S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1692
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sens.  FLANAGAN,  DeFRANCISCO,  GOLDEN, LARKIN, MARTINS,
         MAZIARZ -- read twice and ordered printed,  and  when  printed  to  be
         committed to the Committee on Codes
       AN  ACT  to amend the penal law, in relation to establishing  home inva-
         sion robbery offenses
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of
    2  the  penal  law,  paragraph (a) as amended by chapter 320 of the laws of
    3  2006 and paragraph (b) as amended by chapter 148 of the  laws  of  2011,
    4  are amended to read as follows:
    5    (a)  Class  B  violent felony offenses: an attempt to commit the class
    6  A-I felonies of murder in  the  second  degree  as  defined  in  section
    7  125.25, kidnapping in the first degree as defined in section 135.25, and
    8  arson  in the first degree as defined in section 150.20; manslaughter in
    9  the first degree as defined in section 125.20,  aggravated  manslaughter
   10  in  the  first  degree  as  defined in section 125.22, rape in the first
   11  degree as defined in section 130.35, criminal sexual act  in  the  first
   12  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
   13  first degree as defined in section  130.70,  course  of  sexual  conduct
   14  against  a  child  in  the  first  degree  as defined in section 130.75;
   15  assault in the first degree as defined in section 120.10, kidnapping  in
   16  the  second  degree  as defined in section 135.20, burglary in the first
   17  degree as defined in section 140.30,  arson  in  the  second  degree  as
   18  defined  in  section  150.15,  robbery in the first degree as defined in
   19  section 160.15, HOME INVASION ROBBERY IN THE FIRST DEGREE AS DEFINED  IN
   20  SECTION 163.10, incest in the first degree as defined in section 255.27,
   21  criminal  possession  of  a  weapon  in  the  first degree as defined in
   22  section 265.04, criminal use of a firearm in the first degree as defined
   23  in section 265.09, criminal sale of a firearm in  the  first  degree  as
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05662-01-3
       S. 1692                             2
    1  defined in section 265.13, aggravated assault upon a police officer or a
    2  peace  officer  as  defined in section 120.11, gang assault in the first
    3  degree as defined in section 120.07, intimidating a victim or witness in
    4  the  first degree as defined in section 215.17, hindering prosecution of
    5  terrorism in the first degree as defined  in  section  490.35,  criminal
    6  possession  of  a  chemical  weapon  or  biological weapon in the second
    7  degree as defined in section 490.40, and  criminal  use  of  a  chemical
    8  weapon  or  biological  weapon in the third degree as defined in section
    9  490.47.
   10    (b) Class C violent felony offenses: an attempt to commit any  of  the
   11  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   12  vated criminally negligent homicide as defined in section 125.11, aggra-
   13  vated manslaughter in the second degree as defined  in  section  125.21,
   14  aggravated  sexual  abuse  in  the  second  degree as defined in section
   15  130.67, assault on a peace officer, police officer, fireman or emergency
   16  medical services professional as defined in section 120.08, assault on a
   17  judge as defined in section 120.09, gang assault in the second degree as
   18  defined in section 120.06, strangulation in the first degree as  defined
   19  in  section  121.13, burglary in the second degree as defined in section
   20  140.25, robbery in the second degree as defined in section 160.10,  HOME
   21  INVASION  ROBBERY  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 163.05,
   22  criminal possession of a weapon in  the  second  degree  as  defined  in
   23  section  265.03,  criminal  use  of  a  firearm  in the second degree as
   24  defined in section 265.08, criminal sale of  a  firearm  in  the  second
   25  degree as defined in section 265.12, criminal sale of a firearm with the
   26  aid  of  a  minor  as defined in section 265.14, soliciting or providing
   27  support for an act of terrorism  in  the  first  degree  as  defined  in
   28  section  490.15, hindering prosecution of terrorism in the second degree
   29  as defined in section 490.30, and  criminal  possession  of  a  chemical
   30  weapon  or  biological  weapon in the third degree as defined in section
   31  490.37.
   32    S 2. The penal law is amended by adding a new article 163 to  read  as
   33  follows:
   34                                 ARTICLE 163
   35                            HOME INVASION ROBBERY
   36  SECTION 163.00 HOME INVASION ROBBERY; DEFINED.
   37          163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.
   38          163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
   39          163.15 HOME INVASION ROBBERY; PROSECUTION.
   40  S 163.00 HOME INVASION ROBBERY; DEFINED.
   41    FOR THE PURPOSES OF THIS ARTICLE:
   42    1.  "HOME  INVASION ROBBERY" MEANS TO KNOWINGLY ENTER OR REMAIN UNLAW-
   43  FULLY IN A DWELLING WITH INTENT TO COMMIT A ROBBERY THEREIN,  AND  WHEN,
   44  (A)  WHILE  IN  EFFECTING ENTRY OR WHILE IN THE DWELLING OR IN IMMEDIATE
   45  FLIGHT THEREFROM OR AS A DIRECT RESULT OF THE ENTRY INTO SUCH DWELLING A
   46  PERSON COMMITS ANY OFFENSE DEFINED IN ARTICLE ONE HUNDRED SIXTY OF  THIS
   47  TITLE AND (B) WHILE IN THE COURSE OF COMMITTING SUCH OFFENSE SUCH PERSON
   48  COMMITS  ANY  OFFENSE DEFINED IN TITLE H OF THIS CHAPTER AGAINST ANOTHER
   49  PERSON WHO IS NOT A PARTICIPANT IN THE HOME INVASION ROBBERY.
   50    2. "DWELLING" SHALL HAVE THE SAME MEANING AS SUCH TERM IS  DEFINED  IN
   51  SUBDIVISION THREE OF SECTION 140.00 OF THIS PART.
   52    3.  "ENTER  OR  REMAIN UNLAWFULLY" SHALL HAVE THE SAME MEANING AS SUCH
   53  TERM IS DEFINED IN SUBDIVISION FIVE OF SECTION 140.00 OF THIS PART.
   54    4. "ROBBERY" MEANS FORCIBLE STEALING AS DEFINED IN SECTION  160.00  OF
   55  THIS TITLE.
       S. 1692                             3
    1  S 163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.
    2    A  PERSON IS GUILTY OF HOME INVASION ROBBERY IN THE SECOND DEGREE WHEN
    3  HE OR SHE COMMITS A HOME INVASION ROBBERY.
    4    HOME INVASION ROBBERY IN THE SECOND DEGREE IS A CLASS C FELONY.
    5  S 163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
    6    A PERSON IS GUILTY OF HOME INVASION ROBBERY IN THE FIRST  DEGREE  WHEN
    7  HE OR SHE COMMITS A HOME INVASION ROBBERY AND WHEN, IN THE COURSE OF THE
    8  COMMISSION  OF SUCH CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE OR SHE OR
    9  ANOTHER PARTICIPANT IN SUCH CRIME:
   10    1. CAUSES SERIOUS PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTIC-
   11  IPANT IN SUCH CRIME; OR
   12    2. IS ARMED WITH A DEADLY WEAPON; OR
   13    3. USES OR THREATENS THE IMMEDIATE USE OF A DANGEROUS INSTRUMENT; OR
   14    4.  DISPLAYS  WHAT  APPEARS  TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
   15  MACHINE GUN OR OTHER FIREARM; EXCEPT THAT IN ANY PROSECUTION UNDER  THIS
   16  SUBDIVISION,  IT  IS  AN AFFIRMATIVE DEFENSE THAT SUCH PISTOL, REVOLVER,
   17  RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM WAS  NOT  A  LOADED  WEAPON
   18  FROM  WHICH  A SHOT, READILY CAPABLE OF PRODUCING DEATH OR OTHER SERIOUS
   19  PHYSICAL INJURY, COULD BE DISCHARGED. NOTHING CONTAINED IN THIS SUBDIVI-
   20  SION SHALL CONSTITUTE A DEFENSE TO A  PROSECUTION  FOR,  OR  PRECLUDE  A
   21  CONVICTION  OF,  HOME INVASION ROBBERY IN THE SECOND DEGREE OR ANY OTHER
   22  OFFENSE.
   23    HOME INVASION ROBBERY IN THE FIRST DEGREE IS A CLASS B FELONY.
   24  S 163.15 HOME INVASION ROBBERY; PROSECUTION.
   25    IN ANY PROSECUTION OF AN OFFENSE DEFINED IN THIS ARTICLE, NO PROVISION
   26  OF THE CHAPTER SHALL PRECLUDE OR  PROHIBIT  PROSECUTION  FOR  ANY  OTHER
   27  OFFENSE NOT DEFINED IN THIS ARTICLE WHICH OCCURRED DURING THE SAME TRAN-
   28  SACTION  OR  OCCURRENCE  AS  THE  OFFENSE  COMMITTED IN VIOLATION OF THE
   29  PROVISIONS OF THIS ARTICLE.
   30    S 3. This act shall take effect on the first of November next succeed-
   31  ing the date on which it shall have become a law.