Senate Bill S3764

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3764
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2017
                                ___________
 
 Introduced  by  Sen.  FUNKE  -- 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 requiring  a  sentence  of
   imprisonment  for  sex offenses where the victim of the offense lacked
   the ability to consent due to incapacity

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 60.05 of the penal law, as amended by chapter 410
 of the laws of 1979, the section heading, subdivisions 2,  3  and  4  as
 amended  by chapter 738 of the laws of 2004, subdivision 1 as amended by
 chapter 7 of the laws of 2007, and subdivision 5 as amended  by  chapter
 405 of the laws of 2010, is amended to read as follows:
 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
           nies, SEX OFFENSES and multiple felony offenders.
   1.  Applicability. Except as provided in section 60.04 of this article
 governing the authorized  dispositions  applicable  to  felony  offenses
 defined  in article two hundred twenty or two hundred twenty-one of this
 chapter or in section 60.13 of this  article  governing  the  authorized
 dispositions  applicable to felony sex offenses defined in paragraph (a)
 of subdivision one of section 70.80 of this title,  this  section  shall
 govern the dispositions authorized when a person is to be sentenced upon
 a  conviction  of a class A felony, a class B felony or a class C, class
 D, or class E felony, OR SEX OFFENSE specified herein, or when a  person
 is  to  be  sentenced upon a conviction of a felony as a multiple felony
 offender.
   2. Class A felony. Except as provided in subdivisions three  and  four
 of  section  70.06  of this chapter, every person convicted of a class A
 felony must be sentenced to  imprisonment  in  accordance  with  section
 70.00  of  this  title, unless such person is convicted of murder in the
 first degree and is sentenced in accordance with section 60.06  of  this
 article.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06660-01-7

 S. 3764                             2
 
   3.  Class  B  felony.  Except  as  provided in subdivision six of this
 section, every person convicted of a class B violent felony  offense  as
 defined  in  subdivision  one  of  section  70.02 of this title, must be
 sentenced to imprisonment in accordance with such  section  70.02;  and,
 except  as  provided  in  subdivision  six of this section, every person
 convicted of any other class B felony must be sentenced to  imprisonment
 in accordance with section 70.00 of this title.
   4.  Certain  class  C felonies. Except as provided in subdivision six,
 every person convicted of a class C violent felony offense as defined in
 subdivision one of section 70.02 of this title,  must  be  sentenced  to
 imprisonment in accordance with section 70.02 of this title; and, except
 as  provided  in subdivision six of this section, every person convicted
 of the class C felonies of: attempt to commit any of the class  B  felo-
 nies  of bribery in the first degree as defined in section 200.04, bribe
 receiving in the first degree as defined in section  200.12,  conspiracy
 in  the second degree as defined in section 105.15 and criminal mischief
 in the first degree as defined in section 145.12; criminal usury in  the
 first degree as defined in section 190.42, rewarding official misconduct
 in  the  first degree as defined in section 200.22, receiving reward for
 official misconduct in the first degree as defined  in  section  200.27,
 attempt  to  promote  prostitution  in  the  first  degree as defined in
 section 230.32, promoting prostitution in the second degree  as  defined
 in  section  230.30,  arson  in  the  third degree as defined in section
 150.10 of this chapter, must be sentenced to imprisonment in  accordance
 with section 70.00 of this title.
   5.  Certain class D felonies. Except as provided in subdivision six of
 this section, every person convicted of the class D felonies of  assault
 in  the second degree as defined in section 120.05, strangulation in the
 second degree as defined in section 121.12 or attempt to commit a  class
 C felony as defined in section 230.30 of this chapter, must be sentenced
 in accordance with section 70.00 or 85.00 of this title.
   6.  Multiple  felony  offender. When the court imposes sentence upon a
 second violent felony offender, as defined in section 70.04, or a second
 felony offender, as defined in section 70.06, the court  must  impose  a
 sentence  of  imprisonment in accordance with section 70.04 or 70.06, as
 the case may be, unless it imposes a sentence of imprisonment in accord-
 ance with section 70.08 or 70.10.
   7. CERTAIN SEX OFFENSES. ANY PERSON CONVICTED OF A SEX  OFFENSE  UNDER
 ARTICLE  ONE  HUNDRED  THIRTY  OF  THIS CHAPTER, WHERE THE VICTIM OF THE
 OFFENSE LACKED THE ABILITY TO CONSENT  DUE  TO  INCAPACITY  PURSUANT  TO
 SECTION  130.05  OF  THIS CHAPTER, SHALL BE SENTENCED TO IMPRISONMENT IN
 ACCORDANCE WITH ARTICLE SEVENTY OF THIS TITLE.
   8. Fines.   Where the court imposes  a  sentence  of  imprisonment  in
 accordance  with  this section, the court also may impose a fine author-
 ized by article eighty and in such  case  the  sentence  shall  be  both
 imprisonment and a fine.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.