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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jan 06, 2010 |
referred to codes |
| Apr 27, 2009 |
referred to codes |
Senate Bill S5311
2009-2010 Legislative Session
Relates to imposing stricter penalties for certain sexual offenses; repealer
download bill text pdfSponsored By
(R, C, Ind, WF) Senate District
Archive: Last Bill Status - In Senate Committee Codes Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
2009-S5311 (ACTIVE) - Details
- Current Committee:
- Senate Codes
- Law Section:
- Penal Law
- Laws Affected:
- Rpld §130.66, amd Pen L, generally; amd §§168-a & 168-l, Cor L; amd §§259-a, 259-i & 995, Exec L; amd §§1.20, 400.19 & 700.05, rpld §200.62, CP L
2009-S5311 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5311
TITLE OF BILL :
An act to amend the penal law, the correction law, the executive law,
the criminal procedure law and the mental hygiene law, in relation to
sex offenses and to repeal certain provisions of the penal law and the
criminal procedure law relating thereto
PURPOSE :
This bill would amend the Penal Law, the Correction Law, the Criminal
Procedure Law, the Executive Law, and the Mental Hygiene Law to
increase the sentence to be imposed on persons convicted of sex
offenses against children and repeat felony sex offenses and to
require that any person convicted of such offenses register as a sex
offender.
SUMMARY OF SPECIFIC PROVISIONS :
Section one of the bill would amend Penal Law § 10.00(18) relating to
the definition of juvenile offenders by deleting references to
subdivisions one and two of Penal Law §130.35, Rape in the First
Degree, and Penal Law § 130.50, Criminal Sexual Act in the First
Degree, and add the new crime of Predatory Sexual Assault, as defined
in Penal Law § 130.95, to the list of crimes for which a person may be
deemed a juvenile offender.
Section two of the bill would amend Penal Law §30 relating to the
defense of infancy by adding the new crime of Predatory Sexual Assault to the list of crimes for which a person less than sixteen years old can be held criminally responsible. Section three of the bill would amend Penal Law § 70.00(3)(a)(i) to require that any person convicted of the A-I felonies of Rape of a Child in the First Degree, Criminal Sexual Act Against a Child in the First Degree, Aggravated Sexual Abuse of a Child in the First Degree, Course of Sexual Conduct Against a Child in the First Degree, Predatory Sexual Assault, or Use of a Child in a Sexual Performance in the First Degree be sentenced to an indeterminate sentence of 25 years-to-life. Section four of the bill would amend Penal Law § 70.02(1)(a) to make the following crimes Class B violent felonies: (i) Use of a Child in a Sexual Performance in the Second Degree, (ii) Promoting an Obscene Sexual Performance by a Child in the First Degree, and (iii) Promoting a Sexual Performance by a Child in the First Degree. This section also would amend Penal Law § 70.02(1 )(b) to designate the following crimes Class C violent felonies: (a) Rape of a Child in the Second Degree, (b) Criminal Sexual Act Against a Child in the Second Degree, (c) Sexual Abuse of a Child, (d) Aggravated Sexual Abuse of a Child in the Second Degree, ( e) Course of Sexual Conduct Against a Child in the Second Degree, (f) Promoting an Obscene Sexual Performance by a Child in the Second Degree, (g) Possessing an Obscene Sexual Performance by a Child in the First Degree, (h) Promoting a Sexual Performance by a Child in the Second Degree, and (i) Possessing a Sexual Performance by a Child in the First Degree. This section further would amend Penal Law § 70.02(1)(c) to designate the following crimes Class D violent felonies: (I) Rape of a Child in the Third Degree, (2) Criminal Sexual Act against a Child in the Third Degree, (3) Rape in the Second Degree, (4) Aggravated Sexual Abuse of a Child in the Third Degree (5) Criminal Sexual Act in the Second Degree, (6) Aggravated Sexual Abuse in the Third Degree, (7) Facilitating a Sex Offense with a Controlled Substance, (8) Possessing an Obscene Sexual Performance by a Child in the Second Degree, and (9) Possessing a Sexual Performance by a Child in the Second Degree. Section five of the bill would amend Penal Law §70.07 to remove references to "child" and thereby make the sentencing applicable to all second sexual assault felony offenders, and would provide for a mandatory sentence of 25 years to life for any second sexual assault felony offender. Section six of the bill would amend Penal Law §I I0.05(1) to punish as an A-I felony an attempt to commit any of the following A-I felonies: (i) Rape of a Child in the First Degree, (ii) Criminal Sexual Act against a Child in the First Degree, (ii) Course of Sexual Conduct against a Child in the First Degree, (iv) Aggravated Sexual Abuse of a Child in the First Degree, (v) Use of a Child in a Sexual Performance in the First Degree, or (vi) Predatory Sexual Assault. Section seven of the bill would amend Penal Law §125.25(S) to make causing the death of any person under the age of 15 by a person over 18, intentionally or otherwise, in the course of committing or attempting to commit the sex offenses against children created by this legislation, Second Degree Murder, for which a sentence of life imprisonment without parole is required. Section eight of the bill would amend Penal Law § 130.00(9), to remove from the definition of a "foreign object", for purposes of sex crimes definitions, the requirement that the object be capable of causing physical injury, Section nine of the bill would amend the definition of "aggravated sexual contact" in Penal Law § 130.00(11) by adding penetration with a finger to the definitions of the crime and by deleting the references to "child" and causing "physical injury". Section ten of the bill would amend Penal Law §130.05 (3)(h) to conform that section to the new reference to Aggravated Sexual Abuse in the Third Degree, as created by section twenty-seven of the bill. Section eleven of the bill would amend Penal Law § 130.10 (3) to conform that section to the new reference to Aggravated Sexual Abuse in the Third Degree, as created by section twenty-seven of the bill. Section twelve of the bill would amend Penal Law § 130.25 by deleting the subdivision which defined the act of a person 21 years old or more engaging in sexual intercourse with a person less than 17 years of age as Rape in the Third Degree. Section thirteen of the bill would add a new Penal Law §130.26, which would provide that a person 21 or more years old engaging in sexual intercourse with a person less than 17 years of age is guilty of Rape of a Child in the Third Degree, a Class D felony. Section fourteen of the bill would amend Penal Law § 130.30 by deleting the subdivision which defined the act of a person over the age of 18 engaging in sexual intercourse with a person less than 15 years of age as Rape in the Second Degree. Section fifteen of the bill would add a new Penal Law § 130.31, which would provide that a person over the age of 18 engaging in sexual intercourse with a person less than 15 years of age is guilty of Rape of a Child in the Second Degree, a Class C felony. Section sixteen of the bill would amend Penal Law § 130.35 to remove provisions defining the act of sexual intercourse with any person less than 11 years of age, or with any person less than 13 years of age, if the actor is greater than 18 years of age, as Rape in the First Degree. Section seventeen of the bill would add a new Penal Law § 130,36, which would provide that a person who engages in sexual intercourse with a person under the age of 13, and any person over the age of 18 who engages in sexual intercourse with a person less than 14 years of age, is guilty of Rape of a Child in the First Degree, a Class A-1 felony. Section eighteen of the bill would amend Penal Law § 130.40 by deleting the subdivision which defined the act of a person 21 years old or more engaging in oral or anal sexual conduct with a person less than 17 years of age as Criminal Sexual Act in the Third degree. Section nineteen of the bill would add a new Penal Law §130.41, which would provide that a person 21 years old or more engaging in oral or anal sexual conduct with a person less than 17 years of age is guilty of Criminal Sexual Act against a Child in the Third Degree, a Class D felony. Section twenty of the bill would amend Penal Law § 130.45 by deleting the subdivision which defined the act of a person 18 years old or more engaging in oral or anal sexual conduct with a person less than 15 years of age as Criminal Sexual Act in the Second Degree. Section twenty-one of the bill would add a new Penal Law §130.46, which would provide that a person 18 years old or more engaging in oral or anal sexual conduct with a person less than 15 years of age is guilty of Criminal Sexual Act against a Child in the Second Degree, a Class C felony. Section twenty-two of the bill would amend Penal Law §130.50 to remove provisions defining oral or anal sexual conduct with any person less than 11 or with any person less than 13, if the actor is 18 years old or more, as Criminal Sexual Act in the First Degree. Section twenty-three of the bill would add a new Penal Law §130.51, which would provide that a person who engages in oral or anal sexual conduct with a person under the age of 13, and any person 18 years old or more who engages in oral or anal sexual conduct with a person less than 14 years of age, is guilty of Criminal Sexual Act against a Child in the First Degree, a Class A-1 felony. Section twenty-four of the bill would amend Penal Law § 130.55 to upgrade Sexual Abuse in the Third Degree, currently a Class B misdemeanor, to a Class A misdemeanor. Section twenty-five of the bill would amend Penal Law § 130.60 to upgrade Sexual Abuse in the Second Degree, currently a Class A misdemeanor, to a Class E felony. Section twenty-six of the bill would amend the Penal Law by adding a new section 130.63, to establish the crime of Sexual Abuse of a Child, a Class C felony, defined as subjecting a person less than 13 years old to sexual contact, or a person 18 years old or more subjecting a person less than 14 to sexual contact. Section twenty-seven of the bill would amend Penal Law § 130.65 to remove provisions defining sexual contact with any person less than 11 as Sexual Abuse in the First Degree. Section twenty-eight of the bill would amend Penal Law § 130.65-a to rename Aggravated Sexual Abuse in the Fourth Degree as Aggravated Sexual Abuse in the Third Degree, and to upgrade the offense to a Class D felony from a Class E felony, and to remove, as an element of the crime, the requirement that physical injury be caused. Section twenty-nine of the bill would repeal Penal Law § 130,66, Aggravated Sexual Abuse in the Third Degree. Section thirty of the bill would amend Penal Law § 130.67, Aggravated Sexual Abuse in the Second Degree, to remove as the element of the crime the requirement that physical injury be caused and to remove provisions defining conduct against a person less than 11 years old as a theory of the crime. Section thirty-one of the bill would add a new Penal Law § 130.68 which would provide that a person 21 years or older who inserts a finger or foreign object in the vagina, urethra, penis or rectum of a person under the age of 17 is guilty of Aggravated Sexual Abuse of a Child in the Third Degree, a Class D felony. Section thirty-two of the bill would add a new Penal Law §130.69 which would provide that a person 18 years old or more who inserts a finger or foreign object in the vagina, urethra, penis or rectum of a person under the age of 15 is guilty of Aggravated Sexual Abuse of a Child in the Second Degree, a Class C felony. Section thirty-three of the bill would amend Penal Law § 130.70, Aggravated Sexual Abuse in the First Degree, to make the section gender neutral, remove the requirement, as an element of the crime, that physical injury be caused and to replace, as a theory of the crime, conduct against a person less than 11 with conduct against a person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. Section thirty-four of the bill would add a new Penal Law §130.71, which would provide that a person who inserts a finger or foreign object in the vagina, urethra, penis or rectum of a person under the age of 13, or any person 18 years or older who inserts a finger or foreign object in the vagina, urethra, penis or rectum of a person less than 14 years of age, is guilty of Aggravated Sexual Abuse of a Child in the First Degree, a Class A-1 felony. Section thirty-five of the bill would amend Penal Law § 13035, Course of Sexual Conduct Against a Child in the First Degree, to raise the ages of child victims and to upgrade the crime, currently a class 13 felony, to a Class A-1 felony. Section thirty-six of the bill would amend Penal Law §130.80, Course of Sexual Conduct Against a Child in the Second Degree, to raise the ages of the child victims and to upgrade the crime, currently a Class D felony, to a Class C felony. Section thirty-seven of the bill would add a new Penal Law § 130.95 to create the new felony offense of Predatory Sexual Assault, a Class A-1 felony, which would be defined as the commission of one of the highest level sexual felonies along with an added aggravating factor (E.G., causing serious physical injury in the attack or attacking more than one person). Section thirty-eight of the bill would amend Penal Law §263(1) and (2) to reference newly created sections of Article 263 of the Penal Law and to raise the ages of the children victimized for purposes of crimes involving a sexual performance by a child. Section thirty-nine of the bill would add a new Penal Law §263.03 to create the new crime of Use of a Child in a Sexual Performance in the First Degree, a Class A-1 felony, relating to using a child less than 13 in a sexual performance. Section forty of the bill would rename Penal Law §263.05 as Use of a Child in a Sexual Performance in the Second Degree, to make the statute gender neutral, and to upgrade the crime, currently a Class C felony, to a Class B felony. Section forty-one of the bill would add a new Penal Law §263.08, to create the new crime of Promoting an Obscene Sexual Performance by a Child in the First Degree, a Class B felony, relating to Promoting an Obscene Sexual Performance by a child under 13. Section forty-two of the bill would rename Penal Law §263.10, Promoting an Obscene Sexual Performance by a Child in the Second Degree, make the statute gender neutral, and upgrade the crime, currently a Class D felony, to a Class C felony. Section forty-three of the bill would amend Penal Law §263.11 by renaming the crime Possessing an Obscene Sexual Performance by a Child in the First Degree, and lowering the age of the child victimized to less than 13 and upgrading the offense, currently a Class E felony, to a Class C felony. Section forty-four of the bill would add a new Penal Law §263.12 to create the crime of Possessing an Obscene Sexual Performance by a Child in the Second Degree, a Class D felony, relating to a depiction of a child less than 17. Section forty-five of the bill would add a new Penal Law §263.13 to create the crime of Promoting a Sexual Performance by a Child in the First Degree, a Class B felony, relating to the promotion of a sexual performance by a child under 13. Section forty-six of the bill would amend Penal Law §263.15 by renaming the crime Promoting a Sexual Performance by a Child in the Second Degree, and upgrading the crime, currently a Class D felony, to a class C felony. Section forty-seven of the bill would amend Penal Law §263.16 by renaming the crime Possessing a Sexual Performance by a Child in the First Degree, reducing the age of the child victimized to less than 13, making the crime gender neutral, and upgrading the crime, currently a Class E felony, to a Class C felony. Section forty-eight of the bill would add a new Penal Law §263.17 to create the crime of Possessing a Sexual Performance by a Child in the Second Degree, a Class D felony, would be defined as the possession of a sexual performance by a child less than 17 years of age. Section forty-nine of the bill would amend Penal Law §263.20 to add a reference to the newly added crimes of Possessing an Obscene Sexual Performance by a Child in the Second Degree and Possessing a Sexual Performance by a Child in the Second Degree. Sections fifty and fifty-one of the bill would amend Correction Law §§168-a(2)(a)(i) and (3)(a)(i) to require that any person convicted of any of the newly created sex offenses is obligated to register as a sex offender with the New York State Sex Offender Registry. Section fifty-two of the bill would add a new Correction Law § 1 68-1(6-a) to require that the Board of Examiners of Sex Offenders provide a recommendation as to the level of risk posed by a person convicted of a sex offender to the Parole Board prior to the Parole Boards consideration of such person for release. Sections fifty-three and fifty-four of the bill would amend Executive Law §§259-a(1) and 2594(2)(0(A) to provide that the recommendation of the Board of Examiners of Sex Offenders be considered prior to the discretionary release of a person convicted of a sex offense. Section fifty-five of the bill would amend the Executive Law §995 relating to Forensic Science and DNA, to conform the law to the newly created sexual crimes. Section fifty-six of the bill would amend Criminal Procedure Law §1.20(42) relating to the definition of "juvenile offenders" by deleting references to subdivisions one and two of Penal Law §§130.35 and 130.50. Section fifty-seven of the bill would repeal Criminal Procedure Law §200.62, relating to the need for special information to accompany the indictment regarding a child sexual assault offender. Section fifty-eight of the bill would amend Criminal Procedure Law §400.19, relating to the procedure for determining when a person is a second sexual assault felony offender. Section fifty-nine of the bill would amend Criminal Procedure Law §700.05(8)(b) by adding the newly-created sex offenses to the list of designated offenses for which an eavesdropping or video surveillance warrant may be sought. Section sixty of the bill would provide that the bill shall take effect ninety days after it has been enacted. EXISTING LAW : Currently, there are no Class A felony sex offenses in New York State and Rape in the Second Degree, Criminal Sexual Act in the Second Degree and Facilitating a Sex Offense with a Controlled Substance are not violent felony offenses. Additionally, none of the Penal Law Article 263 felonies involving a sexual performance by a child or an obscene sexual performance by a child are considered violent felony offenses. Criminal Procedure Law §400.19 currently sets forth the procedure for determining whether the defendant is a second child sexual assault felony offender. Whenever a person is charged with the commission or attempted commission of a Penal Law Article 130 felony, and it appears the victim was less than 15 years of age, Criminal Procedure Law §200.62 provides that an indictment may be accompanied by special information filed by the district attorney alleging that the victim was less than 15 years old. Penal Law §70.07 provides for a specific range of sentences for a second child sexual assault felony offender based upon the class of offense for which the offender stands convicted and the class of the predicate conviction. Murder in the Second Degree includes the instance where an individual, 18 years of age or older, while in the course of committing the following offenses against a person less than 14 years old causes the death of such person: (1) Rape in the First, Second or Third Degree, (2) Criminal Sexual Act in the First, Second or Third Degree, (3) Sexual Abuse in the First Degree, (4) Aggravated Sexual Abuse in the First, Second, Third or Fourth Degree, or (5) Incest The definition of "foreign object" includes a requirement that the object be capable of causing physical injury when inserted, and the definition of "aggravated sexual contact" requires that physical injury to a child be caused. The crimes of Rape, Criminal Sexual Act, Aggravated Sexual Abuse and Sex Abuse have specific subdivisions which apply to crimes against children. Sexual Abuse in the Third Degree is a Class B misdemeanor. Sexual Abuse in the Second Degree is a Class A misdemeanor. In Penal Law Article 263, the definitions of "sexual performance" and "obscene sexual performance" include sexual conduct by a child less than 16 or 17 years of age, depending upon the specific section. Criminal Procedure Law §700.05(8) sets forth the definition of "designated offense" for the purpose of eavesdropping and video surveillance warrants, and lists specific offenses which must be alleged in order for an application for such a warrant to be considered. The Board of Parole currently does not receive a copy of the Board of Examiners of Sex Offenders recommendation to the court regarding risk level and designation. JUSTIFICATION : This proposal would: (1) create new sex crimes with sharply increased penalties targeting predatory sexual offenders and those sex offenders who prey on children; (2) sharply increase penalties for repeat felony sex offenders; (3) elevate the severity of certain sex offenses against children by raising the class of the offense and/or deeming the offense a violent felony offense; (4) increase the age range for child victims of certain offenses; and (5) require registration as a sex offender when convicted of one of the new crimes. These enhancements are needed to protect the public, send the message to sex offenders that victimization of children and violent sex offenses will result in lifetime incarceration and hold accountable the offenders who commit such heinous acts. Below is a listing of the offenses deemed violent offenses and the applicable sentences under this proposal. The new crimes to be created under this bill are identified with an asterisk (*). CLASS A-I OFFENSES Rape of a Child 1st §1.30.36* 25 - Life Criminal Sexual Act Against a Child 1st P.L. § 130.51 * 25 - Life Aggravated Sexual Abuse Child 1st §130.71* 25 - Life Course of Sexual Conduct Against a Child 1st P.L. §130.75 25 - Life Predatory Sexual Assault P.L. §130.95* 25 - Life Use of a Child in a Sexual Performance 1st §263.03* 25 - Life CLASS B VIOLENT OFFENSES Rape 1st P.L. §130.35 Determinate 5-25 Years Criminal Sexual Act 1st P.L. §130.50 Determinate 5-25 Years Aggravated Sexual Abuse 1st P.L. §130.70 Determinate 5-25 Years Use of a Child in a Sexual Performance 2nd P.L. §263.05* Determinate 5-25 Years Promoting Obscene Sexual Performance Child 1st P.L. §263.08* Determinate 5-25 Years Promoting a Sexual Performance by a Child 1st P.L. §263.13* Determinate 5-25 Years CLASS C VIOLENT OFFENSES Rape of a Child 2nd P §130 31* Determinate 3 1/2-15 Years Criminal Sexual Act Against a Child 2nd P.L. §130.46* Determinate 3 1/2-15 Years Sexual Abuse of a Child Pl. §130.63* Determinate 3 1/2-15 Years Aggravated Sexual Abuse of a Child 2nd P.L. §130,69* Determinate 3 1/2-15 Years Aggravated Sexual Abuse 2nd P.L. §130.67 Determinate 3 1/2-15 Years Course of Sexual Conduct Against a Child 2nd PL. §130.80 Determinate 3 1/2-15 Years Promoting Obscene Sexual Performance Child 2nd P.L. §263.10* Determinate 3 1/2-15 Years Possessing Obscene Sexual Performance Child 1st P.L. §263.11* Determinate 3 1/2-15 Years Promoting a Sexual Performance by a Child P.L. §263.15* Determinate 3 1/2-15 Years Promoting a Sexual Performance by a Child 2nd P.L. §263.15* Determinate 3 1/2-15 Years Possessing a Sexual Performance by a Child 1st P.L. §263.16* Determinate 3 1/2-15 Years CLASS D VIOLENT OFFENSES Rape of a Child 3rd P.L. § 130.26* Determinate 2-7 Years Rape 2nd P.L. §130.30 Determinate 2-7 Years Criminal Sexual Act Against a Child 3rd P.L. §130.41* Determinate 2-7 Years Criminal Sexual Act 2nd P.L. § 130.45 Determinate 2-7 Years Sexual Abuse 1st P.L. §130.65 Determinate 2-7 Years Aggravated Sexual Abuse of a Child 3rd P.L. §130.68* Determinate 2-7 Years Aggravated Sexual Abuse 3rd P.L. §130.65-a Determinate 2-7 Years Facilitating Sex Offense with Cont'd Substance P.L. §130.90 Determinate 2-7 Years Possessing Obscene Sexual Performance Child 2nd P.L. §263.12* Determinate 2-7 Years Possessing Sexual Performance by a Child 2nd PL. §263.17* Determinate 2-7 Years The newly created sex crimes against children are specifically designed to cover instances where the victim is typically considered a child by the public as well as by medical professionals, by raising the defined age of a "child" for purposes of many of the Penal Law Article 130 offenses. For example, the existing offense of Rape in the First Degree has four subdivisions, two of which apply where: (i) the victim is less than 11 years of age (Penal Law § 130.35(3) and (ii) the victim is less than 13 years of age and the actor is eighteen years of age or older (Penal Law §130.35(4)). This proposal would remove these two subdivisions from the crime of Rape in the First Degree, place them in the newly created offense of Rape in the First Degree, Penal Law §1.30.36, and raise the ages of the victims from 11 to 13 and from 13 to 14 where the actor is 18 years of age. Rape in the First Degree would remain a Class B violent felony offense, while Rape of a Child in the First Degree would be a Class A-I felony. The current maximum sentence a first time adult offender can receive when convicted of Rape in the First Degree, a Class B felony, where the victim is under 11 years of age, is 5 to 25 years. Under this proposal, an adult offender convicted of Rape of a Child in the First Degree, Penal Law . 130.36, a Class A-I felony, would receive a sentence of 25 years-to-life. Penal Law Article 263 offenses have also been divided into separate offenses with penalties that correspond to the age of the victim. Currently, this Article does not comport with other Penal Law-defined sexual felonies against children because it does not contain increased penalties for those who victimize the youngest and most vulnerable victims. For example, the crime of Use of a Child in a Sexual Performance, currently a Class C felony contained in Penal Law §263.05, requires that the child be less than 17 years of age. This proposal would separate use of a child in a sexual performance into two offenses based upon the age of the victim. Use of a Child in a Sexual Performance in the First Degree would apply where the child is under 13 years of age, and would be a Class A-I felony. Use of a Child in a Sexual Performance in the Second Degree, would maintain the age of the child as under 17 years of age, but elevates the offense to a Class B felony. In addition, the legislation would amend the current sentencing statutes governing the sentencing of a second child sexual assault felony offender to remove the references to children and to simplify the current complex sentencing scheme created by those laws. The amendments would have the effect of creating a new sentencing scheme for "second sexual assault felony offenders", i.e. all those who after a conviction for a sexual assault felony have again committed one of these terrible attacks. All such second sexual assault felony offenders would receive a sentence of 25 years-to-life. Currently, a person charged with and convicted of the Class B felony of Rape in the First Degree, where the victim is a child less than eleven years old, can be sentenced to a period of incarceration as low as five years. Under this proposal, such person would not serve less than 25 years and may be imprisoned for life. Additionally, a second felony offender who has sexual contact with a child less than eleven years old can be sentenced, at this time, to a term of imprisonment as low as five years and no higher than 15 years. Under this proposal, the same person would be subject to a mandatory sentence of 25 years to life. Moreover, under this proposal, the mandatory 25 years-to-life sentence is required whenever a person is convicted of a second sexual assault and not just when the assault occurs against a child who is 14 years old or younger. Current laws regarding the creation, promotion and possession of child pornography also need to be addressed. Currently, those crimes are not deemed "violent felonies", and a person convicted of using a child in a sexual performance may be sentenced to an indeterminate term as low as one to three years. Under this proposal, such crimes would be deemed "violent felonies", and a person using a child less than 13 years old in a sexual performance would face a mandatory term of 25 years-to-life in prison. If the child is older than 13, the offender will be eligible for a maximum sentence of 25 years under this proposal. This bill also would create the new crime of Predatory Sexual Assault, a Class A-I felony, designed to protect society from "worst of the worst" sexual predators, which would also be punished by a mandatory 25 years- to-life in prison. This new crime would apply where, during the course of the commission of a listed sex crime, or in the immediate flight therefrom, an individual or another participant in the crime causes serious physical injury to someone, is armed with a deadly weapon, uses or threatens the immediate use of a dangerous instrument or displays what appears to be a gun. It also would apply where the individual has engaged in conduct constituting a listed sex crime against one or more additional persons or where the individual has a specified prior felony conviction. All these changes are critical to the protection of our children and other vulnerable potential victims from violent sexual predators and will ensure that offenders who target children or who are repeat felons will face the remainder of their lives in prison. Although no punishment of an offender can ever restore a child's innocence, sentences must be sharply enhanced to make those sentences to reflect the terrible damage that these offenders inflict upon the most vulnerable members of our society. The Sexual Assault Reform Act, signed into law by Governor Pataki in 2000, was the first major reform of the sexual assault laws in New York State since 1965. The Sexual Assault Reform Act increased penalties, established procedural reforms to enhance prosecution and extended additional protections to victims of sex offenses. This new proposal would build upon the success of the Sexual Assault Reform Act by proposing additional increased penalties and new crimes specifically tailored to those who sexually assault children. LEGISLATIVE HISTORY : 2008-07: S.5474 Committed to Rules 2006: S.7843 Passed Senate FISCAL IMPLICATIONS : To be determined. LOCAL FISCAL IMPLICATIONS : EFFECTIVE DATE : Ninetieth day after it shall have become law.
2009-S5311 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5311
2009-2010 Regular Sessions
I N S E N A T E
April 27, 2009
___________
Introduced by Sen. MORAHAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the correction law, the executive law,
the criminal procedure law and the mental hygiene law, in relation to
sex offenses and to repeal certain provisions of the penal law and the
criminal procedure law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 18 of section 10.00 of the penal law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
18. "Juvenile offender" means (1) a person thirteen years old who is
criminally responsible for acts constituting murder in the second degree
as defined in subdivisions one and two of section 125.25 of this chapter
or such conduct as a sexually motivated felony, where authorized pursu-
ant to section 130.91 of [the penal law] THIS CHAPTER OR PREDATORY SEXU-
AL ASSAULT AS DEFINED IN SECTION 130.95 OF THIS CHAPTER; and
(2) a person fourteen or fifteen years old who is criminally responsi-
ble for acts constituting the crimes defined in subdivisions one and two
of section 125.25 (murder in the second degree) and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible; section 135.25
(kidnapping in the first degree); 150.20 (arson in the first degree);
subdivisions one and two of section 120.10 (assault in the first
degree); 125.20 (manslaughter in the first degree); [subdivisions one
and two of] section 130.35 (rape in the first degree); [subdivisions one
and two of] section 130.50 (criminal sexual act in the first degree);
130.70 (aggravated sexual abuse in the first degree); 130.95 (PREDATORY
SEXUAL ASSAULT); 140.30 (burglary in the first degree); subdivision one
of section 140.25 (burglary in the second degree); 150.15 (arson in the
second degree); 160.15 (robbery in the first degree); subdivision two of
section 160.10 (robbery in the second degree) of this chapter; or
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11545-01-9
S. 5311 2
section 265.03 of this chapter, where such machine gun or such firearm
is possessed on school grounds, as that phrase is defined in subdivision
fourteen of section 220.00 of this chapter; or defined in this chapter
as an attempt to commit murder in the second degree or kidnapping in the
first degree, or such conduct as a sexually motivated felony, where
authorized pursuant to section 130.91 of [the penal law] THIS CHAPTER.
S 2. Subdivision 2 of section 30.00 of the penal law, as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
2. A person thirteen, fourteen or fifteen years of age is criminally
responsible for acts constituting murder in the second degree as defined
in subdivisions one and two of section 125.25 and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible, AND FOR ACTS
CONSTITUTING PREDATORY SEXUAL ASSAULT AS DEFINED IN SECTION 130.95 OF
THIS CHAPTER or for such conduct as a sexually motivated felony, where
authorized pursuant to section 130.91 of [the penal law] THIS CHAPTER,
AND FOR ACTS CONSTITUTING PREDATORY SEXUAL ASSAULT AS DEFINED IN SECTION
130.95 OF THIS CHAPTER; and a person fourteen or fifteen years of age is
criminally responsible for acts constituting the crimes defined in
section 135.25 (kidnapping in the first degree); 150.20 (arson in the
first degree); subdivisions one and two of section 120.10 (assault in
the first degree); 125.20 (manslaughter in the first degree); [subdivi-
sions one and two of] section 130.35 (rape in the first degree); [subdi-
visions one and two of] section 130.50 (criminal sexual act in the first
degree); 130.70 (aggravated sexual abuse in the first degree); 140.30
(burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); 150.15 (arson in the second degree);
160.15 (robbery in the first degree); subdivision two of section 160.10
(robbery in the second degree) of this chapter; or section 265.03 of
this chapter, where such machine gun or such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of this chapter; or defined in this chapter as an attempt
to commit murder in the second degree or kidnapping in the first degree,
or for such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of [the penal law] THIS CHAPTER.
S 3. Subparagraph (i) of paragraph (a) of subdivision 3 of section
70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
is amended to read as follows:
(i) For a class A-I felony, such minimum period shall not be less than
fifteen years nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or life imprison-
ment without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in section 125.27 of this chapter such mini-
mum period shall be not less than twenty years nor more than twenty-five
years, and, (B) where a sentence is imposed upon a defendant convicted
of murder in the second degree as defined in subdivision five of section
125.25 of this chapter or convicted of aggravated murder as defined in
section 125.26 of this chapter, the sentence shall be life imprisonment
without parole, and, (C) where a sentence is imposed upon a defendant
convicted of attempted murder in the first degree as defined in article
one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
paragraph (a) of subdivision one and paragraph (b) of subdivision one of
section 125.27 of this chapter or attempted aggravated murder as defined
in article one hundred ten of this chapter and section 125.26 of this
chapter such minimum period shall be not less than twenty years nor more
than forty years, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT
S. 5311 3
CONVICTED OF RAPE OF A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
130.36 OF THIS CHAPTER, CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 130.51 OF THIS CHAPTER, AGGRAVATED SEXUAL
ABUSE OF A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.71 OF
THIS CHAPTER, COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 130.75 OF THIS CHAPTER, PREDATORY SEX
ASSAULT AS DEFINED IN SECTION 130.95 OF THIS CHAPTER OR USE OF A CHILD
IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03
OF THIS CHAPTER, SUCH MINIMUM PERIOD SHALL BE TWENTY-FIVE YEARS.
S 4. Paragraphs (a), (b) and (c) of subdivision 1 of section 70.02 of
the penal law, paragraph (a) as amended by chapter 320 of the laws of
2006, paragraph (b) as separately amended by chapters 764 and 765 of the
laws of 2005, paragraph (c) as amended by chapter 7 of the laws of 2007,
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 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, USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND
DEGREE AS DEFINED IN SECTION 263.05, PROMOTING AN OBSCENE SEXUAL
PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.08,
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
IN SECTION 263.13, 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 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); aggravated criminally
negligent homicide as defined in section 125.11, aggravated manslaughter
in the second degree as defined in section 125.21, RAPE OF A CHILD IN
THE SECOND DEGREE AS DEFINED IN SECTION 130.31, CRIMINAL SEXUAL ACT
AGAINST A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.46, SEXU-
AL ABUSE OF A CHILD AS DEFINED IN SECTION 130.63, aggravated sexual
abuse in the second degree as defined in section 130.67, AGGRAVATED
SEXUAL ABUSE OF A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION
130.69, COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE AS
DEFINED IN SECTION 130.80, assault on a peace officer, police officer,
S. 5311 4
fireman or emergency medical services professional as defined in section
120.08, gang assault in the second degree as defined in section 120.06,
burglary in the second degree as defined in section 140.25, robbery in
the second degree as defined in section 160.10, PROMOTING AN OBSCENE
SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION
263.10, POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 263.11, PROMOTING A SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15, POSSESSING A
SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
263.16, 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, 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 chemical
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, RAPE OF A CHILD IN THE THIRD DEGREE AS DEFINED IN
SECTION 130.26, rape in the second degree as defined in section 130.30,
CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE THIRD DEGREE AS DEFINED IN
SECTION 130.41, 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
degree as defined in section [130.66,] 130.65-A, AGGRAVATED SEXUAL ABUSE
OF A CHILD IN THE THIRD DEGREE AS DEFINED IN SECTION 130.68, facilitat-
ing a sex offense with a controlled substance as defined in section
130.90, POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
SECOND DEGREE AS DEFINED IN SECTION 263.12, POSSESSING A SEXUAL PERFORM-
ANCE BY A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.17, crim-
inal possession of a weapon in the third degree as defined in subdivi-
sion five, six, seven or eight 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
240.63, and aggravated unpermitted use of indoor pyrotechnics in the
first degree as defined in section 405.18.
S 5. Section 70.07 of the penal law, as added by chapter 1 of the laws
of 2000, subdivisions 1, 2, 3 as amended and subdivision 5 as added by
chapter 264 of the laws of 2003, paragraphs (a) and (b) of subdivision 4
as amended by chapter 107 of the laws of 2006, is amended to read as
follows:
S. 5311 5
S 70.07 Sentence of imprisonment for second [child] sexual assault felo-
ny offender.
1. A person who stands convicted of a felony offense for a sexual
assault [against a child], having been subjected to a predicate felony
conviction for a sexual assault [against a child], must be sentenced in
accordance with the provisions of subdivision four [or five] of this
section.
2. A "sexual assault [against a child]" means a felony offense, other
than persistent sexual abuse as defined in section 130.53 of this chap-
ter, [(a)] the essential elements of which include the commission or
attempted commission of sexual conduct, as defined in subdivision ten of
section 130.00 OR SUBDIVISION THREE OF SECTION 263.00 of this chapter[,
(b) committed or attempted to be committed against a child less than
fifteen years old].
3. For purposes of determining whether a person has been subjected to
a predicate felony conviction under this section, the criteria set forth
in paragraph (b) of subdivision one of section 70.06 shall apply
provided however that for purposes of this subdivision, the terms "ten
year" or "ten years", as provided in subparagraphs (iv) and (v) of para-
graph (b) of subdivision one of such section 70.06, shall be "fifteen
year" or "fifteen years". The provisions of section 400.19 of the crimi-
nal procedure law shall govern the procedures that must be followed to
determine whether a person who stands convicted of a sexual assault
[against a child] has been previously subjected to a predicate felony
conviction for such a sexual assault and whether such offender was eigh-
teen years of age or older at the time of the commission of the predi-
cate felony.
4. Where the court has found pursuant to subdivision three of this
section that a person who stands convicted of a felony offense [defined
in article one hundred thirty of this chapter] for the commission or
attempted commission of a sexual assault [against a child] has been
subjected to a predicate felony conviction for a sexual assault [against
a child], the court shall [sentence the defendant as follows:
(a) where the defendant stands convicted of such sexual assault
against a child and such conviction is for a class A-II or class B felo-
ny offense, and the predicate conviction for such sexual assault against
a child is for a class A-II, class B or class C felony offense, the
court shall] impose an indeterminate sentence of imprisonment, the maxi-
mum term of which shall be life and the minimum period of which shall be
[at least fifteen years and no more than] twenty-five years[;
(b) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class A-II, class B or class C felony offense, the court shall impose
a determinate sentence of imprisonment, the term of which must be at
least twelve years and must not exceed thirty years; provided however,
that if the court determines that a longer sentence is warranted, the
court shall set forth on the record the reasons for such determination
and, in lieu of imposing such sentence of imprisonment, may impose an
indeterminate sentence of imprisonment, the maximum term of which shall
be life and the minimum period of which shall be at least fifteen years
and no more than twenty-five years;
(c) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class B felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
S. 5311 6
nate sentence of imprisonment, the term of which must be at least twelve
years and must not exceed thirty years;
(d) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least ten
years and must not exceed twenty-five years;
(e) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class D felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least five years and must not
exceed fifteen years; and
(f) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class E felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least four years and must not
exceed twelve years.
5. Notwithstanding subdivision four of this section, where the court
has found pursuant to subdivision three of this section that a person:
(a) stands convicted of a felony offense defined in article one hundred
thirty of this chapter for the commission or attempted commission of a
sexual assault against a child; and (b) has been subjected to a predi-
cate felony conviction for sexual assault against a child as defined in
subdivision two of this section; and (c) who was under the age of eigh-
teen years at the time of the commission of such predicate felony
offense, then the court may, in lieu of the sentence authorized by
subdivision four of this section, sentence the defendant to a term of
imprisonment in accordance with the sentence authorized for the instant
felony offense pursuant to subdivision three of section 70.04 of this
article. The court shall set forth on the record the reasons for such
determination].
S 6. Subdivision 1 of section 110.05 of the penal law, as amended by
chapter 93 of the laws of 2006, is amended to read as follows:
1. Class A-I felony when the crime attempted is the A-I felony of
murder in the first degree, aggravated murder as defined in subdivision
one of section 125.26 of this chapter, criminal possession of a
controlled substance in the first degree, criminal sale of a controlled
substance in the first degree, criminal possession of a chemical or
biological weapon in the first degree [or], criminal use of a chemical
or biological weapon in the first degree, RAPE OF A CHILD IN THE FIRST
DEGREE, CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST DEGREE, COURSE
OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE, AGGRAVATED SEXUAL
ABUSE OF A CHILD IN THE FIRST DEGREE, USE OF A CHILD IN A SEXUAL
PERFORMANCE IN THE FIRST DEGREE OR PREDATORY SEXUAL ASSAULT;
S 7. Subdivision 5 of section 125.25 of the penal law, as amended by
chapter 320 of the laws of 2006, is amended to read as follows:
5. Being eighteen years old or more, while in the course of committing
[rape in the first, second or third degree, criminal sexual act in the
first, second or third degree, sexual abuse in the first degree, aggra-
vated sexual abuse in the first, second, third or fourth degree,] OR
ATTEMPTING TO COMMIT RAPE OF A CHILD IN THE FIRST, SECOND OR THIRD
DEGREE, CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST, SECOND OR
THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE, SEXUAL ABUSE OF A
S. 5311 7
CHILD, AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE FIRST OR SECOND DEGREE,
COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST OR SECOND DEGREE,
USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST OR SECOND DEGREE,
PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE,
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE, or incest
in the first, second or third degree, against a person less than [four-
teen] FIFTEEN years old, he or she [intentionally] causes the death of
such person.
S 8. Subdivision 9 of section 130.00 of the penal law, as amended by
chapter 696 of the laws of 1981, is amended to read as follows:
9. "Foreign object" means any instrument or article [which, when
inserted in the vagina, urethra, penis or rectum, is capable of causing
physical injury] OTHER THAN A BODY PART.
S 9. Subdivision 11 of section 130.00 of the penal law, as added by
chapter 122 of the laws of 1996, is amended to read as follows:
11. "Aggravated sexual contact" means inserting, other than for a
valid medical purpose, a FINGER OR foreign object in the vagina, ureth-
ra, penis or rectum of [a child, thereby causing physical injury to such
child] ANOTHER PERSON.
S 10. Paragraph (h) of subdivision 3 of section 130.05 of the penal
law, as amended by chapter 264 of the laws of 2003, is amended to read
as follows:
(h) a client or patient and the actor is a health care provider or
mental health care provider charged with rape in the third degree as
defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the [fourth] THIRD
degree as defined in section 130.65-a, or sexual abuse in the third
degree as defined in section 130.55, and the act of sexual conduct
occurs during a treatment session, consultation, interview, or examina-
tion.
S 11. Subdivision 3 of section 130.10 of the penal law, as amended by
chapter 264 of the laws of 2003, is amended to read as follows:
3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the [fourth] THIRD
degree as defined in section 130.65-a, or sexual abuse in the third
degree as defined in section 130.55 in which incapacity to consent is
based on the circumstances set forth in paragraph (h) of subdivision
three of section 130.05 of this article it shall be an affirmative
defense that the client or patient consented to such conduct charged
after having been expressly advised by the health care or mental health
care provider that such conduct was not performed for a valid medical
purpose.
S 12. Section 130.25 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old; OR
2. [Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
3.] He or she engages in sexual intercourse with another person with-
out such person's consent where such lack of consent is by reason of
some factor other than incapacity to consent.
Rape in the third degree is a class E felony.
S. 5311 8
S 13. The penal law is amended by adding a new section 130.26 to read
as follows:
S 130.26 RAPE OF A CHILD IN THE THIRD DEGREE.
A PERSON IS GUILTY OF RAPE OF A CHILD IN THE THIRD DEGREE WHEN, BEING
TWENTY-ONE YEARS OF AGE OR MORE, HE OR SHE ENGAGES IN SEXUAL INTERCOURSE
WITH ANOTHER PERSON LESS THAN SEVENTEEN YEARS OLD.
RAPE OF A CHILD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 14. Section 130.30 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.30 Rape in the second degree.
A person is guilty of rape in the second degree when[:
1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
2.] he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.
[It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.]
Rape in the second degree is a class D felony.
S 15. The penal law is amended by adding a new section 130.31 to read
as follows:
S 130.31 RAPE OF A CHILD IN THE SECOND DEGREE.
A PERSON IS GUILTY OF RAPE OF A CHILD IN THE SECOND DEGREE WHEN, BEING
EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH
ANOTHER PERSON LESS THAN FIFTEEN YEARS OLD.
IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE CRIME OF RAPE OF A CHILD IN
THE SECOND DEGREE AS DEFINED IN THIS SECTION THAT THE DEFENDANT WAS LESS
THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME OF THE ACT.
RAPE OF A CHILD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 16. Section 130.35 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.35 Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages
in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically help-
less[; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more].
Rape in the first degree is a class B felony.
S 17. The penal law is amended by adding a new section 130.36 to read
as follows:
S 130.36 RAPE OF A CHILD IN THE FIRST DEGREE.
A PERSON IS GUILTY OF RAPE OF A CHILD IN THE FIRST DEGREE WHEN:
1. HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO IS
LESS THAN THIRTEEN YEARS OLD; OR
2. BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN SEXUAL
INTERCOURSE WITH ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD.
RAPE OF A CHILD IN THE FIRST DEGREE IS A CLASS A-I FELONY.
S 18. Section 130.40 of the penal law, as amended by chapter 264 of
the laws of 2003, is amended to read as follows:
S 130.40 Criminal sexual act in the third degree.
A person is guilty of criminal sexual act in the third degree when:
S. 5311 9
1. He or she engages in oral sexual conduct or anal sexual conduct
with a person who is incapable of consent by reason of some factor other
than being less than seventeen years old;
2. [Being twenty-one years old or more, he or she engages in oral
sexual conduct or anal sexual conduct with a person less than seventeen
years old; or
3.] He or she engages in oral sexual conduct or anal sexual conduct
with another person without such person's consent where such lack of
consent is by reason of some factor other than incapacity to consent.
Criminal sexual act in the third degree is a class E felony.
S 19. The penal law is amended by adding a new section 130.41 to read
as follows:
S 130.41 CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE THIRD DEGREE.
A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE THIRD
DEGREE WHEN, BEING TWENTY-ONE YEARS OF AGE OR MORE, HE OR SHE ENGAGES IN
ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON LESS THAN
SEVENTEEN YEARS OLD.
CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE THIRD DEGREE IS A CLASS D
FELONY.
S 20. Section 130.45 of the penal law, as amended by chapter 264 of
the laws of 2003, is amended to read as follows:
S 130.45 Criminal sexual act in the second degree.
A person is guilty of criminal sexual act in the second degree when[:
1. being eighteen years old or more, he or she engages in oral sexual
conduct or anal sexual conduct with another person less than fifteen
years old; or
2.] he or she engages in oral sexual conduct or anal sexual conduct
with another person who is incapable of consent by reason of being
mentally disabled or mentally incapacitated.
[It shall be an affirmative defense to the crime of criminal sexual
act in the second degree as defined in subdivision one of this section
that the defendant was less than four years older than the victim at the
time of the act.]
Criminal sexual act in the second degree is a class D felony.
S 21. The penal law is amended by adding a new section 130.46 to read
as follows:
S 130.46 CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE SECOND DEGREE.
A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE
SECOND DEGREE WHEN, BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES
IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON LESS
THAN FIFTEEN YEARS OLD.
IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE CRIME OF CRIMINAL SEXUAL ACT
AGAINST A CHILD IN THE SECOND DEGREE AS DEFINED IN THIS SECTION THAT THE
DEFENDANT WAS LESS THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME OF
THE ACT.
CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE SECOND DEGREE IS A CLASS C
FELONY.
S 22. Section 130.50 of the penal law, as amended by chapter 264 of
the laws of 2003, is amended to read as follows:
S 130.50 Criminal sexual act in the first degree.
A person is guilty of criminal sexual act in the first degree when he
or she engages in oral sexual conduct or anal sexual conduct with anoth-
er person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically help-
less[; or
S. 5311 10
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more].
Criminal sexual act in the first degree is a class B felony.
S 23. The penal law is amended by adding a new section 130.51 to read
as follows:
S 130.51 CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST DEGREE.
A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST
DEGREE WHEN:
1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT
WITH ANOTHER PERSON WHO IS LESS THAN THIRTEEN YEARS OLD; OR
2. BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXUAL
CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS LESS THAN
FOURTEEN YEARS OLD.
CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE FIRST DEGREE IS A CLASS A-I
FELONY.
S 24. Section 130.55 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.55 Sexual abuse in the third degree.
A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter's consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person's lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class [B] A misdemeanor.
S 25. Section 130.60 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.60 Sexual abuse in the second degree.
A person is guilty of sexual abuse in the second degree when he or she
subjects another person to sexual contact and when such other person is:
1. Incapable of consent by reason of some factor other than being less
than seventeen years old; or
2. Less than fourteen years old.
Sexual abuse in the second degree is a class [A misdemeanor] E FELONY.
S 26. The penal law is amended by adding a new section 130.63 to read
as follows:
S 130.63 SEXUAL ABUSE OF A CHILD.
A PERSON IS GUILTY OF SEXUAL ABUSE OF A CHILD WHEN:
1. HE OR SHE SUBJECTS ANOTHER PERSON WHO IS LESS THAN THIRTEEN YEARS
OLD TO SEXUAL CONTACT; OR
2. BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE SUBJECTS ANOTHER PERSON
WHO IS LESS THAN FOURTEEN YEARS OLD TO SEXUAL CONTACT.
SEXUAL ABUSE OF A CHILD IS A CLASS C FELONY.
S 27. Section 130.65 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.65 Sexual abuse in the first degree.
A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless[; or
3. When the other person is less than eleven years old].
Sexual abuse in the first degree is a class D felony.
S. 5311 11
S 28. Section 130.65-a of the penal law, as added by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.65-a Aggravated sexual abuse in the [fourth] THIRD degree.
1. A person is guilty of aggravated sexual abuse in the [fourth] THIRD
degree when:
(a) He or she inserts a foreign object in the vagina, urethra, penis
or rectum 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 or rectum
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.
2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the [fourth] THIRD degree is a class [E] D
felony.
S 29. Section 130.66 of the penal law is REPEALED.
S 30. Subdivision 1 of section 130.67 of the penal law, as added by
chapter 450 of the laws of 1988, is amended to read as follows:
1. A person is guilty of aggravated sexual abuse in the second degree
when he OR SHE inserts a finger in the vagina, urethra, penis, or rectum
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].
S 31. The penal law is amended by adding a new section 130.68 to read
as follows:
S 130.68 AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE THIRD DEGREE.
A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE THIRD
DEGREE WHEN, BEING TWENTY-ONE YEARS OF AGE OR MORE, HE OR SHE INSERTS A
FINGER OR FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS OR RECTUM OF
ANOTHER PERSON WHEN SUCH OTHER PERSON IS LESS THEN SEVENTEEN YEARS OLD.
AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE THIRD DEGREE IS A CLASS D
FELONY.
S 32. The penal law is amended by adding a new section 130.69 to read
as follows:
S 130.69 AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE SECOND DEGREE.
1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE
SECOND DEGREE WHEN, BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE INSERTS
A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS OR RECTUM OF
ANOTHER PERSON WHEN SUCH OTHER PERSON IS LESS THAN FIFTEEN YEARS OLD.
2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE CRIME OF AGGRAVATED SEXU-
AL ABUSE OF A CHILD IN THE SECOND DEGREE THAT THE DEFENDANT WAS LESS
THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME OF THE ACT.
3. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
PROVISIONS OF THIS SECTION.
AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE SECOND DEGREE IS A CLASS C
FELONY.
S 33. Section 130.70 of the penal law, as amended by chapter 450 of
the laws of 1988, is amended to read as follows:
S 130.70 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 foreign object in the vagina, urethra, penis or
rectum of another person [causing physical injury to such person]:
S. 5311 12
(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] INCAPABLE OF
CONSENT BY REASON OF BEING MENTALLY DISABLED OR MENTALLY INCAPACITATED.
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 B felony.
S 34. The penal law is amended by adding a new section 130.71 to read
as follows:
S 130.71 AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE FIRST DEGREE.
1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE
FIRST DEGREE WHEN:
(A) HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
RA, PENIS OR RECTUM OF ANOTHER PERSON WHEN SUCH OTHER PERSON IS LESS
THAN THIRTEEN YEARS OLD; OR
(B) BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE INSERTS A FINGER OR
FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS OR RECTUM OF ANOTHER PERSON
WHEN SUCH OTHER PERSON IS LESS THAN FOURTEEN YEARS OLD.
2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
PROVISIONS OF THIS SECTION.
AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE FIRST DEGREE IS A CLASS A-I
FELONY.
S 35. Section 130.75 of the penal law, as amended by chapter 1 of the
laws of 2000, paragraphs (a) and (b) of subdivision 1, as amended by
chapter 264 of the laws of 2003, is amended to read as follows:
S 130.75 Course of sexual conduct against a child in the first degree.
1. A person is guilty of course of sexual conduct against a child in
the first degree when, over a period of time not less than three months
in duration:
(a) he or she engages in two or more acts of sexual conduct, which
includes at least one act of sexual intercourse, oral sexual conduct,
anal sexual conduct or aggravated sexual contact, with a child less than
[eleven] THIRTEEN years old; or
(b) he or she, being eighteen years old or more, engages in two or
more acts of sexual conduct, which include at least one act of sexual
intercourse, oral sexual conduct, anal sexual conduct or aggravated
sexual contact, with a child less than [thirteen] FOURTEEN years old.
2. A person may not be subsequently prosecuted for any other sexual
offense involving the same victim unless the other charged offense
occurred outside the time period charged under this section.
Course of sexual conduct against a child in the first degree is a
class [B] A-I felony.
S 36. Section 130.80 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.80 Course of sexual conduct against a child in the second degree.
1. A person is guilty of course of sexual conduct against a child in
the second degree when, over a period of time not less than three months
in duration:
(a) he or she engages in two or more acts of sexual conduct with a
child less than [eleven] THIRTEEN years old; or
(b) he or she, being eighteen years old or more, engages in two or
more acts of sexual conduct with a child less than [thirteen] FOURTEEN
years old.
S. 5311 13
2. A person may not be subsequently prosecuted for any other sexual
offense involving the same victim unless the other charged offense
occurred outside the time period charged under this section.
Course of sexual conduct against a child in the second degree is a
class [D] C felony.
S 37. Subdivision 3 of section 130.95 of the penal law, as added by
chapter 107 of the laws of 2006, is amended to read as follows:
3. He or she has previously been subjected to a conviction for a felo-
ny defined in this article, incest as defined in section 255.25 of this
chapter or use of a child in a sexual performance IN THE SECOND DEGREE
as defined in section 263.05 of this chapter.
S 38. Subdivisions 1 and 2 of section 263.00 of the penal law, as
amended by chapter 1 of the laws of 2000, are amended to read as
follows:
1. "Sexual performance" means any performance or part thereof which,
for purposes of section 263.03, 263.13 OR 263.16 of this article,
includes sexual conduct by a child less than [sixteen] THIRTEEN years of
age or, for purposes of section 263.05 [or], 263.15 OR 263.17 of this
article, includes sexual conduct by a child less than seventeen years of
age.
2. "Obscene sexual performance" means any performance which, for
purposes of section 263.08 OR 263.11 of this article, includes sexual
conduct by a child less than [sixteen] THIRTEEN years of age or, for
purposes of section 263.10 OR 263.12 of this article, includes sexual
conduct by a child less than seventeen years of age, in any material
which is obscene, as such term is defined in section 235.00 of this
chapter.
S 39. The penal law is amended by adding a new section 263.03 to read
as follows:
S 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
A PERSON IS GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE FIRST DEGREE IF KNOWING THE CHARACTER AND CONTENT THEREOF HE OR SHE
EMPLOYS, AUTHORIZES OR INDUCES A CHILD LESS THAN THIRTEEN YEARS OF AGE
TO ENGAGE IN A SEXUAL PERFORMANCE OR BEING A PARENT, LEGAL GUARDIAN OR
CUSTODIAN OF SUCH CHILD, HE OR SHE CONSENTS TO THE PARTICIPATION BY SUCH
CHILD IN A SEXUAL PERFORMANCE.
USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
A-I FELONY.
S 40. Section 263.05 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.05 Use of a child in a sexual performance IN THE SECOND DEGREE.
A person is guilty of the use of a child in a sexual performance IN
THE SECOND DEGREE if knowing the character and content thereof he OR SHE
employs, authorizes or induces a child less than seventeen years of age
to engage in a sexual performance or being a parent, legal guardian or
custodian of such child, he OR SHE consents to the participation by such
child in a sexual performance.
Use of a child in a sexual performance IN THE SECOND DEGREE is a class
[C] B felony.
S 41. The penal law is amended by adding a new section 263.08 to read
as follows:
S 263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
DEGREE.
A PERSON IS GUILTY OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
OF, HE OR SHE PRODUCES, DIRECTS OR PROMOTES ANY OBSCENE PERFORMANCE
S. 5311 14
WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN THIRTEEN YEARS OF
AGE.
PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS B FELONY.
S 42. Section 263.10 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.10 Promoting an obscene sexual performance by a child IN THE
SECOND DEGREE.
A person is guilty of promoting an obscene sexual performance by a
child IN THE SECOND DEGREE when, knowing the character and content ther-
eof, he OR SHE produces, directs or promotes any obscene performance
which includes sexual conduct by a child less than seventeen years of
age.
Promoting an obscene sexual performance by a child IN THE SECOND
DEGREE is a class [D] C felony.
S 43. Section 263.11 of the penal law, as added by chapter 11 of the
laws of 1996, is amended to read as follows:
S 263.11 Possessing an obscene sexual performance by a child IN THE
FIRST DEGREE.
A person is guilty of possessing an obscene sexual performance by a
child IN THE FIRST DEGREE when, knowing the character and content there-
of, he OR SHE knowingly has in his OR HER possession or control any
obscene performance which includes sexual conduct by a child less than
[sixteen] THIRTEEN years of age.
Possessing an obscene sexual performance by a child IN THE FIRST
DEGREE is a class [E] C felony.
S 44. The penal law is amended by adding a new section 263.12 to read
as follows:
S 263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE
SECOND DEGREE.
A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
EOF, HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL ANY
OBSCENE SEXUAL PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS
THAN SEVENTEEN YEARS OF AGE.
POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND
DEGREE IS A CLASS D FELONY.
S 45. The penal law is amended by adding a new section 263.13 to read
as follows:
S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR SHE
PRODUCES, DIRECTS OR PROMOTES ANY PERFORMANCE WHICH INCLUDES SEXUAL
CONDUCT BY A CHILD LESS THAN THIRTEEN YEARS OF AGE.
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A
CLASS B FELONY.
S 46. Section 263.15 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.
A person is guilty of promoting a sexual performance by a child IN THE
SECOND DEGREE when, knowing the character and content thereof, he OR SHE
produces, directs or promotes any performance which includes sexual
conduct by a child less than seventeen years of age.
Promoting a sexual performance by a child IN THE SECOND DEGREE is a
class [D] C felony.
S. 5311 15
S 47. Section 263.16 of the penal law, as added by chapter 11 of the
laws of 1996, is amended to read as follows:
S 263.16 Possessing a sexual performance by a child IN THE FIRST DEGREE.
A person is guilty of possessing a sexual performance by a child IN
THE FIRST DEGREE when, knowing the character and content thereof, he OR
SHE knowingly has in his OR HER possession or control any performance
which includes sexual conduct by a child less than [sixteen] THIRTEEN
years of age.
Possessing a sexual performance by a child IN THE FIRST DEGREE is a
class [E] C felony.
S 48. The penal law is amended by adding a new section 263.17 to read
as follows:
S 263.17 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND
DEGREE.
A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL ANY PERFORMANCE
WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN YEARS OF
AGE.
POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
CLASS D FELONY.
S 49. Subdivision 1 of section 263.20 of the penal law, as amended by
chapter 1 of the laws of 2000, is amended to read as follows:
1. Under this article, it shall be an affirmative defense that the
defendant in good faith reasonably believed the person appearing in the
performance was, for purposes of section [263.11 or 263.16 of this arti-
cle, sixteen years of age or over or, for purposes of section] 263.05,
263.10 [or], 263.12, 263.15 OR 263.17 of this article, seventeen years
of age or over.
S 50. Subparagraph (i) of paragraph (a) of subdivision 2 of section
168-a of the correction law, as amended by chapter 405 of the laws of
2008, is amended to read as follows:
(i) a conviction of or a conviction for an attempt to commit any of
the provisions of [sections] SECTION 120.70, 130.20, 130.25, 130.30,
130.40, 130.45, 130.60, 230.34, 250.50, 255.25, 255.26 [and], 255.27 [or
article two hundred sixty-three of the penal law], 263.05, 263.08,
263.10, 263.11, 263.12, 263.13, 263.15, 263.16 OR 263.17 OF THE PENAL
LAW, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to
kidnapping offenses, provided the victim of such kidnapping or related
offense is less than seventeen years old and the offender is not the
parent of the victim, or section 230.04, where the person patronized is
in fact less than seventeen years of age, 230.05 or 230.06, or subdivi-
sion two of section 230.30, or section 230.32 or 230.33 of the penal
law, or
S 51. Subparagraph (i) of paragraph (a) of subdivision 3 of section
168-a of the correction law, as amended by chapter 107 of the laws of
2006, is amended to read as follows:
(i) a conviction of or a conviction for an attempt to commit any of
the provisions of sections 130.26, 130.31, 130.35, 130.36, 130.41,
130.46, 130.50, 130.51, 130.63, 130.65, [130.66,] 130.67, 130.68,
130.69, 130.70, 130.71, 130.75, 130.80, 130.95 [and], 130.96 AND 263.03
of the penal law, or
S 52. Section 168-l of the correction law is amended by adding a new
subdivision 6-a to read as follows:
6-A. APPLYING THESE GUIDELINES, THE BOARD SHALL WITHIN SIXTY CALENDAR
DAYS PRIOR TO THE PAROLE BOARD'S CONSIDERATION OF A SEX OFFENDER FOR
S. 5311 16
POSSIBLE RELEASE TO PAROLE SUPERVISION PURSUANT TO SUBDIVISION TWO OF
SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW MAKE A RECOMMENDA-
TION WHICH SHALL BE CONFIDENTIAL AND SHALL NOT BE AVAILABLE FOR PUBLIC
INSPECTION, TO THE PAROLE BOARD AS TO WHETHER SUCH SEX OFFENDER WARRANTS
THE DESIGNATION OF SEXUAL PREDATOR, SEXUALLY VIOLENT OFFENDER, OR PREDI-
CATE SEX OFFENDER AS DEFINED IN SUBDIVISION SEVEN OF SECTION ONE HUNDRED
SIXTY-EIGHT-A OF THIS ARTICLE. IN ADDITION, THE GUIDELINES SHALL BE
APPLIED BY THE BOARD TO MAKE A RECOMMENDATION TO THE PAROLE BOARD WHICH
SHALL BE CONFIDENTIAL AND SHALL NOT BE AVAILABLE FOR PUBLIC INSPECTION,
PROVIDING FOR ONE OF THE THREE LEVELS OF NOTIFICATION PROVIDED FOR UNDER
SUBDIVISION SIX OF THIS SECTION DEPENDING UPON THE DEGREE OF THE RISK OF
RE-OFFENSE BY THE SEX OFFENDER.
S 53. Subdivision 1 of section 259-a of the executive law, as amended
by section 11 of part D of chapter 56 of the laws of 2008, is amended to
read as follows:
1. The division shall cause to be obtained and filed as soon as prac-
ticable, information as complete as may be obtainable with regard to
each inmate who is received in an institution under the jurisdiction of
the state department of correctional services. Such information shall
include a complete statement of the crime for which the inmate has been
sentenced, the circumstances of such crime, all presentence memoranda,
the nature of the sentence, any orders of protection or temporary orders
of protection issued against the inmate at the time of sentencing, the
court in which he OR SHE was sentenced, the name of the judge and
district attorney and copies of such probation reports as may have been
made, RECOMMENDATIONS FROM THE BOARD OF EXAMINERS OF SEX OFFENDERS AS
AUTHORIZED BY SUBDIVISION SIX-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF
THE CORRECTION LAW as well as reports as to the inmate's social, phys-
ical, mental and psychiatric condition and history.
S 54. Subparagraph (A) of paragraph (c) of subdivision 2 of section
259-i of the executive law, as amended by section 12 of part AAA of
chapter 56 of the laws of 2009, is amended to read as follows:
(A) Discretionary release on parole shall not be granted merely as a
reward for good conduct or efficient performance of duties while
confined but after considering if there is a reasonable probability
that, if such inmate is released, he will live and remain at liberty
without violating the law, and that his release is not incompatible with
the welfare of society and will not so deprecate the seriousness of his
crime as to undermine respect for law. In making the parole release
decision, the guidelines adopted pursuant to subdivision four of section
two hundred fifty-nine-c of this article shall require that the follow-
ing be considered: (i) the institutional record including program goals
and accomplishments, academic achievements, vocational education, train-
ing or work assignments, therapy and interpersonal relationships with
staff and inmates; (ii) performance, if any, as a participant in a
temporary release program; (iii) release plans including community
resources, employment, education and training and support services
available to the inmate; (iv) any deportation order issued by the feder-
al government against the inmate while in the custody of the department
of correctional services and any recommendation regarding deportation
made by the commissioner of the department of correctional services
pursuant to section one hundred forty-seven of the correction law; (v)
ANY RECOMMENDATION PROVIDED TO THE BOARD FROM THE BOARD OF EXAMINERS OF
SEX OFFENDERS AS AUTHORIZED BY SUBDIVISION SIX-A OF SECTION ONE HUNDRED
SIXTY-EIGHT-L OF THE CORRECTION LAW; (VI) any statement made to the
board by the crime victim or the victim's representative, where the
S. 5311 17
crime victim is deceased or is mentally or physically incapacitated; and
[(vi)] (VII) the length of the determinate sentence to which the inmate
would be subject had he or she received a sentence pursuant to section
70.70 or section 70.71 of the penal law for a felony defined in article
two hundred twenty or article two hundred twenty-one of the penal law.
The board shall provide toll free telephone access for crime victims. In
the case of an oral statement made in accordance with subdivision one of
section 440.50 of the criminal procedure law, the parole board member
shall present a written report of the statement to the parole board. A
crime victim's representative shall mean the crime victim's closest
surviving relative, the committee or guardian of such person, or the
legal representative of any such person. Such statement submitted by the
victim or victim's representative may include information concerning
threatening or intimidating conduct toward the victim, the victim's
representative, or the victim's family, made by the person sentenced and
occurring after the sentencing. Such information may include, but need
not be limited to, the threatening or intimidating conduct of any other
person who or which is directed by the person sentenced. Notwithstanding
the provisions of this section, in making the parole release decision
for persons whose minimum period of imprisonment was not fixed pursuant
to the provisions of subdivision one of this section, in addition to the
factors listed in this paragraph the board shall consider the factors
listed in paragraph (a) of subdivision one of this section.
S 55. The closing paragraph of subdivision 7 of section 995 of the
executive law, as amended by chapter 2 of the laws of 2006, is amended
to read as follows:
aggravated assault upon a person less than eleven years old, as
defined in section 120.12 of the penal law; menacing in the first
degree, as defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of the penal
law; stalking in the second degree, as defined in section 120.55 of the
penal law; criminally negligent homicide, as defined in section 125.10
of the penal law; vehicular manslaughter in the second degree, as
defined in section 125.12 of the penal law; vehicular manslaughter in
the first degree, as defined in section 125.13 of the penal law;
persistent sexual abuse, as defined in section 130.53 of the penal law;
aggravated sexual abuse in the [fourth] THIRD degree, as defined in
section 130.65-a of the penal law; female genital mutilation, as defined
in section 130.85 of the penal law; facilitating a sex offense with a
controlled substance, as defined in section 130.90 of the penal law;
unlawful imprisonment in the first degree, as defined in section 135.10
of the penal law; custodial interference in the first degree, as defined
in section 135.50 of the penal law; criminal trespass in the first
degree, as defined in section 140.17 of the penal law; criminal tamper-
ing in the first degree, as defined in section 145.20 of the penal law;
tampering with a consumer product in the first degree, as defined in
section 145.45 of the penal law; robbery in the third degree as defined
in section 160.05 of the penal law; identity theft in the second degree,
as defined in section 190.79 of the penal law; identity theft in the
first degree, as defined in section 190.80 of the penal law; promoting
prison contraband in the first degree, as defined in section 205.25 of
the penal law; tampering with a witness in the third degree, as defined
in section 215.11 of the penal law; tampering with a witness in the
second degree, as defined in section 215.12 of the penal law; tampering
with a witness in the first degree, as defined in section 215.13 of the
penal law; criminal contempt in the first degree, as defined in subdivi-
S. 5311 18
sions (b), (c) and (d) of section 215.51 of the penal law; aggravated
criminal contempt, as defined in section 215.52 of the penal law; bail
jumping in the second degree, as defined in section 215.56 of the penal
law; bail jumping in the first degree, as defined in section 215.57 of
the penal law; patronizing a prostitute in the second degree, as defined
in section 230.05 of the penal law; patronizing a prostitute in the
first degree, as defined in section 230.06 of the penal law; promoting
prostitution in the second degree, as defined in section 230.30 of the
penal law; promoting prostitution in the first degree, as defined in
section 230.32 of the penal law; compelling prostitution, as defined in
section 230.33 of the penal law; disseminating indecent [materials]
MATERIAL to minors in the second degree, as defined in section 235.21 of
the penal law; disseminating indecent [materials] MATERIAL to minors in
the first degree, as defined in section 235.22 of the penal law; riot in
the first degree, as defined in section 240.06 of the penal law; crimi-
nal anarchy, as defined in section 240.15 of the penal law; aggravated
harassment of an employee by an inmate, as defined in section 240.32 of
the penal law; unlawful surveillance in the second degree, as defined in
section 250.45 of the penal law; unlawful surveillance in the first
degree, as defined in section 250.50 of the penal law; endangering the
welfare of a vulnerable elderly person in the second degree, as defined
in section 260.32 of the penal law; endangering the welfare of a vulner-
able elderly person in the first degree, as defined in section 260.34 of
the penal law; use of a child in a sexual performance IN THE SECOND
DEGREE, as defined in section 263.05 of the penal law; promoting an
obscene sexual performance by a child IN THE SECOND DEGREE, as defined
in section 263.10 of the penal law; possessing an obscene sexual
performance by a child IN THE FIRST DEGREE, as defined in section 263.11
of the penal law; promoting a sexual performance by a child IN THE
SECOND DEGREE, as defined in section 263.15 of the penal law; possessing
a sexual performance by a child IN THE FIRST DEGREE, as defined in
section 263.16 of the penal law; criminal possession of a weapon in the
third degree, as defined in section 265.02 of the penal law; criminal
sale of a firearm in the third degree, as defined in section 265.11 of
the penal law; criminal sale of a firearm to a minor, as defined in
section 265.16 of the penal law; unlawful wearing of a body vest, as
defined in section 270.20 of the penal law; hate crimes as defined in
section 485.05 of the penal law; and crime of terrorism, as defined in
section 490.25 of the penal law; or (e) a felony defined in the penal
law or an attempt thereof where such attempt is a felony; or (f) any of
the following misdemeanors: assault in the third degree as defined in
section 120.00 of the penal law; attempted aggravated assault upon a
person less than eleven years old, as defined in section 110.00 and
section 120.12 of the penal law; attempted menacing in the first degree,
as defined in section 110.00 and section 120.13 of the penal law; menac-
ing in the second degree as defined in section 120.14 of the penal law;
menacing in the third degree as defined in section 120.15 of the penal
law; reckless endangerment in the second degree as defined in section
120.20 of the penal law; stalking in the fourth degree as defined in
section 120.45 of the penal law; stalking in the third degree as defined
in section 120.50 of the penal law; attempted stalking in the second
degree, as defined in section 110.00 and section 120.55 of the penal
law; forcible touching as defined in section 130.52 of the penal law
regardless of the age of the victim; sexual abuse in the third degree as
defined in section 130.55 of the penal law regardless of the age of the
victim; unlawful imprisonment in the second degree as defined in section
S. 5311 19
135.05 of the penal law regardless of the age of the victim; attempted
unlawful imprisonment in the first degree, as defined in section 110.00
and section 135.10 of the penal law regardless of the age of the victim;
criminal trespass in the second degree as defined in section 140.15 of
the penal law; possession of burglar's tools as defined in section
140.35 of the penal law; petit larceny as defined in section 155.25 of
the penal law; endangering the welfare of a child as defined in section
260.10 of the penal law; endangering the welfare of an incompetent or
physically disabled person as defined in section 260.25.
S 56. Subdivision 42 of section 1.20 of the criminal procedure law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
42. "Juvenile offender" means (1) a person, thirteen years old who is
criminally responsible for acts constituting murder in the second degree
as defined in subdivisions one and two of section 125.25 of the penal
law, or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law OR PREDATORY SEXUAL ASSAULT
AS DEFINED IN SECTION 130.95 OF THE PENAL LAW; and (2) a person fourteen
or fifteen years old who is criminally responsible for acts constituting
the crimes defined in subdivisions one and two of section 125.25 (murder
in the second degree) and in subdivision three of such section provided
that the underlying crime for the murder charge is one for which such
person is criminally responsible; section 135.25 (kidnapping in the
first degree); 150.20 (arson in the first degree); subdivisions one and
two of section 120.10 (assault in the first degree); 125.20 (manslaught-
er in the first degree); [subdivisions one and two of] section 130.35
(rape in the first degree); [subdivisions one and two of] section 130.50
(criminal sexual act in the first degree); 130.70 (aggravated sexual
abuse in the first degree); 130.95 (PREDATORY SEXUAL ASSAULT); 140.30
(burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); 150.15 (arson in the second degree);
160.15 (robbery in the first degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; or section 265.03 of
the penal law, where such machine gun or such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law; or defined in the penal law as an
attempt to commit murder in the second degree or kidnapping in the first
degree, or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law.
S 57. Section 200.62 of the criminal procedure law is REPEALED.
S 58. Section 400.19 of the criminal procedure law, as added by chap-
ter 1 of the laws of 2000, subdivisions 2, 4 and 6 as amended by chapter
264 of the laws of 2003, is amended to read as follows:
S 400.19 Procedure for determining whether defendant is a second [child]
sexual assault felony offender.
1. Applicability. The provisions of this section govern the procedure
that must be followed in any case where it appears that a defendant who
stands convicted of a felony offense for a sexual assault [upon a child]
as defined in section 70.07 of the penal law has previously been
convicted of a predicate felony for a sexual assault [upon a child].
2. Statement to be filed. When information available to the people
prior to [the trial of] SENTENCING FOR a felony offense for a sexual
assault [against a child] indicates that the defendant may have previ-
ously been subjected to a predicate felony conviction for a sexual
assault [against a child], a statement [may] MUST be filed by the prose-
cutor [at any time before trial commences] BEFORE SENTENCE IS IMPOSED
setting forth the date and place of each alleged predicate felony
S. 5311 20
conviction for a sexual assault [against a child] and a statement wheth-
er the defendant was eighteen years of age or older at the time of the
commission of the predicate felony. Where the provisions of subparagraph
(v) of paragraph (b) of subdivision one of section 70.06 of the penal
law apply, such statement also shall set forth the date of commencement
and the date of termination as well as the place of imprisonment for
each period of incarceration to be used for tolling of the ten year
limitation set forth in subparagraph (iv) of paragraph (b) of such
subdivision AND SUBDIVISION THREE OF SECTION 70.07 OF THE PENAL LAW.
3. Preliminary examination. The defendant must be given a copy of such
statement and the court must ask him OR HER whether he OR SHE wishes to
controvert any allegation made therein. If the defendant wishes to
controvert any allegation in the statement, he OR SHE must specify the
particular allegation or allegations he OR SHE wishes to controvert.
Uncontroverted allegations in the statement shall be deemed to have been
admitted by the defendant.
4. Cases where further hearing is not required. Where the uncontro-
verted allegations in the statement are sufficient to support a finding
that the defendant has been subjected to a predicate felony conviction
for a sexual assault [upon a child] and that the defendant was [18]
EIGHTEEN years of age or older at the time of the commission of the
predicate felony, the court must enter such finding and when imposing
sentence must sentence the defendant in accordance with the provisions
of section 70.07 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement, the court must proceed to
hold a hearing.
6. Manner of conducting hearing. (a) A hearing pursuant to this
section must be before the court without jury. The burden of proof is
upon the people and a finding that the defendant has been subjected to a
predicate felony conviction for a sexual assault [against a child] as
defined in subdivision two of section 70.07 of the penal law and that
the defendant was [18] EIGHTEEN years of age or older at the time of the
commission of the predicate felony must be based upon proof beyond a
reasonable doubt by evidence admissible under the rules applicable to a
trial of the issue of guilt.
(b) [Regardless of whether the age of the victim is an element of the
alleged predicate felony offense, where the defendant controverts an
allegation that the victim of an alleged sexual assault upon a child was
less than fifteen years old, the people may prove that the child was
less than fifteen years old by any evidence admissible under the rules
applicable to a trial of the issue of guilt. For purposes of determining
whether a child was less than fifteen years old, the people shall not be
required to prove that the defendant knew the child was less than
fifteen years old at the time of the alleged sexual assault.
(c)] A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the applica-
ble provisions of the constitution of the United States must not be
counted in determining whether the defendant has been subjected to a
predicate felony conviction for a sexual assault [upon a child]. The
defendant may, at any time during the course of the hearing hereunder,
controvert an allegation with respect to such conviction in the state-
ment on the grounds that the conviction was unconstitutionally obtained.
Failure to challenge the previous conviction in the manner provided
herein constitutes a waiver on the part of the defendant of any allega-
S. 5311 21
tion of unconstitutionality unless good cause be shown for such failure
to make timely challenge.
[(d)] (C) At the conclusion of the hearing the court must make a find-
ing as to whether or not the defendant has been subjected to a predicate
felony conviction for a sexual assault [against a child] as defined in
subdivision two of section 70.07 of the penal law and whether the
defendant was [18] EIGHTEEN years of age or older at the time of the
commission of the predicate felony.
7. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding in any future proceeding in which the issue may arise.
S 59. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 472 of the laws of 2008, is amended
to read as follows:
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law, promot-
ing a suicide attempt as defined in section 120.30 of the penal law,
criminally negligent homicide as defined in section 125.10 of the penal
law, manslaughter in the second degree as defined in section 125.15 of
the penal law, manslaughter in the first degree as defined in section
125.20 of the penal law, murder in the second degree as defined in
section 125.25 of the penal law, murder in the first degree as defined
in section 125.27 of the penal law, abortion in the second degree as
defined in section 125.40 of the penal law, abortion in the first degree
as defined in section 125.45 of the penal law, rape in the third degree
as defined in section 130.25 of the penal law, rape in the second degree
as defined in section 130.30 of the penal law, rape in the first degree
as defined in section 130.35 of the penal law, RAPE OF A CHILD IN THE
THIRD DEGREE AS DEFINED IN SECTION 130.26 OF THE PENAL LAW, RAPE OF A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.31 OF THE PENAL
LAW, RAPE OF A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.36 OF
THE PENAL LAW, criminal sexual act in the third degree as defined in
section 130.40 of the penal law, CRIMINAL SEXUAL ACT AGAINST A CHILD IN
THE THIRD DEGREE AS DEFINED IN SECTION 130.41 OF THE PENAL LAW, criminal
sexual act in the second degree as defined in section 130.45 of the
penal law, CRIMINAL SEXUAL ACT AGAINST A CHILD IN THE SECOND DEGREE AS
DEFINED IN SECTION 130.46 OF THE PENAL LAW, criminal sexual act in the
first degree as defined in section 130.50 of the penal law, CRIMINAL
SEXUAL ACT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
130.51 OF THE PENAL LAW, SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION
130.63 OF THE PENAL LAW, sexual abuse in the first degree as defined in
section 130.65 of the penal law, AGGRAVATED SEXUAL ABUSE IN THE THIRD
DEGREE AS DEFINED IN SECTION 130.65-A OF THE PENAL LAW, AGGRAVATED SEXU-
AL ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.67 OF THE PENAL
LAW, AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE THIRD DEGREE AS DEFINED
IN SECTION 130.68 OF THE PENAL LAW, AGGRAVATED SEXUAL ABUSE OF A CHILD
IN THE SECOND DEGREE AS DEFINED IN SECTION 130.69 OF THE PENAL LAW,
AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.70
OF THE PENAL LAW, AGGRAVATED SEXUAL ABUSE OF A CHILD IN THE FIRST DEGREE
AS DEFINED IN SECTION 130.71 OF THE PENAL LAW, COURSE OF SEXUAL CONDUCT
AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.75 OF THE
PENAL LAW, COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE
AS DEFINED IN SECTION 130.80 OF THE PENAL LAW, PREDATORY SEXUAL ASSAULT
AS DEFINED IN SECTION 130.95 OF THE PENAL LAW, unlawful imprisonment in
S. 5311 22
the first degree as defined in section 135.10 of the penal law, kidnap-
ping in the second degree as defined in section 135.20 of the penal law,
kidnapping in the first degree as defined in section 135.25 of the penal
law, labor trafficking as defined in section 135.35 of the penal law,
custodial interference in the first degree as defined in section 135.50
of the penal law, coercion in the first degree as defined in section
135.65 of the penal law, criminal trespass in the first degree as
defined in section 140.17 of the penal law, burglary in the third degree
as defined in section 140.20 of the penal law, burglary in the second
degree as defined in section 140.25 of the penal law, burglary in the
first degree as defined in section 140.30 of the penal law, criminal
mischief in the third degree as defined in section 145.05 of the penal
law, criminal mischief in the second degree as defined in section 145.10
of the penal law, criminal mischief in the first degree as defined in
section 145.12 of the penal law, criminal tampering in the first degree
as defined in section 145.20 of the penal law, arson in the fourth
degree as defined in section 150.05 of the penal law, arson in the third
degree as defined in section 150.10 of the penal law, arson in the
second degree as defined in section 150.15 of the penal law, arson in
the first degree as defined in section 150.20 of the penal law, grand
larceny in the fourth degree as defined in section 155.30 of the penal
law, grand larceny in the third degree as defined in section 155.35 of
the penal law, grand larceny in the second degree as defined in section
155.40 of the penal law, grand larceny in the first degree as defined in
section 155.42 of the penal law, health care fraud in the fourth degree
as defined in section 177.10 of the penal law, health care fraud in the
third degree as defined in section 177.15 of the penal law, health care
fraud in the second degree as defined in section 177.20 of the penal
law, health care fraud in the first degree as defined in section 177.25
of the penal law, robbery in the third degree as defined in section
160.05 of the penal law, robbery in the second degree as defined in
section 160.10 of the penal law, robbery in the first degree as defined
in section 160.15 of the penal law, unlawful use of secret scientific
material as defined in section 165.07 of the penal law, criminal
possession of stolen property in the fourth degree as defined in section
165.45 of the penal law, criminal possession of stolen property in the
third degree as defined in section 165.50 of the penal law, criminal
possession of stolen property in the second degree as defined by section
165.52 of the penal law, criminal possession of stolen property in the
first degree as defined by section 165.54 of the penal law, trademark
counterfeiting in the second degree as defined in section 165.72 of the
penal law, trademark counterfeiting in the first degree as defined in
section 165.73 of the penal law, forgery in the second degree as defined
in section 170.10 of the penal law, forgery in the first degree as
defined in section 170.15 of the penal law, criminal possession of a
forged instrument in the second degree as defined in section 170.25 of
the penal law, criminal possession of a forged instrument in the first
degree as defined in section 170.30 of the penal law, criminal
possession of forgery devices as defined in section 170.40 of the penal
law, falsifying business records in the first degree as defined in
section 175.10 of the penal law, tampering with public records in the
first degree as defined in section 175.25 of the penal law, offering a
false instrument for filing in the first degree as defined in section
175.35 of the penal law, issuing a false certificate as defined in
section 175.40 of the penal law, criminal diversion of prescription
medications and prescriptions in the second degree as defined in section
S. 5311 23
178.20 of the penal law, criminal diversion of prescription medications
and prescriptions in the first degree as defined in section 178.25 of
the penal law, residential mortgage fraud in the fourth degree as
defined in section 187.10 of the penal law, residential mortgage fraud
in the third degree as defined in section 187.15 of the penal law, resi-
dential mortgage fraud in the second degree as defined in section 187.20
of the penal law, residential mortgage fraud in the first degree as
defined in section 187.25 of the penal law, escape in the second degree
as defined in section 205.10 of the penal law, escape in the first
degree as defined in section 205.15 of the penal law, absconding from
temporary release in the first degree as defined in section 205.17 of
the penal law, promoting prison contraband in the first degree as
defined in section 205.25 of the penal law, hindering prosecution in the
second degree as defined in section 205.60 of the penal law, hindering
prosecution in the first degree as defined in section 205.65 of the
penal law, ANY OFFENSE DESCRIBED IN ARTICLE TWO HUNDRED SIXTY-THREE OF
THE PENAL LAW, sex trafficking as defined in section 230.34 of the penal
law, criminal possession of a weapon in the third degree as defined in
subdivisions two, three and five of section 265.02 of the penal law,
criminal possession of a weapon in the second degree as defined in
section 265.03 of the penal law, criminal possession of a weapon in the
first degree as defined in section 265.04 of the penal law, manufacture,
transport, disposition and defacement of weapons and dangerous instru-
ments and appliances defined as felonies in subdivisions one, two, and
three of section 265.10 of the penal law, sections 265.11, 265.12 and
265.13 of the penal law, or prohibited use of weapons as defined in
subdivision two of section 265.35 of the penal law, relating to firearms
and other dangerous weapons, or failure to disclose the origin of a
recording in the first degree as defined in section 275.40 of the penal
law;
S 60. Subdivision (f) of section 10.03 of the mental hygiene law, as
added by chapter 7 of the laws of 2007, is amended to read as follows:
(f) "Designated felony" means any felony offense defined by any of the
following provisions of the penal law: assault in the second degree as
defined in section 120.05, assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in section
120.06, gang assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, manslaughter
in the second degree as defined in subdivision one of section 125.15,
manslaughter in the first degree as defined in section 125.20, murder in
the second degree as defined in section 125.25, aggravated murder as
defined in section 125.26, murder in the first degree as defined in
section 125.27, kidnapping in the second degree as defined in section
135.20, kidnapping in the first degree as defined in section 135.25,
burglary in the third degree as defined in section 140.20, burglary in
the second degree as defined in section 140.25, burglary in the first
degree as defined in section 140.30, arson in the second degree as
defined in section 150.15, arson in the first degree as defined in
section 150.20, robbery in the third degree as defined in section
160.05, robbery in the second degree as defined in section 160.10,
robbery in the first degree as defined in section 160.15, promoting
prostitution in the second degree as defined in section 230.30, promot-
ing prostitution in the first degree as defined in section 230.32,
compelling prostitution as defined in section 230.33, disseminating
indecent material to minors in the first degree as defined in section
235.22, use of a child in a sexual performance IN THE SECOND DEGREE as
S. 5311 24
defined in section 263.05, promoting an obscene sexual performance by a
child IN THE SECOND DEGREE as defined in section 263.10, promoting a
sexual performance by a child IN THE SECOND DEGREE as defined in section
263.15, or any felony attempt or conspiracy to commit any of the forego-
ing offenses.
S 61. This act shall take effect on the ninetieth day after it shall
have become a law.
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