty of criminal facilitation in the first degree when,
believing it probable that he is rendering aid to a person under sixteen
years of age who intends to engage in conduct that would constitute a
class A felony, he, being over eighteen years of age, engages in conduct
which provides such person with means or opportunity for the commission
thereof and which in fact aids such person to commit such a class A
felony.
Criminal facilitation in the first degree is a class B felony.
S 115.10 Criminal facilitation; no defense.
It is no defense to a prosecution for criminal facilitation that:
1. The person facilitated was not guilty of the underlying felony
owing to criminal irresponsibility or other legal incapacity or
exemption, or to unawareness of the criminal nature of the conduct in
question or to other factors precluding the mental state required for
the commission of such felony; or
2. The person facilitated has not been prosecuted for or convicted of
the underlying felony, or has previously been acquitted thereof; or
3. The defendant himself is not guilty of the felony which he
facilitated because he did not act with the intent or other culpable
mental state required for the commission thereof.
S 115.15 Criminal facilitation; corroboration.
A person shall not be convicted of criminal facilitation upon the
testimony of a person who has committed the felony charged to have been facilitated unless such testimony be corroborated by such other evidence as tends to connect the defendant with such facilitation.
Back to Top
Criminal Mischief
* ARTICLE 145
CRIMINAL MISCHIEF AND RELATED OFFENSES
Section 145.00 Criminal mischief in the fourth degree.
145.05 Criminal mischief in the third degree.
145.10 Criminal mischief in the second degree.
145.12 Criminal mischief in the first degree.
145.14 Criminal tampering in the third degree.
145.15 Criminal tampering in the second degree.
145.20 Criminal tampering in the first degree.
145.22 Cemetery desecration in the second degree.
145.23 Cemetery desecration in the first degree.
145.25 Reckless endangerment of property.
145.30 Unlawfully posting advertisements.
145.35 Tampering with a consumer product; consumer product
defined.
145.40 Tampering with a consumer product in the second degree.
145.45 Tampering with a consumer product in the first degree.
145.50 Penalties for littering on railroad tracks and
rights-of-way.
145.60 Making graffiti.
145.65 Possession of graffiti instruments.
145.70 Criminal possession of a taximeter accelerating device.
S 145.00 Criminal mischief in the fourth degree.
A person is guilty of criminal mischief in the fourth degree when,
having no right to do so nor any reasonable ground to believe that he
has such right, he:
1. Intentionally damages property of another person; or
2. Intentionally particpates in the destruction of an abandoned
building as defined in section one thousand nine hundred seventy-one-a
of the real property actions and proceedings law; or
3. Recklessly damages property of another person in an amount
exceeding two hundred fifty dollars.
Criminal mischief in the fourth degree is a class A misdemeanor.
S 145.05 Criminal mischief in the third degree.
A person is guilty of criminal mischief in the third degree when, with
intent to damage property of another person, and having no right to do
so nor any reasonable ground to believe that he or she has such right,
he or she:
1. damages the motor vehicle of another person, by breaking into such
vehicle when it is locked with the intent of stealing property, and
within the previous ten year period, has been convicted three or more
times, in separate criminal transactions for which sentence was imposed
on separate occasions, of criminal mischief in the fourth degree as
defined in section 145.00, criminal mischief in the third degree as
defined in this section, criminal mischief in the second degree as
defined in section 145.10, or criminal mischief in the first degree as
defined in section 145.12 of this article; or
2. damages property of another person in an amount exceeding two
hundred fifty dollars.
Criminal mischief in the third degree is a class E felony.
S 145.10 Criminal mischief in the second degree.
A person is guilty of criminal mischief in the second degree when with
intent to damage property of another person, and having no right to do
so nor any reasonable ground to believe that he has such right, he
damages property of another person in an amount exceeding one thousand
five hundred dollars.
Criminal mischief in the second degree is a class D felony.
S 145.12 Criminal mischief in the first degree.
A person is guilty of criminal mischief in the first degree when with
intent to damage property of another person, and having no right to do
so nor any reasonable ground to believe that he has such right, he
damages property of another person by means of an explosive.
Criminal mischief in the first degree is a class B felony.
S 145.14 Criminal tampering in the third degree.
A person is guilty of criminal tampering in the third degree when,
having no right to do so nor any reasonable ground to believe that he
has such right, he tampers with property of another person with intent
to cause substantial inconvenience to such person or to a third person.
Criminal tampering in the third degree is a class B misdemeanor.
S 145.15 Criminal tampering in the second degree.
A person is guilty of criminal tampering in the second degree when,
having no right to do so nor any reasonable ground to believe that he
has such right, he tampers or makes connection with property of a gas,
electric, sewer, steam or water-works corporation, telephone or
telegraph corporation, common carrier, or public utility operated by a
municipality or district; except that in any prosecution under this
section, it is an affirmative defense that the defendant did not engage
in such conduct for a larcenous or otherwise unlawful or wrongful
purpose.
Criminal tampering in the second degree is a class A misdemeanor.
S 145.20 Criminal tampering in the first degree.
A person is guilty of criminal tampering in the first degree when,
with intent to cause a substantial interruption or impairment of a
service rendered to the public, and having no right to do so nor any
reasonable ground to believe that he has such right, he damages or
tampers with property of a gas, electric, sewer, steam or water-works
corporation, telephone or telegraph corporation, common carrier, or
public utility operated by a municipality or district, and thereby
causes such substantial interruption or impairment of service.
Criminal tampering in the first degree is a class D felony.
S 145.22 Cemetery desecration in the second degree.
A person is guilty of cemetery desecration in the second degree when
with intent to damage property of another person, and having no right to
do so nor any reasonable ground to believe that he has such right, he
damages any real or personal property maintained as a cemetery plot,
grave, burial place or other place of interment of human remains.
Cemetery desecration in the second degree is a class A misdemeanor.
S 145.23 Cemetery desecration in the first degree.
A person is guilty of cemetery desecration in the first degree when
with intent to damage property of another person, and having no right to
do so nor any reasonable ground to believe that he has such right, he:
(a) damages any real or personal property maintained as a cemetery
plot, grave, burial place or other place of interment of human remains
in an amount exceeding two hundred fifty dollars; or
(b) commits the crime of cemetery desecration in the second degree as
defined in section 145.22 of this article and has been previously
convicted of the crime of cemetery desecration in the second degree
within the preceding five years.
Cemetery desecration in the first degree is a class E felony.
S 145.25 Reckless endangerment of property.
A person is guilty of reckless endangerment of property when he
recklessly engages in conduct which creates a substantial risk of damage
to the property of another person in an amount exceeding two hundred
fifty dollars.
Reckless endangerment of property is a class B misdemeanor.
S 145.30 Unlawfully posting advertisements.
1. A person is guilty of unlawfully posting advertisements when,
having no right to do so nor any reasonable ground to believe that he
has such right, he posts, paints or otherwise affixes to the property of
another person any advertisement, poster, notice or other matter
designed to benefit a person other than the owner of the property.
2. Where such matter consists of a commercial advertisement, it shall
be presumed that the vendor of the specified product, service or
entertainment is a person who placed such advertisement or caused it to
be placed upon the property.
Unlawfully posting advertisements is a violation.
S 145.35 Tampering with a consumer product; consumer product defined.
For the purposes of sections 145.40 and 145.45 of this article,
"consumer product" means any drug, food, beverage or thing which is
displayed or offered for sale to the public, for administration into or
ingestion by a human being or for application to any external surface of
a human being.
S 145.40 Tampering with a consumer product in the second degree.
A person is guilty of tampering with a consumer product in the second
degree when, having no right to do so nor any reasonable ground to
believe that he has such right, and with intent to cause physical injury
to another or with intent to instill in another a fear that he will
cause such physical injury, he alters, adulterates or otherwise
contaminates a consumer product.
Tampering with a consumer product in the second degree is a class A
misdemeanor.
S 145.45 Tampering with a consumer product in the first degree.
A person is guilty of tampering with a consumer product in the first
degree when, having no right to do so nor any reasonable ground to
believe that he has such right, and with intent to cause physical injury
to another or with intent to instill in another a fear that he will
cause such physical injury, he alters, adulterates or otherwise
contaminates a consumer product and thereby creates a substantial risk
of serious physical injury to one or more persons.
Tampering with a consumer product in the first degree is a class E
felony.
S 145.50 Penalties for littering on railroad tracks and rights-of-way.
1. No person shall throw, dump, or cause to be thrown, dumped,
deposited or placed upon any railroad tracks, or within the limits of
the rights-of-way of any railroad, any refuse, trash, garbage, rubbish,
litter or any nauseous or offensive matter.
2. Where a highway or road lies in whole or part within a railroad
rights-of-way, nothing in this section shall be construed as prohibiting
the use in a reasonable manner of ashes, sand, salt or other material
for the purpose of reducing the hazard of, or providing traction on
snow, ice or sleet situated on such highway or road.
3. A violation of the provisions of subdivision one of this section
shall be punishable by a fine not to exceed two hundred fifty dollars
and/or a requirement to perform services for a public or not-for-profit
corporation, association, institution or agency not to exceed eight
hours and for any second or subsequent violation by a fine not to exceed
five hundred dollars and/or a requirement to perform services for a
public or not-for-profit corporation, association, institution or agency
not to exceed eight hours.
4. Nothing in this section shall be deemed to apply to a railroad or
its employees when matter deposited by them on the railroad tracks or
rights-of-way is done pursuant to railroad rules, regulations or
procedures.
S 145.60 Making graffiti.
1. For purposes of this section, 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 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 property.
Making graffiti is a class A misdemeanor.
Back to Top
DWI or DUI
Vehicle & Traffic
* ARTICLE 31 ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE THERETO Section 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se. 1193. Sanctions. 1194. Arrest and testing. 1194-a. Driving after having consumed alcohol; under twenty-one; procedure. 1195. Chemical test evidence. 1196. Alcohol and drug rehabilitation program. 1197. Special traffic options program for driving while intoxicated. 1198. Ignition interlock device program. S 1192. Operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person`s ability to operate such motor vehicle is impaired by the consumption of alcohol. 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person`s blood as shown by chemical analysis of such person`s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. 3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition. 4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person`s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter. 5. Commercial motor vehicles: per se - level I. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person`s blood as shown by chemical analysis of such person`s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such person`s blood, breath, urine, or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator`s blood. 6. Commercial motor vehicles; per se - level II. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per centum by weight of alcohol in the person`s blood as shown by chemical analysis of such person`s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section. 7. Where applicable. The provisions of this section shall apply upon public highways, private roads open to motor vehicle traffic and any other parking lot. For the purposes of this section "parking lot" shall mean any area or areas of private property, including a driveway, near or contiguous to and provided in connection with premises and used as a means of access to and egress from a public highway to such premises and having a capacity for the parking of four or more motor vehicles. The provisions of this section shall not apply to any area or areas of private property comprising all or part of property on which is situated a one or two family residence. 8. Effect of prior out-of-state conviction. A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall
be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a violation of any of the provisions of this section. This subdivision shall only apply to convictions occurring on or after November twenty-ninth, nineteen hundred eighty-five. 8-a. Effect of prior finding of having consumed alcohol. A prior finding that a person under the age of twenty-one has operated a motor vehicle after having consumed alcohol pursuant to section eleven hundred ninety-four-a of this article shall have the same effect as a prior conviction of a violation of subdivision one of this section solely for the purpose of determining the length of any license suspension or revocation required to be imposed under any provision of this article, provided that the subsequent offense is committed prior to the expiration of the retention period for such prior offense or offenses set forth in paragraph (k) of subdivision one of section two hundred one of this chapter. 9. Conviction of a different charge. A driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty. 10. Plea bargain limitations. (a) In any case wherein the charge laid before the court alleges a violation of subdivision two, three or four of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition. In any case wherein the charge laid before the court alleges a violation of subdivision one of this section and the operator was under the age of twenty-one at the time of such violation, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of such subdivision; provided, however, such charge may instead be satisfied as provided in paragraph (c) of this subdivision, and, provided further that, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of subdivision one of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition. (b) In any case wherein the charge laid before the court alleges a violation of subdivision one or six of this section while operating a commercial motor vehicle, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, he may
consent, and the court may allow, a disposition by plea of guilty to another charge is satisfaction of such charge. (c) Except as provided in paragraph (b) of this subdivision, in any case wherein the charge laid before the court alleges a violation of subdivision one of this section by a person who was under the age of twenty-one at the time of commission of the offense, the court, with the consent of both parties, may allow the satisfaction of such charge by the defendant`s agreement to be subject to action by the commissioner pursuant to section eleven hundred ninety-four-a of this article. In any such case, the defendant shall waive the right to a hearing under section eleven hundred ninety-four-a of this article and such waiver shall have the same force and effect as a finding of a violation of section eleven hundred ninety-two-a of this article entered after a hearing conducted pursuant to such section eleven hundred ninety-four-a. The defendant shall execute such waiver in open court, and, if represented by counsel, in the presence of his attorney, on a form to be provided by the commissioner, which shall be forwarded by the court to the commissioner within ninety-six hours. To be valid, such form shall, at a minimum, contain clear and conspicuous language advising the defendant that a duly executed waiver: (i) has the same force and effect as a guilty finding following a hearing pursuant to section eleven hundred ninety-four-a of this article; (ii) shall subject the defendant to the imposition of sanctions pursuant to such section eleven hundred ninety-four-a; and (iii) may subject the defendant to increased sanctions upon a subsequent violation of this section or section eleven hundred ninety-two-a of this article. Upon receipt of a duly executed waiver pursuant to this paragraph, the commissioner shall take such administrative action and impose such sanctions as may be required by section eleven hundred ninety-four-a of this article. 11. No person other than an operator of a commercial motor vehicle may be charged with or convicted of a violation of subdivision five or six of this section. 12. Driving while intoxicated or while ability impaired by drugs--serious physical injury or death. In every case where a person is charged with a violation of subdivision two, three or four of this section, the law enforcement officer alleging such charge shall make a clear notation in the "Description of Violation" section of a simplified traffic information if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical injury as defined in section 10.00 of the penal law; such notation shall be in the form of a "D" if someone other than the person charged was killed and such notation shall be in the form of a "S.P.I." if someone other than the person charged suffered serious physical injury; provided, however, that the failure to make such notation shall in no way affect a charge for a violation of subdivision two, three or four of this section. S 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se. No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person`s blood, as shown by chemical analysis of such person`s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of
this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense. S 1193. Sanctions. 1. Criminal penalties. (a) Driving while ability impaired. A violation of subdivision one of section eleven hundred ninety-two of this article shall be a traffic infraction and shall be punishable by a fine of not less than three hundred dollars nor more than five hundred dollars or by imprisonment in a penitentiary or county jail for not more than fifteen days, or by both such fine and imprisonment. A person who operates a vehicle in violation of such subdivision after having been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article within the preceding five years shall be punished by a fine of not less than five hundred dollars nor more than seven hundred fifty dollars, or by imprisonment of not more than thirty days in a penitentiary or county jail or by both such fine and imprisonment. A person who operates a vehicle in violation of such subdivision after having been convicted two or more times of a violation of any subdivision of section eleven hundred ninety-two of this article within the preceding ten years shall be guilty of a misdemeanor, and shall be punished by a fine of not less than seven hundred fifty dollars nor more than fifteen hundred dollars, or by imprisonment of not more than one hundred eighty days in a penitentiary or county jail or by both such fine and imprisonment. (b) Driving while intoxicated or while ability impaired by drugs; misdemeanor offenses. A violation of subdivision two, three or four of section eleven hundred ninety-two of this article shall be a misdemeanor and shall be punishable by a fine of not less than five hundred dollars nor more than one thousand dollars, or by imprisonment in a penitentiary or county jail for not more than one year, or by both such fine and imprisonment. (c) Felony offenses. (i) A person who operates a vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, three or four of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of such law, within the preceding ten years, shall be guilty of a class E felony, and shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (ii) A person who operates a vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, three or four of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of such law, twice within the preceding ten years, shall be guilty of a class D felony, and shall be punished by a fine of not less than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (d) Alcohol or drug related offenses; special vehicles. (1) Except as provided in subparagraph four of this paragraph, a violation of subdivision one, two, three or four of section eleven hundred ninety-two
of this article wherein the violator is operating a taxicab as defined in section one hundred forty-eight-a of this chapter, or livery as defined in section one hundred twenty-one-e of this chapter, and such taxicab or livery is carrying a passenger for compensation, or a truck with a GVWR of more than eighteen thousand pounds but not more than twenty-six thousand pounds and which is not a commercial motor vehicle shall be a misdemeanor punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (1-a) A violation of subdivision one of section eleven hundred ninety-two of this article wherein the violator is operating a school bus as defined in section one hundred forty-two of this chapter and such school bus is carrying at least one student passenger shall be a misdemeanor punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (2) A violation of subdivision five of section eleven hundred ninety-two of this article shall be a traffic infraction punishable as provided in paragraph (a) of this subdivision. Except as provided in subparagraph three or five of this paragraph, a violation of subdivision one, two, three, four or six of section eleven hundred ninety-two of this article wherein the violator is operating a commercial motor vehicle, or any motor vehicle registered or registrable under schedule F of subdivision seven of section four hundred one of this chapter shall be a misdemeanor. A violation of subdivision one, two, three or four of section eleven hundred ninety-two of this article shall be punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. A violation of subdivision six of section eleven hundred ninety-two of this article shall be punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment not to exceed one hundred eighty days, or by both such fine and imprisonment. A person who operates any such vehicle in violation of such subdivision six after having been convicted of a violation of subdivision one, two, three, four or six of section eleven hundred ninety-two of this article within the preceding five years shall be punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (3) A violation of subdivision one of section eleven hundred ninety-two of this article wherein the violator is operating a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives shall be a misdemeanor punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (4) (i) A person who operates a vehicle in violation of subdivision one, two, three or four of section eleven hundred ninety-two of this article and which is punishable as provided in subparagraph one, one-a, two or three of this paragraph after having been convicted of a violation of any such subdivision of section eleven hundred ninety-two of this article and penalized under subparagraph one, one-a, two or three of this paragraph within the preceding ten years, shall be guilty of a class E felony, which shall be punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. A person who operates a vehicle in violation of subdivision
six of section eleven hundred ninety-two of this article after having been convicted of two or more violations of subdivisions one, two, three, four or six of section eleven hundred ninety-two of this article within the preceding five years, any one of which was a misdemeanor, shall be guilty of a class E felony, which shall be punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. In addition, any person sentenced pursuant to this subparagraph shall be subject to the disqualification provided in subparagraph three of paragraph (e) of subdivision two of this section. (ii) A person who operates a vehicle in violation of subdivision one, two, three or four of section eleven hundred ninety-two of this article and which is punishable as provided in subparagraph one, one-a, two or three of this paragraph after having been convicted of a violation of any such subdivision of section eleven hundred ninety-two of this article and penalized under subparagraph one, one-a, two or three of this paragraph twice within the preceding ten years, shall be guilty of a class D felony, which shall be punishable by a fine of not less than two thousand dollars nor more than ten thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. A person who operates a vehicle in violation of subdivision six of section eleven hundred ninety-two of this article after having been convicted of three or more violations of subdivisions one, two, three, four or six of section eleven hundred ninety-two of this article within the preceding five years, any one of which was a misdemeanor, shall be guilty of a class D felony, which shall be punishable by a fine of not less than two thousand dollars nor more than ten thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. In addition, any person sentenced pursuant to this subparagraph shall be subject to the disqualification provided in subparagraph three of paragraph (e) of subdivision two of this section. (4-a) A violation of subdivision two, three or four of section eleven hundred ninety-two of this article wherein the violator is operating a school bus as defined in section one hundred forty-two of this chapter and such school bus is carrying at least one student passenger shall be a class E felony punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (5) A violation of subdivision two, three or four of section eleven hundred ninety-two of this article wherein the violator is operating a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives, shall be a class E felony punishable by a fine of not less than one thousand dollars and such other penalties as provided for in the penal law; provided, however, that a conviction for such violation shall not be considered a predicate felony pursuant to section 70.06 of such law, or a previous felony conviction pursuant to section 70.10 of such law. (6) The sentences required to be imposed by subparagraph one, one-a, two, three, four, four-a or five o paragraph shall be imposed notwithstanding any contrary provision of this chapter or the penal law. (7) Nothing contained in this paragraph shall prohibit the imposition of a charge of any other felony set forth in this or any other provision of law for any acts arising out of the same incident. (e) Certain sentences prohibited. Notwithstanding any provisions of the penal law, no judge or magistrate shall impose a sentence of unconditional discharge for a violation of any subdivision of section eleven hundred ninety-two of this article nor shall a judge or
magistrate impose a sentence of conditional discharge or probation unless such conditional discharge or probation is accompanied by a sentence of a fine as provided in this subdivision. (f) Where the court imposes a sentence for a violation of section eleven hundred ninety-two of this article, the court may require the defendant, as a part of or as a condition of such sentence, to attend a single session conducted by a victims impact program. For purposes of this section, "victims impact program" means a program operated by a county, a city with a population of one million or more, by a not-for-profit organization authorized by any such county or city, or a combination thereof, in which presentations are made concerning the impact of operating a motor vehicle while under the influence of alcohol or drugs to one or more persons who have been convicted of such offenses. A description of any such program shall be filed with the commissioner and with the coordinator of the special traffic options program for driving while intoxicated established pursuant to section eleven hundred ninety-seven of this article, and shall be made available to the court upon request. Nothing contained herein shall be construed to require any governmental entity to create such a victim impact program. 1-a. Additional penalties. (a) Except as provided for in paragraph (b) of this subdivision, a person who operates a vehicle in violation of subdivision two or three of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two or three of such section within the preceding five years shall, in addition to any other penalties which may be imposed pursuant to subdivision one of this section, be sentenced to a term of imprisonment of five days or, as an alternative to such imprisonment, be required to perform thirty days of service for a public or not-for-profit corporation, association, institution or agency as set forth in paragraph (h) of subdivision two of section 65.10 of the penal law as a condition of sentencing for such violation. Notwithstanding the provisions of this paragraph, a sentence of a term of imprisonment of five days or more pursuant to the provisions of subdivision one of this section shall be deemed to be in compliance with this subdivision. (b) A person who operates a vehicle in violation of subdivision two or three of section eleven hundred ninety-two of this article after having been convicted on two or more occasions of a violation of any of such subdivisions within the preceding five years shall, in addition to any other penalties which may be imposed pursuant to subdivision one of this section, be sentenced to a term of imprisonment of ten days or, as an alternative to such imprisonment, be required to perform sixty days of service for a public or not-for-profit corporation, association, institution or agency as set forth in paragraph (h) of subdivision two of section 65.10 of the penal law as a condition of sentencing for such violation. Notwithstanding the provisions of this paragraph, a sentence of a term of imprisonment of ten days or more pursuant to the provisions of subdivision one of this section shall be deemed to be in compliance with this subdivision. (c) A court sentencing a person pursuant to paragraph (a) or (b) of this subdivision shall: (i) order the installation of an ignition interlock device approved pursuant to section eleven hundred ninety-eight of this article on each motor vehicle owned by the person so sentenced. Such devices shall remain installed during any period of license revocation required to be imposed pursuant to paragraph (b) of subdivision two of this section, and, upon the termination of such revocation period, for an additional period as determined by the court; and (ii) order that such person receive an assessment of the degree of their alcohol abuse. Where such assessment indicates the need for treatment, such court is authorized to impose treatment as a condition
of such sentence. 2. License sanctions. (a) Suspensions. Except as otherwise provided in this subdivision, a license shall be suspended and a registration may be suspended for the following periods: (1) Driving while ability impaired. Ninety days, where the holder is convicted of a violation of subdivision one of section eleven hundred ninety-two of this article; (2) Persons under the age of twenty-one; driving after having consumed alcohol. Six months, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article where such person was under the age of twenty-one at the time of commission of such violation. (b) Revocations. A license shall be revoked and a registration may be revoked for the following minimum periods: (1) Driving while ability impaired; prior offense. Six months, where the holder is convicted of a violation of subdivision one of section eleven hundred ninety-two of this article committed within five years of a conviction for a violation of any subdivision of section eleven hundred ninety-two of this article. (1-a) Driving while ability impaired; misdemeanor offense. Six months, where the holder is convicted of a violation of subdivision one of section eleven hundred ninety-two of this article committed within ten years of two previous convictions for a violation of any subdivision of section eleven hundred ninety-two of this article. (2) Driving while intoxicated or while ability impaired by drugs. Six months, where the holder is convicted of a violation of subdivision two, three or four of section eleven hundred ninety-two of this article. (3) Driving while intoxicated or while ability impaired by drugs; prior offense. One year, where the holder is convicted of a violation of subdivision two, three or four of section eleven hundred ninety-two of this article committed within ten years of a conviction for a violation of subdivision two, three or four of section eleven hundred ninety-two of this article. (4) Special vehicles other than school buses. One year, where the holder is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article and is sentenced pursuant to subparagraph one of paragraph (d) of subdivision one of this section. (4-a) School buses. (A) One year, where the holder is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article, such violation was committed while the holder was driving a school bus, and the holder is sentenced pursuant to subparagraph one, one-a or four-a of paragraph (d) of subdivision one of this section. (B) Three years where the holder is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article, such violation was committed while the holder was driving a school bus, and the holder is sentenced pursuant to subparagraph four of paragraph (d) of subdivision one of this section. (C) Notwithstanding the provisions of the opening paragraph of this paragraph (b), the commissioner shall not revoke the registration of a school bus driven in violation of section eleven hundred ninety-two of this article. (5) Commercial motor vehicles. (i) Except as otherwise provided in this subparagraph, one year where the holder is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article, such violation was committed while the holder was operating a commercial motor vehicle and the holder is sentenced pursuant to subparagraph two of paragraph (d) of subdivision one of this section. (ii) Three years, where the holder is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article, such violation was committed while the holder was operating a commercial motor vehicle transporting hazardous materials and the holder is sentenced pursuant to subparagraph two of paragraph (d) of subdivision one of this section. (6)
Persons under the age of twenty-one. One year, where the holder is convicted of or adjudicated a youthful offender for a violation of any subdivision of section eleven hundred ninety-two of this article, or is convicted of or receives a youthful offender or other juvenile adjudication for an offense consisting of operating a motor vehicle under the influence of intoxicating liquor where the conviction, or youthful offender or other juvenile adjudication was had outside this state, where such person was under the age of twenty-one at the time of commission of such violation. (7) Persons under the age of twenty-one; prior offense or finding. One year or until the holder reaches the age of twenty-one, whichever is the greater period of time, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article, or is convicted of, or adjudicated a youthful offender for, a violation of any subdivision of section eleven hundred ninety-two of this article, or is convicted of or receives a youthful offender or juvenile adjudication for an offense consisting of operating a motor vehicle under the influence of intoxicating liquor where the conviction, or youthful offender or other juvenile adjudication was had outside this state, where such person was under the age of twenty-one at the time of commission of such violation and has previously been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article, or has previously been convicted of, or adjudicated a youthful offender for, any violation of section eleven hundred ninety-two of this article not arising out of the same incident, or has previously been convicted of or received a youthful offender or juvenile adjudication for an offense consisting of operating a motor vehicle under the influence of intoxicating liquor when the conviction, or youthful offender or other juvenile adjudication was had outside this state and not arising out of the same. * (8) Out-of-state offenses. Except as provided in subparagraph six or seven of this paragraph: (i) ninety days, where the holder is convicted of an offense consisting of operating a motor vehicle under the influence of intoxicating liquor where the conviction was had outside this state and (ii) six months, where the holder is convicted of, or receives a youthful offender or other juvenile adjudication, which would have been a misdemeanor or felony if committed by an adult, in connection with, an offense consisting of operating a motor vehicle under the influence of or while impaired by the use of drugs where the conviction or youthful offender or other juvenile adjudication was had outside this state. * NB Effective until October 1, 2005 * (8) Out-of-state offenses. Except as provided in subparagraph six or seven of this paragraph, ninety days, where the holder is convicted of an offense consisting of operating a motor vehicle under the influence of intoxicating liquor or drugs where the conviction was had outside this state. * NB Effective October 1, 2005 (9) Effect of rehabilitation program. No period of revocation arising out of subparagraph four, five, six or seven of this paragraph may be set aside by the commissioner for the reason that such person was a participant in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this chapter. (10) Action required by commissioner. Where a court fails to impose, or incorrectly imposes, a suspension or revocation required by this subdivision, the commissioner shall, upon receipt of a certificate of conviction filed pursuant to section five hundred fourteen of this chapter, impose such mandated suspension or revocation, which shall supersede any such order which the court may have imposed. (11) Limitation of certain mandatory revocations. Where revocation is mandatory pursuant to subparagraph five of
this paragraph for a conviction of a violation of subdivision five of section eleven hundred ninety-two of this article, such revocation shall be issued only by the commissioner and shall be applicable only to that portion of the holder`s driver`s license or privilege which permits the operation of commercial motor vehicles, and the commissioner shall immediately issue a license, other than a commercial driver`s license, to such person provided that such person is otherwise eligible to receive such license and further provided that issuing a license to such person does not create a substantial traffic safety hazard. * (c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner. (2) Where a license is revoked pursuant to subparagraph two, three or eight of paragraph (b) of this subdivision for a violation of subdivision four of section eleven hundred ninety-two of this article, and where the individual does not have a driver`s license or the individual`s license was suspended at the time of conviction or youthful offender or other juvenile adjudication, the commissioner shall not issue a new license nor restore the former license for a period of six months after such individual would otherwise have become eligible to obtain a new license or to have the former license restored; provided, however, that during such delay period the commissioner may issue a restricted use license pursuant to section five hundred thirty of this chapter. (3) In no event shall a new license be issued where a person has been twice convicted of a violation of subdivision three or four of section eleven hundred ninety-two of this article or of driving while intoxicated or of driving while ability is impaired by the use of a drug where physical injury, as defined in section 10.00 of the penal law, has resulted from such offense in each instance. * NB Effective until October 1, 2005 * (c) Reissuance of licenses; restrictions. Where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner; provided, however, that in no event shall a new license be issued where a person has been twice convicted of a violation of subdivision three or four of section eleven hundred ninety-two of this article or of driving while intoxicated or of driving while ability is impaired by the use of a drug where physical injury, as defined in section 10.00 of the penal law, has resulted from such offense in each instance. * NB Effective October 1, 2005 (d) Suspension or revocation; sentencing. (1) Notwithstanding anything to the contrary contained in a certificate of relief from disabilities issued pursuant to article twenty-three of the correction law, where a suspension or revocation, other than a revocation required to be issued by the commissioner, is mandatory pursuant to paragraph (a) or (b) of this subdivision, the magistrate, justice or judge shall issue an order suspending or revoking such license upon sentencing, and the license holder shall surrender such license to the court. Except as hereinafter provided, such suspension or revocation shall take effect immediately. (2) Except where the license holder has been charged with a violation of article one hundred twenty or one hundred twenty-five of the penal law arising out of the same incident or convicted of such violation or a violation of any subdivision of section eleven hundred ninety-two of this article within the preceding five years, the judge, justice or magistrate may issue an order making said license suspension or revocation take effect twenty days after the date of sentencing. The license holder shall be given a copy of
said order permitting the continuation of driving privileges for twenty days after sentencing, if granted by the court. The court shall forward to the commissioner the certificates required in sections five hundred thirteen and five hundred fourteen of this chapter, along with a copy of any order issued pursuant to this paragraph and the license, within ninety-six hours of sentencing. (e) Special provisions. (1) Suspension pending prosecution; procedure. a. Without notice, pending any prosecution, the court shall suspend such license, where the holder has been charged with a violation of subdivision two, three or four of section eleven hundred ninety-two of this article and either (i) a violation of a felony under article one hundred twenty or one hundred twenty-five of the penal law arising out of the same incident, or (ii) has been convicted of any violation under section eleven hundred ninety-two of this article within the preceding five years. b. The suspension under the preceding clause shall occur no later than twenty days after the holder`s first appearance before the court on the charges or at the conclusion of all proceedings required for the arraignment. In order for the court to impose such suspension it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe that the holder operated a motor vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of this article and either (i) the person had been convicted of any violation under such section eleven hundred ninety-two of this article within the preceding five years; or (ii) that the holder committed a violation of a felony under article one hundred twenty or one hundred twenty-five of the penal law. At such time the holder shall be entitled to an opportunity to make a statement regarding the enumerated issues and to present evidence tending to rebut the court`s findings. Where such suspension is imposed upon a pending charge of a violation of a felony under article one hundred twenty or one hundred twenty-five of the penal law and the holder has requested a hearing pursuant to article one hundred eighty of the criminal procedure law, the court shall conduct such hearing. If upon completion of the hearing, the court fails to find that there is reasonable cause to believe that the holder committed a felony under article one hundred twenty or one hundred twenty-five of the penal law and the holder has not been previously convicted of any violation of section eleven hundred ninety-two of this article within the preceding five years the court shall promptly notify the commissioner and direct restoration of such license to the license holder unless such license is suspended or revoked pursuant to any other provision of this chapter. (2) Bail forfeiture. A license shall be suspended where the holder forfeits bail upon a charge of a violation of any subdivision of section eleven hundred ninety-two of this article. Such suspension shall not be terminated until the holder submits to the jurisdiction of the court in which the bail was forfeited. (3) Permanent disqualification from operating certain motor vehicles. a. Except as otherwise provided herein, in addition to any revocation set forth in subparagraph four or five of paragraph (b) of this subdivision, any person sentenced pursuant to subparagraph three of paragraph (d) of subdivision one of this section shall be permanently disqualified from operating any vehicle set forth in such paragraph. In addition, the commissioner shall not issue such person a license valid for the operation of any vehicle set forth therein by such person. The commissioner may waive such disqualification and prohibition hereinbefore provided after a period of five years has expired from such sentencing provided: (i) that during such five year period such person has not violated any of the provisions of section eleven hundred
ninety-two of this article or any alcohol or drug related traffic offense in this state or in any jurisdiction outside this state; (ii) that such person provides acceptable documentation to the commissioner that such person is not in need of alcohol or drug treatment or has satisfactorily completed a prescribed course of such treatment; and (iii) after such documentation is accepted, that such person is granted a certificate of relief from disabilities as provided for in section seven hundred one of the correction law by the court in which such person was last penalized pursuant to paragraph (d) of subdivision one of this section. b. Any person convicted of a violation of any subdivision of section eleven hundred ninety-two of this article while operating a commercial motor vehicle who has had a prior finding of refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of this article while operating a commercial motor vehicle or has had a prior conviction of any of the following offenses while operating a commercial motor vehicle: any violation of section eleven hundred ninety-two of this article; any violation of subdivision two of section six hundred of this chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to paragraph (a) of subdivision one of section five hundred ten-a of this chapter, shall be permanently disqualified from operating a commercial motor vehicle. The commissioner may waive such disqualification and prohibition hereinbefore provided after a period of ten years has expired from such sentence provided: (i) that during such ten year period such person has not been found to have refused a chemical test pursuant to section eleven hundred ninety-four of this article while operating a commercial motor vehicle and has not been convicted of any one of the following offenses while operating a commercial motor vehicle: any violation of section eleven hundred ninety-two of this article; any violation of subdivision two of section six hundred of this chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to paragraph (a) of subdivision one of section five hundred ten-a of this chapter; (ii) that such person provides acceptable documentation to the commissioner that such person is not in need of alcohol or drug treatment or has satisfactorily completed a prescribed course of such treatment; and (iii) after such documentation is accepted, that such person is granted a certificate of relief from disabilities as provided for in section seven hundred one of the correction law by the court in which such person was last penalized pursuant to paragraph (d) of subdivision one of this section. c. Upon a third finding of refusal and/or conviction of any of the offenses which require a permanent commercial driver`s license revocation, such permanent revocation may not be waived by the commissioner under any circumstances. (4) Youthful offenders. Where a youth is determined to be a youthful offender, following a conviction of a violation of section eleven hundred ninety-two of this article for which a license suspension or revocation is mandatory, the court shall impose such suspension or revocation as is otherwise required upon conviction and, further, shall notify the commissioner of said suspension or revocation and its finding that said violator is granted youthful offender status as is required pursuant to section five hundred thirteen of this chapter. (5) Probation. When a license to operate a motor vehicle has been revoked pursuant to this chapter, and the holder has been sentenced to a period of probation pursuant to section 65.00 of the penal law for a violation of any provision of this chapter, or any other provision of the laws of this state, and a condition of such probation is that the holder thereof not operate a motor vehicle or not apply for a license to operate a motor vehicle during the period of
such condition of probation, the commissioner may not restore such license until the period of the condition of probation has expired. (6) Application for new license. Where a license has been revoked pursuant to paragraph (b) of this subdivision, or where the holder is subject to a condition of probation as provided in subparagraph five of this paragraph, application for a new license may be made within forty-five days prior to the expiration of such minimum period of revocation or condition of probation, whichever expires last. * (7) Suspension pending prosecution; excessive blood alcohol content. a. Except as provided in clause a-1 of this subparagraph, a court shall suspend a driver`s license, pending prosecution, of any person charged with a violation of subdivision two or three of section eleven hundred ninety-two of this article who, at the time of arrest, is alleged to have had .08 of one percent or more by weight of alcohol in such driver`s blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to subdivision two or three of section eleven hundred ninety-four of this article. a-1. A court shall suspend a class DJ or MJ learner`s permit or a class DJ or MJ driver`s license, pending prosecution, of any person who has been charged with a violation of subdivision one, two and/or three of section eleven hundred ninety-two of this article. b. The suspension occurring under clause a of this subparagraph shall occur no later than at the conclusion of all proceedings required for the arraignment and the suspension occurring under clause a-1 of this subparagraph shall occur immediately after the holder`s first appearance before the court on the charge which shall, whenever possible, be the next regularly scheduled session of the court after the arrest or at the conclusion of all proceedings required for the arraignment; provided, however, that if the results of any test administered pursuant to section eleven hundred ninety-four of this article are not available within such time period, the complainant police officer or other public servant shall transmit such results to the court at the time they become available, and the court shall, as soon as practicable following the receipt of such results and in compliance with the requirements of this subparagraph, suspend such license. In order for the court to impose such suspension it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe either that (a) the holder operated a motor vehicle while such holder had .08 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person`s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article or (b) the person was the holder of a class DJ or MJ learner`s permit or a class DJ or MJ driver`s license and operated a motor vehicle while such holder was in violation of subdivision one, two and/or three of section eleven hundred ninety-two of this article. At the time of such license suspension the holder shall be entitled to an opportunity to make a statement regarding these two issues and to present evidence tending to rebut the court`s findings. c. Nothing contained in this subparagraph shall be construed to prohibit or limit a court from imposing any other suspension pending prosecution required or permitted by law. d. Notwithstanding any contrary provision of this chapter, if any suspension occurring under this subparagraph has been in effect for a period of thirty days, the holder may be issued a conditional license, in accordance with section eleven hundred ninety-six of this article, provided the holder of such license is otherwise eligible to receive such conditional license. The commissioner shall prescribe by regulation the procedures for the issuance of such conditional license. e. If the court finds that the
suspension imposed pursuant to this subparagraph will result in extreme hardship, the court must issue such suspension, but may grant a hardship privilege, which shall be issued on a form prescribed by the commissioner. For the purposes of this clause, "extreme hardship" shall mean the inability to obtain alternative means of travel to or from the licensee`s employment, or to or from necessary medical treatment for the licensee or a member of the licensee`s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee`s school, college or university if such travel is necessary for the completion of the educational degree or certificate. The burden of proving extreme hardship shall be on the licensee who may present material and relevant evidence. A finding of extreme hardship may not be based solely upon the testimony of the licensee. In no event shall arraignment be adjourned or otherwise delayed more than three business days solely for the purpose of allowing the licensee to present evidence of extreme hardship. The court shall set forth upon the record, or otherwise set forth in writing, the factual basis for such finding. The hardship privilege shall permit the operation of a vehicle only for travel to or from the licensee`s employment, or to or from necessary medical treatment for the licensee or a member of the licensee`s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee`s school, college or university if such travel is necessary for the completion of the educational degree or certificate. * NB Repealed October 1, 2005 (f) Notice of charges to parent or guardian. Notwithstanding the provisions of subdivision two of section eighteen hundred seven of this chapter, upon the first scheduled appearance of any person under eighteen years of age who resides within the household of his or her parent or guardian upon a charge of a violation of subdivision one, two and/or three of section eleven hundred ninety-two of this article, the local criminal court before which such first appearance is scheduled shall forthwith transmit written notice of such appearance or failure to make such appearance to the parent or guardian of such minor person; provided, however, that if an arraignment and conviction of such person follows such appearance upon the same day, or in case such person waives arraignment and enters a plea of guilty to the offense as charged in accordance with the provisions of section eighteen hundred five of this chapter, transmittal of notice of his or her conviction as provided in section five hundred fourteen of this chapter shall be sufficient and the notice required by this paragraph need not be given; provided further that the failure of a local criminal court to transmit the notice required by this paragraph shall in no manner affect the validity of a conviction subsequently obtained. S 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest. Notwithstanding the provisions of section 140.10 of the criminal procedure law, a police officer may, without a warrant, arrest a person, in case of a violation of subdivision one of section eleven hundred ninety-two of this article, if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer`s presence, when the officer has reasonable cause to believe that the violation was committed by such person. (b) Field testing. Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the
manner set forth in subdivision two of this section. 2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer: (1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; or having reasonable grounds to believe such person to have been operating in violation of section eleven hundred ninety-two-a of this article and within two hours after the stop of such person for any such violation, (2) within two hours after a breath test, as provided in paragraph (b) of subdivision one of this section, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member; (3) for the purposes of this paragraph, "reasonable grounds" to believe that a person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision. Such circumstances may include any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident; or (4) notwithstanding any other provision of law to the contrary, no person under the age of twenty-one shall be arrested for an alleged violation of section eleven hundred ninety-two-a of this article. However, a person under the age of twenty-one for whom a chemical test is authorized pursuant to this paragraph may be temporarily detained by the police solely for the purpose of requesting or administering such chemical test whenever arrest without a warrant for a petty offense would be authorized in accordance with the provisions of section 140.10 of the criminal procedure law or paragraph (a) of subdivision one of this section. (b) Report of refusal. (1) If: (A) such person having been placed under arrest; or (B) after a breath test indicates the presence of alcohol in the person`s system; or (C) with regard to a person under the age of twenty-one, there are reasonable grounds to believe that such person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article; and having thereafter been requested to submit to such chemical test and having been informed that the person`s license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked, or, for operators under the age of twenty-one for whom there are reasonable grounds to believe that such operator has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article, shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical test or any portion thereof, unless a court order has been granted pursuant to
subdivision three of this section, the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made. Such report may be verified by having the report sworn to, or by affixing to such report a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report. (2) The report of the police officer shall set forth reasonable grounds to believe such arrested person or such detained person under the age of twenty-one had been driving in violation of any subdivision of section eleven hundred ninety-two or eleven hundred ninety-two-a of this article, that said person had refused to submit to such chemical test, and that no chemical test was administered pursuant to the requirements of subdivision three of this section. The report shall be presented to the court upon arraignment of an arrested person, provided, however, in the case of a person under the age of twenty-one, for whom a test was authorized pursuant to the provisions of subparagraph two or three of paragraph (a) of this subdivision, and who has not been placed under arrest for a violation of any of the provisions of section eleven hundred ninety-two of this article, such report shall be forwarded to the commissioner within forty-eight hours in a manner to be prescribed by the commissioner, and all subsequent proceedings with regard to refusal to submit to such chemical test by such person shall be as set forth in subdivision three of section eleven hundred ninety-four-a of this article. (3) For persons placed under arrest for a violation of any subdivision of section eleven hundred ninety-two of this article, the license or permit to drive and any non-resident operating privilege shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided in paragraph (c) of this subdivision. Copies of such report must be transmitted by the court to the commissioner and such transmittal may not be waived even with the consent of all the parties. Such report shall be forwarded to the commissioner within forty-eight hours of such arraignment. (4) The court or the police officer, in the case of a person under the age of twenty-one alleged to be driving after having consumed alcohol, shall provide such person with a scheduled hearing date, a waiver form, and such other information as may be required by the commissioner. If a hearing, as provided for in paragraph (c) of this subdivision, or subdivision three of section eleven hundred ninety-four-a of this article, is waived by such person, the commissioner shall immediately revoke the license, permit, or non-resident operating privilege, as of the date of receipt of such waiver in accordance with the provisions of paragraph (d) of this subdivision. (c) Hearings. Any person whose license or permit to drive or any non-resident driving privilege has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commissioner. If the department fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the license, permit to drive or non-resident operating privilege of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of section eleven hundred ninety-two of this article; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion
thereof, would result in the immediate suspension and subsequent revocation of such person`s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hearing, the hearing officer, acting on behalf of the commissioner finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege in accordance with the provisions of paragraph (d) of this subdivision. A person who has had a license or permit to drive or non-resident operating privilege suspended or revoked pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of this chapter. Any person may waive the right to a hearing under this section. Failure by such person to appear for the scheduled hearing shall constitute a waiver of such hearing, provided, however, that such person may petition the commissioner for a new hearing which shall be held as soon as practicable. (d) Sanctions. (1) Revocations. a. Any license which has been revoked pursuant to paragraph (c) of this subdivision shall not be restored for at least six months after such revocation, nor thereafter, except in the discretion of the commissioner. However, no such license shall be restored for at least one year after such revocation, nor thereafter except in the discretion of the commissioner, in any case where the person has had a prior revocation resulting from refusal to submit to a chemical test, or has been convicted of or found to be in violation of any subdivision of section eleven hundred ninety-two or section eleven hundred ninety-two-a of this article not arising out of the same incident, within the five years immediately preceding the date of such revocation; provided, however, a prior finding that a person under the age of twenty-one has refused to submit to a chemical test pursuant to subdivision three of section eleven hundred ninety-four-a of this article shall have the same effect as a prior finding of a refusal pursuant to this subdivision solely for the purpose of determining the length of any license suspension or revocation required to be imposed under any provision of this article, provided that the subsequent offense or refusal is committed or occurred prior to the expiration of the retention period for such prior refusal as set forth in paragraph (k) of subdivision one of section two hundred one of this chapter. b. Any license which has been revoked pursuant to paragraph (c) of this subdivision or pursuant to subdivision three of section eleven hundred ninety-four-a of this article, where the holder was under the age of twenty-one years at the time of such refusal, shall not be restored for at least one year, nor thereafter, except in the discretion of the commissioner. Where such person under the age of twenty-one years has a prior finding, conviction or youthful offender adjudication resulting from a violation of section eleven hundred ninety-two or section eleven hundred ninety-two-a of this article, not arising from the same incident, such license shall not be restored for at least one year or until such person reaches the age of twenty-one years, whichever is the greater period of time, nor thereafter, except in the discretion of the commissioner. c. Any license which has been revoked pursuant to paragraph (c) of this subdivision based upon a finding of refusal to submit to a chemical test while operating a commercial motor vehicle shall not be restored for at least one year after such revocation, nor thereafter, except in the discretion of the commissioner, but shall not be
restored for at least three years after such revocation, nor thereafter, except in the discretion of the commissioner, when the commercial motor vehicle was transporting hazardous materials at the time of such refusal. However, such person shall be permanently disqualified from operating a commercial motor vehicle in any case where the holder has a prior finding of refusal to submit to a chemical test pursuant to this section while operating a commercial motor vehicle or has a prior conviction of any of the following offenses while operating a commercial motor vehicle: any violation of section eleven hundred ninety-two of this article; any violation of subdivision two of section six hundred of this chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to paragraph (a) of subdivision one of section five hundred ten-a of this chapter. Provided that the commissioner may waive such permanent revocation after a period of ten years has expired from such revocation provided: (i) that during such ten year period such person has not been found to have refused a chemical test pursuant to this section while operating a commercial motor vehicle and has not been convicted of any one of the following offenses while operating a commercial motor vehicle: any violation of section eleven hundred ninety-two of this article; refusal to submit to a chemical test pursuant to this section; any violation of subdivision two of section six hundred of this chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to paragraph (a) of subdivision one of section five hundred ten-a of this chapter; (ii) that such person provides acceptable documentation to the commissioner that such person is not in need of alcohol or drug treatment or has satisfactorily completed a prescribed course of such treatment; and (iii) after such documentation is accepted, that such person is granted a certificate of relief from disabilities as provided for in section seven hundred one of the correction law by the court in which such person was last penalized. d. Upon a third finding of refusal and/or conviction of any of the offenses which require a permanent commercial driver`s license revocation, such permanent revocation may not be waived by the commissioner under any circumstances. (2) Civil penalties. Except as otherwise provided, any person whose license, permit to drive, or any non-resident operating privilege is revoked pursuant to the provisions of this section shall also be liable for a civil penalty in the amount of three hundred dollars except that if such revocation is a second or subsequent revocation pursuant to this section issued within a five year period, or such person has been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article within the past five years not arising out of the same incident, the civil penalty shall be in the amount of seven hundred fifty dollars. Any person whose license is revoked pursuant to the provisions of this section based upon a finding of refusal to submit to a chemical test while operating a commercial motor vehicle shall also be liable for a civil penalty of three hundred fifty dollars except that if such person has previously been found to have refused a chemical test pursuant to this section while operating a commercial motor vehicle or has a prior conviction of any of the following offenses while operating a commercial motor vehicle: any violation of section eleven hundred ninety-two of this article; any violation of subdivision two of section six hundred of this chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to paragraph (a) of subdivision one of section five hundred ten-a of this chapter, then the civil penalty shall be seven hundred fifty dollars. No new driver`s license or permit shall be issued, or non-resident operating privilege restored to such
person unless such penalty has been paid. All penalties collected by the department pursuant to the provisions of this section shall be the property of the state and shall be paid into the general fund of the state treasury. (3) Effect of rehabilitation program. No period of revocation arising out of this section may be set aside by the commissioner for the reason that such person was a participant in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article. (e) Regulations. The commissioner shall promulgate such rules and regulations as may be necessary to effectuate the provisions of subdivisions one and two of this section. (f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal. (g) Results. Upon the request of the person who was tested, the results of such test shall be made available to such person. 3. Compulsory chemical tests. (a) Court ordered chemical tests. Notwithstanding the provisions of subdivision two of this section, no person who operates a motor vehicle in this state may refuse to submit to a chemical test of one or more of the following: breath, blood, urine or saliva, for the purpose of determining the alcoholic and/or drug content of the blood when a court order for such chemical test has been issued in accordance with the provisions of this subdivision. (b) When authorized. Upon refusal by any person to submit to a chemical test or any portion thereof as described above, the test shall not be given unless a police officer or a district attorney, as defined in subdivision thirty-two of section 1.20 of the criminal procedure law, requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content of the person`s blood upon a finding of reasonable cause to believe that: (1) such person was the operator of a motor vehicle and in the course of such operation a person other than the operator was killed or suffered serious physical injury as defined in section 10.00 of the penal law; and (2) a. either such person operated the vehicle in violation of any subdivision of section eleven hundred ninety-two of this article, or b. a breath test administered by a police officer in accordance with paragraph (b) of subdivision one of this section indicates that alcohol has been consumed by such person; and (3) such person has been placed under lawful arrest; and (4) such person has refused to submit to a chemical test or any portion thereof, requested in accordance with the provisions of paragraph (a) of subdivision two of this section or is unable to give consent to such a test. (c) Reasonable cause; definition. For the purpose of this subdivision "reasonable cause" shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of section eleven hundred ninety-two of this article. Such circumstances may include, but are not limited to: evidence that the operator was operating a motor vehicle in violation of any provision of this article or any other moving violation at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; the existence of an open container containing an alcoholic beverage in or around the vehicle driven by the operator; any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle while impaired by the consumption of alcohol or drugs or intoxicated at the time of the incident. (d) Court order; procedure. (1) An
application for a court order to compel submission to a chemical test or any portion thereof, may be made to any supreme court justice, county court judge or district court judge in the judicial district in which the incident occurred, or if the incident occurred in the city of New York before any supreme court justice or judge of the criminal court of the city of New York. Such application may be communicated by telephone, radio or other means of electronic communication, or in person. (2) The applicant must provide identification by name and title and must state the purpose of the communication. Upon being advised that an application for a court order to compel submission to a chemical test is being made, the court shall place under oath the applicant and any other person providing information in support of the application as provided in subparagraph three of this paragraph. After being sworn the applicant must state that the person from whom the chemical test was requested was the operator of a motor vehicle and in the course of such operation a person, other than the operator, has been killed or seriously injured and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a motor vehicle in violation of any subdivision of section eleven hundred ninety-two of this article and, after being placed under lawful arrest such person refused to submit to a chemical test or any portion thereof, in accordance with the provisions of this section or is unable to give consent to such a test or any portion thereof. The applicant must make specific allegations of fact to support such statement. Any other person properly identified, may present sworn allegations of fact in support of the applicant`s statement. (3) Upon being advised that an oral application for a court order to compel a person to submit to a chemical test is being made, a judge or justice shall place under oath the applicant and any other person providing information in support of the application. Such oath or oaths and all of the remaining communication must be recorded, either by means of a voice recording device or verbatim stenographic or verbatim longhand notes. If a voice recording device is used or a stenographic record made, the judge must have the record transcribed, certify to the accuracy of the transcription and file the original record and transcription with the court within seventy-two hours of the issuance of the court order. If the longhand notes are taken, the judge shall subscribe a copy and file it with the court within twenty-four hours of the issuance of the order. (4) If the court is satisfied that the requirements for the issuance of a court order pursuant to the provisions of paragraph (b) of this subdivision have been met, it may grant the application and issue an order requiring the accused to submit to a chemical test to determine the alcoholic and/or drug content of his blood and ordering the withdrawal of a blood sample in accordance with the provisions of paragraph (a) of subdivision four of this section. When a judge or justice determines to issue an order to compel submission to a chemical test based on an oral application, the applicant therefor shall prepare the order in accordance with the instructions of the judge or justice. In all cases the order shall include the name of the issuing judge or justice, the name of the applicant, and the date and time it was issued. It must be signed by the judge or justice if issued in person, or by the applicant if issued orally. (5) Any false statement by an applicant or any other person in support of an application for a court order shall subject such person to the offenses for perjury set forth in article two hundred ten of the penal law. (6) The chief administrator of the courts shall establish a schedule to provide that a sufficient number of judges or justices will be available in each judicial district to hear oral applications for court orders as permitted by
this section. (e) Administration of compulsory chemical test. An order issued pursuant to the provisions of this subdivision shall require that a chemical test to determine the alcoholic and/or drug content of the operator`s blood must be administered. The provisions of paragraphs (a), (b) and (c) of subdivision four of this section shall be applicable to any chemical test administered pursuant to this section. 4. Testing procedures. (a) Persons authorized to withdraw blood; immunity; testimony. (1) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcoholic or drug content therein: (i) a physician, a registered professional nurse or a registered physician`s assistant; or (ii) under the supervision and at the direction of a physician: a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law. This limitation shall not apply to the taking of a urine, saliva or breath specimen. (2) No person entitled to withdraw blood pursuant to subparagraph one of this paragraph or hospital employing such person, and no other employer of such person shall be sued or held liable for any act done or omitted in the course of withdrawing blood at the request of a police officer pursuant to this section. (3) Any person who may have a cause of action arising from the withdrawal of blood as aforesaid, for which no personal liability exists under subparagraph two of this paragraph, may maintain such action against the state if any person entitled to withdraw blood pursuant to paragraph (a) hereof acted at the request of a police officer employed by the state, or against the appropriate political subdivision of the state if such person acted at the request of a police officer employed by a political subdivision of the state. No action shall be maintained pursuant to this subparagraph unless notice of claim is duly filed or served in compliance with law. (4) Notwithstanding the foregoing provisions of this paragraph an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to subparagraph one of this paragraph or hospital employing such person for whose act or omission the state or the political subdivision has been held liable under this paragraph to recover damages, not exceeding the amount awarded to the claimant, that may have been sustained by the state or the political subdivision by reason of gross negligence or bad faith on the part of such person. (5) The testimony of any person other than a physician, entitled to withdraw blood pursuant to subparagraph one of this paragraph, in respect to any such withdrawal of blood made by such person may be received in evidence with the same weight, force and effect as if such withdrawal of blood were made by a physician. (6) The provisions of subparagraphs two, three and four of this paragraph shall also apply with regard to any person employed by a hospital as security personnel for any act done or omitted in the course of withdrawing blood at the request of a police officer pursuant to a court order in accordance with subdivision three of this section. (b) Right to additional test. The person tested shall be permitted to choose a physician to administer a chemical test in addition to the one administered at the direction of the police officer. (c) Rules and regulations. The department of health shall issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person`s blood, urine, breath or saliva and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person`s blood, urine, breath or
saliva. If the analyses were made by an individual possessing a permit issued by the department of health, this shall be presumptive evidence that the examination was properly given. The provisions of this paragraph do not prohibit the introduction as evidence of an analysis made by an individual other than a person possessing a permit issued by the department of health. S 1194-a. Driving after having consumed alcohol; under twenty-one; procedure. 1. Chemical test report and hearing. (a) Whenever a chemical test of the breath, blood, urine or saliva of an operator who is under the age of twenty-one indicates that such person has operated a motor vehicle in violation of section eleven hundred ninety-two-a of this article, and such person is not charged with violating any subdivision of section eleven hundred ninety-two arising out of the same incident, the police officer who administered the test shall forward a report of the results of such test to the department within twenty-four hours of the time when such results are available in a manner prescribed by the commissioner, and the operator shall be given a hearing notice as provided in subdivision one-a of this section, to appear before a hearing officer in the county where the chemical test was administered, or in an adjoining county under such circumstances as prescribed by the commissioner, on a date to be established in accordance with a schedule promulgated by the commissioner. Such hearing shall occur within thirty days of, but not less than forty-eight hours from, the date that the chemical test was administered, provided, however, where the commissioner determines, based upon the availability of hearing officers and the anticipated volume of hearings at a particular location, that the scheduling of such hearing within thirty days would impair the timely scheduling or conducting of other hearings pursuant to this chapter, such hearing shall be scheduled at the next hearing date for such particular location. When providing the operator with such hearing notice, the police officer shall also give to the operator, and shall, prior to the commencement of the hearing, provide to the department, copies of the following reports, documents and materials: any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity. The report of the police officer shall be verified by having the report sworn to, or by affixing to such report a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute verification of the report. (b) Every person under the age of twenty-one who is alleged to have operated a motor vehicle after having consumed alcohol as set forth in section eleven hundred ninety-two-a of this article, and who is not charged with violating any subdivision of section eleven hundred ninety-two of this article arising out of the same incident, is entitled to a hearing before a hearing officer in accordance with the provisions of this section. Unless otherwise provided by law, the license or permit to drive or any non-resident operating privilege of such person shall not be suspended or revoked prior to the scheduled date for such hearing. (i) The hearing shall be limited to the following issues: (1) did such person operate the motor vehicle; (2) was a valid request to submit to a chemical test made by the police officer in accordance with the provisions of section eleven hundred ninety-four of this article; (3) was such
person less than twenty-one years of age at the time of operation of the motor vehicle; (4) was the chemical test properly administered in accordance with the provisions of section eleven hundred ninety-four of this article; (5) did the test find that such person had driven after having consumed alcohol as defined in section eleven hundred ninety-two-a of this article; and (6) did the police officer make a lawful stop of such person. The burden of proof shall be on the police officer to prove each of these issues by clear and convincing evidence. (ii) Every person who is entitled to a hearing pursuant to this subdivision has the right to be present at the hearing; the right to be represented by attorney, or in the hearing officer`s discretion, by any other person the operator chooses; the right to receive and review discovery materials as provided in this subdivision; the right not to testify; the right to present evidence and witnesses in his own behalf, the right to cross examine adverse witnesses, and the right to appeal from an adverse determination in accordance with article three-A of this chapter. Any person representing the operator must conform to the standards of conduct required of attorneys appearing before state courts, and failure to conform to these standards will be grounds for declining to permit his continued appearance in the hearing. (iii) Hearings conducted pursuant to this subdivision shall be in accordance with this subdivision and with the provisions applicable to the adjudication of traffic infractions pursuant to the following provisions of part 124 of title fifteen of the codes, rules and regulations of the state of New York: paragraph (b) of section 124.1 regarding the opening statement; paragraph (b) of section 124.2 regarding the right to representation and to remain silent and paragraphs (a) through (e) of section 124.4 regarding the conduct of the hearing, procedure and recusal; provided, however, that nothing contained in this subparagraph shall be deemed to preclude a hearing officer from changing the order of a hearing conducted pursuant to this subdivision as justice may require and for good cause shown. (iv) The rules governing receipt of evidence in a court of law shall not apply in a hearing conducted pursuant to this subdivision except as follows: (1) on the merits of the charge, and whether or not a party objects, the hearing officer shall exclude from consideration the following: a privileged communication; evidence which, for constitutional reasons, would not be admissible in a court of law; evidence of prior misconduct, incompetency or illness, except where such evidence would be admissible in a court of law; evidence which is irrelevant or immaterial; (2) no negative inference shall be drawn from the operator`s exercising the right not to testify. (v) If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds all of the issues set forth in this subdivision in the affirmative, the hearing officer shall suspend or revoke the license or permit to drive or non-resident operating privilege of such person in accordance with the time periods set forth in subdivision two of section eleven hundred ninety-three of this article. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds any of said issues in the negative, the hearing officer must find that the operator did not drive after having consumed alcohol. (vi) A person who has had a license or permit to drive or non-resident operating privilege suspended or revoked pursuant to the provisions of this section may appeal the finding of the hearing officer in accordance with the provisions of article three-A of this chapter. (c) Unless an adjournment of the hearing date has been granted, upon the operator`s failure to appear for a scheduled hearing, the commissioner shall suspend the license or permit to drive or non-resident operating privilege until the operator petitions the commissioner and a
rescheduled hearing is conducted, provided, however, the commissioner shall restore such person`s license or permit to drive or non-resident operating privilege if such rescheduled hearing is adjourned at the request of a person other than the operator. Requests for adjournments shall be made and determined in accordance with regulations promulgated by the commissioner. If such a request by the operator for an adjournment is granted, the commissioner shall notify the operator of the rescheduled hearing, which shall be scheduled for the next hearing date. If a second or subsequent request by the operator for an adjournment is granted, the operator`s license or permit to drive or non-resident operating privilege may be suspended pending the hearing at the time such adjournment is granted; provided, however, that the records of the department or the evidence already admitted furnishes reasonable grounds to believe such suspension is necessary to prevent continuing violations or a substantial traffic safety hazard; and provided further, that such hearing shall be scheduled for the next hearing date. If a police officer does not appear for a hearing, the hearing officer shall have the authority to dismiss the charge. Any person may waive the right to a hearing under this subdivision, in a form and manner prescribed by the commissioner, and may enter an admission of guilt, in person or by mail, to the charge of operating a motor vehicle in violation of section eleven hundred ninety-two-a of this article. Such admission of guilt shall have the same force and effect as a finding of guilt entered following a hearing conducted pursuant to this subdivision. 1-a. Hearing notice. The hearing notice issued to an operator pursuant to subdivision one of this section shall be in a form as prescribed by the commissioner. In addition to containing information concerning the time, date and location of the hearing, and such other information as the commissioner deems appropriate, such hearing notice shall also contain the following information: the date, time and place of the offense charged; the procedures for requesting an adjournment of a scheduled hearing as provided in this section, the operator`s right to a hearing conducted pursuant to this section and the right to waive such hearing and plead guilty, either in person or by mail, to the offense charged. 2. Civil penalty. Unless otherwise provided, any person whose license, permit to drive, or any non-resident operating privilege is suspended or revoked pursuant to the provisions of this section shall also be liable for a civil penalty in the amount of one hundred twenty-five dollars, which shall be distributed in accordance with the provisions of subdivision nine of section eighteen hundred three of this chapter. 3. Refusal report and hearing. (a) Any person under the age of twenty-one who is suspected of operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this chapter, and who is not charged with violating any subdivision of section eleven hundred ninety-two of this article arising out of the same incident, and who has been requested to submit to a chemical test pursuant to paragraph (a) of subdivision two of section eleven hundred ninety-four of this article and after having been informed that his license or permit to drive and any non-resident operating privilege shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not there is a finding of driving after having consumed alcohol, and such person refuses to submit to such chemical test or any portion thereof, shall be entitled to a hearing in accordance with a schedule promulgated by the commissioner, and such hearing shall occur within thirty days of, but not less than forty-eight hours from, the date of such refusal, provided, however, where the commissioner determines, based upon the availability of hearing officers and the anticipated volume of hearings at a
particular location, that the scheduling of such hearing within thirty days would impair the timely scheduling or conducting of other hearings pursuant to this chapter, such hearing shall be scheduled at the next hearing date for such particular location. (b) Unless an adjournment of the hearing date has been granted, upon the operator`s failure to appear for a scheduled hearing, the commissioner shall suspend the license or permit to drive or non-resident operating privilege until the operator petitions the commissioner and a rescheduled hearing is conducted, provided, however, the commissioner shall restore such person`s license or permit to drive or non-resident operating privilege if such rescheduled hearing is adjourned at the request of a person other than the operator. Requests for adjournments shall be made and determined in accordance with regulations promulgated by the commissioner. If such a request by the operator for an adjournment is granted, the commissioner shall notify the operator of the rescheduled hearing, which shall be scheduled for the next hearing date. If a second or subsequent request by the operator for an adjournment is granted, the operator`s license or permit to drive or non-resident operating privilege may be suspended pending the hearing at the time such adjournment is granted; provided, however, that the records of the department or the evidence already admitted furnishes reasonable grounds to believe such suspension is necessary to prevent continuing violations or a substantial traffic safety hazard; and provided further, that such hearing shall be scheduled for the next hearing date. If a police officer does not appear for a hearing, the hearing officer shall have the authority to dismiss the charge. Any person may waive the right to a hearing under this subdivision. (c) The hearing on the refusal to submit to a chemical test pursuant to this subdivision shall be limited to the following issues: (1) was a valid request to submit to a chemical test made by the police officer in accordance with the provisions of section eleven hundred ninety-four of this article; (2) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the revocation of such person`s license or permit to drive or nonresident operating privilege, whether or not such person is found to have operated a motor vehicle after having consumed alcohol; (3) did such person refuse to submit to such chemical test or any portion thereof; (4) did such person operate the motor vehicle; (5) was such person less than twenty-one years of age at the time of operation of the motor vehicle; (6) did the police officer make a lawful stop of such person. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one said issue in the negative, the hearing officer shall not revoke the operator`s license or permit to drive or non-resident operating privilege and shall immediately terminate any outstanding suspension of the operator`s license, permit to drive or non-resident operating privilege arising from such refusal. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds all of the issues in the affirmative, such hearing officer shall immediately revoke the license or permit to drive or any non-resident operating privilege in accordance with the provisions of paragraph (d) of subdivision two of section eleven hundred ninety-four of this article. A person who has had a license or permit to drive or non-resident operating privilege suspended or revoked pursuant to the provisions of this section may appeal the findings of the hearing officer in accordance with the provisions of article three-A of this chapter. S 1195. Chemical test evidence. 1. Admissibility. Upon the trial of any action or proceeding arising out of actions alleged to have been committed by any person
arrested for a violation of any subdivision of section eleven hundred ninety-two of this article, the court shall admit evidence of the amount of alcohol or drugs in the defendant`s blood as shown by a test administered pursuant to the provisions of section eleven hundred ninety-four of this article. 2. Probative value. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person arrested for violation of section eleven hundred ninety-two of this article: (a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person`s blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition; (b) Evidence that there was more than .05 of one per centum but less than .07 of one per centum by weight of alcohol in such person`s blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be relevant evidence, but shall not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol; and (c) Evidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person`s blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol. 3. Suppression. A defendant who has been compelled to submit to a chemical test pursuant to the provisions of subdivision three of section eleven hundred ninety-four of this article may move for the suppression of such evidence in accordance with article seven hundred ten of the criminal procedure law on the grounds that the order was obtained and the test administered in violation of the provisions of such subdivision or any other applicable law. S 1196. Alcohol and drug rehabilitation program. 1. Program establishment. There is hereby established an alcohol and drug rehabilitation program within the department of motor vehicles. The commissioner shall establish, by regulation, the instructional and rehabilitative aspects of the program. Such program shall consist of at least fifteen hours and include, but need not be limited to, classroom instruction in areas deemed suitable by the commissioner. No person shall be required to attend or participate in such program or any aspect thereof for a period exceeding eight months except upon the recommendation of the department of mental hygiene or appropriate health officials administering the program on behalf of a municipality. 2. Curriculum. The form, content and method of presentation of the various aspects of such program shall be established by the commissioner. In the development of the form, curriculum and content of such program, the commissioner may consult with the commissioner of mental health, the director of the division of alcoholism and alcohol abuse, the director of the division of substance abuse services and any other state department or agency and request and receive assistance from them. The commissioner is also authorized to develop more than one curriculum and course content for such program in order to meet the varying rehabilitative needs of the participants. 3. Where available. A course in such program shall be available in at least every county in the state, except where the commissioner determines that there is not a sufficient number of alcohol or drug-related traffic offenses in a county to mandate the establishment of said course, and that provisions be made for the residents of said county to attend a course in another county where a course exists. 4. Eligibility. Participation in the program shall be limited to those persons convicted of alcohol or
drug-related traffic offenses or persons who have been adjudicated youthful offenders for alcohol or drug-related traffic offenses, or persons found to have been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article, who choose to participate and who satisfy the criteria and meet the requirements for participation as established by this section and the regulations promulgated thereunder; provided, however, in the exercise of discretion, the judge imposing sentence may prohibit the defendant from enrolling in such program. The commissioner or deputy may exercise discretion, to reject any person from participation referred to such program and nothing herein contained shall be construed as creating a right to be included in any course or program established under this section. In addition, no person shall be permitted to take part in such program if, during the five years immediately preceding commission of an alcohol or drug-related traffic offense or a finding of a violation of section eleven hundred ninety-two-a of this article, such person has participated in a program established pursuant to this article or been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article other than a violation committed prior to November first, nineteen hundred eighty-eight, for which such person did not participate in such program. In the exercise of discretion, the commissioner or a deputy shall have the right to expel any participant from the program who fails to satisfy the requirements for participation in such program or who fails to satisfactorily participate in or attend any aspect of such program. Notwithstanding any contrary provisions of this chapter, satisfactory participation in and completion of a course in such program shall result in the termination of any sentence of imprisonment that may have been imposed by reason of a conviction therefor; provided, however, that nothing contained in this section shall delay the commencement of such sentence. 5. Effect of completion. Except as provided in subparagraph nine of paragraph (b) of subdivision two of section eleven hundred ninety-three or in subparagraph three of paragraph (d) of subdivision two of section eleven hundred ninety-four of this article, upon successful completion of a course in such program as certified by its administrator, a participant may apply to the commissioner on a form provided for that purpose, for the termination of the suspension or revocation order issued as a result of the participant`s conviction which caused the participation in such course. In the exercise of discretion, upon receipt of such application, and upon payment of any civil penalties for which the applicant may be liable, the commissioner is authorized to terminate such order or orders and return the participant`s license or reinstate the privilege of operating a motor vehicle in this state. However, the commissioner shall not issue any new license nor restore any license where said issuance of restoral is prohibited by subdivision two of section eleven hundred ninety-three of this article. 6. Fees. The commissioner shall establish a schedule of fees to be paid by or on behalf of each participant in the program, and may, from time to time, modify same. Such fees shall defray the ongoing expenses of the program. Provided, however, that pursuant to an agreement with the department a municipality, department thereof, or other agency may conduct a course in such program with all or part of the expense of such course and program being borne by such municipality, department or agency. In no event shall such fee be refundable, either for reasons of the participant`s withdrawal or expulsion from such program or otherwise. 7. Conditional license. (a) Notwithstanding any inconsistent provision of this chapter, participants in the program, except those penalized under paragraph (d) of subdivision one of section eleven
hundred ninety-three of this article for any violation of subdivision two, three, or four of section eleven hundred ninety-two of this article, may, in the commissioner`s discretion, be issued a conditional driver`s license, or if the holder of a license issued by another jurisdiction valid for operation in this state, a conditional privilege of operating a motor vehicle in this state. Such a conditional license or privilege shall be valid only for use, by the holder thereof, (1) enroute to and from the holder`s place of employment, (2) if the holder`s employment requires the operation of a motor vehicle then during the hours thereof, (3) enroute to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which his attendance is required, (4) enroute to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (5) to or from court ordered probation activities, (6) to and from a motor vehicle office for the transaction of business relating to such license or program, (7) for a three hour consecutive daytime period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation, (8) enroute to and from a medical examination or treatment as part of a necessary medical treatment for such participant or member of the participant`s household, as evidenced by a written statement to that effect from a licensed medical practitioner, and (9) enroute to and from a place, including a school, at which a child or children of the holder are cared for on a regular basis and which is necessary for the holder to maintain such holder`s employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training. Such license or privilege shall remain in effect during the term of the suspension or revocation of the participant`s license or privilege unless earlier revoked by the commissioner. (b) The conditional license or privilege described in paragraph (a) of this subdivision shall be in a form prescribed by the commissioner, and shall have indicated thereon the conditions imposed by such paragraph. (c) Upon receipt of a conditional license issued pursuant to this section, any order issued by a judge, justice or magistrate pursuant to paragraph (c) of subdivision two of section eleven hundred ninety-three of this article shall be surrendered to the department. (d) The commissioner shall require applicants for a conditional license to pay a fee of seventy-five dollars for processing costs. Such fees assessed under this subdivision shall be paid to the commissioner for deposit to the general fund and shall be in addition to any fees established by the commissioner pursuant to subdivision six of this section to defray the costs of the alcohol and drug rehabilitation program. (e) The conditional license or privileges described in this subdivision may be revoked by the commissioner, for sufficient cause including, but not limited to, failure to register in the program, failure to attend or satisfactorily participate in the sessions, conviction of any traffic infraction other than one involving parking, stopping or standing or conviction of any alcohol or drug-related traffic offense, misdemeanor or felony. In addition, the commissioner shall have the right, after a hearing, to revoke the conditional license or privilege upon receiving notification or evidence that the offender is not attempting in good faith to accept rehabilitation. In the event of such revocation, the fee described in subdivision six of this section shall not be refunded. (f) It shall be a traffic infraction for the holder of a conditional license or privilege to operate a motor vehicle upon a public highway for any use other than those authorized pursuant to paragraph (a) of this subdivision. When a person is convicted of this
offense, the sentence of the court must be a fine of not less than two hundred dollars nor more than five hundred dollars or a term of imprisonment of not more than fifteen days or both such fine and imprisonment. Additionally, the conditional license or privileges described in this subdivision shall be revoked by the commissioner upon receiving notification from the court that the holder thereof has been convicted of this offense. (g) Any conditional license or privilege issued to a person convicted of a violation of any subdivision of section eleven hundred ninety-two of this article shall not be valid for the operation of any commercial motor vehicle or taxicab as defined in this chapter. (h) Notwithstanding any inconsistent provision of this chapter, the conditional license described in this subdivision may, pursuant to regulations established by the commissioner, be issued to a person whose license has been suspended pending prosecution pursuant to subparagraph seven of paragraph (e) of subdivision two of section eleven hundred ninety-three of this article. S 1197. Special traffic options program for driving while intoxicated. "The program", as used in this section, shall mean the special traffic options program for driving while intoxicated, a program established pursuant to this section, and approved by the commissioner of motor vehicles. 1. Program establishment. (a) Where a county establishes a special traffic options program for driving while intoxicated, pursuant to this section, it shall receive fines and forfeitures collected by any court, judge, magistrate or other officer within that county, including, where appropriate, a hearing officer acting on behalf of the commissioner,: (1) imposed for violations of subparagraphs (ii) and (iii) of paragraph (a) of subdivision two or subparagraph (i) of paragraph (a) of subdivision three of section five hundred eleven of this chapter; (2) imposed in accordance with the provisions of section eleven hundred ninety-three and civil penalties imposed pursuant to subdivision two of section eleven hundred ninety-four-a of this article, including, where appropriate, a hearing officer acting on behalf of the commissioner, from violations of sections eleven hundred ninety-two, eleven hundred ninety-two-a and findings made under section eleven hundred ninety-four-a of this article; and (3) imposed upon a conviction for: vehicular assault in the first degree, pursuant to section 120.04 of the penal law; vehicular assault in the second degree, pursuant to section 120.03 of the penal law; vehicular manslaughter in the first degree, pursuant to section 125.13 of the penal law; and vehicular manslaughter in the second degree, pursuant to section 125.12 of the penal law, as provided in section eighteen hundred three of this chapter. Upon receipt of these moneys, the county shall deposit them in a separate account entitled "special traffic options program for driving while intoxicated" and they shall be under the exclusive care, custody and control of the chief fiscal officer of each county participating in the program. (b) Expenditures from such account shall only be made pursuant to the approval of a county program by the commissioner of motor vehicles. The chief fiscal officer of each participating county shall, on a quarterly basis, forward to the commissioner a written certificate of moneys expended from such account. 2. Program organization. (a) Where a program is established by a county, it shall be organized by a coordinator for the special traffic options program for driving while intoxicated, who shall be designated by the chief executive officer of the county, if there be one, otherwise the chairman of the governing board of the county, or in the city of New York, a person designated by the mayor thereof. Where a coordinator is designated, the coordinator shall receive such salary and expenses as the board of legislators or other governing body of such county may fix and properly account for such
expenses and shall serve at the pleasure of such appointing body or officer. (b) In counties having a county traffic safety board, the chief executive officer, if there be one, otherwise the chairman of the governing board of the county or the mayor of the city of New York, may designate the chairman of the board or a member thereof as coordinator of the program. 3. Purposes. (a) The program shall provide a plan for coordination of county, town, city and village efforts to reduce alcohol-related traffic injuries and fatalities. (b) The program shall, where approved by the county board or other governing body, provide funding for such activities as the board or other body may approve, for the above-described purposes. 4. Duties of the coordinator; reports. (a) It shall be the duty of the coordinator to: (1) Render annually or at the request of the county legislature or other governing body of the county, a verified account of all moneys received and expended by the coordinator or under the coordinator`s direction and an account of other pertinent matters. (2) Submit annually or upon request of the chief fiscal officer of each county participating in the program, in such manner as may be required by law, an estimate of the funds required to carry out the purposes of this section. (3) Make an annual report to the commissioner, which shall be due on or before the first day of April of each year following the implementation of said program, and shall include the following: a. the progress, problems and other matters related to the administration of said program; and b. an assessment of the effectiveness of the program within the geographic area of the county participating therein and any and all recommendations for expanding and improving said program. (b) Any annual report shall also contain the following, in a form prescribed by the commissioner: (1) Number of arrests for violations of section eleven hundred ninety-two of this article and subdivision two of section five hundred eleven of this chapter; (2) Number and description of dispositions resulting therefrom; (3) Number of suspensions issued in the county for alleged refusals to submit to chemical tests; (4) Total fine moneys returned to the participating county in connection with the program; (5) Contemplated programs; (6) Distribution of moneys in connection with program adminstration; (7) Any other information required by the commissioner. 5. Functions of the coordinator. In addition to the duties of the coordinator as provided in subdivision four of this section, the coordinator shall perform the following functions: (a) Formulate a special traffic options program for driving while intoxicated and coordinate efforts of interested parties and agencies engaged in alcohol traffic safety, law enforcement, adjudication, rehabilitation and preventive education. (b) Receive proposals from county, town, city or village agencies or non-governmental groups for activities related to alcohol traffic safety and to submit them to the county board of legislators or other such governing body, together with a recommendation for funding of the activity if deemed appropriate. (c) Cooperate with and assist local officials within the county in the formulation and execution of alcohol traffic safety programs including enforcement, adjudication, rehabilitation and education. (d) Study alcohol traffic safety problems with the county and recommend to the appropriate legislative bodies, departments or commissions, such changes in rules, orders, regulations and existing law as the coordinator may deem advisable. (e) Promote alcohol and drug-related traffic safety education for drivers. (f) Obtain and assemble data on alcohol-related accident arrests, convictions and accidents and to analyze, study, and consolidate such data for educational, research and informational purposes. 6. County purpose and charge. The provisions of this section and expenditures made hereunder shall
be deemed a county purpose and charge. 7. The program, including a proposed operational budget, shall be submitted by each county coordinator to the commissioner for approval. The commissioner shall consider the following before approving said program: (a) The interrelationship of such program with existing drunk driving related programs in areas including, but not limited to, law enforcement, prosecution, adjudication and education. (b) Avoidance of duplication of existing programs funded or operated by either the state or any municipality including, but not limited to, the alcohol and drug rehabilitation program, established under section eleven hundred ninety-six of this article. (c) All other factors which the commissioner shall deem necessary. 8. Duties of the commissioner. (a) The commissioner shall compile the reports submitted by the county coordinators and shall issue a comprehensive report on such programs to the governor and to the legislature. (b) The commissioner shall monitor all programs to ensure satisfactory implementation in conjunction with the established program application goals. 9. Program cessation. When a participating county wishes to cease its program, the coordinator shall notify the commissioner in writing of the date of termination and all money remaining in the fund established by that county pursuant to subdivision one of this section on such date shall be transferred to the general fund of the state treasury. All fines and forfeitures collected pursuant to the provisions of this section on and after the termination date shall be disposed of in accordance with subdivision one of section eighteen hundred three of this chapter. 10. Program audit. The comptroller is authorized to conduct audits of any program established pursuant to this section for the purposes of determining compliance with the provisions of this section and with generally accepted accounting principles. * S 1198. Ignition interlock device program. 1. Scope of program. There is hereby created in this state an ignition interlock device program. The provisions of this section shall apply only to persons sentenced by a court located in the following counties: Albany, Erie, Nassau, Onondaga, Monroe, Westchester and Suffolk; except that paragraph (b) of subdivision four, subdivisions five, eight and ten of this section shall apply in all parts of the state if a vehicle has been equipped with an ignition interlock device as a condition of probation. This section shall not be construed to preclude other counties not specifically designated therein from implementing an ignition interlock device program or to prevent courts in other jurisdictions from requiring the installation of an ignition interlock device as a condition of probation. 2. Requirements. (a) In addition to any other penalties prescribed by law, the court may require that any person who has been convicted of a violation of subdivision two or three of section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which an alcohol-related violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, and who has been sentenced to a period of probation, install and maintain, as a condition of such probation, a functioning ignition interlock device in accordance with the provisions of this section; provided, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked except as provided herein. (b) Nothing contained in this section shall prohibit a court, upon application by a probation department located in any county set forth in subdivision one of this section, from modifying the conditions of probation of any person convicted of any violation set forth in paragraph (a) of this subdivision prior to the effective date of this section, to require the installation and maintenance of a functioning
ignition interlock device, and such person shall thereafter be subject to the provisions of this section. (c) Nothing contained in this section shall authorize a court to sentence any person to a period of probation for the purpose of subjecting such person to the provisions of this section, unless such person would have otherwise been so sentenced to a period of probation. 3. Conditions. (a) Notwithstanding any other provision of law, the commissioner may grant a post-revocation conditional license, as set forth in paragraph (b) of this subdivision, to a person who has been convicted of a violation of subdivision two or three of section eleven hundred ninety-two of this chapter and who has been sentenced to a period of probation, provided the person has satisfied the minimum period of license revocation established by law and the commissioner has been notified that such person may operate only a motor vehicle equipped with a functioning ignition interlock device. No such request shall be made nor shall such a license be granted, however, if such person has been found by a court to have committed a violation of section five hundred eleven of this chapter during the license revocation period or deemed by a court to have violated any condition of probation set forth by the court relating to the operation of a motor vehicle or the consumption of alcohol. In exercising discretion relating to the issuance of a post-revocation conditional license pursuant to this subdivision, the commissioner shall not deny such issuance based solely upon the number of convictions for violations of any subdivision of section eleven hundred ninety-two of this chapter committed by such person within the ten years prior to application for such license. Upon the termination of the period of probation set by the court, the person may apply to the commissioner for restoration of a license or privilege to operate a motor vehicle in accordance with this chapter. (b) Notwithstanding any inconsistent provision of this chapter, a post-revocation conditional license granted pursuant to paragraph (a) of this subdivision shall be valid only for use by the holder thereof, (1) enroute to and from the holder`s place of employment, (2) if the holder`s employment requires the operation of a motor vehicle then during the hours thereof, (3) enroute to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (4) to and from court ordered probation activities, (5) to and from a motor vehicle office for the transaction of business relating to such license, (6) for a three hour consecutive daytime period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation, (7) enroute to and from a medical examination or treatment as part of a necessary medical treatment for such participant or member of the participant`s household, as evidenced by a written statement to that effect from a licensed medical practitioner, (8) enroute to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which participant`s attendance is required, and (9) enroute to and from a place, including a school, at which a child or children of the participant are cared for on a regular basis and which is necessary for the participant to maintain such participant`s employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training. (c) The post-revocation conditional license described in this subdivision may be revoked by the commissioner for sufficient cause including but not limited to, failure to comply with the terms of the condition of probation set forth by the court, conviction of any traffic offense other than one involving parking, stopping or standing or conviction of any alcohol or drug related offense, misdemeanor or felony. (d)
Nothing contained herein shall prohibit the court from requiring, as a condition of probation, the installation of a functioning ignition interlock device in any vehicle owned or operated on a regular basis by a person sentenced for a violation of section five hundred eleven or section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which a violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, if the court in its discretion, determines that such a condition is necessary to ensure the public safety. Such a condition shall in no way limit the effect of any period of license suspension or revocation set forth by the commissioner or the court. (e) Nothing contained herein shall prevent the court from applying any other conditions of probation allowed by law, including treatment for alcohol or drug abuse, restitution and community service. (f) The commissioner shall note on the operator`s record of any person restricted pursuant to this section that, in addition to any other restrictions, conditions or limitations, such person may operate only a motor vehicle equipped with an ignition interlock device. 4. Proof of compliance and recording of condition. (a) If the court imposed the use of an ignition interlock device as a condition of probation it shall require the person to provide proof of compliance with this section to the court and the probation officer as set forth in the order of probation. If the person fails to provide for such proof of installation, absent a finding by the court of good cause for that failure which is entered in the record, the court may revoke, modify, or terminate the person`s sentence of probation as provided under law. (b) When a court imposes the condition specified in subdivision one of this section, the court shall notify the commissioner in such manner as the commissioner may prescribe, and the commissioner shall note such condition on the operating record of the person subject to such conditions. 5. Cost, installation and maintenance. (a) The cost of installing and maintaining the ignition interlock device shall be borne by the person subject to such condition. Such cost shall be considered a fine for the purposes of subdivision five of section 420.10 of the criminal procedure law. Such cost shall not replace, but shall instead be in addition to, any fines, surcharges, or other costs imposed pursuant to this chapter or other applicable laws. (b) The manufacturer of the device shall be responsible for the installation and maintenance of such device and for the reports required in this section. 6. Certification. (a) The commissioner of the department of health shall approve ignition interlock devices for installation pursuant to subdivision one of this section and shall publish a list of approved devices. (b) After consultation with manufacturers of ignition interlock devices and the national highway traffic safety administration, the commissioner of the department of health, in consultation with the commissioner and the director of the division of probation and correctional alternatives, shall promulgate regulations regarding standards for, and use of, ignition interlock devices. Such standards shall include provisions for setting a minimum and maximum calibration range and shall include, but not be limited to, requirements that the devices: (1) have features that make circumventing difficult and that do not interfere with the normal or safe operation of the vehicle; (2) work accurately and reliably in an unsupervised environment; (3) resist tampering and give evidence if tampering is attempted; (4) minimize inconvenience to a sober user; (5) require a proper, deep, lung breath sample or other accurate measure of blood alcohol content equivalence; (6) operate reliably over the range of automobile environments; (7) correlate well with permissible levels of alcohol consumption as may be established
by the sentencing court or by any provision of law; and (8) are manufactured by a party covered by product liability insurance. (c) The commissioner of the department of health may, in his discretion, adopt in whole or relevant part, the guidelines, rules, regulations, studies, or independent laboratory tests performed on and relied upon for the certification or approval of ignition interlock devices by other states, their agencies or commissions. 7. Information and final report. (a) The division of probation and correctional alternatives, in consulation with the department and the office of court administration, shall develop a standard reporting form that will be used by the courts, such division and the department for collecting data relating to the program. (b) The division of probation and correctional alternatives and the department shall compare the recidivism rate of those persons subject to the provisions of the program to demographically and statistically similar cases where the program was not applied. (c) The division of probation and correctional alternatives and the department shall jointly prepare an evaluative report as to the effectiveness, reliability and impact of ignition interlock devices as a sentencing and probation option. Such report shall be submitted to the governor, the temporary president of the senate and the speaker of the assembly no later than the first day of May, two thousand and an updated report no later than the first day of May, two thousand two. In addition, such report and report update shall include, but not be limited to the following information: (1) record of offenders, including the number of prior alcohol or drug-related convictions relating to the operation of a vehicle; (2) record of any violations of probation; (3) record of the number of persons convicted of a violation of subdivisions eight and ten of this section; (4) the type and manufacturer of the ignition interlock device installed and the record of any malfunctions; and (5) any other information determined necessary and relevant to the implementation of this section by the division of probation and correctional alternatives and the department. The division and the department may request technical assistance in the preparation of the report from the national highway traffic safety administration. 8. Use of other vehicles. (a) The requirement of subdivision one of this section that a person operate a vehicle only if it is equipped with an ignition interlock device shall apply to every motor vehicle operated by that person including, but not limited to, vehicles that are leased, rented or loaned. (b) No person shall knowingly rent, lease, or lend a motor vehicle to a person known to have had his driving privilege restricted pursuant to subdivision one of this section, unless the vehicle is equipped with an ignition interlock device. Any person whose driving privilege is restricted pursuant to subdivision one of this section shall notify any other person who rents, leases, or loans a motor vehicle to him of the driving restriction imposed under this section. (c) A violation of paragraph (a) or (b) of this subdivision shall be a misdemeanor. 9. Employer vehicle. Notwithstanding the provisions of subdivision one of this section, if a person is required to operate a motor vehicle owned by said person`s employer in the course and scope of his employment, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified that the person`s driving privilege has been restricted under the provisions of this article and the person whose privilege has been so restricted has acknowledgement of the employer notification in his or her possession while operating the employer`s vehicle for normal business duties. The person shall notify the court and the probation officer of his or her intention to so operate the employer`s vehicle. A motor vehicle owned by a business
entity which business entity is all or partly owned or controlled by a person otherwise subject to the provisions of this article is not a motor vehicle owned by the employer for purposes of the exemption provided in this subdivision. The provisions of this subdivision shall apply only to the operation of such vehicle in the scope of such employment. 10. Circumvention of interlock device. (a) No person whose driving privilege is restricted pursuant to subdivision one of this section shall request, solicit or allow any other person to blow into an ignition interlock device, or to start a motor vehicle equipped with the device, for the purpose of providing the person so restricted with an operable motor vehicle. (b) No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is restricted pursuant to subdivision one of this section. (c) No person shall tamper with or circumvent an otherwise operable ignition interlock device. (d) In addition to any other provisions of law, any person convicted of a violation of paragraph (a), (b) or (c) of this subdivision shall be guilty of a misdemeanor. 11. Warning label. The department of health shall design a warning label which the manufacturer shall affix to each ignition interlock device upon installation in the state. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a misdemeanor and may be subject to civil liability. * NB Repealed September 1, 2005.
Back to Top
Enterprise Corruption
*
Penal
TITLE X
ORGANIZED CRIME CONTROL ACT
ARTICLE 460
ENTERPRISE CORRUPTION
Section 460.00 Legislative findings.
460.10 Definitions.
460.20 Enterprise corruption.
460.25 Enterprise corruption; limitations.
460.30 Enterprise corruption; forfeiture.
460.40 Enterprise corruption; jurisdiction.
460.50 Enterprise corruption; prosecution.
460.60 Enterprise corruption; consent to prosecute.
460.70 Provisional remedies.
460.80 Court ordered disclosure.
S 460.00 Legislative findings.
The legislature finds and determines as follows:
Organized crime in New York state involves highly sophisticated,
complex and widespread forms of criminal activity. The diversified
illegal conduct engaged in by organized crime, rooted in the illegal use
of force, fraud, and corruption, constitutes a major drain upon the
state`s economy, costs citizens and businesses of the state billions of
dollars each year, and threatens the peace, security and general welfare
of the people of the state.
Organized crime continues to expand its corrosive influence in the
state through illegal enterprises engaged in such criminal endeavors as
the theft and fencing of property, the importation and distribution of
narcotics and other dangerous drugs, arson for profit, hijacking, labor
racketeering, loansharking, extortion and bribery, the illegal disposal
of hazardous wastes, syndicated gambling, trafficking in stolen
securities, insurance and investment frauds, and other forms of economic
and social exploitation.
The money and power derived by organized crime through its illegal
enterprises and endeavors is increasingly being used to infiltrate and
corrupt businesses, unions and other legitimate enterprises and to
corrupt our democratic processes. This infiltration takes several forms
with legitimate enterprises being employed as instrumentalities, injured
as victims, or taken as prizes. Through such infiltration the power of
an enterprise can be diverted to criminal ends, its resources looted, or
it can be taken over entirely, either on paper or de facto. Thus, for
purposes of making both criminal and civil remedies available to deal
with the corruption of such enterprises, the concept of criminal
enterprise should not be limited to traditional criminal syndicates or
crime families, and may include persons who join together in a criminal
enterprise, as defined by subdivision three of section 460.10 of this
article, for the purpose of corrupting such legitimate enterprises or
infiltrating and illicitly influencing industries.
One major cause of the continuing growth of organized criminal
activities within the state is the inadequacy and limited nature of
sanctions and remedies available to state and local law enforcement
officials to deal with this intricate and varied criminal conduct.
Existing penal law provisions are primarily concerned with the
commission of specific and limited criminal acts without regard to the
relationships of particular criminal acts or the illegal profits derived
therefrom, to legitimate or illicit enterprises operated or controlled
by organized crime. Further, traditional penal law provisions only
provide for the imposition of conventional criminal penalties, including
imprisonment, fines and probation, for entrenched organized crime
enterprises. Such penalties are not adequate to enable the state to
effectively fight organized crime. Instead, new penal prohibitions and
enhanced sanctions, and new civil and criminal remedies are necessary to
deal with the unlawful activities of persons and enterprises engaged in
organized crime. Comprehensive statutes enacted at the federal level
and in a number of other states with significant organized crime
problems, have provided law enforcement agencies with an effective tool
to fight organized crime. Such laws permit law enforcement authorities
(i) to charge and prove patterns of criminal activity and their
connection to ongoing enterprises, legitimate or illegal, that are
controlled or operated by organized crime, and (ii) to apply criminal
and civil penalties designed to prevent and eliminate organized crime`s
involvement with such enterprises. The organized crime control act is a
statute of comparable purpose but tempered by reasonable limitations on
its applicability, and by due regard for the rights of innocent persons.
Because of its more rigorous definitions, this act will not apply to
some situations encompassed within comparable statutes in other
jurisdictions. This act is vital to the peace, security and general
welfare of the state.
In part because of its highly diverse nature, it is impossible to
precisely define what organized crime is. This article, however, does
attempt to define and criminalize what organized crime does. This
article focuses upon criminal enterprises because their sophistication
and organization make them more effective at their criminal purposes and
because their structure and insulation protect their leadership from
detection and prosecution.
At the same time, this article is not intended to be employed to
prosecute relatively minor or isolated acts of criminality which, while
related to an enterprise and arguably part of a pattern as defined in
this article, can be adequately and more fairly prosecuted as separate
offenses. Similarly, particular defendants may play so minor a role in a
criminal enterprise that their culpability would be unfairly distorted
by prosecution and punishment for participation in the enterprise.
The balance intended to be struck by this act cannot readily be
codified in the form of restrictive definitions or a categorical list of
exceptions. General, yet carefully drawn definitions of the terms
"pattern of criminal activity" and "criminal enterprise" have been
employed. Notwithstanding the provisions of section 5.00 of this
chapter these definitions should be given their plain meaning, and
should not be construed either liberally or strictly, but in the context
of the legislative purposes set forth in these findings. Within the
confines of these and other applicable definitions, discretion ought
still be exercised. Once the letter of the law is complied with,
including the essential showing that there is a pattern of conduct which
is criminal under existing statutes, the question whether to prosecute
under those statutes or for the pattern itself is essentially one of
fairness. The answer will depend on the particular situation, and is
best addressed by those institutions of government which have
traditionally exercised that function: the grand jury, the public
prosecutor, and an independent judiciary.
S 460.10 Definitions.
The following definitions are applicable to this article.
1. "Criminal act" means conduct constituting any of the following
crimes, or conspiracy or attempt to commit any of the following
felonies:
(a) Any of the felonies set forth in this chapter: sections 120.05,
120.10 and 120.11 relating to assault; sections 125.10 to 125.27
relating to homicide; sections 130.25, 130.30 and 130.35 relating to
rape; sections 135.20 and 135.25 relating to kidnapping; section 135.65
relating to coercion; sections 140.20, 140.25 and 140.30 relating to
burglary; sections 145.05, 145.10 and 145.12 relating to criminal
mischief; article one hundred fifty relating to arson; sections 155.30,
155.35, 155.40 and 155.42 relating to grand larceny; article one hundred
sixty relating to robbery; sections 165.45, 165.50, 165.52 and 165.54
relating to criminal possession of stolen property; sections 170.10,
170.15, 170.25, 170.30, 170.40, 170.65 and 170.70 relating to forgery;
sections 175.10, 175.25, 175.35, 175.40 and 210.40 relating to false
statements; sections 176.15, 176.20, 176.25 and 176.30 relating to
insurance fraud; sections 178.20 and 178.25 relating to criminal
diversion of prescription medications and prescriptions; sections
180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03, 200.04,
200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00, 215.05
and 215.19 relating to bribery; sections 190.40 and 190.42 relating to
criminal usury; section 190.65 relating to schemes to defraud; sections
205.60 and 205.65 relating to hindering prosecution; sections 210.10,
210.15, and 215.51 relating to perjury and contempt; section 215.40
relating to tampering with physical evidence; sections 220.06, 220.09,
220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46,
220.55 and 220.60 relating to controlled substances; sections 225.10 and
225.20 relating to gambling; sections 230.25, 230.30, and 230.32
relating to promoting prostitution; sections 235.06, 235.07 and 235.21
relating to obscenity; section 263.10 relating to promoting an obscene
performance by a child; sections 265.02, 265.03, 265.04, 265.11, 265.12,
265.13 and the provisions of section 265.10 which constitute a felony
relating to firearms and other dangerous weapons; and sections 265.14
and 265.16 relating to criminal sale of a firearm; and section 275.10,
275.20, 275.30, or 275.40 relating to unauthorized recordings; and
sections 470.05, 470.10, 470.15 and 470.20 relating to money laundering;
or
(b) Any felony set forth elsewhere in the laws of this state and
defined by the tax law relating to alcoholic beverage, cigarette,
gasoline and similar motor fuel taxes; title seventy-one of the
environmental conservation law relating to water pollution, hazardous
waste or substances hazardous or acutely hazardous to public health or
safety of the environment; article twenty-three-a of the general
business law relating to prohibited acts concerning stocks, bonds and
other securities or article twenty-two of the general business law
concerning monopolies.
2. "Enterprise" means either an enterprise as defined in subdivision
one of section 175.00 of this chapter or criminal enterprise as defined
in subdivision three of this section.
3. "Criminal enterprise" means a group of persons sharing a common
purpose of engaging in criminal conduct, associated in an ascertainable
structure distinct from a pattern of criminal activity, and with a
continuity of existence, structure and criminal purpose beyond the scope
of individual criminal incidents.
4. "Pattern of criminal activity" means conduct engaged in by persons
charged in an enterprise corruption count constituting three or more
criminal acts that:
(a) were committed within ten years of the commencement of the
criminal action;
(b) are neither isolated incidents, nor so closely related and
connected in point of time or circumstance of commission as to
constitute a criminal offense or criminal transaction, as those terms
are defined in section 40.10 of the criminal procedure law; and
(c) are either: (i) related to one another through a common scheme or
plan or (ii) were committed, solicited, requested, importuned or
intentionally aided by persons acting with the mental culpability
required for the commission thereof and associated with or in the
criminal enterprise.
S 460.20 Enterprise corruption.
1. A person is guilty of enterprise corruption when, having knowledge
of the existence of a criminal enterprise and the nature of its
activities, and being employed by or associated with such enterprise,
he:
(a) intentionally conducts or participates in the affairs of an
enterprise by participating in a pattern of criminal activity; or
(b) intentionally acquires or maintains any interest in or control of
an enterprise by participating in a pattern of criminal activity; or
(c) participates in a pattern of criminal activity and knowingly
invests any proceeds derived from that conduct, or any proceeds derived
from the investment or use of those proceeds, in an enterprise.
2. For purposes of this section, a person participates in a pattern of
criminal activity when, with intent to participate in or advance the
affairs of the criminal enterprise, he engages in conduct constituting,
or, is criminally liable for pursuant to section 20.00 of this chapter,
at least three of the criminal acts included in the pattern, provided
that:
(a) Two of his acts are felonies other than conspiracy;
(b) Two of his acts, one of which is a felony, occurred within five
years of the commencement of the criminal action; and
(c) Each of his acts occurred within three years of a prior act.
3. For purposes of this section, the enterprise corrupted in violation
of subdivision one of this section need not be the criminal enterprise
by which the person is employed or with which he is associated, and may
be a legitimate enterprise.
Enterprise corruption is a class B felony.
S 460.25 Enterprise corruption; limitations.
1. For purposes of subdivision one of section 460.20 of this article,
a person does not acquire or maintain an interest in an enterprise by
participating in a pattern of criminal activity when he invests proceeds
derived from a pattern of criminal activity in such enterprise.
2. For purposes of subdivision one of section 460.20 of this article,
it shall not be unlawful to:
(a) purchase securities on the open market with intent to make an
investment, and without the intent of controlling or participating in
the control of the issuer, or of assisting another to do so, if the
securities of the issuer held by the purchaser, the members of his
immediate family, and his or their accomplices in any pattern of
criminal activity do not amount in the aggregate to five percent of the
outstanding securities of any one class and do not confer, either in the
law or in fact, the power to elect one or more directors of the issuer;
(b) make a deposit in an account maintained in a savings and loan
association, or a deposit in any other such financial institution, that
creates an ownership interest in that association or institution;
(c) purchase shares in co-operatively owned residential or commercial
property;
(d) purchase non-voting shares in a limited partnership, with intent
to make an investment, and without the intent of controlling or
participating in the control of the partnership.
Back to Top
Firearms/Guns
* ARTICLE 265
FIREARMS AND OTHER DANGEROUS WEAPONS
Section 265.00 Definitions.
265.01 Criminal possession of a weapon in the fourth degree.
265.02 Criminal possession of a weapon in the third degree.
265.03 Criminal possession of a weapon in the second degree.
265.04 Criminal possession of a dangerous weapon in the first
degree.
265.05 Unlawful possession of weapons by persons under sixteen.
265.06 Unlawful possession of a weapon upon school grounds.
265.08 Criminal use of a firearm in the second degree.
265.09 Criminal use of a firearm in the first degree.
265.10 Manufacture, transport, disposition and defacement of
weapons and dangerous instruments and appliances.
265.11 Criminal sale of a firearm in the third degree.
265.12 Criminal sale of a firearm in the second degree.
265.13 Criminal sale of a firearm in the first degree.
265.14 Criminal sale of a firearm with the aid of a minor.
265.15 Presumptions of possession, unlawful intent and
defacement.
265.16 Criminal sale of a firearm to a minor.
265.17 Criminal purchase of a weapon.
265.20 Exemptions.
265.25 Certain wounds to be reported.
265.26 Burn injury and wounds to be reported.
265.30 Certain convictions to be reported.
265.35 Prohibited use of weapons.
265.40 Purchase of rifles and/or shotguns in contiguous states.
S 265.00 Definitions.
As used in this article and in article four hundred, the following
terms shall mean and include:
1. "Machine-gun" means a weapon of any description, irrespective of
size, by whatever name known, loaded or unloaded, from which a number of
shots or bullets may be rapidly or automatically discharged from a
magazine with one continuous pull of the trigger and includes a
sub-machine gun.
2. "Firearm silencer" means any instrument, attachment, weapon or
appliance for causing the firing of any gun, revolver, pistol or other
firearms to be silent, or intended to lessen or muffle the noise of the
firing of any gun, revolver, pistol or other firearms.
3. "Firearm" means (a) any pistol or revolver; or (b) a shotgun having
one or more barrels less than eighteen inches in length; or (c) a rifle
having one or more barrels less than sixteen inches in length; or (d)
any weapon made from a shotgun or rifle whether by alteration,
modification, or otherwise if such weapon as altered, modified, or
otherwise has an overall length of less than twenty-six inches; or (e)
an assault weapon. For the purpose of this subdivision the length of the
barrel on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or
breechlock when closed and when the shotgun or rifle is cocked; the
overall length of a weapon made from a shotgun or rifle is the distance
between the extreme ends of the weapon measured along a line parallel to
the center line of the bore. Firearm does not include an antique
firearm.
4. "Switchblade knife" means any knife which has a blade which opens
automatically by hand pressure applied to a button, spring or other
device in the handle of the knife.
5. "Gravity knife" means any knife which has a blade which is released
from the handle or sheath thereof by the force of gravity or the
application of centrifugal force which, when released, is locked in
place by means of a button, spring, lever or other device.
5-a. "Pilum ballistic knife" means any knife which has a blade which
can be projected from the handle by hand pressure applied to a button,
lever, spring or other device in the handle of the knife.
5-b. "Metal knuckle knife" means a weapon that, when closed, cannot
function as a set of metal knuckles, nor as a knife and when open, can
function as both a set of metal knuckles as well as a knife.
6. "Dispose of" means to dispose of, give, give away, lease-loan, keep
for sale, offer, offer for sale, sell, transfer and otherwise dispose
of.
7. "Deface" means to remove, deface, cover, alter or destroy the
manufacturer`s serial number or any other distinguishing number or
identification mark.
8. "Gunsmith" means any person, firm, partnership, corporation or
company who engages in the business of repairing, altering, assembling,
manufacturing, cleaning, polishing, engraving or trueing, or who
performs any mechanical operation on, any firearm, large capacity
ammunition feeding device or machine-gun.
9. "Dealer in firearms" means any person, firm, partnership,
corporation or company who engages in the business of purchasing,
selling, keeping for sale, loaning, leasing, or in any manner disposing
of, any assault weapon, large capacity ammunition feeding device, pistol
or revolver.
10. "Licensing officer" means in the city of New York the police
commissioner of that city; in the county of Nassau the commissioner of
police of that county; in the county of Suffolk the sheriff of that
county except in the towns of Babylon, Brookhaven, Huntington, Islip and
Smithtown, the commissioner of police of that county; for the purposes
of section 400.01 of this chapter the superintendent of state police;
and elsewhere in the state a judge or justice of a court of record
having his office in the county of issuance.
11. "Rifle" means a weapon designed or redesigned, made or remade, and
intended to be fired from the shoulder and designed or redesigned and
made or remade to use the energy of the explosive in a fixed metallic
cartridge to fire only a single projectile through a rifled bore for
each single pull of the trigger.
12. "Shotgun" means a weapon designed or redesigned, made or remade,
and intended to be fired from the shoulder and designed or redesigned
and made or remade to use the energy of the explosive in a fixed shotgun
shell to fire through a smooth bore either a number of ball shot or a
single projectile for each single pull of the trigger.
13. "Cane Sword" means a cane or swagger stick having concealed within
it a blade that may be used as a sword or stilletto.
* 14. "Antique firearm" means:
Any unloaded muzzle loading pistol or revolver with a matchlock,
flintlock, percussion cap, or similar type of ignition system, or a
pistol or revolver which uses fixed cartridges which are no longer
available in the ordinary channels of commercial trade.
* NB There are 2 sb 14`s
* 14. "Chuka stick" means any device designed primarily as a weapon,
consisting of two or more lengths of a rigid material joined together by
a thong, rope or chain in such a manner as to allow free movement of a
portion of the device while held in the hand and capable of being
rotated in such a manner as to inflict serious injury upon a person by
striking or choking. These devices are also known as nunchakus and
centrifugal force sticks.
* NB There are 2 sb 14`s
15. "Loaded firearm" means any firearm loaded with ammunition or any
firearm which is possessed by one who, at the same time, possesses a
quantity of ammunition which may be used to discharge such firearm.
15-a. "Electronic dart gun" means any device designed primarily as a
weapon, the purpose of which is to momentarily stun, knock out or
paralyze a person by passing an electrical shock to such person by means
of a dart or projectile.
15-b. "Kung Fu star" means a disc-like object with sharpened points on
the circumference thereof and is designed for use primarily as a weapon
to be thrown.
15-c. "Electronic stun gun" means any device designed primarily as a
weapon, the purpose of which is to stun, cause mental disorientation,
knock out or paralyze a person by passing a high voltage electrical
shock to such person.
16. "Certified not suitable to possess a self-defense spray device, a
rifle or shotgun" means that the director or physician in charge of any
hospital or institution for mental illness, public or private, has
certified to the superintendent of state police or to any organized
police department of a county, city, town or village of this state, that
a person who has been judicially adjudicated incompetent, or who has
been confined to such institution for mental illness pursuant to
judicial authority, is not suitable to possess a self-defense spray
device, as defined in section 265.20 of this article, or a rifle or
shotgun.
17. "Serious offense" means (a) any of the following offenses defined
in the former penal law as in force and effect immediately prior to
September first, nineteen hundred sixty-seven: illegally using, carrying
or possessing a pistol or other dangerous weapon; making or possessing
burglar`s instruments; buying or receiving stolen property; unlawful
entry of a building; aiding escape from prison; that kind of disorderly
conduct defined in subdivisions six and eight of section seven hundred
twenty-two of such former penal law; violations of sections four hundred
eighty-three, four hundred eighty-three-b, four hundred eighty-four-h
and article one hundred six of such former penal law; that kind of
criminal sexual act or rape which was designated as a misdemeanor;
violation of section seventeen hundred forty-seven-d and seventeen
hundred forty-seven-e of such former penal law; any violation of any
provision of article thirty-three of the public health law relating to
narcotic drugs which was defined as a misdemeanor by section seventeen
hundred fifty-one-a of such former penal law, and any violation of any
provision of article thirty-three-A of the public health law relating to
depressant and stimulant drugs which was defined as a misdemeanor by
section seventeen hundred forty-seven-b of such former penal law.
* (b) any of the following offenses defined in the penal law:
illegally using, carrying or possessing a pistol or other dangerous
weapon; possession of burglar`s tools; criminal possession of stolen
property in the third degree; escape in the third degree; jostling;
fraudulent accosting; that kind of loitering defined in subdivision
three of section 240.35; endangering the welfare of a child; the
offenses defined in article two hundred thirty-five; issuing abortional
articles; permitting prostitution; promoting prostitution in the third
degree; stalking in the fourth degree; stalking in the third degree; the
offenses defined in article one hundred thirty; the offenses defined in
article two hundred twenty.
* NB There are 2 par. b`s
* (b) any of the following offenses defined in the penal law:
illegally using, carrying or possessing a pistol or other dangerous
weapon; possession of burglar`s tools; criminal possession of stolen
property in the third degree; escape in the third degree; jostling;
fraudulent accosting; that kind of loitering defined in subdivision
three of section 240.35; endangering the welfare of a child; the
offenses defined in article two hundred thirty-five; issuing abortional
articles; permitting prostitution; promoting prostitution in the third
degree; stalking in the third degree; stalking in the fourth degree; the
offenses defined in article one hundred thirty; the offenses defined in
article two hundred twenty.
* NB There are 2 par. b`s
18. "Armor piercing ammunition" means any ammunition capable of being
used in pistols or revolvers containing a projectile or projectile core,
or a projectile or projectile core for use in such ammunition, that is
constructed entirely (excluding the presence of traces of other
substances) from one or a combination of any of the following: tungsten
alloys, steel, iron, brass, bronze, beryllium copper, or uranium.
19. "Duly authorized instructor" means (a) a duly commissioned officer
of the United States army, navy, marine corps or coast guard, or of the
national guard of the state of New York; or (b) a duly qualified adult
citizen of the United States who has been granted a certificate as an
instructor in small arms practice issued by the United States army, navy
or marine corps, or by the adjutant general of this state, or by the
national rifle association of America, a not-for-profit corporation duly
organized under the laws of this state; or (c) by a person duly
qualified and designated by the department of environmental conservation
under paragraph d of subdivision six of section 11-0713 of the
environmental conservation law as its agent in the giving of instruction
and the making of certifications of qualification in responsible hunting
practices.
20. "Disguised gun" means any weapon or device capable of being
concealed on the person from which a shot can be discharged through the
energy of an explosive and is designed and intended to appear to be
something other than a gun.
21. "Semiautomatic" means any repeating rifle, shotgun or pistol,
regardless of barrel or overall length, which utilizes a portion of the
energy of a firing cartridge or shell to extract the fired cartridge
case or spent shell and chamber the next round, and which requires a
separate pull of the trigger to fire each cartridge or shell.
22. "Assault weapon" means (a) a semiautomatic rifle that has an
ability to accept a detachable magazine and has at least two of the
following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of
the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a
flash suppressor;
(v) a grenade launcher; or
(b) a semiautomatic shotgun that has at least two of the following
characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of
the weapon;
(iii) a fixed magazine capacity in excess of five rounds;
(iv) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable
magazine and has at least two of the following characteristics:
(i) an ammunition magazine that attaches to the pistol outside of the
pistol grip;
(ii) a threaded barrel capable of accepting a barrel extender, flash
suppressor, forward handgrip, or silencer;
(iii) a shroud that is attached to, or partially or completely
encircles, the barrel and that permits the shooter to hold the firearm
with the nontrigger hand without being burned;
(iv) a manufactured weight of fifty ounces or more when the pistol is
unloaded;
(v) a semiautomatic version of an automatic rifle, shotgun or firearm;
or
(d) any of the weapons, or functioning frames or receivers of such
weapons, or copies or duplicates of such weapons, in any caliber, known
as:
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all
models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR, and FNC;
(vi) SWD M-10, M-11, M-11/9, and M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to) the Street
Sweeper and Striker 12;
(e) provided, however, that such term does not include: (i) any rifle,
shotgun or pistol that (A) is manually operated by bolt, pump, lever or
slide action; (B) has been rendered permanently inoperable; or (C) is an
antique firearm as defined in 18 U.S.C. 921(a)(16);
(ii) a semiautomatic rifle that cannot accept a detachable magazine
that holds more than five rounds of ammunition;
(iii) a semiautomatic shotgun that cannot hold more than five rounds
of ammunition in a fixed or detachable magazine;
(iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof,
specified in Appendix A to section 922 of 18 U.S.C. as such weapon was
manufactured on October first, nineteen hundred ninety-three. The mere
fact that a weapon is not listed in Appendix A shall not be construed to
mean that such weapon is an assault weapon; or
(v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic
pistol or any of the weapons defined in paragraph (d) of this
subdivision lawfully possessed prior to September fourteenth, nineteen
hundred ninety-four.
23. "Large capacity ammunition feeding device" means a magazine, belt,
drum, feed strip, or similar device, manufactured after September
thirteenth, nineteen hundred ninety-four, that has a capacity of, or
that can be readily restored or converted to accept, more than ten
rounds of ammunition; provided, however, that such term does not include
an attached tubular device designed to accept, and capable of operating
only with, .22 caliber rimfire ammunition.
S 265.01 Criminal possession of a weapon in the fourth degree.
A person is guilty of criminal possession of a weapon in the fourth
degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun
gun, gravity knife, switchblade knife, pilum ballistic knife, metal
knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles,
chuka stick, sand bag, sandclub, wrist-brace type slingshot or
slungshot, shirken or "Kung Fu star"; or
(2) He possesses any dagger, dangerous knife, dirk, razor, stiletto,
imitation pistol, or any other dangerous or deadly instrument or weapon
with intent to use the same unlawfully against another; or
(3) He knowingly has in his possession a rifle, shotgun or firearm in
or upon a building or grounds, used for educational purposes, of any
school, college or university, except the forestry lands, wherever
located, owned and maintained by the State University of New York
college of environmental science and forestry, without the written
authorization of such educational institution; or
(4) He possesses a rifle or shotgun and has been convicted of a felony
or serious offense; or
(5) He possesses any dangerous or deadly weapon and is not a citizen
of the United States; or
(6) He is a person who has been certified not suitable to possess a
rifle or shotgun, as defined in subdivision sixteen of section 265.00,
and refuses to yield possession of such rifle or shotgun upon the demand
of a police officer. Whenever a person is certified not suitable to
possess a rifle or shotgun, a member of the police department to which
such certification is made, or of the state police, shall forthwith
seize any rifle or shotgun possessed by such person. A rifle or shotgun
seized as herein provided shall not be destroyed, but shall be delivered
to the headquarters of such police department, or state police, and
there retained until the aforesaid certificate has been rescinded by the
director or physician in charge, or other disposition of such rifle or
shotgun has been ordered or authorized by a court of competent
jurisdiction.
(7) He knowingly possesses a bullet containing an explosive substance
designed to detonate upon impact.
(8) He possesses any armor piercing ammunition with intent to use the
same unlawfully against another.
Criminal possession of a weapon in the fourth degree is a class A
misdemeanor.
S 265.02 Criminal possession of a weapon in the third degree.
A person is guilty of criminal possession of a weapon in the third
degree when:
(1) He commits the crime of criminal possession of a weapon in the
fourth degree as defined in subdivision one, two, three or five of
section 265.01, and has been previously convicted of any crime; or
(2) He possesses any explosive or incendiary bomb, bombshell, firearm
silencer, machine-gun or any other firearm or weapon simulating a
machine-gun and which is adaptable for such use; or
(3) He knowingly has in his possession a machine-gun, firearm, rifle
or shotgun which has been defaced for the purpose of concealment or
prevention of the detection of a crime or misrepresenting the identity
of such machine-gun, firearm, rifle or shotgun; or
(4) Such person possesses any loaded firearm. Such possession shall
not, except as provided in subdivision one or seven, constitute a
violation of this section if such possession takes place in such
person`s home or place of business; or
(5) (i) Such person possesses twenty or more firearms; or (ii) such
person possesses a firearm and has been previously convicted of a felony
or a class A misdemeanor defined in this chapter within the five years
immediately preceding the commission of the offense and such possession
did not take place in the person`s home or place of business; or
(6) Such person knowingly possesses any disguised gun; or
(7) Such person possesses an assault weapon; or
(8) Such person possesses a large capacity ammunition feeding device.
Criminal possession of a weapon in the third degree is a class D
felony.
S 265.03 Criminal possession of a weapon in the second degree.
A person is guilty of criminal possession of a weapon in the second
degree when, with intent to use the same unlawfully against another:
(1) He possesses a machine-gun; or
(2) He possesses a loaded firearm; or
(3) He possesses a disguised gun.
Criminal possession of a weapon in the second degree is a class C
felony.
S 265.04 Criminal possession of a dangerous weapon in the first degree.
A person is guilty of criminal possession of a dangerous weapon in the
first degree when he possesses any explosive substance with intent to
use the same unlawfully against the person or property of another.
Criminal possession of a weapon in the first degree is a class B
felony.
S 265.05 Unlawful possession of weapons by persons under sixteen.
It shall be unlawful for any person under the age of sixteen to
possess any air-gun, spring-gun or other instrument or weapon in which
the propelling force is a spring or air, or any gun or any instrument or
weapon in or upon which any loaded or blank cartridges may be used, or
any loaded or blank cartridges or ammunition therefor, or any dangerous
knife; provided that the possession of rifle or shotgun or ammunition
therefor by the holder of a hunting license or permit issued pursuant to
article eleven of the environmental conservation law and used in
accordance with said law shall not be governed by this section.
A person who violates the provisions of this section shall be adjudged
a juvenile delinquent.
S 265.06 Unlawful possession of a weapon upon school grounds.
It shall be unlawful for any person age sixteen or older to knowingly
possess any air-gun, spring-gun or other instrument or weapon in which
the propelling force is a spring, air, piston or CO2 cartridge in or
upon a building or grounds, used for educational purposes, of any
school, college or university, without the written authorization of such
educational institution.
Unlawful possession of a weapon upon school grounds is a violation.
S 265.08 Criminal use of a firearm in the second degree.
A person is guilty of criminal use of a firearm in the second degree
when he commits any class C violent felony offense as defined in
paragraph (b) of subdivision one of section 70.02 and he either:
(1) possesses a deadly weapon, if the weapon is a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged; or
(2) displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.
Criminal use of a firearm in the second degree is a class C felony.
S 265.09 Criminal use of a firearm in the first degree.
(1) A person is guilty of criminal use of a firearm in the first
degree when he commits any class B violent felony offense as defined in
paragraph (a) of subdivision one of section 70.02 and he either:
(a) possesses a deadly weapon, if the weapon is a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged; or
(b) displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.
Criminal use of a firearm in the first degree is a class B felony.
(2) Sentencing. Notwithstanding any other provision of law to the
contrary, when a person is convicted of criminal use of a firearm in the
first degree as defined in subdivision one of this section, the court
shall impose an additional consecutive sentence of five years to the
minimum term of an indeterminate sentence imposed on the underlying
class B violent felony offense where the person convicted of such crime
displays a loaded weapon from which a shot, readily capable of producing
death or other serious injury may be discharged, in furtherance of the
commission of such crime, provided, however, that such additional
sentence shall not be imposed if the court, having regard to the nature
and circumstances of the crime and to the history and character of the
defendant, finds on the record that such additional consecutive sentence
would be unduly harsh and that not imposing such sentence would be
consistent with the public safety and would not deprecate the
seriousness of the crime. Notwithstanding any other provision of law to
the contrary, the aggregate of the five year consecutive term imposed
pursuant to this subdivision and the minimum term of the indeterminate
sentence imposed on the underlying class B violent felony shall
constitute the new aggregate minimum term of imprisonment, and a person
subject to such term shall be required to serve the entire aggregate
minimum term and shall not be eligible for release on parole or
conditional release during such term. This subdivision shall not apply
where the defendant`s criminal liability for displaying a loaded weapon
from which a shot, readily capable of producing death or other serious
injury may be discharged, in furtherance of the commission of crime is
based on the conduct of another pursuant to section 20.00 of the penal
law.
S 265.10 Manufacture, transport, disposition and defacement of weapons
and dangerous instruments and appliances.
1. Any person who manufactures or causes to be manufactured any
machine-gun, assault weapon, large capacity ammunition feeding device or
disguised gun is guilty of a class D felony. Any person who manufactures
or causes to be manufactured any switchblade knife, gravity knife, pilum
ballistic knife, metal knuckle knife, billy, blackjack, bludgeon, metal
knuckles, Kung Fu star, chuka stick, sandbag, sandclub or slungshot is
guilty of a class A misdemeanor.
2. Any person who transports or ships any machine-gun, firearm
silencer, assault weapon or large capacity ammunition feeding device or
disguised gun, or who transports or ships as merchandise five or more
firearms, is guilty of a class D felony. Any person who transports or
ships as merchandise any firearm, other than an assault weapon,
switchblade knife, gravity knife, pilum ballistic knife, billy,
blackjack, bludgeon, metal knuckles, Kung Fu star, chuka stick, sandbag
or slungshot is guilty of a class A misdemeanor.
3. Any person who disposes of any machine-gun, assault weapon, large
capacity ammunition feeding device or firearm silencer is guilty of a
class D felony. Any person who knowingly buys, receives, disposes of, or
conceals a machine-gun, firearm, large capacity ammunition feeding
device, rifle or shotgun which has been defaced for the purpose of
concealment or prevention of the detection of a crime or misrepresenting
the identity of such machine-gun, firearm, large capacity ammunition
feeding device, rifle or shotgun is guilty of a class D felony.
4. Any person who disposes of any of the weapons, instruments or
appliances specified in subdivision one of section 265.01, except a
firearm, is guilty of a class A misdemeanor, and he is guilty of a class
D felony if he has previously been convicted of any crime.
5. Any person who disposes of any of the weapons, instruments,
appliances or substances specified in section 265.05 to any other person
under the age of sixteen years is guilty of a class A misdemeanor.
6. Any person who wilfully defaces any machine-gun, large capacity
ammunition feeding device or firearm is guilty of a class D felony.
7. Any person, other than a wholesale dealer, or gunsmith or dealer in
firearms duly licensed pursuant to section 400.00, lawfully in
possession of a firearm, who disposes of the same without first
notifying in writing the licensing officer in the city of New York and
counties of Nassau and Suffolk and elsewhere in the state the executive
department, division of state police, Albany, is guilty of a class A
misdemeanor.
S 265.11 Criminal sale of a firearm in the third degree.
A person is guilty of criminal sale of a firearm in the third degree
when he is not authorized pursuant to law to possess a firearm and he
unlawfully either:
(1) sells, exchanges, gives or disposes of a firearm or large capacity
ammunition feeding device to another person; or
(2) possesses a firearm with the intent to sell it.
Criminal sale of a firearm in the third degree is a class D felony.
S 265.12 Criminal sale of a firearm in the second degree.
A person is guilty of criminal sale of a firearm in the second degree
when he unlawfully sells, exchanges, gives or disposes of to another ten
or more firearms.
Criminal sale of a firearm in the second degree is a class C felony.
S 265.13 Criminal sale of a firearm in the first degree.
A person is guilty of a criminal sale of a firearm in the first degree
when he unlawfully sells, exchanges, gives or disposes of to another
twenty or more firearms.
Criminal sale of a firearm in the first degree is a class B felony.
S 265.14 Criminal sale of a firearm with the aid of a minor.
A person over the age of eighteen years of age is guilty of criminal
sale of a weapon with the aid of a minor when a person under sixteen
years of age knowingly and unlawfully sells, exchanges, gives or
disposes of a firearm in violation of this article, and such person over
the age of eighteen years of age, acting with the mental culpability
required for the commission thereof, solicits, requests, commands,
importunes or intentionally aids such person under sixteen years of age
to engage in such conduct.
Criminal sale of a firearm with the aid of a minor is a class C
felony.
S 265.15 Presumptions of possession, unlawful intent and defacement.
1. The presence in any room, dwelling, structure or vehicle of any
machine-gun is presumptive evidence of its unlawful possession by all
persons occupying the place where such machine-gun is found.
2. The presence in any stolen vehicle of any weapon, instrument,
appliance or substance specified in sections 265.01, 265.02, 265.03,
265.04 and 265.05 is presumptive evidence of its possession by all
persons occupying such vehicle at the time such weapon, instrument,
appliance or substance is found.
3. The presence in an automobile, other than a stolen one or a public
omnibus, of any firearm, large capacity ammunition feeding device,
defaced firearm, defaced rifle or shotgun, defaced large capacity
ammunition feeding device, firearm silencer, explosive or incendiary
bomb, bombshell, gravity knife, switchblade knife, pilum ballistic
knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack,
metal knuckles, chuka stick, sandbag, sandclub or slungshot is
presumptive evidence of its possession by all persons occupying such
automobile at the time such weapon, instrument or appliance is found,
except under the following circumstances: (a) if such weapon, instrument
or appliance is found upon the person of one of the occupants therein;
(b) if such weapon, instrument or appliance is found in an automobile
which is being operated for hire by a duly licensed driver in the due,
lawful and proper pursuit of his or her trade, then such presumption
shall not apply to the driver; or (c) if the weapon so found is a pistol
or revolver and one of the occupants, not present under duress, has in
his or her possession a valid license to have and carry concealed the
same.
4. The possession by any person of the substance as specified in
section 265.04 is presumptive evidence of possessing such substance with
intent to use the same unlawfully against the person or property of
another if such person is not licensed or otherwise authorized to
possess such substance. The possession by any person of any dagger,
dirk, stiletto, dangerous knife or any other weapon, instrument,
appliance or substance designed, made or adapted for use primarily as a
weapon, is presumptive evidence of intent to use the same unlawfully
against another.
5. The possession by any person of a defaced machine-gun, firearm,
rifle or shotgun is presumptive evidence that such person defaced the
same.
6. The possession of five or more firearms by any person is
presumptive evidence that such person possessed the firearms with the
intent to sell same.
S 265.16 Criminal sale of a firearm to a minor.
A person is guilty of criminal sale of a firearm to a minor when he is
not authorized pursuant to law to possess a firearm and he unlawfully
sells, exchanges, gives or disposes of a firearm to another person who
is or reasonably appears to be less than nineteen years of age who is
not licensed pursuant to law to possess a firearm.
Criminal sale of a firearm to a minor is a class C felony.
S 265.17 Criminal purchase of a weapon.
A person is guilty of criminal purchase of a weapon when:
1. Knowing that he or she is prohibited by law from possessing a
firearm, rifle or shotgun because of a prior conviction or because of
some other disability which would render him or her ineligible to
lawfully possess a firearm, rifle or shotgun in this state, such person
attempts to purchase a firearm, rifle or shotgun from another person; or
2. Knowing that it would be unlawful for another person to possess a
firearm, rifle or shotgun, he or she purchases a firearm, rifle or
shotgun for, on behalf of, or for the use of such other person.
Criminal purchase of a weapon is a class A misdemeanor.
S 265.20 Exemptions.
a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11,
265.12, 265.13, 265.15 and 270.05 shall not apply to:
1. Possession of any of the weapons, instruments, appliances or
substances specified in sections 265.01, 265.02, 265.03, 265.04, 265.05
and 270.05 by the following:
(a) Persons in the military service of the state of New York when duly
authorized by regulations issued by the adjutant general to possess the
same.
(b) Police officers as defined in subdivision thirty-four of section
1.20 of the criminal procedure law.
(c) Peace officers as defined by section 2.10 of the criminal
procedure law.
(d) Persons in the military or other service of the United States, in
pursuit of official duty or when duly authorized by federal law,
regulation or order to possess the same.
(e) Persons employed in fulfilling defense contracts with the
government of the United States or agencies thereof when possession of
the same is necessary for manufacture, transport, installation and
testing under the requirements of such contract.
(f) A person voluntarily surrendering such weapon, instrument,
appliance or substance, provided that such surrender shall be made to
the superintendent of the division of state police or a member thereof
designated by such superintendent, or to the sheriff of the county in
which such person resides, or in the county of Nassau or in the towns of
Babylon, Brookhaven, Huntington, Islip and Smithtown in the county of
Suffolk to the commissioner of police or a member of the police
department thereof designated by such commissioner, or if such person
resides in a city, town other than one named in this subparagraph, or
village to the police commissioner or head of the police force or
department thereof or to a member of the force or department designated
by such commissioner or head; and provided, further, that the same shall
be surrendered by such person in accordance with such terms and
conditions as may be established by such superintendent, sheriff, police
force or department. Nothing in this paragraph shall be construed as
granting immunity from prosecution for any crime or offense except that
of unlawful possession of such weapons, instruments, appliances or
substances surrendered as herein provided. A person who possesses any
such weapon, instrument, appliance or substance as an executor or
administrator or any other lawful possessor of such property of a
decedent may continue to possess such property for a period not over
fifteen days. If such property is not lawfully disposed of within such
period the possessor shall deliver it to an appropriate official
described in this paragraph or such property may be delivered to the
superintendent of state police. Such officer shall hold it and shall
thereafter deliver it on the written request of such executor,
administrator or other lawful possessor of such property to a named
person, provided such named person is licensed to or is otherwise
lawfully permitted to possess the same. If no request to deliver the
property is received by such official within two years of the delivery
of such property, such official shall dispose of it in accordance with
the provisions of section 400.05 of this chapter.
2. Possession of a machine-gun, large capacity ammunition feeding
device, firearm, switchblade knife, gravity knife, pilum ballistic
knife, billy or blackjack by a warden, superintendent, headkeeper or
deputy of a state prison, penitentiary, workhouse, county jail or other
institution for the detention of persons convicted or accused of crime
or detained as witnesses in criminal cases, in pursuit of official duty
or when duly authorized by regulation or order to possess the same.
3. Possession of a pistol or revolver by a person to whom a license
therefor has been issued as provided under section 400.00 or 400.01 of
this chapter; provided, that such a license shall not preclude a
conviction for the offense defined in subdivision three of section
265.01 of this article.
4. Possession of a rifle, shotgun or longbow for use while hunting,
trapping or fishing, by a person, not a citizen of the United States,
carrying a valid license issued pursuant to section 11-0713 of the
environmental conservation law.
5. Possession of a rifle or shotgun by a person who has been convicted
as specified in subdivision four of section 265.01 to whom a certificate
of good conduct has been issued pursuant to section seven hundred
three-b of the correction law.
6. Possession of a switchblade or gravity knife for use while hunting,
trapping or fishing by a person carrying a valid license issued to him
pursuant to section 11-0713 of the environmental conservation law.
7. Possession, at an indoor or outdoor shooting range for the purpose
of loading and firing, of a rifle or shotgun, the propelling force of
which is gunpowder by a person under sixteen years of age but not under
twelve, under the immediate supervision, guidance and instruction of (a)
a duly commissioned officer of the United States army, navy, air force,
marine corps or coast guard, or of the national guard of the state of
New York; or (b) a duly qualified adult citizen of the United States who
has been granted a certificate as an instructor in small arms practice
issued by the United States army, navy, air force or marine corps, or by
the adjutant general of this state, or by the national rifle association
of America, a not-for-profit corporation duly organized under the laws
of this state; or (c) a parent, guardian, or a person over the age of
eighteen designated in writing by such parent or guardian who shall have
a certificate of qualification in responsible hunting, including safety,
ethics, and landowner relations-hunter relations, issued or honored by
the department of environmental conservation; or (d) an agent of the
department of environmental conservation appointed to conduct courses in
responsible hunting practices pursuant to article eleven of the
environmental conservation law.
7-a. Possession and use, at an indoor or outdoor pistol range located
in or on premises owned or occupied by a duly incorporated organization
organized for conservation purposes or to foster proficiency in small
arms or at a target pistol shooting competition under the auspices of or
approved by the national rifle association for the purpose of loading
and firing the same, by a person duly licensed to possess a pistol or
revolver pursuant to section 400.00 or 400.01 of this chapter of a
pistol or revolver duly so licensed to another person who is present at
the time.
7-b. Possession and use, at an indoor or outdoor pistol range located
in or on premises owned or occupied by a duly incorporated organization
organized for conservation purposes or to foster proficiency in small
arms or at a target pistol shooting competition under the auspices of or
approved by the national rifle association for the purpose of loading
and firing the same, by a person who has applied for a license to
possess a pistol or revolver and pre-license possession of same pursuant
to section 400.00 or 400.01 of this chapter, who has not been previously
denied a license, been previously convicted of a felony or serious
offense, and who does not appear to be, or pose a threat to be, a danger
to himself or to others, and who has been approved for possession and
use herein in accordance with section 400.00 or 400.01 of this chapter;
provided however, that such possession shall be of a pistol or revolver
duly licensed to and shall be used under the supervision, guidance and
instruction of, a person specified in paragraph seven of this
subdivision and provided further that such possession and use be within
the jurisdiction of the licensing officer with whom the person has made
application therefor or within the jurisdiction of the superintendent of
state police in the case of a retired sworn member of the division of
state police who has made an application pursuant to section 400.01 of
this chapter.
7-c. Possession for the purpose of loading and firing, of a rifle,
pistol or shotgun, the propelling force of which may be either air,
compressed gas or springs, by a person under sixteen years of age but
not under twelve, under the immediate supervision, guidance and
instruction of (a) a duly commissioned officer of the United States
army, navy, marine corps or coast guard, or of the national guard of the
state of New York; or (b) a duly qualified adult citizen of the United
States who has been granted a certificate as an instructor in small arms
practice issued by the United States army, navy or marine corps, or by
the adjutant general of this state, or by the national rifle association
of America, a not-for-profit corporation duly organized under the laws
of this state; or (c) a parent, guardian, or a person over the age of
eighteen designated in writing by such parent or guardian who shall have
a certificate of qualification in responsible hunting, including safety,
ethics, and landowner relations-hunter relations, issued or honored by
the department of environmental conservation.
7-d. Possession, at an indoor or outdoor shooting range for the
purpose of loading and firing, of a rifle, pistol or shotgun, the
propelling force of which may be either air, compressed gas or springs,
by a person under twelve years of age, under the immediate supervision,
guidance and instruction of (a) a duly commissioned officer of the
United States army, navy, marine corps or coast guard, or of the
national guard of the state of New York; or (b) a duly qualified adult
citizen of the United States who has been granted a certificate as an
instructor in small arms practice issued by the United States army, navy
or marine corps, or by the adjutant general of this state, or by the
national rifle association of America, a not-for-profit corporation duly
organized under the laws of this state; or (c) a parent, guardian, or a
person over the age of eighteen designated in writing by such parent or
guardian who shall have a certificate of qualification in responsible
hunting, including safety, ethics, and landowner relations-hunter
relations, issued or honored by the department of environmental
conservation.
7-e. Possession and use of a pistol or revolver, at an indoor or
outdoor pistol range located in or on premises owned or occupied by a
duly incorporated organization organized for conservation purposes or to
foster proficiency in small arms or at a target pistol shooting
competition under the auspices of or approved by an association or
organization described in paragraph 7-a of this subdivision for the
purpose of loading and firing the same by a person at least eighteen
years of age but under the age of twenty-one who has not been previously
convicted of a felony or serious offense, and who does not appear to be,
or pose a threat to be, a danger to himself or to others; provided
however, that such possession shall be of a pistol or revolver duly
licensed to and shall be used under the immediate supervision, guidance
and instruction of, a person specified in paragraph seven of this
subdivision.
8. The manufacturer of machine-guns, assault weapons, large capacity
ammunition feeding devices, disguised guns, pilum ballistic knives,
switchblade or gravity knives, billies or blackjacks as merchandise and
the disposal and shipment thereof direct to a regularly constituted or
appointed state or municipal police department, sheriff, policeman or
other peace officer, or to a state prison, penitentiary, workhouse,
county jail or other institution for the detention of persons convicted
or accused of crime or held as witnesses in criminal cases, or to the
military service of this state or of the United States.
9. The regular and ordinary transport of firearms as merchandise,
provided that the person transporting such firearms, where he knows or
has reasonable means of ascertaining what he is transporting, notifies
in writing the police commissioner, police chief or other law
enforcement officer performing such functions at the place of delivery,
of the name and address of the consignee and the place of delivery, and
withholds delivery to the consignee for such reasonable period of time
designated in writing by such police commissioner, police chief or other
law enforcement officer as such official may deem necessary for
investigation as to whether the consignee may lawfully receive and
possess such firearms.
9-a. a. Except as provided in subdivision b hereof, the regular and
ordinary transport of pistols or revolvers by a manufacturer of firearms
to whom a license as a dealer in firearms has been issued pursuant to
section 400.00 of this chapter, or by an agent or employee of such
manufacturer of firearms who is otherwise duly licensed to carry a
pistol or revolver and who is duly authorized in writing by such
manufacturer of firearms to transport pistols or revolvers on the date
or dates specified, directly between places where the manufacturer of
firearms regularly conducts business provided such pistols or revolvers
are transported unloaded, in a locked opaque container. For purposes of
this subdivision, places where the manufacturer of firearms regularly
conducts business includes, but is not limited to places where the
manufacturer of firearms regularly or customarily conducts development
or design of pistols or revolvers, or regularly or customarily conducts
tests on pistols or revolvers, or regularly or customarily participates
in the exposition of firearms to the public.
b. The transportation of such pistols or revolvers into, out of or
within the city of New York may be done only with the consent of the
police commissioner of the city of New York. To obtain such consent, the
manufacturer must notify the police commissioner in writing of the name
and address of the transporting manufacturer, or agent or employee of
the manufacturer who is authorized in writing by such manufacturer to
transport pistols or revolvers, the number, make and model number of the
firearms to be transported and the place where the manufacturer
regularly conducts business within the city of New York and such other
information as the commissioner may deem necessary. The manufacturer
must not transport such pistols and revolvers between the designated
places of business for such reasonable period of time designated in
writing by the police commissioner as such official may deem necessary
for investigation and to give consent. The police commissioner may not
unreasonably withhold his consent.
10. Engaging in the business of gunsmith or dealer in firearms by a
person to whom a valid license therefor has been issued pursuant to
section 400.00.
11. Possession of a firearm or large capacity ammunition feeding
device by a police officer or sworn peace officer of another state while
conducting official business within the state of New York.
12. Possession of a pistol or revolver by a person who is a member or
coach of an accredited college or university target pistol team while
transporting the pistol or revolver into or through New York state to
participate in a collegiate, olympic or target pistol shooting
competition under the auspices of or approved by the national rifle
association, provided such pistol or revolver is unloaded and carried in
a locked carrying case and the ammunition therefor is carried in a
separate locked container.
13. Possession of pistols and revolvers by a person who is a
nonresident of this state while attending or traveling to or from, an
organized competitive pistol match or league competition under auspices
of, or approved by, the National Rifle Association and in which he is a
competitor, within forty-eight hours of such event or by a person who is
a non-resident of the state while attending or traveling to or from an
organized match sanctioned by the International Handgun Metallic
Silhouette Association and in which he is a competitor, within
forty-eight hours of such event, provided that he has not been
previously convicted of a felony or a crime which, if committed in New
York, would constitute a felony, and further provided that the pistols
or revolvers are transported unloaded in a locked opaque container
together with a copy of the match program, match schedule or match
registration card. Such documentation shall constitute prima facie
evidence of exemption, providing that such person also has in his
possession a pistol license or firearms registration card issued in
accordance with the laws of his place of residence. For purposes of this
subdivision, a person licensed in a jurisdiction which does not
authorize such license by a person who has been previously convicted of
a felony shall be presumed to have no prior conviction. The
superintendent of state police shall annually review the laws of
jurisdictions within the United States and Canada with respect to the
applicable requirements for licensing or registration of firearms and
shall publish a list of those jurisdictions which prohibit possession of
a firearm by a person previously convicted of a felony or crimes which
if committed in New York state would constitute a felony.
13-a. Except in cities not wholly contained within a single county of
the state, possession of pistols and revolvers by a person who is a
nonresident of this state while attending or traveling to or from, an
organized convention or exhibition for the display of or education about
firearms, which is conducted under auspices of, or approved by, the
National Rifle Association and in which he is a registered participant,
within forty-eight hours of such event, provided that he has not been
previously convicted of a felony or a crime which, if committed in New
York, would constitute a felony, and further provided that the pistols
or revolvers are transported unloaded in a locked opaque container
together with a copy of the convention or exhibition program, convention
or exhibition schedule or convention or exhibition registration card.
Such documentation shall constitute prima facie evidence of exemption,
providing that such person also has in his possession a pistol license
or firearms registration card issued in accordance with the laws of his
place of residence. For purposes of this paragraph, a person licensed in
a jurisdiction which does not authorize such license by a person who has
been previously convicted of a felony shall be presumed to have no prior
conviction. The superintendent of state police shall annually review the
laws of jurisdictions within the United States and Canada with respect
to the applicable requirements for licensing or registration of firearms
and shall publish a list of those jurisdictions which prohibit
possession of a firearm by a person previously convicted of a felony or
crimes which if committed in New York state would constitute a felony.
14. Possession in accordance with the provisions of this paragraph of
a self-defense spray device as defined herein for the protection of a
person or property and use of such self-defense spray device under
circumstances which would justify the use of physical force pursuant to
article thirty-five of this chapter.
(a) As used in this section "self-defense spray device" shall mean a
pocket sized spray device which contains and releases a chemical or
organic substance which is intended to produce temporary physical
discomfort or disability through being vaporized or otherwise dispensed
in the air or any like device containing tear gas, pepper or similar
disabling agent.
(b) The exemption under this paragraph shall not apply to a person
who:
(i) is less than eighteen years of age; or
(ii) has been previously convicted in this state of a felony or any
assault; or
(iii) has been convicted of a crime outside the state of New York
which if committed in New York would constitute a felony or any assault
crime.
(c) The department of health, with the cooperation of the division of
criminal justice services and the superintendent of state police, shall
develop standards and promulgate regulations regarding the type of
self-defense spray device which may lawfully be purchased, possessed and
used pursuant to this paragraph. The regulations shall include a
requirement that every self-defense spray device which may be lawfully
purchased, possessed or used pursuant to this paragraph have a label
which states: "WARNING: The use of this substance or device for any
purpose other than self-defense is a criminal offense under the law. The
contents are dangerous - use with care. This device shall not be sold by
anyone other than a licensed or authorized dealer. Possession of this
device by any person under the age of eighteen or by anyone who has been
convicted of a felony or assault is illegal. Violators may be prosecuted
under the law."
15. Possession and sale of a self-defense spray device as defined in
paragraph fourteen of this subdivision by a dealer in firearms licensed
pursuant to section 400.00 of this chapter, a pharmacist licensed
pursuant to article one hundred thirty-seven of the education law or by
such other vendor as may be authorized and approved by the
superintendent of state police.
(a) Every self-defense spray device shall be accompanied by an insert
or inserts which include directions for use, first aid information,
safety and storage information and which shall also contain a toll free
telephone number for the purpose of allowing any purchaser to call and
receive additional information regarding the availability of local
courses in self-defense training and safety in the use of a self-defense
spray device.
(b) Before delivering a self-defense spray device to any person, the
licensed or authorized dealer shall require proof of age and a sworn
statement on a form approved by the superintendent of state police that
such person has not been convicted of a felony or any crime involving an
assault. Such forms shall be forwarded to the division of state police
at such intervals as directed by the superintendent of state police.
Absent any such direction the forms shall be maintained on the premises
of the vendor and shall be open at all reasonable hours for inspection
by any peace officer or police officer, acting pursuant to his or her
special duties. No more than two self-defense spray devices may be sold
at any one time to a single purchaser.
16. The terms "rifle," "shotgun," "pistol," "revolver," and "firearm"
as used in paragraphs three, four, five, seven, seven-a, seven-b, nine,
nine-a, ten, twelve, thirteen and thirteen-a of this subdivision shall
not include a disguised gun or an assault weapon.
b. Section 265.01 shall not apply to possession of that type of billy
commonly known as a "police baton" which is twenty-four to twenty-six
inches in length and no more than one and one-quarter inches in
thickness by members of an auxiliary police force of a city with a
population in excess of one million persons or the county of Suffolk
when duly authorized by regulation or order issued by the police
commissioner of such city or such county respectively. Such regulations
shall require training in the use of the police baton including but not
limited to the defensive use of the baton and instruction in the legal
use of deadly physical force pursuant to article thirty-five of this
chapter. Notwithstanding the provisions of this section or any other
provision of law, possession of such baton shall not be authorized when
used intentionally to strike another person except in those situations
when the use of deadly physical force is authorized by such article
thirty-five.
c. Sections 265.01, 265.10 and 265.15 shall not apply to possession of
billies or blackjacks by persons:
1. while employed in fulfilling contracts with New York state, its
agencies or political subdivisions for the purchase of billies or
blackjacks; or
2. while employed in fulfilling contracts with sister states, their
agencies or political subdivisions for the purchase of billies or
blackjacks; or
3. while employed in fulfilling contracts with foreign countries,
their agencies or political subdivisions for the purchase of billies or
blackjacks as permitted under federal law.
S 265.25 Certain wounds to be reported.
Every case of a bullet wound, gunshot wound, powder burn or any other
injury arising from or caused by the discharge of a gun or firearm, and
every case of a wound which is likely to or may result in death and is
actually or apparently inflicted by a knife, icepick or other sharp or
pointed instrument, shall be reported at once to the police authorities
of the city, town or village where the person reporting is located by:
(a) the physician attending or treating the case; or (b) the manager,
superintendent or other person in charge, whenever such case is treated
in a hospital, sanitarium or other institution. Failure to make such
report is a class A misdemeanor. This subdivision shall not apply to
such wounds, burns or injuries received by a member of the armed forces
of the United States or the state of New York while engaged in the
actual performance of duty.
S 265.26 Burn injury and wounds to be reported.
Every case of a burn injury or wound, where the victim sustained
second or third degree burns to five percent or more of the body and/or
any burns to the upper respiratory tract or laryngeal edema due to the
inhalation of super-heated air, and every case of a burn injury or wound
which is likely to or may result in death, shall be reported at once to
the office of fire prevention and control. The state fire administrator
shall accept the report and notify the proper investigatory agency. A
written report shall also be provided to the office of fire prevention
and control within seventy-two hours. The report shall be made by (a)
the physician attending or treating the case; or (b) the manager,
superintendent or other person in charge, whenever such case is treated
in a hospital, sanitarium, institution or other medical facility.
The intentional failure to make such report is a class A misdemeanor.
S 265.30 Certain convictions to be reported.
Every conviction under this article or section 400.00, of a person who
is not a citizen of the United States, shall be certified to the proper
officer of the United States government by the district attorney of the
county in which such conviction was had.
S 265.35 Prohibited use of weapons.
1. Any person hunting with a dangerous weapon in any county wholly
embraced within the territorial limits of a city is guilty of a class A
misdemeanor.
2. Any person who wilfully discharges a loaded firearm or any other
gun, the propelling force of which is gunpowder, at an aircraft while
such aircraft is in motion in the air or in motion or stationary upon
the ground, or at any railway or street railroad train as defined by the
public service law, or at a locomotive, car, bus or vehicle standing or
moving upon such railway, railroad or public highway, is guilty of a
class D felony if thereby the safety of any person is endangered, and in
every other case, of a class E felony.
3. Any person who, otherwise than in self defense or in the discharge
of official duty, (a) wilfully discharges any species of firearms,
air-gun or other weapon, or throws any other deadly missile, either in a
public place, or in any place where there is any person to be endangered
thereby, or, in Putnam county, within one-quarter mile of any occupied
school building other than under supervised instruction by properly
authorized instructors although no injury to any person ensues; (b)
intentionally, without malice, points or aims any firearm or any other
gun, the propelling force of which is gunpowder, at or toward any other
person; (c) discharges, without injury to any other person, firearms or
any other guns, the propelling force of which is gunpowder, while
intentionally without malice, aimed at or toward any person; or (d)
maims or injures any other person by the discharge of any firearm or any
other gun, the propelling force of which is gunpowder, pointed or aimed
intentionally, but without malice, at any such person, is guilty of a
class A misdemeanor.
S 265.40 Purchase of rifles and/or shotguns in contiguous states.
Definitions. As used in this act:
1. "Contiguous state" shall mean any state having any portion of its
border in common with a portion of the border of the state of New York;
2. All other terms herein shall be given the meaning prescribed in
Public Law 90-618 known as the "Gun Control Act of l968" (18 U.S.C.
921).
It shall be lawful for a person or persons residing in this state, to
purchase or otherwise obtain a rifle and/or shotgun in a contiguous
state, and to receive or transport such rifle and/or shotgun into this
state; provided, however, such person is otherwise eligible to possess a
rifle and/or shotgun under the laws of this state.
Back to Top
Forgery
* TITLE K
OFFENSES INVOLVING FRAUD
ARTICLE 170
FORGERY AND RELATED OFFENSES
Section 170.00 Forgery; definitions of terms.
170.05 Forgery in the third degree.
170.10 Forgery in the second degree.
170.15 Forgery in the first degree.
170.20 Criminal possession of a forged instrument in the third
degree.
170.25 Criminal possession of a forged instrument in the second
degree.
170.27 Criminal possession of a forged instrument in the second
degree; presumption.
170.30 Criminal possession of a forged instrument in the first
degree.
170.35 Criminal possession of a forged instrument; no defense.
170.40 Criminal possession of forgery devices.
170.45 Criminal simulation.
170.47 Criminal possession of an anti-security item.
170.50 Unlawfully using slugs; definitions of terms.
170.55 Unlawfully using slugs in the second degree.
170.60 Unlawfully using slugs in the first degree.
170.65 Forgery of a vehicle identification number.
170.70 Illegal possession of a vehicle identification number.
170.71 Illegal possession of a vehicle identification number;
presumtions.
170.75 Fraudulent making of an electronic access device in the
second degree.
S 170.00 Forgery; definitions of terms.
1. "Written instrument" means any instrument or article, including
computer data or a computer program, containing written or printed
matter or the equivalent thereof, used for the purpose of reciting,
embodying, conveying or recording information, or constituting a symbol
or evidence of value, right, privilege or identification, which is
capable of being used to the advantage or disadvantage of some person.
2. "Complete written instrument" means one which purports to be a
genuine written instrument fully drawn with respect to every essential
feature thereof. An endorsement, attestation, acknowledgment or other
similar signature or statement is deemed both a complete written
instrument in itself and a part of the main instrument in which it is
contained or to which it attaches.
3. "Incomplete written instrument" means one which contains some
matter by way of content or authentication but which requires additional
matter in order to render it a complete written instrument.
4. "Falsely make." A person "falsely makes" a written instrument when
he makes or draws a complete written instrument in its entirety, or an
incomplete written instrument, which purports to be an authentic
creation of its ostensible maker or drawer, but which is not such either
because the ostensible maker or drawer is fictitious or because, if
real, he did not authorize the making or drawing thereof.
5. "Falsely complete." A person "falsely completes" a written
instrument when, by adding, inserting or changing matter, he transforms
an incomplete written instrument into a complete one, without the
authority of anyone entitled to grant it, so that such complete
instrument appears or purports to be in all respects an authentic
creation of or fully authorized by its ostensible maker or drawer.
6. "Falsely alter." A person "falsely alters" a written instrument
when, without the authority of anyone entitled to grant it, he changes a
written instrument, whether it be in complete or incomplete form, by
means of erasure, obliteration, deletion, insertion of new matter,
transposition of matter, or in any other manner, so that such instrument
in its thus altered form appears or purports to be in all respects an
authentic creation of or fully authorized by its ostensible maker or
drawer.
7. "Forged instrument" means a written instrument which has been
falsely made, completed or altered.
8. "Electronic access device" means a mobile identification number or
electronic serial number that can be used to obtain telephone service.
S 170.05 Forgery in the third degree.
A person is guilty of forgery in the third degree when, with intent to
defraud, deceive or injure another, he falsely makes, completes or
alters a written instrument.
Forgery in the third degree is a class A misdemeanor.
S 170.10 Forgery in the second degree.
A person is guilty of forgery in the second degree when, with intent
to defraud, deceive or injure another, he falsely makes, completes or
alters a written instrument which is or purports to be, or which is
calculated to become or to represent if completed:
1. A deed, will, codicil, contract, assignment, commercial instrument,
credit card, as that term is defined in subdivision seven of section
155.00, or other instrument which does or may evidence, create,
transfer, terminate or otherwise affect a legal right, interest,
obligation or status; or
2. A public record, or an instrument filed or required or authorized
by law to be filed in or with a public office or public servant; or
3. A written instrument officially issued or created by a public
office, public servant or governmental instrumentality; or
4. Part of an issue of tokens, public transportation transfers,
certificates or other articles manufactured and designed for use as
symbols of value usable in place of money for the purchase of property
or services; or
5. A prescription of a duly licensed physician or other person
authorized to issue the same for any drug or any instrument or device
used in the taking or administering of drugs for which a prescription is
required by law.
Forgery in the second degree is a class D felony.
S 170.15 Forgery in the first degree.
A person is guilty of forgery in the first degree when, with intent to
defraud, deceive or injure another, he falsely makes, completes or
alters a written instrument which is or purports to be, or which is
calculated to become or to represent if completed:
1. Part of an issue of money, stamps, securities or other valuable
instruments issued by a government or governmental instrumentality; or
2. Part of an issue of stock, bonds or other instruments representing
interests in or claims against a corporate or other organization or its
property.
Forgery in the first degree is a class C felony.
S 170.20 Criminal possession of a forged instrument in the third degree.
A person is guilty of criminal possession of a forged instrument in
the third degree when, with knowledge that it is forged and with intent
to defraud, deceive or injure another, he utters or possesses a forged
instrument.
Criminal possession of a forged instrument in the third degree is a
class A misdemeanor.
S 170.25 Criminal possession of a forged instrument in the second
degree.
A person is guilty of criminal possession of a forged instrument in
the second degree when, with knowledge that it is forged and with intent
to defraud, deceive or injure another, he utters or possesses any forged
instrument of a kind specified in section 170.10.
Criminal possession of a forged instrument in the second degree is a
class D felony.
S 170.27 Criminal possession of a forged instrument in the second
degree; presumption.
A person who possesses two or more forged instruments, each of which
purports to be a credit card or debit card, as those terms are defined
in subdivisions seven and seven-a of section 155.00, is presumed to
possess the same with knowledge that they are forged and with intent to
defraud, deceive or injure another.
S 170.30 Criminal possession of a forged instrument in the first degree.
A person is guilty of criminal possession of a forged instrument in
the first degree when, with knowledge that it is forged and with intent
to defraud, deceive or injure another, he utters or possesses any forged
instrument of a kind specified in section 170.15.
Criminal possession of a forged instrument in the first degree is a
class C felony.
S 170.35 Criminal possession of a forged instrument; no defense.
In any prosecution for criminal possession of a forged instrument, it
is no defense that the defendant forged or participated in the forgery
of the instrument in issue; provided that a person may not be convicted
of both criminal possession of a forged instrument and forgery with
respect to the same instrument.
S 170.40 Criminal possession of forgery devices.
A person is guilty of criminal possession of forgery devices when:
1. He makes or possesses with knowledge of its character any plate,
die or other device, apparatus, equipment, or article specifically
designed for use in counterfeiting or otherwise forging written
instruments; or
2. With intent to use, or to aid or permit another to use, the same
for purposes of forgery, he makes or possesses any device, apparatus,
equipment or article capable of or adaptable to such use.
Criminal possession of forgery devices is a class D felony.
S 170.45 Criminal simulation.
A person is guilty of criminal simulation when:
1. With intent to defraud, he makes or alters any object in such
manner that it appears to have an antiquity, rarity, source or
authorship which it does not in fact possess; or
2. With knowledge of its true character and with intent to defraud, he
utters or possesses an object so simulated.
Criminal simulation is a class A misdemeanor.
S 170.47 Criminal possession of an anti-security item.
A person is guilty of criminal possession of an anti-security item,
when with intent to steal property at a retail mercantile establishment
as defined in article twelve-B of the general business law, he knowingly
possesses in such an establishment an item designed for the purpose of
overcoming detection of security markings or attachments placed on
property offered for sale at such an establishment.
Criminal possession of an anti-security item is a class B misdemeanor.
S 170.50 Unlawfully using slugs; definitions of terms.
The following definitions are applicable to sections 170.55 and
170.60:
1. "Coin machine" means a coin box, turnstile, vending machine or
other mechanical or electronic device or receptacle designed (a) to
receive a coin or bill or a token made for the purpose, and (b) in
return for the insertion or deposit thereof, automatically to offer, to
provide, to assist in providing or to permit the acquisition of some
property or some service.
2. "Slug" means an object or article which, by virtue of its size,
shape or any other quality, is capable of being inserted or deposited in
a coin machine as an improper substitute for a genuine coin, bill or
token.
3. "Value" of a slug means the value of the coin, bill or token for
which it is capable of being substituted.
S 170.55 Unlawfully using slugs in the second degree.
A person is guilty of unlawfully using slugs in the second degree
when:
1. With intent to defraud the owner of a coin machine, he inserts or
deposits a slug in such machine; or
2. He makes, possesses or disposes of a slug with intent to enable a
person to insert or deposit it in a coin machine.
Unlawfully using slugs in the second degree is a class B misdemeanor.
S 170.60 Unlawfully using slugs in the first degree.
A person is guilty of unlawfully using slugs in the first degree when
he makes, possesses or disposes of slugs with intent to enable a person
to insert or deposit them in a coin machine, and the value of such slugs
exceeds one hundred dollars.
Unlawfully using slugs in the first degree is a class E felony.
S 170.65 Forgery of a vehicle identification number.
A person is guilty of forgery of a vehicle identification number when:
(1) He knowingly destroys, covers, defaces, alters or otherwise
changes the form or appearance of a vehicle identification number on any
vehicle or component part thereof, except tires; or
(2) He removes any such number from a vehicle or component part
thereof, except as required by the provisions of the vehicle and traffic
law; or
(3) He affixes a vehicle identification number to a vehicle, except
in accordance with the provisions of the vehicle and traffic law.
Forgery of a vehicle identification number is a class E felony.
S 170.70 Illegal possession of a vehicle identification number.
A person is guilty of illegal possession of a vehicle identification
number when:
(1) He knowingly possesses a vehicle identification number label,
sticker or plate which has been removed from the vehicle or vehicle part
to which such label, sticker or plate was affixed by the manufacturer in
accordance with 49 U.S.C. section 32101, et seq. and regulations
promulgated thereunder or in accordance with the provisions of the
vehicle and traffic law; or
(2) He knowingly possesses a vehicle or vehicle part to which is
attached a vehicle identification number label, sticker or plate or on
which is stamped or embossed a vehicle identification number which has
been destroyed, covered, defaced, altered or otherwise changed, or a
vehicle or vehicle part from which a vehicle identification number
label, sticker or plate has been removed, which label, sticker or plate
was affixed in accordance with 49 U.S.C. section 32101, et seq. or
regulations promulgated thereunder, except when he has complied with the
provisions of the vehicle and traffic law and regulations promulgated
thereunder; or
(3) He knowingly possesses a vehicle, or part of a vehicle to which by
law or regulation must be attached a vehicle identification number,
either (a) with a vehicle identification number label, sticker, or plate
which was not affixed by the manufacturer in accordance with 49 U.S.C.
section 32101, et seq. or regulations promulgated thereunder, or in
accordance with the provisions of the vehicle and traffic law or
regulations promulgated thereunder, or (b) on which is affixed, stamped
or embossed a vehicle identification number which was not affixed,
stamped or embossed by the manufacturer, or in accordance with 49 U.S.C.
section 32101, et seq. or regulations promulgated thereunder or in
accordance with the provisions of the vehicle and traffic law or
regulations promulgated thereunder.
Illegal possession of a vehicle identification number is a class E
felony.
S 170.71 Illegal possession of a vehicle identification number;
presumptions.
(1) A person is presumed to knowingly possess a vehicle or vehicle
part in violation of subdivision two of section 170.70, when he
possesses any combination of five such whole vehicles or individual
vehicle parts, none of which are attached to or contained in the same
vehicle.
(2) A person is presumed to knowingly possess a vehicle or vehicle
part in violation of subdivision three of section 170.70, when he
possesses any combination of five such whole vehicles or individual
vehicle parts, none of which are attached to or contained in the same
vehicle.
S 170.75 Fraudulent making of an electronic access device in the second
degree.
A person is guilty of fraudulent making of an electronic access device
in the second degree when, with intent to defraud, deceive or injure
another, he falsely makes, completes or alters two or more electronic
access devices, as that term is defined in subdivision eight of section
170.00 of this article.
Fraudulent making of an electronic access device in the second degree
is a class D felony.
Back to Top
Gambling
*
ARTICLE 225
GAMBLING OFFENSES
Section 225.00 Gambling offenses; definitions of terms.
225.05 Promoting gambling in the second degree.
225.10 Promoting gambling in the first degree.
225.15 Possession of gambling records in the second degree.
225.20 Possession of gambling records in the first degree.
225.25 Possession of gambling records; defense.
225.30 Possession of a gambling device.
225.32 Possession of a gambling device; defenses.
225.35 Gambling offenses; presumptions.
225.40 Lottery offenses; no defense.
S 225.00 Gambling offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Contest of chance" means any contest, game, gaming scheme or
gaming device in which the outcome depends in a material degree upon an
element of chance, notwithstanding that skill of the contestants may
also be a factor therein.
2. "Gambling." A person engages in gambling when he stakes or risks
something of value upon the outcome of a contest of chance or a future
contingent event not under his control or influence, upon an agreement
or understanding that he will receive something of value in the event of
a certain outcome.
3. "Player" means a person who engages in any form of gambling solely
as a contestant or bettor, without receiving or becoming entitled to
receive any profit therefrom other than personal gambling winnings, and
without otherwise rendering any material assistance to the
establishment, conduct or operation of the particular gambling activity.
A person who gambles at a social game of chance on equal terms with the
other participants therein does not otherwise render material assistance
to the establishment, conduct or operation thereof by performing,
without fee or remuneration, acts directed toward the arrangement or
facilitation of the game, such as inviting persons to play, permitting
the use of premises therefor and supplying cards or other equipment used
therein. A person who engages in "bookmaking", as defined in this
section is not a "player."
4. "Advance gambling activity." A person "advances gambling activity"
when, acting other than as a player, he engages in conduct which
materially aids any form of gambling activity. Such conduct includes but
is not limited to conduct directed toward the creation or establishment
of the particular game, contest, scheme, device or activity involved,
toward the acquisition or maintenance of premises, paraphernalia,
equipment or apparatus therefor, toward the solicitation or inducement
of persons to participate therein, toward the actual conduct of the
playing phases thereof, toward the arrangement of any of its financial
or recording phases, or toward any other phase of its operation. One
advances gambling activity when, having substantial proprietary or other
authoritative control over premises being used with his knowledge for
purposes of gambling activity, he permits such to occur or continue or
makes no effort to prevent its occurrence or continuation.
5. "Profit from gambling activity." A person "profits from gambling
activity" when, other than as a player, he accepts or receives money or
other property pursuant to an agreement or understanding with any person
whereby he participates or is to participate in the proceeds of gambling
activity.
6. "Something of value" means any money or property, any token, object
or article exchangeable for money or property, or any form of credit or
promise directly or indirectly contemplating transfer of money or
property or of any interest therein, or involving extension of a
service, entertainment or a privilege of playing at a game or scheme
without charge.
7. "Gambling device" means any device, machine, paraphernalia or
equipment which is used or usable in the playing phases of any gambling
activity, whether such activity consists of gambling between persons or
gambling by a person involving the playing of a machine. Notwithstanding
the foregoing, lottery tickets, policy slips and other items used in the
playing phases of lottery and policy schemes are not gambling devices.
7-a. A "coin operated gambling device" means a gambling device which
operates as a result of the insertion of something of value. A device
designed, constructed or readily adaptable or convertible for such use
is a coin operated gambling device notwithstanding the fact that it may
require adjustment, manipulation or repair in order to operate as such.
8. "Slot machine" means a gambling device which, as a result of the
insertion of a coin or other object, operates, either completely
automatically or with the aid of some physical act by the player, in
such manner that, depending upon elements of chance, it may eject
something of value. A device so constructed, or readily adaptable or
convertible to such use, is no less a slot machine because it is not in
working order or because some mechanical act of manipulation or repair
is required to accomplish its adaptation, conversion or workability. Nor
is it any less a slot machine because, apart from its use or
adaptability as such, it may also sell or deliver something of value on
a basis other than chance. A machine which sells items of merchandise
which are of equivalent value, is not a slot machine merely because such
items differ from each other in composition, size, shape or color. A
machine which awards free or extended play is not a slot machine merely
because such free or extended play may constitute something of value
provided that the outcome depends in a material degree upon the skill of
the player and not in a material degree upon an element of chance.
9. "Bookmaking" means advancing gambling activity by unlawfully
accepting bets from members of the public as a business, rather than in
a casual or personal fashion, upon the outcomes of future contingent
events.
10. "Lottery" means an unlawful gambling scheme in which (a) the
players pay or agree to pay something of value for chances, represented
and differentiated by numbers or by combinations of numbers or by some
other media, one or more of which chances are to be designated the
winning ones; and (b) the winning chances are to be determined by a
drawing or by some other method based upon the element of chance; and
(c) the holders of the winning chances are to receive something of value
provided, however, that in no event shall the provisions of this
subdivision be construed to include a raffle as such term is defined in
subdivision three-b of section one hundred eighty-six of the general
municipal law.
11. "Policy" or "the numbers game" means a form of lottery in which
the winning chances or plays are not determined upon the basis of a
drawing or other act on the part of persons conducting or connected with
the scheme, but upon the basis of the outcome or outcomes of a future
contingent event or events otherwise unrelated to the particular scheme.
12. "Unlawful" means not specifically authorized by law.
S 225.05 Promoting gambling in the second degree.
A person is guilty of promoting gambling in the second degree when he
knowingly advances or profits from unlawful gambling activity.
Promoting gambling in the second degree is a class A misdemeanor.
S 225.10 Promoting gambling in the first degree.
A person is guilty of promoting gambling in the first degree when he
knowingly advances or profits from unlawful gambling activity by:
1. Engaging in bookmaking to the extent that he receives or accepts in
any one day more than five bets totaling more than five thousand
dollars; or
2. Receiving, in connection with a lottery or policy scheme or
enterprise, (a) money or written records from a person other than a
player whose chances or plays are represented by such money or records,
or (b) more than five hundred dollars in any one day of money played in
such scheme or enterprise.
Promoting gambling in the first degree is a class E felony.
S 225.15 Possession of gambling records in the second degree.
A person is guilty of possession of gambling records in the second
degree when, with knowledge of the contents or nature thereof, he
possesses any writing, paper, instrument or article:
1. Of a kind commonly used in the operation or promotion of a
bookmaking scheme or enterprise; or
2. Of a kind commonly used in the operation, promotion or playing of a
lottery or policy scheme or enterprise; except that in any prosecution
under this subdivision, it is a defense that the writing, paper,
instrument or article possessed by the defendant constituted, reflected
or represented plays, bets or chances of the defendant himself in a
number not exceeding ten.
3. Of any paper or paper product in sheet form chemically converted to
nitrocellulose having explosive characteristics.
4. Of any water soluble paper or paper derivative in sheet form.
Possession of gambling records in the second degree is a class A
misdemeanor.
S 225.20 Possession of gambling records in the first degree.
A person is guilty of possession of gambling records in the first
degree when, with knowledge of the contents thereof, he possesses any
writing, paper, instrument or article:
1. Of a kind commonly used in the operation or promotion of a
bookmaking scheme or enterprise, and constituting, reflecting or
representing more than five bets totaling more than five thousand
dollars; or
2. Of a kind commonly used in the operation, promotion or playing of a
lottery or policy scheme or enterprise, and constituting, reflecting or
representing more than five hundred plays or chances therein.
Possession of gambling records in the first degree is a class E
felony.
S 225.25 Possession of gambling records; defense.
In any prosecution for possession of gambling records, it is a defense
that the writing, paper, instrument or article possessed by the
defendant was neither used nor intended to be used in the operation or
promotion of a bookmaking scheme or enterprise, or in the operation,
promotion or playing of a lottery or policy scheme or enterprise.
S 225.30 Possession of a gambling device.
a. A person is guilty of possession of a gambling device when, with
knowledge of the character thereof, he or she manufactures, sells,
transports, places or possesses, or conducts or negotiates any
transaction affecting or designed to affect ownership, custody or use
of:
1. A slot machine, unless such possession is permitted pursuant to
article nine-A of the general municipal law; or
2. Any other gambling device, believing that the same is to be used in
the advancement of unlawful gambling activity; or
3. A coin operated gambling device with intent to use such device in
the advancement of unlawful gambling activity.
b. Possession of a slot machine shall not be unlawful where such
possession and use is pursuant to a gaming compact, duly executed by the
governor and an Indian tribe or Nation, under the Indian Gaming
Regulatory Act, as codified at 25 U.S.C. SSSS 2701-2721 and 18 U.S.C
SSSS 1166-1168, where the use of such slot machine or machines is
consistent with such gaming compact and where the state receives a
negotiated percentage of the net drop (defined as gross money wagered
after payout, but before expenses) from any such slot machine or
machines.
c. Transportation and possession of a slot machine shall not be
unlawful where such transportation and possession is necessary to
facilitate the training of persons in the repair and reconditioning of
such machines as are used or are to be used for operations in those
casinos authorized pursuant to a tribal-state compact as provided for
pursuant to section eleven hundred seventy-two of title fifteen of the
United States Code in the state of New York.
Possession of a gambling device is a class A misdemeanor.
S 225.32 Possession of a gambling device; defenses.
1. In any prosecution for possession of a gambling device specified in
subdivision one of section 225.30 of this chapter, it is an affirmative
defense that: (a) the slot machine possessed by the defendant was
neither used nor intended to be used in the operation or promotion of
unlawful gambling activity or enterprise and that such slot machine is
an antique; for purposes of this section proof that a slot machine was
manufactured prior to nineteen hundred forty-one shall be conclusive
proof that such a machine is an antique; (b) the slot machine possessed
by the defendant was manufactured or assembled by the defendant for the
sole purpose of transporting such slot machine in a sealed container to
a jurisdiction outside this state for purposes which are lawful in such
outside jurisdiction; (c) the slot machine possessed by the defendant
was neither used nor intended to be used in the operation or promotion
of unlawful gambling activity or enterprise, is more than thirty years
old, and such possession takes place in the defendant`s home; or (d) the
slot machine was transported into this state in a sealed container for
the purpose of product development, research, or additional manufacture
or assembly, and such slot machine will be or has been transported in a
sealed container to a jurisdiction outside of this state for purposes
which are lawful in such outside jurisdiction.
2. Where a defendant raises an affirmative defense provided by
subdivision one hereof, any slot machine seized from the defendant shall
not be destroyed, or otherwise altered until a final court determination
is rendered. In a final court determination rendered in favor of said
defendant, such slot machine shall be returned, forthwith, to said
defendant, notwithstanding any provisions of law to the contrary.
S 225.35 Gambling offenses; presumptions.
1. Proof of possession of any gambling device or of any gambling
record specified in sections 225.15 and 225.20, is presumptive evidence
of possession thereof with knowledge of its character or contents.
2. In any prosecution under this article in which it is necessary to
prove the occurrence of a sporting event, a published report of its
occurrence in any daily newspaper, magazine or other periodically
printed publication of general circulation shall be admissible in
evidence and shall constitute presumptive proof of the occurrence of
such event.
3. Possession of three or more coin operated gambling devices or
possession of a coin operated gambling device in a public place shall be
presumptive evidence of intent to use in the advancement of unlawful
gambling activity.
S 225.40 Lottery offenses; no defense.
Any offense defined in this article which consists of the commission
of acts relating to a lottery is no less criminal because the lottery
itself is drawn or conducted without the state and is not violative of
the laws of the jurisdiction in which it was so drawn or conducted.
Back to Top
Harassment
*S 240.25 Harassment in the first degree.
A person is guilty of harassment in the first degree when he or she
intentionally and repeatedly harasses another person by following such
person in or about a public place or places or by engaging in a course
of conduct or by repeatedly committing acts which places such person in
reasonable fear of physical injury. This section shall not apply to
activities regulated by the national labor relations act, as amended,
the railway labor act, as amended, or the federal employment labor
management act, as amended.
Harassment in the first degree is a class B misdemeanor.
S 240.26 Harassment in the second degree.
A person is guilty of harassment in the second degree when, with
intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other
person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts
which alarm or seriously annoy such other person and which serve no
legitimate purpose.
Subdivisions two and three of this section shall not apply to
activities regulated by the national labor relations act, as amended,
the railway labor act, as amended, or the federal employment labor
management act, as amended.
Harassment in the second degree is a violation.
S 240.30 Aggravated harassment in the second degree.
A person is guilty of aggravated harassment in the second degree when,
with intent to harass, annoy, threaten or alarm another person, he or
she:
1. Either (a) communicates with a person, anonymously or otherwise, by
telephone, or by telegraph, mail or any other form of written
communication, in a manner likely to cause annoyance or alarm; or
(b) causes a communication to be initiated by mechanical or electronic
means or otherwise with a person, anonymously or otherwise, by
telephone, or by telegraph, mail or any other form of written
communication, in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with
no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because of a
belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct; or
4. Commits the crime of harassment in the first degree and has
previously been convicted of the crime of harassment in the first degree
as defined by section 240.25 of this article within the preceding ten
years.
Aggravated harassment in the second degree is a class A misdemeanor.
S 240.31 Aggravated harassment in the first degree.
A person is guilty of aggravated harassment in the first degree when
with intent to harass, annoy, threaten or alarm another person, because
of a belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct, he or she:
1. Damages premises primarily used for religious purposes, or acquired
pursuant to section six of the religious corporation law and maintained
for purposes of religious instruction, and the damage to the premises
exceeds fifty dollars; or
2. Commits the crime of aggravated harassment in the second degree in
the manner proscribed by the provisions of subdivision three of section
240.30 of this article and has been previously convicted of the crime of
aggravated harassment in the second degree for the commission of conduct
proscribed by the provisions of subdivision three of section 240.30 or
he has been previously convicted of the crime of aggravated harassment
in the first degree within the preceding ten years.
Aggravated harassment in the first degree is a class E felony.
Back to Top
Hate Crimes
* TITLE Y
HATE CRIMES ACT OF 2000
ARTICLE 485
HATE CRIMES
Section 485.00 Legislative findings.
485.05 Hate crimes.
485.10 Sentencing.
S 485.00 Legislative findings.
The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs.
Hate crimes can and do intimidate and disrupt entire communities and
vitiate the civility that is essential to healthy democratic processes.
In a democratic society, citizens cannot be required to approve of the
beliefs and practices of others, but must never commit criminal acts on
account of them. Current law does not adequately recognize the harm to
public order and individual safety that hate crimes cause. Therefore,
our laws must be strengthened to provide clear recognition of the
gravity of hate crimes and the compelling importance of preventing their
recurrence.
Accordingly, the legislature finds and declares that hate crimes
should be prosecuted and punished with appropriate severity.
S 485.05 Hate crimes.
1. A person commits a hate crime when he or she commits a specified
offense and either:
(a) intentionally selects the person against whom the offense is
committed or intended to be committed in whole or in substantial part
because of a belief or perception regarding the race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation of a person, regardless of whether the belief or
perception is correct, or
(b) intentionally commits the act or acts constituting the offense in
whole or in substantial part because of a belief or perception regarding
the race, color, national origin, ancestry, gender, religion, religious
practice, age, disability or sexual orientation of a person, regardless
of whether the belief or perception is correct.
2. Proof of race, color, national origin, ancestry, gender, religion,
religious practice, age, disability or sexual orientation of the
defendant, the victim or of both the defendant and the victim does not,
by itself, constitute legally sufficient evidence satisfying the
people`s burden under paragraph (a) or (b) of subdivision one of this
section.
3. A "specified offense" is an offense defined by any of the following
provisions of this chapter: section 120.00 (assault in the third
degree); section 120.05 (assault in the second degree); section 120.10
(assault in the first degree); section 120.12 (aggravated assault upon a
person less than eleven years old); section 120.13 (menacing in the
first degree); section 120.14 (menacing in the second degree); section
120.15 (menacing in the third degree); section 120.20 (reckless
endangerment in the second degree); section 120.25 (reckless
endangerment in the first degree); subdivision one of section 125.15
(manslaughter in the second degree); subdivision one, two or four of
section 125.20 (manslaughter in the first degree); section 125.25
(murder in the second degree); section 120.45 (stalking in the fourth
degree); section 120.50 (stalking in the third degree); section 120.55
(stalking in the second degree); section 120.60 (stalking in the first
degree); subdivision one of section 130.35 (rape in the first degree);
subdivision one of section 130.50 (criminal sexual act in the first
degree); subdivision one of section 130.65 (sexual abuse in the first
degree); paragraph (a) of subdivision one of section 130.67 (aggravated
sexual abuse in the second degree); paragraph (a) of subdivision one of
section 130.70 (aggravated sexual abuse in the first degree); section
135.05 (unlawful imprisonment in the second degree); section 135.10
(unlawful imprisonment in the first degree); section 135.20 (kidnapping
in the second degree); section 135.25 (kidnapping in the first degree);
section 135.60 (coercion in the second degree); section 135.65 (coercion
in the first degree); section 140.10 (criminal trespass in the third
degree); section 140.15 (criminal trespass in the second degree);
section 140.17 (criminal trespass in the first degree); section 140.20
(burglary in the third degree); section 140.25 (burglary in the second
degree); section 140.30 (burglary in the first degree); section 145.00
(criminal mischief in the fourth degree); section 145.05 (criminal
mischief in the third degree); section 145.10 (criminal mischief in the
second degree); section 145.12 (criminal mischief in the first degree);
section 150.05 (arson in the fourth degree); section 150.10 (arson in
the third degree); section 150.15 (arson in the second degree); section
150.20 (arson in the first degree); section 155.25 (petit larceny);
section 155.30 (grand larceny in the fourth degree); section 155.35
(grand larceny in the third degree); section 155.40 (grand larceny in
the second degree); section 155.42 (grand larceny in the first degree);
section 160.05 (robbery in the third degree); section 160.10 (robbery in
the second degree); section 160.15 (robbery in the first degree);
section 240.25 (harassment in the first degree); subdivision one, two or
four of section 240.30 (aggravated harassment in the second degree); or
any attempt or conspiracy to commit any of the foregoing offenses.
4. For purposes of this section:
(a) the term "age" means sixty years old or more;
(b) the term "disability" means a physical or mental impairment that
substantially limits a major life activity.
S 485.10 Sentencing.
1. When a person is convicted of a hate crime pursuant to this
article, and the specified offense is a violent felony offense, as
defined in section 70.02 of this chapter, the hate crime shall be deemed
a violent felony offense.
2. When a person is convicted of a hate crime pursuant to this article
and the specified offense is a misdemeanor or a class C, D or E felony,
the hate crime shall be deemed to be one category higher than the
specified offense the defendant committed, or one category higher than
the offense level applicable to the defendant`s conviction for an
attempt or conspiracy to commit a specified offense, whichever is
applicable.
3. Notwithstanding any other provision of law, when a person is
convicted of a hate crime pursuant to this article and the specified
offense is a class B felony:
(a) the maximum term of the indeterminate sentence must be at least
six years if the defendant is sentenced pursuant to section 70.00 of
this chapter;
(b) the term of the determinate sentence must be at least eight years
if the defendant is sentenced pursuant to section 70.02 of this chapter;
(c) the term of the determinate sentence must be at least twelve years
if the defendant is sentenced pursuant to section 70.04 of this chapter;
(d) the maximum term of the indeterminate sentence must be at least
four years if the defendant is sentenced pursuant to section 70.05 of
this chapter; and
(e) the maximum term of the indeterminate sentence or the term of the
determinate sentence must be at least ten years if the defendant is
sentenced pursuant to section 70.06 of this chapter.
4. Notwithstanding any other provision of law, when a person is
convicted of a hate crime pursuant to this article and the specified
offense is a class A-1 felony, the minimum period of the indeterminate
sentence shall be not less than twenty years.
Back to Top
Homicide
* ARTICLE 125
HOMICIDE, ABORTION AND RELATED OFFENSES
Section 125.00 Homicide defined.
125.05 Homicide, abortion and related offenses; definitions of
terms.
125.10 Criminally negligent homicide.
125.12 Vehicular manslaughter in the second degree.
125.13 Vehicular manslaughter in the first degree.
125.15 Manslaughter in the second degree.
125.20 Manslaughter in the first degree.
125.25 Murder in the second degree.
125.27 Murder in the first degree.
125.40 Abortion in the second degree.
125.45 Abortion in the first degree.
125.50 Self-abortion in the second degree.
125.55 Self-abortion in the first degree.
125.60 Issuing abortional articles.
S 125.00 Homicide defined.
Homicide means conduct which causes the death of a person or an unborn
child with which a female has been pregnant for more than twenty-four
weeks under circumstances constituting murder, manslaughter in the first
degree, manslaughter in the second degree, criminally negligent
homicide, abortion in the first degree or self-abortion in the first
degree.
S 125.05 Homicide, abortion and related offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Person," when referring to the victim of a homicide, means a human
being who has been born and is alive.
2. "Abortional act" means an act committed upon or with respect to a
female, whether by another person or by the female herself, whether she
is pregnant or not, whether directly upon her body or by the
administering, taking or prescription of drugs or in any other manner,
with intent to cause a miscarriage of such female.
3. "Justifiable abortional act." An abortional act is justifiable when
committed upon a female with her consent by a duly licensed physician
acting (a) under a reasonable belief that such is necessary to preserve
her life, or, (b) within twenty-four weeks from the commencement of her
pregnancy. A pregnant female`s commission of an abortional act upon
herself is justifiable when she acts upon the advice of a duly licensed
physician (1) that such act is necessary to preserve her life, or, (2)
within twenty-four weeks from the commencement of her pregnancy. The
submission by a female to an abortional act is justifiable when she
believes that it is being committed by a duly licensed physician, acting
under a reasonable belief that such act is necessary to preserve her
life, or, within twenty-four weeks from the commencement of her
pregnancy.
S 125.10 Criminally negligent homicide.
A person is guilty of criminally negligent homicide when, with
criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony.
S 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when
he:
(1) commits the crime of criminally negligent homicide as defined in
section 125.10, and either
(2) causes the death of such other person by operation of a vehicle in
violation of subdivision two, three or four of section eleven hundred
ninety-two of the vehicle and traffic law or by operation of a vessel or
public vessel in violation of paragraph (b), (c), (d) or (e) of
subdivision two of section forty-nine-a of the navigation law, or
(3) causes the death of such other person by operation of a motor
vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives in violation of subdivision one of section eleven hundred
ninety-two of the vehicle and traffic law, and such flammable gas,
radioactive materials or explosives is the cause of such death, by
operation of a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or by operation of an all terrain vehicle as defined in
paragraph (a) of subdivision one of section twenty-two hundred
eighty-one of the vehicle and traffic law in violation of subdivision
two, three, or four of section eleven hundred ninety-two of the vehicle
and traffic law.
Vehicular manslaughter in the second degree is a class D felony.
S 125.13 Vehicular manslaughter in the first degree.
A person is guilty of vehicular manslaughter in the first degree when
he:
(1) commits the crime of vehicular manslaughter in the second degree
as defined in section 125.12, and
(2) commits such crime while knowing or having reason to know that:
(a) his license or his privilege of operating a motor vehicle in another
state or his privilege of obtaining a license to operate a motor vehicle
in another state is suspended or revoked and such suspension or
revocation is based upon a conviction in such other state for an offense
which would, if committed in this state, constitute a violation of any
of the provisions of section eleven hundred ninety-two of the vehicle
and traffic law; or (b) his license or his privilege of operating a
motor vehicle in the state or his privilege of obtaining a license
issued by the commissioner of motor vehicles is suspended or revoked and
such suspension or revocation is based upon either a refusal to submit
to a chemical test pursuant to section eleven hundred ninety-four of the
vehicle and traffic law or following a conviction for a violation of any
of the provisions of section eleven hundred ninety-two of the vehicle
and traffic law.
Vehicular manslaughter in the first degree is a class C felony.
S 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.
S 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the
death of such person or of a third person under circumstances which do
not constitute murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of subdivision one of
section 125.25. The fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be
proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks
an abortional act which causes her death, unless such abortional act is
justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
engages in conduct which creates a grave risk of serious physical injury
to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.
S 125.25 Murder in the second degree.
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the
death of such person or of a third person; except that in any
prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant`s situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime; or
(b) The defendant`s conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, manslaughter in the second
degree or any other crime; or
2. Under circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person; or
3. Acting either alone or with one or more other persons, he commits
or attempts to commit robbery, burglary, kidnapping, arson, rape in the
first degree, criminal sexual act in the first degree, sexual abuse in
the first degree, aggravated sexual abuse, escape in the first degree,
or escape in the second degree, and, in the course of and in furtherance
of such crime or of immediate flight therefrom, he, or another
participant, if there be any, causes the death of a person other than
one of the participants; except that in any prosecution under this
subdivision, in which the defendant was not the only participant in the
underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request,
command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or
substance readily capable of causing death or serious physical injury
and of a sort not ordinarily carried in public places by law-abiding
persons; and
(c) Had no reasonable ground to believe that any other participant was
armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury; or
4. Under circumstances evincing a depraved indifference to human life,
and being eighteen years old or more the defendant recklessly engages in
conduct which creates a grave risk of serious physical injury or death
to another person less than eleven years old and thereby causes the
death of such person.
Murder in the second degree is a class A-I felony.
S 125.27 Murder in the first degree.
A person is guilty of murder in the first degree when:
1. With intent to cause the death of another person, he causes the
death of such person or of a third person; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision
34 of section 1.20 of the criminal procedure law who was at the time of
the killing engaged in the course of performing his official duties, and
the defendant knew or reasonably should have known that the intended
victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a
of subdivision twenty-one, subdivision twenty-three, twenty-four or
sixty-two (employees of the division for youth) of section 2.10 of the
criminal procedure law who was at the time of the killing engaged in the
course of performing his official duties, and the defendant knew or
reasonably should have known that the intended victim was such a
uniformed court officer, parole officer, probation officer, or employee
of the division for youth; or
(iii) the intended victim was an employee of a state correctional
institution or was an employee of a local correctional facility as
defined in subdivision two of section forty of the correction law, who
was at the time of the killing engaged in the course of performing his
official duties, and the defendant knew or reasonably should have known
that the intended victim was an employee of a state correctional
institution or a local correctional facility; or
(iv) at the time of the commission of the killing, the defendant was
confined in a state correctional institution or was otherwise in custody
upon a sentence for the term of his natural life, or upon a sentence
commuted to one of natural life, or upon a sentence for an indeterminate
term the minimum of which was at least fifteen years and the maximum of
which was natural life, or at the time of the commission of the killing,
the defendant had escaped from such confinement or custody while serving
such a sentence and had not yet been returned to such confinement or
custody; or
(v) the intended victim was a witness to a crime committed on a prior
occasion and the death was caused for the purpose of preventing the
intended victim`s testimony in any criminal action or proceeding whether
or not such action or proceeding had been commenced, or the intended
victim had previously testified in a criminal action or proceeding and
the killing was committed for the purpose of exacting retribution for
such prior testimony, or the intended victim was an immediate family
member of a witness to a crime committed on a prior occasion and the
killing was committed for the purpose of preventing or influencing the
testimony of such witness, or the intended victim was an immediate
family member of a witness who had previously testified in a criminal
action or proceeding and the killing was committed for the purpose of
exacting retribution upon such witness for such prior testimony. As used
in this subparagraph "immediate family member" means a husband, wife,
father, mother, daughter, son, brother, sister, stepparent, grandparent,
stepchild or grandchild; or
(vi) the defendant committed the killing or procured commission of the
killing pursuant to an agreement with a person other than the intended
victim to commit the same for the receipt, or in expectation of the
receipt, of anything of pecuniary value from a party to the agreement or
from a person other than the intended victim acting at the direction of
a party to such agreement; or
(vii) the victim was killed while the defendant was in the course of
committing or attempting to commit and in furtherance of robbery,
burglary in the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape in the first
degree, criminal sexual act in the first degree, sexual abuse in the
first degree, aggravated sexual abuse in the first degree or escape in
the first degree, or in the course of and furtherance of immediate
flight after committing or attempting to commit any such crime or in the
course of and furtherance of immediate flight after attempting to commit
the crime of murder in the second degree; provided however, the victim
is not a participant in one of the aforementioned crimes and, provided
further that, unless the defendant`s criminal liability under this
subparagraph is based upon the defendant having commanded another person
to cause the death of the victim or intended victim pursuant to section
20.00 of this chapter, this subparagraph shall not apply where the
defendant`s criminal liability is based upon the conduct of another
pursuant to section 20.00 of this chapter; or
(viii) as part of the same criminal transaction, the defendant, with
intent to cause serious physical injury to or the death of an additional
person or persons, causes the death of an additional person or persons;
provided, however, the victim is not a participant in the criminal
transaction; or
(ix) prior to committing the killing, the defendant had been convicted
of murder as defined in this section or section 125.25 of this article,
or had been convicted in another jurisdiction of an offense which, if
committed in this state, would constitute a violation of either of such
sections; or
(x) the defendant acted in an especially cruel and wanton manner
pursuant to a course of conduct intended to inflict and inflicting
torture upon the victim prior to the victim`s death. As used in this
subparagraph, "torture" means the intentional and depraved infliction of
extreme physical pain; "depraved" means the defendant relished the
infliction of extreme physical pain upon the victim evidencing
debasement or perversion or that the defendant evidenced a sense of
pleasure in the infliction of extreme physical pain; or
(xi) the defendant intentionally caused the death of two or more
additional persons within the state in separate criminal transactions
within a period of twenty-four months when committed in a similar
fashion or pursuant to a common scheme or plan; or
(xii) the intended victim was a judge as defined in subdivision
twenty-three of section 1.20 of the criminal procedure law and the
defendant killed such victim because such victim was, at the time of the
killing, a judge; or
(xiii) the victim was killed in furtherance of an act of terrorism, as
defined in paragraph (b) of subdivision one of section 490.05 of this
chapter; and
(b) The defendant was more than eighteen years old at the time of the
commission of the crime.
2. In any prosecution under subdivision one, it is an affirmative
defense that:
(a) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant`s situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime except murder in the
second degree; or
(b) The defendant`s conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, manslaughter in the second
degree or any other crime except murder in the second degree.
Murder in the first degree is a class A-I felony.
S 125.40 Abortion in the second degree.
A person is guilty of abortion in the second degree when he commits an
abortional act upon a female, unless such abortional act is justifiable
pursuant to subdivision three of section 125.05.
Abortion in the second degree is a class E felony.
S 125.45 Abortion in the first degree.
A person is guilty of abortion in the first degree when he commits
upon a female pregnant for more than twenty-four weeks an abortional act
which causes the miscarriage of such female, unless such abortional act
is justifiable pursuant to subdivision three of section 125.05.
Abortion in the first degree is a class D felony.
S 125.50 Self-abortion in the second degree.
A female is guilty of self-abortion in the second degree when, being
pregnant, she commits or submits to an abortional act upon herself,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05.
Self-abortion in the second degree is a class B misdemeanor.
S 125.55 Self-abortion in the first degree.
A female is guilty of self-abortion in the first degree when, being
pregnant for more than twenty-four weeks, she commits or submits to an
abortional act upon herself which causes her miscarriage, unless such
abortional act is justifiable pursuant to subdivision three of section
125.05.
Self-abortion in the first degree is a class A misdemeanor.
S 125.60 Issuing abortional articles.
A person is guilty of issuing abortional articles when he
manufactures, sells or delivers any instrument, article, medicine, drug
or substance with intent that the same be used in unlawfully procuring
the miscarriage of a female.
Issuing abortional articles is a class B misdemeanor.
Back to Top
Insurance Fraud
* ARTICLE 176
INSURANCE FRAUD
Section 176.00 Insurance fraud; definition of terms.
176.05 Insurance fraud; defined.
176.10 Insurance fraud in the fifth degree.
176.15 Insurance fraud in the fourth degree.
176.20 Insurance fraud in the third degree.
176.25 Insurance fraud in the second degree.
176.30 Insurance fraud in the first degree.
176.35 Aggravated insurance fraud.
S 176.00 Insurance fraud; definition of terms.
The following definitions are applicable to this article:
1. "Insurance policy" has the meaning assigned to insurance contract
by subsection (a) of section one thousand one hundred one of the
insurance law except it shall include reinsurance contracts, purported
insurance policies and purported reinsurance contracts.
2. "Statement" includes, but is not limited to, any notice, proof of
loss, bill of lading, invoice, account, estimate of property damages,
bill for services, diagnosis, prescription, hospital or doctor records,
x-ray, test result, and other evidence of loss, injury or expense.
3. "Person" includes any individual, firm, association or corporation.
4. "Personal insurance" means a policy of insurance insuring a natural
person against any of the following contingencies:
(a) loss of or damage to real property used predominantly for
residential purposes and which consists of not more than four dwelling
units, other than hotels, motels and rooming houses;
(b) loss of or damage to personal property which is not used in the
conduct of a business;
(c) losses or liabilities arising out of the ownership, operation, or
use of a motor vehicle, predominantly used for non-business purposes;
(d) other liabilities for loss of, damage to, or injury to persons or
property, not arising from the conduct of a business;
(e) death, including death by personal injury, or the continuation of
life, or personal injury by accident, or sickness, disease or ailment,
excluding insurance providing disability benefits pursuant to article
nine of the workers` compensation law.
A policy of insurance which insures any of the contingencies listed in
paragraphs (a) through (e) of this subdivision as well as other
contingencies shall be personal insurance if that portion of the annual
premium attributable to the listed contingencies exceeds that portion
attributable to other contingencies.
5. "Commercial insurance" means insurance other than personal
insurance, and shall also include insurance providing disability
benefits pursuant to article nine of the workers` compensation law,
insurance providing workers` compensation benefits pursuant to the
provisions of the workers` compensation law and any program of self
insurance providing similar benefits.
S 176.05 Insurance fraud; defined.
1. A fraudulent insurance act is committed by any person who,
knowingly and with intent to defraud presents, causes to be presented,
or prepares with knowledge or belief that it will be presented to or by
an insurer, self insurer, or purported insurer, or purported self
insurer, or any agent thereof, any written statement as part of, or in
support of, an application for the issuance of, or the rating of a
commercial insurance policy, or certificate or evidence of self
insurance for commercial insurance or commercial self insurance, or a
claim for payment or other benefit pursuant to an insurance policy or
self insurance program for commercial or personal insurance which he
knows to: (i) contain materially false information concerning any fact
material thereto; or (ii) conceal, for the purpose of misleading,
information concerning any fact material thereto.
2. A fraudulent health care insurance act is committed by any person
who, knowingly and with intent to defraud, presents, causes to be
presented, or prepares with knowledge or belief that it will be
presented to, or by, an insurer or purported insurer or self-insurer, or
any agent thereof, any written statement or other physical evidence as
part of, or in support of, an application for the issuance of a health
insurance policy, or a policy or contract or other authorization that
provides or allows coverage for, membership or enrollment in, or other
services of a public or private health plan, or a claim for payment,
services or other benefit pursuant to such policy, contract or plan,
which he knows to:
(a) contain materially false information concerning any material fact
thereto; or
(b) conceal, for the purpose of misleading, information concerning any
fact material thereto. Such policy or contract or plan or authorization
shall include, but not be limited to, those issued or operating pursuant
to any public or governmentally-sponsored or supported plan for health
care coverage or services or those otherwise issued or operated by
entities authorized pursuant to the public health law. For purposes of
this subdivision an "application for the issuance of a health insurance
policy" shall not include (a) any application for a health insurance
policy or contract approved by the superintendent of insurance pursuant
to the provisions of sections three thousand two hundred sixteen, four
thousand three hundred four, four thousand three hundred twenty-one or
four thousand three hundred twenty-two of the insurance law or any other
application for a health insurance policy or contract approved by the
superintendent of insurance in the individual or direct payment market;
and (b) any application for a certificate evidencing coverage under a
self-insured plan or under a group contract approved by the
superintendent of insurance.
S 176.10 Insurance fraud in the fifth degree.
A person is guilty of insurance fraud in the fifth degree when he
commits a fraudulent insurance act.
Insurance fraud in the fifth degree is a class A misdemeanor.
S 176.15 Insurance fraud in the fourth degree.
A person is guilty of insurance fraud in the fourth degree when he
commits a fraudulent insurance act and thereby wrongfully takes, obtains
or withholds, or attempts to wrongfully take, obtain or withhold
property with a value in excess of one thousand dollars.
Insurance fraud in the fourth degree is a class E felony.
S 176.20 Insurance fraud in the third degree.
A person is guilty of insurance fraud in the third degree when he
commits a fraudulent insurance act and thereby wrongfully takes, obtains
or withholds, or attempts to wrongfully take, obtain or withhold
property with a value in excess of three thousand dollars.
Insurance fraud in the third degree is a class D felony.
S 176.25 Insurance fraud in the second degree.
A person is guilty of insurance fraud in the second degree when he
commits a fraudulent insurance act and thereby wrongfully takes, obtains
or withholds, or attempts to wrongfully take, obtain or withhold
property with a value in excess of fifty thousand dollars.
Insurance fraud in the second degree is a class C felony.
S 176.30 Insurance fraud in the first degree.
A person is guilty of insurance fraud in the first degree when he
commits a fraudulent insurance act and thereby wrongfully takes, obtains
or withholds, or attempts to wrongfully take, obtain or withhold
property with a value in excess of one million dollars.
Insurance fraud in the first degree is a class B felony.
S 176.35 Aggravated insurance fraud.
A person is guilty of aggravated insurance fraud in the fourth degree
when he commits a fraudulent insurance act, and has been previously
convicted within the preceding five years of any offense, an essential
element of which is the commission of a fraudulent insurance act.
Aggravated insurance fraud in the fourth degree is a class D felony.
Back to Top
Kidnapping
*ARTICLE 135
KIDNAPPING, COERCION AND RELATED OFFENSES
Section 135.00 Unlawful imprisonment, kidnapping and custodial
interference; definitions of terms.
135.05 Unlawful imprisonment in the second degree.
135.10 Unlawful imprisonment in the first degree.
135.15 Unlawful imprisonment; defense.
135.20 Kidnapping in the second degree.
135.25 Kidnapping in the first degree.
135.30 Kidnapping; defense.
135.45 Custodial interference in the second degree.
135.50 Custodial interference in the first degree.
135.55 Substitution of children.
135.60 Coercion in the second degree.
135.65 Coercion in the first degree.
135.70 Coercion; no defense.
135.75 Coercion; defense.
S 135.00 Unlawful imprisonment, kidnapping and custodial interference;
definitions of terms.
The following definitions are applicable to this article:
1. "Restrain" means to restrict a person`s movements intentionally and
unlawfully in such manner as to interfere substantially with his liberty
by moving him from one place to another, or by confining him either in
the place where the restriction commences or in a place to which he has
been moved, without consent and with knowledge that the restriction is
unlawful. A person is so moved or confined "without consent" when such
is accomplished by (a) physical force, intimidation or deception, or (b)
any means whatever, including acquiescence of the victim, if he is a
child less than sixteen years old or an incompetent person and the
parent, guardian or other person or institution having lawful control or
custody of him has not acquiesced in the movement or confinement.
2. "Abduct" means to restrain a person with intent to prevent his
liberation by either (a) secreting or holding him in a place where he is
not likely to be found, or (b) using or threatening to use deadly
physical force.
3. "Relative" means a parent, ancestor, brother, sister, uncle or
aunt.
S 135.05 Unlawful imprisonment in the second degree.
A person is guilty of unlawful imprisonment in the second degree when
he restrains another person.
Unlawful imprisonment in the second degree is a class A misdemeanor.
S 135.10 Unlawful imprisonment in the first degree.
A person is guilty of unlawful imprisonment in the first degree when
he restrains another person under circumstances which expose the latter
to a risk of serious physical injury.
Unlawful imprisonment in the first degree is a class E felony.
S 135.15 Unlawful imprisonment; defense.
In any prosecution for unlawful imprisonment, it is an affirmative
defense that (a) the person restrained was a child less than sixteen
years old, and (b) the defendant was a relative of such child, and (c)
his sole purpose was to assume control of such child.
S 135.20 Kidnapping in the second degree.
A person is guilty of kidnapping in the second degree when he abducts
another person.
Kidnapping in the second degree is a class B felony.
S 135.25 Kidnapping in the first degree.
A person is guilty of kidnapping in the first degree when he abducts
another person and when:
1. His intent is to compel a third person to pay or deliver money or
property as ransom, or to engage in other particular conduct, or to
refrain from engaging in particular conduct; or
2. He restrains the person abducted for a period of more than twelve
hours with intent to:
(a) Inflict physical injury upon him or violate or abuse him sexually;
or
(b) Accomplish or advance the commission of a felony; or
(c) Terrorize him or a third person; or
(d) Interfere with the performance of a governmental or political
function; or
3. The person abducted dies during the abduction or before he is able
to return or to be returned to safety. Such death shall be presumed, in
a case where such person was less than sixteen years old or an
incompetent person at the time of the abduction, from evidence that his
parents, guardians or other lawful custodians did not see or hear from
him following the termination of the abduction and prior to trial and
received no reliable information during such period persuasively
indicating that he was alive. In all other cases, such death shall be
presumed from evidence that a person whom the person abducted would have
been extremely likely to visit or communicate with during the specified
period were he alive and free to do so did not see or hear from him
during such period and received no reliable information during such
period persuasively indicating that he was alive.
Kidnapping in the first degree is a class A-I felony.
S 135.30 Kidnapping; defense.
In any prosecution for kidnapping, it is an affirmative defense that
(a) the defendant was a relative of the person abducted, and (b) his
sole purpose was to assume control of such person.
Back to Top
Larceny
* TITLE J
OFFENSES INVOLVING THEFT
ARTICLE 155
LARCENY
Section 155.00 Larceny; definitions of terms.
155.05 Larceny; defined.
155.10 Larceny; no defense.
155.15 Larceny; defenses.
155.20 Larceny; value of stolen property.
155.25 Petit larceny.
155.30 Grand larceny in the fourth degree.
155.35 Grand larceny in the third degree.
155.40 Grand larceny in the second degree.
155.42 Grand larceny in the first degree.
155.45 Larceny; pleading and proof.
S 155.00 Larceny; definitions of terms.
The following definitions are applicable to this title:
1. "Property" means any money, personal property, real property,
computer data, computer program, thing in action, evidence of debt or
contract, or any article, substance or thing of value, including any
gas, steam, water or electricity, which is provided for a charge or
compensation.
2. "Obtain" includes, but is not limited to, the bringing about of a
transfer or purported transfer of property or of a legal interest
therein, whether to the obtainer or another.
3. "Deprive." To "deprive" another of property means (a) to withhold
it or cause it to be withheld from him permanently or for so extended a
period or under such circumstances that the major portion of its
economic value or benefit is lost to him, or (b) to dispose of the
property in such manner or under such circumstances as to render it
unlikely that an owner will recover such property.
4. "Appropriate." To "appropriate" property of another to oneself or a
third person means (a) to exercise control over it, or to aid a third
person to exercise control over it, permanently or for so extended a
period or under such circumstances as to acquire the major portion of
its economic value or benefit, or (b) to dispose of the property for the
benefit of oneself or a third person.
5. "Owner." When property is taken, obtained or withheld by one person
from another person, an "owner" thereof means any person who has a right
to possession thereof superior to that of the taker, obtainer or
withholder.
A person who has obtained possession of property by theft or other
illegal means shall be deemed to have a right of possession superior to
that of a person who takes, obtains or withholds it from him by
larcenous means. A joint or common owner of property shall not be
deemed to have a right of possession thereto superior to that of any
other joint or common owner thereof.
In the absence of a specific agreement to the contrary, a person in
lawful possession of property shall be deemed to have a right of
possession superior to that of a person having only a security interest
therein, even if legal title lies with the holder of the security
interest pursuant to a conditional sale contract or other security
agreement.
6. "Secret scientific material" means a sample, culture,
micro-organism, specimen, record, recording, document, drawing or any
other article, material, device or substance which constitutes,
represents, evidences, reflects, or records a scientific or technical
process, invention or formula or any part or phase thereof, and which is
not, and is not intended to be, available to anyone other than the
person or persons rightfully in possession thereof or selected persons
having access thereto with his or their consent, and when it accords or
may accord such rightful possessors an advantage over competitors or
other persons who do not have knowledge or the benefit thereof.
7. "Credit card" means any instrument or article defined as a credit
card in section five hundred eleven of the general business law.
7-a. "Debit card" means any instrument or article defined as a debit
card in section five hundred eleven of the general business law.
7-b. "Public benefit card" means any medical assistance card, food
stamp assistance card, public assistance card, or any other
identification, authorization card or electronic access device issued by
the state or a social services district as defined in subdivision seven
of section two of the social services law, which entitles a person to
obtain public assistance benefits under a local, state or federal
program administered by the state, its political subdivisions or social
services districts.
7-c. "Access device" means any telephone calling card number, credit
card number, account number, mobile identification number, electronic
serial number or personal identification number that can be used to
obtain telephone service.
8. "Service" includes, but is not limited to, labor, professional
service, a computer service, transportation service, the supplying of
hotel accommodations, restaurant services, entertainment, the supplying
of equipment for use, and the supplying of commodities of a public
utility nature such as gas, electricity, steam and water. A ticket or
equivalent instrument which evidences a right to receive a service is
not in itself service but constitutes property within the meaning of
subdivision one.
9. "Cable television service" means any and all services provided by
or through the facilities of any cable television system or closed
circuit coaxial cable communications system, or any microwave or similar
transmission service used in connection with any cable television system
or other similar closed circuit coaxial cable communications system.
S 155.05 Larceny; defined.
1. A person steals property and commits larceny when, with intent to
deprive another of property or to appropriate the same to himself or to
a third person, he wrongfully takes, obtains or withholds such property
from an owner thereof.
2. Larceny includes a wrongful taking, obtaining or withholding of
another`s property, with the intent prescribed in subdivision one of
this section, committed in any of the following ways:
(a) By conduct heretofore defined or known as common law larceny by
trespassory taking, common law larceny by trick, embezzlement, or
obtaining property by false pretenses;
(b) By acquiring lost property.
A person acquires lost property when he exercises control over
property of another which he knows to have been lost or mislaid, or to
have been delivered under a mistake as to the identity of the recipient
or the nature or amount of the property, without taking reasonable
measures to return such property to the owner;
(c) By committing the crime of issuing a bad check, as defined in
section 190.05;
(d) By false promise.
A person obtains property by false promise when, pursuant to a scheme
to defraud, he obtains property of another by means of a representation,
express or implied, that he or a third person will in the future engage
in particular conduct, and when he does not intend to engage in such
conduct or, as the case may be, does not believe that the third person
intends to engage in such conduct.
In any prosecution for larceny based upon a false promise, the
defendant`s intention or belief that the promise would not be performed
may not be established by or inferred from the fact alone that such
promise was not performed. Such a finding may be based only upon
evidence establishing that the facts and circumstances of the case are
wholly consistent with guilty intent or belief and wholly inconsistent
with innocent intent or belief, and excluding to a moral certainty every
hypothesis except that of the defendant`s intention or belief that the
promise would not be performed;
(e) By extortion.
A person obtains property by extortion when he compels or induces
another person to deliver such property to himself or to a third person
by means of instilling in him a fear that, if the property is not so
delivered, the actor or another will:
(i) Cause physical injury to some person in the future; or
(ii) Cause damage to property; or
(iii) Engage in other conduct constituting a crime; or
(iv) Accuse some person of a crime or cause criminal charges to be
instituted against him; or
(v) Expose a secret or publicize an asserted fact, whether true or
false, tending to subject some person to hatred, contempt or ridicule;
or
(vi) Cause a strike, boycott or other collective labor group action
injurious to some person`s business; except that such a threat shall not
be deemed extortion when the property is demanded or received for the
benefit of the group in whose interest the actor purports to act; or
(vii) Testify or provide information or withhold testimony or
information with respect to another`s legal claim or defense; or
(viii) Use or abuse his position as a public servant by performing
some act within or related to his official duties, or by failing or
refusing to perform an official duty, in such manner as to affect some
person adversely; or
(ix) Perform any other act which would not in itself materially
benefit the actor but which is calculated to harm another person
materially with respect to his health, safety, business, calling,
career, financial condition, reputation or personal relationships.
S 155.10 Larceny; no defense.
The crimes of (a) larceny committed by means of extortion and an
attempt to commit the same, and (b) bribe receiving by a labor official
as defined in section 180.20, and bribe receiving as defined in section
200.05, are not mutually exclusive, and it is no defense to a
prosecution for larceny committed by means of extortion or for an
attempt to commit the same that, by reason of the same conduct, the
defendant also committed one of such specified crimes of bribe
receiving.
S 155.15 Larceny; defenses.
1. In any prosecution for larceny committed by trespassory taking or
embezzlement, it is an affirmative defense that the property was
appropriated under a claim of right made in good faith.
2. In any prosecution for larceny by extortion committed by instilling
in the victim a fear that he or another person would be charged with a
crime, it is an affirmative defense that the defendant reasonably
believed the threatened charge to be true and that his sole purpose was
to compel or induce the victim to take reasonable action to make good
the wrong which was the subject of such threatened charge.
S 155.20 Larceny; value of stolen property.
For the purposes of this title, the value of property shall be
ascertained as follows:
1. Except as otherwise specified in this section, value means the
market value of the property at the time and place of the crime, or if
such cannot be satisfactorily ascertained, the cost of replacement of
the property within a reasonable time after the crime.
2. Whether or not they have been issued or delivered, certain written
instruments, not including those having a readily ascertainable market
value such as some public and corporate bonds and securities, shall be
evaluated as follows:
(a) The value of an instrument constituting an evidence of debt, such
as a check, draft or promissory note, shall be deemed the amount due or
collectable thereon or thereby, such figure ordinarily being the face
amount of the indebtedness less any portion thereof which has been
satisfied.
(b) The value of a ticket or equivalent instrument which evidences a
right to receive a transportation, entertainment or other service shall
be deemed the price stated thereon, if any; and if no price is stated
thereon the value shall be deemed the price of such ticket or equivalent
instrument which the issuer charges the general public.
(c) The value of any other instrument which creates, releases,
discharges or otherwise affects any valuable legal right, privilege or
obligation shall be deemed the greatest amount of economic loss which
the owner of the instrument might reasonably suffer by virtue of the
loss of the instrument.
3. Where the property consists of gas, steam, water or electricity,
which is provided for charge or compensation, the value shall be the
value of the property stolen in any consecutive twelve-month period.
4. When the value of property cannot be satisfactorily ascertained
pursuant to the standards set forth in subdivisions one and two of this
section, its value shall be deemed to be an amount less than two hundred
fifty dollars.
S 155.25 Petit larceny.
A person is guilty of petit larceny when he steals property.
Petit larceny is a class A misdemeanor.
S 155.30 Grand larceny in the fourth degree.
A person is guilty of grand larceny in the fourth degree when he
steals property and when:
1. The value of the property exceeds one thousand dollars; or
2. The property consists of a public record, writing or instrument
kept, filed or deposited according to law with or in the keeping of any
public office or public servant; or
3. The property consists of secret scientific material; or
4. The property consists of a credit card or debit card; or
5. The property, regardless of its nature and value, is taken from the
person of another; or
6. The property, regardless of its nature and value, is obtained by
extortion; or
7. The property consists of one or more firearms, rifles or shotguns,
as such terms are defined in section 265.00 of this chapter; or
8. The value of the property exceeds one hundred dollars and the
property consists of a motor vehicle, as defined in section one hundred
twenty-five of the vehicle and traffic law, other than a motorcycle, as
defined in section one hundred twenty-three of such law; or
9. The property consists of a scroll, religious vestment, vessel or
other item of property having a value of at least one hundred dollars
kept for or used in connection with religious worship in any building or
structure used as a place of religious worship by a religious
corporation, as incorporated under the religious corporations law or the
education law.
10. The property consists of an access device which the person intends
to use unlawfully to obtain telephone service.
Grand larceny in the fourth degree is a class E felony.
S 155.35 Grand larceny in the third degree.
A person is guilty of grand larceny in the third degree when he steals
property and when the value of the property exceeds three thousand
dollars.
Grand larceny in the third degree is a class D felony.
S 155.40 Grand larceny in the second degree.
A person is guilty of grand larceny in the second degree when he
steals property and when:
1. The value of the property exceeds fifty thousand dollars; or
2. The property, regardless of its nature and value, is obtained by
extortion committed by instilling in the victim a fear that the actor or
another person will (a) cause physical injury to some person in the
future, or (b) cause damage to property, or (c) use or abuse his
position as a public servant by engaging in conduct within or related to
his official duties, or by failing or refusing to perform an official
duty, in such manner as to affect some person adversely.
Grand larceny in the second degree is a class C felony.
S 155.42 Grand larceny in the first degree.
A person is guilty of grand larceny in the first degree when he steals
property and when the value of the property exceeds one million dollars.
Grand larceny in the first degree is a class B felony.
S 155.45 Larceny; pleading and proof.
1. Where it is an element of the crime charged that property was taken
from the person or obtained by extortion, an indictment for larceny must
so specify. In all other cases, an indictment, information or complaint
for larceny is sufficient if it alleges that the defendant stole
property of the nature or value required for the commission of the crime
charged without designating the particular way or manner in which such
property was stolen or the particular theory of larceny involved.
2. Proof that the defendant engaged in any conduct constituting
larceny as defined in section 155.05 is sufficient to support any
indictment, information or complaint for larceny other than one charging
larceny by extortion. An indictment charging larceny by extortion must
be supported by proof establishing larceny by extortion.
Back to Top
Marihuana
* ARTICLE 221
OFFENSES INVOLVING MARIHUANA
Section 221.00 Marihuana; definitions.
221.05 Unlawful possession of marihuana.
221.10 Criminal possession of marihuana in the fifth degree.
221.15 Criminal possession of marihuana in the fourth degree.
221.20 Criminal possession of marihuana in the third degree.
221.25 Criminal possession of marihuana in the second degree.
221.30 Criminal possession of marihuana in the first degree.
221.35 Criminal sale of marihuana in the fifth degree.
221.40 Criminal sale of marihuana in the fourth degree.
221.45 Criminal sale of marihuana in the third degree.
221.50 Criminal sale of marihuana in the second degree.
221.55 Criminal sale of marihuana in the first degree.
S 221.00 Marihuana; definitions.
Unless the context in which they are used clearly otherwise requires,
the terms occurring in this article shall have the same meaning ascribed
to them in article two hundred twenty of this chapter.
S 221.05 Unlawful possession of marihuana.
A person is guilty of unlawful possession of marihuana when he
knowingly and unlawfully possesses marihuana.
Unlawful possession of marihuana is a violation punishable only by a
fine of not more than one hundred dollars. However, where the defendant
has previously been convicted of an offense defined in this article or
article 220 of this chapter, committed within the three years
immediately preceding such violation, it shall be punishable (a) only by
a fine of not more than two hundred dollars, if the defendant was
previously convicted of one such offense committed during such period,
and (b) by a fine of not more than two hundred fifty dollars or a term
of imprisonment not in excess of fifteen days or both, if the defendant
was previously convicted of two such offenses committed during such
period.
S 221.10 Criminal possession of marihuana in the fifth degree.
A person is guilty of criminal possession of marihuana in the fifth
degree when he knowingly and unlawfully possesses:
1. marihuana in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view; or
2. one or more preparations, compounds, mixtures or substances
containing marihuana and the preparations, compounds, mixtures or
substances are of an aggregate weight of more than twenty-five grams.
Criminal possession of marihuana in the fifth degree is a class B
misdemeanor.
S 221.15 Criminal possession of marihuana in the fourth degree.
A person is guilty of criminal possession of marihuana in the fourth
degree when he knowingly and unlawfully possesses one or more
preparations, compounds, mixtures or substances containing marihuana and
the preparations, compounds, mixtures or substances are of an aggregate
weight of more than two ounces.
Criminal possession of marihuana in the fourth degree is a class A
misdemeanor.
S 221.20 Criminal possession of marihuana in the third degree.
A person is guilty of criminal possession of marihuana in the third
degree when he knowingly and unlawfully possesses one or more
preparations, compounds, mixtures or substances containing marihuana and
the preparations, compounds, mixtures or substances are of an aggregate
weight of more than eight ounces.
Criminal possession of marihuana in the third degree is a class E
felony.
S 221.25 Criminal possession of marihuana in the second degree.
A person is guilty of criminal possession of marihuana in the second
degree when he knowingly and unlawfully possesses one or more
preparations, compounds, mixtures or substances containing marihuana and
the preparations, compounds, mixtures or substances are of an aggregate
weight of more than sixteen ounces.
Criminal possession of marihuana in the second degree is a class D
felony.
S 221.30 Criminal possession of marihuana in the first degree.
A person is guilty of criminal possession of marihuana in the first
degree when he knowingly and unlawfully possesses one or more
preparations, compounds, mixtures or substances containing marihuana and
the preparations, compounds, mixtures or substances are of an aggregate
weight of more than ten pounds.
Criminal possession of marihuana in the first degree is a class C
felony.
S 221.35 Criminal sale of marihuana in the fifth degree.
A person is guilty of criminal sale of marihuana in the fifth degree
when he knowingly and unlawfully sells, without consideration, one or
more preparations, compounds, mixtures or substances containing
marihuana and the preparations, compounds, mixtures or substances are of
an aggregate weight of two grams or less; or one cigarette containing
marihuana.
Criminal sale of marihuana in the fifth degree is a class B
misdemeanor.
S 221.40 Criminal sale of marihuana in the fourth degree.
A person is guilty of criminal sale of marihuana in the fourth degree
when he knowingly and unlawfully sells marihuana except as provided in
section 221.35 of this article.
Criminal sale of marihuana in the fourth degree is a class A
misdemeanor.
S 221.45 Criminal sale of marihuana in the third degree.
A person is guilty of criminal sale of marihuana in the third degree
when he knowingly and unlawfully sells one or more preparations,
compounds, mixtures or substances containing marihuana and the
preparations, compounds, mixtures or substances are of an aggregate
weight of more than twenty-five grams.
Criminal sale of marihuana in the third degree is a class E felony.
S 221.50 Criminal sale of marihuana in the second degree.
A person is guilty of criminal sale of marihuana in the second degree
when he knowingly and unlawfully sells one or more preparations,
compounds, mixtures or substances containing marihuana and the
preparations, compounds, mixtures or substances are of an aggregate
weight of more than four ounces, or knowingly and unlawfully sells one
or more preparations, compounds, mixtures or substances containing
marihuana to a person less than eighteen years of age.
Criminal sale of marihuana in the second degree is a class D felony.
S 221.55 Criminal sale of marihuana in the first degree.
A person is guilty of criminal sale of marihuana in the first degree
when he knowingly and unlawfully sells one or more preparations,
compounds, mixtures or substances containing marihuana and the
preparations, compounds, mixtures or substances are of an aggregate
weight of more than sixteen ounces.
Criminal sale of marihuana in the first degree is a class C felony.
Back to Top
Money Laundering
* ARTICLE 470
MONEY LAUNDERING
Section 470.00 Definitions.
470.03 Money laundering: aggregation of value; other matters.
470.05 Money laundering in the fourth degree.
470.10 Money laundering in the third degree.
470.15 Money laundering in the second degree.
470.20 Money laundering in the first degree.
470.25 Money laundering; fines.
S 470.00 Definitions.
The following definitions are applicable to this article.
1. "Monetary instrument" means coin and currency of the United States
or of any other country; personal checks; bank checks; traveler`s
checks; money orders; and investment securities and negotiable
instruments, in bearer form or otherwise, in such form that title
thereto passes on delivery, except that "monetary instrument" shall not
include payments to attorneys for legal services.
2. "Conducts" includes initiating, concluding or participating in
initiating or concluding a transaction.
3. "Transaction" includes a payment, purchase, sale, loan, pledge,
gift, transfer, or delivery, and with respect to a financial institution
includes a deposit, withdrawal, transfer between accounts, exchange of
currency, loan, extension of credit, purchase or sale of any stock,
bond, certificate of deposit, or other monetary instrument, use of a
safe deposit box, or any other payment, transfer, or delivery by,
through, or to a financial institution, by whatever means effected,
except that "transaction" shall not include payments to attorneys for
legal services.
4. "Criminal conduct" means conduct which is a crime under the laws of
this state or conduct committed in any other jurisdiction which is or
would be a crime under the laws of this state.
5. "Specified criminal conduct" means criminal conduct committed in
this state constituting a criminal act, as the term criminal act is
defined in section 460.10 of this chapter, or constituting the crime of
enterprise corruption, as defined in section 460.20 of this chapter, or
conduct committed in any other jurisdiction which is or would be
specified criminal conduct if committed in this state.
6. "Financial institution" means :
(a) an insured bank, as defined in section 3(b) of the Federal Deposit
Insurance Act, 12 U.S.C. 1813(h);
(b) a commercial bank or trust company;
(c) a private banker;
(d) an agency or branch of a foreign bank in the United States;
(e) a credit union;
(f) a thrift institution;
(g) a broker or dealer registered with the Securities and Exchange
Commission under the Securities and Exchange Act of 1934, U.S.C. 78a et
seq.;
(h) a broker or dealer in securities or commodities;
(i) an investment banker or investment company;
(j) a currency exchange;
(k) an issuer, redeemer, or cashier of travelers` checks, checks,
money orders, or similar instruments;
(l) an operator of a credit card system;
(m) an insurance company;
(n) a dealer in precious metals, stones, or jewels;
(o) a pawnbroker;
(p) a loan or finance company;
(q) a travel agency;
(r) a person licensed to engage in the business of receiving money for
transmission or transmitting the same by whatever means, or any other
person engaged in such business as an agent of a licensee or engaged in
such business without a license;
(s) a telegraph company;
(t) a business engaged in vehicle sales, including automobile,
airplane and boat sales;
(u) persons involved in real estate closings and settlements;
(v) the United States Postal Service;
(w) an agency of the United States government or of a state or local
government carrying out a duty or power of a business described in this
subdivision;
(x) a casino, gambling casino, or gaming establishment with an annual
gaming revenue of more than a million dollars which:
(i) is licensed as a casino, gambling casino or gaming establishment
under the laws of any state or any political subdivision of any state;
or
(ii) is an Indian gaming operation conducted under or pursuant to the
Indian Gaming Regulatory Act other than an operation which is limited to
class 1 gaming as defined in subdivision six of section four of such
act; or
(y) any business or agency engaged in any activity which the
superintendent of banks or the United States Secretary of the Treasury
determines, by regulation, to be an activity which is similar to,
related to, or a substitute for activity which any business as described
in this subdivision is authorized to engage.
7. "Financial transaction" means a transaction involving:
(a) the movement of funds by wire or other means; or
(b) one or more monetary instruments; or
(c) the transfer of title to any real property, vehicle, vessel or
aircraft; or
(d) the use of a financial institution.
8. "Represented" means any representation made by a law enforcement
officer, or by another person at the direction of, or with the approval
of, such law enforcement officer.
9. "Law enforcement officer" means any public servant, federal or
state, who is authorized to conduct an investigation, prosecute or make
an arrest for a criminal offense.
10. For the purpose of this article, each of the five counties in the
city of New York shall be considered as a separate county.
S 470.03 Money laundering: aggregation of value; other matters.
1. For purposes of subdivisions one and three of sections 470.05,
470.10, and 470.15 and for purposes of subdivisions one and two of
section 470.20, of this article, financial transactions may be
considered together and the value of the property involved may be
aggregated, provided that the transactions are all part of a single
"criminal transaction" as defined in subdivision two of section 40.10 of
the criminal procedure law.
2. For purposes of subdivision two of sections 470.05, 470.10 and
470.15 of this article, separate occasions involving the transport,
transmittal or transfer of monetary instruments may be considered
together and the value of the monetary instruments involved may be
aggregated, provided that the occasions are all part of a single
"criminal transaction" as defined in subdivision two of section 40.10 of
the criminal procedure law.
3. Nothing in section 470.05; paragraph (b) of subdivision one,
paragraph (b) of subdivision two and paragraph (b) of subdivision three
of section 470.10; paragraph (b) of subdivision one, paragraph (b) of
subdivision two and paragraph (b) of subdivision three of section
470.15; or paragraph (b) of subdivision one and paragraph (b) of
subdivision two of section 470.20 of this article shall make it unlawful
to return funds held in escrow:
(a) as a portion of a purchase price for real property pursuant to a
contract of sale; or
(b) to satisfy the tax or other lawful obligations arising out of an
administrative or judicial proceeding concerning the person who provided
the escrow funds.
S 470.05 Money laundering in the fourth degree.
A person is guilty of money laundering in the fourth degree when:
1. Knowing that the property involved in one or more financial
transactions represents the proceeds of criminal conduct:
(a) he or she conducts one or more such financial transactions which
in fact involve the proceeds of specified criminal conduct:
(i) With intent to:
(A) promote the carrying on of criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
eighteen hundred two, eighteen hundred three, eighteen hundred four,
eighteen hundred five, eighteen hundred seven or eighteen hundred eight
of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of criminal conduct; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) The total value of the property involved in such financial
transaction or transactions exceeds five thousand dollars; or
2. Knowing that one or more monetary instruments represents the
proceeds of criminal conduct:
(a) he or she transports, transmits, or transfers on one or more
occasions, monetary instruments which in fact represent the proceeds of
specified criminal conduct:
(i) With intent to promote the carrying on of criminal conduct; or
(ii) Knowing that such transportation, transmittal, or transfer is
designed in whole or in part to:
(A) conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of criminal conduct; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) The total value of such monetary instrument or instruments exceeds
ten thousand dollars; or
3. He or she conducts one or more financial transactions:
(a) involving property represented to be the proceeds of specified
criminal conduct, or represented to be property used to conduct or
facilitate specified criminal conduct, with intent to:
(i) promote the carrying on of specified criminal conduct; or
(ii) conceal or disguise the nature, the location, the source, the
ownership or the control of property believed to be the proceeds of
specified criminal conduct; or
(iii) avoid any transaction reporting requirement imposed by law; and
(b) the total value of the property involved in such financial
transaction or transactions exceeds ten thousand dollars.
Money laundering in the fourth degree is a class E felony.
S 470.10 Money laundering in the third degree.
A person is guilty of money laundering in the third degree when:
1. Knowing that the property involved in one or more financial
transactions represents:
(a) the proceeds of the criminal sale of a controlled substance, he or
she conducts one or more such financial transactions which in fact
involve the proceeds of the criminal sale of a controlled substance:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
eighteen hundred two, eighteen hundred three, eighteen hundred four,
eighteen hundred five, eighteen hundred seven or eighteen hundred eight
of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial
transaction or transactions exceeds ten thousand dollars; or
(b) the proceeds of criminal conduct, he or she conducts one or more
such financial transactions which in fact involve the proceeds of
specified criminal conduct:
(i) With intent to:
(A) promote the carrying on of criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
eighteen hundred two, eighteen hundred three, eighteen hundred four,
eighteen hundred five, eighteen hundred seven or eighteen hundred eight
of the tax law; or
(ii) knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of criminal conduct; or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial
transaction or transactions exceeds fifty thousand dollars; or
2. Knowing that one or more monetary instruments represent:
(a) the proceeds of the criminal sale of a controlled substance, he or
she transports, transmits, or transfers or attempts to transport,
|
