senate Bill S4398A

2011-2012 Legislative Session

Provides for mandatory imprisonment and plea restrictions for offenses victimizing the elderly and physically disabled

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Dec 09, 2011 print number 4398a
amend and recommit to codes
Apr 04, 2011 referred to codes

Bill Amendments

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A (Active)
Original
A (Active)

S4398 - Bill Details

See Assembly Version of this Bill:
A4071
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §10.00, add Art 280 §§280.00 - 280.10, amd §60.05, add §70.09, Pen L; amd §§180.75, 220.10, 220.30 & 720.10, CP L
Versions Introduced in 2009-2010 Legislative Session:
S4773, A3971

S4398 - Bill Texts

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Defines the felonies of victimizing the elderly or physically disabled in the 3rd degree, 2nd degree and 1st degree and provides that a sentence of imprisonment must be imposed upon conviction of certain offenses against the elderly or physically disabled; provides that a juvenile offender shall include a person 14 or 15 years old who is criminally responsible for victimizing the elderly or physically disabled; includes within the category, "eligible youth" for youthful offender treatment, one who has been convicted of victimizing the elderly or the physically disabled in the 1st degree; provides certain plea restrictions and sentencing structure for persons convicted of such crimes.

view sponsor memo
BILL NUMBER:S4398

TITLE OF BILL:

An act
to amend the penal law and the criminal procedure law, in relation to
mandatory imprisonment and plea restrictions for offenses
victimizing the elderly and physically
disabled

SUMMARY OF PROVISIONS:

The bill provides that those who commit serious crimes against elderly
persons 62 years of age or older or the physically disabled must be
sentenced to prison and face reduced opportunities for plea
bargaining. Juveniles who commit such crimes would be sent by court
order to secure juvenile facilities for specific minimum periods of
restricted placement. Specifically, the bill focuses on those crimes
against the elderly and disabled which involve the use of force,
fear, coercion, or violence.

A new Article 280 is added to the Penal Law establishing the crime of
victimizing the elderly in 3 separate degrees: class B, C, and D
felonies. The newly established crimes set forth B, C and D felonies
respectively, and add the aggravating element that the crime was
committed against a person 62 years old or physically disabled.

A prison sentence is mandated for those who are convicted of such
crimes in accordance with the provisions of new §70.09. Under this
section, offenders against the elderly would receive lengthier
minimum periods of imprisonment than the ordinary offender who
receives a prison sentence but less than the second felony offender.
Penalties for offenses against the elderly are specifically required
for the following crimes: menacing, unlawful imprisonment, and grand
larceny. Plea bargaining, already restricted for class A and B
felonies, is further restricted for those accused of the class C
felony of victimizing the elderly in the second degree.

Finally, juveniles who are found to have committed the crime of
victimizing the elderly in the first or second degree, would be
subject to mandatory court placement in secure DFY facilities.

JUSTIFICATION:

Elderly people continue to be singled out as victims of physical
attack and muggings.
Moreover, the physical harm and emotional trauma suffered by elderly
victims of crime have a devastating effect on them. Thus, the problem
of crime against the elderly is not limited to volume, but
encompasses serious social, psychological, and physical consequences.
These consequences impact the aged in a disproportionately severe
manner compared to younger persons because elderly people are less
able to recover from the results of crime than younger people.
Criminologists, sociologists, psychologists, lawyers, and policemen
have recognized and acknowledged this fact - the law has not. Thus,
we witness its ineffectiveness in deterring crimes against older
persons which involve violence and the threat of violence.


The law should provide more stringent treatment for offenders who prey
upon the elderly and disabled, many of whom have been repeatedly
victimized by the same persons. The elderly victim has the dubious
distinction of presenting unique characteristics as an inviting
target of crime such as decreased physical capability to resist an
attacker. He/she cannot move as quickly as younger people; cannot see
as well; cannot hear as well; sensory perception is not as sharp as
that of a younger person. The after effects of crime on the elderly
affect them much more deeply than the crime statistics indicate. The
emotional trauma of a face-to-face crime affects them much more
acutely -- many never recover psychologically.

An elderly person is also more likely to suffer permanent physical
damage. These victims often become afraid to leave their homes to go
shopping, to visit a friend, to go to the doctor, or to simply enjoy
the outdoors. Their lifestyles become downgraded, isolated, and
sometimes result in death. The older crime victim is twice victimized
-- by the crime and by its after-effects.

Furthermore, many elderly people do not report a crime or press
charges because they fear reprisal, oftentimes justifiably. For these
reasons, offenses committed against elderly persons must be viewed as
unique and deserving of stricter treatment. Such treatment is by no
means considered a panacea - the root problem of crime is tangled and
complex. It is necessary, however, to establish a meaningful
deterrent for those who prey upon the elderly, including juveniles
and youthful offenders.

FISCAL IMPLICATIONS:
None

PRIOR LEGISLATIVE HISTORY:
1995-96: Assembly Codes Cmte.
1997-98: Assembly Codes Cmte.
1999-00: Assembly Codes Cmte.
2001-02: Assembly Codes Cmte.
2003-04: Senate Codes Cmte./Assembly Codes Cmte.
2005-06: Senate Codes Cmte./Assembly Codes Cmte.
2007: Senate Codes Cmte./Assembly Codes Cmte.
2008: Senate Codes Cmte./Assembly Codes Cmte.
2009: Senate Codes Cmte.
2010: Senate Codes Cmte./Notice of Committee Consideration
Requested; Reported and Committed to Finance Cmte.

EFFECTIVE DATE:

This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.

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

                                  4398

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 4, 2011
                               ___________

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

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation  to mandatory imprisonment and plea restrictions for offenses
  victimizing the elderly and physically disabled

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

  Section 1. It is hereby found and declared that elderly and physically
disabled  people  continue  to be singled out as victims of crime. It is
also found that the physical  harm  and  emotional  trauma  suffered  by
elderly  and  physically disabled crime victims has a devastating effect
on the lives of those victims.
  The elderly or physically disabled victim  has  a  decreased  physical
capability  to resist an attacker and thus becomes an inviting target of
crime. Moreover, the aftereffects of crime on the elderly and the  phys-
ically  handicapped  affect  them  more deeply than any statistics would
indicate. The emotional trauma  and  possible  serious  physical  damage
resulting from a face to face crime may cause a permanent downgrading in
the  elderly  or  physically  disabled  victim's lifestyle. Such victims
often impose "house-arrest" on themselves,  afraid  to  shop,  to  visit
friends,  to go to the doctor, to live, unless behind locked doors. Even
those elderly or physically disabled who are not direct victims of crime
suffer indirectly, because they, having learned of the terrible  tragedy
suffered  by other elderly and physically disabled and fearful for their
own individual safety, barricade  themselves  within  their  homes.  The
older  or  physically disabled crime victim is thus twice victimized--by
the crime and by its aftermath.
  Criminologists, sociologists, psychologists, and the police all recog-
nize and acknowledge these facts, but the law does not.    It  has  been
ineffective  in  deterring crimes against the elderly and the physically
disabled,  particularly  those  involving  violence  or  the  threat  of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06749-02-1

S. 4398                             2

violence.  Similarly,  special projects on crime prevention and improved
techniques of communications for the elderly to the police do  not  halt
or  reduce such crime. For these reasons, offenses committed against the
elderly or the physically disabled must be treated as unique, and legis-
lation  must  be  enacted  to  provide  a meaningful deterrent for those
offenders who now victimize the elderly and the physically disabled.
  S 2. 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; 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); 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; SECTION 280.00
(VICTIMIZING THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED  IN  THE  THIRD
DEGREE); SECTION 280.05 (VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISA-
BLED  IN  THE SECOND DEGREE); OR SECTION 280.10 (VICTIMIZING THE ELDERLY
OR THE PHYSICALLY DISABLED IN THE FIRST DEGREE), or such  conduct  as  a
sexually  motivated  felony, where authorized pursuant to section 130.91
of the penal law.
  S 3. Section 10.00 of the penal law is amended  by  adding  three  new
subdivisions 21, 22 and 23 to read as follows:
  21. "ELDERLY PERSON" MEANS A HUMAN BEING SIXTY-TWO YEARS OLD OR MORE.
  22.  "VICTIM",  AS  THAT TERM IS USED IN ARTICLE TWO HUNDRED EIGHTY OF
THIS CHAPTER, MEANS, IN A CASE OF:
  (A)  ASSAULT, THE PERSON INJURED OR INTENDED TO BE INJURED;
  (B)   MANSLAUGHTER OR MURDER, THE PERSON  KILLED  OR  INTENDED  TO  BE
KILLED OR INJURED;
  (C)    RAPE OR CRIMINAL SEXUAL ACT, THE PERSON WITH WHOM THE DEFENDANT
HAS THE SEXUAL INTERCOURSE OR DEVIATE SEXUAL INTERCOURSE;
  (D)  KIDNAPPING, THE PERSON ABDUCTED;
  (E)   BURGLARY OR ROBBERY, THE  PERSON  INJURED,  OR  AGAINST  WHOM  A
DANGEROUS  INSTRUMENT  IS  OR  IS  THREATENED TO BE USED, OR TO WHOM THE
WEAPON IS DISPLAYED;
  (F)  ARSON, THE PERSON PRESENT IN THE BUILDING AT THE TIME; OR
  (G)  LARCENY, THE PERSON IN WHOM FEAR IS INSTILLED.
  23. "PHYSICALLY DISABLED PERSON" MEANS A HUMAN BEING:

S. 4398                             3

  (A) HAVING AN IMPAIRMENT REQUIRING THE USE OF LEG BRACES, CRUTCHES  OR
ARTIFICIAL SUPPORT, OR
  (B)  HAVING AN IMPAIRMENT REQUIRING CONFINEMENT TO A WHEELCHAIR, OR
  (C)  HAVING AN IMPAIRMENT CAUSED BY AMPUTATION OF A LIMB, OR
  (D)  HAVING TOTAL OR PARTIAL IMPAIRMENT OF SIGHT NECESSITATING THE USE
OF A GUIDE DOG OR OTHER GUIDING DEVICE.
  S  4.  The penal law is amended by adding a new article 280 to read as
follows:
                               ARTICLE 280
           OFFENSES AGAINST THE ELDERLY OR PHYSICALLY DISABLED
SECTION 280.00 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 THIRD DEGREE.
        280.05 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 SECOND DEGREE.
        280.10 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 FIRST DEGREE.
S 280.00 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE THIRD
           DEGREE.
  A PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY  DISA-
BLED IN THE THIRD DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT  TO  COMMIT VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED
IN THE SECOND DEGREE AS DEFINED IN SECTION 280.05,  OR  ASSAULT  IN  THE
SECOND DEGREE AS DEFINED IN SECTION 120.05; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE THIRD DEGREE
IS A CLASS D FELONY.
S 280.05 VICTIMIZING  THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED IN THE
           SECOND DEGREE.
  A PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY  DISA-
BLED IN THE SECOND DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT  TO  COMMIT VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED
IN THE FIRST DEGREE AS DEFINED IN SECTION 280.10, ASSAULT IN  THE  FIRST
DEGREE  AS  DEFINED  IN SECTION 120.10, BURGLARY IN THE SECOND DEGREE AS
DEFINED IN PARAGRAPH (B), (C), OR (D)  OF  SUBDIVISION  ONE  OF  SECTION
140.25,  GRAND  LARCENY IN THE SECOND DEGREE AS DEFINED IN CLAUSE (A) OF
SUBDIVISION TWO OF SECTION 155.40, OR ROBBERY IN THE  SECOND  DEGREE  AS
DEFINED IN SUBDIVISION TWO OF SECTION 160.10; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING  THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED IN THE SECOND
DEGREE IS A CLASS C FELONY.
S 280.10 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST
           DEGREE.
  A PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY  DISA-
BLED IN THE FIRST DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT  TO COMMIT A CLASS A-I FELONY OTHER THAN AN OFFENSE DEFINED IN
ARTICLE TWO HUNDRED TWENTY, MANSLAUGHTER IN THE FIRST DEGREE AS  DEFINED
IN  SECTION  125.20,  RAPE  IN  THE  FIRST  DEGREE AS DEFINED IN SECTION
130.35, CRIMINAL SEXUAL ACT IN THE FIRST DEGREE AS  DEFINED  IN  SECTION
130.50,  KIDNAPPING  IN  THE SECOND DEGREE AS DEFINED IN SECTION 135.20,
BURGLARY IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  TWO,  THREE  OR

S. 4398                             4

FOUR  OF  SECTION  140.30,  OR ROBBERY IN THE FIRST DEGREE AS DEFINED IN
SUBDIVISION ONE, THREE OR FOUR OF SECTION 160.15; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST DEGREE
IS A CLASS B FELONY.
  S  5. Section 60.05 of the penal law, as amended by chapter 410 of the
laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
by chapter 738 of the laws of 2004, subdivision 1 as amended by  chapter
7 of the laws of 2007 and subdivision 5 as amended by chapter 405 of the
laws of 2010, is amended to read as follows:
S 60.05 Authorized dispositions; other class A, B, certain C and D felo-
          nies and multiple felony offenders.
  1.  Applicability. Except as provided in section 60.04 of this article
governing the authorized  dispositions  applicable  to  felony  offenses
defined  in article two hundred twenty or two hundred twenty-one of this
chapter or in section 60.13 of this  article  governing  the  authorized
dispositions  applicable to felony sex offenses defined in paragraph (a)
of subdivision one of section 70.80 of this title,  this  section  shall
govern the dispositions authorized when a person is to be sentenced upon
a conviction of a class A felony, a class B felony or a class C, class D
or  class E felony specified herein, or when a person is to be sentenced
upon a conviction of a felony as a multiple felony offender.
  2. Class A felony. Except as provided in  SUBDIVISION  SEVEN  OF  THIS
SECTION  AND  subdivisions three and four of section 70.06 of this chap-
ter, every person convicted of a class A felony  must  be  sentenced  to
imprisonment in accordance with section 70.00 of this title, unless such
person  is  convicted  of murder in the first degree and is sentenced in
accordance with section 60.06 of this article.
  3. Class B felony. Except as provided  in  [subdivision]  SUBDIVISIONS
six  AND  SEVEN  of  this  section,  every person convicted of a class B
violent felony offense as defined in subdivision one of section 70.02 of
this title, must be sentenced to imprisonment in  accordance  with  such
section  70.02;  and,  except  as  provided  in  subdivision six of this
section, every person convicted of any other  class  B  felony  must  be
sentenced  to  imprisonment  in  accordance  with  section 70.00 of this
title.
  4. Certain class C  felonies.  Except  as  provided  in  [subdivision]
SUBDIVISIONS  six AND SEVEN, every person convicted of a class C violent
felony offense as defined in subdivision one of section  70.02  of  this
title,  must  be  sentenced  to  imprisonment in accordance with section
70.02 of this title; and, except as provided in subdivision six of  this
section,  every  person convicted of the class C felonies of: attempt to
commit any of the class B felonies of bribery in  the  first  degree  as
defined  in  section  200.04,  bribe  receiving  in  the first degree as
defined in section 200.12, conspiracy in the second degree as defined in
section 105.15 and criminal mischief in the first degree as  defined  in
section 145.12; criminal usury in the first degree as defined in section
190.42,  rewarding official misconduct in the first degree as defined in
section 200.22, receiving reward for official misconduct  in  the  first
degree  as defined in section 200.27, attempt to promote prostitution in
the first degree as defined in section 230.32, promoting prostitution in
the second degree as defined in  section  230.30,  arson  in  the  third
degree  as  defined in section 150.10 of this chapter, must be sentenced
to imprisonment in accordance with section 70.00 of this title.

S. 4398                             5

  5. Certain class D felonies. Except as provided in subdivision six  of
this  section, every person convicted of the class D felonies of assault
in the second degree as defined in section 120.05, strangulation in  the
second  degree as defined in section 121.12 or attempt to commit a class
C felony as defined in section 230.30 of this chapter, must be sentenced
in accordance with section 70.00 or 85.00 of this title.
  6.  Multiple  felony  offender. When the court imposes sentence upon a
second violent felony offender, as defined in section 70.04, or a second
felony offender, as defined in section 70.06, the court  must  impose  a
sentence  of  imprisonment in accordance with section 70.04 or 70.06, as
the case may be, unless it imposes a sentence of imprisonment in accord-
ance with section 70.08 or 70.10.
  7. ARTICLE  TWO  HUNDRED  EIGHTY  OFFENSES.  WHEN  THE  COURT  IMPOSES
SENTENCE UPON A PERSON CONVICTED OF AN OFFENSE ENUMERATED IN ARTICLE TWO
HUNDRED  EIGHTY, IT MUST IMPOSE A SENTENCE OF IMPRISONMENT IN ACCORDANCE
WITH SECTION 70.09, UNLESS IT IMPOSES  A  SENTENCE  OF  IMPRISONMENT  IN
ACCORDANCE WITH SECTION 70.06 OR 70.10.
  8.  Fines.  Where  the  court  imposes  a  sentence of imprisonment in
accordance with this section, the court also may impose a  fine  author-
ized  by  article  eighty  and  in  such case the sentence shall be both
imprisonment and a fine.
  S 6. The penal law is amended by adding a new section 70.09 to read as
follows:
S 70.09 SENTENCE OF IMPRISONMENT FOR CERTAIN OFFENSES AGAINST THE ELDER-
           LY OR THE PHYSICALLY DISABLED.
  1. EXCEPT AS PROVIDED IN SUBDIVISION FOUR EVERY PERSON, OTHER  THAN  A
PERSON  SENTENCED  AS  A  SECOND  OR  PERSISTENT FELONY OFFENDER, WHO IS
CONVICTED OF AN OFFENSE AGAINST THE ELDERLY OR THE  PHYSICALLY  DISABLED
DEFINED IN ARTICLE TWO HUNDRED EIGHTY OF THIS CHAPTER, MUST BE SENTENCED
TO  AN  INDETERMINATE  SENTENCE  OF  IMPRISONMENT IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION.
  2. THE MAXIMUM TERM OF SUCH INDETERMINATE SENTENCE MUST  BE  FIXED  AS
FOLLOWS:
  (A)  FOR  THE  CLASS  B FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE FIRST DEGREE, THE TERM  MUST  BE  AT  LEAST  NINE
YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS;
  (B)  FOR  THE  CLASS  C FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE SECOND DEGREE, THE TERM  MUST  BE  AT  LEAST  SIX
YEARS AND MUST NOT EXCEED FIFTEEN YEARS;
  (C)  FOR  THE  CLASS  D FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE THIRD DEGREE, THE TERM  MUST  BE  AT  LEAST  FOUR
YEARS AND MUST NOT EXCEED SEVEN YEARS.
  3.  THE MINIMUM PERIOD OF IMPRISONMENT FOR SUCH INDETERMINATE SENTENCE
MUST BE FIXED BY THE COURT AND MUST BE  SPECIFIED  IN  THE  SENTENCE  AS
FOLLOWS:
  (A)  FOR  THE  CLASS  B FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE FIRST DEGREE, THE MINIMUM PERIOD OF  IMPRISONMENT
SHALL  NOT  BE LESS THAN THREE YEARS NOR MORE THAN ONE-THIRD THE MAXIMUM
TERM IMPOSED BY THE COURT;
  (B) FOR THE CLASS C FELONY OF VICTIMIZING THE  ELDERLY  OR  THE  PHYS-
ICALLY DISABLED IN THE SECOND DEGREE, THE MINIMUM PERIOD OF IMPRISONMENT
SHALL  BE  NOT  LESS  THAN TWO YEARS NOR MORE THAN ONE-THIRD THE MAXIMUM
TERM IMPOSED BY THE COURT;
  (C) FOR THE CLASS D FELONY OF VICTIMIZING THE  ELDERLY  OR  THE  PHYS-
ICALLY  DISABLED IN THE THIRD DEGREE, THE MINIMUM PERIOD OF IMPRISONMENT
SHALL BE ONE-THIRD THE MAXIMUM TERM IMPOSED BY THE COURT.

S. 4398                             6

  4. ALTERNATIVE DEFINITE SENTENCE FOR CLASS D  FELONY  OFFENSE  AGAINST
THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED. WHEN A PERSON, OTHER THAN A
MULTIPLE FELONY OFFENDER, IS SENTENCED FOR THE CLASS D FELONY OF VICTIM-
IZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE  THIRD  DEGREE,  AND
THE  COURT,  HAVING  REGARD TO THE NATURE AND CIRCUMSTANCES OF THE CRIME
AND TO THE HISTORY AND CHARACTER OF THE DEFENDANT,  IS  OF  THE  OPINION
THAT  IT  WOULD BE UNDULY HARSH TO IMPOSE AN INDETERMINATE SENTENCE, THE
COURT MAY IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT AND FIX A  TERM  OF
ONE YEAR.
  S 7. Subdivision 4 of section 180.75 of the criminal procedure law, as
amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
follows:
  4. Notwithstanding the provisions of subdivisions  two  and  three  of
this  section,  a  local  criminal  court  shall,  at the request of the
district attorney, order removal of an action against a juvenile  offen-
der  to  the  family  court  pursuant to the provisions of article seven
hundred twenty-five of this chapter if, upon consideration of the crite-
ria specified in subdivision two of section 210.43 of this  chapter,  it
is  determined  that  to  do  so  would  be in the interests of justice.
Where, however, the felony complaint charges the juvenile offender  with
AN  OFFENSE AGAINST THE ELDERLY OR PHYSICALLY DISABLED, OR murder in the
second degree as defined in section 125.25 of the penal law, rape in the
first degree as defined in subdivision one  of  section  130.35  of  the
penal  law, criminal sexual act in the first degree as defined in subdi-
vision one of section 130.50 of the penal law, or  an  armed  felony  as
defined  in  paragraph  (a)  of subdivision forty-one of section 1.20 of
this chapter, a determination that such action be removed to the  family
court  shall, in addition, be based upon a finding of one or more of the
following factors: (i) mitigating circumstances that bear directly  upon
the manner in which the crime was committed; or (ii) where the defendant
was not the sole participant in the crime, the defendant's participation
was relatively minor although not so minor as to constitute a defense to
the prosecution; or (iii) possible deficiencies in proof of the crime.
  S  8. Paragraph (c) of subdivision 5 of section 220.10 of the criminal
procedure law, as amended by chapter 410 of the laws of 1979, is amended
to read as follows:
  (c)  Where the indictment charges a felony, other than a class A felo-
ny or class B felony defined in article two hundred twenty of the  penal
law  or class B or class C violent felony offense as defined in subdivi-
sion one of section 70.02 of the penal law, OR THE  CLASS  C  FELONY  OF
VICTIMIZING  THE ELDERLY OR THE PHYSICALLY DISABLED IN THE SECOND DEGREE
AS DEFINED IN SECTION 280.05 OF THE PENAL LAW, and it appears  that  the
defendant has previously been subjected to a predicate felony conviction
as  defined  in  penal law section 70.06 then any plea of guilty entered
pursuant to subdivision three or four must be or must include at least a
plea of guilty of a felony.
  S 9. Subparagraph (vi) of paragraph (b) of subdivision  3  of  section
220.30  of  the criminal procedure law, as amended by chapter 481 of the
laws of 1978 and as renumbered by chapter 233 of the laws  of  1980,  is
amended to read as follows:
  (vi)  A plea of guilty, whether to the entire indictment or to part of
the indictment for any crime other than a felony, may not be accepted on
the  condition that it constitutes a complete disposition of one or more
other indictments against the defendant wherein is  charged  a  class  B
felony  other than a class B violent felony offense as defined in subdi-
vision one of section 70.02 of the penal law, OR THE CLASS C  FELONY  OF

S. 4398                             7

VICTIMIZING  THE ELDERLY OR THE PHYSICALLY DISABLED IN THE SECOND DEGREE
AS DEFINED IN SECTION 280.05 OF THE PENAL LAW.
  S  10.  Subdivision 2 of section 720.10 of the criminal procedure law,
as amended by chapter 416 of the laws of 1986, paragraph (a) as  amended
by chapter 316 of the laws of 2006, is amended to read as follows:
  2.    "Eligible  youth"  means  a  youth who is eligible to be found a
youthful offender.  Every youth is so eligible unless:
  (a) the conviction to be replaced by a youthful  offender  finding  is
for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided  in
subdivision  three,  or  (iii) rape in the first degree, criminal sexual
act in the first degree, or aggravated sexual abuse, except as  provided
in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)    such  youth has previously been adjudicated a youthful offender
following conviction of a felony or has been  adjudicated  on  or  after
September  first,  nineteen  hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined  in  the  family  court
act, OR
  (D) SUCH YOUTH HAS BEEN CONVICTED OF THE CLASS B FELONY OF VICTIMIZING
THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST DEGREE AS DEFINED IN
SECTION 280.10 OF THE PENAL LAW.
  S 11. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

Co-Sponsors

S4398A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A4071
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §10.00, add Art 280 §§280.00 - 280.10, amd §60.05, add §70.09, Pen L; amd §§180.75, 220.10, 220.30 & 720.10, CP L
Versions Introduced in 2009-2010 Legislative Session:
S4773, A3971

S4398A (ACTIVE) - Bill Texts

view summary

Defines the felonies of victimizing the elderly or physically disabled in the 3rd degree, 2nd degree and 1st degree and provides that a sentence of imprisonment must be imposed upon conviction of certain offenses against the elderly or physically disabled; provides that a juvenile offender shall include a person 14 or 15 years old who is criminally responsible for victimizing the elderly or physically disabled; includes within the category, "eligible youth" for youthful offender treatment, one who has been convicted of victimizing the elderly or the physically disabled in the 1st degree; provides certain plea restrictions and sentencing structure for persons convicted of such crimes.

view sponsor memo
BILL NUMBER:S4398A

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation to
mandatory imprisonment and plea restrictions for offenses
victimizing the elderly and physically
disabled

SUMMARY OF PROVISIONS:

The bill provides that those who commit serious crimes against elderly
persons 62 years of age or older or the physically disabled must be
sentenced to prison and face reduced opportunities for plea bargaining.
Juveniles who commit such crimes would be sent by court order to
secure juvenile facilities for specific minimum periods of restricted
placement. Specifically, the bill focuses on those crimes against the
elderly and disabled which involve the use of force, fear, coercion,
or violence.

A new Article 280 is added to the Penal Law establishing the crime of
victimizing the elderly in 3 separate degrees: class B, C, and D
felonies. The newly established crimes set forth B, C and D felonies
respectively, and add the aggravating element that the crime was
committed against a person 62 years old or physically disabled.

A prison sentence is mandated for those who are convicted of such
crimes in accordance with the provisions of new §70.09. Under this
section, offenders against the elderly would receive lengthier
minimum periods of imprisonment than the ordinary offender who
receives a prison sentence but less than the second felony offender.
Penalties for offenses against the elderly are specifically required
for the following crimes:
menacing, unlawful imprisonment, and grand larceny. Plea bargaining,
already restricted for class A and B felonies, is further restricted
for those accused of the class C felony of victimizing the elderly in
the second degree.

Finally, juveniles who are found to have committed the crime of
victimizing the elderly in the first or second degree, would be
subject to mandatory court placement in secure DFY facilities.

JUSTIFICATION:

Elderly people continue to be singled out as victims of physical
attack and muggings. Moreover, the physical harm and emotional trauma
suffered by elderly victims of crime have a devastating effect on
them. Thus, the problem of crime against the elderly is not limited
to volume, but encompasses serious social, psychological, and
physical consequences.
These consequences impact the aged in a disproportionately severe manner
compared to younger persons because elderly people are less able to
recover from the results of .crime than younger people.
Criminologists, sociologists, psychologists, lawyers, and policemen
have recognized and acknowledged this fact - the law has not. Thus,


we witness its ineffectiveness in deterring crimes against older
persons which involve violence and the threat of violence.

The law should provide more stringent treatment for offenders who prey
upon the elderly and disabled, many of whom have been repeatedly
victimized by the same persons. The elderly victim has the dubious
distinction of presenting unique characteristics as an inviting
target of crime such as decreased physical capability to resist an
attacker. He/she cannot move as quickly as younger people; cannot see
as well; cannot hear as well; sensory perception is not as sharp as
that of a younger person. The after effects of crime on the elderly
affect them much more deeply than the crime statistics indicate. The
emotional trauma of a face-to-face crime affects them much more
acutely -- many never recover psychologically.

An elderly person is also more likely to suffer permanent physical
damage. These victims often become afraid to leave their homes to go
shopping, to visit a friend, to go to the doctor, or to simply enjoy
the outdoors. Their lifestyles become downgraded, isolated, and
sometimes result in death. The older crime victim is twice victimized
-- by the crime and by its after-effects.

Furthermore, many elderly people do not report a crime or press
charges because they fear reprisal, oftentimes justifiably. For these
reasons, offenses committed against elderly persons must be viewed as
unique and deserving of stricter treatment. Such treatment is by no
means considered a panacea - the root problem of crime is tangled and
complex. It is necessary, however, to establish a meaningful
deterrent for those who prey upon the elderly, including juveniles
and youthful offenders.

FISCAL IMPLICATIONS:
None.

PRIOR LEGISLATIVE HISTORY:
1995-96: Assembly Codes Cmte.
1997-98: Assembly Codes Cmte.
1999-00: Assembly Codes Cmte.
2001-02: Assembly Codes Cmte.
2003-04: Senate Codes Cmte./Assembly Codes Cmte.
2005-06: Senate Codes Cmte./Assembly Codes Cmte.
2007: Senate Codes Cmte./Assembly Codes Cmte.
2008: Senate Codes Cmte./Assembly
2009: Senate Codes Cmte.
2010: Senate Codes Cmte./Notice of Committee Consideration
Requested; Reported and Committed to Finance Cmte.

EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.

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

                                 4398--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 4, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to mandatory imprisonment and plea restrictions for  offenses
  victimizing the elderly and physically disabled

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

  Section 1. It is hereby found and declared that elderly and physically
disabled people continue to be singled out as victims of  crime.  It  is
also  found  that  the  physical  harm  and emotional trauma suffered by
elderly and physically disabled crime victims has a  devastating  effect
on the lives of those victims.
  The  elderly  or  physically  disabled victim has a decreased physical
capability to resist an attacker and thus becomes an inviting target  of
crime.  Moreover, the aftereffects of crime on the elderly and the phys-
ically handicapped affect them more deeply  than  any  statistics  would
indicate.  The  emotional  trauma  and  possible serious physical damage
resulting from a face to face crime may cause a permanent downgrading in
the elderly or physically  disabled  victim's  lifestyle.  Such  victims
often  impose  "house-arrest"  on  themselves,  afraid to shop, to visit
friends, to go to the doctor, to live, unless behind locked doors.  Even
those elderly or physically disabled who are not direct victims of crime
suffer  indirectly, because they, having learned of the terrible tragedy
suffered by other elderly and physically disabled and fearful for  their
own  individual  safety,  barricade  themselves  within their homes. The
older or physically disabled crime victim is thus  twice  victimized--by
the crime and by its aftermath.
  Criminologists, sociologists, psychologists, and the police all recog-
nize  and  acknowledge  these  facts, but the law does not.  It has been

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06749-03-1

S. 4398--A                          2

ineffective in deterring crimes against the elderly and  the  physically
disabled,  particularly  those  involving  violence  or  the  threat  of
violence. Similarly, special projects on crime prevention  and  improved
techniques  of  communications for the elderly to the police do not halt
or reduce such crime. For these reasons, offenses committed against  the
elderly or the physically disabled must be treated as unique, and legis-
lation  must  be  enacted  to  provide  a meaningful deterrent for those
offenders who now victimize the elderly and the physically disabled.
  S 2. 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; 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); 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; SECTION 280.00
(VICTIMIZING THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED  IN  THE  THIRD
DEGREE); SECTION 280.05 (VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISA-
BLED  IN  THE SECOND DEGREE); OR SECTION 280.10 (VICTIMIZING THE ELDERLY
OR THE PHYSICALLY DISABLED 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 3. Section 10.00 of the penal law is amended  by  adding  three  new
subdivisions 21, 22 and 23 to read as follows:
  21. "ELDERLY PERSON" MEANS A HUMAN BEING SIXTY-TWO YEARS OLD OR MORE.
  22.  "VICTIM",  AS  THAT TERM IS USED IN ARTICLE TWO HUNDRED EIGHTY OF
THIS CHAPTER, MEANS, IN A CASE OF:
  (A)  ASSAULT, THE PERSON INJURED OR INTENDED TO BE INJURED;
  (B)   MANSLAUGHTER OR MURDER, THE PERSON  KILLED  OR  INTENDED  TO  BE
KILLED OR INJURED;
  (C)    RAPE OR CRIMINAL SEXUAL ACT, THE PERSON WITH WHOM THE DEFENDANT
HAS THE SEXUAL INTERCOURSE OR DEVIATE SEXUAL INTERCOURSE;
  (D)  KIDNAPPING, THE PERSON ABDUCTED;
  (E)   BURGLARY OR ROBBERY, THE  PERSON  INJURED,  OR  AGAINST  WHOM  A
DANGEROUS  INSTRUMENT  IS  OR  IS  THREATENED TO BE USED, OR TO WHOM THE
WEAPON IS DISPLAYED;
  (F)  ARSON, THE PERSON PRESENT IN THE BUILDING AT THE TIME; OR
  (G)  LARCENY, THE PERSON IN WHOM FEAR IS INSTILLED.

S. 4398--A                          3

  23. "PHYSICALLY DISABLED PERSON" MEANS A HUMAN BEING:
  (A)  HAVING AN IMPAIRMENT REQUIRING THE USE OF LEG BRACES, CRUTCHES OR
ARTIFICIAL SUPPORT, OR
  (B)  HAVING AN IMPAIRMENT REQUIRING CONFINEMENT TO A WHEELCHAIR, OR
  (C)  HAVING AN IMPAIRMENT CAUSED BY AMPUTATION OF A LIMB, OR
  (D)  HAVING TOTAL OR PARTIAL IMPAIRMENT OF SIGHT NECESSITATING THE USE
OF A GUIDE DOG OR OTHER GUIDING DEVICE.
  S 4. The penal law is amended by adding a new article 280 to  read  as
follows:
                               ARTICLE 280
           OFFENSES AGAINST THE ELDERLY OR PHYSICALLY DISABLED
SECTION 280.00 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 THIRD DEGREE.
        280.05 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 SECOND DEGREE.
        280.10 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE
                 FIRST DEGREE.
S 280.00 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE THIRD
           DEGREE.
  A  PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISA-
BLED IN THE THIRD DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT TO COMMIT VICTIMIZING THE ELDERLY OR THE  PHYSICALLY  DISABLED
IN  THE  SECOND  DEGREE  AS DEFINED IN SECTION 280.05, OR ASSAULT IN THE
SECOND DEGREE AS DEFINED IN SECTION 120.05; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE THIRD DEGREE
IS A CLASS D FELONY.
S 280.05 VICTIMIZING THE ELDERLY  OR  THE  PHYSICALLY  DISABLED  IN  THE
           SECOND DEGREE.
  A  PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISA-
BLED IN THE SECOND DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT TO COMMIT VICTIMIZING THE ELDERLY OR THE  PHYSICALLY  DISABLED
IN  THE  FIRST DEGREE AS DEFINED IN SECTION 280.10, ASSAULT IN THE FIRST
DEGREE AS DEFINED IN SECTION 120.10, BURGLARY IN THE  SECOND  DEGREE  AS
DEFINED  IN  PARAGRAPH  (B),  (C),  OR (D) OF SUBDIVISION ONE OF SECTION
140.25, GRAND LARCENY IN THE SECOND DEGREE AS DEFINED IN CLAUSE  (A)  OF
SUBDIVISION  TWO  OF  SECTION 155.40, OR ROBBERY IN THE SECOND DEGREE AS
DEFINED IN SUBDIVISION TWO OF SECTION 160.10; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING THE ELDERLY OR  THE  PHYSICALLY  DISABLED  IN  THE  SECOND
DEGREE IS A CLASS C FELONY.
S 280.10 VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST
           DEGREE.
  A  PERSON IS GUILTY OF VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISA-
BLED IN THE FIRST DEGREE WHEN HE OR SHE:
  1. COMMITS ANY OF THE FOLLOWING FELONIES:
  ATTEMPT TO COMMIT A CLASS A-I FELONY OTHER THAN AN OFFENSE DEFINED  IN
ARTICLE  TWO HUNDRED TWENTY, MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED
IN SECTION 125.20, RAPE IN  THE  FIRST  DEGREE  AS  DEFINED  IN  SECTION
130.35,  CRIMINAL  SEXUAL  ACT IN THE FIRST DEGREE AS DEFINED IN SECTION
130.50, KIDNAPPING IN THE SECOND DEGREE AS DEFINED  IN  SECTION  135.20,
BURGLARY  IN  THE  FIRST  DEGREE AS DEFINED IN SUBDIVISION TWO, THREE OR

S. 4398--A                          4

FOUR OF SECTION 140.30, OR ROBBERY IN THE FIRST  DEGREE  AS  DEFINED  IN
SUBDIVISION ONE, THREE OR FOUR OF SECTION 160.15; AND
  2. THE VICTIM OF SUCH CRIME IS AN ELDERLY PERSON OR A PHYSICALLY DISA-
BLED PERSON.
  VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST DEGREE
IS A CLASS B FELONY.
  S  5. Section 60.05 of the penal law, as amended by chapter 410 of the
laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
by chapter 738 of the laws of 2004, subdivision 1 as amended by  chapter
7  of  the  laws  of 2007 and subdivision 5 as amended by chapter 405 of
2010, is amended to read as follows:
S 60.05 Authorized dispositions; other class A, B, certain C and D felo-
          nies and multiple felony offenders.
  1. Applicability. Except as provided in section 60.04 of this  article
governing  the  authorized  dispositions  applicable  to felony offenses
defined in article two hundred twenty or two hundred twenty-one of  this
chapter  or  in  section  60.13 of this article governing the authorized
dispositions applicable to felony sex offenses defined in paragraph  (a)
of  subdivision  one  of section 70.80 of this title, this section shall
govern the dispositions authorized when a person is to be sentenced upon
a conviction of a class A felony, a class B felony or a class C, class D
or class E felony specified herein, or when a person is to be  sentenced
upon a conviction of a felony as a multiple felony offender.
  2.  Class  A  felony.  Except as provided in SUBDIVISION SEVEN OF THIS
SECTION AND subdivisions three and four of section 70.06 of  this  chap-
ter,  every  person  convicted  of a class A felony must be sentenced to
imprisonment in accordance with section 70.00 of this title, unless such
person is convicted of murder in the first degree and  is  sentenced  in
accordance with section 60.06 of this article.
  3.  Class  B  felony. Except as provided in [subdivision] SUBDIVISIONS
six AND SEVEN of this section, every  person  convicted  of  a  class  B
violent felony offense as defined in subdivision one of section 70.02 of
this  title,  must  be sentenced to imprisonment in accordance with such
section 70.02; and, except  as  provided  in  subdivision  six  of  this
section,  every  person  convicted  of  any other class B felony must be
sentenced to imprisonment in  accordance  with  section  70.00  of  this
title.
  4.  Certain  class  C  felonies.  Except  as provided in [subdivision]
SUBDIVISIONS six AND SEVEN, every person convicted of a class C  violent
felony  offense  as  defined in subdivision one of section 70.02 of this
title, must be sentenced to  imprisonment  in  accordance  with  section
70.02  of this title; and, except as provided in subdivision six of this
section, every person convicted of the class C felonies of:  attempt  to
commit  any  of  the  class B felonies of bribery in the first degree as
defined in section 200.04,  bribe  receiving  in  the  first  degree  as
defined in section 200.12, conspiracy in the second degree as defined in
section  105.15  and criminal mischief in the first degree as defined in
section 145.12; criminal usury in the first degree as defined in section
190.42, rewarding official misconduct in the first degree as defined  in
section  200.22,  receiving  reward for official misconduct in the first
degree as defined in section 200.27, attempt to promote prostitution  in
the first degree as defined in section 230.32, promoting prostitution in
the  second  degree  as  defined  in  section 230.30, arson in the third
degree as defined in section 150.10 of this chapter, must  be  sentenced
to imprisonment in accordance with section 70.00 of this title.

S. 4398--A                          5

  5.  Certain class D felonies. Except as provided in subdivision six of
this section, every person convicted of the class D felonies of  assault
in  the second degree as defined in section 120.05, strangulation in the
second degree as defined in section 121.12 or attempt to commit a  class
C felony as defined in section 230.30 of this chapter, must be sentenced
in accordance with section 70.00 or 85.00 of this title.
  6.  Multiple  felony  offender. When the court imposes sentence upon a
second violent felony offender, as defined in section 70.04, or a second
felony offender, as defined in section 70.06, the court  must  impose  a
sentence  of  imprisonment in accordance with section 70.04 or 70.06, as
the case may be, unless it imposes a sentence of imprisonment in accord-
ance with section 70.08 or 70.10.
  7. ARTICLE  TWO  HUNDRED  EIGHTY  OFFENSES.  WHEN  THE  COURT  IMPOSES
SENTENCE UPON A PERSON CONVICTED OF AN OFFENSE ENUMERATED IN ARTICLE TWO
HUNDRED  EIGHTY, IT MUST IMPOSE A SENTENCE OF IMPRISONMENT IN ACCORDANCE
WITH SECTION 70.09, UNLESS IT IMPOSES  A  SENTENCE  OF  IMPRISONMENT  IN
ACCORDANCE WITH SECTION 70.06 OR 70.10.
  8.  Fines.  Where  the  court  imposes  a  sentence of imprisonment in
accordance with this section, the court also may impose a  fine  author-
ized  by  article  eighty  and  in  such case the sentence shall be both
imprisonment and a fine.
  S 6. The penal law is amended by adding a new section 70.09 to read as
follows:
S 70.09 SENTENCE OF IMPRISONMENT FOR CERTAIN OFFENSES AGAINST THE ELDER-
           LY OR THE PHYSICALLY DISABLED.
  1. EXCEPT AS PROVIDED IN SUBDIVISION FOUR EVERY PERSON, OTHER  THAN  A
PERSON  SENTENCED  AS  A  SECOND  OR  PERSISTENT FELONY OFFENDER, WHO IS
CONVICTED OF AN OFFENSE AGAINST THE ELDERLY OR THE  PHYSICALLY  DISABLED
DEFINED IN ARTICLE TWO HUNDRED EIGHTY OF THIS CHAPTER, MUST BE SENTENCED
TO  AN  INDETERMINATE  SENTENCE  OF  IMPRISONMENT IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION.
  2. THE MAXIMUM TERM OF SUCH INDETERMINATE SENTENCE MUST  BE  FIXED  AS
FOLLOWS:
  (A)  FOR  THE  CLASS  B FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE FIRST DEGREE, THE TERM  MUST  BE  AT  LEAST  NINE
YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS;
  (B)  FOR  THE  CLASS  C FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE SECOND DEGREE, THE TERM  MUST  BE  AT  LEAST  SIX
YEARS AND MUST NOT EXCEED FIFTEEN YEARS;
  (C)  FOR  THE  CLASS  D FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE THIRD DEGREE, THE TERM  MUST  BE  AT  LEAST  FOUR
YEARS AND MUST NOT EXCEED SEVEN YEARS.
  3.  THE MINIMUM PERIOD OF IMPRISONMENT FOR SUCH INDETERMINATE SENTENCE
MUST BE FIXED BY THE COURT AND MUST BE  SPECIFIED  IN  THE  SENTENCE  AS
FOLLOWS:
  (A)  FOR  THE  CLASS  B FELONY OF VICTIMIZING THE ELDERLY OR THE PHYS-
ICALLY DISABLED IN THE FIRST DEGREE, THE MINIMUM PERIOD OF  IMPRISONMENT
SHALL  NOT  BE LESS THAN THREE YEARS NOR MORE THAN ONE-THIRD THE MAXIMUM
TERM IMPOSED BY THE COURT;
  (B) FOR THE CLASS C FELONY OF VICTIMIZING THE  ELDERLY  OR  THE  PHYS-
ICALLY DISABLED IN THE SECOND DEGREE, THE MINIMUM PERIOD OF IMPRISONMENT
SHALL  BE  NOT  LESS  THAN TWO YEARS NOR MORE THAN ONE-THIRD THE MAXIMUM
TERM IMPOSED BY THE COURT;
  (C) FOR THE CLASS D FELONY OF VICTIMIZING THE  ELDERLY  OR  THE  PHYS-
ICALLY  DISABLED IN THE THIRD DEGREE, THE MINIMUM PERIOD OF IMPRISONMENT
SHALL BE ONE-THIRD THE MAXIMUM TERM IMPOSED BY THE COURT.

S. 4398--A                          6

  4. ALTERNATIVE DEFINITE SENTENCE FOR CLASS D  FELONY  OFFENSE  AGAINST
THE  ELDERLY  OR  THE  PHYSICALLY  DISABLED. WHEN A PERSON, OTHER THAN A
MULTIPLE FELONY OFFENDER, IS SENTENCED FOR THE CLASS D FELONY OF VICTIM-
IZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE  THIRD  DEGREE,  AND
THE  COURT,  HAVING  REGARD TO THE NATURE AND CIRCUMSTANCES OF THE CRIME
AND TO THE HISTORY AND CHARACTER OF THE DEFENDANT,  IS  OF  THE  OPINION
THAT  IT  WOULD BE UNDULY HARSH TO IMPOSE AN INDETERMINATE SENTENCE, THE
COURT MAY IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT AND FIX A  TERM  OF
ONE YEAR.
  S 7. Subdivision 4 of section 180.75 of the criminal procedure law, as
amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
follows:
  4. Notwithstanding the provisions of subdivisions  two  and  three  of
this  section,  a  local  criminal  court  shall,  at the request of the
district attorney, order removal of an action against a juvenile  offen-
der  to  the  family  court  pursuant to the provisions of article seven
hundred twenty-five of this chapter if, upon consideration of the crite-
ria specified in subdivision two of section 210.43 of this  chapter,  it
is  determined  that  to  do  so  would  be in the interests of justice.
Where, however, the felony complaint charges the juvenile offender  with
AN  OFFENSE AGAINST THE ELDERLY OR PHYSICALLY DISABLED, OR murder in the
second degree as defined in section 125.25 of the penal law, rape in the
first degree as defined in subdivision one  of  section  130.35  of  the
penal  law, criminal sexual act in the first degree as defined in subdi-
vision one of section 130.50 of the penal law, or  an  armed  felony  as
defined  in  paragraph  (a)  of subdivision forty-one of section 1.20 of
this chapter, a determination that such action be removed to the  family
court  shall, in addition, be based upon a finding of one or more of the
following factors: (i) mitigating circumstances that bear directly  upon
the manner in which the crime was committed; or (ii) where the defendant
was not the sole participant in the crime, the defendant's participation
was relatively minor although not so minor as to constitute a defense to
the prosecution; or (iii) possible deficiencies in proof of the crime.
  S  8. Paragraph (c) of subdivision 5 of section 220.10 of the criminal
procedure law, as amended by chapter 410 of the laws of 1979, is amended
to read as follows:
  (c)  Where the indictment charges a felony, other than a class A felo-
ny or class B felony defined in article two hundred twenty of the  penal
law  or class B or class C violent felony offense as defined in subdivi-
sion one of section 70.02 of the penal law, OR THE  CLASS  C  FELONY  OF
VICTIMIZING  THE ELDERLY OR THE PHYSICALLY DISABLED IN THE SECOND DEGREE
AS DEFINED IN SECTION 280.05 OF THE PENAL LAW, and it appears  that  the
defendant has previously been subjected to a predicate felony conviction
as  defined  in [penal law] section 70.06 OF THE PENAL LAW then any plea
of guilty entered pursuant to subdivision three or four must be or  must
include at least a plea of guilty of a felony.
  S  9.  Subparagraph  (vi) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law, as amended by chapter 481  of  the
laws  of  1978  and as renumbered by chapter 233 of the laws of 1980, is
amended to read as follows:
  (vi)  A plea of guilty, whether to the entire indictment or to part of
the indictment for any crime other than a felony, may not be accepted on
the condition that it constitutes a complete disposition of one or  more
other  indictments  against  the  defendant wherein is charged a class B
felony other than a class B violent felony offense as defined in  subdi-
vision  one  of section 70.02 of the penal law, OR THE CLASS C FELONY OF

S. 4398--A                          7

VICTIMIZING THE ELDERLY OR THE PHYSICALLY DISABLED IN THE SECOND  DEGREE
AS DEFINED IN SECTION 280.05 OF THE PENAL LAW.
  S  10.  Subdivision 2 of section 720.10 of the criminal procedure law,
as amended by chapter 416 of the laws of 1986, paragraph (a) as  amended
by chapter 316 of the laws of 2006, is amended to read as follows:
  2.    "Eligible  youth"  means  a  youth who is eligible to be found a
youthful offender.  Every youth is so eligible unless:
  (a) the conviction to be replaced by a youthful  offender  finding  is
for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided  in
subdivision  three,  or  (iii) rape in the first degree, criminal sexual
act in the first degree, or aggravated sexual abuse, except as  provided
in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)    such  youth has previously been adjudicated a youthful offender
following conviction of a felony or has been  adjudicated  on  or  after
September  first,  nineteen  hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined  in  the  family  court
act, OR
  (D) SUCH YOUTH HAS BEEN CONVICTED OF THE CLASS B FELONY OF VICTIMIZING
THE ELDERLY OR THE PHYSICALLY DISABLED IN THE FIRST DEGREE AS DEFINED IN
SECTION 280.10 OF THE PENAL LAW.
  S 11. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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