S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5232

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2009
                               ___________

Introduced by M. of A. GIANARIS, CARROZZA, EDDINGTON, LAVINE, MAYERSOHN,
  MARKEY,  CHRISTENSEN,  HEVESI, SPANO -- Multi-Sponsored by -- M. of A.
  BENJAMIN, DESTITO, GALEF, GUNTHER, HOYT,  JOHN,  MAGNARELLI,  PHEFFER,
  SCHIMMINGER,  WEISENBERG -- read once and referred to the Committee on
  Codes

AN ACT to amend the penal law and the correction law, in relation to sex
  offenses committed against children under 12  years  of  age  and  sex
  offenses  committed  by persons 21 years old or older against children
  under 14 years of age; to amend the correction  law,  in  relation  to
  requiring  electronic  monitoring  of  sex offenders convicted of such
  offenses against a child; to repeal subdivision 3 of section 130.35 of
  the penal law relating to rape of a child less than 11 years old;  and
  to repeal subdivision 3 of section 130.50 of the penal law relating to
  a criminal sexual act with a child less than 11 years old

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
section 70.00 of the penal law, as amended by chapter 107 of the laws of
2006, is amended to read as follows:
  (i) For a class A-I felony, such minimum period shall not be less than
fifteen  years  nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or  life  imprison-
ment  without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in section 125.27 of this chapter such mini-
mum period shall be not less than twenty years nor more than twenty-five
years, and, (B) where a sentence is imposed upon a  defendant  convicted
of murder in the second degree as defined in subdivision five of section
125.25  of  this chapter or convicted of aggravated murder as defined in
section 125.26 of this chapter, the sentence shall be life  imprisonment
without  parole,  and,  (C) where a sentence is imposed upon a defendant
convicted of attempted murder in the first degree as defined in  article

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05741-01-9
              

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one  hundred  ten of this chapter and subparagraph (i), (ii) or (iii) of
paragraph (a) of subdivision one and paragraph (b) of subdivision one of
section 125.27 of this chapter or attempted aggravated murder as defined
in  article  one  hundred ten of this chapter and section 125.26 of this
chapter such minimum period shall be not less than twenty years nor more
than forty years, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A  DEFENDANT
CONVICTED  OF  RAPE  OF  A  CHILD AS DEFINED IN SECTION 130.36, CRIMINAL
SEXUAL ACT AGAINST A CHILD AS  DEFINED  IN  SECTION  130.51,  AGGRAVATED
SEXUAL  ABUSE  OF  A  CHILD  AS  DEFINED IN SECTION 130.71 OR AGGRAVATED
COURSE OF SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN SECTION 130.81 OF
THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE TWENTY YEARS.
  S 2. Subdivision 5 of section 125.25 of the penal law, as  amended  by
chapter 320 of the laws of 2006, is amended to read as follows:
  5. Being eighteen years old or more, while in the course of committing
rape  in  the  first, second or third degree, criminal sexual act in the
first, second or third degree, sexual abuse in the first degree, RAPE OF
A CHILD, CRIMINAL SEXUAL ACT AGAINST A CHILD, AGGRAVATED SEXUAL ABUSE OF
A CHILD, AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD, aggravated
sexual abuse in the first, second, third or fourth degree, or incest  in
the  first,  second or third degree, against a person less than fourteen
years old, he or she intentionally causes the death of such person.
  S 3. Subdivision 3 of section 130.35 of the penal law is REPEALED.
  S 4. The penal law is amended by adding a new section 130.36  to  read
as follows:
S 130.36 RAPE OF A CHILD.
  A PERSON IS GUILTY OF RAPE OF A CHILD WHEN:
  1.  HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO IS
LESS THAN TWELVE YEARS OLD; OR
  2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR  SHE  ENGAGES  IN  SEXUAL
INTERCOURSE WITH ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD.
  RAPE OF A CHILD IS A CLASS A-I FELONY.
  S 5. Subdivision 3 of section 130.50 of the penal law is REPEALED.
  S  6.  The penal law is amended by adding a new section 130.51 to read
as follows:
S 130.51 CRIMINAL SEXUAL ACT AGAINST A CHILD.
  A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD WHEN:
  1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT  OR  ANAL  SEXUAL  CONDUCT
WITH ANOTHER PERSON WHO IS LESS THAN TWELVE YEARS OLD; OR
  2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU-
AL  CONDUCT  OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS LESS THAN
FOURTEEN YEARS OLD.
  CRIMINAL SEXUAL ACT AGAINST A CHILD IS A CLASS A-I FELONY.
  S 7. Subdivision 1 of section 130.70 of the penal law, as  amended  by
chapter 450 of the laws of 1988, is amended to read as follows:
  1.  A  person is guilty of aggravated sexual abuse in the first degree
when he inserts a foreign object in the vagina, urethra, penis or rectum
of another person causing physical injury to such person:
  (a) By forcible compulsion; or
  (b) When the other person is incapable of consent by reason  of  being
physically helpless[; or
  (c) When the other person is less than eleven years old].
  S  8.  The penal law is amended by adding a new section 130.71 to read
as follows:
S 130.71 AGGRAVATED SEXUAL ABUSE OF A CHILD.
  1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD WHEN:

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  (A) HE OR SHE INSERTS A FOREIGN OBJECT IN THE VAGINA,  URETHRA,  PENIS
OR  RECTUM OF ANOTHER PERSON CAUSING PHYSICAL INJURY TO SUCH PERSON WHEN
SUCH OTHER PERSON IS LESS THAN TWELVE YEARS OLD; OR
  (B)  BEING  TWENTY-ONE  YEARS OLD OR MORE, HE OR SHE INSERTS A FOREIGN
OBJECT IN THE VAGINA, URETHRA, PENIS OR RECTUM OF ANOTHER PERSON CAUSING
PHYSICAL INJURY TO SUCH PERSON WHEN SUCH OTHER PERSON IS LESS THAN FOUR-
TEEN YEARS OLD.
  2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
PROVISIONS OF THIS SECTION.
  AGGRAVATED SEXUAL ABUSE OF A CHILD IS A CLASS A-I FELONY.
  S  9.  Subdivision 1 of section 130.75 of the penal law, as amended by
chapter 1 of the laws of 2000, paragraphs (a)  and  (b)  as  amended  by
chapter 264 of the laws of 2003, is amended to read as follows:
  1.  A  person is guilty of course of sexual conduct against a child in
the first degree when, over a period of time not less than three  months
in duration[:
  (a)  he  or  she  engages in two or more acts of sexual conduct, which
includes at least one act of sexual intercourse,  oral  sexual  conduct,
anal sexual conduct or aggravated sexual contact, with a child less than
eleven years old; or
  (b)],  he  or she, being eighteen years old or more, engages in two or
more acts of sexual conduct, which include at least one  act  of  sexual
intercourse,  oral  sexual  conduct,  anal  sexual conduct or aggravated
sexual contact, with a child less than thirteen years old.
  S 10. The penal law is amended by adding a new section 130.81 to  read
as follows:
S 130.81 AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD.
  1. A PERSON IS GUILTY OF AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A
CHILD  WHEN,  OVER  A PERIOD OF TIME NOT LESS THAN THREE MONTHS IN DURA-
TION:
  (A) HE OR SHE ENGAGES IN TWO OR MORE ACTS  OF  SEXUAL  CONDUCT,  WHICH
INCLUDES  AT  LEAST  ONE ACT OF SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT,
ANAL SEXUAL CONDUCT OR AGGRAVATED SEXUAL CONTACT, WITH A CHILD LESS THAN
TWELVE YEARS OLD; OR
  (B) HE OR SHE, BEING TWENTY-ONE YEARS OLD OR MORE, ENGAGES IN  TWO  OR
MORE  ACTS  OF SEXUAL CONDUCT, WHICH INCLUDES AT LEAST ONE ACT OF SEXUAL
INTERCOURSE, ORAL SEXUAL CONDUCT,  ANAL  SEXUAL  CONDUCT  OR  AGGRAVATED
SEXUAL CONTACT, WITH A CHILD LESS THAN FOURTEEN YEARS OLD.
  2.  A  PERSON  MAY NOT BE SUBSEQUENTLY PROSECUTED FOR ANY OTHER SEXUAL
OFFENSE INVOLVING THE SAME  VICTIM  UNLESS  THE  OTHER  CHARGED  OFFENSE
OCCURRED OUTSIDE THE TIME PERIOD CHARGED UNDER THIS SECTION.
  AGGRAVATED  COURSE  OF  SEXUAL  CONDUCT AGAINST A CHILD IS A CLASS A-I
FELONY.
  S 11. Subparagraph (i) of paragraph (a) of subdivision  3  of  section
168-a  of  the  correction law, as amended by chapter 107 of the laws of
2006, is amended to read as follows:
  (i) a conviction of or a conviction for an attempt to  commit  any  of
the  provisions  of  sections  130.35,  130.36,  130.50, 130.51, 130.65,
130.66, 130.67, 130.70,  130.71,  130.75,  130.80,  130.81,  130.95  and
130.96  of the penal law, or (ii) a conviction of or a conviction for an
attempt to commit any of the provisions of sections 130.53, 130.65-a and
130.90 of the penal law, or (iii) a conviction of or a conviction for an
attempt to commit any provisions of the foregoing sections committed  or
attempted  as a hate crime defined in section 485.05 of the penal law or
as a crime of terrorism defined in section 490.25 of such law; or

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  S 12. Section 168-w of the correction law, as  relettered  by  chapter
604  of the laws of 2005, is relettered 168-x and a new section 168-w is
added to read as follows:
  S  168-W.  ELECTRONIC  MONITORING OF CERTAIN SEX OFFENDERS. 1. ANY SEX
OFFENDER HAVING BEEN CONVICTED OF RAPE OF A CHILD AS DEFINED IN  SECTION
130.36,  CRIMINAL  SEXUAL  ACT  AGAINST  A  CHILD  AS DEFINED IN SECTION
130.51, AGGRAVATED SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION  130.71
OR  AGGRAVATED  COURSE  OF  SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN
SECTION 130.81 OF THE PENAL LAW SHALL BE PLACED ON ELECTRONIC MONITORING
FOR LIFE.
  2. THE DIVISION SHALL ESTABLISH A SYSTEM OF ACTIVE ELECTRONIC MONITOR-
ING THAT IDENTIFIES THE LOCATION OF A SEX OFFENDER REQUIRED TO BE  MONI-
TORED  PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THAT CAN PRODUCE,
UPON REQUEST, REPORTS OR RECORDS OF THE SEX OFFENDER'S PRESENCE NEAR  OR
WITHIN  A CRIME SCENE OR PROHIBITED AREA OR THE SEX OFFENDER'S DEPARTURE
FROM SPECIFIED GEOGRAPHIC LIMITATIONS.
  3. THE DIVISION SHALL ALSO  PROMULGATE  REGULATIONS  IMPLEMENTING  THE
IMPOSITION  AND  COLLECTION  OF  FEES  RELATED  TO ELECTRONIC MONITORING
PURSUANT TO THIS SECTION. SUCH REGULATIONS SHALL UTILIZE  A  MEANS  TEST
BASED  ON  TWO HUNDRED PERCENT OF THE FEDERAL POVERTY GUIDELINES PROMUL-
GATED ANNUALLY BY THE FEDERAL DEPARTMENT OF HEALTH  AND  HUMAN  SERVICES
AND IF THE SEX OFFENDER FALLS BELOW SUCH PERCENTAGE THEN NO FEE SHALL BE
CHARGED,  AND  EARNINGS  ABOVE  SUCH PERCENTAGE SHALL BE CONSIDERED ON A
SLIDING SCALE. SUCH REGULATIONS SHALL ALSO PROVIDE THAT THE DIVISION  OF
PAROLE  CONSIDER  ANY  ADDITIONAL  TEST OR INDICIA THAT DEMONSTRATES THE
INABILITY OF THE SEX OFFENDER TO PAY SUCH FEES.  EMPLOYEES OF THE  DIVI-
SION OF PAROLE SHALL BE PROHIBITED FROM COLLECTING ELECTRONIC MONITORING
RELATED FEES.
  4.  ANY  SEX OFFENDER REQUIRED TO BE ELECTRONICALLY MONITORED PURSUANT
TO THE PROVISIONS OF THIS SECTION WHO VIOLATES SUCH REQUIREMENT SHALL BE
GUILTY OF A CLASS E FELONY UPON CONVICTION FOR THE  FIRST  OFFENSE,  AND
UPON  CONVICTION FOR A SECOND OR SUBSEQUENT OFFENSE SHALL BE GUILTY OF A
CLASS D FELONY. ANY SUCH VIOLATION MAY ALSO BE THE BASIS FOR  REVOCATION
OF  PAROLE PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE
LAW.
  S 13. This act shall  take  effect  immediately  and  shall  apply  to
offenses  committed  on  or  after  such effective date; furthermore all
offenses committed prior to such effective date shall be governed by the
provisions of law in effect immediately before such date.