S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    830
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2017
                                ___________
 
 Introduced by Sens. YOUNG, BONACIC, FUNKE, LARKIN, O'MARA, ORTT, RANZEN-
   HOFER  --  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  aggravated  sexual
   offenses;  and  to  amend  the  criminal procedure law, in relation to
   youthful offender status

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraphs  (a),  (b) and (c) of subdivision 1 of section
 70.02 of the penal law, paragraphs (a) and (c) as amended by chapter 368
 of the laws of 2015, and paragraph (b) as amended by chapter  1  of  the
 laws of 2013, are amended to read as follows:
   (a)  Class  B  violent felony offenses: an attempt to commit the class
 A-I felonies of murder in  the  second  degree  as  defined  in  section
 125.25, kidnapping in the first degree as defined in section 135.25, and
 arson  in the first degree as defined in section 150.20; manslaughter in
 the first degree as defined in section 125.20,  aggravated  manslaughter
 in  the  first  degree  as  defined in section 125.22, rape in the first
 degree as defined in section 130.35, criminal sexual act  in  the  first
 degree  as  defined  in  section  130.50, aggravated sexual abuse in the
 [first] SECOND degree as defined in section  130.70,  course  of  sexual
 conduct  against  a  child  in  the  first  degree as defined in section
 130.75; assault in the  first  degree  as  defined  in  section  120.10,
 kidnapping  in  the second degree as defined in section 135.20, burglary
 in the first degree as defined in section 140.30, arson  in  the  second
 degree  as  defined  in  section  150.15, robbery in the first degree as
 defined in section 160.15, sex trafficking as defined in paragraphs  (a)
 and  (b)  of  subdivision  five  of  section 230.34, incest in the first
 degree as defined in section 255.27, criminal possession of a weapon  in
 the first degree as defined in section 265.04, criminal use of a firearm
 in  the  first  degree  as defined in section 265.09, criminal sale of a
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05785-01-7

 S. 830                              2
 
 firearm in the first degree as defined  in  section  265.13,  aggravated
 assault  upon  a police officer or a peace officer as defined in section
 120.11, gang assault in the first degree as defined in  section  120.07,
 intimidating  a  victim  or  witness  in  the first degree as defined in
 section 215.17, hindering prosecution of terrorism in the  first  degree
 as  defined  in section 490.35, criminal possession of a chemical weapon
 or biological weapon in the second degree as defined in section  490.40,
 and  criminal use of a chemical weapon or biological weapon in the third
 degree as defined in section 490.47.
   (b) Class C violent felony offenses: an attempt to commit any  of  the
 class  B felonies set forth in paragraph (a) of this subdivision; aggra-
 vated criminally negligent homicide as defined in section 125.11, aggra-
 vated manslaughter in the second degree as defined  in  section  125.21,
 aggravated  sexual  abuse  in  the  [second]  THIRD degree as defined in
 section 130.67, assault on a peace officer, police officer,  fireman  or
 emergency  medical  services  professional as defined in section 120.08,
 assault on a judge as defined in section 120.09,  gang  assault  in  the
 second  degree  as defined in section 120.06, strangulation in the first
 degree as defined in section 121.13, burglary in the  second  degree  as
 defined  in  section  140.25, robbery in the second degree as defined in
 section 160.10, criminal possession of a weapon in the second degree  as
 defined  in  section  265.03,  criminal  use  of a firearm in the second
 degree as defined in section 265.08, criminal sale of a firearm  in  the
 second  degree  as defined in section 265.12, criminal sale of a firearm
 with the aid of a minor as defined in section 265.14, aggravated  crimi-
 nal  possession  of a weapon as defined in section 265.19, soliciting or
 providing support for an act of terrorism in the first degree as defined
 in section 490.15, hindering prosecution  of  terrorism  in  the  second
 degree as defined in section 490.30, and criminal possession of a chemi-
 cal  weapon  or  biological  weapon  in  the  third degree as defined in
 section 490.37.
   (c) Class D violent felony offenses: an attempt to commit any  of  the
 class C felonies set forth in paragraph (b); reckless assault of a child
 as defined in section 120.02, assault in the second degree as defined in
 section 120.05, menacing a police officer or peace officer as defined in
 section  120.18, stalking in the first degree, as defined in subdivision
 one of section 120.60, strangulation in the second degree as defined  in
 section  121.12, rape in the second degree as defined in section 130.30,
 criminal sexual act in the second degree as defined in  section  130.45,
 sexual abuse in the first degree as defined in section 130.65, course of
 sexual  conduct  against  a  child  in  the  second degree as defined in
 section 130.80, aggravated sexual abuse in the [third] FOURTH degree  as
 defined  in section 130.66, facilitating a sex offense with a controlled
 substance as defined in section 130.90, labor trafficking as defined  in
 paragraphs  (a) and (b) of subdivision three of section 135.35, criminal
 possession of a weapon in the third degree  as  defined  in  subdivision
 five, six, seven, eight, nine or ten of section 265.02, criminal sale of
 a firearm in the third degree as defined in section 265.11, intimidating
 a  victim  or witness in the second degree as defined in section 215.16,
 soliciting or providing support for an act of terrorism  in  the  second
 degree  as defined in section 490.10, and making a terroristic threat as
 defined in section 490.20, falsely reporting an incident  in  the  first
 degree  as  defined in section 240.60, placing a false bomb or hazardous
 substance in the first degree as defined in section  240.62,  placing  a
 false  bomb  or  hazardous  substance in a sports stadium or arena, mass
 transportation facility or enclosed shopping mall as defined in  section

 S. 830                              3
 
 240.63,  and  aggravated  unpermitted  use of indoor pyrotechnics in the
 first degree as defined in section 405.18.
   §  2.  The  penal  law is amended by adding three new sections 130.36,
 130.51 and 130.71 to read as follows:
 § 130.36 AGGRAVATED RAPE.
   A MALE IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN  SEXUAL  INTER-
 COURSE  WITH  A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF
 THE COMMISSION OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE  OR
 ANOTHER PARTICIPANT IN THE CRIME:
   1. IS ARMED WITH A DEADLY WEAPON; OR
   2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
 THE CRIME; OR
   4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   AGGRAVATED RAPE IS A CLASS A-II FELONY.
 § 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
   A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN  HE  OR  SHE
 ENGAGES  IN  ORAL  SEXUAL  CONDUCT  OR  ANAL SEXUAL CONDUCT WITH ANOTHER
 PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE  COMMISSION
 OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
 PARTICIPANT IN THE CRIME:
   1. IS ARMED WITH A DEADLY WEAPON; OR
   2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
 THE CRIME; OR
   4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
 § 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
   1.  A  PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
 WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA,  URETH-
 RA,  PENIS  OR  RECTUM  OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
 PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
 OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
 PARTICIPANT IN THE CRIME:
   (A) IS ARMED WITH A DEADLY WEAPON; OR
   (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   (C)  CAUSES  PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
 THE CRIME; OR
   (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
   2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
 PROVISIONS OF THIS SECTION.
   AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
   §  3.  Section 130.65-a of the penal law, as added by chapter 1 of the
 laws of 2000, subdivision 1 as amended by chapter 485  of  the  laws  of
 2009, is amended to read as follows:
 § 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
   1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
 degree when:
   (a)  He or she inserts a foreign object in the vagina, urethra, penis,
 rectum or anus of another person and the other person  is  incapable  of
 consent  by  reason  of some factor other than being less than seventeen
 years old; or
   (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
 or  anus  of  another  person causing physical injury to such person and
 such person is incapable of consent by reason of some factor other  than
 being less than seventeen years old.

 S. 830                              4
 
   2.  Conduct performed for a valid medical purpose does not violate the
 provisions of this section.
   Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
 felony.
   § 4. Section 130.66 of the penal law, as added by chapter 181  of  the
 laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
 of  2009,  subdivision 3 as renumbered by chapter 1 of the laws of 2000,
 is amended to read as follows:
 § 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
   1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
 degree when he or she inserts a foreign object in the  vagina,  urethra,
 penis, rectum or anus of another person:
   (a) By forcible compulsion; or
   (b)  When  the other person is incapable of consent by reason of being
 physically helpless; or
   (c) When the other person is less than eleven years old.
   2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
 degree when he or she inserts a foreign object in the  vagina,  urethra,
 penis,  rectum or anus of another person causing physical injury to such
 person and such person is  incapable  of  consent  by  reason  of  being
 mentally disabled or mentally incapacitated.
   3.  Conduct performed for a valid medical purpose does not violate the
 provisions of this section.
   Aggravated sexual abuse in the [third] FOURTH  degree  is  a  class  D
 felony.
   §  5.  Section 130.67 of the penal law, as added by chapter 450 of the
 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
 ter 485 of the laws of 2009, is amended to read as follows:
 § 130.67  Aggravated sexual abuse in the [second] THIRD degree.
   1.  A person is guilty of aggravated  sexual  abuse  in  the  [second]
 THIRD  degree  when  he  or she inserts a finger in the vagina, urethra,
 penis, rectum or anus of another person causing physical injury to  such
 person:
   (a) By forcible compulsion; or
   (b)  When  the other person is incapable of consent by reason of being
 physically helpless; or
   (c) When the other person is less than eleven years old.
   2. Conduct performed for a valid medical purpose does not violate  the
 provisions of this section.
   Aggravated  sexual  abuse  in  the  [second] THIRD degree is a class C
 felony.
   § 6. Section 130.70 of the penal law, as amended by chapter 450 of the
 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
 ter 485 of the laws of 2009, is amended to read as follows:
 § 130.70 Aggravated sexual abuse in the [first] SECOND degree.
   1.   A person is guilty of aggravated  sexual  abuse  in  the  [first]
 SECOND  degree  when  he  or she inserts a foreign object in the vagina,
 urethra, penis, rectum or anus of another person causing physical injury
 to such person:
   (a) By forcible compulsion; or
   (b) When the other person is incapable of consent by reason  of  being
 physically helpless; or
   (c) When the other person is less than eleven years old.
   2.  Conduct performed for a valid medical purpose does not violate the
 provisions of this section.

 S. 830                              5
 
   Aggravated sexual abuse in the [first] SECOND  degree  is  a  class  B
 felony.
   §  7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
 law, subdivision 2 as amended by chapter 416 of the laws of 1986,  para-
 graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
 and  subdivision  3  as  amended by chapter 264 of the laws of 2003, are
 amended to read as follows:
   2.  "Eligible youth" means a youth who  is  eligible  to  be  found  a
 youthful offender.  Every youth is so eligible unless:
   (a)  the  conviction  to be replaced by a youthful offender finding is
 for (i) a class A-I or class A-II felony, or (ii)  an  armed  felony  as
 defined  in subdivision forty-one of section 1.20, except as provided in
 subdivision three, or (iii) rape in the first  degree,  criminal  sexual
 act  in  the  first  degree,  or  aggravated  sexual abuse IN THE SECOND
 DEGREE, except as provided in subdivision three, or
   (b) such youth has previously been convicted and sentenced for a felo-
 ny, or
   (c)  such youth has previously been adjudicated  a  youthful  offender
 following  conviction  of  a  felony or has been adjudicated on or after
 September first, nineteen hundred seventy-eight  a  juvenile  delinquent
 who  committed  a  designated  felony act as defined in the family court
 act.
   3.  Notwithstanding the provisions of subdivision two, a youth who has
 been convicted of an armed felony  offense  or  of  rape  in  the  first
 degree,  criminal  sexual  act in the first degree, or aggravated sexual
 abuse IN THE SECOND DEGREE is an eligible youth if the court  determines
 that one or more of the following factors exist: (i)  mitigating circum-
 stances  that  bear  directly  upon  the  manner  in which the crime was
 committed; or (ii) where the defendant was not the sole  participant  in
 the  crime,  the defendant's participation was relatively minor although
 not so minor as to constitute a defense to the prosecution.   Where  the
 court  determines  that  the  eligible youth is a youthful offender, the
 court shall make a statement on the record of the reasons for its deter-
 mination, a transcript of which shall be forwarded to the state division
 of criminal  justice  services,  to  be  kept  in  accordance  with  the
 provisions  of subdivision three of section eight hundred thirty-seven-a
 of the executive law.
   § 8. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.