senate Bill S3710A

2013-2014 Legislative Session

Relates to the definition of term "sexual intercourse" as such term applies to sex offenses and establishes the crimes of anal rape and oral rape; repealer

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to codes
returned to senate
died in assembly
Apr 29, 2013 referred to codes
delivered to assembly
passed senate
Apr 24, 2013 amended on third reading (t) 3710c
Apr 23, 2013 amended on third reading 3710b
Apr 22, 2013 ordered to third reading cal.391
reported and committed to rules
Feb 15, 2013 print number 3710a
amend and recommit to codes
Feb 12, 2013 referred to codes

Votes

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Apr 22, 2013 - Codes committee Vote

S3710A
15
0
committee
15
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

Apr 22, 2013 - Rules committee Vote

S3710A
17
4
committee
17
Aye
4
Nay
3
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Bill Amendments

Original
A
B
C (Active)
Original
A
B
C (Active)

Co-Sponsors

S3710 - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §130.00, Pen L

S3710 - Bill Texts

view summary

Relates to the definition of the term "sexual intercourse" as such term applies to sex offenses; establishes the crimes of anal rape and oral rape to replace crimes involving criminal sexual acts.

view sponsor memo
BILL NUMBER:S3710

TITLE OF BILL: An act to amend the penal law, in relation to the defi-
nition of the term "sexual intercourse" as such term applies to sex
offenses

PURPOSE OR GENERAL IDEA OF BILL: To amend the penal law to redefine rape
as any contact between the penis and vagina.

SUMMARY OF SPECIFIC PROVISIONS: The Act amends the penal law by defining
rape as any contact between the penis and the vagina.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Clarify Rape in the
First, Second and Third Degrees.

JUSTIFICATION: On March 28, 2012, a Justice of the New York State
Supreme Court declared a mistrial on the rape charge against former New
York City Police Officer Michael Pena. Pena was convicted of several
other charges for holding the schoolteacher at gunpoint, threatening her
life and forcibly sodomizing her. Pena was not convicted of rape despite
overwhelming evidence of forcible, non-consensual sexual conduct with a
Bronx schoolteacher. It is galling that in the face of evidence of the
defendant's semen in the victim's underwear, redness to hex genitals,
eyewitness testimony and the victim's own account of the pain of the
attack, Pena was not convicted of the top count of rape.

Common sense dictates that what happened to the victim in this case is
rape.

This bill will redefine sexual intercourse as an element in the crime of
rape as any contact between the penis and the vagina, rather than the
current definition which requires penetration.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                  3710

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 12, 2013
                               ___________

Introduced by Sens. YOUNG, GOLDEN -- read twice and ordered printed, and
  when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to the definition of the term
  "sexual intercourse" as such term applies to sex offenses

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

  Section 1. Subdivision 1 of section 130.00 of the penal law is amended
to read as follows:
  1. "Sexual intercourse" has its ordinary meaning and occurs  upon  any
[penetration, however slight] CONTACT BETWEEN THE PENIS AND THE VAGINA.
  S 2. This act shall take effect immediately.







 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08888-01-3

Co-Sponsors

S3710A - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §130.00, Pen L

S3710A - Bill Texts

view summary

Relates to the definition of the term "sexual intercourse" as such term applies to sex offenses; establishes the crimes of anal rape and oral rape to replace crimes involving criminal sexual acts.

view sponsor memo
BILL NUMBER:S3710A

TITLE OF BILL: An act to amend the penal law, in relation to the
definition of the term "sexual intercourse" as such term applies to
sex offenses

PURPOSE OR GENERAL IDEA OF BILL: To amend the penal law to redefine
rape as any contact between the penis and vagina or vulva.

SUMMARY OF SPECIFIC PROVISIONS: The Act amends the penal law by
defining rape as any contact between the penis and the vagina or
vulva.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Clarifies Rape in
the First, Second and Third Degrees.

JUSTIFICATION: On March 28, 2012, a Justice of the New York State
Supreme Court declared a mistrial on the rape charge against former
New York City Police Officer Michael Pena. Pena was convicted of
several other charges for holding the schoolteacher at gunpoint,
threatening her life and forcibly sodomizing her. Pena was not
convicted of rape despite overwhelming evidence of forcible,
non-consensual sexual conduct with a Bronx schoolteacher. It is
galling that in the face of evidence of the defendant's semen in the
victim's underwear, redness to her genitals, eyewitness testimony and
the victim's own account of the pain of the attack, Pena was not
convicted of the top count of rape.

Common sense dictates that what happened to the victim in this case is
rape.

This bill will redefine sexual intercourse as an element in the crime
of rape as any contact between the penis and the vagina, rather than
the current definition which requires penetration.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                 3710--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 12, 2013
                               ___________

Introduced  by  Sens.  YOUNG, GOLDEN, NOZZOLIO -- 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, in relation to the definition of the term
  "sexual intercourse" as such term applies to sex offenses

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

  Section 1. Subdivision 1 of section 130.00 of the penal law is amended
to read as follows:
  1. "Sexual intercourse" has its ordinary meaning and occurs  upon  any
[penetration,  however  slight] CONTACT BETWEEN THE PENIS AND THE VAGINA
OR VULVA.
  S 2. This act shall take effect immediately.






 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08888-02-3

Co-Sponsors

S3710B - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §130.00, Pen L

S3710B - Bill Texts

view summary

Relates to the definition of the term "sexual intercourse" as such term applies to sex offenses; establishes the crimes of anal rape and oral rape to replace crimes involving criminal sexual acts.

view sponsor memo
BILL NUMBER:S3710B

TITLE OF BILL: An act to amend the penal law, in relation to the
definition of the term "sexual intercourse" as such term applies to
sex offenses

PURPOSE OR GENERAL IDEA OF BILL: To amend the penal law to redefine
rape as any contact between the penis and vagina or vulva.

SUMMARY OF SPECIFIC PROVISIONS: The Act amends the penal law by
defining rape as conduct between persons consisting of contact between
the penis and the vagina or vulva.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Clarifies Rape in
the First, Second and Third Degrees.

JUSTIFICATION: On March 28, 2012, a Justice of the New York State
Supreme Court declared a mistrial on the rape charge against former
New York City Police Officer Michael Pena. Pena was convicted of
several other charges for holding the schoolteacher at gunpoint,
threatening her life and forcibly sodomizing her. Pena was not
convicted of rape despite overwhelming evidence of forcible,
non-consensual sexual conduct with a Bronx schoolteacher. It is
galling that in the face of evidence of the defendant's semen in the
victim's underwear, redness to her genitals, eyewitness testimony and
the victim's own account of the pain of the attack, Pena was not
convicted of the top count of rape.

Common sense dictates that what happened to the victim in this case is
rape.

This bill will redefine sexual intercourse as an element in the crime
of rape as any contact between the penis and the vagina or vulva,
rather than the current definition which requires penetration.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect ninety days after it shall
have become a law.

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

                                 3710--B
    Cal. No. 391

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 12, 2013
                               ___________

Introduced  by  Sens.  YOUNG,  GOLDEN, LANZA, NOZZOLIO -- 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 -- reported  favorably  from
  said  committee  and  committed  to the Committee on Rules -- reported
  favorably from said committee 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 the definition of the term
  "sexual intercourse" as such term applies to sex offenses

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

  Section 1. Subdivision 1 of section 130.00 of the penal law is amended
to read as follows:
  1. "Sexual intercourse" [has its ordinary meaning and occurs upon  any
penetration, however slight] MEANS CONDUCT BETWEEN PERSONS CONSISTING OF
CONTACT BETWEEN THE PENIS AND THE VAGINA OR VULVA.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.





 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08888-04-3

Co-Sponsors

S3710C (ACTIVE) - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §130.00, Pen L

S3710C (ACTIVE) - Bill Texts

view summary

Relates to the definition of the term "sexual intercourse" as such term applies to sex offenses; establishes the crimes of anal rape and oral rape to replace crimes involving criminal sexual acts.

view sponsor memo
BILL NUMBER:S3710C REVISED 4/29/13

TITLE OF BILL: An act to amend the penal law, in relation to the defi-
nition of the term "sexual intercourse" as such term applies to sex
offenses; and to amend the penal law, the criminal procedure law, the
agriculture and markets law, the civil practice law and rules, the fami-
ly court act, the judiciary law and the correction law, in relation to
establishing the crimes of anal rape and oral rape to replace crimes
involving criminal sexual acts; and to repeal certain provisions of the
penal law relating thereto

PURPOSE: The purpose of "The Rape Victims Equality Act" is to amend the
penal law to redefine rape as any contact between the penis and vagina
or vulva and to redefine certain criminal sexual acts as oral and anal
rape to appropriately reflect the specific offenses committed.

SUMMARY OF PROVISIONS:

Section 1 redefines sexual intercourse as any contact between persons
that consists of contact between the penis and the vagina or vulva.

Sections 2 through 4 amend penal law sections 130.40, 130.45, and 130.50
"criminal sexual act in the third degree", "criminal sexual act in the
second degree" and "criminal sexual act in the first degree" to exclude
any reference to "oral sexual conduct" and redefine these sections as
more specialized offenses of "anal rape in the third degree", "anal rape
in the second degree "and "anal rape in the first degree", respectively.

Section 5 adds a new penal law section 130.37, "oral rape in the third
degree". A person is guilty of oral rape in the third degree, a class E
felony, when he or she engages in oral sexual conduct with a person who
is incapable of consent for a reason other than being less than 17; or
when a person 21 or older engages in oral sexual conduct with a person
less than 17; or when a person engages in oral sexual conduct without
another person's consent where the lack of consent is by reason of some
factor other than the incapacity to consent.

Section 6 adds a new penal law section 130.38, "oral rape in the second
degree". A person is guilty of oral rape in the second degree, a class U
felony, when he or she engages in oral sexual conduct with a person less
than 15 years old or engages in oral sexual conduct with another person
who is incapable of consent because they are mentally disabled or
mentally incapacitated. The fact that the victim was less than 4 years
older than the victim at the time of the act shall constitute an affir-
mative defense.

Section 7 adds a new penal law section 130.39, "oral rape in the first
degree". A person is guilty of oral rape in the second degree, a class B
felony, when he or she engages in oral sexual conduct with a person by
forcible compulsion or who is incapable of consent due to being phys-
ically helpless; or who is less than 11 years old; or who is less than
13 years old and the actor is 18 years old or older.

Sections 8 through 47 amend various sections of the penal law, criminal
procedure law, the civil practice law and rules' and the family court
act to make technical conforming changes to remove references made to
"oral sexual conduct" and "criminal sexual act" and replace them with
corresponding references to the appropriate anal rape and oral rape
provisions.

Section 48 amends subparagraph (i) of paragraph (a) of subdivision 3 of
section 168-a of the correction law to include penal law sections 130.37
and 130.38.

Section 49 amends subparagraph (i) of paragraph (a) of subdivision 3 of
section 168-a of the correction law to include Penal Law Section 130.39.

Section 50 provides the effective date.

JUSTIFICATION: On march 28, 2012, a Justice of the New York State
Supreme Court declared a mistrial on the rape charge against former New
York City Police Officer Michael Pena. Pena was convicted of several
other charges for holding a school teacher at gunpoint, threatening her
life and committing criminal sexual acts against her. Pena was not
convicted or rape despite overwhelming evidence of forcible, non-consen-
sual sexual contact with the young school teacher who was on her way to
her first day of school at her first teaching job. It is galling that in
the face of evidence of the defendant's semen in the victim's underwear,
redness to her genitals, eyewitness testimony and the victim's own
account of the pain of the attack, Pena was not convicted of rape at
trial.

Despite this overwhelming evidence of force, bodily fluids and injury,
three jurors voted not to convict because an element of rape require
evidence of penetration by the penis into the vagina. These jurors were
not able to convict Mr. Pena of the top charge of rape because they were
not convinced such penetration of the vagina took place. This bill elim-
inates the requirement of penetration in a vaginal rape and makes the
elements of Rape equivalent to those of criminal sexual act which only
requires contact of the genitals to the month or anus and force to
complete the crime.

This bill has been introduced at the recommendation of the District
Attorneys Association of the State of New York. Specifically, they
recommend that Article 130 of the Penal Law should be amended to address
the inconsistent requirement that penetration be proved as an element of
Rape, while mere contact is sufficient to prove the current crime of
Criminal Sexual Act (the criminal formerly known as "Sodomy"). The
District Attorney Association states that "while forcible, non-consensu-
al contact between a penis and the mouth or anus is currently a class B
violent felony, the same contact with a woman's genitalia constitutes
only a D felony. There is no valid reason why one is worthy of a poten-
tial 25-year sentence, while the other only merits a maximum of 7
years." By redefining sexual intercourse-as an element of the crime of
Rape- as any contact between the penis and vagina or vulva, rather than

the current definition, which requires penetration, this bill would
eliminate the disparity in possible punishment between Rape and other
crimes, and provide equal protection against forcible sexual attack to
all intimate parts of a victim's body.

Further, the bill addresses another emotion issues for victims of sexual
assault, as the victim in the Pena Case did-that some of the current
nomenclature of the penal law does not clearly describe the true nature
of the violence suffered by victims. In the Pena Case, in addition to
rape, the victim suffered a sexual assault that is defined as a "Crimi-
nal. Sexual Act" under the current law. Although the perpetrator was
convicted of this crime, because the term "Criminal Sexual Act" is non-
descriptive, the victim's status as a victim of severe sexual assault
was questioned. To assure the victim's justice, these acts of sexual
assault must be described in a manner that will provide juries, and the
public, a better understanding of the true nature of these crimes. Thus,
this bill amends the penal law such that the acts currently prohibited
by the crimes of Criminal Sexual Acts, in the first, second and third
degrees, are renamed as Anal Rape and Oral Rape, in the first, second
and third degrees, and separates such into new separate sections of the
penal law to address each of these horrific acts.

By providing these new sections of the law which separately define each
of these acts, the bill ensures that if more than one of these acts
occur during the course of sexual assault, each act is treated as
distinct from the other(s). The amendment is significant because it
assures that a convicted perpetrator can be held accountable with the
potential of consecutive sentences for each crime committed during a
sexual assault. Such a concern was raised by the recent Court of Appeals
decision in People v. Alonzo, 16 N.Y.3d 267, which held that the legis-
lative intent to provide for distinct sentences fox separate acts
committed during the commission of a criminal event could be best
evidenced by establishing separate statutes with distinct definitions.
To that end, and rejecting proposals to include all acts of sexual
assault under the definition of Rape, this bill provides separate stat-
utes for each of these criminal acts. Rape, Anal Rape, and Oral Rape
will be stand alone sections of the penal law and make clear to the
courts that the intent of the Legislature is to establish these acts as
separate crimes, so that each crime is eligible, when warranted, for the
more stringent sentence of consecutive prison terms upon conviction.

LEGISLATIVE HISTORY: New Bill.

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE: This act shall take effect ninety days after enactment
and shall apply to offenses committed after the effective date

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

                                 3710--C
    Cal. No. 391

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 12, 2013
                               ___________

Introduced  by  Sens.  YOUNG,  GOLDEN, LANZA, NOZZOLIO -- 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 -- reported  favorably  from
  said  committee  and  committed  to the Committee on Rules -- reported
  favorably from said committee to third reading,  amended  and  ordered
  reprinted,  retaining its place in the order of third reading -- again
  amended and ordered reprinted, retaining its place  in  the  order  of
  third reading

AN ACT to amend the penal law, in relation to the definition of the term
  "sexual  intercourse"  as  such  term  applies to sex offenses; and to
  amend the penal law, the criminal procedure law, the  agriculture  and
  markets  law,  the civil practice law and rules, the family court act,
  the judiciary law and the correction law, in relation to  establishing
  the  crimes  of  anal  rape  and oral rape to replace crimes involving
  criminal sexual acts; and to repeal certain provisions  of  the  penal
  law relating thereto

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

  Section 1. Subdivision 1 of section 130.00 of the penal law is amended
to read as follows:
  1. "Sexual intercourse" [has its ordinary meaning and occurs upon  any
penetration, however slight] MEANS CONDUCT BETWEEN PERSONS CONSISTING OF
CONTACT BETWEEN THE PENIS AND THE VAGINA OR VULVA.
  S 2. 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] ANAL RAPE in the third degree.
  A  person  is  guilty  of [criminal sexual act] ANAL RAPE in the third
degree when:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08888-05-3

S. 3710--C                          2

  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] ANAL RAPE in the third degree is a class E felo-
ny.
  S 3. 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] ANAL RAPE in the second degree.
  A person is guilty of [criminal sexual act] ANAL RAPE  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]  ANAL  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.
  [Criminal  sexual  act]  ANAL  RAPE  in the second degree is a class D
felony.
  S 4. 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] ANAL RAPE in the first degree.
  A person is guilty of [criminal sexual act] ANAL  RAPE  in  the  first
degree  when  he  or she engages in [oral sexual conduct or] anal sexual
conduct with another person:
  1. By forcible compulsion; or
  2. Who is incapable of consent by reason of being physically helpless;
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] ANAL RAPE in the first degree is a class B felo-
ny.
  S 5. The penal law is amended by adding a new section 130.37  to  read
as follows:
S 130.37 ORAL RAPE IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF ORAL RAPE IN THE THIRD DEGREE WHEN:
  1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH A PERSON WHO IS INCA-
PABLE  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 SEXU-
AL CONDUCT WITH A PERSON LESS THAN SEVENTEEN YEARS OLD; OR
  3. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT 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.
  ORAL RAPE IN THE THIRD DEGREE IS A CLASS E FELONY.

S. 3710--C                          3

  S 6. The penal law is amended by adding a new section 130.38  to  read
as follows:
S 130.38 ORAL RAPE IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF ORAL RAPE IN THE SECOND DEGREE WHEN:
  1.  BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXUAL
CONDUCT WITH ANOTHER PERSON LESS THAN FIFTEEN YEARS OLD; OR
  2. HE OR SHE ENGAGES IN ORAL 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 ORAL 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.
  ORAL RAPE IN THE SECOND DEGREE IS A CLASS D FELONY.
  S 7. The penal law is amended by adding a new section 130.39  to  read
as follows:
S 130.39 ORAL RAPE IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY  OF ORAL RAPE IN THE FIRST DEGREE WHEN HE OR SHE
ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON:
  1. BY FORCIBLE COMPULSION; OR
  2. WHO IS INCAPABLE OF CONSENT BY REASON OF BEING PHYSICALLY HELPLESS;
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.
  ORAL RAPE IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 8. Paragraph 2 of 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:
  (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]  ANAL  RAPE  in  the  first
degree);  SUBDIVISIONS  ONE  AND TWO OF SECTION 130.39 (ORAL RAPE 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 such conduct as a sexually motivated felony, where authorized  pursu-
ant to section 130.91 of [the penal law] THIS CHAPTER.
  S  9.  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

S. 3710--C                          4

of such section provided that the underlying crime for the murder charge
is one for which such person  is  criminally  responsible  or  for  such
conduct  as  a  sexually  motivated felony, where authorized pursuant to
section 130.91 of [the penal law] 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); subdivisions one and two of section 130.35 (rape in  the  first
degree);  subdivisions  one  and two of section 130.50 ([criminal sexual
act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION
130.39 (ORAL RAPE 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 10. Paragraph (b) of subdivision 2 of section  35.15  of  the  penal
law,  as  amended by chapter 511 of the laws of 2004, is amended to read
as follows:
  (b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible  [criminal
sexual act] ANAL RAPE, FORCIBLE ORAL RAPE or robbery; or
  S  11.  Paragraph  (b)  of subdivision 4 of section 35.30 of the penal
law, as amended by chapter 264 of the laws of 2003, is amended  to  read
as follows:
  (b)   Effect  the  arrest  of  a  person  who  has  committed  murder,
manslaughter in the first degree, robbery, forcible rape [or],  forcible
[criminal  sexual  act]  ANAL  RAPE  OR FORCIBLE ORAL RAPE and who is in
immediate flight therefrom.
  S 12. Paragraph (a) of subdivision 1 of section  70.02  of  the  penal
law,  as  amended by chapter 320 of the laws of 2006, is 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] ANAL RAPE in
the first degree as defined in section 130.50, ORAL RAPE  IN  THE  FIRST
DEGREE  AS  DEFINED  IN  SECTION  130.39, 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, 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

S. 3710--C                          5

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.
  S 13. Paragraph (c) of subdivision 1 of section  70.02  of  the  penal
law,  as  amended by chapter 405 of the laws of 2010, is amended to read
as follows:
  (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, strangulation in the second degree as defined  in
section  121.12, rape in the second degree as defined in section 130.30,
[criminal sexual act] ANAL RAPE in  the  second  degree  as  defined  in
section  130.45,  ORAL  RAPE  IN THE SECOND DEGREE AS DEFINED IN SECTION
130.38, 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, facilitating a sex offense with a  controlled
substance  as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision 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 14. Paragraph (c) of subdivision 1 of section  70.02  of  the  penal
law,  as amended by chapter 1 of the laws of 2013, is amended to read as
follows:
  (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, strangulation in the second degree as defined  in
section  121.12, rape in the second degree as defined in section 130.30,
[criminal sexual act] ANAL RAPE in  the  second  degree  as  defined  in
section  130.45,  ORAL  RAPE  IN THE SECOND DEGREE AS DEFINED IN SECTION
130.38, 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, facilitating a sex offense with a  controlled

S. 3710--C                          6

substance  as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six,  seven,  eight,
nine  or  ten 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 15. The opening paragraph of subdivision 3 of section 125.25 of  the
penal  law, as amended by chapter 264 of the laws of 2003, is amended to
read as follows:
  Acting either alone or with one or more other persons, he  commits  or
attempts  to  commit  robbery,  burglary, kidnapping, arson, rape in the
first degree, [criminal sexual act] ANAL RAPE in the first degree,  ORAL
RAPE  IN  THE FIRST DEGREE, sexual abuse in the first degree, aggravated
sexual abuse, escape in the  first  degree,  or  escape  in  the  second
degree,  and,  in  the  course of and in furtherance of such crime or of
immediate flight therefrom, he, or another participant, if there be any,
causes the death of a person other than one of the participants;  except
that  in  any prosecution under this subdivision, in which the defendant
was not the only participant in the underlying crime, it is an  affirma-
tive defense that the defendant:
  S  16. 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]  ANAL
RAPE  in  the  first,  second  or  third degree, ORAL RAPE IN THE FIRST,
SECOND OR THIRD DEGREE, sexual abuse in  the  first  degree,  aggravated
sexual  abuse in the first, second, third or fourth degree, or incest in
the first, second or third degree, against a person less  than  fourteen
years old, he or she intentionally causes the death of such person.
  S  17. Subparagraph (vii) of paragraph (a) of subdivision 1 of section
125.27 of the penal law, as amended by chapter 264 of the laws of  2003,
is amended to read as follows:
  (vii)  the  victim was killed while the defendant was in the course of
committing or attempting  to  commit  and  in  furtherance  of  robbery,
burglary  in  the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape  in  the  first
degree,  [criminal  sexual act] ANAL RAPE in the first degree, ORAL RAPE
IN THE FIRST DEGREE, sexual abuse in the first degree, aggravated sexual
abuse in the first degree or escape in  the  first  degree,  or  in  the
course  of  and  furtherance  of  immediate  flight  after committing or
attempting to commit any such crime or in the course of and  furtherance
of  immediate  flight  after attempting to commit the crime of murder in
the second degree; provided however, the victim is not a participant  in
one  of the aforementioned crimes and, provided further that, unless the
defendant's criminal liability under this subparagraph is based upon the
defendant having commanded another person to  cause  the  death  of  the
victim  or  intended  victim  pursuant to section 20.00 of this chapter,
this subparagraph shall not apply where the defendant's criminal liabil-

S. 3710--C                          7

ity is based upon the conduct of another pursuant to  section  20.00  of
this chapter; or
  S  18.  Paragraph  (d) of subdivision 2 of section 130.05 of the penal
law, as amended by chapter 40 of the laws of 2004, is amended to read as
follows:
  (d) Where the offense charged is rape in the third degree  as  defined
in  subdivision  three  of section 130.25, [or criminal sexual act] ANAL
RAPE in the third degree as defined  in  subdivision  three  of  section
130.40, OR ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE
OF  SECTION  130.37,  in  addition to forcible compulsion, circumstances
under which, at the time of the act of intercourse, oral sexual  conduct
or  anal sexual conduct, the victim clearly expressed that he or she did
not consent to engage in such  act,  and  a  reasonable  person  in  the
actor's  situation would have understood such person's words and acts as
an expression of lack of consent to  such  act  under  all  the  circum-
stances.
  S  19.  Paragraph  (h) of subdivision 3 of section 130.05 of the penal
law, as amended by section 2 of part G of chapter 501  of  the  laws  of
2012, 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] ANAL RAPE in the third
degree as defined in section 130.40, ORAL RAPE IN THE  THIRD  DEGREE  AS
DEFINED  IN SECTION 130.37, aggravated sexual abuse in the fourth 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 examination; or
  S  20. 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] ANAL RAPE in the third
degree as defined in section 130.40, ORAL RAPE IN THE  THIRD  DEGREE  AS
DEFINED  IN SECTION 130.37, aggravated sexual abuse in the fourth 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 21. The opening paragraph and subdivision 2 of section 130.95 of the
penal  law,  as added by chapter 107 of the laws of 2006, are amended to
read as follows:
  A person is guilty of predatory sexual assault when he or she  commits
the  crime  of rape in the first degree, [criminal sexual act] ANAL RAPE
in the first degree, ORAL RAPE IN THE FIRST  DEGREE,  aggravated  sexual
abuse  in  the first degree, or course of sexual conduct against a child
in the first degree, as defined in this article, and when:
  2. He or she has engaged in conduct constituting the crime of rape  in
the  first  degree, [criminal sexual act] ANAL RAPE in the first degree,
ORAL RAPE IN THE FIRST DEGREE, aggravated  sexual  abuse  in  the  first
degree, or course of sexual conduct against a child in the first degree,
as defined in this article, against one or more additional persons; or
  S  22.  The  opening  paragraph of section 130.96 of the penal law, as
added by chapter 107 of the laws of 2006, is amended to read as follows:

S. 3710--C                          8

  A person is guilty of predatory sexual assault against a  child  when,
being eighteen years old or more, he or she commits the crime of rape in
the  first  degree, [criminal sexual act] ANAL RAPE in the first degree,
ORAL RAPE IN THE FIRST DEGREE, aggravated  sexual  abuse  in  the  first
degree, or course of sexual conduct against a child in the first degree,
as  defined  in this article, and the victim is less than thirteen years
old.
  S 23. Subdivision 1 of section 235.00 of the penal law, as amended  by
chapter 264 of the laws of 2003, is amended to read as follows:
  1.  "Obscene."  Any  material  or  performance is "obscene" if (a) the
average person, applying contemporary community  standards,  would  find
that  considered  as  a whole, its predominant appeal is to the prurient
interest in sex, and (b) it depicts or describes in a patently offensive
manner, actual or simulated: sexual intercourse, [criminal  sexual  act]
ANAL  RAPE,  ORAL  RAPE,  sexual bestiality, masturbation, sadism, maso-
chism, excretion or lewd exhibition of the genitals, and (c)  considered
as  a  whole, it lacks serious literary, artistic, political, and scien-
tific value. Predominant appeal shall be judged with reference to  ordi-
nary  adults unless it appears from the character of the material or the
circumstances of its dissemination to be designed for children or  other
specially susceptible audience.
  S 24. Subdivision 7 of section 235.00 of the penal law is REPEALED.
  S  25.  Subdivision  2 of section 240.75 of the penal law, as added by
section 2 of part D of chapter 491 of the laws of 2012,  is  amended  to
read as follows:
  2.  A  "specified  offense"  is  an  offense defined in section 120.00
(assault in the third degree); section 120.05  (assault  in  the  second
degree);  section  120.10  (assault in the first degree); section 120.13
(menacing in the first degree); section 120.14 (menacing in  the  second
degree);  section  120.15 (menacing in the third degree); section 120.20
(reckless endangerment in the second degree); section  120.25  (reckless
endangerment  in  the  first  degree);  section  120.45 (stalking in the
fourth degree); section 120.50 (stalking in the third  degree);  section
120.55  (stalking in the second degree); section 120.60 (stalking in the
first degree); section 121.11  (criminal  obstruction  of  breathing  or
blood circulation); section 121.12 (strangulation in the second degree);
section  121.13  (strangulation in the first degree); subdivision one of
section 125.15 (manslaughter in the second degree); subdivision one, two
or four of section 125.20 (manslaughter in the  first  degree);  section
125.25  (murder  in  the  second degree); section 130.20 (sexual miscon-
duct); section 130.30 (rape in the second degree); section 130.35  (rape
in the first degree); section 130.40 ([criminal sexual act] ANAL RAPE in
the  third  degree);  SECTION  130.37  (ORAL  RAPE IN THE THIRD DEGREE);
section 130.45 ([criminal sexual act] ANAL RAPE in the  second  degree);
SECTION 130.38 (ORAL RAPE IN THE SECOND DEGREE); section 130.50 ([crimi-
nal  sexual  act]  ANAL  RAPE in the first degree); SECTION 130.39 (ORAL
RAPE IN THE FIRST DEGREE); section 130.52 (forcible  touching);  section
130.53  (persistent  sexual  abuse); section 130.55 (sexual abuse in the
third degree); section 130.60  (sexual  abuse  in  the  second  degree);
section  130.65  (sexual  abuse  in  the  first  degree); section 130.66
(aggravated sexual abuse in the third degree);  section  130.67  (aggra-
vated  sexual  abuse  in  the second degree); section 130.70 (aggravated
sexual abuse in the first degree); section  130.91  (sexually  motivated
felony);  section  130.95  (predatory  sexual  assault);  section 130.96
(predatory sexual assault against a  child);  section  135.05  (unlawful
imprisonment  in  the second degree); section 135.10 (unlawful imprison-

S. 3710--C                          9

ment in the first  degree);  section  135.60  (coercion  in  the  second
degree);  section  135.65 (coercion in the first degree); section 140.20
(burglary in the third degree); section 140.25 (burglary in  the  second
degree);  section  140.30 (burglary in the first degree); section 145.00
(criminal mischief in  the  fourth  degree);  section  145.05  (criminal
mischief  in the third degree); section 145.10 (criminal mischief in the
second degree); section 145.12 (criminal mischief in the first  degree);
section  145.14 (criminal tampering in the third degree); section 215.50
(criminal contempt in  the  second  degree);  section  215.51  (criminal
contempt  in  the  first  degree);  section  215.52 (aggravated criminal
contempt); section 240.25 (harassment in the first degree);  subdivision
one,  two or four of section 240.30 (aggravated harassment in the second
degree); aggravated family offense as defined in  this  section  or  any
attempt  or conspiracy to commit any of the foregoing offenses where the
defendant and the person against whom the  offense  was  committed  were
members of the same family or household as defined in subdivision one of
section 530.11 of the criminal procedure law.
  S  26.  The  opening  paragraph of section 255.26 of the penal law, as
added by chapter 320 of the laws of 2006, is amended to read as follows:
  A person is guilty of incest in the  second  degree  when  he  or  she
commits  the  crime  of rape in the second degree, as defined in section
130.30 of this part, [or criminal sexual act] ANAL RAPE  in  the  second
degree,  as  defined in section 130.45 of this part, OR ORAL RAPE IN THE
SECOND DEGREE AS DEFINED IN SECTION  130.38  OF  THIS  PART,  against  a
person whom he or she knows to be related to him or her, whether through
marriage or not, as an ancestor, descendant, brother or sister of either
the whole or the half blood, uncle, aunt, nephew or niece.
  S  27.  The  opening  paragraph of section 255.27 of the penal law, as
added by chapter 320 of the laws of 2006, is amended to read as follows:
  A person is guilty of incest in  the  first  degree  when  he  or  she
commits the crime of rape in the first degree, as defined in subdivision
three  or  four of section 130.35 of this part, [or criminal sexual act]
ANAL RAPE in the first degree, as defined in subdivision three  or  four
of  section  130.50  of  this part, OR ORAL RAPE IN THE FIRST DEGREE, AS
DEFINED IN SUBDIVISION THREE OR FOUR OF SECTION  130.39  OF  THIS  PART,
against  a  person  whom  he  or  she knows to be related to him or her,
whether through marriage or not, as an ancestor, descendant, brother  or
sister of either the whole or half blood, uncle, aunt, nephew or niece.
  S  28.  Paragraph (a) of subdivision 17 of section 265.00 of the penal
law, as amended by chapter 264 of the laws of 2003, is amended  to  read
as follows:
  (a)  any  of the following offenses defined in the former penal law as
in force and effect  immediately  prior  to  September  first,  nineteen
hundred sixty-seven: illegally using, carrying or possessing a pistol or
other  dangerous  weapon;  making  or  possessing burglar's instruments;
buying or receiving stolen  property;  unlawful  entry  of  a  building;
aiding  escape  from  prison; that kind of disorderly conduct defined in
subdivisions six and eight of section seven hundred twenty-two  of  such
former penal law; violations of sections four hundred eighty-three, four
hundred  eighty-three-b,  four  hundred  eighty-four-h  and  article one
hundred six of such former penal law; that kind of [criminal sexual act]
ANAL RAPE, ORAL RAPE or rape which  was  designated  as  a  misdemeanor;
violation  of  section  seventeen  hundred  forty-seven-d  and seventeen
hundred forty-seven-e of such former penal law;  any  violation  of  any
provision  of  article thirty-three of the public health law relating to
narcotic drugs which was defined as a misdemeanor by  section  seventeen

S. 3710--C                         10

hundred  fifty-one-a  of such former penal law, and any violation of any
provision of article thirty-three-A of the public health law relating to
depressant and stimulant drugs which was defined  as  a  misdemeanor  by
section seventeen hundred forty-seven-b of such former penal law.
  S  29. Subdivision 3 of section 485.05 of the penal law, as amended by
chapter 405 of the laws of 2010, is amended to read as follows:
  3. A "specified offense" is an offense defined by any of the following
provisions of  this  chapter:  section  120.00  (assault  in  the  third
degree);  section  120.05 (assault in the second degree); section 120.10
(assault in the first degree); section 120.12 (aggravated assault upon a
person less than eleven years old);  section  120.13  (menacing  in  the
first  degree);  section 120.14 (menacing in the second degree); section
120.15 (menacing in the third degree); section 120.20  (reckless  endan-
germent  in the second degree); section 120.25 (reckless endangerment in
the first degree); section 121.12 (strangulation in the second  degree);
section  121.13  (strangulation in the first degree); subdivision one of
section 125.15 (manslaughter in the second degree); subdivision one, two
or four of section 125.20 (manslaughter in the  first  degree);  section
125.25  (murder  in  the second degree); section 120.45 (stalking in the
fourth degree); section 120.50 (stalking in the third  degree);  section
120.55  (stalking in the second degree); section 120.60 (stalking in the
first degree); subdivision one of section  130.35  (rape  in  the  first
degree);  subdivision  one of section 130.50 ([criminal sexual act] ANAL
RAPE in the first degree); SUBDIVISION ONE OF SECTION 130.39 (ORAL  RAPE
IN THE FIRST DEGREE); subdivision one of section 130.65 (sexual abuse in
the  first  degree);  paragraph (a) of subdivision one of section 130.67
(aggravated sexual abuse in the second degree); paragraph (a) of  subdi-
vision  one  of  section  130.70  (aggravated  sexual abuse in the first
degree); section 135.05 (unlawful imprisonment in  the  second  degree);
section  135.10  (unlawful  imprisonment  in  the first degree); section
135.20 (kidnapping in the second degree); section 135.25 (kidnapping  in
the  first  degree);  section  135.60  (coercion  in the second degree);
section 135.65 (coercion in the first degree); section 140.10  (criminal
trespass  in the third degree); section 140.15 (criminal trespass in the
second degree); section 140.17 (criminal trespass in the first  degree);
section  140.20 (burglary in the third degree); section 140.25 (burglary
in the second degree); section 140.30 (burglary in  the  first  degree);
section  145.00 (criminal mischief in the fourth degree); section 145.05
(criminal mischief  in  the  third  degree);  section  145.10  (criminal
mischief in the second degree); section 145.12 (criminal mischief in the
first  degree);  section  150.05  (arson  in the fourth degree); section
150.10 (arson in the third degree); section 150.15 (arson in the  second
degree);  section  150.20  (arson  in  the first degree); section 155.25
(petit larceny); section 155.30 (grand larceny in  the  fourth  degree);
section  155.35  (grand  larceny  in  the  third degree); section 155.40
(grand larceny in the second degree); section 155.42 (grand  larceny  in
the first degree); section 160.05 (robbery in the third degree); section
160.10  (robbery  in  the second degree); section 160.15 (robbery in the
first degree); section 240.25 (harassment in the first degree); subdivi-
sion one, two or four of section 240.30 (aggravated  harassment  in  the
second  degree); or any attempt or conspiracy to commit any of the fore-
going offenses.
  S 30. 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

S. 3710--C                         11

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; 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] ANAL RAPE in the first degree); SUBDIVISIONS ONE
AND TWO OF SECTION 130.39  (ORAL  RAPE  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 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 31. 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
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] ANAL RAPE in the first
degree as defined in subdivision one of section 130.50 of the penal law,
ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE  OF  SECTION
130.39  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  determi-
nation  that  such action be removed to the family court shall, in addi-
tion, 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 prose-
cution; or (iii) possible deficiencies in proof of the crime.
  S 32. Subdivision (a) of section 190.71 of the criminal procedure law,
as amended by chapter 7 of the laws of  2007,  is  amended  to  read  as
follows:
  (a)  Except  as  provided in subdivision six of section 200.20 of this
chapter, a grand jury may not indict (i) a person thirteen years of  age
for any conduct or crime other than conduct constituting a crime defined

S. 3710--C                         12

in  subdivisions  one  and  two  of section 125.25 (murder in the second
degree) or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii) a person  fourteen  or
fifteen years of age for any conduct or crime other than conduct consti-
tuting  a  crime  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; 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] ANAL RAPE in the first degree);  SUBDIVISIONS ONE
AND TWO OF SECTION 130.39  (ORAL  RAPE  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 the penal law; [subdivision four of  section  265.02  of  the
penal  law,  where  such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 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 33. Paragraph (b) of subdivision 1 of section 210.43 of the criminal
procedure law, as amended by chapter 264 of the laws of 2003, is amended
to read as follows:
  (b) with the consent of the district attorney,  order  removal  of  an
action  involving an indictment charging a juvenile offender with 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] ANAL RAPE in the first degree, as
defined in subdivision one of section 130.50 of the penal law; ORAL RAPE
IN THE FIRST DEGREE, AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39  OF
THE  PENAL LAW; or an armed felony as defined in paragraph (a) of subdi-
vision forty-one of section 1.20, to the family court  pursuant  to  the
provisions  of  article seven hundred twenty-five of this chapter if the
court finds one or more of the following factors: (i) mitigating circum-
stances that bear directly upon  the  manner  in  which  the  crime  was
committed;  (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) possi-
ble deficiencies in the proof of the crime, and, after consideration  of
the  factors  set  forth  in  subdivision two of this section, the court
determined that removal of the action to the family court  would  be  in
the interests of justice.
  S  34. Subparagraph (iii) of paragraph (g) of subdivision 5 of section
220.10 of the criminal procedure law, as amended by chapter 264  of  the
laws of 2003, is amended to read as follows:
  (iii)  Where  the  indictment  does  not  charge  a crime specified in
subparagraph (i) of this paragraph, the district attorney may  recommend
removal  of the action to the family court. Upon making such recommenda-
tion the district attorney shall submit a subscribed memorandum  setting

S. 3710--C                         13

forth:  (1) a recommendation that the interests of justice would best be
served by removal of the action to the family  court;  and  (2)  if  the
indictment  charges  a thirteen year old with the crime of murder in the
second degree, or a fourteen or fifteen year old with the crimes of rape
in  the  first degree as defined in subdivision one of section 130.35 of
the penal law, or [criminal sexual act] ANAL RAPE in the first degree as
defined in subdivision one of section 130.50 of the penal law,  OR  ORAL
RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39
OF  THE  PENAL  LAW,  or  an armed felony as defined in paragraph (a) of
subdivision forty-one of section 1.20 of this chapter specific  factors,
one  or  more  of which reasonably supports the recommendation, showing,
(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, that the defendant's participation was rela-
tively minor although not so minor as to constitute  a  defense  to  the
prosecution,  or  (iii)  possible deficiencies in proof of the crime, or
(iv) where the juvenile offender has no previous adjudications of having
committed a designated felony act, as defined in  subdivision  eight  of
section  301.2  of  the  family  court act, regardless of the age of the
offender at the time of commission of the act, that the criminal act was
not part of a pattern of criminal behavior and, in view of  the  history
of the offender, is not likely to be repeated.
  S  35.  Subdivision 6 of section 300.50 of the criminal procedure law,
as amended by chapter 264 of the laws of 2003, is  amended  to  read  as
follows:
  6.  For  purposes  of  this section, the offenses of rape in the third
degree as defined in subdivision three of section 130.25  of  the  penal
law  [and criminal sexual act], ANAL RAPE in the third degree as defined
in subdivision three of section 130.40 of the penal law AND ORAL RAPE IN
THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE OF  SECTION  130.37  OF
THE  PENAL  LAW,  are  not lesser included offenses of rape in the first
degree, [criminal sexual act] ANAL RAPE in the first degree,  ORAL  RAPE
IN THE FIRST DEGREE or any other offense. Notwithstanding the foregoing,
either such offense may be submitted as a lesser included offense of the
applicable  first  degree offense when (i) there is a reasonable view of
the evidence which would support a finding that the defendant  committed
such  lesser  offense  but  did not commit the greater offense, and (ii)
both parties consent to its submission.
  S 36. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 405 of the laws of 2010, 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,
strangulation  in  the second degree as defined in section 121.12 of the
penal law, strangulation in the  first  degree  as  defined  in  section
121.13  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

S. 3710--C                         14

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,  [criminal  sexual act] ANAL RAPE in the third degree as defined in
section 130.40 of the penal law, [criminal sexual act] ORAL RAPE IN  THE
THIRD DEGREE AS DEFINED IN SECTION 130.37 OF THE PENAL LAW, ANAL RAPE in
the second degree as defined in section 130.45 of the penal law, [crimi-
nal  sexual  act]  ORAL  RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION
130.38 OF THE PENAL LAW, ANAL RAPE in the first  degree  as  defined  in
section  130.50  of  the  penal  law,  ORAL  RAPE IN THE FIRST DEGREE AS
DEFINED IN SECTION 130.39 OF THE PENAL LAW, sexual abuse  in  the  first
degree as defined in section 130.65 of the penal law, unlawful imprison-
ment  in the first degree as defined in section 135.10 of the penal law,
kidnapping 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

S. 3710--C                         15

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
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,  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 37. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
procedure law, as amended by chapter 316 of the laws of 2006, is amended
to read as follows:
  (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] ANAL RAPE in the first degree, ORAL RAPE IN  THE  FIRST  DEGREE  or
aggravated sexual abuse, except as provided in subdivision three, or
  S  38.  Subdivision  11  of section 123 of the agriculture and markets
law, as amended by chapter 392 of the laws of 2004 and as renumbered  by
section  18  of  part T of chapter 59 of the laws of 2010, is amended to
read as follows:
  11. The owner shall not be liable pursuant to subdivision six,  seven,
eight,  nine  or ten of this section if the dog was coming to the aid or

S. 3710--C                         16

defense of a person during the commission or attempted commission  of  a
murder, robbery, burglary, arson, rape in the first degree as defined in
subdivision  one  or  two  of section 130.35 of the penal law, [criminal
sexual  act] ANAL RAPE in the first degree as defined in subdivision one
or two of section 130.50 of the penal law, ORAL RAPE IN THE FIRST DEGREE
AS DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.39 OF THE PENAL  LAW
or kidnapping within the dwelling or upon the real property of the owner
of  the  dog  and  the  dog injured or killed the person committing such
criminal activity.
  S 39. Section 213-c of the civil practice law and rules, as  added  by
chapter 3 of the laws of 2006, is amended to read as follows:
  S  213-c.  Action  by  victim  of  conduct constituting certain sexual
offenses. Notwithstanding any other limitation set forth in  this  arti-
cle,  a  civil  claim  or cause of action to recover from a defendant as
hereinafter defined, for physical,  psychological  or  other  injury  or
condition  suffered by a person as a result of acts by such defendant of
rape in the first degree as defined in section 130.35 of the penal  law,
or  [criminal  sexual  act]  ANAL RAPE in the first degree as defined in
section 130.50 of the penal law, OR ORAL RAPE IN  THE  FIRST  DEGREE  AS
DEFINED  IN  SECTION 130.39 OF THE PENAL LAW, or aggravated sexual abuse
in the first degree as defined in section 130.70 of the  penal  law,  or
course  of sexual conduct against a child in the first degree as defined
in section 130.75 of the penal law may be brought within five years.  As
used  in this section, the term "defendant" shall mean only a person who
commits the acts described  in  this  section  or  who,  in  a  criminal
proceeding,  could be charged with criminal liability for the commission
of such acts pursuant to section 20.00 of the penal law  and  shall  not
apply  to  any  related civil claim or cause of action arising from such
acts. Nothing in this section shall be construed to require that a crim-
inal charge be brought or a criminal conviction be obtained as a  condi-
tion  of  bringing a civil cause of action or receiving a civil judgment
pursuant to this section or be construed to  require  that  any  of  the
rules  governing  a  criminal proceeding be applicable to any such civil
action.
  S 40. Paragraph (b) of subdivision 8 of section 215 of the civil prac-
tice law and rules, as added by chapter  3  of  the  laws  of  2006,  is
amended to read as follows:
  (b)  Whenever  it  is  shown  that  a criminal action against the same
defendant has been commenced with respect to  the  event  or  occurrence
from  which  a  claim governed by this section arises, and such criminal
action is for rape in the first degree as defined in section  130.35  of
the penal law, or [criminal sexual act] ANAL RAPE in the first degree as
defined  in  section  130.50 of the penal law, OR ORAL RAPE IN THE FIRST
DEGREE AS DEFINED IN SECTION 130.39 OF  THE  PENAL  LAW,  or  aggravated
sexual  abuse  in  the  first degree as defined in section 130.70 of the
penal law, or course of sexual conduct against  a  child  in  the  first
degree  as  defined  in  section  130.75 of the penal law, the plaintiff
shall have at least five years from  the  termination  of  the  criminal
action as defined in section 1.20 of the criminal procedure law in which
to  commence the civil action, notwithstanding that the time in which to
commence such action has already expired or has less than a year remain-
ing.
  S 41. The opening paragraph of subdivision (b) of section 117  of  the
family  court  act,  as  amended  by  chapter  7 of the laws of 2007, is
amended to read as follows:

S. 3710--C                         17

  For every juvenile delinquency proceeding under article three  involv-
ing  an  allegation of an act committed by a person which, if done by an
adult, would be a crime (i) defined in sections 125.27  (murder  in  the
first  degree); 125.25 (murder in the second degree); 135.25 (kidnapping
in the first degree); or 150.20 (arson in the first degree) of the penal
law committed by a person thirteen, fourteen or fifteen years of age; or
such  conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii)  defined  in  sections
120.10  (assault in the first degree); 125.20 (manslaughter in the first
degree); 130.35 (rape in the first  degree);  130.50  ([criminal  sexual
act]  ANAL  RAPE  in  the  first degree); 130.39 (ORAL RAPE IN THE FIRST
DEGREE); 135.20 (kidnapping in the second degree), but  only  where  the
abduction  involved  the  use or threat of use of deadly physical force;
150.15 (arson in the second degree); or 160.15  (robbery  in  the  first
degree)  of  the  penal  law committed by a person thirteen, fourteen or
fifteen years of age; or such conduct committed as a sexually  motivated
felony,  where  authorized  pursuant to section 130.91 of the penal law;
(iii) defined in the penal law as an attempt to  commit  murder  in  the
first  or second degree or kidnapping in the first degree committed by a
person thirteen, fourteen or fifteen  years  of  age;  or  such  conduct
committed  as  a sexually motivated felony, where authorized pursuant to
section 130.91  of  the  penal  law;  (iv)  defined  in  section  140.30
(burglary  in  the  first  degree);  subdivision  one  of section 140.25
(burglary in the second  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  committed  by  a  person  fourteen  or
fifteen  years of age; or such conduct committed as a sexually motivated
felony, where authorized pursuant to section 130.91 of  the  penal  law;
(v)  defined  in section 120.05 (assault in the second degree) or 160.10
(robbery in the second degree) of the penal law committed  by  a  person
fourteen  or  fifteen years of age but only where there has been a prior
finding by a court that such person  has  previously  committed  an  act
which,  if  committed  by an adult, would be the crime of assault in the
second degree, robbery in the second degree or any designated felony act
specified in clause (i), (ii) or (iii) of this subdivision regardless of
the age of such person at the time of the commission of the  prior  act;
or  (vi)  other than a misdemeanor, committed by a person at least seven
but less than sixteen years of age, but only where there  has  been  two
prior  findings  by the court that such person has committed a prior act
which, if committed by an adult would be a felony:
  S 42. Subdivision 8 of section 301.2  of  the  family  court  act,  as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
  8.  "Designated  felony  act" means an act which, if done by an adult,
would be a crime: (i) defined in sections 125.27 (murder  in  the  first
degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
first  degree);  or  150.20 (arson in the first degree) of the penal law
committed by a person thirteen, fourteen or fifteen  years  of  age;  or
such  conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii)  defined  in  sections
120.10  (assault in the first degree); 125.20 (manslaughter in the first
degree); 130.35 (rape in the first  degree);  130.50  ([criminal  sexual
act]  ANAL  RAPE  in  the  first degree); 130.39 (ORAL RAPE IN THE FIRST
DEGREE); 130.70 (aggravated sexual abuse in the  first  degree);  135.20
(kidnapping  in the second degree) but only where the abduction involved

S. 3710--C                         18

the use or threat of use of deadly physical force; 150.15 (arson in  the
second  degree) or 160.15 (robbery in the first degree) of the penal law
committed by a person thirteen, fourteen or fifteen  years  of  age;  or
such  conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (iii) defined in the  penal
law  as  an  attempt  to  commit murder in the first or second degree or
kidnapping in the first degree committed by a person thirteen,  fourteen
or  fifteen  years of age; or such conduct committed as a sexually moti-
vated felony, where authorized pursuant to section 130.91 of  the  penal
law;  (iv)  defined  in  section  140.30 (burglary in the first degree);
subdivision one of section  140.25  (burglary  in  the  second  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 committed by
a person fourteen or fifteen years of age; or such conduct committed  as
a sexually motivated felony, where authorized pursuant to section 130.91
of  the  penal law; (v) defined in section 120.05 (assault in the second
degree) or 160.10 (robbery in  the  second  degree)  of  the  penal  law
committed  by  a  person fourteen or fifteen years of age but only where
there has been a prior finding by a court that such person has previous-
ly committed an act which, if committed by an adult, would be the  crime
of  assault  in  the  second degree, robbery in the second degree or any
designated felony act specified in paragraph (i), (ii), or (iii) of this
subdivision regardless of the age of such person  at  the  time  of  the
commission  of the prior act; or (vi) other than a misdemeanor committed
by a person at least seven but less than sixteen years of age, but  only
where  there  has  been two prior findings by the court that such person
has committed a prior felony.
  S 43. Subdivision 4 of section 308.1  of  the  family  court  act,  as
amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
follows:
  4. The probation service shall not adjust a case in  which  the  child
has  allegedly committed a delinquent act which would be a crime defined
in section 120.25, (reckless endangerment in the first degree), subdivi-
sion one of section 125.15, (manslaughter in the second degree),  subdi-
vision  one  of  section 130.25, (rape in the third degree), subdivision
one of section 130.40, ([criminal sexual act] ANAL  RAPE  in  the  third
degree),  SUBDIVISION  ONE  OF  SECTION  130.37, (ORAL RAPE IN THE THIRD
DEGREE), subdivision one or two of section 130.65, (sexual abuse in  the
first  degree),  section 135.65, (coercion in the first degree), section
140.20, (burglary in the third degree), section 150.10,  (arson  in  the
third  degree),  section 160.05, (robbery in the third degree), subdivi-
sion two[,] OR three [or four] of section 265.02,  (criminal  possession
of  a  weapon in the third degree), section 265.03, (criminal possession
of a  weapon  in  the  second  degree),  or  section  265.04,  (criminal
possession  of  a dangerous weapon in the first degree) of the penal law
where the child has previously had one or more adjustments of a case  in
which such child allegedly committed an act which would be a crime spec-
ified  in  this subdivision unless it has received written approval from
the court and the appropriate presentment agency.
  S 44. Section 4 of the judiciary law, as amended by chapter 264 of the
laws of 2003, is amended to read as follows:
  S 4. Sittings of courts to be public.  The  sittings  of  every  court
within  this  state shall be public, and every citizen may freely attend
the same, except that  in  all  proceedings  and  trials  in  cases  for

S. 3710--C                         19

divorce,  seduction, abortion, rape, assault with intent to commit rape,
[criminal sexual act] ANAL RAPE, ORAL RAPE, bastardy or  filiation,  the
court  may, in its discretion, exclude therefrom all persons who are not
directly  interested  therein, excepting jurors, witnesses, and officers
of the court.
  S 45. Subdivision 2 of section 120.60 of the penal law, as amended  by
chapter 434 of the laws of 2000, is amended to read as follows:
  2. commits a class A misdemeanor defined in article one hundred thirty
of  this chapter, or a class E felony defined in section 130.25, 130.37,
130.40 or 130.85 of this chapter, or a class D felony defined in section
130.30, 130.38 or 130.45 of this chapter.
  S 46. Subdivision 3 of section 720.10 of the criminal  procedure  law,
as  amended  by  chapter  264 of the laws of 2003, is amended to read as
follows:
  3. Notwithstanding the provisions of subdivision two, a youth who  has
been  convicted  of  an  armed  felony  offense  or of rape in the first
degree, [criminal sexual act] ANAL RAPE in the first degree,  ORAL  RAPE
IN  THE  FIRST DEGREE or aggravated sexual abuse is an eligible youth if
the court determines that one or more of the  following  factors  exist:
(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 prose-
cution. Where the court determines that the eligible youth is a youthful
offender, the court shall make a statement on the record of the  reasons
for  its  determination, a transcript of which shall be forwarded to the
state division of criminal justice services, to be  kept  in  accordance
with  the provisions of subdivision three of section eight hundred thir-
ty-seven-a of the executive law.
  S 47. Paragraph (a) of subdivision 2 of section 30.10 of the  criminal
procedure law, as amended by chapter 467 of the laws of 2008, is amended
to read as follows:
  (a) A prosecution for a class A felony, or rape in the first degree as
defined  in  section  130.35 of the penal law, OR ANAL RAPE IN THE FIRST
DEGREE AS DEFINED IN SECTION 130.50 OF THE PENAL LAW, OR  ORAL  RAPE  IN
THE  FIRST  DEGREE  AS  DEFINED IN SECTION 130.39 OF THE PENAL LAW, or a
crime [defined or] formerly defined in section 130.50 of the penal  law,
or  aggravated  sexual  abuse  in the first degree as defined in section
130.70 of the penal law, or course of sexual conduct against a child  in
the  first  degree  as defined in section 130.75 of the penal law may be
commenced at any time;
  S 48. 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  120.70,  130.20,  130.25, 130.30, 130.37,
130.38, 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, 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  subdivision  two  of
section 230.30, or section 230.32 or 230.33 of the penal law, or

S. 3710--C                         20

  S  49.  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  130.35,  130.39,  130.50,  130.65,  130.66,
130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law, or
  S  50.  This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to any offense on or after such effec-
tive date. As it pertains to the repealed sections of  law,  nothing  in
this  act shall affect a requirement to register pursuant to article 6-C
of the correction law; a lawfully required disclosure of  a  conviction;
any restriction or prohibition for certain types of employment, housing,
or  government  benefit;  or  any  other  ongoing  matter  related  to a
conviction of the sections repealed in this act.

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