S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          260
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       AN ACT to amend the penal law,  in  relation  to  establishing  criminal
         street gang enterprise offenses and the abatement of premises used for
         criminal street gang enterprise activity
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The penal law is amended by adding a  new  article  280  to
    2  read as follows:
    3                                  ARTICLE 280
    4                            CRIMINAL STREET GANG
    5                             ENTERPRISE OFFENSES
    6  SECTION 280.00 DEFINITIONS.
    7          280.05 CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT
    8                   OR RETENTION.
    9          280.10 CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT
   10                   OR RETENTION OF MINORS.
   11          280.15 COERCION  OF  A  MINOR INTO A CRIMINAL STREET GANG ENTER-
   12                   PRISE CONSPIRACY.
   13          280.20 CRIMINAL STREET GANG ENTERPRISE LEADERSHIP.
   14          280.25 ABATEMENT OF  PREMISES  USED  FOR  CRIMINAL  STREET  GANG
   15                   ENTERPRISE ACTIVITY.
   16          280.30 PREEMPTION.
   17  S 280.00 DEFINITIONS.
   18    THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
   19    1.  "CRIMINAL STREET GANG ENTERPRISE" MEANS A GROUP OF PERSONS SHARING
   20  A COMMON PURPOSE OF ENGAGING  IN  CRIMINAL  CONDUCT,  ASSOCIATED  IN  AN
   21  ASCERTAINABLE  STRUCTURE DISTINCT FROM A PATTERN OF STREET GANG CRIMINAL
   22  ACTIVITY, AND WITH A CONTINUITY OF  EXISTENCE,  STRUCTURE  AND  CRIMINAL
   23  PURPOSE BEYOND THE SCOPE OF INDIVIDUAL CRIMINAL ACTS.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00518-01-3
       S. 260                              2
    1    2.  "GANG CRIME" MEANS CONDUCT CONSTITUTING ANY OF THE FOLLOWING FELO-
    2  NIES, OR CONSPIRACY OR ATTEMPT TO COMMIT ANY OF THE FOLLOWING  FELONIES:
    3  SECTIONS  120.05, 120.10 AND 120.11 RELATING TO ASSAULT; SECTIONS 125.10
    4  TO 125.27 RELATING TO  HOMICIDE;  SECTIONS  130.25,  130.30  AND  130.35
    5  RELATING  TO  RAPE;  SECTIONS  135.20 AND 135.25 RELATING TO KIDNAPPING;
    6  SECTION 135.35 RELATING TO LABOR TRAFFICKING; SECTION 135.65 RELATING TO
    7  COERCION; SECTIONS 140.20,  140.25  AND  140.30  RELATING  TO  BURGLARY;
    8  SECTIONS  145.05, 145.10 AND 145.12 RELATING TO CRIMINAL MISCHIEF; ARTI-
    9  CLE ONE HUNDRED FIFTY RELATING TO ARSON; SECTIONS 155.30, 155.35, 155.40
   10  AND 155.42 RELATING TO GRAND LARCENY; SECTIONS  177.10,  177.15,  177.20
   11  AND  177.25  RELATING  TO  HEALTH  CARE FRAUD; ARTICLE ONE HUNDRED SIXTY
   12  RELATING TO ROBBERY; SECTIONS 165.45, 165.50, 165.52 AND 165.54 RELATING
   13  TO CRIMINAL POSSESSION OF STOLEN PROPERTY; SECTIONS  165.72  AND  165.73
   14  RELATING  TO  TRADEMARK COUNTERFEITING; SECTIONS 170.10, 170.15, 170.25,
   15  170.30, 170.40, 170.65 AND 170.70 RELATING TO FORGERY; SECTIONS  175.10,
   16  175.25, 175.35, 175.40 AND 210.40 RELATING TO FALSE STATEMENTS; SECTIONS
   17  176.15,  176.20, 176.25 AND 176.30 RELATING TO INSURANCE FRAUD; SECTIONS
   18  178.20 AND 178.25 RELATING TO CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
   19  TIONS  AND  PRESCRIPTIONS;  SECTIONS  180.03,  180.08,  180.15,  180.25,
   20  180.40,  180.45, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.20,
   21  200.22, 200.25, 200.27, 215.00, 215.05 AND 215.19 RELATING  TO  BRIBERY;
   22  SECTIONS 187.10, 187.15, 187.20 AND 187.25 RELATING TO RESIDENTIAL MORT-
   23  GAGE  FRAUD;  SECTIONS  190.40  AND  190.42  RELATING TO CRIMINAL USURY;
   24  SECTION 190.65 RELATING TO  SCHEMES  TO  DEFRAUD;  SECTIONS  205.60  AND
   25  205.65  RELATING  TO HINDERING PROSECUTION; SECTIONS 210.10, 210.15, AND
   26  215.51 RELATING TO PERJURY AND  CONTEMPT;  SECTION  215.40  RELATING  TO
   27  TAMPERING  WITH  PHYSICAL  EVIDENCE;  SECTIONS  220.06,  220.09, 220.16,
   28  220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46,  220.55,
   29  220.60 AND 220.77 RELATING TO CONTROLLED SUBSTANCES; SECTIONS 225.10 AND
   30  225.20  RELATING TO GAMBLING; SECTIONS 230.25, 230.30, AND 230.32 RELAT-
   31  ING TO PROMOTING PROSTITUTION; SECTION 230.34 RELATING TO SEX  TRAFFICK-
   32  ING;  SECTIONS  235.06, 235.07, 235.21 AND 235.22 RELATING TO OBSCENITY;
   33  SECTIONS 263.10 AND 263.15 RELATING TO PROMOTING A SEXUAL PERFORMANCE BY
   34  A CHILD; SECTIONS 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 AND THE
   35  PROVISIONS OF SECTION 265.10  WHICH  CONSTITUTE  A  FELONY  RELATING  TO
   36  FIREARMS  AND  OTHER  DANGEROUS  WEAPONS; AND SECTIONS 265.14 AND 265.16
   37  RELATING TO CRIMINAL SALE OF A  FIREARM;  AND  SECTION  275.10,  275.20,
   38  275.30,  OR  275.40  RELATING  TO  UNAUTHORIZED RECORDINGS; AND SECTIONS
   39  470.05, 470.10, 470.15 AND 470.20 RELATING TO MONEY LAUNDERING, OF  THIS
   40  CHAPTER.
   41    3. "PATTERN OF STREET GANG CRIMINAL ACTIVITY" MEANS CONDUCT ENGAGED IN
   42  BY  PERSONS CHARGED IN A CRIMINAL STREET GANG ENTERPRISE OFFENSE DEFINED
   43  IN THIS ARTICLE CONSTITUTING THREE OR MORE GANG CRIMES THAT:
   44    (A) WERE COMMITTED WITHIN TEN YEARS OF THE COMMENCEMENT OF THE  CRIMI-
   45  NAL ACTION;
   46    (B)  ARE  NEITHER  ISOLATED  INCIDENTS,  NOR  SO  CLOSELY  RELATED AND
   47  CONNECTED IN POINT OF TIME OR CIRCUMSTANCES OF COMMISSION AS TO  CONSTI-
   48  TUTE  A  CRIMINAL  OFFENSE  OR  CRIMINAL TRANSACTION, AS THOSE TERMS ARE
   49  DEFINED IN SECTION 40.10 OF THE CRIMINAL PROCEDURE LAW; AND
   50    (C) ARE EITHER:  (I) RELATED TO ONE ANOTHER THROUGH A COMMON SCHEME OR
   51  PLAN OR (II) WERE COMMITTED, SOLICITED, REQUESTED, IMPORTUNED OR  INTEN-
   52  TIONALLY  AIDED  BY  PERSONS ACTING WITH THE MENTAL CULPABILITY REQUIRED
   53  FOR THE COMMISSION THEREOF AND ASSOCIATED WITH OR IN THE CRIMINAL STREET
   54  GANG ENTERPRISE.
   55  S 280.05 CRIMINAL STREET GANG ENTERPRISE  SOLICITATION,  RECRUITMENT  OR
   56             RETENTION.
       S. 260                              3
    1    A  PERSON  IS  GUILTY OF CRIMINAL STREET GANG ENTERPRISE SOLICITATION,
    2  RECRUITMENT OR RETENTION WHEN HE OR SHE:
    3    1.  INTENTIONALLY  SOLICITS, RECRUITS, EMPLOYS, CAUSES, ENCOURAGES, OR
    4  CONSPIRES TO CAUSE ANOTHER PERSON TO BE OR REMAIN AS A MEMBER OF A CRIM-
    5  INAL STREET GANG ENTERPRISE THAT REQUIRES AS A CONDITION  OF  MEMBERSHIP
    6  OR  CONTINUED  MEMBERSHIP  THE  COMMISSION  OF  OR PARTICIPATION IN GANG
    7  CRIMES; OR
    8    2. INTENTIONALLY MAKES ANY COMMUNICATION, DIRECT OR INDIRECT,  CONSTI-
    9  TUTING A THREAT TO PERSON OR PROPERTY OR TO ANY ASSOCIATE OR RELATIVE OF
   10  THE PERSON BEING SOLICITED, RECRUITED OR RETAINED AS A MEMBER OF A CRIM-
   11  INAL  STREET  GANG ENTERPRISE THAT REQUIRES AS A CONDITION OF MEMBERSHIP
   12  OR CONTINUED MEMBERSHIP THE  COMMISSION  OF  OR  PARTICIPATION  IN  GANG
   13  CRIMES.
   14    CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT OR RETENTION
   15  IS A CLASS E FELONY.
   16  S 280.10 CRIMINAL  STREET  GANG  ENTERPRISE SOLICITATION, RECRUITMENT OR
   17             RETENTION OF MINORS.
   18    A PERSON IS GUILTY OF CRIMINAL STREET  GANG  ENTERPRISE  SOLICITATION,
   19  RECRUITMENT OR RETENTION OF MINORS WHEN HE OR SHE:
   20    1.  INTENTIONALLY  SOLICITS, RECRUITS, EMPLOYS, CAUSES, ENCOURAGES, OR
   21  CONSPIRES TO CAUSE ANOTHER PERSON UNDER EIGHTEEN YEARS OF AGE TO  BE  OR
   22  REMAIN AS A MEMBER OF A CRIMINAL STREET GANG ENTERPRISE THAT REQUIRES AS
   23  A  CONDITION  OF MEMBERSHIP OR CONTINUED MEMBERSHIP THE COMMISSION OF OR
   24  PARTICIPATION IN GANG CRIMES; OR
   25    2. INTENTIONALLY MAKES ANY COMMUNICATION, DIRECT OR INDIRECT,  CONSTI-
   26  TUTING A THREAT TO A PERSON UNDER EIGHTEEN YEARS OF AGE, TO PROPERTY, OR
   27  TO  ANY ASSOCIATE OR RELATIVE OF THE MINOR BEING SOLICITED, RECRUITED OR
   28  RETAINED AS A MEMBER OF A CRIMINAL STREET GANG ENTERPRISE THAT  REQUIRES
   29  AS  A  CONDITION OF MEMBERSHIP OR CONTINUED MEMBERSHIP THE COMMISSION OF
   30  OR PARTICIPATION IN GANG CRIMES.
   31    CRIMINAL STREET GANG ENTERPRISE SOLICITATION, RECRUITMENT OR RETENTION
   32  OF MINORS IS A CLASS D FELONY.
   33  S 280.15 COERCION OF A MINOR INTO  A  CRIMINAL  STREET  GANG  ENTERPRISE
   34             CONSPIRACY.
   35    A  PERSON IS GUILTY OF COERCION OF A MINOR INTO A CRIMINAL STREET GANG
   36  ENTERPRISE CONSPIRACY WHEN, WITH THE INTENT TO CAUSE PHYSICAL INJURY  TO
   37  A  PERSON  UNDER  EIGHTEEN  YEARS OF AGE, HE OR SHE CAUSES SUCH PHYSICAL
   38  INJURY TO SUCH PERSON OR ANOTHER PERSON UNDER EIGHTEEN YEARS OF AGE  FOR
   39  THE PURPOSE OF CAUSING OR COERCING SUCH PERSON TO JOIN OR PARTICIPATE IN
   40  A  CRIMINAL  CONSPIRACY  TO BENEFIT A CRIMINAL STREET GANG ENTERPRISE OR
   41  OTHER ORGANIZATION OF THREE OR MORE PERSONS WHICH  HAS  A  COMMON  NAME,
   42  IDENTIFYING SIGN OR SYMBOL AND WHOSE MEMBERS INDIVIDUALLY OR COLLECTIVE-
   43  LY ENGAGE IN GANG CRIMES.
   44    COERCION  OF A MINOR INTO A CRIMINAL STREET GANG ENTERPRISE CONSPIRACY
   45  IS A CLASS D FELONY.
   46  S 280.20 CRIMINAL STREET GANG ENTERPRISE LEADERSHIP.
   47    A PERSON IS GUILTY OF CRIMINAL STREET GANG ENTERPRISE LEADERSHIP WHEN,
   48  AS A MEMBER OF A CRIMINAL STREET GANG ENTERPRISE, HE  OR  SHE  COMMANDS,
   49  COUNSELS,  PERSUADES,  INDUCES,  ENTICES  OR  COERCES  ANY INDIVIDUAL TO
   50  COMMIT A CRIME WHERE THE PURPOSE OF SUCH CRIME IS THE FURTHERANCE OF THE
   51  CRIMINAL OBJECTIVES OF SUCH CRIMINAL STREET GANG ENTERPRISE.
   52    CRIMINAL STREET GANG ENTERPRISE LEADERSHIP IS A CLASS D FELONY.
   53  S 280.25 ABATEMENT OF PREMISES USED FOR CRIMINAL STREET GANG  ENTERPRISE
   54             ACTIVITY.
   55    1.  ANY  PLACE  OR  PREMISES THAT HAS BEEN USED ON MORE THAN TWO OCCA-
   56  SIONS, WITHIN A SIX MONTH PERIOD OF TIME, FOR THE PURPOSE OF  CONDUCTING
       S. 260                              4
    1  A PATTERN OF STREET GANG CRIMINAL ACTIVITY, OR ANY REAL PROPERTY THAT IS
    2  ERECTED, ESTABLISHED, MAINTAINED, OWNED, LEASED, OR USED BY ANY CRIMINAL
    3  STREET  GANG  ENTERPRISE  FOR  THE PURPOSE OF CONDUCTING CRIMINAL STREET
    4  GANG ENTERPRISE ACTIVITY CONSTITUTES A NUISANCE, THAT SHALL BE ENJOINED,
    5  ABATED,  AND PREVENTED, AND FOR WHICH DAMAGES MAY BE RECOVERED,  WHETHER
    6  IT IS A PUBLIC OR PRIVATE NUISANCE.
    7    2. ANY ACTION FOR AN INJUNCTION OR ABATEMENT FILED PURSUANT TO  SUBDI-
    8  VISION  ONE OF THIS SECTION SHALL PROCEED ACCORDING TO THE PROVISIONS OF
    9  THE CIVIL PRACTICE LAW AND RULES, EXCEPT THAT ALL OF THE FOLLOWING SHALL
   10  APPLY:
   11    (A) THE COURT SHALL NOT ASSESS A  CIVIL  PENALTY  AGAINST  ANY  PERSON
   12  UNLESS  THAT  PERSON  KNEW  OR  SHOULD  HAVE  KNOWN OF THE UNLAWFUL ACTS
   13  COMMITTED ON OR IN THE PREMISES;
   14    (B) NO ORDER OF EVICTION OR CLOSURE MAY BE ENTERED;
   15    (C) ALL INJUNCTIONS ISSUED SHALL BE  LIMITED  TO  THOSE  NECESSARY  TO
   16  PROTECT  THE  HEALTH  AND SAFETY OF THE RESIDENTS OR THE PUBLIC OR THOSE
   17  NECESSARY TO PREVENT FURTHER CRIMINAL ACTIVITY; AND
   18    (D) SUIT MAY NOT BE FILED UNTIL A  THIRTY-DAY  NOTICE  PERIOD  OF  THE
   19  UNLAWFUL USE OR CRIMINAL CONDUCT HAS BEEN PROVIDED TO THE OWNER BY MAIL,
   20  RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE LAST KNOWN ADDRESS.
   21    3.  NO  NOT-FOR-PROFIT  OR CHARITABLE ORGANIZATION WHICH IS CONDUCTING
   22  ITS AFFAIRS WITH ORDINARY CARE AND SKILL, AND  NO  GOVERNMENTAL  ENTITY,
   23  SHALL  BE  ABATED PURSUANT TO THE PROVISIONS OF SUBDIVISIONS ONE AND TWO
   24  OF THIS SECTION.
   25    4. NOTHING IN THIS SECTION SHALL PRECLUDE ANY  AGGRIEVED  PERSON  FROM
   26  SEEKING ANY OTHER REMEDY PROVIDED BY LAW.
   27  S 280.30 PREEMPTION.
   28    NOTHING  IN  THIS  ARTICLE SHALL PREEMPT AN APPROPRIATE ALTERNATIVE OR
   29  ADDITIONAL CHARGE PURSUANT TO THIS CHAPTER, INCLUDING  BUT  NOT  LIMITED
   30  TO,  A  CHARGE  PURSUANT  TO  SECTION 120.06 (GANG ASSAULT IN THE SECOND
   31  DEGREE), OR SECTION 120.07  (GANG  ASSAULT  IN  THE  FIRST  DEGREE);  OR
   32  PREVENT  A  LOCAL GOVERNMENT FROM ADOPTING AND ENFORCING LAWS CONSISTENT
   33  WITH THIS ARTICLE RELATING TO CRIMINAL STREET GANG  ENTERPRISE  ACTIVITY
   34  AND CRIMINAL STREET GANG ENTERPRISE VIOLENCE. WHERE LOCAL LAWS DUPLICATE
   35  OR  SUPPLEMENT  THIS  ARTICLE,  THE  PROVISIONS OF THIS ARTICLE SHALL BE
   36  CONSTRUED AS PROVIDING ALTERNATIVE REMEDIES AND NOT AS  PREEMPTING  SUCH
   37  LOCAL LAWS.
   38    S  2.  Severability.  If any provision of this act, or the application
   39  thereof to any person or circumstance, shall be adjudged by any court of
   40  competent jurisdiction to be invalid or unconstitutional, such  judgment
   41  shall  not affect, impair or invalidate the remainder thereof, but shall
   42  be confined in its operation to the provision of this  act,  or  in  its
   43  application  to  the  person  or  circumstance, directly involved in the
   44  controversy in which such judgment shall have been rendered.
   45    S 3. This act shall take effect on the first of November next succeed-
   46  ing the date on which it shall have become a law.