NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8382A
SPONSOR: Tedisco (MS)
 
TITLE OF BILL: An act to amend the penal law and the criminal proce-
dure 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 partic-
ipants (generally a group of two or more youths) choose a vulnerable
victim and one member of this group attempts to render the victim uncon-
scious 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 juve-
nile 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 Manslaught-
er first, would otherwise be sentenced as a juvenile offender, such
person shall instead be sentenced in accordance with the adult sentenc-
ing 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 consec-
utive 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 relative-
ly 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 perpetra-
tors 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 cele-
brates and encourages the attacker where the attack is successful. With-
out 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.
STATE OF NEW YORK
________________________________________________________________________
8382--A
IN ASSEMBLY
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 § 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 § 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 § 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 § 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 § 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 § 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 § 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] twenty-
30 five years. Where the aggregate maximum term of two or more consecutive
31 sentences is reduced by a calculation made pursuant to this paragraph,
32 the aggregate minimum period of imprisonment, if it exceeds one-half of
33 the aggregate maximum term as so reduced, shall be deemed to be one-half
34 of the aggregate maximum term as so reduced.
35 § 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] twenty-
54 five years. Where the aggregate maximum term of two or more consecutive
55 sentences is reduced by a calculation made pursuant to this paragraph,
56 the aggregate minimum period of imprisonment, if it exceeds one-half of
A. 8382--A 4
1 the aggregate maximum term as so reduced, shall be deemed to be one-half
2 of the aggregate maximum term as so reduced.
3 § 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 § 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.