S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1178
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2017
                                ___________
 
 Introduced  by  Sen.  MARCELLINO  -- 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  creating  the  crime  of
   aggravated  criminal conduct where an individual commits a misdemeanor
   and has been previously subjected to four or more qualifying misdemea-
   nor convictions within the preceding five years
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The penal law is amended by adding a new section 240.78 to
 read as follows:
 § 240.78 AGGRAVATED CRIMINAL CONDUCT.
   1. A PERSON IS GUILTY OF AGGRAVATED CRIMINAL CONDUCT WHEN SUCH  PERSON
 COMMITS  A CLASS A MISDEMEANOR DEFINED IN THIS CHAPTER AFTER HAVING BEEN
 PREVIOUSLY SUBJECTED TO FOUR OR MORE QUALIFYING MISDEMEANOR  CONVICTIONS
 WITHIN THE PRECEDING FIVE YEARS.
   2.  THE  PROVISIONS  OF  SECTION  200.60 OF THE CRIMINAL PROCEDURE LAW
 SHALL APPLY TO ANY PROSECUTION UNDER THIS SECTION.
   3. FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER  A  PERSON
 HAS  BEEN  PREVIOUSLY  SUBJECTED  TO FOUR OR MORE QUALIFYING MISDEMEANOR
 CONVICTIONS WITHIN THE PRECEDING  FIVE  YEARS,  THE  FOLLOWING  CRITERIA
 SHALL APPLY:
   (A)  EACH  CONVICTION  MUST  HAVE  BEEN IN THIS STATE AND BE A CLASS A
 MISDEMEANOR AS DEFINED IN THIS CHAPTER, OR  OF  A  CRIME  IN  ANY  OTHER
 JURISDICTION  FOR WHICH A SENTENCE TO A TERM OF IMPRISONMENT OF AT LEAST
 ONE YEAR WAS AUTHORIZED AND IS A CRIME IN  THIS  STATE  IRRESPECTIVE  OF
 WHETHER SUCH SENTENCE WAS IMPOSED;
   (B)  SENTENCE  UPON  EACH SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED
 BEFORE COMMISSION OF THE PRESENT MISDEMEANOR;
   (C) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE,  SENTENCE  OF
 PROBATION,  SENTENCE  OF PAROLE SUPERVISION, AND SENTENCE OF CONDITIONAL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05843-01-7
              

 S. 1178                             2
 
 DISCHARGE OR  OF  UNCONDITIONAL  DISCHARGE  SHALL  BE  DEEMED  TO  BE  A
 SENTENCE;
   (D)  EXCEPT  AS  PROVIDED  IN  PARAGRAPH (E) OF THIS SUBDIVISION, EACH
 SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN FIVE YEARS BEFORE  COMMIS-
 SION OF THE PRESENT MISDEMEANOR;
   (E)  IN  CALCULATING  THE FIVE YEAR PERIOD UNDER PARAGRAPH (D) OF THIS
 SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCER-
 ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF ANY OF THE  PREVI-
 OUS  CONVICTIONS  AND  THE TIME OF COMMISSION OF THE PRESENT MISDEMEANOR
 SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL BE EXTENDED BY A PERI-
 OD OR PERIODS EQUAL TO THE TIME SERVED;
   (F) AN OFFENSE FOR WHICH THE DEFENDANT HAS BEEN PARDONED ON THE GROUND
 OF INNOCENCE SHALL NOT BE DEEMED A PREVIOUS MISDEMEANOR CONVICTION;
   (G) WHEN MULTIPLE SENTENCES FOR TWO OR MORE CONVICTIONS  WERE  IMPOSED
 AT THE SAME TIME, ALL CONVICTIONS SHALL BE DEEMED TO CONSTITUTE ONLY ONE
 CONVICTION.
   4.  NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO PRECLUDE A
 PROSECUTION OR CONVICTION FOR ANY OTHER OFFENSE, A NECESSARY ELEMENT  OF
 WHICH IS A PREVIOUS CONVICTION FOR AN OFFENSE.
   AGGRAVATED CRIMINAL CONDUCT IS A CLASS E FELONY.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.