S T A T E O F N E W Y O R K
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3923
2011-2012 Regular Sessions
I N S E N A T E
March 9, 2011
___________
Introduced by Sen. SMITH -- 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 increasing the penalties
for the rape or sexual assault of a child
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 3 of section 70.02 of the
penal law, as amended by chapter 765 of the laws of 2005, is amended to
read as follows:
(a) For a class B felony, the term must be at least five years and
must not exceed twenty-five years, provided, however, that the term must
be: (i) at least ten years and must not exceed thirty years where the
sentence is for the crime of aggravated assault upon a police officer or
peace officer as defined in section 120.11 of this chapter; [and] (ii)
at least ten years and must not exceed thirty years where the sentence
is for the crime of aggravated manslaughter in the first degree as
defined in section 125.22 of this chapter; AND (III) AT LEAST TWELVE AND
ONE-HALF YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS WHERE THE SENTENCE
IS FOR THE CRIME OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION
130.35 OF THIS CHAPTER WHERE THE VICTIM WAS A CHILD FIVE YEARS OF AGE OR
LESS;
S 2. Subdivisions 1, 2, 3 and 4 of section 70.07 of the penal law,
subdivisions 1, 2 and 3 as amended by chapter 264 of the laws of 2003,
subdivision 4 as added by chapter 1 of the laws of 2000 and paragraphs
(a) and (b) of subdivision 4 as amended by chapter 107 of the laws of
2006, are amended and a new subdivision 2-a is added to read as follows:
1. A person who stands convicted of a felony offense for a sexual
assault against a child OR FOR A SEXUAL ASSAULT AGAINST A CHILD FIVE
YEARS OF AGE OR LESS, having been subjected to a predicate felony
conviction for a sexual assault against a child OR FOR A SEXUAL ASSAULT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10043-01-1
S. 3923 2
AGAINST A CHILD FIVE YEARS OF AGE OR LESS, must be sentenced in accord-
ance with the provisions of subdivision four or five of this section.
2. A "sexual assault against a child" means a felony offense, other
than persistent sexual abuse as defined in section 130.53 of this chap-
ter, (a) the essential elements of which include the commission or
attempted commission of sexual conduct, as defined in subdivision ten of
section 130.00 of this chapter, (b) committed or attempted to be commit-
ted against a child less than fifteen years old.
2-A. A "SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR LESS"
MEANS A FELONY OFFENSE, OTHER THAN PERSISTENT SEXUAL ABUSE AS DEFINED IN
SECTION 130.53 OF THIS CHAPTER, (A) THE ESSENTIAL ELEMENTS OF WHICH
INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF SEXUAL CONDUCT, AS
DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THIS CHAPTER, (B)
COMMITTED OR ATTEMPTED TO BE COMMITTED AGAINST A CHILD FIVE YEARS OF AGE
OR LESS.
3. For purposes of determining whether a person has been subjected to
a predicate felony conviction under this section, the criteria set forth
in paragraph (b) of subdivision one of section 70.06 shall apply
provided however that for purposes of this subdivision, the terms "ten
year" or "ten years", as provided in subparagraphs (iv) and (v) of para-
graph (b) of subdivision one of such section 70.06, shall be "fifteen
year" or "fifteen years". The provisions of section 400.19 of the crimi-
nal procedure law shall govern the procedures that must be followed to
determine whether a person who stands convicted of a sexual assault
against a child OR A SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR
LESS has been previously subjected to a predicate felony conviction for
such a sexual assault and whether such offender was eighteen years of
age or older at the time of the commission of the predicate felony.
4. Where the court has found pursuant to subdivision three of this
section that a person who stands convicted of a felony offense defined
in article one hundred thirty of this chapter for the commission or
attempted commission of a sexual assault against a child has been
subjected to a predicate felony conviction for a sexual assault against
a child, the court shall sentence the defendant as follows:
(a) where the defendant stands convicted of such sexual assault
against a child and such conviction is for a class A-II or class B felo-
ny offense, and the predicate conviction for such sexual assault against
a child is for a class A-II, class B or class C felony offense, the
court shall impose an indeterminate sentence of imprisonment, the maxi-
mum term of which shall be life and the minimum period of which shall be
at least fifteen years and no more than twenty-five years;
(A-1) WHERE THE DEFENDANT STANDS CONVICTED OF SUCH SEXUAL ASSAULT
AGAINST A CHILD FIVE YEARS OF AGE OR LESS, AND THE PREDICATE CONVICTION
FOR SUCH SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR LESS IS A
CLASS B OR CLASS C FELONY OFFENSE, THE COURT SHALL IMPOSE AN INDETERMI-
NATE SENTENCE OF IMPRISONMENT, THE MAXIMUM OF WHICH SHALL BE LIFE AND
THE MINIMUM OF WHICH SHALL BE AT LEAST THIRTY YEARS;
(b) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class A-II, class B or class C felony offense, the court shall impose
a determinate sentence of imprisonment, the term of which must be at
least twelve years and must not exceed thirty years; provided however,
that if the court determines that a longer sentence is warranted, the
court shall set forth on the record the reasons for such determination
and, in lieu of imposing such sentence of imprisonment, may impose an
S. 3923 3
indeterminate sentence of imprisonment, the maximum term of which shall
be life and the minimum period of which shall be at least fifteen years
and no more than twenty-five years;
(c) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class B felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least twelve
years and must not exceed thirty years;
(d) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least ten
years and must not exceed twenty-five years;
(e) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class D felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least five years and must not
exceed fifteen years; and
(f) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class E felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least four years and must not
exceed twelve years.
S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
