Relates to limiting plea bargaining for sex offenders; makes additional changes relating to repeat sex offenders; grants the prosecution the right to appeal certain sentences they believe are unduly lenient; authorizes judges to review an order of recognizance or bail previously entered in certain cases and revoke the order if such judges determine such order an abuse of discretion.
STATE OF NEW YORK
________________________________________________________________________
6510
2009-2010 Regular Sessions
IN ASSEMBLY
March 6, 2009
___________
Introduced by M. of A. SCOZZAFAVA, McDONOUGH -- Multi-Sponsored by -- M.
of A. ALFANO, BACALLES, BARCLAY, BARRA, BURLING, BUTLER, CALHOUN,
CONTE, CROUCH, ERRIGO, FINCH, FITZPATRICK, GIGLIO, HAYES, KOLB, MILL-
ER, OAKS, O'MARA, QUINN, RABBITT, RAIA, REILICH, SALADINO, SAYWARD,
TEDISCO, THIELE, TOWNSEND, WALKER -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to limiting plea
bargaining for sex offenders; and to amend the penal law, the
correction law and the criminal procedure law, in relation to repeat
sex offenders
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 a felony contained in article one
4 hundred thirty or section 255.25, 263.05, 263.10 or 263.15 of the penal
5 law, any plea of guilty thereafter entered in satisfaction of such
6 charge must include at least a plea of guilty to the violation of one of
7 the above enumerated offenses and no other disposition by plea of guilty
8 to any other charge in satisfaction of such charge shall be authorized,
9 provided, however, if the district attorney upon reviewing the available
10 evidence determines that the charge of a violation of the above enumer-
11 ated felonies is not warranted, such district attorney may consent, and
12 the court may allow a disposition by plea of guilty to another charge in
13 satisfaction of such charge; provided, however, in all such cases, the
14 court shall set forth upon the record the basis for such disposition.
15 § 2. Section 530.50 of the criminal procedure law, as amended by chap-
16 ter 264 of the laws of 2003, is amended to read as follows:
17 § 530.50 Order of recognizance or bail; during pendency of appeal.
18 A judge who is otherwise authorized pursuant to section 460.50 or
19 section 460.60 to issue an order of recognizance or bail pending the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08558-01-9
A. 6510 2
1 determination of an appeal, may do so unless the defendant received a
2 class A felony sentence, a class B or class C felony sentence for a sex
3 offense pursuant to article six-C of the correction law, or a sentence
4 for any class B or class C felony offense defined in article one hundred
5 thirty of the penal law committed or attempted to be committed by a
6 person eighteen years of age or older against a person less than eigh-
7 teen years of age.
8 § 3. Section 65.10 of the penal law is amended by adding a new subdi-
9 vision 4-b to read as follows:
10 4-b. Polygraph authorization. When imposing a sentence of probation
11 the court may, in addition to any conditions imposed pursuant to subdi-
12 visions two and three of this section, require a defendant, under super-
13 vision for conviction of a sex offense defined in article six-C of the
14 correction law, to submit to polygraphic examinations to ensure compli-
15 ance with the terms of probation. The court may order the offender to
16 pay all or a portion of the costs of the examinations. The fee may be
17 waived if the offender is indigent or if payment would result in an
18 economic hardship to the offender's immediate family.
19 By September first, two thousand nine the chief justice of the court
20 of appeals in consultation with the commissioner of the division of
21 criminal justice services shall develop a protocol for the use of poly-
22 graphic examinations for sex offenders placed on probation. This proto-
23 col shall be distributed to judges across the state.
24 § 4. Subdivision 3 of section 130.00 of the penal law, as amended by
25 chapter 650 of the laws of 1984, is amended to read as follows:
26 3. "Sexual contact" means any intentional touching of the sexual or
27 other intimate parts of [a] another person [not married to the actor for
28 the purpose of gratifying sexual desire of either party] for no legiti-
29 mate purpose. It includes the touching of the actor by the victim, as
30 well as the touching of the victim by the actor, whether directly or
31 through clothing.
32 § 5. Subdivisions 1 and 2 of section 168-a of the correction law,
33 subdivision 1 as added by chapter 192 of the laws of 1995, subdivision 2
34 as amended by chapter 11 of the laws of 2002, paragraph (a) of subdivi-
35 sion 2 as amended by chapter 405 of the laws of 2008, subparagraph (i)
36 of paragraph (d) of subdivision 2 as amended by chapter 146 of the laws
37 of 2004, subparagraph (iii) of paragraph (d) of subdivision 2 as amended
38 by chapter 232 of the laws of 2008, and paragraph (e) of subdivision 2
39 as added by chapter 69 of the laws of 2003, are amended to read as
40 follows:
41 1. "Sex offender" includes any person who is convicted of (a) any of
42 the offenses set forth in subdivision two or three of this section or
43 (b) any other felony offense committed within five years of the date on
44 which he or she was adjudicated a youthful offender pursuant to article
45 seven hundred twenty of the criminal procedure law for any of the
46 offenses set forth in subdivision two or three of this section.
47 Convictions that result from or are connected with the same act, or
48 result from offenses committed at the same time, shall be counted for
49 the purpose of this article as one conviction. Any conviction set aside
50 pursuant to law is not a conviction for purposes of this article.
51 2. "Sex offense" means: (a) (i) a conviction of or a conviction for an
52 attempt to commit any of the provisions of sections 120.70, 130.20,
53 130.25, 130.30, 130.40, 130.45, 130.60, 130.80, 130.85, 230.34, 250.50,
54 255.25, 255.26 and 255.27 or article two hundred sixty-three of the
55 penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law
56 relating to kidnapping offenses, provided the victim of such kidnapping
A. 6510 3
1 or related offense is less than seventeen years old and the offender is
2 not the parent of the victim, or section 230.04, where the person
3 patronized is in fact less than seventeen years of age, 230.05 or
4 230.06, or subdivision two of section 230.30, or section 230.32 or
5 230.33 of the penal law, or (ii) a conviction of or a conviction for an
6 attempt to commit any of the provisions of section 235.22 of the penal
7 law, or (iii) a conviction of or a conviction for an attempt to commit
8 any provisions of the foregoing sections committed or attempted as a
9 hate crime defined in section 485.05 of the penal law or as a crime of
10 terrorism defined in section 490.25 of such law or as a sexually moti-
11 vated felony defined in section 130.91 of such law; or
12 (b) a conviction of or a conviction for an attempt to commit any of
13 the provisions of section 130.52 or 130.55 of the penal law, provided
14 the victim of such offense is less than eighteen years of age; or
15 (c) a conviction of or a conviction for an attempt to commit any of
16 the provisions of section 130.52 or 130.55 of the penal law regardless
17 of the age of the victim and the offender has previously been convicted
18 of: (i) a sex offense defined in this article, (ii) a sexually violent
19 offense defined in this article, or (iii) any of the provisions of
20 section 130.52 or 130.55 of the penal law, or an attempt thereof; or
21 (d) a conviction of (i) an offense in any other jurisdiction which
22 includes all of the essential elements of any such crime provided for in
23 paragraph (a), (b) or (c) of this subdivision or (ii) a felony in any
24 other jurisdiction for which the offender is required to register as a
25 sex offender in the jurisdiction in which the conviction occurred or,
26 (iii) any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18
27 U.S.C. 2252, 18 U.S.C. 2252A, 18 U.S.C. 2260, 18 U.S.C. 2422(b), 18
28 U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime
29 of conviction are substantially the same as those which are a part of
30 such offense as of the date on which this subparagraph takes effect[.];
31 or
32 (e) a conviction of any of the provisions of subdivision two, three or
33 four of section 250.45 of the penal law, unless upon motion by the
34 defendant, the trial court, having regard to the nature and circum-
35 stances of the crime and to the history and character of the defendant,
36 is of the opinion that registration would be unduly harsh and inappro-
37 priate[.]; or
38 (f) a conviction for any offense set forth in paragraph (a) of this
39 subdivision which was replaced by a youthful offender finding pursuant
40 to article seven hundred twenty of the criminal procedure law.
41 § 6. Section 450.10 of the criminal procedure law is amended by adding
42 a new subdivision 6 to read as follows:
43 6. An order, entered pursuant to section 530.42, granting in whole or
44 in part an application of the people.
45 § 7. Subdivision 4 of section 450.20 of the criminal procedure law is
46 amended to read as follows:
47 4. A sentence other than one of death, as prescribed in subdivisions
48 two and three of section 450.30, unless the appeal is based solely upon
49 the ground that a sentence was unduly lenient when such sentence was
50 predicated upon entry of a plea of guilty and the sentence imposed was
51 not less than that which was agreed to by the people as a condition of
52 the plea and set forth in the record or filed with the court as required
53 by subdivision five of section 220.50 or subdivision four of section
54 340.20;
55 § 8. Section 450.20 of the criminal procedure law is amended by adding
56 a new subdivision 12 to read as follows:
A. 6510 4
1 12. An order, entered pursuant to section 530.42, denying in whole or
2 in part an application of the people.
3 § 9. Subdivision 2 of section 450.30 of the criminal procedure law is
4 amended to read as follows:
5 2. An appeal by the people from a sentence, as authorized by subdivi-
6 sion four of section 450.20, may be based [only] upon the ground that
7 such sentence either was (a) invalid as a matter of law or (b) unduly
8 lenient.
9 § 10. Paragraph (c) of subdivision 2 and paragraph (b) of subdivision
10 6 of section 470.15 of the criminal procedure law are amended to read as
11 follows:
12 (c) Upon a determination that a sentence imposed upon a valid
13 conviction is illegal [or], unduly harsh or severe or unduly lenient,
14 the court may modify the judgment by reversing it with respect to the
15 sentence and by otherwise affirming it.
16 (b) That a sentence, though legal, was either (i) unduly harsh or
17 severe or (ii) unduly lenient.
18 § 11. Subdivision 6 of section 470.20 of the criminal procedure law is
19 amended to read as follows:
20 6. Upon modifying a judgment or reversing a sentence as a matter of
21 discretion in the interest of justice upon the ground that the sentence
22 is unduly harsh or severe or unduly lenient, the court must itself
23 impose some legally authorized lesser or greater sentence.
24 § 12. Subdivision 3 of section 530.30 of the criminal procedure law is
25 renumbered subdivision 6 and three new subdivisions 3, 4 and 5 are added
26 to read as follows:
27 3. When a criminal action is pending in a local criminal court, other
28 than one consisting of a superior court judge sitting as such, a judge
29 of a superior court holding a term thereof in the county, upon applica-
30 tion of the people, may revoke an order of recognizance or bail entered
31 by a local criminal court and fix bail in an amount the court determines
32 sufficient or, if the defendant is charged with one or more crimes at
33 least one of which is a felony, commit the defendant to the custody of
34 the sheriff.
35 4. Notwithstanding the provisions of subdivision three of this
36 section, a superior court judge may not vacate an order of recognizance
37 or bail and fix bail or commit the defendant to the custody of the sher-
38 iff unless and until:
39 (a) the defendant has had an opportunity to be heard in the matter or,
40 after knowledge or notice to the defendant or his or her counsel of the
41 application and reasonable opportunity to be heard, has failed to appear
42 at the proceeding or has otherwise waived his or her right to do so; and
43 (b) such judge has been furnished with a report as described in
44 subparagraph (ii) of paragraph (b) of subdivision two of section 530.20
45 of this article.
46 5. When a criminal action is pending in a local criminal court and an
47 order fixing bail has been entered, and thereafter a local criminal
48 court enters an order releasing the defendant on his or her own recogni-
49 zance or fixing bail in a lesser amount or in a less burdensome manner,
50 the people may file with the local criminal court a notice of intention
51 to apply to a superior court judge pursuant to subdivision three of this
52 section. The filing of such a notice shall stay the effect of the order
53 releasing the defendant on his or her own recognizance or fixing bail in
54 a lesser amount or in a less burdensome manner. A stay pursuant to this
55 subdivision shall remain in effect for a period of seventy-two hours
A. 6510 5
1 unless extended or vacated by the judge of the superior court to whom
2 the people apply pursuant to subdivision three of this section.
3 § 13. The criminal procedure law is amended by adding a new section
4 530.42 to read as follows:
5 § 530.42 Order of recognizance or bail; review by superior court.
6 1. When a criminal action is pending in a local criminal court or a
7 superior court, and the court has ordered recognizance or bail, a judge
8 of the superior court holding a term thereof in the county, upon appli-
9 cation of the people, may review an order of recognizance or bail previ-
10 ously entered in the action and fix bail in an amount the court deter-
11 mines sufficient or, if the defendant is charged with one or more crimes
12 at least one of which is a felony, commit the defendant to the custody
13 of the sheriff.
14 2. Upon an application for review pursuant to subdivision one of this
15 section, the superior court judge may grant the application only upon a
16 determination that the order of recognizance or bail under review
17 constitutes an abuse of discretion.
18 3. An application pursuant to subdivision one of this section shall be
19 accompanied by an affidavit or affirmation which shall state the date,
20 and the court or judge to whom made, of every previous application, the
21 disposition of each such application and of any appeal taken, and the
22 new facts presented in the application that were not presented in any
23 previous application.
24 4. When a criminal action is pending in a superior court and an order
25 is entered releasing the defendant on his or her own recognizance or
26 fixing bail, the people may apply on an emergency basis to the court to
27 which an application pursuant to subdivision one of this section would
28 be made for an interim order fixing bail or committing the defendant to
29 the custody of the sheriff. Such an order shall remain in effect for a
30 period of seventy-two hours unless extended or vacated by the court to
31 which the people apply pursuant to subdivision one of this section.
32 5. The chief administrator of the courts, with the advice and consent
33 of the administrative board of the courts, shall adopt procedures regu-
34 lating the court or courts in the county to which an application pursu-
35 ant to subdivision one of this section may be made.
36 § 14. Subdivision 1 of section 720.35 of the criminal procedure law,
37 as amended by chapter 452 of the laws of 1992, is amended to read as
38 follows:
39 1. A youthful offender adjudication is not a judgment of conviction
40 for a crime or any other offense, and does not operate as a disquali-
41 fication of any person so adjudged to hold public office or public
42 employment or to receive any license granted by public authority but
43 shall be deemed a conviction [only] (i) for the purposes of transfer of
44 supervision and custody pursuant to section two hundred fifty-nine-m of
45 the executive law or (ii) for the purpose of determining whether the
46 person is subject to the requirements of article six-C of the correction
47 law, whenever the person has been convicted of a felony offense commit-
48 ted within five years of the date on which he or she was adjudicated a
49 youthful offender for a felony offense defined in subdivision two or
50 three of section one hundred sixty-eight-a of the correction law or
51 (iii) for the purpose of determining whether the person is a designated
52 offender within the meaning of subdivision seven of section nine hundred
53 ninety-five of the executive law and subject to the requirements of
54 article forty-nine-B of the executive law.
55 § 15. Section 720.35 of the criminal procedure law is amended by
56 adding a new subdivision 5 to read as follows:
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1 5. Notwithstanding subdivision two of this section, whenever a person
2 stands convicted of a felony offense committed within five years of the
3 date on which he or she was adjudicated a youthful offender for a felony
4 offense defined in subdivision two or three of section one hundred
5 sixty-eight-a of the correction law, all records pertaining to the
6 youthful offender adjudication shall no longer be confidential.
7 § 16. The criminal procedure law is amended by adding a new section
8 60.41 to read as follows:
9 § 60.41 Rules of evidence; proof of previous sexual assault.
10 1. In any prosecution in which a defendant is charged with an offense
11 of sexual assault, evidence of the defendant's commission of another
12 offense or offenses of sexual assault is admissible and may be consid-
13 ered for its bearing on any matter to which it is relevant, including
14 the defendant's propensity to commit an offense of sexual assault or the
15 credibility of the alleged victim of the sexual assault, unless the
16 court determines that its probative value is substantially outweighed by
17 the danger of undue prejudice to the defendant.
18 2. For purposes of this section, "offense of sexual assault" means any
19 conduct proscribed by article one hundred thirty of the penal law, or
20 any attempt to engage in such conduct, whether committed in this state
21 or elsewhere, regardless of whether the defendant was convicted for the
22 conduct.
23 § 17. Section 60.40 of the criminal procedure law is amended by adding
24 a new subdivision 4 to read as follows:
25 4. In accordance with section 60.41, the people may prove that a
26 defendant has previously been convicted of an offense of sexual
27 assault.
28 § 18. This act shall take effect on the first of November next
29 succeeding the date on which it shall have become a law; provided that
30 section three of this act shall take effect January 1, 2010.
