Senate Bill S4354

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

                                  4354

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 22, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation  to  prohibiting
  plea bargaining where a defendant is indicted for the crime of rape in
  the first degree

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 5 of section 220.10 of the  criminal  procedure
law is amended by adding a new paragraph (i) to read as follows:
  (I)  WHERE  THE  INDICTMENT  CHARGES THE CLASS B FELONY OF RAPE IN THE
FIRST DEGREE DEFINED IN SECTION 130.35 OF THE PENAL LAW, THEN  ANY  PLEA
OF  GUILTY ENTERED PURSUANT TO SUBDIVISION THREE OR FOUR OF THIS SECTION
MUST BE OR MUST INCLUDE A PLEA OF GUILTY TO THE CLASS B FELONY  OF  RAPE
IN THE FIRST DEGREE DEFINED IN SECTION 130.35 OF THE PENAL LAW.
  S  2. Paragraph (g) of subdivision 5 of section 220.10 of the criminal
procedure law, as amended by chapter 410 of the laws of  1979,  subpara-
graph  (iii)  as  amended by chapter 264 of the laws of 2003, the second
undesignated paragraph as amended by chapter 920 of the laws of 1982 and
the closing paragraph as amended by chapter 411 of the laws of 1979,  is
amended to read as follows:
  (g)  Where  the  defendant  is  a juvenile offender, the provisions of
paragraphs (a), (b), (c) and (d) of this subdivision shall not apply and
any plea entered pursuant to subdivision three or four of this  section,
must be as follows:
  (i)   If the indictment charges a person fourteen or fifteen years old
with the crime of murder in the second degree any plea of guilty entered
pursuant to subdivision three or four OF THIS SECTION must be a plea  of
guilty of a crime for which the defendant is criminally responsible;
  (ii)   If the indictment does not charge a crime specified in subpara-
graph (i) of this paragraph, then any plea of guilty entered pursuant to
subdivision three or four of this section must be a plea of guilty of  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06574-01-9
              

S. 4354                             2

crime for which the defendant is criminally responsible unless a plea of
guilty is accepted pursuant to subparagraph (iii) of this paragraph;
  (iii)  Where  the  indictment  does  not  charge  a crime specified in
subparagraph (i) of this paragraph, the district attorney may  recommend
removal  of the action to the family court. Upon making such recommenda-
tion the district attorney shall submit a subscribed memorandum  setting
forth:  (1) a recommendation that the interests of justice would best be
served by removal of the action to the family  court;  and  (2)  if  the
indictment  charges  a thirteen year old with the crime of murder in the
second degree, or a fourteen or fifteen year old with the crimes of rape
in the first degree as defined in subdivision one of section  130.35  of
the  penal law, or criminal sexual act in the first degree as defined in
subdivision one of section 130.50 of the penal law, or an  armed  felony
as  defined in paragraph (a) of subdivision forty-one of section 1.20 of
this chapter specific factors, one or more of which reasonably  supports
the  recommendation,  showing,  (i)  mitigating  circumstances 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,  that  the
defendant's  participation was relatively minor although not so minor as
to constitute a defense to the prosecution, or (iii) possible  deficien-
cies  in  proof of the crime, or (iv) where the juvenile offender has no
previous adjudications of having committed a designated felony  act,  as
defined  in  subdivision eight of section 301.2 of the family court act,
regardless of the age of the offender at the time of commission  of  the
act,  that the criminal act was not part of a pattern of criminal behav-
ior and, in view of the history of the offender, is  not  likely  to  be
repeated.
  If  the court is of the opinion based on specific factors set forth in
the district attorney's memorandum that the interests of  justice  would
best  be  served by removal of the action to the family court, a plea of
guilty of a crime or act for  which  the  defendant  is  not  criminally
responsible may be entered pursuant to subdivision three or four of this
section,  except  that  a  thirteen  year  old charged with the crime of
murder in the second degree may only plead to a designated  felony  act,
as  defined  in  subdivision  eight of section 301.2 of the family court
act.
  Upon accepting any such plea, the court must specify upon  the  record
the  portion  or portions of the district attorney's statement the court
is relying upon as the basis of its opinion and  that  it  believes  the
interests  of  justice would best be served by removal of the proceeding
to the family court.  Such plea shall then be deemed to  be  a  juvenile
delinquency  fact  determination  and  the court upon entry thereof must
direct that the action be removed to the family court in accordance with
the provisions of article seven hundred twenty-five of this chapter.
  S 3. Paragraph (b) of subdivision 3 of section 220.30 of the  criminal
procedure  law  is  amended  by adding a new subparagraph (x) to read as
follows:
  (X) A PLEA OF GUILTY, WHETHER TO THE ENTIRE INDICTMENT OR TO  PART  OF
THE  INDICTMENT  FOR  ANY CRIME OTHER THAN THE CLASS B FELONY OF RAPE IN
THE FIRST DEGREE DEFINED IN SECTION 130.35 OF THE PENAL LAW, MAY NOT  BE
ACCEPTED  ON CONDITION THAT IT CONSTITUTES A COMPLETE DISPOSITION OF ONE
OR MORE OTHER INDICTMENTS AGAINST THE DEFENDANT WHEREIN IS  CHARGED  THE
CLASS  B FELONY OF RAPE IN THE FIRST DEGREE DEFINED IN SECTION 130.35 OF
THE PENAL LAW.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.