S T A T E O F N E W Y O R K
________________________________________________________________________
1045
2019-2020 Regular Sessions
I N S E N A T E
January 10, 2019
___________
Introduced by Sens. YOUNG, FUNKE, O'MARA, ORTT, RANZENHOFER -- 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 sexual
offenses; and to amend the criminal procedure law, in relation to
youthful offender status
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a), (b) and (c) of subdivision 1 of section
70.02 of the penal law, paragraph (a) as amended by chapter 189 of the
laws of 2018, paragraph (b) as amended by chapter 476 of the laws of
2018 and paragraph (c) as amended by chapter 368 of the laws of 2015,
are amended to read as follows:
(a) Class B violent felony offenses: an attempt to commit the class
A-I felonies of murder in the second degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act in the first
degree as defined in section 130.50, aggravated sexual abuse in the
[first] SECOND 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, sex trafficking as defined in paragraphs (a)
and (b) of subdivision five of section 230.34, sex trafficking of a
child as defined in section 230.34-a, incest in the first degree as
defined in section 255.27, criminal possession of a weapon in the first
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03937-02-9
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degree as defined in section 265.04, criminal use of a firearm in the
first degree as defined in section 265.09, criminal sale of a firearm in
the first degree as defined in section 265.13, aggravated assault upon a
police officer or a peace officer as defined in section 120.11, gang
assault in the first degree as defined in section 120.07, intimidating a
victim or witness in the first degree as defined in section 215.17,
hindering prosecution of terrorism in the first degree as defined in
section 490.35, criminal possession of a chemical weapon or biological
weapon in the second degree as defined in section 490.40, and criminal
use of a chemical weapon or biological weapon in the third degree as
defined in section 490.47.
(b) Class C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined in section 125.21,
aggravated sexual abuse in the [second] THIRD degree as defined in
section 130.67, assault on a peace officer, police officer, firefighter
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, burglary in the second degree as
defined in section 140.25, robbery in the second degree as defined in
section 160.10, 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 crimi-
nal 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 criminal possession of a chemi-
cal weapon or biological weapon in the third degree as defined in
section 490.37.
(c) Class D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section 130.30,
criminal sexual act 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] FOURTH degree as
defined in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, labor trafficking as defined in
paragraphs (a) and (b) of subdivision three of section 135.35, criminal
possession of a weapon in the third degree as defined in subdivision
five, six, seven, eight, nine or ten of section 265.02, criminal sale of
a firearm in the third degree as defined in section 265.11, intimidating
a victim or witness in the second degree as defined in section 215.16,
soliciting or providing support for an act of terrorism in the second
degree as defined in section 490.10, and making a terroristic threat as
defined in section 490.20, falsely reporting an incident in the first
degree as defined in section 240.60, placing a false bomb or hazardous
substance in the first degree as defined in section 240.62, placing a
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false bomb or hazardous substance in a sports stadium or arena, mass
transportation facility or enclosed shopping mall as defined in section
240.63, and aggravated unpermitted use of indoor pyrotechnics in the
first degree as defined in section 405.18.
§ 2. The penal law is amended by adding three new sections 130.36,
130.51 and 130.71 to read as follows:
§ 130.36 AGGRAVATED RAPE.
A MALE IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF
THE COMMISSION OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
ANOTHER PARTICIPANT IN THE CRIME:
1. IS ARMED WITH A DEADLY WEAPON; OR
2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
AGGRAVATED RAPE IS A CLASS A-II FELONY.
§ 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN HE OR SHE
ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER
PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
1. IS ARMED WITH A DEADLY WEAPON; OR
2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
§ 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
RA, PENIS OR RECTUM OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
(A) IS ARMED WITH A DEADLY WEAPON; OR
(B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
(C) CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
(D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
PROVISIONS OF THIS SECTION.
AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
§ 3. Section 130.65-a of the penal law, as added by chapter 1 of the
laws of 2000, subdivision 1 as amended by chapter 485 of the laws of
2009, is amended to read as follows:
§ 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
degree when:
(a) He or she inserts a foreign object in the vagina, urethra, penis,
rectum or anus of another person and the other person is incapable of
consent by reason of some factor other than being less than seventeen
years old; or
(b) He or she inserts a finger in the vagina, urethra, penis, rectum
or anus of another person causing physical injury to such person and
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such person is incapable of consent by reason of some factor other than
being less than seventeen years old.
2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the [fourth] FIFTH degree is a class E
felony.
§ 4. Section 130.66 of the penal law, as added by chapter 181 of the
laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
of 2009, subdivision 3 as renumbered by chapter 1 of the laws of 2000,
is amended to read as follows:
§ 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree when he or she inserts a foreign object in the vagina, urethra,
penis, rectum or anus of another person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being
physically helpless; or
(c) When the other person is less than eleven years old.
2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree when he or she inserts a foreign object in the vagina, urethra,
penis, rectum or anus of another person causing physical injury to such
person and such person is incapable of consent by reason of being
mentally disabled or mentally incapacitated.
3. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the [third] FOURTH degree is a class D
felony.
§ 5. Section 130.67 of the penal law, as added by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
§ 130.67 Aggravated sexual abuse in the [second] THIRD degree.
1. A person is guilty of aggravated sexual abuse in the [second]
THIRD degree when he or she inserts a finger in the vagina, urethra,
penis, rectum or anus of another person causing physical injury to such
person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being
physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the [second] THIRD degree is a class C
felony.
§ 6. Section 130.70 of the penal law, as amended by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
§ 130.70 Aggravated sexual abuse in the [first] SECOND degree.
1. A person is guilty of aggravated sexual abuse in the [first]
SECOND degree when he or she inserts a foreign object in the vagina,
urethra, penis, rectum or anus of another person causing physical injury
to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being
physically helpless; or
(c) When the other person is less than eleven years old.
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2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the [first] SECOND degree is a class B
felony.
§ 7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
law, subdivision 2 as amended by chapter 416 of the laws of 1986, para-
graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
and subdivision 3 as amended by chapter 264 of the laws of 2003, are
amended to read as follows:
2. "Eligible youth" means a youth who is eligible to be found a
youthful offender. Every youth is so eligible unless:
(a) the conviction to be replaced by a youthful offender finding is
for (i) a class A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided in
subdivision three, or (iii) rape in the first degree, criminal sexual
act in the first degree, or aggravated sexual abuse IN THE SECOND
DEGREE, except as provided in subdivision three, or
(b) such youth has previously been convicted and sentenced for a felo-
ny, or
(c) such youth has previously been adjudicated a youthful offender
following conviction of a felony or has been adjudicated on or after
September first, nineteen hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined in the family court
act.
3. Notwithstanding the provisions of subdivision two, a youth who has
been convicted of an armed felony offense or of rape in the first
degree, criminal sexual act in the first degree, or aggravated sexual
abuse IN THE SECOND DEGREE is an eligible youth if the court determines
that one or more of the following factors exist: (i) mitigating circum-
stances that bear directly upon the manner in which the crime was
committed; or (ii) where the defendant was not the sole participant in
the crime, the defendant's participation was relatively minor although
not so minor as to constitute a defense to the prosecution. Where the
court determines that the eligible youth is a youthful offender, the
court shall make a statement on the record of the reasons for its deter-
mination, a transcript of which shall be forwarded to the state division
of criminal justice services, to be kept in accordance with the
provisions of subdivision three of section eight hundred thirty-seven-a
of the executive law.
§ 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
