S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6814
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 20, 2019
                                ___________
 
 Introduced  by M. of A. REYES -- 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 189 of the laws of 2018, 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
 subdivision  five  of  section  230.34,  sex  trafficking  of a child as
 defined in section 230.34-a, 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05558-02-9

 A. 6814                             2
 
 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, intim-
 idating 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
 ABUSE  IN  THE  THIRD  DEGREE),  135.65  (COERCION IN THE FIRST DEGREE),
 265.17 (CRIMINAL PURCHASE OR DISPOSAL OF  A  WEAPON),  120.25  (RECKLESS

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 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.