S T A T E O F N E W Y O R K
________________________________________________________________________
2240--A
2013-2014 Regular Sessions
I N S E N A T E
January 15, 2013
___________
Introduced by Sens. YOUNG, BONACIC, LARKIN, MAZIARZ, O'MARA, RANZENHOFER
-- read twice and ordered printed, and when printed to be committed to
the Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the penal law, in relation to aggravated sexual
offenses; and to amend the criminal procedure law, in relation to
youthful offender status
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Paragraphs (a), (b) and (c) of subdivision 1 of section
2 70.02 of the penal law, paragraph (a) as amended by chapter 320 of the
3 laws of 2006, and paragraphs (b) and (c) as amended by chapter 1 of the
4 laws of 2013, are amended to read as follows:
5 (a) Class B violent felony offenses: an attempt to commit the class
6 A-I felonies of murder in the second degree as defined in section
7 125.25, kidnapping in the first degree as defined in section 135.25, and
8 arson in the first degree as defined in section 150.20; manslaughter in
9 the first degree as defined in section 125.20, aggravated manslaughter
10 in the first degree as defined in section 125.22, rape in the first
11 degree as defined in section 130.35, criminal sexual act in the first
12 degree as defined in section 130.50, aggravated sexual abuse in the
13 [first] SECOND degree as defined in section 130.70, course of sexual
14 conduct against a child in the first degree as defined in section
15 130.75; assault in the first degree as defined in section 120.10,
16 kidnapping in the second degree as defined in section 135.20, burglary
17 in the first degree as defined in section 140.30, arson in the second
18 degree as defined in section 150.15, robbery in the first degree as
19 defined in section 160.15, incest in the first degree as defined in
20 section 255.27, criminal possession of a weapon in the first degree as
21 defined in section 265.04, criminal use of a firearm in the first degree
22 as defined in section 265.09, criminal sale of a firearm in the first
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06425-03-3
S. 2240--A 2
1 degree as defined in section 265.13, aggravated assault upon a police
2 officer or a peace officer as defined in section 120.11, gang assault in
3 the first degree as defined in section 120.07, intimidating a victim or
4 witness in the first degree as defined in section 215.17, hindering
5 prosecution of terrorism in the first degree as defined in section
6 490.35, criminal possession of a chemical weapon or biological weapon in
7 the second degree as defined in section 490.40, and criminal use of a
8 chemical weapon or biological weapon in the third degree as defined in
9 section 490.47.
10 (b) Class C violent felony offenses: an attempt to commit any of the
11 class B felonies set forth in paragraph (a) of this subdivision; aggra-
12 vated criminally negligent homicide as defined in section 125.11, aggra-
13 vated manslaughter in the second degree as defined in section 125.21,
14 aggravated sexual abuse in the [second] THIRD degree as defined in
15 section 130.67, assault on a peace officer, police officer, fireman or
16 emergency medical services professional as defined in section 120.08,
17 assault on a judge as defined in section 120.09, gang assault in the
18 second degree as defined in section 120.06, strangulation in the first
19 degree as defined in section 121.13, burglary in the second degree as
20 defined in section 140.25, robbery in the second degree as defined in
21 section 160.10, criminal possession of a weapon in the second degree as
22 defined in section 265.03, criminal use of a firearm in the second
23 degree as defined in section 265.08, criminal sale of a firearm in the
24 second degree as defined in section 265.12, criminal sale of a firearm
25 with the aid of a minor as defined in section 265.14, aggravated crimi-
26 nal possession of a weapon as defined in section 265.19, soliciting or
27 providing support for an act of terrorism in the first degree as defined
28 in section 490.15, hindering prosecution of terrorism in the second
29 degree as defined in section 490.30, and criminal possession of a chemi-
30 cal weapon or biological weapon in the third degree as defined in
31 section 490.37.
32 (c) Class D violent felony offenses: an attempt to commit any of the
33 class C felonies set forth in paragraph (b); reckless assault of a child
34 as defined in section 120.02, assault in the second degree as defined in
35 section 120.05, menacing a police officer or peace officer as defined in
36 section 120.18, stalking in the first degree, as defined in subdivision
37 one of section 120.60, strangulation in the second degree as defined in
38 section 121.12, rape in the second degree as defined in section 130.30,
39 criminal sexual act in the second degree as defined in section 130.45,
40 sexual abuse in the first degree as defined in section 130.65, course of
41 sexual conduct against a child in the second degree as defined in
42 section 130.80, aggravated sexual abuse in the [third] FOURTH degree as
43 defined in section 130.66, facilitating a sex offense with a controlled
44 substance as defined in section 130.90, criminal possession of a weapon
45 in the third degree as defined in subdivision five, six, seven, eight,
46 nine or ten of section 265.02, criminal sale of a firearm in the third
47 degree as defined in section 265.11, intimidating a victim or witness in
48 the second degree as defined in section 215.16, soliciting or providing
49 support for an act of terrorism in the second degree as defined in
50 section 490.10, and making a terroristic threat as defined in section
51 490.20, falsely reporting an incident in the first degree as defined in
52 section 240.60, placing a false bomb or hazardous substance in the first
53 degree as defined in section 240.62, placing a false bomb or hazardous
54 substance in a sports stadium or arena, mass transportation facility or
55 enclosed shopping mall as defined in section 240.63, and aggravated
S. 2240--A 3
1 unpermitted use of indoor pyrotechnics in the first degree as defined in
2 section 405.18.
3 S 2. The penal law is amended by adding three new sections 130.36,
4 130.51 and 130.71 to read as follows:
5 S 130.36 AGGRAVATED RAPE.
6 A MALE IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
7 COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF
8 THE COMMISSION OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
9 ANOTHER PARTICIPANT IN THE CRIME:
10 1. IS ARMED WITH A DEADLY WEAPON; OR
11 2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
12 3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
13 THE CRIME; OR
14 4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
15 AGGRAVATED RAPE IS A CLASS A-II FELONY.
16 S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
17 A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN HE OR SHE
18 ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER
19 PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE COMMISSION
20 OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE, SHE OR ANOTHER
21 PARTICIPANT IN THE CRIME:
22 1. IS ARMED WITH A DEADLY WEAPON; OR
23 2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
24 3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
25 THE CRIME; OR
26 4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
27 AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
28 S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
29 1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
30 WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
31 RA, PENIS OR RECTUM OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
32 PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
33 OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE, SHE OR ANOTHER
34 PARTICIPANT IN THE CRIME:
35 (A) IS ARMED WITH A DEADLY WEAPON; OR
36 (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
37 (C) CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
38 THE CRIME; OR
39 (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
40 2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
41 PROVISIONS OF THIS SECTION.
42 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
43 S 3. Section 130.65-a of the penal law, as added by chapter 1 of the
44 laws of 2000, subdivision 1 as amended by chapter 485 of the laws of
45 2009, is amended to read as follows:
46 S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
47 1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
48 degree when:
49 (a) He or she inserts a foreign object in the vagina, urethra, penis,
50 rectum or anus of another person and the other person is incapable of
51 consent by reason of some factor other than being less than seventeen
52 years old; or
53 (b) He or she inserts a finger in the vagina, urethra, penis, rectum
54 or anus of another person causing physical injury to such person and
55 such person is incapable of consent by reason of some factor other than
56 being less than seventeen years old.
S. 2240--A 4
1 2. Conduct performed for a valid medical purpose does not violate the
2 provisions of this section.
3 Aggravated sexual abuse in the [fourth] FIFTH degree is a class E
4 felony.
5 S 4. Section 130.66 of the penal law, as added by chapter 181 of the
6 laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
7 of 2009, subdivision 3 as renumbered by chapter 1 of the laws of 2000,
8 is amended to read as follows:
9 S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
10 1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
11 degree when he or she inserts a foreign object in the vagina, urethra,
12 penis, rectum or anus of another person:
13 (a) By forcible compulsion; or
14 (b) When the other person is incapable of consent by reason of being
15 physically helpless; or
16 (c) When the other person is less than eleven years old.
17 2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
18 degree when he or she inserts a foreign object in the vagina, urethra,
19 penis, rectum or anus of another person causing physical injury to such
20 person and such person is incapable of consent by reason of being
21 mentally disabled or mentally incapacitated.
22 3. Conduct performed for a valid medical purpose does not violate the
23 provisions of this section.
24 Aggravated sexual abuse in the [third] FOURTH degree is a class D
25 felony.
26 S 5. Section 130.67 of the penal law, as added by chapter 450 of the
27 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
28 ter 485 of the laws of 2009, is amended to read as follows:
29 S 130.67 Aggravated sexual abuse in the [second] THIRD degree.
30 1. A person is guilty of aggravated sexual abuse in the [second]
31 THIRD degree when he or she inserts a finger in the vagina, urethra,
32 penis, rectum or anus of another person causing physical injury to such
33 person:
34 (a) By forcible compulsion; or
35 (b) When the other person is incapable of consent by reason of being
36 physically helpless; or
37 (c) When the other person is less than eleven years old.
38 2. Conduct performed for a valid medical purpose does not violate the
39 provisions of this section.
40 Aggravated sexual abuse in the [second] THIRD degree is a class C
41 felony.
42 S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
43 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
44 ter 485 of the laws of 2009, is amended to read as follows:
45 S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
46 1. A person is guilty of aggravated sexual abuse in the [first]
47 SECOND degree when he or she inserts a foreign object in the vagina,
48 urethra, penis, rectum or anus of another person causing physical injury
49 to such person:
50 (a) By forcible compulsion; or
51 (b) When the other person is incapable of consent by reason of being
52 physically helpless; or
53 (c) When the other person is less than eleven years old.
54 2. Conduct performed for a valid medical purpose does not violate the
55 provisions of this section.
S. 2240--A 5
1 Aggravated sexual abuse in the [first] SECOND degree is a class B
2 felony.
3 S 7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
4 law, subdivision 2 as amended by chapter 416 of the laws of 1986, para-
5 graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
6 and subdivision 3 as amended by chapter 264 of the laws of 2003, are
7 amended to read as follows:
8 2. "Eligible youth" means a youth who is eligible to be found a
9 youthful offender. Every youth is so eligible unless:
10 (a) the conviction to be replaced by a youthful offender finding is
11 for (i) a class A-I or class A-II felony, or (ii) an armed felony as
12 defined in subdivision forty-one of section 1.20, except as provided in
13 subdivision three, or (iii) rape in the first degree, criminal sexual
14 act in the first degree, or aggravated sexual abuse IN THE SECOND
15 DEGREE, except as provided in subdivision three, or
16 (b) such youth has previously been convicted and sentenced for a felo-
17 ny, or
18 (c) such youth has previously been adjudicated a youthful offender
19 following conviction of a felony or has been adjudicated on or after
20 September first, nineteen hundred seventy-eight a juvenile delinquent
21 who committed a designated felony act as defined in the family court
22 act.
23 3. Notwithstanding the provisions of subdivision two, a youth who has
24 been convicted of an armed felony offense or of rape in the first
25 degree, criminal sexual act in the first degree, or aggravated sexual
26 abuse IN THE SECOND DEGREE is an eligible youth if the court determines
27 that one or more of the following factors exist: (i) mitigating circum-
28 stances that bear directly upon the manner in which the crime was
29 committed; or (ii) where the defendant was not the sole participant in
30 the crime, the defendant's participation was relatively minor although
31 not so minor as to constitute a defense to the prosecution. Where the
32 court determines that the eligible youth is a youthful offender, the
33 court shall make a statement on the record of the reasons for its deter-
34 mination, a transcript of which shall be forwarded to the state division
35 of criminal justice services, to be kept in accordance with the
36 provisions of subdivision three of section eight hundred thirty-seven-a
37 of the executive law.
38 S 8. This act shall take effect on the first of November next succeed-
39 ing the date on which it shall have become a law; provided, however,
40 that if this act shall take effect prior to the effective date of
41 section 27 of chapter 1 of the laws of 2013, then section one of this
42 act shall take effect on the same date and in the same manner as section
43 27 of chapter 1 of the laws of 2013 takes effect.