S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2240
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 15, 2013
                                      ___________
       Introduced by Sens. YOUNG, BONACIC, LARKIN, MAZIARZ, O'MARA, 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:
    1    Section 1. Paragraphs (a), (b) and (c) of  subdivision  1  of  section
    2  70.02  of  the penal law, paragraph (a) as amended by chapter 320 of the
    3  laws of 2006, paragraph (b) as amended by chapter 148  of  the  laws  of
    4  2011,  and  paragraph (c) as amended by chapter 405 of the laws of 2010,
    5  are amended to read as follows:
    6    (a) Class B violent felony offenses: an attempt to  commit  the  class
    7  A-I  felonies  of  murder  in  the  second  degree as defined in section
    8  125.25, kidnapping in the first degree as defined in section 135.25, and
    9  arson in the first degree as defined in section 150.20; manslaughter  in
   10  the  first  degree as defined in section 125.20, aggravated manslaughter
   11  in the first degree as defined in section  125.22,  rape  in  the  first
   12  degree  as  defined  in section 130.35, criminal sexual act in the first
   13  degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
   14  [first]  SECOND  degree  as  defined in section 130.70, course of sexual
   15  conduct against a child in  the  first  degree  as  defined  in  section
   16  130.75;  assault  in  the  first  degree  as  defined in section 120.10,
   17  kidnapping in the second degree as defined in section  135.20,  burglary
   18  in  the  first  degree as defined in section 140.30, arson in the second
   19  degree as defined in section 150.15, robbery  in  the  first  degree  as
   20  defined  in  section  160.15,  incest  in the first degree as defined in
   21  section 255.27, criminal possession of a weapon in the first  degree  as
   22  defined in section 265.04, criminal use of a firearm in the first degree
   23  as  defined  in  section 265.09, criminal sale of a firearm in the first
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06425-01-3
       S. 2240                             2
    1  degree as defined in section 265.13, aggravated assault  upon  a  police
    2  officer or a peace officer as defined in section 120.11, gang assault in
    3  the  first degree as defined in section 120.07, intimidating a victim or
    4  witness  in  the  first  degree  as defined in section 215.17, hindering
    5  prosecution of terrorism in the  first  degree  as  defined  in  section
    6  490.35, criminal possession of a chemical weapon or biological weapon in
    7  the  second  degree  as defined in section 490.40, and criminal use of a
    8  chemical weapon or biological weapon in the third degree as  defined  in
    9  section 490.47.
   10    (b)  Class  C violent felony offenses: an attempt to commit any of the
   11  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
   12  vated criminally negligent homicide as defined in section 125.11, aggra-
   13  vated  manslaughter  in  the second degree as defined in section 125.21,
   14  aggravated sexual abuse in the  [second]  THIRD  degree  as  defined  in
   15  section  130.67,  assault on a peace officer, police officer, fireman or
   16  emergency medical services professional as defined  in  section  120.08,
   17  assault  on  a  judge  as defined in section 120.09, gang assault in the
   18  second degree as defined in section 120.06, strangulation in  the  first
   19  degree  as  defined  in section 121.13, burglary in the second degree as
   20  defined in section 140.25, robbery in the second degree  as  defined  in
   21  section  160.10, criminal possession of a weapon in the second degree as
   22  defined in section 265.03, criminal use  of  a  firearm  in  the  second
   23  degree  as  defined in section 265.08, criminal sale of a firearm in the
   24  second degree as defined in section 265.12, criminal sale of  a  firearm
   25  with  the  aid  of  a  minor as defined in section 265.14, soliciting or
   26  providing support for an act of terrorism in the first degree as defined
   27  in section 490.15, hindering prosecution  of  terrorism  in  the  second
   28  degree as defined in section 490.30, and criminal possession of a chemi-
   29  cal  weapon  or  biological  weapon  in  the  third degree as defined in
   30  section 490.37.
   31    (c) Class D violent felony offenses: an attempt to commit any  of  the
   32  class C felonies set forth in paragraph (b); reckless assault of a child
   33  as defined in section 120.02, assault in the second degree as defined in
   34  section 120.05, menacing a police officer or peace officer as defined in
   35  section  120.18, stalking in the first degree, as defined in subdivision
   36  one of section 120.60, strangulation in the second degree as defined  in
   37  section  121.12, rape in the second degree as defined in section 130.30,
   38  criminal sexual act in the second degree as defined in  section  130.45,
   39  sexual abuse in the first degree as defined in section 130.65, course of
   40  sexual  conduct  against  a  child  in  the  second degree as defined in
   41  section 130.80, aggravated sexual abuse in the [third] FOURTH degree  as
   42  defined  in section 130.66, facilitating a sex offense with a controlled
   43  substance as defined in section 130.90, criminal possession of a  weapon
   44  in  the third degree as defined in subdivision five, six, seven or eight
   45  of section 265.02, criminal sale of a firearm in  the  third  degree  as
   46  defined  in  section  265.11,  intimidating  a  victim or witness in the
   47  second degree as defined in  section  215.16,  soliciting  or  providing
   48  support  for  an  act  of  terrorism  in the second degree as defined in
   49  section 490.10, and making a terroristic threat as  defined  in  section
   50  490.20,  falsely reporting an incident in the first degree as defined in
   51  section 240.60, placing a false bomb or hazardous substance in the first
   52  degree as defined in section 240.62, placing a false bomb  or  hazardous
   53  substance  in a sports stadium or arena, mass transportation facility or
   54  enclosed shopping mall as defined  in  section  240.63,  and  aggravated
   55  unpermitted use of indoor pyrotechnics in the first degree as defined in
   56  section 405.18.
       S. 2240                             3
    1    S  2.  The  penal  law is amended by adding three new sections 130.36,
    2  130.51 and 130.71 to read as follows:
    3  S 130.36 AGGRAVATED RAPE.
    4    A  MALE  IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
    5  COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE  COURSE  OF
    6  THE  COMMISSION  OF  THE  CRIME  OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
    7  ANOTHER PARTICIPANT IN THE CRIME:
    8    1. IS ARMED WITH A DEADLY WEAPON; OR
    9    2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   10    3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
   11  THE CRIME; OR
   12    4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   13    AGGRAVATED RAPE IS A CLASS A-II FELONY.
   14  S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
   15    A  PERSON  IS  GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN HE OR SHE
   16  ENGAGES IN ORAL SEXUAL CONDUCT  OR  ANAL  SEXUAL  CONDUCT  WITH  ANOTHER
   17  PERSON  BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE COMMISSION
   18  OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
   19  PARTICIPANT IN THE CRIME:
   20    1. IS ARMED WITH A DEADLY WEAPON; OR
   21    2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   22    3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
   23  THE CRIME; OR
   24    4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
   25    AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
   26  S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
   27    1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE  FIRST  DEGREE
   28  WHEN  HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
   29  RA, PENIS OR RECTUM OF ANOTHER PERSON  BY  FORCIBLE  COMPULSION  CAUSING
   30  PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
   31  OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
   32  PARTICIPANT IN THE CRIME:
   33    (A) IS ARMED WITH A DEADLY WEAPON; OR
   34    (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
   35    (C) CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A  PARTICIPANT  IN
   36  THE CRIME; OR
   37    (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
   38    2.  CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
   39  PROVISIONS OF THIS SECTION.
   40    AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
   41    S 3. Section 130.65-a of the penal law, as added by chapter 1  of  the
   42  laws  of  2000,  subdivision  1 as amended by chapter 485 of the laws of
   43  2009, is amended to read as follows:
   44  S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
   45    1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
   46  degree when:
   47    (a) He or she inserts a foreign object in the vagina, urethra,  penis,
   48  rectum  or  anus  of another person and the other person is incapable of
   49  consent by reason of some factor other than being  less  than  seventeen
   50  years old; or
   51    (b)  He  or she inserts a finger in the vagina, urethra, penis, rectum
   52  or anus of another person causing physical injury  to  such  person  and
   53  such  person is incapable of consent by reason of some factor other than
   54  being less than seventeen years old.
   55    2. Conduct performed for a valid medical purpose does not violate  the
   56  provisions of this section.
       S. 2240                             4
    1    Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
    2  felony.
    3    S  4.  Section 130.66 of the penal law, as added by chapter 181 of the
    4  laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
    5  of 2009, subdivision 3 as renumbered by chapter 1 of the laws  of  2000,
    6  is amended to read as follows:
    7  S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
    8    1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
    9  degree  when  he or she inserts a foreign object in the vagina, urethra,
   10  penis, rectum or anus of another person:
   11    (a) By forcible compulsion; or
   12    (b) When the other person is incapable of consent by reason  of  being
   13  physically helpless; or
   14    (c) When the other person is less than eleven years old.
   15    2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
   16  degree  when  he or she inserts a foreign object in the vagina, urethra,
   17  penis, rectum or anus of another person causing physical injury to  such
   18  person  and  such  person  is  incapable  of  consent by reason of being
   19  mentally disabled or mentally incapacitated.
   20    3. Conduct performed for a valid medical purpose does not violate  the
   21  provisions of this section.
   22    Aggravated  sexual  abuse  in  the  [third] FOURTH degree is a class D
   23  felony.
   24    S 5. Section 130.67 of the penal law, as added by chapter 450  of  the
   25  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
   26  ter 485 of the laws of 2009, is amended to read as follows:
   27  S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
   28    1.    A  person  is  guilty of aggravated sexual abuse in the [second]
   29  THIRD degree when he or she inserts a finger  in  the  vagina,  urethra,
   30  penis,  rectum or anus of another person causing physical injury to such
   31  person:
   32    (a) By forcible compulsion; or
   33    (b) When the other person is incapable of consent by reason  of  being
   34  physically helpless; or
   35    (c) When the other person is less than eleven years old.
   36    2.  Conduct performed for a valid medical purpose does not violate the
   37  provisions of this section.
   38    Aggravated sexual abuse in the [second] THIRD  degree  is  a  class  C
   39  felony.
   40    S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
   41  laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
   42  ter 485 of the laws of 2009, is amended to read as follows:
   43  S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
   44    1.    A  person  is  guilty  of aggravated sexual abuse in the [first]
   45  SECOND degree when he or she inserts a foreign  object  in  the  vagina,
   46  urethra, penis, rectum or anus of another person causing physical injury
   47  to such person:
   48    (a) By forcible compulsion; or
   49    (b)  When  the other person is incapable of consent by reason of being
   50  physically helpless; or
   51    (c) When the other person is less than eleven years old.
   52    2. Conduct performed for a valid medical purpose does not violate  the
   53  provisions of this section.
   54    Aggravated  sexual  abuse  in  the  [first] SECOND degree is a class B
   55  felony.
       S. 2240                             5
    1    S 7. Subdivisions 2 and 3 of section 720.10 of the criminal  procedure
    2  law,  subdivision 2 as amended by chapter 416 of the laws of 1986, para-
    3  graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
    4  and subdivision 3 as amended by chapter 264 of the  laws  of  2003,  are
    5  amended to read as follows:
    6    2.    "Eligible  youth"  means  a  youth who is eligible to be found a
    7  youthful offender.  Every youth is so eligible unless:
    8    (a) the conviction to be replaced by a youthful  offender  finding  is
    9  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   10  defined in subdivision forty-one of section 1.20, except as provided  in
   11  subdivision  three,  or  (iii) rape in the first degree, criminal sexual
   12  act in the first degree,  or  aggravated  sexual  abuse  IN  THE  SECOND
   13  DEGREE, except as provided in subdivision three, or
   14    (b) such youth has previously been convicted and sentenced for a felo-
   15  ny, or
   16    (c)    such  youth has previously been adjudicated a youthful offender
   17  following conviction of a felony or has been  adjudicated  on  or  after
   18  September  first,  nineteen  hundred seventy-eight a juvenile delinquent
   19  who committed a designated felony act as defined  in  the  family  court
   20  act.
   21    3.  Notwithstanding the provisions of subdivision two, a youth who has
   22  been  convicted  of  an  armed  felony  offense  or of rape in the first
   23  degree, criminal sexual act in the first degree,  or  aggravated  sexual
   24  abuse  IN THE SECOND DEGREE is an eligible youth if the court determines
   25  that one or more of the following factors exist: (i)  mitigating circum-
   26  stances that bear directly upon  the  manner  in  which  the  crime  was
   27  committed;  or  (ii) where the defendant was not the sole participant in
   28  the crime, the defendant's participation was relatively  minor  although
   29  not  so  minor as to constitute a defense to the prosecution.  Where the
   30  court determines that the eligible youth is  a  youthful  offender,  the
   31  court shall make a statement on the record of the reasons for its deter-
   32  mination, a transcript of which shall be forwarded to the state division
   33  of  criminal  justice  services,  to  be  kept  in  accordance  with the
   34  provisions of subdivision three of section eight hundred  thirty-seven-a
   35  of the executive law.
   36    S 8. This act shall take effect on the first of November next succeed-
   37  ing the date on which it shall have become a law.