S T A T E   O F   N E W   Y O R K
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           S. 1870                                                  A. 2024
                              2015-2016 Regular Sessions
                             S E N A T E - A S S E M B L Y
                                   January 15, 2015
                                      ___________
       IN  SENATE -- Introduced by Sen. FARLEY -- read twice and ordered print-
         ed, and when printed to be committed to the Committee on Codes
       IN ASSEMBLY -- Introduced by  M.  of  A.  TEDISCO,  SKARTADOS,  BORELLI,
         PALMESANO,  BARCLAY,  McLAUGHLIN,  McDONOUGH, DiPIETRO, CROUCH, LALOR,
         RAIA -- read once and referred to the Committee on Codes
       AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
         relation to assault or aiding or encouraging assault
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 4 of  section  120.10  of  the  penal  law,  as
    2  amended  by chapter 791 of the laws of 1967, is amended and a new subdi-
    3  vision 5 is added to read as follows:
    4    4. In the course of and in furtherance of the commission or  attempted
    5  commission  of  a felony or of immediate flight therefrom, he OR SHE, or
    6  another participant if there be any, causes serious physical injury to a
    7  person other than one of the participants[.]; OR
    8    5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
    9  UNSUSPECTING PERSON TO BE RENDERED UNCONSCIOUS, HE OR SHE  STRIKES  SUCH
   10  PERSON  ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER PARTICIPANT
   11  TO STRIKE SUCH PERSON ON THE HEAD, CAUSING PHYSICAL  INJURY  OR  SERIOUS
   12  PHYSICAL INJURY TO SUCH PERSON.
   13    S  2.  Section 120.07 of the penal law, as added by chapter 647 of the
   14  laws of 1996, is amended to read as follows:
   15  S 120.07 Gang assault in the first degree.
   16    A person is guilty of gang assault in the first degree when[,]:
   17    1. with intent to cause serious physical injury to another person  and
   18  when  aided  by  two  or  more other persons actually present, he causes
   19  serious physical injury to such person or to a third person[.]; OR
   20    2. BEING FOURTEEN YEARS OLD OR MORE AND WITH THE INTENT  TO  CAUSE  AN
   21  UNSUSPECTING  PERSON  TO  BE  RENDERED UNCONSCIOUS, AND WHEN AIDED BY OR
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02606-01-5
       S. 1870                             2                            A. 2024
    1  ENCOURAGED BY TWO OR MORE OTHER PERSONS  ACTUALLY  PRESENT,  HE  OR  SHE
    2  STRIKES SUCH PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER
    3  PARTICIPANT  TO  STRIKE SUCH PERSON ON THE HEAD, CAUSING PHYSICAL INJURY
    4  OR SERIOUS PHYSICAL INJURY TO SUCH PERSON.
    5    Gang assault in the first degree is a class B felony.
    6    S  3.  Subdivision  4  of section 125.20 of the penal law, as added by
    7  chapter 477 of the laws of 1990, is amended and a new subdivision  5  is
    8  added to read as follows:
    9    4.  Being eighteen years old or more and with intent to cause physical
   10  injury to a person less than eleven years old, the defendant  recklessly
   11  engages in conduct which creates a grave risk of serious physical injury
   12  to such person and thereby causes the death of such person[.]; OR
   13    5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
   14  UNSUSPECTING  PERSON  TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH
   15  PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER  PARTICIPANT
   16  TO STRIKE SUCH PERSON ON THE HEAD, CAUSING THE DEATH OF SUCH PERSON.
   17    S  4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
   18  procedure law, as amended by chapter 316 of the laws of 2006, is amended
   19  to read as follows:
   20    (a) the conviction to be replaced by a youthful  offender  finding  is
   21  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   22  defined in subdivision forty-one of section 1.20 OF THIS CHAPTER, except
   23  as provided in subdivision three OF THIS SECTION, or (iii) rape  in  the
   24  first  degree,  criminal  sexual  act in the first degree, or aggravated
   25  sexual abuse, except as provided in subdivision three OF  THIS  SECTION,
   26  OR  (IV)  ASSAULT  IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   27  SECTION 120.10 OF THE PENAL LAW, OR (V) GANG ASSAULT IN THE FIRST DEGREE
   28  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07 OF  THE  PENAL  LAW,  OR
   29  (VI)  MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   30  SECTION 125.20 OF THE PENAL LAW, or
   31    S 5. Subdivision 18 of section 10.00 of the penal law, as  amended  by
   32  chapter 7 of the laws of 2007, is amended to read as follows:
   33    18.  "Juvenile  offender" means (1) a person thirteen years old who is
   34  criminally responsible for acts constituting murder in the second degree
   35  as defined in subdivisions one and two of section 125.25 of this chapter
   36  or such conduct as a sexually motivated felony, where authorized  pursu-
   37  ant to section 130.91 of [the penal law] THIS CHAPTER; and
   38    (2) a person fourteen or fifteen years old who is criminally responsi-
   39  ble for acts constituting the crimes defined in subdivisions one and two
   40  of section 125.25 (murder in the second degree) and in subdivision three
   41  of such section provided that the underlying crime for the murder charge
   42  is  one  for which such person is criminally responsible; section 135.25
   43  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
   44  subdivisions  one  [and], two AND FIVE of section 120.10 (assault in the
   45  first degree); SUBDIVISION TWO OF SECTION 120.07 (GANG  ASSAULT  IN  THE
   46  FIRST  DEGREE);  125.20 (manslaughter in the first degree); subdivisions
   47  one and two of section 130.35 (rape in the first  degree);  subdivisions
   48  one and two of section 130.50 (criminal sexual act in the first degree);
   49  130.70  (aggravated  sexual abuse in the first degree); 140.30 (burglary
   50  in the first degree); subdivision one of section 140.25 (burglary in the
   51  second degree); 150.15 (arson in the second degree); 160.15 (robbery  in
   52  the  first  degree);  subdivision  two of section 160.10 (robbery in the
   53  second degree) of this chapter; or section 265.03 of this chapter, where
   54  such machine gun or such firearm is possessed on school grounds, as that
   55  phrase is defined in subdivision fourteen  of  section  220.00  of  this
   56  chapter;  or  defined  in this chapter as an attempt to commit murder in
       S. 1870                             3                            A. 2024
    1  the second degree or kidnapping in the first degree, or such conduct  as
    2  a sexually motivated felony, where authorized pursuant to section 130.91
    3  of [the penal law] THIS CHAPTER.
    4    S  6. Section 70.05 of the penal law is amended by adding a new subdi-
    5  vision 4 to read as follows:
    6    4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A
    7  JUVENILE OFFENDER IS CONVICTED OF ASSAULT IN THE FIRST DEGREE AS DEFINED
    8  IN SUBDIVISION FIVE OF SECTION 120.10; GANG ASSAULT IN THE FIRST  DEGREE
    9  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07; OR MANSLAUGHTER IN THE
   10  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   11  CHAPTER,  SUCH  OFFENDER SHALL BE SENTENCED PURSUANT TO SECTION 70.02 OF
   12  THIS ARTICLE; PROVIDED, THAT THE PROVISIONS OF  THIS  SUBDIVISION  SHALL
   13  ONLY APPLY TO JUVENILE OFFENDERS OVER THIRTEEN YEARS OLD.
   14    S 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law,
   15  as  added by chapter 481 of the laws of 1978 and relettered by chapter 3
   16  of the laws of 1995, is amended to read as follows:
   17    (f) The aggregate maximum term of consecutive sentences imposed upon a
   18  juvenile offender for two or more crimes, not including a class A  felo-
   19  ny,    OR  ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   20  SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
   21  SION  TWO  OF  SECTION  120.07,  OR  MANSLAUGHTER IN THE FIRST DEGREE AS
   22  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   23  before he has reached the age of  sixteen,  shall,  if  it  exceeds  ten
   24  years, be deemed to be ten years. If consecutive indeterminate sentences
   25  imposed  upon  a  juvenile  offender  include a sentence for the class A
   26  felony of arson in the first degree [or for  the  class  A  felony  of],
   27  kidnapping  in  the first degree, ASSAULT IN THE FIRST DEGREE AS DEFINED
   28  IN SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST  DEGREE
   29  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN THE
   30  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   31  CHAPTER,  then the aggregate maximum term of such sentences shall, if it
   32  exceeds  [fifteen]  TWENTY-FIVE  years,  be  deemed  to   be   [fifteen]
   33  TWENTY-FIVE  years.  Where  the  aggregate  maximum  term of two or more
   34  consecutive sentences is reduced by a calculation made pursuant to  this
   35  paragraph,  the  aggregate minimum period of imprisonment, if it exceeds
   36  one-half of the aggregate maximum term as so reduced, shall be deemed to
   37  be one-half of the aggregate maximum term as so reduced.
   38    S 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law,
   39  as added by chapter 481 of the laws of  1978,  is  amended  to  read  as
   40  follows:
   41    (d) The aggregate maximum term of consecutive sentences imposed upon a
   42  juvenile  offender  for  two  or  more  crimes,  not including a class A
   43  felony, ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  FIVE  OF
   44  SECTION  120.10; GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
   45  SION TWO OF SECTION 120.07; OR  MANSLAUGHTER  IN  THE  FIRST  DEGREE  AS
   46  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   47  before  he  has  reached  the  age  of sixteen, shall, if it exceeds ten
   48  years, be deemed to be ten years. If consecutive indeterminate sentences
   49  imposed upon a juvenile offender include a  sentence  for  the  class  A
   50  felony  of  arson  in  the  first degree [or for the class A felony of],
   51  kidnapping in the first degree, ASSAULT IN THE FIRST DEGREE  AS  DEFINED
   52  IN  SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE
   53  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN  THE
   54  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
   55  CHAPTER, then the aggregate maximum term of such sentences shall, if  it
   56  exceeds   [fifteen]   TWENTY-FIVE  years,  be  deemed  to  be  [fifteen]
       S. 1870                             4                            A. 2024
    1  TWENTY-FIVE years. Where the aggregate  maximum  term  of  two  or  more
    2  consecutive  sentences is reduced by a calculation made pursuant to this
    3  paragraph, the aggregate minimum period of imprisonment, if  it  exceeds
    4  one-half of the aggregate maximum term as so reduced, shall be deemed to
    5  be one-half of the aggregate maximum term as so reduced.
    6    S 9. Subdivision 4 of section 180.75 of the criminal procedure law, as
    7  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
    8  follows:
    9    4. Notwithstanding the provisions of subdivisions  two  and  three  of
   10  this  section,  a  local  criminal  court  shall,  at the request of the
   11  district attorney, order removal of an action against a juvenile  offen-
   12  der  to  the  family  court  pursuant to the provisions of article seven
   13  hundred twenty-five of this chapter if, upon consideration of the crite-
   14  ria specified in subdivision two of section 210.43 of this  chapter,  it
   15  is  determined  that  to  do  so  would  be in the interests of justice.
   16  Where, however, the felony complaint charges the juvenile offender  with
   17  murder  in  the  second degree as defined in section 125.25 of the penal
   18  law, rape in the first degree as defined in subdivision one  of  section
   19  130.35  of  the  penal  law,  criminal sexual act in the first degree as
   20  defined in subdivision one of section 130.50 of the penal law,  [or]  an
   21  armed  felony  as  defined  in paragraph (a) of subdivision forty-one of
   22  section 1.20 of this chapter, ASSAULT IN THE FIRST DEGREE AS DEFINED  IN
   23  SUBDIVISION FIVE OF SECTION 120.10 OF THE PENAL LAW, GANG ASSAULT IN THE
   24  FIRST  DEGREE  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 120.07 OF THE
   25  PENAL LAW, OR MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION
   26  FIVE OF SECTION 125.20 OF THE  PENAL  LAW,  a  determination  that  such
   27  action  be removed to the family court shall, in addition, be based upon
   28  a finding of one or  more  of  the  following  factors:  (i)  mitigating
   29  circumstances  that bear directly upon the manner in which the crime was
   30  committed; or (ii) where the defendant was not the sole  participant  in
   31  the  crime,  the defendant's participation was relatively minor although
   32  not so minor as to constitute a defense to  the  prosecution;  or  (iii)
   33  possible deficiencies in proof of the crime.
   34    S 10. This act shall take effect immediately; provided that the amend-
   35  ments  to  paragraph  (f) of subdivision 1 of section 70.30 of the penal
   36  law, made by section seven of this act shall be subject to  the  expira-
   37  tion  and  reversion  of  such  paragraph pursuant to subdivision (d) of
   38  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
   39  date the provisions of section eight of this act shall take effect.