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Oneida Indian Nation (New York) Codes and Rules

Last amended: 2004

PENAL CODE - CHAPTER 4H-N


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H. BRIBERY INVOLVING PUBLIC SERVANTS AND RELATED OFFENSES


639. BRIBERY IN THE THIRD DEGREE

A Native American is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribery in the third degree is a class D felony.


640. BRIBERY IN THE SECOND DEGREE

A Native American is guilty of bribery in the second degree when he confers, or offers or agrees to confer, any benefit valued in excess of ten thousand dollars upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribery in the second degree is a class C felony.


641. BRIBERY IN THE FIRST DEGREE

A Native American is guilty of bribery in the first degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced in the investigation, arrest, detention, prosecution or incarceration of any person for the commission or alleged commission of a class A felony defined in article 103 of the penal code or an attempt to commit any such class A felony.

Bribery in the first degree is a class B felony.


642. BRIBERY; DEFENSE

In any prosecution for bribery, it is a defense that the defendant conferred or agreed to confer the benefit involved upon the public servant involved as a result of conduct of the latter constituting larceny committed by means of extortion, or an attempt to commit the same, or coercion, or an attempt to commit coercion.


643. BRIBE RECEIVING IN THE THIRD DEGREE

A public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribe receiving in the third degree is a class D felony.


644. BRIBE RECEIVING IN THE SECOND DEGREE

A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit valued in excess of ten thousand dollars from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribe receiving in the second degree is a class C felony.


645. BRIBE RECEIVING IN THE FIRST DEGREE

A public servant is guilty of bribe receiving in the first degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced in the investigation, arrest, detention, prosecution or incarceration of any person for the commission or alleged commission of a class A felony defined in article 103 of the penal code or an attempt to commit any such class A felony.

Bribe receiving in the first degree is a class B felony.


646. BRIBE RECEIVING; NO DEFENSE

1. The crimes of (a) bribe receiving, and (b) larceny committed by means of extortion, attempt to commit the same, coercion and attempt to commit coercion, are not mutually exclusive, and it is no defense to a prosecution for bribe receiving that, by reason of the same conduct, the defendant also committed one of such other specified crimes.

2. It is no defense to a prosecution pursuant to the provisions of this article that the public servant did not have power or authority to perform the act or omission for which the alleged bribe, gratuity or reward was given.


647. REWARDING OFFICIAL MISCONDUCT IN THE SECOND DEGREE

A Native American is guilty of rewarding official misconduct in the second degree when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having violated his duty as a public servant.

Rewarding official misconduct in the second degree is a class E felony.


648. REWARDING OFFICIAL MISCONDUCT IN THE FIRST DEGREE

A Native American is guilty of rewarding official misconduct in the first degree when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having violated his duty as a public servant in the investigation, arrest, detention, prosecution, or incarceration of any person for the commission or alleged commission of a class A felony defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony.

Rewarding official misconduct in the first degree is a class C felony.


649. RECEIVING REWARD FOR OFFICIAL MISCONDUCT IN THE SECOND DEGREE

A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.

Receiving reward for official misconduct in the second degree is a class E felony.


650. RECEIVING REWARD FOR OFFICIAL MISCONDUCT IN THE FIRST DEGREE

A public servant is guilty of receiving reward for official misconduct in the first degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant in the investigation, arrest, detention, prosecution, or incarceration of any person for the commission or alleged commission of a class A felony defined in article 103 of the penal law or the attempt to commit any such class A felony.

Receiving reward for official misconduct in the first degree is a class C felony.


651. GIVING UNLAWFUL GRATUITIES

A Native American is guilty of giving unlawful gratuities when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.

Giving unlawful gratuities is a class A misdemeanor.


652. RECEIVING UNLAWFUL GRATUITIES

A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.

Receiving unlawful gratuities is a class A misdemeanor.


653. BRIBE GIVING FOR PUBLIC OFFICE

A Native American is guilty of bribe giving for public office when he confers, or offers or agrees to confer, any money or other property upon a public servant upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.

Bribe giving for public office is a class D felony.


654. BRIBE RECEIVING FOR PUBLIC OFFICE

A public servant is guilty of bribe receiving for public office when he solicits, accepts or agrees to accept any money or other property from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.

Bribe receiving for public office is a class D felony.


655. ESCAPE AND OTHER OFFENSES RELATING TO CUSTODY; DEFINITIONS OF TERMS

The following definitions are applicable to this article:

1. "Detention Facility" means any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or (b) charged with being or adjudicated a youthful offender, person in need of supervision or juvenile delinquent, or (c) held for extradition or as a material witness, or (d) otherwise confined pursuant to an order of a court.

2. "Custody" means restraint by a public servant pursuant to an authorized arrest or an order of a court.

3. "Contraband" means any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.

4. "Dangerous contraband" means contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.


656. ESCAPE IN THE THIRD DEGREE

A Native American is guilty of escape in the third degree when he escapes from custody.

Escape in the third degree is a class A misdemeanor.


657. ESCAPE IN THE SECOND DEGREE

A Native American is guilty of escape in the second degree when:

1. He escapes from a detention facility; or

2. Having been arrested for, charged with or convicted of a class C, class D or class E felony, he escapes from custody; or

3. Having been adjudicated a youthful offender, which finding was substituted for the conviction of a felony, he escapes from custody.

Escape in the second degree is a class E felony.


658. ESCAPE IN THE FIRST DEGREE

A Native American is guilty of escape in the first degree when:

1. Having been charged with or convicted of a felony, he escapes from a detention facility; or

2. Having been arrested for, charged with or convicted of a class A or class B felony, he escapes from custody; or

3. Having been adjudicated a youthful offender, which finding was substituted for the conviction of a felony, he escapes from a detention facility.

Escape in the first degree is a class D felony.


659. PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE

A Native American is guilty of promoting prison contraband in the second degree when:

1. He knowingly and unlawfully introduces any contraband into a detention facility; or

2. Being a Native American confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any contraband.

Promoting prison contraband in the second degree is a class A misdemeanor.


660. PROMOTING PRISON CONTRABAND IN THE FIRST DEGREE

A Native American is guilty of promoting prison contraband in the first degree when:

1. He knowingly and unlawfully introduces any dangerous contraband into a detention facility; or

2. Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any dangerous contraband.

Promoting prison contraband in the first degree is a class D felony.


661. RESISTING ARREST

A Native American is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

Resisting arrest is a class A misdemeanor.


662. HINDERING PROSECUTION; DEFINITION OF TERM

As used in Sections 663, 664, and 665, a person "renders criminal assistance" when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a Native American who he knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime, or with intent to assist a person in profiting or benefiting from the commission of a crime, he:

1. Harbors or conceals such person; or

2. Warns such person of impending discovery or apprehension; or

3. Provides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or

4. Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or

5. Suppresses, by any act of concealment, alteration or destruction, any physical evidence which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or

6. Aids such person to protect or expeditiously profit from an advantage derived from such crime.


663. HINDERING PROSECUTION IN THE THIRD DEGREE

A Native American is guilty of hindering prosecution in the third degree when he renders criminal assistance to a person who has committed a felony.

Hindering prosecution in the third degree is a class A misdemeanor.


664. HINDERING PROSECUTION IN THE SECOND DEGREE

A Native American is guilty of hindering prosecution in the second degree when he renders criminal assistance to a person who has committed a class B or class C felony.

Hindering prosecution in the second degree is a class E felony.


665. HINDERING PROSECUTION IN THE FIRST DEGREE

A Native American is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A felony, knowing or believing that such person has engaged in conduct constituting a class A felony.

Hindering prosecution in the first degree is a class D felony.


666. PERJURY AND RELATED OFFENSES; DEFINITIONS OF TERMS

The following definitions are applicable to this article:

1. "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.

2. "Swear" means to state under oath.

3. "Testimony" means an oral statement made under oath in a proceeding before any court, body, agency, public servant or other person authorized by law to conduct such proceeding and to administer the oath or cause it to be administered.

4. "Oath required by law." An affidavit, deposition or other subscribed written instrument is one for which an "oath is required by law" when, absent an oath or swearing thereto, it does not or would not, according to statute or appropriate regulatory provisions, have legal efficacy in a court of law or before any public or governmental body, agency or public servant to whom it is or might be submitted.

5. "Swear falsely." A person "swears falsely" when he intentionally makes a false statement which he does not believe to be true (a) while giving testimony, or (b) under oath in a subscribed written instrument. A false swearing in a subscribed written instrument shall not be deemed complete until the instrument is delivered by its subscriber, or by someone acting in his behalf, to another person with intent that it be uttered or published as true.

6. "Attesting officer" means any notary public or other person authorized by law to administer oaths in connection with affidavits, depositions and other subscribed written instruments, and to certify that the subscriber of such an instrument has appeared before him and has sworn to the truth of the contents thereof.

7. "Jurat" means a clause wherein an attesting officer certifies, among other matters, that the subscriber has appeared before him and sworn to the truth of the contents thereof.


667. PERJURY IN THE THIRD DEGREE

A Native American is guilty of perjury in the third degree when he swears falsely.

Perjury in the third degree is a class A misdemeanor.


668. PERJURY IN THE SECOND DEGREE

A Native American is guilty of perjury in the second degree when he swears falsely and when his false statement is (a) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in the performance of his official functions, and (c) material to the action, proceeding or matter involved.

Perjury in the second degree is a class E felony.


669. PERJURY IN THE FIRST DEGREE

A Native American is guilty of perjury in the first degree when he swears falsely and when his false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made.

Perjury in the first degree is a class D felony.


670. PERJURY; PLEADING AND PROOF WHERE INCONSISTENT STATEMENTS INVOLVED

Where a Native American has made two statements under oath which are inconsistent to the degree that one of them is necessarily false, where the circumstances are such that each statement, if false, is perjuriously so, and where each statement was made within the jurisdiction of this state and within the period of the statute of limitations for the crime charged, the inability of the people to establish specifically which of the two statements is the false one does not preclude a prosecution for perjury, and such prosecution may be conducted as follows:

1. The indictment or information may set forth the two Statements and, without designating either, charge that one of them is false and perjuriously made.

2. The falsity of one or the other of the two statements may be established by proof or a showing of their irreconcilable inconsistency.

3. The highest degree of perjury of which the defendant may be convicted is determined by hypothetically assuming each statement to be false and perjurious. If under such circumstances perjury of the same degree would be established by the making of each statement, the defendant may be convicted of that degree at most. If perjury of different degrees would be established by the making of the two statements, the defendant may be convicted of the lesser degree at most.


671. PERJURY; DEFENSE

In any prosecution for perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed.


672. PERJURY; NO DEFENSE

It is no defense to a prosecution for perjury that:

1. The defendant was not competent to make the false statement alleged; or

2. The defendant mistakenly believed the false statement to be immaterial; or

3. The oath was administered or taken in an irregular manner or that the authority or jurisdiction of the attesting officer who administered the oath was defective, if such defect was excusable under any statute or rule of law.


673. MAKING AN APPARENTLY SWORN FALSE STATEMENT IN THE SECOND DEGREE

A Native American is guilty of making an apparently sworn false statement in the second degree when (a) he subscribes a written instrument knowing that it contains a statement which is in fact false and which he does not believe to be true, and (b) he intends or believes that such instrument will be uttered or delivered with a jurat affixed thereto, and (c) such instrument is uttered or delivered with a jurat affixed thereto.

Making an apparently sworn false statement in the second degree is a class A misdemeanor.


674. MAKING AN APPARENTLY SWORN FALSE STATEMENT IN THE FIRST DEGREE

A Native American is guilty of making an apparently sworn false statement in the first degree when he commits the crime of making an apparently sworn false statement in the second degree, and when (a) the written instrument involved is one for which an oath is required by law, and (b) the false statement contained therein is made with intent to mislead a public servant in the performance of his official functions, and (c) such false statement is material to the action, proceeding or matter involved.

Making an apparently sworn false statement in the first degree is a class E felony.


675. MAKING A PUNISHABLE FALSE WRITTEN STATEMENT

A Native American is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.

Making a punishable false written statement is a class A misdemeanor.


676. PERJURY AND RELATED OFFENSES; REQUIREMENT OF CORROBORATION

In any prosecution for perjury, except a prosecution based upon inconsistent statements pursuant to section 670, or in any prosecution for making an apparently sworn false statement, or making a punishable false written statement, falsity of a statement may not be established by the uncorroborated testimony of a single witness.


677. BRIBING A WITNESS

A Native American is guilty of bribing a witness when he confers, or offers or agrees to confer, any benefit upon a witness or a person about to be called as a witness in any action or proceeding upon an agreement or understanding that (a) the testimony of such witness will thereby be influenced, or (b) such witness will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding.

Bribing a witness is a class D felony.


678. BRIBE RECEIVING BY A WITNESS

A witness or a person about to be called as a witness in any action or proceeding is guilty of bribe receiving by a witness when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that (a) his testimony will thereby be influenced, or (b) he will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding.

Bribe receiving by a witness is a class D felony.


679. TAMPERING WITH A WITNESS IN THE FOURTH DEGREE

A Native American is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, (a) he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) he knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of such person.

Tampering with a witness in the fourth degree is a class A misdemeanor.


680. TAMPERING WITH A WITNESS IN THE THIRD DEGREE

A Native American is guilty of tampering with a witness in the third degree when, knowing that a person is about to be called as a witness in a criminal proceeding:

1. He wrongfully compels or attempts to compel such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at such proceeding by means of instilling in him a fear that the actor will cause physical injury to such person or another person; or

2. He wrongfully compels or attempts to compel such person to swear falsely by means of instilling in him a fear that the actor will cause physical injury to such person or another person.

Tampering with a witness in the third degree is a class E felony.


681. TAMPERING WITH A WITNESS IN THE SECOND DEGREE

A Native American is guilty of tampering with a witness in the second degree when he:

1. Intentionally causes physical injury to a person for the purpose of obstructing, delaying, preventing or impeding the giving of testimony in a criminal proceeding by such person or another person or for the purpose of compelling such person or another person to swear falsely; or

2. He intentionally causes physical injury to a person on account of such person or another person having testified in a criminal proceeding.

Tampering with a witness in the second degree is a class D felony.


682. TAMPERING WITH A WITNESS IN THE FIRST DEGREE

A Native American is guilty of tampering with a witness in the first degree when:

1. He intentionally causes serious physical injury to a person for the purpose of obstructing, delaying, preventing or impeding the giving of testimony in a criminal proceeding by such person or another person or for the purpose of compelling such person or another person to swear falsely; or

2. He intentionally causes serious physical injury to a person on account of such person or another person having testified in a criminal proceeding.

Tampering with a witness in the first degree is a class B felony.


683. EMPLOYER UNLAWFULLY PENALIZING WITNESS

Any Native American who is the victim of a crime upon which an accusatory instrument is based or is subpoenaed to attend a criminal action as a witness pursuant the Oneida Indian Nation Rules of Criminal Procedure and who notifies his employer of his intent to appear as a witness prior to the day of his attendance, shall not on account of his absence from employment by reason of such witness service be subject to discharge or penalty except as hereinafter provided. Upon request of the employer, the party who sought the testimony shall provide verification of the employee's service as a witness. An employer may, however, withhold wages of any such employee attending a criminal action as a witness during the period of such attendance. The subjection of an employee to discharge or penalty on account of his absence from employment by reason of his required attendance as a witness at a criminal action shall constitute a class B misdemeanor.


684. INTIMIDATING A VICTIM OR WITNESS IN THE THIRD DEGREE

A Native American is guilty of intimidating a victim or witness in the third degree when, knowing that another person possesses information relating to a criminal transaction and other than in the course of that criminal transaction or immediate flight therefrom, he:

1. Wrongfully compels or attempts to compel such other person to refrain from communicating such information to any court, prosecutor, or police officer by means of instilling in him a fear that the actor will cause physical injury to such other person or another person; or

2. Intentionally damages the property of such other person or another person for the purpose of compelling such other person or another person to refrain from communicating, or on account of such other person or another person having communicated, information relating to that criminal transaction to any court, grand jury, prosecutor, or police officer.

Intimidating a victim or witness in the third degree is a class E felony.


685. INTIMIDATING A VICTIM OR WITNESS IN THE SECOND DEGREE

A Native American is guilty of intimidating a victim or witness in the second degree when, other than in the course of that criminal transaction or immediate flight therefrom, he:

1. Intentionally causes physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, or police officer or for the purpose of compelling such other person or another person to swear falsely; or

2. Intentionally causes physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer; or

3. Recklessly causes physical injury to another person by intentionally damaging the property of such other person or another person, for the purpose of obstructing, delaying, preventing or impeding such other person or another person from communicating, or on account of such other person or another person having communicated, information relating to a criminal transaction to any court, grand jury, prosecutor, or police officer.

Intimidating a victim or witness in the second degree is a class D felony.


686. INTIMIDATING A VICTIM OR WITNESS IN THE FIRST DEGREE

A Native American is guilty of intimidating a victim or witness in the first degree when, other than in the course of that criminal transaction or immediate flight therefrom, he:

1. Intentionally causes serious physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling such other person or another person to swear falsely; or

2. Intentionally causes serious physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer.

Intimidating a victim or witness in the first degree is a class B felony.


687. BRIBING A JUROR

A Native American is guilty of bribing a juror when he confers, or offers or agrees to confer, any benefit upon a juror upon an agreement or understanding that such juror"s vote, opinion, judgment, decision or other action as a juror will thereby be influenced.

Bribing a juror is a class D felony.


688. BRIBE RECEIVING BY A JUROR

A juror is guilty of bribe receiving by a juror when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, decision or other action as a juror will thereby be influenced.

Bribe receiving by a juror is a class D felony.


689. TAMPERING WITH A JUROR IN THE SECOND DEGREE

A Native American is guilty of tampering with a juror in the second degree when, prior to discharge of the jury, he:

1. confers, or offers or agrees to confer, any payment or benefit upon a juror or upon a third person acting on behalf of such juror, in consideration for such juror or third person supplying information in relation to an action or proceeding pending or about to be brought before such juror; or

2. acting on behalf of a juror, accepts or agrees to accept any payment or benefit for himself or for such juror, in consideration for supplying any information in relation to an action or proceeding pending or about to be brought before such juror and prior to his discharge.

Tampering with a juror in the second degree is a class B misdemeanor.


690. TAMPERING WITH A JUROR IN THE FIRST DEGREE

A Native American is guilty of tampering with a juror in the first degree when, with intent to influence the outcome of an action or proceeding, he communicates with a juror in such action or proceeding, except as authorized by law.

Tampering with a juror in the first degree is a class A misdemeanor.


691. MISCONDUCT BY A JUROR IN THE SECOND DEGREE

A Native American is guilty of misconduct by a juror in the second degree when, in relation to an action or proceeding pending or about to be brought before him and prior to discharge, he accepts or agrees to accept any payment or benefit for himself or for a third person in consideration for supplying any information concerning such action or proceeding.

Misconduct by a juror in the second degree is a violation.


692. MISCONDUCT BY A JUROR IN THE FIRST DEGREE

A juror is guilty of misconduct by a juror in the first degree when, in relation to an action or proceeding pending or about to be brought before him, he agrees to give a vote, opinion, judgment, decision or report for or against any party to such action or proceeding.

Misconduct by a juror in the first degree is a class A misdemeanor.


693. TAMPERING WITH PHYSICAL EVIDENCE; DEFINITIONS OF TERMS

The following definitions are applicable to Section 694:

1. "Physical evidence" means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.

2. "Official proceeding" means any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received.


694. TAMPERING WITH PHYSICAL EVIDENCE

A Native American is guilty of tampering with physical evidence when:

1. With intent that it be used or introduced in an official proceeding or a prospective official proceeding, he (a) knowingly makes, devises or prepares false physical evidence, or (b) produces or offers such evidence at such a proceeding knowing it to be false; or

2. Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.

Tampering with physical evidence is a class E felony.


695. COMPOUNDING A CRIME

1. A Native American is guilty of compounding a crime when:

A. He solicits, accepts or agrees to accept any benefit upon an agreement or understanding that he will refrain from initiating a prosecution for a crime; or

B. He confers, or offers or agrees to confer, any benefit upon another person upon an agreement or understanding that such other person will refrain from initiating a prosecution for a crime.

2. In any prosecution under this section, it is an affirmative defense that the benefit did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime.

Compounding a crime is a class A misdemeanor.


696. CRIMINAL CONTEMPT IN THE SECOND DEGREE

A Native American is guilty of criminal contempt in the second degree when he engages in any of the following conduct:

1. Disorderly, contemptuous, or insolent behavior, committed during the sitting of the court, in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority; or

2. Breach of the peace, noise, or other disturbance, directly tending to interrupt the court"s proceedings; or

3. Intentional disobedience or resistance to the lawful process or other mandate of the court; or

4. Contumacious and unlawful refusal to be sworn as a witness in a court proceeding or, after being sworn, to answer any legal and proper interrogatory; or

5. Knowingly publishing a false or grossly inaccurate report of a court's proceeding; or

6. Intentional failure to obey any mandate, process or notice, issued pursuant to rules adopted pursuant to any such statute or to any special statute establishing commissioners of jurors and prescribing their duties or who refuses to be sworn as provided therein; or

7. On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial.

Criminal contempt in the second degree is a class A misdemeanor.


697. CRIMINAL CONTEMPT IN THE FIRST DEGREE

A Native American is guilty of criminal contempt in the first degree when he contumaciously and unlawfully refuses to be sworn as a witness before a grand jury, or, when after having been sworn as a witness before a grand jury, he refuses to answer any legal and proper interrogatory. Criminal contempt in the first degree is a class E felony.


698. CRIMINAL CONTEMPT; PROSECUTION AND PUNISHMENT

Adjudication for criminal contempt under subdivision A of section seven hundred fifty of the judiciary law shall not bar a prosecution for the crime of criminal contempt under Section 696 based upon the same conduct but, upon conviction thereunder, the court, in sentencing the defendant shall take the previous punishment into consideration.


699. BAIL JUMPING IN THE THIRD DEGREE

A Native American is guilty of bail jumping in the third degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a criminal action or proceeding, and when he does not appear personally on the required date or voluntarily within thirty days thereafter.

Bail jumping in the third degree is a class A misdemeanor.


700. BAIL JUMPING IN THE SECOND DEGREE

A Native American is guilty of bail jumping in the second degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a charge against him of committing a felony, and when he does not appear personally on the required date or voluntarily within thirty days thereafter.

Bail jumping in the second degree is a class E felony.


701. BAIL JUMPING IN THE FIRST DEGREE

A Native American is guilty of bail jumping in the first degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with an indictment pending against him which charges him with the commission of a class A or class B felony, and when he does not appear personally on the required date or voluntarily within thirty days thereafter.

Bail jumping in the first degree is a class D felony.


702. FAILING TO RESPOND TO A N APPEARANCE TICKET

1. A Native American is guilty of failing to respond to an appearance ticket when, having been personally served with an appearance ticket, as defined in subdivision two, based upon his alleged commission of a crime, he does not appear personally in the court in which such appearance ticket is returnable on the return date thereof or voluntarily within thirty days thereafter.

2. As used in this section, an appearance ticket means a written notice, whether referred to as a summons or by any other name, issued by a police officer, peace officer or other non-judicial public servant authorized by law to issue the same, directing a designated person to appear in a designated court at a designated future time in connection with a criminal action to be instituted in such court with respect to his alleged commission of a designated offense.

3. This section does not apply to any case in which an alternative to response to an appearance ticket is authorized by law and the actor complies with such alternative procedure.

Failing to respond to an appearance ticket is a violation.


703. BAIL JUMPING AND FAILING TO RESPOND TO AN APPEARANCE TICKET; DEFENSE

In any prosecution for bail jumping or failing to respond to an appearance ticket, it is an affirmative defense that:

1. The defendant's failure to appear on the required date or within thirty days thereafter was unavoidable and due to circumstances beyond his control; and

2. During the period extending from the expiration of the thirty day period to the commencement of the action, the defendant either:

A. appeared voluntarily as soon as he was able to do so, or

B. although he did not so appear, such failure of appearance was unavoidable and due to circumstances beyond his control.


704. UNLAWFUL DISCLOSURE OF A CRIMINAL COMPLAINT

A public servant is guilty of unlawful disclosure of a criminal complaint when, except in the proper discharge of his official duties, he intentionally discloses the fact that a criminal complaint has been filed before the accused person is in custody.

Unlawful disclosure of a criminal complaint is a class B misdemeanor.


705. UNLAWFUL DISPOSITION OF ASSETS SUBJECT TO FORFEITURE

Any defendant in a forfeiture action pursuant to article thirteen-A of the civil practice law and rules who knowingly and intentionally conceals, destroys, dissipates, alters, removes from the jurisdiction, or otherwise disposes of, property specified in a provisional remedy ordered by the court or in a judgment of forfeiture in knowing contempt of said order shall be guilty of a class A misdemeanor.


I. OFFENSES AGAINST PUBLIC HEALTH, MORALS


706. CONTROLLED SUBSTANCES; DEFINITIONS

1. "Sell" means to sell, exchange, give or dispose of to another, or to offer or agree to do the same.

2. "Unlawfully" means in violation of article thirty-three of the New York public health law.

3. "Ounce" means an avoirdupois ounce as applied to solids or semi-solids, and a fluid ounce as applied to liquids.

4. "Pound" means an avoirdupois pound.

5. "Controlled substance'' means any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the New York public health law other than marihuana, but including concentrated cannabis as defined in paragraph (a) of subdivision five of section thirty-three hundred two of such law.

6. "Marihuana" means "marihuana" or ''concentrated cannabis" as those terms are defined in section thirty-three hundred two of the New York public health law.

7. "Narcotic drug" means any controlled substance listed in schedule I(b), I(c), II(b) or II(c) other than methadone.

8. "Narcotic preparation" means any controlled substance listed in schedule III(d) or III(e).

9. "Hallucinogen" means any controlled substance listed in schedule I(d)(5), (18), (19), (20), (21) and (22).

10. "Hallucinogenic substance" means any controlled substance listed in schedule I(d) other than concentrated cannabis, lysergic acid diethylamide, or an hallucinogen .

11. "Stimulant" means any controlled substance listed in schedule I(f), II(d).

12. "Dangerous depressant" means any controlled substance listed in schedule I(e)(2), (3), II(e), III(3) or IV(c)(2) , (31), (32), (40).

13. "Depressant" means any controlled substance listed in schedule IV(c) except (c)(2), (31), (32), (40).

14. "School grounds" means in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or within one thousand feet of the real property boundary line comprising any such school.

15. "Prescription for a controlled substance" means a direction or authorization, by means of an official New York state prescription form, a written prescription form or an oral prescription, which will permit a person to lawfully obtain a controlled substance from any person authorized to dispense con trolled substances.


707. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SEVENTH DEGREE

A Native American is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance. Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.


708. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE FIFTH DEGREE

A Native American is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses:

1. a controlled substance with intent to sell it; or

2. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic preparation; or

3. fifty milligrams or more of phencyclidine; or

4. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-quarter ounce or more containing concentrated cannabis as defined in paragraph (a) of subdivision five of section thirty-three hundred two of the New York public health law.

5. five hundred milligrams or more of cocaine.

Criminal possession of a controlled substance in the fifth degree is a class D felony.


709. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE

A Native American is guilty of criminal possession of a controlled substance in the fourth degree when he knowingly and unlawfully possesses:

1. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-eighth ounce or more containing a narcotic drug; or

2. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing methamphetamine, its salts, isomers or salts of isomers; or

3. one or more preparations, compounds, mixtures or substances of an aggregate weight of two ounces or more containing a narcotic preparation; or

4. one gram or more of a stimulant; or

5. one milligram or more of lysergic acid diethylamide; or

6. twenty-five milligrams or more of a hallucinogen; or

7. one gram or more of a hallucinogenic substance; or

8. ten ounces or more of a dangerous depressant; or

9. two pounds or more of a depressant; or

10. one or more preparations, compounds, mixtures or substances of an aggregate weight of one ounce or more containing concentrated cannabis as defined in paragraph (a) of subdivision five of section thirty-three hundred two of the public health law; or

11. two hundred fifty milligrams or more of phencyclidine; or

12. three hundred and sixty milligrams or more of methadone; or

13. fifty milligrams or more of phencyclidine with intent to sell it and has previously been convicted of an offense defined in this article or the attempt or conspiracy to commit any such offense.

Criminal possession of a controlled substance in the fourth degree is a class C felony.


710. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE

A Native American is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses:

1. a narcotic drug with intent to sell it; or

2. a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide, with intent to sell it and has previously been convicted of an offense defined in article two hundred twenty or the attempt or conspiracy to commit any such offense; or

3. one gram or more of a stimulant with intent to sell it; or

4. one milligram or more of lysergic acid diethylamide with intent to sell it; or

5. twenty-five milligrams or more of a hallucinogen with intent to sell it; or

6. one gram or more of a hallucinogenic substance with intent to sell it; or

7. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-eighth ounce or more containing methamphetamine, its salts, isomers or salts of isomers with intent to sell it; or

8. five grams or more of a stimulant; or

9. five milligrams or more of lysergic acid diethylamide; or

10. One hundred twenty-five milligrams of a hallucinogen; or

11. five grams or more of a hallucinogenic substance; or

12. One or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic drug.

13. One thousand two hundred fifty milligrams or more of phencyclidine.

Criminal possession of a controlled substance in the third degree is a class B felony.


711. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE

A Native American is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses:

1. one or more preparations, compounds, mixtures or substances of an aggregate weight of two ounces or more containing a narcotic drug; or

2. one or more preparations, compounds, mixtures or substances of an aggregate weight of two ounces or more containing methamphetamine, its salts, isomers or salts of isomers; or

3. ten grams or more of a stimulant; or

4. twenty-five milligrams or more of lysergic acid diethylamide; or

5. six hundred twenty-five milligrams of a hallucinogen; or

6. twenty-five grams or more of a hallucinogenic substance; or

7. two thousand eight hundred eighty milligrams or more of methadone.

Criminal possession of a controlled substance in the second degree is a class A-II felony.


712. CRIMINAL POSSESSION OF CONTROLLED SUBSTANCE IN THE FIRST DEGREE

A Native American is guilty of criminal possession of a controlled substance in the first degree when he knowingly and unlawfully possesses:

1. one or more preparations, compounds, mixtures or substances of an aggregate weight of four ounces or more containing a narcotic drug; or

2. five thousand seven hundred and sixty milligrams or more of methadone.

Criminal possession of a controlled substance in the first degree is a class A-I felony.


713. CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE; PRESUMPTION

1. The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.

2. The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person.


714. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FIFTH DEGREE

A Native American is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance.

Criminal sale of a controlled substance in the fifth degree is a class D felony.


715. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE

A Native American is guilty of criminal sale of a controlled substance in the fourth degree when he knowingly and unlawfully sells:

1. a narcotic preparation; or

2. ten ounces or more of a dangerous depressant or two pounds or more of a depressant; or

3. concentrated cannabis as defined in paragraph (a) of subdivision five of section thirty-three hundred two of the New York public health law; or

4. fifty milligrams or more of phencyclidine; or

5. methadone; or

4. any amount of phencyclidine and has previously been convicted of an offense defined in this article or the attempt or conspiracy to commit any such offense; or

7. a controlled substance in violation of section 714 of this Code to a person less than nineteen years of age, when such sale takes place upon school grounds.

Criminal sale of a controlled substance in the fourth degree is a class C felony.


716. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE

A Native American is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells:

1. a narcotic drug; or

2. a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and has previously been convicted of an offense defined in article two hundred twenty or the attempt or conspiracy to commit any such offense; or

3. one gram or more of a stimulant; or

4. one milligram or more of lysergic acid diethylamide; or

5. twenty-five milligrams or more of a hallucinogen; or

6. one gram or more of a hallucinogenic substance; or

7. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-eighth ounce or more containing methamphetamine, its salts, isomers or salts of isomers; or

8. two hundred fifty milligrams or more of phencyclidine; or

9. a narcotic preparation to a person less than twenty-one years old.

Criminal sale of a controlled substance in the third degree is a class B felony.


717. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE

A Native American is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells:

1. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic drug; or

2. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing methamphetamine, its salts, isomers or salts of isomers; or

3. five grams or more of a stimulant; or

4. five milligrams or more of lysergic acid diethylamide; or

5. one hundred twenty-five milligrams or more of a hallucinogen; or

6. five grams or more of a hallucinogenic substance; or

7. three hundred and sixty milligrams or more of methadone.

Criminal sale of a controlled substance in the second degree is a class A-II felony.


718. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FIRST DEGREE

A Native American is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells:

1. one or more preparations, compounds, mixtures or substances of an aggregate weight of two or more ounces containing a narcotic drug; or

2. two thousand eight hundred and eighty milligrams or more of methadone.

Criminal sale of a controlled substance in the first degree is a class A-I felony.


719. CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN OR NEAR SCHOOL GROUNDS

A Native American is guilty of criminal sale of a controlled substance in or near school grounds when he knowingly and unlawfully sells:

1. a controlled substance in violation of any one of subdivisions one through six of section 715 of this code to a person less than nineteen years of age, when such sale takes place upon school grounds; or

2. a controlled substance in violation of any one of subdivisions one through eight of section 716 of this code to a person less than nineteen years of age, when such sale takes place upon school grounds.

Criminal sale of a controlled substance in or near school grounds is a class B felony.


720. CRIMINALLY POSSESSING A HYPODERMIC INSTRUMENT

A Native American is guilty of criminally possessing a hypodermic instrument when he knowingly and unlawfully possesses or sells a hypodermic syringe or hypodermic needle.

Criminally possessing a hypodermic instrument is a class A misdemeanor.


721. CRIMINAL INJECTION OF A NARCOTIC DRUG

A Native American is guilty of criminal injection of a narcotic drug when he knowingly and unlawfully possesses a narcotic drug and he intentionally injects by means of a hypodermic syringe or hypodermic needle all or any portion of that drug into the body of another person with the latter's consent.

Criminal injection of a narcotic drug is a class E felony.


722. CRIMINALLY USING DRUG PARAPHERNALIA IN THE SECOND DEGREE

A Native American is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells:

1. Diluents, or adulterants, including but not limited to, any of the following: quinine hydrochloride, mannitol, mannite, lactose or dextrose, adapted for the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purposes of unlawfully mixing, compounding, or otherwise preparing any narcotic drug or stimulant; or

2. Gelatine capsules, glassine envelopes, vials, capsules or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant; or

3. Scales and balances used or designed for the purpose of weighing or measuring controlled substances, under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant.

Criminally using drug paraphernalia in the second degree is a class A misdemeanor.


723. CRIMINALLY USING DRUG PARAPHERNALIA IN THE FIRST DEGREE

A Native American is guilty of criminally using drug paraphernalia in the first degree when he commits the crime of criminally using drug paraphernalia in the second degree and he has previously been convicted of criminally using drug paraphernalia in the second degree.

Criminally using drug paraphernalia in the first degree is a class D felony.


724. CRIMINAL POSSESSION OF PRECURSORS OF CONTROLLED SUBSTANCES

A Native American is guilty of criminal possession of precursors of controlled substances when, with intent to manufacture a controlled substance unlawfully, he possesses at the same time:

a. carbamide (urea) and propanedioc and malonic acid or its derivatives; or

b. ergot or an ergot derivative and diethylamine or dimethylformamide or diethylamide; or

c. phenylacetone (1-phenyl-2 propanone) and hydroxylamine or ammonia or formamide or benzaldehyde or nitroethane or methylamine.

d. pentazocine and methyliodide; or

e. phenylacetonitrile and dichlorodiethyl methylamine or dichlorodiethyl benzylamine; or

f. diephenylacetonitrile and dimethylaminoisopropyl chloride; or

g. piperidine and cyclohexanone and bromobenzene and lithium or magnesium; or

h. 2, 5-dimethoxy benzaldehyde and nitroethane and a reducing agent.

Criminal possession of precursor of controlled substances is a class E felony.


725. CRIMINAL SALE OF A PRESCRIPTION FOR A CONTROLLED SUBSTANCE

A Native American is guilty of criminal sale of a prescription for a controlled substance when, being a practitioner, as that term is defined in section thirty-three hundred two of the public health law, he knowingly and unlawfully sells a prescription for a controlled substance. For the purposes of this section, a person sells a prescription for a controlled substance unlawfully when he does so other than in good faith in the course of his professional practice.

Criminal sale of a prescription is a class C felony.


726. MARIHUANA; DEFINITIONS

Unless the context in which they are used clearly otherwise requires, the terms occurring in this article shall have the same meaning ascribed to them in section 706 of this Code.


727. UNLAWFUL POSSESSION OF MARIHUANA

A Native American is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.

Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this Code or section 706, committed within the three years immediately preceding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.


728. CRIMINAL POSSESSION OF MARIHUANA IN THE FIFTH DEGREE

A Native American is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:

1. marihuana in a public place, as defined in section 772 of this Code, and such marihuana is burning or open to public view; or

2. one or more preparations, compounds, mixtures or substances of an aggregate weight of more than twenty-five grams containing marihuana.

Criminal possession of marihuana in the fifth degree is a class B misdemeanor.


729. CRIMINAL POSSESSION OF MARIHUANA IN THE FOURTH DEGREE

A Native American is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana.

Criminal possession of marihuana in the fourth degree is a class A misdemeanor.


730. CRIMINAL POSSESSION OF MARIHUANA IN THE THIRD DEGREE

A Native American is guilty of criminal possession of marihuana in the third degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than eight ounces containing marihuana.

Criminal possession of marihuana in the third degree is a class E felony.


731. CRIMINAL POSSESSION OF MARIHUANA IN THE SECOND DEGREE

A Native American is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than sixteen ounces containing marihuana.

Criminal possession of marihuana in the second degree is a class D felony.


732. CRIMINAL POSSESSION OF MARIHUANA IN THE FIRST DEGREE

A Native American is guilty of criminal possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than ten pounds containing marihuana.

Criminal possession of marihuana in the first degree is a class C felony.


733. CRIMINAL SALE OF MARIHUANA IN THE FIFTH DEGREE

A Native American is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances of an aggregate weight of two grams or less containing marihuana or one cigarette containing marihuana .

Criminal sale of marihuana in the fifth degree is a class B misdemeanor.


734. CRIMINAL SALE OF MARIHUANA IN THE FOURTH DEGREE

A Native American is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided in section 733 of this Code.

Criminal sale of marihuana in the fourth degree is a class A misdemeanor.


735. CRIMINAL SALE OF MARIHUANA IN THE THIRD DEGREE

A Native American is guilty of criminal sale of marihuana in the third degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances of an aggregate weight of more than twenty-five grams containing marihuana.

Criminal sale of marihuana in the third degree is a class E felony.


736. CRIMINAL SALE OF MARIHUANA IN THE SECOND DEGREE

A Native American is guilty of criminal sale of marihuana in the second degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances of an aggregate weight of more than four ounces containing marihuana or sells one or more preparations, compounds, mixtures or substances containing marihuana to a person less than eighteen years of age.

Criminal sale of marihuana in the second degree is a class D felony.


737. CRIMINAL SALE OF MARIHUANA IN THE FIRST DEGREE

A Native American is guilty of criminal sale of marihuana in the first degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances of an aggregate weight of more than sixteen ounces containing marihuana.

Criminal sale of marihuana in the first degree is a class C felony.


738. GAMBLING OFFENSES; DEFINITIONS OF TERMS

The following definitions are applicable to this article:

1. "Contest of chance" means any contest, game, gaming scheme or gaming devise in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.

2. "Gambling." A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.

3. "Player" means a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity. A person who gambles at a social game of chance on equal terms with the other participants therein does not otherwise render material assistance to the establishment, conduct or operation thereof by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises therefor and supplying cards or other equipment used therein. A person who engages in "bookmaking", as defined in this section is not a "player."

4. "Advance gambling activity." A person "advances gambling activity" when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity. Such conduct includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation. One advances gambling activity when, having substantial proprietary or other authoritative control over premises being used with his knowledge for purposes of gambling activity, he permits such to occur or continue or makes no effort to prevent its occurrence or continuation.

5. "Profit from gambling activity." A person "profits from gambling activity" when, other than as a player, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity.

6. "Something of value" means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge.

7. "Gambling devise" means any devise, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity, whether such activity consists of gambling between persons or gambling by a person involving the playing of a machine. Notwithstanding the foregoing, lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices.

a. A "coin operated gambling device" means a gambling device which operates as a result of the insertion of something of value. A device designed, constructed or readily adaptable or convertible for such use is a coin operated gambling device notwithstanding the fact that it may require adjustment, manipulation or repair in order to operate as such.

8. "Slot machine" means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of some physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value. A device so constructed, or readily adaptable or convertible to such use, is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability. Nor is it any less a slot machine because, apart from its use or adaptability as such, it may also sell or deliver something of value on a basis other than chance. A machine which sells items of merchandise which are of equivalent value, is not a slot machine merely because such items differ from each other in composition, size, shape or color. A machine which awards free or extended play is not a slot machine merely because such free or extended play may constitute something of value provided that the outcome depends in a material degree upon the skill of the player and not in a material degree upon an element of chance.

9. "Bookmaking" means advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events.

10. "Lottery" means a n unlawful gambling scheme in which (a) the players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which chances are to be designated the winning ones; and (b) the winning chances are to be determined by a drawing or by some other method based upon the element of chance; and (c) the holders of the winning chances are to receive something of value.

11. "Policy" or "the numbers game" means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme.

12. "Unlawful" means not specifically authorized by law.

Sections 738 through and including 747 shall not apply to any activities of the Turning Stone Casino or operations or any other Nation Enterprise relating to bingo or gambling, or any activities authorized by the Compact between the Nation and the State of New York.


739. PROMOTING GAMBLING IN THE SECOND DEGREE

A Native American is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity.

Promoting gambling in the second degree is a class A misdemeanor.


740. PROMOTING GAMBLING IN THE FIRST DEGREE

A Native American is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:

1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars; or

2. Receiving, in connection with a lottery or policy scheme or enterprise, (a) money or written records from a person other than a player whose chances or plays are represented by such money or records, or (b) more than five hundred dollars in any one day of money played in such scheme or enterprise.

Promoting gambling in the first degree is a class E felony.


741. POSSESSION OF GAMBLING RECORDS IN THE SECOND DEGREE

A Native American is guilty of possession of gambling records in the second degree when, with knowledge of the contents or nature thereof, he possesses any writing, paper, instrument or article:

1. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or

2. Of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise; except that in any prosecution under this subdivision, it is a defense that the writing, paper, instrument or article possessed by the defendant constituted, reflected or represented plays, bets or chances of the defendant himself in a number not exceeding ten.

3. Of any paper or paper product in sheet form chemically converted to nitrocellulose having explosive characteristics.

4. Of any water soluble paper or paper derivative in sheet form.

Possession of gambling records in the second degree is a class A misdemeanor.


742. POSSESSION OF GAMBLING RECORDS IN THE FIRST DEGREE

A Native American is guilty of possession of gambling records in the first degree when, with knowledge of the contents thereof, he possesses any writing, paper, instrument or article:

1. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, reflecting or representing more than five bets totaling more than five thousand dollars; or

2. Of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise, and constituting, reflecting or representing more than five hundred plays or chances therein.

Possession of gambling records in the first degree is a class E felony.


743. POSSESSION OF GAMBLING RECORDS; DEFENSE

In any prosecution for possession of gambling records, it is a defense that the writing, paper, instrument or article possessed by the defendant was neither used nor intended to be used in the operation or promotion of a bookmaking scheme or enterprise, or in the operation, promotion or playing of a lottery or policy scheme or enterprise.


744. POSSESSION OF A GAMBLING DEVICE

A Native American is guilty of possession of a gambling device when, with knowledge of the character thereof, he manufacturers, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of:

1. A slot machine; or

2. Any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity.

3. A coin operated gambling device with intent to use such device in the advancement of unlawful gambling activity.

Possession of a gambling device is a class A misdemeanor.


745. POSSESSION OF A GAMBLING DEVICE; DEFENSES

1. In any prosecution for possession of a gambling device specified in subdivision one of section 744 of this code, it is an affirmative defense that:

A. the slot machine possessed by the defendant was neither used nor intended to be used in the operation or promotion of unlawful gambling activity or enterprise and that such a slot machine is an antique; for purposes of this section proof that a slot machine was manufactured prior to nineteen hundred forty-one shall be conclusive proof that such a machine is an antique; or

B. the slot machine possessed by the defendant was manufactured or assembled by the defendant for the sole purpose of transporting such slot machine in a sealed container to a jurisdiction outside this state for purposes which are lawful in such outside jurisdiction.

2. Where a defendant raises an affirmative defense provided by subdivision one hereof, any slot machine seized from the defendant shall not be destroyed, or otherwise altered until a final court determination is rendered. In a final court determination rendered in favor of said defendant, such slot machine shall be returned, forthwith, to said defendant, notwithstanding any provisions of law to the contrary.


746. GAMBLING OFFENSES; PRESUMPTIONS

1. Proof of possession of any gambling device or of any gambling record specified in sections 741 and 742, is presumptive evidence of possession thereof with knowledge of its character or contents.

2. In any prosecution under this article in which it is necessary to prove the occurrence of a sporting event, a published report of its occurrence in any daily newspaper, magazine or other periodically printed publication of general circulation shall be admissible in evidence and shall constitute presumptive proof of the occurrence of such event.

3. Possession of three or more coin operated gambling devices or possession of a coin operated gambling device in a public place shall be presumptive evidence of intent to use in the advancement of unlawful gambling activity.


747. LOTTERY OFFENSES; NO DEFENSE

Any offense defined in this Code which consists of the commission of acts relating to a lottery is no less criminal because the lottery itself is drawn or conducted outside Nation jurisdiction and is not violative of the laws of the jurisdiction in which it was so drawn or conducted.


748. PROSTITUTION

A Native American is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

Prostitution is a class B misdemeanor.


749. PATRONIZING A PROSTITUTE; DEFINITIONS

1. A Native American patronizes a prostitute when:

A. Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or

B. He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person will engage in sexual conduct with him; or

C. He solicits or requests another person to engage in sexual conduct with him in return for a fee.

2. As used in this article, "person who is patronized" means the person with whom the defendant engaged in sexual conduct or was to have engaged in sexual conduct pursuant to the understanding, or the person who was solicited or requested by the defendant to engage in sexual conduct.


750. PATRONIZING A PROSTITUTE IN THE FOURTH DEGREE

A Native American is guilty of patronizing a prostitute in the fourth degree when he patronizes a prostitute.

Patronizing a prostitute in the fourth degree is a class B misdemeanor.


751. PATRONIZING A PROSTITUTE IN THE THIRD DEGREE

A Native American is guilty of patronizing a prostitute in the third degree when, being over twenty-one years of age, he patronizes a prostitute and the person patronized is less than seventeen years of age.

Patronizing a prostitute in the third degree is a class A misdemeanor.


752. PATRONIZING A PROSTITUTE IN THE SECOND DEGREE

A Native American is guilty of patronizing a prostitute in the second degree when, being over eighteen years of age, he patronizes a prostitute and the person patronized is less than fourteen years of age.

Patronizing a prostitute in the second degree is a class E felony.


753. PATRONIZING A PROSTITUTE IN THE FIRST DEGREE

A Native American is guilty of patronizing a prostitute in the first degree when he patronizes a prostitute and the person patronized is less than eleven years of age.

Patronizing a prostitute in the first degree is a class D felony.


754. PATRONIZING A PROSTITUTE; DEFENSE

In any prosecution for patronizing a prostitute in the first, second or third degrees, it is a defense that the defendant did not have reasonable grounds to believe that the person was less than the age specified.


755. PROSTITUTION AND PATRONIZING A PROSTITUTE; NO DEFENSE

In any prosecution for prostitution or patronizing a prostitute, the sex of the two parties or prospective parties to the sexual conduct engaged in, contemplated or solicited is immaterial, and it is no defense that:

1. Such persons were of the same sex; or

2. The person who received, agreed to receive or solicited a fee was a male and the person who paid or agreed or offered to pay such fee was a female.


756. PROMOTING PROSTITUTION; DEFINITIONS OF TERMS

The following definitions are applicable to this article:

1. "Advance prostitution." A person "advances prostitution" when, acting other than as a prostitute or as a patron thereof, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution.

2. "Profit from prostitution." A person "profits from prostitution" when, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity.


757. PROMOTING PROSTITUTION IN THE FOURTH DEGREE

A Native American is guilty of promoting prostitution in the fourth degree when he knowingly advances or profits from prostitution.

Promoting prostitution in the fourth degree is a class A misdemeanor.


758. PROMOTING PROSTITUTION IN THE THIRD DEGREE

A Native American is guilty of promoting prostitution in the third degree when he knowingly:

1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; or

2. Advances or profits from prostitution of a person less than nineteen years old.

Promoting prostitution in the third degree is a class D felony.


759. PROMOTING PROSTITUTION IN THE SECOND DEGREE

A Native American is guilty of promoting prostitution in the second degree when he knowingly:

1. Advances prostitution by compelling a person by force or intimidation to engage in prostitution, or profits from such coercive conduct by another; or

2. Advances or profits from prostitution of a person less than sixteen years old.

Promoting prostitution in the second degree is a class C felony.


760. PROMOTING PROSTITUTION IN THE FIRST DEGREE

A Native American is guilty of promoting prostitution in the first degree when he knowingly advances or profits from prostitution of a person less than eleven years old.

Promoting prostitution in the first degree is a class B felony.


761. PROMOTING PROSTITUTION; ACCOMPLICE

In a prosecution for promoting prostitution, a person less than seventeen years of age from whose prostitution activity another person is alleged to have advanced or attempted to advance or profited or attempted to profit shall not be deemed to be an accomplice.


762. PERMITTING PROSTITUTION

A Native American is guilty of permitting prostitution when, having possession or control of premises which he knows are being used for prostitution purposes, he fails to make reasonable effort to halt or abate such use.

Permitting prostitution is a class B misdemeanor.


763. OBSCENITY; DEFINITIONS OF TERMS

The following definitions are applicable to sections 764, 767, and 768:

1. "Obscene." Any material or performance is "obscene" if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

2. "Material" means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.

3. "Performance" means any play, motion picture, dance or other exhibition performed before an audience.

4. "Promote" means to 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.

5. "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate or to offer or agree to do the same for purposes of resale.

6. "Simulated" means the explicit depiction or description of any of the types of conduct set forth in clause (b) of subdivision one of this section, which creates the appearance of such conduct.

7. "Sodomy" means any of the types of sexual conduct defined in subdivision two of section 317 provided, however, that in any prosecution under this article the marital status of the persons engaged in such conduct shall be irrelevant and shall not be considered.


764. OBSCENITY IN THE THIRD DEGREE

A Native American is guilty of obscenity in the third degree when, knowing its content and character, he:

1. Promotes, or possesses with intent to promote, any obscene material; or

2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

Obscenity in the third degree is a class A misdemeanor.


765. OBSCENITY IN THE SECOND DEGREE

A Native American is guilty of obscenity in the second degree when he commits the crime of obscenity in the third degree as defined in subdivisions one and two of section 764 of this code and has been previously convicted of obscenity in the third degree.

Obscenity in the second degree is a class E felony.


766. OBSCENITY IN THE FIRST DEGREE

A Native American is guilty of obscenity in the first degree when, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote, any obscene material.

Obscenity in the first degree is a class D felony.


767. OBSCENITY; PRESUMPTIONS

1. A Native American who promotes or wholesale promotes obscene material, or possesses the same with intent to promote or wholesale promote it, in the course of his business is presumed to do so with knowledge of its content and character.

2. A Native American who possesses six or more identical or similar obscene articles is presumed to possess them with intent to promote the same.

The provisions of this section shall not apply to public libraries or association libraries as defined in subdivision two of section two hundred fifty-three of the education law, or trustees or employees of such public libraries or association libraries when acting in the course and scope of their duties or employment.


768. OBSCENITY; DEFENSE

1. In any prosecution for obscenity, it is an affirmative defense that the persons to whom allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.

2. In any prosecution for obscenity, it is an affirmative defense that the person so charged was 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 theater; 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 obscene material for sale, rental or exhibition or in the promotion, presentation or direction of any obscene performance, or is in any way responsible For acquiring obscene material for sale, rental or exhibition.


769. DISSEMINATING INDECENT MATERIAL TO MINORS; DEFINITIONS OF TERMS

The following definitions are applicable to sections 770 and 771:

1. "Minor" means any person less than seventeen years old.

2. "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 discernible turgid state.

3. "Sexual conduct" means acts 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.

4. "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

5. "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.

6. "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

A. Considered as a whole, appeals to the prurient interest in sex of minors; and

B. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

C. Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.


770. DISSEMINATING INDECENT MATERIAL TO MINORS

A Native American is guilty of disseminating indecent material to minors when:

1. With knowledge of its character and content, he sells or loans to a minor for monetary consideration:

A. Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors; or

B. Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) hereof, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to minors; or

2. Knowing the character and content of a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, he:

A. Exhibits such motion picture, show or other presentation to a minor for a monetary consideration; or

B. Sells to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such motion picture, show or other presentation; or

C. Admits a minor for a monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture show or other presentation.

Disseminating indecent material to minors is a class E felony.


771. DISSEMINATING INDECENT MATERIAL TO MINORS; PRESUMPTION AND DEFENSE

1. A Native American who engages in the conduct proscribed by section 629 is presumed to do so with knowledge of the character and content of the material sold or loaned, or the motion picture, show or presentation exhibited or to be exhibited.

2. In any prosecution for disseminating indecent material to minors, it is an affirmative defense that:

A. The defendant had reasonable cause to believe that the minor involved was seventeen years old or more; and

B. Such minor exhibited to the defendant a draft card, driver"s license, birth certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more.


J. OFFENSES AGAINST PUBLIC ORDER, PUBLIC SENSIBILITIES AND THE RIGHT TO PRIVACY


772. 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, and air, boat, railroad and bus terminals and stations and all appurtenances thereto.


773. RIOT IN THE SECOND DEGREE

A Native American 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.


774. RIOT IN THE FIRST DEGREE

A Native American is guilty of riot in the first degree when (a) simultaneously with ten 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, and (b) 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.


775. INCITING TO RIOT

A Native American 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.


776. UNLAWFUL ASSEMBLY

A Native American 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.


777. CRIMINAL ANARCHY

A Native American is guilty of criminal anarchy when (a) he advocates the overthrow of the existing form of government of the Oneida Indian Nation 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 or group which advocates such violent overthrow.

Criminal anarchy is a class E felony.


778. DISORDERLY CONDUCT

A Native American 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.


779. DISRUPTION, OR DISTURBANCE OF RELIGIOUS SERVICE

A Native American 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.


780. HARASSMENT IN THE FIRST DEGREE

A Native American 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.

Harassment in the first degree is a class B misdemeanor.


781. HARASSMENT IN THE SECOND DEGREE

A Native American 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 d o 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.

4. [Repealed]

5. [ Redesignated]

Harassment in the second degree is a violation.


782. AGGRAVATED HARASSMENT IN THE SECOND DEGREE

A Native American is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Communicates, or 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 the race, color, religion or national origin of such person; 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 780 of this Code within the preceding ten years.

Aggravated harassment in the second degree is a class A misdemeanor.


783. AGGRAVATED HARASSMENT IN THE FIRST DEGREE

A Native American is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of the race, color, religion or national origin of such person he:

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 782 of this Code 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 782 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.


784. LOITERING

A Native American is guilty of loitering when he:

1. Loiters, remains or wanders about within the territorial jurisdiction of the Oneida Indian Nation 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, other than at Turning Stone Casino or any other gambling enterprise run by the Oneida Indian Nation; or

3. Loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse 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, 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

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.


785. LOITERING IN THE FIRST DEGREE

A Native American 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 706 of this Code.

Loitering in the first degree is a class B misdemeanor.


786. 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 Native American 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 shall be guilty of a violation.

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 is guilty of a class A misdemeanor.


787. APPEARANCE WITHIN THE TERRITORIAL JURISDICTION OF THE ONEIDA INDIAN NATION UNDER THE INFLUENCE OF NARCOTICS

A Native American is guilty of appearance within the territorial jurisdiction of the Oneida Indian Nation under the influence of narcotics when he appears in a public place within the territorial jurisdiction of the Oneida Indian Nation under the influence of narcotics 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 is a violation.


788. CRIMINAL NUISANCE IN THE SECOND DEGREE

A Native American 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.


789. CRIMINAL NUISANCE IN THE FIRST DEGREE

A Native American 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, and thereby derives the benefit from such unlawful conduct.

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


790. FALSELY REPORTING AN INCIDENT IN THE THIRD DEGREE

A Native American 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.

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


791. FALSELY REPORTING AN INCIDENT IN THE SECOND DEGREE

A Native American 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 or an explosion 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 or an explosion which did not in fact occur or does not in fact exist; or

3. 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 second degree is a class A misdemeanor.


792. FALSELY REPORTING AN INCIDENT IN THE FIRST DEGREE

A Native American 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 791 of this Code, 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 790 of this Code or falsely reporting an incident in the second degree as defined in subdivisions one and two of section 791 of this Code 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 fire fighter with a fire department, fire company, or any unit thereof as defined in the volunteer fire fighters" 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 the location identified in such report.

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


K. OFFENSES AGAINST PUBLIC SENSIBILITIES


793. PUBLIC LEWDNESS

A Native American 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.


794. EXPOSURE OF A PERSON

A Native American 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 breast feeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.

Exposure of a person is a violation.


795. PROMOTING THE EXPOSURE OF A PERSON

A Native American 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 breast feeding 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.


796. OFFENSIVE EXHIBITION

A Native American 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 Native American 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 Native American 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.


797. PUBLIC DISPLAY OF OFFENSIVE SEXUAL MATERIAL; DEFINITIONS OF TERMS

The following definitions are applicable to section 798:

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 discernible 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. "Sadomasochistic 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.


798. PUBLIC DISPLAY OF OFFENSIVE SEXUAL MATERIAL

A Native American 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:

1. depicts nudity, or actual or simulated sexual conduct or sadomasochistic abuse; or

2. depicts or appears to depict nudity, or actual or simulated sexual conduct or sadomasochistic 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.


L. OFFENSES AGAINST THE RIGHT OF PRIVACY


799. 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.


800. EAVESDROPPING

A Native American 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.


801. POSSESSION OF EAVESDROPPING DEVICES

A Native American 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 800, 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.


802. 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.


803. DIVULGING AN EAVESDROPPING WARRANT

A Native American 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 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.


804. TAMPERING WITH PRIVATE COMMUNICATIONS

A Native American 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 806; 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 806.

Tampering with private communications is a class B misdemeanor.


805. UNLAWFULLY OBTAINING COMMUNICATIONS INFORMATION

A Native American 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.


806. 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 Native American 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.


M. OFFENSES AGAINST PUBLIC SAFETY


807. DEFINITIONS

As used in this Code, 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. 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.

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.

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 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 pistol or revolver.

10. "Licensing officer" means Oneida Indian Nation Police Department.

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 stiletto.

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 nunchaku and centrifugal force sticks.

a. "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 a n y 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.

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.

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.

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 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 rifle or shotgun.

17. "Serious offense" means any of the following offenses defined in the criminal law: 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; disorderly conduct of sodomy or rape which was designated as a misdemeanor; any violation relating to narcotic drugs, and any violation relating to depressant and stimulant drugs fraudulent accosting; loitering; endangering the welfare of a child; issuing abortional articles; permitting prostitution; promoting prostitution in the third degree;

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.


808. CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE

A Native American 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, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sand club, wrist-brace type slingshot or slingshot, 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; 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, 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.


809. CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE

A Native American is guilty of criminal possession of a weapon in the third degree when:

1. He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 807, and has been previously convicted of any crime; or

2. He possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

3. He knowingly has in his possession a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or

4. He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one, constitute a violation of this section if such possession takes place in such person"s home or place of business.

5.

(i) He possesses twenty or more firearms; or

(ii) he possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this code 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.

Criminal possession of a weapon in the third degree is a class D felony.


810. CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE

A Native American is guilty of criminal possession of a weapon in the second degree when he possesses a machine-gun or loaded firearm with intent to use the same unlawfully against another.

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


811. CRIMINAL POSSESSION OF A DANGEROUS WEAPON IN THE FIRST DEGREE

A Native American is guilty of criminal possession of a dangerous weapon in the first degree when he possesses any explosive substance with intent to use the same unlawfully against the person or property of another.

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


812. 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 the Nation Conservation Law and used in accordance with said law shall not be governed by this section.

A Native American who violates the provisions of this section shall be adjudged a juvenile delinquent.


813. CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE

A Native American is guilty of criminal use of a firearm in the second degree when he commits any class C violent felony offense.

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.


814. CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE

A Native American is guilty of criminal use of a firearm in the first degree when he commits any class B violent felony offense 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 first degree is a class B felony.


815. MANUFACTURE, TRANSPORT, DISPOSITION AND DEFACEMENT OF WEAPONS AND DANGEROUS INSTRUMENTS AND APPLIANCES

1. Any Native American who manufactures or causes to be manufactured any machine-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, Billy, blackjack, bludgeon, metal knuckles, Kung Fu star, chuka stick, sandbag, sandclub or slingshot is guilty of a class A misdemeanor.

2. Any Native American who transports or ships any machine-gun or firearm silencer, 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, switchblade knife, gravity knife, pilum ballistic knife, Billy, blackjack, bludgeon, metal knuckles, Kung Fu star, chuka stick, sandbag or slingshot is guilty of a class A misdemeanor.

3. Any Native American who disposes of any machine-gun or firearm silencer is guilty of a class D felony. Any person who knowingly buys, receives, disposes of, or conceals 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 is guilty of a class D felony.

4. Any Native American who disposes of any of the weapons, instruments or appliances specified in subdivision one of section 808, 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 Native American who disposes of any of the weapons, instruments, appliances or substances specified in section 812 to any other person under the age of sixteen years is guilty of a class A misdemeanor.

6. Any Native American who willfully defaces any machine-gun or firearm is guilty of a class D felony.


816. CRIMINAL SALE OF A FIREARM IN THE THIRD DEGREE

A Native American is guilty of criminal sale of a firearm in the third degree when he is not authorized pursuant to law to possess a firearm and he unlawfully either:

1. sells, exchanges, gives or disposes of a firearm to another person not authorized pursuant to law to possess a firearm; or

2. possesses a firearm with the intent to sell it.

Criminal sale of a firearm in the third degree is a class E felony.


817. CRIMINAL SALE OF A FIREARM IN THE SECOND DEGREE

A Native American is guilty of criminal sale of a firearm in the second degree when he unlawfully sells, exchanges, gives or disposes of to another ten or more firearms.

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


818. CRIMINAL SALE OF A FIREARM IN THE FIRST DEGREE

A Native American is guilty of a criminal sale of a firearm in the first degree when he unlawfully sells, exchanges, gives or disposes of to another twenty or more firearms.

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


819. CRIMINAL SALE OF A FIREARM WITH THE AID OF A MINOR

A Native American 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.


820. 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 807, 808, 809, 810, and 811 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, defaced firearm, defaced rifle or shotgun, firearm silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, pilum ballistic knife, dagger, dirk, stiletto, Billy, blackjack, metal knuckles, chuka stick, sandbag, sand club or slingshot 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 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 possession a valid license to have and carry concealed the same.

4. The possession by any person of the substance as specified in section 810 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.


821. CRIMINAL SALE OF A FIREARM TO A MINOR

A Native American 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.


822. EXEMPTIONS

1. Police officers.

2. 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.

3. 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.

4. Possession of a rifle, shotgun or longbow for use while hunting, trapping or fishing, by a person, carrying a valid Nation hunting license.

5. Possession of a switchblade or gravity knife for use while hunting, trapping or fishing by a person carrying a valid Nation hunting license.


N. OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS


823. OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

1. No Native American shall operate a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol. A violation of this section shall be punishable by a fine of two hundred fifty dollars, or by imprisonment in a jail for not more than fifteen days, or by both such fine and imprisonment. A person who operates a vehicle in violation of this section after having been convicted of a violation of any subdivision of this section within the preceding two years shall be punished by a fine of not less than three hundred fifty dollars nor more than five hundred dollars, or by imprisonment of not more than thirty days in a jail or by both such fine and imprisonment. A person who operates a vehicle in violation of this section after having been convicted two or more times of a violation of any subdivision of this section within the preceding five years shall be punished by a fine of not less than five hundred dollars nor more than fifteen hundred dollars, or by imprisonment of not more than ninety days in a jail or by both such fine and imprisonment.

2. No Native American shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva pursuant to section 825.

3. No Native American shall operate a motor vehicle while he is in an intoxicated condition.

4. No Native American shall operate a motor vehicle while his ability to operate such a motor vehicle is impaired by the use of a drug as defined in this code.

5. A violation of subdivision two, three or four of this section shall be a misdemeanor and shall be punishable by imprisonment in a jail for not more than six months, or by a fine of not less than three hundred fifty dollars nor more than five hundred dollars, or by both such fine and imprisonment. A person who operates a vehicle in violation of subdivision two, three or four of this section after having been convicted of a violation of subdivision two, three or four of this section, or of driving while intoxicated, or of driving while his or her ability is impaired by the use of drugs, within the preceding five years, shall be guilty of a felony and shall be punished by a fine of not less than five hundred dollars and imprisonment for not more than one year.

6. A prior conviction from another jurisdiction 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.


824. ARREST FOR VIOLATION OF SECTION 823

A poke officer may, without a warrant, arrest a person, in case of a violation of section 823, 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 he has reasonable cause to believe that the violation was committed by such person.


825. BREATH TESTS FOR OPERATORS OF CERTAIN MOTOR VEHICLES

Every Native American 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 require such operator to submit to a chemical test pursuant to section 826.


826. CHEMICAL TESTS

1. Any Native American who operates a motor vehicle within the territorial jurisdiction of the Oneida Indian Nation shall be deemed to have given his consent to a chemical test, of his breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of his blood provided that such test is administered at the direction of an Oneida Indian Nation police officer:

1. having reasonable grounds to believe such person to have been operating in violation of any subdivision of section 823 and within two hours after such person has been placed under arrest for any such violation, or

2. within two hours after a breath test, as provided in section 825 indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which he is a member.

2. 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 823 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 his refusal.

3. Upon the request of the person who was tested, the results of such test shall be made available to him.

4. The person tested shall be permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer.


827. COMPULSORY CHEMICAL TESTS

1. No Native American who operates a motor vehicle within the territorial jurisdiction of the Nation may refuse to submit to a chemical test of one or more of the following: of his breath, blood, urine or saliva, for the purpose of determining the alcoholic or drug content of his blood when a court order for such chemical test has been issued in accordance with the provisions of this section.

2. Upon refusal to submit to a chemical test or any portion thereof as described above the test shall not be given unless the police officer or the Nation Prosecutor requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content of his blood upon a finding of reasonable case to believe that:

(a) 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.

(b)

(1) either such person operated the vehicle in violation of 823; or

(2) a breath test administered by a police officer indicates that alcohol has been consumed by such person; and

(c) such person has been placed under lawful arrest; and

(d) such person has refused to submit to a chemical test or any portion thereof, requested or is unable to give his consent to such a test.

For the purposes of this section "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 823. 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 code 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 indicate that the operator had been operating a motor vehicle while impaired by the consumption of alcohol or drugs or intoxicated at the time of the incident.

3.

(a) An application for a court order to compel submission to a chemical test or any portion thereof may be made to the Nation Court. Such application may be communicated by telephone, radio or other means of electronic communication, or in person.

(b) The applicant must identify himself 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. 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 this code and, after being placed under lawful arrest such person refused to submit to a chemical 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.

(c) Upon being advised that a n oral application for a court order to compel a person to submit to a chemical test is being made, the judge 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 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.

(d) If the court is satisfied that the requirements for the issuance of a court order pursuant to the provisions of subdivision two of this section have been met, it may grant the application and issue an order requiring the accused to submit to a chemical test to the alcoholic or drug content of his blood and ordering the withdrawal of a blood sample in accordance with this code. When a judge 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. In all cases the order shall include the name of the judge, the name of the applicant, and the date and time it was issued. It must be signed by the judge if issued in person, or by the applicant if issued orally.

(e) 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.

4. An order issued pursuant to the provisions of this section shall require that a chemical test to determine the alcoholic or drug content of the operator"s blood must be administered. The provisions of this code shall be applicable to any chemical test administered pursuant to this section.


828 CHEMICAL TEST EVIDENCE

1. Upon the trial of any action or proceeding arising out of actions alleged to have been committed by a Native American arrested for a violation of any subdivision of section 823, 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 this code.

2. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person arrested for a violation of section 823.

(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 not more 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.

(c) Evidence that there was more than .07 of one per centum but less than .10 of one per centum by weight of alcohol in his 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. A defendant who has been compelled to submit to a chemical test may move for the suppression of such evidence on the grounds that the order was obtained and the test administered in violation of the provisions of this code or any other applicable law.

 

5/1/1997

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