Bill Text: NY A06814 | 2019-2020 | General Assembly | Introduced

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Bill Title: Establishes the class B felony of aggravated assault upon a person less than ten years old and expands criminal use of a firearm in the first degree to include commission of certain felonies on school grounds.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - referred to codes [A06814 Detail]

Download: New_York-2019-A06814-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          6814
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                     March 20, 2019
                                       ___________
        Introduced  by M. of A. REYES -- read once and referred to the Committee
          on Codes
        AN ACT to amend the penal law, in relation to establishing the  offenses
          of aggravated assault upon a person less than ten years old and crimi-
          nal use of a firearm in the first degree
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title.  This act shall be known and may be  cited  as
     2  "Luisito's law".
     3    §  2.    Paragraph  (a) of subdivision 1 of section 70.02 of the penal
     4  law, as amended by chapter 189 of the laws of 2018, is amended  to  read
     5  as follows:
     6    (a)  Class  B  violent felony offenses: an attempt to commit the class
     7  A-I felonies of murder in  the  second  degree  as  defined  in  section
     8  125.25, kidnapping in the first degree as defined in section 135.25, and
     9  arson  in the first degree as defined in section 150.20; manslaughter in
    10  the first degree as defined in section 125.20,  aggravated  manslaughter
    11  in  the  first  degree  as  defined in section 125.22, rape in the first
    12  degree as defined in section 130.35, criminal sexual act  in  the  first
    13  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
    14  first degree as defined in section  130.70,  course  of  sexual  conduct
    15  against  a  child  in  the  first  degree  as defined in section 130.75;
    16  assault in the first degree as defined in section 120.10, kidnapping  in
    17  the  second  degree  as defined in section 135.20, burglary in the first
    18  degree as defined in section 140.30,  arson  in  the  second  degree  as
    19  defined  in  section  150.15,  robbery in the first degree as defined in
    20  section 160.15, sex trafficking as defined in paragraphs (a) and (b)  of
    21  subdivision  five  of  section  230.34,  sex  trafficking  of a child as
    22  defined in section 230.34-a, incest in the first degree  as  defined  in
    23  section  255.27,  criminal possession of a weapon in the first degree as
    24  defined in section 265.04, criminal use of a firearm in the first degree
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05558-02-9
        A. 6814                             2
     1  as defined in section 265.09, criminal sale of a firearm  in  the  first
     2  degree  as  defined  in section 265.13, aggravated assault upon a police
     3  officer or a peace officer as defined in section 120.11, gang assault in
     4  the first degree as defined in section 120.07, aggravated assault upon a
     5  person  less  than  ten years old as defined in section 120.12-a, intim-
     6  idating a victim or witness in the first degree as  defined  in  section
     7  215.17,  hindering  prosecution  of  terrorism  in  the  first degree as
     8  defined in section 490.35, criminal possession of a chemical  weapon  or
     9  biological weapon in the second degree as defined in section 490.40, and
    10  criminal  use  of  a  chemical  weapon or biological weapon in the third
    11  degree as defined in section 490.47.
    12    § 3. The penal law is amended by adding a new section 120.12-a to read
    13  as follows:
    14  § 120.12-a Aggravated assault upon a person less than ten years old.
    15    A person is guilty of aggravated assault upon a person less  than  ten
    16  years  old when, being eighteen years old or older, with intent to cause
    17  physical injury to another person, he or she causes  such  injury  to  a
    18  child  less  than ten years old by means of a deadly weapon or dangerous
    19  instrument.
    20    Aggravated assault upon a person less than ten years old is a class  B
    21  felony.
    22    § 4. Section 265.09 of the penal law, as amended by chapter 650 of the
    23  laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
    24  is amended to read as follows:
    25  § 265.09 Criminal use of a firearm in the first degree.
    26    (1)  A  person  is  guilty  of  criminal use of a firearm in the first
    27  degree when he or she commits any class  B  violent  felony  offense  as
    28  defined  in  paragraph  (a)  of subdivision one of section 70.02 of this
    29  chapter, or he or she commits a specified offense while  knowing  he  or
    30  she  is on school grounds, as defined in subdivision fourteen of section
    31  220.00 of this part, or within two hundred fifty feet of any  playground
    32  operated  by  the city of New York or any department or public authority
    33  thereof, and he or she either:
    34    (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
    35  which a shot, readily capable of producing death or other serious injury
    36  may be discharged; or
    37    (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
    38  machine gun or other firearm.
    39    [Criminal use of a firearm in the first degree is a class B felony.]
    40    (2) For the purposes of this section,  a  "specified  offense"  is  an
    41  offense  defined  by  any  of  the following provisions of this chapter:
    42  section 115.05 (criminal facilitation  in  the  second  degree),  265.16
    43  (criminal  sale  of a firearm to a minor), 100.13 (criminal solicitation
    44  in the first degree), 155.40  (grand  larceny  in  the  second  degree),
    45  120.05  (assault  in  the  second  degree),  265.11  (criminal sale of a
    46  firearm in the third degree), 130.90 (facilitating a sex offense with  a
    47  controlled  substance),  215.16 (intimidating a victim or witness in the
    48  second degree), 120.18 (menacing a police  officer  or  peace  officer),
    49  120.02  (reckless  assault  of  a  child), 120.60 (stalking in the first
    50  degree), 121.12 (strangulation in the second degree),  130.30  (rape  in
    51  the  second  degree), 130.45 (criminal sexual act in the second degree),
    52  130.65 (sexual abuse in the first  degree),  130.80  (course  of  sexual
    53  conduct against a child in the second degree), 130.66 (aggravated sexual
    54  abuse  in  the  third  degree),  135.65  (coercion in the first degree),
    55  265.17 (criminal purchase or disposal of  a  weapon),  120.25  (reckless
        A. 6814                             3
     1  endangerment in the first degree), 165.05 (robbery in the third degree),
     2  or 215.12 (tampering with a witness in the second degree).
     3    (3)  Sentencing.  Notwithstanding  any  other  provision of law to the
     4  contrary, when a person is convicted of criminal use of a firearm in the
     5  first degree as defined in subdivision one of this  section,  the  court
     6  shall  impose  an  additional  consecutive sentence of five years to the
     7  sentence imposed on the underlying class B violent felony offense  where
     8  the person convicted of such crime displays a loaded weapon from which a
     9  shot,  readily capable of producing death or other serious injury may be
    10  discharged, in furtherance of the commission of  such  crime,  provided,
    11  however,  that  such  additional  sentence  shall  not be imposed if the
    12  court, having regard to the nature and circumstances of the crime and to
    13  the history and character of the defendant, finds  on  the  record  that
    14  such  additional consecutive sentence would be unduly harsh and that not
    15  imposing such sentence would be consistent with the  public  safety  and
    16  would  not  deprecate  the seriousness of the crime. Notwithstanding any
    17  other provision of law to the contrary, the aggregate of the  five  year
    18  consecutive  term  imposed  pursuant to this subdivision and the minimum
    19  term of the indeterminate sentence imposed on  the  underlying  class  B
    20  violent felony shall constitute the new aggregate minimum term of impri-
    21  sonment,  and  a  person subject to such term shall be required to serve
    22  the entire aggregate minimum term and shall not be eligible for  release
    23  on  parole  or  conditional  release  during such term. This subdivision
    24  shall not apply where the defendant's criminal liability for  displaying
    25  a loaded weapon from which a shot, readily capable of producing death or
    26  other serious injury may be discharged, in furtherance of the commission
    27  of crime is based on the conduct of another pursuant to section 20.00 of
    28  this chapter.
    29    Criminal use of a firearm in the first degree is a class B felony.
    30    § 5. This act shall take effect on the first of November next succeed-
    31  ing the date upon which it shall have become a law.