senate Bill S3767A

2013-2014 Legislative Session

Enacts the "witness protection and gang violence reduction act of 2014"; 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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Mar 06, 2014 print number 3767a
amend and recommit to codes
Jan 08, 2014 referred to codes
Feb 14, 2013 referred to codes

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S3767 - Bill Details

See Assembly Version of this Bill:
A9023
Current Committee:
Law Section:
Penal Law
Laws Affected:
Rpld §265.08, amd Pen L, generally; amd §§50.10, 190.40, 60.35, 700.05 & 710.20, CP L

S3767 - Bill Texts

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Enacts the "witness protection and gang violence reduction act of 2014"; establishes the class A-I felony of aggravated enterprise corruption for the commission of enterprise corruption entailing the commission of A and B felonies; enhances crimes related to gang assault; establishes the class C felony of coercion in the first degree for coercion committed upon a person under sixteen years of age, or at a school or upon or near a school bus; expands the offenses related to tampering with a witness, and intimidating a victim or witness; enhances the offenses related to obstructing governmental administration; limits the scope of the granting of immunity from criminal prosecution; expands the scope of criminal use of a firearm; provides that prior contradictory statements in a criminal proceeding shall constitute evidence in chief.

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BILL NUMBER:S3767

TITLE OF BILL: An act to amend the penal law, in relation to
aggravated enterprise corruption, gang assault, coercion, tampering
with a witness, intimidating a victim or witness, obstructing
governmental administration, criminal use of a firearm, sexually
motivated felonies and hate crimes; to amend the criminal procedure
law, in relation to compulsion of evidence by offer of immunity, prior
contradictory statements, warrants for eavesdropping and video
surveillance and motions to suppress evidence; and to repeal section
265.08 of the penal law relating to criminal use of a firearm in the
second degree

PURPOSE OR GENERAL IDEA OF BILL: This bill offers a measured response
to the proliferation of gang-related crimes, and to witness
intimidation and tampering. As a statutory deterrent to more dangerous
and organized gangs, the bill establishes the crime of Aggravated
Enterprise Corruption, a class A-1 felony, to punish any individual
who commits the existing crime of Enterprise Corruption where two or
more pattern acts constitute class A or B felonies. To counter
gang-related violence further, the bill establishes the crime of Gang
Assault in the Third Degree, which punishes the intentional infliction
of physical injury on another while aided by two or more persons
actually present, as a class D felony. It also creates a statutory
deterrent to those criminals who seek to prevent the detection and
prosecution of their offenses by enhancing the penalties for those
convicted of threatening or intimidating witnesses, and creating new
crimes to prevent anyone from wrongfully inducing witnesses to
withhold information, or give false information, during the
investigation of crimes. Consistent with the longstanding policy of
New York State to ensure that school grounds remain safe zones and in
response to the encroachment upon those areas by gang members, the
bill also amends the crime of Coercion in the First Degree to punish
individuals who either coerce victims less than 16 years old, or do so
on or near school grounds. To further aid the investigation and
prosecution of gangs, this proposal confronts an issue specific to New
York law that provides witnesses complete, or "transactional" immunity
for any crime they testify about in the Viand jury, replacing it with
the constitutional "use" immunity standard. Finally, consistent with
New York's ongoing efforts to stem the criminal use of firearms, this
proposal updates the Criminal Use of a Firearm statutes with a single
revised provision that would add significant penalties for possessing
a firearm during and in relation to the commission of a drug
trafficking felony or violent felony offense.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 gives the title of the bill.

Section 2 adds a new section 460.23 (Aggravated enterprise corruption)
to the Penal Law.

Section 3 adds a new section 120.05-a (Gang assault in the third
degree) to the Penal Law. Section 4 amends section 135.60 of the Penal
Law.

Section 5 amends section 135.65 of the Penal Law


Section 6 adds a new section 135.67 to the Penal Law.

Section 7 adds a new section 215.09 to the Penal Law. Section 8 amends
section 215.10 of the Penal Law. Section 9 amends section 215.11 of
the Penal Law. Section 10 amends section 215.12 of the Penal Law.

Section 11 amends section 215.15 of the Penal Law. Section 12 amends
section 215.16 of the Penal Law. Section 13 adds section 195.03 to the
Penal Law. Section 14 amends section 195.05 of the Penal Law.

Section 15 amends subsection section 195.07 of the Penal Law.

Section 16 amends subdivision 1 of section 50.10 of the Criminal
Procedure Law. Section 17 amends section 190.40 of the Criminal
Procedure Law.

Section 18 Repeals section 265.08 of the Penal Law. Section 19 amends
section 265.09 of the Penal Law.

Section 20 amends subdivision 2 of section 60.35 of the Criminal
Procedure Law. Section 21 amends subdivision B of section 700.05 of
the Criminal Procedure Law. Section 22 amends subdivision I of section
70.02 of the Penal Law.

Section 23 amends subdivision 2 of section 130.91 of the Penal Law.

Section 24 amends section 70.25 of the Penal Law, by adding
subdivisions 2-h and 2-i.

Section 25 amends subdivision 6 and 7 of section 710.20 of the
Criminal Procedure Law.

Section 26 amends subdivision 3 of section 485.05 of the Penal Law.

Section 27 establishes the effective date.

JUSTIFICATION: Gangs in New York cause a disproportionate amount of
harm to communities across the state. Unfortunately, what makes the
job of combating gangs and keeping the public safe even more difficult
is the proliferation of witness tampering and other forms of
obstruction of justice in New York, which have become epidemic and
which have no simple solution.

Although we have taken some legislative steps in recent years to
attack the problem, we need additional tools to be effective,
particularly with respect to witness tampering and intimidation.
Violent criminals in New York are well aware that cases regularly go
by the wayside because witnesses are dissuaded from testifying, either
through threats of violence or other corrupt persuasion. And witnesses
are in regular fear of cooperating for fear of retribution.

Two snapshots from recent cases illustrate the problem.

In the first case, four victims were murdered at a restaurant. One
witness came forward to identify the shooter. Within 72 hours of the
prosecutor turning over the witness statement to defense counsel,


multiple copies of the statement had been posted on the walls of a
store two blocks from witness's home and on streetlight poles.

In the second case, a defendant was incarcerated awaiting trial on
robbery and attempted murder charges. He provided his co-conspirators
with the address for a witness that he obtained from medical records
provided as part of pretrial discovery. The co-conspirators went to
the address and shot and killed the witness's mother and shot and
wounded two of the witness's nephews. A search of the defendant's jail
cell yielded the discovery materials provided to defense counsel,
including the witness's medical records indicating he had been
discharged to his mother's care and providing her name and address.

These cases did not happen in New York City. The first case is from
Erie County, and the second occurred in Onondaga County. And while
there are countless cases from the five boroughs, witness tampering
and gang violence clearly impact every county in New York State.
Indeed, what was once considered an inner-city epidemic has, in the
last decade, included a shift to our upstate communities.

In addition to drugs and weapons, gangs impact society in less
obvious, but no less harmful ways. One need only look at the
significant negative impact of witness intimidation and witness
tampering to see one way that gangs have disenfranchised entire
communities.

This bill is designed to reduce gang violence and restore fundamental
rights to all of our neighborhoods using a multipronged approach:

Enterprise Corruption

The crime of Enterprise Corruption, does not currently recognize the
seriousness of the narcotics trafficking and violent gang activity
that underlies the activity to which this bill is directed. If the
crime involves drug dealing or violence, Enterprise Corruption,
involving patterns of criminal activity by criminal enterprises, is
currently only a class B non-violent felony. If the crimes that
comprise the pattern are themselves class A or B felonies, the crime
should be elevated to a class A-I felony, which this bill would
accomplish.

Gang Assault

The existing gang assault statutes can only be applied when a gang
causes "serious physical injury" to another person. Serious physical
injury is defined in the penal law as "physical injury which creates a
substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily organ."
The only difference between Gang Assault in the Second Degree and Gang
Assault in the First Degree is the degree of injury the perpetrator
intended to cause, though the crimes only apply if they actually cause
serious physical injury.

Serious physical injury is a surprisingly high legal standard. The
Court has found that a gunshot wound did not constitute serious
physical injury People v. Nimmons, 95 AD3d 1360 (2nd Dept. 2012); a


broken nose requiring reconstructive surgery did not constitute
serious physical injury People v. Brown, 952 NYS 2d 828 (3rd Dept.
2012); and even a knife slashing which caused a 12-inch-long, 2 to
3-inch-deep wound across the abdomen, did not constitute serious
physical injury People v. Rosado, 88 AD3d 454 (1st Dept. 2011).

Given the fact that serious physical injury is such a high standard,
it is clear that gang assaults that most people would consider quite
serious would not be judged by legal standards as meeting that
threshold. The reality is that assaults committed by gangs - in
connection with gang initiation activities or day-to-day intimidation
and enforcement - may well result in what is merely classified as
"physical injury" to the victim, defined as "impairment of physical
condition or substantial pain." Yet even if committed by a gang,
current law only defines this crime as a misdemeanor. It is
nonsensical that a gang shooting, in which the victim is, in fact,
shot, should be a misdemeanor. This proposal creates a class D felony
of Gang Assault in the Third Degree, to close the current hole in the
law when a gang intentionally causes physical injury to another
person.

Coercion.

This bill will create a degree of coercion that specifies greater
penalties for those who threaten or coerce individuals who are less
than 16 years old or do so while on school grounds. Gang recruitment
and witness intimidation and coercion not only involves young people,
but often occurs on school grounds. The increased penalties proposed
by this legislation will provided added support and protection for the
youth of our state.

Tampering with a Witness and Intimidating a Victim or Witness

Under current law, it is necessary for an "action or proceeding" to be
pending before the offense of Witness Tampering can be charged. If an
individual who witnessed a crime is coerced to withhold information or
give false information to law enforcement authorities at the early
stages of an investigation, no avenue currently exists to prosecute
those who attempt such corrupt persuasion. Under current law, someone
could effectively prevent the prosecution of a crime without being
held responsible for this interference. The requirement that an action
or proceeding must have already commenced in order for witness
tampering to have occurred is inconsistent with the penal sanctions
regarding evidence tampering, which prohibit tampering with physical
evidence in either a current or prospective investigation. This
anomaly in the statutory scheme fails to provide a sufficient
deterrent to interference with individuals cooperating with law
enforcement authorities and, therefore, jeopardizes the integrity of
prosecutors' cases and general safety. It should, therefore, be
illegal to interfere with a witness in a prospective investigation.

Additionally, Tampering with a Witness in the Second and Third
Degrees, as well as Intimidating a Victim or Witness in the Second and
Third Degrees, are each elevated one level in order to appropriately
penalize these serious crimes.

Obstructing Governmental Administration


Existing law fails to address a prevalent problem in the
administration of justice - cases where individuals or groups
intentionally endeavor to halt the progression of a governmental
action or investigation. Under the current crime of Obstructing
Governmental Administration, such intentional behavior is simply not a
crime. Instead, an individual may be prosecuted under that statute (a
class A misdemeanor) only if such an attempt is accompanied by the use
of intimidation, physical force, or physical interference.

Moreover, the scope of the available felony, Obstructing Governmental
Administration in the First Degree, is far too narrow; it solely
applies to "interfering with a telecommunications system thereby
causing serious physical injury to another person." In short, if an
individual interferes in a government investigation, but does not
cause serious physical injury by interfering with a telecommunications
system, the most that individual could be charged with is a
misdemeanor. Creating a class A misdemeanor base crime of
intentionally impairing or perverting the administration of law or
another government function, and elevating the existing laws to class
E and D felonies, would appropriately promote the administration of
justice while also creating a sufficient deterrent to those who would
engage in such conduct in the future.

Immunity

When witnesses testify in front of a grand jury, unless they are
willing to sign a waiver, New York State law (CPL § 190.40) provides
them with immunity from criminal prosecution for any crime about which
they testify. This is a fay too broad approach to the right against
self-incrimination guaranteed by the federal and state constitutions.

Under current law, a problem arises when prosecutors bring witnesses
in front of the grand jury, as typically happens, without full
knowledge of who all of the involved parties are, or in what manner
they are involved. If prosecutors mistakenly think someone is not
involved or is minimally involved in a crime and call them into the
grand jury without a waiver of immunity, and that individual goes on
to testify about a litany of crimes that they actually committed,
prosecutors are completely barred from pursuing, criminal sanctions
for that individual as relates to those crimes. In some cases,
prosecutors have been completely taken by surprise and have
unintentionally given immunity to murderers or other violent
criminals.

Notably, in gang prosecutions, the transactional immunity rule acts as
a deterrent to grand juries' fully investigating crimes, for fear of
inadvertently causing a miscarriage of justice. Thus, prosecutors
often refrain from presenting the testimony of individuals present at
the scene of gang shootings or who might otherwise have knowledge of
the participants in the crime for fear of inadvertently granting a
"free pass" to someone who ought to otherwise be charged with a crime,
even if there is evidence completely independent of that witness's
grand jury testimony. The result is that the grand jury, which by law
and tradition has the "right to every person's evidence," in reality,
falls short of that ideal.


The Constitution does not require that the dilemma be resolved the way
New York has resolved it. In some other states, if a person testifies
about a crime in the grand jury, the prosecutor is barred from using
any testimony that the person gives against them or any fruit of that
testimony. But if a prosecutor can independently prove the crime
without using any evidence derived from the grand jury testimony, the
prosecutor can bring the criminal to justice. This is the difference
between New York's law, which gives transactional immunity and the
laws of the federal government and most other states, which grant only
use immunity.

Gun Crimes

When firearms enter into a criminal scenario, it increases the
potential for a lethal outcome. Federal law recognizes that, and,
under 18 USC § 924(c), it penalizes the possession, display, or use of
a firearm during and in relation to crimes of violence or drug
trafficking, and provide for significant mandatory consecutive jail
time. At the state level, we must acknowledge that firearms
substantially change the nature of violent crimes, which are so often
associated with drug trafficking crimes. While existing law attempts
to address this issue through FL §§ 265.08 and 265.09 (Criminal Use of
a Firearm in the First Degree and Criminal Use of a Firearm in the
Second Degree), because these laws only apply to class B and C Violent
Felonies, respectively, most crimes simply do not fall under the
statutes, making their utility extremely limited. The reality is that
any crime, but particularly a Violent Felony Offense or a Drug
Trafficking Felony, becomes immeasurably more volatile when firearms
are present. In recognition of this fact, this proposal seeks to
leverage and simplify the existing Criminal Use of a Firearm statutes
to cover all Violent Felony Offenses and Drug Trafficking Felonies,
providing a mandatory consecutive five-year sentence when a
perpetrator commits a qualifying offense while in possession of a
firearm. A sentencing judge, under limited circumstances, would have
the discretion to impose less than the mandatory minimum consecutive
sentence.

Conspiracy

Conspiracy is an agreement among two or more people to commit a crime,
as long as an overt act in furtherance is also committed by one of the
participants. With respect to Violent Felony Offenses, an incongruity
arises in that the law treats conspiracy to commit such crimes only as
a non-violent felony. For example, conspiracy to commit Rape in the
First Degree or Murder in the First or Second Degrees is currently a
class B (non-violent) felony, not subject to the sentencing
requirements of a Violent Felony Offense. The result is that a plot to
kill another could result in an indeterminate prison term of as little
as one to three years, when the societal harm from such violent
agreements is much worse. The bill corrects this incongruity by makes
conspiracy to commit a Violent Felony Offense itself a Violent Felony
Offense.

Inconsistent Sworn Testimony

Under current law, when a witness testifies at trial in a manner that
is inconsistent with a prior sworn statement made by him, the prior


inconsistent statement is admissible only to impeach the witness.
Even though the prior statement was sworn, and the witness is present
and subject to cross-examination, the prior statement may not be used
as substantive evidence. The unfortunate result is that defendants may
intimidate witnesses into changing their prior sworn statements
without consequence to the case to which the statement relates,
because the prior statement may not serve as affirmative evidence of
guilt. This bill changes. CPL . 60.35 to make clear that prior
inconsistent statements, as long as they are made under oath and the
witness is testifying, constitute evidence in chief. Importantly, this
rule is not limited to the prosecution, but applies to witnesses
called by either side. This provision would not only immeasurably
improve gang prosecutions, but would also address a similar, and
equally pervasive, problem in domestic violence cases.

FISCAL IMPLICATIONS: None to the State

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

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

                                  3767

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 14, 2013
                               ___________

Introduced  by  Sen.  KLEIN  -- 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  aggravated  enterprise
  corruption,  gang  assault, coercion, tampering with a witness, intim-
  idating a victim or witness, obstructing governmental  administration,
  criminal  use  of  a  firearm,  sexually  motivated  felonies and hate
  crimes; to amend the criminal procedure law, in relation to compulsion
  of evidence by offer  of  immunity,  prior  contradictory  statements,
  warrants  for  eavesdropping  and  video  surveillance  and motions to
  suppress evidence; and to repeal  section  265.08  of  the  penal  law
  relating to criminal use of a firearm in the second degree

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

  Section 1. Short title. This shall be known and may be  cited  as  the
"witness protection and gang violence reduction act of 2013".
  S  2.  The penal law is amended by adding a new section 460.23 to read
as follows:
S 460.23 AGGRAVATED ENTERPRISE CORRUPTION.
  A PERSON IS GUILTY OF AGGRAVATED ENTERPRISE CORRUPTION WHEN HE OR  SHE
COMMITS THE CRIME OF ENTERPRISE CORRUPTION, AS DEFINED IN SECTION 460.20
OF  THIS ARTICLE, AND TWO OR MORE OF THE ACTS THAT CONSTITUTE HIS OR HER
PATTERN OF CRIMINAL ACTIVITY ARE EITHER A CLASS A OR CLASS B FELONY, AND
AT LEAST ONE SUCH ACT IS A VIOLENT FELONY OFFENSE, AS DEFINED IN  SUBDI-
VISION ONE OF SECTION 70.02 OF THIS CHAPTER OR A CLASS A-I FELONY.
  AGGRAVATED ENTERPRISE CORRUPTION IS A CLASS A-I FELONY.
  S 3. The penal law is amended by adding a new section 120.05-a to read
as follows:
S 120.05-A GANG ASSAULT IN THE THIRD DEGREE.
  A  PERSON IS GUILTY OF GANG ASSAULT IN THE THIRD DEGREE WHEN, WITH THE
INTENT TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON AND WHEN AIDED BY  TWO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05859-03-3

S. 3767                             2

OR  MORE  PERSONS  ACTUALLY PRESENT, HE OR SHE CAUSES PHYSICAL INJURY TO
SUCH PERSON OR TO A THIRD PERSON.
  GANG ASSAULT IN THE THIRD DEGREE IS A CLASS D FELONY.
  S  4.  The section heading, opening paragraph and closing paragraph of
section 135.60 of the penal law, as amended by chapter 426 of  the  laws
of 2008, are amended to read as follows:
Coercion in the [second] THIRD degree.
  A person is guilty of coercion in the [second] THIRD degree when he or
she  compels  or  induces a person to engage in conduct which the latter
has a legal right to abstain from engaging in, or to abstain from engag-
ing in conduct in which he or she  has  a  legal  right  to  engage,  or
compels  or  induces  a person to join a group, organization or criminal
enterprise which such latter person has a right to abstain from joining,
by means of instilling in him or her a fear that, if the demand  is  not
complied with, the actor or another will:
  Coercion in the [second] THIRD degree is a class A misdemeanor.
  S  5.  The section heading, opening paragraph and closing paragraph of
section 135.65 of the penal law, as amended by chapter 426 of  the  laws
of 2008, are amended to read as follows:
Coercion in the [first] SECOND degree.
  A person is guilty of coercion in the [first] SECOND degree when he or
she  commits  the  crime  of  coercion in the [second] THIRD degree, and
when:
  Coercion in the [first] SECOND degree is a class D felony.
  S 6. The penal law is amended by adding a new section 135.67  to  read
as follows:
S 135.67 COERCION IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY  OF COERCION IN THE FIRST DEGREE WHEN HE OR SHE,
BEING EIGHTEEN YEARS OLD OR OLDER, COMMITS THE CRIME OF COERCION IN  THE
SECOND DEGREE, AS DEFINED IN SECTION 135.65 OF THIS ARTICLE, AND:
  1. THE VICTIM OF SUCH CRIME IS LESS THAN SIXTEEN YEARS OLD; OR
  2.  THE  CRIME  IS COMMITTED IN OR UPON A BUILDING OR GROUNDS USED FOR
EDUCATIONAL PURPOSES, OR ANY SCHOOL, COLLEGE OR  UNIVERSITY  OR  UPON  A
SCHOOL  BUS,  AS DEFINED IN SECTION ONE HUNDRED FORTY-TWO OF THE VEHICLE
AND TRAFFIC LAW, OR ON ANY PUBLIC SIDEWALK, STREET, PARKING  LOT,  PARK,
PLAYGROUND  OR PRIVATE LAND LOCATED IMMEDIATELY ADJACENT TO THE BOUNDARY
LINE OF SUCH SCHOOL OR SCHOOL BUS.
  COERCION IN THE FIRST DEGREE IS A CLASS C FELONY.
  S 7. The penal law is amended by adding a new section 215.09  to  read
as follows:
S 215.09 TAMPERING WITH A WITNESS IN THE FIFTH DEGREE.
  A  PERSON  IS  GUILTY  OF TAMPERING WITH A WITNESS IN THE FIFTH DEGREE
WHEN, KNOWING OR BELIEVING THAT  ANOTHER  PERSON  POSSESSES  INFORMATION
RELATING  TO A CRIMINAL TRANSACTION AND OTHER THAN IN THE COURSE OF THAT
CRIMINAL TRANSACTION OR IMMEDIATE FLIGHT THEREFROM, HE OR SHE:
  1. WRONGFULLY INDUCES OR ATTEMPTS  TO  INDUCE  SUCH  OTHER  PERSON  TO
REFRAIN  FROM  COMMUNICATING  SUCH INFORMATION TO ANY COURT, GRAND JURY,
PROSECUTOR, POLICE OFFICER OR PEACE OFFICER; OR
  2. KNOWINGLY MAKES ANY FALSE STATEMENT OR  PRACTICES  ANY  FRAUD  WITH
INTENT  TO HINDER, DELAY OR PREVENT COMMUNICATION OF INFORMATION RELATED
TO A CRIMINAL TRANSACTION TO ANY COURT, GRAND JURY,  PROSECUTOR,  POLICE
OFFICER OR PEACE OFFICER FROM SUCH PERSON.
  TAMPERING WITH A WITNESS IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
  S  8. Section 215.10 of the penal law, the section heading and closing
paragraph as amended by chapter 664 of the laws of 1982, is  amended  to
read as follows:

S. 3767                             3

S 215.10 Tampering with a witness in the fourth degree.
  A  person  is  guilty of tampering with a witness IN THE FOURTH DEGREE
when, knowing that a person is or is about to be called as a witness  in
an action or proceeding, [(a)] he OR SHE:
  1.  wrongfully  induces  or  attempts  to induce such person to absent
himself OR HERSELF from, or otherwise to avoid or seek to avoid  appear-
ing or testifying at, such action or proceeding[,]; or
  [(b) he] 2. knowingly makes any false statement or practices any fraud
or deceit with intent to affect the testimony of such person.
  Tampering  with a witness in the fourth degree is a class [A misdemea-
nor] E FELONY.
  S 9. The closing paragraph of section 215.11  of  the  penal  law,  as
added by chapter 664 of the laws of 1982, is amended to read as follows:
  Tampering with a witness in the third degree is a class [E] D felony.
  S  10.  The  closing  paragraph of section 215.12 of the penal law, as
added by chapter 664 of the laws of 1982, is amended to read as follows:
  Tampering with a witness in the second degree is a class [D] C felony.
  S 11.  The closing paragraph of section 215.15 of the  penal  law,  as
added by chapter 667 of the laws of 1985, is amended to read as follows:
  Intimidating  a victim or witness in the third degree is a class [E] D
felony.
  S 12. The closing paragraph of section 215.16 of  the  penal  law,  as
added by chapter 667 of the laws of 1985, is amended to read as follows:
  Intimidating a victim or witness in the second degree is a class [D] C
felony.
  S  13. The penal law is amended by adding a new section 195.03 to read
as follows:
S 195.03 OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF OBSTRUCTING GOVERNMENTAL ADMINISTRATION  IN  THE
THIRD DEGREE WHEN HE OR SHE INTENTIONALLY OBSTRUCTS, IMPAIRS OR PERVERTS
THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION, OR PREVENTS OR
ATTEMPTS  TO  PREVENT A PUBLIC SERVANT FROM PERFORMING AN OFFICIAL FUNC-
TION.
  OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE IS A CLASS
A MISDEMEANOR.
  S 14. Section 195.05 of the penal law, as amended by  chapter  269  of
the laws of 1998, is amended to read as follows:
S 195.05 Obstructing governmental administration in the second degree.
  A  person  is guilty of obstructing governmental administration IN THE
SECOND DEGREE  when  he  OR  SHE  intentionally  obstructs,  impairs  or
perverts  the  administration  of  law or other governmental function or
prevents or attempts to prevent a  public  servant  from  performing  an
official function, by means of intimidation, physical force or interfer-
ence,  or  by  means  of  any independently unlawful act, or by means of
interfering, whether or not physical  force  is  involved,  with  radio,
telephone, television or other telecommunications systems owned or oper-
ated  by  the  state, or a county, city, town, village, fire district or
emergency medical service or by means of releasing  a  dangerous  animal
under circumstances evincing the actor's intent that the animal obstruct
governmental administration.
  Obstructing  governmental  administration  IN  THE  SECOND DEGREE is a
class [A misdemeanor] E FELONY.
  S 15. Section 195.07 of the penal law, as added by chapter 956 of  the
laws of 1984, is amended to read as follows:
S 195.07 Obstructing governmental administration in the first degree.

S. 3767                             4

  A  person  is guilty of obstructing governmental administration in the
first degree when he OR SHE commits the  crime  of  obstructing  govern-
mental administration in the second degree [by means of interfering with
a telecommunications system], AS DEFINED IN SECTION 195.05 OF THIS ARTI-
CLE, thereby causing serious physical injury to another person.
  Obstructing governmental administration in the first degree is a class
[E] D felony.
  S  16. Subdivision 1 of section 50.10 of the criminal procedure law is
amended to read as follows:
  1. ["Immunity."  A person who has been a witness in a  legal  proceed-
ing,  and  who cannot, except as otherwise provided in this subdivision,
be convicted of any offense or subjected to any  penalty  or  forfeiture
for  or  on account of any transaction, matter or thing concerning which
he  gave  evidence  therein,  possesses   "immunity"   from   any   such
conviction,] "IMMUNITY", WHEN CONFERRED ON A WITNESS IN A LEGAL PROCEED-
ING,  MEANS  THAT  NEITHER  THE  EVIDENCE  GIVEN BY THAT WITNESS NOR ANY
EVIDENCE DERIVED DIRECTLY OR INDIRECTLY FROM IT MAY BE USED AGAINST  HIM
OR HER IN THE SAME OR ANY OTHER CRIMINAL PROCEEDING OR IN THE IMPOSITION
OF  ANY penalty or forfeiture.  A person who possesses such immunity may
nevertheless be convicted of perjury as a result of having  given  false
testimony  in such legal proceeding, and may be convicted of or adjudged
in contempt as  a  result  of  having  contumaciously  refused  to  give
evidence therein.
  S  17.  Section  190.40  of  the  criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
  3. A WITNESS WHO GIVES EVIDENCE IN A GRAND JURY  PROCEEDING,  AND  WHO
THEREBY  RECEIVES  IMMUNITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION,
SHALL NOT THEREAFTER BE  INDICTED  BY  THAT  SAME  GRAND  JURY  FOR  ANY
OFFENSE,  EXCEPT  (A)  WHERE  SUCH OFFENSE IS PERJURY OR CONTEMPT, AS TO
WHICH PROSECUTION IS AUTHORIZED BY SECTION 50.10 OF THIS CHAPTER; OR (B)
WHERE THE EVIDENCE GIVEN BY THE WITNESS CONSISTS ONLY OF BOOKS,  PAPERS,
RECORDS  OR  OTHER  PHYSICAL  EVIDENCE  OF  AN ENTERPRISE, AS DEFINED IN
SUBDIVISION ONE OF SECTION 175.00 OF THE PENAL LAW, AND ANY IMMUNITY THE
WITNESS RECEIVES RESULTS SOLELY FROM HIS OR HER POSSESSION OF  A  PRIVI-
LEGE  AGAINST  SELF-INCRIMINATION  WITH  RESPECT TO THE ACT OF PRODUCING
SUCH EVIDENCE. NOTHING IN THIS SUBDIVISION SHALL PRECLUDE ANOTHER  GRAND
JURY  IN THE SAME OR ANY OTHER COUNTY FROM CHARGING THE WITNESS WITH ANY
OFFENSE BASED UPON OTHER EVIDENCE WHOSE USE AGAINST THE WITNESS  IS  NOT
BARRED  BY THE IMMUNITY HE OR SHE HAS RECEIVED BY GIVING EVIDENCE BEFORE
THE FIRST GRAND JURY.
  S 18. Section 265.08 of the penal law is REPEALED.
  S 19. Section 265.09 of the penal law, as amended by  chapter  650  of
the  laws  of 1996, subdivision 2 as amended by chapter 1 of the laws of
2013, is amended to read as follows:
S 265.09 Criminal use of a firearm [in the first degree].
  (1) A person is guilty of criminal use of  a  firearm  [in  the  first
degree]  when he OR SHE commits any [class B] violent felony offense, as
defined in [paragraph (a) of] subdivision one of section 70.02  OF  THIS
CHAPTER,  OR  A DRUG TRAFFICKING FELONY OFFENSE and, WHILE IN THE COURSE
OF OR FURTHERANCE OF SUCH VIOLENT FELONY  OFFENSE  OR  DRUG  TRAFFICKING
FELONY OFFENSE, he OR SHE either:
  (a)  possesses  a  [deadly]  LOADED weapon[, if the weapon is a loaded
weapon from which a shot, readily capable of producing  death  or  other
serious injury may be discharged]; or
  (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.

S. 3767                             5

  Criminal use of a firearm [in the first degree] is a class B felony.
  (2)  [Sentencing.] FOR THE PURPOSES OF THIS SECTION, "DRUG TRAFFICKING
FELONY OFFENSE" MEANS CRIMINAL POSSESSION OF A CONTROLLED  SUBSTANCE  IN
THE  THIRD DEGREE AS DEFINED IN SUBDIVISION ONE, TWO, THREE, FOUR, FIVE,
SIX OR SEVEN OF SECTION 220.16, USE OF A CHILD TO  COMMIT  A  CONTROLLED
SUBSTANCE  OFFENSE  AS  DEFINED  IN  SECTION  220.28, CRIMINAL SALE OF A
CONTROLLED SUBSTANCE IN THE FIFTH DEGREE AS DEFINED IN  SECTION  220.31,
CRIMINAL  SALE OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE AS DEFINED
IN SECTION 220.34, CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE  THIRD
DEGREE  AS  DEFINED  IN  SECTION  220.39,  CRIMINAL SALE OF A CONTROLLED
SUBSTANCE IN THE SECOND DEGREE AS DEFINED IN  SECTION  220.41,  CRIMINAL
SALE OF A CONTROLLED SUBSTANCE IN THE FIRST DEGREE AS DEFINED IN SECTION
220.43,  CRIMINAL  SALE  OF  A  CONTROLLED  SUBSTANCE  IN OR NEAR SCHOOL
GROUNDS AS DEFINED IN SECTION 220.44,  CRIMINAL  SALE  OF  A  CONTROLLED
SUBSTANCE  TO A CHILD AS DEFINED IN SECTION 220.48, UNLAWFUL MANUFACTURE
OF METHAMPHETAMINE IN THE SECOND DEGREE AS DEFINED  IN  SECTION  220.74,
UNLAWFUL  MANUFACTURE  OF METHAMPHETAMINE IN THE FIRST DEGREE AS DEFINED
IN SECTION 220.75, OR OPERATING AS A  MAJOR  TRAFFICKER  AS  DEFINED  IN
SECTION 220.77 OF THIS CHAPTER.
  (3) Notwithstanding any other provision of law to the contrary, when a
person  is  convicted of criminal use of a firearm [in the first degree]
as defined in subdivision one of this section, the court shall impose an
additional consecutive DETERMINATE  sentence  OF  IMPRISONMENT  of  five
years to the sentence imposed on the underlying [class B violent] felony
offense  [where  the  person  convicted  of such crime displays a loaded
weapon from which a shot, readily capable of producing  death  or  other
serious  injury  may  be discharged, in furtherance of the commission of
such crime], provided, however, that such additional sentence OF  IMPRI-
SONMENT  shall  not be imposed if the court, having regard to the nature
and circumstances of the crime and to the history and character  of  the
defendant, finds on the record that such additional consecutive sentence
would  be  unduly  harsh  and  that  not imposing such sentence would be
consistent with the public safety and would not deprecate  the  serious-
ness  of  the  crime.  Notwithstanding any other provision of law to the
contrary, the aggregate of the five year consecutive term  OF  IMPRISON-
MENT imposed pursuant to this subdivision and [the] (A) ANY minimum term
of  [the]  AN  indeterminate  sentence, OR (B) THE TERM OF A DETERMINATE
SENTENCE, imposed on the underlying [class  B  violent]  felony  OFFENSE
shall  constitute  the  new aggregate minimum term OR TERMS of imprison-
ment, and a person subject to such term shall be required to  serve  the
entire  aggregate  minimum  term  OR TERMS and shall not be eligible for
release on parole or conditional release during such term. This subdivi-
sion shall not apply  where  the  defendant's  [criminal  liability  for
displaying a loaded weapon from which a shot, readily capable of produc-
ing  death  or other serious injury may be discharged, in furtherance of
the commission of crime] COMMISSION OF THE OFFENSE DEFINED  IN  SUBDIVI-
SION  ONE OF THIS SECTION is based on the conduct of another pursuant to
section 20.00 of this chapter.
  S 20. Subdivision 2 of section 60.35 of the criminal procedure law  is
amended to read as follows:
  2.  Evidence  concerning  a  prior  contradictory statement introduced
pursuant to subdivision one [may be received only  for  the  purpose  of
impeaching  the credibility of the witness with respect to his testimony
upon the subject, and does not  constitute  evidence  in  chief.    Upon
receiving  such evidence at a jury trial, the court must so instruct the
jury] OF THIS SECTION CONSTITUTES EVIDENCE IN CHIEF.

S. 3767                             6

  S 21. 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, GANG ASSAULT IN THE THIRD
DEGREE  AS DEFINED IN SECTION 120.05-A OF THE PENAL LAW, GANG ASSAULT IN
THE SECOND DEGREE AS DEFINED IN SECTION 120.06 OF THE  PENAL  LAW,  GANG
ASSAULT  IN  THE  FIRST DEGREE AS DEFINED IN SECTION 120.07 OF THE PENAL
LAW, reckless endangerment in the first degree  as  defined  in  section
120.25  of  the  penal  law,  promoting  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  negli-
gent homicide as defined in section 125.10 of the penal law, manslaught-
er  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 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 in the third degree
as  defined  in  section 130.40 of the penal law, criminal sexual act in
the second degree as defined in section 130.45 of the penal law,  crimi-
nal  sexual  act in the first degree as defined in section 130.50 of the
penal law, sexual abuse in the first degree as defined in section 130.65
of the penal law, unlawful imprisonment 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] SECOND degree as defined in section 135.65 of  the  penal
law,  COERCION  IN  THE FIRST DEGREE AS DEFINED IN SECTION 135.67 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

S. 3767                             7

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 counter-
feiting 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 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, issu-
ing  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 mort-
gage 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,  residential  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 contra-
band 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, TAMPERING WITH A WITNESS IN THE
FOURTH DEGREE AS DEFINED IN SECTION 215.10 OF THE  PENAL LAW,  TAMPERING
WITH  A  WITNESS IN THE THIRD DEGREE AS DEFINED IN SECTION 215.11 OF THE
PENAL LAW, TAMPERING WITH A WITNESS IN THE SECOND DEGREE AS  DEFINED  IN
SECTION  215.12  OF THE PENAL LAW, TAMPERING WITH A WITNESS IN THE FIRST
DEGREE AS DEFINED IN SECTION 215.13 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

S. 3767                             8

section 265.04 of the penal law, manufacture, transport, disposition and
defacement of weapons and dangerous instruments 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 weap-
ons, or failure to disclose the origin  of  a  recording  in  the  first
degree as defined in section 275.40 of the penal law;
  S  22.  Subdivision 1 of section 70.02 of the penal law, as separately
amended by chapters 764 and 765 of the laws of 2005,  paragraph  (a)  as
amended  by  chapter  320 of the laws of 2006, paragraphs (b) and (c) as
amended by chapter 1 of the laws of 2013 and paragraph (d) as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
  1. Definition of a violent felony offense. A violent felony offense is
a class B violent felony offense, a class C violent  felony  offense,  a
class  D  violent  felony  offense, or a class E violent felony offense,
defined as follows:
  (a) Class B violent felony offenses: an attempt to  commit  the  class
A-I  [felonies]  FELONY  of  murder  in  the second degree as defined in
section 125.25, kidnapping in the first degree  as  defined  in  section
135.25[, and] OR arson in the first degree as defined in section 150.20;
manslaughter  in  the  first degree as defined in section 125.20, aggra-
vated manslaughter in the first degree as  defined  in  section  125.22,
rape  in  the first degree as defined in section 130.35, criminal sexual
act in the first degree as defined in section 130.50, aggravated  sexual
abuse in the first degree as defined in section 130.70, course of sexual
conduct  against  a  child  in  the  first  degree as defined in section
130.75; assault in the  first  degree  as  defined  in  section  120.10,
kidnapping  in  the second degree as defined in section 135.20, burglary
in the first degree as defined in section 140.30, arson  in  the  second
degree  as  defined  in  section  150.15, robbery in the first degree as
defined in section 160.15, 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 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, TAMPERING WITH A  WITNESS
IN  THE FIRST DEGREE AS DEFINED IN SECTION 215.13, 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] OR criminal use of
a chemical weapon or biological weapon in the third degree as defined in
section 490.47; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN  THIS
PARAGRAPH.
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  manslaughter  in  the second degree as defined in section 125.21,
aggravated sexual abuse in the  second  degree  as  defined  in  section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, assault on a
judge as defined in section 120.09, gang assault in the second degree as
defined  in section 120.06, strangulation in the first degree as defined
in section 121.13, COERCION IN THE FIRST DEGREE AS  DEFINED  IN  SECTION

S. 3767                             9

135.67,  burglary  in  the  second  degree as defined in section 140.25,
robbery in the second degree as defined  in  section  160.10,  TAMPERING
WITH A WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION 215.12, INTIM-
IDATING  A  VICTIM OR WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION
215.16, criminal possession of a weapon in the second degree as  defined
in  section  265.03,  [criminal use of a firearm in the second degree as
defined in section 265.08,] criminal sale of a  firearm  in  the  second
degree as defined in section 265.12, criminal sale of a firearm with the
aid  of  a  minor  as  defined  in  section  265.14, aggravated criminal
possession of a weapon as  defined  in  section  265.19,  soliciting  or
providing support for an act of terrorism in the first degree as defined
in  section  490.15,  hindering  prosecution  of terrorism in the second
degree as defined in section 490.30, [and] OR criminal possession  of  a
chemical  weapon  or biological weapon in the third degree as defined in
section 490.37; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN  THIS
PARAGRAPH.
  (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, GANG ASSAULT IN THE THIRD DEGREE AS DEFINED  IN  SECTION
120.05-A,  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 in the second degree as defined in section 130.45,
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,  eight,
nine  or  ten of section 265.02, criminal sale of a firearm in the third
degree as defined in section 265.11, TAMPERING WITH  A  WITNESS  IN  THE
THIRD  DEGREE  AS  DEFINED  IN  SECTION 215.11, intimidating a victim or
witness in the [second] THIRD degree  as  defined  in  section  [215.16]
215.15,  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] OR aggravated unpermitted use of indoor pyro-
technics in the first degree as defined in section 405.18; OR A CONSPIR-
ACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.
  (d) Class E violent felony offenses: an attempt to commit any  of  the
felonies  of  criminal  possession  of  a  weapon in the third degree as
defined in subdivision five, six, seven or eight of section 265.02 as  a
lesser  included offense of that section as defined in section 220.20 of
the criminal procedure law[,]; persistent sexual  abuse  as  defined  in
section  130.53, aggravated sexual abuse in the fourth degree as defined
in section 130.65-a, falsely reporting an incident in the second  degree
as  defined in section 240.55 [and] OR placing a false bomb or hazardous
substance in the second degree  as  defined  in  section  240.61;  OR  A
CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.

S. 3767                            10

  S  23. Subdivision 2 of section 130.91 of the penal law, as amended by
chapter 405 of the laws of 2010, is amended to read as follows:
  2.  A  "specified  offense"  is a felony offense defined by any of the
following provisions of this chapter: assault in the  second  degree  as
defined  in  section  120.05,  assault in the first degree as defined in
section 120.10, GANG ASSAULT IN THE THIRD DEGREE AS DEFINED  IN  SECTION
120.05-A,  gang  assault  in  the  second  degree  as defined in section
120.06, gang assault in the first degree as defined in  section  120.07,
stalking in the first degree as defined in section 120.60, strangulation
in  the second degree as defined in section 121.12, strangulation in the
first degree as defined in section 121.13, manslaughter  in  the  second
degree  as defined in subdivision one of section 125.15, manslaughter in
the first degree as defined in section  125.20,  murder  in  the  second
degree  as  defined  in  section 125.25, aggravated murder as defined in
section 125.26, murder in the first degree as defined in section 125.27,
kidnapping in the second degree as defined in section 135.20, kidnapping
in the first degree as defined in section 135.25, burglary in the  third
degree  as  defined  in section 140.20, burglary in the second degree as
defined in section 140.25, burglary in the first degree  as  defined  in
section 140.30, arson in the second degree as defined in section 150.15,
arson  in  the first degree as defined in section 150.20, robbery in the
third degree as defined in section 160.05, robbery in the second  degree
as  defined in section 160.10, robbery in the first degree as defined in
section 160.15, promoting prostitution in the second degree  as  defined
in section 230.30, promoting prostitution in the first degree as defined
in section 230.32, compelling prostitution as defined in section 230.33,
disseminating indecent material to minors in the first degree as defined
in  section 235.22, use of a child in a sexual performance as defined in
section 263.05, promoting an obscene sexual performance by  a  child  as
defined  in section 263.10, promoting a sexual performance by a child as
defined in section 263.15, or any felony attempt or conspiracy to commit
any of the foregoing offenses.
  S 24. Section 70.25 of the penal law is  amended  by  adding  two  new
subdivisions 2-h and 2-i to read as follows:
  2-H. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
FOURTH  DEGREE AS DEFINED IN SECTION 215.10, TAMPERING WITH A WITNESS IN
THE THIRD DEGREE AS DEFINED IN SECTION 215.11, TAMPERING WITH A  WITNESS
IN  THE  SECOND  DEGREE  AS  DEFINED IN SECTION 215.12, TAMPERING WITH A
WITNESS IN THE FIRST DEGREE AS DEFINED IN SECTION 215.13 OF  THIS  CHAP-
TER,  OR ANY ATTEMPT TO COMMIT ANY OF SUCH OFFENSE, RELATING TO A CRIMI-
NAL PROCEEDING, AND SUCH PERSON IS ALSO CONVICTED OF AN OFFENSE  CHARGED
IN SUCH CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
  2-I. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
FIFTH  DEGREE  AS  DEFINED  IN  SECTION  215.09  OF THIS CHAPTER, OR ANY
ATTEMPT TO COMMIT SUCH OFFENSE RELATING TO A  CRIMINAL  PROCEEDING,  AND
SUCH  PERSON  IS  ALSO  CONVICTED  OF AN OFFENSE THAT IS CHARGED IN SUCH
CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
  S 25. The opening paragraph and subdivisions 6 and 7 of section 710.20
of the criminal procedure law, the opening paragraph and  subdivision  6
as amended by chapter 8 of the laws of 1976, subdivision 6 as renumbered
by chapter 481 of the laws of 1983 and subdivision 7 as added by chapter
744 of the laws of 1988, are amended and a new subdivision 8 is added to
read as follows:
  Upon motion of a defendant who (a) is aggrieved by unlawful or improp-
er acquisition of evidence and has reasonable cause to believe that such
may  be  offered  against  him  in a criminal action, or (b) claims that

S. 3767                            11

improper identification testimony may be offered against him in a crimi-
nal action, OR (C) CLAIMS THAT EVIDENCE AS TO THE USE OF WHICH HE OR SHE
POSSESSES IMMUNITY MAY BE OFFERED AGAINST  HIM  OR  HER  IN  A  CRIMINAL
PROCEEDING, a court may, under circumstances prescribed in this article,
order  that such evidence be suppressed or excluded upon the ground that
it:
  6.  Consists of potential testimony regarding an  observation  of  the
defendant  either  at the time or place of the commission of the offense
or upon some other occasion relevant to the case, which potential testi-
mony would not be admissible upon the prospective trial of  such  charge
owing  to an improperly made previous identification of the defendant by
the prospective witness[.]; OR
  7. Consists of information obtained by means of a pen register or trap
and trace device installed or used in violation  of  the  provisions  of
article seven hundred five of this [chapter.] TITLE; OR
  8. CONSISTS OF POTENTIAL EVIDENCE AS TO THE USE OF WHICH THE DEFENDANT
POSSESSES  IMMUNITY.  WHERE  THE DEFENDANT ESTABLISHES THAT IMMUNITY HAD
BEEN CONFERRED UPON HIM OR HER THE PEOPLE MUST THEN ESTABLISH, BEYOND  A
REASONABLE  DOUBT,  THAT  ANY  EVIDENCE WHICH THEY PROPOSE TO USE IN THE
INSTANT ACTION DOES NOT CONSIST OF AND  WAS  NOT  DERIVED,  DIRECTLY  OR
INDIRECTLY,  FROM  THE  EVIDENCE  AS  TO  WHICH  SUCH  IMMUNITY HAD BEEN
CONFERRED.
  S 26.  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 120.05-A
(GANG  ASSAULT IN THE THIRD DEGREE); SECTION 120.06 (GANG ASSAULT IN THE
SECOND DEGREE); SECTION 120.07  (GANG  ASSAULT  IN  THE  FIRST  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 endangerment 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  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 subdivision 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]  THIRD  degree); section 135.65 (coercion in the [first] SECOND
degree); SECTION 135.67 (COERCION IN THE FIRST DEGREE);  section  140.10
(criminal  trespass in the third degree); section 140.15 (criminal tres-
pass in the second degree); section 140.17  (criminal  trespass  in  the
first  degree);  section  140.20 (burglary in the third degree); section

S. 3767                            12

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); subdivision one, two or  four  of  section  240.30
(aggravated harassment in the second degree); or any attempt or conspir-
acy to commit any of the foregoing offenses.
  S  27.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it  shall  have  become  a  law;  provided,
however,  that  if  the amendments to subdivision 2 of section 265.09 of
the penal law, made by chapter 1 of the laws of  2013,  shall  not  have
taken  effect on or before such effective date, then section nineteen of
this act shall take effect on the same date and in the  same  manner  as
such  amendments; and provided, further, that if the amendments to para-
graphs (b) and (c) of subdivision 1 of section 70.02 of the  penal  law,
made by chapter 1 of the laws of 2013, shall not have taken effect on or
before  such  effective  date, then section twenty-two of this act shall
take effect on the same date and in the same manner as such amendments.

S3767A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A9023
Current Committee:
Law Section:
Penal Law
Laws Affected:
Rpld §265.08, amd Pen L, generally; amd §§50.10, 190.40, 60.35, 700.05 & 710.20, CP L

S3767A (ACTIVE) - Bill Texts

view summary

Enacts the "witness protection and gang violence reduction act of 2014"; establishes the class A-I felony of aggravated enterprise corruption for the commission of enterprise corruption entailing the commission of A and B felonies; enhances crimes related to gang assault; establishes the class C felony of coercion in the first degree for coercion committed upon a person under sixteen years of age, or at a school or upon or near a school bus; expands the offenses related to tampering with a witness, and intimidating a victim or witness; enhances the offenses related to obstructing governmental administration; limits the scope of the granting of immunity from criminal prosecution; expands the scope of criminal use of a firearm; provides that prior contradictory statements in a criminal proceeding shall constitute evidence in chief.

view sponsor memo
BILL NUMBER:S3767A

TITLE OF BILL: An act to amend the penal law, in relation to
aggravated enterprise corruption, gang assault, coercion, tampering
with a witness, intimidating a victim or witness, obstructing
governmental administration, criminal use of a firearm, sexually
motivated felonies and hate crimes; to amend the criminal procedure
law, in relation to compulsion of evidence by offer of immunity, prior
contradictory statements, warrants for eavesdropping and video
surveillance and motions to suppress evidence; and to repeal section
265.08 of the penal law relating to criminal use of a firearm in the
second degree

PURPOSE OR GENERAL IDEA OF BILL: This bill offers a measured response
to the proliferation of gang-related crimes, and to witness
intimidation and tampering. As a statutory deterrent to more dangerous
and organized gangs, the bill establishes the crime of Aggravated
Enterprise Corruption, a class A-1 felony, to punish any individual
who commits the existing crime of Enterprise Corruption where two or
more pattern acts constitute class A or B felonies. To counter
gang-related violence further, the bill establishes the crime of Gang
Assault in the Third Degree, which punishes the intentional infliction
of physical injury on another while aided by two or more persons
actually present, as a class D felony. It also creates a statutory
deterrent to those criminals who seek to prevent the detection and
prosecution of their offenses by enhancing the penalties for those
convicted of threatening or intimidating witnesses, and creating new
crimes to prevent anyone from wrongfully inducing witnesses to
withhold information, or give false information, during the
investigation of crimes. Consistent with the longstanding policy of
New York State to ensure that school grounds remain safe zones and in
response to the encroachment upon those areas by gang members, the
bill also amends the crime of Coercion in the First Degree to punish
individuals who either coerce victims less than 16 years old, or do so
on or near school grounds. To further aid the investigation and
prosecution of gangs, this proposal confronts an issue specific to New
York law that provides witnesses complete, or "transactional" immunity
for any crime they testify about in the grand jury, replacing it with
the constitutional "use" immunity standard. Finally, consistent with
New York's ongoing efforts to stem the criminal use of firearms, this
proposal updates the Criminal Use of a Firearm statutes with a single
revised provision that would add significant penalties for possessing
a firearm during and in relation to the commission of a drug
trafficking felony or violent felony offense.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 gives the title of the bill.

Section 2 adds a new section 460.23 (Aggravated enterprise corruption)
to the Penal Law.

Section 3 adds a new section 120.05-a (Gang assault in the third
degree) to the Penal Law.

Section 4 amends section 135.60 of the Penal Law.

Section 5 amends section 135.65 of the Penal Law Section 6 adds a new
section 135.67 to the Penal Law.


Section 7 adds a new section 215.09 to the Penal Law.

Section 8 amends section 215.10 of the Penal Law.

Section 9 amends section 215.11 of the Penal Law.

Section 10 amends section 215.12 of the Penal Law.

Section 11 amends section 215.15 of the Penal Law.

Section 12 amends section 215.16 of the Penal Law.

Section 13 adds section 195.03 to the Penal Law.

Section 14 amends section 195.05 of the Penal Law.

Section 15 amends subsection section 195.07 of the Penal Law.

Section 16 amends subdivision 1 of section 50.10 of the Criminal
Procedure Law.

Section 17 amends section 190.40 of the Criminal Procedure Law.

Section 18 Repeals section 265.08 of the Penal Law.

Section 19 amends section 265.09 of the Penal Law.

Section 20 amends subdivision 2 of section 60.35 of the Criminal
Procedure Law.

Section 21 amends subdivision 8 of section 700.05 of the Criminal
Procedure Law.

Section 22 amends subdivision 1 of section 70.02 of the Penal Law.

Section 23 amends subdivision 2 of section 130.91 of the Penal Law.

Section 24 amends section 70.25 of the Penal Law, by adding
subdivisions 2-h and 2-i.

Section 25 amends subdivision 6 and 7 of section 710.20 of the
Criminal Procedure Law.

Section 26 amends subdivision 3 of section 485.05 of the Penal Law.

Section 27 establishes the effective date.

JUSTIFICATION: Gangs in New York cause a disproportionate amount of
harm to communities across the state. Unfortunately, what makes the
job of combating gangs and keeping the public safe even more difficult
is the proliferation of witness tampering and other forms of
obstruction of justice in New York, which have become epidemic and
which have no simple solution.

Although we have taken some legislative steps in recent years to
attack the problem, we need additional tools to be effective,
particularly with respect to witness tampering and intimidation.


Violent criminals in New York are well aware that cases regularly go
by the wayside because witnesses are dissuaded from testifying, either
through threats of violence or other corrupt persuasion. And witnesses
are in regular fear of cooperating for fear of retribution.

Two snapshots from recent cases illustrate the problem.

In the first case, four victims were murdered at a restaurant. One
witness came forward to identify the shooter. Within 72 hours of the
prosecutor turning over the witness statement to defense counsel,
multiple copies of the statement had been posted on the walls of a
store two blocks from witness's home and on streetlight poles. In the
second case, a defendant was incarcerated awaiting trial on robbery
and attempted murder charges. He provided his co-conspirators with the
address for a witness that he obtained from medical records provided
as part of pretrial discovery. The co-conspirators went to the address
and shot and killed the witness's mother and shot and wounded two of
the witness's nephews. A search of the defendant's jail cell yielded
the discovery materials provided to defense counsel, including the
witness's medical records indicating he had been discharged to his
mother's care and providing her name and address.

These cases did not happen in New York City. The first case is from
Erie County, and the second occurred in Onondaga County. And while
there are countless cases from the five boroughs, witness tampering
and gang violence clearly impact every county in New York State.
Indeed, what was once considered an inner-city epidemic has, in the
last decade, included a shift to our upstate communities.

In addition to drugs and weapons, gangs impact society in less
obvious, but no less harmful ways. One need only look at the
significant negative impact of witness intimidation and witness
tampering to see one way that gangs have disenfranchised entire
communities.

This bill is designed to reduce gang violence and restore fundamental
rights to all of our neighborhoods using a multipronged approach:

Enterprise Corruption

The crime of Enterprise Corruption, does not currently recognize the
seriousness of the narcotics trafficking and violent gang activity
that underlies the activity to which this bill is directed. If the
crime involves drug dealing or violence, Enterprise Corruption,
involving patterns of criminal activity by criminal enterprises, is
currently only a class B non-violent felony. If the crimes that
comprise the pattern are themselves class A or B felonies, the crime
should be elevated to a class A-I felony, which this bill would
accomplish.

Gang Assault

The existing gang assault statutes can only be applied when a gang
causes "serious physical injury" to another person. Serious physical
injury is defined in the penal law as "physical injury which creates a
substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or


protracted loss or impairment of the function of any bodily organ."
The only difference between Gang Assault in the Second Degree and Gang
Assault in the First Degree is the degree of injury the perpetrator
intended to cause, though the crimes only apply if they actually cause
serious physical injury.

Serious physical injury is a surprisingly high legal standard. The
Court has found that a gunshot wound did not constitute serious
physical injury People v. Nimmons, 95 AD3d 1360 (2nd Dept. 2012); a
broken nose requiring reconstructive surgery did not constitute
serious physical injury People v. Brown, 952 NYS 2d 828 (3rd Dept.
2012); and even a knife slashing which caused a 12-inch-long, 2 to
3-inch-deep wound across the abdomen, did not constitute serious
physical injury People v. Rosado, 88 AD3d 454 (1st Dept. 2011).

Given the fact that serious physical injury is such a high standard,
it is clear that gang assaults that most people would consider quite
serious would not be judged by legal standards as meeting that
threshold. The reality is that assaults committed by gangs - in
connection with gang initiation activities or day-to-day intimidation
and enforcement may well result in what is merely classified as
"physical injury" to the victim, defined as "impairment of physical
condition or substantial pain." Yet even if committed by a gang,
current law only defines this crime as a misdemeanor. It is
nonsensical that a gang shooting, in which the victim is, in fact,
shot, should be a misdemeanor. This proposal creates a class D felony
of Gang Assault in the Third Degree, to close the current hole in the
law when a gang intentionally causes physical injury to another
person.

Coercion.

This bill will create a degree of coercion that specifies greater
penalties for those who threaten or coerce individuals who are less
than 16 years old or do so while on school grounds. Gang recruitment
and witness intimidation and coercion not only involves young people,
but often occurs on school grounds. The increased penalties proposed
by this legislation will provided added support and protection for the
youth of our state.

Tampering with a Witness and Intimidating a Victim or Witness

Under current law, it is necessary for an "action or proceeding" to be
pending before the offense of Witness Tampering can be charged. If an
individual who witnessed a crime is coerced to withhold information or
give false information to law enforcement authorities at the early
stages of an investigation, no avenue currently exists to prosecute
those who attempt such corrupt persuasion. Under current law, someone
could effectively prevent the prosecution of a crime without being
held responsible for this interference. The requirement that an action
or proceeding must have already commenced in order for witness
tampering to have occurred is inconsistent with the penal sanctions
regarding evidence tampering, which prohibit tampering with physical
evidence in either a current or prospective investigation. This
anomaly in the statutory scheme fails to provide a sufficient
deterrent to interference with individuals cooperating with law
enforcement authorities and, therefore, jeopardizes the integrity of


prosecutors' cases and general safety. It should, therefore, be
illegal to interfere with a witness in a prospective investigation.

Additionally, Tampering with a Witness in the Second and Third
Degrees, as well as Intimidating a Victim or Witness in the Second and
Third Degrees, are each elevated one level in order to appropriately
penalize these serious crimes.

Obstructing Governmental Administration

Existing law fails to address a prevalent problem in the
administration of justice - cases where individuals or groups
intentionally endeavor to halt the progression of a governmental
action or investigation. Under the current crime of Obstructing
Governmental Administration, such intentional behavior is simply not a
crime. Instead, an individual may be prosecuted under that statute (a
class A misdemeanor) only if such an attempt is accompanied by the use
of intimidation, physical force, or physical interference.

Moreover, the scope of the available felony, Obstructing Governmental
Administration in the First Degree, is far too narrow; it solely
applies to "interfering with a telecommunications system thereby
causing serious physical injury to another person." In short, if an
individual interferes in a government investigation, but does not
cause serious physical injury by interfering with a telecommunications
system, the most that individual could be charged with is a
misdemeanor. Creating a class A misdemeanor base crime of
intentionally impairing or perverting the administration of law or
another government function, and elevating the existing laws to class
E and D felonies, would appropriately promote the administration of
justice while also creating a sufficient deterrent to those who would
engage in such conduct in the future.

Immunity

When witnesses testify in front of a grand jury, unless they are
willing to sign a waiver, New York State law (CPL § 190.40) provides
them with immunity from criminal prosecution for any crime about which
they testify. This is a fay too broad approach to the right against
self-incrimination guaranteed by the federal and state constitutions.

Under current law, a problem arises when prosecutors bring witnesses
in front of the grand jury, as typically happens, without full
knowledge of who all of the involved parties are, or in what manner
they are involved. If prosecutors mistakenly think someone is not
involved or is minimally involved in a crime and call them into the
grand jury without a waiver of immunity, and that individual goes on
to testify about a litany of crimes that they actually committed,
prosecutors are completely barred from pursuing, criminal sanctions
for that individual as relates to those crimes. In some cases,
prosecutors have been completely taken by surprise and have
unintentionally given immunity to murderers or other violent
criminals.

Notably, in gang prosecutions, the transactional immunity rule acts as
a deterrent to grand juries' fully investigating crimes, for fear of
inadvertently causing a miscarriage of justice. Thus, prosecutors


often refrain from presenting the testimony of individuals present at
the scene of gang shootings or who might otherwise have knowledge of
the participants in the crime for fear of inadvertently granting a
"free pass" to someone who ought to otherwise be charged with a crime,
even if there is evidence completely independent of that witness's
grand jury testimony. The result is that the grand jury, which by law
and tradition has the "right to every person's evidence," in reality,
falls short of that ideal.

The Constitution does not require that the dilemma be resolved the way
New York has resolved it. In some other states, if a person testifies
about a crime in the grand jury, the prosecutor is barred from using
any testimony that the person gives against them or any fruit of that
testimony. But if a prosecutor can independently prove the crime
without using any evidence derived from the grand jury testimony, the
prosecutor can bring the criminal to justice. This is the difference
between New York's law, which gives transactional immunity and the
laws of the federal government and most other states, which grant.
only use immunity.

Gun Crimes

When firearms enter into a criminal scenario, it increases the
potential for a lethal outcome. Federal law recognizes that, and,
under 18 USC § 924(c), it penalizes the possession, display, or use of
a firearm during and in relation to crimes of violence or drug
trafficking, and provide for significant mandatory consecutive jail
time. At the state level, we must acknowledge that firearms
substantially change the nature of violent crimes, which are so often
associated with drug trafficking crimes. While existing law attempts
to address this issue through FL §§ 265.08 and 265.09 (Criminal Use of
a Firearm in the First Degree and Criminal Use of a Firearm in the
Second Degree), because these laws only apply to class B and C Violent
Felonies, respectively, most crimes simply do not fall under the
statutes, making their utility extremely limited. The reality is that
any crime, but particularly a Violent Felony Offense or a Drug
Trafficking Felony, becomes immeasurably more volatile when firearms
are present. In recognition of this fact, this proposal seeks to
leverage and simplify the existing Criminal Use of a Firearm statutes
to cover all Violent Felony Offenses and Drug Trafficking Felonies,
providing a mandatory consecutive five-- year sentence when a
perpetrator commits a qualifying offense while in possession of a
firearm. A sentencing judge, under limited circumstances, would have
the discretion to impose less than the mandatory minimum consecutive
sentence.

Conspiracy

Conspiracy is an agreement among two or more people to commit a crime,
as long as an overt act in furtherance is also committed by one of the
participants. With respect to Violent Felony Offenses, an incongruity
arises in that the law treats conspiracy to commit such crimes only as
a non-violent felony. For example, conspiracy to commit Rape in the
First Degree or Murder in the First or Second Degrees is currently a
class B (non-violent) felony, not subject to the sentencing
requirements of a Violent Felony Offense. The result is that a plot to
kill another could result in an indeterminate prison term of as little


as one to three years, when the societal harm from such violent
agreements is much worse. The bill corrects this incongruity by makes
conspiracy to commit a Violent Felony Offense itself a Violent Felony
Offense.

Inconsistent Sworn Testimony

Under current law, when a witness testifies at trial in a manner that
is inconsistent with a prior sworn statement made by him, the prior
inconsistent statement is admissible only to impeach the witness.
Even though the prior statement was sworn, and the witness is present
and subject to cross-examination, the prior statement may not be used
as substantive evidence. The unfortunate result is that defendants may
intimidate witnesses into changing their prior sworn statements
without consequence to the case to which the statement relates,
because the prior statement may not serve as affirmative evidence of
guilt. This bill changes CPL § 60.35 to make clear that prior
inconsistent statements, as long as they are made under oath and the
witness is testifying, constitute evidence in chief. Importantly, this
rule is not limited to the prosecution, but applies to witnesses
called by either side. This provision would not only immeasurably
improve gang prosecutions, but would also address a similar, and
equally pervasive, problem in domestic violence cases.

FISCAL IMPLICATIONS: None to the State

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

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

                                 3767--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 14, 2013
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the  penal law, in relation to aggravated enterprise
  corruption, gang assault, coercion, tampering with a  witness,  intim-
  idating  a victim or witness, obstructing governmental administration,
  criminal use of  a  firearm,  sexually  motivated  felonies  and  hate
  crimes; to amend the criminal procedure law, in relation to compulsion
  of  evidence  by  offer  of  immunity, prior contradictory statements,
  warrants for eavesdropping  and  video  surveillance  and  motions  to
  suppress  evidence;  and  to  repeal  section  265.08 of the penal law
  relating to criminal use of a firearm in the second degree

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

  Section  1.  Short  title. This shall be known and may be cited as the
"witness protection and gang violence reduction act of 2014".
  S 2. The penal law is amended by adding a new section 460.23  to  read
as follows:
S 460.23 AGGRAVATED ENTERPRISE CORRUPTION.
  A  PERSON IS GUILTY OF AGGRAVATED ENTERPRISE CORRUPTION WHEN HE OR SHE
COMMITS THE CRIME OF ENTERPRISE CORRUPTION, AS DEFINED IN SECTION 460.20
OF THIS ARTICLE, AND TWO OR MORE OF THE ACTS THAT CONSTITUTE HIS OR  HER
PATTERN OF CRIMINAL ACTIVITY ARE EITHER A CLASS A OR CLASS B FELONY, AND
AT  LEAST ONE SUCH ACT IS A VIOLENT FELONY OFFENSE, AS DEFINED IN SUBDI-
VISION ONE OF SECTION 70.02 OF THIS CHAPTER OR A CLASS A-I FELONY.
  AGGRAVATED ENTERPRISE CORRUPTION IS A CLASS A-I FELONY.
  S 3. The penal law is amended by adding a new section 120.05-a to read
as follows:
S 120.05-A GANG ASSAULT IN THE THIRD DEGREE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05859-05-4

S. 3767--A                          2

  A PERSON IS GUILTY OF GANG ASSAULT IN THE THIRD DEGREE WHEN, WITH  THE
INTENT  TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON AND WHEN AIDED BY TWO
OR MORE PERSONS ACTUALLY PRESENT, HE OR SHE CAUSES  PHYSICAL  INJURY  TO
SUCH PERSON OR TO A THIRD PERSON.
  GANG ASSAULT IN THE THIRD DEGREE IS A CLASS D FELONY.
  S  4.  The section heading, opening paragraph and closing paragraph of
section 135.60 of the penal law, as amended by chapter 426 of  the  laws
of 2008, are amended to read as follows:
Coercion in the [second] THIRD degree.
  A person is guilty of coercion in the [second] THIRD degree when he or
she  compels  or  induces a person to engage in conduct which the latter
has a legal right to abstain from engaging in, or to abstain from engag-
ing in conduct in which he or she  has  a  legal  right  to  engage,  or
compels  or  induces  a person to join a group, organization or criminal
enterprise which such latter person has a right to abstain from joining,
by means of instilling in him or her a fear that, if the demand  is  not
complied with, the actor or another will:
  Coercion in the [second] THIRD degree is a class A misdemeanor.
  S  5.  The section heading, opening paragraph and closing paragraph of
section 135.65 of the penal law, as amended by chapter 426 of  the  laws
of 2008, are amended to read as follows:
Coercion in the [first] SECOND degree.
  A person is guilty of coercion in the [first] SECOND degree when he or
she  commits  the  crime  of  coercion in the [second] THIRD degree, and
when:
  Coercion in the [first] SECOND degree is a class D felony.
  S 6. The penal law is amended by adding a new section 135.67  to  read
as follows:
S 135.67 COERCION IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY  OF COERCION IN THE FIRST DEGREE WHEN HE OR SHE,
BEING EIGHTEEN YEARS OLD OR OLDER, COMMITS THE CRIME OF COERCION IN  THE
SECOND DEGREE, AS DEFINED IN SECTION 135.65 OF THIS ARTICLE, AND:
  1. THE VICTIM OF SUCH CRIME IS LESS THAN SIXTEEN YEARS OLD; OR
  2.  THE  CRIME  IS COMMITTED IN OR UPON A BUILDING OR GROUNDS USED FOR
EDUCATIONAL PURPOSES, OR ANY SCHOOL, COLLEGE OR  UNIVERSITY  OR  UPON  A
SCHOOL  BUS,  AS DEFINED IN SECTION ONE HUNDRED FORTY-TWO OF THE VEHICLE
AND TRAFFIC LAW, OR ON ANY PUBLIC SIDEWALK, STREET, PARKING  LOT,  PARK,
PLAYGROUND  OR PRIVATE LAND LOCATED IMMEDIATELY ADJACENT TO THE BOUNDARY
LINE OF SUCH SCHOOL OR SCHOOL BUS.
  COERCION IN THE FIRST DEGREE IS A CLASS C FELONY.
  S 7. The penal law is amended by adding a new section 215.09  to  read
as follows:
S 215.09 TAMPERING WITH A WITNESS IN THE FIFTH DEGREE.
  A  PERSON  IS  GUILTY  OF TAMPERING WITH A WITNESS IN THE FIFTH DEGREE
WHEN, KNOWING OR BELIEVING THAT  ANOTHER  PERSON  POSSESSES  INFORMATION
RELATING  TO A CRIMINAL TRANSACTION AND OTHER THAN IN THE COURSE OF THAT
CRIMINAL TRANSACTION OR IMMEDIATE FLIGHT THEREFROM, HE OR SHE:
  1. WRONGFULLY INDUCES OR ATTEMPTS  TO  INDUCE  SUCH  OTHER  PERSON  TO
REFRAIN  FROM  COMMUNICATING  SUCH INFORMATION TO ANY COURT, GRAND JURY,
PROSECUTOR, POLICE OFFICER OR PEACE OFFICER; OR
  2. KNOWINGLY MAKES ANY FALSE STATEMENT OR  PRACTICES  ANY  FRAUD  WITH
INTENT  TO HINDER, DELAY OR PREVENT COMMUNICATION OF INFORMATION RELATED
TO A CRIMINAL TRANSACTION TO ANY COURT, GRAND JURY,  PROSECUTOR,  POLICE
OFFICER OR PEACE OFFICER FROM SUCH PERSON.
  TAMPERING WITH A WITNESS IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.

S. 3767--A                          3

  S  8. Section 215.10 of the penal law, the section heading and closing
paragraph as amended by chapter 664 of the laws of 1982, is  amended  to
read as follows:
S 215.10 Tampering with a witness in the fourth degree.
  A  person  is  guilty of tampering with a witness IN THE FOURTH DEGREE
when, knowing that a person is or is about to be called as a witness  in
an action or proceeding, [(a)] he OR SHE:
  1.  wrongfully  induces  or  attempts  to induce such person to absent
himself OR HERSELF from, or otherwise to avoid or seek to avoid  appear-
ing or testifying at, such action or proceeding[,]; or
  [(b) he] 2. knowingly makes any false statement or practices any fraud
or deceit with intent to affect the testimony of such person.
  Tampering  with a witness in the fourth degree is a class [A misdemea-
nor] E FELONY.
  S 9. The closing paragraph of section 215.11  of  the  penal  law,  as
added by chapter 664 of the laws of 1982, is amended to read as follows:
  Tampering with a witness in the third degree is a class [E] D felony.
  S  10.  The  closing  paragraph of section 215.12 of the penal law, as
added by chapter 664 of the laws of 1982, is amended to read as follows:
  Tampering with a witness in the second degree is a class [D] C felony.
  S 11.  The closing paragraph of section 215.15 of the  penal  law,  as
added by chapter 667 of the laws of 1985, is amended to read as follows:
  Intimidating  a victim or witness in the third degree is a class [E] D
felony.
  S 12. The closing paragraph of section 215.16 of  the  penal  law,  as
added by chapter 667 of the laws of 1985, is amended to read as follows:
  Intimidating a victim or witness in the second degree is a class [D] C
felony.
  S  13. The penal law is amended by adding a new section 195.03 to read
as follows:
S 195.03 OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF OBSTRUCTING GOVERNMENTAL ADMINISTRATION  IN  THE
THIRD DEGREE WHEN HE OR SHE INTENTIONALLY OBSTRUCTS, IMPAIRS OR PERVERTS
THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION, OR PREVENTS OR
ATTEMPTS  TO  PREVENT A PUBLIC SERVANT FROM PERFORMING AN OFFICIAL FUNC-
TION.
  OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE THIRD DEGREE IS A CLASS
A MISDEMEANOR.
  S 14. Section 195.05 of the penal law, as amended by  chapter  269  of
the laws of 1998, is amended to read as follows:
S 195.05 Obstructing governmental administration in the second degree.
  A  person  is guilty of obstructing governmental administration IN THE
SECOND DEGREE  when  he  OR  SHE  intentionally  obstructs,  impairs  or
perverts  the  administration  of  law or other governmental function or
prevents or attempts to prevent a  public  servant  from  performing  an
official function, by means of intimidation, physical force or interfer-
ence,  or  by  means  of  any independently unlawful act, or by means of
interfering, whether or not physical  force  is  involved,  with  radio,
telephone, television or other telecommunications systems owned or oper-
ated  by  the  state, or a county, city, town, village, fire district or
emergency medical service or by means of releasing  a  dangerous  animal
under circumstances evincing the actor's intent that the animal obstruct
governmental administration.
  Obstructing  governmental  administration  IN  THE  SECOND DEGREE is a
class [A misdemeanor] E FELONY.

S. 3767--A                          4

  S 15. Section 195.07 of the penal law, as added by chapter 956 of  the
laws of 1984, is amended to read as follows:
S 195.07 Obstructing governmental administration in the first degree.
  A  person  is guilty of obstructing governmental administration in the
first degree when he OR SHE commits the  crime  of  obstructing  govern-
mental administration in the second degree [by means of interfering with
a telecommunications system], AS DEFINED IN SECTION 195.05 OF THIS ARTI-
CLE, thereby causing serious physical injury to another person.
  Obstructing governmental administration in the first degree is a class
[E] D felony.
  S  16. Subdivision 1 of section 50.10 of the criminal procedure law is
amended to read as follows:
  1. ["Immunity."  A person who has been a witness in a  legal  proceed-
ing,  and  who cannot, except as otherwise provided in this subdivision,
be convicted of any offense or subjected to any  penalty  or  forfeiture
for  or  on account of any transaction, matter or thing concerning which
he  gave  evidence  therein,  possesses   "immunity"   from   any   such
conviction,] "IMMUNITY", WHEN CONFERRED ON A WITNESS IN A LEGAL PROCEED-
ING,  MEANS  THAT  NEITHER  THE  EVIDENCE  GIVEN BY THAT WITNESS NOR ANY
EVIDENCE DERIVED DIRECTLY OR INDIRECTLY FROM IT MAY BE USED AGAINST  HIM
OR HER IN THE SAME OR ANY OTHER CRIMINAL PROCEEDING OR IN THE IMPOSITION
OF  ANY penalty or forfeiture.  A person who possesses such immunity may
nevertheless be convicted of perjury as a result of having  given  false
testimony  in such legal proceeding, and may be convicted of or adjudged
in contempt as  a  result  of  having  contumaciously  refused  to  give
evidence therein.
  S  17.  Section  190.40  of  the  criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
  3. A WITNESS WHO GIVES EVIDENCE IN A GRAND JURY  PROCEEDING,  AND  WHO
THEREBY  RECEIVES  IMMUNITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION,
SHALL NOT THEREAFTER BE  INDICTED  BY  THAT  SAME  GRAND  JURY  FOR  ANY
OFFENSE,  EXCEPT  (A)  WHERE  SUCH OFFENSE IS PERJURY OR CONTEMPT, AS TO
WHICH PROSECUTION IS AUTHORIZED BY SECTION 50.10 OF THIS CHAPTER; OR (B)
WHERE THE EVIDENCE GIVEN BY THE WITNESS CONSISTS ONLY OF BOOKS,  PAPERS,
RECORDS  OR  OTHER  PHYSICAL  EVIDENCE  OF  AN ENTERPRISE, AS DEFINED IN
SUBDIVISION ONE OF SECTION 175.00 OF THE PENAL LAW, AND ANY IMMUNITY THE
WITNESS RECEIVES RESULTS SOLELY FROM HIS OR HER POSSESSION OF  A  PRIVI-
LEGE  AGAINST  SELF-INCRIMINATION  WITH  RESPECT TO THE ACT OF PRODUCING
SUCH EVIDENCE. NOTHING IN THIS SUBDIVISION SHALL PRECLUDE ANOTHER  GRAND
JURY  IN THE SAME OR ANY OTHER COUNTY FROM CHARGING THE WITNESS WITH ANY
OFFENSE BASED UPON OTHER EVIDENCE WHOSE USE AGAINST THE WITNESS  IS  NOT
BARRED  BY THE IMMUNITY HE OR SHE HAS RECEIVED BY GIVING EVIDENCE BEFORE
THE FIRST GRAND JURY.
  S 18. Section 265.08 of the penal law is REPEALED.
  S 19. Section 265.09 of the penal law, as amended by  chapter  650  of
the  laws  of 1996, subdivision 2 as amended by chapter 1 of the laws of
2013, is amended to read as follows:
S 265.09 Criminal use of a firearm [in the first degree].
  (1) A person is guilty of criminal use of  a  firearm  [in  the  first
degree]  when he OR SHE commits any [class B] violent felony offense, as
defined in [paragraph (a) of] subdivision one of section 70.02  OF  THIS
CHAPTER,  OR  A DRUG TRAFFICKING FELONY OFFENSE and, WHILE IN THE COURSE
OF OR FURTHERANCE OF SUCH VIOLENT FELONY  OFFENSE  OR  DRUG  TRAFFICKING
FELONY OFFENSE, he OR SHE either:

S. 3767--A                          5

  (a)  possesses  a  [deadly]  LOADED weapon[, if the weapon is a loaded
weapon from which a shot, readily capable of producing  death  or  other
serious injury may be discharged]; or
  (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.
  Criminal use of a firearm [in the first degree] is a class B felony.
  (2) [Sentencing.] FOR THE PURPOSES OF THIS SECTION, "DRUG  TRAFFICKING
FELONY  OFFENSE"  MEANS CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN
THE THIRD DEGREE AS DEFINED IN SUBDIVISION ONE, TWO, THREE, FOUR,  FIVE,
SIX  OR  SEVEN  OF SECTION 220.16, USE OF A CHILD TO COMMIT A CONTROLLED
SUBSTANCE OFFENSE AS DEFINED IN  SECTION  220.28,  CRIMINAL  SALE  OF  A
CONTROLLED  SUBSTANCE  IN THE FIFTH DEGREE AS DEFINED IN SECTION 220.31,
CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE AS  DEFINED
IN  SECTION 220.34, CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD
DEGREE AS DEFINED IN SECTION  220.39,  CRIMINAL  SALE  OF  A  CONTROLLED
SUBSTANCE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 220.41, CRIMINAL
SALE OF A CONTROLLED SUBSTANCE IN THE FIRST DEGREE AS DEFINED IN SECTION
220.43, CRIMINAL SALE OF  A  CONTROLLED  SUBSTANCE  IN  OR  NEAR  SCHOOL
GROUNDS  AS  DEFINED  IN  SECTION  220.44, CRIMINAL SALE OF A CONTROLLED
SUBSTANCE TO A CHILD AS DEFINED IN SECTION 220.48, UNLAWFUL  MANUFACTURE
OF  METHAMPHETAMINE  IN  THE SECOND DEGREE AS DEFINED IN SECTION 220.74,
UNLAWFUL MANUFACTURE OF METHAMPHETAMINE IN THE FIRST DEGREE  AS  DEFINED
IN  SECTION  220.75,  OR  OPERATING  AS A MAJOR TRAFFICKER AS DEFINED IN
SECTION 220.77 OF THIS CHAPTER.
  (3) Notwithstanding any other provision of law to the contrary, when a
person is convicted of criminal use of a firearm [in the  first  degree]
as defined in subdivision one of this section, the court shall impose an
additional  consecutive  DETERMINATE  sentence  OF  IMPRISONMENT of five
years to the sentence imposed on the underlying [class B violent] felony
offense [where the person convicted of  such  crime  displays  a  loaded
weapon  from  which  a shot, readily capable of producing death or other
serious injury may be discharged, in furtherance of  the  commission  of
such  crime], provided, however, that such additional sentence OF IMPRI-
SONMENT shall not be imposed if the court, having regard to  the  nature
and  circumstances  of the crime and to the history and character of the
defendant, finds on the record that such additional consecutive sentence
would be unduly harsh and that  not  imposing  such  sentence  would  be
consistent  with  the public safety and would not deprecate the serious-
ness of the crime. Notwithstanding any other provision  of  law  to  the
contrary,  the  aggregate of the five year consecutive term OF IMPRISON-
MENT imposed pursuant to this subdivision and [the] (A) ANY minimum term
of [the] AN indeterminate sentence, OR (B) THE  TERM  OF  A  DETERMINATE
SENTENCE,  imposed  on  the  underlying [class B violent] felony OFFENSE
shall constitute the new aggregate minimum term OR  TERMS  of  imprison-
ment,  and  a person subject to such term shall be required to serve the
entire aggregate minimum term OR TERMS and shall  not  be  eligible  for
release on parole or conditional release during such term. This subdivi-
sion  shall  not  apply  where  the  defendant's [criminal liability for
displaying a loaded weapon from which a shot, readily capable of produc-
ing death or other serious injury may be discharged, in  furtherance  of
the  commission  of crime] COMMISSION OF THE OFFENSE DEFINED IN SUBDIVI-
SION ONE OF THIS SECTION is based on the conduct of another pursuant  to
section 20.00 of this chapter.
  S  20. Subdivision 2 of section 60.35 of the criminal procedure law is
amended to read as follows:

S. 3767--A                          6

  2. Evidence concerning  a  prior  contradictory  statement  introduced
pursuant  to  subdivision  one  [may be received only for the purpose of
impeaching the credibility of the witness with respect to his  testimony
upon  the  subject,  and  does  not constitute evidence in chief.   Upon
receiving  such evidence at a jury trial, the court must so instruct the
jury] OF THIS SECTION CONSTITUTES EVIDENCE IN CHIEF.
  S 21. 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, GANG ASSAULT IN THE THIRD
DEGREE AS DEFINED IN SECTION 120.05-A OF THE PENAL LAW, GANG ASSAULT  IN
THE  SECOND  DEGREE  AS DEFINED IN SECTION 120.06 OF THE PENAL LAW, GANG
ASSAULT IN THE FIRST DEGREE AS DEFINED IN SECTION 120.07  OF  THE  PENAL
LAW,  reckless  endangerment  in  the first degree as defined in section
120.25 of the penal law, promoting  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 negli-
gent homicide as defined in section 125.10 of the penal law, manslaught-
er 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 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 in the third degree
as defined in section 130.40 of the penal law, criminal  sexual  act  in
the  second degree as defined in section 130.45 of the penal law, crimi-
nal sexual act in the first degree as defined in section 130.50  of  the
penal law, sexual abuse in the first degree as defined in section 130.65
of  the  penal law, unlawful imprisonment 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] SECOND degree as defined in section 135.65 of the penal
law, COERCION IN THE FIRST DEGREE AS DEFINED IN SECTION  135.67  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

S. 3767--A                          7

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 counter-
feiting  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 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, issu-
ing 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  mort-
gage  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,  residential 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  contra-
band  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, TAMPERING  WITH  A  WITNESS  IN  THE
FOURTH  DEGREE AS DEFINED IN SECTION 215.10 OF THE  PENAL LAW, TAMPERING
WITH A WITNESS IN THE THIRD DEGREE AS DEFINED IN SECTION 215.11  OF  THE
PENAL  LAW,  TAMPERING WITH A WITNESS IN THE SECOND DEGREE AS DEFINED IN
SECTION 215.12 OF THE PENAL LAW, TAMPERING WITH A WITNESS IN  THE  FIRST

S. 3767--A                          8

DEGREE AS DEFINED IN SECTION 215.13 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 instruments 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  weap-
ons,  or  failure  to  disclose  the  origin of a recording in the first
degree as defined in section 275.40 of the penal law;
  S 22. Subdivision 1 of section 70.02 of the penal law,  as  separately
amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
amended by chapter 320 of the laws of 2006, paragraphs (b)  and  (c)  as
amended by chapter 1 of the laws of 2013 and paragraph (d) as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
  1. Definition of a violent felony offense. A violent felony offense is
a  class  B  violent felony offense, a class C violent felony offense, a
class D violent felony offense, or a class  E  violent  felony  offense,
defined as follows:
  (a)  Class  B  violent felony offenses: an attempt to commit the class
A-I [felonies] FELONY of murder in  the  second  degree  as  defined  in
section  125.25,  kidnapping  in  the first degree as defined in section
135.25[, and] OR arson in the first degree as defined in section 150.20;
manslaughter in the first degree as defined in  section  125.20,  aggra-
vated  manslaughter  in  the  first degree as defined in section 125.22,
rape in the first degree as defined in section 130.35,  criminal  sexual
act  in the first degree as defined in section 130.50, aggravated sexual
abuse in the first degree as defined in section 130.70, course of sexual
conduct against a child in  the  first  degree  as  defined  in  section
130.75;  assault  in  the  first  degree  as  defined in section 120.10,
kidnapping in the second degree as defined in section  135.20,  burglary
in  the  first  degree as defined in section 140.30, arson in the second
degree as defined in section 150.15, robbery  in  the  first  degree  as
defined  in  section  160.15,  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  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, TAMPERING WITH A WITNESS
IN THE FIRST DEGREE AS DEFINED IN SECTION 215.13, 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] OR criminal use of
a chemical weapon or biological weapon in the third degree as defined in
section  490.47; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS
PARAGRAPH.
  (b) Class C violent felony offenses: an attempt to commit any  of  the
class  B felonies set forth in paragraph (a) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined  in  section  125.21,

S. 3767--A                          9

aggravated  sexual  abuse  in  the  second  degree as defined in section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, assault on a
judge as defined in section 120.09, gang assault in the second degree as
defined  in section 120.06, strangulation in the first degree as defined
in section 121.13, COERCION IN THE FIRST DEGREE AS  DEFINED  IN  SECTION
135.67,  burglary  in  the  second  degree as defined in section 140.25,
robbery in the second degree as defined  in  section  160.10,  TAMPERING
WITH A WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION 215.12, INTIM-
IDATING  A  VICTIM OR WITNESS IN THE SECOND DEGREE AS DEFINED IN SECTION
215.16, criminal possession of a weapon in the second degree as  defined
in  section  265.03,  [criminal use of a firearm in the second degree as
defined in section 265.08,] criminal sale of a  firearm  in  the  second
degree as defined in section 265.12, criminal sale of a firearm with the
aid  of  a  minor  as  defined  in  section  265.14, aggravated criminal
possession of a weapon as  defined  in  section  265.19,  soliciting  or
providing support for an act of terrorism in the first degree as defined
in  section  490.15,  hindering  prosecution  of terrorism in the second
degree as defined in section 490.30, [and] OR criminal possession  of  a
chemical  weapon  or biological weapon in the third degree as defined in
section 490.37; OR A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN  THIS
PARAGRAPH.
  (c)  Class  D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b) of this  subdivision;  reck-
less  assault  of  a  child as defined in section 120.02, assault in the
second degree as defined in section 120.05, GANG ASSAULT  IN  THE  THIRD
DEGREE  AS  DEFINED  IN  SECTION  120.05-A, 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 in the second
degree as defined in section 130.45, 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, crimi-
nal 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, TAMPERING
WITH A WITNESS IN THE THIRD DEGREE AS DEFINED IN SECTION 215.11,  intim-
idating  a  victim or witness in the [second] THIRD degree as defined in
section [215.16] 215.15, 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] OR  aggravated  unpermitted  use  of
indoor pyrotechnics in the first degree as defined in section 405.18; OR
A CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.
  (d)  Class  E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a  weapon  in  the  third  degree  as
defined  in subdivision five, six, seven or eight of section 265.02 as a
lesser included offense of that section as defined in section 220.20  of
the  criminal  procedure  law[,];  persistent sexual abuse as defined in

S. 3767--A                         10

section 130.53, aggravated sexual abuse in the fourth degree as  defined
in  section 130.65-a, falsely reporting an incident in the second degree
as defined in section 240.55 [and] OR placing a false bomb or  hazardous
substance  in  the  second  degree  as  defined  in section 240.61; OR A
CONSPIRACY TO COMMIT ANY OFFENSE SPECIFIED IN THIS PARAGRAPH.
  S 23. Subdivision 2 of section 130.91 of the penal law, as amended  by
chapter 405 of the laws of 2010, is amended to read as follows:
  2.  A  "specified  offense"  is a felony offense defined by any of the
following provisions of this chapter: assault in the  second  degree  as
defined  in  section  120.05,  assault in the first degree as defined in
section 120.10, GANG ASSAULT IN THE THIRD DEGREE AS DEFINED  IN  SECTION
120.05-A,  gang  assault  in  the  second  degree  as defined in section
120.06, gang assault in the first degree as defined in  section  120.07,
stalking in the first degree as defined in section 120.60, strangulation
in  the second degree as defined in section 121.12, strangulation in the
first degree as defined in section 121.13, manslaughter  in  the  second
degree  as defined in subdivision one of section 125.15, manslaughter in
the first degree as defined in section  125.20,  murder  in  the  second
degree  as  defined  in  section 125.25, aggravated murder as defined in
section 125.26, murder in the first degree as defined in section 125.27,
kidnapping in the second degree as defined in section 135.20, kidnapping
in the first degree as defined in section 135.25, burglary in the  third
degree  as  defined  in section 140.20, burglary in the second degree as
defined in section 140.25, burglary in the first degree  as  defined  in
section 140.30, arson in the second degree as defined in section 150.15,
arson  in  the first degree as defined in section 150.20, robbery in the
third degree as defined in section 160.05, robbery in the second  degree
as  defined in section 160.10, robbery in the first degree as defined in
section 160.15, promoting prostitution in the second degree  as  defined
in section 230.30, promoting prostitution in the first degree as defined
in section 230.32, compelling prostitution as defined in section 230.33,
disseminating indecent material to minors in the first degree as defined
in  section 235.22, use of a child in a sexual performance as defined in
section 263.05, promoting an obscene sexual performance by  a  child  as
defined  in section 263.10, promoting a sexual performance by a child as
defined in section 263.15, or any felony attempt or conspiracy to commit
any of the foregoing offenses.
  S 24. Section 70.25 of the penal law is  amended  by  adding  two  new
subdivisions 2-h and 2-i to read as follows:
  2-H. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
FOURTH  DEGREE AS DEFINED IN SECTION 215.10, TAMPERING WITH A WITNESS IN
THE THIRD DEGREE AS DEFINED IN SECTION 215.11, TAMPERING WITH A  WITNESS
IN  THE  SECOND  DEGREE  AS  DEFINED IN SECTION 215.12, TAMPERING WITH A
WITNESS IN THE FIRST DEGREE AS DEFINED IN SECTION 215.13 OF  THIS  CHAP-
TER,  OR ANY ATTEMPT TO COMMIT ANY OF SUCH OFFENSE, RELATING TO A CRIMI-
NAL PROCEEDING, AND SUCH PERSON IS ALSO CONVICTED OF AN OFFENSE  CHARGED
IN SUCH CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
  2-I. WHENEVER A PERSON IS CONVICTED OF TAMPERING WITH A WITNESS IN THE
FIFTH  DEGREE  AS  DEFINED  IN  SECTION  215.09  OF THIS CHAPTER, OR ANY
ATTEMPT TO COMMIT SUCH OFFENSE RELATING TO A  CRIMINAL  PROCEEDING,  AND
SUCH  PERSON  IS  ALSO  CONVICTED  OF AN OFFENSE THAT IS CHARGED IN SUCH
CRIMINAL PROCEEDING, THE SENTENCES SHALL RUN CONSECUTIVELY.
  S 25. The opening paragraph and subdivisions 6 and 7 of section 710.20
of the criminal procedure law, the opening paragraph and  subdivision  6
as amended by chapter 8 of the laws of 1976, subdivision 6 as renumbered
by chapter 481 of the laws of 1983 and subdivision 7 as added by chapter

S. 3767--A                         11

744 of the laws of 1988, are amended and a new subdivision 8 is added to
read as follows:
  Upon motion of a defendant who (a) is aggrieved by unlawful or improp-
er acquisition of evidence and has reasonable cause to believe that such
may  be  offered  against  him  in a criminal action, or (b) claims that
improper identification testimony may be offered against him in a crimi-
nal action, OR (C) CLAIMS THAT EVIDENCE AS TO THE USE OF WHICH HE OR SHE
POSSESSES IMMUNITY MAY BE OFFERED AGAINST  HIM  OR  HER  IN  A  CRIMINAL
PROCEEDING, a court may, under circumstances prescribed in this article,
order  that such evidence be suppressed or excluded upon the ground that
it:
  6.  Consists of potential testimony regarding an  observation  of  the
defendant  either  at the time or place of the commission of the offense
or upon some other occasion relevant to the case, which potential testi-
mony would not be admissible upon the prospective trial of  such  charge
owing  to an improperly made previous identification of the defendant by
the prospective witness[.]; OR
  7. Consists of information obtained by means of a pen register or trap
and trace device installed or used in violation  of  the  provisions  of
article seven hundred five of this [chapter.] TITLE; OR
  8. CONSISTS OF POTENTIAL EVIDENCE AS TO THE USE OF WHICH THE DEFENDANT
POSSESSES  IMMUNITY.  WHERE  THE DEFENDANT ESTABLISHES THAT IMMUNITY HAD
BEEN CONFERRED UPON HIM OR HER THE PEOPLE MUST THEN ESTABLISH, BEYOND  A
REASONABLE  DOUBT,  THAT  ANY  EVIDENCE WHICH THEY PROPOSE TO USE IN THE
INSTANT ACTION DOES NOT CONSIST OF AND  WAS  NOT  DERIVED,  DIRECTLY  OR
INDIRECTLY,  FROM  THE  EVIDENCE  AS  TO  WHICH  SUCH  IMMUNITY HAD BEEN
CONFERRED.
  S 26.  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 120.05-A
(GANG  ASSAULT IN THE THIRD DEGREE); SECTION 120.06 (GANG ASSAULT IN THE
SECOND DEGREE); SECTION 120.07  (GANG  ASSAULT  IN  THE  FIRST  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 endangerment 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  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 subdivision 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

S. 3767--A                         12

[second]  THIRD  degree); section 135.65 (coercion in the [first] SECOND
degree); SECTION 135.67 (COERCION IN THE FIRST DEGREE);  section  140.10
(criminal  trespass in the third degree); section 140.15 (criminal tres-
pass  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);  subdivision one, two or four of section 240.30
(aggravated harassment in the second degree); or any attempt or conspir-
acy to commit any of the foregoing offenses.
  S 27. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.

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