S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1977
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2017
                                ___________
 
 Introduced  by  M.  of  A.  SEPULVEDA, GUNTHER, CRESPO, BRINDISI, MAYER,
   GALEF, SKARTADOS, MOSLEY, COLTON, LUPINACCI, WALTER, MONTESANO,  RAIA,
   DiPIETRO,  SALADINO,  M. G. MILLER, STECK, WALKER, THIELE, COOK, GRAF,
   HOOPER, PALMESANO -- Multi-Sponsored by -- M. of A. CROUCH, GARBARINO,
   MAGEE, McDONALD, McDONOUGH, McKEVITT, MOYA, PALUMBO, PERRY, RIVERA  --
   read once and referred to the Committee on Codes
 
 AN  ACT to amend the penal law, in relation to establishing the offenses
   of aggravated assault upon a person less than ten years old and crimi-
   nal use of a firearm in the first degree
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short title.  This act shall be known and may be cited as
 "Luisito's law".
   § 2.  Paragraph (a) of subdivision 1 of section  70.02  of  the  penal
 law,  as  amended by chapter 368 of the laws of 2015, is 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, sex trafficking as defined in paragraphs (a) and (b) of

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

                                                            LBD07342-02-7

 A. 1977                             2
 
 subdivision five of section  230.34,  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 degree as defined  in  section  120.07,  AGGRAVATED
 ASSAULT  UPON  A  PERSON  LESS  THAN TEN YEARS OLD AS DEFINED IN SECTION
 120.12-A, 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.
   § 3. The penal law is amended by adding a new section 120.12-a to read
 as follows:
 § 120.12-A AGGRAVATED ASSAULT UPON A PERSON LESS THAN TEN YEARS OLD.
   A  PERSON  IS GUILTY OF AGGRAVATED ASSAULT UPON A PERSON LESS THAN TEN
 YEARS OLD WHEN, BEING EIGHTEEN YEARS OLD OR OLDER, WITH INTENT TO  CAUSE
 PHYSICAL  INJURY  TO  ANOTHER  PERSON, HE OR SHE CAUSES SUCH INJURY TO A
 CHILD LESS THAN TEN YEARS OLD BY MEANS OF A DEADLY WEAPON  OR  DANGEROUS
 INSTRUMENT.
   AGGRAVATED  ASSAULT UPON A PERSON LESS THAN TEN YEARS OLD IS A CLASS B
 FELONY.
   § 4. Section 265.09 of the penal law, as amended by chapter 650 of the
 laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
 is amended to read as follows:
 § 265.09 Criminal use of a firearm in the first degree.
   (1) A person is guilty of criminal use  of  a  firearm  in  the  first
 degree  when  he  OR  SHE  commits any class B violent felony offense as
 defined in paragraph (a) of subdivision one of  section  70.02  OF  THIS
 CHAPTER,  OR  HE  OR SHE COMMITS A SPECIFIED OFFENSE WHILE KNOWING HE OR
 SHE IS ON SCHOOL GROUNDS, AS DEFINED IN SUBDIVISION FOURTEEN OF  SECTION
 220.00  OF THIS PART, OR WITHIN TWO HUNDRED FIFTY FEET OF ANY PLAYGROUND
 OPERATED BY THE CITY OF NEW YORK OR ANY DEPARTMENT OR  PUBLIC  AUTHORITY
 THEREOF, and he OR SHE either:
   (a)  possesses  a deadly weapon, if the weapon is a loaded weapon from
 which a shot, readily capable of producing death or other serious injury
 may be discharged; or
   (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
 machine gun or other firearm.
   [Criminal use of a firearm in the first degree is a class B felony.]
   (2)  FOR  THE  PURPOSES  OF  THIS SECTION, A "SPECIFIED OFFENSE" IS AN
 OFFENSE DEFINED BY ANY OF THE  FOLLOWING  PROVISIONS  OF  THIS  CHAPTER:
 SECTION  115.05  (CRIMINAL  FACILITATION  IN  THE SECOND DEGREE), 265.16
 (CRIMINAL SALE OF A FIREARM TO A MINOR), 100.13  (CRIMINAL  SOLICITATION
 IN  THE  FIRST  DEGREE),  155.40  (GRAND  LARCENY IN THE SECOND DEGREE),
 120.05 (ASSAULT IN THE  SECOND  DEGREE),  265.11  (CRIMINAL  SALE  OF  A
 FIREARM  IN THE THIRD DEGREE), 130.90 (FACILITATING A SEX OFFENSE WITH A
 CONTROLLED SUBSTANCE), 215.16 (INTIMIDATING A VICTIM OR WITNESS  IN  THE
 SECOND  DEGREE),  120.18  (MENACING  A POLICE OFFICER OR PEACE OFFICER),
 120.02 (RECKLESS ASSAULT OF A CHILD),  120.60  (STALKING  IN  THE  FIRST
 DEGREE),  121.12  (STRANGULATION  IN THE SECOND DEGREE), 130.30 (RAPE IN
 THE SECOND DEGREE), 130.45 (CRIMINAL SEXUAL ACT IN THE  SECOND  DEGREE),
 130.65  (SEXUAL  ABUSE  IN  THE  FIRST DEGREE), 130.80 (COURSE OF SEXUAL
 CONDUCT AGAINST A CHILD IN THE SECOND DEGREE), 130.66 (AGGRAVATED SEXUAL

 A. 1977                             3
 
 ABUSE IN THE THIRD DEGREE),  135.65  (COERCION  IN  THE  FIRST  DEGREE),
 265.17  (CRIMINAL  PURCHASE  OR  DISPOSAL OF A WEAPON), 120.25 (RECKLESS
 ENDANGERMENT IN THE FIRST DEGREE), 165.05 (ROBBERY IN THE THIRD DEGREE),
 OR 215.12 (TAMPERING WITH A WITNESS IN THE SECOND DEGREE).
   (3)  Sentencing.  Notwithstanding  any  other  provision of law to the
 contrary, when a person is convicted of criminal use of a firearm in the
 first degree as defined in subdivision one of this  section,  the  court
 shall  impose  an  additional  consecutive sentence of five years to the
 sentence imposed on the underlying class B violent felony offense  where
 the person convicted of such crime displays a loaded weapon from which a
 shot,  readily capable of producing death or other serious injury may be
 discharged, in furtherance of the commission of  such  crime,  provided,
 however,  that  such  additional  sentence  shall  not be imposed if the
 court, having regard to the nature and circumstances of the crime and to
 the history and character of the defendant, finds  on  the  record  that
 such  additional consecutive sentence would be unduly harsh and that not
 imposing such sentence would be consistent with the  public  safety  and
 would  not  deprecate  the seriousness of the crime. Notwithstanding any
 other provision of law to the contrary, the aggregate of the  five  year
 consecutive  term  imposed  pursuant to this subdivision and the minimum
 term of the indeterminate sentence imposed on  the  underlying  class  B
 violent felony shall constitute the new aggregate minimum term of impri-
 sonment,  and  a  person subject to such term shall be required to serve
 the entire aggregate minimum term and shall not be eligible for  release
 on  parole  or  conditional  release  during such term. This subdivision
 shall not apply where the defendant's criminal liability for  displaying
 a loaded weapon from which a shot, readily capable of producing death or
 other serious injury may be discharged, in furtherance of the commission
 of crime is based on the conduct of another pursuant to section 20.00 of
 this chapter.
   CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE IS A CLASS B FELONY.
   § 5. This act shall take effect on the first of November next succeed-
 ing the date upon which it shall have become a law.