senate Bill S4150

2013-2014 Legislative Session

Makes aggravated vehicular homicide a violent felony offense

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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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Jan 08, 2014 referred to codes
Mar 12, 2013 referred to codes

S4150 - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §§125.14, 70.02, 125.13 & 125.12, Pen L; amd §2, Nav L; amd §§1212 & 134, V & T L

S4150 - Bill Texts

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Makes aggravated vehicular homicide a violent felony offense; clarifies that aggravated vehicular homicide also applies to boating incidents.

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BILL NUMBER:S4150

TITLE OF BILL: An act to amend the penal law, in relation to
aggravated vehicular homicide and violent felony offenses; to amend
the navigation law, in relation to the definition of pleasure vessel;
and to amend the vehicle and traffic law, in relation to reckless
driving

PURPOSE: To make the crimes of Aggravated Vehicular Homicide and
Aggravated Vehicular Manslaughter apply to all vehicles and vessels,
and to designate Aggravated Vehicular Homicide a violent felony
offense

SUMMARY OF PROVISIONS:

Section 1: amends the crime of aggravated vehicular homicide (penal
law 125.14) to apply to all vehicles and vessels.

Section 2: amends paragraph (c) of subdivision 6 of section 2 of the
navigation law, as amended by chapter 484 of the laws of 2005 to add
vessels powered by sail to the definition of "pleasure vessel."

Section 3: amends section 1212 of the vehicle and traffic law, as
added by chapter 47 of the laws of 1988, to apply to all vehicles and
vessels.

Section 4: amends paragraph (a) of subdivision 1 of section 70.02 of
the penal law, as amended by chapter 320 of the laws of 2006 to add
aggravated vehicular homicide to the list of designated violent
felonies.

Section 5: amends section 134 of the vehicle and traffic law to add
"public waterway and waters of the state" to the definition of public
highway.

Section 6: amends section 125.13 of the penal law, as amended by
chapter 496 of the laws of 2009 to apply to all vehicles and vessels.

Section 7: amends section 125.12 of the penal law, as amended by
chapter 732 of the laws of 2006 to apply to all vehicles and vessels.

Section 8: effective date - on the one hundred twentieth day after it
shall have become a law.

JUSTIFICATION: The following text, in sum and substance, was provided
by the Office of the Suffolk County District Attorney:

Last year, in Suffolk County there was a threefold increase in cases
involving boating while intoxicated. Congested waterways, high speed
vessels, and often, inexperienced operators under the influence of
drugs, alcohol or both, have created this unacceptable crisis.

In the summer of 2011, a Suffolk County family with their children and
friends was traveling in a boat, returning from a movie. They were in
the Great South Bay and were struck by an intoxicated boater operating
without lights. One of the passengers, a student athlete, looking


forward to starting her freshman year in college, lost a kidney, her
spleen, and suffered several broken ribs. The intoxicated boat
operator was later determined to have approximately one and a half
times the legal limit of alcohol in his system, some five hours after
the crash. He was later charged with Vehicular Assault and Boating
While Intoxicated.

Another noteworthy, but tragic incident occurred on the Great South
Bay in June of 2012. A young father was on a fishing vessel with
friends on their way to a fishing tournament early in the morning.
The fishing vessel was struck by a boat going more than 80 mph.
Family and friends watched helplessly as authorities searched the
waters with dive teams to rescue the man. His lifeless body was found
twelve hours later, another victim of an intoxicated, reckless boater.
The operator of the speedboat who caused the death was rescued and
suffered non-life threatening injuries.

While the intoxicated operators of the vessels used in these cases
were charged with serious felony crimes, the subsequent investigations
revealed weaknesses in the current statutory scheme which could
seriously impact their prosecution and others similarly situated.

In 2007, the New York State Legislature created a valuable tool for
prosecutors to fight drunk driving; the crime of Aggravated Vehicular
Homicide (Penal Law section 125.14). This crime requires reckless
driving as defined in Vehicle and Traffic Law section 1212 AND the
commission of the crime of Vehicular Manslaughter in the Second Degree
(Penal Law section 125.12) along with seven other aggravating factors.

While Vehicular Manslaughter in the Second Degree by its terms,
applies to both motor vehicles and vessels operating under Section
49-a of the Navigation Law, Aggravated Vehicular Homicide and
Vehicular Manslaughter in the First Degree do not. This statutory
omission has created a loophole that makes Aggravated Vehicular
Homicide and Vehicular Manslaughter in the First Degree inapplicable
to vessels. This same loophole exists with respect to snowmobiles and
all terrain vehicles. They are included in Vehicular Manslaughter in
the Second Degree but in no other vehicular crimes.

Additionally, Vehicle and Traffic Law section 134 should be expanded
to include as a public highway a "public waterway or waters of the
state as defined in section 49-a of the Navigation Law". This language
should also be added to the reckless driving statute, Vehicle and
Traffic Law section 1212. These simple amendments will enhance the
tools prosecutors may use to continue to fight drunk driving.

Since 2007, the Suffolk County District Attorney's Office has charged
59 defendants with the crime of Aggravated Vehicular Homicide, a class
B felony. The DA's Office believes the crime to be so pervasive that
they are requesting another deterrent be created, namely, classifying
Aggravated Vehicle Homicide as a violent felony. This change would
require mandatory state incarceration of a determinate term of between
5 and 25 years rather than the current minimum indeterminate sentence
of 1 to 3 years. It is believed that all of the above amendments will
be powerful deterrents in the fight to keep our roads and waterways
safe from drunk drivers.


LEGISLATIVE HISTORY: New bill

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect on the one hundred
twentieth day after it shall have become a law.

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

                                  4150

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             March 12, 2013
                               ___________

Introduced  by Sen. FLANAGAN -- 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 vehicular homi-
  cide and violent felony offenses; to  amend  the  navigation  law,  in
  relation  to the definition of pleasure vessel; and to amend the vehi-
  cle and traffic law, in relation to reckless driving

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

  Section  1. Section 125.14 of the penal law, as amended by chapter 496
of the laws of 2009, is amended to read as follows:
S 125.14 Aggravated vehicular homicide.
  A person is guilty of aggravated vehicular homicide  when  he  or  she
engages  in reckless driving as defined by section twelve hundred twelve
of the vehicle and traffic law,  and  commits  the  crime  of  vehicular
manslaughter  in  the second degree as defined in section 125.12 of this
article, and either:
  (1) commits such crimes while operating a [motor] vehicle  while  such
person  has  .18  of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis  of  such  person's  blood,
breath, urine or saliva made pursuant to the provisions of section elev-
en hundred ninety-four of the vehicle and traffic law OR WHILE OPERATING
A VESSEL OR PUBLIC VESSEL WHILE SUCH PERSON HAS .18 OF ONE PER CENTUM OR
MORE  BY  WEIGHT  OF ALCOHOL IN SUCH PERSON'S BLOOD AS SHOWN BY CHEMICAL
ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE OR SALIVA  MADE  PURSUANT
TO THE PROVISIONS OF SECTION FORTY-NINE-A OF THE NAVIGATION LAW;
  (2)  commits  such crimes while knowing or having reason to know that:
(a) his or her license or his or her privilege of  operating  a  [motor]
vehicle  in another state or his or her privilege of obtaining a license
to operate a [motor] vehicle in another state is  suspended  or  revoked
and  such  suspension  or  revocation is based upon a conviction in such
other state for an offense which would,  if  committed  in  this  state,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08600-05-3

S. 4150                             2

constitute  a  violation  of  any  of  the  provisions of section eleven
hundred  ninety-two  of  the  vehicle  and  traffic   law   OR   SECTION
FORTY-NINE-A  OF THE NAVIGATION LAW; or (b) his or her license or his or
her privilege of operating a [motor] vehicle in this state or his or her
privilege  of  obtaining  a  license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension  or  revocation  is
based  upon  either  a  refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle  and  traffic  law  OR
SECTION FORTY-NINE-A OF THE NAVIGATION LAW or following a conviction for
a  violation  of any of the provisions of section eleven hundred ninety-
two of the vehicle and traffic law OR A VIOLATION OF ANY  PROVISIONS  OF
SECTION FORTY-NINE-A OF THE NAVIGATION LAW;
  (3)  has  previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of the vehicle and traffic  law  OR
SECTION  FORTY-NINE-A  OF  THE  NAVIGATION  LAW within the preceding ten
years, provided that, for the purposes of this subdivision, a conviction
in any other state or jurisdiction for an offense which, if committed in
this state, would constitute a violation of section eleven hundred nine-
ty-two of the vehicle and traffic law, OR SECTION  FORTY-NINE-A  OF  THE
NAVIGATION LAW shall be treated as a violation of such law;
  (4) causes the death of more than one other person;
  (5)  causes the death of one person and the serious physical injury of
at least one other person;
  (6) has previously been convicted of violating any provision  of  this
article or article one hundred twenty of this title involving the opera-
tion of a [motor] vehicle, or was convicted in any other state or juris-
diction  of  an  offense  involving  the  operation of a [motor] vehicle
which, if committed in this state, would constitute a violation of  this
article or article one hundred twenty of this title; or
  (7) commits such crime while operating a [motor] vehicle while a child
who is fifteen years of age or less is a passenger in such [motor] vehi-
cle and causes the death of such child.
  If  it  is  established that the person operating such [motor] vehicle
caused such death or deaths while unlawfully intoxicated or impaired  by
the  use  of alcohol or a drug, or by the combined influence of drugs or
of alcohol and any drug or drugs,  then  there  shall  be  a  rebuttable
presumption  that, as a result of such intoxication or impairment by the
use of alcohol or a drug, or by the combined influence of  drugs  or  of
alcohol  and any drug or drugs, such person operated the [motor] vehicle
in a manner that caused such  death  or  deaths,  as  required  by  this
section and section 125.12 of this article.
  Aggravated vehicular homicide is a class B felony.
  S  2.  Paragraph  (c)  of subdivision 6 of section 2 of the navigation
law, as amended by chapter 484 of the laws of 2005, is amended  to  read
as follows:
  (c)  "Pleasure  vessel"  shall mean and include every vessel INCLUDING
ANY VESSEL POWERED BY SAIL, not  within  the  classification  of  public
vessel  or  residential  vessel. However, the provisions of this chapter
shall not apply to rowboats,  canoes  and  kayaks  except  as  otherwise
expressly provided.
  S  3. Section 1212 of the vehicle and traffic law, as added by chapter
47 of the laws of 1988, is amended to read as follows:
  S 1212. Reckless driving. Reckless driving shall mean driving or using
any motor vehicle, VESSEL OR PUBLIC VESSEL AS DEFINED BY SECTION  FORTY-
NINE-A  OF THE NAVIGATION LAW, motorcycle, SNOWMOBILE, SNOW PLOWS, TRAC-
TORS, FARM EQUIPMENT, ALL TERRAIN TYPE VEHICLES, or any other vehicle OR

S. 4150                             3

VESSEL propelled by any power other than muscular power or any appliance
or accessory thereof in a manner which unreasonably interferes with  the
free  and  proper  use  of the public highway OR NAVIGABLE WATERWAYS, or
unreasonably  endangers  users of the public highway OR NAVIGABLE WATER-
WAYS.   Reckless driving is  prohibited.  Every  person  violating  this
provision shall be guilty of a misdemeanor.
  S 4. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
as  amended  by  chapter  320 of the laws of 2006, is amended to read as
follows:
  (a) Class B violent felony offenses: an attempt to  commit  the  class
A-I  felonies  of  murder  in  the  second  degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter  in
the  first  degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section  125.22,  rape  in  the  first
degree  as  defined  in section 130.35, criminal sexual act 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, AGGRAVATED
VEHICULAR HOMICIDE AS DEFINED  IN  SECTION  125.14,  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, crimi-
nal possession of a weapon in the first degree  as  defined  in  section
265.04,  criminal  use  of  a  firearm in the first degree as defined in
section 265.09, criminal sale of  a  firearm  in  the  first  degree  as
defined in section 265.13, aggravated assault upon a police officer or a
peace  officer  as  defined in section 120.11, gang assault in the first
degree as defined in section 120.07, intimidating a victim or witness in
the first degree as defined in section 215.17, hindering prosecution  of
terrorism  in  the  first  degree as defined in section 490.35, criminal
possession of a chemical weapon  or  biological  weapon  in  the  second
degree  as  defined  in  section  490.40, and criminal use of a chemical
weapon or biological weapon in the third degree as  defined  in  section
490.47.
  S  5. Section 134 of the vehicle and traffic law is amended to read as
follows:
  S 134. Public highway.   Any highway,  road,  street,  avenue,  alley,
public place, public driveway, PUBLIC WATERWAY OR WATERS OF THE STATE AS
DEFINED  IN  SECTION  FORTY-NINE-A  OF  THE  NAVIGATION LAW or any other
public way.
  S 6. Section 125.13 of the penal law, as amended by chapter 496 of the
laws of 2009, is amended to read as follows:
S 125.13 Vehicular manslaughter in the first degree.
  A person is guilty of vehicular manslaughter in the first degree  when
he  or  she  commits  the  crime of vehicular manslaughter in the second
degree as defined in section 125.12 of this article, and either:
  (1) commits such crime while operating a [motor]  vehicle  while  such
person  has  .18  of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis  of  such  person's  blood,
breath, urine or saliva made pursuant to the provisions of section elev-
en hundred ninety-four of the vehicle and traffic law OR WHILE OPERATING
A VESSEL OR PUBLIC VESSEL WHILE SUCH PERSON HAS .18 OF ONE PER CENTUM OR
MORE  BY  WEIGHT  OF ALCOHOL IN SUCH PERSON'S BLOOD AS SHOWN BY CHEMICAL

S. 4150                             4

ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE OR SALIVA  MADE  PURSUANT
TO THE PROVISIONS OF SECTION FORTY-NINE-A OF THE NAVIGATION LAW;
  (2)  commits  such  crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of  operating  a  [motor]
vehicle  in another state or his or her privilege of obtaining a license
to operate a [motor] vehicle in another state is  suspended  or  revoked
and  such  suspension  or  revocation is based upon a conviction in such
other state for an offense which would,  if  committed  in  this  state,
constitute  a  violation  of  any  of  the  provisions of section eleven
hundred  ninety-two  of  the  vehicle  and  traffic   law   OR   SECTION
FORTY-NINE-A  OF THE NAVIGATION LAW; or (b) his or her license or his or
her privilege of operating a [motor] vehicle in the state or his or  her
privilege  of  obtaining  a  license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension  or  revocation  is
based  upon  either  a  refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle  and  traffic  law  OR
SECTION  FORTY-NINE-A  OF  THE NAVIGATION LAW, or following a conviction
for a violation of any of the provisions of section eleven hundred nine-
ty-two of the vehicle and traffic law OR A VIOLATION OF  ANY  PROVISIONS
OF SECTION FORTY-NINE-A OF THE NAVIGATION LAW;
  (3)  has  previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of the vehicle and traffic  law  OR
SECTION  FORTY-NINE-A  OF  THE  NAVIGATION  LAW within the preceding ten
years, provided that, for the purposes of this subdivision, a conviction
in any other state or jurisdiction for an offense which, if committed in
this state, would constitute a violation of section eleven hundred nine-
ty-two of the vehicle and traffic law OR  SECTION  FORTY-NINE-A  OF  THE
NAVIGATION LAW, shall be treated as a violation of such law;
  (4) causes the death of more than one other person;
  (5)  has  previously been convicted of violating any provision of this
article or article one hundred twenty of this title involving the opera-
tion of a [motor] vehicle, or was convicted in any other state or juris-
diction of an offense involving  the  operation  of  a  [motor]  vehicle
which,  if committed in this state, would constitute a violation of this
article or article one hundred twenty of this title; or
  (6) commits such crime while operating a [motor] vehicle while a child
who is fifteen years of age or less is a passenger in such [motor] vehi-
cle and causes the death of such child.
  If it is established that the person operating  such  [motor]  vehicle
caused  such death or deaths while unlawfully intoxicated or impaired by
the use of alcohol or a drug, or by the combined influence of  drugs  or
of  alcohol  and  any  drug  or  drugs, then there shall be a rebuttable
presumption that, as a result of such intoxication or impairment by  the
use  of  alcohol  or a drug, or by the combined influence of drugs or of
alcohol and any drug or drugs, such person operated the [motor]  vehicle
in  a  manner  that  caused  such  death  or deaths, as required by this
section and section 125.12 of this article.
  Vehicular manslaughter in the first degree is a class C felony.
  S 7. Section 125.12 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 125.12 Vehicular manslaughter in the second degree.
  A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
  (1) operates a [motor] vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the  vehicle  and
traffic  law or operates a vessel or public vessel in violation of para-

S. 4150                             5

graph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of
the navigation law, and as a result of such intoxication  or  impairment
by  the use of a drug, or by the combined influence of drugs or of alco-
hol  and  any  drug  or  drugs, operates such [motor] vehicle, vessel or
public vessel in a manner that causes the death of such other person, or
  (2) operates a [motor] vehicle with a gross vehicle weight  rating  of
more  than eighteen thousand pounds which contains flammable gas, radio-
active materials or  explosives  in  violation  of  subdivision  one  of
section  eleven  hundred  ninety-two  of  the vehicle and traffic law OR
SECTION FORTY-NINE-A OF THE NAVIGATION  LAW,  and  such  flammable  gas,
radioactive materials or explosives is the cause of such death, and as a
result  of  such impairment by the use of alcohol, operates such [motor]
vehicle in a manner that causes the death of such other person, or
  (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation  and  historic
preservation  law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law in  violation  of  subdivision  two,  three,
four,  or four-a of section eleven hundred ninety-two of the vehicle and
traffic law, and as a result of such intoxication or impairment  by  the
use  of  a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, operates such snowmobile or all terrain vehicle in  a
manner that causes the death of such other person.
  If  it  is  established that the person operating such [motor vehicle,
vessel, public vessel, snowmobile or all terrain]  vehicle  caused  such
death  while unlawfully intoxicated or impaired by the use of alcohol or
a drug, then there shall be a rebuttable presumption that, as  a  result
of  such  intoxication or impairment by the use of alcohol or a drug, or
by the combined influence of drugs or of alcohol and any drug or  drugs,
such  person operated the [motor vehicle, vessel, public vessel, snowmo-
bile or all terrain] vehicle in a manner  that  caused  such  death,  as
required by this section.
  Vehicular manslaughter in the second degree is a class D felony.
  S 8. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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