S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6283
                                   I N  S E N A T E
                                    January 9, 2014
                                      ___________
       Introduced  by  Sens.  FARLEY,  BOYLE,  DeFRANCISCO,  GOLDEN,  GRISANTI,
         HANNON, LARKIN, MARCHIONE, MARTINS, MAZIARZ, NOZZOLIO,  SEWARD,  SMITH
         -- read twice and ordered printed, and when printed to be committed to
         the Committee on Codes
       AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
         relation to assault or aiding or encouraging assault
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Subdivision  4  of  section  120.10  of the penal law, as
    2  amended by chapter 791 of the laws of 1967, is amended and a new  subdi-
    3  vision 5 is added to read as follows:
    4    4.  In the course of and in furtherance of the commission or attempted
    5  commission of a felony or of immediate flight therefrom, he OR  SHE,  or
    6  another participant if there be any, causes serious physical injury to a
    7  person other than one of the participants[.]; OR
    8    5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
    9  UNSUSPECTING  PERSON  TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH
   10  PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER  PARTICIPANT
   11  TO  STRIKE  SUCH  PERSON ON THE HEAD, CAUSING PHYSICAL INJURY OR SERIOUS
   12  PHYSICAL INJURY TO SUCH PERSON.
   13    S 2. Section 120.07 of the penal law, as added by chapter 647  of  the
   14  laws of 1996, is amended to read as follows:
   15  S 120.07 Gang assault in the first degree.
   16    A person is guilty of gang assault in the first degree when[,]:
   17    1.  with intent to cause serious physical injury to another person and
   18  when aided by two or more other  persons  actually  present,  he  causes
   19  serious physical injury to such person or to a third person[.]; OR
   20    2.  BEING  FOURTEEN  YEARS OLD OR MORE AND WITH THE INTENT TO CAUSE AN
   21  UNSUSPECTING PERSON TO BE RENDERED UNCONSCIOUS, AND  WHEN  AIDED  BY  OR
   22  ENCOURAGED  BY  TWO  OR  MORE  OTHER PERSONS ACTUALLY PRESENT, HE OR SHE
   23  STRIKES SUCH PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER
   24  PARTICIPANT TO STRIKE SUCH PERSON ON THE HEAD, CAUSING  PHYSICAL  INJURY
   25  OR SERIOUS PHYSICAL INJURY TO SUCH PERSON.
   26    Gang assault in the first degree is a class B felony.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13180-04-4
       S. 6283                             2
    1    S  3.  Subdivision  4  of section 125.20 of the penal law, as added by
    2  chapter 477 of the laws of 1990, is amended and a new subdivision  5  is
    3  added to read as follows:
    4    4.  Being eighteen years old or more and with intent to cause physical
    5  injury to a person less than eleven years old, the defendant  recklessly
    6  engages in conduct which creates a grave risk of serious physical injury
    7  to such person and thereby causes the death of such person[.]; OR
    8    5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
    9  UNSUSPECTING  PERSON  TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH
   10  PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER  PARTICIPANT
   11  TO STRIKE SUCH PERSON ON THE HEAD, CAUSING THE DEATH OF SUCH PERSON.
   12    S  4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
   13  procedure law, as amended by chapter 316 of the laws of 2006, is amended
   14  to read as follows:
   15    (a) the conviction to be replaced by a youthful  offender  finding  is
   16  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   17  defined in subdivision forty-one of section 1.20, except as provided  in
   18  subdivision  three  OF  THIS SECTION, or (iii) rape in the first degree,
   19  criminal sexual act in the first degree,  or  aggravated  sexual  abuse,
   20  except as provided in subdivision three OF THIS SECTION, OR (IV) ASSAULT
   21  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 120.10 OF
   22  THE PENAL LAW, OR (V) GANG ASSAULT IN THE FIRST  DEGREE  AS  DEFINED  IN
   23  SUBDIVISION TWO OF SECTION 120.07 OF THE PENAL LAW, OR (VI) MANSLAUGHTER
   24  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF
   25  THE PENAL LAW, or
   26    S 5. Subdivision 18 of section 10.00 of the penal law, as  amended  by
   27  chapter 7 of the laws of 2007, is amended to read as follows:
   28    18.  "Juvenile  offender" means (1) a person thirteen years old who is
   29  criminally responsible for acts constituting murder in the second degree
   30  as defined in subdivisions one and two of section 125.25 of this chapter
   31  or such conduct as a sexually motivated felony, where authorized  pursu-
   32  ant to section 130.91 of [the penal law] THIS CHAPTER; and
   33    (2) a person fourteen or fifteen years old who is criminally responsi-
   34  ble for acts constituting the crimes defined in subdivisions one and two
   35  of section 125.25 (murder in the second degree) and in subdivision three
   36  of such section provided that the underlying crime for the murder charge
   37  is  one  for which such person is criminally responsible; section 135.25
   38  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
   39  subdivisions  one  [and], two AND FIVE of section 120.10 (assault in the
   40  first degree); SUBDIVISION TWO OF SECTION 120.07 (GANG  ASSAULT  IN  THE
   41  FIRST  DEGREE);  125.20 (manslaughter in the first degree); subdivisions
   42  one and two of section 130.35 (rape in the first  degree);  subdivisions
   43  one and two of section 130.50 (criminal sexual act in the first degree);
   44  130.70  (aggravated  sexual abuse in the first degree); 140.30 (burglary
   45  in the first degree); subdivision one of section 140.25 (burglary in the
   46  second degree); 150.15 (arson in the second degree); 160.15 (robbery  in
   47  the  first  degree);  subdivision  two of section 160.10 (robbery in the
   48  second degree) of this chapter; or section 265.03 of this chapter, where
   49  such machine gun or such firearm is possessed on school grounds, as that
   50  phrase is defined in subdivision fourteen  of  section  220.00  of  this
   51  chapter;  or  defined  in this chapter as an attempt to commit murder in
   52  the second degree or kidnapping in the first degree, or such conduct  as
   53  a sexually motivated felony, where authorized pursuant to section 130.91
   54  of [the penal law] THIS CHAPTER.
   55    S  6. Section 70.05 of the penal law is amended by adding a new subdi-
   56  vision 4 to read as follows:
       S. 6283                             3
    1    4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A
    2  JUVENILE OFFENDER IS CONVICTED OF ASSAULT IN THE FIRST DEGREE AS DEFINED
    3  IN SUBDIVISION FIVE OF SECTION 120.10; GANG ASSAULT IN THE FIRST  DEGREE
    4  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07; OR MANSLAUGHTER IN THE
    5  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
    6  CHAPTER, SUCH OFFENDER SHALL BE SENTENCED PURSUANT TO SECTION  70.02  OF
    7  THIS  ARTICLE;  PROVIDED,  THAT THE PROVISIONS OF THIS SUBDIVISION SHALL
    8  ONLY APPLY TO JUVENILE OFFENDERS OVER THIRTEEN YEARS OLD.
    9    S 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law,
   10  as added by chapter 481 of the laws of 1978 and relettered by chapter  3
   11  of the laws of 1995, is amended to read as follows:
   12    (f) The aggregate maximum term of consecutive sentences imposed upon a
   13  juvenile  offender for two or more crimes, not including a class A felo-
   14  ny,  OR ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  FIVE  OF
   15  SECTION  120.10, GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
   16  SION TWO OF SECTION 120.07, OR  MANSLAUGHTER  IN  THE  FIRST  DEGREE  AS
   17  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   18  before  he  has  reached  the  age  of sixteen, shall, if it exceeds ten
   19  years, be deemed to be ten years. If consecutive indeterminate sentences
   20  imposed upon a juvenile offender include a  sentence  for  the  class  A
   21  felony  of  arson  in  the  first degree [or for the class A felony of],
   22  kidnapping in the first degree, ASSAULT IN THE FIRST DEGREE  AS  DEFINED
   23  IN  SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE
   24  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN  THE
   25  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
   26  CHAPTER, then the aggregate maximum term of such sentences shall, if  it
   27  exceeds   [fifteen]   TWENTY-FIVE  years,  be  deemed  to  be  [fifteen]
   28  TWENTY-FIVE years. Where the aggregate  maximum  term  of  two  or  more
   29  consecutive  sentences is reduced by a calculation made pursuant to this
   30  paragraph, the aggregate minimum period of imprisonment, if  it  exceeds
   31  one-half of the aggregate maximum term as so reduced, shall be deemed to
   32  be one-half of the aggregate maximum term as so reduced.
   33    S 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law,
   34  as  added  by  chapter  481  of  the laws of 1978, is amended to read as
   35  follows:
   36    (d) The aggregate maximum term of consecutive sentences imposed upon a
   37  juvenile offender for two or  more  crimes,  not  including  a  class  A
   38  felony,  ASSAULT  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   39  SECTION 120.10; GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
   40  SION  TWO  OF  SECTION  120.07;  OR  MANSLAUGHTER IN THE FIRST DEGREE AS
   41  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   42  before he has reached the age of  sixteen,  shall,  if  it  exceeds  ten
   43  years, be deemed to be ten years. If consecutive indeterminate sentences
   44  imposed  upon  a  juvenile  offender  include a sentence for the class A
   45  felony of arson in the first degree [or for  the  class  A  felony  of],
   46  kidnapping  in  the first degree, ASSAULT IN THE FIRST DEGREE AS DEFINED
   47  IN SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST  DEGREE
   48  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN THE
   49  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   50  CHAPTER,  then the aggregate maximum term of such sentences shall, if it
   51  exceeds  [fifteen]  TWENTY-FIVE  years,  be  deemed  to   be   [fifteen]
   52  TWENTY-FIVE  years.  Where  the  aggregate  maximum  term of two or more
   53  consecutive sentences is reduced by a calculation made pursuant to  this
   54  paragraph,  the  aggregate minimum period of imprisonment, if it exceeds
   55  one-half of the aggregate maximum term as so reduced, shall be deemed to
   56  be one-half of the aggregate maximum term as so reduced.
       S. 6283                             4
    1    S 9. Subdivision 4 of section 180.75 of the criminal procedure law, as
    2  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
    3  follows:
    4    4.  Notwithstanding  the  provisions  of subdivisions two and three of
    5  this section, a local criminal  court  shall,  at  the  request  of  the
    6  district  attorney, order removal of an action against a juvenile offen-
    7  der to the family court pursuant to  the  provisions  of  article  seven
    8  hundred twenty-five of this chapter if, upon consideration of the crite-
    9  ria  specified  in subdivision two of section 210.43 of this chapter, it
   10  is determined that to do so  would  be  in  the  interests  of  justice.
   11  Where,  however, the felony complaint charges the juvenile offender with
   12  murder in the second degree as defined in section 125.25  of  the  penal
   13  law,  rape  in the first degree as defined in subdivision one of section
   14  130.35 of the penal law, criminal sexual act  in  the  first  degree  as
   15  defined  in  subdivision one of section 130.50 of the penal law, [or] an
   16  armed felony as defined in paragraph (a)  of  subdivision  forty-one  of
   17  section  1.20 of this chapter, ASSAULT IN THE FIRST DEGREE AS DEFINED IN
   18  SUBDIVISION FIVE OF SECTION 120.10 OF THE PENAL LAW, GANG ASSAULT IN THE
   19  FIRST DEGREE AS DEFINED IN SUBDIVISION TWO  OF  SECTION  120.07  OF  THE
   20  PENAL LAW, OR MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION
   21  FIVE  OF  SECTION  125.20  OF  THE  PENAL LAW, a determination that such
   22  action be removed to the family court shall, in addition, be based  upon
   23  a  finding  of  one  or  more  of  the following factors: (i) mitigating
   24  circumstances that bear directly upon the manner in which the crime  was
   25  committed;  or  (ii) where the defendant was not the sole participant in
   26  the crime, the defendant's participation was relatively  minor  although
   27  not  so  minor  as  to constitute a defense to the prosecution; or (iii)
   28  possible deficiencies in proof of the crime.
   29    S 10. This act shall take effect immediately; provided that the amend-
   30  ments to paragraph (f) of subdivision 1 of section 70.30  of  the  penal
   31  law,  made  by section seven of this act shall be subject to the expira-
   32  tion and reversion of such paragraph  pursuant  to  subdivision  (d)  of
   33  section  74 of chapter 3 of the laws of 1995, as amended, when upon such
   34  date the provisions of section eight of this act shall take effect.