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.
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.
