STATE OF NEW YORK
________________________________________________________________________
3764
2017-2018 Regular Sessions
IN SENATE
January 26, 2017
___________
Introduced by Sen. FUNKE -- 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 requiring a sentence of
imprisonment for sex offenses where the victim of the offense lacked
the ability to consent due to incapacity
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 60.05 of the penal law, as amended by chapter 410
2 of the laws of 1979, the section heading, subdivisions 2, 3 and 4 as
3 amended by chapter 738 of the laws of 2004, subdivision 1 as amended by
4 chapter 7 of the laws of 2007, and subdivision 5 as amended by chapter
5 405 of the laws of 2010, is amended to read as follows:
6 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
7 nies, sex offenses and multiple felony offenders.
8 1. Applicability. Except as provided in section 60.04 of this article
9 governing the authorized dispositions applicable to felony offenses
10 defined in article two hundred twenty or two hundred twenty-one of this
11 chapter or in section 60.13 of this article governing the authorized
12 dispositions applicable to felony sex offenses defined in paragraph (a)
13 of subdivision one of section 70.80 of this title, this section shall
14 govern the dispositions authorized when a person is to be sentenced upon
15 a conviction of a class A felony, a class B felony or a class C, class
16 D, or class E felony, or sex offense specified herein, or when a person
17 is to be sentenced upon a conviction of a felony as a multiple felony
18 offender.
19 2. Class A felony. Except as provided in subdivisions three and four
20 of section 70.06 of this chapter, every person convicted of a class A
21 felony must be sentenced to imprisonment in accordance with section
22 70.00 of this title, unless such person is convicted of murder in the
23 first degree and is sentenced in accordance with section 60.06 of this
24 article.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06660-01-7
S. 3764 2
1 3. Class B felony. Except as provided in subdivision six of this
2 section, every person convicted of a class B violent felony offense as
3 defined in subdivision one of section 70.02 of this title, must be
4 sentenced to imprisonment in accordance with such section 70.02; and,
5 except as provided in subdivision six of this section, every person
6 convicted of any other class B felony must be sentenced to imprisonment
7 in accordance with section 70.00 of this title.
8 4. Certain class C felonies. Except as provided in subdivision six,
9 every person convicted of a class C violent felony offense as defined in
10 subdivision one of section 70.02 of this title, must be sentenced to
11 imprisonment in accordance with section 70.02 of this title; and, except
12 as provided in subdivision six of this section, every person convicted
13 of the class C felonies of: attempt to commit any of the class B felo-
14 nies of bribery in the first degree as defined in section 200.04, bribe
15 receiving in the first degree as defined in section 200.12, conspiracy
16 in the second degree as defined in section 105.15 and criminal mischief
17 in the first degree as defined in section 145.12; criminal usury in the
18 first degree as defined in section 190.42, rewarding official misconduct
19 in the first degree as defined in section 200.22, receiving reward for
20 official misconduct in the first degree as defined in section 200.27,
21 attempt to promote prostitution in the first degree as defined in
22 section 230.32, promoting prostitution in the second degree as defined
23 in section 230.30, arson in the third degree as defined in section
24 150.10 of this chapter, must be sentenced to imprisonment in accordance
25 with section 70.00 of this title.
26 5. Certain class D felonies. Except as provided in subdivision six of
27 this section, every person convicted of the class D felonies of assault
28 in the second degree as defined in section 120.05, strangulation in the
29 second degree as defined in section 121.12 or attempt to commit a class
30 C felony as defined in section 230.30 of this chapter, must be sentenced
31 in accordance with section 70.00 or 85.00 of this title.
32 6. Multiple felony offender. When the court imposes sentence upon a
33 second violent felony offender, as defined in section 70.04, or a second
34 felony offender, as defined in section 70.06, the court must impose a
35 sentence of imprisonment in accordance with section 70.04 or 70.06, as
36 the case may be, unless it imposes a sentence of imprisonment in accord-
37 ance with section 70.08 or 70.10.
38 7. Certain sex offenses. Any person convicted of a sex offense under
39 article one hundred thirty of this chapter, where the victim of the
40 offense lacked the ability to consent due to incapacity pursuant to
41 section 130.05 of this chapter, shall be sentenced to imprisonment in
42 accordance with article seventy of this title.
43 8. Fines. Where the court imposes a sentence of imprisonment in
44 accordance with this section, the court also may impose a fine author-
45 ized by article eighty and in such case the sentence shall be both
46 imprisonment and a fine.
47 § 2. This act shall take effect on the first of November next succeed-
48 ing the date on which it shall have become a law.
