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Receive compassionate, personalized attention from the criminal defense attorneys at our law office in Patchogue, New York. At the law office of The Law Offices of Robert W. Dapelo, Esq., PC, we pay close attention to every detail of your case and never miss an opportunity to do what is in your best interest. Contact us at (631) 654-9500 for representation by our criminal defense attorneys.

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Entrust your case to the skilled attorneys at the law office of The Law Offices of Robert W. Dapelo, Esq., PC. Our attorneys are well versed in matters of criminal law, giving us the edge it takes to resolve disputes in your favor. Because we stay on top of every case, we are well prepared and ready to litigate if necessary. We also understand that it's in your best interest for us to uphold the highest ethical standards. With us, integrity always comes first. We treat each criminal matter as if it's our freedom on the line.  You do not deserve any less.


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ARTICLE 31
ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE THERETO

 

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.
         1199.    Driver responsibility assessment.


  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 byweight 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

§ 1199. Driver responsibility assessment. 1. In addition to any fines,
  fees,  penalties  and surcharges authorized by law, any person convicted
  of a violation of any subdivision of section eleven  hundred  ninety-two
  of  this article, or any person found to have refused a chemical test in
  accordance with section eleven hundred ninety-four of this  article  not
  arising  out of the same incident as a conviction for a violation of any
  of the provisions of section eleven hundred ninety-two of this  article,
  shall   become  liable  to  the  department  for  payment  of  a  driver
  responsibility assessment as provided in this section.
    2. The amount of  the  driver  responsibility  assessment  under  this
  section  shall  be  two  hundred fifty dollars per year for a three-year
  period.
    3. Upon receipt of evidence that a person is  liable  for  the  driver
  responsibility  assessment  required  by  this section, the commissioner
  shall notify such person by first class mail  to  the  address  of  such
  person on file with the department or at the current address provided by
  the  United  States postal service of the amount of such assessment, the
  time and manner of making required payments, and that  failure  to  make
  payment shall result in the suspension of his or her driver's license or
  privilege of obtaining a driver's license.
    4.  If a person shall fail to pay any driver responsibility assessment
  as provided  in  this  section,  the  commissioner  shall  suspend  such
  person's  driver's  license  or  privilege  of obtaining a license. Such
  suspension shall remain in effect until any and all  outstanding  driver
  responsibility assessments have been paid in full.
    5.  The  provisions  of  this  section shall also be applicable to any
  person convicted  of  any  violation  of  section  forty-nine-a  of  the
  navigation  law, any person convicted of a violation of section 25.24 of
  the parks, recreation and historic preservation law, or any person found
  to have refused a  chemical  test  in  accordance  with  the  applicable
  provisions  of  either  the  navigation law or the parks, recreation and
  historic preservation law not arising out of the same incident  as  such  conviction.
 

 

 

NEW YORK STATE PENAL LAW

ARTICLE 240--OFFENSES AGAINST PUBLIC ORDER

 

Section 240.00 Offenses against public order;  definitions of terms

 The following definitions are applicable to this article:

 1. "Public place" means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.

 2. "Transportation facility" means any conveyance, premises or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method.  It includes aircraft, watercraft, railroad cars, buses, school buses as defined in section one hundred forty-two of the vehicle and traffic law, and air, boat, railroad and bus terminals and stations and all appurtenances thereto.

 3. "School grounds" means in or on or within any building, structure, school bus as defined in section one hundred forty-two of the vehicle and traffic law, 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.

 4. "Hazardous substance" shall mean any physical, chemical, microbiological or radiological substance or matter which, because of its quantity, concentration, or physical, chemical or infectious characteristics, may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health.

5. "Age" means sixty years old or more.

6. "Disability" means a physical or mental impairment that substantially limits a major life activity.
 

Section 240.05 Riot in the second degree

 A person is guilty of riot in the second degree when, simultaneously with four or more other persons, he engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm.

 Riot in the second degree is a class A misdemeanor.
 

Section 240.06 Riot in the first degree

A person is guilty of riot in the first degree when he:

1. Simultaneously with ten or more other persons, engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm, and in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs; or

2. While in a correctional facility, as that term is defined in subdivision four of section two of the correction law, simultaneously with ten or more other persons, engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing alarm within such correctional facility and in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs.

Riot in the first degree is a class E felony.

Section 240.08 Inciting to riot

 A person is guilty of inciting to riot when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm.

 Inciting to riot is a class A misdemeanor.
 

Section 240.10 Unlawful assembly

 A person is guilty of unlawful assembly when he assembles with four or more other persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with intent to advance that purpose.

 Unlawful assembly is a class B misdemeanor.
 

Section 240.15 Criminal anarchy

 A person is guilty of criminal anarchy when (a) he advocates the overthrow of the existing form of government of this state by violence, or (b) with knowledge of its contents, he publishes, sells or distributes any document which advocates such violent overthrow, or (c) with knowledge of its purpose, he becomes a member of any organization which advocates such violent overthrow.

 Criminal anarchy is a class E felony.
 

Section 240.20 Disorderly conduct

 A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

 1. He engages in fighting or in violent, tumultuous or threatening behavior;  or

 2. He makes unreasonable noise;  or

 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture;  or

 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons;  or

 5. He obstructs vehicular or pedestrian traffic;  or

 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;  or

 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

 Disorderly conduct is a violation.
 

Section 240.21 Disruption, or disturbance of religious service

 A person is guilty of aggravated disorderly conduct, who makes unreasonable noise or disturbance while at a lawfully assembled religious service or within one hundred feet thereof, with intent to cause annoyance or alarm or recklessly creating a risk thereof.

 Aggravated disorderly conduct is a class A misdemeanor.
 

Section 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.
 

Section 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.
 

Section 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.
 

Section 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.
 

Section 240.32 Aggravated harassment of an employee by an inmate.

 An inmate or respondent is guilty of aggravated harassment of an employee by an inmate when, with intent to harass, annoy, threaten or alarm a person in a facility whom he knows or reasonably should know to be an employee of such facility or the division of parole or the office of mental health, or a probation department, bureau or unit or a police officer, he causes or attempts to cause such employee to come into contact with blood, seminal fluid, urine or feces, by throwing, tossing or expelling such fluid or material.

 For purposes of this section, "inmate" means an inmate or detainee in a correctional facility, local correctional facility or a hospital, as such term is defined in subdivision two of section four hundred of the correction law.  For purposes of this section, "respondent" means a juvenile in a secure facility operated and maintained by the office of children and family services who is place with or committed to the office of children and family services. For purposes of this section, "facility" means a correctional facility or local correctional facility, hospital, as such term is defined in subdivision two of section four hundred of the correction law, or a secure facility operated and maintained by the office of children and family services.

Aggravated harassment of an employee by an inmate is a class E felony.
 

Section 240.35 Loitering

 A person is guilty of loitering when he:

 1. Loiters, remains or wanders about in a public place for the purpose of begging;  or

 2. Loiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia;  or

 3. Loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct, or other sexual behavior of a deviate nature;  or

 4. Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place;  except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities;  or

 5. Loiters or remains in or about school grounds, a college or university building or grounds 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, or loiters, remains in or enters a school bus as defined in section one hundred forty-two of the vehicle and traffic law, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same or loiters or remains in or about such children's overnight camp or summer day camp in violation of conspicuously posted rules or regulations governing entry and use thereof;  or

 6. Loiters or remains in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business, trade or commercial transactions involving the sale of merchandise or services, or for the purpose of entertaining persons by singing, dancing or playing any musical instrument;  or

 7. Loiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence.

Loitering is a violation.
 

Section 240.36 Loitering in the first degree

 A person is guilty of loitering in the first degree when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance, as defined in section 220.00 of this chapter.

 Loitering in the first degree is a class B misdemeanor.
 

Section 240.37 Loitering for the purpose of engaging in a prostitution offense

 1. For the purposes of this section, "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility or the doorways and entrance ways to any building which fronts on any of the aforesaid places, or a motor vehicle in or on any such place.

 2. Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute as those terms are defined in article two hundred thirty of the penal law, shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section of sections 230.00 or 230.05 of the penal law.

 3. Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passersby in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of promoting prostitution as defined in article two hundred thirty of the penal law is guilty of a class A misdemeanor.
 

Section 240.40 Appearance in public under the influence of narcotics or a drug other than alcohol

 A person is guilty of appearance in public under the influence of narcotics or a drug other than alcohol when he appears in a public place under the influence of narcotics or a drug other than alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.

 Appearance in public under the influence of narcotics or a drug other than alcohol is a violation.
 

Section 240.45 Criminal nuisance in the second degree

 A person is guilty of criminal nuisance in the second degree when:

 1. By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons;  or

 2. He knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.

 Criminal nuisance in the second degree is a class B misdemeanor.
 

Section 240.46 Criminal nuisance in the first degree

 A person is guilty of criminal nuisance in the first degree when he knowingly conducts or maintains any premises, place or resort where persons come or gather for purposes of engaging in the unlawful sale of controlled substances in violation of section 220.39, 220.41, or 220.43 of this chapter, and thereby derives the benefit from such unlawful conduct.

 Criminal nuisance in the first degree is a class E felony.
 

Section 240.48 Disseminating a false registered sex offender notice

A person is guilty of disseminating a false registered sex offender notice when, knowing the information he or she disseminates or causes to be disseminated to be false or baseless, such person disseminates or causes to be disseminated any notice which purports to be an official notice from a government agency or a law enforcement agency and such notice asserts that an individual is a registered sex offender.

Disseminating a false registered sex offender notice is a class A misdemeanor.

 

 

 

 

Section 240.50 Falsely reporting an incident in the third degree

 A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he:

 1. Initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a crime, catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result;  or

 2. Reports, by word or action, to an official or quasi-official agency or organization having the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a catastrophe or emergency which did not in fact occur or does not in fact exist;  or

 3. Gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur;  or (b) an allegedly impending occurrence of an offense or incident which in fact is not about to occur;  or (c) false information relating to an actual offense or incident or to the alleged implication of some person therein; or

4. Reports by word or action, to the statewide central register of child abuse and maltreatment, as defined in title six of article six of the social services law an alleged occurrence or condition of child abuse or maltreatment which did not in fact occur or exist.

 Falsely reporting an incident in the third degree is a class A misdemeanor.
 

Section 240.55 Falsely reporting an incident in the second degree

 A person is guilty of falsely reporting an incident in the second degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she:

 1. Initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a fire, explosion, or the release of a hazardous substance under circumstances in which it is not unlikely that public alarm or inconvenience will result;

 2. Reports, by word or action, to any official or quasi-official agency or organization having the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a fire, explosion, or the release of a hazardous substance which did not in fact occur or does not in fact exist;  or

 3. Knowing the information reported, conveyed or circulated to be false or baseless and under circumstances in which it is likely public alarm or inconvenience will result, he or she initiates or circulates a report or warning of an alleged occurrence or an impending occurrence of a fire, an explosion, or the release of a hazardous substance upon any private premises.

 Falsely reporting an incident in the second degree is a class E felony.
 

Section 240.60 Falsely reporting an incident in the first degree

 A person is guilty of falsely reporting an incident in the first degree when he:

 1. commits the crime of falsely reporting an incident in the second degree as defined in section 240.55 of this article, and has previously been convicted of that crime;  or

 2. commits the crime of falsely reporting an incident in the third degree as defined in subdivisions one and two of section 240.50 of this article or falsely reporting an incident in the second degree as defined in subdivisions one and two of section 240.55 of this article and another person who is an employee or member of any official or quasi-official agency having the function of dealing with emergencies involving danger to life or property;  or who is a volunteer firefighter with a fire department, fire company, or any unit thereof as defined in the volunteer firefighters' benefit law;  or who is a volunteer ambulance worker with a volunteer ambulance corporation or any unit thereof as defined in the volunteer ambulance workers' benefit law suffers serious physical injury or is killed in the performance of his or her official duties in traveling to or working at or returning to a firehouse, police station, quarters or other base facility from the location identified in such report; or

 3. commits the crime of falsely reporting an incident in the third degree as defined in subdivisions one and two of section 240.50 of this article or falsely reporting an incident in the second degree as defined in subdivisions one and two of section 240.55 of this article and another person suffers serious physical injury or is killed as a result of any vehicular or other accident involving any emergency vehicle which is responding to, operating at, or returning from the location identified in such report.

 4. An emergency vehicle as referred to in subdivision three of this section shall include any vehicle operated by any employee or member of any official or quasi-official agency having the function of dealing with emergencies involving danger to life or property and shall include, but not necessarily be limited to, an emergency vehicle which is operated by a volunteer firefighter with a fire department, fire company, or any unit thereof as defined in the volunteer firefighters' benefit law;  or by a volunteer ambulance worker with a volunteer ambulance corporation, or any unit thereof as defined in the volunteer ambulance workers' benefit law.

 5. Knowing the information reported, conveyed or circulated to be false or baseless and under circumstances in which it is likely public alarm or inconvenience will result, he or she initiates or circulates a report or warning of an alleged occurrence or an impending occurrence of a fire, an explosion, or the release of a hazardous substance upon school grounds and it is likely that persons are present on said grounds.

 6. Knowing the information reported, conveyed or circulated to be false or baseless and under circumstances in which it is likely public alarm or inconvenience will result, he or she initiates or circulates a report or warning of an alleged occurrence or impending occurrence of a fire, explosion or the release of a hazardous substance in or upon a sports stadium or arena, mass transportation facility, enclosed shopping mall, any public building or any public place, and it is likely that persons are present. For purposes of this subdivision, the terms "sports stadium or arena, mass transportation facility or enclosed shopping mall" shall have their natural meaning and the term "public building" shall have the meaning set forth in section four hundred one of the executive law.

 Falsely reporting an incident in the first degree is a class D felony.
 

Section 240.61 Placing a false bomb in the second degree

A person is guilty of placing a false bomb or hazardous substance in the second degree when he or she places, or causes to be placed, any device or object that by its design, construction, content or characteristics appears to be or to contain, a bomb, destructive device, explosive or hazardous substance, but is, in fact, an inoperative facsimile or imitation of such a bomb, destructive device, explosive or hazardous substance and which he or she knows, intends or reasonably believes will appear to be a bomb, destructive device, explosive or hazardous substance under circumstances in which it is likely to cause public alarm or inconvenience.

Placing a false bomb or hazardous substance in the second degree is a class E felony.

Section 240.62 Placing a false bomb in the first degree

A person is guilty of placing a false bomb or hazardous substance in the first degree when he or she places, or causes to be placed, in or upon school grounds, a public building, or a public place any device or object that by its design, construction, content or characteristics appears to be or to contain, a bomb, destructive device, explosive or hazardous substance, but is, in fact, an inoperative facsimile or imitation of such a bomb, destructive device, explosive or hazardous substance and which he or she knows, intends or reasonably believes will appear to be a bomb, destructive device, explosive or hazardous substance under circumstances in which it is likely to cause public alarm or inconvenience. For purposes of this section the term "public building" shall have the meaning set forth in section four hundred one of the executive law.

Placing a false bomb or hazardous substance in the first degree is a class D felony.
 

Section 240.63 Placing a false bomb in a sports stadium or arena, mass transportation facility or enclosed shopping mall

A person is guilty of placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall when he or she places, or causes to be placed, in a sports stadium or arena, mass transportation facility or enclosed shopping mall, in which it is likely that persons are present, any device or object that by its design, construction, content or characteristics appears to be or to contain a bomb, destructive device, explosive or hazardous substance, but is, in fact, an inoperative facsimile or imitation of such a bomb, destructive device, explosive or hazardous substance and which he or she knows, intends or reasonably believes will appear to be a bomb, destructive device, explosive or hazardous substance under circumstances in which it is likely to cause public alarm or inconvenience. For purposes of this section, "sports stadium or arena, mass transportation facility or enclosed shopping mall" shall have its natural meaning.


Placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall is a class D felony.

 

Section 240.65 Unlawful prevention of public access to records

 A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record.

 Unlawful prevention of public access to records is a violation.
 

Section 240.70 Criminal interference with health care services or religious worship in the second degree

 1. A person is guilty of criminal interference with health services or religious worship in the second degree when:

 (a) by force or threat of force or by physical obstruction, he or she intentionally injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with, another person because such other person was or is obtaining or providing reproductive health services; or

 (b) by force or threat of force or by physical obstruction, he or she intentionally injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with, another person in order to discourage such other person or any other person or persons from obtaining or providing reproductive health services; or

 (c) by force or threat of force or by physical obstruction, he or she intentionally injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with, another person because such person was or is seeking to exercise the right of religious freedom at a place of religious worship; or

 (d) he or she intentionally damages the property of a health care facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages the property of a place of religious worship.

 

 2. A parent or legal guardian of a minor shall not be subject to prosecution for conduct otherwise prohibited by paragraph (a) or (b) of subdivision one of this section which is directed exclusively at such minor.

 

 3. For purposes of this section:

 (a) the term "health care facility" means a hospital, clinic, physician's office or other facility that provides reproductive health services, and includes the building or structure in which the facility is located;

 (b) the term "interferes with" means to restrict a person's freedom of movement;

 (c) the term "intimidates" means to place a person in reasonable apprehension of physical injury to himself or herself or to another person;

 (d) the term "physical obstruction" means rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous; and

 (e) the term "reproductive health services" means health care services provided in a hospital, clinic, physician's office or other facility and includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.

 

 Criminal interference with health care services or religious worship in the second degree is a class A misdemeanor.
 

Section 240.71 Criminal interference with health care services or religious worship in the first degree

 A person is guilty of criminal interference with health care services or religious worship in the first degree when he or she commits the crime of criminal interference with health care services or religious worship in the second degree and has been previously convicted of the crime of criminal interference with health care services or religious worship in the first or second degree.

 Criminal interference with health care services or religious worship in the first degree is a class E felony.
 


ARTICLE 241--HARASSMENT OF RENT REGULATED TENANTS

Section 241.00. Harassment of a rent regulated tenant;  definition of terms  [Effective until June 16, 2011.]

 As used in this article:

 1. "Rent regulated tenant" shall mean a person occupying a housing accommodation which is subject to the regulations and control of residential rents and evictions pursuant to the emergency housing rent control law,  the local emergency housing rent control act, the emergency tenant protection act of nineteen seventy-four,  the New York city rent and rehabilitation law or the New York city rent stabilization law of nineteen hundred sixty-nine,  and such person is either a party to a lease or rental agreement for such housing accommodation, a statutory tenant or a person who lawfully occupies such housing accommodation with such party to a lease or rental agreement or with such statutory tenant.  The definition of "rent regulated tenant" as used in this subdivision shall be applicable only to the provisions of this article and shall not be applicable to any other provision of law.

 2. "Housing accommodations" shall mean housing accommodations which are subject to the regulations and control of residential rents and evictions pursuant to the emergency housing rent control law, the local emergency housing rent control act, the emergency tenant protection act of nineteen seventy-four, the New York city rent and rehabilitation law or the New York city rent stabilization law of nineteen hundred sixty-nine.

 3. "Owner" shall mean an owner, lessor, sublessor, assignee, net lessee, or a proprietary lessee of a housing accommodation in a structure or premises owned by a cooperative corporation or association, or an owner of a condominium unit or the sponsor of such cooperative corporation or association or condominium development, or any other person or entity receiving or entitled to receive rent for the use or occupation of any housing accommodation, or an agent of or any person acting on behalf of any of the foregoing.
 

Section 241.05. Harassment of a rent regulated tenant [Effective until June 16, 2011.]

 An owner is guilty of harassment of a rent regulated tenant when with intent to cause a rent regulated tenant to vacate a housing accommodation, such owner:

 1. With intent to cause physical injury to such tenant, causes such injury to such tenant or to a third person;  or

 2. Recklessly causes physical injury to such tenant or to a third person.

 Harassment of a rent regulated tenant is a class E felony.

 


ARTICLE 245--OFFENSES AGAINST PUBLIC SENSIBILITIES

Section 245.00 Public lewdness

 A person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed.

 Public lewdness is a class B misdemeanor.
 

Section 245.01 Exposure of a person

 A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.  For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola.  This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.

 Exposure of a person is a violation.

 Nothing in this section shall prevent the adoption by a city, town or village of a local law prohibiting exposure of a person as herein defined in a public place, at any time, whether or not such person is entertaining or performing in a play, exhibition, show or entertainment.
 

Section 245.02 Promoting the exposure of a person

 A person is guilty of promoting the exposure of a person when he knowingly conducts, maintains, owns, manages, operates or furnishes any public premise or place where a person in a public place appears in such a manner that the private or intimate parts of his body are unclothed or exposed.  For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola.  This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.

 Promoting the exposure of a person is a violation.

 Nothing in this section shall prevent the adoption by a city, town or village of a local law prohibiting the exposure of a person substantially as herein defined in a public place, at any time, whether or not such person is entertaining or performing in a play, exhibition, show or entertainment.
 

Section 245.05 Offensive exhibition

 A person is guilty of offensive exhibition when he knowingly produces, operates, manages or furnishes premises for, or in any way promotes or participates in, an exhibition in the nature of public entertainment or amusement in which:

 1. A person competes continuously without respite for a period of more than eight consecutive hours in a dance contest, bicycle race or other contest involving physical endurance;  or

 2. A person is held up to ridicule or contempt by voluntarily submitting to indignities such as the throwing of balls or other articles at his head or body;  or
 3. A firearm is discharged or a knife, arrow or other sharp or dangerous instrument is thrown or propelled at or toward a person.

 Offensive exhibition is a violation.
 

Section 245.10 Public display of offensive sexual material;  definitions of terms

 The following definitions are applicable to section 245.11:

 1. "Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

 2. "Sexual conduct" means an act of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.

 3. "Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

 4. "Transportation facility" means any conveyance, premises or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method.  It includes aircraft, watercraft, railroad cars, buses, and air, boat, railroad and bus terminals and stations and all appurtenances thereto.
 

Section 245.11 Public display of offensive sexual material

 A person is guilty of public display of offensive sexual material when, with knowledge of its character and content, he displays or permits to be displayed in or on any window, showcase, newsstand, display rack, wall, door, billboard, display board, viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or in any: public street, sidewalk or thoroughfare; transportation facility;  or any place accessible to members of the public without fee or other limit or condition of admission such as a minimum age requirement and including but not limited to schools, places of amusement, parks and playgrounds but excluding rooms or apartments designed for actual residence; any pictorial, three-dimensional or other visual representation of a person or a portion of the human body that predominantly appeals to prurient interest in sex, and that:

 (a) depicts nudity, or actual or simulated sexual conduct or sado-masochistic abuse;  or

 (b) depicts or appears to depict nudity, or actual or simulated sexual conduct or sado-masochistic abuse, with the area of the male or female subject's unclothed or apparently unclothed genitals, pubic area or buttocks, or of the female subject's unclothed or apparently unclothed breast, obscured by a covering or mark placed or printed on or in front of the material displayed, or obscured or altered in any other manner.

 Public display of offensive sexual material is a Class A misdemeanor.

 


ARTICLE 250--OFFENSES AGAINST THE RIGHT TO PRIVACY

Section 250.00 Eavesdropping;  definitions of terms

 The following definitions are applicable to this article:

 1. "Wiretapping" means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.  The normal operation of a telephone or telegraph corporation and the normal use of the services and facilities furnished by such corporation pursuant to its tariffs or necessary to protect the rights or property of said corporation shall not be deemed  "wiretapping."

 2. "Mechanical overhearing of a conversation" means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.

 3. "Telephonic communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of communications and such term includes any electronic storage of such communications.

 4. "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception.

 5. "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, but does not include:

 (a) any telephonic or telegraphic communication;  or

 (b) any communication made through a tone only paging device;  or

 (c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object;  or

 (d) any communication that is disseminated by the sender through a method of transmission that is configured so that such communication is readily accessible to the general public.

 6. "Intercepting or accessing of an electronic communication" and  "intentionally intercepted or accessed" mean the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment, except when used by a telephone company in the ordinary course of its business or when necessary to protect the rights or property of such company.

 7. "Electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications.

 8. "Unlawfully" means not specifically authorized pursuant to article seven hundred or seven hundred five of the criminal procedure law for the purposes of this section and sections 250.05, 250.10, 250.15, 250.20, 250.25, 250.30, and 250.35 of this article..
 

Section 250.05 Eavesdropping

 A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.

 Eavesdropping is a class E felony.
 

Section 250.10 Possession of eavesdropping devices

 A person is guilty of possession of eavesdropping devices when, under circumstances evincing an intent to use or to permit the same to be used in violation of section 250.05, he possesses any instrument, device or equipment designed for, adapted to or commonly used in wiretapping or mechanical overhearing of a conversation.

 Possession of eavesdropping devices is a class A misdemeanor.
 

Section 250.15 Failure to report wiretapping

 A telephone or telegraph corporation is guilty of failure to report wiretapping when, having knowledge of the occurrence of unlawful wiretapping, it does not report such matter to an appropriate law enforcement officer or agency.

 Failure to report wiretapping is a class B misdemeanor.
 

Section 250.20 Divulging an eavesdropping warrant

 A person is guilty of divulging an eavesdropping warrant when, possessing information concerning the existence or content of an eavesdropping warrant issued pursuant to article seven hundred of the criminal procedure law, or concerning any circumstances attending an application for such a warrant, he discloses such information to another person;  except that such disclosure is not criminal or unlawful when permitted by section 700.65 of the criminal procedure law or when made to a state or federal agency specifically authorized by law to receive reports concerning eavesdropping warrants, or when made in a legal proceeding, or to a law enforcement officer or agency connected with the application for such warrant, or to a legislative committee or temporary state commission, or to the telephone or telegraph corporation whose facilities are involved, or to any entity operating an electronic communications service whose facilities are involved.

 Divulging an eavesdropping warrant is a class A misdemeanor.
 

Section 250.25 Tampering with private communications

 A person is guilty of tampering with private communications when:

 1. Knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter or other sealed private communication;  or

 2. Knowing that a sealed letter or other sealed private communication has been opened or read in violation of subdivision one of this section, he divulges without the consent of the sender or receiver, the contents of such letter or communication, in whole or in part, or a resume of any portion of the contents thereof;  or

 3. Knowing that he does not have the consent of the sender or receiver, he obtains or attempts to obtain from an employee, officer or representative of a telephone or telegraph corporation, by connivance, deception, intimidation or in any other manner, information with respect to the contents or nature thereof of a telephonic or telegraphic communication;  except that the provisions of this subdivision do not apply to a law enforcement officer who obtains information from a telephone or telegraph corporation pursuant to section 250.35;  or

 4. Knowing that he does not have the consent of the sender or receiver, and being an employee, officer or representative of a telephone or telegraph corporation, he knowingly divulges to another person the contents or nature thereof of a telephonic or telegraphic communication;  except that the provisions of this subdivision do not apply to such person when he acts pursuant to section 250.35.

 Tampering with private communications is a class B misdemeanor.
 

Section 250.30 Unlawfully obtaining communications information

 A person is guilty of unlawfully obtaining communications information when, knowing that he does not have the authorization of a telephone or telegraph corporation, he obtains or attempts to obtain, by deception, stealth or in any other manner, from such corporation or from any employee, officer or representative thereof:

 1. Information concerning identification or location of any wires, cables, lines, terminals or other apparatus used in furnishing telephone or telegraph service;  or

 2. Information concerning a record of any communication passing over telephone or telegraph lines of any such corporation.

 Unlawfully obtaining communications information is a class B misdemeanor.
 

Section 250.35 Failing to report criminal communications

 1. It shall be the duty of a telephone or telegraph corporation, or an entity operating an electronic communications service, and of any employee, officer or representative thereof having knowledge that the facilities of such corporation or entity are being used to conduct any criminal business, traffic or transaction, to furnish or attempt to furnish to an appropriate law enforcement officer or agency all pertinent information within his possession relating to such matter, and to cooperate fully with any law enforcement officer or agency investigating such matter.

 2. A person is guilty of failing to report criminal communications when he knowingly violates any duty prescribed in subdivision one of this section.

 Failing to report criminal communications is a class B misdemeanor.

Section 250.40 Unlawful surveillance; definitions. 

he following definitions shall apply to sections 250.45, 250.50, 250.55 and 250.60 of this article: 

1. "Place and time when a person has a reasonable expectation of privacy" means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy. 

2. "Imaging device" means any mechanical, digital or electronic viewing device, camera or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person. 

3. "Sexual or other intimate parts" means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment. 

4. "Broadcast" means electronically transmitting a visual image with the intent that it be viewed by a person. 

5. "Disseminate" means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person. 

6. "Publish" means to (a) disseminate, as defined in subdivision five of this section, with the intent that such image or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public. 

7. "Sell" means to disseminate to another person, as defined in subdivision five of this section, or to publish, as defined in subdivision six of this section, in exchange for something of value. 

Section 250.45 Unlawful surveillance in the second degree. 

A person is guilty of unlawful surveillance in the second degree when: 

1. For his or her own, or another person`s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person`s knowledge or consent; or 

2. For his or her own, or another person`s sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person`s knowledge or consent; or 

3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person`s knowledge or consent. 

(b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Unlawful surveillance in the second degree is a class E felony.

Section 250.50 Unlawful surveillance in the first degree.

A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree. 

Unlawful surveillance in the first degree is a class D felony. 

Section 250.55 Dissemination of an unlawful surveillance image in the second degree. 

A person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, intentionally disseminates such image or images. 

Dissemination of an unlawful surveillance image in the second degree is a class A misdemeanor. 

Section 250.60 Dissemination of an unlawful surveillance image in the first degree. 

A person is guilty of dissemination of an unlawful surveillance image in the first degree when: 

1. He or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, sells or publishes such image or images; or 

2. Having created a surveillance image in violation of section 250.45 or 250.50 of this article, or in violation of the law in any other jurisdiction which includes all of the essential elements of either such crime, or having acted as an accomplice to such crime, or acting as an agent to the person who committed such crime, he or she intentionally disseminates such unlawfully created image; or 

3. He or she commits the crime of dissemination of an unlawful surveillance image in the second degree and has been previously convicted within the past ten years of dissemination of an unlawful surveillance image in the first or second degree. 

Dissemination of an unlawful surveillance image in the first degree is a class E felony. 

Section 250.65 Additional provisions. 

1. The provisions of sections 250.45, 250.50, 250.55 and 250.60 of this article do not apply with respect to any: (a) law enforcement personnel engaged in the conduct of their authorized duties; (b) security system wherein a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security; or (c) video surveillance devices installed in such a manner that their presence is clearly and immediately obvious. 

2. With respect to sections 250.55 and 250.60 of this article, the provisions of subdivision two of section 235.15 and subdivisions one and two of section 235.24 of this chapter shall apply.

 


TITLE O--OFFENSES AGAINST MARRIAGE, THE FAMILY, AND THE WELFARE OF CHILDREN AND INCOMPETENTS
ARTICLE 255--OFFENSES AFFECTING THE MARITAL RELATIONSHIP

 

Section 255.00 Unlawfully solemnizing a marriage

 A person is guilty of unlawfully solemnizing a marriage when:

 1. Knowing that he is not authorized by the laws of this state to do so, he performs a marriage ceremony or presumes to solemnize a marriage;  or

 2. Being authorized by the laws of this state to perform marriage ceremonies and to solemnize marriages, he performs a marriage ceremony or solemnizes a marriage knowing that a legal impediment to such marriage exists.

 Unlawfully solemnizing a marriage is a class A misdemeanor.
 

Section 255.05 Unlawfully issuing a dissolution decree

 A person is guilty of unlawfully issuing a dissolution decree when, not being a judicial officer authorized to issue decrees of divorce or annulment, he issues a written instrument reciting or certifying that he or some other purportedly but not actually authorized person has issued a valid decree of civil divorce, annulment or other dissolution of a marriage.

 Unlawfully issuing a dissolution decree is a class A misdemeanor.
 

Section 255.10 Unlawfully procuring a marriage license

 A person is guilty of unlawfully procuring a marriage license when he procures a license to marry another person at a time when he has a living spouse, or the other person has a living spouse.

 Unlawfully procuring a marriage license is a class A misdemeanor.
 

Section 255.15 Bigamy

 A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse.

 Bigamy is a class E felony.
 

Section 255.17 Adultery

 A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.

 Adultery is a class B misdemeanor.
 

Section 255.20 Unlawfully procuring a marriage license, bigamy, adultery:  defense

 In any prosecution for unlawfully procuring a marriage license, bigamy, or adultery, it is an affirmative defense that the defendant acted under a reasonable belief that both he and the other person to the marriage or prospective marriage or to the sexual intercourse, as the case may be, were unmarried.
 

Section 255.25 Incest

 A person is guilty of incest when he or she marries or engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

 Incest is a class E felony.
 

Section 255.30 Adultery and incest;  corroboration

 1. A person shall not be convicted of adultery or of an attempt to commit adultery solely upon the testimony of the other party to the adulterous act or attempted act, unsupported by other evidence tending to establish that the defendant attempted to engage with the other party in sexual intercourse, and that the defendant or the other party had a living spouse at the time of the adulterous act or attempted act.

 2. A person shall not be convicted of incest or of an attempt to commit incest solely upon the testimony of the other party unsupported by other evidence tending to establish that the defendant married the other party, or that the defendant was a relative of the other party of a kind specified in section 255.25.

 


ARTICLE 260--OFFENSES RELATING TO CHILDREN AND INCOMPETENTS

Section 260.00 Abandonment of a child

 A person is guilty of abandonment of a child when, being a parent, guardian or other person legally charged with the care or custody of a child less than fourteen years old, he deserts such child in any place with intent to wholly abandon it.

 Abandonment of a child is a class E felony.
 

Section 260.03 Abandonment of a child; defense.

In any prosecution for abandonment of a child, pursuant to section 260.00 of this article, based upon an alleged desertion of a child not more than five days old with an intent to wholly abandon such child, it is an affirmative defense that, with the intent that the child be safe from physical injury and cared for in an appropriate manner, the defendant left the child with an appropriate person or in a suitable location and promptly notified an appropriate person of the child's location.

Section 260.05 Non-support of a child in the second degree

 A person is guilty of non-support of a child when, being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he fails or refuses without lawful excuse to provide support for such child when he is able to do so, or becomes unable to do so, when, though employable, he voluntarily terminates his employment, voluntarily reduces his earning capacity or fails to diligently seek employment.


 Non-support of a child in the second degree is a class A misdemeanor.
 

Section 260.06 Non-support of a child in the first degree

 A person is guilty of non-support of a child in the first degree when:

 1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child when he or she is able to do so;  and

 2. he or she has previously been convicted in the preceding five years of the crime defined in section 260.05 of this article.

 Non-support of a child in the first degree is a class E felony.
 

Section 260.10 Endangering the welfare of a child

 A person is guilty of endangering the welfare of a child when:

 1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health;  or

 2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an "abused child," a "neglected child," a "juvenile delinquent" or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act.

 Endangering the welfare of a child is a class A misdemeanor.
 

Section 260.11 Endangering the welfare of a child;  corroboration

 A person shall not be convicted of endangering the welfare of a child, or of an attempt to commit the same, upon the testimony of a victim who is incapable of consent because of mental defect or mental incapacity as to conduct that constitutes an offense or an attempt to commit an offense referred to in section 130.16, without additional evidence sufficient pursuant to section 130.16 to sustain a conviction of an offense referred to in section 130.16, or of an attempt to commit the same.
 

Section 260.15 Endangering the welfare of a child;  defense.

 In any prosecution for endangering the welfare of a child, pursuant to section 260.10:

1. based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the defendant (a) is a parent, guardian or other person legally charged with the care or custody of such child;  and (b) is a member or adherent of an organized church or religious group the tenets of which prescribe prayer as the principal treatment for illness;  and (c) treated or caused such ill child to be treated in accordance with such tenets; or

2. based upon an alleged desertion of a child not more than five days old, it is an affirmative defense that, with the intent that the child be safe from physical injury and cared for in an appropriate manner, the defendant left the child with an appropriate person or in a suitable location and promptly notified an appropriate person of the child's location..
 

Section 260.20 Unlawfully dealing with a child in the first degree

 A person is guilty of unlawfully dealing with a child in the first degree when:

 1. He knowingly permits a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where sexual activity as defined by article one hundred thirty, two hundred thirty or two hundred sixty- three of this chapter or activity involving controlled substances as defined by article two hundred twenty of this chapter or involving marihuana as defined by article two hundred twenty-one of this chapter is maintained or conducted, and he knows or has reason to know that such activity is being maintained or conducted;  or

 2. He gives or sells or causes to be given or sold any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to a person less than twenty-one years old;  except that this subdivision does not apply to the parent or guardian of such a person or to a person who gives or causes to be given any such alcoholic beverage to a person under the age of twenty-one years, who is a student in a curriculum licensed or registered by the state education department, where the tasting or imbibing of alcoholic beverages is required in courses that are part of the required curriculum, provided such alcoholic beverages are given only for instructional purposes during classes conducted pursuant to such curriculum.

 It is no defense to a prosecution pursuant to subdivision two of this section that the child acted as the agent or representative of another person or that the defendant dealt with the child as such.

 Unlawfully dealing with a child in the first degree is a class A misdemeanor.
 

Section 260.21 Unlawfully dealing with a child in the second degree

 A person is guilty of unlawfully dealing with a child in the second degree when:

 1. Being an owner, lessee, manager or employee of a place where alcoholic beverages are sold or given away, he permits a child less than sixteen years old to enter or remain in such place unless:

  (a) The child is accompanied by his parent, guardian or an adult authorized by a parent or guardian;  or

  (b) The entertainment or activity is being conducted for the benefit or under the auspices of a non-profit school, church or other educational or religious institution;  or

  (c) Otherwise permitted by law to do so;  or

  (d) The establishment is closed to the public for a specified period of time to conduct an activity or entertainment, during which the child is in or remains in such establishment, and no alcoholic beverages are sold, served, given away or consumed at such establishment during such period.  The state liquor authority shall be notified in writing by the licensee of such establishment, of the intended closing of such establishment, to conduct any such activity or entertainment, not less than ten days prior to any such closing;  or

 2. He marks the body of a child less than eighteen years old with indelible ink or pigments by means of tattooing;  or

 3. He sells or causes to be sold tobacco in any form to a child less than eighteen years old.

 It is no defense to a prosecution pursuant to subdivision three of this section that the child acted as the agent or representative of another person or that the defendant dealt with the child as such.

 Unlawfully dealing with a child in the second degree is a class B misdemeanor.
 

Section 260.25 Endangering the welfare of an incompetent person

 A person is guilty of endangering the welfare of an incompetent person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect.

 Endangering the welfare of an incompetent person is a class A misdemeanor.

Section 260.30  Misrepresentation by a child day care provider

 A person is guilty of misrepresentation by a child day care provider when, being a child day acre provider or holding himself or herself out as such, he or she makes any willful and intentional misrepresentation, by act or omission, to a parent or guardian of a child in the care of such provider (or a child whose prospective placement in such care is being considered by such parent or guardian) to any state or local official having jurisdiction over child day care providers, or to any police officer or peace officer as to the facts pertaining to such child day care provider, including,  but not limited to: (i) the number of children in the facility or home where such number is in violation of the provisions in section three hundred ninety of the social services law, (ii) the area of the facility, home, or center used for child day care, or (iii) the credentials or qualifications of any child day care provider, assistant, employee, or volunteer.  A misrepresentation subject to the provisions of this section must substantially place at risk the health and safety of a child in the care of a child day care provider.

 Misrepresentation by a child day care provider is a class A misdemeanor.

Section 260.32 Endangering the welfare of a vulnerable elderly person in the second degree.

A person is guilty of endangering the welfare of a vulnerable elderly person in the second degree when, being a caregiver for a vulnerable elderly person:

1. With intent to cause physical injury to such person, he or she causes such injury to such person; or

2. He or she recklessly causes physical injury to such person; or

3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or

4. He or she subjects such person to sexual contact without the latter's consent. Lack of consent under this subdivision results form forcible compulsion or incapacity to consent, as those terms are defined in article one hundred thirty of this chapter, or any other circumstances in which the vulnerable elderly person does not expressly or impliedly acquiesce in the caregiver's conduct. In any prosecution under this subdivision in which the victim's alleged lack of consent results solely from incapacity to consent because of the victim's mental disability or mental incapacity, the provisions of section 130.16 of this chapter shall apply. In addition, in any prosecution under this subdivision in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.

Endangering the welfare of a vulnerable elderly person in the second degree is a class E felony.

 


ARTICLE 263--SEXUAL PERFORMANCE BY A CHILD

Section 263.00 Definitions.

 As used in this article the following definitions shall apply:

 1. "Sexual performance" means any performance or part thereof which, for purposes of section 263.16 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.05 or 263.15 of this article, includes sexual conduct by a child less than seventeen years of age.

 2. "Obscene sexual performance" means any performance which, for purposes of section 263.11 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.10 of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such term is defined in section 235.00 of this chapter.

 3. "Sexual conduct" means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

 4. "Performance" means any play, motion picture, photograph or dance.  Performance also means any other visual representation exhibited before an audience.

 5. "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

 6. "Simulated" means the explicit depiction of any of the conduct set forth in subdivision three of this section which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks.

 7. "Deviate sexual intercourse" means the conduct defined by subdivision two of section 130.00 of this chapter.

 8. "Sado-masochistic abuse" means the conduct defined in subdivision five of section 235.20 of this chapter.
 

Section 263.05 Use of a child in a sexual performance.

 A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

 Use of a child in a sexual performance is a class C felony.
 

Section 263.10 Promoting an obscene sexual performance by a child.

 A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age.

 Promoting an obscene sexual performance by a child is a class D felony.
 

Section 263.11 Possessing an obscene sexual performance by a child.

 A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any obscene performance which includes sexual conduct by a child less than sixteen years of age.
 

Possessing an obscene sexual performance by a child is a class E felony.
 

Section 263.15 Promoting a sexual performance by a child.

 A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

 Promoting a sexual performance by a child is a class D felony.
 

Section 263.16 Possessing a sexual performance by a child.

 A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

 Possessing a sexual performance by a child is a class E felony.
 

Section 263.20 Sexual performance by a child;  affirmative defenses.

 1. Under this article, it shall be an affirmative defense that the defendant in good faith reasonably believed the person appearing in the performance was, for purposes of section 263.11 or 263.16 of this article, sixteen years of age or over or, for purposes of section 263.05, 263.10 or 263.15 of this article, seventeen years of age or over.

 2. In any prosecution for any offense pursuant to this article, it is an affirmative defense that the person so charged was a librarian engaged in the normal course of his employment, a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other non-managerial or non-supervisory capacity in a motion picture theatre;  provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any proportion of the gross receipts, in the promotion of a sexual performance for sale, rental or exhibition or in the promotion, presentation or direction of any sexual performance, or is in any way responsible for acquiring such material for sale, rental or exhibition.
 

Section 263.25 Proof of age of child.

 Whenever it becomes necessary for the purposes of this article to determine whether a child who participated in a sexual performance was under an age specified in this article, the court or jury may make such determination by any of the following:  personal inspection of the child;  inspection of a photograph or motion picture which constituted the sexual performance;  oral testimony by a witness to the sexual performance as to the age of the child based upon the child's appearance;  expert medical testimony based upon the appearance of the child in the sexual performance;  and any other method authorized by any applicable provision of law or by the rules of evidence at common law.

 


TITLE P--OFFENSES AGAINST PUBLIC SAFETY
ARTICLE 265--FIREARMS AND OTHER DANGEROUS WEAPONS

Section 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 400.1 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. "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.

 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.

 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 third degree;  stalking in the fourth degree; the offenses defined in article one hundred thirty;  the offenses defined in article two hundred twenty.

 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 semiautomatic 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 of 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) Baretta 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, 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 bolds more than five rounds of ammunition;

  (iii) a semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed of detachable magazine;

  (iv) a rifle, shotgun or pistol, of 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.
 

Section 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.
 

Section 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) Such person 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) Such person 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) Such person knowingly possesses 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 three 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.

Section 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:

(1) with intent to use the same unlawfully against another, such person:

(a) possesses a machine-gun; or

(b) possesses a loaded firearm; or

(c) possesses a disguised gun; or

(2) such person possesses five or more firearms.

Criminal possession of a weapon in the second degree is a class C felony.

Section 265.04 Criminal possession of a dangerous weapon in the first degree

A person is guilty of criminal possession of a weapon in the first degree when such person:

(1) possesses any explosive substance with intent to use the same unlawfully against the person or property of another; or

(2) possesses ten or more firearms.

Criminal possession of a weapon in the first degree is a class B felony.

Section 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.
 

Section 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.
 

Section 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.
 

Section 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.
 

Section 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 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.
 

Section 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 such person is not authorized pursuant to law to possess a firearm and such person 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.

 

Section 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 such person:

(1) unlawfully sells, exchanges, gives or disposes of to another five or more firearms; or

(2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of five or more firearms in a period of not more than one year.

Criminal sale of a firearm in the second degree is a class C felony.

Section 265.13 Criminal sale of a firearm in the first degree

A person is guilty of criminal sale of a firearm in the first degree when such person:

(1) unlawfully sells, exchanges, gives or disposes of to another ten or more firearms; or

(2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of ten or more firearms in a period of not more than one year.

Criminal sale of a firearm in the first degree is a class B felony.

 

Section 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 D felony.
 

Section 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.
 

Section 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 D felony.

Section 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 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.
 

Section 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 laws.

   (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 f 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 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 environment 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.

 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.

 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.

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.


 

Section 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.
 

Section 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.
 

Section 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.
 

Section 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

 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.
 

   

 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 1968" (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.

 


ARTICLE 270--OTHER OFFENSES RELATING TO PUBLIC SAFETY

Section 270.00 Unlawfully dealing with fireworks and dangerous fireworks

 1. Definition of "fireworks" and "dangerous fireworks".   The term  "fireworks," as used in this section, is defined and declared to be and to include any blank cartridge, blank cartridge pistol, or toy cannon in which explosives are used, firecrackers, sparklers or other combustible or explosive of like construction, or any preparation containing any explosive or inflammable compound or any tablets or other device commonly used and sold as fireworks containing nitrates, chlorates, oxalates, sulphides of lead, barium, antimony, arsenic, mercury, nitroglycerine, phosphorus or any compound containing any of the same or other explosives, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, or other device containing any explosive substance and the term "dangerous fireworks" means any fireworks capable of causing serious physical injury and which are: firecrackers containing more than fifty milligrams of any explosive substance, torpedoes, skyrockets and rockets including all devices which employ any combustible or explosive substance and which rise in the air during discharge, Roman candles, bombs, sparklers more than ten inches in length or one-fourth of one inch in diameter, or chasers including all devices which dart or travel about the surface of the ground during discharge. "Fireworks" and "dangerous fireworks" shall not be deemed to include (1) flares of the type used by railroads or any warning lights commonly known as red flares, or marine distress signals of a type approved by the United States coast guard or (2) toy pistols, toy canes, toy guns or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for use, devices commonly known as "party poppers", "snappers", "snakes", "glow worms", and "sparklers" which are in compliance with the requirements of title 49 of the Code of Federal Regulations, and toy pistol paper caps which contain less than twenty- hundredths grains of explosive mixture, the sale and use o which shall be permitted at all times, or (3) bank security devices which contain not more than fifty grams of any compound or substance or any combination thereof, together with an igniter not exceeding 0.2 gram, capable of producing a lachrymating and/or visible or audible effect, where such device is stored or used only by banks, national banking associations, trust companies, savings banks, savings and loan associations, industrial banks, or credit unions, or by any manufacturer, wholesaler, dealer, jobber or common carrier for such devices and where the total storage on any one premises does not exceed one hundred devices.

 2. Offense. (a) Except as herein otherwise provided, or except where a permit is obtained pursuant to section 405.00;  

   (i) any person who shall offer or expose for sale, sell or furnish, any fireworks or dangerous fireworks is guilty of a class B misdemeanor;

   (ii) any person who shall offer or expose for sale, sell or furnish any fireworks or dangerous fireworks valued at five hundred dollars or more shall be guilty of a class A misdemeanor;

 (b)  (i) Except as herein otherwise stated, or except where a permit is obtained pursuant to section 405.00, any person who shall possess, use, explode or cause to explode any fireworks or dangerous fireworks is guilty of a violation.

   (ii) A person who shall offer or expose for sale, sell or furnish, any dangerous fireworks to any person who is under the age of eighteen is guilty of a class A misdemeanor.

   (iii) A person who has previously been convicted of a violation of subparagraph (ii) of this paragraph within the preceding five years and who shall offer or expose for sale, sell or furnish, any dangerous fireworks to any person who is under the age of eighteen, shall be guilty of a class E felony.

  (c) Possession of fireworks or dangerous fireworks valued at fifty dollars or more shall be a presumption that such fireworks were intended to be offered or exposed for sale.

 3. The provisions of this section shall not apply to articles of the kind and nature herein mentioned, while in possession of railroads and transportation agencies for the purpose of transportation to points without the state, the shipment of which is not prohibited by the interstate commerce commission regulations as formulated and published from time to time, unless the same be held voluntarily by such railroads or transportation companies as warehousemen for delivery to points within the state;  provided, that none of the provisions of this section shall apply to signaling devices used by railroad companies or motor vehicles referred to in subdivision seventeen of section three hundred seventy-five of the vehicle and traffic law, or to high explosives for blasting or similar purposes;  provided that none of the provisions of this section shall apply to fireworks or dangerous fireworks and the use thereof by the army and navy departments of the state and federal government;  nor shall anything in this act contained be construed to prohibit any manufacturer, wholesaler, dealer or jobber from manufacturing, possessing or selling at wholesale such fireworks or dangerous fireworks to municipalities, religious or civic organizations, fair associations, amusement parks, or other organizations or groups of individuals authorized to possess and use fireworks or dangerous fireworks under this act, or the sale or use of blank cartridges for a show or theatre, or for signal purposes in athletic sports, or for dog trials or dog training, or the use, or the storage, transportation or sale for use of fireworks or dangerous fireworks in the preparation for or in connection with television broadcasts;  nor shall anything in this act contained be construed to prohibit the manufacture of fireworks or dangerous fireworks, nor the sale of any kind of fireworks or dangerous fireworks, provided the same are to be shipped directly out of the state.

 4. Sales of ammunition not prohibited.  Nothing contained in this section shall be construed to prevent, or interfere in any way with, the sale of ammunition for revolvers or pistols of any kind, or for rifles, shot guns, or other arms, belonging or which may belong to any persons whether as sporting or hunting weapons or for the purpose of protection to them in their homes, or, as they may go abroad;  and manufacturers are authorized to continue to manufacture, and wholesalers and dealers to continue to deal in and freely to sell ammunition to all such persons for such purposes.

 5. Notwithstanding the provisions of subdivision four of this section, it shall be unlawful for any dealer in firearms to sell any ammunition designed exclusively for use in a pistol or revolver to any person, not authorized to possess a pistol or revolver.  The violation of this section shall constitute a class B misdemeanor.
 

Section 270.05 Unlawfully possessing or selling noxious material

 1. As used in this section, "noxious material" means any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person.

 2. A person is guilty of unlawfully possessing noxious material when he possesses such material under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace.

 3. Possession of noxious material is presumptive evidence of intent to use it or cause it to be used in violation of this section.

 4. Bank security devices not prohibited.  Notwithstanding the provisions of subdivision one of this section, it shall not be unlawful for any bank, national banking association, trust company, savings bank, savings and loan association, industrial bank, or credit union to store, possess, transport, use or cause to discharge any bank security device as described in subdivision one of section 270.00 of this chapter;  nor shall it be unlawful for any manufacturer, wholesaler, dealer, jobber or common carrier to manufacture, store, possess, transport, or sell such a device to banks, national banking associations, trust companies, savings banks, savings and loan associations, industrial banks or credit unions.

 5. Self-defense spray devices not prohibited.  Notwithstanding the provisions of subdivisions two and three of this section, it shall not be unlawful for a person eighteen years of age or older to possess a self-defense spray device as defined in paragraph fourteen of subdivision a of section 265.20 of this chapter in accordance with the provisions set forth therein.

 6. A person is guilty of unlawfully selling a noxious material when he or she sells a self-defense spray device as defined in paragraph fourteen of subdivision a of section 265.20 of this chapter and such sale was not authorized in accordance with the provisions of paragraph fifteen of subdivision a of section 265.20 of this chapter.

 Unlawfully possessing or selling noxious material is a class B misdemeanor.
 

Section 270.10 Creating a hazard

 A person is guilty of creating a hazard when:

 1. Having discarded in any place where it might attract children, a container which has a compartment of more than one and one-half cubic feet capacity and a door or lid which locks or fastens automatically when closed and which cannot easily be opened from the inside, he fails to remove the door, lid, locking or fastening device;  or

 2. Being the owner or otherwise having possession of property upon which an abandoned well or cesspool is located, he fails to cover the same with suitable protective construction.

 Creating a hazard is a class B misdemeanor.
 

Section 270.15 Unlawfully refusing to yield a party line

 1. As used in this section:

  (a) "Party line" means a subscriber's line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.

  (b) "Emergency call" means a telephone call to a police or fire department, or for medical aid or ambulance service, necessitated by a situation in which human life or property is in jeopardy and prompt summoning of aid is essential.

 2. A person is guilty of unlawfully refusing to yield a party line when, being informed that a party line is needed for an emergency call, he refuses immediately to relinquish such line.

 Unlawfully refusing to yield a party line is a class B misdemeanor.
 

Section 270.20 Unlawful wearing of a body vest

 1. A person is guilty of the unlawful wearing of a body vest when acting either alone or with one or more other persons he commits any violent felony offense defined in section 70.02 while possessing a firearm, rifle or shotgun and in the course of and in furtherance of such crime he wears a body vest.

 2. For the purposes of this section a "body vest" means a bullet-resistant soft body armor providing, as a minimum standard, the level of protection known as threat level I which shall mean at least seven layers of bullet-resistant material providing protection from three shots of one hundred fifty-eight grain lead ammunition fired from a .38 calibre handgun at a velocity of eight hundred fifty feet per second.

 The unlawful wearing of a body vest is a class E felony.

 


ARTICLE 275--OFFENSES RELATING TO UNAUTHORIZED RECORDING

Section 275.00 Definitions

 The following definitions are applicable to this article:

 1. "Person" means any individual, firm, partnership, corporation or association.

 2. "Owner" means (a) the person who owns, or has the exclusive license in the United States to reproduce or the exclusive license in the United States to distribute to the public copies of the sounds fixed in a master phonograph record, master disc, master tape, master film or any other device used for reproducing sounds on phonograph records, discs, tapes, films, videocassettes, or any other articles upon which sound is recorded, and from which the transferred recorded sounds are directly derived;  or (b) the person who owns the rights to record or authorize the recording of a live performance.

 3. "Fixed" means embodied in a recording by or under the authority of the author, so that the matter embodied is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

 4. "Performer" means the person or persons appearing in a performance.

 5. "Performance" means, whether live before an audience or transmitted by wire or through the air by radio or television, a recitation, rendering, or playing of a series of images, musical, spoken, or other sounds, or a combination of images and sounds, in an audible sequence.

 6. "Recording" means an original phonograph record, disc, tape, audio or video cassette, wire, film, or any other medium on such sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a copy or reproduction that duplicates in whole or in part the original.
 

Section 275.05 Manufacture of unauthorized recordings in the second degree

 A person is guilty of the manufacture of unauthorized recordings in the second degree when such person:

 1. knowingly, and without the consent of the owner, transfers or causes to be transferred any sound recording, with the intent to rent or sell, or cause to be rented or sold for profit, or used to promote the sale of any product, such article to which such recording was transferred, or

 2. transports within this state, for commercial advantage or private financial gain, a recording, knowing that the sounds have been reproduced or transferred without the consent of the owner;  provided, however, that this section shall only apply to sound recordings initially fixed prior to February fifteenth, nineteen hundred seventy-two.

 Manufacture of unauthorized recordings in the second degree is a class A misdemeanor.
 

Section 275.10 Manufacture of unauthorized recordings in the first degree

 A person is guilty of manufacture of unauthorized recordings in the first degree when he commits the crime of manufacture of unauthorized recordings in the second degree as defined in section 275.05 of this article and either:

 1. has previously been convicted of that crime within the past five years;  or

 2. commits that crime by the manufacture of one thousand unauthorized sound recordings;  provided, however, that this section shall only apply to sound recordings initially fixed prior to February fifteenth, nineteen hundred seventy-two.

 Manufacture of unauthorized recordings in the first degree is a class E felony.
 

Section 275.15 Manufacture or sale of an unauthorized recording of a performance in the second degree

 A person commits the crime of manufacture or sale of an unauthorized recording of a performance in the second degree when he knowingly, and without the consent of the performer, records or fixes or causes to be recorded or fixed on a recording a performance, with the intent to sell or rent or cause to be sold or rented such recording, or with the intent to use such recording to promote the sale of any product;  or when he knowingly possesses, transports or advertises, for purposes of sale, resale or rental or sells, resells, rents or offers for rental, sale or resale, any recording that the person knows has been produced in violation of this section.

 Manufacture or sale of an unauthorized recording of a performance in the second degree is a class A misdemeanor.
 

Section 275.20 Manufacture or sale of an unauthorized recording of a performance in the first degree

 A person commits the crime of unauthorized recording of a performance in the first degree when he commits the crime of manufacture or sale of an unauthorized recording of a performance in the second degree as defined in section 275.15 of this article and either:

 1. such person has previously been convicted of that crime within the past five years;  or

 2. commission of that crime involves at least one thousand unauthorized sound recordings or at least one hundred unauthorized audiovisual recordings.

 Manufacture or sale of an unauthorized recording of a performance in the first degree is a class E felony.
 

Section 275.25 Advertisement or sale of unauthorized recordings in the second degree

 A person is guilty of the advertisement or sale of unauthorized recordings in the second degree when such person knowingly advertises, offers for sale, resale, or rental, or sells, resells, rents, distributes or possesses for any such purposes, any recording that has been produced or transferred without the consent of the owner;  provided, however, that this section shall only apply to sound recordings initially fixed prior to February fifteenth, nineteen hundred seventy-two.

 Advertisement or sale of unauthorized recordings in the second degree is a class A misdemeanor.
 

Section 275.30 Advertisement or sale of unauthorized recordings in the first degree

 A person is guilty of the advertisement or sale of unauthorized recordings in the first degree when such person commits the crime of advertisement or sale of unauthorized recordings in the second degree as defined in section 275.25 of this article and either:

 1. such person has previously been convicted of that crime within the past five years;  or

 2. commission of that crime involves at least one thousand unauthorized sound recordings or at least one hundred unauthorized audiovisual recordings.

 Advertisement and sale of unauthorized recordings in the first degree is a class E felony.
 

Section 275.32 Unauthorized operation of a recording device in a motion picture theater

 1. A person is guilty of unauthorized operation of a recording device in a motion picture theater when without written authority or permission from the operator of a motion picture theater, the person operates a recording device in such theater.

 2. As used in this section "recording device" means a photographic or video camera, or any audio video recorder used for recording the sound or picture of a motion picture, and "motion picture theater" means a theater or other auditorium in which a motion picture is exhibited.

 Unauthorized operation of a recording device in a motion picture theater is a violation.
 

Section 275.35 Failure to disclose the origin of a recording in the second degree

 A person is guilty of failure to disclose the origin of a recording in the second degree when, for commercial advantage or private financial gain, he knowingly advertises or offers for sale, resale, or rental, or sells, resells, or rents, or possesses for such purposes, a recording the cover, box, jacket or label does not clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist.  The omission of the actual name and address of the manufacturer, or the omission of the name of the performer or principal artist, or the omission of both, shall constitute the failure to disclose the origin of a recording.

 Failure to disclose the origin of a recording in the second degree is a class A misdemeanor.
 

Section 275.40 Failure to disclose the origin of a recording in the first degree

 A person is guilty of failure to disclose the origin of a recording in the first degree when such person commits the crime of failure to disclose the origin of a recording in the second degree as defined in section 275.35 of this article and commission of that crime involves at least one thousand unauthorized sound recordings or at least one hundred unauthorized audiovisual recordings.

 Failure to disclose the origin of a recording in the first degree is a class E felony.
 

Section 275.45 Limitations of application

 1. This article does not apply to:

  (a) any broadcaster who, in connection with or as part of a radio, television, or cable broadcast transmission, or for the purpose of archival preservation, transfers any such recorded sounds or images;  or

  (b) any person who transfers such sounds or images for personal use, and without profit for such transfer.

 2. This article shall neither enlarge nor diminish the rights of parties in civil litigation.
 
 

 

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.

 

 

 

 

 

 

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