S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4743
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                    April 22, 2013
                                      ___________
       Introduced by Sens. YOUNG, GOLDEN -- read twice and ordered printed, and
         when printed to be committed to the Committee on Codes
       AN ACT to amend the penal law, in relation to the definition of the term
         "sexual  intercourse"  as  such  term  applies to sex offenses; and to
         amend the penal law, the criminal procedure law, the  agriculture  and
         markets  law,  the civil practice law and rules, the family court act,
         the judiciary law and the correction law, in relation to  establishing
         the  crimes  of  anal  rape  and oral rape to replace crimes involving
         criminal sexual acts; and to repeal certain provisions  of  the  penal
         law relating thereto
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 1 of section 130.00 of the penal law is amended
    2  to read as follows:
    3    1. "Sexual intercourse" has its ordinary meaning and [occurs upon  any
    4  penetration, however slight] MEANS CONDUCT BETWEEN PERSONS THAT CONSISTS
    5  OF CONTACT BETWEEN THE PENIS AND THE VAGINA OR VULVA.
    6    S 2. Section 130.40 of the penal law, as amended by chapter 264 of the
    7  laws of 2003, is amended to read as follows:
    8  S 130.40 [Criminal sexual act] ANAL RAPE in the third degree.
    9    A  person  is  guilty  of [criminal sexual act] ANAL RAPE in the third
   10  degree when:
   11    1. He or she engages in [oral sexual conduct or] anal  sexual  conduct
   12  with a person who is incapable of consent by reason of some factor other
   13  than being less than seventeen years old;
   14    2.  Being  twenty-one  years  old  or more, he or she engages in [oral
   15  sexual conduct or] anal sexual conduct with a person less than seventeen
   16  years old; or
   17    3. He or she engages in [oral sexual conduct or] anal  sexual  conduct
   18  with  another  person  without  such person's consent where such lack of
   19  consent is by reason of some factor other than incapacity to consent.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09199-02-3
       S. 4743                             2
    1    [Criminal sexual act] ANAL RAPE in the third degree is a class E felo-
    2  ny.
    3    S 3. Section 130.45 of the penal law, as amended by chapter 264 of the
    4  laws of 2003, is amended to read as follows:
    5  S 130.45 [Criminal sexual act] ANAL RAPE in the second degree.
    6    A  person  is  guilty of [criminal sexual act] ANAL RAPE in the second
    7  degree when:
    8    1. being eighteen years old or more, he or she engages in [oral sexual
    9  conduct or] anal sexual conduct with another person  less  than  fifteen
   10  years old; or
   11    2.  he  or she engages in [oral sexual conduct or] anal sexual conduct
   12  with another person who is incapable  of  consent  by  reason  of  being
   13  mentally disabled or mentally incapacitated.
   14    It  shall  be  an affirmative defense to the crime of [criminal sexual
   15  act] ANAL RAPE in the second degree as defined  in  subdivision  one  of
   16  this  section that the defendant was less than four years older than the
   17  victim at the time of the act.
   18    [Criminal sexual act] ANAL RAPE in the second  degree  is  a  class  D
   19  felony.
   20    S 4. Section 130.50 of the penal law, as amended by chapter 264 of the
   21  laws of 2003, is amended to read as follows:
   22  S 130.50 [Criminal sexual act] ANAL RAPE in the first degree.
   23    A  person  is  guilty  of [criminal sexual act] ANAL RAPE in the first
   24  degree when he or she engages in [oral sexual conduct  or]  anal  sexual
   25  conduct with another person:
   26    1. By forcible compulsion; or
   27    2. Who is incapable of consent by reason of being physically helpless;
   28  or
   29    3. Who is less than eleven years old; or
   30    4. Who is less than thirteen years old and the actor is eighteen years
   31  old or more.
   32    [Criminal sexual act] ANAL RAPE in the first degree is a class B felo-
   33  ny.
   34    S  5.  The penal law is amended by adding a new section 130.37 to read
   35  as follows:
   36  S 130.37 ORAL RAPE IN THE THIRD DEGREE.
   37    A PERSON IS GUILTY OF ORAL RAPE IN THE THIRD DEGREE WHEN:
   38    1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH A PERSON WHO IS INCA-
   39  PABLE OF CONSENT BY REASON OF SOME FACTOR OTHER  THAN  BEING  LESS  THAN
   40  SEVENTEEN YEARS OLD;
   41    2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU-
   42  AL CONDUCT WITH A PERSON LESS THAN SEVENTEEN YEARS OLD; OR
   43    3.  HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON WITH-
   44  OUT SUCH PERSON'S CONSENT WHERE SUCH LACK OF CONSENT  IS  BY  REASON  OF
   45  SOME FACTOR OTHER THAN INCAPACITY TO CONSENT.
   46    ORAL RAPE IN THE THIRD DEGREE IS A CLASS E FELONY.
   47    S  6.  The penal law is amended by adding a new section 130.38 to read
   48  as follows:
   49  S 130.38 ORAL RAPE IN THE SECOND DEGREE.
   50    A PERSON IS GUILTY OF ORAL RAPE IN THE SECOND DEGREE WHEN:
   51    1. BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL  SEXUAL
   52  CONDUCT WITH ANOTHER PERSON LESS THAN FIFTEEN YEARS OLD; OR
   53    2. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS
   54  INCAPABLE  OF  CONSENT  BY REASON OF BEING MENTALLY DISABLED OR MENTALLY
   55  INCAPACITATED.
       S. 4743                             3
    1    IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE CRIME OF ORAL  RAPE  IN  THE
    2  SECOND  DEGREE  AS  DEFINED  IN SUBDIVISION ONE OF THIS SECTION THAT THE
    3  DEFENDANT WAS LESS THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME  OF
    4  THE ACT.
    5    ORAL RAPE IN THE SECOND DEGREE IS A CLASS D FELONY.
    6    S  7.  The penal law is amended by adding a new section 130.39 to read
    7  as follows:
    8  S 130.39 ORAL RAPE IN THE FIRST DEGREE.
    9    A PERSON IS GUILTY OF ORAL RAPE IN THE FIRST DEGREE  WHEN  HE  OR  SHE
   10  ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON:
   11    1. BY FORCIBLE COMPULSION; OR
   12    2. WHO IS INCAPABLE OF CONSENT BY REASON OF BEING PHYSICALLY HELPLESS;
   13  OR
   14    3. WHO IS LESS THAN ELEVEN YEARS OLD; OR
   15    4. WHO IS LESS THAN THIRTEEN YEARS OLD AND THE ACTOR IS EIGHTEEN YEARS
   16  OLD OR MORE.
   17    ORAL RAPE IN THE FIRST DEGREE IS A CLASS B FELONY.
   18    S  8. Paragraph 2 of subdivision 18 of section 10.00 of the penal law,
   19  as amended by chapter 7 of the laws of  2007,  is  amended  to  read  as
   20  follows:
   21    (2) a person fourteen or fifteen years old who is criminally responsi-
   22  ble for acts constituting the crimes defined in subdivisions one and two
   23  of section 125.25 (murder in the second degree) and in subdivision three
   24  of such section provided that the underlying crime for the murder charge
   25  is  one  for which such person is criminally responsible; section 135.25
   26  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
   27  subdivisions  one  and  two  of  section  120.10  (assault  in the first
   28  degree); 125.20 (manslaughter in the first degree); subdivisions one and
   29  two of section 130.35 (rape in the first degree); subdivisions  one  and
   30  two  of  section  130.50  ([criminal  sexual act] ANAL RAPE in the first
   31  degree); SUBDIVISIONS ONE AND TWO OF SECTION 130.39 (ORAL  RAPE  IN  THE
   32  FIRST  DEGREE);  130.70  (aggravated  sexual abuse in the first degree);
   33  140.30 (burglary in the first degree); subdivision one of section 140.25
   34  (burglary in the second degree); 150.15 (arson in  the  second  degree);
   35  160.15  (robbery in the first degree); subdivision two of section 160.10
   36  (robbery in the second degree) of this chapter;  or  section  265.03  of
   37  this  chapter,  where  such  machine gun or such firearm is possessed on
   38  school grounds, as that phrase is defined  in  subdivision  fourteen  of
   39  section 220.00 of this chapter; or defined in this chapter as an attempt
   40  to commit murder in the second degree or kidnapping in the first degree,
   41  or  such conduct as a sexually motivated felony, where authorized pursu-
   42  ant to section 130.91 of [the penal law] THIS CHAPTER.
   43    S 9. Subdivision 2 of section 30.00 of the penal law,  as  amended  by
   44  chapter 7 of the laws of 2007, is amended to read as follows:
   45    2.  A  person thirteen, fourteen or fifteen years of age is criminally
   46  responsible for acts constituting murder in the second degree as defined
   47  in subdivisions one and two of section 125.25 and in  subdivision  three
   48  of such section provided that the underlying crime for the murder charge
   49  is  one  for  which  such  person  is criminally responsible or for such
   50  conduct as a sexually motivated felony,  where  authorized  pursuant  to
   51  section 130.91 of [the penal law] THIS CHAPTER; and a person fourteen or
   52  fifteen years of age is criminally responsible for acts constituting the
   53  crimes  defined  in  section  135.25  (kidnapping  in the first degree);
   54  150.20 (arson in the first degree); subdivisions one and two of  section
   55  120.10  (assault in the first degree); 125.20 (manslaughter in the first
   56  degree); subdivisions one and two of section 130.35 (rape in  the  first
       S. 4743                             4
    1  degree);  subdivisions  one  and two of section 130.50 ([criminal sexual
    2  act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION
    3  130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual  abuse
    4  in the first degree); 140.30 (burglary in the first degree); subdivision
    5  one  of section 140.25 (burglary in the second degree); 150.15 (arson in
    6  the second degree); 160.15 (robbery in the  first  degree);  subdivision
    7  two of section 160.10 (robbery in the second degree) of this chapter; or
    8  section  265.03  of this chapter, where such machine gun or such firearm
    9  is possessed on school grounds, as that phrase is defined in subdivision
   10  fourteen of section 220.00 of this chapter; or defined in  this  chapter
   11  as an attempt to commit murder in the second degree or kidnapping in the
   12  first  degree, or for such conduct as a sexually motivated felony, where
   13  authorized pursuant to section 130.91 of [the penal law] THIS CHAPTER.
   14    S 10. Paragraph (b) of subdivision 2 of section  35.15  of  the  penal
   15  law,  as  amended by chapter 511 of the laws of 2004, is amended to read
   16  as follows:
   17    (b) He or she reasonably believes that such other person is committing
   18  or attempting to commit a kidnapping, forcible rape, forcible  [criminal
   19  sexual act] ANAL RAPE, FORCIBLE ORAL RAPE or robbery; or
   20    S  11.  Paragraph  (b)  of subdivision 4 of section 35.30 of the penal
   21  law, as amended by chapter 264 of the laws of 2003, is amended  to  read
   22  as follows:
   23    (b)   Effect  the  arrest  of  a  person  who  has  committed  murder,
   24  manslaughter in the first degree, robbery, forcible rape [or],  forcible
   25  [criminal  sexual  act]  ANAL  RAPE  OR FORCIBLE ORAL RAPE and who is in
   26  immediate flight therefrom.
   27    S 12. Paragraph (a) of subdivision 1 of section  70.02  of  the  penal
   28  law,  as  amended by chapter 320 of the laws of 2006, is amended to read
   29  as follows:
   30    (a) Class B violent felony offenses: an attempt to  commit  the  class
   31  A-I  felonies  of  murder  in  the  second  degree as defined in section
   32  125.25, kidnapping in the first degree as defined in section 135.25, and
   33  arson in the first degree as defined in section 150.20; manslaughter  in
   34  the  first  degree as defined in section 125.20, aggravated manslaughter
   35  in the first degree as defined in section  125.22,  rape  in  the  first
   36  degree  as defined in section 130.35, [criminal sexual act] ANAL RAPE in
   37  the first degree as defined in section 130.50, ORAL RAPE  IN  THE  FIRST
   38  DEGREE  AS  DEFINED  IN  SECTION  130.39, aggravated sexual abuse in the
   39  first degree as defined in section  130.70,  course  of  sexual  conduct
   40  against  a  child  in  the  first  degree  as defined in section 130.75;
   41  assault in the first degree as defined in section 120.10, kidnapping  in
   42  the  second  degree  as defined in section 135.20, burglary in the first
   43  degree as defined in section 140.30,  arson  in  the  second  degree  as
   44  defined  in  section  150.15,  robbery in the first degree as defined in
   45  section 160.15, incest in the first degree as defined in section 255.27,
   46  criminal possession of a weapon  in  the  first  degree  as  defined  in
   47  section 265.04, criminal use of a firearm in the first degree as defined
   48  in  section  265.09,  criminal  sale of a firearm in the first degree as
   49  defined in section 265.13, aggravated assault upon a police officer or a
   50  peace officer as defined in section 120.11, gang assault  in  the  first
   51  degree as defined in section 120.07, intimidating a victim or witness in
   52  the  first degree as defined in section 215.17, hindering prosecution of
   53  terrorism in the first degree as defined  in  section  490.35,  criminal
   54  possession  of  a  chemical  weapon  or  biological weapon in the second
   55  degree as defined in section 490.40, and  criminal  use  of  a  chemical
       S. 4743                             5
    1  weapon  or  biological  weapon in the third degree as defined in section
    2  490.47.
    3    S  13.  Paragraph  (c)  of subdivision 1 of section 70.02 of the penal
    4  law, as amended by chapter 405 of the laws of 2010, is amended  to  read
    5  as follows:
    6    (c)  Class  D violent felony offenses: an attempt to commit any of the
    7  class C felonies set forth in paragraph (b); reckless assault of a child
    8  as defined in section 120.02, assault in the second degree as defined in
    9  section 120.05, menacing a police officer or peace officer as defined in
   10  section 120.18, stalking in the first degree, as defined in  subdivision
   11  one  of section 120.60, strangulation in the second degree as defined in
   12  section 121.12, rape in the second degree as defined in section  130.30,
   13  [criminal  sexual  act]  ANAL  RAPE  in  the second degree as defined in
   14  section 130.45, ORAL RAPE IN THE SECOND DEGREE  AS  DEFINED  IN  SECTION
   15  130.38,  sexual  abuse in the first degree as defined in section 130.65,
   16  course of sexual conduct against a child in the second degree as defined
   17  in section 130.80, aggravated  sexual  abuse  in  the  third  degree  as
   18  defined  in section 130.66, facilitating a sex offense with a controlled
   19  substance as defined in section 130.90, criminal possession of a  weapon
   20  in  the third degree as defined in subdivision five, six, seven or eight
   21  of section 265.02, criminal sale of a firearm in  the  third  degree  as
   22  defined  in  section  265.11,  intimidating  a  victim or witness in the
   23  second degree as defined in  section  215.16,  soliciting  or  providing
   24  support  for  an  act  of  terrorism  in the second degree as defined in
   25  section 490.10, and making a terroristic threat as  defined  in  section
   26  490.20,  falsely reporting an incident in the first degree as defined in
   27  section 240.60, placing a false bomb or hazardous substance in the first
   28  degree as defined in section 240.62, placing a false bomb  or  hazardous
   29  substance  in a sports stadium or arena, mass transportation facility or
   30  enclosed shopping mall as defined  in  section  240.63,  and  aggravated
   31  unpermitted use of indoor pyrotechnics in the first degree as defined in
   32  section 405.18.
   33    S  14.  Paragraph  (c)  of subdivision 1 of section 70.02 of the penal
   34  law, as amended by chapter 1 of the laws of 2013, is amended to read  as
   35  follows:
   36    (c)  Class  D violent felony offenses: an attempt to commit any of the
   37  class C felonies set forth in paragraph (b); reckless assault of a child
   38  as defined in section 120.02, assault in the second degree as defined in
   39  section 120.05, menacing a police officer or peace officer as defined in
   40  section 120.18, stalking in the first degree, as defined in  subdivision
   41  one  of section 120.60, strangulation in the second degree as defined in
   42  section 121.12, rape in the second degree as defined in section  130.30,
   43  [criminal  sexual  act]  ANAL  RAPE  in  the second degree as defined in
   44  section 130.45, ORAL RAPE IN THE SECOND DEGREE  AS  DEFINED  IN  SECTION
   45  130.38,  sexual  abuse in the first degree as defined in section 130.65,
   46  course of sexual conduct against a child in the second degree as defined
   47  in section 130.80, aggravated  sexual  abuse  in  the  third  degree  as
   48  defined  in section 130.66, facilitating a sex offense with a controlled
   49  substance as defined in section 130.90, criminal possession of a  weapon
   50  in  the  third degree as defined in subdivision five, six, seven, eight,
   51  nine or ten of section 265.02, criminal sale of a firearm in  the  third
   52  degree as defined in section 265.11, intimidating a victim or witness in
   53  the  second degree as defined in section 215.16, soliciting or providing
   54  support for an act of terrorism in  the  second  degree  as  defined  in
   55  section  490.10,  and  making a terroristic threat as defined in section
   56  490.20, falsely reporting an incident in the first degree as defined  in
       S. 4743                             6
    1  section 240.60, placing a false bomb or hazardous substance in the first
    2  degree  as  defined in section 240.62, placing a false bomb or hazardous
    3  substance in a sports stadium or arena, mass transportation facility  or
    4  enclosed  shopping  mall  as  defined  in section 240.63, and aggravated
    5  unpermitted use of indoor pyrotechnics in the first degree as defined in
    6  section 405.18.
    7    S 15. The opening paragraph of subdivision 3 of section 125.25 of  the
    8  penal  law, as amended by chapter 264 of the laws of 2003, is amended to
    9  read as follows:
   10    Acting either alone or with one or more other persons, he  commits  or
   11  attempts  to  commit  robbery,  burglary, kidnapping, arson, rape in the
   12  first degree, [criminal sexual act] ANAL RAPE in the first degree,  ORAL
   13  RAPE  IN  THE FIRST DEGREE, sexual abuse in the first degree, aggravated
   14  sexual abuse, escape in the  first  degree,  or  escape  in  the  second
   15  degree,  and,  in  the  course of and in furtherance of such crime or of
   16  immediate flight therefrom, he, or another participant, if there be any,
   17  causes the death of a person other than one of the participants;  except
   18  that  in  any prosecution under this subdivision, in which the defendant
   19  was not the only participant in the underlying crime, it is an  affirma-
   20  tive defense that the defendant:
   21    S  16. Subdivision 5 of section 125.25 of the penal law, as amended by
   22  chapter 320 of the laws of 2006, is amended to read as follows:
   23    5. Being eighteen years old or more, while in the course of committing
   24  rape in the first, second or third degree, [criminal  sexual  act]  ANAL
   25  RAPE  in  the  first,  second  or  third degree, ORAL RAPE IN THE FIRST,
   26  SECOND OR THIRD DEGREE, sexual abuse in  the  first  degree,  aggravated
   27  sexual  abuse in the first, second, third or fourth degree, or incest in
   28  the first, second or third degree, against a person less  than  fourteen
   29  years old, he or she intentionally causes the death of such person.
   30    S  17. Subparagraph (vii) of paragraph (a) of subdivision 1 of section
   31  125.27 of the penal law, as amended by chapter 264 of the laws of  2003,
   32  is amended to read as follows:
   33    (vii)  the  victim was killed while the defendant was in the course of
   34  committing or attempting  to  commit  and  in  furtherance  of  robbery,
   35  burglary  in  the first degree or second degree, kidnapping in the first
   36  degree, arson in the first degree or second degree, rape  in  the  first
   37  degree,  [criminal  sexual act] ANAL RAPE in the first degree, ORAL RAPE
   38  IN THE FIRST DEGREE, sexual abuse in the first degree, aggravated sexual
   39  abuse in the first degree or escape in  the  first  degree,  or  in  the
   40  course  of  and  furtherance  of  immediate  flight  after committing or
   41  attempting to commit any such crime or in the course of and  furtherance
   42  of  immediate  flight  after attempting to commit the crime of murder in
   43  the second degree; provided however, the victim is not a participant  in
   44  one  of the aforementioned crimes and, provided further that, unless the
   45  defendant's criminal liability under this subparagraph is based upon the
   46  defendant having commanded another person to  cause  the  death  of  the
   47  victim  or  intended  victim  pursuant to section 20.00 of this chapter,
   48  this subparagraph shall not apply where the defendant's criminal liabil-
   49  ity is based upon the conduct of another pursuant to  section  20.00  of
   50  this chapter; or
   51    S  18.  Paragraph  (d) of subdivision 2 of section 130.05 of the penal
   52  law, as amended by chapter 40 of the laws of 2004, is amended to read as
   53  follows:
   54    (d) Where the offense charged is rape in the third degree  as  defined
   55  in  subdivision  three  of section 130.25, [or criminal sexual act] ANAL
   56  RAPE in the third degree as defined  in  subdivision  three  of  section
       S. 4743                             7
    1  130.40, OR ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE
    2  OF  SECTION  130.37,  in  addition to forcible compulsion, circumstances
    3  under which, at the time of the act of intercourse, oral sexual  conduct
    4  or  anal sexual conduct, the victim clearly expressed that he or she did
    5  not consent to engage in such  act,  and  a  reasonable  person  in  the
    6  actor's  situation would have understood such person's words and acts as
    7  an expression of lack of consent to  such  act  under  all  the  circum-
    8  stances.
    9    S  19.  Paragraph  (h) of subdivision 3 of section 130.05 of the penal
   10  law, as amended by section 2 of part G of chapter 501  of  the  laws  of
   11  2012, is amended to read as follows:
   12    (h)  a  client  or  patient and the actor is a health care provider or
   13  mental health care provider charged with rape in  the  third  degree  as
   14  defined  in section 130.25, [criminal sexual act] ANAL RAPE in the third
   15  degree as defined in section 130.40, ORAL RAPE IN THE  THIRD  DEGREE  AS
   16  DEFINED  IN SECTION 130.37, aggravated sexual abuse in the fourth degree
   17  as defined in section 130.65-a, or sexual abuse in the third  degree  as
   18  defined in section 130.55, and the act of sexual conduct occurs during a
   19  treatment session, consultation, interview, or examination; or
   20    S  20. Subdivision 3 of section 130.10 of the penal law, as amended by
   21  chapter 264 of the laws of 2003, is amended to read as follows:
   22    3. In any prosecution for the crime of rape in  the  third  degree  as
   23  defined  in section 130.25, [criminal sexual act] ANAL RAPE in the third
   24  degree as defined in section 130.40, ORAL RAPE IN THE  THIRD  DEGREE  AS
   25  DEFINED  IN SECTION 130.37, aggravated sexual abuse in the fourth degree
   26  as defined in section 130.65-a, or sexual abuse in the third  degree  as
   27  defined in section 130.55 in which incapacity to consent is based on the
   28  circumstances set forth in paragraph (h) of subdivision three of section
   29  130.05  of  this  article  it  shall  be an affirmative defense that the
   30  client or patient consented to such conduct charged  after  having  been
   31  expressly advised by the health care or mental health care provider that
   32  such conduct was not performed for a valid medical purpose.
   33    S 21. The opening paragraph and subdivision 2 of section 130.95 of the
   34  penal  law,  as added by chapter 107 of the laws of 2006, are amended to
   35  read as follows:
   36    A person is guilty of predatory sexual assault when he or she  commits
   37  the  crime  of rape in the first degree, [criminal sexual act] ANAL RAPE
   38  in the first degree, ORAL RAPE IN THE FIRST  DEGREE,  aggravated  sexual
   39  abuse  in  the first degree, or course of sexual conduct against a child
   40  in the first degree, as defined in this article, and when:
   41    2. He or she has engaged in conduct constituting the crime of rape  in
   42  the  first  degree, [criminal sexual act] ANAL RAPE in the first degree,
   43  ORAL RAPE IN THE FIRST DEGREE, aggravated  sexual  abuse  in  the  first
   44  degree, or course of sexual conduct against a child in the first degree,
   45  as defined in this article, against one or more additional persons; or
   46    S  22.  The  opening  paragraph of section 130.96 of the penal law, as
   47  added by chapter 107 of the laws of 2006, is amended to read as follows:
   48    A person is guilty of predatory sexual assault against a  child  when,
   49  being eighteen years old or more, he or she commits the crime of rape in
   50  the  first  degree, [criminal sexual act] ANAL RAPE in the first degree,
   51  ORAL RAPE IN THE FIRST DEGREE, aggravated  sexual  abuse  in  the  first
   52  degree, or course of sexual conduct against a child in the first degree,
   53  as  defined  in this article, and the victim is less than thirteen years
   54  old.
   55    S 23. Subdivision 1 of section 235.00 of the penal law, as amended  by
   56  chapter 264 of the laws of 2003, is amended to read as follows:
       S. 4743                             8
    1    1.  "Obscene."  Any  material  or  performance is "obscene" if (a) the
    2  average person, applying contemporary community  standards,  would  find
    3  that  considered  as  a whole, its predominant appeal is to the prurient
    4  interest in sex, and (b) it depicts or describes in a patently offensive
    5  manner,  actual  or simulated: sexual intercourse, [criminal sexual act]
    6  ANAL RAPE, ORAL RAPE, sexual  bestiality,  masturbation,  sadism,  maso-
    7  chism,  excretion or lewd exhibition of the genitals, and (c) considered
    8  as a whole, it lacks serious literary, artistic, political,  and  scien-
    9  tific  value. Predominant appeal shall be judged with reference to ordi-
   10  nary adults unless it appears from the character of the material or  the
   11  circumstances  of its dissemination to be designed for children or other
   12  specially susceptible audience.
   13    S 24. Subdivision 7 of section 235.00 of the penal law is REPEALED.
   14    S 25. Subdivision 2 of section 240.75 of the penal law,  as  added  by
   15  section  2  of  part D of chapter 491 of the laws of 2012, is amended to
   16  read as follows:
   17    2. A "specified offense" is  an  offense  defined  in  section  120.00
   18  (assault  in  the  third  degree); section 120.05 (assault in the second
   19  degree); section 120.10 (assault in the first  degree);  section  120.13
   20  (menacing  in  the first degree); section 120.14 (menacing in the second
   21  degree); section 120.15 (menacing in the third degree);  section  120.20
   22  (reckless  endangerment  in the second degree); section 120.25 (reckless
   23  endangerment in the first  degree);  section  120.45  (stalking  in  the
   24  fourth  degree);  section 120.50 (stalking in the third degree); section
   25  120.55 (stalking in the second degree); section 120.60 (stalking in  the
   26  first  degree);  section  121.11  (criminal  obstruction of breathing or
   27  blood circulation); section 121.12 (strangulation in the second degree);
   28  section 121.13 (strangulation in the first degree); subdivision  one  of
   29  section 125.15 (manslaughter in the second degree); subdivision one, two
   30  or  four  of  section 125.20 (manslaughter in the first degree); section
   31  125.25 (murder in the second degree);  section  130.20  (sexual  miscon-
   32  duct);  section 130.30 (rape in the second degree); section 130.35 (rape
   33  in the first degree); section 130.40 ([criminal sexual act] ANAL RAPE in
   34  the third degree); SECTION 130.37  (ORAL  RAPE  IN  THE  THIRD  DEGREE);
   35  section  130.45  ([criminal sexual act] ANAL RAPE in the second degree);
   36  SECTION 130.38 (ORAL RAPE IN THE SECOND DEGREE); section 130.50 ([crimi-
   37  nal sexual act] ANAL RAPE in the first  degree);  SECTION  130.39  (ORAL
   38  RAPE  IN  THE FIRST DEGREE); section 130.52 (forcible touching); section
   39  130.53 (persistent sexual abuse); section 130.55 (sexual  abuse  in  the
   40  third  degree);  section  130.60  (sexual  abuse  in the second degree);
   41  section 130.65 (sexual  abuse  in  the  first  degree);  section  130.66
   42  (aggravated  sexual  abuse  in the third degree); section 130.67 (aggra-
   43  vated sexual abuse in the second  degree);  section  130.70  (aggravated
   44  sexual  abuse  in  the first degree); section 130.91 (sexually motivated
   45  felony); section  130.95  (predatory  sexual  assault);  section  130.96
   46  (predatory  sexual  assault  against  a child); section 135.05 (unlawful
   47  imprisonment in the second degree); section 135.10  (unlawful  imprison-
   48  ment  in  the  first  degree);  section  135.60  (coercion in the second
   49  degree); section 135.65 (coercion in the first degree);  section  140.20
   50  (burglary  in  the third degree); section 140.25 (burglary in the second
   51  degree); section 140.30 (burglary in the first degree);  section  145.00
   52  (criminal  mischief  in  the  fourth  degree);  section 145.05 (criminal
   53  mischief in the third degree); section 145.10 (criminal mischief in  the
   54  second  degree); section 145.12 (criminal mischief in the first degree);
   55  section 145.14 (criminal tampering in the third degree); section  215.50
   56  (criminal  contempt  in  the  second  degree);  section 215.51 (criminal
       S. 4743                             9
    1  contempt in the  first  degree);  section  215.52  (aggravated  criminal
    2  contempt);  section 240.25 (harassment in the first degree); subdivision
    3  one, two or four of section 240.30 (aggravated harassment in the  second
    4  degree);  aggravated  family  offense  as defined in this section or any
    5  attempt or conspiracy to commit any of the foregoing offenses where  the
    6  defendant  and  the  person  against whom the offense was committed were
    7  members of the same family or household as defined in subdivision one of
    8  section 530.11 of the criminal procedure law.
    9    S 26. The opening paragraph of section 255.26 of  the  penal  law,  as
   10  added by chapter 320 of the laws of 2006, is amended to read as follows:
   11    A  person  is  guilty  of  incest  in the second degree when he or she
   12  commits the crime of rape in the second degree, as  defined  in  section
   13  130.30  of  this  part, [or criminal sexual act] ANAL RAPE in the second
   14  degree, as defined in section 130.45 of this part, OR ORAL RAPE  IN  THE
   15  SECOND  DEGREE  AS  DEFINED  IN  SECTION  130.38 OF THIS PART, against a
   16  person whom he or she knows to be related to him or her, whether through
   17  marriage or not, as an ancestor, descendant, brother or sister of either
   18  the whole or the half blood, uncle, aunt, nephew or niece.
   19    S 27. The opening paragraph of section 255.27 of  the  penal  law,  as
   20  added by chapter 320 of the laws of 2006, is amended to read as follows:
   21    A  person  is  guilty  of  incest  in  the first degree when he or she
   22  commits the crime of rape in the first degree, as defined in subdivision
   23  three or four of section 130.35 of this part, [or criminal  sexual  act]
   24  ANAL  RAPE  in the first degree, as defined in subdivision three or four
   25  of section 130.50 of this part, OR ORAL RAPE IN  THE  FIRST  DEGREE,  AS
   26  DEFINED  IN  SUBDIVISION  THREE  OR FOUR OF SECTION 130.39 OF THIS PART,
   27  against a person whom he or she knows to  be  related  to  him  or  her,
   28  whether  through marriage or not, as an ancestor, descendant, brother or
   29  sister of either the whole or half blood, uncle, aunt, nephew or niece.
   30    S 28. Paragraph (a) of subdivision 17 of section 265.00 of  the  penal
   31  law,  as  amended by chapter 264 of the laws of 2003, is amended to read
   32  as follows:
   33    (a) any of the following offenses defined in the former penal  law  as
   34  in  force  and  effect  immediately  prior  to September first, nineteen
   35  hundred sixty-seven: illegally using, carrying or possessing a pistol or
   36  other dangerous weapon;  making  or  possessing  burglar's  instruments;
   37  buying  or  receiving  stolen  property;  unlawful  entry of a building;
   38  aiding escape from prison; that kind of disorderly  conduct  defined  in
   39  subdivisions  six  and eight of section seven hundred twenty-two of such
   40  former penal law; violations of sections four hundred eighty-three, four
   41  hundred eighty-three-b,  four  hundred  eighty-four-h  and  article  one
   42  hundred six of such former penal law; that kind of [criminal sexual act]
   43  ANAL  RAPE,  ORAL  RAPE  or  rape which was designated as a misdemeanor;
   44  violation of  section  seventeen  hundred  forty-seven-d  and  seventeen
   45  hundred  forty-seven-e  of  such  former penal law; any violation of any
   46  provision of article thirty-three of the public health law  relating  to
   47  narcotic  drugs  which was defined as a misdemeanor by section seventeen
   48  hundred fifty-one-a of such former penal law, and any violation  of  any
   49  provision of article thirty-three-A of the public health law relating to
   50  depressant  and  stimulant  drugs  which was defined as a misdemeanor by
   51  section seventeen hundred forty-seven-b of such former penal law.
   52    S 29. Subdivision 3 of section 485.05 of the penal law, as amended  by
   53  chapter 405 of the laws of 2010, is amended to read as follows:
   54    3. A "specified offense" is an offense defined by any of the following
   55  provisions  of  this  chapter:  section  120.00  (assault  in  the third
   56  degree); section 120.05 (assault in the second degree);  section  120.10
       S. 4743                            10
    1  (assault in the first degree); section 120.12 (aggravated assault upon a
    2  person  less  than  eleven  years  old); section 120.13 (menacing in the
    3  first degree); section 120.14 (menacing in the second  degree);  section
    4  120.15  (menacing  in the third degree); section 120.20 (reckless endan-
    5  germent in the second degree); section 120.25 (reckless endangerment  in
    6  the  first degree); section 121.12 (strangulation in the second degree);
    7  section 121.13 (strangulation in the first degree); subdivision  one  of
    8  section 125.15 (manslaughter in the second degree); subdivision one, two
    9  or  four  of  section 125.20 (manslaughter in the first degree); section
   10  125.25 (murder in the second degree); section 120.45  (stalking  in  the
   11  fourth  degree);  section 120.50 (stalking in the third degree); section
   12  120.55 (stalking in the second degree); section 120.60 (stalking in  the
   13  first  degree);  subdivision  one  of  section 130.35 (rape in the first
   14  degree); subdivision one of section 130.50 ([criminal sexual  act]  ANAL
   15  RAPE  in the first degree); SUBDIVISION ONE OF SECTION 130.39 (ORAL RAPE
   16  IN THE FIRST DEGREE); subdivision one of section 130.65 (sexual abuse in
   17  the first degree); paragraph (a) of subdivision one  of  section  130.67
   18  (aggravated  sexual abuse in the second degree); paragraph (a) of subdi-
   19  vision one of section 130.70  (aggravated  sexual  abuse  in  the  first
   20  degree);  section  135.05  (unlawful imprisonment in the second degree);
   21  section 135.10 (unlawful imprisonment  in  the  first  degree);  section
   22  135.20  (kidnapping in the second degree); section 135.25 (kidnapping in
   23  the first degree); section  135.60  (coercion  in  the  second  degree);
   24  section  135.65 (coercion in the first degree); section 140.10 (criminal
   25  trespass in the third degree); section 140.15 (criminal trespass in  the
   26  second  degree); section 140.17 (criminal trespass in the first degree);
   27  section 140.20 (burglary in the third degree); section 140.25  (burglary
   28  in  the  second  degree); section 140.30 (burglary in the first degree);
   29  section 145.00 (criminal mischief in the fourth degree); section  145.05
   30  (criminal  mischief  in  the  third  degree);  section  145.10 (criminal
   31  mischief in the second degree); section 145.12 (criminal mischief in the
   32  first degree); section 150.05 (arson  in  the  fourth  degree);  section
   33  150.10  (arson in the third degree); section 150.15 (arson in the second
   34  degree); section 150.20 (arson in  the  first  degree);  section  155.25
   35  (petit  larceny);  section  155.30 (grand larceny in the fourth degree);
   36  section 155.35 (grand larceny  in  the  third  degree);  section  155.40
   37  (grand  larceny  in the second degree); section 155.42 (grand larceny in
   38  the first degree); section 160.05 (robbery in the third degree); section
   39  160.10 (robbery in the second degree); section 160.15  (robbery  in  the
   40  first degree); section 240.25 (harassment in the first degree); subdivi-
   41  sion  one,  two  or four of section 240.30 (aggravated harassment in the
   42  second degree); or any attempt or conspiracy to commit any of the  fore-
   43  going offenses.
   44    S 30. Subdivision 42 of section 1.20 of the criminal procedure law, as
   45  amended by chapter 7 of the laws of 2007, is amended to read as follows:
   46    42.  "Juvenile offender" means (1) a person, thirteen years old who is
   47  criminally responsible for acts constituting murder in the second degree
   48  as defined in subdivisions one and two of section 125.25  of  the  penal
   49  law,  or  such  conduct as a sexually motivated felony, where authorized
   50  pursuant to section 130.91 of the penal law; and (2) a  person  fourteen
   51  or fifteen years old who is criminally responsible for acts constituting
   52  the crimes defined in subdivisions one and two of section 125.25 (murder
   53  in  the second degree) and in subdivision three of such section provided
   54  that the underlying crime for the murder charge is one  for  which  such
   55  person  is  criminally  responsible;  section  135.25 (kidnapping in the
   56  first degree); 150.20 (arson in the first degree); subdivisions one  and
       S. 4743                            11
    1  two of section 120.10 (assault in the first degree); 125.20 (manslaught-
    2  er  in  the  first  degree);  subdivisions one and two of section 130.35
    3  (rape in the first degree); subdivisions one and two of  section  130.50
    4  ([criminal  sexual act] ANAL RAPE in the first degree); SUBDIVISIONS ONE
    5  AND TWO OF SECTION 130.39  (ORAL  RAPE  IN  THE  FIRST  DEGREE);  130.70
    6  (aggravated  sexual  abuse in the first degree); 140.30 (burglary in the
    7  first degree); subdivision one of section 140.25 (burglary in the second
    8  degree); 150.15 (arson in the second degree);  160.15  (robbery  in  the
    9  first  degree); subdivision two of section 160.10 (robbery in the second
   10  degree) of the penal law; or section 265.03 of the penal law, where such
   11  machine gun or such firearm is possessed  on  school  grounds,  as  that
   12  phrase is defined in subdivision fourteen of section 220.00 of the penal
   13  law;  or  defined in the penal law as an attempt to commit murder in the
   14  second degree or kidnapping in the first degree, or such  conduct  as  a
   15  sexually  motivated  felony, where authorized pursuant to section 130.91
   16  of the penal law.
   17    S 31. Subdivision 4 of section 180.75 of the criminal  procedure  law,
   18  as  amended  by  chapter  264 of the laws of 2003, is amended to read as
   19  follows:
   20    4. Notwithstanding the provisions of subdivisions  two  and  three  of
   21  this  section,  a  local  criminal  court  shall,  at the request of the
   22  district attorney, order removal of an action against a juvenile  offen-
   23  der  to  the  family  court  pursuant to the provisions of article seven
   24  hundred twenty-five of this chapter if, upon consideration of the crite-
   25  ria specified in subdivision two of section 210.43 of this  chapter,  it
   26  is  determined  that  to  do  so  would  be in the interests of justice.
   27  Where, however, the felony complaint charges the juvenile offender  with
   28  murder  in  the  second degree as defined in section 125.25 of the penal
   29  law, rape in the first degree as defined in subdivision one  of  section
   30  130.35  of  the  penal law, [criminal sexual act] ANAL RAPE in the first
   31  degree as defined in subdivision one of section 130.50 of the penal law,
   32  ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE  OF  SECTION
   33  130.39  OF THE PENAL LAW, or an armed felony as defined in paragraph (a)
   34  of subdivision forty-one of section 1.20 of  this  chapter,  a  determi-
   35  nation  that  such action be removed to the family court shall, in addi-
   36  tion, be based upon a finding of one or more of the  following  factors:
   37  (i) mitigating circumstances that bear directly upon the manner in which
   38  the  crime  was  committed; or (ii) where the defendant was not the sole
   39  participant in the crime, the defendant's participation  was  relatively
   40  minor  although  not  so  minor as to constitute a defense to the prose-
   41  cution; or (iii) possible deficiencies in proof of the crime.
   42    S 32. Subdivision (a) of section 190.71 of the criminal procedure law,
   43  as amended by chapter 7 of the laws of  2007,  is  amended  to  read  as
   44  follows:
   45    (a)  Except  as  provided in subdivision six of section 200.20 of this
   46  chapter, a grand jury may not indict (i) a person thirteen years of  age
   47  for any conduct or crime other than conduct constituting a crime defined
   48  in  subdivisions  one  and  two  of section 125.25 (murder in the second
   49  degree) or such conduct as a sexually motivated felony, where authorized
   50  pursuant to section 130.91 of the penal law; (ii) a person  fourteen  or
   51  fifteen years of age for any conduct or crime other than conduct consti-
   52  tuting  a  crime  defined  in subdivisions one and two of section 125.25
   53  (murder in the second degree) and in subdivision three of  such  section
   54  provided  that  the  underlying  crime  for the murder charge is one for
   55  which such person is criminally responsible; 135.25 (kidnapping  in  the
   56  first  degree); 150.20 (arson in the first degree); subdivisions one and
       S. 4743                            12
    1  two of section 120.10 (assault in the first degree); 125.20 (manslaught-
    2  er in the first degree); subdivisions one  and  two  of  section  130.35
    3  (rape  in  the first degree); subdivisions one and two of section 130.50
    4  ([criminal sexual act] ANAL RAPE in the first degree);  SUBDIVISIONS ONE
    5  AND  TWO  OF  SECTION  130.39  (ORAL  RAPE  IN THE FIRST DEGREE); 130.70
    6  (aggravated sexual abuse in the first degree); 140.30 (burglary  in  the
    7  first degree); subdivision one of section 140.25 (burglary in the second
    8  degree);  150.15  (arson  in  the second degree); 160.15 (robbery in the
    9  first degree); subdivision two of section 160.10 (robbery in the  second
   10  degree)  of  the  penal  law; [subdivision four of section 265.02 of the
   11  penal law, where such firearm is possessed on school  grounds,  as  that
   12  phrase is defined in subdivision fourteen of section 220.00 of the penal
   13  law;] or section 265.03 of the penal law, where such machine gun or such
   14  firearm  is  possessed  on  school grounds, as that phrase is defined in
   15  subdivision fourteen of section 220.00 of the penal law; or  defined  in
   16  the  penal  law  as  an attempt to commit murder in the second degree or
   17  kidnapping in the first degree, or such conduct as a sexually  motivated
   18  felony, where authorized pursuant to section 130.91 of the penal law.
   19    S 33. Paragraph (b) of subdivision 1 of section 210.43 of the criminal
   20  procedure law, as amended by chapter 264 of the laws of 2003, is amended
   21  to read as follows:
   22    (b)  with  the  consent  of the district attorney, order removal of an
   23  action involving an indictment charging a juvenile offender with  murder
   24  in the second degree as defined in section 125.25 of the penal law; rape
   25  in  the first degree, as defined in subdivision one of section 130.35 of
   26  the penal law; [criminal sexual act] ANAL RAPE in the first  degree,  as
   27  defined in subdivision one of section 130.50 of the penal law; ORAL RAPE
   28  IN  THE FIRST DEGREE, AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39 OF
   29  THE PENAL LAW; or an armed felony as defined in paragraph (a) of  subdi-
   30  vision  forty-one  of  section 1.20, to the family court pursuant to the
   31  provisions of article seven hundred twenty-five of this chapter  if  the
   32  court finds one or more of the following factors: (i) mitigating circum-
   33  stances  that  bear  directly  upon  the  manner  in which the crime was
   34  committed; (ii) where the defendant was not the sole participant in  the
   35  crime,  the  defendant's participation was relatively minor although not
   36  so minor as to constitute a defense to the prosecution; or (iii)  possi-
   37  ble  deficiencies in the proof of the crime, and, after consideration of
   38  the factors set forth in subdivision two  of  this  section,  the  court
   39  determined  that  removal  of the action to the family court would be in
   40  the interests of justice.
   41    S 34. Subparagraph (iii) of paragraph (g) of subdivision 5 of  section
   42  220.10  of  the criminal procedure law, as amended by chapter 264 of the
   43  laws of 2003, is amended to read as follows:
   44    (iii) Where the indictment  does  not  charge  a  crime  specified  in
   45  subparagraph  (i) of this paragraph, the district attorney may recommend
   46  removal of the action to the family court. Upon making such  recommenda-
   47  tion  the district attorney shall submit a subscribed memorandum setting
   48  forth: (1) a recommendation that the interests of justice would best  be
   49  served  by  removal  of  the  action to the family court; and (2) if the
   50  indictment charges a thirteen year old with the crime of murder  in  the
   51  second degree, or a fourteen or fifteen year old with the crimes of rape
   52  in  the  first degree as defined in subdivision one of section 130.35 of
   53  the penal law, or [criminal sexual act] ANAL RAPE in the first degree as
   54  defined in subdivision one of section 130.50 of the penal law,  OR  ORAL
   55  RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39
   56  OF  THE  PENAL  LAW,  or  an armed felony as defined in paragraph (a) of
       S. 4743                            13
    1  subdivision forty-one of section 1.20 of this chapter specific  factors,
    2  one  or  more  of which reasonably supports the recommendation, showing,
    3  (i) mitigating circumstances that bear directly upon the manner in which
    4  the  crime  was  committed, or (ii) where the defendant was not the sole
    5  participant in the crime, that the defendant's participation  was  rela-
    6  tively  minor  although  not  so minor as to constitute a defense to the
    7  prosecution, or (iii) possible deficiencies in proof of  the  crime,  or
    8  (iv) where the juvenile offender has no previous adjudications of having
    9  committed  a  designated  felony act, as defined in subdivision eight of
   10  section 301.2 of the family court act, regardless  of  the  age  of  the
   11  offender at the time of commission of the act, that the criminal act was
   12  not  part  of a pattern of criminal behavior and, in view of the history
   13  of the offender, is not likely to be repeated.
   14    S 35. Subdivision 6 of section 300.50 of the criminal  procedure  law,
   15  as  amended  by  chapter  264 of the laws of 2003, is amended to read as
   16  follows:
   17    6. For purposes of this section, the offenses of  rape  in  the  third
   18  degree  as  defined  in subdivision three of section 130.25 of the penal
   19  law [and criminal sexual act], ANAL RAPE in the third degree as  defined
   20  in subdivision three of section 130.40 of the penal law AND ORAL RAPE IN
   21  THE  THIRD  DEGREE  AS DEFINED IN SUBDIVISION THREE OF SECTION 130.37 OF
   22  THE PENAL LAW, are not lesser included offenses of  rape  in  the  first
   23  degree,  [criminal  sexual act] ANAL RAPE in the first degree, ORAL RAPE
   24  IN THE FIRST DEGREE or any other offense. Notwithstanding the foregoing,
   25  either such offense may be submitted as a lesser included offense of the
   26  applicable first degree offense when (i) there is a reasonable  view  of
   27  the  evidence which would support a finding that the defendant committed
   28  such lesser offense but did not commit the  greater  offense,  and  (ii)
   29  both parties consent to its submission.
   30    S 36. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
   31  procedure law, as amended by chapter 405 of the laws of 2010, is amended
   32  to read as follows:
   33    (b)  Any  of  the  following felonies: assault in the second degree as
   34  defined in section 120.05 of the penal law, assault in the first  degree
   35  as  defined in section 120.10 of the penal law, reckless endangerment in
   36  the first degree as defined in section 120.25 of the penal law,  promot-
   37  ing  a  suicide  attempt  as defined in section 120.30 of the penal law,
   38  strangulation in the second degree as defined in section 121.12  of  the
   39  penal  law,  strangulation  in  the  first  degree as defined in section
   40  121.13 of the penal law, criminally negligent  homicide  as  defined  in
   41  section  125.10  of  the penal law, manslaughter in the second degree as
   42  defined in section 125.15 of the penal law, manslaughter  in  the  first
   43  degree  as  defined  in  section  125.20 of the penal law, murder in the
   44  second degree as defined in section 125.25 of the penal law,  murder  in
   45  the first degree as defined in section 125.27 of the penal law, abortion
   46  in  the  second  degree  as  defined in section 125.40 of the penal law,
   47  abortion in the first degree as defined in section 125.45 of  the  penal
   48  law,  rape in the third degree as defined in section 130.25 of the penal
   49  law, rape in the second degree as defined in section 130.30 of the penal
   50  law, rape in the first degree as defined in section 130.35 of the  penal
   51  law,  [criminal  sexual act] ANAL RAPE in the third degree as defined in
   52  section 130.40 of the penal law, [criminal sexual act] ORAL RAPE IN  THE
   53  THIRD DEGREE AS DEFINED IN SECTION 130.37 OF THE PENAL LAW, ANAL RAPE in
   54  the second degree as defined in section 130.45 of the penal law, [crimi-
   55  nal  sexual  act]  ORAL  RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION
   56  130.38 OF THE PENAL LAW, ANAL RAPE in the first  degree  as  defined  in
       S. 4743                            14
    1  section  130.50  of  the  penal  law,  ORAL  RAPE IN THE FIRST DEGREE AS
    2  DEFINED IN SECTION 130.39 OF THE PENAL LAW, sexual abuse  in  the  first
    3  degree as defined in section 130.65 of the penal law, unlawful imprison-
    4  ment  in the first degree as defined in section 135.10 of the penal law,
    5  kidnapping in the second degree as defined  in  section  135.20  of  the
    6  penal  law,  kidnapping in the first degree as defined in section 135.25
    7  of the penal law, labor trafficking as defined in section 135.35 of  the
    8  penal  law,  custodial  interference  in  the first degree as defined in
    9  section 135.50 of the penal law, coercion in the first degree as defined
   10  in section 135.65 of the penal  law,  criminal  trespass  in  the  first
   11  degree  as  defined  in section 140.17 of the penal law, burglary in the
   12  third degree as defined in section 140.20 of the penal law, burglary  in
   13  the  second  degree  as  defined  in  section  140.25  of the penal law,
   14  burglary in the first degree as defined in section 140.30 of  the  penal
   15  law,  criminal mischief in the third degree as defined in section 145.05
   16  of the penal law, criminal mischief in the second degree as  defined  in
   17  section  145.10  of the penal law, criminal mischief in the first degree
   18  as defined in section 145.12 of the penal law, criminal tampering in the
   19  first degree as defined in section 145.20 of the penal law, arson in the
   20  fourth degree as defined in section 150.05 of the penal  law,  arson  in
   21  the third degree as defined in section 150.10 of the penal law, arson in
   22  the  second  degree as defined in section 150.15 of the penal law, arson
   23  in the first degree as defined in section 150.20 of the penal law, grand
   24  larceny in the fourth degree as defined in section 155.30 of  the  penal
   25  law,  grand  larceny in the third degree as defined in section 155.35 of
   26  the penal law, grand larceny in the second degree as defined in  section
   27  155.40 of the penal law, grand larceny in the first degree as defined in
   28  section  155.42 of the penal law, health care fraud in the fourth degree
   29  as defined in section 177.10 of the penal law, health care fraud in  the
   30  third  degree as defined in section 177.15 of the penal law, health care
   31  fraud in the second degree as defined in section  177.20  of  the  penal
   32  law,  health care fraud in the first degree as defined in section 177.25
   33  of the penal law, robbery in the third  degree  as  defined  in  section
   34  160.05  of  the  penal  law,  robbery in the second degree as defined in
   35  section 160.10 of the penal law, robbery in the first degree as  defined
   36  in  section  160.15  of the penal law, unlawful use of secret scientific
   37  material as defined  in  section  165.07  of  the  penal  law,  criminal
   38  possession of stolen property in the fourth degree as defined in section
   39  165.45  of  the penal law, criminal possession of stolen property in the
   40  third degree as defined in section 165.50 of  the  penal  law,  criminal
   41  possession of stolen property in the second degree as defined by section
   42  165.52  of  the penal law, criminal possession of stolen property in the
   43  first degree as defined by section 165.54 of the  penal  law,  trademark
   44  counterfeiting  in the second degree as defined in section 165.72 of the
   45  penal law, trademark counterfeiting in the first degree  as  defined  in
   46  section 165.73 of the penal law, forgery in the second degree as defined
   47  in  section  170.10  of  the  penal  law, forgery in the first degree as
   48  defined in section 170.15 of the penal law,  criminal  possession  of  a
   49  forged  instrument  in the second degree as defined in section 170.25 of
   50  the penal law, criminal possession of a forged instrument in  the  first
   51  degree  as  defined  in  section  170.30  of  the  penal  law,  criminal
   52  possession of forgery devices as defined in section 170.40 of the  penal
   53  law,  falsifying  business  records  in  the  first degree as defined in
   54  section 175.10 of the penal law, tampering with public  records  in  the
   55  first  degree  as defined in section 175.25 of the penal law, offering a
   56  false instrument for filing in the first degree as  defined  in  section
       S. 4743                            15
    1  175.35  of  the  penal  law,  issuing  a false certificate as defined in
    2  section 175.40 of the penal  law,  criminal  diversion  of  prescription
    3  medications and prescriptions in the second degree as defined in section
    4  178.20  of the penal law, criminal diversion of prescription medications
    5  and prescriptions in the first degree as defined in  section  178.25  of
    6  the  penal  law,  residential  mortgage  fraud  in  the fourth degree as
    7  defined in section 187.10 of the penal law, residential  mortgage  fraud
    8  in the third degree as defined in section 187.15 of the penal law, resi-
    9  dential mortgage fraud in the second degree as defined in section 187.20
   10  of  the  penal  law,  residential  mortgage fraud in the first degree as
   11  defined in section 187.25 of the penal law, escape in the second  degree
   12  as  defined  in  section  205.10  of  the penal law, escape in the first
   13  degree as defined in section 205.15 of the penal  law,  absconding  from
   14  temporary  release  in  the first degree as defined in section 205.17 of
   15  the penal law, promoting  prison  contraband  in  the  first  degree  as
   16  defined in section 205.25 of the penal law, hindering prosecution in the
   17  second  degree  as defined in section 205.60 of the penal law, hindering
   18  prosecution in the first degree as defined  in  section  205.65  of  the
   19  penal  law,  sex  trafficking  as defined in section 230.34 of the penal
   20  law, criminal possession of a weapon in the third degree as  defined  in
   21  subdivisions  two,  three  and  five of section 265.02 of the penal law,
   22  criminal possession of a weapon in  the  second  degree  as  defined  in
   23  section  265.03 of the penal law, criminal possession of a weapon in the
   24  first degree as defined in section 265.04 of the penal law, manufacture,
   25  transport, disposition and defacement of weapons and  dangerous  instru-
   26  ments  and  appliances defined as felonies in subdivisions one, two, and
   27  three of section 265.10 of the penal law, sections  265.11,  265.12  and
   28  265.13  of  the  penal  law,  or prohibited use of weapons as defined in
   29  subdivision two of section 265.35 of the penal law, relating to firearms
   30  and other dangerous weapons, or failure to  disclose  the  origin  of  a
   31  recording  in the first degree as defined in section 275.40 of the penal
   32  law;
   33    S 37. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
   34  procedure law, as amended by chapter 316 of the laws of 2006, is amended
   35  to read as follows:
   36    (a) the conviction to be replaced by a youthful  offender  finding  is
   37  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   38  defined in subdivision forty-one of section 1.20, except as provided  in
   39  subdivision  three,  or (iii) rape in the first degree, [criminal sexual
   40  act] ANAL RAPE in the first degree, ORAL RAPE IN  THE  FIRST  DEGREE  or
   41  aggravated sexual abuse, except as provided in subdivision three, or
   42    S  38.  Subdivision  11  of section 123 of the agriculture and markets
   43  law, as amended by chapter 392 of the laws of 2004 and as renumbered  by
   44  section  18  of  part T of chapter 59 of the laws of 2010, is amended to
   45  read as follows:
   46    11. The owner shall not be liable pursuant to subdivision six,  seven,
   47  eight,  nine  or ten of this section if the dog was coming to the aid or
   48  defense of a person during the commission or attempted commission  of  a
   49  murder, robbery, burglary, arson, rape in the first degree as defined in
   50  subdivision  one  or  two  of section 130.35 of the penal law, [criminal
   51  sexual act] ANAL RAPE in the first degree as defined in subdivision  one
   52  or two of section 130.50 of the penal law, ORAL RAPE IN THE FIRST DEGREE
   53  AS  DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.39 OF THE PENAL LAW
   54  or kidnapping within the dwelling or upon the real property of the owner
   55  of the dog and the dog injured or  killed  the  person  committing  such
   56  criminal activity.
       S. 4743                            16
    1    S  39.  Section 213-c of the civil practice law and rules, as added by
    2  chapter 3 of the laws of 2006, is amended to read as follows:
    3    S  213-c.  Action  by  victim  of  conduct constituting certain sexual
    4  offenses. Notwithstanding any other limitation set forth in  this  arti-
    5  cle,  a  civil  claim  or cause of action to recover from a defendant as
    6  hereinafter defined, for physical,  psychological  or  other  injury  or
    7  condition  suffered by a person as a result of acts by such defendant of
    8  rape in the first degree as defined in section 130.35 of the penal  law,
    9  or  [criminal  sexual  act]  ANAL RAPE in the first degree as defined in
   10  section 130.50 of the penal law, OR ORAL RAPE IN  THE  FIRST  DEGREE  AS
   11  DEFINED  IN  SECTION 130.39 OF THE PENAL LAW, or aggravated sexual abuse
   12  in the first degree as defined in section 130.70 of the  penal  law,  or
   13  course  of sexual conduct against a child in the first degree as defined
   14  in section 130.75 of the penal law may be brought within five years.  As
   15  used  in this section, the term "defendant" shall mean only a person who
   16  commits the acts described  in  this  section  or  who,  in  a  criminal
   17  proceeding,  could be charged with criminal liability for the commission
   18  of such acts pursuant to section 20.00 of the penal law  and  shall  not
   19  apply  to  any  related civil claim or cause of action arising from such
   20  acts. Nothing in this section shall be construed to require that a crim-
   21  inal charge be brought or a criminal conviction be obtained as a  condi-
   22  tion  of  bringing a civil cause of action or receiving a civil judgment
   23  pursuant to this section or be construed to  require  that  any  of  the
   24  rules  governing  a  criminal proceeding be applicable to any such civil
   25  action.
   26    S 40. Paragraph (b) of subdivision 8 of section 215 of the civil prac-
   27  tice law and rules, as added by chapter  3  of  the  laws  of  2006,  is
   28  amended to read as follows:
   29    (b)  Whenever  it  is  shown  that  a criminal action against the same
   30  defendant has been commenced with respect to  the  event  or  occurrence
   31  from  which  a  claim governed by this section arises, and such criminal
   32  action is for rape in the first degree as defined in section  130.35  of
   33  the penal law, or [criminal sexual act] ANAL RAPE in the first degree as
   34  defined  in  section  130.50 of the penal law, OR ORAL RAPE IN THE FIRST
   35  DEGREE AS DEFINED IN SECTION 130.39 OF  THE  PENAL  LAW,  or  aggravated
   36  sexual  abuse  in  the  first degree as defined in section 130.70 of the
   37  penal law, or course of sexual conduct against  a  child  in  the  first
   38  degree  as  defined  in  section  130.75 of the penal law, the plaintiff
   39  shall have at least five years from  the  termination  of  the  criminal
   40  action as defined in section 1.20 of the criminal procedure law in which
   41  to  commence the civil action, notwithstanding that the time in which to
   42  commence such action has already expired or has less than a year remain-
   43  ing.
   44    S 41. The opening paragraph of subdivision (b) of section 117  of  the
   45  family  court  act,  as  amended  by  chapter  7 of the laws of 2007, is
   46  amended to read as follows:
   47    For every juvenile delinquency proceeding under article three  involv-
   48  ing  an  allegation of an act committed by a person which, if done by an
   49  adult, would be a crime (i) defined in sections 125.27  (murder  in  the
   50  first  degree); 125.25 (murder in the second degree); 135.25 (kidnapping
   51  in the first degree); or 150.20 (arson in the first degree) of the penal
   52  law committed by a person thirteen, fourteen or fifteen years of age; or
   53  such conduct committed as a sexually motivated felony, where  authorized
   54  pursuant  to  section  130.91 of the penal law; (ii) defined in sections
   55  120.10 (assault in the first degree); 125.20 (manslaughter in the  first
   56  degree);  130.35  (rape  in  the first degree); 130.50 ([criminal sexual
       S. 4743                            17
    1  act] ANAL RAPE in the first degree); 130.39  (ORAL  RAPE  IN  THE  FIRST
    2  DEGREE);  135.20  (kidnapping  in the second degree), but only where the
    3  abduction involved the use or threat of use of  deadly  physical  force;
    4  150.15  (arson  in  the  second degree); or 160.15 (robbery in the first
    5  degree) of the penal law committed by a  person  thirteen,  fourteen  or
    6  fifteen  years of age; or such conduct committed as a sexually motivated
    7  felony, where authorized pursuant to section 130.91 of  the  penal  law;
    8  (iii)  defined  in  the  penal law as an attempt to commit murder in the
    9  first or second degree or kidnapping in the first degree committed by  a
   10  person  thirteen,  fourteen  or  fifteen  years  of age; or such conduct
   11  committed as a sexually motivated felony, where authorized  pursuant  to
   12  section  130.91  of  the  penal  law;  (iv)  defined  in  section 140.30
   13  (burglary in the  first  degree);  subdivision  one  of  section  140.25
   14  (burglary  in  the  second  degree);  subdivision  two of section 160.10
   15  (robbery in the second degree) of the penal law; or  section  265.03  of
   16  the  penal  law,  where such machine gun or such firearm is possessed on
   17  school grounds, as that phrase is defined  in  subdivision  fourteen  of
   18  section  220.00  of  the  penal  law  committed  by a person fourteen or
   19  fifteen years of age; or such conduct committed as a sexually  motivated
   20  felony,  where  authorized  pursuant to section 130.91 of the penal law;
   21  (v) defined in section 120.05 (assault in the second degree)  or  160.10
   22  (robbery  in  the  second degree) of the penal law committed by a person
   23  fourteen or fifteen years of age but only where there has been  a  prior
   24  finding  by  a  court  that  such person has previously committed an act
   25  which, if committed by an adult, would be the crime of  assault  in  the
   26  second degree, robbery in the second degree or any designated felony act
   27  specified in clause (i), (ii) or (iii) of this subdivision regardless of
   28  the  age  of such person at the time of the commission of the prior act;
   29  or (vi) other than a misdemeanor, committed by a person at  least  seven
   30  but  less  than  sixteen years of age, but only where there has been two
   31  prior findings by the court that such person has committed a  prior  act
   32  which, if committed by an adult would be a felony:
   33    S  42.  Subdivision  8  of  section  301.2 of the family court act, as
   34  amended by chapter 7 of the laws of 2007, is amended to read as follows:
   35    8. "Designated felony act" means an act which, if done  by  an  adult,
   36  would  be  a  crime: (i) defined in sections 125.27 (murder in the first
   37  degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
   38  first degree); or 150.20 (arson in the first degree) of  the  penal  law
   39  committed  by  a  person  thirteen, fourteen or fifteen years of age; or
   40  such conduct committed as a sexually motivated felony, where  authorized
   41  pursuant  to  section  130.91 of the penal law; (ii) defined in sections
   42  120.10 (assault in the first degree); 125.20 (manslaughter in the  first
   43  degree);  130.35  (rape  in  the first degree); 130.50 ([criminal sexual
   44  act] ANAL RAPE in the first degree); 130.39  (ORAL  RAPE  IN  THE  FIRST
   45  DEGREE);  130.70  (aggravated  sexual abuse in the first degree); 135.20
   46  (kidnapping in the second degree) but only where the abduction  involved
   47  the  use or threat of use of deadly physical force; 150.15 (arson in the
   48  second degree) or 160.15 (robbery in the first degree) of the penal  law
   49  committed  by  a  person  thirteen, fourteen or fifteen years of age; or
   50  such conduct committed as a sexually motivated felony, where  authorized
   51  pursuant  to section 130.91 of the penal law; (iii) defined in the penal
   52  law as an attempt to commit murder in the  first  or  second  degree  or
   53  kidnapping  in the first degree committed by a person thirteen, fourteen
   54  or fifteen years of age; or such conduct committed as a  sexually  moti-
   55  vated  felony,  where authorized pursuant to section 130.91 of the penal
   56  law; (iv) defined in section 140.30  (burglary  in  the  first  degree);
       S. 4743                            18
    1  subdivision  one  of  section  140.25  (burglary  in the second degree);
    2  subdivision two of section 160.10 (robbery in the second degree) of  the
    3  penal law; or section 265.03 of the penal law, where such machine gun or
    4  such  firearm  is possessed on school grounds, as that phrase is defined
    5  in subdivision fourteen of section 220.00 of the penal law committed  by
    6  a  person fourteen or fifteen years of age; or such conduct committed as
    7  a sexually motivated felony, where authorized pursuant to section 130.91
    8  of the penal law; (v) defined in section 120.05 (assault in  the  second
    9  degree)  or  160.10  (robbery  in  the  second  degree) of the penal law
   10  committed by a person fourteen or fifteen years of age  but  only  where
   11  there has been a prior finding by a court that such person has previous-
   12  ly  committed an act which, if committed by an adult, would be the crime
   13  of assault in the second degree, robbery in the  second  degree  or  any
   14  designated felony act specified in paragraph (i), (ii), or (iii) of this
   15  subdivision  regardless  of  the  age  of such person at the time of the
   16  commission of the prior act; or (vi) other than a misdemeanor  committed
   17  by  a person at least seven but less than sixteen years of age, but only
   18  where there has been two prior findings by the court  that  such  person
   19  has committed a prior felony.
   20    S  43.  Subdivision  4  of  section  308.1 of the family court act, as
   21  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
   22  follows:
   23    4.  The  probation  service shall not adjust a case in which the child
   24  has allegedly committed a delinquent act which would be a crime  defined
   25  in section 120.25, (reckless endangerment in the first degree), subdivi-
   26  sion  one of section 125.15, (manslaughter in the second degree), subdi-
   27  vision one of section 130.25, (rape in the  third  degree),  subdivision
   28  one  of  section  130.40,  ([criminal sexual act] ANAL RAPE in the third
   29  degree), SUBDIVISION ONE OF SECTION 130.37,  (ORAL  RAPE  IN  THE  THIRD
   30  DEGREE),  subdivision one or two of section 130.65, (sexual abuse in the
   31  first degree), section 135.65, (coercion in the first  degree),  section
   32  140.20,  (burglary  in  the third degree), section 150.10, (arson in the
   33  third degree), section 160.05, (robbery in the third  degree),  subdivi-
   34  sion  two[,]  OR three [or four] of section 265.02, (criminal possession
   35  of a weapon in the third degree), section 265.03,  (criminal  possession
   36  of  a  weapon  in  the  second  degree),  or  section  265.04, (criminal
   37  possession of a dangerous weapon in the first degree) of the  penal  law
   38  where  the child has previously had one or more adjustments of a case in
   39  which such child allegedly committed an act which would be a crime spec-
   40  ified in this subdivision unless it has received written  approval  from
   41  the court and the appropriate presentment agency.
   42    S 44. Section 4 of the judiciary law, as amended by chapter 264 of the
   43  laws of 2003, is amended to read as follows:
   44    S  4.  Sittings  of  courts  to be public. The sittings of every court
   45  within this state shall be public, and every citizen may  freely  attend
   46  the  same,  except  that  in  all  proceedings  and  trials in cases for
   47  divorce, seduction, abortion, rape, assault with intent to commit  rape,
   48  [criminal  sexual  act] ANAL RAPE, ORAL RAPE, bastardy or filiation, the
   49  court may, in its discretion, exclude therefrom all persons who are  not
   50  directly  interested  therein, excepting jurors, witnesses, and officers
   51  of the court.
   52    S 45. Subdivision 2 of section 120.60 of the penal law, as amended  by
   53  chapter 434 of the laws of 2000, is amended to read as follows:
   54    2. commits a class A misdemeanor defined in article one hundred thirty
   55  of  this chapter, or a class E felony defined in section 130.25, 130.37,
       S. 4743                            19
    1  130.40 or 130.85 of this chapter, or a class D felony defined in section
    2  130.30, 130.38 or 130.45 of this chapter.
    3    S  46.  Subdivision 3 of section 720.10 of the criminal procedure law,
    4  as amended by chapter 264 of the laws of 2003, is  amended  to  read  as
    5  follows:
    6    3.  Notwithstanding the provisions of subdivision two, a youth who has
    7  been convicted of an armed felony  offense  or  of  rape  in  the  first
    8  degree,  [criminal  sexual act] ANAL RAPE in the first degree, ORAL RAPE
    9  IN THE FIRST DEGREE or aggravated sexual abuse is an eligible  youth  if
   10  the  court  determines  that one or more of the following factors exist:
   11  (i) mitigating circumstances that bear directly upon the manner in which
   12  the crime was committed; or (ii) where the defendant was  not  the  sole
   13  participant  in  the crime, the defendant's participation was relatively
   14  minor although not so minor as to constitute a  defense  to  the  prose-
   15  cution. Where the court determines that the eligible youth is a youthful
   16  offender,  the court shall make a statement on the record of the reasons
   17  for its determination, a transcript of which shall be forwarded  to  the
   18  state  division  of  criminal justice services, to be kept in accordance
   19  with the provisions of subdivision three of section eight hundred  thir-
   20  ty-seven-a of the executive law.
   21    S  47. Paragraph (a) of subdivision 2 of section 30.10 of the criminal
   22  procedure law, as amended by chapter 467 of the laws of 2008, is amended
   23  to read as follows:
   24    (a) A prosecution for a class A felony, or rape in the first degree as
   25  defined in section 130.35 of the penal law, OR ANAL RAPE  IN  THE  FIRST
   26  DEGREE  AS  DEFINED  IN SECTION 130.50 OF THE PENAL LAW, OR ORAL RAPE IN
   27  THE FIRST DEGREE AS DEFINED IN SECTION 130.39 OF THE  PENAL  LAW,  or  a
   28  crime  [defined or] formerly defined in section 130.50 of the penal law,
   29  or aggravated sexual abuse in the first degree  as  defined  in  section
   30  130.70  of the penal law, or course of sexual conduct against a child in
   31  the first degree as defined in section 130.75 of the penal  law  may  be
   32  commenced at any time;
   33    S  48.  Subparagraph  (i) of paragraph (a) of subdivision 2 of section
   34  168-a of the correction law, as amended by chapter 405 of  the  laws  of
   35  2008, is amended to read as follows:
   36    (i)  a  conviction  of or a conviction for an attempt to commit any of
   37  the provisions of  sections  120.70,  130.20,  130.25,  130.30,  130.37,
   38  130.38,  130.40,  130.45,  130.60,  230.34,  250.50,  255.25, 255.26 and
   39  255.27 or article two hundred sixty-three of the penal law,  or  section
   40  135.05,  135.10,  135.20  or  135.25  of such law relating to kidnapping
   41  offenses, provided the victim of such kidnapping or related  offense  is
   42  less  than seventeen years old and the offender is not the parent of the
   43  victim, or section 230.04, where the person patronized is in  fact  less
   44  than  seventeen  years  of  age, 230.05 or 230.06, or subdivision two of
   45  section 230.30, or section 230.32 or 230.33 of the penal law, or
   46    S 49. Subparagraph (i) of paragraph (a) of subdivision  3  of  section
   47  168-a  of  the  correction law, as amended by chapter 107 of the laws of
   48  2006, is amended to read as follows:
   49    (i) a conviction of or a conviction for an attempt to  commit  any  of
   50  the  provisions  of  sections  130.35,  130.39,  130.50, 130.65, 130.66,
   51  130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law, or
   52    S 50. This act shall take effect immediately;  provided  that  section
   53  fourteen  of this act shall take effect on the same date and in the same
   54  manner as section 27 of chapter 1 of the laws of 2013, takes effect.