Governor Pataki, Attorney General Spitzer Announce Comprehensive New Anti-terrorism Legislation

Governor George E. Pataki today proposed comprehensive new legislation developed jointly with State Attorney General Spitzer that will help to combat terrorism by creating new terrorism crimes and toughening penalties for terrorists and bio-terrorists.

The new anti-terror measures were unveiled today in New York City at the Annual Meeting of the Federal Law Enforcement Foundation, which presented Governor Pataki with the 2001 Community Leadership Award.

"The attack on the World Trade Center and subsequent anthrax scare are vicious crimes and outrageous attempts to terrorize New Yorkers," Governor Pataki said. "This comprehensive package would provide our law enforcement officials with the weapons they need to combat terrorists and overcome the fear these criminals are attempting to instill in the American public.

"These proposals - coupled with the new anti-terrorism laws I signed on September 17th - will ensure that New York has the toughest and most comprehensive anti-terrorism laws in America."

Attorney General Spitzer said, "Terrorists and other criminal networks are using new technologies and adopting new practices that make many of our existing laws either obsolete or wholly inadequate. Criminals can avoid wiretaps by simply changing cell phones, and so even if we know who the terrorists are and know that they are planning an attack, we effectively are preventing from eavesdropping and finding out where and when the attack will occur. If we want to protect our residents from future acts of terrorism, we need to close these and other loopholes in our laws immediately."

The legislation announced today would:

  • Mandate life imprisonment without parole when a person is convicted of the new crime of criminal use or criminal possession of a chemical or biological weapon in the first degree;
  • Eliminate the statute of limitations for all terrorists offenses;
  • Permit roving wiretaps by law enforcement;
  • Eliminate the need for accomplice testimony in terrorist cases;
  • Subject terrorists' property located outside New York State to civil forfeiture;
  • Include the term "hazardous substance" in the list of items that, if falsely placed, will give rise to a prosecution for a violent felony offense;
  • Create new crimes of money laundering for terrorism, and add these and all terrorism offenses to the list of offenses that may give rise to a prosecution for enterprise corruption.
  • Prevent the suppression of reliable evidence of guilt in terrorism cases when law enforcement officials make mistakes in good faith about search and seizure requirements;
  • Create the new offense of "structuring" an illegal money transaction to penalize those who cause, or attempt to cause, non-compliance by a financial institution with federal filing requirements;
  • Permit the prosecution of terrorists despite a pending or prior federal prosecution;
  • Create the new offenses of criminal facilitation of terrorism and conspiracy to commit terrorism;
  • Require certain terrorists to submit a DNA sample upon conviction; and,
  • Provide for the disclosure of tax related information to a prosecutor in relation to an investigation or prosecution of a terrorist offense.

The Anti-Terrorism Act of 2001, which was signed into law by Governor Pataki less than one week after the terrorist attacks on the World Trade Center, created six new penal law offenses for persons who commit terrorist acts, make terrorist threats, solicit or provide material support for terrorist acts or hinder the prosecution of terrorists.

Specific provisions of the comprehensive new legislation proposed by the Governor today include the following:

A. NEW TERRORISM CRIMES OF POSSESSION AND USE OF CHEMICAL OR BIOLOGICAL WEAPONS

Four new felony crimes targeting the possession or use of a chemical or biological weapon would be created by the bill. Each offense would typically involve the possession or use of such a weapon for a terrorist purpose, defined as the intent to: 1) intimidate or coerce a civilian population; 2) influence the policy of a unit of government by intimidation or coercion; or 3) affect the conduct of a unit of government by murder, assassination or kidnaping. The offenses, however, can also be committed by persons who do not act for a terrorist purpose.

?490.65 - Criminal Use of Chemical or Biological Weapon in the First Degree, a class A-I felony offense with a mandatory sentence of life imprisonment without parole.

A person is guilty of this crime when, for a terrorist purpose or with intent to cause serious physical injury or death to more than one person, or to cause physical injury to more than five persons, he or she: uses or deploys or, attempts to use or deploy, any chemical or biological weapon, and thereby causes physical injury, serious physical injury or death to another. A person is also guilty of this crime if he or she causes physical injury, serous physical injury or death with a chemical or biological weapon under circumstances evincing a depraved indifference to human life.

?490.60 - Criminal Use of a Chemical or Biological Weapon in the Second Degree, a class A-II felony offense with a maximum sentence of life imprisonment. A person is guilty of this crime when, for a terrorist purpose or with intent to cause serious physical injury or death to another person or to cause physical injury to more than three people, he or she uses or deploys or attempts to use, or deploy any chemical or biological weapon. A person who uses a chemical or biological weapon under circumstances evincing a depraved indifference to human life is also guilty of this crime.

?490.55 - Criminal Possession of a Chemical or Biological Weapon in the First Degree, a class A-I felony offense with a mandatory sentence of life imprisonment without parole. A person is guilty of this crime when he or she possesses any chemical or biological weapon for a terrorist purpose or with intent to use such weapon to cause serious physical injury or death to more than one person or to cause physical injury to more than five people. A person is also guilty of this crime if he or she possesses a chemical or biological weapon under circumstances evincing a depraved indifference to human life.

?490.50 - Criminal Possession of a Chemical or Biological Weapon in the Second Degree, a class B violent felony offense with a maximum sentence of 25 years in prison. A person is guilty of this crime when he or she: 1) possesses a biological weapon under circumstances evincing an intent to use, or knowledge that a person intends to use, such weapon against another for unlawful purposes; or 2) possesses any chemical or biological weapon with intent to use such weapon to cause serious physical injury or death to another or with intent to cause physical injury to more than three people.

To ensure that these new crimes do not sweep too broadly, the bill adopts provisions similar to those in federal law that limit its scope and ensure that only exceptionally serious acts are punished with appropriate severity. Thus, the bill provides that the provisions of criminal possession and use of a biological or chemical weapon shall not apply if the defendant possessed or used: 1) a household product available to consumers at retail stores; 2) certain self-defense sprays; 3) a chemical weapon solely for a purpose not prohibited by article 490 of the penal law; or 4) a biological agent, toxin or delivery system solely for a prophylactic, protective, research or other peaceful purpose.

B. AUTHORIZATION FOR ROVING WIRETAPS

Terrorists have benefitted from major technological advancements in cellular communications. Cellular phones, once a rarity, have become as common as home telephones. Regrettably, these phones have enabled criminals to thwart law enforcement initiatives simply by changing phones - current law requires separate judicial authorization, a timely and cumbersome process, for each phone to be monitored by authorized law enforcement.

The bill, therefore, removes this requirement and enables judges to authorize "roving wiretaps" so that law enforcement is able to monitor all communications by persons reasonably suspected of involvement in terrorist activities regardless of how many cell phones they use to conduct and plan and organize their illegal activities.

The provisions of the bill authorizing roving wiretaps are modeled after the provisions of the recently enacted legislation by Congress that was proposed by President Bush and Attorney General Ashcroft. These provisions will help to ensure that police officers and prosecutors in our State are provided with the investigative tools they need to keep pace with the modern technologies employed by terrorists.

C. BARRING SUPPRESSION OF RELIABLE EVIDENCE OF GUILT IN TERRORISM CASES

The citizens of New York cannot afford to bestow on defendants accused of terrorist acts the windfall of the exclusionary rule if a police officer makes an honest mistake in the recovery of evidence. To prevent terrorists from escaping justice on account of good faith errors by law enforcement officials in complying with often complex search and seizure law requirements, the bill amends existing law to ensure that a good faith error made by a law enforcement official in a terrorist case will not necessitate the exclusion of reliable evidence of guilt. Thus, the bill would prevent a terrorist from getting off scot-free on a "technicality." As with other provisions of the bill, this exception for good faith errors is modeled after provisions of existing federal law.

D. NEW MONEY LAUNDERING FOR TERRORISM CRIMES

Terrorist organizations will continue to function unless meaningful steps are taken to cut off their networks of financial support. The fact that terrorists have raised the money necessary to train and hone their lethal trade in our midst makes abundantly clear the need to enable law enforcement to punish severely those who "launder" money for terrorist purposes.

By creating new crimes of money laundering for terrorism in the third, second and first degrees - which will be punished as Class C, B and A-1 felonies, respectively - the bill seeks to cripple the ability of terrorists to raise and transport money to support their criminal conduct. The degrees of the new crimes are generally distinguished by the amount of funds laundered, with the class A-I felony committed when the value of the funds or property involved exceeds $5,000.

E. ABOLISHING THE STATUTE OF LIMITATIONS IN TERRORIST CASES

Consistent with the Governor's repeated calls for abolishing the statute of limitations for class B, violent felony offenses, the bill would abolish the statute of limitations for all terrorists crimes, regardless of whether they are class B or lower grade felonies. (Under current law, there is no statute of limitations for class A felonies.)

As the Governor has repeatedly stressed, there is no statute of limitation on the pain and anguish caused by violent criminals. Particularly because proving the culpability of those who commit terrorist violence can take years of painstaking investigation, the need to abolish the statute of limitations for terrorism crimes is manifest.

F. NEW CRIMINAL FACILITATION OF TERRORISM AND CONSPIRACY TO COMMIT TERRORISM CRIMES

The Anti-Terrorism legislation signed by Governor Pataki included new violent felony crimes for those who provide after-the-fact assistance to terrorists. These tough penalties for hindering prosecution of terrorism crimes send a powerful message to those who might be tempted to harbor terrorists, assist their escape or otherwise aid them after the commission of their despicable crimes.

Similarly, and to send the same message, the new legislative proposal creates tough, new violent felony crimes targeted at those who, believing it probable they are rendering aid to someone who intends to commit a crime, provide such aid to a person who in fact commits a terrorist crime.

In addition, the bill ensures that those who conspire to commit terrorism crimes are punished with appropriate severity. Thus, under the bill a person who conspires to commit a terrorist crime shall be guilty of a violent felony. In addition, the bill provides that he or she is subject to the level of punishment applicable to the actual commission of the terrorist crime.

G. PERMITTING CONVICTIONS FOR TERRORIST CRIMES ON ACCOMPLICE TESTIMONY

Unlike federal law, New York law prohibits a criminal conviction from being based upon accomplice testimony, even when guilt is established beyond a reasonable doubt, unless there is corroborating evidence connecting the defendant to the crime. This prohibition, moreover, applies even if numerous accomplices testify that the defendant was the key figure in organizing, planning and committing numerous different terrorist crimes.

As applied to terrorism cases, this prohibition is particularly indefensible, since terrorists all but invariably work in small cells of accomplices that law enforcement agents are unable to infiltrate. Accordingly, the bill would conform New York law with federal law, thereby ensuring that when a terrorist's guilt is proven beyond a reasonable doubt he or she will not escape justice.

H. SEPARATE FEDERAL AND STATE PROSECUTIONS

Unlike federal law and the law in many states, New York law prohibits the prosecution of a criminal defendant whenever any jurisdiction within the United States has previously proceeded to try, or accepted a guilty plea from, that defendant. Thus, if an accomplice in the recent terrorist attacks pleaded guilty to a reduced charge brought by a local prosecutor in another state, that individual would be immune from prosecution by New York State for assisting in the deaths of thousands of New Yorkers. This bill eliminates this loophole to ensure that no terrorist will ever avoid New York's compelling interest in meting out justice to those who commit acts of terrorism.

I. TAX INFORMATION:

New York State law has significant tax secrecy protections. These protections against the general disclosure of tax information, however, should not become an impediment to law enforcement investigations. This bill makes it easier for the Department of Taxation and Finance to share tax information about suspected terrorists with law enforcement authorities.


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