S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3535
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   February 5, 2013
                                      ___________
       Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
         and when printed to be committed to the Committee on Codes
       AN ACT to amend the penal law, the criminal procedure law,  the  vehicle
         and  traffic  law,  the  estates, powers and trusts law and the social
         services law, in relation to establishing the offenses  of  aggravated
         murder  of  a  child, aggravated abuse of a child in the third degree,
         aggravated abuse of a child in the second degree, aggravated abuse  of
         a  child  in  the  first  degree,  aggravated manslaughter of a child,
         aggravated  endangering  the  welfare  of  a  child,  and   aggravated
         manslaughter of a child; and to repeal subdivision 5 of section 125.25
         of  the penal law relating to the murder of a person under 14 years of
         age while in the course of committing certain sex offenses
         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  the "child protection act of 2013".
    3    S 2. Section 10.00 of the penal law  is  amended  by  adding  two  new
    4  subdivisions 22 and 23 to read as follows:
    5    22.  "PERSON  IN  A POSITION OF TRUST" MEANS ANY PERSON WHO IS CHARGED
    6  WITH ANY DUTY OR RESPONSIBILITY  FOR  THE  HEALTH,  EDUCATION,  WELFARE,
    7  SUPERVISION  OR  CARE OF ANOTHER PERSON, EITHER INDEPENDENTLY OR THROUGH
    8  ANOTHER PERSON, NO MATTER HOW BRIEF.
    9    23. "CHILD ABUSE OFFENSE" MEANS:
   10    (A) PATRONIZING A PROSTITUTE  IN  THE  SECOND  DEGREE  AS  DEFINED  IN
   11  SECTION  230.05; PATRONIZING A PROSTITUTE IN THE FIRST DEGREE AS DEFINED
   12  IN SECTION 230.06;  PROMOTING  PROSTITUTION  IN  THE  SECOND  DEGREE  AS
   13  DEFINED  IN SUBDIVISION TWO OF SECTION 230.30; PROMOTING PROSTITUTION IN
   14  THE FIRST DEGREE AS DEFINED IN SECTION  230.32;  DISSEMINATING  INDECENT
   15  MATERIALS  TO  MINORS IN THE SECOND DEGREE AS DEFINED IN SECTION 235.21;
   16  DISSEMINATING INDECENT MATERIALS  TO  MINORS  IN  THE  FIRST  DEGREE  AS
   17  DEFINED  IN SECTION 235.22; ABANDONMENT OF A CHILD AS DEFINED IN SECTION
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04667-02-3
       S. 3535                             2
    1  260.00; NON-SUPPORT OF A CHILD  IN  THE  SECOND  DEGREE  AS  DEFINED  IN
    2  SECTION 260.05; NON-SUPPORT OF A CHILD IN THE FIRST DEGREE AS DEFINED IN
    3  SECTION 260.06; ENDANGERING THE WELFARE OF A CHILD AS DEFINED IN SECTION
    4  260.10;  AGGRAVATED  ENDANGERING  THE  WELFARE  OF A CHILD AS DEFINED IN
    5  SECTION 260.09; UNLAWFULLY DEALING WITH A CHILD IN THE FIRST  DEGREE  AS
    6  DEFINED IN SECTION 260.20; UNLAWFULLY DEALING WITH A CHILD IN THE SECOND
    7  DEGREE  AS  DEFINED  IN SECTION 260.21; OR AN OFFENSE DEFINED IN ARTICLE
    8  TWO HUNDRED SIXTY-THREE OF THIS CHAPTER; OR
    9    (B) AN OFFENSE DEFINED IN ARTICLE  ONE  HUNDRED  TWENTY,  ONE  HUNDRED
   10  TWENTY-FIVE, ONE HUNDRED THIRTY OR ONE HUNDRED THIRTY-FIVE OF THIS CHAP-
   11  TER  PROVIDED  THE VICTIM OF SUCH OFFENSE IS LESS THAN FOURTEEN YEARS OF
   12  AGE; OR
   13    (C) AN ATTEMPT TO COMMIT AN OFFENSE LISTED IN PARAGRAPH (A) OR (B)  OF
   14  THIS SUBDIVISION; OR
   15    (D)  AN  OFFENSE  IN  ANY OTHER JURISDICTION WHICH INCLUDES ALL OF THE
   16  ESSENTIAL ELEMENTS OF ANY SUCH CRIME LISTED IN PARAGRAPH (A), (B) OR (C)
   17  OF THIS SUBDIVISION.
   18    S 3. Section 60.06 of the penal law, as amended by chapter 482 of  the
   19  laws of 2009, is amended to read as follows:
   20  S 60.06 Authorized  disposition;  murder  in the first degree offenders;
   21            aggravated murder offenders;  AGGRAVATED  MURDER  OF  A  CHILD
   22            OFFENDERS;  certain  murder  in  the  second degree offenders;
   23            certain terrorism offenders; criminal possession of a chemical
   24            weapon or biological weapon offenders; criminal use of a chem-
   25            ical weapon or biological weapon offenders.
   26    When a defendant is convicted of murder in the first degree as defined
   27  in section 125.27 of this chapter, the court shall, in  accordance  with
   28  the provisions of section 400.27 of the criminal procedure law, sentence
   29  the  defendant  to death, to life imprisonment without parole in accord-
   30  ance with subdivision five of section 70.00 of this title, or to a  term
   31  of  imprisonment  for  a  class A-I felony other than a sentence of life
   32  imprisonment without parole, in accordance with subdivisions one through
   33  three of section 70.00 of this title. When a  person  is  convicted  [of
   34  murder  in  the  second degree as defined in subdivision five of section
   35  125.25 of this chapter or] of the crime of aggravated murder as  defined
   36  in  subdivision one of section 125.26 of this chapter OR OF THE CRIME OF
   37  AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THIS  CHAP-
   38  TER, the court shall sentence the defendant to life imprisonment without
   39  parole  in  accordance  with  subdivision  five of section 70.00 of this
   40  title. When a defendant is  convicted  of  the  crime  of  terrorism  as
   41  defined in section 490.25 of this chapter, and the specified offense the
   42  defendant  committed  is a class A-I felony offense, or when a defendant
   43  is convicted of the crime of criminal possession of a chemical weapon or
   44  biological weapon in the first degree as defined in  section  490.45  of
   45  this  chapter, or when a defendant is convicted of the crime of criminal
   46  use of a chemical weapon or biological weapon in  the  first  degree  as
   47  defined  in section 490.55 of this chapter, the court shall sentence the
   48  defendant to life imprisonment without parole in accordance with  subdi-
   49  vision  five  of  section  70.00  of this title; provided, however, that
   50  nothing in this section shall preclude or prevent a  sentence  of  death
   51  when  the  defendant  is also convicted of murder in the first degree as
   52  defined in section 125.27 of this chapter. When a defendant is convicted
   53  of aggravated murder as defined in subdivision two of section 125.26  of
   54  this  chapter,  the court shall sentence the defendant to life imprison-
   55  ment without parole or to a term of imprisonment for a class A-I  felony
       S. 3535                             3
    1  other than a sentence of life imprisonment without parole, in accordance
    2  with subdivisions one through three of section 70.00 of this title.
    3    S  4.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
    4  70.00 of the penal law, as amended by chapter 107 of the laws  of  2006,
    5  is amended to read as follows:
    6    (i) For a class A-I felony, such minimum period shall not be less than
    7  fifteen  years  nor more than twenty-five years; provided, however, that
    8  (A) where a sentence, other than a sentence of death or  life  imprison-
    9  ment  without parole, is imposed upon a defendant convicted of murder in
   10  the first degree as defined in section 125.27 of this chapter such mini-
   11  mum period shall be not less than twenty years nor more than twenty-five
   12  years, and, (B) where a sentence is imposed upon a defendant  [convicted
   13  of murder in the second degree as defined in subdivision five of section
   14  125.25  of this chapter or] convicted of aggravated murder as defined in
   15  section 125.26 of this chapter OR CONVICTED OF AGGRAVATED  MURDER  OF  A
   16  CHILD  AS  DEFINED IN SECTION 125.28 OF THIS CHAPTER, the sentence shall
   17  be life imprisonment without  parole,  and,  (C)  where  a  sentence  is
   18  imposed  upon  a  defendant  convicted  of attempted murder in the first
   19  degree as defined in article one hundred ten of this chapter and subpar-
   20  agraph (i), (ii) or (iii) of paragraph (a) of subdivision one and  para-
   21  graph  (b)  of  subdivision  one  of  section  125.27 of this chapter or
   22  attempted aggravated murder as defined in article  one  hundred  ten  of
   23  this  chapter and section 125.26 of this chapter OR ATTEMPTED AGGRAVATED
   24  MURDER OF A CHILD AS DEFINED IN ARTICLE ONE HUNDRED TEN OF THIS  CHAPTER
   25  AND SECTION 125.28 OF THIS CHAPTER such minimum period shall be not less
   26  than twenty years nor more than forty years.
   27    S  5.  Subdivision  5 of section 70.00 of the penal law, as amended by
   28  chapter 482 of the laws of 2009, is amended to read as follows:
   29    5.  Life  imprisonment  without  parole.  Notwithstanding  any   other
   30  provision  of  law,  a  defendant sentenced to life imprisonment without
   31  parole shall not  be  or  become  eligible  for  parole  or  conditional
   32  release.  For  purposes of commitment and custody, other than parole and
   33  conditional release, such sentence shall be deemed to be  an  indetermi-
   34  nate  sentence.  A defendant may be sentenced to life imprisonment with-
   35  out parole upon conviction for the crime of murder in the  first  degree
   36  as  defined in section 125.27 of this chapter and in accordance with the
   37  procedures provided by law for imposing a sentence  for  such  crime.  A
   38  defendant  must  be  sentenced  to life imprisonment without parole upon
   39  conviction for the crime of terrorism as defined in  section  490.25  of
   40  this  chapter,  where the specified offense the defendant committed is a
   41  class A-I felony; the crime of criminal possession of a chemical  weapon
   42  or biological weapon in the first degree as defined in section 490.45 of
   43  this  chapter;  or  the  crime  of  criminal use of a chemical weapon or
   44  biological weapon in the first degree as defined in  section  490.55  of
   45  this  chapter; provided, however, that nothing in this subdivision shall
   46  preclude or prevent a sentence of  death  when  the  defendant  is  also
   47  convicted  of  the  crime  of  murder  in the first degree as defined in
   48  section 125.27 of this chapter.  A defendant must be sentenced  to  life
   49  imprisonment  without parole upon conviction [for the crime of murder in
   50  the second degree as defined in subdivision five of  section  125.25  of
   51  this chapter or] for the crime of aggravated murder as defined in subdi-
   52  vision  one of section 125.26 of this chapter OR FOR THE CRIME OF AGGRA-
   53  VATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THIS CHAPTER.  A
   54  defendant  may  be  sentenced  to  life imprisonment without parole upon
   55  conviction for the crime of aggravated murder as defined in  subdivision
   56  two of section 125.26 of this chapter.
       S. 3535                             4
    1    S  6. Paragraphs (a), (b) and (c) 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 paragraphs (b) and (c) as amended by chapter 1 of the laws of
    4  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, AGGRAVATED MANSLAUGHT-
   11  ER  OF A CHILD AS DEFINED IN SECTION 125.23, rape in the first degree as
   12  defined in section 130.35, criminal sexual act in the  first  degree  as
   13  defined  in  section 130.50, aggravated sexual abuse in the first degree
   14  as defined in section 130.70, course of sexual conduct against  a  child
   15  in  the  first degree as defined in section 130.75; assault in the first
   16  degree as defined in section 120.10, kidnapping in the second degree  as
   17  defined  in  section  135.20, burglary in the first degree as defined in
   18  section 140.30, arson in the second degree as defined in section 150.15,
   19  robbery in the first degree as defined in section 160.15, incest in  the
   20  first  degree  as  defined  in  section 255.27, criminal possession of a
   21  weapon in the first degree as defined in section 265.04, criminal use of
   22  a firearm in the first degree as defined  in  section  265.09,  criminal
   23  sale  of  a  firearm  in  the first degree as defined in section 265.13,
   24  aggravated assault upon a police officer or a peace officer  as  defined
   25  in  section  120.11,  gang  assault  in  the  first degree as defined in
   26  section 120.07, intimidating a victim or witness in the first degree  as
   27  defined  in  section  215.17,  hindering prosecution of terrorism in the
   28  first degree as defined in section  490.35,  criminal  possession  of  a
   29  chemical  weapon or biological weapon in the second degree as defined in
   30  section 490.40, and criminal use of  a  chemical  weapon  or  biological
   31  weapon in the third degree as defined in section 490.47.
   32    (b)  Class  C violent felony offenses: an attempt to commit any of the
   33  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
   34  vated criminally negligent homicide as defined in section 125.11, aggra-
   35  vated  manslaughter  in  the second degree as defined in section 125.21,
   36  aggravated sexual abuse in the  second  degree  as  defined  in  section
   37  130.67, assault on a peace officer, police officer, fireman or emergency
   38  medical services professional as defined in section 120.08, assault on a
   39  judge as defined in section 120.09, gang assault in the second degree as
   40  defined  in  section  120.06,  AGGRAVATED  ABUSE OF A CHILD IN THE FIRST
   41  DEGREE AS DEFINED IN SECTION 120.09-B, strangulation in the first degree
   42  as defined in section 121.13, burglary in the second degree  as  defined
   43  in  section  140.25,  robbery in the second degree as defined in section
   44  160.10, criminal possession of a weapon in the second degree as  defined
   45  in  section  265.03,  criminal  use of a firearm in the second degree as
   46  defined in section 265.08, criminal sale of  a  firearm  in  the  second
   47  degree as defined in section 265.12, criminal sale of a firearm with the
   48  aid  of  a  minor  as  defined  in  section  265.14, aggravated criminal
   49  possession of a weapon as  defined  in  section  265.19,  soliciting  or
   50  providing support for an act of terrorism in the first degree as defined
   51  in  section  490.15,  hindering  prosecution  of terrorism in the second
   52  degree as defined in section 490.30, and criminal possession of a chemi-
   53  cal weapon or biological weapon  in  the  third  degree  as  defined  in
   54  section 490.37.
   55    (c)  Class  D violent felony offenses: an attempt to commit any of the
   56  class C felonies set forth in paragraph (b); reckless assault of a child
       S. 3535                             5
    1  as defined in section 120.02, assault in the second degree as defined in
    2  section 120.05, AGGRAVATED ABUSE OF A CHILD  IN  THE  SECOND  DEGREE  AS
    3  DEFINED  IN SECTION 120.09-A, menacing a police officer or peace officer
    4  as  defined  in section 120.18, stalking in the first degree, as defined
    5  in subdivision one of section 120.60, strangulation in the second degree
    6  as defined in section 121.12, rape in the second degree  as  defined  in
    7  section  130.30,  criminal sexual act in the second degree as defined in
    8  section 130.45, sexual abuse in the first degree as defined  in  section
    9  130.65, course of sexual conduct against a child in the second degree as
   10  defined  in  section 130.80, aggravated sexual abuse in the third degree
   11  as defined  in  section  130.66,  facilitating  a  sex  offense  with  a
   12  controlled  substance  as defined in section 130.90, criminal possession
   13  of a weapon in the third degree as defined  in  subdivision  five,  six,
   14  seven,  eight, nine or ten of section 265.02, criminal sale of a firearm
   15  in the third degree as defined in section 265.11, intimidating a  victim
   16  or witness in the second degree as defined in section 215.16, soliciting
   17  or  providing  support  for  an act of terrorism in the second degree as
   18  defined in section 490.10, and making a terroristic threat as defined in
   19  section 490.20, falsely reporting an incident in  the  first  degree  as
   20  defined  in  section 240.60, placing a false bomb or hazardous substance
   21  in the first degree as defined in section 240.62, placing a  false  bomb
   22  or hazardous substance in a sports stadium or arena, mass transportation
   23  facility  or  enclosed  shopping  mall as defined in section 240.63, and
   24  aggravated unpermitted use of indoor pyrotechnics in the first degree as
   25  defined in section 405.18.
   26    S 7. Subdivision 1 of section 110.05 of the penal law, as  amended  by
   27  chapter 93 of the laws of 2006, is amended to read as follows:
   28    1.  Class  A-I  felony  when  the crime attempted is the A-I felony of
   29  murder in the first degree, aggravated murder as defined in  subdivision
   30  one  of  section  125.26  of this chapter, AGGRAVATED MURDER OF A CHILD,
   31  criminal possession of a controlled substance in the first degree, crim-
   32  inal sale of a  controlled  substance  in  the  first  degree,  criminal
   33  possession  of  a  chemical  or biological weapon in the first degree or
   34  criminal use of a chemical or biological weapon in the first degree;
   35    S 8. Section 120.01 of the penal law, as added by chapter 600  of  the
   36  laws of 1998, is amended to read as follows:
   37  S 120.01 [Reckless  assault] AGGRAVATED ABUSE of a child [by a child day
   38             care provider] IN THE THIRD DEGREE.
   39    A person is guilty of [reckless assault] AGGRAVATED ABUSE of  a  child
   40  IN THE THIRD DEGREE when, being [a child day care provider or an employ-
   41  ee  thereof] EIGHTEEN YEARS OLD OR MORE, AND BEING A PARENT, GUARDIAN OR
   42  OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
   43  FOR THE CARE OF, A CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON
   44  IN A POSITION OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS  OLD,  he  or
   45  she recklessly causes [serious] physical injury to [a] SUCH child [under
   46  the  care  of such provider or employee who is less than eleven years of
   47  age].
   48    [Reckless assault] AGGRAVATED ABUSE of a child [by a  child  day  care
   49  provider] IN THE THIRD DEGREE is a class E felony.
   50    S  9. The penal law is amended by adding two new sections 120.09-a and
   51  120.09-b to read as follows:
   52  S 120.09-A AGGRAVATED ABUSE OF A CHILD IN THE SECOND DEGREE.
   53    A PERSON IS GUILTY OF AGGRAVATED ABUSE OF A CHILD IN THE SECOND DEGREE
   54  WHEN BEING EIGHTEEN YEARS OLD OR MORE, AND BEING A PARENT,  GUARDIAN  OR
   55  OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
   56  FOR THE CARE OF, A CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON
       S. 3535                             6
    1  IN  A  POSITION  OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS OLD, HE OR
    2  SHE:
    3    1.  WITH  INTENT  TO  CAUSE  PHYSICAL INJURY TO ANOTHER PERSON, CAUSES
    4  PHYSICAL INJURY TO SUCH CHILD; OR
    5    2. RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF SERIOUS
    6  PHYSICAL INJURY OR DEATH TO SUCH CHILD AND THEREBY CAUSES SERIOUS  PHYS-
    7  ICAL INJURY TO SUCH CHILD; OR
    8    3.  COMMITS  THE  CRIME  OF  AGGRAVATED  ABUSE OF A CHILD IN THE THIRD
    9  DEGREE AS DEFINED IN SECTION 120.01 OF THIS ARTICLE AND  PREVIOUSLY  HAS
   10  BEEN CONVICTED OF A CHILD ABUSE OFFENSE.
   11    AGGRAVATED ABUSE OF A CHILD IN THE SECOND DEGREE IS A CLASS D FELONY.
   12  S 120.09-B AGGRAVATED ABUSE OF A CHILD IN THE FIRST DEGREE.
   13    A  PERSON IS GUILTY OF AGGRAVATED ABUSE OF A CHILD IN THE FIRST DEGREE
   14  WHEN BEING EIGHTEEN YEARS OLD OR MORE, AND BEING A PARENT,  GUARDIAN  OR
   15  OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
   16  FOR THE CARE OF, A CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON
   17  IN  A  POSITION  OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS OLD, HE OR
   18  SHE:
   19    1. WITH INTENT TO CAUSE SERIOUS PHYSICAL  INJURY  TO  ANOTHER  PERSON,
   20  CAUSES SERIOUS PHYSICAL INJURY TO SUCH CHILD; OR
   21    2.  RECKLESSLY  ENGAGES  IN  VIOLENT SHAKING OF SUCH CHILD AND THEREBY
   22  CAUSES SERIOUS PHYSICAL INJURY TO SUCH CHILD AND SUCH CHILD IS LESS THAN
   23  FIVE YEARS OLD; OR
   24    3. RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF SERIOUS
   25  PHYSICAL INJURY OR DEATH TO SUCH CHILD AND THEREBY CAUSES SERIOUS  PHYS-
   26  ICAL INJURY TO SUCH CHILD, AND:
   27    (A) HAS PREVIOUSLY BEEN CONVICTED OF A CHILD ABUSE OFFENSE; OR
   28    (B)  AS  PART  OF  THE SAME TRANSACTION, RECKLESSLY ENGAGES IN CONDUCT
   29  WHICH CREATES A GRAVE RISK OF SERIOUS PHYSICAL INJURY OR DEATH TO ANOTH-
   30  ER CHILD LESS THAN FOURTEEN YEARS OLD AND THEREBY CAUSES  SERIOUS  PHYS-
   31  ICAL INJURY TO SUCH OTHER CHILD; OR
   32    (C)  CAUSES  SUCH  INJURY  BY  MEANS  OF  A DEADLY WEAPON OR DANGEROUS
   33  INSTRUMENT; OR
   34    (D) ON AT LEAST ONE OTHER  OCCASION,  RECKLESSLY  ENGAGED  IN  CONDUCT
   35  WHICH  CREATED  A  GRAVE  RISK  OF SERIOUS PHYSICAL INJURY OR DEATH TO A
   36  CHILD LESS THAN FOURTEEN YEARS OLD AND THEREBY CAUSED  SERIOUS  PHYSICAL
   37  INJURY TO SUCH CHILD.
   38    AGGRAVATED ABUSE OF A CHILD IN THE FIRST DEGREE IS A CLASS C FELONY.
   39    S  10.  The penal law is amended by adding two new sections 125.23 and
   40  125.28 to read as follows:
   41  S 125.23 AGGRAVATED MANSLAUGHTER OF A CHILD.
   42    A PERSON IS GUILTY OF AGGRAVATED MANSLAUGHTER OF A CHILD  WHEN,  BEING
   43  EIGHTEEN YEARS OLD OR MORE, AND BEING A PARENT, GUARDIAN OR OTHER PERSON
   44  LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE FOR THE CARE
   45  OF,  A  CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON IN A POSI-
   46  TION OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS OLD, HE OR  SHE  RECK-
   47  LESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF SERIOUS PHYSICAL
   48  INJURY  OR  DEATH  TO  SUCH  CHILD  AND THEREBY CAUSES THE DEATH OF SUCH
   49  CHILD.
   50    AGGRAVATED MANSLAUGHTER OF A CHILD IS A CLASS B FELONY.
   51  S 125.28 AGGRAVATED MURDER OF A CHILD.
   52    A PERSON IS GUILTY OF AGGRAVATED MURDER OF A CHILD WHEN:
   53    1. WITH INTENT TO CAUSE THE DEATH OF A CHILD LESS THAN FOURTEEN  YEARS
   54  OLD, AND BEING EIGHTEEN YEARS OLD OR MORE, AND BEING THE PARENT, GUARDI-
   55  AN  OR  OTHER  PERSON  LEGALLY  CHARGED  WITH THE CUSTODY OF, OR LEGALLY
   56  RESPONSIBLE FOR THE CARE OF, SUCH CHILD, OR BEING A PERSON IN A POSITION
       S. 3535                             7
    1  OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS OLD, HE OR SHE  CAUSES  THE
    2  DEATH OF SUCH CHILD; OR
    3    2. UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE,
    4  AND  BEING EIGHTEEN YEARS OLD OR MORE, AND BEING THE PARENT, GUARDIAN OR
    5  OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
    6  FOR THE CARE OF, A CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON
    7  IN A POSITION OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS  OLD,  HE  OR
    8  SHE  RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF SERIOUS
    9  PHYSICAL INJURY OR DEATH TO SUCH CHILD AND THEREBY CAUSES THE  DEATH  OF
   10  SUCH CHILD; OR
   11    3. BEING EIGHTEEN YEARS OLD OR MORE, WHILE IN THE COURSE OF COMMITTING
   12  RAPE  IN  THE  FIRST, SECOND OR THIRD DEGREE, CRIMINAL SEXUAL ACT IN THE
   13  FIRST, SECOND OR THIRD DEGREE, AGGRAVATED SEXUAL  ABUSE  IN  THE  FIRST,
   14  SECOND,  THIRD  OR  FOURTH  DEGREE,  OR INCEST AGAINST A CHILD LESS THAN
   15  FOURTEEN YEARS OLD, HE OR SHE INTENTIONALLY CAUSES  THE  DEATH  OF  SUCH
   16  CHILD.
   17    AGGRAVATED MURDER OF A CHILD IS A CLASS A-I FELONY.
   18    S  11. Subdivision 4 of section 125.25 of the penal law, as amended by
   19  chapter 459 of the laws of 2004, is amended to read as follows:
   20    4. Under circumstances evincing a depraved indifference to human life,
   21  and being eighteen years old or more the defendant recklessly engages in
   22  conduct which creates a grave risk of serious physical injury  or  death
   23  to  another  person  less  than  eleven years old and thereby causes the
   24  death of such person[; or].
   25    S 12. Subdivision 5 of section 125.25 of the penal law is REPEALED.
   26    S 13. Subparagraph (ix) of paragraph (a) of subdivision 1  of  section
   27  125.27  of  the penal law, as added by chapter 1 of the laws of 1995, is
   28  amended to read as follows:
   29    (ix) prior to committing the killing, the defendant had been convicted
   30  of murder as defined in this section or section 125.25 of  this  article
   31  OR  CONVICTED  OF  AGGRAVATED  MURDER  OF  A CHILD AS DEFINED IN SECTION
   32  125.28 OF THIS ARTICLE, or had been convicted in another jurisdiction of
   33  an offense which,  if  committed  in  this  state,  would  constitute  a
   34  violation of [either of such] THE AFOREMENTIONED sections; or
   35    S  14. The penal law is amended by adding a new section 260.09 to read
   36  as follows:
   37  S 260.09 AGGRAVATED ENDANGERING THE WELFARE OF A CHILD.
   38    A PERSON IS GUILTY OF AGGRAVATED ENDANGERING THE WELFARE  OF  A  CHILD
   39  WHEN,  BEING EIGHTEEN YEARS OLD OR MORE, AND BEING A PARENT, GUARDIAN OR
   40  OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
   41  FOR THE CARE OF, A CHILD LESS THAN FOURTEEN YEARS OLD, OR BEING A PERSON
   42  IN A POSITION OF TRUST OF A CHILD LESS THAN FOURTEEN YEARS  OLD,  HE  OR
   43  SHE  KNOWINGLY  ACTS IN A MANNER LIKELY TO BE INJURIOUS TO THE PHYSICAL,
   44  MENTAL OR MORAL WELFARE OF SUCH CHILD, AND:
   45    1. PREVIOUSLY HAS BEEN CONVICTED OF A CHILD ABUSE OFFENSE; OR
   46    2. SUCH CONDUCT CONSISTS OF TWO OR MORE ACTS OF CRUELTY  AGAINST  SUCH
   47  CHILD.  FOR  PURPOSES OF THIS SUBDIVISION, "CRUELTY" MEANS CONDUCT WHICH
   48  (A) CAUSES EXTREME PHYSICAL PAIN, OR (B) WHICH  IS  CARRIED  OUT  IN  AN
   49  ESPECIALLY VICIOUS OR SADISTIC MANNER.
   50    AGGRAVATED ENDANGERING THE WELFARE OF A CHILD IS A CLASS E FELONY.
   51    S  15. Paragraph (a) of subdivision 3 of section 30.30 of the criminal
   52  procedure law, as amended by chapter 93 of the laws of 2006, is  amended
   53  to read as follows:
   54    (a) Subdivisions one and two do not apply to a criminal action wherein
   55  the  defendant  is  accused  of  an  offense defined in sections 125.10,
       S. 3535                             8
    1  125.15, 125.20, 125.25, 125.26 [and], 125.27 AND  125.28  of  the  penal
    2  law.
    3    S  16.  Subdivision 1 of section 180.85 of the criminal procedure law,
    4  as amended by chapter 93 of the laws of 2006,  is  amended  to  read  as
    5  follows:
    6    1.  After  arraignment  of  a defendant upon a felony complaint, other
    7  than a felony complaint charging an offense defined in  section  125.10,
    8  125.15,  125.20,  125.23,  125.25,  125.26 [or], 125.27 OR 125.28 of the
    9  penal law, either party or the local criminal court  or  superior  court
   10  before  which  the  action  is  pending,  on its own motion, may move in
   11  accordance with the provisions of this section for an order  terminating
   12  prosecution of the charges contained in such felony complaint on consent
   13  of the parties.
   14    S 17. Paragraph (h) of subdivision 3 of section 190.25 of the criminal
   15  procedure law, as amended by chapter 405 of the laws of 2010, is amended
   16  to read as follows:
   17    (h)  A  social  worker,  rape  crisis counselor, psychologist or other
   18  professional providing emotional support to a child witness twelve years
   19  old or younger who is called to give evidence in a grand jury proceeding
   20  concerning a crime defined in article one  hundred  twenty-one,  article
   21  one hundred thirty, article two hundred sixty, section 120.01, 120.09-A,
   22  120.09-B,  120.10,  125.10,  125.15,  125.20,  125.23,  125.25,  125.26,
   23  125.27, 125.28, 255.25, 255.26 [or], 255.27 OR 260.09 of the  penal  law
   24  provided  that the district attorney consents. Such support person shall
   25  not provide the witness with an answer  to  any  question  or  otherwise
   26  participate  in  such proceeding and shall first take an oath before the
   27  grand jury that he or she will keep secret all matters before such grand
   28  jury within his or her knowledge.
   29    S 18. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
   30  procedure law, as amended by chapter 405 of the laws of 2010, is amended
   31  to read as follows:
   32    (b) Any of the following felonies: assault in  the  second  degree  as
   33  defined  in section 120.05 of the penal law, AGGRAVATED ABUSE OF A CHILD
   34  IN THE THIRD DEGREE AS DEFINED IN  SECTION  120.01  OF  THE  PENAL  LAW,
   35  AGGRAVATED  ABUSE  OF A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION
   36  120.09-A OF THE PENAL LAW, AGGRAVATED ABUSE OF  A  CHILD  IN  THE  FIRST
   37  DEGREE  AS  DEFINED IN SECTION 120.09-B OF THE PENAL LAW, assault in the
   38  first degree as defined in section 120.10 of  the  penal  law,  reckless
   39  endangerment  in  the  first  degree as defined in section 120.25 of the
   40  penal law, promoting a suicide attempt as defined in section  120.30  of
   41  the  penal law, strangulation in the second degree as defined in section
   42  121.12 of the penal law, strangulation in the first degree as defined in
   43  section 121.13 of  the  penal  law,  criminally  negligent  homicide  as
   44  defined  in  section 125.10 of the penal law, manslaughter in the second
   45  degree as defined in section 125.15 of the penal  law,  manslaughter  in
   46  the  first  degree as defined in section 125.20 of the penal law, AGGRA-
   47  VATED MANSLAUGHTER OF A CHILD AS DEFINED IN SECTION 125.23 OF THE  PENAL
   48  LAW,  murder  in  the  second degree as defined in section 125.25 of the
   49  penal law, murder in the first degree as defined in  section  125.27  of
   50  the penal law, AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28
   51  OF  THE  PENAL  LAW, abortion in the second degree as defined in section
   52  125.40 of the penal law, abortion in the  first  degree  as  defined  in
   53  section  125.45 of the penal law, rape in the third degree as defined in
   54  section 130.25 of the penal law, rape in the second degree as defined in
   55  section 130.30 of the penal law, rape in the first degree as defined  in
   56  section 130.35 of the penal law, criminal sexual act in the third degree
       S. 3535                             9
    1  as  defined  in  section 130.40 of the penal law, criminal sexual act in
    2  the second degree as defined in section 130.45 of the penal law,  crimi-
    3  nal  sexual  act in the first degree as defined in section 130.50 of the
    4  penal law, sexual abuse in the first degree as defined in section 130.65
    5  of  the  penal law, unlawful imprisonment in the first degree as defined
    6  in section 135.10 of the penal law, kidnapping in the second  degree  as
    7  defined  in  section  135.20  of  the penal law, kidnapping in the first
    8  degree as defined in section 135.25 of the penal law, labor  trafficking
    9  as defined in section 135.35 of the penal law, custodial interference in
   10  the first degree as defined in section 135.50 of the penal law, coercion
   11  in the first degree as defined in section 135.65 of the penal law, crim-
   12  inal  trespass  in  the first degree as defined in section 140.17 of the
   13  penal law, burglary in the third degree as defined in section 140.20  of
   14  the  penal  law,  burglary  in  the  second degree as defined in section
   15  140.25 of the penal law, burglary in the  first  degree  as  defined  in
   16  section  140.30  of the penal law, criminal mischief in the third degree
   17  as defined in section 145.05 of the penal law, criminal mischief in  the
   18  second  degree  as  defined in section 145.10 of the penal law, criminal
   19  mischief in the first degree as defined in section 145.12 of  the  penal
   20  law, criminal tampering in the first degree as defined in section 145.20
   21  of  the  penal  law,  arson  in  the fourth degree as defined in section
   22  150.05 of the penal law, arson in the third degree as defined in section
   23  150.10 of the penal law, arson  in  the  second  degree  as  defined  in
   24  section 150.15 of the penal law, arson in the first degree as defined in
   25  section  150.20  of the penal law, grand larceny in the fourth degree as
   26  defined in section 155.30 of the penal law, grand larceny in  the  third
   27  degree  as  defined in section 155.35 of the penal law, grand larceny in
   28  the second degree as defined in section 155.40 of the penal  law,  grand
   29  larceny  in  the  first degree as defined in section 155.42 of the penal
   30  law, health care fraud in the fourth degree as defined in section 177.10
   31  of the penal law, health care fraud in the third degree  as  defined  in
   32  section  177.15 of the penal law, health care fraud in the second degree
   33  as defined in section 177.20 of the penal law, health care fraud in  the
   34  first  degree  as defined in section 177.25 of the penal law, robbery in
   35  the third degree as defined in section 160.05 of the penal law,  robbery
   36  in  the  second  degree  as  defined in section 160.10 of the penal law,
   37  robbery in the first degree as defined in section 160.15  of  the  penal
   38  law,  unlawful  use  of secret scientific material as defined in section
   39  165.07 of the penal law, criminal possession of stolen property  in  the
   40  fourth  degree  as  defined in section 165.45 of the penal law, criminal
   41  possession of stolen property in the third degree as defined in  section
   42  165.50  of  the penal law, criminal possession of stolen property in the
   43  second degree as defined by section 165.52 of the  penal  law,  criminal
   44  possession  of stolen property in the first degree as defined by section
   45  165.54 of the penal law, trademark counterfeiting in the  second  degree
   46  as  defined in section 165.72 of the penal law, trademark counterfeiting
   47  in the first degree as defined in  section  165.73  of  the  penal  law,
   48  forgery  in  the second degree as defined in section 170.10 of the penal
   49  law, forgery in the first degree as defined in  section  170.15  of  the
   50  penal  law,  criminal  possession  of  a forged instrument in the second
   51  degree  as  defined  in  section  170.25  of  the  penal  law,  criminal
   52  possession  of  a  forged  instrument  in the first degree as defined in
   53  section 170.30 of the penal law, criminal possession of forgery  devices
   54  as  defined  in  section  170.40  of  the penal law, falsifying business
   55  records in the first degree as defined in section 175.10  of  the  penal
   56  law,  tampering  with  public  records in the first degree as defined in
       S. 3535                            10
    1  section 175.25 of the penal law, offering a false instrument for  filing
    2  in the first degree as defined in section 175.35 of the penal law, issu-
    3  ing  a  false certificate as defined in section 175.40 of the penal law,
    4  criminal  diversion of prescription medications and prescriptions in the
    5  second degree as defined in section 178.20 of the  penal  law,  criminal
    6  diversion  of  prescription  medications  and prescriptions in the first
    7  degree as defined in section 178.25 of the penal law, residential  mort-
    8  gage  fraud  in  the  fourth  degree as defined in section 187.10 of the
    9  penal law, residential mortgage fraud in the third degree as defined  in
   10  section  187.15  of  the  penal  law,  residential mortgage fraud in the
   11  second degree as defined in section 187.20 of the penal law, residential
   12  mortgage fraud in the first degree as defined in section 187.25  of  the
   13  penal  law,  escape in the second degree as defined in section 205.10 of
   14  the penal law, escape in the first degree as defined in  section  205.15
   15  of  the penal law, absconding from temporary release in the first degree
   16  as defined in section 205.17 of the penal law, promoting prison  contra-
   17  band  in the first degree as defined in section 205.25 of the penal law,
   18  hindering prosecution in the second degree as defined in section  205.60
   19  of  the  penal law, hindering prosecution in the first degree as defined
   20  in section 205.65 of the  penal  law,  sex  trafficking  as  defined  in
   21  section  230.34 of the penal law, criminal possession of a weapon in the
   22  third degree as defined in subdivisions two, three and five  of  section
   23  265.02  of  the penal law, criminal possession of a weapon in the second
   24  degree  as  defined  in  section  265.03  of  the  penal  law,  criminal
   25  possession  of a weapon in the first degree as defined in section 265.04
   26  of the penal law, manufacture, transport, disposition and defacement  of
   27  weapons  and dangerous instruments and appliances defined as felonies in
   28  subdivisions one, two, and three of section 265.10  of  the  penal  law,
   29  sections  265.11,  265.12 and 265.13 of the penal law, or prohibited use
   30  of weapons as defined in subdivision two of section 265.35 of the  penal
   31  law,  relating  to  firearms  and other dangerous weapons, or failure to
   32  disclose the origin of a recording in the first  degree  as  defined  in
   33  section 275.40 of the penal law;
   34    S  19. Paragraph (a) of subdivision 4 of section 509-cc of the vehicle
   35  and traffic law, as amended by chapter 400  of  the  laws  of  2011,  is
   36  amended to read as follows:
   37    (a)  The offenses referred to in subparagraph (ii) of paragraph (a) of
   38  subdivision one and paragraph (a) of subdivision  two  of  this  section
   39  that  result  in  permanent  disqualification shall include a conviction
   40  under sections 125.12, 125.13, 125.14, 125.15, 125.20,  125.21,  125.22,
   41  125.25,  125.26, 125.27, 130.30, 130.35, 130.45, 130.50, 130.65, 130.66,
   42  130.67, 130.70, 130.75, 130.80, 130.90, 130.95, 130.96, 135.25,  150.20,
   43  230.30,  230.32,  230.34, 235.22, 263.05, 263.10, 263.11, 263.15, 263.16
   44  of the penal law or an attempt to commit any of the  aforesaid  offenses
   45  under  section  110.00  of  the  penal  law, OR A CHILD ABUSE OFFENSE AS
   46  DEFINED IN SUBDIVISION TWENTY-THREE OF SECTION 10.00 OF THE  PENAL  LAW,
   47  or  any offenses committed under a former section of the penal law which
   48  would constitute violations of the aforesaid sections of the penal  law,
   49  or  any  offenses  committed  outside  this state which would constitute
   50  violations of the aforesaid sections of the penal law.
   51    S 20. Section 4-1.6 of the estates, powers and trusts law, as added by
   52  chapter 481 of the laws of 1994, is amended to read as follows:
   53  S 4-1.6 Disqualification of joint tenant in certain instances
   54    Notwithstanding any other provision of law to the  contrary,  a  joint
   55  tenant  convicted  of  murder in the second degree as defined in section
   56  125.25 of the penal law or murder in the  first  degree  as  defined  in
       S. 3535                            11
    1  section  125.27  of  the  penal  law  OR AGGRAVATED MURDER OF A CHILD AS
    2  DEFINED IN SECTION 125.28 OF THE PENAL LAW of another joint tenant shall
    3  not be entitled to the distribution  of  any  monies  in  a  joint  bank
    4  account  created  or contributed to by the deceased joint tenant, except
    5  for those monies contributed by the convicted joint tenant.
    6    Upon the conviction of such joint tenant of  first  or  second  degree
    7  murder  and  upon application by the prosecuting attorney, the court, as
    8  part of its sentence, shall issue an order directing the amount  of  any
    9  joint  bank account to be distributed pursuant to the provisions of this
   10  section from the convicted  joint  tenant  and  to  the  deceased  joint
   11  tenant's  estate. The court and the prosecuting attorney shall each have
   12  the power to subpoena records of a banking institution to determine  the
   13  amount of money in such bank account and by whom deposits were made. The
   14  court  shall also have the power to freeze such account upon application
   15  by the prosecuting attorney during the pendency of a trial for first  or
   16  second degree murder. If, upon receipt of such court orders described in
   17  this  section,  the  banking  institution  holding  monies in such joint
   18  account complies with the terms of the order, such  banking  institution
   19  shall be held free from all liability for the distribution of such funds
   20  as  were in such joint account. In the absence of actual or constructive
   21  notice of such order, the banking institution  holding  monies  in  such
   22  account  shall  be held harmless for distributing the money according to
   23  its ordinary course of business.
   24    For purposes of this section, the term banking institution shall  have
   25  the  same  meaning as provided for in paragraph (b) of subdivision three
   26  of section nine-f of the banking law.
   27    S 21. Subparagraph 2 of paragraph (b)  of  subdivision  3  of  section
   28  358-a  of  the social services law, as added by chapter 7 of the laws of
   29  1999, is amended to read as follows:
   30    (2) the parent of such child has  been  convicted  of  (i)  AGGRAVATED
   31  MANSLAUGHTER  OF  A  CHILD  AS  DEFINED  IN SECTION 125.23 OR AGGRAVATED
   32  MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OR murder  in  the  first
   33  degree  as  defined  in section 125.27 or murder in the second degree as
   34  defined in section 125.25 of the penal law and the  victim  was  another
   35  child of the parent; or (ii) manslaughter in the first degree as defined
   36  in  section  125.20  or  manslaughter in the second degree as defined in
   37  section 125.15 of the penal law and the victim was another child of  the
   38  parent,  provided,  however, that the parent must have acted voluntarily
   39  in committing such crime;
   40    S 22. Clause (A) of subparagraph (iii) of paragraph (a) of subdivision
   41  8 of section 384-b of the social services law, as amended by chapter 460
   42  of the laws of 2006, is amended to read as follows:
   43    (A) the  parent  of  such  child  has  been  convicted  of  AGGRAVATED
   44  MANSLAUGHTER  OF A CHILD AS DEFINED IN SECTION 125.23, AGGRAVATED MURDER
   45  OF A CHILD AS DEFINED IN SECTION 125.28, murder in the first  degree  as
   46  defined  in  section  125.27,  murder in the second degree as defined in
   47  section 125.25, manslaughter in the first degree as defined  in  section
   48  125.20,  or  manslaughter  in  the  second  degree as defined in section
   49  125.15, and the victim of any such crime was another child of the parent
   50  or another child for whose care such  parent  is  or  has  been  legally
   51  responsible as defined in subdivision (g) of section one thousand twelve
   52  of  the  family  court  act,  or another parent of the child, unless the
   53  convicted parent was a victim of physical, sexual or psychological abuse
   54  by the decedent parent and such abuse was a factor in causing the  homi-
   55  cide; or has been convicted of an attempt to commit any of the foregoing
   56  crimes, and the victim or intended victim was the child or another child
       S. 3535                            12
    1  of the parent or another child for whose care such parent is or has been
    2  legally  responsible  as defined in subdivision (g) of section one thou-
    3  sand twelve of the family court act, or another  parent  of  the  child,
    4  unless  the convicted parent was a victim of physical, sexual or psycho-
    5  logical abuse by the decedent parent and such  abuse  was  a  factor  in
    6  causing the attempted homicide;
    7    S  23.  This act shall take effect immediately; provided, however that
    8  the amendments to paragraphs (b) and (c) of  subdivision  1  of  section
    9  70.02 of the penal law made by section six of this act shall take effect
   10  on  the  same  date and in the same manner as section 27 of chapter 1 of
   11  the laws of 2013, as amended, takes effect.