S T A T E   O F   N E W   Y O R K
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                                  2875

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 24, 2013
                               ___________

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.
                                                           LBD07219-01-3

              

S. 2875                             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. 2875                             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.