A08382 Summary:

BILL NO    A08382A

SAME AS    SAME AS S06283

SPONSOR    Tedisco (MS)

COSPNSR    Skartados, Borelli, Palmesano, Barclay, McLaughlin, McDonough,
           DiPietro, Crouch, Lalor, Raia

MLTSPNSR   

Amd SS120.10, 120.07, 125.20, 10.00, 70.05 & 70.30, Pen L; amd SS720.10 &
180.75, CP L

Relates to certain assault crimes wherein a person is aided or encouraged to
strike the victim in the head and cause unconsciousness.
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A08382 Actions:

BILL NO    A08382A

01/09/2014 referred to codes
01/23/2014 amend and recommit to codes
01/23/2014 print number 8382a
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A08382 Votes:

There are no votes for this bill in this legislative session.
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A08382 Memo:

BILL NUMBER:A8382A

TITLE OF BILL:  An act to amend the penal law and the criminal
procedure law, in relation to assault or aiding or encouraging assault

PURPOSE OR GENERAL IDEA OF BILL:  this bill would provide serious
penalties for both youth and adults who make a "game" out of a violent
assault, sometimes referred to as the "knockout game" wherein
participants (generally a group of two or more youths) choose a
vulnerable victim and one member of this group attempts to render the
victim unconscious with a single blow to the head. This bill would
ensure that intentionally rendering someone unconscious by striking
that individual on the head and thereby causing physical injury,
serious physical injury or death to that person, or aiding or
encouraging another participant to engage in this behavior, is treated
as the serious crime that it is and eliminating the more lenient
treatment that would otherwise be afforded to youths when they commit
the violent crimes involved in this "game."

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill adds the act of a minor striking an
unsuspecting person in the head with the intent to render such person
unconscious or aiding or encouraging someone to do the same and as a
result causing physical injury or serious physical injury to the crime
of Assault in the first degree (a class B violent felony offense).

Section two of the bill adds the actions described above, when done
with a group of two or more other persons, to the crime of Gang
Assault in the first degree, (a class B violent felony offense).

Section three of the bill adds the actions described above, when this
act results in the death of the victim, to the crime of Manslaughter
in the first degree (a class B violent felony offense).

Section four of the bill adds the new subsections of Assault first,
Gang Assault first and Manslaughter first to the list of crimes that
are exempt from being provided with youthful offender status.

Section five of the bill adds the new subsections of Assault first,
Gang Assault first and Manslaughter first to the list of crimes for
which youths aged fourteen and fifteen years old may not be treated as
a juvenile offender.

Section six of the bill provides that where a child who is convicted
of the new subsections of Assault first, Gang Assault first and
Manslaughter first, would otherwise be sentenced as a juvenile
offender, such person shall instead be sentenced in accordance with
the adult sentencing framework.

Sections seven and eight of the bill allow youths between the ages of
14 and 18, who are convicted of any of the new subsections added by
this bill regarding Assault first, Gang Assault first and Manslaughter
first to be sentenced up to 25 years imprisonment when serving
consecutive sentences. This section also increases to 25 years the
maximum consecutive penalty where one of the crimes is Arson first and
kidnapping first.


Section nine of the bill provides that before a youth, accused of the
above new sections of law, may be removed from criminal court to
Family Court for further proceedings the court must find that it is in
the interest of justice and that there are mitigating circumstances
that bear directly on the commission of the crime; the defendant was
not the sole participant in the crime and his or her participation was
relatively minor (although not so minor as to constitute a defense);
or that there are possible deficiencies in proof of the crime.

Section ten provides the effective date.

JUSTIFICATION:  Merlin reports have noted what appears to be a
disturbing new trend in crime called the "knockout game" that has
taken place in New York and in several other states. In these
incidents, one individual within a group will suddenly sucker punch a
stranger in the head in an attempt to render the person unconscious.

Many victims have been women, immigrants and the elderly. The
perpetrators are generally young, from early teens into the early
twenties, and are in groups where the group encourages the perpetrator
to see if he can knock out the victim with one punch to the head. In
most cases the victims are not robbed, but it has been reported that
the group celebrates and encourages the attacker where the attack is
successful. Without the encouragement of the group these attacks would
not be taking place. This is why this bill holds all the members of
the group equally accountable for this crime, not just the individual
who actually throws the punch.

This legislation will provide sanctions appropriate to the seriousness
of the crimes involved. Our youth need to realize that this "game" is
a serious crime that puts people at risk of serious injury or death,
and that they cannot "get away" with these brutal assaults because of
their status as youth. Allowing just a slap on the wrist for this type
of violent crime will only encourage the continuation and spread of
this activity. The depravity of inflicting serious or even
life-threatening injury just for fun needs to be addressed, and those
who choose to participate in these cruel attacks must he held
accountable.

This legislation provides the sufficient sanctions that need to be in
place in order to deter people from engaging in this deplorable "game"
and to save the vulnerable among us from pain and suffering and even
death.

PRIOR LEGISLATIVE HISTORY: New Bill

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None

EFFECTIVE DATE: Immediately.
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A08382 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        8382--A

                                 I N  A S S E M B L Y

                                    January 9, 2014
                                      ___________

       Introduced  by  M.  of  A. TEDISCO, ROSA, SKARTADOS, BORELLI, PALMESANO,
         BARCLAY, McLAUGHLIN, McDONOUGH, DIPIETRO, CROUCH, LALOR, RAIA --  read
         once  and  referred to the Committee on Codes -- committee discharged,
         bill amended, ordered reprinted as amended  and  recommitted  to  said
         committee

       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.

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13180-05-4
       A. 8382--A                          2

    1    Gang assault in the first degree is a class B felony.
    2    S  3.  Subdivision  4  of section 125.20 of the penal law, as added by
    3  chapter 477 of the laws of 1990, is amended and a new subdivision  5  is
    4  added to read as follows:
    5    4.  Being eighteen years old or more and with intent to cause physical
    6  injury to a person less than eleven years old, the defendant  recklessly
    7  engages in conduct which creates a grave risk of serious physical injury
    8  to such person and thereby causes the death of such person[.]; OR
    9    5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
   10  UNSUSPECTING  PERSON  TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH
   11  PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER  PARTICIPANT
   12  TO STRIKE SUCH PERSON ON THE HEAD, CAUSING THE DEATH OF SUCH PERSON.
   13    S  4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
   14  procedure law, as amended by chapter 316 of the laws of 2006, is amended
   15  to read as follows:
   16    (a) the conviction to be replaced by a youthful  offender  finding  is
   17  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
   18  defined in subdivision forty-one of section 1.20, except as provided  in
   19  subdivision  three  OF  THIS SECTION, or (iii) rape in the first degree,
   20  criminal sexual act in the first degree,  or  aggravated  sexual  abuse,
   21  except as provided in subdivision three OF THIS SECTION, OR (IV) ASSAULT
   22  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 120.10 OF
   23  THE PENAL LAW, OR (V) GANG ASSAULT IN THE FIRST  DEGREE  AS  DEFINED  IN
   24  SUBDIVISION TWO OF SECTION 120.07 OF THE PENAL LAW, OR (VI) MANSLAUGHTER
   25  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF
   26  THE PENAL LAW, or
   27    S 5. Subdivision 18 of section 10.00 of the penal law, as  amended  by
   28  chapter 7 of the laws of 2007, is amended to read as follows:
   29    18.  "Juvenile  offender" means (1) a person thirteen years old who is
   30  criminally responsible for acts constituting murder in the second degree
   31  as defined in subdivisions one and two of section 125.25 of this chapter
   32  or such conduct as a sexually motivated felony, where authorized  pursu-
   33  ant to section 130.91 of [the penal law] THIS CHAPTER; and
   34    (2) a person fourteen or fifteen years old who is criminally responsi-
   35  ble for acts constituting the crimes defined in subdivisions one and two
   36  of section 125.25 (murder in the second degree) and in subdivision three
   37  of such section provided that the underlying crime for the murder charge
   38  is  one  for which such person is criminally responsible; section 135.25
   39  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
   40  subdivisions  one  [and], two AND FIVE of section 120.10 (assault in the
   41  first degree); SUBDIVISION TWO OF SECTION 120.07 (GANG  ASSAULT  IN  THE
   42  FIRST  DEGREE);  125.20 (manslaughter in the first degree); subdivisions
   43  one and two of section 130.35 (rape in the first  degree);  subdivisions
   44  one and two of section 130.50 (criminal sexual act in the first degree);
   45  130.70  (aggravated  sexual abuse in the first degree); 140.30 (burglary
   46  in the first degree); subdivision one of section 140.25 (burglary in the
   47  second degree); 150.15 (arson in the second degree); 160.15 (robbery  in
   48  the  first  degree);  subdivision  two of section 160.10 (robbery in the
   49  second degree) of this chapter; or section 265.03 of this chapter, where
   50  such machine gun or such firearm is possessed on school grounds, as that
   51  phrase is defined in subdivision fourteen  of  section  220.00  of  this
   52  chapter;  or  defined  in this chapter as an attempt to commit murder in
   53  the second degree or kidnapping in the first degree, or such conduct  as
   54  a sexually motivated felony, where authorized pursuant to section 130.91
   55  of [the penal law] THIS CHAPTER.
       A. 8382--A                          3

    1    S  6. Section 70.05 of the penal law is amended by adding a new subdi-
    2  vision 4 to read as follows:
    3    4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A
    4  JUVENILE OFFENDER IS CONVICTED OF ASSAULT IN THE FIRST DEGREE AS DEFINED
    5  IN  SUBDIVISION FIVE OF SECTION 120.10; GANG ASSAULT IN THE FIRST DEGREE
    6  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07; OR MANSLAUGHTER IN  THE
    7  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
    8  CHAPTER, SUCH OFFENDER SHALL BE SENTENCED PURSUANT TO SECTION  70.02  OF
    9  THIS  ARTICLE;  PROVIDED,  THAT THE PROVISIONS OF THIS SUBDIVISION SHALL
   10  ONLY APPLY TO JUVENILE OFFENDERS OVER THIRTEEN YEARS OLD.
   11    S 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law,
   12  as added by chapter 481 of the laws of 1978 and relettered by chapter  3
   13  of the laws of 1995, is amended to read as follows:
   14    (f) The aggregate maximum term of consecutive sentences imposed upon a
   15  juvenile  offender for two or more crimes, not including a class A felo-
   16  ny,  OR ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  FIVE  OF
   17  SECTION  120.10, GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
   18  SION TWO OF SECTION 120.07, OR  MANSLAUGHTER  IN  THE  FIRST  DEGREE  AS
   19  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   20  before  he  has  reached  the  age  of sixteen, shall, if it exceeds ten
   21  years, be deemed to be ten years. If consecutive indeterminate sentences
   22  imposed upon a juvenile offender include a  sentence  for  the  class  A
   23  felony  of  arson  in  the  first degree [or for the class A felony of],
   24  kidnapping in the first degree, ASSAULT IN THE FIRST DEGREE  AS  DEFINED
   25  IN  SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE
   26  AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN  THE
   27  FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
   28  CHAPTER, then the aggregate maximum term of such sentences shall, if  it
   29  exceeds   [fifteen]   TWENTY-FIVE  years,  be  deemed  to  be  [fifteen]
   30  TWENTY-FIVE years. Where the aggregate  maximum  term  of  two  or  more
   31  consecutive  sentences is reduced by a calculation made pursuant to this
   32  paragraph, the aggregate minimum period of imprisonment, if  it  exceeds
   33  one-half of the aggregate maximum term as so reduced, shall be deemed to
   34  be one-half of the aggregate maximum term as so reduced.
   35    S 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law,
   36  as  added  by  chapter  481  of  the laws of 1978, is amended to read as
   37  follows:
   38    (d) The aggregate maximum term of consecutive sentences imposed upon a
   39  juvenile offender for two or  more  crimes,  not  including  a  class  A
   40  felony,  ASSAULT  IN  THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
   41  SECTION 120.10; GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
   42  SION  TWO  OF  SECTION  120.07;  OR  MANSLAUGHTER IN THE FIRST DEGREE AS
   43  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
   44  before he has reached the age of  sixteen,  shall,  if  it  exceeds  ten
   45  years, be deemed to be ten years. If consecutive indeterminate sentences
   46  imposed  upon  a  juvenile  offender  include a sentence for the class A
   47  felony of arson in the first degree [or for  the  class  A  felony  of],
   48  kidnapping  in  the first degree, ASSAULT IN THE FIRST DEGREE AS DEFINED
   49  IN SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST  DEGREE
   50  AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN THE
   51  FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
   52  CHAPTER,  then the aggregate maximum term of such sentences shall, if it
   53  exceeds  [fifteen]  TWENTY-FIVE  years,  be  deemed  to   be   [fifteen]
   54  TWENTY-FIVE  years.  Where  the  aggregate  maximum  term of two or more
   55  consecutive sentences is reduced by a calculation made pursuant to  this
   56  paragraph,  the  aggregate minimum period of imprisonment, if it exceeds
       A. 8382--A                          4

    1  one-half of the aggregate maximum term as so reduced, shall be deemed to
    2  be one-half of the aggregate maximum term as so reduced.
    3    S 9. Subdivision 4 of section 180.75 of the criminal procedure law, as
    4  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
    5  follows:
    6    4. Notwithstanding the provisions of subdivisions  two  and  three  of
    7  this  section,  a  local  criminal  court  shall,  at the request of the
    8  district attorney, order removal of an action against a juvenile  offen-
    9  der  to  the  family  court  pursuant to the provisions of article seven
   10  hundred twenty-five of this chapter if, upon consideration of the crite-
   11  ria specified in subdivision two of section 210.43 of this  chapter,  it
   12  is  determined  that  to  do  so  would  be in the interests of justice.
   13  Where, however, the felony complaint charges the juvenile offender  with
   14  murder  in  the  second degree as defined in section 125.25 of the penal
   15  law, rape in the first degree as defined in subdivision one  of  section
   16  130.35  of  the  penal  law,  criminal sexual act in the first degree as
   17  defined in subdivision one of section 130.50 of the penal law,  [or]  an
   18  armed  felony  as  defined  in paragraph (a) of subdivision forty-one of
   19  section 1.20 of this chapter, ASSAULT IN THE FIRST DEGREE AS DEFINED  IN
   20  SUBDIVISION FIVE OF SECTION 120.10 OF THE PENAL LAW, GANG ASSAULT IN THE
   21  FIRST  DEGREE  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 120.07 OF THE
   22  PENAL LAW, OR MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION
   23  FIVE OF SECTION 125.20 OF THE  PENAL  LAW,  a  determination  that  such
   24  action  be removed to the family court shall, in addition, be based upon
   25  a finding of one or  more  of  the  following  factors:  (i)  mitigating
   26  circumstances  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;  or  (iii)
   30  possible deficiencies in proof of the crime.
   31    S 10. This act shall take effect immediately; provided that the amend-
   32  ments  to  paragraph  (f) of subdivision 1 of section 70.30 of the penal
   33  law, made by section seven of this act shall be subject to  the  expira-
   34  tion  and  reversion  of  such  paragraph pursuant to subdivision (d) of
   35  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
   36  date the provisions of section eight of this act shall take effect.
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