S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         8382
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                    January 9, 2013
                                      ___________
       Introduced  by  M.  of  A. TEDISCO, ROSA, 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
    9  ANOTHER PERSON TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH PERSON
   10  ON THE HEAD, OR HE OR SHE AIDS  OR  ENCOURAGES  ANOTHER  PARTICIPANT  TO
   11  STRIKE SUCH PERSON ON THE HEAD, CAUSING PHYSICAL INJURY OR SERIOUS PHYS-
   12  ICAL 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
   21  ANOTHER  PERSON TO BE RENDERED UNCONSCIOUS, AND WHEN AIDED BY OR ENCOUR-
   22  AGED BY TWO OR MORE OTHER PERSONS ACTUALLY PRESENT, HE  OR  SHE  STRIKES
   23  SUCH PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER PARTIC-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13180-03-3
       A. 8382                             2
    1  IPANT  TO  STRIKE  SUCH  PERSON  ON THE HEAD, CAUSING PHYSICAL INJURY OR
    2  SERIOUS PHYSICAL INJURY TO SUCH PERSON.
    3    Gang assault in the first degree is a class B felony.
    4    S  3.  Subdivision  4  of section 125.20 of the penal law, as added by
    5  chapter 477 of the laws of 1990, is amended and a new subdivision  5  is
    6  added to read as follows:
    7    4.  Being eighteen years old or more and with intent to cause physical
    8  injury to a person less than eleven years old, the defendant  recklessly
    9  engages in conduct which creates a grave risk of serious physical injury
   10  to such person and thereby causes the death of such person[.]; OR
   11    5.  BEING  FOURTEEN  YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE
   12  ANOTHER PERSON TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH PERSON
   13  ON THE HEAD, OR HE OR SHE AIDS  OR  ENCOURAGES  ANOTHER  PARTICIPANT  TO
   14  STRIKE SUCH PERSON ON THE HEAD, CAUSING THE DEATH OF SUCH PERSON.
   15    S  4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
   16  procedure law, as amended by chapter 316 of the laws of 2006, is amended
   17  to read as follows:
   18    (a) the conviction to be replaced by a youthful  offender  finding  is
   19  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   20  defined in subdivision forty-one of section 1.20, except as provided  in
   21  subdivision  three  OF  THIS SECTION, or (iii) rape in the first degree,
   22  criminal sexual act in the first degree,  or  aggravated  sexual  abuse,
   23  except as provided in subdivision three OF THIS SECTION, OR (IV) ASSAULT
   24  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 120.10 OF
   25  THE PENAL LAW, OR (V) GANG ASSAULT IN THE FIRST  DEGREE  AS  DEFINED  IN
   26  SUBDIVISION TWO OF SECTION 120.07 OF THE PENAL LAW, OR (VI) MANSLAUGHTER
   27  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF
   28  THE PENAL LAW, or
   29    S 5. Subdivision 18 of section 10.00 of the penal law, as  amended  by
   30  chapter 7 of the laws of 2007, is amended to read as follows:
   31    18.  "Juvenile  offender" means (1) a person thirteen years old who is
   32  criminally responsible for acts constituting murder in the second degree
   33  as defined in subdivisions one and two of section 125.25 of this chapter
   34  or such conduct as a sexually motivated felony, where authorized  pursu-
   35  ant to section 130.91 of [the penal law] THIS CHAPTER; and
   36    (2) a person fourteen or fifteen years old who is criminally responsi-
   37  ble for acts constituting the crimes defined in subdivisions one and two
   38  of section 125.25 (murder in the second degree) and in subdivision three
   39  of such section provided that the underlying crime for the murder charge
   40  is  one  for which such person is criminally responsible; section 135.25
   41  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
   42  subdivisions  one  [and], two AND FIVE of section 120.10 (assault in the
   43  first degree); SUBDIVISION TWO OF SECTION 120.07 (GANG  ASSAULT  IN  THE
   44  FIRST  DEGREE);  125.20 (manslaughter in the first degree); subdivisions
   45  one and two of section 130.35 (rape in the first  degree);  subdivisions
   46  one and two of section 130.50 (criminal sexual act in the first degree);
   47  130.70  (aggravated  sexual abuse in the first degree); 140.30 (burglary
   48  in the first degree); subdivision one of section 140.25 (burglary in the
   49  second degree); 150.15 (arson in the second degree); 160.15 (robbery  in
   50  the  first  degree);  subdivision  two of section 160.10 (robbery in the
   51  second degree) of this chapter; or section 265.03 of this chapter, where
   52  such machine gun or such firearm is possessed on school grounds, as that
   53  phrase is defined in subdivision fourteen  of  section  220.00  of  this
   54  chapter;  or  defined  in this chapter as an attempt to commit murder in
   55  the second degree or kidnapping in the first degree, or such conduct  as
       A. 8382                             3
    1  a sexually motivated felony, where authorized pursuant to section 130.91
    2  of [the penal law] THIS CHAPTER.
    3    S  6. Section 70.05 of the penal law is amended by adding a new subdi-
    4  vision 4 to read as follows:
    5    4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A
    6  JUVENILE OFFENDER IS CONVICTED OF ASSAULT IN THE FIRST DEGREE AS DEFINED
    7  IN SUBDIVISION FIVE OF SECTION 120.10; GANG ASSAULT IN THE FIRST  DEGREE
    8  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07; OR MANSLAUGHTER IN THE
    9  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   10  CHAPTER,  SUCH  OFFENDER SHALL BE SENTENCED PURSUANT TO SECTION 70.02 OF
   11  THIS ARTICLE; PROVIDED, THAT THE PROVISIONS OF  THIS  SUBDIVISION  SHALL
   12  ONLY APPLY TO JUVENILE OFFENDERS OVER THIRTEEN YEARS OLD.
   13    S 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law,
   14  as  added by chapter 481 of the laws of 1978 and relettered by chapter 3
   15  of the laws of 1995, is amended to read as follows:
   16    (f) The aggregate maximum term of consecutive sentences imposed upon a
   17  juvenile offender for two or more crimes, not including a class A  felo-
   18  ny,    OR  ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   19  SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
   20  SION  TWO  OF  SECTION  120.07,  OR  MANSLAUGHTER IN THE FIRST DEGREE AS
   21  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   22  before he has reached the age of  sixteen,  shall,  if  it  exceeds  ten
   23  years, be deemed to be ten years. If consecutive indeterminate sentences
   24  imposed  upon  a  juvenile  offender  include a sentence for the class A
   25  felony of arson in the first degree [or for  the  class  A  felony  of],
   26  kidnapping  in  the first degree, ASSAULT IN THE FIRST DEGREE AS DEFINED
   27  IN SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST  DEGREE
   28  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN THE
   29  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   30  CHAPTER,  then the aggregate maximum term of such sentences shall, if it
   31  exceeds  [fifteen]  TWENTY-FIVE  years,  be  deemed  to   be   [fifteen]
   32  TWENTY-FIVE  years.  Where  the  aggregate  maximum  term of two or more
   33  consecutive sentences is reduced by a calculation made pursuant to  this
   34  paragraph,  the  aggregate minimum period of imprisonment, if it exceeds
   35  one-half of the aggregate maximum term as so reduced, shall be deemed to
   36  be one-half of the aggregate maximum term as so reduced.
   37    S 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law,
   38  as added by chapter 481 of the laws of  1978,  is  amended  to  read  as
   39  follows:
   40    (d) The aggregate maximum term of consecutive sentences imposed upon a
   41  juvenile  offender  for  two  or  more  crimes,  not including a class A
   42  felony, ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  FIVE  OF
   43  SECTION  120.10; GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
   44  SION TWO OF SECTION 120.07; OR  MANSLAUGHTER  IN  THE  FIRST  DEGREE  AS
   45  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   46  before  he  has  reached  the  age  of sixteen, shall, if it exceeds ten
   47  years, be deemed to be ten years. If consecutive indeterminate sentences
   48  imposed upon a juvenile offender include a  sentence  for  the  class  A
   49  felony  of  arson  in  the  first degree [or for the class A felony of],
   50  kidnapping in the first degree, ASSAULT IN THE FIRST DEGREE  AS  DEFINED
   51  IN  SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE
   52  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN  THE
   53  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
   54  CHAPTER, then the aggregate maximum term of such sentences shall, if  it
   55  exceeds   [fifteen]   TWENTY-FIVE  years,  be  deemed  to  be  [fifteen]
   56  TWENTY-FIVE years. Where the aggregate  maximum  term  of  two  or  more
       A. 8382                             4
    1  consecutive  sentences is reduced by a calculation made pursuant to this
    2  paragraph, the aggregate minimum period of imprisonment, if  it  exceeds
    3  one-half of the aggregate maximum term as so reduced, shall be deemed to
    4  be one-half of the aggregate maximum term as so reduced.
    5    S 9. Subdivision 4 of section 180.75 of the criminal procedure law, as
    6  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
    7  follows:
    8    4. Notwithstanding the provisions of subdivisions  two  and  three  of
    9  this  section,  a  local  criminal  court  shall,  at the request of the
   10  district attorney, order removal of an action against a juvenile  offen-
   11  der  to  the  family  court  pursuant to the provisions of article seven
   12  hundred twenty-five of this chapter if, upon consideration of the crite-
   13  ria specified in subdivision two of section 210.43 of this  chapter,  it
   14  is  determined  that  to  do  so  would  be in the interests of justice.
   15  Where, however, the felony complaint charges the juvenile offender  with
   16  murder  in  the  second degree as defined in section 125.25 of the penal
   17  law, rape in the first degree as defined in subdivision one  of  section
   18  130.35  of  the  penal  law,  criminal sexual act in the first degree as
   19  defined in subdivision one of section 130.50 of the penal law,  [or]  an
   20  armed  felony  as  defined  in paragraph (a) of subdivision forty-one of
   21  section 1.20 of this chapter, ASSAULT IN THE FIRST DEGREE AS DEFINED  IN
   22  SUBDIVISION FIVE OF SECTION 120.10 OF THE PENAL LAW, GANG ASSAULT IN THE
   23  FIRST  DEGREE  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 120.07 OF THE
   24  PENAL LAW, OR MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION
   25  FIVE OF SECTION 125.20 OF THE  PENAL  LAW,  a  determination  that  such
   26  action  be removed to the family court shall, in addition, be based upon
   27  a finding of one or  more  of  the  following  factors:  (i)  mitigating
   28  circumstances  that bear directly upon the manner in which the crime was
   29  committed; or (ii) where the defendant was not the sole  participant  in
   30  the  crime,  the defendant's participation was relatively minor although
   31  not so minor as to constitute a defense to  the  prosecution;  or  (iii)
   32  possible deficiencies in proof of the crime.
   33    S 10. This act shall take effect immediately; provided that the amend-
   34  ments  to  paragraph  (f) of subdivision 1 of section 70.30 of the penal
   35  law, made by section seven of this act shall be subject to  the  expira-
   36  tion  and  reversion  of  such  paragraph pursuant to subdivision (d) of
   37  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
   38  date the provisions of section eight of this act shall take effect.