Increases the penalties for the violent sex offenses of rape, criminal sexual act and aggravated sexual abuse when committed in a forcible manner where an actor or accomplice is armed with or displays a deadly weapon, uses or threatens the use of a dangerous instrument or inflicts physical injury upon the victim.
STATE OF NEW YORK
________________________________________________________________________
1045
2019-2020 Regular Sessions
IN SENATE
January 10, 2019
___________
Introduced by Sens. YOUNG, FUNKE, O'MARA, ORTT, RANZENHOFER -- read
twice and ordered printed, and when printed to be committed to the
Committee on Codes
AN ACT to amend the penal law, in relation to aggravated sexual
offenses; and to amend the criminal procedure law, in relation to
youthful offender status
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs (a), (b) and (c) of subdivision 1 of section
2 70.02 of the penal law, paragraph (a) as amended by chapter 189 of the
3 laws of 2018, paragraph (b) as amended by chapter 476 of the laws of
4 2018 and paragraph (c) as amended by chapter 368 of the laws of 2015,
5 are amended to read as follows:
6 (a) Class B violent felony offenses: an attempt to commit the class
7 A-I felonies of murder in the second degree as defined in section
8 125.25, kidnapping in the first degree as defined in section 135.25, and
9 arson in the first degree as defined in section 150.20; manslaughter in
10 the first degree as defined in section 125.20, aggravated manslaughter
11 in the first degree as defined in section 125.22, rape in the first
12 degree as defined in section 130.35, criminal sexual act in the first
13 degree as defined in section 130.50, aggravated sexual abuse in the
14 [first] second degree as defined in section 130.70, course of sexual
15 conduct against a child in the first degree as defined in section
16 130.75; assault in the first degree as defined in section 120.10,
17 kidnapping in the second degree as defined in section 135.20, burglary
18 in the first degree as defined in section 140.30, arson in the second
19 degree as defined in section 150.15, robbery in the first degree as
20 defined in section 160.15, sex trafficking as defined in paragraphs (a)
21 and (b) of subdivision five of section 230.34, sex trafficking of a
22 child as defined in section 230.34-a, incest in the first degree as
23 defined in section 255.27, criminal possession of a weapon in the first
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03937-02-9
S. 1045 2
1 degree as defined in section 265.04, criminal use of a firearm in the
2 first degree as defined in section 265.09, criminal sale of a firearm in
3 the first degree as defined in section 265.13, aggravated assault upon a
4 police officer or a peace officer as defined in section 120.11, gang
5 assault in the first degree as defined in section 120.07, intimidating a
6 victim or witness in the first degree as defined in section 215.17,
7 hindering prosecution of terrorism in the first degree as defined in
8 section 490.35, criminal possession of a chemical weapon or biological
9 weapon in the second degree as defined in section 490.40, and criminal
10 use of a chemical weapon or biological weapon in the third degree as
11 defined in section 490.47.
12 (b) Class C violent felony offenses: an attempt to commit any of the
13 class B felonies set forth in paragraph (a) of this subdivision; aggra-
14 vated criminally negligent homicide as defined in section 125.11, aggra-
15 vated manslaughter in the second degree as defined in section 125.21,
16 aggravated sexual abuse in the [second] third degree as defined in
17 section 130.67, assault on a peace officer, police officer, firefighter
18 or emergency medical services professional as defined in section 120.08,
19 assault on a judge as defined in section 120.09, gang assault in the
20 second degree as defined in section 120.06, strangulation in the first
21 degree as defined in section 121.13, burglary in the second degree as
22 defined in section 140.25, robbery in the second degree as defined in
23 section 160.10, criminal possession of a weapon in the second degree as
24 defined in section 265.03, criminal use of a firearm in the second
25 degree as defined in section 265.08, criminal sale of a firearm in the
26 second degree as defined in section 265.12, criminal sale of a firearm
27 with the aid of a minor as defined in section 265.14, aggravated crimi-
28 nal possession of a weapon as defined in section 265.19, soliciting or
29 providing support for an act of terrorism in the first degree as defined
30 in section 490.15, hindering prosecution of terrorism in the second
31 degree as defined in section 490.30, and criminal possession of a chemi-
32 cal weapon or biological weapon in the third degree as defined in
33 section 490.37.
34 (c) Class D violent felony offenses: an attempt to commit any of the
35 class C felonies set forth in paragraph (b); reckless assault of a child
36 as defined in section 120.02, assault in the second degree as defined in
37 section 120.05, menacing a police officer or peace officer as defined in
38 section 120.18, stalking in the first degree, as defined in subdivision
39 one of section 120.60, strangulation in the second degree as defined in
40 section 121.12, rape in the second degree as defined in section 130.30,
41 criminal sexual act in the second degree as defined in section 130.45,
42 sexual abuse in the first degree as defined in section 130.65, course of
43 sexual conduct against a child in the second degree as defined in
44 section 130.80, aggravated sexual abuse in the [third] fourth degree as
45 defined in section 130.66, facilitating a sex offense with a controlled
46 substance as defined in section 130.90, labor trafficking as defined in
47 paragraphs (a) and (b) of subdivision three of section 135.35, criminal
48 possession of a weapon in the third degree as defined in subdivision
49 five, six, seven, eight, nine or ten of section 265.02, criminal sale of
50 a firearm in the third degree as defined in section 265.11, intimidating
51 a victim or witness in the second degree as defined in section 215.16,
52 soliciting or providing support for an act of terrorism in the second
53 degree as defined in section 490.10, and making a terroristic threat as
54 defined in section 490.20, falsely reporting an incident in the first
55 degree as defined in section 240.60, placing a false bomb or hazardous
56 substance in the first degree as defined in section 240.62, placing a
S. 1045 3
1 false bomb or hazardous substance in a sports stadium or arena, mass
2 transportation facility or enclosed shopping mall as defined in section
3 240.63, and aggravated unpermitted use of indoor pyrotechnics in the
4 first degree as defined in section 405.18.
5 § 2. The penal law is amended by adding three new sections 130.36,
6 130.51 and 130.71 to read as follows:
7 § 130.36 Aggravated rape.
8 A male is guilty of aggravated rape when he engages in sexual inter-
9 course with a female by forcible compulsion and when, in the course of
10 the commission of the crime or of immediate flight therefrom, he or
11 another participant in the crime:
12 1. Is armed with a deadly weapon; or
13 2. Uses or threatens the use of a dangerous instrument; or
14 3. Causes physical injury to any person who is not a participant in
15 the crime; or
16 4. Displays what appears to be a firearm.
17 Aggravated rape is a class A-II felony.
18 § 130.51 Aggravated criminal sexual act.
19 A person is guilty of aggravated criminal sexual act when he or she
20 engages in oral sexual conduct or anal sexual conduct with another
21 person by forcible compulsion and when, in the course of the commission
22 of the crime or of immediate flight therefrom, he, she or another
23 participant in the crime:
24 1. Is armed with a deadly weapon; or
25 2. Uses or threatens the use of a dangerous instrument; or
26 3. Causes physical injury to any person who is not a participant in
27 the crime; or
28 4. Displays what appears to be a firearm.
29 Aggravated criminal sexual act is a class A-II felony.
30 § 130.71 Aggravated sexual abuse in the first degree.
31 1. A person is guilty of aggravated sexual abuse in the first degree
32 when he or she inserts a finger or foreign object in the vagina, ureth-
33 ra, penis or rectum of another person by forcible compulsion causing
34 physical injury to such person and when, in the course of the commission
35 of the crime or of immediate flight therefrom, he, she or another
36 participant in the crime:
37 (a) Is armed with a deadly weapon; or
38 (b) Uses or threatens the use of a dangerous instrument; or
39 (c) Causes physical injury to any person who is not a participant in
40 the crime; or
41 (d) Displays what appears to be a firearm.
42 2. Conduct performed for a valid medical purpose does not violate the
43 provisions of this section.
44 Aggravated sexual abuse in the first degree is a class A-II felony.
45 § 3. Section 130.65-a of the penal law, as added by chapter 1 of the
46 laws of 2000, subdivision 1 as amended by chapter 485 of the laws of
47 2009, is amended to read as follows:
48 § 130.65-a Aggravated sexual abuse in the [fourth] fifth degree.
49 1. A person is guilty of aggravated sexual abuse in the [fourth] fifth
50 degree when:
51 (a) He or she inserts a foreign object in the vagina, urethra, penis,
52 rectum or anus of another person and the other person is incapable of
53 consent by reason of some factor other than being less than seventeen
54 years old; or
55 (b) He or she inserts a finger in the vagina, urethra, penis, rectum
56 or anus of another person causing physical injury to such person and
S. 1045 4
1 such person is incapable of consent by reason of some factor other than
2 being less than seventeen years old.
3 2. Conduct performed for a valid medical purpose does not violate the
4 provisions of this section.
5 Aggravated sexual abuse in the [fourth] fifth degree is a class E
6 felony.
7 § 4. Section 130.66 of the penal law, as added by chapter 181 of the
8 laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
9 of 2009, subdivision 3 as renumbered by chapter 1 of the laws of 2000,
10 is amended to read as follows:
11 § 130.66 Aggravated sexual abuse in the [third] fourth degree.
12 1. A person is guilty of aggravated sexual abuse in the [third] fourth
13 degree when he or she inserts a foreign object in the vagina, urethra,
14 penis, rectum or anus of another person:
15 (a) By forcible compulsion; or
16 (b) When the other person is incapable of consent by reason of being
17 physically helpless; or
18 (c) When the other person is less than eleven years old.
19 2. A person is guilty of aggravated sexual abuse in the [third] fourth
20 degree when he or she inserts a foreign object in the vagina, urethra,
21 penis, rectum or anus of another person causing physical injury to such
22 person and such person is incapable of consent by reason of being
23 mentally disabled or mentally incapacitated.
24 3. Conduct performed for a valid medical purpose does not violate the
25 provisions of this section.
26 Aggravated sexual abuse in the [third] fourth degree is a class D
27 felony.
28 § 5. Section 130.67 of the penal law, as added by chapter 450 of the
29 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
30 ter 485 of the laws of 2009, is amended to read as follows:
31 § 130.67 Aggravated sexual abuse in the [second] third degree.
32 1. A person is guilty of aggravated sexual abuse in the [second]
33 third degree when he or she inserts a finger in the vagina, urethra,
34 penis, rectum or anus of another person causing physical injury to such
35 person:
36 (a) By forcible compulsion; or
37 (b) When the other person is incapable of consent by reason of being
38 physically helpless; or
39 (c) When the other person is less than eleven years old.
40 2. Conduct performed for a valid medical purpose does not violate the
41 provisions of this section.
42 Aggravated sexual abuse in the [second] third degree is a class C
43 felony.
44 § 6. Section 130.70 of the penal law, as amended by chapter 450 of the
45 laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
46 ter 485 of the laws of 2009, is amended to read as follows:
47 § 130.70 Aggravated sexual abuse in the [first] second degree.
48 1. A person is guilty of aggravated sexual abuse in the [first]
49 second degree when he or she inserts a foreign object in the vagina,
50 urethra, penis, rectum or anus of another person causing physical injury
51 to such person:
52 (a) By forcible compulsion; or
53 (b) When the other person is incapable of consent by reason of being
54 physically helpless; or
55 (c) When the other person is less than eleven years old.
S. 1045 5
1 2. Conduct performed for a valid medical purpose does not violate the
2 provisions of this section.
3 Aggravated sexual abuse in the [first] second degree is a class B
4 felony.
5 § 7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
6 law, subdivision 2 as amended by chapter 416 of the laws of 1986, para-
7 graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
8 and subdivision 3 as amended by chapter 264 of the laws of 2003, are
9 amended to read as follows:
10 2. "Eligible youth" means a youth who is eligible to be found a
11 youthful offender. Every youth is so eligible unless:
12 (a) the conviction to be replaced by a youthful offender finding is
13 for (i) a class A-I or class A-II felony, or (ii) an armed felony as
14 defined in subdivision forty-one of section 1.20, except as provided in
15 subdivision three, or (iii) rape in the first degree, criminal sexual
16 act in the first degree, or aggravated sexual abuse in the second
17 degree, except as provided in subdivision three, or
18 (b) such youth has previously been convicted and sentenced for a felo-
19 ny, or
20 (c) such youth has previously been adjudicated a youthful offender
21 following conviction of a felony or has been adjudicated on or after
22 September first, nineteen hundred seventy-eight a juvenile delinquent
23 who committed a designated felony act as defined in the family court
24 act.
25 3. Notwithstanding the provisions of subdivision two, a youth who has
26 been convicted of an armed felony offense or of rape in the first
27 degree, criminal sexual act in the first degree, or aggravated sexual
28 abuse in the second degree is an eligible youth if the court determines
29 that one or more of the following factors exist: (i) mitigating circum-
30 stances that bear directly upon the manner in which the crime was
31 committed; or (ii) where the defendant was not the sole participant in
32 the crime, the defendant's participation was relatively minor although
33 not so minor as to constitute a defense to the prosecution. Where the
34 court determines that the eligible youth is a youthful offender, the
35 court shall make a statement on the record of the reasons for its deter-
36 mination, a transcript of which shall be forwarded to the state division
37 of criminal justice services, to be kept in accordance with the
38 provisions of subdivision three of section eight hundred thirty-seven-a
39 of the executive law.
40 § 8. This act shall take effect on the first of November next succeed-
41 ing the date on which it shall have become a law.