S04773 Summary:

BILL NOS04773
 
SAME ASSAME AS A03971
 
SPONSORFLANAGAN
 
COSPNSR
 
MLTSPNSR
 
Amd S10.00, add Art 280 SS280.00 - 280.10, amd S60.05, add S70.09, Pen L; amd SS180.75, 220.10, 220.30 & 720.10, CP L
 
Defines the felonies of victimizing the elderly or physically disabled in the 3rd degree, 2nd degree and 1st degree and provides that a sentence of imprisonment must be imposed upon conviction of certain offenses against the elderly or physically disabled; provides that a juvenile offender shall include a person 14 or 15 years old who is criminally responsible for victimizing the elderly or physically disabled; includes within the category, "eligible youth" for youthful offender treatment, one who has been convicted of victimizing the elderly or the physically disabled in the 1st degree; provides certain plea restrictions and sentencing structure for persons convicted of such crimes.
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S04773 Actions:

BILL NOS04773
 
04/27/2009REFERRED TO CODES
01/06/2010REFERRED TO CODES
05/03/2010NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
06/08/2010REPORTED AND COMMITTED TO FINANCE
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S04773 Floor Votes:

There are no votes for this bill in this legislative session.
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S04773 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4773
 
                               2009-2010 Regular Sessions
 
                    IN SENATE
 
                                     April 27, 2009
                                       ___________
 
        Introduced  by Sen. FLANAGAN -- 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 mandatory imprisonment and plea restrictions for offenses
          victimizing the elderly and physically disabled
 

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. It is hereby found and declared that elderly and physically
     2  disabled  people  continue  to be singled out as victims of crime. It is
     3  also found that the physical  harm  and  emotional  trauma  suffered  by
     4  elderly  and  physically disabled crime victims has a devastating effect
     5  on the lives of those victims.
     6    The elderly or physically disabled victim  has  a  decreased  physical
     7  capability  to resist an attacker and thus becomes an inviting target of
     8  crime. Moreover, the aftereffects of crime on the elderly and the  phys-
     9  ically  handicapped  affect  them  more deeply than any statistics would
    10  indicate. The emotional trauma  and  possible  serious  physical  damage
    11  resulting from a face to face crime may cause a permanent downgrading in

    12  the  elderly  or  physically  disabled  victim's lifestyle. Such victims
    13  often impose "house-arrest" on themselves,  afraid  to  shop,  to  visit
    14  friends,  to go to the doctor, to live, unless behind locked doors. Even
    15  those elderly or physically disabled who are not direct victims of crime
    16  suffer indirectly, because they, having learned of the terrible  tragedy
    17  suffered  by other elderly and physically disabled and fearful for their
    18  own individual safety, barricade  themselves  within  their  homes.  The
    19  older  or  physically disabled crime victim is thus twice victimized--by
    20  the crime and by its aftermath.
    21    Criminologists, sociologists, psychologists, and the police all recog-
    22  nize and acknowledge these facts, but the law does not.    It  has  been
    23  ineffective  in  deterring crimes against the elderly and the physically

    24  disabled,  particularly  those  involving  violence  or  the  threat  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06586-01-9

        S. 4773                             2
 
     1  violence.  Similarly,  special projects on crime prevention and improved
     2  techniques of communications for the elderly to the police do  not  halt
     3  or  reduce such crime. For these reasons, offenses committed against the
     4  elderly or the physically disabled must be treated as unique, and legis-
     5  lation  must  be  enacted  to  provide  a meaningful deterrent for those
     6  offenders who now victimize the elderly and the physically disabled.
     7    § 2. Subdivision 18 of section 10.00 of the penal law, as  amended  by

     8  chapter 7 of the laws of 2007, is amended to read as follows:
     9    18.  "Juvenile  offender" means (1) a person thirteen years old who is
    10  criminally responsible for acts constituting murder in the second degree
    11  as defined in subdivisions one and two of section 125.25 of this chapter
    12  or such conduct as a sexually motivated felony, where authorized  pursu-
    13  ant to section 130.91 of the penal law; and
    14    (2) a person fourteen or fifteen years old who is criminally responsi-
    15  ble for acts constituting the crimes defined in subdivisions one and two
    16  of section 125.25 (murder in the second degree) and in subdivision three
    17  of such section provided that the underlying crime for the murder charge
    18  is  one  for which such person is criminally responsible; section 135.25
    19  (kidnapping in the first degree); 150.20 (arson in  the  first  degree);

    20  subdivisions  one  and  two  of  section  120.10  (assault  in the first
    21  degree); 125.20 (manslaughter in the first degree); subdivisions one and
    22  two of section 130.35 (rape in the first degree); subdivisions  one  and
    23  two  of section 130.50 (criminal sexual act in the first degree); 130.70
    24  (aggravated sexual abuse in the first degree); 140.30 (burglary  in  the
    25  first degree); subdivision one of section 140.25 (burglary in the second
    26  degree);  150.15  (arson  in  the second degree); 160.15 (robbery in the
    27  first degree); subdivision two of section 160.10 (robbery in the  second
    28  degree)  of  this chapter; or section 265.03 of this chapter, where such
    29  machine gun or such firearm is possessed  on  school  grounds,  as  that
    30  phrase  is  defined  in  subdivision  fourteen of section 220.00 of this
    31  chapter; or defined in this chapter as an attempt to  commit  murder  in

    32  the  second  degree  or  kidnapping  in the first degree; section 280.00
    33  (victimizing the  elderly  or  the  physically  disabled  in  the  third
    34  degree); section 280.05 (victimizing the elderly or the physically disa-
    35  bled  in  the second degree); or section 280.10 (victimizing the elderly
    36  or the physically disabled in the first degree), or such  conduct  as  a
    37  sexually  motivated  felony, where authorized pursuant to section 130.91
    38  of the penal law.
    39    § 3. Section 10.00 of the penal law is amended  by  adding  three  new
    40  subdivisions 21, 22 and 23 to read as follows:
    41    21. "Elderly person" means a human being sixty-two years old or more.
    42    22.  "Victim",  as  that term is used in article two hundred eighty of
    43  this chapter, means, in a case of:

    44    (a)  assault, the person injured or intended to be injured;
    45    (b)   manslaughter or murder, the person  killed  or  intended  to  be
    46  killed or injured;
    47    (c)    rape or criminal sexual act, the person with whom the defendant
    48  has the sexual intercourse or deviate sexual intercourse;
    49    (d)  kidnapping, the person abducted;
    50    (e)   burglary or robbery, the  person  injured,  or  against  whom  a
    51  dangerous  instrument  is  or  is  threatened to be used, or to whom the
    52  weapon is displayed;
    53    (f)  arson, the person present in the building at the time; or
    54    (g)  larceny, the person in whom fear is instilled.
    55    23. "Physically disabled person" means a human being:


        S. 4773                             3
 
     1    (a) having an impairment requiring the use of leg braces, crutches  or
     2  artificial support, or
     3    (b)  having an impairment requiring confinement to a wheelchair, or
     4    (c)  having an impairment caused by amputation of a limb, or
     5    (d)  having total or partial impairment of sight necessitating the use
     6  of a guide dog or other guiding device.
     7    §  4.  The penal law is amended by adding a new article 280 to read as
     8  follows:
     9                                 ARTICLE 280
    10             OFFENSES AGAINST THE ELDERLY OR PHYSICALLY DISABLED
    11  Section 280.00 Victimizing the elderly or the physically disabled in the
    12                   third degree.

    13          280.05 Victimizing the elderly or the physically disabled in the
    14                   second degree.
    15          280.10 Victimizing the elderly or the physically disabled in the
    16                   first degree.
    17  § 280.00 Victimizing the elderly or the physically disabled in the third
    18             degree.
    19    A person is guilty of victimizing the elderly or the physically  disa-
    20  bled in the third degree when he or she:
    21    1. Commits any of the following felonies:
    22    Attempt  to  commit victimizing the elderly or the physically disabled
    23  in the second degree as defined in section 280.05,  or  assault  in  the
    24  second degree as defined in section 120.05; and

    25    2. The victim of such crime is an elderly person or a physically disa-
    26  bled person.
    27    Victimizing the elderly or the physically disabled in the third degree
    28  is a class D felony.
    29  § 280.05 Victimizing  the  elderly  or  the  physically  disabled in the
    30             second degree.
    31    A person is guilty of victimizing the elderly or the physically  disa-
    32  bled in the second degree when he or she:
    33    1. Commits any of the following felonies:
    34    Attempt  to  commit victimizing the elderly or the physically disabled
    35  in the first degree as defined in section 280.10, assault in  the  first
    36  degree  as  defined  in section 120.10, burglary in the second degree as

    37  defined in paragraph (b), (c), or (d)  of  subdivision  one  of  section
    38  140.25,  grand  larceny in the second degree as defined in clause (a) of
    39  subdivision two of section 155.40, or robbery in the  second  degree  as
    40  defined in subdivision two of section 160.10; and
    41    2. The victim of such crime is an elderly person or a physically disa-
    42  bled person.
    43    Victimizing  the  elderly  or  the  physically  disabled in the second
    44  degree is a class C felony.
    45  § 280.10 Victimizing the elderly or the physically disabled in the first
    46             degree.
    47    A person is guilty of victimizing the elderly or the physically  disa-
    48  bled in the first degree when he or she:
    49    1. Commits any of the following felonies:

    50    Attempt  to commit a class A-I felony other than an offense defined in
    51  article two hundred twenty, manslaughter in the first degree as  defined
    52  in  section  125.20,  rape  in  the  first  degree as defined in section
    53  130.35, criminal sexual act in the first degree as  defined  in  section
    54  130.50,  kidnapping  in  the second degree as defined in section 135.20,
    55  burglary in the first degree as defined in  subdivision  two,  three  or

        S. 4773                             4
 
     1  four  of  section  140.30,  or robbery in the first degree as defined in
     2  subdivision one, three or four of section 160.15; and
     3    2. The victim of such crime is an elderly person or a physically disa-
     4  bled person.

     5    Victimizing the elderly or the physically disabled in the first degree
     6  is a class B felony.
     7    §  5. Section 60.05 of the penal law, as amended by chapter 410 of the
     8  laws of 1979, the section heading and subdivisions 2,  3,  4  and  5  as
     9  amended  by chapter 738 of the laws of 2004 and subdivision 1 as amended
    10  by chapter 7 of the laws of 2007, is amended to read as follows:
    11  § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
    12            nies and multiple felony offenders.
    13    1. Applicability. Except as provided in section 60.04 of this  article
    14  governing  the  authorized  dispositions  applicable  to felony offenses
    15  defined in article two hundred twenty or two hundred twenty-one of  this
    16  chapter  or  in  section  60.13 of this article governing the authorized

    17  dispositions applicable to felony sex offenses defined in paragraph  (a)
    18  of  subdivision  one  of section 70.80 of this title, this section shall
    19  govern the dispositions authorized when a person is to be sentenced upon
    20  a conviction of a class A felony, a class B felony or a class C, class D
    21  or class E felony specified herein, or when a person is to be  sentenced
    22  upon a conviction of a felony as a multiple felony offender.
    23    2.  Class  A  felony.  Except as provided in subdivision seven of this
    24  section and subdivisions three and four of section 70.06 of  this  chap-
    25  ter,  every  person  convicted  of a class A felony must be sentenced to
    26  imprisonment in accordance with section 70.00 of this title, unless such
    27  person is convicted of murder in the first degree and  is  sentenced  in
    28  accordance with section 60.06 of this article.

    29    3.  Class  B  felony. Except as provided in [subdivision] subdivisions
    30  six and seven of this section, every  person  convicted  of  a  class  B
    31  violent felony offense as defined in subdivision one of section 70.02 of
    32  this  title,  must  be sentenced to imprisonment in accordance with such
    33  section 70.02; and, except  as  provided  in  subdivision  six  of  this
    34  section,  every  person  convicted  of  any other class B felony must be
    35  sentenced to imprisonment in  accordance  with  section  70.00  of  this
    36  title.
    37    4.  Certain  class  C  felonies.  Except  as provided in [subdivision]
    38  subdivisions six and seven, every person convicted of a class C  violent
    39  felony  offense  as  defined in subdivision one of section 70.02 of this
    40  title, must be sentenced to  imprisonment  in  accordance  with  section

    41  70.02  of this title; and, except as provided in subdivision six of this
    42  section, every person convicted of the class C felonies of:  attempt  to
    43  commit  any  of  the  class B felonies of bribery in the first degree as
    44  defined in section 200.04,  bribe  receiving  in  the  first  degree  as
    45  defined in section 200.12, conspiracy in the second degree as defined in
    46  section  105.15  and criminal mischief in the first degree as defined in
    47  section 145.12; criminal usury in the first degree as defined in section
    48  190.42, rewarding official misconduct in the first degree as defined  in
    49  section  200.22,  receiving  reward for official misconduct in the first
    50  degree as defined in section 200.27, attempt to promote prostitution  in
    51  the first degree as defined in section 230.32, promoting prostitution in
    52  the  second  degree  as  defined  in  section 230.30, arson in the third

    53  degree as defined in section 150.10 of this chapter, must  be  sentenced
    54  to imprisonment in accordance with section 70.00 of this title.
    55    5.  Certain class D felonies. Except as provided in subdivision six of
    56  this section, every person convicted of the class D felonies of  assault

        S. 4773                             5
 
     1  in the second degree as defined in section 120.05 or attempt to commit a
     2  class  C  felony  as  defined in section 230.30 of this chapter, must be
     3  sentenced in accordance with section 70.00 or 85.00 of this title.
     4    6.  Multiple  felony  offender. When the court imposes sentence upon a
     5  second violent felony offender, as defined in section 70.04, or a second
     6  felony offender, as defined in section 70.06, the court  must  impose  a
     7  sentence  of  imprisonment in accordance with section 70.04 or 70.06, as

     8  the case may be, unless it imposes a sentence of imprisonment in accord-
     9  ance with section 70.08 or 70.10.
    10    7. Article  two  hundred  eighty  offenses.  When  the  court  imposes
    11  sentence upon a person convicted of an offense enumerated in article two
    12  hundred  eighty, it must impose a sentence of imprisonment in accordance
    13  with section 70.09, unless it imposes  a  sentence  of  imprisonment  in
    14  accordance with section 70.06 or 70.10.
    15    8.  Fines.  Where  the  court  imposes  a  sentence of imprisonment in
    16  accordance with this section, the court also may impose a  fine  author-
    17  ized  by  article  eighty  and  in  such case the sentence shall be both
    18  imprisonment and a fine.
    19    § 6. The penal law is amended by adding a new section 70.09 to read as
    20  follows:

    21  § 70.09 Sentence of imprisonment for certain offenses against the elder-
    22             ly or the physically disabled.
    23    1. Except as provided in subdivision four every person, other  than  a
    24  person  sentenced  as  a  second  or  persistent felony offender, who is
    25  convicted of an offense against the elderly or the  physically  disabled
    26  defined in article two hundred eighty of this chapter, must be sentenced
    27  to  an  indeterminate  sentence  of  imprisonment in accordance with the
    28  provisions of subdivisions two and three of this section.
    29    2. The maximum term of such indeterminate sentence must  be  fixed  as
    30  follows:
    31    (a)  For  the  class  B felony of victimizing the elderly or the phys-

    32  ically disabled in the first degree, the term  must  be  at  least  nine
    33  years and must not exceed twenty-five years;
    34    (b)  For  the  class  C felony of victimizing the elderly or the phys-
    35  ically disabled in the second degree, the term  must  be  at  least  six
    36  years and must not exceed fifteen years;
    37    (c)  For  the  class  D felony of victimizing the elderly or the phys-
    38  ically disabled in the third degree, the term  must  be  at  least  four
    39  years and must not exceed seven years.
    40    3.  The minimum period of imprisonment for such indeterminate sentence
    41  must be fixed by the court and must be  specified  in  the  sentence  as
    42  follows:
    43    (a)  For  the  class  B felony of victimizing the elderly or the phys-

    44  ically disabled in the first degree, the minimum period of  imprisonment
    45  shall  not  be less than three years nor more than one-third the maximum
    46  term imposed by the court;
    47    (b) For the class C felony of victimizing the  elderly  or  the  phys-
    48  ically disabled in the second degree, the minimum period of imprisonment
    49  shall  be  not  less  than two years nor more than one-third the maximum
    50  term imposed by the court;
    51    (c) For the class D felony of victimizing the  elderly  or  the  phys-
    52  ically  disabled in the third degree, the minimum period of imprisonment
    53  shall be one-third the maximum term imposed by the court.
    54    4. Alternative definite sentence for class D  felony  offense  against

    55  the  elderly  or  the  physically  disabled. When a person, other than a
    56  multiple felony offender, is sentenced for the class D felony of victim-

        S. 4773                             6
 
     1  izing the elderly or the physically disabled in the  third  degree,  and
     2  the  court,  having  regard to the nature and circumstances of the crime
     3  and to the history and character of the defendant,  is  of  the  opinion
     4  that  it  would be unduly harsh to impose an indeterminate sentence, the
     5  court may impose a definite sentence of imprisonment and fix a  term  of
     6  one year.
     7    § 7. Subdivision 4 of section 180.75 of the criminal procedure law, as
     8  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
     9  follows:

    10    4. Notwithstanding the provisions of subdivisions  two  and  three  of
    11  this  section,  a  local  criminal  court  shall,  at the request of the
    12  district attorney, order removal of an action against a juvenile  offen-
    13  der  to  the  family  court  pursuant to the provisions of article seven
    14  hundred twenty-five of this chapter if, upon consideration of the crite-
    15  ria specified in subdivision two of section 210.43 of this  chapter,  it
    16  is  determined  that  to  do  so  would  be in the interests of justice.
    17  Where, however, the felony complaint charges the juvenile offender  with
    18  an  offense against the elderly or physically disabled, or murder in the
    19  second degree as defined in section 125.25 of the penal law, rape in the
    20  first degree as defined in subdivision one  of  section  130.35  of  the
    21  penal  law, criminal sexual act in the first degree as defined in subdi-

    22  vision one of section 130.50 of the penal law, or  an  armed  felony  as
    23  defined  in  paragraph  (a)  of subdivision forty-one of section 1.20 of
    24  this chapter, a determination that such action be removed to the  family
    25  court  shall, in addition, be based upon a finding of one or more of the
    26  following factors: (i) mitigating circumstances that bear directly  upon
    27  the manner in which the crime was committed; or (ii) where the defendant
    28  was not the sole participant in the crime, the defendant's participation
    29  was relatively minor although not so minor as to constitute a defense to
    30  the prosecution; or (iii) possible deficiencies in proof of the crime.
    31    §  8. Paragraph (c) of subdivision 5 of section 220.10 of the criminal
    32  procedure law, as amended by chapter 410 of the laws of 1979, is amended
    33  to read as follows:

    34    (c)  Where the indictment charges a felony, other than a class A felo-
    35  ny or class B felony defined in article two hundred twenty of the  penal
    36  law  or class B or class C violent felony offense as defined in subdivi-
    37  sion one of section 70.02 of the penal law, or the  class  C  felony  of
    38  victimizing  the elderly or the physically disabled in the second degree
    39  as defined in section 280.05 of the penal law, and it appears  that  the
    40  defendant has previously been subjected to a predicate felony conviction
    41  as  defined  in  penal law section 70.06 then any plea of guilty entered
    42  pursuant to subdivision three or four must be or must include at least a
    43  plea of guilty of a felony.
    44    § 9. Subparagraph (vi) of paragraph (b) of subdivision  3  of  section
    45  220.30  of  the criminal procedure law, as amended by chapter 481 of the

    46  laws of 1978 and as renumbered by chapter 233 of the laws  of  1980,  is
    47  amended to read as follows:
    48    (vi)  A plea of guilty, whether to the entire indictment or to part of
    49  the indictment for any crime other than a felony, may not be accepted on
    50  the  condition that it constitutes a complete disposition of one or more
    51  other indictments against the defendant wherein is  charged  a  class  B
    52  felony  other than a class B violent felony offense as defined in subdi-
    53  vision one of section 70.02 of the penal law, or the class C  felony  of
    54  victimizing  the elderly or the physically disabled in the second degree
    55  as defined in section 280.05 of the penal law.

        S. 4773                             7
 
     1    § 10. Subdivision 2 of section 720.10 of the criminal  procedure  law,

     2  as  amended by chapter 416 of the laws of 1986, paragraph (a) as amended
     3  by chapter 316 of the laws of 2006, is amended to read as follows:
     4    2.    "Eligible  youth"  means  a  youth who is eligible to be found a
     5  youthful offender.  Every youth is so eligible unless:
     6    (a) the conviction to be replaced by a youthful  offender  finding  is
     7  for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
     8  defined in subdivision forty-one of section 1.20, except as provided  in
     9  subdivision  three,  or  (iii) rape in the first degree, criminal sexual
    10  act in the first degree, or aggravated sexual abuse, except as  provided
    11  in subdivision three, or
    12    (b) such youth has previously been convicted and sentenced for a felo-
    13  ny, or
    14    (c)    such  youth has previously been adjudicated a youthful offender
    15  following conviction of a felony or has been  adjudicated  on  or  after

    16  September  first,  nineteen  hundred seventy-eight a juvenile delinquent
    17  who committed a designated felony act as defined  in  the  family  court
    18  act, or
    19    (d) such youth has been convicted of the class B felony of victimizing
    20  the elderly or the physically disabled in the first degree as defined in
    21  section 280.10 of the penal law.
    22    § 11. This act shall take effect on the first of January next succeed-
    23  ing the date on which it shall have become a law.
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