STATE OF NEW YORK
________________________________________________________________________
5065--B
2015-2016 Regular Sessions
IN ASSEMBLY
February 12, 2015
___________
Introduced by M. of A. SEPULVEDA, GUNTHER, CRESPO, BRINDISI, MAYER,
GALEF, SKARTADOS, MOSLEY, COLTON, LUPINACCI, WALTER, MONTESANO, RAIA,
DiPIETRO, SALADINO, MILLER, STECK, WALKER, ROBINSON, THIELE, COOK,
GRAF, HOOPER, PALMESANO -- Multi-Sponsored by -- M. of A. CERETTO,
CROUCH, DUPREY, GARBARINO, MAGEE, McDONALD, McDONOUGH, McKEVITT, MOYA,
PALUMBO, PERRY, RIVERA, SCHIMEL -- read once and referred to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- again reported from said committee with amendments, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the penal law, in relation to establishing the offenses
of aggravated assault upon a person less than ten years old and crimi-
nal use of a firearm in the first degree
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 "Luisito's law".
3 § 2. Paragraph (a) of subdivision 1 of section 70.02 of the penal
4 law, as amended by chapter 368 of the laws of 2015, is amended to read
5 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 degree as defined in section 130.70, course of sexual conduct
15 against a child in the first degree as defined in section 130.75;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03951-04-6
A. 5065--B 2
1 assault in the first degree as defined in section 120.10, kidnapping in
2 the second degree as defined in section 135.20, burglary in the first
3 degree as defined in section 140.30, arson in the second degree as
4 defined in section 150.15, robbery in the first degree as defined in
5 section 160.15, sex trafficking as defined in paragraphs (a) and (b) of
6 subdivision five of section 230.34, incest in the first degree as
7 defined in section 255.27, criminal possession of a weapon in the first
8 degree as defined in section 265.04, criminal use of a firearm in the
9 first degree as defined in section 265.09, criminal sale of a firearm in
10 the first degree as defined in section 265.13, aggravated assault upon a
11 police officer or a peace officer as defined in section 120.11, gang
12 assault in the first degree as defined in section 120.07, aggravated
13 assault upon a person less than ten years old as defined in section
14 120.12-a, intimidating a victim or witness in the first degree as
15 defined in section 215.17, hindering prosecution of terrorism in the
16 first degree as defined in section 490.35, criminal possession of a
17 chemical weapon or biological weapon in the second degree as defined in
18 section 490.40, and criminal use of a chemical weapon or biological
19 weapon in the third degree as defined in section 490.47.
20 § 3. The penal law is amended by adding a new section 120.12-a to read
21 as follows:
22 § 120.12-a Aggravated assault upon a person less than ten years old.
23 A person is guilty of aggravated assault upon a person less than ten
24 years old when, being eighteen years old or older, with intent to cause
25 physical injury to another person, he or she causes such injury to a
26 child less than ten years old by means of a deadly weapon or dangerous
27 instrument.
28 Aggravated assault upon a person less than ten years old is a class B
29 felony.
30 § 4. Section 265.09 of the penal law, as amended by chapter 650 of the
31 laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
32 is amended to read as follows:
33 § 265.09 Criminal use of a firearm in the first degree.
34 (1) A person is guilty of criminal use of a firearm in the first
35 degree when he or she commits any class B violent felony offense as
36 defined in paragraph (a) of subdivision one of section 70.02 of this
37 chapter, or he or she commits a specified offense while knowing he or
38 she is on school grounds, as defined in subdivision fourteen of section
39 220.00 of this part, or within two hundred fifty feet of any playground
40 operated by the city of New York or any department or public authority
41 thereof, and he or she either:
42 (a) possesses a deadly weapon, if the weapon is a loaded weapon from
43 which a shot, readily capable of producing death or other serious injury
44 may be discharged; or
45 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
46 machine gun or other firearm.
47 [Criminal use of a firearm in the first degree is a class B felony.]
48 (2) For the purposes of this section, a "specified offense" is an
49 offense defined by any of the following provisions of this chapter:
50 section 115.05 (criminal facilitation in the second degree), 265.16
51 (criminal sale of a firearm to a minor), 100.13 (criminal solicitation
52 in the first degree), 155.40 (grand larceny in the second degree),
53 120.05 (assault in the second degree), 265.11 (criminal sale of a
54 firearm in the third degree), 130.90 (facilitating a sex offense with a
55 controlled substance), 215.16 (intimidating a victim or witness in the
56 second degree), 120.18 (menacing a police officer or peace officer),
A. 5065--B 3
1 120.02 (reckless assault of a child), 120.60 (stalking in the first
2 degree), 121.12 (strangulation in the second degree), 130.30 (rape in
3 the second degree), 130.45 (criminal sexual act in the second degree),
4 130.65 (sexual abuse in the first degree), 130.80 (course of sexual
5 conduct against a child in the second degree), 130.66 (aggravated sexual
6 abuse in the third degree), 135.65 (coercion in the first degree),
7 265.17 (criminal purchase or disposal of a weapon), 120.25 (reckless
8 endangerment in the first degree), 165.05 (robbery in the third degree),
9 or 215.12 (tampering with a witness in the second degree).
10 (3) Sentencing. Notwithstanding any other provision of law to the
11 contrary, when a person is convicted of criminal use of a firearm in the
12 first degree as defined in subdivision one of this section, the court
13 shall impose an additional consecutive sentence of five years to the
14 sentence imposed on the underlying class B violent felony offense where
15 the person convicted of such crime displays a loaded weapon from which a
16 shot, readily capable of producing death or other serious injury may be
17 discharged, in furtherance of the commission of such crime, provided,
18 however, that such additional sentence shall not be imposed if the
19 court, having regard to the nature and circumstances of the crime and to
20 the history and character of the defendant, finds on the record that
21 such additional consecutive sentence would be unduly harsh and that not
22 imposing such sentence would be consistent with the public safety and
23 would not deprecate the seriousness of the crime. Notwithstanding any
24 other provision of law to the contrary, the aggregate of the five year
25 consecutive term imposed pursuant to this subdivision and the minimum
26 term of the indeterminate sentence imposed on the underlying class B
27 violent felony shall constitute the new aggregate minimum term of impri-
28 sonment, and a person subject to such term shall be required to serve
29 the entire aggregate minimum term and shall not be eligible for release
30 on parole or conditional release during such term. This subdivision
31 shall not apply where the defendant's criminal liability for displaying
32 a loaded weapon from which a shot, readily capable of producing death or
33 other serious injury may be discharged, in furtherance of the commission
34 of crime is based on the conduct of another pursuant to section 20.00 of
35 this chapter.
36 Criminal use of a firearm in the first degree is a class B felony.
37 § 5. This act shall take effect on the first of November next succeed-
38 ing the date upon which it shall have become a law.