STATE OF NEW YORK
________________________________________________________________________
4826
2011-2012 Regular Sessions
IN ASSEMBLY
February 8, 2011
___________
Introduced by M. of A. P. RIVERA -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to prohibiting
plea bargaining where a defendant is indicted for the crime of rape 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. Subdivision 5 of section 220.10 of the criminal procedure
2 law is amended by adding a new paragraph (i) to read as follows:
3 (i) Where the indictment charges the class B felony of rape in the
4 first degree defined in section 130.35 of the penal law, then any plea
5 of guilty entered pursuant to subdivision three or four of this section
6 must be or must include a plea of guilty to the class B felony of rape
7 in the first degree defined in section 130.35 of the penal law.
8 § 2. Paragraph (g) of subdivision 5 of section 220.10 of the criminal
9 procedure law, as amended by chapter 410 of the laws of 1979, subpara-
10 graph (iii) as amended by chapter 264 of the laws of 2003, the second
11 undesignated paragraph as amended by chapter 920 of the laws of 1982 and
12 the closing paragraph as amended by chapter 411 of the laws of 1979, is
13 amended to read as follows:
14 (g) Where the defendant is a juvenile offender, the provisions of
15 paragraphs (a), (b), (c) and (d) of this subdivision shall not apply and
16 any plea entered pursuant to subdivision three or four of this section,
17 must be as follows:
18 (i) If the indictment charges a person fourteen or fifteen years old
19 with the crime of murder in the second degree any plea of guilty entered
20 pursuant to subdivision three or four of this section must be a plea of
21 guilty of a crime for which the defendant is criminally responsible;
22 (ii) If the indictment does not charge a crime specified in subpara-
23 graph (i) of this paragraph, then any plea of guilty entered pursuant to
24 subdivision three or four of this section must be a plea of guilty of a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00440-01-1
A. 4826 2
1 crime for which the defendant is criminally responsible unless a plea of
2 guilty is accepted pursuant to subparagraph (iii) of this paragraph;
3 (iii) Where the indictment does not charge a crime specified in
4 subparagraph (i) of this paragraph, the district attorney may recommend
5 removal of the action to the family court. Upon making such recommenda-
6 tion the district attorney shall submit a subscribed memorandum setting
7 forth: (1) a recommendation that the interests of justice would best be
8 served by removal of the action to the family court; and (2) if the
9 indictment charges a thirteen year old with the crime of murder in the
10 second degree, or a fourteen or fifteen year old with the crimes of rape
11 in the first degree as defined in subdivision one of section 130.35 of
12 the penal law, or criminal sexual act in the first degree as defined in
13 subdivision one of section 130.50 of the penal law, or an armed felony
14 as defined in paragraph (a) of subdivision forty-one of section 1.20 of
15 this chapter specific factors, one or more of which reasonably supports
16 the recommendation, showing, (i) mitigating circumstances that bear
17 directly upon the manner in which the crime was committed, or (ii) where
18 the defendant was not the sole participant in the crime, that the
19 defendant's participation was relatively minor although not so minor as
20 to constitute a defense to the prosecution, or (iii) possible deficien-
21 cies in proof of the crime, or (iv) where the juvenile offender has no
22 previous adjudications of having committed a designated felony act, as
23 defined in subdivision eight of section 301.2 of the family court act,
24 regardless of the age of the offender at the time of commission of the
25 act, that the criminal act was not part of a pattern of criminal behav-
26 ior and, in view of the history of the offender, is not likely to be
27 repeated.
28 If the court is of the opinion based on specific factors set forth in
29 the district attorney's memorandum that the interests of justice would
30 best be served by removal of the action to the family court, a plea of
31 guilty of a crime or act for which the defendant is not criminally
32 responsible may be entered pursuant to subdivision three or four of this
33 section, except that a thirteen year old charged with the crime of
34 murder in the second degree may only plead to a designated felony act,
35 as defined in subdivision eight of section 301.2 of the family court
36 act.
37 Upon accepting any such plea, the court must specify upon the record
38 the portion or portions of the district attorney's statement the court
39 is relying upon as the basis of its opinion and that it believes the
40 interests of justice would best be served by removal of the proceeding
41 to the family court. Such plea shall then be deemed to be a juvenile
42 delinquency fact determination and the court upon entry thereof must
43 direct that the action be removed to the family court in accordance with
44 the provisions of article seven hundred twenty-five of this chapter.
45 § 3. Paragraph (b) of subdivision 3 of section 220.30 of the criminal
46 procedure law is amended by adding a new subparagraph (x) to read as
47 follows:
48 (x) A plea of guilty, whether to the entire indictment or to part of
49 the indictment for any crime other than the class B felony of rape in
50 the first degree defined in section 130.35 of the penal law, may not be
51 accepted on condition that it constitutes a complete disposition of one
52 or more other indictments against the defendant wherein is charged the
53 class B felony of rape in the first degree defined in section 130.35 of
54 the penal law.
55 § 4. This act shall take effect on the first of November next succeed-
56 ing the date on which it shall have become a law.
