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

                                  4755

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 7, 2011
                               ___________

Introduced  by M. of A. SIMOTAS -- read once and referred to the Commit-
  tee 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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05774-01-1
              

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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, the opening paragraph as amended by
chapter 485 of the laws of 2009, is amended to read as follows:
  1. A person is guilty of aggravated sexual abuse in the  first  degree
when  he  or she inserts a foreign object in the vagina, urethra, penis,
rectum or anus 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:
  (A) HE OR SHE INSERTS A FOREIGN OBJECT IN THE VAGINA, URETHRA,  PENIS,
RECTUM  OR ANUS OF ANOTHER PERSON CAUSING PHYSICAL INJURY TO SUCH PERSON
WHEN SUCH OTHER PERSON IS LESS THAN TWELVE YEARS OLD; OR

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  (B) BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE  INSERTS  A  FOREIGN
OBJECT  IN  THE VAGINA, URETHRA, PENIS, RECTUM OR ANUS OF ANOTHER PERSON
CAUSING PHYSICAL INJURY TO SUCH PERSON WHEN SUCH OTHER  PERSON  IS  LESS
THAN FOURTEEN 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
  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

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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.