STATE OF NEW YORK
        ________________________________________________________________________
                                         5065--B
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                    February 12, 2015
                                       ___________
        Introduced  by  M.  of  A.  SEPULVEDA, GUNTHER, CRESPO, BRINDISI, MAYER,
          GALEF, SKARTADOS, MOSLEY, COLTON, LUPINACCI, WALTER, MONTESANO,  RAIA,
          DiPIETRO,  SALADINO,  MILLER,  STECK,  WALKER, ROBINSON, THIELE, COOK,
          GRAF, HOOPER, PALMESANO -- Multi-Sponsored by --  M.  of  A.  CERETTO,
          CROUCH, DUPREY, GARBARINO, MAGEE, McDONALD, McDONOUGH, McKEVITT, MOYA,
          PALUMBO,  PERRY,  RIVERA,  SCHIMEL  --  read  once and referred to the
          Committee on Codes -- recommitted to the Committee on Codes in accord-
          ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- again reported from said  committee  with  amendments,  ordered
          reprinted as amended and recommitted to said committee
        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 368 of the laws of 2015, 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;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03951-04-6

        A. 5065--B                          2
     1  assault  in the first degree as defined in section 120.10, kidnapping in
     2  the second degree as defined in section 135.20, burglary  in  the  first
     3  degree  as  defined  in  section  140.30,  arson in the second degree as
     4  defined  in  section  150.15,  robbery in the first degree as defined in
     5  section 160.15, sex trafficking as defined in paragraphs (a) and (b)  of
     6  subdivision  five  of  section  230.34,  incest  in  the first degree as
     7  defined in section 255.27, criminal possession of a weapon in the  first
     8  degree  as  defined  in section 265.04, criminal use of a firearm in the
     9  first degree as defined in section 265.09, criminal sale of a firearm in
    10  the first degree as defined in section 265.13, aggravated assault upon a
    11  police officer or a peace officer as defined  in  section  120.11,  gang
    12  assault  in  the  first  degree as defined in section 120.07, aggravated
    13  assault upon a person less than ten years  old  as  defined  in  section
    14  120.12-a,  intimidating  a  victim  or  witness  in  the first degree as
    15  defined in section 215.17, hindering prosecution  of  terrorism  in  the
    16  first  degree  as  defined  in  section 490.35, criminal possession of a
    17  chemical weapon or biological weapon in the second degree as defined  in
    18  section  490.40,  and  criminal  use  of a chemical weapon or biological
    19  weapon in the third degree as defined in section 490.47.
    20    § 3. The penal law is amended by adding a new section 120.12-a to read
    21  as follows:
    22  § 120.12-a Aggravated assault upon a person less than ten years old.
    23    A person is guilty of aggravated assault upon a person less  than  ten
    24  years  old when, being eighteen years old or older, with intent to cause
    25  physical injury to another person, he or she causes  such  injury  to  a
    26  child  less  than ten years old by means of a deadly weapon or dangerous
    27  instrument.
    28    Aggravated assault upon a person less than ten years old is a class  B
    29  felony.
    30    § 4. Section 265.09 of the penal law, as amended by chapter 650 of the
    31  laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
    32  is amended to read as follows:
    33  § 265.09 Criminal use of a firearm in the first degree.
    34    (1)  A  person  is  guilty  of  criminal use of a firearm in the first
    35  degree when he or she commits any class  B  violent  felony  offense  as
    36  defined  in  paragraph  (a)  of subdivision one of section 70.02 of this
    37  chapter, or he or she commits a specified offense while  knowing  he  or
    38  she  is on school grounds, as defined in subdivision fourteen of section
    39  220.00 of this part, or within two hundred fifty feet of any  playground
    40  operated  by  the city of New York or any department or public authority
    41  thereof, and he or she either:
    42    (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
    43  which a shot, readily capable of producing death or other serious injury
    44  may be discharged; or
    45    (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
    46  machine gun or other firearm.
    47    [Criminal use of a firearm in the first degree is a class B felony.]
    48    (2) For the purposes of this section,  a  "specified  offense"  is  an
    49  offense  defined  by  any  of  the following provisions of this chapter:
    50  section 115.05 (criminal facilitation  in  the  second  degree),  265.16
    51  (criminal  sale  of a firearm to a minor), 100.13 (criminal solicitation
    52  in the first degree), 155.40  (grand  larceny  in  the  second  degree),
    53  120.05  (assault  in  the  second  degree),  265.11  (criminal sale of a
    54  firearm in the third degree), 130.90 (facilitating a sex offense with  a
    55  controlled  substance),  215.16 (intimidating a victim or witness in the
    56  second degree), 120.18 (menacing a police  officer  or  peace  officer),

        A. 5065--B                          3
     1  120.02  (reckless  assault  of  a  child), 120.60 (stalking in the first
     2  degree), 121.12 (strangulation in the second degree),  130.30  (rape  in
     3  the  second  degree), 130.45 (criminal sexual act in the second degree),
     4  130.65  (sexual  abuse  in  the  first degree), 130.80 (course of sexual
     5  conduct against a child in the second degree), 130.66 (aggravated sexual
     6  abuse in the third degree),  135.65  (coercion  in  the  first  degree),
     7  265.17  (criminal  purchase  or  disposal of a weapon), 120.25 (reckless
     8  endangerment in the first degree), 165.05 (robbery in the third degree),
     9  or 215.12 (tampering with a witness in the second degree).
    10    (3) Sentencing. Notwithstanding any other  provision  of  law  to  the
    11  contrary, when a person is convicted of criminal use of a firearm in the
    12  first  degree  as  defined in subdivision one of this section, the court
    13  shall impose an additional consecutive sentence of  five  years  to  the
    14  sentence  imposed on the underlying class B violent felony offense where
    15  the person convicted of such crime displays a loaded weapon from which a
    16  shot, readily capable of producing death or other serious injury may  be
    17  discharged,  in  furtherance  of the commission of such crime, provided,
    18  however, that such additional sentence  shall  not  be  imposed  if  the
    19  court, having regard to the nature and circumstances of the crime and to
    20  the  history  and  character  of the defendant, finds on the record that
    21  such additional consecutive sentence would be unduly harsh and that  not
    22  imposing  such  sentence  would be consistent with the public safety and
    23  would not deprecate the seriousness of the  crime.  Notwithstanding  any
    24  other  provision  of law to the contrary, the aggregate of the five year
    25  consecutive term imposed pursuant to this subdivision  and  the  minimum
    26  term  of  the  indeterminate  sentence imposed on the underlying class B
    27  violent felony shall constitute the new aggregate minimum term of impri-
    28  sonment, and a person subject to such term shall be  required  to  serve
    29  the  entire aggregate minimum term and shall not be eligible for release
    30  on parole or conditional release  during  such  term.  This  subdivision
    31  shall  not apply where the defendant's criminal liability for displaying
    32  a loaded weapon from which a shot, readily capable of producing death or
    33  other serious injury may be discharged, in furtherance of the commission
    34  of crime is based on the conduct of another pursuant to section 20.00 of
    35  this chapter.
    36    Criminal use of a firearm in the first degree is a class B felony.
    37    § 5. This act shall take effect on the first of November next succeed-
    38  ing the date upon which it shall have become a law.