S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4099
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2017
                                ___________
 
 Introduced  by  M. of A. SIMOTAS, GUNTHER, ENGLEBRIGHT, COLTON, MORELLE,
   HOOPER, LUPARDO -- Multi-Sponsored by -- M. of A. CROUCH, MALLIOTAKIS,
   McLAUGHLIN, RAIA -- read once and referred to the Committee on Codes
 
 AN ACT to amend the penal law and the correction law, in relation to sex
   offenses committed against children under 12  years  of  age  and  sex
   offenses  committed  by persons 21 years old or older against children
   under 14 years of age; to amend the correction  law,  in  relation  to
   requiring  electronic  monitoring  of  sex offenders convicted of such
   offenses against a child; to repeal subdivision 3 of section 130.35 of
   the penal law relating to rape of a child less than 11 years old;  and
   to repeal subdivision 3 of section 130.50 of the penal law relating to
   a criminal sexual act with a child less than 11 years old
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
 section 70.00 of the penal law, as amended by chapter 107 of the laws of
 2006, is amended to read as follows:
   (i) For a class A-I felony, such minimum period shall not be less than
 fifteen  years  nor more than twenty-five years; provided, however, that
 (A) where a sentence, other than a sentence of death or  life  imprison-
 ment  without parole, is imposed upon a defendant convicted of murder in
 the first degree as defined in section 125.27 of this chapter such mini-
 mum period shall be not less than twenty years nor more than twenty-five
 years, and, (B) where a sentence is imposed upon a  defendant  convicted
 of murder in the second degree as defined in subdivision five of section
 125.25  of  this chapter or convicted of aggravated murder as defined in
 section 125.26 of this chapter, the sentence shall be life  imprisonment
 without  parole,  and,  (C) where a sentence is imposed upon a defendant
 convicted of attempted murder in the first degree as defined in  article
 one  hundred  ten of this chapter and subparagraph (i), (ii) or (iii) of
 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04209-01-7

 A. 4099                             2
 
 section 125.27 of this chapter or attempted aggravated murder as defined
 in article one hundred ten of this chapter and section  125.26  of  this
 chapter such minimum period shall be not less than twenty years nor more
 than  forty years, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT
 CONVICTED OF RAPE OF A CHILD AS  DEFINED  IN  SECTION  130.36,  CRIMINAL
 SEXUAL  ACT  AGAINST  A  CHILD  AS DEFINED IN SECTION 130.51, AGGRAVATED
 SEXUAL ABUSE OF A CHILD AS  DEFINED  IN  SECTION  130.71  OR  AGGRAVATED
 COURSE OF SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN SECTION 130.81 OF
 THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE TWENTY YEARS.
   §  2.  Subdivision 5 of section 125.25 of the penal law, as amended by
 chapter 320 of the laws of 2006, is amended to read as follows:
   5. Being eighteen years old or more, while in the course of committing
 rape in the first, second or third degree, criminal sexual  act  in  the
 first, second or third degree, sexual abuse in the first degree, RAPE OF
 A CHILD, CRIMINAL SEXUAL ACT AGAINST A CHILD, AGGRAVATED SEXUAL ABUSE OF
 A CHILD, AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD, aggravated
 sexual  abuse in the first, second, third or fourth degree, or incest in
 the first, second or third degree, against a person less  than  fourteen
 years old, he or she intentionally causes the death of such person.
   § 3. Subdivision 3 of section 130.35 of the penal law is REPEALED.
   §  4.  The penal law is amended by adding a new section 130.36 to read
 as follows:
 § 130.36 RAPE OF A CHILD.
   A PERSON IS GUILTY OF RAPE OF A CHILD WHEN:
   1. HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO  IS
 LESS THAN TWELVE YEARS OLD; OR
   2.  BEING  TWENTY-ONE  YEARS  OLD OR MORE, HE OR SHE ENGAGES IN SEXUAL
 INTERCOURSE WITH ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD.
   RAPE OF A CHILD IS A CLASS A-I FELONY.
   § 5. Subdivision 3 of section 130.50 of the penal law is REPEALED.
   § 6. The penal law is amended by adding a new section 130.51  to  read
 as follows:
 § 130.51 CRIMINAL SEXUAL ACT AGAINST A CHILD.
   A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD WHEN:
   1.  HE  OR  SHE  ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT
 WITH ANOTHER PERSON WHO IS LESS THAN TWELVE YEARS OLD; OR
   2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU-
 AL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS  LESS  THAN
 FOURTEEN YEARS OLD.
   CRIMINAL SEXUAL ACT AGAINST A CHILD IS A CLASS A-I FELONY.
   §  7.  Subdivision 1 of section 130.70 of the penal law, as amended by
 chapter 450 of the laws of 1988, the opening  paragraph  as  amended  by
 chapter 485 of the laws of 2009, is amended to read as follows:
   1.  A  person is guilty of aggravated sexual abuse in the first 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].
   § 8. The penal law is amended by adding a new section 130.71  to  read
 as follows:
 § 130.71 AGGRAVATED SEXUAL ABUSE OF A CHILD.
   1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD WHEN:

 A. 4099                             3
 
   (A)  HE OR SHE INSERTS A FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS,
 RECTUM OR ANUS OF ANOTHER PERSON CAUSING PHYSICAL INJURY TO SUCH  PERSON
 WHEN SUCH OTHER PERSON IS LESS THAN TWELVE YEARS OLD; OR
   (B)  BEING  TWENTY-ONE  YEARS OLD OR MORE, HE OR SHE INSERTS A FOREIGN
 OBJECT IN THE VAGINA, URETHRA, PENIS, RECTUM OR ANUS OF  ANOTHER  PERSON
 CAUSING  PHYSICAL  INJURY  TO SUCH PERSON WHEN SUCH OTHER PERSON IS LESS
 THAN FOURTEEN YEARS OLD.
   2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
 PROVISIONS OF THIS SECTION.
   AGGRAVATED SEXUAL ABUSE OF A CHILD IS A CLASS A-I FELONY.
   §  9.  Subdivision 1 of section 130.75 of the penal law, as amended by
 chapter 1 of the laws of 2000, paragraphs (a)  and  (b)  as  amended  by
 chapter 264 of the laws of 2003, is amended to read as follows:
   1.  A  person is guilty of course of sexual conduct against a child in
 the first degree when, over a period of time not less than three  months
 in duration[:
   (a)  he  or  she  engages in two or more acts of sexual conduct, which
 includes at least one act of sexual intercourse,  oral  sexual  conduct,
 anal sexual conduct or aggravated sexual contact, with a child less than
 eleven years old; or
   (b)],  he  or she, being eighteen years old or more, engages in two or
 more acts of sexual conduct, which include at least one  act  of  sexual
 intercourse,  oral  sexual  conduct,  anal  sexual conduct or aggravated
 sexual contact, with a child less than thirteen years old.
   § 10. The penal law is amended by adding a new section 130.81 to  read
 as follows:
 § 130.81 AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD.
   1. A PERSON IS GUILTY OF AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A
 CHILD  WHEN,  OVER  A PERIOD OF TIME NOT LESS THAN THREE MONTHS IN DURA-
 TION:
   (A) HE OR SHE ENGAGES IN TWO OR MORE ACTS  OF  SEXUAL  CONDUCT,  WHICH
 INCLUDES  AT  LEAST  ONE ACT OF SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT,
 ANAL SEXUAL CONDUCT OR AGGRAVATED SEXUAL CONTACT, WITH A CHILD LESS THAN
 TWELVE YEARS OLD; OR
   (B) HE OR SHE, BEING TWENTY-ONE YEARS OLD OR MORE, ENGAGES IN  TWO  OR
 MORE  ACTS  OF SEXUAL CONDUCT, WHICH INCLUDES AT LEAST ONE ACT OF SEXUAL
 INTERCOURSE, ORAL SEXUAL CONDUCT,  ANAL  SEXUAL  CONDUCT  OR  AGGRAVATED
 SEXUAL CONTACT, WITH A CHILD LESS THAN FOURTEEN YEARS OLD.
   2.  A  PERSON  MAY NOT BE SUBSEQUENTLY PROSECUTED FOR ANY OTHER SEXUAL
 OFFENSE INVOLVING THE SAME  VICTIM  UNLESS  THE  OTHER  CHARGED  OFFENSE
 OCCURRED OUTSIDE THE TIME PERIOD CHARGED UNDER THIS SECTION.
   AGGRAVATED  COURSE  OF  SEXUAL  CONDUCT AGAINST A CHILD IS A CLASS A-I
 FELONY.
   § 11. Subparagraph (i) of paragraph (a) of subdivision  3  of  section
 168-a  of  the  correction law, as amended by chapter 107 of the laws of
 2006, is amended to read as follows:
   (i) a conviction of or a conviction for an attempt to  commit  any  of
 the  provisions  of  sections  130.35,  130.36,  130.50, 130.51, 130.65,
 130.66, 130.67, 130.70,  130.71,  130.75,  130.80,  130.81,  130.95  and
 130.96 of the penal law, or
   §  12.  Section  168-w of the correction law, as relettered by chapter
 604 of the laws of 2005, is relettered 168-x and a new section 168-w  is
 added to read as follows:
   §  168-W.  ELECTRONIC  MONITORING OF CERTAIN SEX OFFENDERS. 1. ANY SEX
 OFFENDER HAVING BEEN CONVICTED OF RAPE OF A CHILD AS DEFINED IN  SECTION
 130.36,  CRIMINAL  SEXUAL  ACT  AGAINST  A  CHILD  AS DEFINED IN SECTION

 A. 4099                             4
 
 130.51, AGGRAVATED SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION  130.71
 OR  AGGRAVATED  COURSE  OF  SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN
 SECTION 130.81 OF THE PENAL LAW SHALL BE PLACED ON ELECTRONIC MONITORING
 FOR LIFE.
   2. THE DIVISION SHALL ESTABLISH A SYSTEM OF ACTIVE ELECTRONIC MONITOR-
 ING  THAT IDENTIFIES THE LOCATION OF A SEX OFFENDER REQUIRED TO BE MONI-
 TORED PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THAT CAN  PRODUCE,
 UPON  REQUEST, REPORTS OR RECORDS OF THE SEX OFFENDER'S PRESENCE NEAR OR
 WITHIN A CRIME SCENE OR PROHIBITED AREA OR THE SEX OFFENDER'S  DEPARTURE
 FROM SPECIFIED GEOGRAPHIC LIMITATIONS.
   3.  THE  DIVISION  SHALL  ALSO PROMULGATE REGULATIONS IMPLEMENTING THE
 IMPOSITION AND COLLECTION  OF  FEES  RELATED  TO  ELECTRONIC  MONITORING
 PURSUANT  TO  THIS  SECTION. SUCH REGULATIONS SHALL UTILIZE A MEANS TEST
 BASED ON TWO HUNDRED PERCENT OF THE FEDERAL POVERTY  GUIDELINES  PROMUL-
 GATED  ANNUALLY  BY  THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES
 AND IF THE SEX OFFENDER FALLS BELOW SUCH PERCENTAGE THEN NO FEE SHALL BE
 CHARGED, AND EARNINGS ABOVE SUCH PERCENTAGE SHALL  BE  CONSIDERED  ON  A
 SLIDING  SCALE. SUCH REGULATIONS SHALL ALSO PROVIDE THAT THE DIVISION OF
 PAROLE CONSIDER ANY ADDITIONAL TEST OR  INDICIA  THAT  DEMONSTRATES  THE
 INABILITY  OF THE SEX OFFENDER TO PAY SUCH FEES.  EMPLOYEES OF THE DIVI-
 SION OF PAROLE SHALL BE PROHIBITED FROM COLLECTING ELECTRONIC MONITORING
 RELATED FEES.
   4. ANY SEX OFFENDER REQUIRED TO BE ELECTRONICALLY  MONITORED  PURSUANT
 TO THE PROVISIONS OF THIS SECTION WHO VIOLATES SUCH REQUIREMENT SHALL BE
 GUILTY  OF  A  CLASS E FELONY UPON CONVICTION FOR THE FIRST OFFENSE, AND
 UPON CONVICTION FOR A SECOND OR SUBSEQUENT OFFENSE SHALL BE GUILTY OF  A
 CLASS  D FELONY. ANY SUCH VIOLATION MAY ALSO BE THE BASIS FOR REVOCATION
 OF PAROLE PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-I OF THE  EXECUTIVE
 LAW.
   §  13.  This  act  shall  take  effect  immediately and shall apply to
 offenses committed on or after  such  effective  date;  furthermore  all
 offenses committed prior to such effective date shall be governed by the
 provisions of law in effect immediately before such date.