S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2276

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M.  of A. McENENY, CANESTRARI, SCHIMMINGER, ENGLEBRIGHT,
  KOON -- Multi-Sponsored by -- M. of A. ABBATE, DelMONTE, GREENE, PHEF-
  FER, SWEENEY, TOWNS -- read once and  referred  to  the  Committee  on
  Codes

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to sentencing of persistent child predators

  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 60.14 to
read as follows:
S 60.14 AUTHORIZED DISPOSITION; PERSISTENT CHILD PREDATOR.
  1. CHILD PREDATOR OFFENSE. FOR THE PURPOSES  OF  THIS  SECTION  "CHILD
PREDATOR  OFFENSE"  SHALL  UNLESS  OTHERWISE  INDICATED, MEAN ANY OF THE
FOLLOWING OFFENSES WHERE THE VICTIM OF SUCH OFFENSE IS  A  PERSON  UNDER
THE AGE OF SEVENTEEN:
  (A)  HARASSMENT  IN  THE  FIRST  DEGREE  AS DEFINED IN SECTION 240.25;
AGGRAVATED HARASSMENT IN THE SECOND DEGREE  AS  DEFINED  IN  SUBDIVISION
ONE,  TWO  OR FOUR OF SECTION 240.30; ENDANGERING THE WELFARE OF A CHILD
AS DEFINED IN SUBDIVISION ONE OF SECTION 260.10;  SEXUAL  MISCONDUCT  AS
DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.20; SEXUAL ABUSE IN THE
SECOND  DEGREE  AS  DEFINED IN SECTION 130.60; SEXUAL ABUSE IN THE THIRD
DEGREE AS DEFINED IN SECTION 130.55; UNLAWFUL IMPRISONMENT IN THE SECOND
DEGREE AS DEFINED IN SECTION 135.05; OR MENACING IN THE SECOND DEGREE AS
DEFINED IN SUBDIVISION TWO OF SECTION 120.14; AND
  (B) DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND DEGREE  AS
DEFINED  IN SECTION 235.21; DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE FIRST DEGREE AS DEFINED IN SECTION 235.22; USE OF A CHILD IN A SEXU-
AL PERFORMANCE AS DEFINED IN SECTION 263.05; PROMOTING AN OBSCENE SEXUAL
PERFORMANCE BY A CHILD AS  DEFINED  IN  SECTION  263.10;  POSSESSING  AN
OBSCENE  SEXUAL  PERFORMANCE  BY  A  CHILD AS DEFINED IN SECTION 263.11;
PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION  263.15;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00489-01-9
              

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POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.16;
RAPE  IN  THE  THIRD  DEGREE  AS  DEFINED  IN SUBDIVISION TWO OF SECTION
130.25; RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30; RAPE  IN
THE  FIRST  DEGREE  AS  DEFINED  IN SUBDIVISION THREE OF SECTION 130.35;
CRIMINAL SEXUAL ACT IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION TWO OF
SECTION 130.40; CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS  DEFINED  IN
SECTION  130.45;  CRIMINAL  SEXUAL ACT IN THE FIRST DEGREE AS DEFINED IN
SUBDIVISION THREE OF SECTION 130.50; SEXUAL ABUSE IN THE FIRST DEGREE AS
DEFINED IN SUBDIVISION THREE OF SECTION 130.65; AGGRAVATED SEXUAL  ABUSE
IN  THE  THIRD  DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION 130.66; AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE AS  DEFINED
IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.67; AGGRAVATED SEXUAL
ABUSE IN THE FIRST DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE
OF SECTION 130.70; COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST
DEGREE  AS DEFINED IN SECTION 130.75; COURSE OF SEXUAL CONDUCT AGAINST A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.80; UNLAWFUL IMPRI-
SONMENT IN THE FIRST DEGREE AS DEFINED IN SECTION 135.10; KIDNAPPING  IN
THE  SECOND DEGREE AS DEFINED IN SECTION 135.20; KIDNAPPING IN THE FIRST
DEGREE AS DEFINED IN SECTION 135.25 OR ANY ATTEMPT TO COMMIT AN  OFFENSE
ENUMERATED IN THIS PARAGRAPH.
  2.  DEFINITION  OF A PERSISTENT CHILD PREDATOR. (A) A PERSISTENT CHILD
PREDATOR IS A PERSON WHO STANDS CONVICTED OF A CHILD PREDATOR OFFENSE AS
ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION ONE  OF  THIS  SECTION  AFTER
HAVING PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDICATE CHILD PREDATOR
CONVICTIONS AS DEFINED IN PARAGRAPH (B) OF THIS SUBDIVISION.
  (B)  FOR  THE  PURPOSE  OF DETERMINING WHETHER A PRIOR CONVICTION IS A
PREDICATE CHILD PREDATOR CONVICTION THE FOLLOWING CRITERIA SHALL APPLY:
  (I) THE CONVICTION MUST HAVE BEEN IN THIS STATE OF  A  CHILD  PREDATOR
OFFENSE  AS  DEFINED  IN PARAGRAPH (A) OR (B) OF SUBDIVISION ONE OF THIS
SECTION, OR IN ANY OTHER JURISDICTION OF AN OFFENSE WHICH  INCLUDES  ALL
OF THE ESSENTIAL ELEMENTS OF ANY SUCH CHILD PREDATOR OFFENSE;
  (II) SENTENCE UPON SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED BEFORE
COMMISSION OF THE PRESENT CHILD PREDATOR OFFENSE;
  (III)  SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE, A SENTENCE
OF PROBATION, A SENTENCE OF CONDITIONAL DISCHARGE  OR  OF  UNCONDITIONAL
DISCHARGE,  AND  A  SENTENCE OF CERTIFICATION TO THE CARE AND CUSTODY OF
THE DIVISION OF SUBSTANCE ABUSE  SERVICES,  SHALL  BE  DEEMED  TO  BE  A
SENTENCE;
  (IV)  EXCEPT  AS  PROVIDED  IN  SUBPARAGRAPH  (V)  OF  THIS PARAGRAPH,
SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN SEVEN YEARS BEFORE COMMIS-
SION OF THE CHILD PREDATOR OFFENSE  OF  WHICH  THE  DEFENDANT  PRESENTLY
STANDS CONVICTED;
  (V)  IN  CALCULATING  THE SEVEN YEAR PERIOD UNDER SUBPARAGRAPH (IV) OF
THIS PARAGRAPH, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCER-
ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS CHILD
PREDATOR OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT CHILD  PREDA-
TOR  OFFENSE  SHALL  BE  EXCLUDED  AND  SUCH  SEVEN YEAR PERIOD SHALL BE
EXTENDED BY A PERIOD OR PERIODS EQUAL TO  THE  TIME  SERVED  UNDER  SUCH
INCARCERATION;
  (VI)  AN  OFFENSE  FOR  WHICH  THE  DEFENDANT HAS BEEN PARDONED ON THE
GROUND OF INNOCENCE SHALL NOT  BE  DEEMED  A  PREDICATE  CHILD  PREDATOR
CONVICTION; AND
  (VII) COMMISSION OF THE SECOND PRIOR CHILD PREDATOR OFFENSE SHALL HAVE
OCCURRED AFTER THE IMPOSITION OF SENTENCE ON THE FIRST PRIOR CHILD PRED-
ATOR CONVICTION.

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  3.  AUTHORIZED  SENTENCE.  WHEN  THE  COURT HAS FOUND, PURSUANT TO THE
PROVISIONS OF SECTION 400.13 OF THE CRIMINAL PROCEDURE LAW  THAT  (A)  A
PERSON  IS  A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION TWO OF
THIS SECTION, AND (B) IMPOSITION OF A SENTENCE AUTHORIZED FOR A CLASS  E
FELONY  IS  NECESSARY TO PROTECT THE SAFETY AND SECURITY OF SOCIETY, THE
COURT, IN LIEU OF IMPOSING A SENTENCE OTHERWISE AUTHORIZED FOR THE CRIME
ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION OF  WHICH
SUCH  PERSON PRESENTLY STANDS CONVICTED, SHALL IMPOSE A SENTENCE AUTHOR-
IZED FOR A CLASS E FELONY.
  S 2. The criminal procedure law is amended by  adding  a  new  section
400.13 to read as follows:
S 400.13 PROCEDURE FOR DETERMINING WHETHER DEFENDANT SHOULD BE SENTENCED
           AS A PERSISTENT CHILD PREDATOR.
  1.  APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
THAT MUST BE FOLLOWED IN ORDER TO IMPOSE THE PERSISTENT  CHILD  PREDATOR
SENTENCE  AUTHORIZED  BY SUBDIVISION THREE OF SECTION 60.14 OF THE PENAL
LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON EVIDENCE IN THE
RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT  HAS  FOUND
THAT THE DEFENDANT IS A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVI-
SION  TWO  OF  SECTION 60.14 OF THE PENAL LAW AND THAT THE IMPOSITION OF
SUCH SENTENCE IS NECESSARY TO PROTECT THE SAFETY AND SECURITY OF  SOCIE-
TY.
  2.  AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE COURT
OR TO THE PEOPLE PRIOR TO SENTENCING FOR A  CHILD  PREDATOR  OFFENSE  AS
DEFINED  IN  PARAGRAPH  (A)  OF  SUBDIVISION ONE OF SECTION 60.14 OF THE
PENAL LAW INDICATES THAT THE DEFENDANT MAY BE A PERSISTENT CHILD  PREDA-
TOR  AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 60.14 THE COURT SHALL
ORDER A HEARING TO DETERMINE WHETHER THE DEFENDANT IS IN FACT A PERSIST-
ENT CHILD PREDATOR AND  SHOULD  BE  SENTENCED  IN  ACCORDANCE  WITH  THE
PROVISIONS OF SUBDIVISION THREE OF SECTION 60.14 OF THE PENAL LAW.
  3.  ORDER  DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED  AS  A  PERSISTENT  CHILD
PREDATOR MUST SPECIFY A DATE FOR THE HEARING NOT LESS THAN FOURTEEN DAYS
FROM  THE DATE THE ORDER IS FILED. THE COURT MUST ANNEX TO AND FILE WITH
THE ORDER A STATEMENT, TO BE PREPARED BY THE PEOPLE, SETTING  FORTH  THE
FOLLOWING:
  (A)  THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER THE
DEFENDANT A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION  TWO  OF
SECTION 60.14 OF THE PENAL LAW; AND
  (B)  THE  FACTOR  OR FACTORS INVOLVED IN THE COMMISSION OF THE INSTANT
OFFENSE AND IN THE DEFENDANT'S BACKGROUND  AND  PRIOR  CRIMINAL  HISTORY
WHICH THE PEOPLE DEEM RELEVANT FOR THE PURPOSE OF SENTENCING THE DEFEND-
ANT  AS  A  PERSISTENT  CHILD  PREDATOR PURSUANT TO SUBDIVISION THREE OF
SECTION 60.14 OF THE PENAL LAW.
  4. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER THE CLERK OF THE COURT
MUST IMMEDIATELY PROVIDE A NOTICE OF HEARING TO THE DEFENDANT, HIS COUN-
SEL AND THE DISTRICT ATTORNEY. SUCH NOTICE MUST  SPECIFY  THE  TIME  AND
PLACE OF THE HEARING AND THAT THE PURPOSE OF THE HEARING IS TO DETERMINE
WHETHER  OR  NOT THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT CHILD
PREDATOR. EACH NOTICE REQUIRED TO BE SENT HEREUNDER MUST BE  ACCOMPANIED
BY  A  COPY OF THE STATEMENT FILED BY THE PEOPLE PURSUANT TO SUBDIVISION
THREE OF THIS SECTION.
  5. BURDEN AND STANDARD OF  PROOF;  EVIDENCE.  UPON  ANY  HEARING  HELD
PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE TO SHOW,
BY  A  PREPONDERANCE OF THE EVIDENCE, THAT SENTENCING THE DEFENDANT AS A
PERSISTENT CHILD PREDATOR IS NECESSARY TO PROTECT THE SAFETY AND SECURI-

A. 2276                             4

TY OF SOCIETY, PROVIDED, HOWEVER THAT A FINDING THAT THE DEFENDANT IS  A
PERSISTENT  CHILD  PREDATOR,  AS  DEFINED  IN SUBDIVISION TWO OF SECTION
60.14 OF THE PENAL LAW, MUST BE BASED UPON  PROOF  BEYOND  A  REASONABLE
DOUBT  BY  EVIDENCE  ADMISSIBLE UNDER THE RULES APPLICABLE TO A TRIAL OF
THE ISSUE OF GUILT.
  6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A  PREVIOUS  CONVICTION  IN
THIS  OR  ANY  OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
TION OF THE UNITED STATES MUST NOT BE COUNTED IN DETERMINING WHETHER THE
DEFENDANT IS A PERSISTENT CHILD PREDATOR. THE DEFENDANT MAY, AT ANY TIME
DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH
RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE PEOPLE ON THE GROUNDS
THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED.   FAILURE TO  CHAL-
LENGE  THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN CONSTITUTES
A WAIVER ON THE PART OF THE DEFENDANT OF ANY ALLEGATION  OF  UNCONSTITU-
TIONALITY  UNLESS  GOOD  CAUSE  BE SHOWN FOR SUCH FAILURE TO MAKE TIMELY
CHALLENGE.
  7. PRELIMINARY EXAMINATION. AT THE COMMENCEMENT  OF  THE  HEARING  THE
COURT MUST ASK THE DEFENDANT WHETHER HE WISHES TO CONTROVERT ANY ALLEGA-
TION MADE IN THE STATEMENT PREPARED BY THE PEOPLE.  UNCONTROVERTED ALLE-
GATIONS  IN  THE  STATEMENT  OF  THE PEOPLE SHALL BE DEEMED TO HAVE BEEN
ADMITTED BY THE DEFENDANT.
  8. MANNER OF CONDUCTING HEARING. A HEARING PURSUANT  TO  THIS  SECTION
SHALL  BE  A  BIFURCATED HEARING AND SHALL BE BEFORE THE COURT WITHOUT A
JURY. AT THE CONCLUSION OF THE FIRST PART OF THE HEARING, THE COURT MUST
MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS A PERSISTENT  CHILD
PREDATOR  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 60.14 OF THE PENAL
LAW. IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT CHILD  PREDA-
TOR  AS  SO DEFINED, THE COURT SHALL PROCEED TO DETERMINE, IN ACCORDANCE
WITH THE PROVISIONS OF THIS SECTION AND SECTION 60.14 OF THE PENAL  LAW,
WHETHER THE DEFENDANT SHALL BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
  9.  TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR-
ING PURSUANT TO THIS SECTION, THE COURT MAY, IN ITS  DISCRETION,  TERMI-
NATE  THE  HEARING  WITHOUT MAKING ANY FINDING. IN SUCH CASE, UNLESS THE
COURT RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS,  THE
DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
  S  3. Section 70.06 of the penal law is amended by adding a new subdi-
vision 8 to read as follows:
  8. NOTWITHSTANDING ANY OTHER PROVISION  OF  LAW  TO  THE  CONTRARY,  A
PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
TO  SECTION  60.14  OF  THIS  CHAPTER  SHALL  CONSTITUTE  A PRIOR FELONY
CONVICTION FOR PURPOSES OF SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVI-
SION ONE OF THIS SECTION.
  S 4. Subdivision 1 of section 70.10 of the penal  law  is  amended  by
adding a new paragraph (d) to read as follows:
  (D)  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF LAW TO THE CONTRARY, A
PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
TO SECTION 60.14 OF THIS CHAPTER SHALL,  SUBJECT  TO  THE  CRITERIA  SET
FORTH IN PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION, CONSTITUTE A PREVI-
OUS FELONY CONVICTION FOR PURPOSES OF PARAGRAPH (A) OF THIS SUBDIVISION.
  S  5. Section 65.10 of the penal law is amended by adding a new subdi-
vision 3-a to read as follows:
  3-A. CONDITIONS FOR CERTAIN OFFENDERS. WHEN  IMPOSING  A  SENTENCE  OF
PROBATION  FOR  A PERSON CONVICTED OF A CHILD PREDATOR OFFENSE THE COURT
SHALL REQUIRE, IN ADDITION TO ANY OTHER CONDITIONS IMPOSED  PURSUANT  TO
SUBDIVISION  TWO, THREE OR FOUR OF THIS SECTION, THAT SUCH PERSON REPORT

A. 2276                             5

TO A PROBATION OFFICER A MINIMUM OF THREE DAYS  PER  WEEK  AND  HAVE  AT
LEAST FOUR ADDITIONAL CONTACTS PER WEEK. FOR THE PURPOSES OF THIS SUBDI-
VISION A CHILD PREDATOR OFFENSE SHALL HAVE THE SAME MEANING AS SET FORTH
IN SUBDIVISION ONE OF SECTION 60.14 OF THIS CHAPTER.
  S  6.  Subdivision  4 of section 60.01 of the penal law, as amended by
chapter 548 of the laws of 1984, is amended to read as follows:
  4. In any case where a person  has  been  sentenced  to  a  period  of
probation imposed pursuant to section 65.00 of this chapter, if the part
of  the  sentence that provides for probation is revoked, the court must
sentence such person to imprisonment or to the sentence of  imprisonment
and  probation  as  provided  for in paragraph (d) of subdivision two of
this section, PROVIDED, HOWEVER, THAT WHERE A SENTENCE OF PROBATION ON A
CONVICTION FOR A CHILD PREDATOR OFFENSE IS REVOKED, THE  COURT  MAY  NOT
IMPOSE  A DEFINITE SENTENCE OF IMPRISONMENT UNLESS IT IMPOSES SUCH DEFI-
NITE SENTENCE AS PART OF A SENTENCE OF  IMPRISONMENT  AND  PROBATION  IN
ACCORDANCE WITH SUBDIVISION FOUR OF SECTION 65.00 OF THIS CHAPTER.
  S  7.    Subdivisions  3  and  4 of section 65.00 of the penal law, as
amended by chapter 264 of the laws of 2003, subparagraph (ii)  of  para-
graph  (a)  of  subdivision  3  as amended by chapter 738 of the laws of
2004, paragraph (c) of subdivision 3 as amended by chapter  568  of  the
laws  of  2004  and the closing paragraph of subdivision 3 as amended by
chapter 320 of the laws of 2006, are amended and a new subdivision 5  is
added to read as follows:
  3.  Periods  of probation. Unless terminated sooner in accordance with
the criminal procedure law, the period of probation shall be as follows:
  (a) (i) For a felony, other than a class A-II  felony  or  a  class  B
felony defined in article two hundred twenty of this chapter or a sexual
assault, the period of probation shall be five years;
  (ii)  For a class A-II felony controlled substance offender as defined
in paragraph (a) of subdivision one of section 70.71 of this chapter  or
a  class  B  second  felony drug offender as defined in paragraph (b) of
subdivision one  of  section  70.70  of  this  chapter,  the  period  of
probation  shall  be  life,  and  for  a class B felony drug offender as
defined in paragraph (a) of subdivision one of  section  70.70  of  this
chapter, the period of probation shall be twenty-five years;
  (iii)  For  a  felony sexual assault, the period of probation shall be
ten years.
  (b) (i) For a class A misdemeanor, other than  a  sexual  assault  AND
EXCEPT  AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF
THIS CHAPTER, the period of probation shall be three years;
  (ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
  (c) For a class B misdemeanor, the  period  of  probation  shall,  AND
EXCEPT  AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF
THIS CHAPTER, be one year, except the period of probation  shall  be  no
less  than  one year and no more than three years for the class B misde-
meanor of public lewdness as defined in section 245.00 of this chapter;
  (d) For an unclassified misdemeanor, the period of probation shall  be
three  years  if the authorized sentence of imprisonment is in excess of
three months, otherwise the period of probation shall be one year.
  For the purposes of this section, the term "sexual assault"  means  an
offense  defined  in  article  one  hundred thirty or two hundred sixty-
three, or in section 255.25, 255.26 or 255.27 of  this  chapter,  or  an
attempt to commit any of the foregoing offenses.
  4. [In] EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, IN any
case  where  a court pursuant to its authority under subdivision four of

A. 2276                             6

section 60.01 of this  chapter  revokes  probation  and  sentences  such
person  to  imprisonment  and probation, as provided in paragraph (d) of
subdivision two  of  section  60.01  of  this  chapter,  the  period  of
probation  shall  be  the  remaining  period  of  the original probation
sentence or one year whichever is greater.
  5. IN ANY  CASE  WHERE  A  SENTENCE  OF  PROBATION  IS  IMPOSED  ON  A
CONVICTION  FOR  A CHILD PREDATOR OFFENSE AS DEFINED IN SECTION 60.14 OF
THIS CHAPTER AND A COURT, PURSUANT TO ITS  AUTHORITY  UNDER  SUBDIVISION
FOUR  OF  SECTION  60.01  OF  THIS  CHAPTER  REVOKES  SUCH PROBATION AND
SENTENCES SUCH PERSON TO  IMPRISONMENT  AND  PROBATION,  THE  PERIOD  OF
IMPRISONMENT  SHALL BE SIX MONTHS FOR A CLASS A MISDEMEANOR AND ONE YEAR
FOR A FELONY, WHICH SHALL INCLUDE ANY  CLASS  E  FELONY  CHILD  PREDATOR
SENTENCE  IMPOSED PURSUANT TO SUBDIVISION THREE OF SECTION 60.14 OF THIS
CHAPTER, AND THE PERIOD OF PROBATION SHALL BE THE  REMAINING  PERIOD  OF
THE ORIGINAL PROBATION SENTENCE OR ONE YEAR WHICHEVER IS GREATER.
  S  8. Subdivisions 1 and 2 of section 70.15 of the penal law, subdivi-
sion 1 as amended by chapter 291 of the laws of  1993,  are  amended  to
read as follows:
  1. Class A misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
SION  THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of imprisonment
for a class A misdemeanor shall be a  definite  sentence.  When  such  a
sentence  is imposed the term shall be fixed by the court, and shall not
exceed one year; provided, however,  that  a  sentence  of  imprisonment
imposed  upon  a  conviction  of  criminal possession of a weapon in the
fourth degree as defined in subdivision one of section  265.01  must  be
for a period of no less than one year when the conviction was the result
of  a  plea  of  guilty  entered in satisfaction of an indictment or any
count thereof charging the defendant with the  class  D  violent  felony
offense  of  criminal  possession  of  a  weapon  in the third degree as
defined in subdivision four of section 265.02, except that the court may
impose any other sentence authorized by law upon a person  who  has  not
been  previously  convicted  in the five years immediately preceding the
commission of the offense for a felony or a class A misdemeanor  defined
in  this  chapter,  if the court having regard to the nature and circum-
stances of the crime and to the history and character of the  defendant,
finds  on  the  record that such sentence would be unduly harsh and that
the alternative sentence would be consistent with public safety and does
not deprecate the seriousness of the crime.
  2. Class B misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
SION THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of  imprisonment
for  a  class  B  misdemeanor  shall be a definite sentence. When such a
sentence is imposed the term shall be fixed by the court, and shall  not
exceed three months.
  S 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.