S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        3767--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   February 14, 2013
                                      ___________
       Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes  --  recommitted  to
         the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted to said committee
       AN  ACT  to  amend  the  penal law, in relation to aggravated enterprise
         corruption, gang assault, coercion, tampering with a  witness,  intim-
         idating  a victim or witness, obstructing governmental administration,
         criminal use of  a  firearm,  sexually  motivated  felonies  and  hate
         crimes; to amend the criminal procedure law, in relation to compulsion
         of  evidence  by  offer  of  immunity, prior contradictory statements,
         warrants for eavesdropping  and  video  surveillance  and  motions  to
         suppress  evidence;  and  to  repeal  section  265.08 of the penal law
         relating to criminal use of a firearm in the second degree
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Short  title. This shall be known and may be cited as the
    2  "witness protection and gang violence reduction act of 2014".
    3    S 2. The penal law is amended by adding a new section 460.23  to  read
    4  as follows:
    5  S 460.23 AGGRAVATED ENTERPRISE CORRUPTION.
    6    A  PERSON IS GUILTY OF AGGRAVATED ENTERPRISE CORRUPTION WHEN HE OR SHE
    7  COMMITS THE CRIME OF ENTERPRISE CORRUPTION, AS DEFINED IN SECTION 460.20
    8  OF THIS ARTICLE, AND TWO OR MORE OF THE ACTS THAT CONSTITUTE HIS OR  HER
    9  PATTERN OF CRIMINAL ACTIVITY ARE EITHER A CLASS A OR CLASS B FELONY, AND
   10  AT  LEAST ONE SUCH ACT IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SUBDI-
   11  VISION ONE OF SECTION 70.02 OF THIS CHAPTER OR A CLASS A-I FELONY.
   12    AGGRAVATED ENTERPRISE CORRUPTION IS A CLASS A-I FELONY.
   13    S 3. The penal law is amended by adding a new section 120.05-a to read
   14  as follows:
   15  S 120.05-A GANG ASSAULT IN THE THIRD DEGREE.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05859-05-4
       S. 3767--A                          2
    1    A PERSON IS GUILTY OF GANG ASSAULT IN THE THIRD DEGREE WHEN, WITH  THE
    2  INTENT  TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON AND WHEN AIDED BY TWO
    3  OR MORE PERSONS ACTUALLY PRESENT, HE OR SHE CAUSES  PHYSICAL  INJURY  TO
    4  SUCH PERSON OR TO A THIRD PERSON.
    5    GANG ASSAULT IN THE THIRD DEGREE IS A CLASS D FELONY.
    6    S  4.  The section heading, opening paragraph and closing paragraph of
    7  section 135.60 of the penal law, as amended by chapter 426 of  the  laws
    8  of 2008, are amended to read as follows:
    9  Coercion in the [second] THIRD degree.
   10    A person is guilty of coercion in the [second] THIRD degree when he or
   11  she  compels  or  induces a person to engage in conduct which the latter
   12  has a legal right to abstain from engaging in, or to abstain from engag-
   13  ing in conduct in which he or she  has  a  legal  right  to  engage,  or
   14  compels  or  induces  a person to join a group, organization or criminal
   15  enterprise which such latter person has a right to abstain from joining,
   16  by means of instilling in him or her a fear that, if the demand  is  not
   17  complied with, the actor or another will:
   18    Coercion in the [second] THIRD degree is a class A misdemeanor.
   19    S  5.  The section heading, opening paragraph and closing paragraph of
   20  section 135.65 of the penal law, as amended by chapter 426 of  the  laws
   21  of 2008, are amended to read as follows:
   22  Coercion in the [first] SECOND degree.
   23    A person is guilty of coercion in the [first] SECOND degree when he or
   24  she  commits  the  crime  of  coercion in the [second] THIRD degree, and
   25  when:
   26    Coercion in the [first] SECOND degree is a class D felony.
   27    S 6. The penal law is amended by adding a new section 135.67  to  read
   28  as follows:
   29  S 135.67 COERCION IN THE FIRST DEGREE.
   30    A  PERSON  IS  GUILTY  OF COERCION IN THE FIRST DEGREE WHEN HE OR SHE,
   31  BEING EIGHTEEN YEARS OLD OR OLDER, COMMITS THE CRIME OF COERCION IN  THE
   32  SECOND DEGREE, AS DEFINED IN SECTION 135.65 OF THIS ARTICLE, AND:
   33    1. THE VICTIM OF SUCH CRIME IS LESS THAN SIXTEEN YEARS OLD; OR
   34    2.  THE  CRIME  IS COMMITTED IN OR UPON A BUILDING OR GROUNDS USED FOR
   35  EDUCATIONAL PURPOSES, OR ANY SCHOOL, COLLEGE OR  UNIVERSITY  OR  UPON  A
   36  SCHOOL  BUS,  AS DEFINED IN SECTION ONE HUNDRED FORTY-TWO OF THE VEHICLE
   37  AND TRAFFIC LAW, OR ON ANY PUBLIC SIDEWALK, STREET, PARKING  LOT,  PARK,
   38  PLAYGROUND  OR PRIVATE LAND LOCATED IMMEDIATELY ADJACENT TO THE BOUNDARY
   39  LINE OF SUCH SCHOOL OR SCHOOL BUS.
   40    COERCION IN THE FIRST DEGREE IS A CLASS C FELONY.
   41    S 7. The penal law is amended by adding a new section 215.09  to  read
   42  as follows:
   43  S 215.09 TAMPERING WITH A WITNESS IN THE FIFTH DEGREE.
   44    A  PERSON  IS  GUILTY  OF TAMPERING WITH A WITNESS IN THE FIFTH DEGREE
   45  WHEN, KNOWING OR BELIEVING THAT  ANOTHER  PERSON  POSSESSES  INFORMATION
   46  RELATING  TO A CRIMINAL TRANSACTION AND OTHER THAN IN THE COURSE OF THAT
   47  CRIMINAL TRANSACTION OR IMMEDIATE FLIGHT THEREFROM, HE OR SHE:
   48    1. WRONGFULLY INDUCES OR ATTEMPTS  TO  INDUCE  SUCH  OTHER  PERSON  TO
   49  REFRAIN  FROM  COMMUNICATING  SUCH INFORMATION TO ANY COURT, GRAND JURY,
   50  PROSECUTOR, POLICE OFFICER OR PEACE OFFICER; OR
   51    2. KNOWINGLY MAKES ANY FALSE STATEMENT OR  PRACTICES  ANY  FRAUD  WITH
   52  INTENT  TO HINDER, DELAY OR PREVENT COMMUNICATION OF INFORMATION RELATED
   53  TO A CRIMINAL TRANSACTION TO ANY COURT, GRAND JURY,  PROSECUTOR,  POLICE
   54  OFFICER OR PEACE OFFICER FROM SUCH PERSON.
   55    TAMPERING WITH A WITNESS IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
       S. 3767--A                          3
    1    S  8. Section 215.10 of the penal law, the section heading and closing
    2  paragraph as amended by chapter 664 of the laws of 1982, is  amended  to
    3  read as follows:
    4  S 215.10 Tampering with a witness in the fourth degree.
    5    A  person  is  guilty of tampering with a witness IN THE FOURTH DEGREE
    6  when, knowing that a person is or is about to be called as a witness  in
    7  an action or proceeding, [(a)] he OR SHE:
    8    1.  wrongfully  induces  or  attempts  to induce such person to absent
    9  himself OR HERSELF from, or otherwise to avoid or seek to avoid  appear-
   10  ing or testifying at, such action or proceeding[,]; or
   11    [(b) he] 2. knowingly makes any false statement or practices any fraud
   12  or deceit with intent to affect the testimony of such person.
   13    Tampering  with a witness in the fourth degree is a class [A misdemea-
   14  nor] E FELONY.
   15    S 9. The closing paragraph of section 215.11  of  the  penal  law,  as
   16  added by chapter 664 of the laws of 1982, is amended to read as follows:
   17    Tampering with a witness in the third degree is a class [E] D felony.
   18    S  10.  The  closing  paragraph of section 215.12 of the penal law, as
   19  added by chapter 664 of the laws of 1982, is amended to read as follows:
   20    Tampering with a witness in the second degree is a class [D] C felony.
   21    S 11.  The closing paragraph of section 215.15 of the  penal  law,  as
   22  added by chapter 667 of the laws of 1985, is amended to read as follows:
   23    Intimidating  a victim or witness in the third degree is a class [E] D
   24  felony.
   25    S 12. The closing paragraph of section 215.16 of  the  penal  law,  as
   26  added by chapter 667 of the laws of 1985, is amended to read as follows:
   27    Intimidating a victim or witness in the second degree is a class [D] C
   28  felony.
   29    S  13. The penal law is amended by adding a new section 195.03 to read
   30  as follows:
   31  S 195.03 OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE.
   32    A PERSON IS GUILTY OF OBSTRUCTING GOVERNMENTAL ADMINISTRATION  IN  THE
   33  THIRD DEGREE WHEN HE OR SHE INTENTIONALLY OBSTRUCTS, IMPAIRS OR PERVERTS
   34  THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION, OR PREVENTS OR
   35  ATTEMPTS  TO  PREVENT A PUBLIC SERVANT FROM PERFORMING AN OFFICIAL FUNC-
   36  TION.
   37    OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE IS A CLASS
   38  A MISDEMEANOR.
   39    S 14. Section 195.05 of the penal law, as amended by  chapter  269  of
   40  the laws of 1998, is amended to read as follows:
   41  S 195.05 Obstructing governmental administration in the second degree.
   42    A  person  is guilty of obstructing governmental administration IN THE
   43  SECOND DEGREE  when  he  OR  SHE  intentionally  obstructs,  impairs  or
   44  perverts  the  administration  of  law or other governmental function or
   45  prevents or attempts to prevent a  public  servant  from  performing  an
   46  official function, by means of intimidation, physical force or interfer-
   47  ence,  or  by  means  of  any independently unlawful act, or by means of
   48  interfering, whether or not physical  force  is  involved,  with  radio,
   49  telephone, television or other telecommunications systems owned or oper-
   50  ated  by  the  state, or a county, city, town, village, fire district or
   51  emergency medical service or by means of releasing  a  dangerous  animal
   52  under circumstances evincing the actor's intent that the animal obstruct
   53  governmental administration.
   54    Obstructing  governmental  administration  IN  THE  SECOND DEGREE is a
   55  class [A misdemeanor] E FELONY.
       S. 3767--A                          4
    1    S 15. Section 195.07 of the penal law, as added by chapter 956 of  the
    2  laws of 1984, is amended to read as follows:
    3  S 195.07 Obstructing governmental administration in the first degree.
    4    A  person  is guilty of obstructing governmental administration in the
    5  first degree when he OR SHE commits the  crime  of  obstructing  govern-
    6  mental administration in the second degree [by means of interfering with
    7  a telecommunications system], AS DEFINED IN SECTION 195.05 OF THIS ARTI-
    8  CLE, thereby causing serious physical injury to another person.
    9    Obstructing governmental administration in the first degree is a class
   10  [E] D felony.
   11    S  16. Subdivision 1 of section 50.10 of the criminal procedure law is
   12  amended to read as follows:
   13    1. ["Immunity."  A person who has been a witness in a  legal  proceed-
   14  ing,  and  who cannot, except as otherwise provided in this subdivision,
   15  be convicted of any offense or subjected to any  penalty  or  forfeiture
   16  for  or  on account of any transaction, matter or thing concerning which
   17  he  gave  evidence  therein,  possesses   "immunity"   from   any   such
   18  conviction,] "IMMUNITY", WHEN CONFERRED ON A WITNESS IN A LEGAL PROCEED-
   19  ING,  MEANS  THAT  NEITHER  THE  EVIDENCE  GIVEN BY THAT WITNESS NOR ANY
   20  EVIDENCE DERIVED DIRECTLY OR INDIRECTLY FROM IT MAY BE USED AGAINST  HIM
   21  OR HER IN THE SAME OR ANY OTHER CRIMINAL PROCEEDING OR IN THE IMPOSITION
   22  OF  ANY penalty or forfeiture.  A person who possesses such immunity may
   23  nevertheless be convicted of perjury as a result of having  given  false
   24  testimony  in such legal proceeding, and may be convicted of or adjudged
   25  in contempt as  a  result  of  having  contumaciously  refused  to  give
   26  evidence therein.
   27    S  17.  Section  190.40  of  the  criminal procedure law is amended by
   28  adding a new subdivision 3 to read as follows:
   29    3. A WITNESS WHO GIVES EVIDENCE IN A GRAND JURY  PROCEEDING,  AND  WHO
   30  THEREBY  RECEIVES  IMMUNITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION,
   31  SHALL NOT THEREAFTER BE  INDICTED  BY  THAT  SAME  GRAND  JURY  FOR  ANY
   32  OFFENSE,  EXCEPT  (A)  WHERE  SUCH OFFENSE IS PERJURY OR CONTEMPT, AS TO
   33  WHICH PROSECUTION IS AUTHORIZED BY SECTION 50.10 OF THIS CHAPTER; OR (B)
   34  WHERE THE EVIDENCE GIVEN BY THE WITNESS CONSISTS ONLY OF BOOKS,  PAPERS,
   35  RECORDS  OR  OTHER  PHYSICAL  EVIDENCE  OF  AN ENTERPRISE, AS DEFINED IN
   36  SUBDIVISION ONE OF SECTION 175.00 OF THE PENAL LAW, AND ANY IMMUNITY THE
   37  WITNESS RECEIVES RESULTS SOLELY FROM HIS OR HER POSSESSION OF  A  PRIVI-
   38  LEGE  AGAINST  SELF-INCRIMINATION  WITH  RESPECT TO THE ACT OF PRODUCING
   39  SUCH EVIDENCE. NOTHING IN THIS SUBDIVISION SHALL PRECLUDE ANOTHER  GRAND
   40  JURY  IN THE SAME OR ANY OTHER COUNTY FROM CHARGING THE WITNESS WITH ANY
   41  OFFENSE BASED UPON OTHER EVIDENCE WHOSE USE AGAINST THE WITNESS  IS  NOT
   42  BARRED  BY THE IMMUNITY HE OR SHE HAS RECEIVED BY GIVING EVIDENCE BEFORE
   43  THE FIRST GRAND JURY.
   44    S 18. Section 265.08 of the penal law is REPEALED.
   45    S 19. Section 265.09 of the penal law, as amended by  chapter  650  of
   46  the  laws  of 1996, subdivision 2 as amended by chapter 1 of the laws of
   47  2013, is amended to read as follows:
   48  S 265.09 Criminal use of a firearm [in the first degree].
   49    (1) A person is guilty of criminal use of  a  firearm  [in  the  first
   50  degree]  when he OR SHE commits any [class B] violent felony offense, as
   51  defined in [paragraph (a) of] subdivision one of section 70.02  OF  THIS
   52  CHAPTER,  OR  A DRUG TRAFFICKING FELONY OFFENSE and, WHILE IN THE COURSE
   53  OF OR FURTHERANCE OF SUCH VIOLENT FELONY  OFFENSE  OR  DRUG  TRAFFICKING
   54  FELONY OFFENSE, he OR SHE either:
       S. 3767--A                          5
    1    (a)  possesses  a  [deadly]  LOADED weapon[, if the weapon is a loaded
    2  weapon from which a shot, readily capable of producing  death  or  other
    3  serious injury may be discharged]; or
    4    (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
    5  machine gun or other firearm.
    6    Criminal use of a firearm [in the first degree] is a class B felony.
    7    (2) [Sentencing.] FOR THE PURPOSES OF THIS SECTION, "DRUG  TRAFFICKING
    8  FELONY  OFFENSE"  MEANS CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN
    9  THE THIRD DEGREE AS DEFINED IN SUBDIVISION ONE, TWO, THREE, FOUR,  FIVE,
   10  SIX  OR  SEVEN  OF SECTION 220.16, USE OF A CHILD TO COMMIT A CONTROLLED
   11  SUBSTANCE OFFENSE AS DEFINED IN  SECTION  220.28,  CRIMINAL  SALE  OF  A
   12  CONTROLLED  SUBSTANCE  IN THE FIFTH DEGREE AS DEFINED IN SECTION 220.31,
   13  CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE AS  DEFINED
   14  IN  SECTION 220.34, CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD
   15  DEGREE AS DEFINED IN SECTION  220.39,  CRIMINAL  SALE  OF  A  CONTROLLED
   16  SUBSTANCE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 220.41, CRIMINAL
   17  SALE OF A CONTROLLED SUBSTANCE IN THE FIRST DEGREE AS DEFINED IN SECTION
   18  220.43, CRIMINAL SALE OF  A  CONTROLLED  SUBSTANCE  IN  OR  NEAR  SCHOOL
   19  GROUNDS  AS  DEFINED  IN  SECTION  220.44, CRIMINAL SALE OF A CONTROLLED
   20  SUBSTANCE TO A CHILD AS DEFINED IN SECTION 220.48, UNLAWFUL  MANUFACTURE
   21  OF  METHAMPHETAMINE  IN  THE SECOND DEGREE AS DEFINED IN SECTION 220.74,
   22  UNLAWFUL MANUFACTURE OF METHAMPHETAMINE IN THE FIRST DEGREE  AS  DEFINED
   23  IN  SECTION  220.75,  OR  OPERATING  AS A MAJOR TRAFFICKER AS DEFINED IN
   24  SECTION 220.77 OF THIS CHAPTER.
   25    (3) Notwithstanding any other provision of law to the contrary, when a
   26  person is convicted of criminal use of a firearm [in the  first  degree]
   27  as defined in subdivision one of this section, the court shall impose an
   28  additional  consecutive  DETERMINATE  sentence  OF  IMPRISONMENT of five
   29  years to the sentence imposed on the underlying [class B violent] felony
   30  offense [where the person convicted of  such  crime  displays  a  loaded
   31  weapon  from  which  a shot, readily capable of producing death or other
   32  serious injury may be discharged, in furtherance of  the  commission  of
   33  such  crime], provided, however, that such additional sentence OF IMPRI-
   34  SONMENT shall not be imposed if the court, having regard to  the  nature
   35  and  circumstances  of the crime and to the history and character of the
   36  defendant, finds on the record that such additional consecutive sentence
   37  would be unduly harsh and that  not  imposing  such  sentence  would  be
   38  consistent  with  the public safety and would not deprecate the serious-
   39  ness of the crime. Notwithstanding any other provision  of  law  to  the
   40  contrary,  the  aggregate of the five year consecutive term OF IMPRISON-
   41  MENT imposed pursuant to this subdivision and [the] (A) ANY minimum term
   42  of [the] AN indeterminate sentence, OR (B) THE  TERM  OF  A  DETERMINATE
   43  SENTENCE,  imposed  on  the  underlying [class B violent] felony OFFENSE
   44  shall constitute the new aggregate minimum term OR  TERMS  of  imprison-
   45  ment,  and  a person subject to such term shall be required to serve the
   46  entire aggregate minimum term OR TERMS and shall  not  be  eligible  for
   47  release on parole or conditional release during such term. This subdivi-
   48  sion  shall  not  apply  where  the  defendant's [criminal liability for
   49  displaying a loaded weapon from which a shot, readily capable of produc-
   50  ing death or other serious injury may be discharged, in  furtherance  of
   51  the  commission  of crime] COMMISSION OF THE OFFENSE DEFINED IN SUBDIVI-
   52  SION ONE OF THIS SECTION is based on the conduct of another pursuant  to
   53  section 20.00 of this chapter.
   54    S  20. Subdivision 2 of section 60.35 of the criminal procedure law is
   55  amended to read as follows:
       S. 3767--A                          6
    1    2. Evidence concerning  a  prior  contradictory  statement  introduced
    2  pursuant  to  subdivision  one  [may be received only for the purpose of
    3  impeaching the credibility of the witness with respect to his  testimony
    4  upon  the  subject,  and  does  not constitute evidence in chief.   Upon
    5  receiving  such evidence at a jury trial, the court must so instruct the
    6  jury] OF THIS SECTION CONSTITUTES EVIDENCE IN CHIEF.
    7    S 21. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
    8  procedure law, as amended by chapter 405 of the laws of 2010, is amended
    9  to read as follows:
   10    (b) Any of the following felonies: assault in  the  second  degree  as
   11  defined  in section 120.05 of the penal law, assault in the first degree
   12  as defined in section 120.10 of the penal law, GANG ASSAULT IN THE THIRD
   13  DEGREE AS DEFINED IN SECTION 120.05-A OF THE PENAL LAW, GANG ASSAULT  IN
   14  THE  SECOND  DEGREE  AS DEFINED IN SECTION 120.06 OF THE PENAL LAW, GANG
   15  ASSAULT IN THE FIRST DEGREE AS DEFINED IN SECTION 120.07  OF  THE  PENAL
   16  LAW,  reckless  endangerment  in  the first degree as defined in section
   17  120.25 of the penal law, promoting  a  suicide  attempt  as  defined  in
   18  section  120.30  of the penal law, strangulation in the second degree as
   19  defined in section 121.12 of the penal law, strangulation in  the  first
   20  degree  as defined in section 121.13 of the penal law, criminally negli-
   21  gent homicide as defined in section 125.10 of the penal law, manslaught-
   22  er in the second degree as defined in section 125.15 of the  penal  law,
   23  manslaughter  in  the  first  degree as defined in section 125.20 of the
   24  penal law, murder in the second degree as defined in section  125.25  of
   25  the  penal  law, murder in the first degree as defined in section 125.27
   26  of the penal law, abortion in the second degree as  defined  in  section
   27  125.40  of  the  penal  law,  abortion in the first degree as defined in
   28  section 125.45 of the penal law, rape in the third degree as defined  in
   29  section 130.25 of the penal law, rape in the second degree as defined in
   30  section  130.30 of the penal law, rape in the first degree as defined in
   31  section 130.35 of the penal law, criminal sexual act in the third degree
   32  as defined in section 130.40 of the penal law, criminal  sexual  act  in
   33  the  second degree as defined in section 130.45 of the penal law, crimi-
   34  nal sexual act in the first degree as defined in section 130.50  of  the
   35  penal law, sexual abuse in the first degree as defined in section 130.65
   36  of  the  penal law, unlawful imprisonment in the first degree as defined
   37  in section 135.10 of the penal law, kidnapping in the second  degree  as
   38  defined  in  section  135.20  of  the penal law, kidnapping in the first
   39  degree as defined in section 135.25 of the penal law, labor  trafficking
   40  as defined in section 135.35 of the penal law, custodial interference in
   41  the first degree as defined in section 135.50 of the penal law, coercion
   42  in  the  [first] SECOND degree as defined in section 135.65 of the penal
   43  law, COERCION IN THE FIRST DEGREE AS DEFINED IN SECTION  135.67  OF  THE
   44  PENAL  LAW,  criminal trespass in the first degree as defined in section
   45  140.17 of the penal law, burglary in the  third  degree  as  defined  in
   46  section  140.20  of  the  penal  law,  burglary  in the second degree as
   47  defined in section 140.25 of the penal law, burglary in the first degree
   48  as defined in section 140.30 of the penal law, criminal mischief in  the
   49  third  degree  as  defined  in section 145.05 of the penal law, criminal
   50  mischief in the second degree as defined in section 145.10 of the  penal
   51  law,  criminal mischief in the first degree as defined in section 145.12
   52  of the penal law, criminal tampering in the first degree as  defined  in
   53  section  145.20  of the penal law, arson in the fourth degree as defined
   54  in section 150.05 of the penal law, arson in the third degree as defined
   55  in section 150.10 of the penal  law,  arson  in  the  second  degree  as
   56  defined in section 150.15 of the penal law, arson in the first degree as
       S. 3767--A                          7
    1  defined  in section 150.20 of the penal law, grand larceny in the fourth
    2  degree as defined in section 155.30 of the penal law, grand  larceny  in
    3  the  third  degree  as defined in section 155.35 of the penal law, grand
    4  larceny  in  the second degree as defined in section 155.40 of the penal
    5  law, grand larceny in the first degree as defined in section  155.42  of
    6  the  penal  law,  health  care  fraud in the fourth degree as defined in
    7  section 177.10 of the penal law, health care fraud in the  third  degree
    8  as  defined in section 177.15 of the penal law, health care fraud in the
    9  second degree as defined in section 177.20 of the penal law, health care
   10  fraud in the first degree as defined in section 177.25 of the penal law,
   11  robbery in the third degree as defined in section 160.05  of  the  penal
   12  law,  robbery  in  the second degree as defined in section 160.10 of the
   13  penal law, robbery in the first degree as defined in section  160.15  of
   14  the  penal law, unlawful use of secret scientific material as defined in
   15  section 165.07 of the penal law, criminal possession of stolen  property
   16  in  the  fourth  degree  as  defined in section 165.45 of the penal law,
   17  criminal possession of stolen property in the third degree as defined in
   18  section 165.50 of the penal law, criminal possession of stolen  property
   19  in  the  second  degree  as  defined by section 165.52 of the penal law,
   20  criminal possession of stolen property in the first degree as defined by
   21  section 165.54 of the penal law, trademark counterfeiting in the  second
   22  degree as defined in section 165.72 of the penal law, trademark counter-
   23  feiting  in  the  first degree as defined in section 165.73 of the penal
   24  law, forgery in the second degree as defined in section  170.10  of  the
   25  penal  law,  forgery in the first degree as defined in section 170.15 of
   26  the penal law, criminal possession of a forged instrument in the  second
   27  degree  as  defined  in  section  170.25  of  the  penal  law,  criminal
   28  possession of a forged instrument in the  first  degree  as  defined  in
   29  section  170.30 of the penal law, criminal possession of forgery devices
   30  as defined in section 170.40  of  the  penal  law,  falsifying  business
   31  records  in  the  first degree as defined in section 175.10 of the penal
   32  law, tampering with public records in the first  degree  as  defined  in
   33  section  175.25 of the penal law, offering a false instrument for filing
   34  in the first degree as defined in section 175.35 of the penal law, issu-
   35  ing a false certificate as defined in section 175.40 of the  penal  law,
   36  criminal  diversion of prescription medications and prescriptions in the
   37  second degree as defined in section 178.20 of the  penal  law,  criminal
   38  diversion  of  prescription  medications  and prescriptions in the first
   39  degree as defined in section 178.25 of the penal law, residential  mort-
   40  gage  fraud  in  the  fourth  degree as defined in section 187.10 of the
   41  penal law, residential mortgage fraud in the third degree as defined  in
   42  section  187.15  of  the  penal  law,  residential mortgage fraud in the
   43  second degree as defined in section 187.20 of the penal law, residential
   44  mortgage fraud in the first degree as defined in section 187.25  of  the
   45  penal  law,  escape in the second degree as defined in section 205.10 of
   46  the penal law, escape in the first degree as defined in  section  205.15
   47  of  the penal law, absconding from temporary release in the first degree
   48  as defined in section 205.17 of the penal law, promoting prison  contra-
   49  band  in the first degree as defined in section 205.25 of the penal law,
   50  hindering prosecution in the second degree as defined in section  205.60
   51  of  the  penal law, hindering prosecution in the first degree as defined
   52  in section 205.65 of the penal law, TAMPERING  WITH  A  WITNESS  IN  THE
   53  FOURTH  DEGREE AS DEFINED IN SECTION 215.10 OF THE  PENAL LAW, TAMPERING
   54  WITH A WITNESS IN THE THIRD DEGREE AS DEFINED IN SECTION 215.11  OF  THE
   55  PENAL  LAW,  TAMPERING WITH A WITNESS IN THE SECOND DEGREE AS DEFINED IN
   56  SECTION 215.12 OF THE PENAL LAW, TAMPERING WITH A WITNESS IN  THE  FIRST
       S. 3767--A                          8
    1  DEGREE AS DEFINED IN SECTION 215.13 OF THE PENAL LAW, sex trafficking as
    2  defined  in  section  230.34  of the penal law, criminal possession of a
    3  weapon in the third degree as defined in  subdivisions  two,  three  and
    4  five of section 265.02 of the penal law, criminal possession of a weapon
    5  in  the  second  degree  as  defined in section 265.03 of the penal law,
    6  criminal possession of a weapon  in  the  first  degree  as  defined  in
    7  section 265.04 of the penal law, manufacture, transport, disposition and
    8  defacement  of  weapons and dangerous instruments and appliances defined
    9  as felonies in subdivisions one, two, and three of section 265.10 of the
   10  penal law, sections 265.11, 265.12 and  265.13  of  the  penal  law,  or
   11  prohibited  use  of  weapons  as  defined  in subdivision two of section
   12  265.35 of the penal law, relating to firearms and other dangerous  weap-
   13  ons,  or  failure  to  disclose  the  origin of a recording in the first
   14  degree as defined in section 275.40 of the penal law;
   15    S 22. Subdivision 1 of section 70.02 of the penal law,  as  separately
   16  amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
   17  amended by chapter 320 of the laws of 2006, paragraphs (b)  and  (c)  as
   18  amended by chapter 1 of the laws of 2013 and paragraph (d) as amended by
   19  chapter 7 of the laws of 2007, is amended to read as follows:
   20    1. Definition of a violent felony offense. A violent felony offense is
   21  a  class  B  violent felony offense, a class C violent felony offense, a
   22  class D violent felony offense, or a class  E  violent  felony  offense,
   23  defined as follows:
   24    (a)  Class  B  violent felony offenses: an attempt to commit the class
   25  A-I [felonies] FELONY of murder in  the  second  degree  as  defined  in
   26  section  125.25,  kidnapping  in  the first degree as defined in section
   27  135.25[, and] OR arson in the first degree as defined in section 150.20;
   28  manslaughter in the first degree as defined in  section  125.20,  aggra-
   29  vated  manslaughter  in  the  first degree as defined in section 125.22,
   30  rape in the first degree as defined in section 130.35,  criminal  sexual
   31  act  in the first degree as defined in section 130.50, aggravated sexual
   32  abuse in the first degree as defined in section 130.70, course of sexual
   33  conduct against a child in  the  first  degree  as  defined  in  section
   34  130.75;  assault  in  the  first  degree  as  defined in section 120.10,
   35  kidnapping in the second degree as defined in section  135.20,  burglary
   36  in  the  first  degree as defined in section 140.30, arson in the second
   37  degree as defined in section 150.15, robbery  in  the  first  degree  as
   38  defined  in  section  160.15,  incest  in the first degree as defined in
   39  section 255.27, criminal possession of a weapon in the first  degree  as
   40  defined in section 265.04, criminal use of a firearm in the first degree
   41  as  defined  in  section 265.09, criminal sale of a firearm in the first
   42  degree as defined in section 265.13, aggravated assault  upon  a  police
   43  officer or a peace officer as defined in section 120.11, gang assault in
   44  the  first degree as defined in section 120.07, TAMPERING WITH A WITNESS
   45  IN THE FIRST DEGREE AS DEFINED IN SECTION 215.13, intimidating a  victim
   46  or  witness  in the first degree as defined in section 215.17, hindering
   47  prosecution of terrorism in the  first  degree  as  defined  in  section
   48  490.35, criminal possession of a chemical weapon or biological weapon in
   49  the second degree as defined in section 490.40, [and] OR criminal use of
   50  a chemical weapon or biological weapon in the third degree as defined in
   51  section  490.47; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS
   52  PARAGRAPH.
   53    (b) Class C violent felony offenses: an attempt to commit any  of  the
   54  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   55  vated criminally negligent homicide as defined in section 125.11, aggra-
   56  vated manslaughter in the second degree as defined  in  section  125.21,
       S. 3767--A                          9
    1  aggravated  sexual  abuse  in  the  second  degree as defined in section
    2  130.67, assault on a peace officer, police officer, fireman or emergency
    3  medical services professional as defined in section 120.08, assault on a
    4  judge as defined in section 120.09, gang assault in the second degree as
    5  defined  in section 120.06, strangulation in the first degree as defined
    6  in section 121.13, COERCION IN THE FIRST DEGREE AS  DEFINED  IN  SECTION
    7  135.67,  burglary  in  the  second  degree as defined in section 140.25,
    8  robbery in the second degree as defined  in  section  160.10,  TAMPERING
    9  WITH A WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION 215.12, INTIM-
   10  IDATING  A  VICTIM OR WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION
   11  215.16, criminal possession of a weapon in the second degree as  defined
   12  in  section  265.03,  [criminal use of a firearm in the second degree as
   13  defined in section 265.08,] criminal sale of a  firearm  in  the  second
   14  degree as defined in section 265.12, criminal sale of a firearm with the
   15  aid  of  a  minor  as  defined  in  section  265.14, aggravated criminal
   16  possession of a weapon as  defined  in  section  265.19,  soliciting  or
   17  providing support for an act of terrorism in the first degree as defined
   18  in  section  490.15,  hindering  prosecution  of terrorism in the second
   19  degree as defined in section 490.30, [and] OR criminal possession  of  a
   20  chemical  weapon  or biological weapon in the third degree as defined in
   21  section 490.37; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN  THIS
   22  PARAGRAPH.
   23    (c)  Class  D violent felony offenses: an attempt to commit any of the
   24  class C felonies set forth in paragraph (b) of this  subdivision;  reck-
   25  less  assault  of  a  child as defined in section 120.02, assault in the
   26  second degree as defined in section 120.05, GANG ASSAULT  IN  THE  THIRD
   27  DEGREE  AS  DEFINED  IN  SECTION  120.05-A, menacing a police officer or
   28  peace officer as defined  in  section  120.18,  stalking  in  the  first
   29  degree,  as  defined in subdivision one of section 120.60, strangulation
   30  in the second degree as defined in section 121.12, rape  in  the  second
   31  degree  as  defined in section 130.30, criminal sexual act in the second
   32  degree as defined in section 130.45, sexual abuse in the first degree as
   33  defined in section 130.65, course of sexual conduct against a  child  in
   34  the  second degree as defined in section 130.80, aggravated sexual abuse
   35  in the third degree as defined in section  130.66,  facilitating  a  sex
   36  offense with a controlled substance as defined in section 130.90, crimi-
   37  nal possession of a weapon in the third degree as defined in subdivision
   38  five, six, seven, eight, nine or ten of section 265.02, criminal sale of
   39  a  firearm  in  the third degree as defined in section 265.11, TAMPERING
   40  WITH A WITNESS IN THE THIRD DEGREE AS DEFINED IN SECTION 215.11,  intim-
   41  idating  a  victim or witness in the [second] THIRD degree as defined in
   42  section [215.16] 215.15, soliciting or providing support for an  act  of
   43  terrorism  in the second degree as defined in section 490.10, and making
   44  a terroristic threat as defined in section 490.20, falsely reporting  an
   45  incident  in  the  first  degree as defined in section 240.60, placing a
   46  false bomb or hazardous substance in the  first  degree  as  defined  in
   47  section  240.62, placing a false bomb or hazardous substance in a sports
   48  stadium or arena, mass transportation facility or enclosed shopping mall
   49  as defined in section 240.63, [and] OR  aggravated  unpermitted  use  of
   50  indoor pyrotechnics in the first degree as defined in section 405.18; OR
   51  A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.
   52    (d)  Class  E violent felony offenses: an attempt to commit any of the
   53  felonies of criminal possession of a  weapon  in  the  third  degree  as
   54  defined  in subdivision five, six, seven or eight of section 265.02 as a
   55  lesser included offense of that section as defined in section 220.20  of
   56  the  criminal  procedure  law[,];  persistent sexual abuse as defined in
       S. 3767--A                         10
    1  section 130.53, aggravated sexual abuse in the fourth degree as  defined
    2  in  section 130.65-a, falsely reporting an incident in the second degree
    3  as defined in section 240.55 [and] OR placing a false bomb or  hazardous
    4  substance  in  the  second  degree  as  defined  in section 240.61; OR A
    5  CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.
    6    S 23. Subdivision 2 of section 130.91 of the penal law, as amended  by
    7  chapter 405 of the laws of 2010, is amended to read as follows:
    8    2.  A  "specified  offense"  is a felony offense defined by any of the
    9  following provisions of this chapter: assault in the  second  degree  as
   10  defined  in  section  120.05,  assault in the first degree as defined in
   11  section 120.10, GANG ASSAULT IN THE THIRD DEGREE AS DEFINED  IN  SECTION
   12  120.05-A,  gang  assault  in  the  second  degree  as defined in section
   13  120.06, gang assault in the first degree as defined in  section  120.07,
   14  stalking in the first degree as defined in section 120.60, strangulation
   15  in  the second degree as defined in section 121.12, strangulation in the
   16  first degree as defined in section 121.13, manslaughter  in  the  second
   17  degree  as defined in subdivision one of section 125.15, manslaughter in
   18  the first degree as defined in section  125.20,  murder  in  the  second
   19  degree  as  defined  in  section 125.25, aggravated murder as defined in
   20  section 125.26, murder in the first degree as defined in section 125.27,
   21  kidnapping in the second degree as defined in section 135.20, kidnapping
   22  in the first degree as defined in section 135.25, burglary in the  third
   23  degree  as  defined  in section 140.20, burglary in the second degree as
   24  defined in section 140.25, burglary in the first degree  as  defined  in
   25  section 140.30, arson in the second degree as defined in section 150.15,
   26  arson  in  the first degree as defined in section 150.20, robbery in the
   27  third degree as defined in section 160.05, robbery in the second  degree
   28  as  defined in section 160.10, robbery in the first degree as defined in
   29  section 160.15, promoting prostitution in the second degree  as  defined
   30  in section 230.30, promoting prostitution in the first degree as defined
   31  in section 230.32, compelling prostitution as defined in section 230.33,
   32  disseminating indecent material to minors in the first degree as defined
   33  in  section 235.22, use of a child in a sexual performance as defined in
   34  section 263.05, promoting an obscene sexual performance by  a  child  as
   35  defined  in section 263.10, promoting a sexual performance by a child as
   36  defined in section 263.15, or any felony attempt or conspiracy to commit
   37  any of the foregoing offenses.
   38    S 24. Section 70.25 of the penal law is  amended  by  adding  two  new
   39  subdivisions 2-h and 2-i to read as follows:
   40    2-H. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
   41  FOURTH  DEGREE AS DEFINED IN SECTION 215.10, TAMPERING WITH A WITNESS IN
   42  THE THIRD DEGREE AS DEFINED IN SECTION 215.11, TAMPERING WITH A  WITNESS
   43  IN  THE  SECOND  DEGREE  AS  DEFINED IN SECTION 215.12, TAMPERING WITH A
   44  WITNESS IN THE FIRST DEGREE AS DEFINED IN SECTION 215.13 OF  THIS  CHAP-
   45  TER,  OR ANY ATTEMPT TO COMMIT ANY OF SUCH OFFENSE, RELATING TO A CRIMI-
   46  NAL PROCEEDING, AND SUCH PERSON IS ALSO CONVICTED OF AN OFFENSE  CHARGED
   47  IN SUCH CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
   48    2-I. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
   49  FIFTH  DEGREE  AS  DEFINED  IN  SECTION  215.09  OF THIS CHAPTER, OR ANY
   50  ATTEMPT TO COMMIT SUCH OFFENSE RELATING TO A  CRIMINAL  PROCEEDING,  AND
   51  SUCH  PERSON  IS  ALSO  CONVICTED  OF AN OFFENSE THAT IS CHARGED IN SUCH
   52  CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
   53    S 25. The opening paragraph and subdivisions 6 and 7 of section 710.20
   54  of the criminal procedure law, the opening paragraph and  subdivision  6
   55  as amended by chapter 8 of the laws of 1976, subdivision 6 as renumbered
   56  by chapter 481 of the laws of 1983 and subdivision 7 as added by chapter
       S. 3767--A                         11
    1  744 of the laws of 1988, are amended and a new subdivision 8 is added to
    2  read as follows:
    3    Upon motion of a defendant who (a) is aggrieved by unlawful or improp-
    4  er acquisition of evidence and has reasonable cause to believe that such
    5  may  be  offered  against  him  in a criminal action, or (b) claims that
    6  improper identification testimony may be offered against him in a crimi-
    7  nal action, OR (C) CLAIMS THAT EVIDENCE AS TO THE USE OF WHICH HE OR SHE
    8  POSSESSES IMMUNITY MAY BE OFFERED AGAINST  HIM  OR  HER  IN  A  CRIMINAL
    9  PROCEEDING, a court may, under circumstances prescribed in this article,
   10  order  that such evidence be suppressed or excluded upon the ground that
   11  it:
   12    6.  Consists of potential testimony regarding an  observation  of  the
   13  defendant  either  at the time or place of the commission of the offense
   14  or upon some other occasion relevant to the case, which potential testi-
   15  mony would not be admissible upon the prospective trial of  such  charge
   16  owing  to an improperly made previous identification of the defendant by
   17  the prospective witness[.]; OR
   18    7. Consists of information obtained by means of a pen register or trap
   19  and trace device installed or used in violation  of  the  provisions  of
   20  article seven hundred five of this [chapter.] TITLE; OR
   21    8. CONSISTS OF POTENTIAL EVIDENCE AS TO THE USE OF WHICH THE DEFENDANT
   22  POSSESSES  IMMUNITY.  WHERE  THE DEFENDANT ESTABLISHES THAT IMMUNITY HAD
   23  BEEN CONFERRED UPON HIM OR HER THE PEOPLE MUST THEN ESTABLISH, BEYOND  A
   24  REASONABLE  DOUBT,  THAT  ANY  EVIDENCE WHICH THEY PROPOSE TO USE IN THE
   25  INSTANT ACTION DOES NOT CONSIST OF AND  WAS  NOT  DERIVED,  DIRECTLY  OR
   26  INDIRECTLY,  FROM  THE  EVIDENCE  AS  TO  WHICH  SUCH  IMMUNITY HAD BEEN
   27  CONFERRED.
   28    S 26.  Subdivision 3 of section 485.05 of the penal law, as amended by
   29  chapter 405 of the laws of 2010, is amended to read as follows:
   30    3. A "specified offense" is an offense defined by any of the following
   31  provisions of  this  chapter:  section  120.00  (assault  in  the  third
   32  degree); section 120.05 (assault in the second degree); SECTION 120.05-A
   33  (GANG  ASSAULT IN THE THIRD DEGREE); SECTION 120.06 (GANG ASSAULT IN THE
   34  SECOND DEGREE); SECTION 120.07  (GANG  ASSAULT  IN  THE  FIRST  DEGREE);
   35  section 120.10 (assault in the first degree); section 120.12 (aggravated
   36  assault  upon  a  person  less  than  eleven  years old); section 120.13
   37  (menacing in the first degree); section 120.14 (menacing in  the  second
   38  degree);  section  120.15 (menacing in the third degree); section 120.20
   39  (reckless endangerment in the second degree); section  120.25  (reckless
   40  endangerment  in the first degree); section 121.12 (strangulation in the
   41  second degree); section 121.13  (strangulation  in  the  first  degree);
   42  subdivision  one  of section 125.15 (manslaughter in the second degree);
   43  subdivision one, two or four of  section  125.20  (manslaughter  in  the
   44  first  degree);  section  125.25  (murder in the second degree); section
   45  120.45 (stalking in the fourth degree); section 120.50 (stalking in  the
   46  third  degree);  section 120.55 (stalking in the second degree); section
   47  120.60 (stalking in the first degree); subdivision one of section 130.35
   48  (rape in the first degree); subdivision one of section 130.50  (criminal
   49  sexual  act  in  the  first  degree);  subdivision one of section 130.65
   50  (sexual abuse in the first degree); paragraph (a) of subdivision one  of
   51  section 130.67 (aggravated sexual abuse in the second degree); paragraph
   52  (a) of subdivision one of section 130.70 (aggravated sexual abuse in the
   53  first  degree);  section  135.05  (unlawful  imprisonment  in the second
   54  degree); section 135.10 (unlawful imprisonment  in  the  first  degree);
   55  section  135.20  (kidnapping  in  the  second  degree);  section  135.25
   56  (kidnapping in the  first  degree);  section  135.60  (coercion  in  the
       S. 3767--A                         12
    1  [second]  THIRD  degree); section 135.65 (coercion in the [first] SECOND
    2  degree); SECTION 135.67 (COERCION IN THE FIRST DEGREE);  section  140.10
    3  (criminal  trespass in the third degree); section 140.15 (criminal tres-
    4  pass  in  the  second  degree); section 140.17 (criminal trespass in the
    5  first degree); section 140.20 (burglary in the  third  degree);  section
    6  140.25  (burglary in the second degree); section 140.30 (burglary in the
    7  first degree); section 145.00 (criminal mischief in the fourth  degree);
    8  section  145.05  (criminal mischief in the third degree); section 145.10
    9  (criminal mischief in  the  second  degree);  section  145.12  (criminal
   10  mischief  in  the  first  degree);  section  150.05 (arson in the fourth
   11  degree); section 150.10 (arson in  the  third  degree);  section  150.15
   12  (arson  in  the  second  degree);  section  150.20  (arson  in the first
   13  degree); section 155.25 (petit larceny); section 155.30  (grand  larceny
   14  in  the  fourth  degree);  section  155.35  (grand  larceny in the third
   15  degree); section 155.40 (grand larceny in the  second  degree);  section
   16  155.42  (grand  larceny in the first degree); section 160.05 (robbery in
   17  the third degree);  section  160.10  (robbery  in  the  second  degree);
   18  section 160.15 (robbery in the first degree); section 240.25 (harassment
   19  in  the  first  degree);  subdivision one, two or four of section 240.30
   20  (aggravated harassment in the second degree); or any attempt or conspir-
   21  acy to commit any of the foregoing offenses.
   22    S 27. This act shall  take  effect  on  the  first  of  November  next
   23  succeeding the date on which it shall have become a law.