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
________________________________________________________________________
5217
2019-2020 Regular Sessions
IN ASSEMBLY
February 7, 2019
___________
Introduced by M. of A. RAIA, HAWLEY, KOLB, JOHNS, MALLIOTAKIS, LAVINE,
MONTESANO, McDONOUGH, FINCH -- Multi-Sponsored by -- M. of A. ARROYO,
BARCLAY, BLANKENBUSH, CROUCH, DiPIETRO, FITZPATRICK, GARBARINO,
GIGLIO, M. L. MILLER, MORINELLO, PALMESANO, RA, STEC, THIELE -- read
once and referred 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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07979-01-9
A. 5217 2
1 Criminologists, sociologists, psychologists, and the police all recog-
2 nize and acknowledge these facts, but the law does not. It has been
3 ineffective in deterring crimes against the elderly and the physically
4 disabled, particularly those involving violence or the threat of
5 violence. Similarly, special projects on crime prevention and improved
6 techniques of communications for the elderly to the police do not halt
7 or reduce such crime. For these reasons, offenses committed against the
8 elderly or the physically disabled must be treated as unique, and legis-
9 lation must be enacted to provide a meaningful deterrent for those
10 offenders who now victimize the elderly and the physically disabled.
11 § 2. Subdivision 18 of section 10.00 of the penal law, as amended by
12 chapter 7 of the laws of 2007, is amended to read as follows:
13 18. "Juvenile offender" means (1) a person thirteen years old who is
14 criminally responsible for acts constituting murder in the second degree
15 as defined in subdivisions one and two of section 125.25 of this chapter
16 or such conduct as a sexually motivated felony, where authorized pursu-
17 ant to section 130.91 of [the penal law] this chapter; and
18 (2) a person fourteen or fifteen years old who is criminally responsi-
19 ble for acts constituting the crimes defined in subdivisions one and two
20 of section 125.25 (murder in the second degree) and in subdivision three
21 of such section provided that the underlying crime for the murder charge
22 is one for which such person is criminally responsible; section 135.25
23 (kidnapping in the first degree); 150.20 (arson in the first degree);
24 subdivisions one and two of section 120.10 (assault in the first
25 degree); 125.20 (manslaughter in the first degree); subdivisions one and
26 two of section 130.35 (rape in the first degree); subdivisions one and
27 two of section 130.50 (criminal sexual act in the first degree); 130.70
28 (aggravated sexual abuse in the first degree); 140.30 (burglary in the
29 first degree); subdivision one of section 140.25 (burglary in the second
30 degree); 150.15 (arson in the second degree); 160.15 (robbery in the
31 first degree); subdivision two of section 160.10 (robbery in the second
32 degree) of this chapter; or section 265.03 of this chapter, where such
33 machine gun or such firearm is possessed on school grounds, as that
34 phrase is defined in subdivision fourteen of section 220.00 of this
35 chapter; or defined in this chapter as an attempt to commit murder in
36 the second degree or kidnapping in the first degree; section 280.00
37 (victimizing the elderly or the physically disabled in the third
38 degree); section 280.05 (victimizing the elderly or the physically disa-
39 bled in the second degree); or section 280.10 (victimizing the elderly
40 or the physically disabled in the first degree), or such conduct as a
41 sexually motivated felony, where authorized pursuant to section 130.91
42 of [the penal law] this chapter.
43 § 3. Section 10.00 of the penal law is amended by adding three new
44 subdivisions 22, 23 and 24 to read as follows:
45 22. "Elderly person" means a human being sixty-two years old or more.
46 23. "Victim", as that term is used in article two hundred eighty of
47 this chapter, means, in a case of:
48 (a) assault, the person injured or intended to be injured;
49 (b) manslaughter or murder, the person killed or intended to be
50 killed or injured;
51 (c) rape or criminal sexual act, the person with whom the defendant
52 has the sexual intercourse or deviate sexual intercourse;
53 (d) kidnapping, the person abducted;
54 (e) burglary or robbery, the person injured, or against whom a
55 dangerous instrument is or is threatened to be used, or to whom the
56 weapon is displayed;
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1 (f) arson, the person present in the building at the time; or
2 (g) larceny, the person in whom fear is instilled.
3 24. "Physically disabled person" means a human being:
4 (a) having an impairment requiring the use of leg braces, crutches or
5 artificial support, or
6 (b) having an impairment requiring confinement to a wheelchair, or
7 (c) having an impairment caused by amputation of a limb, or
8 (d) having total or partial impairment of sight necessitating the use
9 of a guide dog or other guiding device.
10 § 4. The penal law is amended by adding a new article 280 to read as
11 follows:
12 ARTICLE 280
13 OFFENSES AGAINST THE ELDERLY OR PHYSICALLY DISABLED
14 Section 280.00 Victimizing the elderly or the physically disabled in the
15 third degree.
16 280.05 Victimizing the elderly or the physically disabled in the
17 second degree.
18 280.10 Victimizing the elderly or the physically disabled in the
19 first degree.
20 § 280.00 Victimizing the elderly or the physically disabled in the third
21 degree.
22 A person is guilty of victimizing the elderly or the physically disa-
23 bled in the third degree when he or she:
24 1. Commits any of the following felonies:
25 Attempt to commit victimizing the elderly or the physically disabled
26 in the second degree as defined in section 280.05, or assault in the
27 second degree as defined in section 120.05; and
28 2. The victim of such crime is an elderly person or a physically disa-
29 bled person.
30 Victimizing the elderly or the physically disabled in the third degree
31 is a class D felony.
32 § 280.05 Victimizing the elderly or the physically disabled in the
33 second degree.
34 A person is guilty of victimizing the elderly or the physically disa-
35 bled in the second degree when he or she:
36 1. Commits any of the following felonies:
37 Attempt to commit victimizing the elderly or the physically disabled
38 in the first degree as defined in section 280.10, assault in the first
39 degree as defined in section 120.10, burglary in the second degree as
40 defined in paragraph (b), (c), or (d) of subdivision one of section
41 140.25, grand larceny in the second degree as defined in clause (a) of
42 subdivision two of section 155.40, or robbery in the second degree as
43 defined in subdivision two of section 160.10; and
44 2. The victim of such crime is an elderly person or a physically disa-
45 bled person.
46 Victimizing the elderly or the physically disabled in the second
47 degree is a class C felony.
48 § 280.10 Victimizing the elderly or the physically disabled in the first
49 degree.
50 A person is guilty of victimizing the elderly or the physically disa-
51 bled in the first degree when he or she:
52 1. Commits any of the following felonies:
53 Attempt to commit a class A-I felony other than an offense defined in
54 article two hundred twenty, manslaughter in the first degree as defined
55 in section 125.20, rape in the first degree as defined in section
56 130.35, criminal sexual act in the first degree as defined in section
A. 5217 4
1 130.50, kidnapping in the second degree as defined in section 135.20,
2 burglary in the first degree as defined in subdivision two, three or
3 four of section 140.30, or robbery in the first degree as defined in
4 subdivision one, three or four of section 160.15; and
5 2. The victim of such crime is an elderly person or a physically disa-
6 bled person.
7 Victimizing the elderly or the physically disabled in the first degree
8 is a class B felony.
9 § 5. Section 60.05 of the penal law, as amended by chapter 410 of the
10 laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
11 by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter
12 7 of the laws of 2007 and subdivision 5 as amended by chapter 405 of the
13 laws of 2010, is amended to read as follows:
14 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
15 nies and multiple felony offenders.
16 1. Applicability. Except as provided in section 60.04 of this article
17 governing the authorized dispositions applicable to felony offenses
18 defined in article two hundred twenty or two hundred twenty-one of this
19 chapter or in section 60.13 of this article governing the authorized
20 dispositions applicable to felony sex offenses defined in paragraph (a)
21 of subdivision one of section 70.80 of this title, this section shall
22 govern the dispositions authorized when a person is to be sentenced upon
23 a conviction of a class A felony, a class B felony or a class C, class D
24 or class E felony specified herein, or when a person is to be sentenced
25 upon a conviction of a felony as a multiple felony offender.
26 2. Class A felony. Except as provided in subdivision seven of this
27 section and subdivisions three and four of section 70.06 of this [chap-
28 ter] title, every person convicted of a class A felony must be sentenced
29 to imprisonment in accordance with section 70.00 of this title, unless
30 such person is convicted of murder in the first degree and is sentenced
31 in accordance with section 60.06 of this article.
32 3. Class B felony. Except as provided in [subdivision] subdivisions
33 six and seven of this section, every person convicted of a class B
34 violent felony offense as defined in subdivision one of section 70.02 of
35 this title, must be sentenced to imprisonment in accordance with such
36 section 70.02; and, except as provided in subdivision six of this
37 section, every person convicted of any other class B felony must be
38 sentenced to imprisonment in accordance with section 70.00 of this
39 title.
40 4. Certain class C felonies. Except as provided in [subdivision]
41 subdivisions six and seven of this section, every person convicted of a
42 class C violent felony offense as defined in subdivision one of section
43 70.02 of this title, must be sentenced to imprisonment in accordance
44 with section 70.02 of this title; and, except as provided in subdivision
45 six of this section, every person convicted of the class C felonies of:
46 attempt to commit any of the class B felonies of bribery in the first
47 degree as defined in section 200.04, bribe receiving in the first degree
48 as defined in section 200.12, conspiracy in the second degree as defined
49 in section 105.15 and criminal mischief in the first degree as defined
50 in section 145.12; criminal usury in the first degree as defined in
51 section 190.42, rewarding official misconduct in the first degree as
52 defined in section 200.22, receiving reward for official misconduct in
53 the first degree as defined in section 200.27, attempt to promote pros-
54 titution in the first degree as defined in section 230.32, promoting
55 prostitution in the second degree as defined in section 230.30, arson in
56 the third degree as defined in section 150.10 of this chapter, must be
A. 5217 5
1 sentenced to imprisonment in accordance with section 70.00 of this
2 title.
3 5. Certain class D felonies. Except as provided in subdivision six of
4 this section, every person convicted of the class D felonies of assault
5 in the second degree as defined in section 120.05, strangulation in the
6 second degree as defined in section 121.12 or attempt to commit a class
7 C felony as defined in section 230.30 of this chapter, must be sentenced
8 in accordance with section 70.00 or 85.00 of this title.
9 6. Multiple felony offender. When the court imposes sentence upon a
10 second violent felony offender, as defined in section 70.04, or a second
11 felony offender, as defined in section 70.06, the court must impose a
12 sentence of imprisonment in accordance with section 70.04 or 70.06, as
13 the case may be, unless it imposes a sentence of imprisonment in accord-
14 ance with section 70.08 or 70.10.
15 7. Article two hundred eighty offenses. When the court imposes
16 sentence upon a person convicted of an offense enumerated in article two
17 hundred eighty, it must impose a sentence of imprisonment in accordance
18 with section 70.09, unless it imposes a sentence of imprisonment in
19 accordance with section 70.06 or 70.10.
20 8. Fines. Where the court imposes a sentence of imprisonment in
21 accordance with this section, the court also may impose a fine author-
22 ized by article eighty and in such case the sentence shall be both
23 imprisonment and a fine.
24 § 6. The penal law is amended by adding a new section 70.09 to read as
25 follows:
26 § 70.09 Sentence of imprisonment for certain offenses against the elder-
27 ly or the physically disabled.
28 1. Except as provided in subdivision four every person, other than a
29 person sentenced as a second or persistent felony offender, who is
30 convicted of an offense against the elderly or the physically disabled
31 defined in article two hundred eighty of this chapter, must be sentenced
32 to an indeterminate sentence of imprisonment in accordance with the
33 provisions of subdivisions two and three of this section.
34 2. The maximum term of such indeterminate sentence must be fixed as
35 follows:
36 (a) For the class B felony of victimizing the elderly or the phys-
37 ically disabled in the first degree, the term must be at least nine
38 years and must not exceed twenty-five years;
39 (b) For the class C felony of victimizing the elderly or the phys-
40 ically disabled in the second degree, the term must be at least six
41 years and must not exceed fifteen years;
42 (c) For the class D felony of victimizing the elderly or the phys-
43 ically disabled in the third degree, the term must be at least four
44 years and must not exceed seven years.
45 3. The minimum period of imprisonment for such indeterminate sentence
46 must be fixed by the court and must be specified in the sentence as
47 follows:
48 (a) For the class B felony of victimizing the elderly or the phys-
49 ically disabled in the first degree, the minimum period of imprisonment
50 shall not be less than three years nor more than one-third the maximum
51 term imposed by the court;
52 (b) For the class C felony of victimizing the elderly or the phys-
53 ically disabled in the second degree, the minimum period of imprisonment
54 shall be not less than two years nor more than one-third the maximum
55 term imposed by the court;
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1 (c) For the class D felony of victimizing the elderly or the phys-
2 ically disabled in the third degree, the minimum period of imprisonment
3 shall be one-third the maximum term imposed by the court.
4 4. Alternative definite sentence for class D felony offense against
5 the elderly or the physically disabled. When a person, other than a
6 multiple felony offender, is sentenced for the class D felony of victim-
7 izing the elderly or the physically disabled in the third degree, and
8 the court, having regard to the nature and circumstances of the crime
9 and to the history and character of the defendant, is of the opinion
10 that it would be unduly harsh to impose an indeterminate sentence, the
11 court may impose a definite sentence of imprisonment and fix a term of
12 one year.
13 § 7. Subdivision 4 of section 180.75 of the criminal procedure law, as
14 amended by chapter 264 of the laws of 2003, is amended to read as
15 follows:
16 4. Notwithstanding the provisions of subdivisions two and three of
17 this section, a local criminal court shall, at the request of the
18 district attorney, order removal of an action against a juvenile offen-
19 der to the family court pursuant to the provisions of article seven
20 hundred twenty-five of this chapter if, upon consideration of the crite-
21 ria specified in subdivision two of section 210.43 of this chapter, it
22 is determined that to do so would be in the interests of justice.
23 Where, however, the felony complaint charges the juvenile offender with
24 an offense against the elderly or physically disabled, or murder in the
25 second degree as defined in section 125.25 of the penal law, rape in the
26 first degree as defined in subdivision one of section 130.35 of the
27 penal law, criminal sexual act in the first degree as defined in subdi-
28 vision one of section 130.50 of the penal law, or an armed felony as
29 defined in paragraph (a) of subdivision forty-one of section 1.20 of
30 this chapter, a determination that such action be removed to the family
31 court shall, in addition, be based upon a finding of one or more of the
32 following factors: (i) mitigating circumstances that bear directly upon
33 the manner in which the crime was committed; or (ii) where the defendant
34 was not the sole participant in the crime, the defendant's participation
35 was relatively minor although not so minor as to constitute a defense to
36 the prosecution; or (iii) possible deficiencies in proof of the crime.
37 § 8. Paragraph (c) of subdivision 5 of section 220.10 of the criminal
38 procedure law, as amended by chapter 410 of the laws of 1979, is amended
39 to read as follows:
40 (c) Where the indictment charges a felony, other than a class A felo-
41 ny or class B felony defined in article two hundred twenty of the penal
42 law or class B or class C violent felony offense as defined in subdivi-
43 sion one of section 70.02 of the penal law, or the class C felony of
44 victimizing the elderly or the physically disabled in the second degree
45 as defined in section 280.05 of the penal law, and it appears that the
46 defendant has previously been subjected to a predicate felony conviction
47 as defined in [penal law] section 70.06 of the penal law then any plea
48 of guilty entered pursuant to subdivision three or four must be or must
49 include at least a plea of guilty of a felony.
50 § 9. Subparagraph (vi) of paragraph (b) of subdivision 3 of section
51 220.30 of the criminal procedure law, as amended by chapter 481 of the
52 laws of 1978 and as renumbered by chapter 233 of the laws of 1980, is
53 amended to read as follows:
54 (vi) A plea of guilty, whether to the entire indictment or to part of
55 the indictment for any crime other than a felony, may not be accepted on
56 the condition that it constitutes a complete disposition of one or more
A. 5217 7
1 other indictments against the defendant wherein is charged a class B
2 felony other than a class B violent felony offense as defined in subdi-
3 vision one of section 70.02 of the penal law, or the class C felony of
4 victimizing the elderly or the physically disabled in the second degree
5 as defined in section 280.05 of the penal law.
6 § 10. Subdivision 2 of section 720.10 of the criminal procedure law,
7 as amended by chapter 416 of the laws of 1986, paragraph (a) as amended
8 by chapter 316 of the laws of 2006, is amended to read as follows:
9 2. "Eligible youth" means a youth who is eligible to be found a
10 youthful offender. Every youth is so eligible unless:
11 (a) the conviction to be replaced by a youthful offender finding is
12 for (i) a class A-I or class A-II felony, or (ii) an armed felony as
13 defined in subdivision forty-one of section 1.20, except as provided in
14 subdivision three of this section, or (iii) rape in the first degree,
15 criminal sexual act in the first degree, or aggravated sexual abuse,
16 except as provided in subdivision three of this section, or
17 (b) such youth has previously been convicted and sentenced for a felo-
18 ny, or
19 (c) such youth has previously been adjudicated a youthful offender
20 following conviction of a felony or has been adjudicated on or after
21 September first, nineteen hundred seventy-eight a juvenile delinquent
22 who committed a designated felony act as defined in the family court
23 act, or
24 (d) such youth has been convicted of the class B felony of victimizing
25 the elderly or the physically disabled in the first degree as defined in
26 section 280.10 of the penal law.
27 § 11. This act shall take effect on the first of January next succeed-
28 ing the date on which it shall have become a law; provided, however,
29 that the amendments to subdivision 4 of section 180.75 of the criminal
30 procedure law made by section seven of this act shall not affect the
31 repeal of such subdivision and shall be deemed repealed therewith.
