S T A T E O F N E W Y O R K
________________________________________________________________________
3537
2011-2012 Regular Sessions
I N A S S E M B L Y
January 25, 2011
___________
Introduced by M. of A. CAMARA, REILLY, GABRYSZAK, BARRON, ROBINSON --
Multi-Sponsored by -- M. of A. CLARK, HOOPER, McDONOUGH, McKEVITT,
PHEFFER, WEISENBERG -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law, in relation to imposing longer terms of
imprisonment upon second sex offenders and persistent sex offenders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 70.04 of the penal law, as amended
by chapter 3 of the laws of 1995, is amended to read as follows:
3. Term of sentence. [The] (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF
THIS SUBDIVISION, THE term of a determinate sentence for a second
violent felony offender must be fixed by the court as follows:
[(a)] (I) For a class B felony, the term must be at least ten years
and must not exceed twenty-five years;
[(b)] (II) For a class C felony, the term must be at least seven years
and must not exceed fifteen years; [and
(c)] (III) For a class D felony, the term must be at least five years
and must not exceed seven years[.]; AND
[(d)] (IV) For a class E felony, the term must be at least three years
and must not exceed four years.
(B) THE TERM OF A DETERMINATE SENTENCE FOR A SECOND VIOLENT FELONY
OFFENDER, WHO STANDS CONVICTED OF A VIOLENT FELONY OFFENSE DEFINED IN
ARTICLE ONE HUNDRED THIRTY OF THIS CHAPTER AND HAS A PREDICATE VIOLENT
FELONY CONVICTION OF AN OFFENSE DEFINED IN SUCH ARTICLE COMMITTED
AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, MUST BE FIXED BY THE
COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST THIRTY YEARS AND
MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWENTY-ONE YEARS
AND MUST NOT EXCEED FORTY-FIVE YEARS;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04032-01-1
A. 3537 2
(III) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST FIFTEEN YEARS
AND MUST NOT EXCEED TWENTY-ONE YEARS; AND
(IV) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST NINE YEARS AND
MUST NOT EXCEED TWELVE YEARS.
S 2. Subdivision 3 of section 70.04 of the penal law, as added by
chapter 481 of the laws of 1978, paragraph (d) as added by chapter 233
of the laws of 1980, is amended to read as follows:
3. Maximum term of sentence. [The] (A) EXCEPT AS PROVIDED IN PARAGRAPH
(B) OF THIS SUBDIVISION, THE maximum term of an indeterminate sentence
for a second violent felony offender must be fixed by the court as
follows:
[(a)] (I) For a class B felony, the term must be at least twelve years
and must not exceed twenty-five years;
[(b)] (II) For a class C felony, the term must be at least eight years
and must not exceed fifteen years; [and
(c)] (III) For a class D felony, the term must be at least five years
and must not exceed seven years[.]; AND
[(d)] (IV) For a class E felony, the term must be at least four years.
(B) THE TERM OF AN INDETERMINATE SENTENCE FOR A SECOND VIOLENT FELONY
OFFENDER, WHO STANDS CONVICTED OF A VIOLENT FELONY OFFENSE DEFINED IN
ARTICLE ONE HUNDRED THIRTY OF THIS CHAPTER AND HAS A PREDICATE VIOLENT
FELONY CONVICTION OF AN OFFENSE DEFINED IN SUCH ARTICLE COMMITTED
AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, MUST BE FIXED BY THE
COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST THIRTY-SIX YEARS
AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWENTY-FOUR YEARS
AND MUST NOT EXCEED FORTY-FIVE YEARS;
(III) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST FIFTEEN YEARS
AND MUST NOT EXCEED TWENTY-ONE YEARS; AND
(IV) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST TWELVE YEARS.
S 3. Subdivision 3 of section 70.06 of the penal law, as amended by
section 38 of chapter 7 of the laws of 2007, is amended to read as
follows:
3. Maximum term of sentence. (A) Except as provided in subdivision
[five or] six of this section OR PARAGRAPH (B) OF THIS SUBDIVISION, or
as provided in subdivision five of section 70.80 of this article, the
maximum term of an indeterminate sentence for a second felony offender
must be fixed by the court as follows:
[(a)] (I) For a class A-II felony, the term must be life imprisonment;
[(b)] (II) For a class B felony, the term must be at least nine years
and must not exceed twenty-five years;
[(c)] (III) For a class C felony, the term must be at least six years
and must not exceed fifteen years;
[(d)] (IV) For a class D felony, the term must be at least four years
and must not exceed seven years; and
[(e)] (V) For a class E felony, the term must be at least three years
and must not exceed four years; provided, however, that where the
sentence is for the class E felony offense specified in section 240.32
of this chapter, the maximum term must be at least three years and must
not exceed five years.
(B) THE MAXIMUM TERM OF AN INDETERMINATE SENTENCE FOR A SECOND FELONY
OFFENDER, WHO STANDS CONVICTED OF ANY FELONY DEFINED IN ARTICLE ONE
HUNDRED THIRTY OR TWO HUNDRED SIXTY-THREE, OR SECTION 255.25 OF THIS
CHAPTER AND HAS A PREDICATE FELONY CONVICTION OF ANY SUCH OFFENSE
A. 3537 3
COMMITTED AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, MUST BE
FIXED BY THE COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST TWENTY-SEVEN YEARS
AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST EIGHTEEN YEARS
AND MUST NOT EXCEED FORTY-FIVE YEARS;
(III) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWELVE YEARS AND
MUST NOT EXCEED TWENTY-ONE YEARS; AND
(IV) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST NINE YEARS AND
MUST NOT EXCEED TWELVE YEARS.
S 4. Subdivision 3 of section 70.06 of the penal law, as amended by
section 39 chapter 7 of the laws of 2007, is amended to read as follows:
3. Maximum term of sentence. (A) Except as provided in PARAGRAPH (B)
OF THIS subdivision [five of this section], or as provided in subdivi-
sion five of section 70.80 of this article, the maximum term of an inde-
terminate sentence for a second felony offender must be fixed by the
court as follows:
[(a)] (I) For a class A-II felony, the term must be life imprisonment;
[(b)] (II) For a class B felony, the term must be at least nine years
and must not exceed twenty-five years;
[(c)] (III) For a class C felony, the term must be at least six years
and must not exceed fifteen years;
[(d)] (IV) For a class D felony, the term must be at least four years
and must not exceed seven years; and
[(e)] (V) For a class E felony, the term must be at least three years
and must not exceed four years.
(B) THE MAXIMUM TERM OF AN INDETERMINATE SENTENCE FOR A SECOND FELONY
OFFENDER, WHO STANDS CONVICTED OF ANY FELONY DEFINED IN ARTICLE ONE
HUNDRED THIRTY OR TWO HUNDRED SIXTY-THREE OR SECTION 255.25 OF THIS
CHAPTER AND HAS A PREDICATE FELONY CONVICTION OF SUCH OFFENSE COMMITTED
AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, MUST BE FIXED BY THE
COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST TWENTY-SEVEN YEARS
AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST EIGHTEEN YEARS
AND MUST NOT EXCEED FORTY-FIVE YEARS;
(III) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWELVE YEARS AND
MUST NOT EXCEED TWENTY-ONE YEARS; AND
(IV) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST NINE YEARS AND
MUST NOT EXCEED TWELVE YEARS.
S 5. Subdivision 6 of section 70.06 of the penal law, as added by
chapter 3 of the laws of 1995, is amended to read as follows:
6. Determinate sentence. [When] (A) EXCEPT AS PROVIDED IN PARAGRAPH
(B) OF THIS SUBDIVISION, WHEN the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
felony offender and the sentence to be imposed on such person is for a
violent felony offense, as defined in subdivision one of section 70.02,
the court must impose a determinate sentence of imprisonment the term of
which must be fixed by the court as follows:
[(a)] (I) For a class B violent felony offense, the term must be at
least eight years and must not exceed twenty-five years;
[(b)] (II) For a class C violent felony offense, the term must be at
least five years and must not exceed fifteen years;
[(c)] (III) For a class D violent felony offense, the term must be at
least three years and must not exceed seven years; and
A. 3537 4
[(d)] (IV) For a class E violent felony offense, the term must be at
least two years and must not exceed four years.
(B) WHEN THE COURT HAS FOUND, PURSUANT TO THE PROVISIONS OF THE CRIMI-
NAL PROCEDURE LAW, THAT A PERSON IS A SECOND FELONY OFFENDER WITH A
PREDICATE FELONY CONVICTION OF A FELONY DEFINED IN ARTICLE ONE HUNDRED
THIRTY OR TWO HUNDRED SIXTY-THREE, OR SECTION 255.25 OF THIS CHAPTER
COMMITTED AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, AND THE
SENTENCE TO BE IMPOSED ON SUCH PERSON IS FOR A VIOLENT FELONY OFFENSE
DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THIS CHAPTER, THE COURT MUST
IMPOSE A DETERMINATE SENTENCE OF IMPRISONMENT THE TERM OF WHICH MUST BE
FIXED BY THE COURT AS FOLLOWS:
(I) FOR A CLASS B VIOLENT FELONY OFFENSE, THE TERM MUST BE AT LEAST
TWENTY-FOUR YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C VIOLENT FELONY OFFENSE, THE TERM MUST BE AT LEAST
FIFTEEN YEARS AND MUST NOT EXCEED FORTY-FIVE YEARS;
(III) FOR A CLASS D VIOLENT FELONY OFFENSE, THE TERM MUST BE AT LEAST
NINE YEARS AND MUST NOT EXCEED TWENTY-ONE YEARS; AND
(IV) FOR A CLASS E VIOLENT FELONY OFFENSE, THE TERM MUST BE AT LEAST
SIX YEARS AND MUST NOT EXCEED TWELVE YEARS.
S 6. Subdivision 3 of section 70.08 of the penal law, as amended by
section 7 of chapter 107 of the laws of 2006, is amended to read as
follows:
3. Minimum period of imprisonment. [The] (A) EXCEPT AS PROVIDED IN
PARAGRAPH (B) OF THIS SUBDIVISION, THE minimum period of imprisonment
under an indeterminate life sentence for a persistent violent felony
offender must be fixed by the court as follows:
[(a)] (I) For the class A-II felony of predatory sexual assault as
defined in section 130.95 of this chapter or the class A-II felony of
predatory sexual assault against a child as defined in section 130.96 of
this chapter, the minimum period must be twenty-five years;
[(a-1)] (II) For a class B felony, the minimum period must be at least
twenty years and must not exceed twenty-five years;
[(b)] (III) For a class C felony, the minimum period must be at least
sixteen years and must not exceed twenty-five years; AND
[(c)] (IV) For a class D felony, the minimum period must be at least
twelve years and must not exceed twenty-five years.
(B) THE MINIMUM PERIOD OF IMPRISONMENT UNDER AN INDETERMINATE LIFE
SENTENCE FOR A PERSISTENT VIOLENT FELONY OFFENDER, WHO STANDS CONVICTED
OF A VIOLENT FELONY OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
THIS CHAPTER AND HAS A PRIOR CONVICTION OF ANY VIOLENT FELONY OFFENSE
DEFINED IN SUCH ARTICLE COMMITTED AGAINST A PERSON UNDER THE AGE OF
EIGHTEEN YEARS, MUST BE FIXED BY THE COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE MINIMUM PERIOD MUST BE AT LEAST SIXTY
YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE MINIMUM PERIOD MUST BE AT LEAST FORTY-
EIGHT YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS; AND
(III) FOR A CLASS D FELONY, THE MINIMUM PERIOD MUST BE AT LEAST THIR-
TY-SIX YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS.
S 7. Subdivision 3 of section 70.08 of the penal law, as amended by
section 8 of chapter 107 of the laws of 2006, is amended to read as
follows:
3. Minimum period of imprisonment. [The] (A) EXCEPT AS PROVIDED IN
PARAGRAPH (B) OF THIS SUBDIVISION, THE minimum period of imprisonment
under an indeterminate life sentence for a persistent violent felony
offender must be fixed by the court as follows:
A. 3537 5
[(a)] (I) For the class A-II felony of predatory sexual assault as
defined in section 130.95 of this chapter or the class A-II felony of
predatory sexual assault against a child as defined in section 130.96 of
this chapter, the minimum period must be twenty-five years;
[(a-1)] (II) For a class B felony, the minimum period must be at least
ten years and must not exceed twenty-five years;
[(b)] (III) For a class C felony, the minimum period must be at least
eight years and must not exceed twenty-five years; AND
[(c)] (IV) For a class D felony, the minimum period must be at least
six years and must not exceed twenty-five years.
(B) THE MINIMUM PERIOD OF IMPRISONMENT UNDER AN INDETERMINATE LIFE
SENTENCE FOR A PERSISTENT VIOLENT FELONY OFFENDER, WHO STANDS CONVICTED
OF A VIOLENT FELONY OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
THIS CHAPTER AND HAS A PRIOR CONVICTION OF ANY VIOLENT FELONY OFFENSE
DEFINED IN SUCH ARTICLE COMMITTED AGAINST A PERSON UNDER THE AGE OF
EIGHTEEN YEARS, MUST BE FIXED BY THE COURT AS FOLLOWS:
(I) FOR A CLASS B FELONY, THE MINIMUM PERIOD MUST BE AT LEAST THIRTY
YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS;
(II) FOR A CLASS C FELONY, THE MINIMUM PERIOD MUST BE AT LEAST TWEN-
TY-FOUR YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS; AND
(III) FOR A CLASS D FELONY, THE MINIMUM PERIOD MUST BE AT LEAST EIGH-
TEEN YEARS AND MUST NOT EXCEED SEVENTY-FIVE YEARS.
S 8. Subdivision 2 of section 70.10 of the penal law, as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
felony offender, and when it is of the opinion that the history and
character of the defendant and the nature and circumstances of his crim-
inal conduct indicate that extended incarceration and life-time super-
vision will best serve the public interest, the court, in lieu of impos-
ing the sentence of imprisonment authorized by section 70.00, 70.02,
70.04, 70.06 or subdivision five of section 70.80 for the crime of which
such person presently stands convicted, may impose the sentence of
imprisonment authorized by that section for a class A-I felony;
PROVIDED, HOWEVER IF SUCH PERSON STANDS CONVICTED OF ANY FELONY DEFINED
IN ARTICLE ONE HUNDRED THIRTY OR TWO HUNDRED SIXTY-THREE OR SECTION
255.25 OF THIS CHAPTER AND HAS A PRIOR CONVICTION OF SUCH AN OFFENSE
COMMITTED AGAINST A PERSON UNDER THE AGE OF EIGHTEEN YEARS, THE COURT
MUST IMPOSE THE SENTENCE OF IMPRISONMENT AUTHORIZED BY PARAGRAPH (B) OF
SUBDIVISION THREE OF SECTION 70.08 OF THIS ARTICLE FOR PERSISTENT
VIOLENT FELONY OFFENDERS. In such event the reasons for the court's
opinion shall be set forth in the record.
S 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law, provided that the
amendments to subdivision 3 of section 70.04 of the penal law, made by
section one of this act, to subdivision 3 of section 70.06 of the penal
law, made by section three of this act, to subdivision 6 of section
70.06 of the penal law, made by section five of this act, and to subdi-
vision 3 of section 70.08 of the penal law, made by section six of this
act, shall not affect the expiration and repeal of such subdivisions
pursuant to chapter 3 of the laws of 1995, as amended, and shall expire
and be deemed repealed therewith, when upon such dates sections two,
four and seven of this act shall take effect.