S T A T E   O F   N E W   Y O R K
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                                 3205--A
    Cal. No. 227

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced by Sens. FLANAGAN, AVELLA, MARTINS, OPPENHEIMER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on  Codes  -- reported favorably from said committee, ordered to first
  and second report, ordered to a third reading, passed  by  Senate  and
  delivered  to  the  Assembly, recalled, vote reconsidered, restored to
  third reading, amended and ordered reprinted, retaining its  place  in
  the order of third reading

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,

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

                                                           LBD07847-03-1

S. 3205--A                          2

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) 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.

S. 3205--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.