How Criminal Law Is Changing
11.18.2024
This article reviews new legislation amending the Penal Law, Criminal Procedure Law and related statues. The discussion that follows will highlight key provisions of the new laws, which the reader should review for specific details. Where indicated, legislation enacted by both houses is awaiting the governor’s signature; the reader should check to determine whether the governor has signed or vetoed a bill.
In the past legislative session, there were three areas in which substantive legislation was enacted: added security for judges and juries; curtailment of organized retail theft; and the criminalization of deed theft to protect homeowners.
Increasing Security for Judges and Juries
The Legislature enacted two measures to increase security for judges and their families. First, it passed the New York State Judicial Security Act, which permits judges or former judges to request that personal information about themselves or family members be removed from the internet and other medium. Such information includes home addresses, unlisted telephone numbers, cell phone numbers, email addresses, license plate numbers, identity of children under the age of 18, etc. The act would also restrict businesses and other entities in possession of such information from sharing it.[1]
This provision was in response to an increase in the number of judges around the country being threatened, stalked and even assaulted. In July 2020, in New Jersey, a federal judge watched as her son was murdered and her husband shot by an angry litigant in her home.
A second part of the legislation increases protection for judges by enacting new crimes to protect the judiciary and by amending the current statute. The current crime of assault on a judge (a class C felony) was amended by removing the requirement that the crime be committed with the intent “to cause serious physical injury.” Thus, a prosecutor will now only need to prove that a person caused serious physical injury with the intent to “prevent a judge from performing official duties.”
Two new crimes were enacted: aggravated assault on a judge (P.L. Section120.09-a, a class B felony) and aggravated harassment of a judge (P.L. Section 240.33, a class E Felony).
Aggravated assault on a judge will be committed when a person causes serious physical injury, with both the intent to cause that injury and an intent to prevent the judge from performing official judicial duties.
Aggravated harassment of a judge will be committed when a person engages in various acts, as specified in the statute, with the intent to harass either a judge or a member of the judge’s “immediate family” and the person knows or should know that such act, will cause the judge (or a family member) to reasonably fear harm to their physical safety or property. The acts can consist of various forms of threatening communications or physical contact (striking, shoving, kicking) that can cause physical injury. The statute adopts the definition of “immediate family” currently utilized in the crime of stalking (P.L. Section120.40).
Members of juries were also provided more security by the Legislature. This was a reaction to certain high-profile cases where the names of jurors were not made public out of a concern that the welfare of the jury was at risk. Under an amendment to the Criminal Procedure Law, upon motion of the prosecutor, defense counsel, or “any affected person,” or upon the court’s own initiative, a court can issue a protective order preventing the names of any prospective juror from being made public.[2]
The protective order must be based upon “good cause.” In determining good cause, a court can consider: (1) whether a juror or prospective juror has been tampered with, bribed, harassed or injured; (2) the seriousness of the charges against the defendant; or (3) the extent of pretrial publicity. If a court determines that a protective order should be issued, it must instruct the jury that the fact that the jury was selected on an anonymous basis is not a factor from which it may draw any unfavorable inference against the defendant.
Addressing Organized Retail Theft
A second initiative by the Legislature in the last session was an effort to reduce an increase in organized retail theft. Among the several laws that were enacted, the most notable bill permits felony charges to be filed against individuals who steal merchandise from more than one store. Currently, if a person steals merchandise worth $500 at one store, and then merchandise worth $501 at a second store, that person can only be charged twice with petit larceny.
Under the new law, if a person steals property from more than one location “pursuant to a common scheme of a plan,” and the value of the property exceeds $1,000, the person can now be charged with grand larceny in the fourth degree, a class E felony.[3] If the aggregate amount is greater, a person can be charged with grand larceny in the third degree ($3,000); second degree ($50,000) or first degree ($1 million). It should be noted that a conviction for these crimes is excluded under the persistent felony offender statute for purposes of sentencing (P.L. Section 70.10 (1)(b)(iv)).
Another related bill enacted a new crime, assault on a retail worker (P.L. Section 120.19), a class E felony.[4] This crime will now be committed when a person causes physical injury to either an employee or owner of a retail establishment with the intent to “prevent a retail worker from performing an act within the scope of such worker’s employment.”
Finaly, the Legislature created a new class A misdemeanor, fostering the sale of stolen goods.[5] This crime will now be committed when a person uses any digital platform or any venue to offer for sale stolen merchandise which the person knows or should have known was stolen or unlawfully obtained.
Criminalizing Deed Theft
A third substantive initiative by the Legislature criminalizes deed theft. This form of real property theft is committed by individuals who fraudulently obtain the deed to someone’s home, either through falsifying signatures or persuading the homeowner to sign away the deed under false pretenses. Perpetrators of this type of crime target older victims and homeowners in minority communities.
The new law amends the definition of larceny by adding “deed theft” as a method of unlawfully obtaining another person’s property, and it now constitutes grand larceny; the degree of grand larceny will depend upon the value of the property. Finally, the new law authorizes the attorney general to prosecute deed theft as well as “any crime that affects the title to, encumbrance of, or the possession of real property.”[6]
Each year the Legislature enacts new crimes and expands the definition of others, and this year was no exception. In response to an increase in the number of hate crimes in New York and around the country, the Legislature added 22 “hate crimes” to the already existing list of 62 such crimes. State Comptroller Thomas Napoli issued a report which found that hate crimes increased 12.7%, statewide, in 2023 and that antisemitic bias incidents comprised 44% of the total amount. Designating a particular crime as a “hate crime” raises its severity by one level, thus increasing the severity of the potential sentence.[7]
In an effort to curtail identity theft (the fastest growing crime in this country), the Legislature added “medical information” and “health insurance information” to the type of information which, if obtained fraudulently, will now constitute the crime of identity theft.[8]
Two bills were enacted to protect specific classes of individuals. First, in response to an increase in anti-Muslim incidents in New York, the crime of aggravated harassment in the second degree (a class A misdemeanor) has been amended to include the removal of a “religious clothing article or headdress” from a person with the intent to harass, annoy, threaten or alarm. This will address the increase in incidents in which individuals have pulled or ripped off a hijab or a skullcap or yarmulke from individuals.[9]
A second bill amends the above harassment statute to provide more security for employees who work on trains, buses and ferries. A person can now be convicted of a class A misdemeanor by shoving, spitting, striking or otherwise subjecting these employees to physical contact.[10]
Updating Language on Firearms
The Legislature has enacted three new laws related to the possession of weapons. First, a bill was passed to amend the term “Kung Fu Star” as a per se weapon. As noted in the sponsor’s memo, “Kung Fu Star” is an outdated term; the weapon does not originate in China as the term implies. The term “throwing stars” or “shuriken” has been substituted in its place.[11]
The term “pistol converter” has been added to the definitional section of Article 265 of the Penal Law. A pistol converter can transform an ordinary pistol into an automatic weapon by allowing it to fire as many as 15 rounds in under two seconds. The General Business Law was also amended to require firearm dealers in New York State to take reasonable steps to prevent the use or installation of pistol converters.[12] The licensing section of the Penal Law was amended to require firearms dealers to post warnings, specifically informing buyers, or potential buyers of weapons, about the inherent dangers of weapons possession. A failure to post such a warning will now constitute a violation under the Penal Law.[13] Finally, the crime of reckless driving has been expanded to include driving in a parking lot.[14]
Other Notable Legislation
In the last session, the Legislature sought to strengthen the laws that require a license to sell cannabis. One measure was an amendment to the crime of obstructing governmental administration, which now prohibits a person from damaging or removing a padlock that was installed pursuant to court order that closed or sealed an illegal cannabis store.[15]
Probationers have now been given the same protection as parolees, in that they are deemed incapable of consent should a probation officer engage in sexual activity with them. The disparity in power between a probation officer and his or her probationer creates the potential for any sexual relationship to be coercive in nature.[16]
Finally, the Legislature repealed the crime of adultery which was a class B misdemeanor. This was an antiquated but seldom enforced law that has been repealed in the vast majority of states. Only 13 people have been charged with adultery in New York over the past 52 years. The Legislature took this step because it was felt that the state should not be regulating the consensual sexual behavior between adults.[17]
A number of procedural changes were enacted in the last legislative session. One bill would expand e-filing to all “courts of New York having criminal jurisdiction”; this would allow e-filing to be used in the New York City Criminal Court and in the criminal term of Supreme Court.[18]
The Legislature has expanded the ability of judges to issue orders of protection in family offense matters. Judges can now provide an order of protection to an individual who is not a minor and who is neither a family member of the perpetrator nor someone having an intimate relationship with him or her.[19]
In People v. Slade,[20] the Court of Appeals held that an information is not subject to dismissal when, on the face of the instrument, there is no indication that the complainant’s allegations have been translated from a non-English language. In response to that decision, the Legislature enacted a new law that requires a certificate of translation to accompany accusatory instruments and supporting depositions in cases where deponents are not fully proficient in the English language.[21]
Finally, the term “poor person relief” has been removed from the Criminal Procedure Law; it is a highly outdated and pejorative term.[22] And six additional counties have been given the authority to conduct electronic court appearance in criminal cases, aside from a hearing or trial (Saratoga, Monroe, Delaware, Oswego, Otsego and Schoharie).[23]
Finally, the Legislature has amended the Judiciary Law to allow a convicted felon to serve on a jury.[24] Approximately one third of black males in New York State have been excluded from the jury pool because of this exclusion and it has created racial disparity in some juries across the state; this in turn has had an impact on the quality and fairness of the jury system.
The Vehicle and Traffic Law has been amended to address the increase in “ghost” license plates that have been used by motorists to avoid payment of tolls. More than 100,000 license plates images passing through Department of Transportation cameras alone are unreadable every month. The police department has also been concerned about this phenomenon because it has a direct impact on crime detection. Fines under the new law range from $100 to $500. Repeat offenders who are convicted three times within five years may have their registration suspended for 90 days or longer.[25]
Finally, jaywalking has been legalized in New York City.[26] Legislation was passed by the New York City Council in September and became law on Oct. 26, 2024 after Mayor Eric Adams declined to act – either by signing or vetoing it after 30 days. The new law permits pedestrians to legally cross a roadway at any point, including outside of a crosswalk and allows for crossing against traffic signals.
According to the bill’s sponsor, the legislation was passed because an overwhelming number of summonses have been issued to persons of color. The police department issued 786 summonses for jaywalking in the first six months of the year and 77% of them were issued to Black and Hispanic individuals; the legislation was passed to address this imbalance.
Barry Kamins is a partner in the law firm of Aidala, Bertuna, & Kamins, where his practice focuses primarily on appellate matters and professional discipline. Prior to joining the firm, he was the administrative judge of the New York City Criminal Court and chief of policy and planning for the New York court system. Judge Kamins is an adjunct professor at Brooklyn Law School, where he teaches New York criminal practice. He is the author of “New York Search and Seizure” and writes the Criminal Law and Practice column for the New York Law Journal. This article also appears in NY Criminal Justice Section Reporter, the publication of the Criminal Justice Section. For more information, please visit NYSBA.ORG/CRIMINALJUSTICE.
Endnotes
[1] L. 2024, N.Y. Laws, Ch. 56, Part F (adding Judiciary Law article 22-c), eff. July 19, 2024.
[2] A. 7495, awaiting the signature of the governor.
[3] L. 2024, N.Y. Laws, Ch. 55, Part FF (amending P.L. § § 155.36 155.40 and 155.42), eff. July 19, 2024.
[4] L. 2024, N.Y. Laws, Ch. 55, Part A (adding P.L. § 120.19), eff. July 19, 2024.
[5] L. 2024, N.Y. Laws, Ch. 55, Part B, (adding P.L. § 165.66), eff. November 1, 2024.
[6] L. 2024, N.Y. Laws, Ch. 56, Part O, (amending P.L. § 155.00), eff. July 19, 2024.
[7] L. 2024, N.Y. Laws, Ch. 55, Part C (amending P.L. § 485.05) eff. June 19, 2024.
[8] A. 4737, awaiting the signature of the governor.
[9] A. 8849, awaiting the signature of the governor.
[10] L. 2024, N.Y. Laws, Ch. 55, Part Z (amending P.L. § 240.30), eff. July 19, 2024.
[11] A. 8425, awaiting the signature of the governor.
[12] L. 2024, N.Y. Laws, Ch. 429 (amending Exec. Law § 898-a(6), eff. October 9, 2024.
[13] L. 2024, N.Y. Laws, Ch. 426 (amending P.L. § 400.00), eff. October 9, 2024.
[14] L. 2024, N.Y. Laws, Ch. 436 (amending VTL § 1212) eff. November 22, 2024.
[15] L. 2024, N.Y. Laws, Ch. 55, (amending P.L. § 195.05), eff. April 20, 2024.
[16] A. 1774, awaiting the signature of the governor.
[17] A. 4714, awaiting the signature of the governor.
[18] S. 7524, awaiting the signature of the governor.
[19] S. 6288, awaiting the signature of the governor.
[20] 37 N.Y.3d 127 (2021).
[21] A. 9122, awaiting the signature of the governor.
[22] A.10351, awaiting the signature of the governor.
[23] L. 2024, N.Y. Laws, Chs. 232, 243, 279 and 285 (amending CPL §182.20), eff. August 28, 2024.
[24] A. 1432, awaiting the signature of the governor.
[25] L. 2024, N.Y. Laws, Ch. 56 (amending VTL §402), eff. September 1, 2024.
[26] Int. No. 346-A, eff. February 23, 2025.
