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

                                  6678

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             March 24, 2011
                               ___________

Introduced by M. of A. CUSICK -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend  the  penal  law,  in  relation to making certain sex
  offenses committed against a child or a mentally disabled person class
  A-I felonies for which a sentence of life imprisonment without  parole
  shall  be imposed; and to repeal certain provisions of such law relat-
  ing to sex offenses committed against children or the  mentally  disa-
  bled

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

  Section 1. Section 60.06 of the penal law, as amended by  chapter  482
of the laws of 2009, is amended to read as follows:
S 60.06 Authorized  disposition;  murder  in the first degree offenders;
          aggravated murder offenders;  certain  murder  in  the  second
          degree  offenders;  CERTAIN  SEX  OFFENDERS; certain terrorism
          offenders; criminal possession of a chemical weapon or biolog-
          ical weapon offenders; criminal use of a  chemical  weapon  or
          biological weapon offenders.
  When a defendant is convicted of murder in the first degree as defined
in  section  125.27 of this chapter, the court shall, in accordance with
the provisions of section 400.27 of the criminal procedure law, sentence
the defendant to death, to life imprisonment without parole  in  accord-
ance  with subdivision five of section 70.00 of this title, or to a term
of imprisonment for a class A-I felony other than  a  sentence  of  life
imprisonment without parole, in accordance with subdivisions one through
three  of  section  70.00  of  this title. When a person is convicted of
murder in the second degree as defined in subdivision  five  of  section
125.25  of  this chapter or of the crime of aggravated murder as defined
in subdivision one of section 125.26 of this chapter,  the  court  shall
sentence the defendant to life imprisonment without parole in accordance
with  subdivision five of section 70.00 of this title.  WHEN A DEFENDANT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10289-03-1
              

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IS CONVICTED OF AGGRAVATED RAPE AS DEFINED IN SECTION 130.36, AGGRAVATED
CRIMINAL SEXUAL ACT AS DEFINED IN SECTION 130.51  OR  COURSE  OF  SEXUAL
CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.75
OF  THIS  CHAPTER, THE COURT SHALL SENTENCE THE DEFENDANT TO LIFE IMPRI-
SONMENT WITHOUT PAROLE IN ACCORDANCE WITH SUBDIVISION  FIVE  OF  SECTION
70.00  OF  THIS  TITLE.  When  a  defendant is convicted of the crime of
terrorism as defined in section 490.25 of this chapter, and  the  speci-
fied  offense  the defendant committed is a class A-I felony offense, or
when a defendant is convicted of the crime of criminal possession  of  a
chemical  weapon  or biological weapon in the first degree as defined in
section 490.45 of this chapter, or when a defendant is convicted of  the
crime  of  criminal use of a chemical weapon or biological weapon in the
first degree as defined in section 490.55 of  this  chapter,  the  court
shall  sentence  the  defendant  to  life imprisonment without parole in
accordance with  subdivision  five  of  section  70.00  of  this  title;
provided,  however,  that  nothing  in  this  section  shall preclude or
prevent a sentence of death when the  defendant  is  also  convicted  of
murder in the first degree as defined in section 125.27 of this chapter.
When  a defendant is convicted of aggravated murder as defined in subdi-
vision two of section 125.26 of this chapter, the court  shall  sentence
the defendant to life imprisonment without parole or to a term of impri-
sonment  for  a class A-I felony other than a sentence of life imprison-
ment without parole, in accordance with subdivisions one  through  three
of section 70.00 of this title.
  S  2.  Subdivision  5 of section 70.00 of the penal law, as amended by
chapter 482 of the laws of 2009, is amended to read as follows:
  5.  Life  imprisonment  without  parole.  Notwithstanding  any   other
provision  of  law,  a  defendant sentenced to life imprisonment without
parole shall not  be  or  become  eligible  for  parole  or  conditional
release.  For  purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be  an  indetermi-
nate  sentence.  A defendant may be sentenced to life imprisonment with-
out parole upon conviction for the crime of murder in the  first  degree
as  defined in section 125.27 of this chapter and in accordance with the
procedures provided by law for imposing a sentence  for  such  crime.  A
defendant  must  be  sentenced  to life imprisonment without parole upon
conviction for the crime of terrorism as defined in  section  490.25  of
this  chapter,  where the specified offense the defendant committed is a
class A-I felony; the crime of criminal possession of a chemical  weapon
or biological weapon in the first degree as defined in section 490.45 of
this  chapter;  or  the  crime  of  criminal use of a chemical weapon or
biological weapon in the first degree as defined in  section  490.55  of
this  chapter; provided, however, that nothing in this subdivision shall
preclude or prevent a sentence of  death  when  the  defendant  is  also
convicted  of  the  crime  of  murder  in the first degree as defined in
section 125.27 of this chapter.  A defendant must be sentenced  to  life
imprisonment  without  parole upon conviction for the crime of murder in
the second degree as defined in subdivision five of  section  125.25  of
this  chapter or for the crime of aggravated murder as defined in subdi-
vision one of section  125.26  of  this  chapter.  A  defendant  may  be
sentenced  to  life  imprisonment without parole upon conviction for the
crime of aggravated murder as defined  in  subdivision  two  of  section
125.26 of this chapter.  A DEFENDANT MUST BE SENTENCED TO LIFE IMPRISON-
MENT  WITHOUT  PAROLE UPON CONVICTION OF THE CRIME OF AGGRAVATED RAPE AS
DEFINED IN SECTION 130.36, OR AGGRAVATED CRIMINAL SEXUAL ACT AS  DEFINED
IN SECTION 130.75 OF THIS CHAPTER.

A. 6678                             3

  S 3. Section 130.30 of the penal law is REPEALED.
  S  4.  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 5. The penal law is amended by adding a new section 130.36  to  read
as follows:
S 130.36 AGGRAVATED RAPE.
  A PERSON IS GUILTY OF AGGRAVATED RAPE WHEN:
  1.  BEING  EIGHTEEN  YEARS OR MORE, HE OR SHE ENGAGES IN SEXUAL INTER-
COURSE 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; OR
  3. HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO  IS
LESS THAN THIRTEEN YEARS OLD.
  IT  SHALL  BE AN AFFIRMATIVE DEFENSE TO THE OFFENSE OF AGGRAVATED RAPE
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 OFFENSE.
  AGGRAVATED RAPE IS A CLASS A-I FELONY.
  S 6. Section 130.45 of the penal law is REPEALED.
  S 7. 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
  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  8.  The penal law is amended by adding a new section 130.51 to read
as follows:
S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
  A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN:
  1. BEING EIGHTEEN YEARS 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; OR
  3. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT  OR  ANAL  SEXUAL  CONDUCT
WITH ANOTHER PERSON WHO IS LESS THAN THIRTEEN YEARS OLD.
  IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE OFFENSE OF AGGRAVATED CRIMI-
NAL  SEXUAL  ACT  AS DEFINED IN SUBDIVISION ONE OF THIS SECTION THAT THE

A. 6678                             4

DEFENDANT WAS LESS THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME  OF
THE OFFENSE.
  AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-I FELONY.
  S  9.  The  closing  paragraph  of section 130.75 of the penal law, as
amended by chapter 1 of the laws of 2000, is amended to read as follows:
  Course of sexual conduct against a child in  the  first  degree  is  a
class [B] A-I felony.
  S 10. Section 130.96 of the penal law is REPEALED.
  S  11.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law and shall  apply
to offenses committed on or after such effective date.