STATE OF NEW YORK
________________________________________________________________________
1977
2017-2018 Regular Sessions
IN ASSEMBLY
January 17, 2017
___________
Introduced by M. of A. SEPULVEDA, GUNTHER, CRESPO, BRINDISI, MAYER,
GALEF, SKARTADOS, MOSLEY, COLTON, LUPINACCI, WALTER, MONTESANO, RAIA,
DiPIETRO, SALADINO, M. G. MILLER, STECK, WALKER, THIELE, COOK, GRAF,
HOOPER, PALMESANO -- Multi-Sponsored by -- M. of A. CROUCH, GARBARINO,
MAGEE, McDONALD, McDONOUGH, McKEVITT, MOYA, PALUMBO, PERRY, RIVERA --
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 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;
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07342-02-7
A. 1977 2
1 subdivision five of section 230.34, incest in the first degree as
2 defined in section 255.27, criminal possession of a weapon in the first
3 degree as defined in section 265.04, criminal use of a firearm in the
4 first degree as defined in section 265.09, criminal sale of a firearm in
5 the first degree as defined in section 265.13, aggravated assault upon a
6 police officer or a peace officer as defined in section 120.11, gang
7 assault in the first degree as defined in section 120.07, aggravated
8 assault upon a person less than ten years old as defined in section
9 120.12-a, intimidating a victim or witness in the first degree as
10 defined in section 215.17, hindering prosecution of terrorism in the
11 first degree as defined in section 490.35, criminal possession of a
12 chemical weapon or biological weapon in the second degree as defined in
13 section 490.40, and criminal use of a chemical weapon or biological
14 weapon in the third degree as defined in section 490.47.
15 § 3. The penal law is amended by adding a new section 120.12-a to read
16 as follows:
17 § 120.12-a Aggravated assault upon a person less than ten years old.
18 A person is guilty of aggravated assault upon a person less than ten
19 years old when, being eighteen years old or older, with intent to cause
20 physical injury to another person, he or she causes such injury to a
21 child less than ten years old by means of a deadly weapon or dangerous
22 instrument.
23 Aggravated assault upon a person less than ten years old is a class B
24 felony.
25 § 4. Section 265.09 of the penal law, as amended by chapter 650 of the
26 laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
27 is amended to read as follows:
28 § 265.09 Criminal use of a firearm in the first degree.
29 (1) A person is guilty of criminal use of a firearm in the first
30 degree when he or she commits any class B violent felony offense as
31 defined in paragraph (a) of subdivision one of section 70.02 of this
32 chapter, or he or she commits a specified offense while knowing he or
33 she is on school grounds, as defined in subdivision fourteen of section
34 220.00 of this part, or within two hundred fifty feet of any playground
35 operated by the city of New York or any department or public authority
36 thereof, and he or she either:
37 (a) possesses a deadly weapon, if the weapon is a loaded weapon from
38 which a shot, readily capable of producing death or other serious injury
39 may be discharged; or
40 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
41 machine gun or other firearm.
42 [Criminal use of a firearm in the first degree is a class B felony.]
43 (2) For the purposes of this section, a "specified offense" is an
44 offense defined by any of the following provisions of this chapter:
45 section 115.05 (criminal facilitation in the second degree), 265.16
46 (criminal sale of a firearm to a minor), 100.13 (criminal solicitation
47 in the first degree), 155.40 (grand larceny in the second degree),
48 120.05 (assault in the second degree), 265.11 (criminal sale of a
49 firearm in the third degree), 130.90 (facilitating a sex offense with a
50 controlled substance), 215.16 (intimidating a victim or witness in the
51 second degree), 120.18 (menacing a police officer or peace officer),
52 120.02 (reckless assault of a child), 120.60 (stalking in the first
53 degree), 121.12 (strangulation in the second degree), 130.30 (rape in
54 the second degree), 130.45 (criminal sexual act in the second degree),
55 130.65 (sexual abuse in the first degree), 130.80 (course of sexual
56 conduct against a child in the second degree), 130.66 (aggravated sexual
A. 1977 3
1 abuse in the third degree), 135.65 (coercion in the first degree),
2 265.17 (criminal purchase or disposal of a weapon), 120.25 (reckless
3 endangerment in the first degree), 165.05 (robbery in the third degree),
4 or 215.12 (tampering with a witness in the second degree).
5 (3) Sentencing. Notwithstanding any other provision of law to the
6 contrary, when a person is convicted of criminal use of a firearm in the
7 first degree as defined in subdivision one of this section, the court
8 shall impose an additional consecutive sentence of five years to the
9 sentence imposed on the underlying class B violent felony offense where
10 the person convicted of such crime displays a loaded weapon from which a
11 shot, readily capable of producing death or other serious injury may be
12 discharged, in furtherance of the commission of such crime, provided,
13 however, that such additional sentence shall not be imposed if the
14 court, having regard to the nature and circumstances of the crime and to
15 the history and character of the defendant, finds on the record that
16 such additional consecutive sentence would be unduly harsh and that not
17 imposing such sentence would be consistent with the public safety and
18 would not deprecate the seriousness of the crime. Notwithstanding any
19 other provision of law to the contrary, the aggregate of the five year
20 consecutive term imposed pursuant to this subdivision and the minimum
21 term of the indeterminate sentence imposed on the underlying class B
22 violent felony shall constitute the new aggregate minimum term of impri-
23 sonment, and a person subject to such term shall be required to serve
24 the entire aggregate minimum term and shall not be eligible for release
25 on parole or conditional release during such term. This subdivision
26 shall not apply where the defendant's criminal liability for displaying
27 a loaded weapon from which a shot, readily capable of producing death or
28 other serious injury may be discharged, in furtherance of the commission
29 of crime is based on the conduct of another pursuant to section 20.00 of
30 this chapter.
31 Criminal use of a firearm in the first degree is a class B felony.
32 § 5. This act shall take effect on the first of November next succeed-
33 ing the date upon which it shall have become a law.