S T A T E O F N E W Y O R K
________________________________________________________________________
3098--A
2011-2012 Regular Sessions
I N A S S E M B L Y
January 24, 2011
___________
Introduced by M. of A. SPANO, WEISENBERG, MAISEL, CUSICK, CLARK, ZEBROW-
SKI, SCHIMMINGER, BROOK-KRASNY, LANCMAN, GALEF, COLTON, REILLY, SCHI-
MEL -- Multi-Sponsored by -- M. of A. ABBATE, ENGLEBRIGHT, MARKEY,
PRETLOW -- read once and referred to the Committee on Codes -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the penal law, in relation to establishing home inva-
sion robbery offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of
the penal law, paragraph (a) as amended by chapter 320 of the laws of
2006 and paragraph (b) as amended by chapter 405 of the laws of 2010,
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, HOME INVASION ROBBERY IN THE FIRST DEGREE AS DEFINED IN
SECTION 163.10, incest in the first degree as defined in section 255.27,
criminal possession of a weapon in the first degree as defined in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07847-02-1
A. 3098--A 2
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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined in section 125.21,
aggravated sexual abuse in the second degree as defined in section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, gang assault
in the second degree as defined in section 120.06, strangulation in the
first degree as defined in section 121.13, burglary in the second degree
as defined in section 140.25, robbery in the second degree as defined in
section 160.10, HOME INVASION ROBBERY IN THE SECOND DEGREE AS DEFINED IN
SECTION 163.05, 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 chemi-
cal weapon or biological weapon in the third degree as defined in
section 490.37.
S 2. The penal law is amended by adding a new article 163 to read as
follows:
ARTICLE 163
HOME INVASION ROBBERY
SECTION 163.00 HOME INVASION ROBBERY; DEFINED.
163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.
163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
163.15 HOME INVASION ROBBERY; PROSECUTION.
S 163.00 HOME INVASION ROBBERY; DEFINED.
FOR THE PURPOSES OF THIS ARTICLE:
1. "HOME INVASION ROBBERY" MEANS TO KNOWINGLY ENTER OR REMAIN UNLAW-
FULLY IN A DWELLING WITH INTENT TO COMMIT A ROBBERY THEREIN, AND WHEN,
(A) WHILE IN EFFECTING ENTRY OR WHILE IN THE DWELLING OR IN IMMEDIATE
FLIGHT THEREFROM OR AS A DIRECT RESULT OF THE ENTRY INTO SUCH DWELLING A
PERSON COMMITS ANY OFFENSE DEFINED IN ARTICLE ONE HUNDRED SIXTY OF THIS
TITLE AND (B) WHILE IN THE COURSE OF COMMITTING SUCH OFFENSE SUCH PERSON
COMMITS ANY OFFENSE DEFINED IN TITLE H OF THIS CHAPTER AGAINST ANOTHER
PERSON WHO IS NOT A PARTICIPANT IN THE HOME INVASION ROBBERY.
2. "DWELLING" SHALL HAVE THE SAME MEANING AS SUCH TERM IS DEFINED IN
SUBDIVISION THREE OF SECTION 140.00 OF THIS PART.
3. "ENTER OR REMAIN UNLAWFULLY" SHALL HAVE THE SAME MEANING AS SUCH
TERM IS DEFINED IN SUBDIVISION FIVE OF SECTION 140.00 OF THIS PART.
A. 3098--A 3
4. "ROBBERY" MEANS FORCIBLE STEALING AS DEFINED IN SECTION 160.00 OF
THIS TITLE.
S 163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.
A PERSON IS GUILTY OF HOME INVASION ROBBERY IN THE SECOND DEGREE WHEN
HE OR SHE COMMITS A HOME INVASION ROBBERY.
HOME INVASION ROBBERY IN THE SECOND DEGREE IS A CLASS C FELONY.
S 163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
A PERSON IS GUILTY OF HOME INVASION ROBBERY IN THE FIRST DEGREE WHEN
HE OR SHE COMMITS A HOME INVASION ROBBERY AND WHEN, IN THE COURSE OF THE
COMMISSION OF SUCH CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE OR SHE OR
ANOTHER PARTICIPANT IN SUCH CRIME:
1. CAUSES SERIOUS PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTIC-
IPANT IN SUCH CRIME; OR
2. IS ARMED WITH A DEADLY WEAPON; OR
3. USES OR THREATENS THE IMMEDIATE USE OF A DANGEROUS INSTRUMENT; OR
4. DISPLAYS WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
MACHINE GUN OR OTHER FIREARM; EXCEPT THAT IN ANY PROSECUTION UNDER THIS
SUBDIVISION, IT IS AN AFFIRMATIVE DEFENSE THAT SUCH PISTOL, REVOLVER,
RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM WAS NOT A LOADED WEAPON
FROM WHICH A SHOT, READILY CAPABLE OF PRODUCING DEATH OR OTHER SERIOUS
PHYSICAL INJURY, COULD BE DISCHARGED. NOTHING CONTAINED IN THIS SUBDIVI-
SION SHALL CONSTITUTE A DEFENSE TO A PROSECUTION FOR, OR PRECLUDE A
CONVICTION OF, HOME INVASION ROBBERY IN THE SECOND DEGREE OR ANY OTHER
OFFENSE.
HOME INVASION ROBBERY IN THE FIRST DEGREE IS A CLASS B FELONY.
S 163.15 HOME INVASION ROBBERY; PROSECUTION.
IN ANY PROSECUTION OF AN OFFENSE DEFINED IN THIS ARTICLE, NO PROVISION
OF THE CHAPTER SHALL PRECLUDE OR PROHIBIT PROSECUTION FOR ANY OTHER
OFFENSE NOT DEFINED IN THIS ARTICLE WHICH OCCURRED DURING THE SAME TRAN-
SACTION OR OCCURRENCE AS THE OFFENSE COMMITTED IN VIOLATION OF THE
PROVISIONS OF THIS ARTICLE.
S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.