S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        2240--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 15, 2013
                                      ___________
       Introduced by Sens. YOUNG, BONACIC, LARKIN, MAZIARZ, O'MARA, RANZENHOFER
         -- read twice and ordered printed, and when printed to be committed to
         the  Committee on Codes -- committee discharged, bill amended, ordered
         reprinted as amended and recommitted to said committee
       AN ACT to  amend  the  penal  law,  in  relation  to  aggravated  sexual
         offenses;  and  to  amend  the  criminal procedure law, in relation to
         youthful offender status
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Paragraphs  (a),  (b) and (c) of subdivision 1 of section
    2  70.02 of the penal law, paragraph (a) as amended by chapter 320  of  the
    3  laws  of 2006, and paragraphs (b) and (c) as amended by chapter 1 of the
    4  laws of 2013, 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]  SECOND  degree  as  defined in section 130.70, course of sexual
   14  conduct against a child in  the  first  degree  as  defined  in  section
   15  130.75;  assault  in  the  first  degree  as  defined in section 120.10,
   16  kidnapping in the second degree as defined in section  135.20,  burglary
   17  in  the  first  degree as defined in section 140.30, arson in the second
   18  degree as defined in section 150.15, robbery  in  the  first  degree  as
   19  defined  in  section  160.15,  incest  in the first degree as defined in
   20  section 255.27, criminal possession of a weapon in the first  degree  as
   21  defined in section 265.04, criminal use of a firearm in the first degree
   22  as  defined  in  section 265.09, criminal sale of a firearm in the first
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06425-03-3
       S. 2240--A                          2
    1  degree as defined in section 265.13, aggravated assault  upon  a  police
    2  officer or a peace officer as defined in section 120.11, gang assault in
    3  the  first degree as defined in section 120.07, intimidating a victim or
    4  witness  in  the  first  degree  as defined in section 215.17, hindering
    5  prosecution of terrorism in the  first  degree  as  defined  in  section
    6  490.35, criminal possession of a chemical weapon or biological weapon in
    7  the  second  degree  as defined in section 490.40, and criminal use of a
    8  chemical weapon or biological weapon in the third degree as  defined  in
    9  section 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]  THIRD  degree  as  defined  in
   15  section  130.67,  assault on a peace officer, police officer, fireman or
   16  emergency medical services professional as defined  in  section  120.08,
   17  assault  on  a  judge  as defined in section 120.09, gang assault in the
   18  second degree as defined in section 120.06, strangulation in  the  first
   19  degree  as  defined  in section 121.13, burglary in the second degree as
   20  defined in section 140.25, robbery in the second degree  as  defined  in
   21  section  160.10, criminal possession of a weapon in the second degree as
   22  defined in section 265.03, criminal use  of  a  firearm  in  the  second
   23  degree  as  defined in section 265.08, criminal sale of a firearm in the
   24  second degree as defined in section 265.12, criminal sale of  a  firearm
   25  with  the aid of a minor as defined in section 265.14, aggravated crimi-
   26  nal possession of a weapon as defined in section 265.19,  soliciting  or
   27  providing support for an act of terrorism in the first degree as defined
   28  in  section  490.15,  hindering  prosecution  of terrorism in the second
   29  degree as defined in section 490.30, and criminal possession of a chemi-
   30  cal weapon or biological weapon  in  the  third  degree  as  defined  in
   31  section 490.37.
   32    (c)  Class  D violent felony offenses: an attempt to commit any of the
   33  class C felonies set forth in paragraph (b); reckless assault of a child
   34  as defined in section 120.02, assault in the second degree as defined in
   35  section 120.05, menacing a police officer or peace officer as defined in
   36  section 120.18, stalking in the first degree, as defined in  subdivision
   37  one  of section 120.60, strangulation in the second degree as defined in
   38  section 121.12, rape in the second degree as defined in section  130.30,
   39  criminal  sexual  act in the second degree as defined in section 130.45,
   40  sexual abuse in the first degree as defined in section 130.65, course of
   41  sexual conduct against a child  in  the  second  degree  as  defined  in
   42  section  130.80, aggravated sexual abuse in the [third] FOURTH degree as
   43  defined in section 130.66, facilitating a sex offense with a  controlled
   44  substance  as defined in section 130.90, criminal possession of a weapon
   45  in the third degree as defined in subdivision five, six,  seven,  eight,
   46  nine  or  ten of section 265.02, criminal sale of a firearm in the third
   47  degree as defined in section 265.11, intimidating a victim or witness in
   48  the second degree as defined in section 215.16, soliciting or  providing
   49  support  for  an  act  of  terrorism  in the second degree as defined in
   50  section 490.10, and making a terroristic threat as  defined  in  section
   51  490.20,  falsely reporting an incident in the first degree as defined in
   52  section 240.60, placing a false bomb or hazardous substance in the first
   53  degree as defined in section 240.62, placing a false bomb  or  hazardous
   54  substance  in a sports stadium or arena, mass transportation facility or
   55  enclosed shopping mall as defined  in  section  240.63,  and  aggravated
       S. 2240--A                          3
    1  unpermitted use of indoor pyrotechnics in the first degree as defined in
    2  section 405.18.
    3    S  2.  The  penal  law is amended by adding three new sections 130.36,
    4  130.51 and 130.71 to read as follows:
    5  S 130.36 AGGRAVATED RAPE.
    6    A MALE IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN  SEXUAL  INTER-
    7  COURSE  WITH  A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF
    8  THE COMMISSION OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE  OR
    9  ANOTHER PARTICIPANT IN THE CRIME:
   10    1. IS ARMED WITH A DEADLY WEAPON; OR
   11    2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   12    3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
   13  THE CRIME; OR
   14    4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   15    AGGRAVATED RAPE IS A CLASS A-II FELONY.
   16  S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
   17    A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN  HE  OR  SHE
   18  ENGAGES  IN  ORAL  SEXUAL  CONDUCT  OR  ANAL SEXUAL CONDUCT WITH ANOTHER
   19  PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE  COMMISSION
   20  OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
   21  PARTICIPANT IN THE CRIME:
   22    1. IS ARMED WITH A DEADLY WEAPON; OR
   23    2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   24    3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
   25  THE CRIME; OR
   26    4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   27    AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
   28  S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
   29    1.  A  PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
   30  WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA,  URETH-
   31  RA,  PENIS  OR  RECTUM  OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
   32  PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
   33  OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
   34  PARTICIPANT IN THE CRIME:
   35    (A) IS ARMED WITH A DEADLY WEAPON; OR
   36    (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   37    (C)  CAUSES  PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
   38  THE CRIME; OR
   39    (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
   40    2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
   41  PROVISIONS OF THIS SECTION.
   42    AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
   43    S  3.  Section 130.65-a of the penal law, as added by chapter 1 of the
   44  laws of 2000, subdivision 1 as amended by chapter 485  of  the  laws  of
   45  2009, is amended to read as follows:
   46  S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
   47    1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
   48  degree when:
   49    (a)  He or she inserts a foreign object in the vagina, urethra, penis,
   50  rectum or anus of another person and the other person  is  incapable  of
   51  consent  by  reason  of some factor other than being less than seventeen
   52  years old; or
   53    (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
   54  or  anus  of  another  person causing physical injury to such person and
   55  such person is incapable of consent by reason of some factor other  than
   56  being less than seventeen years old.
       S. 2240--A                          4
    1    2.  Conduct performed for a valid medical purpose does not violate the
    2  provisions of this section.
    3    Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
    4  felony.
    5    S 4. Section 130.66 of the penal law, as added by chapter 181  of  the
    6  laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
    7  of  2009,  subdivision 3 as renumbered by chapter 1 of the laws of 2000,
    8  is amended to read as follows:
    9  S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
   10    1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
   11  degree when he or she inserts a foreign object in the  vagina,  urethra,
   12  penis, rectum or anus of another person:
   13    (a) By forcible compulsion; or
   14    (b)  When  the other person is incapable of consent by reason of being
   15  physically helpless; or
   16    (c) When the other person is less than eleven years old.
   17    2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
   18  degree when he or she inserts a foreign object in the  vagina,  urethra,
   19  penis,  rectum or anus of another person causing physical injury to such
   20  person and such person is  incapable  of  consent  by  reason  of  being
   21  mentally disabled or mentally incapacitated.
   22    3.  Conduct performed for a valid medical purpose does not violate the
   23  provisions of this section.
   24    Aggravated sexual abuse in the [third] FOURTH  degree  is  a  class  D
   25  felony.
   26    S  5.  Section 130.67 of the penal law, as added by chapter 450 of the
   27  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
   28  ter 485 of the laws of 2009, is amended to read as follows:
   29  S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
   30    1.  A person is guilty of aggravated  sexual  abuse  in  the  [second]
   31  THIRD  degree  when  he  or she inserts a finger in the vagina, urethra,
   32  penis, rectum or anus of another person causing physical injury to  such
   33  person:
   34    (a) By forcible compulsion; or
   35    (b)  When  the other person is incapable of consent by reason of being
   36  physically helpless; or
   37    (c) When the other person is less than eleven years old.
   38    2. Conduct performed for a valid medical purpose does not violate  the
   39  provisions of this section.
   40    Aggravated  sexual  abuse  in  the  [second] THIRD degree is a class C
   41  felony.
   42    S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
   43  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
   44  ter 485 of the laws of 2009, is amended to read as follows:
   45  S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
   46    1.   A person is guilty of aggravated  sexual  abuse  in  the  [first]
   47  SECOND  degree  when  he  or she inserts a foreign object in the vagina,
   48  urethra, penis, rectum or anus of another person causing physical injury
   49  to such person:
   50    (a) By forcible compulsion; or
   51    (b) When the other person is incapable of consent by reason  of  being
   52  physically helpless; or
   53    (c) When the other person is less than eleven years old.
   54    2.  Conduct performed for a valid medical purpose does not violate the
   55  provisions of this section.
       S. 2240--A                          5
    1    Aggravated sexual abuse in the [first] SECOND  degree  is  a  class  B
    2  felony.
    3    S  7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
    4  law, subdivision 2 as amended by chapter 416 of the laws of 1986,  para-
    5  graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
    6  and  subdivision  3  as  amended by chapter 264 of the laws of 2003, are
    7  amended to read as follows:
    8    2.  "Eligible youth" means a youth who  is  eligible  to  be  found  a
    9  youthful offender.  Every youth is so eligible unless:
   10    (a)  the  conviction  to be replaced by a youthful offender finding is
   11  for (i) a class A-I or class A-II felony, or (ii)  an  armed  felony  as
   12  defined  in subdivision forty-one of section 1.20, except as provided in
   13  subdivision three, or (iii) rape in the first  degree,  criminal  sexual
   14  act  in  the  first  degree,  or  aggravated  sexual abuse IN THE SECOND
   15  DEGREE, except as provided in subdivision three, or
   16    (b) such youth has previously been convicted and sentenced for a felo-
   17  ny, or
   18    (c)  such youth has previously been adjudicated  a  youthful  offender
   19  following  conviction  of  a  felony or has been adjudicated on or after
   20  September first, nineteen hundred seventy-eight  a  juvenile  delinquent
   21  who  committed  a  designated  felony act as defined in the family court
   22  act.
   23    3.  Notwithstanding the provisions of subdivision two, a youth who has
   24  been convicted of an armed felony  offense  or  of  rape  in  the  first
   25  degree,  criminal  sexual  act in the first degree, or aggravated sexual
   26  abuse IN THE SECOND DEGREE is an eligible youth if the court  determines
   27  that one or more of the following factors exist: (i)  mitigating circum-
   28  stances  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.   Where  the
   32  court  determines  that  the  eligible youth is a youthful offender, the
   33  court shall make a statement on the record of the reasons for its deter-
   34  mination, a transcript of which shall be forwarded to the state division
   35  of criminal  justice  services,  to  be  kept  in  accordance  with  the
   36  provisions  of subdivision three of section eight hundred thirty-seven-a
   37  of the executive law.
   38    S 8. This act shall take effect on the first of November next succeed-
   39  ing the date on which it shall have become  a  law;  provided,  however,
   40  that  if  this  act  shall  take  effect  prior to the effective date of
   41  section 27 of chapter 1 of the laws of 2013, then section  one  of  this
   42  act shall take effect on the same date and in the same manner as section
   43  27 of chapter 1 of the laws of 2013 takes effect.