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

                                  4028

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 1, 2011
                               ___________

Introduced  by  M. of A. CAMARA, GUNTHER, REILLY, BARRON, CASTRO, AUBRY,
  BOYLAND -- Multi-Sponsored by -- M. of A. COOK, CORWIN, CROUCH,  HOOP-
  ER,  McDONOUGH, McKEVITT, MOLINARO, PHEFFER, RAIA, SAYWARD, WEISENBERG
  -- read once and referred to the Committee on Codes

AN ACT to amend the public health law, the penal law, the executive  law
  and the correction law, in relation to sex offenses facilitated by the
  use of drugs commonly referred to as "date rape drugs"

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

  Section 1. Paragraph (b) of subdivision 4-b of section 2805-i  of  the
public  health  law is amended by adding a new subparagraph 4 to read as
follows:
  (4) NO LATER THAN FOUR HOURS  AFTER  ARRIVING  AT  THE  HOSPITAL,  THE
VICTIM  SHALL, DURING THE EXAMINATION BY A SEXUAL ASSAULT FORENSIC EXAM-
INER, HAVE HIS OR HER BLOOD DRAWN AND TESTED  FOR  GAMMA  HYDROXYBUTYRIC
ACID  (GHB),  ROHYPNOL (FLUNITRAZEPAM) AND KETAMINE (KETAMINE HYDROCHLO-
RIDE), COMMONLY KNOWN AS "DATE RAPE DRUGS".  SUCH  TESTED  MATERIAL  AND
RESULTS SHALL BE COLLECTED AND MAINTAINED AS EVIDENCE PURSUANT TO SUBDI-
VISION TWO OF THIS SECTION.
  S  2.  Section  130.90  of the penal law, as added by chapter 1 of the
laws of 2000 and subdivisions 1 and 2 as amended by chapter 264  of  the
laws of 2003, is amended to read as follows:
S 130.90 Facilitating  a  sex offense with a controlled substance IN THE
           FIRST DEGREE.
  A person is guilty of facilitating a sex  offense  with  a  controlled
substance IN THE FIRST DEGREE when he or she:
  1. knowingly and unlawfully possesses [a] ONE OR MORE OF THE FOLLOWING
controlled [substance or any preparation, compound, mixture or substance
that requires a prescription to obtain] SUBSTANCES: GAMMA HYDROXYBUTYRIC
ACID  (GHB),  ROHYPNOL (FLUNITRAZEPAM), OR KETAMINE (KETAMINE HYDROCHLO-
RIDE), COMMONLY  KNOWN  AS  "DATE  RAPE  DRUGS",  and  administers  such
substance  [or preparation, compound, mixture or substance that requires
a prescription to obtain] OR SUBSTANCES to another person  without  such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD03997-01-1

A. 4028                             2

person's  consent  and with intent to commit against such person conduct
constituting a felony defined in this article; and
  2.  commits  or  attempts to commit such conduct constituting a felony
defined in this article.
  Facilitating a sex offense with a controlled substance  IN  THE  FIRST
DEGREE is a class [D] C felony.
  S  3.  The penal law is amended by adding a new section 130.89 to read
as follows:
S 130.89 FACILITATING A SEX OFFENSE WITH A CONTROLLED SUBSTANCE  IN  THE
           SECOND DEGREE.
  A  PERSON  IS  GUILTY  OF FACILITATING A SEX OFFENSE WITH A CONTROLLED
SUBSTANCE IN THE SECOND DEGREE WHEN HE OR SHE:
  1. KNOWINGLY AND UNLAWFULLY POSSESSES A CONTROLLED  SUBSTANCE  OR  ANY
PREPARATION, COMPOUND, MIXTURE OR SUBSTANCE, OTHER THAN THOSE CONTROLLED
SUBSTANCES  LISTED  IN  SECTION  130.90 OF THIS ARTICLE, THAT REQUIRES A
PRESCRIPTION TO OBTAIN AND ADMINISTERS SUCH  SUBSTANCE  OR  PREPARATION,
COMPOUND, MIXTURE OR SUBSTANCE THAT REQUIRES A PRESCRIPTION TO OBTAIN TO
ANOTHER  PERSON  WITHOUT SUCH PERSON'S CONSENT AND WITH INTENT TO COMMIT
AGAINST SUCH PERSON CONDUCT CONSTITUTING A FELONY DEFINED IN THIS  ARTI-
CLE; AND
  2.  COMMITS  OR  ATTEMPTS TO COMMIT SUCH CONDUCT CONSTITUTING A FELONY
DEFINED IN THIS ARTICLE.
  FACILITATING A SEX OFFENSE WITH A CONTROLLED SUBSTANCE IN  THE  SECOND
DEGREE IS A CLASS D FELONY.
  S  4.  Paragraphs (b) and (c) of subdivision 1 of section 70.02 of the
penal law, as amended by chapter 405 of the laws of 2010, are amended to
read as follows:
  (b) Class C violent felony offenses: an attempt to commit any  of  the
class  B felonies set forth in paragraph (a) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated manslaughter in the second degree as defined  in  section  125.21,
aggravated  sexual  abuse  in  the  second  degree as defined in section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, gang assault
in the second degree as defined in section 120.06, strangulation in  the
first  degree  as defined in section 121.13,  FACILITATING A SEX OFFENSE
WITH A CONTROLLED SUBSTANCE IN THE FIRST DEGREE AS  DEFINED  IN  SECTION
130.90,  burglary  in  the  second  degree as defined in section 140.25,
robbery in the second degree as  defined  in  section  160.10,  criminal
possession  of  a  weapon  in  the  second  degree as defined in section
265.03, criminal use of a firearm in the second  degree  as  defined  in
section  265.08,  criminal  sale  of  a  firearm in the second degree as
defined in section 265.12, criminal sale of a firearm with the aid of  a
minor  as defined in section 265.14, soliciting or providing support for
an act of terrorism in the first degree as defined  in  section  490.15,
hindering  prosecution  of  terrorism in the second degree as defined in
section 490.30, and criminal possession of a chemical weapon or  biolog-
ical weapon in the third degree as defined in section 490.37.
  (c)  Class  D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in  subdivision
one  of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section  130.30,
criminal  sexual  act in the second degree as defined in section 130.45,

A. 4028                             3

sexual abuse in the first degree as defined in section 130.65, course of
sexual conduct against a child  in  the  second  degree  as  defined  in
section  130.80,  aggravated sexual abuse in the third degree as defined
in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
substance IN THE SECOND DEGREE as defined in  section  [130.90]  130.89,
criminal possession of a weapon in the third degree as defined in subdi-
vision  five,  six, seven or eight of section 265.02, criminal sale of a
firearm in the third degree as defined in section 265.11, intimidating a
victim or witness in the second degree as  defined  in  section  215.16,
soliciting  or  providing  support for an act of terrorism in the second
degree as defined in section 490.10, and making a terroristic threat  as
defined  in  section  490.20, falsely reporting an incident in the first
degree as defined in section 240.60, placing a false bomb  or  hazardous
substance  in  the  first degree as defined in section 240.62, placing a
false bomb or hazardous substance in a sports  stadium  or  arena,  mass
transportation  facility or enclosed shopping mall as defined in section
240.63, and aggravated unpermitted use of  indoor  pyrotechnics  in  the
first degree as defined in section 405.18.
  S  5.  Subdivision  2-f of section 70.25 of the penal law, as added by
chapter 1 of the laws of 2000, is amended to read as follows:
  2-f. Whenever a person is convicted of FACILITATING A SEX OFFENSE WITH
A CONTROLLED SUBSTANCE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.89
OR facilitating a sex offense with a controlled substance IN  THE  FIRST
DEGREE  as  defined  in  section  130.90  of  this chapter, the sentence
imposed by the court for such offense may be ordered to run consecutive-
ly to any sentence imposed upon conviction  of  an  offense  defined  in
article  one hundred thirty of this chapter arising from the same crimi-
nal transaction.
  S 6. Paragraph (d) of subdivision 7 of section 995  of  the  executive
law,  as amended by chapter 2 of the laws of 2006, is amended to read as
follows:
  (d) any of the following felonies, or an attempt  thereof  where  such
attempt is a felony offense:
  aggravated  assault  upon  a  person  less  than  eleven years old, as
defined in section 120.12 of  the  penal  law;  menacing  in  the  first
degree,  as  defined in section 120.13 of the penal law; reckless endan-
germent in the first degree, as defined in section 120.25 of  the  penal
law;  stalking in the second degree, as defined in section 120.55 of the
penal law; criminally negligent homicide, as defined in  section  125.10
of  the  penal  law;  vehicular  manslaughter  in  the second degree, as
defined in section 125.12 of the penal law;  vehicular  manslaughter  in
the  first  degree,  as  defined  in  section  125.13  of the penal law;
persistent sexual abuse, as defined in section 130.53 of the penal  law;
aggravated  sexual  abuse  in  the  fourth degree, as defined in section
130.65-a of the penal law; female  genital  mutilation,  as  defined  in
section  130.85  of  the  penal  law;  FACILITATING A SEX OFFENSE WITH A
CONTROLLED SUBSTANCE IN THE SECOND DEGREE, AS DEFINED IN SECTION  130.89
OF THE PENAL LAW; facilitating a sex offense with a controlled substance
IN  THE  FIRST  DEGREE,  as  defined in section 130.90 of the penal law;
unlawful imprisonment in the first degree, as defined in section  135.10
of the penal law; custodial interference in the first degree, as defined
in  section  135.50  of  the  penal  law; criminal trespass in the first
degree, as defined in section 140.17 of the penal law; criminal  tamper-
ing  in the first degree, as defined in section 145.20 of the penal law;
tampering with a consumer product in the first  degree,  as  defined  in
section  145.45 of the penal law; robbery in the third degree as defined

A. 4028                             4

in section 160.05 of the penal law; identity theft in the second degree,
as defined in section 190.79 of the penal law;  identity  theft  in  the
first  degree,  as defined in section 190.80 of the penal law; promoting
prison  contraband  in the first degree, as defined in section 205.25 of
the penal law; tampering with a witness in the third degree, as  defined
in  section  215.11  of  the  penal law; tampering with a witness in the
second degree, as defined in section 215.12 of the penal law;  tampering
with  a witness in the first degree, as defined in section 215.13 of the
penal law; criminal contempt in the first degree, as defined in subdivi-
sions (b), (c) and (d) of section 215.51 of the  penal  law;  aggravated
criminal  contempt,  as defined in section 215.52 of the penal law; bail
jumping in the second degree, as defined in section 215.56 of the  penal
law;  bail  jumping in the first degree, as defined in section 215.57 of
the penal law; patronizing a prostitute in the second degree, as defined
in section 230.05 of the penal law;  patronizing  a  prostitute  in  the
first  degree,  as defined in section 230.06 of the penal law; promoting
prostitution in the second degree, as defined in section 230.30  of  the
penal  law;  promoting  prostitution  in the first degree, as defined in
section 230.32 of the penal law; compelling prostitution, as defined  in
section  230.33  of  the  penal  law; disseminating indecent [materials]
MATERIAL to minors in the second degree, as defined in section 235.21 of
the penal law; disseminating indecent [materials] MATERIAL to minors  in
the first degree, as defined in section 235.22 of the penal law; riot in
the  first degree, as defined in section 240.06 of the penal law; crimi-
nal anarchy, as defined in section 240.15 of the penal  law;  aggravated
harassment  of an employee by an inmate, as defined in section 240.32 of
the penal law; unlawful surveillance in the second degree, as defined in
section 250.45 of the penal law;  unlawful  surveillance  in  the  first
degree,  as  defined in section 250.50 of the penal law; endangering the
welfare of a vulnerable elderly person, OR AN INCOMPETENT OR  PHYSICALLY
DISABLED  PERSON  in  the second degree, as defined in section 260.32 of
the penal law; endangering the welfare of a vulnerable  elderly  person,
OR  AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the first degree, as
defined in section 260.34 of the penal law; use of a child in  a  sexual
performance, as defined in section 263.05 of the penal law; promoting an
obscene  sexual  performance by a child, as defined in section 263.10 of
the penal law; possessing an obscene sexual performance by a  child,  as
defined  in section 263.11 of the penal law; promoting a sexual perform-
ance by a child, as defined in section 263.15 of the penal law; possess-
ing a sexual performance by a child, as defined in section 263.16 of the
penal law; criminal possession of a  weapon  in  the  third  degree,  as
defined  in  section 265.02 of the penal law; criminal sale of a firearm
in the third degree, as defined in section  265.11  of  the  penal  law;
criminal  sale  of a firearm to a minor, as defined in section 265.16 of
the penal law; unlawful wearing of a body vest, as  defined  in  section
270.20 of the penal law; hate crimes as defined in section 485.05 of the
penal  law;  and crime of terrorism, as defined in section 490.25 of the
penal law; or
  S 7. Subparagraph (ii) 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:
  (ii) a conviction of or a conviction for an attempt to commit  any  of
the  provisions  of  sections 130.53, 130.65-a, 130.89 and 130.90 of the
penal law, or
  S 8. This act shall take effect on the ninetieth day  after  it  shall
have become a law.