NY State Senate Bill 2013-S2240A

Senate Bill S2240A

2013-2014 Legislative Session

Establishes the crimes of aggravated rape, aggravated criminal sexual act and aggravated sexual abuse

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
Feb 14, 2013	print number 2240a
Feb 14, 2013	amend and recommit to codes
Jan 15, 2013	referred to codes

Bill Amendments

Original

A (Active)

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2013-S2240 - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§70.02, 130.65-a, 130.66, 130.67 & 130.70, add §§130.36, 130.51 & 130.71, Pen L; amd §720.10, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3412
2011-2012: S753
2015-2016: S2994
2017-2018: S830
2019-2020: S1045

2013-S2240 - Summary

Increases the penalties for the violent sex offenses of rape, criminal sexual act and aggravated sexual abuse when committed in a forcible manner where an actor or accomplice is armed with or displays a deadly weapon, uses or threatens the use of a dangerous instrument or inflicts physical injury upon the victim.

2013-S2240 - Sponsor Memo

                                BILL NUMBER:S2240

TITLE OF BILL:  An act to amend the penal law, in relation to
aggravated sexual offenses; and to amend the criminal procedure law,
in relation to youthful offender status

PURPOSE:  To provide a higher felony classification for certain
forcible sex crimes when such crimes are further aggravated by the
presence or use of a deadly weapon or dangerous instrument or by the
infliction of physical ury.

SUMMARY OF PROVISIONS:  The Penal Law is amended by adding three new
sections, 130.36, 130.51 and 130.71, which establish the crimes of
aggravated rape, aggravated sodomy and aggravated sexual abuse. The
Penal Law and Criminal Procedure Law are amended to reflect a higher
felony classification for certain forcible sex crimes.

JUSTIFICATION:  "Forcible compulsion" describes a type of criminal
conduct by which a person who engages in sexual activity with another
person is guilty of the Class B felonies of first degree rape, first
degree sodomy and aggravated sexual abuse. The current definition of
forcible compulsion is the result of a number of amendments within the
last decade which have eliminated the requirement that the victim of a
sexual attack must offer "earnest resistance" or else lose all chance
to successfully prosecute the attacker. Submission to a sexual attack
to preserve one's life or safety is no longer considered as consent to

a sex crime. However, an unintentional consequence of this desired
reform is that "forcible compulsion" now encompasses a very broad
range Of criminal behavior. The concept of forcible compulsion, for
example, has been extended to include an implied threat which places
the victim in fear that a third person will be kidnapped.
Furthermore, even if forcible compulsion is accomplished in a minimal
manner, current law does not differentiate between such conduct and
that which is accompanied by a serious aggravating factor such as the
use of a deadly weapon.

This bill does not seek to undo the progress made in the forcible
compulsion area. But it is clear that an attacker who possesses or
uses a deadly weapon or who inflicts physical injury either to compel
submission or as concomitant to the crime presents a higher disregard
for, and danger to, human life than that presented in the case of an
implied weaponless threat. The law should not continue to give equal
weight to vastly divergent criminal activities. Thus it is appropriate
that these forcible sex crimes when further aggravated by the use of
weapons or by the infliction of physical injury reflect that increased
seriousness by being classified at the A-II felony level.

LEGISLATIVE HISTORY:  2011,2012: S.753732 Referred to Codes 2009,2010:
S.3412 Referred to Codes 2007,2008: S.388 Referred to Codes 2006:
S.6400 Referred to Codes 2003,2004: S.3316 Referred to Codes
2001,2002: S.3007 Referred to Codes 1999,2000: S.3336/A. Referred to
Codes

FISCAL IMPLICATIONS:  None.


EFFECTIVE DATE:  The first day of November next succeeding the date of
enactment into law.

2013-S2240 - Bill Text download pdf

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

                                  2240

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced by Sens. YOUNG, BONACIC, LARKIN, MAZIARZ, O'MARA, RANZENHOFER
  -- 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 aggravated sexual
  offenses; and to amend the criminal  procedure  law,  in  relation  to
  youthful offender status

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

  Section 1. Paragraphs (a), (b) and (c) of  subdivision  1  of  section
70.02  of  the penal law, paragraph (a) as amended by chapter 320 of the
laws of 2006, paragraph (b) as amended by chapter 148  of  the  laws  of
2011,  and  paragraph (c) as amended by chapter 405 of the laws of 2010,
are amended to read as follows:
  (a) Class B violent felony offenses: an attempt to  commit  the  class
A-I  felonies  of  murder  in  the  second  degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter  in
the  first  degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section  125.22,  rape  in  the  first
degree  as  defined  in section 130.35, criminal sexual act in the first
degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
[first]  SECOND  degree  as  defined in section 130.70, course of sexual
conduct against a child in  the  first  degree  as  defined  in  section
130.75;  assault  in  the  first  degree  as  defined in section 120.10,
kidnapping in the second degree as defined in section  135.20,  burglary
in  the  first  degree as defined in section 140.30, arson in the second
degree as defined in section 150.15, robbery  in  the  first  degree  as
defined  in  section  160.15,  incest  in the first degree as defined in
section 255.27, criminal possession of a weapon in the first  degree  as
defined in section 265.04, criminal use of a firearm in the first degree
as  defined  in  section 265.09, criminal sale of a firearm in the first

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06425-01-3

S. 2240                             2

degree as defined in section 265.13, aggravated assault  upon  a  police
officer or a peace officer as defined in section 120.11, gang assault in
the  first degree as defined in section 120.07, intimidating a victim or
witness  in  the  first  degree  as defined in section 215.17, hindering
prosecution of terrorism in the  first  degree  as  defined  in  section
490.35, criminal possession of a chemical weapon or biological weapon in
the  second  degree  as defined in section 490.40, and criminal use of a
chemical weapon or biological weapon in the third degree as  defined  in
section 490.47.
  (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]  THIRD  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,
assault  on  a  judge  as defined in section 120.09, gang assault in the
second degree as defined in section 120.06, strangulation in  the  first
degree  as  defined  in section 121.13, 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 chemi-
cal  weapon  or  biological  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,
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] FOURTH degree  as
defined  in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, criminal possession of a  weapon
in  the third degree as defined in subdivision 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. 2240                             3

  S  2.  The  penal  law is amended by adding three new sections 130.36,
130.51 and 130.71 to read as follows:
S 130.36 AGGRAVATED RAPE.
  A  MALE  IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE  COURSE  OF
THE  COMMISSION  OF  THE  CRIME  OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
ANOTHER PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED RAPE IS A CLASS A-II FELONY.
S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
  A  PERSON  IS  GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN HE OR SHE
ENGAGES IN ORAL SEXUAL CONDUCT  OR  ANAL  SEXUAL  CONDUCT  WITH  ANOTHER
PERSON  BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
  1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE  FIRST  DEGREE
WHEN  HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
RA, PENIS OR RECTUM OF ANOTHER PERSON  BY  FORCIBLE  COMPULSION  CAUSING
PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
  (A) IS ARMED WITH A DEADLY WEAPON; OR
  (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  (C) CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A  PARTICIPANT  IN
THE CRIME; OR
  (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
  2.  CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
PROVISIONS OF THIS SECTION.
  AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
  S 3. Section 130.65-a of the penal law, as added by chapter 1  of  the
laws  of  2000,  subdivision  1 as amended by chapter 485 of the laws of
2009, is amended to read as follows:
S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
  1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
degree when:
  (a) He or she inserts a foreign object in the vagina, urethra,  penis,
rectum  or  anus  of another person and the other person is incapable of
consent by reason of some factor other than being  less  than  seventeen
years old; or
  (b)  He  or she inserts a finger in the vagina, urethra, penis, rectum
or anus of another person causing physical injury  to  such  person  and
such  person is incapable of consent by reason of some factor other than
being less than seventeen years old.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.

S. 2240                             4

  Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
felony.
  S  4.  Section 130.66 of the penal law, as added by chapter 181 of the
laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
of 2009, subdivision 3 as renumbered by chapter 1 of the laws  of  2000,
is amended to read as follows:
S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
  1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree  when  he or she inserts a foreign object in the vagina, urethra,
penis, rectum or anus of another 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.
  2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
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  and  such  person  is  incapable  of  consent by reason of being
mentally disabled or mentally incapacitated.
  3. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [third] FOURTH degree is a class D
felony.
  S 5. Section 130.67 of the penal law, as added by chapter 450  of  the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
  1.    A  person  is  guilty of aggravated sexual abuse in the [second]
THIRD degree when he or she inserts a finger  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.
  2.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.
  Aggravated sexual abuse in the [second] THIRD  degree  is  a  class  C
felony.
  S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
  1.    A  person  is  guilty  of aggravated sexual abuse in the [first]
SECOND 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.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [first] SECOND degree is a class B
felony.

S. 2240                             5

  S 7. Subdivisions 2 and 3 of section 720.10 of the criminal  procedure
law,  subdivision 2 as amended by chapter 416 of the laws of 1986, para-
graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
and subdivision 3 as amended by chapter 264 of the  laws  of  2003,  are
amended to read as follows:
  2.    "Eligible  youth"  means  a  youth who is eligible to be found a
youthful offender.  Every youth is so eligible unless:
  (a) the conviction to be replaced by a youthful  offender  finding  is
for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided  in
subdivision  three,  or  (iii) rape in the first degree, criminal sexual
act in the first degree,  or  aggravated  sexual  abuse  IN  THE  SECOND
DEGREE, except as provided in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)    such  youth has previously been adjudicated a youthful offender
following conviction of a felony or has been  adjudicated  on  or  after
September  first,  nineteen  hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined  in  the  family  court
act.
  3.  Notwithstanding the provisions of subdivision two, a youth who has
been  convicted  of  an  armed  felony  offense  or of rape in the first
degree, criminal sexual act in the first degree,  or  aggravated  sexual
abuse  IN THE SECOND DEGREE is an eligible youth if the court determines
that one or more of the following factors exist: (i)  mitigating circum-
stances that bear directly upon  the  manner  in  which  the  crime  was
committed;  or  (ii) where the defendant was not the sole participant in
the crime, the defendant's participation was relatively  minor  although
not  so  minor as to constitute a defense to the prosecution.  Where the
court determines that the eligible youth is  a  youthful  offender,  the
court shall make a statement on the record of the reasons for its deter-
mination, a transcript of which shall be forwarded to the state division
of  criminal  justice  services,  to  be  kept  in  accordance  with the
provisions of subdivision three of section eight hundred  thirty-seven-a
of the executive law.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

co-Sponsors

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2013-S2240A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§70.02, 130.65-a, 130.66, 130.67 & 130.70, add §§130.36, 130.51 & 130.71, Pen L; amd §720.10, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3412
2011-2012: S753
2015-2016: S2994
2017-2018: S830
2019-2020: S1045

2013-S2240A (ACTIVE) - Summary

2013-S2240A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2240A

TITLE OF BILL:  An act to amend the penal law, in relation to
aggravated sexual offenses; and to amend the criminal procedure law,
in relation to youthful offender status

PURPOSE:  To provide a higher felony classification for certain
forcible sex crimes when such crimes are further aggravated by the
presence or use of a deadly weapon or dangerous instrument or by the
infliction of physical injury.

SUMMARY OF PROVISIONS:  The Penal Law is amended by adding three new
sections, 130.36, 130.51 and 130.71, which establish the crimes of
aggravated rape, aggravated criminal sexual act and aggravated sexual
abuse in the first degree.  The Penal Law and Criminal Procedure Law
are amended to reflect a higher felony classification for certain
forcible sex crimes.

JUSTIFICATION:  "Forcible compulsion" describes a type of criminal
conduct by which a person who engages in sexual activity with another
person is guilty of the Class B felonies of first degree rape, first
degree sodomy and aggravated sexual abuse. The current definition of
forcible compulsion is the result of a number of amendments within the
last decade which have eliminated the requirement that the victim of a
sexual attack must offer "earnest resistance" or else lose all chance
to successfully prosecute the attacker. Submission to a sexual attack

to preserve one's life or safety is no longer considered as consent to
a sex crime. However, an unintentional consequence of this desired
reform is that "forcible compulsion" now encompasses a very broad
range of criminal behavior. The concept of forcible compulsion, for
example, has been extended to include an implied threat which places
the victim in fear that a third person will be kidnapped.
Furthermore, even if forcible compulsion is accomplished in a minimal
manner, current law does not differentiate between such conduct and
that which is accompanied by a serious aggravating factor such as the
use of a deadly weapon.

This bill does not seek to undo the progress made in the forcible
compulsion area. But it is clear that an attacker who possesses or
uses a deadly weapon or who inflicts physical injury either to compel
submission or as concomitant to the crime presents a higher disregard
for, and danger to, human life than that presented in the case of an
implied weaponless threat. The law should not continue to give equal
weight to vastly divergent criminal activities. Thus it is appropriate
that these forcible sex crimes, when further aggravated by the use of
weapons, or by the infliction of physical injury, reflect that
increased seriousness by being classified at the A-II felony level.

LEGISLATIVE HISTORY:  2011,2012: S.753 Referred to Codes 2009,2010:
S.3412 Referred to Codes 2007,2008: S.388 Referred to Codes 2006:
S.6400 Referred to Codes 2003,2004: S.3316 Referred to Codes
2001,2002: S.3007 Referred to Codes 1999,2000: S.3336/A.732 Referred
to Codes

FISCAL IMPLICATIONS:  None.


EFFECTIVE DATE:  The first day of November next succeeding the date of
enactment into law.

2013-S2240A (ACTIVE) - Bill Text download pdf

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

                                 2240--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced by Sens. YOUNG, BONACIC, LARKIN, MAZIARZ, O'MARA, RANZENHOFER
  -- read twice and ordered printed, and when printed to be committed to
  the  Committee on Codes -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to  amend  the  penal  law,  in  relation  to  aggravated  sexual
  offenses;  and  to  amend  the  criminal procedure law, in relation to
  youthful offender status

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

  Section  1.  Paragraphs  (a),  (b) and (c) of subdivision 1 of section
70.02 of the penal law, paragraph (a) as amended by chapter 320  of  the
laws  of 2006, and paragraphs (b) and (c) as amended by chapter 1 of the
laws of 2013, are amended to read as follows:
  (a) Class B violent felony offenses: an attempt to  commit  the  class
A-I  felonies  of  murder  in  the  second  degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter  in
the  first  degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section  125.22,  rape  in  the  first
degree  as  defined  in section 130.35, criminal sexual act in the first
degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
[first]  SECOND  degree  as  defined in section 130.70, course of sexual
conduct against a child in  the  first  degree  as  defined  in  section
130.75;  assault  in  the  first  degree  as  defined in section 120.10,
kidnapping in the second degree as defined in section  135.20,  burglary
in  the  first  degree as defined in section 140.30, arson in the second
degree as defined in section 150.15, robbery  in  the  first  degree  as
defined  in  section  160.15,  incest  in the first degree as defined in
section 255.27, criminal possession of a weapon in the first  degree  as
defined in section 265.04, criminal use of a firearm in the first degree
as  defined  in  section 265.09, criminal sale of a firearm in the first

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06425-03-3

S. 2240--A                          2

degree as defined in section 265.13, aggravated assault  upon  a  police
officer or a peace officer as defined in section 120.11, gang assault in
the  first degree as defined in section 120.07, intimidating a victim or
witness  in  the  first  degree  as defined in section 215.17, hindering
prosecution of terrorism in the  first  degree  as  defined  in  section
490.35, criminal possession of a chemical weapon or biological weapon in
the  second  degree  as defined in section 490.40, and criminal use of a
chemical weapon or biological weapon in the third degree as  defined  in
section 490.47.
  (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]  THIRD  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,
assault  on  a  judge  as defined in section 120.09, gang assault in the
second degree as defined in section 120.06, strangulation in  the  first
degree  as  defined  in section 121.13, 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, aggravated crimi-
nal possession of a weapon as defined in section 265.19,  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 chemi-
cal weapon or biological 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,
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] FOURTH degree as
defined in section 130.66, facilitating a sex offense with a  controlled
substance  as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six,  seven,  eight,
nine  or  ten 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

S. 2240--A                          3

unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
  S  2.  The  penal  law is amended by adding three new sections 130.36,
130.51 and 130.71 to read as follows:
S 130.36 AGGRAVATED RAPE.
  A MALE IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN  SEXUAL  INTER-
COURSE  WITH  A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF
THE COMMISSION OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE  OR
ANOTHER PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED RAPE IS A CLASS A-II FELONY.
S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
  A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN  HE  OR  SHE
ENGAGES  IN  ORAL  SEXUAL  CONDUCT  OR  ANAL SEXUAL CONDUCT WITH ANOTHER
PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE  COMMISSION
OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
  1.  A  PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA,  URETH-
RA,  PENIS  OR  RECTUM  OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
PARTICIPANT IN THE CRIME:
  (A) IS ARMED WITH A DEADLY WEAPON; OR
  (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  (C)  CAUSES  PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
  2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
PROVISIONS OF THIS SECTION.
  AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
  S  3.  Section 130.65-a of the penal law, as added by chapter 1 of the
laws of 2000, subdivision 1 as amended by chapter 485  of  the  laws  of
2009, is amended to read as follows:
S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
  1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
degree when:
  (a)  He or she inserts a foreign object in the vagina, urethra, penis,
rectum or anus of another person and the other person  is  incapable  of
consent  by  reason  of some factor other than being less than seventeen
years old; or
  (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
or  anus  of  another  person causing physical injury to such person and
such person is incapable of consent by reason of some factor other  than
being less than seventeen years old.

S. 2240--A                          4

  2.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
felony.
  S 4. Section 130.66 of the penal law, as added by chapter 181  of  the
laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
of  2009,  subdivision 3 as renumbered by chapter 1 of the laws of 2000,
is amended to read as follows:
S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
  1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree when he or she inserts a foreign object in the  vagina,  urethra,
penis, rectum or anus of another 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.
  2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
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 and such person is  incapable  of  consent  by  reason  of  being
mentally disabled or mentally incapacitated.
  3.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.
  Aggravated sexual abuse in the [third] FOURTH  degree  is  a  class  D
felony.
  S  5.  Section 130.67 of the penal law, as added by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
  1.  A person is guilty of aggravated  sexual  abuse  in  the  [second]
THIRD  degree  when  he  or she inserts a finger 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.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [second] THIRD degree is a class C
felony.
  S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
  1.   A person is guilty of aggravated  sexual  abuse  in  the  [first]
SECOND  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.
  2.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.

S. 2240--A                          5

  Aggravated sexual abuse in the [first] SECOND  degree  is  a  class  B
felony.
  S  7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
law, subdivision 2 as amended by chapter 416 of the laws of 1986,  para-
graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
and  subdivision  3  as  amended by chapter 264 of the laws of 2003, are
amended to read as follows:
  2.  "Eligible youth" means a youth who  is  eligible  to  be  found  a
youthful offender.  Every youth is so eligible unless:
  (a)  the  conviction  to be replaced by a youthful offender finding is
for (i) a class A-I or class A-II felony, or (ii)  an  armed  felony  as
defined  in subdivision forty-one of section 1.20, except as provided in
subdivision three, or (iii) rape in the first  degree,  criminal  sexual
act  in  the  first  degree,  or  aggravated  sexual abuse IN THE SECOND
DEGREE, except as provided in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)  such youth has previously been adjudicated  a  youthful  offender
following  conviction  of  a  felony or has been adjudicated on or after
September first, nineteen hundred seventy-eight  a  juvenile  delinquent
who  committed  a  designated  felony act as defined in the family court
act.
  3.  Notwithstanding the provisions of subdivision two, a youth who has
been convicted of an armed felony  offense  or  of  rape  in  the  first
degree,  criminal  sexual  act in the first degree, or aggravated sexual
abuse IN THE SECOND DEGREE is an eligible youth if the court  determines
that one or more of the following factors exist: (i)  mitigating circum-
stances  that  bear  directly  upon  the  manner  in which the crime was
committed; or (ii) where the defendant was not the sole  participant  in
the  crime,  the defendant's participation was relatively minor although
not so minor as to constitute a defense to the prosecution.   Where  the
court  determines  that  the  eligible youth is a youthful offender, the
court shall make a statement on the record of the reasons for its deter-
mination, a transcript of which shall be forwarded to the state division
of criminal  justice  services,  to  be  kept  in  accordance  with  the
provisions  of subdivision three of section eight hundred thirty-seven-a
of the executive law.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become  a  law;  provided,  however,
that  if  this  act  shall  take  effect  prior to the effective date of
section 27 of chapter 1 of the laws of 2013, then section  one  of  this
act shall take effect on the same date and in the same manner as section
27 of chapter 1 of the laws of 2013 takes effect.

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Senate Bill S2240A

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