NY State Senate Bill 2019-S370

Senate Bill S370

2019-2020 Legislative Session

Relates to certain assault crimes which include the aid or encouragement of additional persons

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to codes
Jan 09, 2019	referred to codes

co-Sponsors

2019-S370 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§120.10, 120.07, 125.20, 10.00, 70.05 & 70.30, Pen L; amd §§720.10 & 180.75, CP L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S6283
2015-2016: S1870
2017-2018: S2500
2021-2022: S233
2023-2024: S477

2019-S370 (ACTIVE) - Summary

Relates to certain assault crimes wherein a person is aided or encouraged to strike the victim in the head and cause unconsciousness.

2019-S370 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S370

SPONSOR: TEDISCO
 
TITLE OF BILL:  An act to amend the penal law and the criminal proce-
dure law, in relation to assault or aiding or encouraging assault

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill would provide serious penalties for both youth and adults who
make a "game" out of a violent assault, sometimes referred to as the
"knockout game" wherein participants (generally a group of two or more
youths) choose a vulnerable victim and one member of this group attempts
to render the victim unconscious with a single blow to the head. This
bill would ensure that intentionally rendering someone unconscious by
striking that individual on the head and thereby causing physical inju-
ry, serious physical injury or death to that person, or aiding or
encouraging another participant to engage in this behavior, is treated
as the serious crime that it is and eliminating the more lenient treat-
ment that would otherwise be afforded to youths when they commit the
violent crimes involved in this "game."

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill adds the act of a minor striking an unsuspecting
person in the head with the intent to render such person unconscious or
aiding or encouraging someone to do the same and as a result causing
physical injury or serious physical injury to the crime of Assault in
the first degree (a class B violent felony offense).

Section two of the bill adds the actions described above, when done with
a group of two or more other persons, to the crime of Gang Assault in
the first degree, (a class B violent felony offense).

Section three of the bill adds the actions described above, when this
act results in the death of the victim, to the crime of Manslaughter in
the first degree (a class B violent felony offense).

Section four of the bill adds the new subsections of Assault first, Gang
Assault first and Manslaughter first to the list of crimes that are
exempt from being provided with youthful offender status.

Section five of the bill adds the new subsections of Assault first, Gang
Assault first and Manslaughter first to the list of crimes for which
youths aged fourteen and fifteen years old may not be treated as a juve-
nile offender.

Section six of the bill provides that where a child who is convicted of
the new subsections of Assault first, Gang Assault first and Manslaught-
er first, would otherwise be sentenced as a juvenile offender, such
person shall instead be sentenced in accordance with the adult sentenc-
ing framework.

Sections seven and eight of the bill allow youths between the ages of 14
and 18, who are convicted of any of the new subsections added by this
bill regarding Assault first, Gang Assault first and Manslaughter first
to be sentenced up to 25 years imprisonment when serving consecutive
sentences. This section also increases to 25 years the maximum consec-
utive penalty where one of the crimes is Arson first and kidnapping
first.
Section nine of the bill provides that before a youth, accused of the
above new sections of law, may be removed from criminal court to Family
Court for further proceedings the court must find that it is in the
interest of justice and that there are mitigating circumstances that
bear directly on the commission of the crime; the defendant was not the
sole participant in the crime and his or her participation was relative-
ly minor (although not so minor as to constitute a defense); or that
there are possible deficiencies in proof of the crime.

 
JUSTIFICATION:

Merlin reports have noted what appears to be a disturbing new trend in
crime called the "knockout game" that has taken place in New York and in
several other states. In these incidents, one individual within a group
will suddenly sucker punch a stranger in the head in an attempt to
render the person unconscious.

Many victims have been women, immigrants and the elderly. The perpetra-
tors are generally young, from early teens into the early twenties, and
are in groups where the group encourages the perpetrator to see if he
can knock out the victim with one punch to the head. In most cases the
victims are not robbed, but it has been reported that the group cele-
brates and encourages the attacker where the attack is successful. With-
out the encouragement of the group these attacks would not be taking
place. This is why this bill holds all the members of the group equally
accountable for this crime, not just the individual who actually throws
the punch.

This legislation will provide sanctions appropriate to the seriousness
of the crimes involved. Our youth need to realize that this "game" is a
serious crime that puts people at risk of serious injury or death, and
that they cannot "get away" with these brutal assaults because of their
status as youth. Allowing just a slap on the wrist for this type of
violent crime will only encourage the continuation and spread of this
activity. The depravity of inflicting serious or even life-threatening
injury just for fun needs to be addressed, and those who choose to
participate in these cruel attacks must he held accountable.

This legislation provides the sufficient sanctions that need to be in
place in order to deter people from engaging in this deplorable "game"
and to save the vulnerable among us from pain and suffering and even
death.

 
PRIOR LEGISLATIVE HISTORY:

01/15/15: S.1870 REFERRED TO CODES
01/06/16: S.1870 REFERRED TO CODES
01/13/17: S.2500 REFERRED TO CODES
01/03/18: S.2500 REFERRED TO CODES
02/01/18: S.2500 AMEND AND RECOMMIT TO CODES
02/01/18: S.2500 PRINT NUMBER 2500A
05/15/18: S.2500A 1ST REPORT CAL.1274
05/16/18: S.2500A 2ND REPORT CAL..
05/22/18: S.2500A ADVANCED TO THIRD READING
06/20/18: S.2500A COMMITTED TO RULES

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
Immediately; provided that:
(a) the amendments to paragraph (f) of subdivision 1 of section 70.30 of
the penal law, made by section seven of this act shall be subject to the
expiration and reversion of such paragraph pursuant to subdivision d of
section 74 of chapter 3 of the laws of 1995, as amended, when upon such
date the provisions of section eight of this act shall take effect; and
(b) the amendments to subdivision 4 of section 180.75 of the criminal
procedure law made by section nine of this act shall not affect the
repeal of such subdivision and shall be deemed repealed therewith..

2019-S370 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    370
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  Sens.  TEDISCO, BOYLE -- read twice and ordered printed,
   and when printed to be committed to the Committee on Codes
 
 AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
   relation to assault or aiding or encouraging assault

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 4 of  section  120.10  of  the  penal  law,  as
 amended  by chapter 791 of the laws of 1967, is amended and a new subdi-
 vision 5 is added to read as follows:
   4. In the course of and in furtherance of the commission or  attempted
 commission  of  a felony or of immediate flight therefrom, he OR SHE, or
 another participant if there be any, causes serious physical injury to a
 person other than one of the participants[.]; OR
   5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
 UNSUSPECTING PERSON TO BE RENDERED UNCONSCIOUS, HE OR SHE  STRIKES  SUCH
 PERSON  ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER PARTICIPANT
 TO STRIKE SUCH PERSON ON THE HEAD, CAUSING PHYSICAL  INJURY  OR  SERIOUS
 PHYSICAL INJURY TO SUCH PERSON.
   §  2.  Section 120.07 of the penal law, as added by chapter 647 of the
 laws of 1996, is amended to read as follows:
 § 120.07 Gang assault in the first degree.
   A person is guilty of gang assault in the first degree when[,]:
   1. with intent to cause serious physical injury to another person  and
 when  aided  by  two  or  more other persons actually present, he causes
 serious physical injury to such person or to a third person[.]; OR
   2. BEING FOURTEEN YEARS OLD OR MORE AND WITH THE INTENT  TO  CAUSE  AN
 UNSUSPECTING  PERSON  TO  BE  RENDERED UNCONSCIOUS, AND WHEN AIDED BY OR
 ENCOURAGED BY TWO OR MORE OTHER PERSONS  ACTUALLY  PRESENT,  HE  OR  SHE
 STRIKES SUCH PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03849-01-9

 S. 370                              2
 
 PARTICIPANT  TO  STRIKE SUCH PERSON ON THE HEAD, CAUSING PHYSICAL INJURY
 OR SERIOUS PHYSICAL INJURY TO SUCH PERSON.
   Gang assault in the first degree is a class B felony.
   §  3.  Subdivision  4  of section 125.20 of the penal law, as added by
 chapter 477 of the laws of 1990, is amended and a new subdivision  5  is
 added to read as follows:
   4.  Being eighteen years old or more and with intent to cause physical
 injury to a person less than eleven years old, the defendant  recklessly
 engages in conduct which creates a grave risk of serious physical injury
 to such person and thereby causes the death of such person[.]; OR
   5. BEING FOURTEEN YEARS OF AGE OR MORE AND WITH THE INTENT TO CAUSE AN
 UNSUSPECTING  PERSON  TO BE RENDERED UNCONSCIOUS, HE OR SHE STRIKES SUCH
 PERSON ON THE HEAD, OR HE OR SHE AIDS OR ENCOURAGES ANOTHER  PARTICIPANT
 TO STRIKE SUCH PERSON ON THE HEAD, CAUSING THE DEATH OF SUCH PERSON.
   §  4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal
 procedure law, as amended by chapter 316 of the laws of 2006, is amended
 to read as follows:
   (a) the conviction to be replaced by a youthful  offender  finding  is
 for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
 defined in subdivision forty-one of section 1.20 OF THIS CHAPTER, except
 as provided in subdivision three OF THIS SECTION, or (iii) rape  in  the
 first  degree,  criminal  sexual  act in the first degree, or aggravated
 sexual abuse, except as provided in subdivision three OF  THIS  SECTION,
 OR  (IV)  ASSAULT  IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
 SECTION 120.10 OF THE PENAL LAW, OR (V) GANG ASSAULT IN THE FIRST DEGREE
 AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07 OF  THE  PENAL  LAW,  OR
 (VI)  MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
 SECTION 125.20 OF THE PENAL LAW, or
   § 5. Subdivision 18 of section 10.00 of the penal law, as  amended  by
 chapter 7 of the laws of 2007, is amended to read as follows:
   18.  "Juvenile  offender" means (1) a person thirteen years old who is
 criminally responsible for acts constituting murder in the second degree
 as defined in subdivisions one and two of section 125.25 of this chapter
 or such conduct as a sexually motivated felony, where authorized  pursu-
 ant to section 130.91 of [the penal law] THIS CHAPTER; and
   (2) a person fourteen or fifteen years old who is criminally responsi-
 ble for acts constituting the crimes defined in subdivisions one and two
 of section 125.25 (murder in the second degree) and in subdivision three
 of such section provided that the underlying crime for the murder charge
 is  one  for which such person is criminally responsible; section 135.25
 (kidnapping in the first degree); 150.20 (arson in  the  first  degree);
 subdivisions  one  [and], two AND FIVE of section 120.10 (assault in the
 first degree); SUBDIVISION TWO OF SECTION 120.07 (GANG  ASSAULT  IN  THE
 FIRST  DEGREE);  125.20 (manslaughter in the first degree); subdivisions
 one and two of section 130.35 (rape in the first  degree);  subdivisions
 one and two of section 130.50 (criminal sexual act in the first degree);
 130.70  (aggravated  sexual abuse in the first degree); 140.30 (burglary
 in the first degree); subdivision one of section 140.25 (burglary in the
 second degree); 150.15 (arson in the second degree); 160.15 (robbery  in
 the  first  degree);  subdivision  two of section 160.10 (robbery in the
 second degree) of this chapter; or section 265.03 of this chapter, where
 such machine gun or such firearm is possessed on school grounds, as that
 phrase is defined in subdivision fourteen  of  section  220.00  of  this
 chapter;  or  defined  in this chapter as an attempt to commit murder in
 the second degree or kidnapping in the first degree, or such conduct  as

 S. 370                              3
 
 a sexually motivated felony, where authorized pursuant to section 130.91
 of [the penal law] THIS CHAPTER.
   §  6. Section 70.05 of the penal law is amended by adding a new subdi-
 vision 4 to read as follows:
   4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A
 JUVENILE OFFENDER IS CONVICTED OF ASSAULT IN THE FIRST DEGREE AS DEFINED
 IN SUBDIVISION FIVE OF SECTION 120.10; GANG ASSAULT IN THE FIRST  DEGREE
 AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07; OR MANSLAUGHTER IN THE
 FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
 CHAPTER,  SUCH  OFFENDER SHALL BE SENTENCED PURSUANT TO SECTION 70.02 OF
 THIS ARTICLE; PROVIDED, THAT THE PROVISIONS OF  THIS  SUBDIVISION  SHALL
 ONLY APPLY TO JUVENILE OFFENDERS OVER THIRTEEN YEARS OLD.
   § 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law,
 as  added by chapter 481 of the laws of 1978 and relettered by chapter 3
 of the laws of 1995, is amended to read as follows:
   (f) The aggregate maximum term of consecutive sentences imposed upon a
 juvenile offender for two or more crimes, not including a class A  felo-
 ny,    OR  ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF
 SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
 SION  TWO  OF  SECTION  120.07,  OR  MANSLAUGHTER IN THE FIRST DEGREE AS
 DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
 before he has reached the age of  sixteen,  shall,  if  it  exceeds  ten
 years, be deemed to be ten years. If consecutive indeterminate sentences
 imposed  upon  a  juvenile  offender  include a sentence for the class A
 felony of arson in the first degree [or for  the  class  A  felony  of],
 kidnapping  in  the first degree, ASSAULT IN THE FIRST DEGREE AS DEFINED
 IN SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST  DEGREE
 AS  DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN THE
 FIRST DEGREE AS DEFINED IN SUBDIVISION FIVE OF SECTION  125.20  OF  THIS
 CHAPTER,  then the aggregate maximum term of such sentences shall, if it
 exceeds [fifteen] TWENTY-FIVE years, be deemed to be  [fifteen]  TWENTY-
 FIVE  years. Where the aggregate maximum term of two or more consecutive
 sentences is reduced by a calculation made pursuant to  this  paragraph,
 the  aggregate minimum period of imprisonment, if it exceeds one-half of
 the aggregate maximum term as so reduced, shall be deemed to be one-half
 of the aggregate maximum term as so reduced.
   § 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law,
 as added by chapter 481 of the laws of  1978,  is  amended  to  read  as
 follows:
   (d) The aggregate maximum term of consecutive sentences imposed upon a
 juvenile  offender  for  two  or  more  crimes,  not including a class A
 felony, ASSAULT IN THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  FIVE  OF
 SECTION  120.10; GANG ASSAULT IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
 SION TWO OF SECTION 120.07; OR  MANSLAUGHTER  IN  THE  FIRST  DEGREE  AS
 DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS CHAPTER, committed
 before  he  has  reached  the  age  of sixteen, shall, if it exceeds ten
 years, be deemed to be ten years. If consecutive indeterminate sentences
 imposed upon a juvenile offender include a  sentence  for  the  class  A
 felony  of  arson  in  the  first degree [or for the class A felony of],
 kidnapping in the first degree, ASSAULT IN THE FIRST DEGREE  AS  DEFINED
 IN  SUBDIVISION FIVE OF SECTION 120.10, GANG ASSAULT IN THE FIRST DEGREE
 AS DEFINED IN SUBDIVISION TWO OF SECTION 120.07, OR MANSLAUGHTER IN  THE
 FIRST  DEGREE  AS  DEFINED IN SUBDIVISION FIVE OF SECTION 125.20 OF THIS
 CHAPTER, then the aggregate maximum term of such sentences shall, if  it
 exceeds  [fifteen]  TWENTY-FIVE years, be deemed to be [fifteen] TWENTY-
 FIVE years. Where the aggregate maximum term of two or more  consecutive

 S. 370                              4
 
 sentences  is  reduced by a calculation made pursuant to this paragraph,
 the aggregate minimum period of imprisonment, if it exceeds one-half  of
 the aggregate maximum term as so reduced, shall be deemed to be one-half
 of the aggregate maximum term as so reduced.
   § 9. Subdivision 4 of section 180.75 of the criminal procedure law, as
 amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
 follows:
   4. Notwithstanding the provisions of subdivisions  two  and  three  of
 this  section,  a  local  criminal  court  shall,  at the request of the
 district attorney, order removal of an action against a juvenile  offen-
 der  to  the  family  court  pursuant to the provisions of article seven
 hundred twenty-five of this chapter if, upon consideration of the crite-
 ria specified in subdivision two of section 210.43 of this  chapter,  it
 is  determined  that  to  do  so  would  be in the interests of justice.
 Where, however, the felony complaint charges the juvenile offender  with
 murder  in  the  second degree as defined in section 125.25 of the penal
 law, rape in the first degree as defined in subdivision one  of  section
 130.35  of  the  penal  law,  criminal sexual act in the first degree as
 defined in subdivision one of section 130.50 of the penal law,  [or]  an
 armed  felony  as  defined  in paragraph (a) of subdivision forty-one of
 section 1.20 of this chapter, ASSAULT IN THE FIRST DEGREE AS DEFINED  IN
 SUBDIVISION FIVE OF SECTION 120.10 OF THE PENAL LAW, GANG ASSAULT IN THE
 FIRST  DEGREE  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 120.07 OF THE
 PENAL LAW, OR MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION
 FIVE OF SECTION 125.20 OF THE  PENAL  LAW,  a  determination  that  such
 action  be removed to the family court shall, in addition, be based upon
 a finding of one or  more  of  the  following  factors:  (i)  mitigating
 circumstances  that bear directly upon the manner in which the crime was
 committed; or (ii) where the defendant was not the sole  participant  in
 the  crime,  the defendant's participation was relatively minor although
 not so minor as to constitute a defense to  the  prosecution;  or  (iii)
 possible deficiencies in proof of the crime.
   § 10. This act shall take effect immediately; provided that:
   (a)  the amendments to paragraph (f) of subdivision 1 of section 70.30
 of the penal law, made by section seven of this act shall be subject  to
 the expiration and reversion of such paragraph pursuant to subdivision d
 of  section  74  of chapter 3 of the laws of 1995, as amended, when upon
 such date the provisions of section eight of this act shall take effect;
 and
   (b) the amendments to subdivision 4 of section 180.75 of the  criminal
 procedure  law  made  by  section  nine of this act shall not affect the
 repeal of such subdivision and shall be deemed repealed therewith.

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Senate Bill S370

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James Tedisco