S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7066
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                      May 1, 2013
                                      ___________
       Introduced by M. of A. SALADINO -- read once and referred to the Commit-
         tee on Codes
       AN  ACT  to amend the penal law, in relation to establishing the offense
         of endangering the welfare of a child in a   sexual manner;  to  amend
         the  penal  law  and the correction law, in relation to sentencing for
         certain sexual offenses; and to repeal certain provisions of the penal
         law relating thereto
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Subparagraph  (ii)  of paragraph (a) of subdivision 3 and
    2  subdivision 5 of section 70.00 of the penal law,  subparagraph  (ii)  of
    3  paragraph  (a) of subdivision 3 as amended by chapter 107 of the laws of
    4  2006 and subdivision 5 as amended by chapter 482 of the  laws  of  2009,
    5  are amended to read as follows:
    6    (ii)  For  a  class A-II felony, such minimum period shall not be less
    7  than three years nor more than eight years four months, except that  for
    8  the  class A-II felony of predatory sexual assault as defined in section
    9  130.95 of this chapter [or the class A-II  felony  of  predatory  sexual
   10  assault  against  a child as defined in section 130.96 of this chapter,]
   11  such minimum period shall be not less than ten years nor more than twen-
   12  ty-five years AND FOR THE CLASS A-II FELONY OF PREDATORY SEXUAL  ASSAULT
   13  AGAINST  A CHILD AS DEFINED IN SECTION 130.96 OF THIS CHAPTER SUCH MINI-
   14  MUM PERIOD SHALL BE NOT LESS THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM
   15  SHALL BE LIFE IMPRISONMENT.
   16    5.  Life  imprisonment  without  parole.  Notwithstanding  any   other
   17  provision  of  law,  a  defendant sentenced to life imprisonment without
   18  parole shall not  be  or  become  eligible  for  parole  or  conditional
   19  release.  For  purposes of commitment and custody, other than parole and
   20  conditional release, such sentence shall be deemed to be  an  indetermi-
   21  nate  sentence.  A defendant may be sentenced to life imprisonment with-
   22  out parole, IN ACCORDANCE WITH THE PROCEDURES PROVIDED BY LAW FOR IMPOS-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04459-01-3
       A. 7066                             2
    1  ING SUCH A SENTENCE, EITHER: (A) upon conviction for the crime of murder
    2  in the first degree as defined in section 125.27 of this chapter [and in
    3  accordance with the procedures provided by law for imposing  a  sentence
    4  for  such  crime]; OR (B) UPON CONVICTION OF A VIOLENT FELONY OFFENSE AS
    5  DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THIS  ARTICLE  WHEN  SUCH
    6  DEFENDANT HAS PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDICATE VIOLENT
    7  FELONY  CONVICTIONS  AS  DEFINED  IN PARAGRAPH (B) OF SUBDIVISION ONE OF
    8  SECTION 70.04 OF THIS ARTICLE. A defendant must  be  sentenced  to  life
    9  imprisonment  without  parole upon conviction for the crime of terrorism
   10  as defined in section  490.25  of  this  chapter,  where  the  specified
   11  offense  the  defendant  committed  is  a class A-I felony; the crime of
   12  criminal possession of a chemical weapon or  biological  weapon  in  the
   13  first  degree as defined in section 490.45 of this chapter; or the crime
   14  of criminal use of a chemical weapon or biological weapon in  the  first
   15  degree  as defined in section 490.55 of this chapter; provided, however,
   16  that nothing in this subdivision shall preclude or prevent a sentence of
   17  death when the defendant is also convicted of the crime of murder in the
   18  first degree as defined in section 125.27 of this chapter,  OR  IS  ALSO
   19  CONVICTED  OF  A VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF
   20  SECTION 70.02 OF THIS ARTICLE WHEN SUCH DEFENDANT  HAS  PREVIOUSLY  BEEN
   21  SUBJECTED TO TWO OR MORE PREDICATE VIOLENT FELONY CONVICTIONS AS DEFINED
   22  IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 70.04 OF THIS ARTICLE.  A
   23  defendant  must  be  sentenced  to life imprisonment without parole upon
   24  conviction for the crime of murder in the second degree  as  defined  in
   25  subdivision  five  of section 125.25 of this chapter or for the crime of
   26  aggravated murder as defined in subdivision one  of  section  125.26  of
   27  this  chapter. A defendant may be sentenced to life imprisonment without
   28  parole upon conviction for the crime of aggravated murder as defined  in
   29  subdivision two of section 125.26 of this chapter.
   30    S 2. Paragraph (a) of subdivision 4 of section 70.06 of the penal law,
   31  as  amended  by  chapter  107 of the laws of 2006, is amended to read as
   32  follows:
   33    (a) The minimum period of imprisonment for a  second  felony  offender
   34  convicted  of  a class A-II felony must be fixed by the court at no less
   35  than six years and not to exceed twelve and one-half years and  must  be
   36  specified  in  the  sentence,  except  that for the class A-II felony of
   37  predatory sexual assault as defined in section 130.95  of  this  chapter
   38  [or the class A-II felony of predatory sexual assault against a child as
   39  defined in section 130.96 of this chapter,] such minimum period shall be
   40  not  less  than  ten  years  nor more than twenty-five years AND FOR THE
   41  CLASS A-II FELONY OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS DEFINED
   42  IN SECTION 130.96 OF THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE NOT  LESS
   43  THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM SHALL BE LIFE IMPRISONMENT.
   44    S  3.  Subdivision  2  of  section 70.08 of the penal law, as added by
   45  chapter 481 of the laws of 1978, is amended to read as follows:
   46    2. Authorized sentence. When the court  has  found,  pursuant  to  the
   47  provisions  of the criminal procedure law, that a person is a persistent
   48  violent felony offender the court must impose [an indeterminate sentence
   49  of imprisonment, the maximum term of which shall be  life  imprisonment.
   50  The  minimum  period  of  imprisonment  under  such  sentence must be in
   51  accordance with subdivision three of this section] A  SENTENCE  OF  LIFE
   52  IMPRISONMENT WITHOUT PAROLE PURSUANT TO SECTION 70.00 OF THIS ARTICLE.
   53    S 4. Subdivision 3 of section 70.08 of the penal law is REPEALED.
   54    S  5.  Subdivision  1  of section 70.40 of the penal law is amended by
   55  adding a new paragraph (d) to read as follows:
       A. 7066                             3
    1    (D) A PERSON WHO HAS BEEN PAROLED AFTER SERVING A SENTENCE  OF  IMPRI-
    2  SONMENT  FOR  THE  CRIME  OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS
    3  DEFINED IN SECTION 130.96 OF THIS CHAPTER SHALL BE UNDER THE SUPERVISION
    4  OF THE STATE BOARD OF PAROLE FOR THE DURATION OF THEIR LIFETIME.
    5    S  6.  Paragraphs  (d), (f), (g) and (i) of subdivision 2-a of section
    6  70.45 of the penal law, as added by chapter 7 of the laws of  2007,  are
    7  amended to read as follows:
    8    (d)  not  less  than  three  years  nor more than ten years whenever a
    9  determinate sentence is imposed pursuant to subdivision three of section
   10  70.02 of this article upon a conviction of a class D or class E  violent
   11  felony  sex  offense  as  defined in paragraph (b) of subdivision one of
   12  section  70.80  of  this  article;  PROVIDED,  HOWEVER,  THAT  WHEN  THE
   13  CONVICTION WAS FOR THE COMMISSION OF SEXUAL ABUSE IN THE FIRST DEGREE AS
   14  DEFINED  IN SECTION 130.65 WHEN THE VICTIM WAS LESS THAN ELEVEN YEARS OF
   15  AGE OR COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE  AS
   16  DEFINED  IN  SECTION  130.80 OF THIS CHAPTER, THE PERIOD OF POST-RELEASE
   17  SUPERVISION SHALL BE FOR LIFE;
   18    (f) not less than five years nor more than  twenty  years  whenever  a
   19  determinate sentence is imposed pursuant to subdivision three of section
   20  70.02  of this article upon a conviction of a class B violent felony sex
   21  offense as defined in section 70.80 of this article; PROVIDED,  HOWEVER,
   22  THAT  WHEN  THE  CONVICTION  WAS FOR THE COMMISSION OF RAPE IN THE FIRST
   23  DEGREE AS DEFINED IN SECTION 130.35, CRIMINAL SEXUAL ACT  IN  THE  FIRST
   24  DEGREE  AS  DEFINED  IN  SECTION  130.50, AGGRAVATED SEXUAL ABUSE IN THE
   25  FIRST DEGREE AS DEFINED IN SECTION 130.70 OR COURSE  OF  SEXUAL  CONDUCT
   26  AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.75 OF THIS
   27  CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION SHALL BE FOR LIFE;
   28    (g)  not  less  than five years nor more than fifteen years whenever a
   29  determinate sentence of  imprisonment  is  imposed  pursuant  to  either
   30  section  70.04,  section  70.06, or subdivision five of section 70.80 of
   31  this article upon a conviction of a class D or class E violent  or  non-
   32  violent  felony sex offense as defined in section 70.80 of this article;
   33  PROVIDED, HOWEVER, THAT WHEN THE CONVICTION WAS FOR  THE  COMMISSION  OF
   34  SEXUAL  ABUSE  IN THE FIRST DEGREE AS DEFINED IN SECTION 130.65 WHEN THE
   35  VICTIM WAS LESS THAN ELEVEN YEARS OF AGE OR  COURSE  OF  SEXUAL  CONDUCT
   36  AGAINST  A  CHILD  IN  THE SECOND DEGREE AS DEFINED IN SECTION 130.80 OF
   37  THIS CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION SHALL BE FOR LIFE;
   38    (i) such period shall be not less than ten years nor more  than  twen-
   39  ty-five years whenever a determinate sentence of imprisonment is imposed
   40  pursuant  to either section 70.04, section 70.06, or subdivision five of
   41  section 70.80 of this article upon a conviction of a class B violent  or
   42  non-violent felony sex offense as defined in section 70.80 of this arti-
   43  cle;  PROVIDED, HOWEVER, THAT WHEN THE CONVICTION WAS FOR THE COMMISSION
   44  OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, CRIMINAL SEXU-
   45  AL ACT IN THE FIRST DEGREE AS  DEFINED  IN  SECTION  130.50,  AGGRAVATED
   46  SEXUAL  ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.70 OR COURSE
   47  OF SEXUAL CONDUCT AGAINST A CHILD IN THE  FIRST  DEGREE  AS  DEFINED  IN
   48  SECTION  130.75  OF THIS CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION
   49  SHALL BE FOR LIFE; and
   50    S 7. The penal law is amended by adding a new section 260.09  to  read
   51  as follows:
   52  S 260.09 ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER.
   53    A  PERSON  IS GUILTY OF ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL
   54  MANNER WHEN HE OR SHE COMMITS THE OFFENSE OF ENDANGERING THE WELFARE  OF
   55  A  CHILD AND THE INJURIOUS MANNER IN WHICH HE OR SHE ACTED, OR THE OCCU-
   56  PATION THE CHILD WAS DIRECTED OR AUTHORIZED TO ENGAGE IN, OR THE  REASON
       A. 7066                             4
    1  FOR  THE  CHILD  BEING  DEEMED AN "ABUSED CHILD", A "NEGLECTED CHILD", A
    2  "JUVENILE DELINQUENT" AND/OR A "PERSON IN NEED OF SUPERVISION" IS  OF  A
    3  SEXUAL NATURE.
    4    ENDANGERING  THE  WELFARE  OF  A CHILD IN A SEXUAL MANNER IS A CLASS E
    5  FELONY.
    6    S 8. Section 260.11 of the penal law, as amended by chapter 89 of  the
    7  laws of 1984, is amended to read as follows:
    8  S 260.11 Endangering the welfare of a child; corroboration.
    9    A  person shall not be convicted of endangering the welfare of a child
   10  OR ENDANGERING THE WELFARE OF A CHILD IN  A  SEXUAL  MANNER,  or  of  an
   11  attempt  to commit the same, upon the testimony of a victim who is inca-
   12  pable of consent because of mental defect or  mental  incapacity  as  to
   13  conduct  that  constitutes an offense or an attempt to commit an offense
   14  referred to in section 130.16 OF THIS PART, without additional  evidence
   15  sufficient  pursuant  to  section  130.16  OF  THIS  PART  to  sustain a
   16  conviction of an offense referred to in section 130.16 OF THIS PART,  or
   17  of an attempt to commit the same.
   18    S  9.  Subparagraph  (i)  of paragraph (a) of subdivision 2 of section
   19  168-a of the correction law, as amended by chapter 405 of  the  laws  of
   20  2008, is amended to read as follows:
   21    (i)  a  conviction  of or a conviction for an attempt to commit any of
   22  the provisions of  sections  120.70,  130.20,  130.25,  130.30,  130.40,
   23  130.45,  130.60, 230.34, 250.50, 255.25, 255.26 [and], 255.27 AND 260.09
   24  or article two hundred sixty-three of the penal law, or section  135.05,
   25  135.10,  135.20  or  135.25 of such law relating to kidnapping offenses,
   26  provided the victim of such kidnapping or related offense is  less  than
   27  seventeen years old and the offender is not the parent of the victim, or
   28  section  230.04, where the person patronized is in fact less than seven-
   29  teen years of age, 230.05 or  230.06,  or  subdivision  two  of  section
   30  230.30,  or  section  230.32  or  230.33  of  the  penal  law, or (ii) a
   31  conviction of or a conviction for  an  attempt  to  commit  any  of  the
   32  provisions  of section 235.22 of the penal law, or (iii) a conviction of
   33  or a conviction for an attempt to commit any provisions of the foregoing
   34  sections committed or attempted as  a  hate  crime  defined  in  section
   35  485.05  of  the  penal law or as a crime of terrorism defined in section
   36  490.25 of such law or as a sexually motivated felony defined in  section
   37  130.91 of such law; or
   38    S  10.  Section  803  of the correction law is amended by adding a new
   39  subdivision 1-a to read as follows:
   40    1-A. A PERSON SERVING A DETERMINATE SENTENCE WHO  IS  SUBJECT  TO  THE
   41  PERIOD  OF  POST-RELEASE  SUPERVISION ESTABLISHED IN PARAGRAPH (D), (F),
   42  (G) OR (I) OF SUBDIVISION TWO-A OF SECTION 70.45 OF THE PENAL LAW  SHALL
   43  NOT  BE  ENTITLED  TO  ANY  GOOD  BEHAVIOR ALLOWANCE ESTABLISHED IN THIS
   44  SECTION.
   45    S 11. This act shall take effect on  the  one  hundred  eightieth  day
   46  after it shall have become a law; provided, however, that the amendments
   47  to  section  803  of  the correction law made by section ten of this act
   48  shall survive the expiration and reversion of such section  as  provided
   49  in  subdivision  d  of  section  74 of chapter 3 of the laws of 1995, as
   50  amended.