Bill Text: NY S01045 | 2019-2020 | General Assembly | Introduced


Bill Title: Increases the penalties for the violent sex offenses of rape, criminal sexual act and aggravated sexual abuse when committed in a forcible manner where an actor or accomplice is armed with or displays a deadly weapon, uses or threatens the use of a dangerous instrument or inflicts physical injury upon the victim.

Spectrum: Partisan Bill (Republican 5-0)

Status: (Introduced - Dead) 2019-03-19 - RECOMMIT, ENACTING CLAUSE STRICKEN [S01045 Detail]

Download: New_York-2019-S01045-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1045
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 10, 2019
                                       ___________
        Introduced  by  Sens.  YOUNG,  FUNKE,  O'MARA, ORTT, RANZENHOFER -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee on Codes
        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 189 of the
     3  laws of 2018, paragraph (b) as amended by chapter 476  of  the  laws  of
     4  2018  and  paragraph  (c) as amended by chapter 368 of the laws of 2015,
     5  are amended to read 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]  second  degree  as  defined in section 130.70, course of sexual
    15  conduct against a child in  the  first  degree  as  defined  in  section
    16  130.75;  assault  in  the  first  degree  as  defined in section 120.10,
    17  kidnapping in the second degree as defined in section  135.20,  burglary
    18  in  the  first  degree as defined in section 140.30, arson in the second
    19  degree as defined in section 150.15, robbery  in  the  first  degree  as
    20  defined  in section 160.15, sex trafficking as defined in paragraphs (a)
    21  and (b) of subdivision five of section  230.34,  sex  trafficking  of  a
    22  child  as  defined  in  section  230.34-a, incest in the first degree as
    23  defined in section 255.27, criminal possession of a weapon in the  first
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03937-02-9

        S. 1045                             2
     1  degree  as  defined  in section 265.04, criminal use of a firearm in the
     2  first degree as defined in section 265.09, criminal sale of a firearm in
     3  the first degree as defined in section 265.13, aggravated assault upon a
     4  police  officer  or  a  peace officer as defined in section 120.11, gang
     5  assault in the first degree as defined in section 120.07, intimidating a
     6  victim or witness in the first degree  as  defined  in  section  215.17,
     7  hindering  prosecution  of  terrorism  in the first degree as defined in
     8  section 490.35, criminal possession of a chemical weapon  or  biological
     9  weapon  in  the second degree as defined in section 490.40, and criminal
    10  use of a chemical weapon or biological weapon in  the  third  degree  as
    11  defined in section 490.47.
    12    (b)  Class  C violent felony offenses: an attempt to commit any of the
    13  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
    14  vated criminally negligent homicide as defined in section 125.11, aggra-
    15  vated  manslaughter  in  the second degree as defined in section 125.21,
    16  aggravated sexual abuse in the  [second]  third  degree  as  defined  in
    17  section  130.67, assault on a peace officer, police officer, firefighter
    18  or emergency medical services professional as defined in section 120.08,
    19  assault on a judge as defined in section 120.09,  gang  assault  in  the
    20  second  degree  as defined in section 120.06, strangulation in the first
    21  degree as defined in section 121.13, burglary in the  second  degree  as
    22  defined  in  section  140.25, robbery in the second degree as defined in
    23  section 160.10, criminal possession of a weapon in the second degree  as
    24  defined  in  section  265.03,  criminal  use  of a firearm in the second
    25  degree as defined in section 265.08, criminal sale of a firearm  in  the
    26  second  degree  as defined in section 265.12, criminal sale of a firearm
    27  with the aid of a minor as defined in section 265.14, aggravated  crimi-
    28  nal  possession  of a weapon as defined in section 265.19, soliciting or
    29  providing support for an act of terrorism in the first degree as defined
    30  in section 490.15, hindering prosecution  of  terrorism  in  the  second
    31  degree as defined in section 490.30, and criminal possession of a chemi-
    32  cal  weapon  or  biological  weapon  in  the  third degree as defined in
    33  section 490.37.
    34    (c) Class D violent felony offenses: an attempt to commit any  of  the
    35  class C felonies set forth in paragraph (b); reckless assault of a child
    36  as defined in section 120.02, assault in the second degree as defined in
    37  section 120.05, menacing a police officer or peace officer as defined in
    38  section  120.18, stalking in the first degree, as defined in subdivision
    39  one of section 120.60, strangulation in the second degree as defined  in
    40  section  121.12, rape in the second degree as defined in section 130.30,
    41  criminal sexual act in the second degree as defined in  section  130.45,
    42  sexual abuse in the first degree as defined in section 130.65, course of
    43  sexual  conduct  against  a  child  in  the  second degree as defined in
    44  section 130.80, aggravated sexual abuse in the [third] fourth degree  as
    45  defined  in section 130.66, facilitating a sex offense with a controlled
    46  substance as defined in section 130.90, labor trafficking as defined  in
    47  paragraphs  (a) and (b) of subdivision three of section 135.35, criminal
    48  possession of a weapon in the third degree  as  defined  in  subdivision
    49  five, six, seven, eight, nine or ten of section 265.02, criminal sale of
    50  a firearm in the third degree as defined in section 265.11, intimidating
    51  a  victim  or witness in the second degree as defined in section 215.16,
    52  soliciting or providing support for an act of terrorism  in  the  second
    53  degree  as defined in section 490.10, and making a terroristic threat as
    54  defined in section 490.20, falsely reporting an incident  in  the  first
    55  degree  as  defined in section 240.60, placing a false bomb or hazardous
    56  substance in the first degree as defined in section  240.62,  placing  a

        S. 1045                             3
     1  false  bomb  or  hazardous  substance in a sports stadium or arena, mass
     2  transportation facility or enclosed shopping mall as defined in  section
     3  240.63,  and  aggravated  unpermitted  use of indoor pyrotechnics in the
     4  first degree as defined in section 405.18.
     5    §  2.  The  penal  law is amended by adding three new sections 130.36,
     6  130.51 and 130.71 to read as follows:
     7  § 130.36 Aggravated rape.
     8    A male is guilty of aggravated rape when he engages in  sexual  inter-
     9  course  with  a female by forcible compulsion and when, in the course of
    10  the commission of the crime or of  immediate  flight  therefrom,  he  or
    11  another participant in the crime:
    12    1. Is armed with a deadly weapon; or
    13    2. Uses or threatens the use of a dangerous instrument; or
    14    3.  Causes  physical  injury to any person who is not a participant in
    15  the crime; or
    16    4. Displays what appears to be a firearm.
    17    Aggravated rape is a class A-II felony.
    18  § 130.51 Aggravated criminal sexual act.
    19    A person is guilty of aggravated criminal sexual act when  he  or  she
    20  engages  in  oral  sexual  conduct  or  anal sexual conduct with another
    21  person by forcible compulsion and when, in the course of the  commission
    22  of  the  crime  or  of  immediate  flight  therefrom, he, she or another
    23  participant in the crime:
    24    1. Is armed with a deadly weapon; or
    25    2. Uses or threatens the use of a dangerous instrument; or
    26    3. Causes physical injury to any person who is not  a  participant  in
    27  the crime; or
    28    4. Displays what appears to be a firearm.
    29    Aggravated criminal sexual act is a class A-II felony.
    30  § 130.71 Aggravated sexual abuse in the first degree.
    31    1.  A  person is guilty of aggravated sexual abuse in the first degree
    32  when he or she inserts a finger or foreign object in the vagina,  ureth-
    33  ra,  penis  or  rectum  of another person by forcible compulsion causing
    34  physical injury to such person and when, in the course of the commission
    35  of the crime or of  immediate  flight  therefrom,  he,  she  or  another
    36  participant in the crime:
    37    (a) Is armed with a deadly weapon; or
    38    (b) Uses or threatens the use of a dangerous instrument; or
    39    (c)  Causes  physical injury to any person who is not a participant in
    40  the crime; or
    41    (d) Displays what appears to be a firearm.
    42    2. Conduct performed for a valid medical purpose does not violate  the
    43  provisions of this section.
    44    Aggravated sexual abuse in the first degree is a class A-II felony.
    45    §  3.  Section 130.65-a of the penal law, as added by chapter 1 of the
    46  laws of 2000, subdivision 1 as amended by chapter 485  of  the  laws  of
    47  2009, is amended to read as follows:
    48  § 130.65-a Aggravated sexual abuse in the [fourth] fifth degree.
    49    1. A person is guilty of aggravated sexual abuse in the [fourth] fifth
    50  degree when:
    51    (a)  He or she inserts a foreign object in the vagina, urethra, penis,
    52  rectum or anus of another person and the other person  is  incapable  of
    53  consent  by  reason  of some factor other than being less than seventeen
    54  years old; or
    55    (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
    56  or  anus  of  another  person causing physical injury to such person and

        S. 1045                             4
     1  such person is incapable of consent by reason of some factor other  than
     2  being less than seventeen years old.
     3    2.  Conduct performed for a valid medical purpose does not violate the
     4  provisions of this section.
     5    Aggravated sexual abuse in the [fourth] fifth  degree  is  a  class  E
     6  felony.
     7    §  4.  Section 130.66 of the penal law, as added by chapter 181 of the
     8  laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
     9  of 2009, subdivision 3 as renumbered by chapter 1 of the laws  of  2000,
    10  is amended to read as follows:
    11  § 130.66 Aggravated sexual abuse in the [third] fourth degree.
    12    1. A person is guilty of aggravated sexual abuse in the [third] fourth
    13  degree  when  he or she inserts a foreign object in the vagina, urethra,
    14  penis, rectum or anus of another person:
    15    (a) By forcible compulsion; or
    16    (b) When the other person is incapable of consent by reason  of  being
    17  physically helpless; or
    18    (c) When the other person is less than eleven years old.
    19    2. A person is guilty of aggravated sexual abuse in the [third] fourth
    20  degree  when  he or she inserts a foreign object in the vagina, urethra,
    21  penis, rectum or anus of another person causing physical injury to  such
    22  person  and  such  person  is  incapable  of  consent by reason of being
    23  mentally disabled or mentally incapacitated.
    24    3. Conduct performed for a valid medical purpose does not violate  the
    25  provisions of this section.
    26    Aggravated  sexual  abuse  in  the  [third] fourth degree is a class D
    27  felony.
    28    § 5. Section 130.67 of the penal law, as added by chapter 450  of  the
    29  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
    30  ter 485 of the laws of 2009, is amended to read as follows:
    31  § 130.67  Aggravated sexual abuse in the [second] third degree.
    32    1.    A  person  is  guilty of aggravated sexual abuse in the [second]
    33  third degree when he or she inserts a finger  in  the  vagina,  urethra,
    34  penis,  rectum or anus of another person causing physical injury to such
    35  person:
    36    (a) By forcible compulsion; or
    37    (b) When the other person is incapable of consent by reason  of  being
    38  physically helpless; or
    39    (c) When the other person is less than eleven years old.
    40    2.  Conduct performed for a valid medical purpose does not violate the
    41  provisions of this section.
    42    Aggravated sexual abuse in the [second] third  degree  is  a  class  C
    43  felony.
    44    § 6. Section 130.70 of the penal law, as amended by chapter 450 of the
    45  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
    46  ter 485 of the laws of 2009, is amended to read as follows:
    47  § 130.70 Aggravated sexual abuse in the [first] second degree.
    48    1.    A  person  is  guilty  of aggravated sexual abuse in the [first]
    49  second degree when he or she inserts a foreign  object  in  the  vagina,
    50  urethra, penis, rectum or anus of another person causing physical injury
    51  to such person:
    52    (a) By forcible compulsion; or
    53    (b)  When  the other person is incapable of consent by reason of being
    54  physically helpless; or
    55    (c) When the other person is less than eleven years old.

        S. 1045                             5
     1    2. Conduct performed for a valid medical purpose does not violate  the
     2  provisions of this section.
     3    Aggravated  sexual  abuse  in  the  [first] second degree is a class B
     4  felony.
     5    § 7. Subdivisions 2 and 3 of section 720.10 of the criminal  procedure
     6  law,  subdivision 2 as amended by chapter 416 of the laws of 1986, para-
     7  graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
     8  and subdivision 3 as amended by chapter 264 of the  laws  of  2003,  are
     9  amended to read as follows:
    10    2.    "Eligible  youth"  means  a  youth who is eligible to be found a
    11  youthful offender.  Every youth is so eligible unless:
    12    (a) the conviction to be replaced by a youthful  offender  finding  is
    13  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
    14  defined in subdivision forty-one of section 1.20, except as provided  in
    15  subdivision  three,  or  (iii) rape in the first degree, criminal sexual
    16  act in the first degree,  or  aggravated  sexual  abuse  in  the  second
    17  degree, except as provided in subdivision three, or
    18    (b) such youth has previously been convicted and sentenced for a felo-
    19  ny, or
    20    (c)    such  youth has previously been adjudicated a youthful offender
    21  following conviction of a felony or has been  adjudicated  on  or  after
    22  September  first,  nineteen  hundred seventy-eight a juvenile delinquent
    23  who committed a designated felony act as defined  in  the  family  court
    24  act.
    25    3.  Notwithstanding the provisions of subdivision two, a youth who has
    26  been  convicted  of  an  armed  felony  offense  or of rape in the first
    27  degree, criminal sexual act in the first degree,  or  aggravated  sexual
    28  abuse  in the second degree is an eligible youth if the court determines
    29  that one or more of the following factors exist: (i)  mitigating circum-
    30  stances that bear directly upon  the  manner  in  which  the  crime  was
    31  committed;  or  (ii) where the defendant was not the sole participant in
    32  the crime, the defendant's participation was relatively  minor  although
    33  not  so  minor as to constitute a defense to the prosecution.  Where the
    34  court determines that the eligible youth is  a  youthful  offender,  the
    35  court shall make a statement on the record of the reasons for its deter-
    36  mination, a transcript of which shall be forwarded to the state division
    37  of  criminal  justice  services,  to  be  kept  in  accordance  with the
    38  provisions of subdivision three of section eight hundred  thirty-seven-a
    39  of the executive law.
    40    § 8. This act shall take effect on the first of November next succeed-
    41  ing the date on which it shall have become a law.
feedback