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

                                  2091

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 21, 2015
                               ___________

Introduced  by Sen. FLANAGAN -- 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 establishing   home  inva-
  sion robbery offenses

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

  Section 1. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of
the penal law, paragraph (a) as amended by chapter 320 of  the  laws  of
2006  and paragraph (b) 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  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, HOME INVASION ROBBERY IN THE FIRST DEGREE AS DEFINED IN
SECTION 163.10, 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 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05299-01-5
              

S. 2091                             2

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  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,  HOME
INVASION  ROBBERY  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 163.05,
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 criminal
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.
  S  2.  The penal law is amended by adding a new article 163 to read as
follows:

                               ARTICLE 163
                          HOME INVASION ROBBERY
SECTION 163.00 HOME INVASION ROBBERY; DEFINED.
        163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.
        163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
        163.15 HOME INVASION ROBBERY; PROSECUTION.
S 163.00 HOME INVASION ROBBERY; DEFINED.
  FOR THE PURPOSES OF THIS ARTICLE:
  1. "HOME INVASION ROBBERY" MEANS TO KNOWINGLY ENTER OR  REMAIN  UNLAW-
FULLY  IN  A DWELLING WITH INTENT TO COMMIT A ROBBERY THEREIN, AND WHEN,
(A) WHILE IN EFFECTING ENTRY OR WHILE IN THE DWELLING  OR  IN  IMMEDIATE
FLIGHT THEREFROM OR AS A DIRECT RESULT OF THE ENTRY INTO SUCH DWELLING A
PERSON  COMMITS ANY OFFENSE DEFINED IN ARTICLE ONE HUNDRED SIXTY OF THIS
TITLE AND (B) WHILE IN THE COURSE OF COMMITTING SUCH OFFENSE SUCH PERSON
COMMITS ANY OFFENSE DEFINED IN TITLE H OF THIS CHAPTER  AGAINST  ANOTHER
PERSON WHO IS NOT A PARTICIPANT IN THE HOME INVASION ROBBERY.
  2.  "DWELLING"  SHALL HAVE THE SAME MEANING AS SUCH TERM IS DEFINED IN
SUBDIVISION THREE OF SECTION 140.00 OF THIS PART.
  3. "ENTER OR REMAIN UNLAWFULLY" SHALL HAVE THE SAME  MEANING  AS  SUCH
TERM IS DEFINED IN SUBDIVISION FIVE OF SECTION 140.00 OF THIS PART.
  4.  "ROBBERY"  MEANS FORCIBLE STEALING AS DEFINED IN SECTION 160.00 OF
THIS TITLE.
S 163.05 HOME INVASION ROBBERY IN THE SECOND DEGREE.

S. 2091                             3

  A PERSON IS GUILTY OF HOME INVASION ROBBERY IN THE SECOND DEGREE  WHEN
HE OR SHE COMMITS A HOME INVASION ROBBERY.
  HOME INVASION ROBBERY IN THE SECOND DEGREE IS A CLASS C FELONY.
S 163.10 HOME INVASION ROBBERY IN THE FIRST DEGREE.
  A  PERSON  IS GUILTY OF HOME INVASION ROBBERY IN THE FIRST DEGREE WHEN
HE OR SHE COMMITS A HOME INVASION ROBBERY AND WHEN, IN THE COURSE OF THE
COMMISSION OF SUCH CRIME OR OF IMMEDIATE FLIGHT THEREFROM, HE OR SHE  OR
ANOTHER PARTICIPANT IN SUCH CRIME:
  1.  CAUSES  SERIOUS PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTIC-
IPANT IN SUCH CRIME; OR
  2. IS ARMED WITH A DEADLY WEAPON; OR
  3. USES OR THREATENS THE IMMEDIATE USE OF A DANGEROUS INSTRUMENT; OR
  4. DISPLAYS WHAT APPEARS TO BE A  PISTOL,  REVOLVER,  RIFLE,  SHOTGUN,
MACHINE  GUN OR OTHER FIREARM; EXCEPT THAT IN ANY PROSECUTION UNDER THIS
SUBDIVISION, IT IS AN AFFIRMATIVE DEFENSE THAT  SUCH  PISTOL,  REVOLVER,
RIFLE,  SHOTGUN,  MACHINE  GUN  OR OTHER FIREARM WAS NOT A LOADED WEAPON
FROM WHICH A SHOT, READILY CAPABLE OF PRODUCING DEATH OR  OTHER  SERIOUS
PHYSICAL INJURY, COULD BE DISCHARGED. NOTHING CONTAINED IN THIS SUBDIVI-
SION  SHALL  CONSTITUTE  A  DEFENSE  TO A PROSECUTION FOR, OR PRECLUDE A
CONVICTION OF, HOME INVASION ROBBERY IN THE SECOND DEGREE OR  ANY  OTHER
OFFENSE.
  HOME INVASION ROBBERY IN THE FIRST DEGREE IS A CLASS B FELONY.
S 163.15 HOME INVASION ROBBERY; PROSECUTION.
  IN ANY PROSECUTION OF AN OFFENSE DEFINED IN THIS ARTICLE, NO PROVISION
OF  THE  CHAPTER  SHALL  PRECLUDE  OR PROHIBIT PROSECUTION FOR ANY OTHER
OFFENSE NOT DEFINED IN THIS ARTICLE WHICH OCCURRED DURING THE SAME TRAN-
SACTION OR OCCURRENCE AS THE  OFFENSE  COMMITTED  IN  VIOLATION  OF  THE
PROVISIONS OF THIS ARTICLE.
  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.