S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8809
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             November 25, 2019
                                ___________
 
 Introduced by M. of A. THIELE -- read once and referred 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;
   § 2. Subdivisions 1, 3 and 4 of section 70.07 of the penal law, subdi-
 visions 1 and 3 as amended by chapter 264 of the laws of 2003,  subdivi-
 sion  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.
                                                            LBD07115-01-9
              

 A. 8809                             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.  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
 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. 8809                             3
 
 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.
   § 3. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.